San Diego Employee Misclassification Lawyer

San Diego Employee Misclassification Lawyer

San Diego Employee Misclassification Attorney

Employees should get the pay and benefits they deserve. Though this should be straightforward, many employers commit wage and hour violations to cut costs while benefiting from an employee’s work. Some employers do this by failing to uphold their responsibilities, while others commit wage and hour violations on purpose.

Misclassification is a common way that employers prevent their employees from earning their full benefits and wages. It is illegal in California to misclassify employees, and employers can be held responsible. If you were misclassified, you could earn compensation for all the back pay in overtime pay, wages, and benefits that you should have earned while misclassified. Working with an employee misclassification attorney can increase the benefits you receive and make the process easier.

San Diego Employee Misclassification Lawyer

The Law Office of Frank S. Clowney, III: San Diego Employment Lawyers

If you believe that you have been misclassified, you deserve payment and compensation. You also deserve an attorney with the experience to handle this wage and hour violation. At The Law Office of Frank S. Clowney, III, we have 40 years of experience in employment and labor laws in San Diego. We spend the time to understand your unique situation, and we apply our years of legal knowledge to your case.

We can provide you with your legal options for compensation and give you the support you need to succeed in your case. When employers fail to protect worker rights, we are proud to fight for those rights.

What Is Employee Misclassification?

There are several ways an employee can be misclassified in the state that denies them their rightful benefits and wages. Most commonly, employers misclassify employees by:

  1. Classifying an employee as a temporary hire or independent contractor when their job duties and employer control are that of a full-time employee.
  2. Classifying an employee as an overtime-exempt or break-exempt employee when they are non-exempt.

If you are unsure whether you are properly classified, an employment attorney can help you determine what your employment status is and what it should be.

Misclassification as an Independent Contractor

Independent contractors have more freedom and flexibility than employees, but they also have fewer benefits. If you are classified as an independent contractor but your employer has control over your schedule like an employee, you may be misclassified. Independent contractors are not obligated to benefits such as:

When an employer misclassifies an employee as an independent contractor, they are avoiding the costs of those required benefits. This is illegal and prevents the employee from receiving the benefits they deserve. If you were misclassified, filing a claim could cover all these lost benefits, wages, and even waiting time penalties.

Misclassification as an Exempt Employee

Full-time employees could also be misclassified. California employees are automatically considered non-exempt employees unless the employee fits into a certain category. Exempt employees include those who are salaried workers, paid twice the minimum wage, and fall into the following categories of work:

  • Employees whose main work is professional, executive, or administrative
  • Outside salespeople
  • Computer professionals
  • Licensed surgeons and doctors
  • Local or state government employees
  • Private school teachers
  • Some employees who work on commission

Each of these categories requires very specific categorization, and not all employees are considered exempt. An employment attorney can help you determine what your accurate employment classification is. Exempt employees are not entitled to:

  • Overtime pay
  • Meal or rest breaks

If you are misclassified, you can file a claim for the benefits you should have received, including any paid breaks, overtime pay, and additional losses.

Why Do I Need a Misclassification Employment Attorney?

If you have been wrongly classified, you can file a claim for a wage and hour violation. An attorney can help you file this claim with the Labor Commissioner’s Office and ensure the right information and evidence are included in the filing. This gives the claim its greatest chance of success. An attorney can also conduct an investigation for further evidence and determine if a class action claim is necessary. If many other employees have suffered the same misclassification, a class action claim may be appropriate and in your interests.

Filing a claim against your employer can be overwhelming. Even though retaliation is illegal, this doesn’t always stop employers from taking actions such as firing you for making a wage and hour claim. When you work with an attorney, you can protect your employee rights. An attorney can help you get the benefits you deserve from filing a claim and protect you from adverse employment actions like wrongful termination.

An attorney can also negotiate a settlement or represent you in litigation if necessary to get you compensation. Employers often have significant resources, and working with an attorney provides you with similar resources and legal support during the claim.

