Independent contractors are not entitled to minimum wage, benefits, or overtime pay. This allows actual contractors to work freely on long or short projects, setting a rate to charge based on the temporary value of their work. Real contracts find freedom in non-employee status. However, when employers start misclassifying employees as contractors, it’s a way to control and cheat them out of their employee rights.

Have you been misclassified?

Across the US and especially here in California, employees are required to make minimum wage or higher, be paid time-and-a-half for 40+ hour weeks, and must be given basic employee benefits. This is to ensure that full-time employment creates a survivable lifestyle. Denying these rights is an employer’s way of saying they don’t care if their team is living a survivable life. They would rather work people odd hours, pay nothing for overtime, and skip out on benefits costs.

It’s easy to see why some employers commonly cheat their staff by classifying them as ‘contractors’ instead of rightful employees. Fortunately, the definition of employee is determined by ‘economic reality‘. If you have been classified as a contractor but suspect this is incorrect, check these 7 signs that you should really be an employee with overtime and benefits.

Paid by the Hour, Not the Job

Contractors are typically paid by the job or sometimes by the month for services rendered. Employees are paid an hourly wage. Contractors can work fast while getting full pay for each project. Employees don’t get paid for hours they don’t work – no matter how good or fast that work might be. Contractors can fall back on other clients if an employer won’t meet their asking price. Employees can either stay or be fired.

If you are paid by the hour, you may be an employee.

Use Employer’s Tools and Supplies

Contractors are prepared to provide the full extent of their service solo. They often show up with their own equipment or provide service from their own private workstation without need for supplies from a client. Employees must use the tools and supplies provided. Employees must wear what their manager says to wear and use what and how their manager says to use it. Employees may be required to take assigned tools or check out team tools. 

If you are using company tools and supplies to do your daily work, you are more likely to be an employee instead of a contractor.

Limited to No Control Over the Work You Take

When your manager assigns tasks, can you veto? Can you say “Sorry, I only work on X, so that’s what I’ll be doing” or must you take the tasks as given?

Contractors choose their own clients and are hired per-project to provide their expertise. They may only work on vehicles, or only take jobs wiring phone lines. Even a service contractor who works with the business model determines what they do and their contract often defines that work. But an employee takes whatever tasks are given by the employer with the ever-hovering reality that not doing so could result in firing.

If you cannot choose or decline your work tasks, you are very likely an employee.

The Role is Permanent

Most contracts are not indefinite. A contractor signs on for completing a specific project or sometimes working with the company for a set amount of time. However, if your employment goes on until either party chooses to terminate it, you are not a contractor.

The Role is Essential to Business Function

Contractors provide additional services beyond the core functions of employees. So is your role part of the ‘core’ of your company’s business model? Do you do something that, if no one did it, the company would come to a full stop? If so, this is likely a sign that you are really an employee. Retail workers, for example, are employees because a store could not function without them.

Schedule is Determined by the Employer

Contractors may have hectic and demanding schedules, but only because they choose to. Contractors can take their own time to deliver results, as long as those results are available at the set deadline. Contractors usually make their own workflow to get the work done. Employees, however, can only work when the employer allows. If your schedule is charted weekly or changed on a whim, then you are far more likely to be an employee.

No Specialization is Necessary for the Work

Finally, ask yourself if your task requires special skills. Getting job training is not the same as bringing something special to the table. For example, they may provide server maintenance or product testing. If your skillset is considered in the pool of generalized skills for your role, then you are more likely to be an employee, while highly specialized individuals also have a higher likelihood of being hired as contractors.

Get Properly Classified with Aiman-Smith & Marcy

Being misclassified is a terrible violation of your rights as an employee. If your employer tells you what to do, how to do it, and sets your work schedule then you are most likely an employee – entitled to minimum wage, overtime, and benefits. If your employer is misclassifying you and others, you have options. Contact us here at Aiman-Smith & Marcy. We are dedicated to defending employee rights and holding employers responsible for intentional or even unintentional employment fraud.

Lisseth Bayona


Education and Background

I am a Los Angeles native and daughter of Salvadorian immigrants. From an early age, my parents instilled the value of hard work and education in me and my two siblings. Their perseverance enabled each of us to graduate from college and earn professional degrees.

My interest and commitment to workers’ rights have roots in my parents’ experiences as undocumented workers in Los Angeles. Witnessing the challenges they faced inspired me to pursue a career where I can help individuals confronted with similar struggles. To help someone in those moments is very satisfying. I love connecting with people and learning about their stories. I believe that dignity in the workplace is a right of all workers, not a convenience or privilege reserved for employees of a certain race, gender, age, sexual orientation, or gender identity.

Legal Experience

I received my J.D. from the University of Southern California (USC) Gould School of Law. While there, I served as a judicial extern to the Honorable Patrick J. Walsh of the United States District Court for the Central District of California, where I drafted a criminal judicial opinion. Also, while at Gould, I served as an extern for the U.S. Attorney’s Office for the Central District of California. As a Criminal Division Extern, I had the opportunity to work closely with a trial team of Assistant U.S. Attorneys on a money laundering case which further sparked my interest in litigation.

