Oakland Misclassification & Independent Contractor Lawyer
How Does the Law Define an Independent Contractor?
The vast majority of workers who are classified as “independent contractors” are really employees who are owed significant funds by their employer due to this misclassification.
The vast majority of workers who are classified as “independent contractors” are really employees who are owed significant funds by their employer due to this misclassification. There is a strong presumption that you, as a worker, are an employee and it is up to your employer to prove that you are in fact an independent contractor. Neither the issuance of a form 1099 for tax purposes (which designates you as an independent contractor), nor any type of an independent contractor agreement (which also attempts to designate you as an independent contractor), dictates the legal relationship. The classification is instead based on the realities of the working relationship rather than its legal form.
The focus is on whether you are just hired to perform a job or whether you are supervised, or subject to supervision, during the performance of your work.
Under California law, the main factor in an independent contractor analysis is whether the company controls, or has the ability to control, the work that you are doing as well as the means and manner in which you perform your job. The focus is on whether you are just hired to perform a job such as designing a website where the focus is on the quality and timeliness of the final product, or whether you are supervised, or subject to supervision, during the performance of your work.
Supervision can take many forms and may include a manager looking over your shoulder, fixed hours of work or work at a particular location chosen by your employer, written standards (provided by your company or a customer of your company) that you have to follow, and/or performance evaluations geared to getting you to comply with the company’s expectations. Control can be quite a thorny issue because sometimes your employer may not control the details of your work but the overall working situation may be so permeated with control that the control over the details of your work may not be necessary for actual control to exist.
Though control is a primary factor, there are a number of secondary factors that may be applicable to the work situation:
- Is the person performing services engaged in an occupation or business distinct from that of the principal? If the worker is involved in an occupation or business different from the principal, then the worker appears to be running their own business and could be working for others.
- Is the work part of the regular business of the principal or alleged employer? The more the worker is perceived as a cog in the primary business of the company the more likely they are an employee.
- Is the principal or the worker supplying the instrumentalities, tools, and the place for the person doing the work? The employer normally supplies tools in an employment relationship and the contractor does in an independent contractor relationship.
- Has the person invested in the equipment or materials required by his or her task or his or her employment of helpers? A worker who invests significantly in equipment or hires their own workers is more likely an independent contractor.
- Does the service rendered requires a special skill? If licensing or special skills are required it is more likely that the person is an independent contractor.
- Is the kind of occupation, with reference to the locality, usually done under the direction of the principal or by a specialist without supervision? The less supervised the occupation the more susceptible it is to being a valid independent contracting relationship.
- Does the worker have an opportunity for profit or loss depending on his or her managerial skill? This goes to the core issue of whether or not the worker is truly running a business.
- What is the length of time for which the services are to be performed? The longer the duration, the more likely there is an employment relationship.
- What is the degree of permanence of the working relationship? The more permanent the relationship, the more likely there is an employment relationship.
- Is the method of payment by time or by the job? By time implies employment; by the job may be an independent contracting relationship.
- Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question but is not determinative since this is a question of law based on objective tests. The existence of an independent contractor agreement, or a form 1099, is one of the factors considered here.
Have You Been Misclassified as a Contractor and Missing Employee Benefits as a Result? We Can Help.
Misclassification cases can be confusing and hard to pursue without an attorney, but they also tend to have a high value if a misclassification is proven. In addition, a misclassified employee is normally not provided any meal or rest breaks which leads to additional damages, which are evaluated going back four years from the filing date.
We are attorneys who specialize in recovering wages for employees, including for non-payment of regular time wages for those who have been misclassified. We work on a contingency basis, so we don’t get paid until you get compensation. If you or someone you know has been misclassified, please call or email us. We may be able to recover the wages due, civil penalties, interest going back four years, and attorneys’ fees.
The law firm of Venardi Zurada LLP provides free initial consultations for independent contractors throughout the San Francisco/California as part of our wage and hour practice. We are experienced employment lawyers who fight hard for our clients.
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If you are an employee who feels their rights have been violated, or you need help negotiating or reviewing your employee contract, please call to speak to one of our expert Oakland employment lawyers at 925-937-3900 or submit our form.
You can be confident in relying on our zealous and effective Oakland litigators:
We have served Northern California for over 35 years.
Our attorneys have been honored with numerous accolades, including SuperLawyers, AV Rating, and Top 100 Trial Attorney Awards.
In our decades of legal service to the community, we have garnered a substantial reputation. We are respected by opposing counsel, feared by insurance companies, and followed by jurors.
We combine Big Firm experience with boutique office attention and care. Several of our attorneys have experience working for the biggest law firms in the country, including the most prominent maritime defense law firm. Our attorneys rely on that big-firm know-how but prefer the personal touch of a smaller firm, allowing us to provide individualized and attentive representation to each of our clients.
We’ve been through it, too. Attorney Mark Venardi had to personally deal with a medical malpractice injury he suffered at a time when he was working a blue-collar job on an offshore oil rig; he knows what it’s like to be a working man dealing with a personal injury. He built his way up to working for the biggest maritime defense firm in the country, before deciding to focus on helping people like himself who were hurt by negligence and mistreatment from others.
We like to fight for the underdog. Attorney Martin Zurada is an immigrant and the son of immigrants who tirelessly worked his way up through education and experience to attain the American dream. Even though he has served in large, high-level litigation law firms, he prefers helping clients directly, fighting against injustices, and securing victories for the little guy who has been wronged.
We win. We have secured multi-million dollar verdicts and settlements. In our combined tenure, we have recovered tens of millions of dollars for our clients across our broad areas of practice.
We care first and foremost about our clients. We dedicate ourselves to serve each and every client personally, and we make ourselves available to our clients around the clock.
There is no cost to you until we win. If we don’t make a recovery for you, we will not collect a fee. And all initial consultations are free of charge.
Dedicated Areas of Practice
We offer a wide range of litigation services for Oakland personal injury and employment law clients. Specifically, our areas of dedicated practice span the following issues:
Employment Law. California employers must assure proper pay to employees and comply with a variety of rules and regulations to prevent discrimination and unfair treatment of employees. We represent victims of wage and hour violations, employment discrimination, workplace harassment, retaliation, wrongful termination, and any other form of California workplace mistreatment. If you believe you were treated inappropriately at work, we can help.
Personal Injury. If you’ve been injured due to another’s negligence, you deserve compensation. That’s where we come in. As Oakland personal injury attorneys, we right the wrongs done to our clients. And we do it at our cost during the entire duration of your case. There is never any fee until we win. Give us a call if you have been hurt in a car accident, by a toxic spill or contamination, as a result of medical malpractice, due to abuse or neglect, in a maritime accident, by a vicious animal attack, or any other incident caused by someone else’s negligence.
The Sooner You Speak to an Attorney, the Stronger Your Chances for Recovery Will Become.
Contact the Oakland litigation attorneys at Venardi Zurada today, and let’s get started. We are available to talk any time, so whether you call, email or chat online, we’ll respond and set up an appointment to meet you. We have several Spanish speakers in the office and welcome the opportunity to cater our services to Oakland’s Spanish-speaking population. You pay no fee until we win for you, so you have nothing to lose by contacting our office for a free consultation. The sooner you call, the faster we can start getting results for you. Call 925-937-3900.