CA-Temporary-Workers-You-Are-Not-Contractors-If-ASM-Lawyers.jpg (2149×1159)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.

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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