Often times, Kansas employers might classify employees as independent
contractors. By doing so, they can avoid the requirement that they pay
overtime to the workers who are classified this way. Sometimes this is just
a mistake by the employer, while other times it is done on purpose to
avoid paying overtime to Kansas employees. However, the law has
developed fairly clear tests for when a person is truly an independent
contractor and not an employee. Have you ever finished a day's work and
asked, "why am I called an independent contractor and denied overtime
pay?" "Should I be getting paid overtime?"
The IRS has developed a test that can help Kansas employees determine if
they are really employees who are entitled to overtime pay instead of
independent contractors. As with any test from the IRS, it is a little
complicated, but it should help Kansas employees know if they have a
legitimate claim to back pay for overtime when they have worked more
than 40 hours in a workweek. (A shorter test can be found here.)
Behavioral control
Facts that show whether the business has a right to direct and control how
the worker does the task for which the worker is hired include the type and
degree of—
Instructions the business gives the worker. A person is most likely an
employee when he is subject to directions from the person who hires him.
Unlike an independent contractor, an employee is generally subject to the
business' instructions about when, where, and how to work. All of the
following are examples of types of instructions about how to do work:
When and where to do the work
What tools or equipment to use
What workers to hire or to assist with the work
Where to purchase supplies and services
What work must be performed by a specified individual
What order or sequence to follow
The amount of instruction needed varies among different jobs. Even if no
instructions are given, sufficient behavioral control may exist if the
employer has the right to control how the work results are achieved. A
business may lack the knowledge to instruct some highly specialized
professionals; in other cases, the task may require little or no instruction.
The key consideration is whether the business has retained the right to
control the details of a worker's performance or instead has given up that
right.
Training the business gives the worker. An employee may be trained to
perform services in a particular manner. Independent contractors
ordinarily use their own methods.
Financial control
Facts that show whether the business has a right to control the business
aspects of the worker's job include:
The extent to which the worker has unreimbursed business expenses.
Independent contractors are more likely to have unreimbursed expenses
than are employees. Fixed ongoing costs that are incurred regardless of
whether work is currently being performed are especially important.
However, employees may also incur unreimbursed expenses in connection
with the services they perform for their business.
The extent of the worker's investment. An employee usually has no
investment in the work other than his or her own time. An independent
contractor often has a significant investment in the facilities he or she uses
in performing services for someone else. However, a significant investment
is not necessary for independent contractor status.
The extent to which the worker makes services available to the relevant
market. An independent contractor is generally free to seek out business
opportunities. Independent contractors often advertise, maintain a visible
business location, and are available to work in the relevant market.
How the business pays the worker. An employee is generally guaranteed a
regular wage amount for an hourly, weekly, or other period of time. This
usually indicates that a worker is an employee, even when the wage or
salary is supplemented by a commission. An independent contractor is
usually paid by a flat fee for the job. However, it is common in some
professions, such as law, to pay independent contractors hourly.
The extent to which the worker can realize a profit or loss. Since an
employer usually provides employees a workplace, tools, materials,
equipment, and supplies needed for the work, and generally pays the costs
of doing business, employees do not have an opportunity to make a profit
or loss. An independent contractor can make a profit or loss.
Type of relationship
Facts that show the parties' type of relationship include:
Written contracts describing the relationship the parties intended to
create. This is probably the least important of the criteria, since what really
matters is the nature of the underlying work relationship, not what the
parties choose to call it. However, in close cases, the written contract can
make a difference in determining if a true independent contractor
relationship exists.
Whether the business provides the worker with employee-type benefits,
such as insurance, a pension plan, vacation pay, or sick pay. The power to
grant benefits carries with it the power to take them away, which is a
power generally exercised by employers over employees. A true
independent contractor will finance his or her own benefits out of the
overall profits of the enterprise.
The permanency of the relationship. If the company engages a worker with
the expectation that the relationship will continue indefinitely, rather than
for a specific project or period, this is generally considered evidence that
the intent was to create an employer-employee relationship.
The extent to which services performed by the worker are a key aspect of
the regular business of the company. If a worker provides services that are
a key aspect of the company's regular business activity, it is more likely
that the company will have the right to direct and control his or her
activities. For example, if a law firm hires an attorney, it is likely that it will
present the attorney's work as its own and would have the right to control
or direct that work. This would indicate an employer-employee
relationship and not independent contractor.
If you employer tells you that you are not entitled to overtime because you
are an independent contractor, and you question that, you should consult a
competent Kansas employment attorney who knows the FLSA and
overtime law. Kansas employees are entitled to overtime when they work
more than 40 hours per week unless they are exempt under the law. The
subject of exemptions is dealt elsewhere in this website. However, Kansas
employees should not lose out on overtime pay because they have been
wrongly classified as independent contractors.
contractors. By doing so, they can avoid the requirement that they pay
overtime to the workers who are classified this way. Sometimes this is just
a mistake by the employer, while other times it is done on purpose to
avoid paying overtime to Kansas employees. However, the law has
developed fairly clear tests for when a person is truly an independent
contractor and not an employee. Have you ever finished a day's work and
asked, "why am I called an independent contractor and denied overtime
pay?" "Should I be getting paid overtime?"
The IRS has developed a test that can help Kansas employees determine if
they are really employees who are entitled to overtime pay instead of
independent contractors. As with any test from the IRS, it is a little
complicated, but it should help Kansas employees know if they have a
legitimate claim to back pay for overtime when they have worked more
than 40 hours in a workweek. (A shorter test can be found here.)
Behavioral control
Facts that show whether the business has a right to direct and control how
the worker does the task for which the worker is hired include the type and
degree of—
Instructions the business gives the worker. A person is most likely an
employee when he is subject to directions from the person who hires him.
Unlike an independent contractor, an employee is generally subject to the
business' instructions about when, where, and how to work. All of the
following are examples of types of instructions about how to do work:
When and where to do the work
What tools or equipment to use
What workers to hire or to assist with the work
Where to purchase supplies and services
What work must be performed by a specified individual
What order or sequence to follow
The amount of instruction needed varies among different jobs. Even if no
instructions are given, sufficient behavioral control may exist if the
employer has the right to control how the work results are achieved. A
business may lack the knowledge to instruct some highly specialized
professionals; in other cases, the task may require little or no instruction.
The key consideration is whether the business has retained the right to
control the details of a worker's performance or instead has given up that
right.
Training the business gives the worker. An employee may be trained to
perform services in a particular manner. Independent contractors
ordinarily use their own methods.
Financial control
Facts that show whether the business has a right to control the business
aspects of the worker's job include:
The extent to which the worker has unreimbursed business expenses.
Independent contractors are more likely to have unreimbursed expenses
than are employees. Fixed ongoing costs that are incurred regardless of
whether work is currently being performed are especially important.
However, employees may also incur unreimbursed expenses in connection
with the services they perform for their business.
The extent of the worker's investment. An employee usually has no
investment in the work other than his or her own time. An independent
contractor often has a significant investment in the facilities he or she uses
in performing services for someone else. However, a significant investment
is not necessary for independent contractor status.
The extent to which the worker makes services available to the relevant
market. An independent contractor is generally free to seek out business
opportunities. Independent contractors often advertise, maintain a visible
business location, and are available to work in the relevant market.
How the business pays the worker. An employee is generally guaranteed a
regular wage amount for an hourly, weekly, or other period of time. This
usually indicates that a worker is an employee, even when the wage or
salary is supplemented by a commission. An independent contractor is
usually paid by a flat fee for the job. However, it is common in some
professions, such as law, to pay independent contractors hourly.
The extent to which the worker can realize a profit or loss. Since an
employer usually provides employees a workplace, tools, materials,
equipment, and supplies needed for the work, and generally pays the costs
of doing business, employees do not have an opportunity to make a profit
or loss. An independent contractor can make a profit or loss.
Type of relationship
Facts that show the parties' type of relationship include:
Written contracts describing the relationship the parties intended to
create. This is probably the least important of the criteria, since what really
matters is the nature of the underlying work relationship, not what the
parties choose to call it. However, in close cases, the written contract can
make a difference in determining if a true independent contractor
relationship exists.
Whether the business provides the worker with employee-type benefits,
such as insurance, a pension plan, vacation pay, or sick pay. The power to
grant benefits carries with it the power to take them away, which is a
power generally exercised by employers over employees. A true
independent contractor will finance his or her own benefits out of the
overall profits of the enterprise.
The permanency of the relationship. If the company engages a worker with
the expectation that the relationship will continue indefinitely, rather than
for a specific project or period, this is generally considered evidence that
the intent was to create an employer-employee relationship.
The extent to which services performed by the worker are a key aspect of
the regular business of the company. If a worker provides services that are
a key aspect of the company's regular business activity, it is more likely
that the company will have the right to direct and control his or her
activities. For example, if a law firm hires an attorney, it is likely that it will
present the attorney's work as its own and would have the right to control
or direct that work. This would indicate an employer-employee
relationship and not independent contractor.
If you employer tells you that you are not entitled to overtime because you
are an independent contractor, and you question that, you should consult a
competent Kansas employment attorney who knows the FLSA and
overtime law. Kansas employees are entitled to overtime when they work
more than 40 hours per week unless they are exempt under the law. The
subject of exemptions is dealt elsewhere in this website. However, Kansas
employees should not lose out on overtime pay because they have been
wrongly classified as independent contractors.
| Kansas employment attorneys representing Kansas employees in wage and hour disputes, back pay, minimum wage, overtime and other salary disputes. Working with clients throughout Kansas, including Wichita, Topeka, Kansas City, Kansas, Salina, Hutchinson, Manhattan, Lawrence, Johnson County, Sedgwick County, Shawnee County and Douglas County. |
| Kansas Wage and Overtime Attorneys |
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Kaup & Shultz, LC Overtime Lawyers 913-385-9955 866-385-9955 (toll free) |
Kaup & Shultz,
Attorneys at
Law, LC,
represents
Kansas
employees in
wage and hour
disputes,
including
minimum wage
and overtime.
Kansas
employees who
think they have
been denied
overtime should
contact Kansas
lawyers who
know the Fair
Labor
Standards Act
and Kansas law
concerning
overtime pay.
Attorneys at
Law, LC,
represents
Kansas
employees in
wage and hour
disputes,
including
minimum wage
and overtime.
Kansas
employees who
think they have
been denied
overtime should
contact Kansas
lawyers who
know the Fair
Labor
Standards Act
and Kansas law
concerning
overtime pay.
| INDEPENDENT CONTRACTORS OR EMPLOYEES |