Employers sometimes misclassify their employees as independent contractors in order to avoid having to comply with laws that exist to protect the rights of employees, such as the right to minimum wage and overtime pay, the right to meal and rest breaks, and the right to be reimbursed for business expenses. The problem of independent contractor misclassification has gotten worse in recent years with the rise of the “gig economy.” Rudy Exelrod Zieff & Lowe attorneys have decades of experience helping workers throughout California and nationwide to recover unpaid wages, penalties for missed meal and rest breaks, and unreimbursed business expense resulting from companies treating its workers as independent contractors. We have recovered hundreds of millions of dollars in unpaid wages for these workers and are recognized as one of the pioneers and leading law firms in this area.

How do you know if you have been misclassified as an Independent Contractor?

An employer cannot avoid California’s worker protection laws simply by classifying a worker as an independent contractor. It doesn’t matter that the worker has signed an agreement stating that she or he is an independent contractor. The law presumes workers are employees, and in order for an employer to get around that presumption and treat its workers as independent contractors, the employer must prove three things:

1. That the worker is free from the control and direction of the employer in connection with the performance of the work. This means that if your employer sets your schedule, requires you to use company equipment, or wear uniforms or company-branded clothing, or if your employer has training manuals, or supervises your work, then the employer may not be able to satisfy this requirement. If the employer exercises too much control over you, then, under California law, you are an employee, rather than an independent contractor.
2. That the worker performs work that is outside the usual course of the employer’s business. For example, if your company is in the business of delivery or transportation, then it must classify its drivers as employees. In contrast, your company may be able to classify workers providing security services as independent contractors.
3. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. This means that if you have taken steps to set up an independent business, through licensing, incorporation, etc., then you are in-business for yourself and are therefore more likely to be properly classified as an independent contractor. However, if you have not set up an independent business, and you work only for a single company, then you are more likely to be an employee.

It isn’t enough for your employer to prove one or two of these three requirements. In order for your employer to properly classify you as an independent contractor, your employer must prove all three of these requirements.

If you believe that you are misclassified as an independent contractor, or you have questions about your classification as an independent contractor, please contact us to discuss your potential claims.