Independent Contractors

You received a 1099 form and your employer told you that you're an independent contractor, so overtime doesn't apply to you. That's not how it works. A 1099 is a tax form, not a legal classification. Whether you're truly a contractor depends on the reality of your working relationship, not what your employer calls you.

If you're working on someone else's terms, doing their work their way, without control over your own schedule or the ability to work for competitors, you're probably an employee owed overtime.

Who I Represent

• Workers in construction, oilfield, and transportation who received 1099s
• Home care workers and personal care attendants classified as 1099
• Any worker told they're a contractor but work exclusively for one company
• Workers who don't control their own hours, rates, or work methods
• Anyone whose employer required them to sign a contractor agreement after being hired as an employee

Common Violations

1099 status doesn't define employment. Your employer gives you a tax form and says you're a contractor. But you work only for them. They decide your hours, your tasks, your pay, and how you do the work. You can't refuse assignments without losing work. You're not running your own business. You're an employee who should be on a W2.

Exclusive work relationships. You're supposed to be a contractor, but you're working 50 hours a week for one company with no ability to take other clients. Real contractors juggle multiple clients and control their own time. You're not doing that. You're dependent on this one employer for income and work. That's employment.

No control over the work. The company tells you when to show up, where to go, what to do, what to charge (if anything), and how to do it. You're not setting your own rates or negotiating terms. You're not in business for yourself. You're an employee in everything but the paperwork.

No equipment investment. You use the company's tools, truck, materials, and technology. You didn't invest in a business. You're an employee using the employer's assets to do their work. Contractors typically invest in their own equipment and can use it for other clients.

Assignment of work. The company assigns you to specific jobs, clients, or locations. You can't refuse without losing the work. You don't bid on projects or choose your clients. The company controls the assignment. That's employment.

How the Law Protects You

The economic reality test is the legal standard. Federal courts apply a five-factor analysis to determine whether someone is truly a contractor or misclassified as one.

Courts look at the economic reality of the relationship, not what the paperwork says. The factors they weigh are: (1) the degree of control the company exercises over how the work is done; (2) the worker's opportunity for profit or loss; (3) the relative investment each side has made: tools, equipment, facilities; (4) the skill and initiative the work requires; and (5) how permanent the relationship is. Courts also weigh whether the work is integral to the company's core business as part of the overall economic picture. No single factor is decisive. Courts look at the full picture, and no contract, 1099 form, or verbal agreement can override what the economic reality actually shows. This economic reality approach traces to the Supreme Court's foundational decisions in Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947), and in the Fifth Circuit it has been applied in cases like Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369 (5th Cir. 2019).

Once you're classified correctly as an employee, you're entitled to overtime pay. Time and a half for every hour over 40 in a workweek. No exemptions.

What Your Case Could Be Worth

Misclassification cases often involve years of unpaid overtime because the violation started the day you were hired.

Example: You worked as a 1099 driver for two years, earning $20 per hour, working 50 hours a week. Under misclassification, you should have been paid $30 per hour (time and a half) for the 10 hours weekly over 40. Your unpaid overtime for two years is roughly $31,200. Add liquidated damages (another 100 percent) and the case could be worth $75,000 or more.

Cases with longer histories, higher pay, or multiple workers scale up significantly. When multiple workers at the same company were misclassified the same way, the FLSA allows a collective action where all affected workers can join a single lawsuit. The Fifth Circuit addresses the standard for certifying such a case in Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430 (5th Cir. 2021).

No Cost to You

I work on a contingency fee basis. You don't pay upfront. If there is no recovery, you pay nothing, not even the costs. There's no financial risk to you.

Contact Me

30+ years employment law experience. 15+ years FLSA-only.

If you were issued a 1099 but worked exclusively for one company, didn't control your hours or methods, and were never paid overtime, call me. I'll review your work situation and tell you whether you have a misclassification case.

Call me at (512) 799-2048.

Related Reading

• Independent Contractor or Employee? How the FLSA Determines Your Status. A detailed breakdown of the economic reality test and how courts apply each factor.
• 1099 Workers and Overtime: The 1099 Form Doesn't Determine Your Status. Why the tax form your employer gave you is irrelevant to whether you're owed overtime.
• Oilfield Worker Overtime in Texas: Independent Contractor or Misclassified?. How misclassification works in the oilfield, with examples of common patterns courts have found to be employment.
• What Is a Collective Action and How Does It Work?. How FLSA section 216(b) collective actions work, who can opt in, and why they matter.
• How Long Do I Have to File an Unpaid Overtime Claim in Texas?. The two-year and three-year statute of limitations, how willfulness extends it, and why timing matters.