"Honest Wages for an Honest Day's work!"
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Select Your State:
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"A fair day's wage for a fair day's work: it is as just a demand as governed men ever made of governing.
It is the everlasting right of man." Thomas Carlyle, Scottish Author and Philosopher
"If a man or a woman puts in an honest day's work, they should be able to earn a living wage." Richard J. Codey, Politician
"It is but equity...that they who feed, clothe and lodge the whole body of the people, should have such a share of the produce of
their own labor as to be themselves tolerably well fed, clothed and lodged." Adam Smith, The Wealth of Nations, 1776
"Wages are determined by the bitter struggle between capitalist and worker." Karl Marx, German political and economic philosopher
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“Honest Wages for an Honest Day’s Work!”
Are you really an “independent contractor” or….really an “employee”?
Ah!, that is the million dollar question! The Courts have repeatedly said that the answer to this question requires a full assessment and analysis of the employer/ employee relationship as a “whole”. Courts look at the underlying “economic reality” of the parties’ relationship in terms of whether the service provider is economically dependent on the business that is the alleged employer.
The ’s minimum wage and overtime provisions govern “employer-employee” relationships but do not apply to “genuine” independent contractor’s relationship with a business. Although both parties (i.e., a business and an alleged independent contractor) may label their relationship as an “independent contractor” one (and, may even have a contract that states the same), under the FLSA, courts will ultimately ignore such labels and instead focus on the true “economic realities” of the relationship.
Therefore, it is very common for the courts to find that a so-called independent contractor relationship is, in fact and reality, nothing less than an employer- employee relationship, thereby subjecting the employer and employee to the FLSA’s minimum wages, overtime, exemptions and other wage provisions.
Factors the Courts have looked at to determine if a service provider is truly an vs. an “independent contractor” includes:
- the extent to which your employment services are an integrated part of the alleged employer’s business;
- the duration of your relationship with the alleged employer, for example, how long have you worked for this company?;
- the amount of your financial investment in the alleged employer’s business in order to carry out your job function. Such as, are you required to use your own tools or equipment?;
- the nature and degree of control exercised over you by the alleged employer. For example, Who decides on what hours to be worked?; when you work?; how you work?, your pay rate; etc.;
- Your opportunity to obtain profits from your working relationship with the alleged employer. For example, are you really an hourly or fixed salaried employees vs being your own boss?; and,
- the level of skill initiative, judgment, and/or foresight required to perform your job. For example, does your job require you, for the most part, to perform routine tasks requiring little training?, do you have a separate work site, etc.?
Again the question must be asked: Are you really an “independent contractor” or….really an “employee”?
Do you believe you have a wage and hour claim?
If you believe that you may be an employee instead of an independent contractor and that your legal rights as an employee may have been violated, please feel free to contact the law firm of JonesSatreWeimer for a free consultation (Need a lawyer?).
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You, the "user" of this website, need to be aware that the Center for Unpaid Wages ("Center") is providing the information on this
website solely as a public service to you. While the Center makes a periodic effort to update this website and attempts to keep the content
on this website timely, accurate, and current, the Center does not, in any manner, make any expressed or implied representations,
warranties, or guarantees that the information found on this website is the most current or accurate information; given how federal and
state wage laws are constantly changing. Furthermore, any and all information and responses provided on this website that is in response
to information provided by you on this website is based, in great part, upon the accuracy of the information provided by you, the user.
If you believe, for whatever reason that you might have a wage and hour claim against your employer, there is only one way to know for
certain: You are strongly encouraged to immediately consult a lawyer with wage and hour experience ( Need a lawyer?). |
Preliminary and Postliminary Work Activities
Among the work related activities included as an essential part of a principal activity are those closely related activities that
are necessary to you performing your principal activity at work.
For example:
If an employee in a chemical plant cannot perform his or her principal activities without putting on certain protective clothes,
changing clothes on the employer's premises at the beginning and end of the workday would then be a necessary part of the employee's
principal activities. The time spent in changing clothes would probably be hours worked and therefore maybe compensable by your employer.
