It is common knowledge that many landmen, title examiners and title abstractors are not paid overtime. Many times they are classified as independent contractors and paid a flat hourly fee. Sometimes landmen are paid a salary, with no overtime pay. However, just because this is a widespread practice does not make it legal. Under the Fair Labor Standards Act, non-exempt employees are required to be paid one-and-a-half times their regular rate of pay for each hour worked above forty in any given week. When determining whether a landman, title examiner or title abstractor is owed unpaid overtime, the critical issue in most cases will be whether the individual was misclassified as an independent contractor and instead should have been classified as an employee. The definition of employee under the FLSA is particularly broad. To determine if a worker qualifies as an employee, courts in the Fifth Circuit (which includes Texas) focus on whether, as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself. This requires that courts consider five non-exhaustive factors:
- the degree of control exercised by the alleged employer;
- the extent of the relative investments of the worker and the alleged employer;
- the degree to which the worker’s opportunity for profit or loss is determined by the alleged employer;
- the skill and initiative required in performing the job; and
- the permanency of the relationship.
No single factor is determinative. Rather, each factor is a tool used to gauge the economic dependence of the alleged employee, and each must be applied with this ultimate concept in mind.
At least one federal court in Texas has found a fact issue as to whether a land manager was misclassified as an independent contractor. In Fontenot v. Brouillette, Civil Action No. 4:10-CV-01053 (S.D.Tex. 2013), a former land manager for a law firm sued her former employer alleging, among other things, a claim for unpaid overtime. The plaintiff provided evidence that the employer provided her with offices in Lafayette and Houston, supplied computers and computer software, supplied a telephone and paid her phone bill, provided her with office supplies and reimbursed her for her own purchases, reimbursed her for mileage, and paid for professional training. The plaintiff also claimed that she generally performed only routine clerical and administrative duties that did not require unique skills, and was hired on a “permanent” basis, continuing almost full-time employment for three years. The court found that this evidence was sufficient to support a finding of employee status, and denied the defendants’ motion for summary judgment.
If you work or in the past three years have worked as a landman, title examiner or title abstractor and were not paid one-and-a-half times your regular rate of pay for each hour worked above forty each week, you may have a claim for unpaid overtime and could be entitled to thousands of dollars in overtime pay, and you should speak with an experienced overtime attorney to learn about and protect your legal rights.
About the author: Josh Borsellino is a Texas attorney who handles unpaid overtime claims. Josh offices in Fort Worth, Texas, but he handles overtime cases across Texas and beyond. For a free consultation regarding your overtime questions, call Josh at 817.908.9861 or fill out his online form.