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...
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