Employee vs. Independent Contractor Misclassification

Are you an employee or an independent contractor?

The determination of whether a worker is an independent contractor depends on many factors, all of which must be considered, but none of which is controlling by itself. Some factors are:

  • Does the employer have control or the right to control the manner and means used by the worker to do his work?

  • Does the employer supply the worker with the tools and place to perform the work?

  • Does the worker have a set schedule or is he free to establish his own schedule?

Generally, the more control an employer has over a worker's day-to-day responsibilities, the more likely the worker is an employee. The less control an employer has over a worker's day-to-day responsibilities, the more likely the worker is an independent contractor.

What is the impact of a misclassification of workers?

Whether the misclassification of workers by employers is intentional or inadvertent, the consequence to the employer is the same. The law imposes costly penalties on employers who have improperly classified an employee as an independent contractor. Depending on the circumstances, an employer may also be liable for other damages under applicable laws, such as a judgment for wages owed, or medical expenses for a worker who has been injured on the job.

Misclassification of independent contractors precludes workers from enjoying the benefits and protections afforded employees under many of today's laws, including minimum wage and overtime, meal and rest periods, workers' compensation, unemployment insurance benefits and anti-discrimination laws.

If you believe that you have been improperly classified as an independent contractor or need assistance in determining the proper classification of workers, please contact the DeVito Law Group today.


From its law office in Sausalito, California, The DeVito Law Group serves clients in Alameda, Oakland, San Francisco, San Mateo, San Jose, San Rafael, Walnut Creek, Berkley, Modesto, San Mateo County, Marin County, Contra Costa County, Santa Clara County, Sonoma County, Napa County, San Joaquin County, and Stanislaus County.