In recent years many employers have reclassified their workers as "independent contractors" to avoid the costs of workers compensation and overtime pay associated with employment of workers classified as employees. There are myriad consequences to employers for misclassification of employees as independent contractors and managers including penalties from government agencies, liability for overtime premium, meal period pay, and other remedies available to employees under the Labor Code and Orders of the Industrial Welfare Commission, exposure for tort liability for injuries suffered by employees when workers compensation insurance is not secured, exposure for unfair business practices, tax liability and penalties and even criminal liability.

To determine whether a worker is an employee or an independent contractor, several factors must be considered: acts that show whether the business has a right to direct and control. An employee is generally told by his employer (1) when, where, and how to work, (2) what tools or equipment to use, (3) what workers to hire or to assist with the work, (4) where to purchase supplies and services, (5) what work must be performed by a specified individual, and (6) what order or sequence to follow. An employee may be trained to perform services in a particular manner. Facts that show whether the business has a right to control the business aspects of the worker's job include: (1) The extent to which the worker has unreimbursed expenses; (2) The extent of the worker's investment; (3) The extent to which the worker makes services available to the relevant market; (4) How the business pays the worker; and (5) The extent to which the worker can realize a profit or loss; Facts that show the type of relationship include: (1) Written contracts describing the relationship the parties intended to create; (2) Whether the worker is provided with employee-type benefits; (3) The permanency of the relationship; and (4) How integral the services are to the principal activity.

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