What Is The Difference Between An Independent Contractor And An Employee In California?
Under California law, every person who is providing labor or services for someone else is going to be considered an employee, rather than an independent contractor, unless the employer can demonstrate that there are three conditions are met. First, the person must be free from the control and direction of the company when performing the work, both by contract and in fact. This means they are absolutely not controlled by the boss on how they do their work. They are hired to do a task but the hiring company doesn’t tell them how to do it. The next condition is that the person performs work that is outside the usual course of the company’s business. This means, if you are an accounting firm and you are hire an accountant, then that accountant is probably going to be an employee because they are doing work that is in the course of your business. On the other hand, if you’re hiring a plumber to come in and fix your sink, they are not doing what your business does, and are more likely and independent contractor.
The final condition is that the worker must be customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. Using the example of a plumber, you are not the only client they have. If, for you, they do plumbing, but for everyone else they provide accounting services, then they would probably be an employee. If it is a plumbing professional who does professional plumbing work for other people too, then they are engaged in an independent calling and an independent trade.
What if I signed an agreement stating that I am an independent contractor but I may have been misclassified?
An agreement may be evidence that you are an independent contractor, but it doesn’t necessarily make you an independent contractor. Under the law’s current test, you would still need to satisfy the three conditions to be classified as an actual independent contractor. Your contract would shed more light and be strong evidence, but just the contract alone does not make a person an independent contractor. I would suggest consulting with a qualified employment lawyer in your area to evaluate whether or not you have a good, solid claim. Once you’ve figured whether you have been misclassified, then you can bring a civil suit in court. You can also file a case with the California Labor Commissioner’s office and, under certain circumstances, bring a lawsuit on behalf of multiple employees who were aggrieved in the same fashion, seeking all sorts of penalties and damages.
Are independent contractors covered by California’s overtime and other wage and hour laws?
A worker who is properly classified as an independent contractor is not going to be covered by California’s overtime and wage laws because those are exclusive to employees.
I was misclassified as an independent contractor. What damages would I be entitled to?
There are a wide variety of potential damages when you are misclassified. Some of the most common would include lost overtime and unremembered business expenses. If someone misclassified you as an independent contractor and says that you need to work 50 hours a week to complete this work, you might lose out on 10 hours of overtime a week and you may lose out on meal and rest breaks. You may have to expend money on your own and not be reimbursed by the employer. All of those are things you can recover back from the employer in a case for misclassification. There are also other potential penalties. Claims brought through the Labor Commissioner’s office or through California’s private Attorney General acts could raise some significant potential penalties, in some cases up to twenty-five thousand dollars, depending on the nature of the misclassification.
Can my employer fire me for reporting independent contract misclassification in California?
You are protected against unlawful employment retaliation. There are provisions of the Labor Code that prohibit retaliation and discriminatory conduct for making legitimate employment claims. These could give rise to retaliation penalties of up to ten thousand dollars per violation.
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