Certain companies that employ drivers to transport disabled, terminally ill, handicapped and wheelchair-bound clients may be incorrectly classifying their drivers as ‘independent contractors’ to avoid paying overtime. Drivers who were wrongfully withheld overtime pay may be able to take legal action under the Fair Labor Standards Act (FLSA) to recover back wages.
The FLSA, a federal labor law, requires that minimum wage be paid to most workers. It also establishes recordkeeping and overtime requirements. However, these requirements only apply to company employees, and not independent contractors. As such, there may be an incentive for companies to misclassify workers as independent contractors to avoid their obligation to pay overtime for time worked beyond 40 hours a week. Some paratransit companies may be doing just this, and therefore withholding overtime from drivers who are, in effect, employees in all but name. If true, this is in violation of the FLSA and companies could be responsible for compensating drivers for unpaid wages.
To determine whether a worker is an employee or legitimate independent contractor, several factors apply. The FLSA recognizes that if a company “directs and controls” a worker, meaning that they can govern and instruct a worker in the operation of their duties, he or she is likely considered an employee. Examples of “directing and controlling” include instructing a worker how to dress, act, or requiring that work only be undertaken at certain hours. Directing may also take the form of required training programs. Paratransit drivers who fulfill any of these may, then, be eligible to qualify as employees. If a driver is essentially an employee, but continues to be classified and paid as an independent contractor, he or she may have legal recourse.
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