In a company, some workers do not qualify as employees; some workers may fall under independent contractors or volunteers. It is common for employers to classify their workers as 1099 independent contractors to avoid paying benefits for them. The California labor laws mainly focus and offer protection to employees and offer limited protection to independent contractors. By classifying an employee as a 1099 independent contractor, the employer is not obliged to pay wages, overtime, and payroll taxes. An employer is not required to comply with the California wage and hour laws if he hires independent contractors. For instance, for independent contractors, an employer does not have to provide meal periods and rest breaks. Stop Unpaid Wages can help you claim compensation if your employer has wrongly classified you as a 1099 independent contractor.
Who is an Independent Contractor?
There is no clear definition of who is an independent contractor is. Usually, the interpretations from courts in California and law enforcement agencies help determine if a worker is an employee or a 1099 independent contractor. When the Division of Labor Standards Enforcement (DSLE) is deciding whether a worker is an employee or a 1099 independent contractor, the first assumption is that a worker is an employee. This assumption is in line with the California Labor Code Section 3357.
When distinguishing between an employee and an independent contractor, you must have several factors in mind. None of the elements are controlling in themselves. Therefore, you have to consider all the factors before you finally come to a conclusion. Some of the factors to consider include:
- Whether the worker is involved or engaged in another business or occupation that is distinct and different for the employer’s business
- Consider whether the job description of the worker is part of the core activity or business of the employer
- Consider whether the employer provides the tools, instruments, and the workplace for the worker or whether the worker has his or her tools and instruments
- Has the employer invested in materials and equipment required to perform the work assigned to the worker?
- Consider whether the tasks assigned to the worker call for some specialized skills
- It is possible to distinguish between an employee and an independent contractor by determining if a worker performs their duties or obligations under the supervision of the employer
- Consider whether the worker has an opportunity to make a profit or a loss depending on the managerial skills that they posses
- You can examine whether the working relationship between the employer and the employee is permanent and the amount of time required to complete the assigned tasks
- Does the employer pay the worker depending on the time spent in the workplace or the job completed?
- Do the parties involved believe that they have an employee-employer relationship? However, the answer to this question does not determine the working relationship between an employer and a worker. The only way to establish a working relationship is by using objective tests interpreted by the law.
- According to California law, if an employer exercises control over how a worker executes his/her duties; the relationship is an employer and employee relationship. An independent contractor is free to perform his duties with the supervision and the control of the employer.
- At times, even when no control, an employer and employee relationship may exist. This may be the case if the employer possesses or retains control over a task or overall operation. A worker may qualify as an employee rather than a 1099 independent contractor if their duties form a vital part of the operations of the employer. At times, the type of work assigned to a worker may not call for complete control.
- When distinguishing between a 1099 independent contractor and an employee, the presence of a written document that claims that a worker is a 1099 independent contractor a qualifying factor. The fact that an employer issues a worker a 1099 form instead of a W-2 form is not a determining factor.
Your employer may continuously tell you that you are a 1099 independent contractor and not an employee. Your employer may not make any statutory deductions from your salary while paying you. At the end of the year, your employer may provide or issue you with a 1099 form instead of a W-2 form. Even with all these factors, it does not automatically mean that you are an independent contractor.
The California independent contractor misclassification law (2019) may assist workers who may have been classified as 1099 independent contractors by their employers. A recent ruling by the California Supreme court may make more workers eligible as employees.
Meal and Rest Breaks
With the ruling by the California Supreme Court, it is harder for companies to classify their employees as 1099 independent contractors. The law requires companies to reclassify employees wrongly classified as independent contractors. The reclassified 1099 independent contractors would be able to enjoy the California meal and rest break laws.
In 2016, Harvard and Princeton economists conducted a study. The study revealed that in the United States, more than 12 million workers fell under the category of independent contractors. This is more than 8% of the entire workforce in the United States.
According to the new ruling, the standard that will help to determine whether a worker is an employee or a 1099 independent contractor is the ABC test. A worker has to meet all the three requirements of the ABC test to qualify as an independent contractor. As an independent contractor:
- You must be free from the direction and the control of the company or the employer. The employer should not be the one to plan or tell you how to perform your work
- The work that you perform must be outside the usual course of the employer's business.
- You must be independently engaged in an occupation, a trade, or a business that is of the same nature as the work that the employer assigns you to perform
Your employer has a legal duty to allow you to enjoy a rest period if your work shift exceeds a certain number of hours.
A rest period refers to a 10-minute break during which you are not required to work. You are entitled to pay during a rest break. Your employer must provide you with a suitable resting facility.
The number of rest breaks you are entitled to will depend on the length of your shift. For every four-hour period that you work, you should get a ten-minute rest break. However, if you work for less than three and a half hours, you do not qualify for a rest break. If you work for a shift of more than four hours, you may get two rest breaks.
You get the first rest break immediately after completing your shift. Your second break is provided if you work a considerable fraction of the net four hours. A significant fraction means more than half of four hours. Therefore, if you work for a total of six hours, you will qualify for two rest breaks. If you work for ten hours, you will get three rest breaks of ten minutes each. The rest period will sum up to thirty minutes for a ten-hour shift. Every time you surpass a four-hour milestone, you are entitled to a ten-minute rest break.
When Should You Take Your Rest Periods?
