Q: Hi I work for an auto detail company as an assistant to the owner. I come in weekly and normally stay in office
He gives me 1099 as self employed even though I’m not and I’m paid every two weeks and stay in office.
First, it needs to be determined whether you are actually an independent contractor (IC) and not an employee. Just because the employer characterizes you as an IC, does not make it so. In California, it is not easy to qualify to be an IC if the employer exercises control over you and you are performing work that is the core of the company's business.
A worker is considered an employee and not an independent contractor unless the hiring entity meets all three conditions of the ABC test:
(1) The person is independent of the hiring organization in connection with the performance of the work, both under the contract for the performance of the work and in fact.
(2) The person performs work that is outside the hiring entity’s business.
(3) The person is routinely doing work in an independently established trade, occupation, or business that is the same as the work being requested and performed.
Workers are considered employees unless proven otherwise. The hiring organization must show that workers meet all conditions of the ABC test in order to classify them as independent contractors unless there is a statutory exclusion or determination of employment.
If you are actually an employee, you should be given W-2. Also, if you are an employee wrongfully designated as an IC, you may have other potential violations of the Labor Code that you can adjudicate against this employer.
At this point, it would be a good idea to consult with an employment law attorney who will further examine your situation and explain your options. Most employment law attorneys in California offer free of charge initial consultations, and thereafter may take your case on a contingency basis, meaning you do not have to pay attorney’s fees unless and until there is a positive outcome for you. They may also advance either all or partial costs of litigation.
You can look either on this site in the Find a Lawyer section or go to California Employment Layers Association (www.cela.org), an organization whose members are committed to representing employees’ rights.
Maya L. Serkova
Brad S Kane agrees with this answer
At first blush it seems pretty clear that you have been misclassified as an independent contractor. What that means is that there are several rights that arise out of the California Labor Code that are probably not being provided to you, including the right to meal periods, rest periods, overtime and proper wage statements.
It would be a good idea for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law offer a free or low-charge consultation and then if the matter has merit and sufficient value, they work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
Brad S Kane agrees with this answer
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