Photographer Robert Stolarik recently filed a lawsuit against the New York Times Company (the Times). Stolarik’s suit, filed July 6, 2017 in US District Court for the Southern District of New York contains allegations that for the 14 years he worked as a photographer for the Times, they classified him as an independent contractor. He claims that for 10 of those years, he was an employee and that the company owes him money for a decade of unpaid overtime.
The Fair Labor Standards Act (FLSA) states that employees are entitled to overtime pay when they work over 40 hours in a given workweek. For every hour over 40, employees should receive one and a half times their regular rate of pay. Stolarik earned $25.00 per hour. As an employee, for every hour he worked more than 40 in a workweek, he should have received $37.50 per hour.
The key issue in Stolarik’s complaint is his claim that the Times classified him as an independent contractor instead of as an employee. You must be an employee to reap the benefit of overtime pay under the FLSA. Independent contractors and freelancers are not entitled to overtime under the federal law.
Stolarik claims that the Times incorrectly classified him as a “full-time freelancer” when, in fact, he was an employee. According to the United States Department of Labor (DOL), the agency that oversees the administration of the FLSA, an independent contractor is in business for himself or herself whereas an employee is economically dependent on the employer.
The courts and the DOL look at the economic reality of the relationship between the worker and the employer to determine what classification is appropriate. There are several factors that they consider:
No single factor makes a difference in determining whether a person is an employee or independent contractor. The entity who exerts control over assignments, hours and scheduling, along with the opportunity to work for other clients, hire people or purchase equipment are all important considerations. Essentially, the more control the worker has, the less likely he or she is economically dependent on the employer and the more likely he or she is an independent contractor.
Stolarik claims that he was entirely dependent on his wages from the Times. Because he worked so many days and hours for the company, he states in his complaint that he could not have worked for another employer even if he wanted to. He alleges that he worked 8 hour days and more for between 150 and 267 days per year for ten years. Stolarik claims his work was an integral part of the Times’ operations and that his specialized skill as a photographer significantly contributed to the business of the paper.
To further support his claim that he was an employee Stolarik’s complaint states:
Stolarik calculated that from 2005 to 2014 he worked 3,358 hours of overtime. He did receive pay for those hours, but it was at his regular hourly rate of $25.00. Stolarik believes that the Times misclassified him as an independent contractor, in part, to avoid its legal obligation to pay him overtime. He asserts claims for unpaid overtime under the FLSA and New York Labor Law.
Stolarik also argues that the Times discriminated against him because of his age and arrest record which violated New York City Human Rights Law. His complaint contains allegations that he tried to secure a position as a staff photographer with the Times but the company consistently hired younger, less experienced photojournalists. Stolarik also alleges that several editors informed him that he was “too old” for various positions and prevented him from advancing.
Stolarik’s complaint seeks unpaid overtime and other damages including money for emotional distress, loss of employment, loss of opportunity, humiliation, loss of reputation, pain and suffering and additional damages at the discretion of the court.
In June, the DOL withdrew its guidance that said “most workers are employees” under the FLSA. At that time, the DOL added that “employers are still expected to comply with the FLSA and its rules regarding classification.”
If you are a misclassified worker; an employee who your company treats as an independent contractor, Leeds Brown Law, P.C. can help. Our employment law attorneys have experience securing unpaid overtime and other monies for workers on Long Island and the New York City metropolitan area. Contact our office for your free case evaluation and find out if you have rights as an employee. Someone is here to answer your call 24/7 so don’t wait. Call 1-800-585-4658 today.
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