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Misclassifying employees as independent contractors?

San Francisco, CA |

The CA Labor Board (not sure of real name) has been going around to massage establishments and giving out tens of thousands of dollars fines on a recent new law about misclassifying employees as independent contractors. The owners of these establishments are predominantly asian with minimal english skills. Many store, like my mom's, has been opened for more than five years and stared out under the direction of the city hall to classify our employees as independent. Are they allowed to fine people who clearly has no understanding of the situation and never even heard of the law until they were fined? Are they targeting small businesses with non english proficient owners? Shouldn't we only be fined if it was done intentionally?

Attorney Answers 2


It sounds like the Labor Commissioner (formally known as the Department of Labor Standards Enforcement) is acting upon the authority granted it in section 226.8 of the California Labor Code, which was signed by Governor Brown in 2011 and took effect last year. Under that new law, employers can be fined thousands of dollars by the Labor Commissioner for the "willful misclassification" of employees as independent contractors. Now, it's not entirely clear what "willful misclassification" means. However, if your mother was truly relying on a directive from a government entity in classifying her workers as independent contractors, then I'd imagine she'd at least have a good argument that her misclassification of her workers was not "willful." Nevertheless, even if she is successful in getting her fine reimbursed, she may be held liable for back taxes, overtime wages, and other penalties as a result of the misclassifications.

Certainly, your mother should begin treating her employees as employees rather than independent contractors, in order to "stop the bleeding" and avoid future fines.

Finally, she should consult with an experienced California employment law attorney regarding her situation.

Good luck!

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Thanks she has not been fined yet, but everyone around us has. Were not even sure where to start with changing employee status and everything. On a side note if we were to change everything can they still fine us for previous years?

Tuvia Korobkin

Tuvia Korobkin


The short answer is, I don't know for sure. However, most new laws are "prospective", which means they only apply after the law was enacted (as opposed to "retroactive" laws, which can reach back and affect things that happened before the law was passed). But keep in mind that this law took effect over a year ago, so certainly your mom could be looking at liability for anyone she classified as an independent contractor since January 1, 2012. But again, I'm only answering your question while "standing on one foot" without all the facts and without doing substantial research into your specific situation. This is definitely a situation in which you would be well advised to retain an experienced California employment law attorney, and sit down with him or her and explore your options.


The short answer is yes. If the employees should have been characterized as employees and not independent contractors, there is no element of knowledge to a successful claim. Whether or not the employer knew the law or not, there is liability. However, proving an unintentional mischaracterization might have an effect on other penalties or damages that might otherwise be assessed against an knowing offender.

Your mother's best move now would be to hire a competent and experienced employment law attorney to assess her risk and assist her in making changes, if necessary, before the DLSE moves against her.

Good luck to you and her.

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.

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