Think You’ve Been Misclassified as an Independent Contractor in Houston? You May Be Right.

In Houston and across the country, employers are not required to pay payroll tax for the workers they hire to be independent contractors. Rather, the independent contractors receive what is called a 1099 Tax Form at the end of the year, and that person or entity is required to pay their own taxes.

The avoidance of payroll tax is why many employers hire on an independent contractor basis. However, the scenarios in which the employer puts upon the contractor actually results in misclassification of the “employee.”

Take for example the job of an administrative assistant. Hired to do anything from answering the telephone to sending out faxes, administrative assistants are the key to making sure an office runs smoothly. A good, trustworthy assistant can be vital to the success of a business, and but often the assistant also must work full time to make that success happen. Even if a company hires an independent contractor (IC) to be an assistant, there is no rule against having him or her there for eight hours a day, seven days a week, as long as the “employer” recognizes and adheres to the differences between an employee and an independent contractor.

In the case of a full time administrative assistant, the main difference would be determining who makes the decision on the number of hours he or she works. An employer does not have the right to dictate how many hours the IC should work, nor can the employer tell the IC when to arrive and when to leave the job. It is the IC’s responsibility to fulfill the contract that was outlined at the beginning of the business relationship and can reserve the right to fulfill it in any way that the IC sees fit.

This could mean that an independently contracted administrative assistant could choose to work four hours one day, eight the next, take every third work day off or whatever he or she chooses.

While the Fair Labor Standards Act does not have specific guidelines for independent contractors, they do have rules for employment that protect a worker’s right to a fair minimum wage and overtime pay for those non-exempt employees. If it is found that a worker who was hired as an independent contractor is being treated as an employee, chances are the worker is being misclassified and is probably entitled to benefits allowed under the FLSA.

If you were hired to be an administrative assistant on an independently contractual basis, but you are being treated no differently than the other full-time or part-time employees you encounter at the company, you may be misclassified.

Learn your rights under the FLSA by calling the fair Houston, Texas overtime attorneys at Kennedy Hodges, LLP at 888.449.2068. The lawyers there will not only provide you with a complimentary case evaluation, but also a free copy of their book, The Ten Biggest Mistakes That Can Hurt Your Wage and Overtime Claim.