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Although many workers are entitled to overtime pay, the law makes some exceptions. Workers who are independent contractors and not "employees" are not entitled to overtime pay. However, you are not an independent contractor just because your boss says so. The law has several tests to determine whether you are truly an independent contractor.

An employer who classifies its employees as independent contractors, rather than employees, saves a lot of money and receives other benefits at the employees' expense: an independent contractor is not protected by the anti-discrimination laws of Title VII, is not protected from retaliation for making complaints about an employer's violation of labor laws, and is not protected under the Americans with Disabilities Act or the Family Medical Leave Act. Also, an employer is required to pay certain taxes for its employees, including half of the employee's social security and medicare, or FICA, taxes. An independent contractor pays over 15% of his or her wages toward FICA, which is double the FICA taxes that an employee pays. Missing out on this single benefit of employment--splitting FICA deductions with an employer--can cost someone who is misclassified as an independent contractor a lot of money. On an annual salary of $50,000, an independent contractor will pay more than $7,500 in FICA alone (this does not include federal and state income tax and any additional taxes that result from being self employed); an employee will pay half of that amount.

Some workers, although properly classified as employees, are not eligible for overtime pay due to a set of exemptions under the labor laws. For instance, managers do not receive overtime pay. However, an employee may be misclassified as a manager if he or she is not performing actual management work (for instance, an employee may not be a manager if he or she does not have any participation in the hiring and firing of other employees).

A lesser-known exemption is frequently applied to journalists to deprive them of overtime pay. That exemption is called the "creative professional" exemption and it may apply to a journalist who is truly creative, writes original content, and is not subject to strict editorial control. According to the U.S. Department of Labor, the creative professional exemption applies if "the employee’s primary duty is work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (e.g., the fields of music, acting, writing and the graphic arts), as opposed to routine mental, manual, mechanical or physical work."

However, many journalists are charged with writing factual stories, or stories based on the reporting of other organizations or internet postings, and are subject to extensive editorial oversight. These reporters may not qualify for the creative professional exemption and may be owed overtime pay. According to the U.S. Department of Labor, "employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product." Under this description, it appears that many news writers, although classified as exempt from overtime requirements, should actually receive overtime pay.

If your employer has said that you are an independent contractor or are otherwise are exempt from overtime pay, contact us to discuss your options.

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