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More and more workers in the United States moonlight or have “side gigs” (i.e. jobs outside of their standard employment as a way to earn extra cash). Much confusion exists over what, if any, benefits must be paid to these workers and if any of the provisions of the Fair Labor Standards Act (FLSA) apply.

A recent 6th Circuit Court of Appeals case, Acosta v. Off Duty Police Services, Inc., Nos. 17-5995 and 17-6071 (6th Cir. Feb. 12, 2019), examined whether off-duty police officers who were hired as security guards were entitled to overtime pay pursuant to the FLSA.  The FLSA provides that non-exempt employees who work more than 40-hours in any pay period are entitled to overtime pay at a rate of one and one-half their standard rate of pay for the excess time. However, this provision only applies to non-exempt employees. Neither independent contractors nor exempt employees are entitled to earn overtime pay, regardless of the number of hours worked.

In this instance, the security guards fell into two groups – those who were sworn law enforcement officers and those who were unsworn workers with no law enforcement background. While everyone’s duties were the same, the sworn law officers received higher pay. When assignments came up, workers were free to accept or reject the work. If a worker rejected an assignment, he or she faced the withholding of future assignments. Further, once they agreed to an assignment, specific guidelines existed as to when to show up, where to go, and who to report to. However, when it came to pay, unlike the sworn officers, the unsworn workers were treated as “independent contractors,” and thus not entitled to overtime pay. The workers challenged this.

The court sided with the workers based on the “independent contractor test” as set forth by the Department of Labor. The court determined that based on the “economic reality” of the work, along with “the permanency of the relationship,” both types of workers qualified as employees.

Significantly however, the court noted that when making a determination whether a worker is an employee or independent contractor, employers must take into consideration all of the “independent contractor” factors. Many people work side jobs to make ends meet. Assuming that workers who perform these jobs are all independent contractors is a mistake, and may lead to misclassifications and low wages [source].

For more information or if you believe that you may have been mis-classified and may not have earned all of the compensation you were entitled to, or if you believe you have not been paid overtime, please contact the dedicated Atlanta wage and hour lawyers at Buckley Bala Wilson Mew for an immediate case evaluation.

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