Do I need a lawyer for employee misclassification in California?

Yes, in most cases. Misclassification claims are legally complex and can result in significant back pay, penalties, and benefits. An employment attorney can determine if you're truly misclassified and calculate what you're owed for overtime, breaks, expenses, and benefits.

How do I know if I'm misclassified as an independent contractor in California?

Under California's ABC test (AB5), you're an employee unless: (A) you're free from control and direction, (B) you perform work outside the usual course of the hiring entity's business, AND (C) you're engaged in an independently established trade. If any prong fails, you're likely an employee.

What can I recover if I was misclassified in California?

You may recover unpaid overtime, meal and rest break premiums, unreimbursed business expenses, minimum wage violations, waiting time penalties, benefits (health insurance, retirement, PTO), and penalties under PAGA. Claims can be substantial for long-term misclassification.

Am I Misclassified? Do I Need a Lawyer?

Answer 6 quick questions to get a personalized recommendation

How are you currently classified by your employer?

Independent contractor (1099)

Exempt salaried employee (no overtime)

"Gig worker" or platform worker

Non-exempt hourly employee (I get overtime)

How much control does the company have over HOW you do your work?

High control - they set my schedule, methods, tools, and procedures

Moderate - some flexibility but they dictate most aspects

Low - I have significant autonomy in how I complete work

Full freedom - I truly operate my own independent business

Is your work a core part of the company's regular business?

Yes - I do the same work as their regular employees

Somewhat - my role is integrated with their main business

Not really - I provide a specialized service they don't normally do in-house

No - I'm clearly outside their normal business operations

Do you work for other clients or just this company?

Only this company - they're my sole source of income

Mostly this company with occasional other work

Multiple clients - this is one of several

I run my own business with my own clients

How long have you worked in this arrangement?

Over 3 years

1-3 years

6 months to 1 year

Less than 6 months

What benefits or protections are you missing?

Multiple: overtime, breaks, expense reimbursement, benefits

Overtime pay for hours over 8/day or 40/week

Expense reimbursement (phone, car, tools, etc.)

Just workers' comp or unemployment insurance

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You May Be Misclassified - Consult an Attorney

Your answers suggest you may be misclassified as an independent contractor or exempt employee. Misclassification claims can result in substantial back pay, penalties, and benefits. An employment attorney can evaluate your situation under California's ABC test.

Find an Employment Attorney Create Demand Letter

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Your Classification May Be Correct

Based on your answers, you may be properly classified. However, if you still have concerns, you can file a complaint with the Labor Commissioner or consult with an employment attorney.

File DLSE Claim if Concerned Create Demand Letter

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Your Status Is Unclear - Get Professional Advice

Your situation has elements that could go either way. Misclassification law is complex, and only a professional can evaluate your specific circumstances. Many employment attorneys work on contingency.

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Employee Misclassification in California

California has cracked down hard on employee misclassification through AB5, making it harder for companies to classify workers as independent contractors. If you've been misclassified, you may be entitled to significant back pay and benefits.

California's ABC Test for Independent Contractors

Under AB5, a worker is an employee unless the hiring entity proves ALL THREE:

(A) Freedom from control: The worker is free from the control and direction of the hiring entity in connection with the performance of the work
(B) Outside usual course of business: The worker performs work that is outside the usual course of the hiring entity's business
(C) Engaged in independent trade: The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed

If ANY prong fails, you're an employee entitled to all labor protections.

Two Types of Misclassification

Type	What It Means	What You're Missing
Independent Contractor	Paid on 1099, no taxes withheld, no benefits	Overtime, breaks, expense reimbursement, workers' comp, unemployment, benefits
Exempt Employee	Salaried, no overtime regardless of hours	Overtime pay, sometimes meal/rest break protections

What You Can Recover

Unpaid overtime: 1.5x for hours over 8/day or 40/week
Meal and rest break premiums: 1 hour of pay per missed break per day
Expense reimbursement: Phone, car, tools, uniform costs
Minimum wage violations: If effective hourly rate fell below minimum
Waiting time penalties: Up to 30 days' pay
Pay stub violations: Up to $4,000
PAGA penalties: Civil penalties shared with the state
Benefits value: Health insurance, retirement, PTO you should have received

Signs You're Misclassified as a Contractor

You work set hours determined by the company
Company tells you how to do the work
You work exclusively or primarily for one company
You use the company's equipment and systems
You do the same work as company employees
You've worked there for months or years
You can't set your own rates or negotiate terms

Signs You're Misclassified as Exempt

Your job duties don't actually meet exemption requirements
You don't supervise anyone (required for most exemptions)
You don't exercise independent judgment on significant matters
You're paid less than 2x minimum wage (required for exemptions)
More than 50% of your time is spent on non-exempt tasks

Industries with High Misclassification Rates

Gig economy (rideshare, delivery, TaskRabbit)
Trucking and transportation
Construction and trades
Home healthcare and caregiving
Janitorial and cleaning services
IT and tech consulting
Entertainment and production
Real estate and mortgage
Staffing agencies

Why You Need an Attorney

Complex legal analysis: ABC test and exemption rules are nuanced
High-value claims: Long-term misclassification creates substantial damages
Class action potential: If others are similarly misclassified
PAGA claims: Require attorney to pursue
Evidence gathering: Need to obtain records and calculate damages

Statute of Limitations

Wage claims: 3-4 years depending on theory
PAGA claims: 1 year
Tax implications: IRS may allow claims going back further

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