Q: Is there a benefit to sue for being a mis-classified independent contractor? I'm not owed back or overtime pay.
I've been working full time for over 3 years as a video editor for a large corporation. They tell me what to do and when to do it. I use the company's equipment. I pay self employment taxes. I only work for them. I've read AB5 California which seems to exempt editors. However, I do pass the Borello test for an employee. I was laid off because of company cutbacks. I cannot collect unemployment. What employee benefits could I receive if I file a lawsuit? Thanks for your advice.
A:
If you have been misclassified as an IC instead of an employee, that means you have likely not been treated according to the CA Labor Code. Common violations in such a situation include failure to provide legally compliant meal and rest periods, failure to provide compliant wage statements, failure to pay in a timely manner as required by the Code, failure to pay overtime, failure to reimburse all expenses incurred for the employer, failure to pay minimum wage. In addition going forward you are not covered by workers compensation which means if you get injured you will be without those substantial resources. Whether it is worth it or not to proceed with a claim will depend on the specific issues your case reveals.
If you with to consider proceeding, 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.
A: There are multiple benefits from making sure you are correctly classified, including but not limited to: (i) eligibility for unemployment and disability benefits; (ii) social security credits leading to higher retirement income; (iii) the employer paying the employer portion of the payroll taxes equal to roughly 7.2% of wages, instead of you paying it as self-employment tax; (iv) entitlement to employee protections such as waiting time penalties, paystub penalties, late payment penalties, premium pay for missed meal and rest breaks, etc.
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