FLSA Overtime Pay Exemptions: Employee vs. Independent Contractor

The Fair Labor Standards Act or FLSA ensures that employees working in the United States are able to receive fair and equal compensation. The FLSA is responsible for establishing the federal minimum wage and regulations about overtime pay, among others. Of course, as with most laws governing a certain aspect of social life, the FLSA has certain exemptions regarding those eligible to receive the overtime pay rate.

Among those exempted from the FLSA rules on overtime pay include professionals in executive, supervisory, and outside sales positions. Independent contractors who have full control of their own work hours are also illegible from receiving overtime pay. Unfortunately, as FLSA lawyers from William Kherkher have pointed out, there are some employers that intentionally misclassify their employees in order to bypass FLSA regulations and cut on costs. As such, many employees are misclassified as independent contractors when, in fact, they are subject to fixed work schedules and disciplinary restrictions imposed by their employers.

The following are just some of the misconceptions that around the difference between being an employee and an independent contractor. First, any individual that follows procedure and renders work of an employee may not be misclassified as anything else, even if he or she may have signed a contract agreeing to it. Similarly, as noted by the Wage and Hour Division of the Department of Labor, signing any type of independent contractor agreement doesn’t automatically classify an employee as an independent contractor following the definitions delineated in the FLSA. It’s also important to remember that being an independent contractor isn’t automatically determined having the ability to work offsite and exercise flexibility over your schedule. In the same light, even individuals registered as independent contractors in their tax forms may still be considered an employee.

All in all, individuals can only be considered an independent contractor if they have full control over how the work they were hired to do will be accomplished. This means that they aren’t subject any schedule, protocol, or disciplinary procedures in performing their tasks. An easy example of an independent contractor is an interior designer. If a homeowner hires an interior designer to decorate their living room, they only give the designer an idea of how they want the space to look and feel. Accomplishing this goal, which could probably include moving around furniture or installing new shelves and curtains, will be up to the designer.

The Issue of Sole Managing Conservatorship in Divorce

Though Texas courts would rather render an order wherein both parents (who are divorcing each other) are appointed as custodians or conservators of their child to make sure that a child will continue to experience the love, care and attention from both parents, these will refrain from doing so if these find out or determine that one parent is actually unfit to care for his/her child or if in the child’s best interest, sole conservatorship or sole custody would be the right decision.

Being an “unfit” parent can be due to a variety of different reasons, including: poor health condition which will render such parent unable to provide the amount of care and attention that the child needs; abusive behavior, wherein he/she is prone to physically and/or verbally abusing the child; dependence on alcohol and/or illegal drugs; committing or lacking action that would result to the child getting exposed to pornographic elements and/or illegal activities; abandonment of the child; and, using excessive or unnecessary means in disciplining the child.

In sole custody or sole managing conservatorship, all the rights, privileges, and duties associated with caring for the child are awarded to just one parent. To other parent or the non-custodial parent, visitation rights may be awarded to him/her continuous communication with his/her child.

According to Kirker & Davis, under Texas law, the parent who is appointed as conservator has, at all times, the right:

– To receive information relating to the child’s health, education, and welfare;
– To confer (or not to confer) with the non-custodial parent before making a decision concerning the child’s health, education, and welfare;
– To consult with the child’s physician, dentist, psychologist and school officials where the educational status and welfare of the child are concerned;
– To be designated as a person to be contacted in case of an emergency;
– To manage the estate of the child.

No parent, obviously, would want lose the chance of being appointed custodian; however, for the sake and well-being of the child, it would indeed be very beneficial if he/she could find ways to come to a amicable agreement with his/her former spouse about the issue of conservatorship. While there are divorce lawyers who will help fight for your custody interests, there are also those who would rather help you and your former spouse find ways that will continue making everything better for your child. Make sure that you choose the right one.