From JDSupra, John Adams, Jr. reports that the Fifth Circuit Court of Appeals said that a welding inspector had his own company, marketed his services to others, and was an independent contractor. John writes:
The plaintiff in Gray v. Killick Grp., L.L.C., __ F.4th __ (5th Cir. 2024), who performed welding inspection services for the defendant, sued for wages and overtime under the FLSA claiming he was an employee, not an independent contractor. In determining the plaintiff’s employment status the Fifth Circuit considered “five non-exhaustive factors…:(1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and the alleged employer; (3) the degree to which the worker’s opportunity for profit or loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship.”
Assessing these factors, the court found the plaintiff performed his work independently and without supervision; had his own company and marketed his services to the public; supplied his own vehicle, machinery, and other supplies to perform his work; had extensive autonomy and made decisions that affected his profitability; and worked for the defendant on a project basis, performing work for at least one other company at the same time. Based on these factors, the court concluded, the plaintiff was an independent contractor “outside the purview of the FLSA.”
Source: Littler Lightbulb: August Appellate Roundup | Littler – JDSupra