Some employees, such as a nurses and machine operators, who replace employees already on duty, are required to report to work before
the beginning of their shift. This time is frequently referred to as "reporting time". The extra reporting time is for the purpose of
being made aware of what is going on or receiving instructions to continue work already in progress. This time is probably hours worked
and maybe compensable by your employer.
Preliminary and Postliminary Work Activities Examples
Your principal activities also include all activities which are an integral (or essential) part of your principal
activities.
For example:
Pre-job activities such as filling out time, material or requisition sheets, checking job locations, removing trash,
fueling cars and picking up plans are compensable work if done at the employer's behest and for the employer's benefit.
When operating a lathe, an employee will frequently, at the beginning of his or her workday, oil, grease or clean his or
her machine, or install a new cutting tool. Such activities are an essential or integral part of the principal activity.
Time spent in these activities would probably be hours worked and therefore maybe compensable by your employer.
The time spent by a butcher sharpening knives and other tools is a part of the principal activity the butcher was hired
to perform and would probably be hours worked and maybe compensable by your employer.
Because donning (putting-on) and doffing (taking-off) protective work gear that is "integral and indispensable" to an
employee's work is a "principal activity", the time spent walking to and from a work station after donning and before doffing
protective gear, as well as the time spent waiting to doff, also are working time under the FLSA.
Waiting Time Examples
Below are examples of employees that are "on duty" but are still waiting for their employer to assign
them some work (i.e., they are "engaged to wait"):
√ A receptionist who reads a book while waiting for customers or telephone calls;
√ A factory worker who talks to fellow employees while waiting for machinery to be repaired;
√ Time spent by a repair person who has to wait for his or her employer's customer to get the premises
ready for work;
√ A truck driver who has to wait at or near the job site for goods to be loaded or unloaded.
Note: An employee can be engaged to work whether the employee is stationed "on" or "off" the employer's
work premises.
"Advanced Knowledge": entails work that is predominantly intellectual in character that requires the consistent exercise of discretion and judgment (Occupations include law, theology, medicine, teaching, pharmacy, accounting, architecture, engineering, etc.).
"Away from Employer's Place of Business": an outside sales employee makes sales at the customer's place of business, or, if selling door-to-door, at the customer's home.
Travel Time Examples
Examples of travel that could be considered "all in the day's work":
- Construction workers required to first report at a designated meeting place where they are given instructions, pick up tools or supplies, or perform other work prior to traveling to the actual work site.
- Time spent traveling from customer to customer by a plumber who makes house calls to do repairs.
- A computer technicial who finished his or her work on the employer's premises and then is sent to a client's site to perform technical support on the client's system and then returns back to the employer's work site.
Special Circumstances
Under the following "special circumstances" time spent by you attending lectures, training sessions or courses
of instruction is not regarded as "hours worked" and therefore wages would not be owed to you under the below
specific situations:
1) Employer-established employee special programs of instruction that are similar to courses offered by independent bona fide
institutions of learning. Voluntary attendance at such training courses by you, outside of your working hours, would not be hours worked,
even if the courses directly relate to your job or are paid for by your employer.
2) If you voluntarily decide to attend an independent school, college or trade school after hours, the time is not hours worked even
if the courses are related to your current position or are paid for by your employer.
3) Time spent in certain supplemental classroom instruction held in conjunction with apprenticeship programs may not be
hours worked.
4) Special rules apply to public sector employees who attend outside of regular working hours specialized or follow-up training,
which is required by law for certification of public sector employees.
5) Police officers and fire fighters attending police or fire academy or other training facility are not considered to be on
duty during those times when they are not in class or at a training session, if they are free to use the time for personal
pursuits, such free time is not hours worked.
"Authority to Hire or Fire": an exempt executive employee must have the authority to hire or fire other employees or alternatively, the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion of employees must be given particular weight.
