Good morning Marlene,I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.That doesn't surprise me in the least---that your position would be determined to be that of an employee and not an independent contractor.You can make a claim for the value of the lost benefits based on them not offering them to you based on the misclassification. You may also demand that you be paid overtime for all hours you worked overtime, excluding your commute time.And, you might also consider putting together a reimbursement request list---because under CA law, an employer is obligated to reimburse their employees the actual cost of all employee expenses made in the performance of work for the employer.The specific law which mandates that employer reimburse employees for expenditures is as follows:
CA Labor Code 2802.
(a) An employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties, or of his or her
obedience to the directions of the employer, even though unlawful,
unless the employee, at the time of obeying the directions, believed
them to be unlawful.
(b) All awards made by a court or by the Division of Labor
Standards Enforcement for reimbursement of necessary expenditures
under this section shall carry interest at the same rate as judgments
in civil actions. Interest shall accrue from the date on which the
employee incurred the necessary expenditure or loss.
(c) For purposes of this section, the term "necessary expenditures
or losses" shall include all reasonable costs, including, but not
limited to, attorney's fees incurred by the employee enforcing the
rights granted by this section.
Additionally, based on the misclassification, the employer did not pay their share of the FICA taxes that you paid, and you will want to consider recovering those.
Finally, as unpaid wages, benefits and reimbursement are all considered wages in CA, you may actually sue the employer in court and recover your wages/commissions. Additionally, if you sue in court, under federal laws (FLSA), you are also entitled to seek what is called Liquidated damages. Liquidated damages is equal to the amount of back wages that they owe you and must be paid in addition to the wages themselves---so you essentially get double the wages owed you in the claim based on their willful failure to pay you. http://labor-employment-law.lawyers.com/wage-and-hour-law/Liquidated-Damages-and-FLSA-Claims.html
Here is an excellent article which deals with pursuing an FLSA claim---which you may do in either state court or federal court. Do take the time to review it:
As you appear to potentially have a rather significant claim, I strongly urge you to consult and possibly retain a local employment law attorney to assist you in these multiple claims that you appear to have.
You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer. Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.I wish you the best in 2013,Doug
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