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Employee Misclassifications

New York Attorneys Protecting the Rights of Workers

Most people go to work without considering how their employers categorize their positions, but an employee's incorrect classification can cause significant financial losses. While some misclassifications are accidental, others are intentional efforts to avoid the duty to pay employees proper wages. Regardless of whether an employee's incorrect categorization is purposeful or inadvertent, it is actionable, and anyone who received an inaccurate designation should speak to a lawyer. At Gerstman Schwartz, our New York wage and hour lawyers are skilled at handling claims involving employee misclassifications. We can help you gather the evidence needed to show that your employer should be held accountable.

Statutory Protections for Employees

The Fair Labor Standards Act (FLSA) and the New York wage and hour laws protect workers' rights to receive a minimum wage. They also provide that employers must pay employees overtime wages of at least one and a half times their regular pay for any hours worked in excess of 40 hours per week. Certain workers are not granted these protections, though, and employers often attempt to incorrectly treat workers as exempt employees or independent contractors to avoid paying them the wages that they are owed. This constitutes employee misclassification and is typically grounds for pursuing wage and hour claims.

Misclassifications as Exempt Employees

Under both the FLSA and New York laws, employers do not need to pay certain employees overtime or minimum wages. Specifically, under the FLSA, administrative, executive, and professional employees are considered exempt if they meet certain tests. Outside salespeople, switchboard operators, and numerous other categories of workers are considered exempt from the FLSA wage provisions as well.

Under the New York Minimum Wage Act, employees include anyone employed or allowed to work in any occupation, except for babysitters employed on a casual basis in the employer's home, people working in bona fide professional, executive, or administrative capacities, taxicab drivers, outside salespeople, certain volunteers, and other enumerated individuals. Any employer that argues that an employee should be classified as exempt under either law bears the burden of proof.

Misclassifications as Independent Contractors

Employees may also be misclassified as independent contractors. People may be considered employees regardless of whether their employers give them 1099 forms and may be considered independent contractors under one law and employees under the other law. Neither the FLSA nor New York state law expressly defines who is regarded as an independent contractor. As a result, the courts employ different tests to determine an employee's status.

Under the FLSA, a court focuses on the economic realities of the relationship between the employer and the worker. Specifically, they assess what degree of control the employer exercised over the worker, the worker's opportunity for loss or profit and investment in the business, and the degree of skill and independent motivation required to perform the job. The court will also examine the permanence of the relationship and the degree to which the person's work is an essential part of the employer's business.

Under the New York Labor Law, courts broadly focus on the degree of control that the employer exercises over the worker's results or the means employed to achieve the results. In other words, they examine whether the worker was free to engage in other jobs, received fringe benefits, or was on the payroll of the employer. They also look at whether the person could work at his or her convenience, or was on a fixed schedule.

Contact a Capable Wage and Hour Attorney in New York

Employees must be classified appropriately to receive the compensation to which they are entitled. If you believe that your employer misclassified you, you may have a viable claim for damages, and you should meet with an attorney as soon as possible. The capable wage and hour lawyers at Gerstman Schwartz possess the skills and experience required to prove employee misclassification, and if you hire us, we will advocate tirelessly on your behalf. We regularly assist people in wage and hour lawsuits in New York City and in Nassau and Suffolk Counties. You can reach us to set up a meeting via our form online or by contacting us at our New York City office at (212) 227-7070 or our Garden City office at (516) 880-8170.

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