Employees or Independent Contractors?

Many employers in California have attempted to avoid the laws that protect employees by erroneously classifying their employees as "independent contractors." However, under California law, just because an employee is called an independent contractor (and even if the employee has agreed that he is an independent contractor in the past), does not mean that he is an independent contractor for the purpose of calculating meal periods, rest breaks, payment for mileage and uniforms, and other items.

In fact, California law presumes that workers are employees for the purpose of claims arising under the Labor Code. This means that employers must affirmatively prove that workers are independent contractors.

The principal test of an employment relationship is whether the person receiving the service has control over the manner and means of accomplishing their desired result. While control is the key factor, courts also consider the following secondary factors in addressing this issue:

  • whether the person who performs services is involved in a distinct occupation or business;
  • kind of occupation, whether the work is usually done by a specialist without supervision or under the direction of a principal;
  • skill required in the particular occupation;
  • whether the principal or the worker supplies the tools, instrumentalities, and the place of work for the person doing the work;
  • the length of time for which the services are to be performed;
  • the method of payment, whether by the time or by the job;
  • whether or not the work is a part of the regular business of the principal; and
  • whether the parties believe they are creating the relationship of employer-employee.

At Sundeen & Salinas we are very familiar with these tests. We have represented numerous employees who were misclassified as independent contractors when they should have been classified as employees.

If you have a question about your legal rights, or wish to speak to an attorney about your situation, please call us today at 510-663-9240, or contact us online to discuss your legal rights.

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