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Employee Misclassification

Lawyer for Representing Workers in El Segundo

Employers sometimes misclassify their employees as independent contractors. Employees are entitled to various protections under federal and state law including minimum wage, overtime, and meal breaks. Independent contractors are not entitled to these protections. However, your employer doesn’t have the last word on whether you’re an employee or an independent contractor. If you suspect you were subject to unlawful conduct of this nature, you can consult an experienced El Segundo employee misclassification attorney at the Calderone Law Firm to learn more about your rights.

Employee Misclassification

The federal Fair Labor Standards Act (FLSA) is administered by the United States Department of Labor, which has set forth guidance about what constitutes an employment relationship. Factors used to decide whether you are in an employment relationship under the FLSA include: the integrality of the work you perform to a company, your initiative and skill, the company’s and your relative investments in equipment and facilities, how permanent the relationship between you and the company is, the nature and degree of company control over you, and whether your managerial skills have impacted your chances for profit or loss.

California law provides greater protection for workers under California Labor Code section 2750.3 than the FLSA does. You are considered an employee, instead of an independent contractor, unless the hirer shows that all of the following are true: (1) you’re free from the hirer’s control and direction in connection with your performance of work, both actually and under the contract to perform work, (2) you perform work outside the usual course of the hirer’s business, and (3) you’re customarily engaged in an independently established business, occupation, or trade of the same nature as what’s involved in the work performed. An employee misclassification lawyer serving El Segundo can evaluate how these factors may be applied in your case.


Under California Labor Code section 226.8, it’s illegal to willfully misclassify a worker as an independent contractor. Willful misclassification occurs if there is voluntary and knowing misclassification of a person as an independent contractor. An employer can be penalized in an amount of $5000-$15,000 for every violation of the statute, or $10,000 to $25,000 for every statutory violation where it’s decided that the employer was involved in a pattern or practice of misclassification.

Under section 226(e), an employer that is found to have willfully misclassified a worker must post a notice for a year stating that it engaged in willful misclassification, that it has changed its business practices to avoid perpetrating any more violations, that an employee who thinks he’s been misclassified can contact the Labor and Workforce Development Agency, and that the notice is being posted under state order.

Wage and Hour Violations

There are a host of wage and hour violations that may have occurred as a result of a misclassification. In California, a nonexempt employee should be paid minimum wage and overtime, given meal and rest breaks, reimbursed for business expenses, and given itemized wage statements. An employee is also entitled to accurate payroll records. Independent contractors do not get any of these protections.

Misclassified employees may be entitled to minimum wage and overtime under California Labor Code sections 510 and 1194, as well as the FLSA. Under California Labor Code section 2802, they can also obtain employment-related losses and business expenses that the employer should have paid but for the misclassification. A knowledgeable El Segundo employee misclassification lawyer can assess what amounts you may be able to claim in a lawsuit involving wage and hour violations.

Under the California Private Attorneys General Act (PAGA), employees subjected to labor code violations can bring a representative action against an employer in the shoes of the state’s attorney general. As an employee in this position, you would need to file a claim with the state of California in order to pursue a lawsuit under PAGA. Your claim would need to set forth details of all facts that support the alleged violations. If 65 days pass and the state doesn’t give notice, you are entitled to file the representative action.

Discrimination, Harassment, and Retaliation

Additionally, employees who have been misclassified as independent contractors may be able to pursue any claims they have for discrimination, harassment, or retaliation by an employer. Title VII of the federal Civil Rights Act of 1964 and other antidiscrimination laws enforced by the Equal Employment Opportunity Commission (EEOC), as well as the California Fair Employment and Housing Act (FEHA) don’t apply to independent contractors. However, if you were misclassified as an independent contractor and you’re actually an employee who has faced discrimination or harassment based on a protected characteristic, you may be able to pursue damages. Protected characteristics include race, sex, national origin, religion, color, and disability.

Consult a Seasoned Employee Misclassification Attorney in El Segundo

If you believe you’ve been subject to employee misclassification in El Segundo, you can discuss your situation with the Calderone Law Firm. We skillfully represent workers who have suffered losses as a result of employee misclassification. Call us at (424) 348-8290 or complete our online form.