Vincent W Davis

Employee Misclassification

Southern California Attorneys for Employee Misclassification Lawsuits

When a California employer decides to hire an employee as an independent contractor (a 1099 worker) instead of a permanent employee, the employer had better be certain that the worker actually fulfills litmus-test that the state and federal government requires to actually be classified as “independent contractor” status. Employee misclassification is often an overt attempt to skirt state and federal employment law. If an employer can get away with hiring an employee as an Independent Contractor, they do so at far less cost to them and lost protections to the worker.

That is because Independent Contractors lose out on important state and federal employment benefits that come with being a permanent employee. Moreover, if a worker improperly misclassified as an Independent Contractor, when he or she should be an employee, the employee has the legal right to assert his or her rights to the benefits.

What benefits does the worker lose if hired as an Independent Contractor?

The major benefits afforded a regular employee of that of an Independent Contractor is that normal employees have the right receive overtime pay if they work more than 8-hours in a day or 40-hours in a week, the right to receive regularly scheduled meal breaks and rest periods, the protections afforded by worker’s compensation insurance, contributions to unemployment insurance benefits, access to group health insurance (if the company has such plans), retirement benefits, COBRA coverage, employee stock plans and more.

Employee Misclassification recourse to the worker deemed Contractor

It is important for a worker who is actually a misclassified employee to understand that there are legal remedies and recourse available to correct and compensate their current classification as an Independent Contractor. A worker who believes that they are fulfilling all the duties and responsibilities of an employee, but is missing out on the benefits and protections because they are misclassified as a 1099 Independent Contractor should consult with an experienced California employment lawyer consider filing suit against the employer for the wrongful employee misclassification.

Employee vs. Independent Contractor

Federal and State Agencies have many Legal Tests to Determine Whether a Worker is an Employee or an Independent Contractor

This is serious business. An employer has the duty to consider the Department of Labor provisions regarding contractor status, the Fair Labor Standards Act (FLSA), the IRS code, and the State Workers’ Compensation Code for starters.

In 2008 the 11th Circuit Court in a landmark case referred to as Perdomo v. Ask 4 Realty & Mgmt, Inc. devised a test to determine whether a worker is to be afforded the status of “employee” or “contractor.” The test they came up with that ALL employers should use is called the “economic realities test.” That test is all over, but for California employment law, we will look the the State of California Department of Industrial Relations website for their take on the test which floats these realities when considering a workers classification status:

  1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
  2. Whether or not the work is a part of the regular business of the principal or alleged employer;
  3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
  4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
  5. Whether the service rendered requires a special skill;
  6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
  7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
  8. The length of time for which the services are to be performed;
  9. The degree of permanence of the working relationship;
  10. The method of payment, whether by time or by the job; and
  11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Upshot? – An employer that fails to evaluate these tests on an individual basis may purposefully or inadvertently misclassify the worker.

A worker who is wrongly classified as an Independent Contractor will lose out on important compensation and benefits, as well as state and federal legal protections. Therefore, if you think that you or your co-workers are misclassified it is critical for you to assert your rights against your employer. Misclassified workers may be able to recover lost wages and benefits through a legal claim.

Contact a Labor Law Attorney regarding Employee Misclassification

If you believe that you have been misclassified as a Independent Contractor when reality demonstrates that you are really an employee, contact an employment attorney at Vincent W. Davis & Associates to set up a no-cost, no-obligation consultation for a thorough assessment of your unique situation. Most employment issues can be preliminarily discussed by phone, and then if it is necessary to visit us in person, we have several conveniently-located offices in and around the Southern California counties and cities including, but not limited to:

  • Los Angeles
  • Los Angeles County
  • Orange County
  • Riverside County
  • San Bernardino County
  • Santa Ana</li
  • Beverly Hills
  • Anaheim
  • Irvine
  • Long Beach
  • Pasadena
  • And more…

Arcadia Office
150 N. Santa Anita Ave,
Suite 200
Arcadia, CA 91006
Phone: (626) 446-6442
Fax: (626)-446-6454


Beverly Hills Office
9465 Wilshire Blvd.
Suite 300
Beverly Hills, CA 90212
Phone: (310)-880-5733


La Mirada Office
Cerritos Towne Center
17777 Center Court Drive ,
Suite 600
Cerritos, California, 90703
Phone: 888-888-6542


Los Angeles Office
Gas Company Tower
555 West Fifth Street,
31st Floor
Los Angeles, California, 90013
Phone: (213)-400-4132


Long Beach Office
Landmark Square
111 West Ocean Blvd.,
Suite 400
Long beach, California, 90802


Irvine Office
Oracle Tower
17901 Von Karman Avenue,
Suite 600
Irvine, California, 92614
Phone: (949)-203-3971
Fax: (949)-203-3972


Ontario Office
Lakeshore Center
3281 E. Guasti Road,
7th Floor
City of Ontario, California, 91761
Phone:(909)-996-5644


Riverside Office
Turner Riverwalk
11801 Pierce Street,
Suite 200
Riverside, California, 92505
Phone: (909)-996-5644


San Diego
Emerald Plaza
402 West Broadway,
Suite #400
San Diego, California, 92101
Phone: (619)-885-2070


Aliso Viejo
Ladera Corporate Terrace
999 Corporate Drive,
Suite 100
Ladera Ranch, California, 92694
Phone: (714) 721-3822