Employee Misclassification: How California Employers Sometimes Skirt Overtime Rules

Terms of employment: misclassification within the state of California

Table of Contents

Employee Misclassification Introduction:

In the heart of California’s bustling employment scene lies a subtle, often overlooked issue: employee misclassification. On the surface, the distinction between an employee and an independent contractor may seem inconsequential. Yet, delve deeper, and it reveals a complex web of rights, dues, and obligations. For many, Marina Fraigun of the Fraigun Law Group in LA is the beacon of hope, tirelessly fighting against such employment malpractices.

Employee vs. Independent Contractor: A Deeper Dive into California’s Workforce Dynamics

In California, the line between an employee and an independent contractor has been a point of contention, debate, and legal battles. At the crux of this is the fundamental nature of work and rights associated with each classification.


  • Nature of Relationship: An employee typically has a long-term or indefinite relationship with an employer. The employer often provides training and has a significant say in how tasks are executed.
  • Financial Control: Employees usually don’t invest in work equipment or office space. They receive regular wages or a salary, irrespective of the company’s financial health. This includes benefits like health insurance, paid leave, and retirement contributions.
  • Behavioral Control: Employers have the right to dictate the specifics of work – where it’s done, when it’s done, and often, how it’s done.
  • Integration: Employees are deeply integrated into a company’s operations. Their roles are often pivotal to the day-to-day running of the organization.

Independent Contractor:

  • Nature of Relationship: Independent contractors are typically hired for specific tasks or projects. Once the task or project is done, the relationship often ends unless a new agreement is forged.
  • Financial Control: Independent contractors invest in their tools, technology, and space. Their payment is typically tied to project completion or specific milestones. They don’t receive benefits like health insurance or paid leave from the hiring firm.
  • Behavioral Control: While the hiring firm can specify the outcome or result, they don’t control the specifics of how the task is done. The contractor has autonomy in their method and processes.
  • Integration: Contractors aren’t deeply integrated into the company’s core operations. Their work is peripheral or project-specific, not tied to the continuous, day-to-day functioning of the company.

A Real-World Example of Employee Misclassification: 

Consider a software company, “TechSolutions”. They hire a software developer, Jane, as a full-time employee. Simultaneously, they contract Mike, a freelance graphic designer, for a three-month project to revamp the company’s branding.

Jane: Receives a monthly salary, health insurance, and paid vacations.

Works 9 am to 5 pm at TechSolutions’ office.

Is provided with a company laptop and training to use the company’s software development tools.

Attends daily meetings and reports to a manager who oversees her tasks.

Mike: Gets paid based on milestones – initial design, revisions, and final delivery.

Uses his equipment, tools, and software.

Sets his hours, choosing to work late nights and weekends from his home studio.

Is only expected to deliver the branding materials by the end of three months.

In this scenario, Jane’s relationship with TechSolutions bears all the hallmarks of an employee. In contrast, Mike’s association with the company aligns with that of an independent contractor. Both are crucial for the company’s objectives but interact with the company in fundamentally different capacities.

The Consequences of Employee Misclassification:

The ramifications are profound, beyond lost overtime, there’s the absence of healthcare benefits, retirement plans, and workplace protection rights. It’s about dignity, security, and long-term well-being.

How to Determine if You’ve Been Misclassified: A Comprehensive Guide

Employee misclassification is a prevalent issue, but recognizing it can be complex, given the myriad ways employment dynamics manifest. Here are crucial factors and detailed insights to help you assess if you’ve been wrongly labeled.

  1. Job Expectations:

What It Means: Beyond your core tasks, are there other implicit or explicit expectations akin to those of a traditional employee? Do your responsibilities fall outside the initial scope of your agreement?

Dig Deeper:

  • Meetings: Are you required to attend regular staff meetings, training sessions, or company retreats?
  • Representation: Are you expected to represent the company in client meetings, trade events, or conferences?
  • Work Hours: Even if your contract says you have autonomy, are you subtly expected to align with the company’s working hours?
  • Why It Matters: These expectations often blur the boundaries between a contractor and an employee. If you’re fulfilling duties similar to a regular staff member, it could be an indicator of misclassification.
  1. Integration into the Company:

What It Means: How embedded are you in the company’s daily activities, culture, and operations?

Dig Deeper:

  • Communication Tools: Do you have a company email address, access to internal communication platforms, or an extension on the company phone system?
  • Workspace: Are you provided with a dedicated workspace, be it a desk, an office, or even storage for tools/materials?
  • Company Benefits: While not receiving standard benefits like health insurance, are you invited to partake in company perks, like gym memberships, team lunches, or social outings?
  • Branding: Are you required to use company branding on your materials, wear a uniform, or have a business card affiliated with the company?
  • Why It Matters: When you’re deeply entwined in the company’s ecosystem, it could point to an employer-employee relationship rather than that of a company and an external contractor.
  1. Financial Dependence:

What It Means: Is your financial relationship with the company reminiscent of an employee, or do you genuinely operate as an independent business entity?

Dig Deeper:

  • Payment Structure: Do you receive regular payments akin to a salary, or are your payments tied explicitly to projects, tasks, or deliverables?
  • Expense Reimbursements: Does the company reimburse you for job-related expenses? For instance, if you’re a contractor, typically you’d factor these into your fees rather than billing them separately.
  • Tools and Equipment: Are your primary tools, software, or equipment provided by the company? Independent contractors typically invest in and use their tools.
  • Income Sources: Do you have multiple clients or just one primary source of income? If the majority of your income is from one company, it might suggest an employee-like dependence.
  • Why It Matters: Financial dynamics are a significant indicator. True independent contractors usually bear the risks and rewards of their business, while employees have a more stable, predictable financial relationship with their employer.

What to Do If You Suspect Employee Misclassification:

It’s crucial to act methodically:

Document Rigorously: Maintain detailed logs—emails hinting at employee-like expectations, timesheets, or even photographs showcasing your involvement in company activities.

Engage in Dialogue: Sometimes, a simple conversation with HR can bring clarity.

Seek Expert Counsel: Before escalating, consult specialists. Marina Fraigun and her team can provide invaluable insights, guiding your next steps.

Employee misclassification contract
Diving deeper in employee misclassification and contracts


In a state as dynamic as California, employment intricacies aren’t just legal matters—they shape the very fabric of the workforce. And while laws like AB-5 provide structure, it’s champions like Marina Fraigun who ensure they serve their true purpose: protecting the rights and dignity of every worker.

Call-to-Action (CTA):

If you’re navigating the murky waters of an employment misclassification in California, you need a compass. Marina Fraigun is more than just a lawyer; she is an advocate for fairness and justice. Reach out today for clarity, counsel, and the confidence to know your rights.



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