Should-You-Be-a-Contractor-or-an-Employee-with-Benefits.jpg (2149×1159)It should come as no surprise that employers are constantly looking for ways to cut corners. Especially when it comes to paying employees. Some businesses pinch pennies so tightly that they have started purposefully misclassifying employees. While you may have heard of this with exempt and non-exempt employees, the growing ‘contractor culture’ has brought to light another issue: Classifying employees as contractors.

Being a ‘contractor’ means that you are paid hourly and are fully responsible for your own healthcare, retirement, and benefits. You also pay higher taxes as a contractor. Being an employee means that you earn an hourly or salaried wage and must also be provided healthcare, retirement, and benefits. And the business pays taxes on your behalf. So it’s immediately clear why employers would make this “mistake” when deciding who is and is not a contractor.

While some people enjoy the freedom of contracting, there are thousands out there who are being denied benefits on purpose when they are really fulfilling the role of a hired employee. Not a freelance professional.

Are You Contractor or an Employee?

The question we’re here to answer today is whether you should be getting benefits and job security like an employee when you are currently classified as a contractor. Like the exempt non-exempt issue, the line is drawn based on how you are paid, treated, and what the expectations are for your work. Let’s take a look at what qualifies a person as a full-time employee and not actually a contractor with no benefits.

You Work for One Business Exclusively

One of the perks of being a contractor is the freedom to take on as many clients as you can handle. A true freelancer may work one project at a time, scheduling future projects after the end date, or work with many projects and clients at once. And they have the freedom to do this.

However, if you are a ‘contractor’ who is only contracted with one employer and do not have the freedom to seek other clients, then you’re being done a disservice. If there is no end-date to the contract, if the contract continually renews, or if you’re not allowed to seek additional contracts, you are being treated like an employee. Not a contractor.

You Are Required to Clock Your Hours

Contractors keep track of their own hours and submit an invoice. Or are paid on a progress schedule or upon work-delivery based on the terms of their contract. Tracking your own hours and invoicing is one thing. However, if your employer requires you to ‘clock in’ at certain times each day and to use their internal time clock system, you are not being given the freedom of a contractor. Especially if you are expected to actually come into the office and work at an assigned desk. Instead, you are expected to live and work like an employee. So what’s the difference?

Your Client Makes All the Decisions

Are you free to decide when to work, how to do your work, and what resources you use in the process? Even working closely with a client, contractors make their own decisions about when, how, and with what resources they work. However, if your employer makes all or most of these decisions, including telling you what software to use and which vendors to work with, they are actually treating you like an employee. A real contractor would be able to deliver the final product completed however they see fit.

You were Interviewed and Hired

Employers do interview contractors before signing a work contract with them, but there is a difference between the contractor seeking process and the employee hiring process. At least, there should be. A contractor is judged on the work they produce and the amount of time it takes them to complete that work. An employee is interviewed by their future manager, tested for company culture ‘fit’, and onboarded after hire.

If you were hired like an employee but are being paid like a contractor, something is probably amiss.

For anyone who is currently being paid like a contractor without benefits or tax coverage, be alert! If these points have raised any red flags about your current job role, it’s time to consult an employment lawyer. Employers are constantly mis-classifying their employees to avoid costly legal obligations like providing healthcare, retirement plans, PTO, and other employee benefits. If you live and work like an employee, you should also receive all the benefits of being a real employee.

However, employers seldom simply say “Oops! We forgot to officially hire you!” and fix the situation. To get the fair treatment and benefits you deserve, legal action is almost always required. Here at Aiman-Smith and Marcy, we have built our reputation on helping employees stand up to the injustices (and convenient mistakes) of their employers. You don’t have to accept being treated as an employee but denied your rightful benefits. Let us help you take on your employer and make things right. For more information or a consultation on your personal circumstances, contact us at Aiman-Smith & Marcy today!

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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