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San Diego Employee Misclassification Attorney

A man looks concerned sitting at his computer at work. He realizes he needs to contact a San Diego employee misclassification lawyer.

Does your employer treat you like an employee but without any of the benefits?

Misclassification is a serious issue whether it’s done intentionally or not. Employees labeled “exempt” or “independent contractors” miss out on many benefits like legally required breaks, overtime pay, health insurance coverage, unemployment, and more. As an employee, these benefits should be a part of the compensation you receive for the work that you do.

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Some unethical companies deliberately misclassify their employees in order to save money. If your employer has misclassified you as an “exempt” employee or an independent contractor, you could be missing out on higher pay and better benefits.

The law defines specific conditions for classifying people as exempt or non-exempt employees or independent contractors. San Diego especially has strong workplace protections for workers who are classified as employees. If you suspect that you’ve been misclassified by your employer, you have the right to fight to get the compensation you legally deserve.

The legal team at Harlan Hillier DiGiacco fights every day for the rights of workers to get their full pay. Call our San Diego office today at (619) 330-5120 or contact us online for a free consultation of your case. Our attorneys work on a contingency fee basis, so you don’t pay us until we recover your wages for you.

“Harlan Hillier DiGiacco is one of the most honest law firms in San Diego. I was recently put in a tough situation last year by an employer and had no choice but to look for legal representation. I called numerous law firms but no one seemed as understanding and empathetic as Jordon Harlan. From the moment I spoke to him, he advised me and guided me in the best way possible through my case. It was extremely easy working with him because I never had to worry about anything and he always kept me up to date without having to ask. He goes above and beyond for his clients and that is something that is hard to find. Thank you, Jordon!”

– Client | Philip F.

Benefits and Protections of Employees

Both state and federal laws offer legal protections and rights for employees. While federal laws establish a baseline across the whole country, California has additional laws that make it one of the most worker-friendly states. For example, these laws enforced in San Diego and elsewhere in California help to protect undocumented workers, stop age discrimination, prohibit sexual harassment, and more.

As an employee under the law, you receive many benefits, including:

  • Minimum wage requirements.
  • Overtime and double-time pay.
  • Required sick pay and rest breaks.
  • Family and medical leave or paid vacation days.
  • Unemployment benefits if you’re let go from your job.
  • Workplace safety and anti-discrimination policies.
  • Eligibility for workers’ compensation benefits if you’re injured at work.
  • Employers covering part of your Social Security and Medicare taxes.

Exempt employees and independent contractors miss out on many of these benefits and protections. But the law has rules for who counts as an employee. If your employer has misclassified you, you could have a legal claim for proper compensation.

Misclassification of Independent Contractors vs. Employees

Important state laws are in place to safeguard employees from misclassification in San Diego. For example, California Labor Code section 226.8, prohibits the willful misclassification of individuals as independent contractors.

Employees and independent contractors get very different treatment under the law. If your employer classifies you as an independent contractor, you don’t have access to many of the benefits that non-exempt employees get to enjoy. These benefits include:

  • Unemployment benefits if laid off from work.
  • Workers’ compensation benefits if you’re injured at work.
  • Minimum wage, sick and overtime pay, and rest breaks.
  • Eligibility for employee health care coverage.
  • Extended family and medical leave.
  • Social Security and Medicare taxes paid partly by your employer.
  • Greater protection from harassment, discrimination, and other workplace misconduct under federal, state, and local employment laws.

If you’ve been misclassified as an independent contractor when you actually work as an employee, you miss out not just on financial benefits but on workplace protection rights too.

In addition, many companies have extra perks for employees that contractors don’t get, such as paid parking, meals, and access to employee-only facilities like gyms. 

If you’ve been illegally denied these benefits, you could sue to get damages based on their value with the help of a San Diego employee misclassification attorney. As part of a lawsuit, you can also ask that your classification be changed moving forward.

How Do You Know If You’re an Employee or an Independent Contractor in San Diego?

Over time, California courts have used different tests to determine whether a worker is legally an employee or an independent contractor. 

In 2018, California’s Supreme Court made a decision that dramatically shifted the application of the law. In a case involving courier and delivery company Dynamex Operations West, the California Supreme Court shifted from using the Borello Test to the ABC Test to determine worker status.

In the past, the Borello test put the burden on the worker to prove that they’re an employee. Under the new ABC test, the burden falls on your employer to prove that you’re an independent contractor. This makes the law much more friendly towards workers.

