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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 31981
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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I am a caregiver. I signed an independent contractor agreement

Resolved Question:

I am a caregiver. I signed an independent contractor agreement with an agency. I do a live in job with food and board for the time that I am there (currently 2 days a week) with a client that I have been dispatched. The client wants to hire me for 5 days a week, but the client finds out that the agency is not paying half of my taxes and also without worker's compensation. The client states that the agency that hired me has to pay worker's compensation and half of my taxes while the agency is saying that the client has to pay worker's compensation and I pay all that tax since I am an independent contractor. Who is right(please explain and be specific)? I live in los angeles california. Do I even qualify as an independent contractor? What qualifies an independent contractor and differs from an employee? Do you have an idea how much worker's compensation would generally cost in my field of expertise per month if in case I have to pay for it? pls help as this will save my job.
Submitted: 3 years ago.
Category: California Employment Law
Expert:  Tina replied 3 years ago.
Thank you for contacting Justanswer.com.

Does your employer determine where and when you work?

Are you licensed or certified by the state in some manner?

Customer: replied 3 years ago.
The client is the one to determine when my work is and where it is because the client makes the ultimate decision if I work or if I don't. The agency only follows and enforces what the clients' demands are. I am a caregiver with 10 years of experience not by licensure in this field. I have a license in another field but not as a caregiver.
Expert:  Tina replied 3 years ago.
I see.

Under CA law, you are presumed to be an employee and the employer must provide workers comp insurance and withhold taxes. This presumption can be overcome by a showing by the employer that you are not in fact an employee.

The most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:

  • 1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
  • 2. Whether or not the work is a part of the regular business of the principal or alleged employer;
  • 3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
  • 4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
  • 5. Whether the service rendered requires a special skill;
  • 6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
  • 7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
  • 8. The length of time for which the services are to be performed;
  • 9. The degree of permanence of the working relationship;
  • 10. The method of payment, whether by time or by the job; and
  • 11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.
If your employer does not control how and when you perform the work and the other factors do not support an employer-employee relationship, then the company would not typically be required to withhold taxes or provide workers comp insurance and you are not required to provide it for yourself normally.

To obtain a final determination as to how you should be classified, you should contact the state labor board.

Here is a link to their website with more information:

http://www.dir.ca.gov/dlse/faq_independentcontractor.htm

Good luck and take care.

Tina

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Customer: replied 3 years ago.
So who is required to provide workers compensation? Since the agency is claiming me as an independent contractor. if I work without workers compensation would I be braking the law since the law requires even a roofer (independent contractor) insurance? How much does workers compensation generally cost if I have to provide it for myself if the client insist on having it? Just give me a ballpark pls.
Expert:  Tina replied 3 years ago.
Unless you hire other workers to work for you, you would not typically be required to carry workers comp insurance, but may contact an insurer to obtain a quote.

I cannot provide you with information as to how much it might cost to carry such insurance as that is not a legal question.

All the best to you.


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Tina, Attorney
Satisfied Customers: 31981
Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
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