(Last Updated On: July 9, 2025)
Independent contractors, as opposed to employees, are not entitled to overtime wages and do not have the same rights to a minimum wage under the Fair Labor Standards Act (FLSA), as well as other protections under federal and state laws. Employers are required to properly classify workers because employers must comply with a range of laws concerning protections for employees (as opposed to independent contractors) and must perform certain requirements for employees, too (such as recordkeeping requirements, tax withholding, and more). What is the difference between an independent contractor and an employee? In short, it has to do with the relationship between the worker and the employer, and how much control the employer has over the worker. Employers have an intertwined relationship with employees, exercising control over them, whereas the employment relationship between employers and independent contractors is much looser. Sometimes employers make mistakes and misclassify employees as independent contractors. At the same time, it is important for workers to know that employers might intentionally misclassify in order to avoid paying overtime and providing other protections.
Have you been working a particularly high number of hours for your employer in recent weeks or months, and attending to a range of requests from your employer, but are not paid overtime wages? Or has your employer been managing your work schedule, including hours beyond a 40-hour week, in a manner that does not feel right as an independent contractor? You might be wondering if you have been misclassified as an independent contractor and are actually owed overtime wages in addition to having other rights. How can you tell? Consider the following information from our Massachusetts employment lawyers.
Test for Classifying Employees Versus Independent Contractors
The test for classifying employees versus independent contractors has been a bit confusing in recent years. In 2021, the Trump administration made changes to the rule for identifying and properly classifying employees. Then, in 2024, the US Department of Labor under the Biden Administration rescinded that rule and replaced it with a new rule that took effect on March 11, 2024. That rule is still currently in place, but is now under scrutiny with the current Trump administration in 2025. For the time being, the 2024 rule is in effect, and these are the factors that your employer should have used in determining your classification, weighted equally, according to the US Department of Labor (DOL):
- Opportunity for profit or loss depending on managerial skill;
- Investments by the employer and the worker;
- Permanence of the work relationship;
- Nature and degree of control;
- Whether the work performed is integral to the employer’s business; and
- Skill and initiative.
Common Indicators That You Are an Employee Who Has Been Misclassified as an Independent Contractor
To an employee in Massachusetts, those six weighted factors can seem somewhat confusing, and it may not be clear precisely what you should be looking at in your relationship with your employer to get a sense of whether or not you might have been misclassified. The DOL explains that the following are some general indicators that you are likely an employee and not an independent contractor:
- You work for someone else’s business rather than being in business for yourself;
- You use your employer’s materials, equipment, and/or tools to perform some or all of your work;
- Your employer prohibits you from doing the same or similar work for another employer, or from working for another employer altogether;
- You have an understanding with your employer that you have a continuing and ongoing employee-worker relationship;
- Your employer makes the decisions about how you will perform your work duties;
- Your employer makes the decisions about when you will perform your work duties; and
- You rely on your employer to assign your work duties.
The above examples are not all inclusive, but if one or more apply to you, it is important to discuss being misclassified as an independent contractor with a lawyer who can help.
What am I Owed if I Was Misclassified as an Independent Contractor?
If you believe you were misclassified, you can take action with help from an employment lawyer. In addition to getting reclassified as an employee, your employer can also help you to seek unpaid wages you are owed for overtime.
Contact a Massachusetts Employment Discrimination Attorney Representing Clients in Boston and Natick
When you have been classified by your employer as an independent contractor but suspect you may actually be an employee, with FLSA and other state-based protections, under federal and state law based on the nature of your employment relationship, it is important to seek legal advice as soon as possible. As we discussed above, employers sometimes accidentally classify employees as independent contractors, but there are also employers who intentionally make this misclassification in order to avoid paying overtime wages and providing other benefits. If you have any questions or concerns at all, you should get in touch with one of the experienced Boston and Natick employment law attorneys at our firm today. Contact Rodman Employment Law for more information about how we can assist you.
