A common problem in employment cases is the misclassification of full-time employees as “consultants” in order to avoid giving them overtime pay or other requirements of employment law. That’s what the complaint for this class action alleges about the employment of plaintiffs Joshua Serrette and Timothy Hemphill, who worked for the defendants as “mud engineers,” or drilling fluid consultants.
The class for this action includes all current and former drilling fluid consultants who were classified as consultants and paid a day rate between July 11, 2014 and July 11, 2017.
Serrette and Hemphill were hired as independent contractors but worked forty or more hours a week for the defendants over a period of two to three years. They were paid a flat day rate, no matter how many hours they worked.
The law doesn’t apply a single test to determine whether someone is an independent contractor or an employee, but it has developed a number of questions regarding autonomy, the settings of hours and work rules, the provision of tools, and other matters that help determine the answer to that question. The complaint lays out circumstances which, on most counts, appear to establish that Serrette and Hemphill were regular employees.
For example, according to the complaint, all of the following were true:
Also, according to the complaint, Serrette and Hemphill did not show signs of being the “exempt” class of worker who may be required to do overtime without extra pay. For example, the complaint says that they did not supervise or manage other workers.
If Serrette and Hemphill were ordinary employees, the complaint contends, then their work falls under the requirements set for employees under the Fair Labor Standards Act (FLSA), the Ohio Minimum Fair Wage Standards Act, the Ohio Prompt Pay Act, and the Pennsylvania Minimum Wage Act. Therefore, the complaint alleges, they should have been paid overtime for all hours beyond forty that they worked each week.