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 do 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
What are the most common misclassification patterns?
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 does the law protect you?
The economic reality test is the legal standard. Federal courts examine six factors to determine whether someone is truly a contractor or misclassified as one.
The six factors: (1) Does the company control how the work is done? (2) Is the worker in business for themselves or dependent on the company? (3) Is the work permanent or temporary? (4) Is the work integral to the company's business? (5) Does the worker use their own equipment or the company's? (6) Does the worker have a chance to make a profit or suffer a loss?
If most of these factors suggest the company controls the work, you're an employee. Getting a 1099 doesn't override this analysis. The employer bears the burden of proving that a worker is truly an independent contractor and not an employee. The IRS and the Department of Labor both use the economic reality framework. So do federal courts.
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.
What could your case be worth?
Misclassification cases often involve years of unpaid overtime because the violation started the day you were hired. The exposure under the overtime law is the unpaid overtime premium for the workweeks in the statute of limitations period, doubled by liquidated damages in most cases. Cases with longer histories, higher pay, or multiple workers grow accordingly. If you want a rough arithmetic estimate based on your specific pay and hours, the overtime calculator will run the math from your numbers.
Frequently Asked Questions
Does a 1099 form make me an independent contractor?
No. A 1099 is a tax form, not a legal classification. Whether you are actually an independent contractor or an employee for overtime purposes depends on the economic reality of your working relationship, not on the form your employer chose to issue. Federal courts and the U.S. Department of Labor both apply the economic reality test to make that call. If the reality of your work looks like employment (set hours, exclusive relationship, no real business of your own), you are likely an employee owed overtime, even if you received a 1099 every year.
What is the economic reality test?
The economic reality test is the legal standard federal courts use to decide whether a worker is an employee or an independent contractor under the overtime law. Courts look at six factors: the company's control over how the work is done, whether the worker is in business for themselves or dependent on the company, whether the relationship is permanent or temporary, whether the work is integral to the company's business, whether the worker or the company supplies the equipment, and whether the worker has a real opportunity for profit or loss. No single factor is dispositive. Courts look at the full picture.
Can I be misclassified even if I signed an independent contractor agreement?
Yes. An independent contractor agreement is just a piece of paper. It does not control whether you are actually an employee under the overtime law. Many employers ask workers to sign contractor agreements precisely to try to avoid overtime liability. Courts look past the agreement to the underlying facts. If the company controls your schedule, assigns your work, supervises how you do it, and you depend on that company for your income, the agreement does not change the result. You are still an employee for overtime purposes.
How far back can I recover unpaid overtime in a misclassification case?
The statute of limitations is two years from the date you file your case, or three years if the violation was willful. Willfulness means the employer knew the classification violated the overtime law or showed reckless disregard for whether it did. That is a fact-specific question, not an automatic conclusion that follows from the case type. In many misclassification cases the facts support the three-year period, but the inquiry runs on what the employer knew and how the employer made the classification decision. Each workweek of unpaid overtime is its own violation. If you have been working for the same company for years, the case can cover a substantial period.
Do I have to pay anything upfront to bring a misclassification case?
No. I handle independent contractor misclassification cases on a contingency fee basis. You do not pay any fee upfront, and you do not pay the costs of the case out of pocket. If there is no recovery, you pay nothing, not even the costs. If we win or settle, my fee and the costs come out of the recovery.
What does it cost to bring a case?
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
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.