Under California’s new ABC test, you are presumed to be an employee unless:

  • You are “free from the control and direction” of your employer as you work.
  • Your work is outside the usual course of your employer’s business.
  • You generally have an independently established trade, occupation, or business of the same nature as the work you’re performing for your employer.

Your employer must prove all three of the ABC test requirements to classify you as an independent contractor. If even one of these terms is not met, you are legally an employee, unless you fall into some specific exemptions carved out from the ABC test.

To determine these facts, the court may look at:

  • Who decides the manner, means, and timeline for doing the work.
  • The level of skill required to do your job.
  • Who supplies the tools and materials to do the work.
  • Whether you work for multiple employers at the same time.
  • Whether you’re supervised or required to report to a location for work.
  • Whether you can be fired at will or for cause.
  • How long it takes you to complete the work – whether you work on short projects or carry on the same job for a long period of time.
  • Whether you get paid by project or by time worked.
  • Whether your responsibilities are integral to your company’s core business.
  • Whether you and your employer believe you have an employer-employee relationship.

In the Dynamex case, for example, company management decided to classify their delivery drivers as independent contractors. But the drivers were doing the type of work that was central to Dynamex’s core business: courier and delivery. The court decided that the drivers were classified as employees who should get the full benefits of their position under the law.

You work hard for your pay, and you deserve the benefits and protections that come with being an employee. If your employer is misclassifying you to avoid paying benefits or taxes, they’re not just breaking the law; they’re taking advantage of you. Don’t let them cheat you out of your rights.

Contact Harlan Hillier DiGiacco today to protect yourself and ensure you’re being treated fairly. Your hard-earned benefits are important. Reach out to us online or call (619) 330-5120 to learn more about how a San Diego misclassification attorney can defend your rights.

Misclassification of Exempt vs. Non-Exempt Employees

Misclassification isn’t always about employees versus independent contractors. You can also be misclassified as an “exempt” employee when you should actually be “non-exempt.”

Non-exempt employees get overtime, rest and meal breaks, and minimum wage. Exempt employees do not get overtime or breaks but must be paid at least twice the minimum hourly wage for the work that they do.

Companies may misclassify their employees as exempt to save money and get more productivity out of their workers at the same time. Your employer might make you work overtime without paying you an overtime rate. They may ask you to work through your breaks. This is illegal under the law. 

Most exempt employees work in executive, administrative, or professional white-collar roles. They can be independent contractors, outside consultants or salespeople, or outsourced computer or technology professionals. Many of them are paid on a salary, not an hourly basis.

To qualify as an exempt employee in California, you must:

  • Dedicate at least 50% of your job to executive, administrative, or professional duties.
  • Regularly exercise your own discretion and independent judgment on the job.
  • Earn a salary at least twice the California state minimum wage for a 40-hour work week.

All other employees are considered non-exempt employees.

What If Your Employer Has Falsely Classified You as Exempt When You Should be Non-Exempt? 

They may owe you compensation for unpaid wages that you legally deserve. The best way to tell for sure is to talk to a San Diego employee misclassification lawyer who can help.

When your lawyer files a claim based on an exemption misclassification, you can recover damages based on what your employer should have paid you. That could include:

  • Unpaid overtime or double time, plus interest
  • Payment for rest or meal breaks that were never provided
  • Attorney’s fees, litigation costs, or court costs you may have incurred

Keep in mind that your exemption status can always change along with your job duties. If your position changes and you no longer exercise independent judgment or dedicate most of your job to administrative work, your status should change from exempt to non-exempt.

In today’s uncertain economy, we understand that many workers are hesitant to speak up when they’re misclassified or mistreated. They worry that standing up for their rights could cost them their job, even though they’re legally entitled to fair treatment.

However, standing up for your rights can not only change your own situation, but also inspire others to do the same. We’re here to hold employers accountable because no one deserves to feel trapped or powerless at their workplace. Get in touch with Harlan Hillier DiGiacco today online or by calling (619) 330-5120.

I Am Worried About Retaliation From My Employer

You may be intimidated by the thought of challenging your employer. After all, you depend on your job to pay your bills. But retaliation is strictly prohibited by the law. Your employer cannot take negative action against you for exercising your legal rights. That means you cannot be demoted, fired, or otherwise punished for questioning your classification status.

If your employer retaliates against you for reporting a labor law violation, you could have a wrongful termination claim. Courts may try to “make you whole” for any retaliation by giving you monetary compensation, reinstatement to your job, back pay, or other damages.

