Rules That Define Contractors Vary

by Patrick Mortimer
Employee Rights Attorney
Mission Viejo, California

Originally Published in The Orange County Register, October 27, 2003

Q: I have worked for my boss for 12 years. I was told I was going to be considered an independent contractor instead of an employee. My boss gave me my schedule and said it pays half of my medical insurance. My accountant states that because I’m a professional, my boss can get away with this. What are my rights?

A: "There is no concrete rule to determine whether you would be considered an independent contractor, especially with the few facts presented in your situation," says Patrick Mortimer, an attorney at Don D. Sessions of Don D. Sessions Law Corp. in Mission Viejo.

"Government agencies and the courts look to various factors to make the determination. Basically it is who has control of the means and manner for doing the job.

"To make this determination, most agencies and the court use factors such as right to control when, where, and how the work is done; what skill or expertise is required; who supplies the instruments, tools, and place; benefits; method of payment; parties’ understanding; hiring and firing of assistants; who realizes profits and losses, etc. That you are a professional is just one of the factors to be considered.

"You may be considered an independent contractor under some laws and an employee under others. Various state and federal laws may be involved.

"State agencies such as the Department of Fair Employment and Housing, Employment Development Department, Division of Labor Standards Enforcement and Franchise Tax Board may treat your situation differently. The same is true of federal agencies such as the Department of Labor, the Equal Employment Opportunities Commission and the Internal Revenue Service."

For questions, call (800) 774-7494 or access job-law.com. © Sessions & Kimball LLP.