Unpaid unlicensed consultant/contractor work

Asked 9 months ago - San Jose, CA

My wife worked as unlicensed consultant for different architect offices as drafter/designer. One of them, first paid her invoices, and has now stopped for last 6 months. He is not returning emails or phone calls. All hours are documented in emails and done at his office. So there is no excuse not to pay. I would like to know if we can bring him to court for something like this, or if since my wife is unlicensed she has no rights to be paid. Thanks,

Attorney answers (4)

  1. Christine C McCall

    Pro

    Contributor Level 20

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    Answered . I think you are assuming that the prohibition against claims for compensation by unlicensed building and construction contractors is broadly applicable to other fields of licensed work. CSLB (Contractors State Licensing Board) is one of a very few kinds of licensed work where CA statutes altogether bar a claim for compensation, including wages, in an amount over a statutory minimum ($400 total per project or assignment) if the worker was not licensed.

    But even aside from the very harsh forfeitures provided by statute against unlicensed building trade-workers, there is no question that there can be caused substantial legal jeopardy for your wife or any other worker who is required by law to be licensed for the work performed and is not validly licensed. The matter is even more complicated if your wife is required to be licensed for that work and the entity for which she worked believed or was caused to believe (by her) that she was licensed as required. And, of course, your wife needs to assess the potential that either of these contentions will be asserted against her, and the potential consequences to her if that occurs.

    The penalties for working without a required State license -- IF a license is required -- can include substantial civil, administrative and criminal penalties, and the amounts presently rolling out from the State can be surprisingly high. Costs orders reimbursing the State are running as high as $11,000 per day of State investigative/enforcement work, and that is only the reimbursement order -- before civil fines, and administrative penalties and fees. Accordingly, I strongly recommend that your wife determine reliably whether she was required to be licensed to do the work BEFORE she files an action or claim which will stand as an irrevocable admission of having worked without a required license. Get sound advice on the critical threshold issue first!

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended... more
  2. Kristine S Karila

    Contributor Level 16

    4

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    Answered . If she was truly an independent contractor and not an employee (depends on her duties and the amount of control over her work), she can sue in Superior Court or Small Claims Court depending on the amount of the claim. If she was misclassified as an indep. contractor and actually an employee, she can sue for her unpaid wages plus up to 30 days' waiting time penalties and the law states that the employer "shall" pay her attorneys' fees. The Labor Commissioner's office will not take a claim filed by an indep. contractor. Have your wife call an employment law attorney to discuss. Many of us offer a free initial phone consultation. If the company she worked for has no money or assets, it will be difficult to recover what is owed to her.

  3. Jonathan Aaron Weinman

    Pro

    Contributor Level 17

    2

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    Answered . Regardless of whether or not your wife is licensed or not, she would be entitled to compensation for hours worked. You have the option to file a civil claim if you wish, but you may also want to consider filing a claim with the Labor Commissioner, which is a government run entity that handles wage related claims at no cost to your wife. While many attorneys handle cases on a contingency fee, it may be hard to find someone to take on a matter that is not of significant dollar value because of the time and work involved in order to recover.

  4. Neil Pedersen

    Contributor Level 20

    2

    Lawyers agree

    1

    Answered . Your wife's lack of a license will not be a bar to her bringing a successful breach of contract or failure to pay wages claim. If she was truly an independent contractor, her lawsuit is one for breach of contract and would be brought in superior court, or if the amount is small enough, small claims court. If she was mischaracterized as a contractor and instead was legally considered an employee, her failure to pay wages claim can be adjudicated administratively at the California Division of Labor Standards Enforcement, or judicially in superior court or small claims if the amount in controversy is less than $10K. Each approach has its pros and cons. It would be prudent 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... more

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