Employee / Independent Contractor

• What is the difference between an “employee” and an “independent contractor”?
  • Workers who are performing services in order to receive compensation can be classified as either “employees” or “independent contractors.”  Generally speaking, employees are entitled to more benefits and protections under the law than independent contractors.  Only employees, for example, are entitled to the overtime and minimum wage protections of the FLSA and the NYLL.  Other benefits that are only provided to employees include unemployment benefits, worker’s compensation benefits, and family medical leave benefits.
  • Whether an employee is considered to be an employee or independent contractor is often not an easy question to answer.  The determination is usually made on a case-by-case basis, based on a number of different factors and considerations.  The factors and considerations might include who is in control of the result produced by the worker or the means used to achieve the end result, the degree of control exercised by the alleged employer, and the extent to which the worker is dependent on the alleged employer.
  • Further, the factors and considerations used to make the determination may different when determining whether a worker is entitled to different benefits.  There are no published lists of jobs that are always performed by employees or that are always performed by independent contractors.  An experienced wage and hour lawyer, however, can examine past cases and discuss with you whether you should be classified as an “employee” or an “independent contractor” based on your individual circumstances.
• Does my employer have to pay me “overtime” or “minimum wage” if I’m an “independent contractor”?
  • No. The protections of the FLSA and NYLL regarding “overtime” or “minimum wage” do not apply to independent contractors.
• Does my employer have to pay me “overtime” or “minimum wage” if I’m a “temporary worker”?
• Generally speaking, an employee’s right to be paid “overtime” or “minimum wage” does not depend upon whether a worker is performing services on a permanent or temporary basis.  A worker is not, however, entitled to be paid “overtime” or “minimum wage” if the worker is considered to be “exempt” or if the worker is considered to be an “independent contractor.”  See the questions regarding “overtime,” “minimum wage,” and the difference between “employees” and “independent contractors” for more information.
• Does my employer have to pay me “overtime” or “minimum wage” if I work “part time”?
  • Generally speaking, a worker’s right to be paid “overtime” or “minimum wage” does not depend upon whether the worker usually performs services on a full-time or part-time basis.  The number of hours that a worker works in given work week, however, is relevant to whether that worker is entitled to overtime wages or not.  See the questions regarding “overtime” and “minimum wage” for more information.
  • Notably, a worker is not entitled to be paid “overtime” or “minimum wage” if the worker is considered to be “exempt” or if the worker is considered to be an “independent contractor.”  See the questions regarding “overtime,” “minimum wage,” and the difference between “employees” and “independent contractors” for more information.