Many businesses hire temporary employees during their busy season or to handle specific large projects that are too much for the regular staff. Temporary work ranges very widely and can be anything from seasonal laborers to tax-season accountants. However, there is a great deal of confusion and sometimes outright fraud as to whether temporary hires are considered legally employees or contractors.
Contractors are independent professionals who supply a needed outcome for the business and take care of their own taxes, benefits, and are not necessarily paid hourly wages based on employee rights laws. Employees, on the other hand, are those who perform all the tasks of an employee, fill the role of an employee, and are warranted all the benefits, protections, and fair hourly pay according to employee rights. No matter how temporary your position may be.
So for all temporary workers out there, it is vital to know whether you are being mis-classified as a contractor so your employer can save a few bucks and work you without breaks, benefits, or taxation. You may be underpaid. You may be undervalued. Your employer may be doing it on purpose to cheat you and the government out of money. And here’s how you can tell.
CA Temporary Workers: You Are Not Contractors If… | ASM LawyersYou Are An Employee, Not a Contractor IF…
– Your Schedule is Dictated by the Employer
A contractor is judged on the work then submit when it is submitted. Their hours are primarily their own and they choose when and how to spend their time to achieve the contracted goals.
An employee, on the other hand, is subject to an employer’s schedule. If your employer tells you when to be at your desk, when to be available, and when you are permitted to stop working, you are an employee. Not a contractor.
– You Are Told Where to Work and What Tools to Use
Contractors traditionally use their own tools and often work from home or wherever they prefer. Sometimes contractors come into the office to work with an employer during specific hours, but these hours are more likely to be meetings and team collaboration.
Employees are told where to sit, which workstation to use, what software is required, and the routine to use to meet expectations. Employees are almost always supplied with the tools they will use and instructed where, when, and how to use it. If this sounds like your position, you are an employee, not a contractor.
– Your Work Process is Evaluated and/or Critiqued
A contractor turns in work when it is completed, or meets for mid-project consultations to ensure the work is turning out the way their temporary employer had intended. But their work process is their own.
An employee is evaluated on their work process and the employer makes it their business to instruct or optimize the way the work is done. An employee may be critiqued and further employment may be decided based on work performance, process, and whether the employer is satisfied with how the work is done.
If your employer is micromanaging how you work or is providing instruction or evaluation, you are an employee. Not a contractor.
– You Are Not Free to Work for Other Employers during “Work Hours”
Contractors can work as many contracts at once as they can handle. Outside of not double-booking meetings, their time is their own. And if they finish the day’s work on one contract, they can work for someone else for the rest of the day.
Employees, however, have set “work hours” and are expected to dedicate all of their time during those hours to tasks that benefit the employer. Because they are being paid for their time, not the specific tasks. If you could not finish early and work on another job, you are an employee, not a contractor.
– Your Temporary Work is Indefinite
Contractors have a set completion criterion for the contract, whether that is the end of a project or a period of time.
Employment may also be based on a duration of time, but if your temporary employment is indefinite so that you cannot make plans beyond the current job, you are an employee. Not a contractor.
– Your Work is a Routine Part of Regular Business Tasks
Finally, you can look at the nature of your work. A contractor is usually brought in to do something the normal team does not or cannot do, like build a website or remodel the break room.
An employee performs tasks that are essential to the everyday functions of the business. From answering customer service calls to filing and curating data, you are an employee if you are doing regular work tasks even if your job only exists when those work tasks are expanded due to the busy season.
Have you been misclassified as a contractor when your role is really one of an employee? This is a common problem for temporary workers and many employers do this on purpose to save money and work their temporary staff harder than is legal.
Here at Aiman-Smith and Marcy, we strive to protect the rights of California employees no matter what the circumstances. If you have been misclassified, denied benefits, or otherwise mistreated due to the temporary nature of your position, contact us today. Employers who do this never stop at just one person. Let us help you make the difference, earning your hard-won back pay and stopping your employer from misclassifying hundreds of others in the future.
