Employee Misclassification Lawyer | Los Angeles & California

Employees vs. Independent Contractors: Representing plaintiff employees misclassified as independent contractors in California.

Misclassification issues:

Many employers in California try to circumvent their legal obligation to pay overtime by misclassifying their employees as independent contractors.

Independent contractors are not entitled to many of the protective employment laws that benefit employees. Consequently, employers regularly attempt to incorrectly classify their employees as independent contractors, in the hope that they will not have to pay overtime or other expenses associated with hiring employees. However, California employment law does not consider the employer’s classification to be dispositive of the employment relationship. In simple terms, even if your employer has classified you as an independent contractor, the court will look to your individual circumstances in order to determine whether you are an in fact, an employee, rather than an independent contractor.

How do the courts determine whether I am an employee or independent contractor?

The primary consideration in evaluating whether an employer-employee relationship exists is the employer’s “right to control how the end result is achieved.” The courts will look at whether the employer maintains a supervisory role and maintains control over the employee, or whether the employee has total freedom to act as he or she pleases.

Additional issues that the court will consider in determining whether a worker is an employee or an independent contractor include but are not limited to:

  • The employer’s ability to control the manner in which the work is carried out;
  • Who provides the tools and the place of work;
  • Whether the employment can be terminated at will;
  • The length of the employment relationship;
  • Whether the worker can hire or fire other workers;
  • Whether the parties have an understanding that they created an employer-employee or independent contractor relationship;
  • The degree of skill required for the work;
  • Whether the services form part of the employers ordinary business;
  • Whether the worker maintains a business that is distinct and separate from the employers business; and
  • Whether the employer directs, and supervises the employee during work.

It is important to note that the courts will weigh the above factors differently depending on the facts of the case. The analysis is fact specific and courts will not be convinced merely by a contract that classifies the worker as an “independent contractor” if the facts demonstrate the existence of an employer-employee relationship.

I think I have been misclassified as an independent contractor, what can I do?

California has a rebuttable presumption in favor of employee status. This means that the court will begin by assuming that you are an employee and the burden will be on your employer to show that you are in fact an independent contractor. There are a number of factors that go into examining and testing independent contractor status. However, the requirements are very specific and detailed. It is, therefore, common for employers to have incorrectly classified their employees as independent contractors. 

What will happen if I have been incorrectly classified as an independent contractor?

If you have been misclassified as an independent contractor and the court determines that you were, in fact, an employee, you will likely be entitled to recover many of the benefits associated with employee status. These benefits can include unpaid overtime for work that you carried out in excess of 8 hours per day or 40 hours per week. In addition, you would also be entitled to rest breaks and meal breaks in accordance with California law.

If your employer is found to have willfully misclassified you “voluntarily” and “knowingly” they may be subject to substantial penalties under Labor Code 226.8.

It is prudent to seek legal advice at the earliest opportunity in order to ensure that you maximize your opportunity to recover compensation if you have been misclassified as an independent contractor. Employment law in California is very time sensitive, and any failure to act quickly may prejudice your legal rights.



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