What Is the Difference Between an Employee and an Independent Contractor?
California follows a rule known as the ABC test for classifying workers. This test starts with the presumption that most workers should be classified as an employee. The burden is on the employer to prove that the worker should be instead classified as an independent contractor.
The ABC test is so-named because it has three parts. The first part looks at whether the worker is “free from the control and direction of the employer’s business in connection with the performance of the work.” The second part determines if the work performed is “outside the usual course” of the employer’s business. The third and final part examines if the worker is “customarily engaged in an independently established trade, occupation, or business of the same nature” as the work performed. The worker must satisfy all three parts to be properly classified as an independent contractor.
Complicating matters, however, is that some professions and types of workers are classified under a different standard known as the Borello. This test considers 11 separate factors, but the main emphasis is on determining if the employer has the “right to control” the employee’s work.
What Happens If I Am Misclassified?
An employee is entitled to a host of legal protections under federal and state labor law. This includes the right to a certain minimum wage, time-and-a-half pay for overtime, worker’s compensation insurance, and meal and rest breaks during the working day. A company is not required to provide any of these benefits to independent contractors. So misclassification can mean you, as the worker, stand to lose quite a bit of money.
If you have been misclassified, you can file a civil lawsuit against the employer. If successful, a court can award you any back amounts owed for unpaid minimum wages or overtime. If the misclassification was intentional–and not the result of a “good faith” mistake–the court can even award liquidated damages equal to the amount of any unpaid wages plus interest.
So if you need legal advice or representation from a qualified Walnut Creek independent contractor misclassification lawyer, contact Venardi Zurada, LLP, today to schedule a consultation. There is no charge to speak with us, and if we take your case, you will not owe us anything until we collect money for you.
