Employees In The Law
Employee status can be very important in employment law. For example, a worker seeking to enforce the minimum wage under federal law or to invoke a right to federal time and a half or overtime pay may need to show employee status under, for example, 29 U.S.C. §§ 207(a)(1). Similarly, a worker seeking overtime, weekly paychecks, wage notices, wage statements, paid sick leave, and anti-retaliation protections under the New York Labor Law (NYLL) may need to show employment status under NYLL §§ 190 to 199-A, 215, and 650 to 663. To protect your rights, it is best to hire employment lawyers New York.
An employee is generally a person who does work for another person or entity, known as the employer. An employer may be a human being, a corporation, limited liability company (LLC), organization, partnership, or other entity. This definition is broad enough to cover a wide range of workers, from farmworkers and gardeners to factory and extractive-industry workers to construction and service workers to office workers and designers. Tying together many sorts of employees is control, timing, assistance, and often paperwork. An employee is often required to listen to a supervisor or set of rules about how work is to be done, often works for the same employer for multiple sessions or periods of time, uses the other employees and equipment or facilities of the employer to do work, and often receives pay on an hourly basis with certain taxes and insurance contributions deducted rather than a flat fee.
Independent Contractor
An independent contractor often works periodically or one time only for a customer, which once again may be a human being or corporate or other organization. An independent contractor’s non-employee status is significant under wage and hour laws, such as those governing minimum wage, overtime wages, and unemployment insurance. The economic reality of an independent contractor’s role is often tied to being in business independently, either as a freelancer or business owner or partner. Such a contractor may have invested in growing a business and buying needed equipment. He or she may have preexisting skill and training like that of an artist, doctor, lawyer, architect, graphic designer, web designer, etc. He or she probably does not work for the same client or location every day, although it is possible. He or she may be freer to refuse additional work or inclined to control the timing of working hours and project deadlines.
Gig Work as Employment
Gig workers can be somewhere in the middle. Oftentimes, a person who regularly earns money on Uber, YouTube, Fiverr, or some other technological platform may be heavily reliant on the systems from and payments of the platform. His or her chances of doing business independently may not be great. He or she may not be certified as a professional driver, for example, or as a life coach or other YouTuber role.
The question sometimes arises whether gig workers are employees so as to deserve minimum wage, overtime pay, weekly pay in cases of manual work, wage statements, insurance contributions, etc. Even in 2015-2017, there was a lot of debate regarding whether the dependency of Uber drivers on the app, and their limited indicia of having an independent business or real autonomy, made them employees. In 2015, a decision was reached in a case involving two drivers for Uber’s “UberBlack,” who picked up and dropped off passengers in black luxury-style cars, who were free to drive as much as they wanted but did not drive their own vehicles. Uber argued that it is a technology provider rather than a transportation service, and that anyone using its software is an independent contractor. The court stated in this 2015 decision that just as a FedEx driver might use his or her own vehicle but be classified as an employee in California if other evidence existed like a uniform requirement, so an UberBlack driver was subject to Uber’s “deep involvement in prescribing the qualifications of its drivers and the quality of [its] service,” and worked due to Uber’s advertisements “to the public that it is a provider of transportation services.” In a more recent case, drivers from Pennsylvania alleged that Uber and one of its subsidiaries had misclassified them as independent contractors rather than employees; the court found issues of fact sufficient to prevent an early victory for Uber in the case, noting that “Uber determines what drivers are paid and directs drivers where to drop off passengers,” and deactivates drivers who fall short of the 4.7-star Uber-BLACK driver rating and limits the number of consecutive hours that a driver may work.”
According to employment lawyers NYC, employee status is ultimately a factual question. Mere titles and paperwork do not always resolve it. Economic realities are important. When there are any issues of fact that the parties do not agree on, attorneys are typically employed to conduct discovery into company records, worker experiences and testimonies, and supervisor or corporate executive responses to questions under oath. When evidence points in multiple directions, a jury may be assembled and asked to resolve those factual disputes so that the court may either enter judgment for the employees and award them damages or other relief, or enter judgment for the defendant perhaps because independent contractor status is found.
Even prior to the final trial, an evidentiary hearing may be held on some disputed issues of fact, such as the dependence of gig workers on the company, whether their pay is more like profit or a wage, the degree that they use discretion or prior training in their activities, the extent to which they invest in the activities they do for the company, and whether what they do is important to the company’s operations.
The federal overtime law and the NYLL requires employers overtime pay. This can be one and one-half times their regular rate of pay, for all hours worked in excess of 40 hours per work week. There are important exemptions from the overtime rules, for example involving salaried workers who are executives, administrators, doctors or lawyers, certain salespersons, and others.
Next Steps
A qualified employment lawyer NYC may be able to help you understand employee classification and misclassification in the workplace. Depending on the circumstances, federal or state statutes may entitle a worker to minimum wage, spread of hours pay, overtime, or other compensation. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.