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The Buenker Law Firm

Employee? Or Independent Contractor?

Many individuals who are actually employees are misclassified as independent contractors in Houston, TX. This misclassification can be verbal, or it can be memorialized in a written agreement. Misclassification of employees as independent contractors is not always malicious but may be a common practice in an industry (i.e., construction). However, some employers misclassify employees as independent contractors for their benefit and to the detriment of employees, such as to avoid paying their workers overtime pay. Regardless of what the employer calls the worker, the question of whether the worker is an employee or an independent contractor depends on the actual working relationship between the employer and the worker. The issue is whether there is a misclassification, not the intent of the employer.

Generally, a person who is an “independent contractor” is in business for themselves. A true independent contractor is usually not an hourly worker, usually supplies his or her own equipment and materials, works for a number of different contractors, and does the job without supervision from the contractor. If you believe you are a misclassified independent contractor, the legal team at The Buenker Law Firm can help you determine whether that is the case.

An independent contractor about to sign a contract.
Independent contractor misclassification is a growing issue in the United States.

Am I Being Misclassified as an Independent Contractor? 

You may be. Consider the following factors:

  1. Is the work you do the very business of the company, or are you doing a specialized outside task? If you are doing the everyday business of the company, such as a carpenter working for a framer, as opposed to being hired to bring your crew to do a specific task, you may be an employee.
  2. Do you have the opportunity for profit or loss, or are you just paid for the work you do? If you do not have the ability to control whether or not you make a profit, but are instead paid a set wage, you may be an employee.
  3. Do you use the company's equipment? If you do not furnish your own equipment and materials, there is a good chance that you are an employee and not an independent contractor.
  4. Are you paid on an hourly basis? Most people who are paid on an hourly basis are employees, not independent contractors.
  5. Do you make investments in the business? If you just work for pay and do not have any other investment in the business, then you may be an employee and not an independent contractor.
  6. Do you regularly or exclusively work for this business, or is it one of your customers? If you work for one business for an extended period of time, such as for months at a time, then you may be an employee and not an independent contractor.
  7. Does the company control how you do the job? An independent contractor does a specific task or job without close supervision or control by the contractor. If you are supervised by someone at the company and are directed in how to do your job on a day-to-day basis, then you may be an employee.

These are factors, and no single one is definitive. Depending on your answers, you may have been misclassified as an independent contractor - and so you may be owed overtime pay

The issue is whether there is a misclassification, not the intent of the employer. 

Speak to an Attorney

If you have reason to believe you have been incorrectly misclassified as an independent contractor, contact us online or call us at (713) 868-3388 to discuss your case with one of our attorneys. 

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Houston, TX 77018

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