Do I Have A Right To Get Overtime Pay?

Most employees do have a right to overtime pay, when they work over 40 hours in a given week. For each overtime hour, the law requires that they get one-and-one-half times their regular pay.

The law requiring overtime pay -- called the “Fair Labor Standards Act” -- was passed in 1938, during the Great Depression, when jobs were scarce. The idea was that making overtime hours more expensive for companies would encourage them to hire more workers rather than work their current employees longer hours.

While the law applies broadly to most employees, it does not give everyone a right to overtime pay.

First, the law only applies if you are an “employee.” That means that if you are an independent contractor in business for yourself, you have no right to overtime pay.



How do you know whether you are an employee or an independent contractor? It’s not always an easy question to answer. It depends on the type of job you do.

In the eyes of the law, you are more likely an employee, rather than an independent contractor, if:
-- you have a “permanent” job with your company, rather than one with an end date
-- you get trained or instructed by the company on how to do your job, and are supervised in how you do it
-- your work schedule is set by the company
-- you work on the company’s premises
-- the work you do is central to the company’s business (for example, you work for a bakery and your job is making the bread)
-- you do the same job done by employees of the company.

But these are just some factors that may be relevant. Ultimately, the question is whether you are in business for yourself (and thus an independent contractor) or you depend for your livelihood on the company you work for (and are thus an employee).



Note that just because your company may call you an independent contractor doesn’t mean you are one. Companies often improperly label workers who are employees as independent contractors -- doing so can save them a lot in taxes and benefits. There’s a long list of employees who have been improperly labeled as independent contractors: real estate agents, delivery drivers, ambulance dispatchers, nurses working for a health care service, temps working for an employment agency, even dancers at a night club.

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