The Fifth Circuit Court of Appeals recently ruled that a worker was an independent contractor—not an employee—and thus not entitled to overtime pay under the Fair Labor Standards Act. Thibault v. BellSouth Telecom. Inc., et al, No. 08-31226 (5th Cir. July 26, 2010), available at http://www.ca5.uscourts.gov/opinions/pub/08/08-31226-CV0.wpd.pdf. The worker owned a profitable business in Delaware, but, in Hurricane Katrina’s aftermath, performed splicing work on behalf of BellSouth. Though he had never worked as a splicer, he provided his own truck and tools, worked 84 hours per week on assignments and received a fixed hourly wage. While he anticipated working for six months, he was laid off after three months. He sued BellSouth and its contractors for unpaid overtime pay.
The Court examined five key factors when analyzing whether the worker was economically dependent upon the alleged employer: (1) permanency of the relationship; (2) degree of control exercised by the alleged employer; (3) skill and initiative required to perform the job; (4) extent of the relative investments of the worker and the alleged employer; and (5) degree to which the worker’s opportunity for profit and loss was determined by the alleged employer. Noting that the determination was fact-specific, the Court concluded that, in this case, the evidence did not support a finding that the worker was an FLSA employee. Thus, the Court affirmed judgment dismissing his FLSA claims.
To speak to an attorney about the FLSA, contact the lawyers at the Dallas employment law firm of Clouse Dunn Khoshbin LLP at [email protected].
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