On September 22, 2020, the Department of Labor (DOL) announced a new proposed rule that would, if it becomes final, change the test the DOL uses to determine if a worker is an “independent contractor” or an “employee” under the Fair Labor Standards Act (FLSA). The result of this proposed rule change will inevitably be that thousands of employees will be reclassified as independent contractors under the FLSA. The FLSA is the federal law mandates employers to pay their employees minimum wage, overtime for time worked over 40 hours, and other record keeping requirements. My goal is to provide a brief overview of the new proposed changes and hidden dangers in the DOL’s proposed rule change.
“Plaintiffs’ allegations that they were nonexempt, regularly worked more than forty hours per week, and were not paid time-and-a-half to be factual allegations and not legal conclusions.”
Rodriguez v. Gold & Silver Buyers, Inc., Civ. A. No. 4:12–CV–1831, 2013 WL 5372529 at *3 (S.D.Tex. Sept.24, 2013) (Harmon, J.).
“The Court finds that [the employee] meets his burden to establish that he is similarly situated to other employees in the proposed class. In his declaration, [the employee] states that he was required to work approximately seventy-three hours per week and was paid a flat rate of $145 per day. He did not receive overtime…
“[P]laintiffs have alleged and offered proof that they suffered an adverse employment action, namely, a denial of the opportunity for overtime and accompanying compensation.” Zeigler v. Univ. of Miss. Med. Ctr., 877 F. Supp. 2d 454, 459 (S.D. Miss. 2012).
“Denial of overtime pay is an adverse employment action because it relates to [Plaintiff]’s compensation.” Johnson v. Manpower Professional Servs., Inc., 442 F. App’x 977, 982 (5th Cir. 2011) (per curiam).