What if I think I am misclassified as an independent contractor and therefore, I am not being paid overtime?
If you believe that your employer misclassified you as an independent contractor and you weren’t paid overtime, you may file an wage claim in California with the Labor Commissioner’s Office to recover lost overtime wages. You may also file an action in court in California. Once you file a wage claim or an action in court, your status of employment will be determined. You will be determined as either an employee or an independent contractor before the issue of overtime will be discussed and decided. If you are found to be an employee and you no longer work for your employer, you may file a waiting time claim against your former employer. A waiting time penalty can be issued for the time that passed between the end of your employment to the time you file a claim. You are not eligible to file a waiting time claim if you are an independent contractor. Only employees may file waiting period wage claims. [Read: New penalties for willful misclassification of employees as independent contractors.]
Example:
Jane’s employer insists that Jane is an independent contractor rather than an employee and does not pay her overtime. Jane believes that she is an independent contractor and she wants to recover lost overtime premiums. Jane decides to file a wage claim in California with the Labor Commissioner’s Office. Once Jane files the wage claim, the Labor Commissioner’s Office will examine to see if she is indeed an independent contractor or an employee. Once Jane’s employment status if verified, the Labor Commissioner’s Office will decide if she is owed overtime or not If Jane is found to be an employee, her employer may have to pay her lost overtime. If Jane is found to be an independent contractor, she wouldn’t be entitled to lost overtime. Additionally, if Jane is found to be an employee and she no longer works for her past employer, she may file a waiting time wage claim. A waiting time wage claim could result with Jane receiving some compensation for the time her employment ended up to the time she files the claim. If Jane is found to be an independent contractor, she would not be able to file a wait time wage claim in CA.
If you have a question about California employee or independent contractor law or want to file a wage claim in California, contact us now.