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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
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I have a labor board hearing soon because I filed a wage complaint

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I have a labor board hearing soon because I filed a wage complaint as I believe my former employer misclassified me as an independent contractor when I was really an employee. My question is this: he argued at the initial conference that I was "professionally exempt" (I was a nursing instructor). However, I was not paid a salary, and I believe the exemption cannot be applied to me (IWC Wage Order 4-2001). However, is that all I have to prove, or can he argue case law/common law at the hearing? I know what that law is as I have researched it, but which law reigns supreme here? I would like to think that all I have to argue is that I was not paid a salary I am an employee, but do I need to prove anything else? Please only answer if you have experience in dealing with matters like this.
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 4 years ago.

In response to your question, I have good news and bad news. The bad news is that he can absolutely bring up case law and common law at the hearing in support of his argument.

Now for the good news. Unless the case law specifically overrides the statute, the statute is typically controlling. Then, case law is decided in this order from least persuasive, to most persuasive. Superior court, Court of Appeal, California Supreme Court, U.S. Supreme Court.

Your employer has two distinct, (relatively poor) arguments. The first, is that you are an independent contractor and are thus exempt from withholding, overtime, meal and rest break rules, and a host of other restrictions and requirements. The second, is that you are an employee, but as an employee you are professionally exempt. Absent a written agreement, the second argument is somewhat ridiculous as the default assumptions of someone employed in California is that they are a non-exempt employee absent an employment agreement to the contrary.

While it is the employers job to prove that you are an independent contractor, to properly win your case, you will need to prove that you were in fact an employee.

Accordingly, to be best prepared, you will want to show that the employer had the "right to control the manner and means of accomplishing the result desired." This means you should try to bring as much evidence as you can to show that the employer had the right to control the work you produced. Additional factors to determine whether someone is an employee, or an independent contract are:

(a) whether the one performing services is engaged in a distinct occupation or business;

(b) 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;

(c) the skill required in the particular occupation;

(d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
(e) the length of time for which the services are to be performed;

(f) the method of payment, whether by the time or by the job;

(g) whether or not the work is a part of the regular business of the principal; and

(h) whether or not the parties believe they are creating the relationship of employer-employee.


S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations, 48 Cal.3d 341, 351


In regards XXXXX XXXXX the argument that you are an exempt employee under the professionally exempt status, all you need to do is point to the fact that there is no contract setting out your exempt employee status.


Here is a good website which sets out the differences between the different types of employees and independent contractors and how to qualify under one of the above categories:


Hopefully this fully answers your question. If you have any additional questions, or if you need additional clarification, please do not hesitate to ask. Have a wonderful start to 2013.

Customer: replied 4 years ago.

I have a follow up question: To keep a long story short, he is accusing me of time card fraud because I generally didn't clock out for my lunch breaks after the first few months that I worked there. The reason was that I was allowed 2 hours of prep time for each class appearance I taught, and would use some of that time during my lunch breaks. He wrote me a letter after I filed my wage complaint and said that he will sue me for fraud separately or as part of his appeal if he loses the wage complaint case. In defense, I have two signed letters from my two directors of nursing who were my bosses during my tenure with the employer saying that I was able to do that, and have signed statements from 62 students from at least a half-dozen of the classes that I taught at the school that state I tutored or reviewed material with them during my lunches. The employer never made issue of this before, and there were other employees who worked there that did the same thing. He has also threatened to contact the board of nursing (as I am a nurse) and the CA State Bar (I am a law school graduate studying for the bar exam). I truly believe I am in the right here. Do I have anything to worry about?

Expert:  Brandon, Esq. replied 4 years ago.
If he were to file an action for fraud against you, not only would he loose, but you would have a retaliation claim against him. In addition, if he engages in any retaliatory action, such as contacting the board of nursing, or the CA State Bar (who will not find fault in anything you have done) as a result of you exercising your legal right to bring your wage claim, then you would also have additional retaliation claims as a result. Often, employers try to retaliate against employees for engaging in these types of claims, that is why the law is designed to protect employees from such actions.

However, as this person appears to be relatively unscrupulous, and because you are likely missing a large portion of what is actually owed to you (such as treble damages depending on the circumstances) I would highly reccomend speaking with an Employment attorney in your area. If you decide to hire an attorney, a great resource is This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with. While you can definitely choose to have an employment attorney take your case on contingency, you can also choose to have the attorney recoup all expenses from your employer. There are numerous California statutes in place which allow attorneys to recover their attorneys from employers. In either situation, you would owe nothing out of pocket, and will likely end up with significantly more.

Expert:  Brandon, Esq. replied 4 years ago.

I wanted to write to check up to see if you had any additional questions or concerns concerning your question. If you do have additional questions or need additional clarification please do not hesitate to ask. Please remember that I do not know what you may already know or with that you need help with unless you tell me. If you have not provided a positive rating because you would like a different expert to answer your question, please ask and I will opt out of the question so that another expert may answer. If, however, you found the information helpful to you, please do not forget to provide me with a positive rating by clicking on one of the happy faces, or I will not receive any credit for my time in trying to assist you. Please keep in mind that even after a rating has been issued you can continue to ask questions related to the original post and I will be happy to answer them. If for some reason the rating feature is not working or you cannot find it, please write me back and let me know. Please remember that when you are asked to give a rating, you are rating My Service and not this website itself or the law as it applies to your case. I wish you all the best in 2013.

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