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Employee or independent contractor?

Employee or independent contractor; various state and federal agencies each look at different elements to decide Employers and the workers they hire need to be aware of rules that define whether the hired worker is an

Employee or independent contractor; various state and federal agencies each look at different elements to decide

Employers and the workers they hire need to be aware of rules that define whether the hired worker is an “employee” or an “independent contractor.” An employee is under the control of the employer as to both the result of the work as well as the methods by which the result is arrived at, while an independent contractor is only under the employer’s control as to the result, but not the methods used to arrive at the result.

It makes a difference because employees, but not independent contractors, have (a) protected rights under wage and hour and anti-discrimination laws, (b) the ability to enforce their rights with state agencies, and (c) access to worker’s compensation coverage for a work-related injury.

Which One Are You/Do You Employ?

Though various state and federal agencies each look at different elements to decide the employee/independent contractor question, they all have the general theme of “control.” Questions like these will give you an idea of where you (employee) or your company (employer) may stand on the employer/independent contractor question:

  1. Does the worker wear a work uniform?
  2. Is the method of work taught by the employer?
  3. Does the worker do similar work for anyone else the same time?
  4. Who schedules the clients the workers see?
  5. Are workers at other companies in the same industry considered employees?

Employee Tips and Takeaways

Just because your employer calls you an independent contractor doesn’t mean they are correct in doing so. An independent contractor who believes they were mis-classified can file a wage claim with the California Division of Labor Standards Enforcement (the Labor Board), or file an action in court to recover the lost overtime premiums.

Employer Tips and Takeaways

The more control you exercise over your worker, the more likely they are an employee, regardless of what you call them. To help get it right, employers should (a) look at how similar workers in the same field are characterized; (b) look at every set of elements (federal and state) and compare those to their specific work situation, and (c) beware if you changed an employee to an independent contractor to save money, and not due to less actual control.

The above does not constitute legal advice, as individual cases turn on their particular facts.

Joe Richardson, Esq. is a native son of South-Central Los Angeles, and an attorney practicing tort, contract, and labor, and employment law in Southern California for more than 15 years. He also teaches and speaks on legal issues.

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