"Bi-weekly pay period": is one that occurs every two weeks, includes 26 pay periods a year, and usually includes two full workweeks.
"Civic or Charitable Work": time you spend in work for civic or charitable purposes will be hours worked if your employer requested you to do it; the work is done under your employer's direction; or, the work is being done during the time required to be completed at a place assigned by your employer.
"Change in status": a significant change in responsibilities, benefits and/or employment status, such as hiring, firing, failing to promote.
"Commerce": means trade, commerce, transportation, transmission or communications among the several states or between any state and any place outside thereof.
"Commercial motor vehicles": are those vehicles with a gross weight over 10,000 pounds, and/or designed to transport more than
eight passengers for compensation, and/or designed to transport more than 15 passengers not for compensation, and/or used to transport hazardous materials.
"Commissions": is a sum of money paid to an employee based on the sale of a certain amount of goods or services.
"Compensatory Time Off" : is paid time off the job that is earned and accrued by an employee instead of immediate cash payment for working overtime hours (aka "comp time").
"Computing Overtime Pay": overtime must be paid at a rate of at least one and one-half times the employee's regular rate of pay for each hour worked in a workweek in excess of the maximum allowable in a given type of employment.
"Consistent Exercise of Discretion and Judgment": an exemption requirement for a "learned professional" requiring the employee's usage of advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances that is based upon the employee's consistent usage of discretion and judgment.
"Covered Employee": is an employee subject to the Fair Labor Standards Act and therefore its minimum wage, overtime pay, recordkeeping and child labor protections.
"Covered Enterprise": is an employer that has 1) two or more employees engaged in commerce, production of goods for
commerce or that "has employees handling, selling, or otherwise working on goods or materials that have been moved
in or produced for commerce by any person"; and, 2) where the employer has a gross annual volume of sales
of not less than $500,000, unless the employer is exempted from this dollar amount.
"Customarily acquired by a prolonged course of specialized intellectual instruction": restricts the "learned" professional exemption to professions for which specialized academic training is a standard prerequisite for entrance into the profession. An academic degree is not required.
"Customarily and regularly": includes work normally and recurrently performed every workweek; it does not include isolated or one-time tasks.
"Department or Subdivision": an employer's customarily recognized department or subdivision must have a permanent status and a continuing function. A recognized department or subdivision need not be physically within the employer's establishment and may move from place to place.
"Direct cash wages": are wages paid at an hourly rate by an employer directly to a tipped employee. Tips are not part of an employee's direct cash wages.
"Directly": this term is used in the "administrative" exemption to ensure that your "primary duty" as an employee is not remotely or tangentially related to any exempt work performed by you.
"Directly Related to Management or General Business Operations": an employee must perform work directly related to assisting with the running or servicing of the business in such function areas as human resources, marketing, tax, finance, accounting, budgeting, auditing, quality control, purchasing, advertising; and other similar functional areas.
"Discretion and Independent Judgment": involves having the authority to make independent choices free from immediate direction or supervision with respect to matters of significance; even if your decisions or recommendations are reviewed by a supervisor.
"Educational establishment": means a day or residential school in an elementary or secondary school system as determined under state law, an institution of higher education or other educational institution (such institutions may include special schools for gifted, physically disabled or mentally challenged students).
"Employ": means "...to suffer or permit to work."
"Employee": means "any individual employed by an employer". Also, a non-bona fide so-called "independent contractor" can be an "employee" and would therefore be subject to the FLSA minimum wage and overtime requirements.
"Employment": include all hours that an employee is "suffered or permitted to work" for the employer.
"Employer": an employer includes "any person acting directly or indirectly in the interest of an employer in relations to an employee".
"Employer's Customers": an employer's employee whose primary duty directly relates to the management or general business operations of the employer's customers such as employees acting as advisors or consultants to their employer's clients or customers.
"Engagement in Interstate Commerce": employees are covered by the FLSA on an "individual" basis when they are engaged in interstate commerce or foreign commerce on the job.
