Employee Misclassification

If you’re labeled an independent contractor but treated like an employee, you may be missing out on overtime, benefits, and protections you’re legally owed.

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What is employee misclassification?

Employee misclassification is when an employer wrongly labels a worker as an independent contractor to avoid paying overtime, taxes, and benefits. Your job title or a “contractor” agreement doesn’t decide your status — the law looks at how much control the employer actually has over your work and how the relationship really operates.

Misclassification usually isn’t obvious — you do the job like everyone else, but you’re told you’re “1099.”

How it happens

  • You’re called a contractor but work set hours the company controls

  • You use the company’s tools, systems, and direction to do the work

  • You do the same job as the W-2 employees beside you

  • You rely on this one company for most or all of your income

  • You’re denied overtime because you’re classified as a contractor

  • You’re made to cover business costs the employer should bear

  • You’ve worked there long-term but were never made an employee

  • You can’t really work for anyone else, despite the “contractor” label

Federal and state protections

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Your legal status depends on the reality of your work — not the label.

Federal

Under the Fair Labor Standards Act (FLSA), whether you’re an employee or a contractor is determined by the economic reality of the relationship, not by what you’re called or what you signed. If you’re economically dependent on the company and it controls how you work, you’re likely an employee — entitled to minimum wage, overtime, and other protections.

Minnesota

Minnesota uses its own tests to determine worker status and has strengthened enforcement against misclassification, particularly in industries like construction. Misclassified workers in Minnesota may be owed unpaid overtime and other wages they should have received as employees.

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Illinois

Illinois applies strict tests for classification, including in the Employee Classification Act covering construction work. Illinois presumes many workers are employees unless the employer can prove otherwise, and misclassified workers can recover wages and damages.

Learn more

Not sure which law applies to your situation? That’s what we figure out with you.

Being called a contractor doesn’t make you one

Whether you’re truly an independent contractor depends on the reality of the working relationship — not your job title, not a contract you signed, and not whether you get a 1099.

Courts and agencies look at questions like

  • Control

    Does the company set your hours, methods, and how the work gets done? The more control, the more likely you’re an employee.

  • Integration

    Is your work a core part of the company’s business, or a genuinely separate service?

  • Independence

    Can you realistically work for other companies, or are you economically dependent on this one?

  • Investment and equipment

    Do you use your own tools and take on business risk, or does the company provide everything?

  • Permanence

    Is this an ongoing, indefinite relationship, or a defined project with an end?

The more the company controls, and the more dependent you are on it, the more likely you’re legally an employee — with all the pay and protections that come with it, no matter what your paperwork says.

When an employer takes wages you earned, the law often lets you recover well beyond the missing pay:

  • All the wages you’re owed
  • Liquidated damages — often equal to the unpaid amount, effectively doubling it
  • Up to triple the wages owed under some state laws
  • Interest on what you’re owed
  • Civil penalties against the employer
  • Attorney’s fees and costs

Every case is different. What you can recover depends on the facts, the law, and the employer’s conduct.

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*Prior results do not guarantee a similar outcome.

How we handle employee misclassification cases

Every case starts with a free call. We listen first. If you have a case, we tell you what it looks like — what’s likely to happen, how long it might take, what’s realistic. If you don’t have a case, we tell you that too and try to point you toward someone who can help.

On contingency, you pay nothing unless we win.

Common questions about employee misclassification

  • I signed a contractor agreement — doesn’t that make me a contractor?

    No. A signed agreement doesn’t override the reality of your work. If the company controls how, when, and where you work, and you’re economically dependent on it, you may legally be an employee regardless of what you signed. The law looks past the paperwork.

  • I get a 1099 instead of a W-2. Does that settle it?

    No. Getting a 1099 reflects how the company chose to treat you for taxes — it doesn’t determine your legal status. Many workers who receive 1099s are actually misclassified employees owed overtime and other protections.

  • How do I know if I’ve been misclassified?

    Look at control and independence: Does the company set your schedule and methods? Do you use their equipment? Could you realistically work for others? Do you do the same work as their employees? The more the company controls, the more likely you’ve been misclassified — and we can help you figure it out.

  • What does misclassification actually cost me?

    Often a lot. As a misclassified contractor, you may have missed out on overtime pay, had to cover business expenses and extra taxes, and lost protections employees get. Those add up, and much of it may be recoverable.

  • Can I be fired for challenging my classification?

    No. Retaliating against you for raising your classification or claiming unpaid wages is illegal. If your employer cut ties, cut your pay, or fired you after you raised it, that’s a separate violation on top of the misclassification claim.

See all unpaid wages FAQs

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Common questions

How far back can I claim wages from misclassification?

Federal claims generally reach back two years, or three for willful violations, with state deadlines that can differ. Because older wages drop off as time passes, it’s best to act sooner rather than later.

How much does it cost to hire a misclassification lawyer?

For most cases, nothing upfront. We work on contingency, and in many wage cases the law requires the employer to pay your attorney’s fees on top of what you recover. The first call to find out if you have a case is free.

What industries see the most misclassification?

It’s especially common in construction, delivery and trucking, cleaning, home care, salons, and gig and app-based work — but it happens everywhere. If you’re treated like an employee but paid like a contractor, it’s worth a look regardless of your industry.

Can a group of misclassified workers bring a claim together?

Yes. Companies that misclassify one worker usually misclassify a whole category of them. These cases can be brought collectively, which can make them stronger and share the effort. If your coworkers are in the same situation, mention it when we talk.

What if I actually like being a contractor?

That’s fine — misclassification is about your legal rights, not forcing a change you don’t want. But if you were denied overtime or made to cover costs you shouldn’t have, you may still be owed money for the time you were misclassified, whatever you prefer going forward.