Signs You May Be Misclassified

The wage and hour division of the U.S. Department of Labor outlines the following ways the court determines whether an individual is classified as an independent contractor or an employee:

  • How integral the worker’s work is to the employer’s business
  • If the worker’s managerial skill impacts their opportunity to gain or lose income
  • How much investment the worker and the employer have in the facilities and equipment used for the work
  • The worker’s ability and initiative
  • How permanent the worker’s relationship is with the employer
  • The control the employer has over the worker’s time

Independent contractors are subject to less employer control than employees. When a misclassification claim is filed, an employer must prove that the worker is an independent contractor or an exempt employee as they classified. An employer must prove the following to succeed against a claim:

  1. The worker is not under the control or direction of the employer or company when performing work
  2. The tasks the worker performs are outside of the usual business activities of the company
  3. The worker often works in the occupation or work classification that they are completing for the company

If you are classified as an independent contractor but your employer has significant control over your work schedule or how you complete tasks, you may be misclassified. You deserve to have full benefits for the work you are completing.

Damages in a Misclassification Claim

In a successful wage and hour claim for misclassification, you could be awarded damages such as:

  • Back pay for unpaid wages that you should have received at minimum wage
  • Back pay for unpaid overtime
  • Back pay and penalties for unpaid meal and rest breaks
  • Business expenses that should have been covered by an employer
  • Reasonable legal costs
  • Damages from employer penalties in cases where the misclassification was purposeful

The most effective way to maximize the damages you get from a wage and hour claim is to work with a dedicated and experienced employment lawyer.

FAQs About San Diego, CA Employee Misclassification Laws

How Much Can You Sue an Employer for Misclassification in California?

An employee who has been misclassified can receive benefits such as back pay plus interest, unpaid overtime plus interest, and reasonable legal fees. An employer can be fined between $5,000 and $15,000 for intentionally misclassifying workers as independent contractors and from $10,000 to $25,000 for each violation if it is determined to be a pattern. Employees are entitled to a certain percentage of those penalties. The exact amount that an employee can gain after a misclassification claim depends on the amount of benefits they were losing and if an employer was intentional about misclassification.

What Is the Statute of Limitations for Misclassification in California?

An employee has three years from the date of the most recent wage and hour infringement to file a claim. This is true of most wage and hour claims, except those against an employer for breach of contract, which has a statute of limitations of four years. If you don’t file a wage and hours claim within the statute of limitations time frame, you lose your right to claim damages. The sooner you begin the filing process with an attorney, the better. It gives you time to gather essential evidence and begin to build your case.

How Do You Fix Employee Misclassification?

If an employer fails to take proper precautions and misclassifies workers, they will have to work with relevant tax authorities to correct the mistake. This includes paying all the necessary taxes, submitting to audits, and paying the misclassified employees their wages, benefits, legal fees, and fines. If an employer does not correct misclassification mistakes, they are likely to face significantly larger penalties and fines.

What Is the Penalty for EDD Misclassification?

Under the Employment Development Department (EDD), fraud during an audit includes failing to report employees or misclassifying employees. This results in penalties that include a $5,000 to $15,000 fine for each misclassified or unreported employee the employer knew about. If the EDD determines that the employer has a pattern of purposefully misclassifying employees and other illegal behavior, the fine increases to anywhere between $10,000 and $25,000.

Contact an Experienced Misclassification Attorney Today

At The Law Office of Frank S. Clowney, III, we believe in fighting for employee rights. If your fundamental employee rights have been violated by misclassification or another wage and hour violation, contact our team.

San Diego Employment Attorney

Employment law


Personal Injury Attorney San Diego

Personal Injury


San Diego Maritime Law Attorney

Maritime law


San Diego Age Discrimination Lawyer

Age Discrimination law


San Diego Disability Discrimination Lawyer

Disability Discrimination law


San Diego Pregnancy Discrimination Lawyer

Pregnancy Discrimination law


Client Testimonials