A recently filed lawsuit against Amazon, Inc. has highlightled an issue
that is a growing concern for workers across America -
employment misclassification. Pursuant to the Fair Labor Standards Act (FLSA) whether you are classified
as an employee or independent contractor can have a siginificant impact
on both the benefits you are entited to and your take home pay. In the
recent wage and hour lawsuit, Amazon drivers have sued the company alleging
that they are not independent contractors. Instead, they assert that they
should be classified as employees and entitled to back wages, overtime
To help employers determine whether to classify a worker as an independent
contractor or an employee, the Department of Labor has developed a test
with six key factors. These include:
1. Is the work provided integral to the company's business?
2. Does the worker or the employer control worker's opportunities for
profit and loss?
3. Does the worker or the employer provides the equipment/facilities necessary
to perform the job?
4. What is the level of the worker's skill and initiative?
5. What is the expectation of permanency between the worker and the employer? and
6. How much and what degree of control does the employer has over the work
Additionally, the Internal Revenue Service (IRS) evaluates a few different
factors to make this determination. These factors include:
1. Does the company have the right to control how the worker perform his
or her job?
2. Does the company or the worker control the business aspects of the workers
job, such as determining how the worker is paid, what expenses are reimbursed,
and who provides needed tools and supplies? and
3. Is there a written contract detailing the employment arrangement?
While no one factor is determinative, taken as whole these factors provide
guidance concerning whether you should be considered an independent contractor
or an employee.
For more information, or if you have questions concerning whether you should
be classified as a contractor or an employee, please contact the dedicated
Atlanta wage and hour lawyers at Buckley Beal, LLP for an immediate consultation.