Are you a route sales driver who has been misclassified as an independent contractor?
The contract you signed doesn’t decide whether you are an employee or an independent contractor. The law does. Many such agreements are wrong and of no effect.
Have you been deprived of overtime pay or minimum wages that you should have received?
Have you paid “business expenses” out-of-pocket that should have been paid by your employer?
Have you been deprived of other employment benefits to which you are entitled?
If you think you were misclassified, call us at 800-535-5291
Your call will be free AND confidential.
California has long tried to prevent employers from cheating the system by calling their workers “independent contractors” when they really are employees. In September 2019, Governor Newsom signed Assembly Bill 5 (“AB5”) and improved those worker protections.
Why does it matter?
If you were misclassified as an “independent contractor,” you may be able to claim:
- unpaid overtime pay and minimum wages
- penalties for meal-break and rest-break violations
- unreimbursed business expenses
- penalties because your employer failed to comply with record-keeping requirements
- penalties because your employer failed to give you correct itemized wage statements (paystubs)
- “waiting time penalties” if you were not paid all wages due and owing when you resigned or were terminated
How can you tell if you are an employee and not an independent contractor?
In Dynamex Operations West, Inc. v. Superior Court, decided in 2018, the California Supreme Court adopted the “ABC test.” On January 1, 2020, AB5 added the ABC test to the Labor Code, California’s worker-protection laws.
Under the ABC test, a worker is an employee and is not an independent contractor unless the hiring entity (employer) can prove all of the following:
- The worker is free from control and direction by the hiring company in performing the work, both under the contract and in reality.
- If, under the contract or in reality, you are subject to the type and degree of control that a business usually exercises over employees, then you most likely are an employee and not an independent contractor.
- Even if the hiring company does not control every detail of your work, it still can be found to have enough control over you to make you an employee.
- The worker performs work that is outside of the usual scope of the hiring entity’s business.
- The hiring company must prove this to satisfy part B of the ABC test.
- If you provide services that are like the services provided by an existing employee, then you may be an employee.
- The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.
- This requirement is satisfied only if you really are operating as an independent business. That typically requires that you have taken the usual steps to establish and promote your independent business (for example, incorporation, licensing, advertising and the like).
For certain occupations and business arrangements, or where a court decides that the ABC test cannot apply, a test called “Borello” applies instead. The Borello test considers numerous potentially relevant factors regarding the nature of the work, the overall arrangement between the parties, and the purpose of the law. Both the ABC test and the Borello test aim to make the same determination – are you an employee entitled to the additional protections and rights that come with that status? But they consider different sets of factors and can lead to opposite results. If the ABC test applies to you, the determination is far simpler and is more likely to conclude that you are an employee entitled to the benefits of being an employee, not a true independent contractor.
Remember: Even if you signed an agreement saying that you are independent contractor, that does not mean that you really are an independent contractor. The law, not an agreement that you had to sign, determines whether you are an employee or an independent contractor.
Now, more than ever, it is important that workers be classified properly. Unlike employees, independent contractors don’t get paid sick days or paid vacation days and don’t qualify for unemployment benefits. And unlike employees, who are entitled to be reimbursed for business expenses and to have half of their payroll taxes paid by the employer, independent contractors have to cover all their work-related expenses and have to pay both the employee side and the employer side of the employment taxes.
To find out if you qualify to bring a California independent contractor misclassification case, fill out the form on this page for a FREE case evaluation. It’s absolutely free to participate, so act now!
This is a legal advertisement by Keller Grover LLP
Fill out the form on this page for a FREE case evaluation.
ATTORNEY ADVERTISING
The choice of a lawyer is an important decision and should not be based solely on advertisements.
Counsel responsible for this advertisement include Eric A. Grover at:
Keller Grover LLP
415-543-1305
PAID ATTORNEY ADVERTISEMENT: THIS WEB PAGE IS AN ADVERTISEMENT. The information contained herein is not legal advice. Any information you submit to Keller Grover LLP does not create an attorney-client relationship and may not be protected by attorney-client privilege. Do not use the form to submit time-sensitive information or information you wish to keep confidential. Instead, please contact us directly regarding any such matters. All photos are of models and do not depict clients.
The foregoing is meant to be a general summary of applicable law. Your specific case would depend upon the facts and circumstances applicable to you and your lawyer.