Legal Question in Employment Law in California
paid less as an employee but treated as an independent contractor
I accepted a job under the assumption I would receive a specific wage with no initial explanation of what status is preferred by my employer. Because I am unable to be employed legally as an independent contractor and must rather be an employee I feel that I am being discriminated against in that I must accept only 2/3 of the pay advertised which precipitated my solicitation of employment. Though I am an employee at an hourly rate I do not clock in for work I am paid as if I was an I.C., and lulls in my schedule, or cancellations are not paid; they are essentially forced unpaid breaks. I feel that if I present this argument to my employer I may be terminated and as I need the work and enjoy it I am considering what options I have. I do not think that my employer is being fair. I was never even given the option to refuse employment the decision was made unilaterally to make me an employee. I have also not filled out any tax documents. What can I do?
2 Answers from Attorneys
Re: paid less as an employee but treated as an independent contractor
There are specific legal tests to determine whether you are an independent contractor, as opposed to an employee. The most important test is whether the employer has the right to control the details of your work -- if the employer is controlling your work, you are most likely an employee, and should be classified as an employee.
Re: paid less as an employee but treated as an independent contractor
You are likely an employee, regardless of what the you or the employer thinks. As such, if you are not being paid for all your time on the job, file an unpaid compensation claim with the Labor Commissioner, explaining your facts. IF you are actually retaliated against for doing this, feel free to contact me to discuss your rights and remedies for 'wrongful termination'.
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