Miami-Dade County Employee Misclassification Lawyers
Misclassification of employees (for example, exempt versus non-exempt, employee versus independent contractor, and employee versus interns) is a common pitfall for companies and could subject the company to potential liability.
First, under the Fair Labor Standards Act (“FLSA”), there are specific requirements that must be met in order for an employee to be properly classified as exempt from receiving overtime pay. There is a common misconception that paying an employee a salary is sufficient to avoid having to pay an employee overtime. Simply receiving a salary is not dispositive. In order to make a determination regarding whether an employee is properly classified as exempt under the FLSA, companies should seek the advice of an experienced employment lawyer in order to navigate the complexities of the statute and implementing regulations.
Similarly, when classifying an individual as an independent contractor as opposed to an employee, companies should seek the advice of an experienced employment lawyer as there are several factors that must be examined in order to make the determination. Making a mistake with this determination can create significant exposure for the company. Even worse, in Florida, the intentional misclassification of a worker is a felony.
In Florida, the regulating agency is the Florida Department of Revenue. If the Department of Revenue investigates an employer, the employer is generally required to complete an Independent Contractor Analysis (Form RTS-6061) which contains a number of questions designed to determine the relationship between the worker and the employer. If the Department of Revenue makes an adverse finding, it could impose a monetary penalty against the company.
Further, the Department of Labor (“DOL”) has evaluated internship programs under the FLSA and issued guidelines to help employers determine whether interns and students for “for-profit” employers are entitled to minimum wage and overtime pay under the FLSA. The analysis focuses on the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified different factors for evaluating the “economic reality.” For example, some courts look at the following factors:
- Whether there is an understanding between the intern and employer that the position is not compensable;
- Whether the internship provides training similar to what an educational program would provide, whether the internship is tied to the intern’s academic program, and whether the intern would receive credit for the internship; and
- Whether the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
This is not an exhaustive list and it is important for employers to seek the advice of counsel when deciding whether to classify an individual as an intern versus an employee.
To help navigate this minefield, contact an experienced attorney at BT Law Group who can explain the applicable statutes, defend against a government investigation or audit, or file a lawsuit on behalf of an employee who was improperly classified.