Independent contractors are treated differently than employees under California law. California, being a relatively pro-employee state presumes that if you’re working for somebody, you are an employee. The burden is on the employer who wants to treat you as an independent contractor to demonstrate that you are properly characterized as an independent contractor. Just because a person has a contract that says you’re an independent contractor, it’s dispositive proof that you are, in fact, an independent contractor under the law.
There are a number of factors to consider when determining if there is an employer-employee relationship, or if there is an independent contractor relationship. The main factor is whether the person or entity hiring the person has a right to control how the end result is achieved. In other words, what is the extent of the employer’s right to control the manner and means of the employee’s performance. If the employer exercises control over the person in terms of the manner and means of performing their job, then they are more likely an employee as opposed to an independent contractor.
Some of the other factors to consider are whether the employment relationship can be terminated at will, and whether the worker is engaging in an occupation or business that is distinct from the employer’s business or occupation. By way of example, that could be, for instance, if the business is a law firm and it hire somebody to come and do IT work for it here and there, that is a distinct business from the employer (meaning the law firm’s business), so that would probably favor characterizing the IT person as an independent contractor.
Another factor is whether the type of work performed is usually done under the employer’s direction, or it’s done by a specialist without supervision. If you’re an IT professional, and you’re coming in and setting up a computer for a business you might probably be properly characterized as an independent contractor because you are likely doing it without any supervision or direction by the company that has hired you.
Another factor is the skill that’s required to perform the work, and whether the business provides the instrumentalities, tools and place of work. For instance, if you do landscaping or cleaning services, and you bring your own cleaning or landscaping tools, and you do it at the hirer’s residence or place of business, then you might be considered an independent contractor. Another factor is the length of time for which the services are to be performed. An issue that comes up a lot is whether the worker, the person hired, can hire and fire other people. If you can hire and fire others, then you are probably not an independent contractor. Another issue to consider is whether payment for work is done by time, piece-rate, or job. For example, with the IT professional, if you are paid to set up a computer, and are paid for each computer that you set up, this might favor being characterized as an independent contractor.
While a written contract that says that you’re an independent contractor doesn’t necessarily mean that under the law you should be considered an independent contractor, it is taken into consideration. If the parties believe they are creating an employment relationship, or if they believe they are creating an independent contractor relationship, then that fact is also used in determining whether you should be an independent contractor or an employee.
If you believe that your employer has wrongfully classified you as an independent contractor, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....