How do I know if I have been misclassified as an independent contractor?
An independent contractor is a worker who is under contract to perform a certain type of work that typically lasts for a specific amount of time. An employee is an individual whose employer has the right to control their terms and conditions of work and the way in which tasks are completed.
The California Labor Code prohibits an employer’s willful misclassification of employees as independent contractors. Unlike employees, independent contractors are not covered by various employment laws such as the Fair Employment and Housing Act, Labor Code and Fair Labor Standards Act. As a result, they can be vulnerable to misclassification by employers looking to avoid liability for unemployment insurance, workers’ compensation, minimum wage and overtime.
There are many factors used to determine a worker’s status as an independent contractor or employee. The most significant one is the right to control. If the employer exercises control over how, when and where the worker performs their duties, then the worker is most likely an employee. Independent contractors can control the way in which they do their work.
There are many other factors considered, including amount of supervision, training provided, where the work is done, the right to work for more than one firm, the provision of work supplies and hours of work. For example, an independent contractor usually sets their own hours, but an employee typically works according to hours set by the employer. Although many of these factors are common to all areas of employment, they may vary depending on the particular facts of a case.
The law regarding independent contractors is complex, and if you suspect that you may have been misclassified, it is best to consult with an experienced employment attorney. The lawyers at McCormack & Erlich have an extensive background helping people who are misclassified recover their damages.