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NYC Employment Lawyer > Blog > Employment Discrimination > What does being misclassified mean?

What does being misclassified mean?


In the current difficult economic climate, it is crucial for every worker to receive the pay to which they are entitled. However, some employers, trying to tighten their own belts, may engage in unethical behavior that includes trying to maneuver workers into a classification where they are not entitled to overtime pay or even minimum wage. If you suspect that you have been accidentally or intentionally misclassified as an ‘exempt’ worker, you have the right to file a complaint and try to change things.

Exempt vs Non-Exempt

Both New York state law and the federal Fair Labor Standards Act (FLSA) classify employees into certain categories for the purposes of granting minimum wage, overtime pay, and other benefits. New York law actually grants more benefits than the FLSA in most cases; employers in New York State are required to provide not only overtime pay and minimum wage, but also workers’ compensation (if a business fits the criteria), mandatory rest and meal breaks, and other advantages, where the FLSA merely recommends.

The majority of employees are non-exempt, meaning that they are eligible to receive overtime pay and wage protection if they work a certain number of hours. However, some employees are considered exempt – generally, those who are salaried and make more than a certain amount, or those who perform primarily executive, professional, or administrative duties do not receive overtime pay, because that salary is considered high enough to guarantee a certain quality of life. Too often, non-exempt employees are classified as exempt in order for the employer to try and save money.

Independent Contractor Or Employee?

In addition to possibly being misclassified as an exempt employee, sometimes an employer will try and classify a non-exempt employee as an independent contractor, which can save them even more money if no one notices. An independent contractor, by definition, acts with much more freedom than an employee, but at the same time, they are not entitled to any of the benefits of an employee who works directly for a larger employer. For example, many Uber or Lyft drivers are considered independent contractors (depending on the location where they are based).

It can be difficult to determine whether you are being treated as an independent contractor or not, because neither New York State or City law nor the FLSA contains a specific definition of that status. However, you can generally infer an answer by examining the factors around your relationship with your employer. In addition, in 2017, New York passed the Freelance Isn’t Free Act, which does guarantee independent contractors certain protections even though they are not employees – for example, the right to a written contract, “timely and full” payment for work, and protection from retaliation.

Call A New York City Employment Discrimination Attorney

If you suspect that your employer is misclassifying you on tax records, either intentionally or unintentionally, it means that you are not receiving benefits that you are entitled to receive. Consulting a New York City employment discrimination attorney from Mansell Law, LLC should be your first step, so you have the best chance to make sure your rights are protected should you need to go to court. Contact our offices today at 646-921-8900 to schedule a consultation.



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