Marilynn Mika Spencer
Marilynn Mika Spencer, Employment / Labor Attorney - San Diego, CA
Posted over 3 years ago.

(continued from Answer above)

Relationship of the Parties: If you do not receive benefits such as medical coverage, vacation, or pension, you may be an employee or an independent contractor. However, if you receive benefits, you are probably an employee.

If you are an employee, your employer must withhold income tax and the employee portion of Social Security and Medicare taxes. Your employer must pay Social Security, Medicare and unemployment (FUTA) taxes on the wages you earn. Your employer must give you an IRS Form W-2, Wage and Tax Statement, every year showing the amount of wages paid and taxes withheld from your pay. As an employee, you have the right to deduct unreimbursed business expenses from your taxes on IRS Schedule A if you itemized deductions and meet the other requirements established by the IRS.

If you are an independent contractor, the employer must give you an IRS Form 1099-MISC Miscellaneous Income, to report what it has paid you. You must pay your own income tax and self-employment tax, and you may be required to make estimated tax payments during the year. You can deduct business expenses on IRS Schedule C of your income tax return.

CALIFORNIA LAW:

The main test in California is who has the right to direct and control the “manner and means” in which the job is performed. This is similar to the IRS’ Behavioral Control described above. California then looks at secondary factors, which include:

Are the services provided on a long-term or repeating basis? Is the worker paid based on the time spent working? Are the services an integral part of the employer’s business? Does the employer establish the work hours? Does the employer determine how many hours will be worked? Does the employer dictate the order in which job tasks are to be performed? Does the worker spend all of his or her time working for one employer? Is the worker supervised? All of these factors tend to show the worker is an EMPLOYEE.

Is the worker in a distinct occupation or trade? Are the workers’ services available to the general public? Can the worker hire, supervise and pay assistants? Did the worker make a substantial investment in facilities or services? Does the worker do the job without supervision? Is the worker highly skilled or working in a specialized field? Does the worker supply the tools and other materials used to do the job? Does the worker provide the location in which the work is performed? Is the worker paid at the end of the project? All of these factors tend to show the worker is an INDEPENDENT CONTRACTOR.

Also under California law, an employer can be fined for “willfully misclassifying” an employee as an independent contractor. The amount of the fine ranges from $5,000 to $15,000 per violation. If there is a “pattern and practice” of willful misclassification, the fine can increase to $25,000 per violation.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. It is not always necessary to retain an attorney in your local area as many attorneys handle cases throughout the state.

I hope you can resolve your situation and wish you the best.

Michael Charles Doland
Michael Charles Doland, Business Attorney - Los Angeles, CA
Posted over 3 years ago.

Awesome answer.

No photo
Asker
Posted over 3 years ago.

Thank You Mrs.Spencer that was truly an awesome answer i well take the necessairly step and advice to resolve this issue. Thank You Again

No photo
anonymous
Posted over 3 years ago.

Superb answer, but she probably copied and pasted! She's clever.

Marilynn Mika Spencer
Marilynn Mika Spencer, Employment / Labor Attorney - San Diego, CA
Posted over 3 years ago.

I use macros, and have said as much on Avvo many times. There is no way I could provide this level of detail if I had to type the same thing out over and over again.

No photo
anonymous
Posted over 3 years ago.

I know that Ms. Spencer; I was only kidding. You always contribute impeccable answers! You are thoughtful, candid, and very detailed. That is why you're the top of my list of Best attorneys of 2012! -DK

Michael Charles Doland
Michael Charles Doland, Business Attorney - Los Angeles, CA
Posted over 3 years ago.

Only kidding - like your posts about getting away with murder and cannibalism.

No photo
anonymous
Posted over 3 years ago.

Great answer!

No photo
Asker
Posted over 3 years ago.

I was wondering what would be the cause of action for such claim?

Marilynn Mika Spencer
Marilynn Mika Spencer, Employment / Labor Attorney - San Diego, CA
Posted over 3 years ago.

Generally, you would sue for unpaid wages and for indemnification, and possibly for unfair business practices. But your situation needs an assessment of the specific facts. You need to speak with an attorney, and do so quickly because the dates you worked are already a long time ago and you may lose all or part of your claim.

No photo
Asker
Posted over 3 years ago.

Thank you. I am looking for attorney. problems is I am student and I dont have the money for fees of any attorney.