Have You Been Mis-classified As an Independent Contractor or an Unpaid Intern?

Not all workers are "employees." Sometimes an employer may classify a worker as an independent contractor. Employers may also seek to take advantage of some employees (especially university age employees) by classifying them as "interns." These are  important distinctions (unlike an employee) an independent contractor is responsible for paying 100% of his or her payroll tax. Moreover, the protections of the California Labor Code and the Federal Fair Labor Standards Act do not apply to independent contractors. Therefore, independent contractors are not entitled to be paid minimum wage or overtime, to receive meal and rest breaks, to be reimbursed for their work-related expenses, or a host of other protections (such as unemployment insurance, disability insurance, or worker's compensation) that the law ensures to employees. And interns sometimes are not paid at all.

An employer may classify a worker as independent contractor hoping to avoid the obligations that the law imposes on an employer. But just because the employer classifies a worker as an independent contractor or an intern, that does not necessarily mean that the worker actually is as a matter of law. Instead, California and Federal Law require that an independent-contractor relationship must exhibit certain characteristics. If those characteristics are not present in the work relationship then the worker may actually be an employee.

In a true internship, the company should not derive the primary benefit of the work performed by the intern, and the intern should not displace paid employees.

Whether or not a worker is an independent contractor or an intern involves complex questions that require consideration of varied facts. Ultimately only a judge or jury can decide whether a worker has been mis-classified as an independent contractor or an intern. However, if many the foregoing factors are apparent in a work relationship, then there is a good chance that an employer-employee relationship can be proved.  Even summer interns or other short-term workers can be considered employees if the factors identified above are present.  Mr. Twietmeyer recently successfully settled a matter on behalf of an unpaid intern who was employed on a finite three-week assignment.

California law may subject employers who mis-designate employees to significant statutory and civil penalties in addition to payment of back wages, unreimbursed expenses, attorneys fees, and costs. If you believe that your employer (or your former employer) may have mis-designated you as an independent contractor, or if you believe you have been exploited for unpaid labor as an "intern," contact Mr. Twietmeyer for a free interview.

In determining whether a worker is an employee versus an independent contractor, the law focuses on the employer's control of the means and manner in which work is accomplished. The following factors also indicate an employment relationship:

  • the employer completely controls how, when, and where the worker performs the work;
  • the employer provides the worker with equipment, and tools for the job; and the place of work;
  • the worker is paid by the hour rather than by the job;
  • the work being done is part of the regular business of the employer;
  • the employer trains the worker to do the job;
  • the employer has an unlimited right to end the relationship with the worker;
  • the work being done is the worker’s only occupation or business;
  • the kind of work performed is usually done under the direction of a supervisor rather than by a specialist working without supervision;
  • the kind of work performed does not require specialized or professional skill;
  • the work is to be performed over a long or open-ended period of time.

In the case of interns, the law tends to focus on factors such as whether the trainee works for his or her own benefit to learn a profession or vocation with adequate supervision and instruction from the company.