You have what you think is a great gig as an independent contractor. It pays a decent amount, and you mostly get to work at home and go into the office occasionally to meet with staff members you're collaborating with on a project.
When you go to the office, however, you overhear some of the conversations about how much someone earns and see the postings on the bulletin board. There's a picnic for employees and families. There are passes to Disneyland and the Dodgers available at a discount rate. And don't forget open enrollment for medical insurance.
You don't get any of those benefits, and you work 40 hours a week, doing all the same tasks that these colleagues do. Why aren't you entitled to them too?
That's because you signed on as an independent contractor, but are you really? California law has something to say about that.
Whether you are an employee or an independent contractor is determined by a variety of factors. The Division of Labor Standards Enforcement starts by applying the "economic realities" test laid out by the California Supreme Court in a 1989 case. Under that standard, the biggest determining factor is whether the employer controls how the work is done, and the way it is done. Are you assigned tasks and given set hours to work? You might be misclassified as an independent contractor.
What other factors are considered? They include:
- Do you perform work or is your service in a business that is different from what the employer usually does?
- Is the work part of the employers typical business?
- Who supplies the tools, technology or workspace for the person doing the work?
- Do you work under the direction of the employer or without supervision?
- Does the service you offer require you to have a special skill or training?
- How long will you be providing the service?
- How permanent is the job? Are you there as a fill in for a few weeks or for a period of time that doesn't have a set end?
Even if you sign a document agreeing that you will work as an independent contractor, that does not mean that is your correct job classification.
You could be being denied sick pay, overtime, health benefits and more. If you believe have been misclassified, an attorney will evaluate your situation and advise you how to proceed.