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I am an independent, self-employed sub contractor. My profession

is construction inspection. I live...
I am an independent, self-employed sub contractor. My profession is construction inspection. I live and practice in California. The contractor I subcontract to is trying to force me to discard my email address that i have used for 12 years and switch to an email address that represents his business domain name. He has hinted that he will 'weed out those that have cancerous attitudes', that is those that he feels are not being 'team players'. I have been in the construction industry all my life and have worked my way up the ladder and have built a reputation connected with my name and my domain name. As a subcontractor our contract states that I am independent and that the contractor pays no taxes etc that would be associated with an employee. It is the norm for OSHPD (office of statewide health planning and development) IOR's (Inspector of Record) to be awarded a contract and then subcontract out for IOR's as needed. I guess my question is, if the Contractor fires me because i do not use his domain email address, what are my legal avenues?
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Answered in 52 minutes by:
7/8/2012
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,363
Experience: Retired (mostly)
Verified
Hello,

California law is extremely hostile to the concept of independent contractor. Nearly every person who claims to be an independent contractor, or who claims to be hiring another person as an independent contractor -- if the work relationship is brought to the attention of the Employment Development Department (EDD), is ultimately determined to be an employee/employer. And, once the EDD determines that a worker is an employee -- the next government agency that makes the same determination is Uncle Sam (IRS).

The reason why I am starting with this explanation is because, as a true independent contractor, you have no leverage against a contracting party who discharges you from service for failing to follow instructions.

However, if the contracting party thinks that you may decide to challenge that party's relationship with you, and if that person knows that the fines that accrue are huge (could easily run $100,000 or more), maybe he/she will back off. Because you could make that claim even after you are fired. All you would have to do is file for unemployment insurance benefits.

The one thing that you do not want to do is threaten to contact EDD and the IRS unless you get what you want, because that is criminal extortion. However, it is not extortion to suggest that your relationship may be an employment relationship, and that even if it is not, by your having to use the contracting party's domain, that could throw your relationship over the line into an employment relationship, regardless of any contract between you to the contrary, and the result could be extremely bad for the contracting party.

If you want to see if you really are close to or in an employment relationship, you may want to check out EDD form DE 38. Just work through the questions, and try to be as objective as possible. I think you may see that it doesn't take much to be found to be an employee, rather than an independent contractor.

Please let me know if I can clarify or assist you further.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to m is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,363
Experience: Retired (mostly)
Verified
socrateaser and 87 other California Employment Law Specialists are ready to help you
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Customer reply replied 5 years ago
Thank you, XXXXX XXXXX very informative and helpful. But.. lets say I tell the contractor that as an independent subcontractor i will be using my existing email address and he then fires me, is my only recourse filing for unemployment? This is a 10 month contract I have and i am looking to loose $120K in income. And if I sue, I would probably never work in the industry again as I would be blacklisted by both owners and contractors.
There are a lot of components to a lawsuit proving misclassified worker status. The most famous case is called Vicaino v. Microsoft Corp., wherein the federal courts determined that a throng of 1099-Misc workers were all employees, and Microsoft eventually settled for $97 million dollars.

Legally, in California, if you were found to be a misclassified employee, and you are terminated, then you could demand reinstatement and lost wages. You could also demand to be reimbursed for any retirement and health care not previously provided. And, once reinstated, a future termination could be viewed as retaliation, which would create a brand-new lawsuit. So, in some ways, you become impossible to fire, once you win this sort of lawsuit, and so the employer will usually try to pay you a bunch of money to go away quietly.

When an employment rights lawyer is presented with one of these claims, he/she will try to find the biggest payout possible. You could be owed a small fortune in overtime right now, even though your contract was not original for an hourly wage. There are all sorts of twists and turns. However, there is also no doubt that it is possible for the current contracting party to spread the news that you are "bad business," and even though that type of "blacklisting" is illegal in California, it doesn't help much when you're trying to find work -- and you have a difficult case to prove.

So, the answer here is "no," you may have several other claims against the putative employer, in addition to an unemployment claim.

The alternative, of course, is to agree to the employer's demand to use the domain address, and then wait a while and then have a lawyer threaten to sue unless the employer treats you as an employee. At that point, you are once again in the category of "impossible to fire." But, there is a risk, and you have to be prepared to suffer the risk, no matter which way you go -- other than to simply submit to the employer's demands, no matter how unlawful they may be.

One other thing that you can do is to file a DE 230 with EDD. This can be done anonymously. Then if EDD determines that you and others are employees, your employer will be forced to hire all of you, and it will never know who actually made the report. There's no big payday in this option, but if you're going to be treated like an employee, then you may as well get the benefits.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,363
Experience: Retired (mostly)
Verified
socrateaser and 87 other California Employment Law Specialists are ready to help you
Ask your own question now
Hello again,

I notice that you have rated me twice for two of my answers. If this was intended, then I genuinely appreciate your contribution. However, if you misunderstood the system and did not intent to pay twice, then please feel free to contact customer service and obtain a refund.

I'm only interested in happy customers, and I know that nothing annoys a customer more than thinking they were tricked into paying more than they believed was required.

Best wishes.
Ask Your Own California Employment Law Question
Customer reply replied 5 years ago
No I did not intend to pay twice, you answered my question well.
Thank you,
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socrateaser
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,363
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Experience: Retired (mostly)

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