Legal Question in Employment Law in California

I�ve been with the company for more than four year now. Last week my employer talks to me regarding major changes in the office. And the one big change is that they will no longer file my taxes and I will be the one responsible to file for my tax at the end of the year. He told me that this is the only way to cut their expenses. They will also remove our medical and dental health insurance starting next month, and they also change our vacation and sick leave benefits, when I talk to my supervisor regarding this matter she informed me that I will be like an independent contractor. I don�t know anything about being a independent contractor because I am not, Regarding medical, dental, vacation and sick leave I am fully aware that the company has the right to change that, but my real worry and concern is this, Is it legal for my employer to convert me from an employee to an independent contractor? Do I have choice not to agree with this term? What is my rights regarding this matter? What can I do?


Asked on 1/16/12, 4:23 pm

1 Answer from Attorneys

Terry A. Nelson Nelson & Lawless

Now that you've explained a little more and made clear the company is trying to 'make you into' an independent contractor, we can provide you some guidance.

You are correct, the employer is entitled to set and change hours, duties, titles, compensation, benefits, leaves, vacations, holidays, policies, rules, etc. just not retroactively. They can remove and cancel all benefits from all employees for the future. Many companies are doing so to stay alive. They can fire you anytime. They can offer to rehire you under a contract as an independent contractor. If you are an independent contractor, you are self-employed and would take care of paying your own taxes. BUT, the company can not legally convert anyone to independent contractor status unless they qualify as one.

The general rule is that an individual can be an independent contractor if the company controls or directs ONLY the result of the work and not what will be done and how it will be done. You are NOT an independent contractor if you perform services that can be controlled by the employer (what will be done, how it will be done, when it will be done).

If your company is firing you and having you sign up and work for a separate company that pays you and 'places' you at the original employer, that is legal. You would then be an employee of the other company, working on site at your old company. Whether they pay benefits is up to them.

If the company is not following those rules, both you and the company will have serious legal and financial problems, and you both would face civil penalties, tax penalties, etc. Discuss the situation with the company to learn what they are actually trying to do with you. If you need to consult with counsel to review and get actual legal advice or representation, feel free to contact me.

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Answered on 1/16/12, 4:56 pm


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