Employee or Independent Contractor? How Some Employers Are Committing Wage Theft

A September 1, 2014 report by the New York Times, revealed an increase in lawsuits across the nation, charging various employers of violating minimum wage and overtime laws. Some of the allegations include erasing work hours and wrongfully taking employees’ tips.

Both federal and state officials argue that more companies are violating wage laws than ever before.  Officials speculate that these violations are motivated by competition and higher profits. However, another argument supposes that the structure of these businesses essentially incentivizes wage theft due to their organizational structure.

For example, the labor department argues that the increased use of franchise operators, subcontractors, and temp agencies leads to more employers being squeezed on costs and more cutting corners. As a result, the companies on top can deny any knowledge of wage theft.

Recently, a federal appeals court ruled that FedEx had committed wage theft by designating its drivers as independent contractors rather than employees. The distinction between a regular employee and an independent contractor is important because independent contractors are generally not eligible to receive overtime pay. So essentially, FedEx required many of those independently contracted drivers to work 10 hours a day, like a real employee, without paying them overtime.

Despite the distinction, courts may look to other factors to consider in determining if you are an independent contractor or an employee such a:

  • Whether your employer have the right to control the manner and means of you performing your work.
  • Whether you are paid by time, piece, rate, or job.
  • Whether the employment relationship can be terminated at will.
  • Whether you engage in a business that is separate and distinct from your employer’s business.
  • Whether the work is done under your employer’s direction or without supervision.
  • Whether you work at your employer’s workplace with your employer’s materials, or own your equipment.
  • Whether you have been working for your employer for a long time.
  • Whether you can hire or fire others.
  • Whether you and your employer believe you are creating an employment or independent contractor relationship.


Since 2010, the federal Department of Labor’s wage and hour division has unearthed nearly $1 billion in illegally unpaid wages. Moreover, the illegal withholding of wages is more likely to victimize immigrant communities. In the state of New York alone, Attorney General Eric T. Schneiderman, has recovered $17 million in wage claims over the past three years.

If you feel that you have been improperly designated as by your employer as an independent contractor or have been denied overtime pay for the additional hours you have worked, contact a New York Employment Attorney.  An experienced employment attorney will afford you the representation you deserve and help you to protect your rights and fight against labor violations.

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