"Engagement in the Production of Goods for Interstate Commerce": employees are covered on an individual basis when they are engaged in the "production" of goods for "interstate commerce" on the job.
"Enterprise or recognized subdivision": a recognizable subpart within an employer's larger operation that has a permanent status and a continuing function.
"Enterprise Coverage": encompasses employers that have i) two or more "employees" engaged in commerce, production of goods
for commerce, or ii) "has employees handling, selling, or otherwise working on goods or materials that are for "commerce; and iii) haves a gross annual sales of not less than $500,000.
"Establishment": means a distinct physical place of business rather than an integrated business or enterprise.
"Exempt": an exempt employee is one who is not entitled to the minimum wage and/or overtime pay protections of the FLSA.
"Exemption": applies to employers and employees that are not subject to the FLSA's minimum wage and/or overtime provisions.
"FLSA": stands for the "Fair Labor Standards Act" which is a federal law that governs employers' payment of minimum wages ($7.25), overtime payments, child labor laws, and governs employer's employee recordkeeping.
"Fair Labor Standards Act": is a federal law that governs employers' payment of minimum wages, overtime payments, child
labor laws, and governs employer's employee recordkeeping (also referred to as the "FLSA").
"Fee Basis": an employee paid an agreed sum for a single job regardless of the time required for its completion. A fee basis payment is
generally paid for a unique job, rather than for a series of jobs repeated a number of times, which are considered "Piecework payments".
"Field of Science or Learning": Is considered as "occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades. It includes the traditional professions of law, medicine, accounting, engineering, architecture, teaching and other similar professional occupations.
"Goods": means all products, commodities, merchandise, wares, articles or any ingredient thereof.
"Goods or Facilities Credits toward Minimum Wage": under the FLSA, board, lodging, and other facilities customarily furnished by the employer to his or her employees are considered wages under certain circumstances.
"Highly Compensated Employees": are exempt employees performing office or non-manual work, receives an annual compensation of $100,000 or more and receives at least $455 per week paid on a salary basis or fee basis, and regularly perform at least one primary duty identified under the FLSA standard test.
"Hourly rate": the regular pay rate of pay for an employee paid by the hour. If an employee works more than 40 hours, the employee must receive at least one and one-half times the regular rate for each hour over 40 hours.
"Hours Worked": includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal work activity of the workday. FLSA covered employees must be paid for all hours worked in a workweek.
"Invention, Imagination, Originality or Talent": employees employed primarily in the creative professionals that relied more upon invention, imagination, originality or talent as distinguished from those employees' work that primarily depends on intelligence, diligence and accuracy (e.g., musicians, novelists, actors, artistic painters, photographers, play writers, conductors cartoonists, etc).
"Interstate commerce": means that the goods are produced for trade, sales, transportation, transmission or communication across state lines and includes any work involving or related to the movement of persons or things (including intangibles, such as information) across state lines or from foreign countries.
"Knowledge of an Advanced Type": means work that is predominantly intellectual in character and is to be distinguished from the performance of routine mental, manual, mechanical or physical work. Advanced knowledge cannot be attained at the high-school level.
"Making Sales": includes any sale, exchange, contract to sell, consignment for sales, shipment for sale, or other disposition and also includes the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property.
"Management": are those employees responsible for assisting in the overall running and execution of the business. Management includes, but is not limited to activities such as supervising, interviewing, selecting and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; handling employee complaints and grievances; disciplining employees, etc.
"Management or general business operations": means work directly related to assisting with the running or servicing of the business in function areas that are administrative in nature and include but is not limited to such areas as human resources, tax, finance, accounting, budgeting, marketing, advertising, legal, etc.
"Matters of Significance": refers to the level of importance or consequence of the work performed and applies "to the kinds of decisions normally made by persons who formulate or participate in the formulation of policy within their spheres of responsibility or who exercise authority within a wide range to commit their employer in substantial respects financially or otherwise".
