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Am I supposed to be treated as a contractor or an employee in California?

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Jeffrey L. Hogue - Employment & Labor - Super Lawyers

Answered by: Jeffrey L. Hogue

Located in San Diego, CAHogue and Belong

Phone: 619-826-8318
Fax: 619-270-9856

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Your treatment as a worker in California, whether as a contractor or employee, will depend on your classification in the eyes of the government. Worker classification is important for several reasons. States use your classification to determine qualification for benefits like Social Security, workers’ compensation and unemployment insurance. This classification is based on the ABC test, which California requires for determination of employee status.

The ABC Test

The test comes down to questions that differentiate a regular employee from a contractor:

  • Is the worker free from the control of the employer in connection with the work duties?
  • Does the worker perform work duties outside the employer’s business?
  • Does the worker regularly engage in an independent trade or business similar to the performed work?

In the relationship between employer and worker, the “control” aspect as referenced in the first question includes several levels of control. Specifically, it relates to the financial and behavioral aspects of the worker’s role. The test determines if a worker is in business for themselves. That is, are they working independently of the employer?

Regardless of where you work, the employer holds the responsibility of administering the ABC test in determination of your working status.

Worker Misclassification

Misclassification can be quite damaging for the worker and for the employer (should the worker choose to take legal action). Misclassified employees potentially miss out on various types of compensation and benefits. Additionally, the chances for wage theft are higher for these workers.  

Misclassification also affects more than just the employee and employer. Federal and state governments do not collect their due income tax, and important systems such as workers’ compensation and disability insurance are damaged in the process.

If you have been misclassified and have lost wages or other important benefits, it is important to seek legal assistance from an employment attorney. A good lawyer can provide direction, representation and assistance.

About The Firm

At Hogue & Belong, attorneys Jeffrey L. Hogue and Tyler J. Belong provide San Diego residents with counsel in civil litigation, employment law, sexual harassment and other areas of law. Their hard work seeking justice for their clients has landed them a mention as 2017 lawyers of the year. They have also accrued settlements, including those from class actions and employee versus employer litigation, reaching dollar amounts in the multi-millions.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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