(Why misclassification of workers is a social justice issue)
ON September 10, 2013, 53-year-old Faustino Solorio was a pedestrian standing on the shoulder of the road behind the tailgate of a truck. At this same exact time, 18 year-old Gunnar Ayala was driving his father’s car, having just finished his shift as a delivery driver for Nissan of San Bernardino. Ayala turned right onto the road and struck Solorio. The impact was so strong that Solorio flew through Ayala’s windshield. Solorio’s injuries were catastrophic. His left leg had to be amputated, and his spleen was so lacerated it had to be removed. Solorio, who worked as a landscaper, now had to use a wheelchair, walker, and crutches for the rest of his life.
Solorio sued the driver, the driver’s father, and Nissan for damages. Solorio argued that Nissan should also be liable because Ayala was negligent while in the course and scope of his job at Nissan. Nissan countered that it should not be liable for Solorio’s damages because the car that hit Solorio was not owned by Nissan, and that Ayala was not a Nissan employee, but an independent contractor.
Independent contractors (ICs) are not employees and do not have the same protections that employees enjoy. (Unlike employees, ICs do not have to be paid minimum wage, overtime, or missed breaks. They are not entitled to benefits such as health insurance, retirement or pension benefits, and workers’ compensation protection. There are also no deductions for taxes and Social Security.) True ICs are ideally in business themselves, with their own commercial insurance, and are simply hiring out their services to companies.
However, in an effort to cut costs, or to take advantage of the more profitable models of the “on-demand economy” or “gig economy,” companies may hire “free lancers”, on-call workers, temporary help agency workers, and workers provided by contract firms. More often than not, these workers are then classified as “independent contractors.” But are they really?
Calling a worker an ‘independent contractor’ does not make him/her so. There are several factors that determine whether a worker has been correctly classified as an independent contractor. The most important factor is the employer’s right to control the worker’s manner and means of performing the job. If the employer dictates how the worker should do the work, what tasks to accomplish and how to accomplish them, then the worker is an employee and not an independent contractor.
Thus, during trial, Solorio argued to the jury that the driver, Ayala, was actually a Nissan employee because Nissan had the right to control Ayala’s work performance. Even though Ayala used his personal vehicle, he was doing the work of delivering parts for Nissan, and was wearing a Nissan uniform.
The jury returned a verdict in favor of Solorio, awarding him a total of $46 million in damages.
We have discussed how misclassifying workers as “independent contractors” results in workers being deprived of their rights and protections as employees. But misclassification also poses a hidden danger to the public at large. Misclassified ICs may perform their work carelessly and injure members of the public. Often these misclassified ICs may not have enough liability insurance policies. How then will the seriously injured be compensated for their injuries?
Recourse should be made against the hirer of services, or in reality, the true employer. In this case, the jury saw through the false classification of the driver as an IC and made the employer, who is in a better position to pay a large judgment, accountable. Thus, justice prevailed.
* * *
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
* * *
C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant recoveries for thousands of employees and consumers. He is named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum.