Some employers incorrectly treat workers who are employees under the FLSA as independent contractors. This is called “misclassification.”
Common myths about misclassification include
- Employers may not misclassify an employee for any reason, even if the employee agrees.
- A worker is not an independent contractor under the FLSA merely because they work offsite or from home with some flexibility over work hours.
- Whether a worker is paid by cash or by check, on the books or off, they may still be an employee under the FLSA.
- “Common industry practice” is not an excuse to misclassify you under the FLSA.
- Having an employee identification number (EIN) or paperwork stating that a worker is performing services as a Limited Liability Company (LLC) or other business entity does not make them an independent contractor under the FLSA.
- Signing an independent contractor agreement does not make a worker an independent contractor under the FLSA.
- Receiving a 1099 does not make a worker an independent contractor under the FLSA.
- Even if a worker is an independent contractor under another law (for example, tax law or state law), they may still be an employee under the FLSA.