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Have you been classified as a contractor when you are actually an employee?

On Behalf of | Jul 7, 2022 | Workers' Compensation |

No matter what industry you work in, it’s vital to know your rights and receive the benefits you deserve. Some employers may try to hire you as a contractor to save money and avoid giving you the benefits you deserve. But it is illegal to treat you as a contractor if you actually fit the status of an employee under the law.

Criteria to determine worker status

According to the California Employment Development Department, the following questions are a good way to figure out whether you should be classified as a contractor or an employee.

  • Do you work under direct supervision? Contractors are usually free to work on their own time and fulfill their work in their own way. If someone is monitoring you closely and teaching you to do the work a certain way, you are probably an employee.
  • Is your employment at will? Can your employer fire you at any time? If your employment is at risk at all times, you are likely an employee. Contractors fulfill the duration of their contract; they are not eligible for termination without breach of contract.
  • Is the work you do essential to the everyday running of the business? If the work you do is normal or necessary for the business to run, you may be an employee. If you are performing a sporadic service, you are probably a contractor.
  • Do you have a separate business and the ability to take on other clients? If so, you are most likely a contractor.
  • Are you able to make important decisions that affect your profits? This might include decisions about insurance, use of equipment or use of workspace. If so, you may be a contractor.
  • Are there employees who do the same work as you? If so – even if you are working for the company only on a temporary basis – you are likely an employee. For clarification, a company may contract work out to a temporary employment agency. In this scenario, you would be an employee of that temporary agency, but still a contractor of a company.
  • Do you bring your own supplies? If you invest in materials necessary to do your job, you are likely a contractor. An employer would provide these for an employee.
  • Is your work considered unskilled or semi-skilled labor? If so, the California Unemployment Insurance Appeals Board has declared that the law is meant to protect this category of workers, which means you are likely an employee.
  • How are you paid? Contractors bill per service, whereas employees are paid for the work they do at a certain rate – either hourly or salaried.
  • Do you believe that you are an employee? While belief itself doesn’t prove anything, intent of both parties matters. If your employment status resulted from miscommunication, it is worth a conversation.

What misclassification could mean

Employees receive benefits that contractors do not, which can include medical, dental, disability, holiday pay, overtime and other perks. In addition, only employees are entitled to workers’ compensation, so if you’re injured on the job, worker classification matters. Contractors who suffer injury at work may still be able to seek compensation for their damages, but the process would involve a personal injury lawsuit.

If you have been injured at work, it may be worth talking to a lawyer experienced in both workers’ compensation and personal injury law. They can help you determine your worker classification and assess the strength of your case.

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