Employee Misclassification

Employers sometimes improperly classify their workers as independent contractors. This misclassification may occur due to ignorance of employment law, but sometimes it happens because a company wishes to evade minimum wage, payroll taxes, workers’ compensation, and rest break requirements. This improper categorization has legal consequences for the workers who are protected by these laws. If you are concerned about employee misclassification, you should discuss your situation with our seasoned El Segundo wage and hour attorneys at the Calderone Law Firm.

Under California wage and hour law, rules about minimum wage, overtime, and meal and rest breaks apply only to employees and not independent contractors. The presumption is that you are a nonexempt employee unless your employer can successfully show you’re an independent contractor or that you are an exempt employee. All employers in El Segundo are required to:

• Pay minimum wage.
• Pay overtime.
• Provide meal, rest, and recovery periods.
• Maintain proper payroll records and payroll taxes
• Reimburse employees for specific business expenses.

Your employer can’t avoid the protections of state wage and hour laws by fiat; in other words, your employer can’t decide to label you an independent contractor irrespective of how you do your work or transform you into an independent contractor by requiring you to sign a contract stating you are an independent contractor. Employer misclassification of workers as independent contractors undermines the legal framework put in place to protect workers from unscrupulous or profit-oriented employers. If you are misclassified, you won’t have workers’ compensation coverage when you’re injured, and you may not have the right to family leave and not be protected against employer discrimination and retaliation.

In California, an independent contractor is somebody who provides a service under an agreement specifying she will provide a particular result for certain pay and who also keeps control over how this service is accomplished. Our attorneys represent workers misclassified as independent contractors who should have been paid as nonexempt employees with W-2s in wage and hour lawsuits for damages. When the court is trying to figure out your employment status, the company’s classification of you in a work agreement is not controlling. Instead, the court will conduct a fact-specific analysis of your working arrangement with the company; it will examine the extent to which the company had the right to control your work activities.

Factors the court will consider in the analysis include:

• The type of job and whether it is usually conducted by independent contractors or employees.
• Whether you and the company believed you were creating an employment relationship.
• Whether you were also involved in a distinct business or occupation.
• The degree of skill required for the job you’re performing.
• The amount of time you performed the work.
• Whether you or the company provided the place of work and the tools and equipment to perform it.
• The type of payment, whether it was based on a single job or time taken for tasks.
• Whether the work you performed was part of the company’s regular business.

Through a wage and hour lawsuit, you may be able to recover the following damages from your employer:

• Wages not paid due to failure to pay minimum wage.
• Overtime.
• Meal and rest break wages.
• Penalties, civil penalties and citations, and interests.

California state and federal judicial opinions make it easier for workers to be properly classified as nonexempt employees. Employee classification can come up in class action lawsuits, but it can also be an issue in individual lawsuits with smaller employers.

Employee misclassification is a notable problem for workers in El Segundo and elsewhere in the state. Numerous workers are misclassified as independent contractors or exempt and entitled to be treated as employees for purposes of payroll taxes, overtime and other aspects of employment. If you believe you may have been harmed by employee misclassification, you should call the experienced wage and hour lawyers of the Calderone Law Firm about your case. The Calderone Law Firm is a pre-eminent Southern California employment law firm. With more than 20 years of representing workers in employee misclassification suits, Vincent Calderone offers outstanding legal service. Contact us online or call us at (424) 348-8290.