San Francisco Employee Misclassification Lawyer

Misclassified Employees


The U.S. Department of Labor has published a worksheet that describes the factors that courts generally consider under the Fair Labor Standards Act when determining whether an employment relationship exists.  These include:

  1. The extent to which the work performed is an integral part of the employer’s business;
  2. Whether the worker’s managerial skills affect his or her opportunity for profit and loss;
  3. The relative investments in facilities and equipment by the worker and the employer;
  4. The worker’s skill and initiative;
  5. The permanency of the worker’s relationship with the employer;
  6. The nature and degree of control by the employer.

California law is more protective of workers than federal law. Under California Labor Code Section 2750.3, enacted by the Legislature in 2019, a worker is deemed to be an employee rather than an independent contractor of the hirer if any one of the following is true: (1) the worker is not free from the control and direction of the hirer; (2) the worker performs work within the usual course of the hiring entity’s business; or (3) the worker is not customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.  Thus, for example, truck drivers or delivery persons who perform work for a delivery or transportation company are employees of the company for purposes of California wage law. Similarly, delivery workers who only perform delivery work for a single company are deemed employees of that company despite being classified as supposed business owners.


So what can a worker who has been misclassified do about it?  In California, Labor Code Section 226.8 makes it unlawful to willfully misclassify an employee as an independent contractor.  Under Section 226.8, employers can face penalties ranging from $5,000 to $15,000 for each isolated violation of the statute, or $10,000 to $25,000 for each violation of the statute if it is determined that the employer is engaging in a “pattern or practice” of misclassification.  California’s Private Attorney General Act (PAGA) permits employees who have been misclassified to collect these penalties in a representative action on behalf of the state.  Under PAGA, a successful employee acting as a private attorney general keeps 25% of the penalties collected, while 75% goes to the state.

Employees can also recover their employment-related business expenses and losses under California Labor Code Section 2802.  These business expenses could include items like equipment, tools, fuel, and other similar costs that should have been paid by the employer if the employer misclassified the worker as an independent contractor.

Misclassified employees may also be entitled to minimum wage and overtime compensation under California Labor Code Section 510 and Section 1194 and under 29 U.S.C. Section 201 et seq. of the Fair Labor Standards Act.

The wave of private and federal enforcement actions points to a problem that remains widespread.  Workers who believe that they have been misclassified as independent contractors should contact an experienced employment law attorney to discuss their rights and potential remedies.