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How can I tell if my worker status might be misclassified?

In our last post, we commented briefly on the importance of workers’ compensation as a means of recovery for those injured on the job and the fact that workers, particularly immigrants, can sometimes run into problems filing workers’ compensation claims due to worker misclassification.

The way misclassification often happens is that those who really have a working relationship of employment to a company are classified as independent contractors. According to the California Department of Industrial Relations, there is no established definition of the term independent contractor, so companies can sometimes get away with this, at least for a time. As we mentioned last time, though, it is the actual work relationship that counts, not the formal classification. 

So, how exactly can a worker know whether they are correctly classified as an independent contractor? Although the final determination depends on the governmental body scrutinizing the work relationship, the California Department of Industrial Relations does list several things workers can look for. These include:

  • Whether the company has the right to terminate the worker
  • Whether the company pays the worker an hourly wage or a salary
  • What kinds of materials and tools are supplied to the worker
  • Whether the worker is required to work on specific days or hours
  • Whether the company controls the way the manner of the work itself

The basic idea with these factors is that an independent contractor is somebody who has control over how their work is done, while an employee is more under the control of the employer. When factors stack up to show that the company or paying party has more control over the work than the worker, it leans in favor of an employment relationship.

Workers who feel that they may be misclassified need to understand that this can impact their ability to receive workers’ compensation and any mistakes need to be immediately corrected so as to protect their rights in the workplace. It can help to work on such cases with an experienced attorney to ensure one’s rights are protected.

Source: California Department of Industrial Relations, “Answers to frequently asked questions about workers' compensation for employees,” Accessed Dec. 11, 2014. 

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