Employee misclassification is a major issue faced by workers in Orange County and in the Greater Los Angeles area. This is an issue taken very seriously by the state as the legislature passed Senate Bill 459 in 2011 to provide penalties to employers for willfully misclassifying employees. This law is enforced by the California Department of Industrial Relations (DIR), and there are fines of no less than $5,000 and no more than $25,000 per offense.
Employee misclassification involves the act of willfully treating an employee as an independent contractor for the purpose of avoiding the payment of overtime wages, workers’ compensation, and employment benefits afforded to full-time employees. This is a serious violation that occurs frequently in many industries including farming, and the newer so-called “on demand” or “gig” economy.
However, as our Los Angeles employment lawyers can explain, it is also common in traditional occupations such a building and construction trades. If a worker is supervised in most, if not every aspect, of his or her employment, and the employer provides tools and instruction, the worker is most likely an employee within the meaning of the California labor code. That includes for purposes of workers’ compensation.
If on the other hand, the worker is paid to do a job and the exact means of performance is not supervised, then this person may be truly considered an independent contractor. A classic example of a contractor is someone who is hired to build an add on to a home. The contractor will work with an architect if necessary, and perform the task according to the homeowner’s specifications and local building codes, but the contractor will use his own equipment, hire his own laborers, and may even hire subcontractors to work on specific parts of the job. If the contractor is fired, he will be out of that job, but will not generally be out of work as he likely has other clients and other projects.
The situation can get confusing when a company or government agency contracts a company to do a job, and that contractor then hires employees. While these employees are typically referred to as contractors, they are actually employees within the meaning of the California labor code.
According to a recent news article from Reuters, a woman who is being a called a contractor was killed while working at oil refinery in Texas. She was working for a contractor that typically provides labor to refiners and other industrial plants such as ones that manufacture chemicals. Authorities have said, while she was on the job, an overhead pipe came lose and landed on her head resulting in fatal injuries. Her specific job involved removing impurities form gasoline to meet the standards of federal and state regulatory agencies. She was 31-years-old at the time of her death.
While there have been no allegations of employee misclassification in this case, we can see that in the various media reports of the workplace accident that she is being a called a contractor. Her exact employment agreement is unknown, but as discussed above, working for a contractor does not make a worker a contractor. In all likelihood, this worker was an employee of the company contractor hired to work on the refinery job.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
Contract worker dies in accident at Exxon’s Beaumont refinery, December 1, 2017, Reuters
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