Independent Contractor: Suing for Unpaid Wages & Overtime

Many employers misclassify employees as independent contractors in an effort to save money by not having to pay certain payroll taxes, Social Security, unemployment benefits and more. Employers having independent contractors are also not required to maintain records. Independent contractors are also not able to sue employers for discrimination, unpaid wages and overtime, meal and rest breaks and more.

Is the independent contractor actually an employee? Many times, Yes.

If the courts find that the independent contractor was actually an employee and thus misclassified in error by the employer, then the independent contractor gains all rights as an employee. The newly court classified employee is then able to sue for unpaid overtime, wages, missed meal and rest breaks, and will often be compensated heavily.

Lawyers know it does not matter whether the employer or the worker both believe the worker is an independent contractor or whether the worker signed an independent contractor agreement. What matters is how California Wage and Hour law defines a worker and independent contractor.

The key issue defining whether a worker is an employee or independent contractor is the employer's right to control how the worker performs work. If the employer has a right to control the work, then the independent contractor is actually an employee as set out by California Wage and Hour laws. In June 2014, the California Supreme Court ruled (Ayala v. Antelope Valley Newspapers, Inc.) that it does not matter if the employer does not exercise that right. Any time an employer has a right to control how work is performed, the worker is an employee, regardless of any contract that was signed.

Employee Vs. Independent Contractor

Generally speaking, when an employer controls where, even if in different places, and how work is performed, then the worker is an employee. A more detailed analysis of the employment test is done by the courts using the Borello factors.

Examples of how an employer may control a worker:

• Giving the worker a schedule of work hours or scheduling work hours and days
• Telling the worker to work at specified location(s)
• Telling the worker how to do the work rather than just telling the worker the end result expected
• Telling the worker that s/he may be fired for any reason or simply firing the worker without allowing the worker to give an end result and fulfill the contract

The evidence used most by civil lawyers to prove an independent contractor was or is actually an employee are requirements set by an employer that do not give the independent contractor the freedom to do his or her job. As defined by law, independent contractors can do work where ever and however they want as long as they deliver the end result promised. For instance, an independent contractor may get hired to build a website. An independent contractor may choose to build the website at home and may schedule his or her own hours without any need or requirement to tell the employer how the work is to be performed. Hence, the contractor is independent and performing by free will.

When an independent contractor comes to the realization that s/he may have been misclassified and may actually be or have been an employee as defined by law; usually the worker will want to sue for unpaid wages and various privileges generally given to employees. If you suspect you may have been misclassified as an independent contractor, speak to a civil attorney with expertise in this matter now and call 855-200-ATTY (855-200-2889) now.

Employees misclassified as Independent Contractors sue for:

• Unpaid wages
• Unpaid overtime
• Missed meal and rest breaks
• Unemployment benefits
• Unpaid Social Security
• Unpaid taxes
• Workers' compensation
• Health benefits
• Retirement benefits
• Work expenses
• And more

When many misclassified independent contractors work for the same company, it is generally much less expensive and much more powerful to have a class action lawsuit filed against the employer. In the past, it was more difficult to get class action certification for independent contractors in California wage and hour cases. On June 30, 2014 a California Supreme Court ruling changed the litigation landscape on the part of independent contractors and made it much easier to get class action lawsuits filed. The ruling essentially made it much more feasible for a group of independent contractors to sue the employer and get compensated for damages at a lower cost. Civil attorneys from the same law firm can work on behalf of all the workers as opposed to each individual worker having to hire their own attorney from different law firms. Although in the end, the cost of the attorney(s) will be paid for by the employer. LibertyBell Law Group's lawyers in Los Angeles can be hired on a contingency basis, which means the worker does not pay for representation.

If you have been or are currently an independent contractor and would like to know if you have been misclassified and how California law defines employees and independent contractors, it is vital to speak to our Los Angeles lawyers immediately to preserve evidence and get the most compensation for your case. Call 855-200-ATTY (855-200-2889) now!