Misclassification

Misclassification is when an employer incorrectly identifies an employee as an independent contractor. If an employee is misclassified as an independent contractor, it is likely the employee has been denied certain benefits and labor standards protections. For example, an employee may be entitled to minimum wage under Arizona law and/or overtime pay under the Fair Labor Standards Act (FLSA) where an independent contractor would not. The employee may also claim protection under the National Labor Relations Act for certain rights, such as organizing and collective action. An employee may also have protections under the FMLA. 

If you suspect that you are being misclassified as an independent contractor when you should in fact be treated as an employee, you may want to bring this to your employer's attention. It is unlawful for your employer to retaliate against you for complaining about not being classified and paid properly. If an employer decides to retaliate against you (discipline you or terminate your employment) for your complaints, this will give rise to a new legal claim for retaliation. 

 If you decide to complain about being misclassified, you should: 

​1. Determine whether it is reasonably likely that you are, in fact, misclassified. Sometimes, whether a worker is properly classified as a contractor is a close call. You must evaluate your job duties and terms of your employment to give you a better idea of whether you should be classified as an employee or an independent contractor. 

2. Weigh the costs and benefits of complaining. There is always the risk of retaliation (even though it is illegal) and job loss. Many employers will decide to cut back on hours/shifts rather than pay overtime. This may be retaliatory unless it is applied uniformly. Additionally, many salaried positions are still entitled to be paid for overtime.   See Overtime . Being misclassified as exempt has the most significant effect (although this is not the only consideration) when you work more than 40 hours a week or 8 hours per day but you are not paid for your overtime. You should calculate how much you are losing in compensation by being misclassified and then decide whether that amount would justify confronting your employer about it. 

3. Submit your complaints to your manager, supervisor (or another individual who has the ability to discipline or fire you) in writing.  Be polite and courteous. Do not approach your employer and threaten a lawsuit out of the gate if they don't immediately change your status. Instead, politely inquire about your status and make them looking into it before taking the next step.  State some reasons why you believe you are an employee rather than an independent contractor and that you believe you are entitled to overtime (or one of the other legally-protected benefits mentioned, as applicable).