I have a strong feeling that my employer missclassified me as an independent contractor

Asked almost 2 years ago - Milpitas, CA

And I might seek legal help from a lawyer but now I have flu and didn't go to work for 3 days is my paycheck going to deduct money or do I owe work hours to my boss?

Attorney answers (3)

  1. Michael Charles Doland

    Contributor Level 20


    Lawyers agree

    Answered . As to your specific question, no one knows the "deal" you have with our employer. If an employee, you don't "owe" your employer time. The rules differentiating employees from ndependent contractors have numerous benchmarks, including (but certainly not limited to) who determines when, where and how the services are performed.

    The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may... more
  2. Michael Robert Kirschbaum

    Contributor Level 20


    Lawyer agrees

    Answered . One of the considerations into whether you are an employee or an independent contractor is the degree of control the company has over how you perform your work, including your work schedule. A typical contractor is hired to do a job. The contractor should be able to schedule their own hours as long as the job is completed on time. If the company requires the contractor to come to work at its place of employment, at a per-arranged schedule, and work under the company's control, that is a factor indicating an employment relationship. Of course, there are many others factors to consider, depending upon the nature of the business and the service you are expected to provide. But I cannot conceive of how you would owe hours to your "boss" as long as the work gets done.

    If you were misclassified there are many other issues that need to be explored, such as the violation of applicable labor laws and tax reporting requirements. As soon as you get over the flu, start contacting employment law attorneys in your area. You can use the "Find a Lawyer" function on Avvo as a good place to start.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion... more
  3. Marilynn Mika Spencer

    Contributor Level 20

    Answered . The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.

    Many employers misclassify workers as independent contractors and pay them as "1099 employees" when in fact they should be classified and paid as regular W-2 employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If a worker is wrongly classified as an independent contractor instead of an employee, that worker will not be eligible for many benefits of employment or eligibility will be reduced. Areas affected include the right to:

    – be paid for all hours worked or controlled by the employer;
    – the legal minimum wage;
    – overtime pay;
    – rest and meal breaks;
    – workers' compensation insurance;
    – Social Security contributions;
    – unemployment benefits;
    – state disability benefits;
    – employer benefits such as vacation, sick leave, pension, medical insurance, etc.

    Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).

    There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.

    FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:

    Behavioral Control – This area considers instructions and training. If the employer has the right to direct or control the work, even if it does not exercise that right, the worker is an employee. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who the worker can hire or not hire to help get the work done; what supplies and services to buy, and/or where to buy them. If the employer trains the worker in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates the worker is an employee and not an independent contractor. Therefore, if the employer gives the worker detailed or extensive instructions on how to get the job done, the worker is probably an employee and not an independent contractor.

    twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the... more

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