San Diego Misclassification Attorney
Does your employer treat you like an employee but without any of the benefits?
Misclassification is a serious issue whether it’s done intentionally or not. Employees labeled “exempt” or “independent contractors” miss out on many benefits like legally required breaks, overtime pay, health insurance coverage, unemployment, and more. As an employee, these benefits should be a part of the compensation you receive for the work that you do.
Some unethical companies deliberately misclassify their employees in order to save money. If your employer has misclassified you as an “exempt” employee or an independent contractor, you could be missing out on higher pay and better benefits.
The law defines specific conditions for classifying people as exempt or non-exempt employees or independent contractors. California especially has strong workplace protections for workers who classify as employees. If you suspect that you’ve been misclassified by your employer, you have the right to fight to get the compensation you legally deserve.
The legal team at Harlan Law fights every day for the rights of workers to get their full pay. Call our San Diego office today at (619) 870-0802 for a free consultation of your case. Our attorneys work on a contingency fee basis so you don’t pay us until we recover your wages for you.
Benefits and Protections of Employees
Both state and federal laws offer legal protections and rights for employees. While federal laws establish a baseline across the whole country, California has additional laws that make it the most worker-friendly state out of them all. This includes protecting undocumented workers.
As an employee under the law, you receive many benefits including:
- Minimum wage requirements
- Overtime and double-time pay
- Required sick pay and rest breaks
- Family and medical leave or paid vacation days
- Unemployment benefits if you’re let go from your job
- Workplace safety and anti-discrimination policies
- Eligibility for workers’ compensation benefits if you’re injured at work
- Employers covering part of your Social Security and Medicare taxes
Exempt employees and independent contractors miss out on many of these benefits and protections. But the law has rules for who counts as an employee. If your employer has misclassified you, you could have a legal claim for proper compensation.
Misclassification of Exempt vs. Non-Exempt Employees
Misclassification isn’t always about employee versus independent contractor. You can also be misclassified as an “exempt” employee when you should actually be “non-exempt.”
Non-exempt employees get overtime, rest and meal breaks, and minimum wage. Exempt employees do not get overtime or breaks but must be paid at least twice the minimum hourly wage for the work that they do.
Companies may misclassify their employees as exempt to save money and get more productivity out of their workers at the same time. Your employer might make you work overtime without paying you an overtime rate. They may ask you to work through your breaks. This is illegal under the law. You deserve a workplace that respects your rights.
Most exempt employees work in executive, administrative, or professional white-collar roles. They can be independent contractors, outside consultants or salespeople, or outsourced computer or technology professionals. Many of them are paid on a salary, not an hourly basis.
To qualify as an exempt employee in California, you must:
- Dedicate at least 50% of your job to executive, administrative, or professional duties,
- Regularly exercise your own discretion and independent judgment on the job, and
- Earn a salary at least twice the California state minimum wage for a 40-hour workweek.
All other employees are considered non-exempt employees.
What if your employer has falsely classified you as exempt when you should be non-exempt? They may owe you compensation for unpaid wages that you legally deserve. The best way to tell for sure is to talk to a local employment lawyer who can help.
When your lawyer files a claim based on an exemption misclassification, you can recover damages based on what your employer should have paid you. That could include:
- Unpaid overtime or double time, plus interest
- Payment for rest or meal breaks that were never provided
- Attorney’s fees, litigation costs, or court costs you may have incurred
Keep in mind that your exemption status can always change along with your job duties. If your position changes and you no longer exercise independent judgment or dedicate most of your job to administrative work, your status should change from exempt to non-exempt.
Misclassification of Independent Contractors vs. Employees
Employees and independent contractors get very different treatment under the law. If your employer classifies you as an independent contractor, you don’t have access to many of the benefits that non-exempt employees get to enjoy. These benefits include:
- Unemployment benefits if laid off from work
- Workers’ compensation benefit if you’re injured at work
- Minimum wage, sick and overtime pay, and rest breaks
- Eligibility for employee health care coverage
- Extended family and medical leave
- Social Security and Medicare taxes paid partly by your employer
- Greater protection from harassment, discrimination, and other workplace misconduct under federal, state, and local employment laws
If you’ve been misclassified as an independent contractor when you actually work as an employee, you miss out not just on financial benefits but on workplace protection rights too.