"Minimum Wage": the Fair Labor Standards Act ("FLSA") has set the federal minimum wage rate at $7.25/hour as of July 2009.
Your state may have a different minimum wage rate. However, you cannot be paid less than the federal rate of $7.25/hour if you are a
"covered employee" under the FLSA.
"Motor Carriers": are persons providing commercial motor vehicle transportation for compensation.
"Motor Private Carriers": are persons other than motor carriers transporting property by commercial motor vehicle if the person is the owner, lessee, or bailee of the property being transported, and the property is being transported for sale, lease, rent, or bailment, or to further a commercial enterprise.
"Non-exempt Employee": is an employee who is entitled to the federal minimum wage ($7.25/hour), overtime pay, and other wage and hour protections provided by the FLSA.
"Obtaining Orders or Contracts for Services or for the Use of Facilities": includes the selling of time on radio or television, the solicitation of advertising for newspapers and other periodicals, and the solicitation of freight for railroads and other transportation agencies.
"Other facilities": include such items as meals furnished to employees by employers; meals, dormitory rooms, and tuition furnished by a college to its student employees; and, housing furnished by employers for dwelling purposes.
"Other educational establishment": includes special schools for mentally or physically disabled or gifted children, regardless of any classification of such schools as elementary, secondary or higher.
"Overtime": is the extra pay an employer is required by the FLSA to pay to covered, non-exempt employees for the time they work in excess of 40 hours in a workweek. Overtime pay must be computed at one and one-half times the employee's regular rate of pay.
"Particular weight": considerations include whether it is part of your job duties to make suggestions and recommendations; the frequency with which your suggestions and recommendations are made or requested; and the frequency with which your suggestions and/or recommendations are relied upon.
"Piece Rate": the regular rate of pay for an employee paid on a piecework basis is obtained by dividing the total weekly earnings by the total number of hours worked in that week. The employee is entitled to an additional one-half times this regular rate for each hour over 40, plus the full piecework earnings.
"Piecework payments": is paid for the kind of job that is repeated an indefinite number of times and for which payment on an identical basis is made over and over again.
"Place of Work": includes all "hours worked" during which an employee is required or allowed to perform work for an employer's benefit, regardless whether on the employer's premises, at a designated work place, at home and/or at some other location.
"Preliminary and Postliminary Activities": pre-and-post shift work-activities that are "integral and indispensable" to an employee's "principal activities" must be compensated. Job-related activities required as a part of an employee's work are covered, even if they are performed before or after the employee's specified work schedule.
"Primary Duty": means the principal, main, major or most important duty that the employee performs with the major emphasis on the character of the employee's job as a whole.
"Principal Activities": are tasks an employee is employed to perform. Everything between an employee's first and last "principal activity" on a given day generally is considered part of the compensable workday.
"Production of Goods": means producing, manufacturing, mining, handling, transporting or in any other way working on goods.
"Prolonged Course of Specialized Intellectual Instruction": a particular occupation or profession that requires for entry into it a perquisite specialized advance academic training, which customarily leads to an academic degree (e.g., law, medicine, accounting, teaching, etc.).
"Recognized field of artistic or creative endeavor": includes such fields as music, writing, acting, graphic arts, etc.
"Recognized Department or Subdivision": must be recognized within the company as a group and/or unit that has a permanent status and continuing function within the organization (e.g., Human Resources, Sales, legal, marketing, accounting, etc.).
"Regular rate" [of Pay]: includes most payments made by the employer to or on behalf of the employee (with some exceptions) and is determined by adding together the employee's pay for the workweek and all other earnings and dividing the total by the number of hours the employee worked in that week.
"Retail or service establishment": is a business where 75 percent of its annual dollar volume of sales of goods or services is not for resale and is recognized as a retail or services establishment in a the particular industry. The establishment must also be one which sells goods or services to the general public.
"Rework": when an employee must correct mistakes in his or her work, the time must be treated as hours worked and the employee must be compensated for this time.
