Misclassifying Employees as Independent Contractors

Across the country, more employers are hiring individuals on an as-needed basis.  This often leads to denying workers benefits such as health insurance, overtime, and sick pay, among others. Hiring employees on an as-needed basis may be a violation of the Fair Labor Standards Act (FLSA). The Department of Labor has set forth a legal test to determine whether or not a worker is considered an employee or a contractor.

The test examines the following:

  • Degree of control over the worker;
  • If the worker can use his or her own skills to increase profits;
  • Permanency of the position; and
  • Importance of the employee’s work to the company.

According to Gizmodo, Amazon delivers its orders to a warehouse near its destination.  Then, independent contractors use an app called Amazon Flex to pick up the packages and deliver them to their end destination.  These workers earn $20.50 per hour. However, they do not receive benefits and are not provided with access to dispute resolution.  According to reports, Amazon:

  • Has significant control over the workers by providing exact delivery directions, holding them to terms of service, and firing them for minor infractions.
  • Some have worked for the company for years.
  • The delivery of packages is important to the company.

Some scholars believe that Amazon Flex is in violation of FLSA, while others believe it is not. Furthermore, according to Gizmodo, Amazon Flex employees are capped at forty hours per week. If a worker goes over the forty hours per week cap, he or she is not compensated for the additional hours worked, which is a clear violation of the law.  Any time a worker is misclassified as a contractor or as-needed employee or is not properly paid, there may be legal consequences, which may result in monetary compensation for a worker who has been mistreated or underpaid.

If you have concerns regarding employment law issues, contact the New York employment law attorney Steven Mitchell Sack to protect your rights. With two law offices conveniently located in New York City and East Meadow, New York, Mr. Sack is available to assist New York City and Long Island residents with their employment law issues. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.

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