Independent Contractor

Independent Contractor misclassification occurs when a worker is classified as an independent contractor instead of as an employee.  Employers often classify workers as independent contractors to avoid paying for workers compensation insurance, employment related taxes, or to provide substantially less benefits to the worker.

California courts have created several factors to determine whether an individual is an employee or independent contractor, including the following:

  • That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for performance of such work and in fact;

  • That the worker performs work that is outside the usual course of the hiring entity’s business; and 

  • That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Other factors to consider are:

  • How much control the business has over the worker.  If the business has a high degree of control over the worker, the worker is most likely an employee.  If the business only controls the result of the work, rather than how the work is accomplished, the worker is more likely an independent contractor;

  • Whether the work is part of the employer’s normal business; 

  • Whether the worker operates a separate business;

  • Whether the worker makes business decisions;

  • Whether the work is integral to the employer’s business;

  • Whether the work is completed under supervision;

  • Whether the worker can be fired at any time;

  • Whether the worker is paid by time or by job;

  • The skill required to complete the worker’s job;

  • Does the worker provide his or her own tools and materials;

  • The length of time to complete the service; and

  • Whether the parties believe that they have created an employer-employee relationship.

These are just some of the criteria that lead to a claim of independent contractor misclassification under California law.  Others exist.

If you believe that you were wrongfully misclassified as an independent contractor under California law, and you have not received wages and benefits that you believe you are entitled to, contact us for a free case evaluation.