In addition, many companies have extra perks for employees that contractors don’t get, such as paid parking, meals, and access to employee-only facilities like gyms. If you’ve been illegally denied these benefits, you could sue to get damages based on their value. As part of a lawsuit, you can also ask that your classification be changed moving forward.
How Do You Know If You’re an Employee or an Independent Contractor?
Over time, California courts have used different tests to determine whether a worker is legally an employee or an independent contractor. In 2018, California’s Supreme Court made a decision that dramatically shifted the application of the law. In a case involving courier and delivery company Dynamex Operations West, the California Supreme Court shifted from using the Borello Test to the ABC Test to determine worker status.
In the past, the Borello test put the burden on the worker to prove that they’re an employee. Under the new ABC test, the burden falls on your employer to prove that you’re an independent contractor. This makes the law much more friendly towards workers.
Under California’s new ABC test, you are presumed to be an employee unless:
- You are “free from the control and direction” of your employer as you work,
- Your work is outside the usual course of your employer’s business, and
- You generally have an independently established trade, occupation, or business of the same nature as the work you’re performing for your employer.
Your employer must prove all three of the ABC test requirements to classify you as an independent contractor. If even one of these terms is not met, you are legally an employee, unless you fall into some specific exemptions carved out from the ABC test.
To determine these facts, the court may look at:
- Who decides the manner, means, and timeline for doing the work
- The level of skill required to do your job
- Who supplies the tools and materials to do the work
- Whether you work for multiple employers at the same time
- Whether you’re supervised or required to report to a location for work
- Whether you can be fired at will or for cause
- How long it takes you to complete the work – whether you work on short projects or carry on the same job for a long period of time
- Whether you get paid by project or by time worked
- Whether your responsibilities are integral to your company’s core business
- Whether you and your employer believe you have an employer-employee relationship
In the Dynamex case, for example, company management decided to classify their delivery drivers as independent contractors. But the drivers were doing the type of work that was central to Dynamex’s core business: courier and delivery. The court decided that the drivers classified as employees who should get the full benefits of their position under the law.
Hiring a San Diego Employment Lawyer
You may be intimidated at the thought of challenging your employer. After all, you depend on your job to pay your bills. But retaliation is strictly prohibited by the law. Your employer cannot take negative action against you for exercising your legal rights. That means you cannot be demoted, fired, or otherwise punished for questioning your classification status.
If your employer retaliates against you for reporting a labor law violation, you could have a wrongful termination claim. Courts may try to “make you whole” for any retaliation by giving you monetary compensation, reinstatement to your job, back pay, or other damages.
Have no doubt: illegal employee misclassification is a form of wage theft. Your employer is denying you the rights and benefits to which you’re entitled under the law. But you don’t have to accept any less than you’re owed. You can fight for your rights.
Getting misclassified as an independent contractor can be a stressful ordeal. You may be unable to take any days off because you don’t get any paid vacation time. You may have to pay additional expenses out of pocket like parking, cell phone, meals, or gym membership that employees get covered by the company. You may even feel ostracized from your company’s culture if employees get networking benefits or other opportunities that you don’t. As an independent contractor, you may feel less secure in your position compared to employees who will at least be paid unemployment benefits if they get laid off.
At Harlan Law, we know you’ve got a lot on your mind already. That’s why we take our employment cases on a contingency fee basis. The last thing that you need to think about now is whether you can afford to hire an attorney to help you. You don’t pay us until we recover the wages and benefits that you deserve.
Call our San Diego employment law firm now at (619) 870-0802 for a free consultation to discuss your best options for fighting misclassification.
About Harlan Law
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