THE common belief is that signing an agreement binds an employee to all the terms in the document. But what if the agreement is illegal or a violation of public policy? Do employees have remedies? Consider the following question:
Q: We work for a service-oriented company, which made us sign an “independent contractor agreement.” As a result, we are paid a flat rate for at least of 10 hrs of work, 5 days a week. The company controls the time we come in for work and what job to do. We have to attend mandatory trainings about how to do our job. We are supposed to be “independent” per the agreement we signed, but that is not true. Are we entitled to overtime pay that employees get, even though we already signed the agreement?
A: The independent contractor status is determined by law, not by the parties’ agreement. Simply signing a contract does not make one an independent contactor. Whether or not a worker is an independent contractor or employee is important because employees enjoy more protections.
California courts engage in a fact-centered analysis to determine the worker’s status. The most important factor in this analysis is the employer’s right to control the worker’s manner and means of performing the job. If the employer has significant control over how the worker should do the work, directs the employee what tasks to accomplish and how to accomplish these tasks, then the worker is an employee and not an independent contractor.
The California Court of Appeal recently examined independent contractor relationships when it ruled in favor of workers in the case of Bradley v. Networkers International, LLC.
Networkers provides the telecommunications industry with workers to install and service cell sites in Southern California. Each worker was required to sign a standard contract, entitled “Independent Contractor Agreement,” which stated the worker was an independent contractor rather than an employee. Networkers did not pay premium wages for overtime, no additional pay for travel or waiting times, and no policy requiring meal or rest breaks for workers.
Les Bradley, together with two other workers, filed a class action lawsuit against Networkers, alleging Networkers violated the laws by failing to pay overtime and provide rest and meal breaks, failing to maintain required employment records, and requiring the workers to underreport their hours.
Networkers’ standard Independent Contractor Agreement contained numerous provisions reflecting an independent contractor relationship, including that the worker was responsible for determining when, where and how the work is performed; the worker was entitled to delegate the work or designate other individuals to perform the work; the worker could bid for the jobs; and the worker was required to maintain insurance. The workers testified that Networkers did not follow these contractual provisions, and instead treated all of its workers as employees.
Faced with the question (among others) of whether the workers can present common questions of fact that would entitle them to proceed as a class, the appellate Court noted the following:
Each class member was required to work full time and to be available on every working day and during assigned “on call” times; each class member was told how to prioritize each day’s jobs; each class member received hourly pay, rather than pay by the job; each class member submitted timesheets to Networkers and Networkers’ customers for approval; and each class member was required to use a specific set of tools on the job and to obtain those tools from Networkers.
Although the contract stated that the workers had the right to control the manner and means of the work, Networkers had specific time and place job requirements that all workers were required to follow.
The court concluded that the common facts involving control would be the focus in proving whether the workers were independent contractors or not. If the workers can prove that they were misclassified, they will be entitled to overtime wages, additional pay for missed meal and rest break, and penalties for Networkers’ failure to furnish accurate wage statements, to keep accurate payroll records, and waiting time.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.