Overtime theft? If you’re not getting overtime, you’re probably getting robbed.

  • January 19, 2016

Overtime theft? If you’re not getting overtime, you’re probably getting robbed.

By Your Denver Personal Injury Attorney

Overtime theft

Overtime

In most cases, people who work for another person or company are legally considered “employees” under Colorado and federal law. This means that, in most cases, if a person works more than 40 hours per week or more than 12 hours per day, he is entitled to 1.5 times his hourly wage for every hour over 40 per week or 12 per day that he works in Colorado.

 

However, not-so-sneaky employers still try to label their employees “independent contractors” in order to avoid paying overtime and other legally earned benefits like workers’ compensation and social security.  This is nothing but plain ol’ wage theft.  And it’s highly illegal.

 

If you work more than 40 hours per week and do not receive time-and-a-half, you’re being ripped off and you could be owed back pay plus a whole host of other penalties including attorney fees.

 

The frustrating reality today is that employers are still intentionally misclassifying employees as “independent contractors” instead of “employees” so they do not have to pay overtime, minimum wage, workers’ compensation, unemployment insurance or other employee benefits.  And if they can get away with it, why not?

 

Where Your Denver Personal Injury Attorney tends to see these cases a lot is in the construction sector where employees are routinely and purposefully labeled “independent contractors” so that the boss can avoid paying overtime overtime and other benefits.  And the worst part is that many of these people that the companies are ripping off don’t know that they’re being ripped off.  They’re just happy to have a job.

 

However, in the end, this means that a lot of people are being robbed of overtime they rightfully earned and a lot of injured workers have been that they don’t qualify for workers’ compensation because they are independent contractors.

 

This practice is illegal and if you are working or have been working for one employer on a consistent basis over 40 hours a week without receiving “overtime,” or if you’re being denied workers’ compensation because your employer is mislabeling you an “independent contractor,” you need to contact Your Denver Personal Injury Attorney for your FREE initial consultation today.

 

Your employer can’t fire you for filing a legal claim.

 

Now, let’s be honest: of course your employer CAN fire you for filing a claim, but firing you is ILLEGAL and your employer will be punished in court.  Any time an employee asserts his rights to back due overtime wages or workers’ compensation benefits, federal and state law both have said that it’s wildly illegal to fire that employee for exercising his rights.  And the penalties for doing so are so stiff that it’s a wonder that it happens at all. Never underestimate the stupidity of greed I suppose.

 

Nevertheless, you should never be afraid to exercise your legal rights for fear of retaliation by your employer.  And having Your Denver Personal Injury Attorney on your side from the beginning is the smartest way to go.

 

Don’t worry about attorney fees.

 

Both federal and state law say that if a plaintiff, i.e. the employee, is the successful party, the defense has to pay reasonable attorney fees and costs.  Therefore, if you have a good case, you should never have to worry about attorney fees.  Your Denver Personal Injury Attorney Jeffry Dougan NEVER charges for his initial consultation fee and only wins attorney fees if you win.

 

“How do I know if I’m an independent contractor or an employee?”

 

Again, each case is different and depends on the circumstances of each individual.  Fortunately, the Department of Labor has released a fact sheet establishing a number of factors to use when determining whether a person is an “employee” and is therefore legally entitled to overtime pay or whether that person is an “independent contractor” and is therefore not entitled to collect overtime pay or other benefits. Your Denver Personal Injury attorney has excerpted from that fact sheet here:

(1) The extent to which the work performed is an integral part of the employer’s business.

If the work performed by a worker is integral to the employer’s business, it is more likely that the worker is economically dependent on the employer and less likely that the worker is in business for himself or herself. For example, work is integral to the employer’s business if it is a part of its production process or if it is a service that the employer is in business to provide.

 

(2) Whether the worker’s managerial skills affect his or her opportunity for profit and loss.

Managerial skill may be indicated by the hiring and supervision of workers or by investment in equipment. Analysis of this factor should focus on whether the worker exercises managerial skills and, if so, whether those skills affect that worker’s opport

 

(3) The relative investments in facilities and equipment by the worker and the employer.

 

The worker must make some investment compared to the employer’s investment (and bear some risk for a loss) in order for there to be an indication that he/she is an independent contractor in business for himself or herself. A worker’s investment in tools and equipment to perform the work does not necessarily indicate independent contractor status, because such tools and equipment may simply be required to perform the work for the employer. If a worker’s business investment compares favorably enough to the employer’s that they appear to be sharing risk of loss, this factor indicates that the worker may be an independent contractor.

(4) The worker’s skill and initiative.

 

Both employees and independent contractors may be skilled workers. To indicate possible independent contractor status, the worker’s skills should demonstrate that he or she exercises independent business judgment. Further, the fact that a worker is in open market competition with others would suggest independent contractor status.

 

For example, specialized skills possessed by carpenters, construction workers, and electricians are not themselves indicative of independent contractor status; rather, it is whether these workers take initiative to operate as independent businesses, as opposed to being economically dependent, that suggests independent contractor status.

 

(5) The permanency of the worker’s relationship with the employer.

 

Permanency or indefiniteness in the worker’s relationship with the employer suggests that the worker is an employee, as opposed to an independent contractor. However, a worker’s lack of a permanent relationship with the employer does not necessarily suggest independent contractor status because the impermanent relationship may be due to industry-specific factors, or the fact that an employer routinely uses staffing agencies.

 

(6) The nature and degree of control by the employer.

 

Analysis of this factor includes who sets pay amounts and work hours and who determines how the work is performed, as well as whether the worker is free to work for others and hire helpers. An independent contractor generally works free from control by the employer (or anyone else, including the employer’s clients).

 

This is a complex factor that warrants careful review because both employees and independent contractors can have work situations that include minimal control by the employer. However, this factor does not hold any greater weight than the other factors. For example, a worker’s control of his or her own work hours is not necessarily indicative of independent contractor status; instead, the worker must control meaningful aspects of the working relationship. Further, the mere fact that a worker works from home or offsite is not indicative of independent contractor status because the employer may exercise substantial control over the working relationship even if it exercises less day-t0-day control over the employee’s work at the remote worksite.

 

When in doubt, you’re probably an “employee.”

 

When it comes down to it, most people are going to be classified as “employees” which makes the law really simple: If you are an employee who has been working more than 40 hours per week for the same person for a long period of time and you have not received payment of “overtime” for those hours that exceeds over 40 to week, you probably have a lawsuit.

 

You could win back wages, damages, attorney fees and court costs. And the best part about these cases is that if an employer tries to fire your for making a claim, you have another case against them that is potentially more valuable still.

 

If you suspect that your employer has been ripping you off of overtime and other benefits you have legally earned, call your Denver personal injury attorney Jeffry Dougan today at 303-704-1222 and schedule your FREE consultation today.  What are you waiting for?  You’ve already lost enough.

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