"Salary": a predetermined fixed amount of pay that constitutes all or part of an employee's compensation for a particular pay period. A salary is generally expressed as an amount paid per week, per month or per year.
"Salary Basis": an employee is considered to be paid on a salary basis if he or she regularly receives each pay period a predetermined amount of at least $455 per week, "exclusive of board, lodging or other facilities".
"State": includes any state of the United States, the District of Columbia or any territory or possession of the United States.
"Suffer or Permit to Work": is where an employer requires or allows employees to do work, this work time is generally hours worked even though the employer may not have requested such work but simply allowed it. The employee must be compensated for this time.
"Supervision": to qualify as an exempt executive, the employee must "customarily and regularly" direct the work of two or more other employees or their equivalents.
"Tip": is a sum presented by a customer as a gift or gratuity in recognition of some service performed by an employee.
"Tipped employees": are those employees who work in occupations in which they customarily and regularly receive more than $30 a month in tips.
"Tip Pooling Arrangement": is an arrangement among employees who customarily and regularly receive tips to "pool" or share a customary and reasonable percentage of their tips received with others in the pool.
"Tip Credit": under certain FLSA prescribed conditions, an employer may credit an employee's tips as income toward wages.
"Waiting for Work": an employee hired to do nothing or to do nothing but wait for something to do or something to happen is still working and must be compensated for such time.
"Work": includes any time that is "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business".
"Workday": means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities.
"Workweek": is a fixed and regularly recurring period of 168 hours, or seven consecutive 24-hour periods and may begin on any day of the week and at any hour of the day.
"Workers with Disabilities": individuals, whose earning or productive capacity is impaired by a physical or mental disability, including those related to age or injury may be paid sub-minimum wages pursuant to a certificate issued by the Secretary of Labor.
"Working Time": includes all hours that an employee is "suffered or permitted to work" for the employer. Working time also includes time during which an employee is "necessarily required to be on the employer's premises, on duty or at a prescribed work place".
"Work Requiring Advanced Knowledge": means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and independent judgment.
Examples of factors to consider in determining whether an employee exercises discretion and
independent judgment with respect to "matters of significance" includes such job responsibility areas as:
• Your authority to formulate, affect, interpret or implement management policies or operating practices; Or,
• Your authority to waive or deviate from established policies or procedures without prior approval; Or,
• Your authority to negotiate and bind the company on significant matters; Or,
• Provide consultation or expert advice to management
An employee performance of secretarial work, recording or tabulating data or performing other
mechanical, repetitive, recurrent or routine work generally will not satisfy "...the exercise discretion and
independent judgment with respect to "matters of significance"requirement.
The Federal minimum wage and overtime laws cover blue collar and
construction non-management type of workers involved in production,
maintenance, construction and similar occupations such as carpenters,
electricians, mechanics, plumbers, ironworkers, craftsmen, operating
engineers, longshoremen (this list is not nor meant to be all-inclusive).
The following non-all inclusive work activities are also included in the
construction industry: painting, sandblasting, tuckpointing, roofing,
guttering, spouting, water well drilling, installation of flooring and
landscaping.
Examples of "Other transportation" employee exemptions where the federal minimum wage and/or overtime requirements may not apply to your employer:
Rail carriers
The overtime provisions of the FLSA do not apply to any employee of an employer engaged in the operation
of a common carrier by rail and subject to the provisions of Part I of the Interstate Commerce Act.
Air carriers
The overtime provisions of the FLSA do not apply to any employee of a carrier by air subject
to the provisions of Title II of the Railway Labor Act.
Taxi drivers
The FLSA exempts from overtime any driver employed by an employer engaged in the business
of operating taxicabs. Taxicab drivers qualify for the exemption so long as they do not
spend more than 20 percent of their time performing non-exempt work, such as acting as a dispatcher,
performing clerical duties, and performing general or repair services on vehicles.
Charter activities exemption
An exemption exists to the overtime provisions of the FLSA for employees who engage in
both passenger transit and charter activities on buses, trolleys or electric railways.
