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Every Hour Counts. Your Rights, Our Fight.
Federal agencies ask: “Are you an employee or an independent contractor?” Misclassification occurs when a company calls someone an “independent contractor” who legally should be an employee.
Under the Fair Labor Standards Act (FLSA), a genuine employee is entitled to protections like minimum wage and overtime pay, but a misclassified worker may be denied those rights.
Misclassifying workers isn’t just unfair – it’s illegal. At the federal level, companies can face serious penalties for this practice.
Tell us about your case.
Let’s look at six specific states regarding its corresponding over time laws.
California is tough on misclassification – no surprise in a state famous for gig-economy battles. In 2020, California’s AB5 law kicked in, codifying the strict “ABC test” which makes it much harder for companies to label workers as contractors. In fact, under the ABC test, a worker is presumed to be an employee unless the hiring entity proves all three conditions:
The worker is free from the company’s control.
They do work outside the company’s usual business.
They have an independent business doing that work.
If a company can’t clear all three, guess what – that worker is an employee. California law even makes willful misclassification a civil offense with hefty fines. Labor Code § 226.8 imposes penalties ranging from $5,000 to $15,000 per violation, and up to $25,000 per violation if there’s a pattern of willful misclassification. In short, California has put employers on notice: play games with labels, and you’ll pay the price. (It’s no wonder giants like Uber and Lyft have been in the Golden State’s crosshairs over this issue!)
New York won’t be fooled by fancy job titles or paperwork. Even if your boss hands you a 1099 tax form and calls you a “contractor,” New York law looks at the actual relationship. If the company controls what you do and how you do it like an employer would, then you’re an employee – regardless of any signed “independent contractor” agreement. New York has targeted abusive misclassification in specific industries. The New York Construction Industry Fair Play Act creates a strict presumption that construction workers are employees unless all parts of an ABC test are met. This was enacted to curb rampant abuses where companies tried to cut costs by calling crew members “contractors.” The bottom line in NY: it’s substance over form. If it walks and quacks like employment, it is employment – and you and your similarly situated co-workers have rights no matter what the boss claims.
Don’t let the phrase “Joysey” fool you – New Jersey means business when it comes to misclassification. New Jersey uses a strict ABC test (similar to California’s) that essentially assumes workers are employees unless the company can prove otherwise. The state has some of the most aggressive anti-misclassification laws in the country. Employers caught misclassifying can face fines payable both to the state and the affected workers. Penalty of up to 5% of the worker’s gross wages (for the past year) payable to the worker as damages Fines of $250–$1,000 per misclassified employee (and higher for repeat offenses) New Jersey’s Department of Labor can even issue stop-work orders and suspend business licenses for serious violators. In recent years, the state has formed task forces to root out companies that cheat by misclassifying whole crews of employees. If you and your coworkers suspect this is happening, know that NJ has your back – and some pretty sharp teeth to punish the cheaters.
Pennsylvania openly calls worker misclassification a “nationwide problem” that hurts honest businesses and the state’s economy. To protect workers, Pennsylvania law (especially its unemployment compensation law) presumes that anyone paid to perform a service is an employee unless the employer can prove two key things: freedom from control and a true, independently established business by the worker. In other words, in PA the default is you’re an employee – it’s on the company to prove otherwise. Pennsylvania has a special law for construction too: the Construction Workplace Misclassification Act (Act 72) makes it illegal to classify construction workers as contractors unless they meet the strict test and have a written contract to that effect. This state knows that misclassification not only steals wages and benefits from workers, but also drains funds (like unemployment insurance) and gives cheating companies an unfair advantage. If your boss in PA is cutting corners by calling you a contractor, they’re on a shaky foundation – and you and your fellow workers may be able to nail them on it.
Illinois has zero tolerance for misclassifying workers – especially in construction and related fields. Under the Illinois Employee Classification Act, there’s a clear rule: in construction trades, workers are presumed to be employees unless the company can prove the classic ABC factors to classify them otherwise. (Sound familiar? Many states are converging on this tough standard.) Fines up to $1,500 per violation for a first offense Up to $2,500 per violation for willful or repeat misclassifications Those fines add up fast, since “per violation” can mean per worker misclassified. Plus, Illinois will make the employer pay all the back wages, overtime, and benefits that the workers missed out on. The Illinois Attorney General has been active in cracking down on companies that label entire crews as “independent” – one recent case involved nearly 100 misclassified laborers and a $550,000 settlement to pay them what they were owed. The lesson in Illinois: if your employer is calling you and your coworkers “contractors” just to save a buck, they’re playing with fire – and the law is firmly on the side of the workers.
Florida doesn’t have its own overtime law, but federal law still protects you. If you work more than 40 hours in a week, you are owed time and a half under the FLSA. Florida may not have its own overtime law, but that doesn’t mean your employer can break the federal one and get away with it. We represent Florida workers in all industries—hospitality, healthcare, security, and more—who’ve been shorted overtime pay. Even without a Florida statute, your rights under federal law are just as strong. Let us help you understand what you’re owed and how to fight back.
