Independent Contractors

Bay Area Attorneys for Misclassified Independent Contractors

How Does the Law Define an Independent Contractor?

An independent contractor misclassification violation is just one of many types of unjust or prejudicial treatments employees face on the job and that we fight in court. For more about our Employment Law legal services, please see our “Bay Area Employment Law Attorney” page. Or for other types of employee work-related issues we fight for our clients, see the links to the right.

The vast majority of workers who are classified as “independent contractors” are really employees who are owed significant funds by their employer due to this misclassification.

The vast majority of workers who are classified as “independent contractors” are really employees who are owed significant funds by their employer due to this misclassification.  There is a strong presumption that you, as a worker, are an employee and it is up to your employer to prove that you are in fact an independent contractor.  Neither the issuance of a form 1099 for tax purposes (which designates you as an independent contractor), nor any type of an independent contractor agreement (which also attempts to designate you as an independent contractor), dictates the legal relationship.  The classification is instead based on the realities of the working relationship rather than its legal form.

The focus is on whether you are just hired to perform a job or whether you are supervised, or subject to supervision, during the performance of your work.

Under California law, the main factor in an independent contractor analysis is whether the company controls, or has the ability to control, the work that you are doing as well as the means and manner in which you perform your job.  The focus is on whether you are just hired to perform a job such as designing a website where the focus is on the quality and timeliness of the final product, or whether you are supervised, or subject to supervision, during the performance of your work.

Supervision can take many forms and may include a manager looking over your shoulder, fixed hours of work or work at a particular location chosen by your employer, written standards (provided by your company or a customer of your company) that you have to follow, and/or performance evaluations geared to getting you to comply with the company’s expectations.  Control can be quite a thorny issue because sometimes your employer may not control the details of your work but the overall working situation may be so permeated with control that the control over the details of your work may not be necessary for actual control to exist.

Though control is a primary factor, there are a number of secondary factors that may be applicable to the work situation:

  1. Is the person performing services engaged in an occupation or business distinct from that of the principal?  If the worker is involved in an occupation or business different from the principal, then the worker appears to be running their own business and could be working for others.
  1. Is the work part of the regular business of the principal or alleged employer?  The more the worker is perceived as a cog in the primary business of the company the more likely they are an employee.
  1. Is the principal or the worker supplying the instrumentalities, tools, and the place for the person doing the work?  The employer normally supplies tools in an employment relationship and the contractor does in an independent contractor relationship.
  1. Has the person invested in the equipment or materials required by his or her task or his or her employment of helpers?  A worker who invests significantly in equipment or hires their own workers is more likely an independent contractor.
  1. Does the service rendered requires a special skill?  If licensing or special skills are required it is more likely that the person is an independent contractor.
  1. Is the kind of occupation, with reference to the locality, usually done under the direction of the principal or by a specialist without supervision?  The less supervised the occupation the more susceptible it is to being a valid independent contracting relationship.
  1. Does the worker have an opportunity for profit or loss depending on his or her managerial skill?  This goes to the core issue of whether or not the worker is truly running a business.
  1. What is the length of time for which the services are to be performed?  The longer the duration, the more likely there is an employment relationship.
  1. What is the degree of permanence of the working relationship?  The more permanent the relationship, the more likely there is an employment relationship.
  1. Is the method of payment by time or by the job?  By time implies employment; by the job may be an independent contracting relationship.
  1. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.  The existence of an independent contractor agreement, or a form 1099, is one of the factors considered here.

Have You Been Misclassified as a Contractor and Missing Employee Benefits as a Result? We Can Help.

Misclassification cases can be confusing and hard to pursue without an attorney, but they also tend to have a high value if a misclassification is proven.  In addition, a misclassified employee is normally not provided any meal or rest breaks which leads to additional damages, which are evaluated going back four years from the filing date.

We are attorneys who specialize in recovering wages for employees, including for non-payment of regular time wages for those who have been misclassified.  We work on a contingency basis, so we don’t get paid until you get compensation.  If you or someone you know has been misclassified, please call or email us.  We may be able to recover the wages due, civil penalties, interest going back four years, and attorneys’ fees.

The law firm of Venardi Zurada LLP provides free initial consultations for independent contractors throughout the San Francisco/Bay Area as part of our wage and hour practice. We are experienced employment lawyers who fight hard for our clients.

GET A FREE CASE REVIEW

If you are an employee who feels their rights have been violated, or you need help negotiating or reviewing your employee contract, please call to speak to one of our expert employment law attorneys at (935) 937-3900 or submit the form to the right.

When litigation or mediation is involved, and we are able to take your case, there is never any fee or expense to you of any kind until you get paid! That means we pay all litigation costs which you will not be required to pay back, and we only get paid if you get paid.

We have four offices to serve you in San Francisco, Oakland, San Rafael and Walnut Creek, and serve clients throughout the entire San Francisco Bay Area including the entire Silicon Valley and throughout California.