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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7527
Experience:  Significant experience in all areas of employment law.
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I was driving for a company and quit and bought my own truck

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I was driving for a company and quit and bought my own truck the person I was driving for has not paid me he held my check in an account till he got his truck back he has the truck and still has not paid me. What can I do to get my pay ? He also has not sent me a 1099 is there any thing I can do about that?
thank you XXXXX XXX@XXXXXX.XXX
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Donald,

Hello and thank you for entrusting me to answer your question. I am very sorry to hear that you are having difficulty getting paid.

There are two distinct options in this sort of circumstance.

Option one: If you were properly classified as an independent contractor, your sole recourse will be a breach of contract action, which you can file in small claims court or limited jurisdiction civil court.

You would be entitled to the wages you are owed pursuant to your employment contract along with any consequential damages you have sustained as a foreseeable result of the breach of contract. For information on the small claims process, see here: http://www.dca.ca.gov/publications/small_claims/

Option two: If you can argue that you were misclassified as a contractor and should have actually been an employee, you will have much more in the way of rights. Specifically, California entitles an employee to payment of his or her final wages immediately upon termination of employment or within 72 hours of the employee's notice of intent to quit, whichever occurs later. (Labor Code 201) Failure to immediately pay a departing employee's final wages will typically result in the assessment of a penalty in the amount of the employee's daily rate of pay for each day the wages go unpaid up to 30 days.

So for example, if an employee who makes $100 a day is terminated on on the first of the month but not paid his final wages until the 20th, he would be entitled to a $2,000 penalty from his employer in addition to the earned wages.

That fact that you may not have immediately turned in your truck would be irrelevant to your employer's obligation to immediately pay you if you were an employee. (As a contractor, your employer simply must pay you within a "reasonable amount of time.")

As an employee, you can bring your claim for unpaid wages and penalties with the Department of Labor Standards Enforcement, which is typically a much quicker, simpler and less expensive way of enforcing your rights than filing a claim in general civil court or small claims court. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

If you file your claim with the DLSE or attempt to enforce your right to penalties under Labor Code 203 as discussed above, you must argue that you were improperly classified as a contractor and should have in fact been classified as an employee.

Employers do not have the "option" as to whether to classify a worker as a contractor or employee. This classification is strictly a function of the degree of control the employer exercises over the worker. 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.

So, if you choose to pursue a claim as an employee and file with the DLSE, you would need to argue that you were improperly classified as a contractor pursuant to the above criteria.

If you choose to pursue a claim as a contractor, you are limited to filing a breach of contract action, which you must file in small claims court or civil court.

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.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

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.
Expert:  Patrick, Esq. replied 1 year ago.

Donald,

See here for more information about the distinction between contractor and employee: http://www.dir.ca.gov/dlse/faq_independentcontractor.htm

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service. This is the only way I receive credit for the time I spend answering questions and so is much appreciated.

Kindest regards.

Customer: replied 1 year ago.

I was an employee does that make a differenct can I cash the check that is just half what is owed to me

Expert:  Patrick, Esq. replied 1 year ago.
If you were an employee that makes a big difference, as it means you are entitled to penalties for the non-payment of your wages in the amount of your daily rate of pay for each day of non-payment up to 30 days.

You can also cash the check that is just half what is owed without infringing upon your right to collect the remainder.

If I were you, I would immediately file a wage claim with the Department of Labor Standards Enforcement. They will assist you in obtaining a judgment against your former employer in the amount of all that is outstanding plus penalties.

Please let me know if I can be of any further assistance.
Patrick, Esq., Lawyer
Satisfied Customers: 7527
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 4 other California Employment Law Specialists are ready to help you

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Patrick, Esq.
Patrick, Esq.
California Employment Lawyer
7527 Satisfied Customers
Significant experience in all areas of employment law.