Do 1099 Subs Get Overtime? A Crew Owner's Plain Answer

The federal overtime law is the Fair Labor Standards Act (FLSA). According to the Department of Labor, unless they're exempt, employees covered by the law must get overtime pay for hours worked over 40 in a workweek, at not less than one and a half times their regular rate.

That law covers employees. The DOL's Fact Sheet 13 says independent contractors are in business for themselves and aren't covered by the FLSA, so they don't get its overtime protections.

So a real independent contractor isn't owed federal overtime. The catch is the word "real." The same fact sheet says what you call a worker doesn't decide it. Getting a 1099, getting paid off the books, or signing an independent contractor agreement doesn't by itself make someone an independent contractor under the FLSA.

The DOL looks at the "economic reality" of the whole working relationship: is the worker in business for himself, or does he depend on you for work? No single factor settles it. The fact sheet lists six factors. Here's how they tend to show up on a job site. These are questions to think about, not a test you can score yourself:

• Can he make or lose money on how he runs his business? Does he bid his own jobs, hire his own helpers, buy his own materials, and turn work down when he's busy? Or does he just work the hours you give him?
• Whose investment is it? Owning his own truck, trailer and equipment to run a business points one way. Buying a few hand tools for your job doesn't count for much.
• How permanent is it? A specialty sub who comes in for one phase of a project and works for other contractors is different from a guy who's been on your crew every day for two years.
• Who controls the work? Who sets his schedule, his start time, his pay rate? Can he work for other people?
• Is the work a core part of your business? A laborer on a masonry crew doing masonry work is doing exactly what your company sells. A specialty trade you rarely need is different.
• Is he using his skill to run a business? Being highly skilled isn't enough. The question is whether he markets that skill and runs it like a business.

The IRS has its own guidance for tax purposes. Its page on independent contractor or employee groups the evidence into three categories: behavioral control, financial control, and the type of relationship. The questions overlap a lot with the DOL list.

One more thing. The federal rules on this have been changing. Fact Sheet 13 currently notes a rule from 2024 that is being challenged in court, enforcement guidance from 2025, and a new proposed rule announced in February 2026. Check the DOL page for where things stand when you read this.

There's no federal limit on the hours an independent contractor can work. His contract and his own business decide that. And for employees, the DOL says the FLSA doesn't cap hours for workers 16 and older either; it requires overtime pay past 40.

But hours can be a signal. A "sub" working a full-time schedule you set, for your company only, week after week, looks a lot like the control and permanence factors above. Those are the kinds of facts that can tip the answer.

Whatever the answer is for any one guy, good records make every conversation easier. Here's what I'd keep:

• Daily hours for everybody, W-2 and 1099, written down the day they're worked. Not rebuilt on Thursday from texts and memory.
• Who approved the hours. A foreman's sign-off on the week.
• Receipts for anything a guy bought for the job.

For employees, the FLSA has recordkeeping rules. DOL Fact Sheet 21 lists what employers must keep for non-exempt workers, including hours worked each day and total hours each workweek. It also says any timekeeping method is acceptable as long as it's complete and accurate. Many owners keep the same daily record for their subs too, so there's no gap if a question ever comes up.

That's the part My Guys Time handles. W-2 guys and 1099 subs go on the same weekly crew board, hours get logged daily, the foreman approves the week, and receipt photos ride on the card. It shows weekly hours, hours past 40, and a simple gross pay estimate. It doesn't calculate taxes, deductions, net pay, or run payroll, and it doesn't decide who's an employee. The office hands the approved hours to whoever runs payroll, and they take it from there. See how that works for a GC's W-2 crew and 1099 subs, or read more on how contractors track crew hours.