Hello and thank you for entrusting me to answer your question. I am truly sorry to hear about your difficulties in getting paid.
Oral employment contracts are permissible and entirely enforceable. The challenge, as you are now learning, is in proving what the terms of an oral contract are when the employer decides they "remember" things differently. Fortunately, you have past paychecks, which will be revealing of how your pay was actually calculated, and thus, supportive of a claim for unpaid commissions.
As an idependent contractor, your recourse for the non-payment of wages is extremely limited. This is because the vast protections and remedies afforded through the Labor Code apply only to employees
. As a contractor, all you can do is go to court and sue on a theory of breach of contract. This doesn't mean you can't get your money, but being classified as an employee is highly preferable under these circumstances.
Fortunate for you, California courts do not take kindly to the misclassification of employees as contractors. This is something that unscrupulous employers frequently do to avoid the vast protections the Labor Code affords to employees, alluded to above.
Generally speaking, a worker will be properly classified as an employee if the person to whom service is rendered retains significant control over the manner and means by which the work is performed. This, ultimately, is the relevant inquiry. However, additional factors frequently taken into consideration include the following:
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.
Even where there is an absence of control over work details, courts may find an employer-employee relationship if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary.
On the basis of the limited facts you describe, it would seem you have a strong argument for misclassification. If the Labor Board determines that you were improperly classified as a contractor, your employer will be subject to a variety of fines. Assuming you can prove that you have been shorted on commissions owed, your employer will also be subject to a penalty assessment for the late payment of final wages--an entitlement afforded only to "employees." Finally barring an exemption from overtime, your classification as an "employee" would entitle you to overtime for all hours worked in excess of 8 per day or 40 per week (contractors do not receive overtime).
The first step here is probably to file a claim with the Department of Labor Standards Enforcement alleging both misclassiciation as a contractor and unpaid wages and overtime. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm
Please do not hesitate
to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.
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Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Very best wishes to you.