Should I Be Classified as an Employee?

When it comes to working for someone else, workers fall into one of three categories: 1) employee, 2) independent contractor, or 3) volunteer. Often, an employee is improperly classified by their employer as an “independent contractor,” that way their boss can avoid a host of responsibilities, such as:

Employers have other incentives for misclassifying employees as independent contractors, for instance, they don’t have to provide meal periods or rest breaks, and they don’t have to reimburse workers for expenses that they incurred while performing their duties.

It’s worth mentioning that under California law, employers are not required to cover independent contractors under their workers’ compensation insurance, nor do they pay towards Social Security, disability, or unemployment.

Unlike employees, independent contractors are responsible for all of their Social Security taxes, and if they get injured on the job, they cannot file a workers’ compensation claim.

As you can see, being misclassified as an independent contractor when you should be classified as an employee can create an unnecessary burden upon you, while in contrast, it’s advantageous for the employer.

What is an independent contractor?

Unfortunately, the state doesn’t have a specific definition for an independent contractor, so we must look at the courts’ interpretations. Usually, it depends on various factors, such as:

  • Whether the worker is engaged in an occupation that’s distinct from the employer.
  • If the work is part of the employer’s principle business.
  • If the employer or the worker supplies the tools of the trade.
  • If the work is performed under the employer’s direction or supervision.
  • How long the services have been performed.
  • The permanency of the relationship.
  • How the worker is paid: if it’s by the hour or by the job.

Does it make a difference if I’m an independent contractor?

Yes, absolutely. As an employee, you’re protected by California’s workers’ compensation, anti-discrimination and wage and hour laws. But as an independent contractor, you are not afforded these protections.

Do you believe that you have been misclassified as an independent contractor and as a result, your employer is not paying you minimum wage or overtime?

In that case, contact Alan Burton Newman, PLC to file a wage claim, or to file an action to recover your lost overtime.

Let our Harvard attorney be your voice – call now for a free consultation!