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I was "laid off" this week. I was being misclassified and my final paycheck was for less than the 76.93 hours I worked

Mission Viejo, CA |

I was classified as a 1099 employee, worked a set schedule, in an office, paid hourly. I have yet to file for unemployment as I'm sure the claim would get denied. Also my final paycheck was for a lot less than the hours I worked. Will I need an attorney?

Attorney Answers 5

  1. More information is needed to determine whether you were in fact misclassified. If it is determined that you were an employee then it sounds like you have a waiting time penalty claim. I suggest that you contact an attorney as soon as possible to evaluate your case.

    Matthew Blair

    Contact me for a FREE case consultation 310-550-1555, email: I am licensed in California only and my answers on Avvo assume California law. This message does not constitute legal advice and does not create an attorney-client relationship. Answers must not be relied upon. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.

  2. Based only on the extremely limited facts you have provided, it is likely that you were misclassified as a contractor. As an employee, you would be entitled to collect unemployment. You would also be entitled to the remedies afforded to employees for the non-payment of wages (infinitely more favorable than the remedies afforded to contractors), including the ability to file a claim with the DLSE and to collect waiting time penalties for the late final payment of wages. In addition, your employer may be subject to a wide range of penalties and fines for the misclassification.

    It would be very wise to retain a local employment law attorney to pursue this matter on your behalf, as these claims can get complicated.

    Best of luck moving forward.

    Patrick Phillips
    (858) 925-7184

    This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

  3. if this was as you say the IRS and the WCAB will be less then thrilled. (I have been there.) I would file with the EDD and show them the proof. (you will need some solid evidence.)

    They can be more flexible than you might think and you have nothing to lose.

    Ms. Straus (aka Carroll) may be reached at 800-400-8978 during regular business hours, Pacific Time, or anytime by email at: All of Ms. Straus’ responses to questions posted on Avvo are intended as helpful information based upon the facts stated in the question, and are not to be relied upon as a final legal opinion. It may not be what you wished to hear, and it does not create an attorney-client relationship. Ms. Straus is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him or her. Me Straus provides “unbundled” services if you need specific assistance with a specific issue.

  4. Classifying an employee as an 1099 independent contractor is a common way for a company to avoid paying taxes, benefits, and overtime. However, there are strict rules on the application of this classification. I would most definite consult with an attorney about your situation.

  5. One test California applies is called the "economic realities" which was adopted by the California Supreme Court in S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341.

    Here are the factors:
    . In applying the economic realities test, the most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:

    1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
    2. Whether or not the work is a part of the regular business of the principal or alleged employer;
    3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
    4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
    5. Whether the service rendered requires a special skill;
    6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
    7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
    8. The length of time for which the services are to be performed;
    9. The degree of permanence of the working relationship;
    10. The method of payment, whether by time or by the job; and
    11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

    You can find out more at the links below.

    Please note that this is not legal advice and is for information only. We can only serve as your attorney if both you and our firm agree, in writing, that we will serve as your counsel. You should be aware that the Statutes of Limitation (the deadlines imposed by law within which you may bring a lawsuit) may severely limit the time remaining for you to file any potential claims you may have. Do not wait for a response from us before consulting an attorney about your legal rights. Because of the volume of requests, we are not obligated to, and may not respond to your inquiry. Thus it is vitally important given the Statutes of Limitation, for you to seek advice from your attorney immediately, and without any delay.

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