San Diego Employee Misclassification Lawyer
Employee misclassification is a serious problem. A San Diego employee misclassification lawyer can help you assess your case and fight for your rights and the benefits you deserve. Contact Ferraro Vega at (619) 693-7727 to schedule a free consultation.
Do you believe you have been misclassified as an independent contractor or exempt employee? If you have, you may miss out on benefits like overtime pay, required rest periods, and other forms of protection.
How an Employment Lawyer Can Help with Your Employee Misclassification Case
Employee misclassification is a common issue with serious ramifications.
When your employer misclassifies you, you may be missing out on a wide range of employee benefits and protections you deserve.
California and federal law allow you to sue your employer for misclassification and recover damages, but these cases are notoriously complex.
You may be concerned about retaliation from your employer or unsure about how to proceed. A team of experienced San Diego employment lawyers can be an invaluable asset to help you protect your legal rights and navigate the legal system.
Ferraro Vega San Diego Employment Lawyers focuses entirely on employment litigation with years of experience we put to work on your behalf. We work on a contingency-fee basis to give you the representation you deserve without out-of-pocket legal costs.
Count on Ferraro Vega San Diego Employment Lawyers to:
- Offer sound legal advice and guidance
- Investigate your case to determine if you were willfully misclassified
- Determine the applicable laws under which you can make a claim
- Calculate the damages you have suffered in unpaid wages, overtime, breaks, and other benefits
- Negotiate with your employer on your behalf
- File a lawsuit and take your case to court to seek the full damages you deserve
You do not need to navigate complicated employment law or fight for your legal rights alone. Call our law office to schedule a free case review with a San Diego misclassification lawyer today to discuss your case.
Employee Classification Determines Which California Labor Laws Apply
California labor code grants employees a range of legal rights and protections. However, the rights you have will depend on your classification. If you are an independent contractor or an “exempt” employee, you may not be entitled to the same benefits and protections as regular employees.
Employee misclassification can be unintentional, but it is a tactic often used by unethical employers to avoid paying employees what they deserve.
California employees are entitled to many forms of protection such as:
- Minimum wage requirements
- Rest periods for meals and breaks
- Overtime pay and double-time
- Family and medical leave
- Unemployment benefits
- Workers’ compensation benefits if hurt on the job
- Part of your Social Security and Medicare taxes paid by your employer
- Workplace health and safety policies
- Anti-discrimination policies
Many of these benefits under California wage and hour laws and other employment laws are not available to exempt employees and independent contractors.
Misclassification of Independent Contractors Versus Employees
The most well-known type of misclassification involves independent contractors. Under federal and state law, employees and independent contractors are treated very differently. If you are classified as an independent contractor, you do not have access to the benefits of non-exempt employees such as:
- Workers’ compensation benefits
- Unemployment benefits if laid off
- Health insurance through your employer
- Social Security and Medicare taxes paid in part by the employer
- Family and medical leave
- Overtime pay and other wage and hour protections
- Stronger protection from workplace discrimination, harassment, and employer misconduct
Rideshare companies like Uber have made headlines for years over their fight over classifying drivers as independent contractors. In 2020, rideshare and gig companies earned a major win when California voters approved Prop 22. The measure makes app-based drivers exempt from California law AB-5 which requires most independent contractors in the state to be classified as employees and receive workplace benefits.
California Labor Code Section 226.8 makes it illegal for an employer to intentionally or willfully misclassify an employee as an independent contractor. Misclassifying employees as independent contractors is a serious problem that opens employers to lawsuits. If you have been the victim of contractor misclassification, either intentionally or unintentionally, you may have the right to sue for damages.
Under California law, you have the right to file a wage and hour lawsuit over the misclassification.
You may be entitled to damages for:
- Unpaid overtime
- Unpaid wages
- Unpaid rest and meal breaks equal to one hour’s pay at your regular pay rate for every break you did not receive
- Interest and penalties
If your employer willfully misclassified you, they may face a civil penalty of $5,000 for $25,000 for every violation.
If you were misclassified intentionally and not through a good-faith error, you may also be entitled to “liquidated damages” equal to twice your unpaid wages plus interest.
You also have the right to file a PAGA claim against your employer under the California Private Attorney General Act. This act authorized injured employees to sue their employers for California labor code violations. If successful, a PAGA claim allows employees acting as private attorney generals to keep 25% of the penalties they collect. The remaining 75% go to the state. These penalties are separate from the unpaid wages you are entitled to.
A San Diego employment lawyer at Ferraro Vega San Diego Employment Lawyers can help you determine if you have been misclassified and seek the benefits you deserve.
How San Diego Courts Determine if You Are an Employee or Independent Contractor
Thanks to a 2018 Supreme Court decision, California courts now use the ABC Test to determine a worker’s correct status. This test places the burden on the employer to prove someone is an independent contractor, not an employee.
You are presumed to be an employee unless all of the following are true:
- You generally have a business, trade, or occupation independently established that’s of the same nature of work that you perform for the employer,
- Your work is outside the scope of the business, and
- You are free from the employer’s control and direction while you work.
If any terms are not met, you are considered an employee unless you fall under specific exemptions.
A court can consider many facts to determine your status such as whether you can be fired for cause or at will, who decides the manner and timeline of your work, and whether you are supervised.
You may also be entitled to bring a claim under the federal Fair Labor Standards Act (FLSA) instead of California state law. However, federal law does not have a single test to determine whether someone is an independent contractor or employee as many factors are considered. You may be entitled to double your unpaid wages plus interest under FLSA.
Misclassification of Exempt Versus Non-Exempt Employees
There are two types of employees in California: exempt and non-exempt. Non-exempt employees are regular employees who are entitled to overtime compensation, minimum wage, and mandated breaks for meals and rest. Exempt employees, on the other hand, must be paid at least twice the minimum hourly wage for their work and are not entitled to breaks or overtime.
Most exempt employees work in professional white collar, administrative, or executive roles. They are usually paid a salary and are not hourly employees.
Misclassifying an employee as exempt means companies can force employees to work more while paying them less. If you are misclassified as exempt, your employer may try to make you work overtime without paying overtime compensation or force you to work through breaks.
Are You Considered an Exempt or Non-Exempt Employee in San Diego?
Employees are only considered exempt when they meet all of the following requirements:
- Regularly exercises their own discretion and judgment in work tasks
- Spends at least 50% of their job on professional, administrative, or executive tasks, and
- Earns a salary that is at least twice the minimum wage in California for a 40-hour workweek.
If these conditions are not met, the employee is non-exempt.
If you have been misclassified as exempt, you may have a claim against your employer. You may be entitled to damages based on what you should have been paid.
- Unpaid overtime with interest
- Compensation for breaks that were not provided
- Attorney’s fees and litigation costs
Ferraro Vega San Diego Employment Lawyers can help you determine if you have been misclassified as exempt and seek the damages you deserve.
Contact a San Diego Employee Misclassification Lawyer for a Free Consultation
Do you believe you have been misclassified by your employer? While sometimes an honest mistake, employee misclassification is often intentional to avoid paying workers what they deserve. Ferraro Vega San Diego Employment Lawyers is here to help you exercise your legal rights and fight for the fair compensation you deserve.
Contact our law office today to schedule a free consultation with an experienced San Diego employee misclassification lawyer to discuss your legal options.