U.S. and California law provide very specific discrimination protections for employees who have historically been the greatest targets. Typically, these are women, racial minorities, older workers and those with disabilities. We’ve come a long way in the last 50- to- 60-years in ensuring California workers aren’t fired, demoted, transferred or miss out on key benefits because of prejudice by their employers. However, a key component of those protections is the worker’s classification. Those who are classified as “employees” are entitled to a host of employment law protections – everything from minimum wages and regular mandated breaks to reasonable accommodations if one one’s pregnancy requires restrictions. Los Angeles employment attorneys often have to explain another important protection denied independent contractors: Anti-discrimination laws.
Approximately 1 in 7 jobs in America is classified as independent contractor or some other contingent-employment arrangement. This amounts to millions of Americans – roughly 14 percent in all, according the U.S. Bureau of Labor Statistics – whose work as freelancers, consultants, temporary agency laborers and contractors who are denied protections against discrimination for their age, race, gender, religion and disability. So for instance, while most employees can expect to be protected from age discrimination from their employer when they reach the age of 40, a freelancer has no such guarantee.
There are some analyses that suggest the unprotected workforce could be even larger. For instance, the California-based Staffing Industry Analysts recently released information indicating roughly 30 percent of American workers could be counted in the “contingent workforce.” The U.S. Equal Employment Opportunity Commission makes it clear that anti-discrimination statutes exempt independent contractors as well as those working for employment agencies. Sometimes, anti-discrimination protections depend on the number of employees a company has.
However, the differences between an employee and an independent contractor aren’t always black-and-white, and employee misclassification is a major problem our Los Angeles employment attorneys have taken on repeatedly in arbitration and through the courts. In many cases, employers will label a worker as an independent contractor, when in fact the level of control exerted by the employer is far more indicative of an employer-employee relationship. It often comes down to the degree of autonomy and independence the worker retains. That’s why in some cases, if we can successfully dispute that label and prove the worker was in fact an employee, he or she could still be entitled to anti-discrimination protections afforded by law.
Some examples provided by the Department of Health and Human Services for independent contractors include:
- Hiring process for employees often handled by human resources staff and a W-2 form is issued. Employees are paid either hourly or earn a salary and paychecks are sent on a pre-determined schedule.
- Independent contractors tend to interact with others to whom they will be reporting as expressly outlined in their contracts. They typically file a W-9 tax form with the IRS, and may have to submit invoices to be paid.
- Employees, unlike independent contractors, tend to receive benefits like health insurance, paid vacations and 401(k) types of matching funds. They are also often entitled to a host of legal protections not extended to independent contractors.
Although many workers might realize they are not technically employees, they may not recognize the legal implications of this. That’s because few enter employment relationships thinking about the potential for it all to go sour. It’s a disappointing revelation when an independent contractor is told by a Los Angeles Employment Lawyer that but for their contract employment status, they’d have a strong anti-discrimination case.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Additional Resources:
Many people are working in jobs that lack key protections against discrimination, Oct. 25, 2018, By Russ Wiles, Arizona Republic
More Blog Entries:
Age Discrimination Alleged by Employees of Info Tech Firm, Oct. 1, 2018, Los Angeles Employment Discrimination Attorney Blog