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Misclassified as an Independent Contractor? Colby Law Firm Can Help.
Some employers wrongly classify their employees as independent contractors to avoid paying certain benefits and overtime pay. At Colby Law Firm, our dedicated team understands that it can be confusing to understand all of the different nuances of being an independent contractor, especially if you are one of the millions of individuals working within the gig economy, such as a ride-share driver or food deliverer.
Regardless of your situation, Colby Law Firm is here to help you understand your rights and fight to ensure you receive the compensation you deserve.
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Speak to an employment lawyer about your rights and options relating to your termination. Our staff is available today at 818.390.9786 in Los Angeles to screen your case and make an appointment with the appropriate attorney.
Should I be Classified as an Independent Contractor or an Employee?
You are an independent contractor if the hiring firm can only accept or reject the final results of your work. You are an employee if the company that hired you has the right to direct and control your performance.
In layman’s terms, who is calling the shots? Independent contractors are in control of all aspects of their business. Employees are not.
In California, efforts have been made to clarify who qualifies as an independent contractor and who qualifies as an employee. One recent area of focus has been online platforms that hire individuals via their portals, such as companies that provide delivery or driving services. Since this area is relatively new and still evolving, it can be tricky to know if you would qualify as an independent contractor or an employee.
An informal test can be used to determine if a person should be identified as an employee or an independent contractor. The “Right of Control” test, which has been used by a number of government agencies, including the IRS, can help simplify your status.
It can be common that someone is working under the status of an independent contractor, but legally, the nature of their work and their relationship to the employer does not qualify. Employers may have done this out of ignorance or for any number of reasons.
If you feel that your status as an independent contractor is incorrect or that your employer is abusing the independent contractor status, please reach out to Colby Law Firm for a free and confidential consultation. Getting an attorney who can assist you with your situation will help you tremendously. Contact Colby Law Firm today.
Can An Employer Tell an Independent Contractor When To Work?
No, an employer cannot tell you when to work if you are an independent contractor. Ultimately, to be an independent contractor, you must be in business for yourself and not be subject to the rules and regulations of a single employer.
Here’s an example, if you have “only one client” who dictates both your schedule and work location (be here every day by 8:00 am and stay until 5:00 pm), then you are most likely not an independent contractor.
Several government agencies have given guidelines to help determine this status with a test known as the “Right of Control” test. You are an employee if the company that hired you has the right to direct and control your performance. You are an independent contractor if the hiring firm can only accept or reject the final results of your work. This means that you cannot be told when to work if you are an independent contractor.
However, this does not mean that guidelines and requests cannot be given. For example, your hiring firm needs you to be available a couple of times a week for routine status updates, and you and the firm agree and schedule those times. This would not make you an employee.
If you feel that your status as an independent contractor is unclear to your employer or that your employer is abusing the independent contractor regulations, please contact Colby Law Firm for a free and confidential consultation. It is a somewhat gray area for some independent contractors and hiring firms. Getting an attorney who can assist you with your situation will help you tremendously.
Can I Be Titled an Independent Contractor After Being an Employee?
If you have been working as an employee and are now being moved over into an independent contractor position for the same company, this is not violating any state laws as long as it is done correctly.
To be done correctly, your new independent contractor role must truly qualify as an independent contractor position. Your employer cannot keep you in the same position with the same duties and simply change your status from employee to independent contractor. To be an independent contractor, you must not have your work, schedule, or product under the direct control of the company you are working for.
If you believe your position has not changed in any way, yet your employer has shifted you to an independent contractor, please contact Colby Law Firm for a free and confidential consultation. We can review what has occurred with you and help you determine the best course of action.
Should I be Classified as an Independent Contractor or an Employee?
You are an independent contractor if the hiring firm can only accept or reject the final results of your work. You are an employee if the company that hired you has the right to direct and control your performance.
In layman’s terms, who is calling the shots? Independent contractors are in control of all aspects of their business. Employees are not.
In California, efforts have been made to clarify who qualifies as an independent contractor and who qualifies as an employee. One recent area of focus has been online platforms that hire individuals via their portals, such as companies that provide delivery or driving services. Since this area is relatively new and still evolving, it can be tricky to know if you would qualify as an independent contractor or an employee.
An informal test can be used to determine if a person should be identified as an employee or an independent contractor. The “Right of Control” test, which has been used by a number of government agencies, including the IRS, can help simplify your status.
It can be common that someone is working under the status of an independent contractor, but legally, the nature of their work and their relationship to the employer does not qualify. Employers may have done this out of ignorance or for any number of reasons.
If you feel that your status as an independent contractor is incorrect or that your employer is abusing the independent contractor status, please reach out to Colby Law Firm for a free and confidential consultation. Getting an attorney who can assist you with your situation will help you tremendously. Contact Colby Law Firm today.
Can An Employer Tell an Independent Contractor When To Work?
No, an employer cannot tell you when to work if you are an independent contractor. Ultimately, to be an independent contractor, you must be in business for yourself and not be subject to the rules and regulations of a single employer.
Here’s an example, if you have “only one client” who dictates both your schedule and work location (be here every day by 8:00 am and stay until 5:00 pm), then you are most likely not an independent contractor.
Several government agencies have given guidelines to help determine this status with a test known as the “Right of Control” test. You are an employee if the company that hired you has the right to direct and control your performance. You are an independent contractor if the hiring firm can only accept or reject the final results of your work. This means that you cannot be told when to work if you are an independent contractor.
However, this does not mean that guidelines and requests cannot be given. For example, your hiring firm needs you to be available a couple of times a week for routine status updates, and you and the firm agree and schedule those times. This would not make you an employee.
If you feel that your status as an independent contractor is unclear to your employer or that your employer is abusing the independent contractor regulations, please contact Colby Law Firm for a free and confidential consultation. It is a somewhat gray area for some independent contractors and hiring firms. Getting an attorney who can assist you with your situation will help you tremendously.
Can I Be Titled an Independent Contractor After Being an Employee?
If you have been working as an employee and are now being moved over into an independent contractor position for the same company, this is not violating any state laws as long as it is done correctly.
To be done correctly, your new independent contractor role must truly qualify as an independent contractor position. Your employer cannot keep you in the same position with the same duties and simply change your status from employee to independent contractor. To be an independent contractor, you must not have your work, schedule, or product under the direct control of the company you are working for.
If you believe your position has not changed in any way, yet your employer has shifted you to an independent contractor, please contact Colby Law Firm for a free and confidential consultation. We can review what has occurred with you and help you determine the best course of action.
Frequently Asked Questions
What Are the Benefits of Being an Employee/ Worker vs. an Independent Contract?
Almost all worker legal protections – minimum wage, overtime, anti-discrimination, insurance, taxes, etc. – depend on the worker being an employee in the eyes of the law.
What Is the ABC Test?
The “ABC test” is used to determine if workers in California are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission (IWC) wage orders. Under the ABC test, a worker is presumed to be an employee unless the business proves each of the three elements:
- Autonomous Worker: The worker is free from the control and direction of the company in performing work, both practically and in the contractual agreement between the parties.
- Business Difference: The worker performs work that is outside the usual course of the company’s business.
- Customer of Worker: The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the company.
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Colby Law Firm
Aaron Colby is a California employment lawyer who knows how to resolve disputes. After 15 years representing companies, he started Colby Law Firm to represent employees. Aaron’s perspective and experience from being “on the other side” gives him an edge. Aaron brings his practical, focused, and relentless approach to helping employees protect their rights.
Aaron Colby
Lead Attorney and Founder Colby Law