Employment Misclassification

Being misclassified by your employer generally means you’re not getting money and/or benefits that you deserve. This is because misclassifying individuals as exempt or independent contractors instead of employees, allows employers to avoid paying over-time, providing benefits, and assuming the same level of liability than they would otherwise.

Here at the Law Offices of David M. Boertje, we understand what you’re fighting against. We understand that employers often abuse their power and your dependence on a paycheck to get away with committing illegal and unfair work practicing, and we are prepared to help you put a stop to it.

It’s important to understand that you are not exempt or an independent contractor simply because your employer says you are. The phrases “independent contractor” and “exempt” are legally defined and each have clear requirements and limitations. Unless you meet all three of the following criteria, you are NOT considered an independent contractor under California law:

1. You are not supervised or controlled in the performance of your work (both contractually and actually); and
2. You perform work that is outside the company’s usual scope of business; and
3. You are independently engaged in the same type of work that you are performing for the business.

For instance, if you are hired by a construction company as a construction worker and are told that you are an independent contractor, but your work is supervised closely by the company (i.e. you have a shift supervisor) and you work exclusively for them 40 hours a week or more, the court would likely find that you had been misclassified as an independent contractor. For all intents and purposes, in that situation, you are an employee who deserves benefits and overtime pay. On the other hand, if you are a freelance construction worker who regularly takes independent construction jobs, and are hired by an architecture firm who gives you the plans and trusts you to execute them, then you would be found to be an independent contractor, because you are being given the autonomy to independently execute the terms of the contract without the direct supervision and control you would expect a company to exercise over its own employees.

If you believe you have been misclassified as an independent contractor, or if you are unsure about your classification, schedule a free consultation, to find out how our firm can best help you.

There are some legitimate exemptions from overtime pay, for instance, executives, administrative and sales workers, and other professional workers may not qualify for overtime. However, there are even exceptions to these exemptions, for instance, if someone is a temporary employee hired to fill an administrative position, they may not be exempt from receiving overtime payment.

If you feel that you have been misclassified as an exempt employee, and should be entitled to overtime, we are here to help. Schedule a free consultation and a representative from our firm will assess the facts and circumstances of your unique case to determine the best possible course of action.

Employers have no motivation to change a practice that has huge financial benefits from them, so get a zealous advocate on your side to make change happen and claim compensation for the unpaid benefits and over-time that you deserve. Contact our offices today, serving San Diego County, and all of greater Southern California. If your California employer has misclassified you to save money, we will help you get the accountability and compensation that you deserve. We offer free consultations by phone and online 24 hours a day, 7 days a week.