Lawyers prosecuting and defending wage and hour misclassification cases (i.e., exempt/nonexempt and employee/contractor) will emphasize how fact intensive these inquiries can be. The importance of factual distinctions in litigating misclassification cases is demonstrated by two cases recently decided by the Fifth Circuit. In Cromwell v. Driftwood Electrical Contractors, a panel of the court of appeals held that workers performing cable splicing work in New Orleans were not independent contractors and were employees entitled to overtime. Contrast Cromwell with Thibault v. BellSouth, where a different panel of the court concluded that a cable splicer performing the same work in the same geographic area under similar circumstances, was an independent contractor not entitled to overtime. This table summarizes some of the relevant facts in Cromwell and Thibault.
| Cromwell | Thibault | |
| Length of engagement | 11 Months | 3 Months |
| Schedule | Two week shifts (84 hours per week) with 1 day off | Two week shifts (84 hours per week) with 1 day off |
| Pay | Fixed hourly rate (straight time) | Fixed hourly rate (straight time) |
| Assignments | Received daily assignments from BellSouth Contractor | Received daily assignments from BellSouth Contractor |
| Tools and Materials | Supplied by worker | Supplied by worker |
| Insurance | Workers provided vehicle insurance but Company provided workers compensation | BellSouth Contractor provided the workers compensation |
| Side Income | Splicing was primary business | Owned a business in another state |
| Court Conclusion | Employee entitled to overtime | Contractor not entitled to overtime. |
Despite the similarities of the work, subtle differences in the facts resulted in different outcomes. In misclassification cases over overtime exemptions or employee/contractor status, facts matter.
Full copies of Cromwell and Thibault can be accessed here and here.