Attorney Jean-Claude Lapuyade

Employees commonly misclassified as independent contractors

You may have heard that rideshare company Uber has a history of misclassifying their drivers as independent contractors rather than employees. It turns out that many other companies do the same thing, causing many workplace disputes between workers and their employers. When a worker is misclassified as an independent contractor, they may not receive the wages and benefits, nor the protections, they are entitled to.

Difference between employee and independent contractor

Generally, differentiating between employees and independent contractors requires one to consider the company’s control of the worker and the services the worker provides. Deciding how to classify a worker in California will be based on the concept of whether the employer has the ‘right of control’ over the worker. Various factors will be considered including:

  • Whether the worker is supervised while working
  • Whether the employer can terminate the worker at any time
  • Whether the worker can quit at any time
  • Whether the worker’s work is a key part of the normal business
  • Whether the worker is able to make business decisions impacting their ability to profit/sustain a loss
  • Whether the worker furnishes their own equipment and tools
  • Whether the work being completed by the worker is the same as work normally done by employees
  • Whether the worker is paid a fixed salary or hourly wage

Typically, a worker is presumed to be an employee unless the employer can show that the worker is free from the employer’s control, performs work that is not part of the employer’s normal business, and has their own business involving the same type of work as they are performing for the employer.

If you have been misclassified as an independent contractor and have not received the pay or benefits you are owed as a result of this job misclassification, you should consider consulting with an employment law attorney in your area as soon as possible.