Font size: bigger | smaller

Independent Contractor or Employee? Federal and California Law

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

Who controls your work? The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.

Many employers misclassify workers as independent contractors, when in fact they are employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If you are wrongly classified as an independent contractor instead of an employee, you will not be eligible for many benefits of employment or your eligibility will be reduced. Areas affected include the right to:

  • be paid for all hours worked or controlled by the employer;
  • the legal minimum wage;
  • overtime pay;
  • rest and meal breaks;
  • workers' compensation insurance;
  • Social Security contributions;
  • unemployment benefits;
  • state disability benefits;
  • employer benefits such as vacation, sick leave, pension, medical insurance, etc.

Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).

There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.

FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:

Behavioral Control This area considers instructions and training. If the employer has the right to direct or control your work, even if it does not exercise that right, you are an employee. Therefore, if your employer gives you detailed or extensive instructions on how to get the job done, you are probably an employee and not an independent contractor. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who you can hire or not hire to help you; what supplies and services to buy, and/or where to buy them. If the employer trains you in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates you are an employee and not an independent contractor.

Financial Control This area considers who has the right to direct and control the business, not just the work. The more of a financial or promotional investment you have made in the work, the more likely you are an independent contractor. However, there is no requirement for an investment in order to meet the definition of independent contractor. If you incur expenses in performing the work but are not completely reimbursed, you are more likely to be an independent contractor rather than an employee, especially if these expenses are high. If you have the chance to make a profit or loss on the work, you are probably in business for yourself and therefore an independent contractor.

Relationship of the Parties If you do not receive benefits such as medical coverage, vacation, or pension, you may be an employee or an independent contractor. However, if you receive benefits, you are probably an employee.

If you are an employee, your employer must withhold income tax and the employee portion of Social Security and Medicare taxes. Your employer must pay Social Security, Medicare and unemployment (FUTA) taxes on the wages you earn. Your employer must give you an IRS Form W-2, Wage and Tax Statement, every year showing the amount of wages paid and taxes withheld from your pay. As an employee, you have the right to deduct unreimbursed business expenses from your taxes on IRS Schedule A if you itemized deductions and meet the other requirements established by the IRS.

If you are an independent contractor, the employer must give you an IRS Form 1099-MISC Miscellaneous Income, to report what it has paid you. You must pay your own income tax and self-employment tax, and you may be required to make estimated tax payments during the year. You can deduct business expenses on IRS Schedule C of your income tax return.

CALIFORNIA LAW:

The main test in California is who has the right to direct and control the “manner and means” in which the job is performed. This is similar to the IRS’ Behavioral Control described above. California then looks at secondary factors, which include:

Are the services provided on a long-term or repeating basis? Is the worker paid based on the time spent working? Are the services an integral part of the employer’s business? Does the employer establish the work hours? Does the employer determine how many hours will be worked? Does the employer dictate the order in which job tasks are to be performed? Does the worker spend all of his or her time working for one employer? Is the worker supervised? All of these factors tend to show the worker is an EMPLOYEE.

Is the worker in a distinct occupation or trade? Are the workers’ services available to the general public? Can the worker hire, supervise and pay assistants? Did the worker make a substantial investment in facilities or services? Does the worker do the job without supervision? Is the worker highly skilled or working in a specialized field? Does the worker supply the tools and other materials used to do the job? Does the worker provide the location in which the work is performed? Is the worker paid at the end of the project? All of these factors tend to show the worker is an INDEPENDENT CONTRACTOR.

Also under California law, an employer can be fined for “willfully misclassifying” an employee as an independent contractor. The amount of the fine ranges from $5,000 to $15,000 per violation. If there is a “pattern and practice” of willful misclassification, the fine can increase to $25,000 per violation.

Contact Us

Spencer Johnson McCammon LLP
2727 Camino del Rio South
Suite 140
San Diego, CA 92108
Phone: (619) 233-1313

Spencer Johnson McCammon Weekly

Spencer Johnson McCammon Weekly

Topic of the Week

Millennial Bosses

If you haven't already worked for a younger boss, it won't be long. So the days of forcing younger employees to adjust to the rest of us are in the past, it's now our job to adjust to them.

Read more...

Blog of the Week

Slate column asks readers to see the ‘upside’ of sexual harassment in the office

On Tuesday, Slate published another example of a powerful person abusing that power and thus endangering women in the workplace.

Thought for the Week

"The reason people blame things on the previous generations is that there's only one other choice."

–Doug Larson

List of the Week

from Norwegian University of Life Science

Nature Works: Working Without Windows

  • Workers without windows in cubes or offices were 5 times more likely to bring plants
  • Workers without windows were 3 times more likely to bring pictures of nature
  • Workers use pictures and plants to compensate for the lack of a window  

Top Five News Headlines

  1. Sports unions unveil universal declaration of player rights
  2. Walmart Will Let Its 1.4 Million Workers Take Their Pay Before Payday
  3. Employers would pocket $5.8 billion of workers’ tips under Trump administration’s proposed ‘tip stealing’ rule
  4. The Reckoning: Women and Power in the Workplace
  5. Healthcare Insecurities Keep Workers Locked in Jobs