Independent Contractors and Overtime Pay: What You Should Know

Working in the oil and gas industry is a tough business, one that requires long hours away from one’s home and family and a strong work ethic. Oilfield workers working long, hard hours should be compensated appropriately for every hour that they work. Unfortunately, employers often misclassify their employees as independent contractors in order to avoid having to pay employment taxes, workers’ compensation insurance, benefits and overtime. Many workers who are told they are independent contractors are treated the same as employees, and thus should be entitled to recover overtime. The Fair Labor Standards Act is the federal statue governing overtime, requiring employers to pay their employees at a rate of one and a half times the employees regular rate of pay for all hours worked over forty. In order to fully understand if one is entitled to overtime, below is a checklist of job duties that misclassified independent contractors generally perform,  and, therefore, would make the worker an employee: 

  • Works full-time for the company; 
  • Schedule and working hours are set by employer;
  • Given no opportunity to share in the profit or loss of his or her services; 
  • No ability to accept or reject assignments – told where to work and how long the assignment should take; 
  • Not allowed to expand his or her business or take on other jobs;
  • Economically dependent on the employer; 
  • Wear uniforms that show employer logo on it;
  • Worker receives daily direction from employer; and  
  • Do not exercise independent discretion or judgment.

Additionally, there are certain characteristics of the employer that would make the misclassified independent contractor an employee:

  • Employer has the power to hire and fire individuals and maintains worker employment records;
  • Employer maintains control, oversight, and direction over worker;
  • Employer supplies equipment and product supplies; and
  • Employers make investments in the work which include vehicles, equipment, and supplies.

While none of the factors on either of these lists are determinative, it should give oilfield workers some insight into whether or not they are being classified properly.  If you have questions as to whether you have been misclassified as an independent contractor and denied overtime pay, consider speaking with an experienced overtime attorney.  Josh Borsellino is a licensed Texas attorney that represents workers who have been misclassified as independent contractors and denied overtime. He works on a contingency basis meaning that you own him nothing unless you win. He offers free consultations and can be reached at 817.908.9861 or 432.242.7118. Call him today and let him fight for you! 

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