Employment Development Department form DE 38
can be used to determine whether or not a worker is an employee or independent contractor. The general rule of California law is that a worker who is subject to the right of an employer to control the manner and means by which the worker accomplishes his/her work, is an employee. Whereas an independent contractor relationship is found where the employer is only concerned with the result of the worker, and not as to how it is accomplished.
There are a number of ways to force this issue into the open. You can submit a payroll tax fraud complaint to the EDD (see link
). You can submit a BOFE, re failure of employer to pay workers compensation (see link
). You can file a form SS-8
with the IRS. And, you can do all of the above.
Or, you could hire an employment rights attorney and sue for failure to pay federal ERISA benefits (discrimination in health care and retirement) (see link
Note: An employer who is found to have misclassified a worker, can be subject to huge fines -- substantial enough to put many small businesses "out of business." So, be careful what you wish for, because if the government agrees that you have been misclassified (and you probably have been, because most independent contractors are misclassified employees) -- your new "employer" could have a very short future existence.
Hope this helps.
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