I Was Misclassified as an Independent Contractor in California — Can I Sue?

Worker misclassification is one of the most common and costly employment law violations in California. Being classified as an independent contractor instead of an employee can mean losing out on critical benefits and protections — such as overtime pay, rest breaks, health insurance, and unemployment benefits. If you believe you were misclassified, you may be able to sue your employer and recover unpaid wages, benefits, and other damages.

This guide explains your rights under California law, how to determine if you were misclassified, and what steps to take if you want to pursue legal action.

What Is Worker Misclassification?

Worker misclassification happens when an employer treats someone as an independent contractor when, by law, they should be classified as an employee. This misclassification can save employers money, but it often deprives workers of their legal rights and protections.

Why Misclassification Matters

If you’re misclassified, you could be missing out on:

• Overtime pay

• Minimum wage protections

• Meal and rest breaks

• Workers’ compensation

• Unemployment benefits

• Health benefits

• Retirement contributions

• Job protection and leave under laws like the California Family Rights Act (CFRA)

  
  

In short, you may be doing the same work as an employee, but without the same rights.

How Does California Determine Worker Classification?

California uses the ABC Test, which was adopted under Assembly Bill 5 (AB5) and codified in Labor Code Section 2775. Under the ABC test, a worker is presumed to be an employee unless the employer can prove all three of the following:

A. The worker is free from control and direction in the performance of the work;

B. The worker performs work that is outside the usual course of the hiring entity’s business; and

C. The worker is engaged in an independently established trade, occupation, or business.

If the employer fails to meet even one of these prongs, the worker must be classified as an employee.

Common Signs of Misclassification

You might be misclassified if:

• You work full-time hours and report to a supervisor

• You follow a company schedule and use company tools

• You perform core tasks essential to the business

• You’ve been working with the same company for an extended period

• You’re not allowed to subcontract or take outside clients

Can You Sue If You Were Misclassified?

Yes. If you were misclassified, you can file a claim with the California Labor Commissioner or file a civil lawsuit against your employer. You may be entitled to:

• Unpaid wages (including overtime)

• Reimbursement for business expenses

• Waiting time penalties (up to 30 days of pay)

• Rest and meal break penalties

• Employer-paid taxes (e.g., Social Security, Medicare, unemployment insurance)

• Attorney’s fees and court costs

In some cases, class action lawsuits may be filed on behalf of multiple misclassified workers.

Steps to Take If You Think You Were Misclassified

1. Gather Evidence

Collect documents that show the nature of your work and how you were treated, such as:

• Work schedules and communications with supervisors

• Pay stubs or payment records

• Contractor agreements or onboarding documents

• Any communication that demonstrates control over how you performed your job

2. Speak to a California Employment Lawyer

Before filing a claim, it’s wise to speak to an attorney who can evaluate your case and help you understand the best course of action. At 1000Attorneys.com, we can match you with an experienced employment lawyer in minutes.

3. File a Claim

You have two main options:

• File a wage claim with the California Division of Labor Standards Enforcement (DLSE)

• File a civil lawsuit in state court, especially if the damages are substantial

Note: California has a 3-year statute of limitations for wage-related claims. The sooner you act, the better your chances of recovery.

Exceptions to the ABC Test

Some industries and professions are exempt from the ABC test and fall under the Borello Test, which is more flexible. These include:

• Licensed attorneys

• Doctors

• Architects

• Real estate agents

• Freelance writers and graphic designers (with limitations)

Even if you’re exempt from the ABC test, you may still be considered an employee under the Borello test if your employer exerts a significant amount of control over your work.

What If You Signed a Contractor Agreement?

Just because you signed a document labeling you as an independent contractor doesn’t mean it’s legally valid. Courts look at the actual working relationship, not just the contract. If you functioned as an employee, the law may side with you regardless of what you signed.

Can You Be Retaliated Against?

Retaliation for asserting your rights is illegal. If your employer fires, demotes, or harasses you after you raise misclassification issues, you may have a separate retaliation claim with additional damages available.

Final Thoughts

Being misclassified as an independent contractor in California is more than just a label—it’s a serious legal issue with significant financial consequences. If you’re doing the work of an employee, you deserve to be treated—and compensated—like one.

If you suspect you’ve been misclassified, don’t wait. Contact us at 1000Attorneys.com for a free case review. We respond in under 10 minutes, and we’ll connect you with a licensed California employment lawyer who can help you fight back.