My Boss says I Am Not Entitled to Overtime Because I Am an “Independent Contractor”…

No matter what your company tells you, the question of whether you are an “independent contractor” or “employee” is determined by the actual circumstances of your work relationship, not by any contract you sign or by the designation provided by your company.

There are a number of factors considered in deciding whether an independent contractors has been misclassified.  Many courts (and the U.S. Department of Labor) use the “economic realities” test, which considers the following factors:

  1. The extent to which the work performed is an integral part of the employer’s business;
  2. The worker’s opportunity for profit or loss depending on his or her managerial skill;
  3. The extent of the relative investments of the employer and the worker;
  4. Whether the work performed requires special skills and initiative;
  5. The permanency of the relationship; and
  6. The degree of control exercised or retained by the employer.

Within these factors, a wide range of factual circumstances can tip the scales one way or the other, such as:

  • Does the individual have to work a specific schedule set by the company;
  • Does the individual wear a company uniform;
  • Does the individual have to perform tasks in accordance with company operating procedures;
  • Does the individual perform similar work on a contract basis for other companies or individuals;
  • Who supplies tools for the work to be completed;
  • Who determined how much or in what manner the individual would be paid;
  • Are expenses are reimbursed by the company;
  • Does the individual receive benefits like paid time off, sick leave, insurance, or retirement benefits?

This is far from an exhaustive list, and each work relationship is analyzed based on the specific facts of the case. But generally, if the company exercise significant control over the work performed, and if the individually is economically dependent on the company, it is highly likely that the individual should be classified as an employee.

Whether you are an employee or an independent contractor has serious real-life consequences. Perhaps most importantly, independent contractors are not entitled to the same employment rights, benefits, and protections as traditional employees. For example, independent contractors are not “employees,” according to the Fair Labor Standards Act (FLSA), so they are not entitled to minimum wages or overtime compensation. For the same reason, independent contractors have no right to take medical leave according to the Family and Medical Leave Act (FMLA), will not be able to bring discrimination claims under most federal and state statutes, and are not entitled to unemployment insurance if they lose their position. These are only some of the rights and benefits that independent contractors are denied.

Additionally, an individual’s status affects the way both the company and the individual must pay taxes. This writer is not a tax professional, and therefore cannot provide advice on all of the specific ways independent contractor status relates to tax obligations. However, speaking generally, independent contractor status allows a company to avoid paying certain types of taxes, and allows them to push those burdens onto the individual.

The recent trend is that “independent contractor” designations – especially for lower income workers – are being met with skepticism by courts and government agencies.  Earlier this month, the DOL issued an agency interpretation as it relates to the FLSA, and made their position clear that “most workers are employees.”  Also, as was widely publicized, the California Labor Commissioner concluded last month that Uber, the car service juggernaut, had misclassified its drivers as independent contractors, even though drivers drive their own cars and set their own work schedules.

If you think you are misclassified as an independent contractor, you should contact an employment attorney as soon as possible to ensure you are not being denied your legal rights. For a free, confidential consultation, contact Kimble Law Office at 614-636-0509.

EEOC Ruling Could Provide Additional Protections for LGBT Ohioans


By Andrew Kimble

In light of the recent Supreme Court decision in Obergefell v. Hodges, it was only a matter of time before other federal laws impacting the LBGT community would be given a makeover.  Last week, the Equal Employment Opportunity Commission (EEOC) did its part, issuing a decision that extends the protections granted by Title VII of the Civil Rights Act to employees who believe they have been discriminated against because of their sexual orientation.

Up until now, the majority of courts have concluded that Title VII – the federal law that governs employment discrimination on the basis of “sex, race, color, national origin, and religion” – did not cover discrimination against employees on the basis of their sexual orientation.  As a result, employees in many states (including Ohio!) had no legal protections if they felt they were fired or mistreated because they identify as gay, lesbian, bisexual, or transgender.

The new ruling, issued on July 15, 2015, treats “sexual orientation discrimination” as a type of “sex discrimination.”  Since 1989, it has been settled law that employers may not “rely upon sex-based considerations” or “take gender into account” when making employment decisions.  See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  Based on this logic, the EEOC concluded that Title VII covers sexual orientation discrimination because “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

The Commission further explained their reasoning: discrimination on the basis of sexual orientation is “premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” and “‘[s]exual orientation’ as a concept cannot be defined or understand without reference to sex.”  See the EEOC’s full analysis here: Complainant v. Foxx.

While this is a major victory for LGBT workers, this ruling does not guarantee that sexual orientation discrimination claims will be heard in all U.S. federal court.  Federal courts must give weight to the decisions made by agencies such as the EEOC, but they are not bound to follow its rulings or logic.  As a result, until further precedent is developed, it will be up to the judge in each case to decide whether to follow the EEOC ruling in Complainant v. Foxx, or to continue following prior precedent in their jurisdiction.  Still, this ruling provides significant ammunition for LGBT employees claiming discrimination based on their sexual orientation.

