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Am I really an independent contractor?

On Behalf of | Apr 24, 2023 | Employee Rights

Being an independent contractor has become rather common these days. However, if you work in California and your employer has classified you as an independent contractor instead of an employee, you miss out on important benefits and protections.

For example, employees have the right to receive minimum wage, overtime pay, meal and rest breaks, workers’ compensation, unemployment insurance and protection from discrimination and retaliation. Independent contractors do not have these rights.

This has led many to wonder if they have been wrongly categorized as independent contractors.

Independent contractor versus employee

Your employer cannot simply decide your status based on their preference or convenience. Instead, federal and California laws have rules that dictate how employees should be classified.

The ABC test

One of the most important tests is the ABC test, which presumes that a worker is an employee unless the employer can prove three things.

The first (A) prong is whether the worker has freedom from the control and direction of the employer in how they do their job.

The second (B) prong of the test asks whether the worker performs duties that are not part of the usual course of the business.

Finally, the “C” prong is nature of the work you do and whether that work is normally done by independent contractors or independent tradespeople.

If your employer cannot meet all three conditions, then you are likely an employee and not an independent contractor.

Options for misclassified employees

So, what can you do if you think you have been misclassified as an independent contractor? You have several options to fight for your rights and benefits. You can file a wage claim with the California Labor Commissioner’s Office to recover unpaid wages and penalties. You can file a lawsuit against your employer in court for violating labor laws.

You can file a complaint with the California Division of Occupational Safety and Health if your employer has violated workplace safety standards. You can file a claim for unemployment benefits with the California Employment Development Department if you have lost your job or had your hours reduced.

You can also file a complaint with the Internal Revenue Service or the California Franchise Tax Board if your employer has not withheld or paid taxes on your behalf.

These are some of the ways you can fight back against misclassification as an independent contractor in California.

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