Am I an Employee or an Independent Contractor? - Aiman-Smith & Marcy
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Employee vs. Independent Contractor

In California, you are an employee if the employer:

(a) exercises control over your wages, hours or working conditions, or

(b) suffers or permits you to work.Even if you signed an employment contract that describes you as an independent contractor, or

Even if you signed an employment contract that describes you as an independent contractor, or are paid by a 1099, these factors do not determine whether you are properly classified as an independent contractor. Rather, what determines whether you are an employee or an independent contractor is the control that the employer has over the employment relationship.

For example, if the employer controls the following activities, then you are likely an employee:

(a) Job location – does the employer tell you where to go, or what order to perform the jobs, or what routes to take in going to the job locations?

(b) Work hours – does the employer have to authorize overtime, or the number of hours worked during the day, or the time that you start or end an assignment?

(c)  Working relationship – does the employer require that you work exclusively for the employer or does the employer prohibit you from hiring anyone to help you in your work?

(d) Expenses – does the employer provide the tools, equipment, or vehicle for your job or does the employer require you to submit work-related expenses for reimbursement?

Here a few job types where employees may be misclassified as independent contractors:

  • Cell site technicians
  • Alarm, security, or cable installers
  • Truck drivers
  • Information technology representatives
  • Temporary staff
  • Construction staff

The California Department of Industrial Relations offers further guidance on the differences between an independent contractor and employee, here is a link:

Contact us online or at 510-817-2711  if you believe you have been misclassified as an independent contractor and you did not receive proper compensation, such as not being paid overtime, for off-the-clock time, for on-call or waiting time, for travel time, for training, for uniform purchase or cleaning, for tool or equipment purchase, for gas mileage, for earned bonuses or commissions, for earned vacation wages, or that you were not paid the prevailing wage for government contract, or that you were not provided with meal or rest breaks, then your legal rights must be protected. Our attorneys can help you with independent contractor law questions and concerns.

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