Employees are entitled to certain rights under The Fair Labor Standards Act (FLSA) and the California Labor Code, including the right to earn at least the minimum wage and, in many cases, the right to receive overtime pay for all time above the standard forty hour workweek. Employers sometimes classify workers as “independent contractors,” thereby denying them of their employment rights. In order to properly designate an employee as an independent contractor, the employer must demonstrate that an employer-employee relationship does not exist.

There is no single factor that differentiates an employee from an independent contractor, so the employer must show that the individual works independently in a variety of areas. Court decisions have provided some guidelines as to which areas are relevant to the proper designation of independent contractors. In S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989), the California Supreme Court found that the degree of control that an employer has over a worker is particularly significant in determining whether a worker should be classified as an independent contractor. Other factors that courts have taken into consideration include:

• The degree of permanence of the work situation.

• Whether or not the worker provided their own tools and supplies.

• The degree to which the worker is engaged in an independent business.

The U.S. Supreme Court has determined that the following factors do NOT demonstrate that an employee is an independent contractor:

• The timing and/or form of payment.

• The location where the work is performed. For example, employees who work at home are often misclassified as independent contractors.

• The absence of a formal work agreement.

Girard Gibbs LLP is a law firm based in San Francisco, California. Our employment lawyers are highly knowledgeable about employee rights under federal and California employment law, and actively pursue claims on behalf of employees whose rights have been violated. If you believe you have been improperly classified as an independent contractor, or that your employee rights have otherwise been violated, please fill out the form below or call us toll free at (866) 981-4800 for a consultation without charge.

Important Note: This summary is intended to provide a basic overview of the typical types of employment cases handled by our firm. It is for informational purposes only and does not constitute legal advice.