Being an employee or independent contractor impacts that rights and duties of everyone involved. What is an independent contractor? Here's an example: A nail technician who works as an independent contractor does not have rights to protections provided to employees under law. These state and federal laws include the Fair Labor Standards Act (the U.S. minimum wage and overtime law), the Family Medical Leave Act, Americans for Disabilities Act, the Affordable Healthcare Act, and the list goes on. We here at Lebau & Neuworth, LLC concentrate in protecting employee rights laws. We encounter employees who have been labeled “independent contractors,” so to not pay overtime, for instance, or not provide a person with disability leave. Employers try to pull 'fast ones' through mislabeling employees as independent contractors. Magic labels don’t work at court. Federal courts in Maryland, Virginia, and North and South Carolina and in most places consider whether someone is an employee, or independent contractor, under an “economic realities test,” and not according to labels. Campusano v. Lusitano Constr. LLC, 208 Md. App. 29, 36-40 (2012) (discussing the test in Maryland and nationally); see also Viar-Robinson v. Dudley Beauty Salon, No. PWG-12-1794, 2013 U.S. Dist. LEXIS 171383 (D. Md. Dec. 4, 2013) (for a recent Maryland example). In Vair-Robinson, for instance, a nail technician working with her own equipment split her fees with the salon in exchange for her spot, and also helped out occasionally when requested by the salon, and she was held to be an independent contractor, because the nail tech exercised general control over her own schedule, working conditions, and opportunity for earnings. In contrast in another recent case, erotic dancers at a nightclub were held to be employees and able to sue that night club for minimum and overtime wages because the club, despite calling the dancers “independent contractors,” controlled their working conditions and profit opportunities. Butler v. PP&G, Inc., No. WMN-13-430, 2013 U.S. Dist. LEXIS 159417, at 1-16 (D. Md. Nov. 7, 2013). The court held these dancers as employees, even though the dancers were asked by the club to choose their label, and chose to be independent contractors. Id. at 15. Basically, you cannot mislabel yourself or be forced to sign away your employee status under the law. See id. at 15. The economic reality test is a six-factor test. See Vair-Robinson, at 11. It requires more detailed treatment than the summaries above. That being said, L&N has represented hundreds of employees who have been denied proper wages, overtime and employee benefits because of being misclassified as independent contractors. Contact us if you have questions.
