Misclassification – Independent Contractor v. Employee

In order for California’s wage and hour laws to apply, you must first be considered a “non-exempt employee” and not an “independent contractor.” Many times, employers classify workers as “independent contractors” so that they do not have to pay them the benefits that come with being an employee.  This practice is unlawful.

If you believe that you were misclassified as an “independent contractor” instead of a “non-exempt employee” you may be owed reimbursement and other damages.  Contact Abogato and speak with one of lawyers to see how we can help.

AM I AN INDEPENDENT CONTRACTOR OR EMPLOYEE?  10 QUESTIONS TO ASK YOURSELF.

As a worker in California, you can ask yourself the following questions and write your answers to help you get a sense of how you should be classified:

  1. Does my employer have the right to control the details, manner, and means of my work?
  2. Is my work “distinct”?
  3. Is my work usually done by a “specialist”?
  4. Does my work require special skills?
  5. Does my employer provide the tools I use and the place I work?
  6. Does my employer decide the length of time of my work or do I?
  7. Does my employer pay me by time or by the job?
  8. Is my work part of the employer’s regular business?
  9. Do my employer and I use the label “employee” or “independent contractor” when referring to my status?
  10. Can my employer fire me at will?

This first question is the most important question to help determine your classification.  If the employer has the right to control the details of how you perform your work, then it is likely that you should be considered an “employee” and not an “independent contractor.”

If your employer does not have the right to control the details of how your work and only cares about the end result of your work, then it is likely that you should be considered an “independent contractor.”

These are not the only factors to be considered but they help in the determination.  The answers to these questions should all be considered together.  The more your employer has the right to control, the more likely it is that you should be considered an “employee.”

MY EMPLOYER AND I SIGNED AN “INDEPENDENT CONTRACTOR AGREEMENT.”  I’M AN INDEPENDENT CONTRACTOR, RIGHT?

Not necessarily.  Signing an “independent contractor agreement” alone does not determine your status as a worker.  It helps in the determination but you should consider other factors, including the questions above.

MY EMPLOYER PROVIDES ME A 1099 INSTEAD OF A W-2.  AM I AN INDEPENDENT CONTRACTOR?

Not necessarily.  If a court or the Labor Commissioner determines that you should be an employee instead of an independent contractor, you may be owed reimbursement under wage and hour laws.

YOU MAY BE OWED REIMBURSEMENT IF YOU HAVE BEEN MISCLASSIFIED

If a court or the Labor Commissioner determines that you should be classified as an “employee” and not an “independent contractor” you may be owed a reimbursement for potential wage and hour law violations.  For example, if you worked overtime but did not receive overtime payment, your employer may have to reimburse you that amount.

If your employer intentionally misclassified you as an independent contractor instead of an employee, then your employer may have to pay penalties for every violation of wage and hour laws.

If you believe that you were misclassified call Abogato and talk to one our attorneys to see how we can help.

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