Not all people who perform work for a company are employees. Instead, they may be independent contractors. Whether a person is an employee or independent contractor usually depends on the kind of work the worker performs and how the employer supervises that work. Employers sometimes label workers as independent contractors when they are actually employees to avoid having to pay payroll taxes and collect wages witholdings. Employers are also not liable for payments under workers’ compensation, unemployment insurance, disability insurance, or social security for their independent contractors.

Benefits of Being Considered and Employee: Employees are protected by state wage and hour laws (e.g., minimum wage, meal break periods), workers’ compensation, unemployment insurance, disability insurance, and social security. Employees can also seek assistance from state agencies to enforce the rights provided by these laws. For example, if an employer pays less than minimum wage, an employee can file a claim with the Labor Commissioner. Independent contractors, on the other hand, are not protected by wage and hour laws, workers’ compensation, unemployment insurance, disability insurance, or social security. Also, independent contractors are unable to turn to most state agencies for assistance, but instead have to go to court to settle wage disputes or enforce other rights. The Kletter Law Firm can help you ascertain your status as an employee or Independent Contractor, and can assist you in proceeding with any claims you have.

Determining Status: Courts and agencies use a number of factors to decide if a worker is an independent contractor or an employee. All the factors are considered together in making the determination. It can often be difficult to decide whether someone is an employee or an independent contractor.

Your employer may be misclassifying you as an independent contractor if:

• your employer exercises complete control over the way in which a worker completes a job (how, when, and where they do the work);
• you generally work under extensive supervision;
• you are trained by the employer to do their job in a certain way and may work with experienced employees to learn the job, or attend courses or meetings;
• your work is part of the day-to-day operation of the business and your work is coordinated with that of other people in the business, and the success of the business depends upon that work being done; for example, a secretary is probably an employee because his work is coordinated with one or several bosses and other secretaries, while a plumber hired by a restaurant to fix the bathroom is probably an independent contractor because during and after that task, he will have little or no interaction with any of the other employees (waitresses, cooks, etc.);
• you have to do the work assigned to you, and cannot hire assistants to perform the work you contract with the employer to do;
• you work for the employer year after year instead of finishing a job when the contract ends;
• your hours are set by the employer or you work full time instead of finishing a job when the contract ends;
• you have to work at the employer’s office, or at another site designated by the employer;
• your employer sets the order in which you must do certain tasks, particularly if the same results could be achieved by doing the tasks in a different order;
• you are paid on set dates in regular amounts;
• your employer provides tools and materials needed to complete work;
• you usually only work for one employer instead of several firms at the same time;
• your services are generally available only to your employer and not to the general public;
• your employer can fire you, or you can quit, without good cause and without notice;
• you believe you are an employee;
• you are part of the employer’s business and do not offer your services separately from the employer; and
• you perform tasks that do not require extensive skill or expertise.

If your employer has been treating you as an independent contractor and you are actually an employee, you may be entitled to recover wages, collect unemployment insurance, have social security withheld, and also recover interest, penalties, attorneys’ fees and costs.

If you feel that you have been misclassified as an independent contractor, contact Kletter Law Firm today by calling us at 415.434.4300 or you can schedule a no-fee consultation via email. We can help you in determining your status and in processing your claims. In the meantime, keep detailed records of the type and hours of work you performed. It might be helpful for you to keep a journal of the hours you work, the tasks you perform every day, and how you are supervised while doing that work.