The news of late has been filled with articles about employers who are being sued for the misclassification of workers and the failure to pay overtime. South Florida continues to be a hotbed of this litigation. While Florida has only 6% of the nation's working population, it also boasts 27% of cases filed nationally under the Fair Labor Standards Act. We can continue to speculate as to why Florida has such an active practice in this area, but the reality is, as employers, your best defense to these types of claims is bringing the company into compliance with the law.
The latest types of cases filed under the Fair Labor Standards Act deal with the threshold issue of who is an employee. The FLSA does not give much guidance to that question as it defines an employee as an "individual employed by an employer." Therefore, most courts employ a myriad of tests to determine whether a worker is an employee. There has been a significant increase in the number of claims filed regarding the misclassification of independent contractors and the hiring of unpaid interns. This is a recent new layer of litigation, which accompanies the still strong ongoing litigation over the question of whether employees are misclassified under the White Collar Exemptions. It is difficult for employers to keep up with the law in the area of misclassification, as the law is ever changing and the Department of Labor is taking positions with regard to White Collar Exemptions that are inconsistent with positions they took 10 years ago.