A handyman is suing me for work that was for 10000.
In the pleading he is saying he contracted with me.
In the discovery he said that he was acting as a contractor.
He is not licensed.
And he wants to get around the licensing law by saying he was an employee since he was not licensed.
I am told that his pleading can be attacked but he can change it.
How does a person determine if they were a contractor or employee?
There is no set definition of the term "independent contractor" and as such, one must look to the interpretations of the courts and enforcement agencies to decide if in a particular situation a worker is an employee or independent contractor. In handling a matter where employment status is an issue, that is, employee or independent contractor, DLSE starts with the presumption that the worker is an employee. Labor Code Section 3357. This is a rebuttable presumption however, and the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling by itself. Consequently, it is necessary to closely examine the facts of each service relationship and then apply the law to those facts. For most matters before the Division of Labor Standards Enforcement (DLSE), depending on the remedial nature of the legislation at issue, this means applying the "multi-factor" or the "economic realities" test adopted by the California Supreme Court in the case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. 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.
Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288)
Employment / Labor Attorney
The analysis of whether a worker is an indep. contractor or employee is complicated. There are many factors to consider, and to make it as simplified as possible, the key factor is whether the employer or principal controlled the way in which the worker performed his/her job duties. If the worker is an employee and not an indep. contractor, CA labor laws apply and the employer may be held to pay overtime, monetay penalties for late payment of wages plus the worker's attorneys' fees if the employee prevails in court. Call an employment law attorney to discuss. Yes, pleadings can be attacked in some instances and if the court sustains the demurrer or motion to strike (attacking pleadings), the court almost always allows the plaintiff leave/permission to amend the Complaint.
Since you call him a handyman and he calls himself a contractor in the lawsuit, but he is not a licensed building contractor, you don't actually owe him anything for the work he did.
Any person not licensed by the Contractors State License Board is not entitled to do construction work worth more than $500. The person who hires the contractor is not liable to pay the unlicensed contractor and is entitled to disgorgement of anything paid--a harsh but seemingly necessary rule imposed by the Legislator and the CSLB to protect the public from unlicensed contractors.
Get in touch with an experienced construction attorney right away. Take all documentation you have of any work done by this person and anything paid to him.