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Can Independent Contractors Collect Unemployment Benefits when you are unknowingly hired as one?

Petaluma, CA |

I was hired at a medical office, the Dr. was a Private Practice. They hired me. After that they told me I need to be an Independent Contractor. I didn't exactly know what that meant, so I said ok. I find out later that Im not technically an Employee. They recently said they No longer needed my services with no warning that they were to lay me off. Can I collect UI Benefits now?

Attorney Answers 4


  1. The failure to properly classify employees may subject an employer to liability for minimum wage and overtime pay, denied rest and meal period compensation, expense reimbursement, and all other wage and hour violations. Misclassifying employees as independent contractors can also result in criminal and tax liability. The employer can be assessed amounts due for unemployment insurance contributions, training taxes, and disability insurance contributions. State income tax withholding amounts can also be assessed, unless the employer can show that the income was reported and all taxes due were paid by the employee. You should talk with an employment attorney to find out whether you were misclassified as an independent contractor.

    Amir Mostafavi, Esq. Law Offices of Amir Mostafavi 11500 W Olympic Blvd., Suite 400 Los Angeles, CA 90064 Phone: (424) 208-5766 Fax: (888) 752-4745 www.mostafavilaw.com amir@mostafavilaw.com CONFIDENTIALITY NOTICE: This e-mail and any documents, files or prior e-mails attached to this e-mail may contain confidential information that is legally privileged, confidential, and exempt from disclosure under applicable California and federal laws. It constitutes non-public information intended to be conveyed only to the designated recipient(s). If you are not the intended recipient or responsible for delivering this e-mail to the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of any of the information contained in this e-mail or attached to this e-mail is STRICTLY PROHIBITED. If you have received this e-mail in error, please notify us by reply e-mail, and destroy the original transmission and its attachments without reading or saving them. If you are a potential client, the information you disclose to us by email will be kept in strict confidence, and will be protected to the full extent of the law. Please be advised, however, that you are not represented by Law Offices of Amir Mostafavi and its lawyers until you have signed a retainer agreement with the firm. Until that time, you are responsible for any statutes of limitations or other deadlines for your case(s) or potential case(s). Thanks You.


  2. Generally a true independent contractor is not entitled to unemployment insurance benefits. No contributions were made in your name by the employer and employment is a prerequisite to recovery. However if you can prove that you were misclassified as an independent contractor and should have been classified as an employee, you may be able to get benefits and the employer will be charged with your benefits.

    To determine if you should have been an employee and not an independent contractor it would make sense for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


  3. Independent Contractors do not receive unemployment benefits until or unless they show they were misclassified as ICs. Independent contractors file a Schedule C on their income tax returns to reflect SELF employment. Some factors that may indicate whether you were really an employee might include training, hours, and location of performing the work (e.g. could you work from home or were your required to be in the office).

    THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mrs. Cook is licensed to practice law throughout the state of California with offices in San Diego County. She is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.


  4. There is a presumption of employment. You should file for unemployment. You may have other claims if, for example, you did not get paid overtime, or if you were not provided duty free meal or rest periods. There are also penalties for misclassifying workers as independent contractors.

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