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Can I be fired because I called-off d/t a medical emergency?

Claremont, CA |

I work as and independent contractor for a courier service. I work m-f delivering, must wear a uniform, have a scheduled start time (but no end time), no sick days, no insurance & no vacation (paid or unpaid). I have not missed a day of work for almost 2 years.

My mother (age 70) lives in another country & has been staying with me for the past week. She takes medication for a heart condition & this morning we were afraid she was having a heart attack. I called my boss to tell him I wouldn't be at work because I needed to go to the ER. He argued with me for 20 minutes saying I couldn't miss work, i was not entitled to a day off, I should have given them more notice, etc. Basically if I didn't come to work I was fired.

Can he do this? Now I have a $5000 hospital bill and no job? Help!

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Attorney answers 4


There are several issues. First, you may actually be an employee, but misclassified as an independent contractor. For a summary of the issues relating to misclassification go to:

Second, if you are actually an employee, there may be violations of the Family Medical Leave Act or California Family Rights Act, which allow employees to take unpaid time off to care for a close relative.

Third, if you are actually an employee, you should be entitled to many benefits, including but not limited to unemployment benefits. Thus, you should consider applying for unemployment benefits after reviewing the criteria for determining whether you were actually an employee or independent contractor. You may also be entitled reimbursement of the employer's portion of your taxes paid as an independent contractor as well as reimbursement for expenses such as mileage.

You can file a FREE claim with the Division of Labor Standards Enforcement or you should immediately consult with an attorney to go over the specific facts of your case.


Your employer would have very little chance of showing that you were not an employee. You dressed like an employee, you had a scheduled start time, you served your employer in a role in which an employee would serve, and he fired you for not showing up one day. You're an employee.

Having said that, you only have the right to take time off to care for your mother, or yourself, if the company has at least 50 employees within 75 miles of you. I would doubt that would be the case. You may, however, have the right to obtain unemployment in that you left your position for good cause.


I'm sorry to hear about your mother's health, but very glad she has a child who cares for her as much as you do. I'm also sorry to hear that you work for such a callous employer.

If you really are an independent contractor, your employer doesn't owe you a thing. But you sure sound like an employee and not an independent contractor. If so, your employer probably owes you additional wages, unemployment and Social Security deposits, penalties and more. This can add up to quite a large amount. If you need attorney's fees to collect what is due to you – and most likely you will – the employer is also responsible for your attorney's fees.

The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.

Many employers misclassify workers as independent contractors and pay them as "1099 employees" when in fact they should be classified and paid as regular W-2 employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If a worker is wrongly classified as an independent contractor instead of an employee, that worker will not be eligible for many benefits of employment or eligibility will be reduced. Areas affected include the right to:

– be paid for all hours worked or controlled by the employer;
– the legal minimum wage;
– overtime pay;
– rest and meal breaks;
– workers' compensation insurance;
– Social Security contributions;
– unemployment benefits;
– state disability benefits;
– employer benefits such as vacation, sick leave, pension, medical insurance, etc.

Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).

There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.

FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:

Behavioral Control – This area considers instructions and training. If the employer has the right to direct or control the work, even if it does not exercise that right, the worker is an employee. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who the worker can hire or not hire to help get the work done; what supplies and services to buy, and/or where to buy them. If the employer trains the worker in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates the worker is an employee and not an independent contractor. Therefore, if the employer gives the worker detailed or extensive instructions on how to get the job done, the worker is probably an employee and not an independent contractor.

Financial Control – This area considers who has the right to direct and control the business, not just the work. The more of a financial or promotional investment the worker has made in the work, the more likely the worker is an independent contractor. However, there is no requirement for an investment in order to meet the definition of independent contractor. If the worker incurs expenses in performing the work but is not completely reimbursed, the worker is more likely to be an independent contractor rather than an employee, especially if these expenses are high. If the worker has the chance to make a profit or loss on the work, the worker is probably in business for himself or herself and therefore an independent contractor.

(continued in Comment below) *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

Marilynn Mika Spencer

Marilynn Mika Spencer


(continued from Answer above) Relationship of the Parties – If the worker does not receive benefits such as medical coverage, vacation, or pension, the worker may be an employee or an independent contractor. However, if the worker receives benefits, the worker is probably an employee. If the worker is an employee, the employer must withhold income tax and the employee’s portion of Social Security and Medicare taxes. The employer must pay Social Security, Medicare and unemployment (FUTA) taxes on the wages the worker earns. The employer must give the worker an IRS Form W-2, Wage and Tax Statement, every year showing the amount of wages paid and taxes withheld from the worker’s pay. As an employee, the worker has the right to deduct unreimbursed business expenses from the worker’s taxes on IRS Schedule A if the worker itemizes deductions and meets the other requirements established by the IRS. If the worker is an independent contractor, the employer must give the worker an IRS Form 1099-MISC Miscellaneous Income to report what it has paid to the worker. The worker must pay his or her own income tax and self-employment tax, and may be required to make estimated tax payments during the year. The worker can deduct business expenses on IRS Schedule C of his or her 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 worker’s 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 Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state. I hope you can resolve your situation and wish you the best.


In addition to the other responses, because it appears that you were an employee and not an independent contractor, your employer needed to provide your final paycheck on the date of employment termination. If you had to wait for it, you may be entitled to one day's pay for each day you had to wait PLUS attorneys' fees and if you ever worked more than 8 hours in one day or over 40 hours in one week, you may be entitled to overtime, interest, and attorneys' fees. If you feel you are owed wages or late payment penalties, call an employment law attorney or if you worked for at least 1 year for your employer and your employer had at least 50 employees within a 75 mile radious, contact an employment law attorney. 949-481-6909.