According to California law, your rest breaks should fall in the middle of a work period is possible. The law requires your employer to make a good faith effort to ensure that you get your rest breaks in the middle of your work period. However, if it is not possible to get a rest break in the middle of work periods, your employer may schedule the rest breaks accordingly.
Your employer should authorize and permit your entitlement to a rest period. If your employer violates this law, he is liable for a penalty. If you choose to skip your rest period, there will be no penalty to the employer. However, your employer should not pressure or encourage you to skip your rest period.
On-Duty or On-Call Rest Periods
Your employer should not require you to remain on-duty or on-call during your rest period. You have a right to be free of all duties during your rest break. The employer should relinquish all forms of control over how you choose to spend your rest break. If the employer does not give you the freedom to do as you wish during your rest period, the employer may get a penalty according to California law.
Your employer has a legal obligation to allow you to take a meal break when your shift exceeds a particular number of hours. A meal break refers to a thirty-minute period during which you are free to attend to your interests. The thirty-minute period should be uninterrupted. The law does not require your employer to pay you during a meal break unless the employer fails to offer you the meal break. Despite its name, you do not have to use your meal break to take means. Besides, your employer does not need to provide you with food during this period. During your meal period, you are free to leave the premises and run your errands. You may also choose to remain at the premises; the choice is entirely up to you.
How Many Meal Breaks Should You Take?
The number of meal breaks you take will depend on the length of your shift. For instance, if you work for five hours or less, you are not entitled to a meal break. If you work for more than five hours, you are entitled to a meal break for thirty minutes. If you work for a shift or more than ten hours, you qualify for a second meal break of thirty minutes.
When computing the meal break that you deserve, the emphasis is on the number of hours that you work and not the number of hours that you are expected to work. For instance, if you are scheduled to work for nine hours, but you only end up working for 4.5 hours, you do not qualify for a meal break. According to the law, your meal break has to start before the end of your fifth hour of work. If you are eligible for two meal breaks, your second meal break has to begin before your tenth hour of work.
What is the Duty of the Employer?
When providing you with a legally required meal break, it is the duty or obligation of the employer to relieve you of all your duties. The employer must not exercise any form of control over you during this period. The employer should allocate to you a reasonable period to undertake the entire thirty-minute break without interruption. It is not the duty of the employer to police you and ensure that you do not work during your meal break. However, the employer must not discourage or impede you from taking your meal break.
Waiver of a Meal Break
If you work for six hours or less, you can have a joint agreement with your employer to waive your meal break. Your meal break may not be waived if your work is more than six hours. If your work shift is twelve hours or less, you may waive your second meal period through a mutual consent with your employer. This would take place only if the employer did not waive your first meal break. There is no requirement for a meal break waiver to be in writing. A verbal waiver may be just fine. However, most employers will insist on having a written waiver in order to protect themselves from penalties of violating California's wage and hour laws.
Can You Have an On-Duty Meal Break?
In some situations, your employer may not be able to relieve you of your duties during a meal break. Therefore, you will have an on-duty meal break. Your employer will not get a penalty for this. However, your employer will pay you for the work done during a meal break in accordance with the law. You may have an on-duty meal break if the type of work does not allow you to take a break. You may also have an on-duty meal break if you are in agreement with your employer to have a paid on-duty meal break. You are free to revoke an on-duty meal break whenever you choose to.
During a meal break, you can leave the premises of your employer and go to any location that you please. However, if you have to take your meals at the place of work, your employer must provide a suitable place where employees can take their meals.
In some instances, the law requires the employer to get some facilities for securing hot meals and drinks. This requirement mainly applies if your shift is ending between 10.00 pm and 6.00 am. The employer must offer a suitable sheltered place from where you can take your meals.
Your Employer Denies You Meal and Rest Breaks
The law requires an employer to pay a worker a one-hour extra pay if the employer fails to provide a rest or meal break. To compute the rate, you will use the employee's regular hourly rate of pay. When the law requires you to undertake a meal or rest break, your employer may choose to honor the law and provide you with the necessary rest and meal breaks. Your employer may also decide to agree to waive the meal break as long as you are comfortable about the waiver. The employer may also choose to pay you a penalty of a one-hour rate for failing to offer you the necessary rest break.
Your employer will not pay the penalty if you choose to skip your meal break even if the employer is aware that you skipped the meal break. If you skip your meal break, even if you do not qualify for the extra hour of pay, your employer will pay you for the work that you perform during the meal break.
Does it Make a Difference if I am a 1099 Independent Contractor Rather Than an Employee?
It makes a significant difference if you are a 1099 independent contractor and not an employee. As a 1099 independent contractor, the California wage and hour laws, including the meal and rest break laws, will not protect you. As an employee, you are under the protection of California labor laws, and you can always go to agencies like DSLE to seek compensation. As a 1099 independent contractor, you can only go to a court of law to seek compensation. It is for this reason that you should not allow your employer to misclassify you as a 1099 independent contractor.
Can Your Employer Retaliate When You Deny The Status of an Independent Contractor?
You can always file a claim for discrimination or retaliation if your employer victimizes you for denying the status of a 1099 independent contractor. Under California law, you have a right to fight for your right employment status in a company.
Contact an Los Angeles Employment Attorney Near Me
As a 1099 independent contractor, you do not have meal and rest break rights under California law. If you feel that you are more of an employee than an independent contractor, contact Stop Unpaid Wages at 424-781-8411. We will assist you in proving that you have a right to meal and rest breaks, among other benefits.