If a worker is “economically dependent” on the firm they work for, they are considered an employee, and not a contractor, under the FLSA.

A Department of Labor fact sheet says the Supreme Court has considered several factors in questions pertaining to employee classification, but no single factor is considered to be fully determining of employee classification.

The importance of the work done to the business, the permanency of the relationship, the degree to which the worker’s own equipment is used, the degree of control the employer has over the worker, the opportunity for profit and loss, and whether or not the worker has relationships with other employers are all factors courts have weighed when determining employee status.

Workers can be functioning as full-time employees even when they think they’re contractors, and even if the worker goes so far as to sign a contract saying they’re independent, and write off business expenses.

In the EOG claim, the plaintiff worked as an environmental analyst for nine consecutive years, compensated as a contractor with an hourly wage all the while.

“We believe he an other misclassified independent contractors of EOG are entitled to overtime and other compensation per the requirements of the FLSA and ERISA,” said Allen Vaught, an attorney with Barron and Budd, the firm representing the plaintiff.

In an interview, Vaught said he thinks there could be greater coalescence of ERISA and FLSA claims going forward, as the Department of Labor has pushed enforcement of employee classification.

“There is so much overlap in the two laws, but traditionally attorneys have tended to specialize in one area or the other,” he explained.

Back in 2000, Microsoft settled two class actions brought by temporary workers for nearly $97 million.

In Vizcaino vs. Microsoft, freelancers were not eligible to participate in the company’s defined contribution plan, which said that each regular employee was eligible to participate.

An IRS audit found the contracted employees were misclassified, because their duties were the exact same as full-time employees.

ERISA has a two-part test to determine if an individual qualifies to participate in a retirement plan. First, they must be an employee, not a contractor. And second, they must meet requirements laid out in plan documents, such as vesting periods.