Misclassification is not just a technical issue – it’s wage theft, and it affects not only you but possibly everyone you work with. If you suspect you’ve been misclassified, chances are your co-workers have been, too. That means you’re potentially part of a much larger group of employees who could unite in a collective or class action lawsuit to demand justice. You don’t have to fight alone – when workers stand together, companies listen (or face costly legal consequences).
Ready to find out where you stand? Contact us today by filling out the form on this page for a free, no-obligation case review. We’ll evaluate your situation and let you know if you and others at your job have been wrongfully classified. If so, you could be entitled to unpaid wages, overtime, benefits, and significant penalties – and we can help you claim them. Don’t let your employer profit by cutting corners on your rights. Take the first step now: reach out through the form, and let’s see if we can turn your case (and your co-workers’ cases) into a massive action that forces your employer to pay what’s owed. Your time, your benefits, and your hard-earned dollars are on the line – get the justice you deserve!
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At Wage & Hour Attorneys, you will work with top notch and experienced attorneys. We will do whatever it takes to help you win your case. However, each case is unique and results will vary accordingly.
That’s the key question, and I can see why you’re asking it. It’s stressful to wonder whether your rights have been violated.
Whether you have a case depends on the specifics. There are a few important things we need to see: whether the treatment you experienced was on account of one of the protected characteristics (like race, gender, age, disability, etc.), whether you can prove that connection, and whether the action (for example, termination or demotion) was a direct consequence.
I can’t figure that out right now, but it’s part of my job to understand your situation and reason it out with you. If you would like to tell me what happened, I can give you my first, honest impression, and we can figure out if this is worth pursuing.
Step 1: Internal Action (Optional, but Often Recommended)
Action: Report the discrimination to your employer through its official channel, usually HR, using the process outlined in the employee handbook.
Step 2: Consult an Attorney (Highly Recommended)
Action: Speak with an employment discrimination lawyer.
Why: An attorney can assess the strength of your case, advise you on the process, and help you avoid critical mistakes. Most offer free or low-cost initial consultations.
Step 3: File an Administrative Charge (Mandatory)**
Action: Before you can sue, you must file a “charge of discrimination” with a government agency.
Equal Employment Opportunity Commission (EEOC): The federal agency.
Step 4: Agency Investigation
Action: The agency (EEOC or state) will notify your employer and investigate your claim. This may involve requesting documents, interviewing witnesses, and seeking a response from the employer.
Potential Outcomes: Settlement/Mediation: The agency may offer voluntary mediation to resolve the case early.
Step 5: File a Lawsuit (If Necessary)
Action: Once you receive your “Right-to-Sue” letter, you have **90 days** to file a lawsuit in federal or state court.
Why: The vast majority of cases that reach this stage do not go to trial. They are resolved through:
Settlement: The parties agree on a financial or other resolution.
That expression gets thrown around quite a bit, but it has a particular meaning in law. I apologize for your predicament; it must be uncomfortable, and no one deserves to be in that situation.
A ‘hostile work environment’ legally constitutes part of harassment that is so severe or so pervasive that it creates an abusive environment and alters your workplace conditions. It is more than just a few random occurrences or a manager being occasionally unpleasant.
For it to be illegal, the hostility has to be endured is on the basis of your race, sex, religion, or another protected trait. The law allows consideration of the frequency of the actions, the severity, and whether it was physically threatening or humiliating and whether it unreasonably interfered with your work.
To illustrate, a person may be harassed by the use of racial slurs, and a woman may be harassed by derogatory and demeaning remarks, and a person with a disability may be harassed by being relentlessly ridiculed for the disability. I can assist you in determining whether what you have faced legally constitutes harassment if you feel comfortable describing it.
Our offices are opened during regular business hours; however, our support staff and attorneys are mostly available 24 hours.
It’s perfectly normally to feel overwhelmed and confused. If you’re not sure what to do, speak with one of our attorneys. We will guide you and provide some next steps if you choose to work with our firm.
Very good question, and it’s one we hear frequently. The law can be quite particular here.
Adverse employment decisions, such as termination, failure to promote, or harassment, are motivated by an employee’s protected characteristic, and, thus, constitute illegal employment discrimination. Under federal law, these protected categories are: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age (40 and older), disability, and genetic information.
It is also essential to understand the distinction from general unfairness. A manager can be unfair, make poor business decisions, or be a difficult person to deal with, and that does not constitute illegal discrimination. The key here is purpose. Was the negative action taken because of who you are? That is what we would have to investigate.
I apologize to hear about your termination. Facing such an event can be tough and discomforting. It is entirely reasonable to investigate the factors that might have led to your separation.
Considering the reasons that do not relate to performance are sometimes discriminatory, performance reasons are usually the most common explanation given by employers. We look for ‘red flags’ that suggest the alleged performance issue is a pretext. These would be:
Inconsistency: Did evaluators suddenly change their view regarding your contribution to the organization after a series of positive reviews?
Comparators: Were employees and managers outside your protected category and similar performance issues treated more favorably?
Timing: Did the termination occur immediately after you disclosed a pregnancy, requested a disability accommodation, or complained about harassment?
Procedural Irregularities: Did the company fail to follow its own written disciplinary process?
These are the primary questions I would investigate. If you have documentation of good performance or have witnessed these ‘red flags’, this would be a good sign that merits further investigation.