If you believe you have been discriminated against or harassed by your employer because of your sexual orientation, call Kimble Law Office today for a free consultation.

Delivery Drivers File Lawsuit Against Columbus Area Papa John’s Franchise

On July 16, 2015, Kimble Law Office and Beggs Law Offices filed a Class Action Complaint against JohnCol, Inc. on behalf of delivery drivers at 26 Columbus-area Papa John’s restaurants.

In the Complaint, the Plaintiff-delivery drivers allege that they were denied proper wages because they were required to pay out-of-pocket for gasoline, automobile maintenance, uniforms, and other expenses in order to perform their duties as delivery drivers.  The plaintiffs allege that they were paid just $4.25 per hour – just slightly more than tip credit minimum wage in Ohio – while they were making deliveries, but were not reimbursed for substantial gasoline, auto maintenance, auto insurance, uniforms, and other costs that caused their effective hourly rate to drop far below the allowable tip credit minimum wage.  JohnCol is required to reasonably estimate such expenses and reimburse its drivers, but the plaintiffs allege that they made no effort to monitor distances travelled, deliveries per hour, out-of-pocket expenses, or otherwise determine if they were compensating delivery drivers adequately.

The plaintiffs also worked inside the Papa John’s restaurants during times that they were not making deliveries, and were supposed to be paid full minimum wage during this time.  However, plaintiffs allege that JohnCol’s managers had a regular practice of clocking plaintiffs and other drivers onto their lower hourly rate ($4.25 per hour) when a delivery order was received from a customer, but before the pizza or other food was ready to be delivered.  As a result, the plaintiffs allege that they spent significant time working inside the restaurant while being paid $4.25 per hour.  Because they were not engaged in a tipped producing activity while inside the store, the plaintiffs claim that this practice caused them to be paid below the legal minimum wage.

The plaintiffs seek to represent a class that includes delivery drivers at all JohnCol locations who worked during the last three years.

If you are required to pay for expenses out of pocket for the benefit of your employer, if your employer is requiring you to complete work “off the clock,” or if you are a tipped worker making tip credit minimum wage but having to work in a non-tipped capacity, Kimble Law Office is here to help.  Call today for a free, confidential consultation.

See the Class Action Complaint in this matter, attached below:

Schnaudt, et al v. JohnCol, Inc., et al, 15 cv 2619 (S.D. Ohio).

Lawsuit Filed Against Mexican Restaurant

Last week, Kimble Law, along with co-counsel Beggs Law Offices, filed a complaint on behalf of a group of waiters and cooks against Los Arrieros Mexican Restaurant in Bucyrus, Ohio.

The plaintiff servers allege that they have not been paid any wages at all throughout their employment, and regularly worked over 60 hours per week.  Instead of receiving wages, servers allege they received tips from customers as their only compensation.  In addition to not receiving any minimum wages or overtime wages whatsoever, plaintiff servers also allege they are required to pay a portion of their tips to the owners, and are required to pay for uniforms expenses out of pocket.

The plaintiff cook alleges that he regularly worked over 70 hours per week, but received only $400 per week for all of the hours he worked.  He alleges that he never received any overtime payments as required by law.

If you work in a restaurant or as a tipped worker and believe you are not being compensated properly, contact Kimble Law Office today for a free consultation.

Ornelas, et al v. Los Arrieros, LLC, et al, 15 cv. 1361 (N.D. Ohio)

ADVERTISING ONLY: The information on this blog is not, nor is not intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. 

Department of Labor Proposes Changes to Minimum Compensation for Salaried Workers

If you are one of approximately 5 million salaried employees in the United States who earns less than $50,000 per year, the Department of Labor’s proposed changes to federal overtime law will be music to your ears.  Under the proposal, many workers who were previously classified as “exempt” from overtime will now be eligible for overtime pay.

Under the current regulations, employers can pay salaried employees as little as $455 per week, or $23,660 per year, and require them to work as many hours as necessary for the benefit of the company. As a result, many employees – such as managers and assistant managers at retail stores and restaurants – work long hours without seeing an increase in their pay.  Because they are paid such low salaries, “exempt” employees have become good investments for employers.  They complete the same tasks as hourly employees at pay rates that – after accounting for the number of hours worked – often work out to be lower than the pay rates received by hourly employees.  The DOL has recognized this injustice, and seeks to remedy it with the proposed regulations.

The proposed changes would more than double the minimum weekly salary employers would have to pay their exempt employees.  An employee would have to receive at least $970 per week, or $50,440 per year to qualify as a salaried employee exempt from overtime pay.  If the changes are implemented, they will go a a long way towards ensuring that hard-working employees receive a living wage when they are required to work long hours for the benefit of their employers.

Kimble Law Office is committed to protecting the interests of hard-working employees.  If you are paid a salary and work over 40 hours per week, contact Kimble Law Office at (937) 286-6428 for a free, confidential consultation to determine if you are entitled to overtime compensation.