Employment Classification: Has Your Employer Gotten It Right?

Some employers misclassify their employees in order to avoid certain types of legal obligations. Two common types of misclassification are: (1) classifying an employee as exempt (sometimes referred to as "salaried") instead of non-exempt (or "hourly"); and (2) classifying an employee as an independent contractor.

Exempt vs. Non-Exempt Employees

Exempt employees usually are paid a salary (a set amount regardless of number of hours worked) and are not entitled to overtime pay, meal and rest breaks, and certain other benefits or rights. But just because your employer pays you a salary, that does not mean you have been properly classified as an exempt employee. In order to be properly classified, your job or position must meet certain minimum requirements.

Non-exempt employees, on the other hand, usually are paid an hourly wage, and are entitled to overtime pay, meal and rest breaks, and other benefits or rights.

If you believe your employer has misclassified you as an exempt employee, you may be entitled to additional pay (for example, for overtime hours worked, missed meal and rest breaks, and other penalties). It is important that you contact an employment attorney as soon as possible to assess whether you have been misclassified and if so, what your rights are.

Employee vs. Independent Contractor Classification

Employers sometimes misclassify workers as independent contractors, as opposed to employees, to avoid certain legal obligations such as payroll taxes, workers' compensation insurance, and employee benefits.

The main factor in determining whether a worker is an employee or independent contractor is the degree of control the employer has over how the worker performs his or her work (such as where and when to perform the work, or the level of instruction in how the work should be accomplished). Other factors also come into play, such as the method of payment (flat-fee for a project, as opposed to hourly, weekly, or monthly pay) and the scope of the relationship between the worker and the employer.

The fact that the worker has signed an independent contractor agreement does not, by itself, mean the worker has been properly classified as an independent contractor.

Contact Shivayi Law Firm To Consult With An Experienced Southern California Attorney

I am lawyer Nima Shivayi in Pasadena, serving clients throughout Los Angeles, Orange, San Bernardino and Riverside counties. If you believe an employer has improperly classified you as an independent contractor, contact me at 626-432-5432 as soon as possible so that I can assess your situation and advise you about your rights.