Have no doubt: illegal employee misclassification is a form of wage theft. Your employer is denying you the rights and benefits to which you’re entitled under the law. But you don’t have to accept any less than you’re owed. You can fight for your rights.

How Can a San Diego Misclassification Attorney Help Me?

Getting misclassified as an independent contractor can be a stressful ordeal. You may be unable to take any days off because you don’t get any paid vacation time. You may have to pay additional expenses out of pocket, like parking, cell phone, meals, or gym membership that employees get covered by the company.

You may even feel ostracized from your company’s culture if employees get networking benefits or other opportunities that you don’t. As an independent contractor, you may feel less secure in your position compared to employees who will at least be paid unemployment benefits if they get laid off.

If you believe you’ve been misclassified as an independent contractor or exempt employee, a lawyer can be there for you every step of the way during the legal process. Here’s what a San Diego employee misclassification attorney can do for you: 

  • Review Your Employment Status and Case: Your attorney will carefully examine your job duties, pay structure, and employment details to determine if you’ve been misclassified.
  • Clarify Your Rights: They’ll explain what rights you should be receiving as an employee, including overtime, workers’ compensation, and benefits like health insurance.
  • Fight for Back Benefits: If you’ve been denied benefits or pay, your lawyer can help you seek back wages, unpaid overtime, and other compensation you’re entitled to.
  • Negotiate with Your Employer: A skilled attorney will contact your employer to address the misclassification issue, sometimes resolving it without going to court.
  • File a Legal Claim: If negotiations don’t work, your lawyer can file a claim with the appropriate labor board or take legal action to protect your rights.
  • Prevent Retaliation: They’ll also help you protect yourself from any retaliation or unfair treatment from your employer after you speak up.

In 2022, the California Employment Development Department conducted over 4,600 audits and inspections and identified approximately 158,000 misclassified workers.

Why Work With a San Diego Employee Misclassification Lawyer at Harlan Hillier DiGiacco

At Harlan Hillier DiGiacco, we understand how deeply workplace injustices can impact your life. Whether you’re facing misclassification, wage violations, harassment, or wrongful termination, we are committed to standing up for your rights.

With years of experience handling complex employment law cases, our team is dedicated to providing personalized legal support, helping you stand up to your employer with confidence, and getting the results that protect your future. For instance, we secured a $9.37 million verdict for a client wrongfully terminated while on job-protected leave, and a $1.85 million settlement for a class of employees denied proper wages and breaks.

You deserve a workplace that respects you and your rights. Get in touch with a San Diego misclassification lawyer at (619) 330-5120 or contact us online for a free consultation to discuss your best options for fighting misclassification.

Proudly Representing San Diego Residents

FAQs

Can I Sue My Employer for Misclassification in San Diego?

Yes, you can sue your employer if they have misclassified you as an independent contractor instead of an employee. Misclassification can deny you important benefits like overtime pay, health insurance, and workers’ compensation. If your employer refuses to correct the mistake, you have the right to take legal action and seek compensation for lost wages and benefits.

How Much Can You Sue An Employer For Misclassification in San Diego?

If you sue an employer for misclassification, you may be able to recover compensation for: unpaid overtime with interest, compensation for the breaks you weren’t allowed to take, attorney costs, unpaid overtime, unpaid wages, unpaid rest and meal breaks equal to one hour’s pay at your regular pay rate for every break you did not receive, and interest and penalties. 

How Much Does It Cost to Hire a San Diego Misclassification Lawyer?

At Harlan Hillier DiGiacco, we know you’ve got a lot on your mind already. That’s why we take our employment cases on a contingency fee basis. The last thing that you need to think about now is whether you can afford to hire an attorney to help you. You don’t pay us until we recover the wages and benefits that you deserve.

What Are the Signs That I’ve Been Misclassified as an Independent Contractor?

If you’re not receiving benefits like health insurance, paid time off, or workers’ compensation, or if you’re not paid overtime despite working extra hours, you may be misclassified. Other signs include having little control over your schedule but still being called an independent contractor or being treated like an employee without the proper benefits. If this sounds familiar, it’s a good idea to reach out to Harlan Hillier DiGiacco. 

About Harlan Hillier DiGiacco

Our San Diego law firm is dedicated to providing the best advocacy possible for clients nationwide. Call our experienced personal injury and employment lawyers today at (619) 330-5120 for your first free consultation.

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