I’m paid by the hour. Am I an employee or an independent contractor?

I drive a dump truck for a business. I’m paid by the hour; my employer provides the truck, tools, a cellphone, supplies; my boss sets my hours. Am I an employee?

Posted  03-11-2015

Steve Duggan replies:

The key question in such instances is: Who controls the manner and means of accomplishing a job? In the classic independent contractor situation, a worker is hired for her expertise and is paid by the job. She controls how the project gets done, pursuant to her contract. You did not mention whether you have a written contract with the company that says you are an independent contractor. However, whether or not there is such a contract does not alone answer the question; it is just one of the factors that is considered. I would say that it appears from what you have said, that you are likely an employee of the company. That has significant consequences for the company, in terms of payment for overtime, benefits, tax withholding, social security and medicare, and unemployment and disability contributions. I recommend that you consult with a local labor and employment attorney about your situation.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.