Personal Interests

In my free time, I enjoy urban vegetable gardening, traveling, and spending time with my nephew and niece. I also love to spend time at San Onofre Beach learning to surf, although admittedly, I am not very good.



Hallie L. Von Rock

Attorney (SBN 233152)

Education and Background

I moved to the Bay Area from Washington after graduating high school. I had been accepted to UC Berkeley through a program where I could defer for two years while getting my California residency and attending community college, which was significant since I was paying for college on my own. I began working for Randall Aiman-Smith and Reed Marcy in 1996 as an office manager while taking night classes. My first foray into the legal world was soon after starting at the firm when I was ready to transfer to UC Berkeley. Rather than accepting my resident status, the Board of Regents took the position that California residency required a student to be in California “two calendar years.” Randall and Reed took up my case with the same verve as they helped their actual clients and I got the chance to comb through the UC Berkeley library to read their codes and regulations to support my position. In that experience, I learned what is was like to feel helpless against a big organization and then to have dedicated attorneys in my corner to take up my cause.

After a break to pursue my major in art history, I went to UC Hastings College of Law and continued working with Randall and Reed. Having worked together now for over 25 years, we have a unique ability to work collaboratively and finish each other’s sentences. I have strived throughout my career to make a difference in the lives of our clients. At the end of the day, if I am helping someone to get compensation for losses they suffered, then I know that all the work put into a case has been worth it.

Legal Experience

I have extensive experience in civil litigation and class action cases, including conducting discovery and depositions, calculating damages analysis, preparing motions for certification, writing appellate documents, and overseeing claims administration. We have handled several class actions against retailers where plaintiffs claimed they were forced to purchase clothing to wear to work and were not compensated for these purchases, including against Abercrombie & Fitch, Hugo Boss, Armani Exchange, Uniqlo, Dollar Tree, and Ross. Recently, I was trial counsel in a defamation claim against Bank of America on behalf of a former employee who claimed the Bank blacklisted her with future employers. The jury found Bank of America liable, including for punitive damages.

Personal Interests

Aiman-Smith & Marcy has sponsored me in the Boston Marathon and New York Marathon. When I race, I often wear a “Rockstar Ronan” shirt to support research for childhood cancer through The Ronan Thompson Foundation.


University of California, Berkeley, B.A., 1999

Hastings College of the Law, University of California, J.D., 2004

Randall Aiman-Smith

Abogado (SBN 124599)

Aiman-Smith & Marcy. Oakland consumer fraud attorneys.

Educación y antecedentes

Fui afortunado. A pesar de no haber terminado la escuela secundaria o la universidad, pude -aunque con mucho trabajo- ser admitido y sobresalir en una de las mejores escuelas de derecho del país: La Facultad de Derecho de la Universidad de Berkeley. Mientras estuve allí, tuve el privilegio de ser editor de la California Law Review y miembro del Moot Court Board, asesorando en la redacción de escritos y en la defensa de apelaciones a otros estudiantes. Después de salir de la escuela de derecho, en mis primeros años de práctica, enseñé la escritura legal y la defensa de apelación en la Universidad de California, Hastings College of the Law. También, a lo largo de los años, he sido presentador en eventos de educación legal continua.

Experiencia legal

He sido abogado durante 35 años. He dedicado mi práctica exclusivamente a representar a empleados, consumidores e inversores en los tribunales estatales y federales de primera instancia y en los tribunales de apelación. Me gusta ir a los tribunales por mis clientes y he llevado muchos casos con jurado en los tribunales estatales y federales.

¿Ejemplos? En 2010, fui la abogada principal, junto con los otros abogados del bufete, en el caso Williams v. Union Pacific Railroad donde, después de cuatro años de preparación, el bufete obtuvo un veredicto del jurado de 1.670.000 dólares para una empleada afroamericana. En Rivero v. Surdyka, fui el abogado principal en el juicio y la apelación de un caso de derechos civiles que duró 15 años, incluyendo un juicio completo y tres apelaciones al Noveno Circuito, concluyendo finalmente con una sentencia para los demandantes de más de 2.300.000 dólares. Estos casos ilustran el lema del bufete: compromiso – resultados. Hay que comprometerse con un caso, a veces durante mucho tiempo, para obtener el resultado que el cliente merece.

No siempre ganamos en el juicio. Cuando eso ocurre, el compromiso significa llevar el caso al siguiente nivel y recurrirlo. En el caso Rivero, antes mencionado, eso fue lo que ocurrió: el tribunal desestimó el caso -habíamos perdido- pero apelamos y conseguimos una victoria para nuestros clientes que mantuvimos a través de dos apelaciones más. Desde entonces, el bufete ha conseguido muchas victorias en apelación que reivindican los derechos de los empleados y los consumidores.

A lo largo de los años he sido abogado de los demandantes en numerosos casos individuales y acciones colectivas. Puede sonar cursi, o difícil de creer, pero después de todo este tiempo, y después de todas las grandes experiencias que he tenido, mi parte favorita de ser abogado es cuando consigo dar un cheque a mi cliente.



Facultad de Derecho, Universidad de California, Berkeley, J.D., 1986