There are several perks that come with being a full-blown employee at a business, agency, or organization. Unfortunately, some employers mistakenly or purposely take benefits away from workers by unlawfully misclassifying their employees as independent contractors.
This change in status can be costly to a worker, but an experienced California employee misclassification attorney from Workplace Rights Law Group can help any misclassified worker recover the benefits and damages they deserve. Our 75 years of combined experience can be your greatest weapon when you go to battle against your employer.
What Are the Benefits of Being an Employee vs. an Independent Contractor?
Being an independent contractor can come with numerous freedoms, but if you are an employee, there are several protections you can enjoy that many independent contractors cannot, including:
- The right to minimum wage,
- The right to rest and meal breaks,
- The right to workers’ compensation benefits,
- The right to workplace safety precautions,
- The right to overtime pay,
- The right to unemployment benefits, and
- The right to seek legal relief after enduring workplace discrimination.
To avoid providing these above-listed benefits, some employers wrongfully identify their employees as independent contractors. This type of misclassification is illegal and can open an employer up to stiff penalties.
If you suspect that you have been the victim of misclassification, an independent contractor misclassification attorney from Workplace Rights Law Group can right this wrong and obtain the compensation you deserve for the mistreatment.
Who Is an Independent Contractor?
If a hiring entity tells you that you are its independent contractor, don’t take that designation at face value; instead, take a look at your work rights and responsibilities to see if the independent contractor title fits. In general, there are two different tests used when determining the status of a worker.
The ABC Independent Contractor Test
In the State of California, the ABC test separates employees from independent contractors by asking the three following questions:
- When performing the job they were hired for and under the contract, is the worker free from the direction and control of the hiring entity?
- Is the worker customarily engaged in an independently established business, trade, or occupation that is the same in nature as the work the employee performs for the hiring entity?
- Is the worker performing work that is outside the usual course of the hiring entity’s business?
Workers who answer yes to all three of the questions above may be considered independent contractors. If a worker answers no to even one of the above questions, they are an employee and should receive all applicable employee benefits.
The Borello Independent Contractor Test
The Borello test was developed by the California Supreme Court in 1989, and it often applies to unusual work situations that are not subject to the ABC test. When applying the Borello test, the following are considered:
- Whether the hiring entity supplies the equipment and workspace necessary for the worker to perform their job;
- Whether the hiring entity has the right to control how the worker performs their job;
- Whether the worker identifies themselves as engaging in a business or occupation that is separate from the hiring entity;
- Whether the worker must have a special skill to fulfill their work obligations;
- Whether the service the worker provides is an integral or regular part of the hiring entity’s business;
- What type of work the worker performs;
- How the worker receives payment (e.g., whether they are paid by the job or based on the time they spend working);
- Whether the worker has an opportunity to make a profit or suffer a loss based on their managerial skill;
- Whether the worker invested in the business (e.g., purchasing materials or tools for the task);
- How long the worker has to fulfill their obligations;
- How permanent the working relationship is;
- Whether the type of work the worker does is typically performed under the employer’s direction or supervision;
- Whether the worker hires their own employees;
- Whether the worker and hiring entity thought they were entering an employment relationship; and
- Whether the hiring entity can fire the worker at will without violating a work contract.
As you can see, there are many factors to this independent contractor test, and making a determination can be a complex and nuanced process. Our skilled lawyers for independent contractors and employees can apply these factors to the unique details of your case to make sure that you are properly classified.
Misclassifying Non-Exempt Employees
Even if your employer has correctly identified you as an employee instead of an independent contractor, it may be cutting corners on its obligations by classifying you as an exempt employee. Exempt employees have many of the same rights as non-exempt employees, but they do not have rights to overtime compensation.
Exempt employees include the following:
- IT workers,
- Outside salespeople,
- Certain family members of employers,
- Government employees,
- Employees of national service programs,
- State-regulated drivers,
- Certain student nurses,
- Employees who are subject to collective bargaining agreements,
- Adult employees who earn more than minimum wage and more than 50% of their wages in commission,
- Airline employees,
- Commercial fishing crew members,
- Full-time ride operators who work for traveling carnivals,
- Professional actors,
- Certain radio or television employees,
- Employees who perform primarily creative or intellectual work,
- Certain babysitters under 18, and
- Certain personal attendants.
Once again, giving you the title of an exempt employee is not enough for an employer to duck its overtime responsibilities. Your job duties or wages must match the exempt job title before your employer can claim the exemption. You should consult the California misclassification attorneys at Workplace Rights Law Group to ensure that you receive full payment for your work.
Any employee can be a victim of misclassification, but this unlawful employer behavior happens more often in some industries. According to the Economic Policy Institute, workers who often suffer misclassification include the following:
- Home healthcare aides,
- Nail salon workers, and
- Construction workers.
However, no matter your line of work, an employee misclassification lawyer from our firm can hold your employer accountable for its failure to comply with state or federal labor laws.
If your employer breaks the law, we can help you sue them or file an administrative complaint to obtain relief. The relief you recover in a complaint could include lost wages as well as penalty payments for willful violations.
Contact an Employee Misclassification Attorney Today
If you are a non-exempt or exempt employee who hasn’t received all the compensation you earned, our legal team at Workplace Rights Law Group is ready to take legal action against your employer.
We can recoup your financial losses and ensure your employer pays any necessary penalties for negligence or misconduct. And with the individualized attention we give every client, we can make sure that any legal relief we win for you fulfills your specific needs.
Call us today or reach out to us online to schedule a consultation.