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What Is Employee And Independent Contractor Misclassification?
Employee and independent contractor misclassification is a common issue in California, as employers may misclassify employees as independent contractors in an attempt to avoid paying taxes, overtime, and other benefits. When an employee is misclassified as an independent contractor, they may be entitled to recover damages and other remedies.
To determine whether an individual is an employee or an independent contractor in California, the state uses a multi-factor test that considers several factors, including:
- Control: The degree of control that the employer has over the individual’s work and the means used to perform the work.
- Right to Control: Whether the employer has the right to control the manner and means of the individual’s work.
- Level of Skill Required: The level of skill required to perform the work, and whether the individual has specialized skills.
- Hiring of Assistants: Whether the individual hires their own assistants or the employer provides them.
- Continuity of Work: The length of time the individual will work for the employer.
- Method of Payment: Whether the individual is paid by the hour, by the project, or by commission.
- Tools and Equipment: Whether the individual provides their own tools and equipment, or the employer provides them.
- Place of Work: Whether the individual works on the employer’s premises or off-site.
- Opportunity for Profit or Loss: Whether the individual has the opportunity for profit or loss based on their own efforts.
At-will employment also means that an employer can fire an employee for any legal reason (or no reason at all). A fired employee may believe that his or her firing was illegal, but the determining factor is whether the employer based their decision to fire the employee on illegal grounds.
Myths And Facts About Employee & Independent Contractor Misclassifications
Myth: Independent contractors can be treated just like employees.
Fact: Independent contractors must be treated differently from employees in terms of benefits, taxes, and legal responsibilities.
Fact: Whether a worker is entitled to overtime pay and other benefits depends on their classification as an employee or independent contractor, and not on their job title or agreement with the employer.
Myth: Any worker who is paid on a freelance or project basis is automatically an independent contractor.
Fact: The nature of the work and the degree of control exercised by the employer over the worker are the determining factors in classification, not the type of payment arrangement.
Myth: Independent contractors do not require workers’ compensation insurance.
Fact: Employers may still be liable for workplace injuries sustained by independent contractors, and in some states, are required to carry workers’ compensation insurance for them.
Myth: As long as a worker is paid as an independent contractor, they cannot sue the employer for employment discrimination.
Fact: Independent contractors can still bring lawsuits for employment discrimination, and in some cases, may have greater legal protections than employees.
What Rights Do Independent Contractors Have In California?
Independent contractors in California have some rights, but these rights are more limited than those of employees. The rights that independent contractors have in California include:
- Right to control their own work: Independent contractors have the right to control the manner and means by which they perform their work, subject to the terms of their contract with the hiring company.
- Right to set their own hours: Independent contractors can set their own hours and work schedule, as long as they meet the deadlines agreed upon in their contract.
- Right to provide services to multiple clients: Independent contractors are free to work for multiple clients at the same time, unless their contract with one client restricts them from doing so.
- Right to negotiate their own rate: Independent contractors have the right to negotiate their own rate of pay, as long as it is not below the minimum wage established by law.
- Right to receive payment for their work: Independent contractors are entitled to receive payment for the work they perform, according to the terms of their contract.
What Are Examples Of Employees Who May Be Incorrectly Classified As Independent Contractors?
Employees who are incorrectly classified as independent contractors can be found in a variety of industries and job types. Some common examples include:
- Delivery drivers
- Cleaning or maintenance workers
- Temp or seasonal workers
- Construction workers
- Sales representatives
- Home health care providers
- Freelance or gig workers in creative industries
- Computer programmers or IT professionals
In many cases, employees who are classified as independent contractors are actually entitled to the same benefits and protections as employees, including minimum wage, overtime pay, and unemployment insurance. Misclassifying employees as independent contractors can be costly for employers, as they may be responsible for paying back wages and benefits, as well as fines and penalties. An experienced employment law attorney can help employees understand their rights and options and can assist in pursuing a claim for misclassification.
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If you believe you’ve been misclassified as an independent contractor, you may be entitled to recover damages for lost wages and benefits, as well as other remedies, such as reimbursement for expenses and penalties. At MAG, we’re experienced employment attorneys who can help the you determine whether you’ve been misclassified and guide you through the legal process of pursuing a claim.
Companies are not allowed to wrongly call their workers “independent contractors.” If a worker is wrongly classified, they may miss out on important benefits like minimum wage, overtime pay, and health insurance. If you work mostly for one company but are called an independent contractor, give us a call to schedule a free consultation with one of our attorneys. We can help you determine whether a misclassification has occurred and give you an estimate of the damages you could receive in a successful lawsuit.
Through our many years of experience, we insist that you don’t take on such an overwhelming situation alone. Whether you need a California employment lawyer for Wrongful Termination, Breach Of Contract, Workplace Retaliation or other employment dispute, we’re here to help you with your employee/independent contractor misclassification claim. If you or someone you know has claims about these employment scenarios, call us at 1-844-493-9455 (4WE-WILL) or fill out our contact form today.