Member of:
Justia Lawyer Rating
badge - The State Bar of California
badge - OCBA
badge - Expertice, Best Personal Injury Attorneys in Orange 2020
badge - lawyers.com

Am I an Employee or Independent Contractor?

Am I an Employee or Independent Contractor?The Supreme court recently announced its decision in Dynamex Operations West, Inc. v. Superior Court case that defines the classification of employees vs. independent contractors’ status more clearly. Specifically, the court issued a three-part test which is called “ABC” test:

  1. That the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  2. That the worker performs work that is outside the usual course of the hiring entity’s business; and
  3. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

An employer bears the burden of proving all three factors above before classifying an employee as independent contractor. If the employer cannot proof at least one factor, a person is presumed to be an employee. This test certainly makes it easier to determine the status of many California workers. However, it is still not as black and white as we wish. For example, if an employer controls and directs employee’s work, hours, and performance, the first prong of the ABC test is met. Further, if a worker performs duties for an employer on a full-time basis and is not engaged in an independently established trade, occupation, or business, the C prong of the ABC test is also met. Now imagine that a worker is performing maintenance/handyman work for a nail salon. Presumably, the second prong cannot be met because the worker performs work that is outside the usual course of a nail salon that provides such services as manicure, pedicure, massage, etc. However, it does not mean automatically that such a worker should be classified as an independent contractor. In cases like this, the court will further look at the nature of the work relationship as a whole and only then determine the proper classification.

Why so Much Fuss Whether I am an Employee or Independent Contractor?

It is more lucrative and beneficial for an employer to classify a worker as independent contractor because in this case an employer among other things does not have to pay certain payroll taxes, does not have to pay a worker an overtime compensation, does not have to provide a worker with meal and rest breaks, and does not have to provide a worker’s compensation insurance. In a word, classifying a worker as independent contractor saves your employer tons of money!

If you suspect your employer misclassified your status as independent contractor, feel free to call or email us for a free initial consultation.

Client Reviews
★★★★★
"Integrity, competency, and compassion! Dimuth Amaratunga has represented me and counseled me in several matters over the last several years, and each time, I have benefited tremendously from his knowledge, his wisdom and his empathy. He is without a doubt an authority in employment law and personal injury. But most importantly, he has compassion and truly focused on getting the best result for his clients. I am a practicing attorney and I wholeheartedly recommend him and his firm!" David J.
★★★★★
"Back in 2017 I had a bad situation happened at work in LA county. I did not know my rights or what to do. I have nothing but good things to say about the Serendib Law Firm. I worked mainly with Maya L. Serkova. She was always on top of things and replied to all my emails and calls promptly. I was taken care of and couldn't have asked for a better team to have covered my case! I was very impressed with the work ethic. The whole ordeal was very stressful, however, Ms. Serkova helped me navigate the process while responding to my goals. She was wonderful and I was very satisfied with the outcome." Lana D.
★★★★★
Maya L. Serkova is an excellent attorney who really takes care of her clients in employment litigation matters. Ms. Serkova is very knowledgeable, detail oriented, and above all, she delivers the results. She is dedicated to clients' need in each and every case she takes. Ms. Serkova is a strategic litigator and effective negotiator. Her staff is very polite, pleasant and attentive. She always returns phone calls at her earliest convenience and provides updates about a case in a timely manner. It was a real pleasure working with Ms. Serkova. I recommend her as an outstanding Plaintiff's Employment Law Attorney. Anna P.