Which of my Employees is an Independent Contractor?

February 25, 2015

​Fenwick & West employment co-chair Dan McCoy was quoted in a Law360 article on the often confounding question of who is an independent contractor and who is an employee.

McCoy told the publication that written agreements explicitly stating that someone is an independent contractor and not an employee doesn’t necessarily make it so.

He added that many people are under the misapprehension that a written contract definitively resolves the issue of whether a worker is classified as an independent contractor or an employee guaranteed minimum wage and overtime protections as covered under the Fair Labor Standards Act (FLSA).

"It’s, of course, not even remotely that simple, and it’s a significant area of risk for companies, with a lot of pitfalls and exposure,” McCoy said.

McCoy emphasized that, for FLSA purposes, a signed agreement is “immaterial” as is a worker’s preference for being classified as an independent contractor rather than an employee. According to the U.S. Department of Labor, what matters is assessing all facts in the employer-worker relationship to determine the worker’s proper classification.

The full article is available through the Law360 website.