what are the laws governing independent contractors..

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Latest post 06-30-2010 9:30 PM by PattyPA. 11 replies.
  • 06-26-2010 1:48 PM

    • jdpr2009
      Consumer
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    • Joined on 06-26-2010
    • CA
    • Posts 3

    what are the laws governing independent contractors..

    Please help what are the laws governing independent contractors in the State of California.  Do I have any legal recourse when I am not paid by a company?  I have a retainer contract with a company that was recently terminated and they promised to pay out the retainer but have now refused to do so.  Instead of paying me up front they want to pay me two months one at the end of June and another payment at the end of July.  The contract was terminated by them on June 21, 2010 and I was promised full payment by the CEO of the company then and they have yet to do so.  They sent a letter stating the above.  My response was that it is unacceptable and causing me financial hardship.  Is there any recourse?

    Please advise.

     

     

     

  • 06-26-2010 2:22 PM In reply to

    Re: what are the laws governing independent contractors..

    The only option you have is to sue for breach of contract.

  • 06-26-2010 2:26 PM In reply to

    Re: what are the laws governing independent contractors..

    jdpr2009:

    Please help what are the laws governing independent contractors in the State of California.  Do I have any legal recourse when I am not paid by a company?  I have a retainer contract with a company that was recently terminated and they promised to pay out the retainer but have now refused to do so.  Instead of paying me up front they want to pay me two months one at the end of June and another payment at the end of July.  The contract was terminated by them on June 21, 2010 and I was promised full payment by the CEO of the company then and they have yet to do so.  They sent a letter stating the above.  My response was that it is unacceptable and causing me financial hardship.  Is there any recourse?

    You also wrote the following: 

    jdpr2009:
     

    Can a previous employer hold your payment if you have a contract in the State of California? If not what are the remedies that can be sought to demand final payment?  Is the labor board a first stop or immediate suit?

     

    So before we can address your recourse we have to first determine if you were really an independent contractor or an employee of a company that used the independent contractor gimmick to avoid paying payroll taxes, workers comp, unemployment, etc.

    Please explain what kind of services you performed for that company, and how it came about that you ended up with an independent contractor agreement, and what the terms of that agreement were.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 06-26-2010 2:30 PM In reply to

    Re: what are the laws governing independent contractors..

    PattyPA:
    The only option you have is to sue for breach of contract.

    If the independent contractor gimmick was used illegally, there may be others.

    But we don't know that yet.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 06-26-2010 3:26 PM In reply to

    Re: what are the laws governing independent contractors..

    Ah, AJ, now I see, said the blind man (my g-pa used to say that).

    Agreed, OP, whether you are  properly classified as an independent contractor or not is the elephant in this room.

  • 06-26-2010 3:44 PM In reply to

    Re: what are the laws governing independent contractors..

    PattyPA:
    whether you are  properly classified as an independent contractor or not is the elephant in this room.

    Or the 800 lb gorilla.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 06-27-2010 2:04 PM In reply to

    • jdpr2009
      Consumer
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    • Joined on 06-26-2010
    • CA
    • Posts 3

    Re: what are the laws governing independent contractors..

    Okay.  I provided PR services to this company which included writing press releases, pitching and placement in media publications. I worked within their hours and a lot of weekends on their behalf. They were my only client during the time in which I worked for them.  I was listed on there website as the person to respond to for PR or media inquiries. I was to be paid a certain amount per month and I was also paid for travel expenses and any other services on their behalf including pr release services which they paid for. My name is listed on all of there brochures and collateral materials all of which are in my possession.

     

  • 06-27-2010 4:41 PM In reply to

    Re: what are the laws governing independent contractors..

  • 06-27-2010 11:05 PM In reply to

    Re: what are the laws governing independent contractors..

    jdpr2009:

    Okay.  I provided PR services to this company which included writing press releases, pitching and placement in media publications. I worked within their hours and a lot of weekends on their behalf. They were my only client during the time in which I worked for them.  I was listed on there website as the person to respond to for PR or media inquiries. I was to be paid a certain amount per month and I was also paid for travel expenses and any other services on their behalf including pr release services which they paid for. My name is listed on all of there brochures and collateral materials all of which are in my possession.

    That all may be true but it doesn't answer the question as to whether you are an independent contractor or not.

    Answer all of the following:

    Do you hold yourself out as a PR agent for businesses in general?

    Do you advertise your services?

    Do you have business cards?

    Do you have a business name?

    Do you carry business or professional liability insurance?

    Have you done similar work for other clients on other occasions, either for short periods or long periods?

    Do you write up your own written contracts for your clients to sign?

    Do you bill by invoice?

    Do you file your taxes with a Schedule C and pay Self Employment tax?

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 06-30-2010 5:17 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,590

    Re: what are the laws governing independent contractors..

    Who set the times, where was the work site,

    Could you deterimine what jobs to take or not take

    was the pay a certain amount per job, per hour or per month .

    You sure might be a mere monthly employee (salaried)  and I think you want to look very closely at such a posture--far more leverage as to 'wage" collection!



  • 06-30-2010 5:27 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,590

    Re: what are the laws governing independent contractors..

    Note in CA apparently the legal rebutable presumption is that you are an employee

     

     

    Q. How do I know if I am an employee or an independent contractor?

    A.

    There is no set definition of the term "independent contractor" and as such, one must look to the interpretations of the courts and enforcement agencies to decide if in a particular situation a worker is an employee or independent contractor. In handling a matter where employment status is an issue, that is, employee or independent contractor, DLSE starts with the presumption that the worker is an employee. Labor Code Section 3357.  This is a rebuttable presumption however, and the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling by itself. Consequently, it is necessary to closely examine the facts of each service relationship and then apply the law to those facts. For most matters before the Division of Labor Standards Enforcement (DLSE), depending on the remedial nature of the legislation at issue, this means applying the "multi-factor" or the "economic realities" test adopted by the California Supreme Court in the case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. In applying the economic realities test, the most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:

    1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
    2. Whether or not the work is a part of the regular business of the principal or alleged employer;
    3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
    4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
    5. Whether the service rendered requires a special skill;
    6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
    7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
    8. The length of time for which the services are to be performed;
    9. The degree of permanence of the working relationship;
    10. The method of payment, whether by time or by the job; and
    11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

    Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288)



  • 06-30-2010 9:30 PM In reply to

    Re: what are the laws governing independent contractors..

    Drew:

    You sure might be a mere monthly employee (salaried) 

    There is no such thing, legally, as a "monthly employee".  And whether you were paid on a alaried basis or an hourly basis or by job is merely one factor in determining IC status and not nearly given the weight that it was years ago.  Being paid on a per job basis does not, in and of itself, indicate IC status.

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