Q: I AM a trained electrician from the Philippines but I do not have a license here in California. I have worked on projects for my company for almost 5 years, but I haven’t been paid a lot of overtime. Other workers at the job site have the same problem.
My company says that they don’t owe us overtime because we are not their employees. They said we are independent contractors because they never directly hired us. Our boss, who was the one who would assign us to projects, now says that we are contractors and not employees. But I believe our boss is also an employee of the company, and the managers from corporate who would come to the job site and order all of us around. Can they really avoid paying us overtime just by calling us independent contractors?
A: No, simply designating a worker as an independent contractor does not determine whether or not California’s employee protections apply to that individual. Specific provisions of California law dictates whether or not you are considered an employee subject to the state’s overtime requirements.
The employees under California’s so-called ABC test, you are considered an employee unless the company proves all of the following: (A) that you were “free from the control and direction of the employer in connection with the performance of the work,” (B) that the work you performed is “outside the usual course of the company’s business”; and (C) that you “customarily engaged in an independently established trade, occupation or business.”
As I mentioned, the company has to prove all three of the above. From your description that the managers directed your work at the job site, it would appear that they are unable to prove prong “A” of the ABC test. Prong “B” is also problematic since installing electrical wiring in new homes would seem to be in the “usual course” of a home builder’s business.
You noted that the corporate representative said that the company “never directly hired” you and your co-workers to justify his contention that you are not employees. That specific defense was soundly rejected by the California Court of Appeal recently in the case of Mejia v. Roussos Construction, Inc. In that case, the construction company argued that the above-described ABC test could not be applied unless the employee and his co
workers first proves that the company was the hiring entity.
The Court of Appeal disagreed, noting that interpreting the ABC test “to include a threshold hiring test, with the worker bearing the burden, would…run counter to the intent of the California wage and hour laws, which ‘are remedial in nature and must be liberally construed in favor of affording workers protection.’” The Court of Appeal concluded that “the ABC test does not include a threshold hiring entity test.”
You are more likely an employee given the ABC test. Hence, you should be paid overtime for the past 4 years that you worked with the company.
I strongly suggest that you and your co-workers meet with an experienced employment attorney to learn more about your rights under California’s employee protection laws.
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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
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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. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]