It is estimated that employers steal billions of dollars from their employees in unpaid wages every year in the US. While it certainly keeps the employment lawyers at HKM very busy, it is unfortunate that American workers have to go through the legal system in order to get what is entitled to them under US law, contractual agreement, and basic business ethics. It is especially difficult for employees who may not be aware of their rights under the law.
In 2016, one case involved the popular chain restaurant Chipotle. According to allegations, Chipotle forced its workers to continue working even after they had punched out. While managers for the company told employees that it was something that they had to do when they were climbing up the ranks, it nonetheless remains an illegal practice under the law.
According to the US Department of Labor, this constitutes wage theft. Hours worked by an employee constitute every single moment that they are required by their company to be on duty.
Other Forms of Wage Theft in the United States
Not every form of a wage theft is so obvious. In some instances, employers intentionally misclassify their employees as part of an exempted group in order to get away with only paying them their normal hourly rate for time that they have worked.
For employees who are concerned that their rights are being violated, there are two important things to bear in mind. Firstly, Nevada law demands that employers pay employees an overtime rate of “time and a half” or 150% of their agreed upon wage for all hours worked in excess of 40 per week or eight per day.
Secondly, there are some classes of employees that are exempted from the overtime pay requirement. Those include:
- Executive employees
- Administrative employees
- Professional employees
One way that unscrupulous employers work around Nevada’s overtime pay regulations is by misclassifying their employees as independent contractors or as one of the exempt positions listed above.
In many cases, employees of a company are listed as independent contractors even though they do not meet the legal criteria for being considered as such. When an employer labels an employee an independent contractor for the purpose of denying him or her overtime pay, this is considered wage theft by misclassification.
The question then becomes: how does Nevada define an independent contractor precisely?
- Any employee who has filed for a federal employer tax identification number is considered an independent contractor. This includes an employee who is “self-employed” and files taxes as such. Such an employee would be considered an independent contractor.
- Any employee that is working under a contract and is required by law to hold or maintain an occupational license would be exempted from the overtime requirement.
- In addition to the above mentioned, any employee that meets three of the following criteria could be considered an independent contractor. Those include:
- A worker who has control or discretion over the means and manner of the performance of his or her work.
- A worker who has control over the time at which his or her work is performed.
- A worker who is not required to work solely for one employer.
- A worker who can hire employees to assist with his or her work.
- The worker has invested in his or her business by buying tools and accessories necessary for work.
Do You Believe You Have Been the Victim of Wage Theft?
If so, the Nevada law offices of HKM Employment Law have handled countless claims brought by employees that have been improperly paid by their employers. If you believe that you have a case against your employer, please give us a call at 702.625.3893.