Hired as 1099 but paid hourly like employee what are my rights?

File a claim with the DLSE. See weblink The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

In addition to what the last answering attorney recommended, I would want to know if you are getting all your breaks and lunches. If they are calling you an independent contractor to void having to provide these then you may also have a claim which could be litigated in civil court. This is something you may wish to speak to an attorney about.

Whether you are misclassified is fact specific. In California the Department of Labor Standards Enforcement starts with the presumption that the worker is an employee. Labor Code Section 3357. While there are guidelines, there is no set definition of the term independent contractor.The guidelines distinguishing contractors from employees fall into three categories: 1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job? 2. Financial: Are the business aspects of the worker’s job controlled by the company? (This includes how the worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.) 3. Type of Relationship: Are there written contracts defining the relationship? Will the relationship continue? Is the work performed a key aspect of the business? The most important factor is the employer’s right to control the work performed: In the case S.G. Borello & Sons, Inc. v. Department of Industrial Relations the California Supreme Court discussed the relevant factors in determining if an individual is an employee or an independent contractor. The Court said the right to control the manner and means by which the work is to be performed is the most significant factor. If the worker creates his own schedule, brings his own tools, decides how to approach the work then he may be classified as an independent contractor. If you can’t answer the previous questions with a yes, your worker is an employee. What happens if your employer misclassified you as an independent contractor? It can expect to write the IRS and the state a huge check for employment taxes and you can seek damages for missed breaks and overtime. The law provides that businesses must pay the workers’ attorneys fees as well if they prevail in a suit.