Employee Misclassification Attorney

California uses the ABC test under AB 5 (Lab. Code § 2775): a worker is an employee unless the employer proves (A) the worker is free from control and direction, (B) the work is outside the usual course of the business, and (C) the worker has an independently established trade or business. This is one of the strictest tests in the nation and most workers qualify as employees.

New York uses a common law test examining the degree of control the employer exercises over the worker. Key factors include who sets the schedule, provides tools and equipment, determines methods of work, and whether the worker can work for others. NY also applies stricter tests in certain contexts — the construction industry, for example, uses a presumption of employment.

If misclassified, you may be entitled to unpaid overtime, minimum wage violations, meal and rest break premiums (CA), expense reimbursements, benefits, workers compensation coverage, unemployment insurance, and employer-side payroll taxes. In California, penalties under PAGA (Private Attorneys General Act) can add substantial additional recovery.

Yes. A signed independent contractor agreement does not determine your actual employment status. Courts look at the economic reality and actual working relationship, not the label on the contract. Both California and New York courts routinely find workers to be employees despite contractor agreements when the actual working conditions indicate employment.