The dangers of being misclassified as an independent contractor

IN 2005, Carolyn Gregory was assigned by her employer, a home health care agency, to work in the home of 85-year-old Lorraine Cott, who had long suffered from Alzheimer‘s disease. Carolyn was trained and experienced in caring for Alzheimer‘s patients. She knew they could be violent. Lorraine was combative and would bite, kick, scratch, and flail.
Carolyn’s duties included supervising, bathing, dressing, and transporting Lorraine, as well as some housekeeping. In September 2008, Carolyn was washing dishes while Lorraine sat at the kitchen table. Bernard was not at home. As Carolyn was washing a large knife, Lorraine approached her from behind, bumped into her, and reached toward the sink. When Carolyn attempted to restrain Lorraine, she dropped the knife, which struck her wrist. As a result, Carolyn lost feeling in several fingers and experienced recurring pain.
Carolyn has received workers’ compensation. But she also sued the Cotts for negligence and premises liability, with a claim against Lorraine for battery. California’s Supreme Court agreed with the dismissal of Carolyn’s case, concluding that Alzheimer‘s patients are not liable for injuries to in-home caregivers who are employed specifically to assist them. Those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront.
We bring up this story to illustrate an often overlooked result of being classified as an independent contractor (IC): lack of workers’ compensation coverage. Even though her case for negligence against her patients were dismissed, Carolyn Gregory was thankfully classified as an employee and was able to avail of workers compensation benefits. Consider another case below:
Our firm is currently litigating a case against a trucking company that had misclassified its drivers as ICs. Because the drivers are denied the status of employees, they pay for fuel, truck insurance, and repairs, and about one half of their weekly pay are deducted for these expenses. They were not provided meal or rest breaks. They have zero benefits.
In November of last year, one of the truck drivers had an accident while driving the company’s truck. Unfortunately, the driver died. Because the company classified him as an independent contractor, the driver’s heirs could not readily claim worker’s compensation benefits. Work comp benefits apply only to employees, not ICs. Unless the drivers are classified as employees, an issue which is being litigated, his heirs are left without the protections of workers compensation law.
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. Some companies pass on the costs of doing business to the “independent contractors” by deducting them from workers’ pay.
Misclassifying workers as “independent contractors” results in workers being deprived of their rights and protections as employees. A worker misclassified as an IC should consult with an experienced employment attorney to obtain any past wages or benefits she/he may be entitled to.

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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.  Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit  www.joesayaslaw.com. 

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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.