Employee Misclassification

Under California Labor Code § 2775 et seq., most workers are presumed to be employees unless the hiring entity satisfies all three parts of the “ABC test” adopted by the California Supreme Court in Dynamex Operations W. v. Superior Court, 4 Cal.5th 903. The hiring entity must show that: (a) the worker is free from its control and direction in performing the work; (b) the work is outside the usual course of the hiring entity’s business; and (c) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. If any part of the test is not met, the worker must be classified as an employee and may be entitled to protections such as minimum wage, overtime, meal and rest breaks, expense reimbursement, and other employee benefits that do not apply to independent contractors.

Employers that misclassify workers may face back wages, civil penalties, interest, and claims brought by the Labor Commissioner or affected workers. California’s standard is also stricter than federal law, meaning a worker treated as an independent contractor under the FLSA may still qualify as an employee under California law.

Employees have several options against employers that misclassify them as non-hourly workers or as independent contractors. They may file a claim with California’s Labor Commissioner’s Office at no cost. Or they may hire their own attorney and file a lawsuit in court.

If you believe that you have been misclassified by your employer, please contact the Law Offices of Ugo O. Asobie. Free Consultation. Miclassification cases are handled on contingency.