A large share of employment litigation concerns whether an employer has correctly “classified” its workers. The two distinctions between workers that matter most are:

  1. Employee vs. independent contractor
  2. Exempt vs. non-exempt employee

Just because an employer has classified you a certain way or given you a certain job title does not mean that you are classified correctly as far as the state and federal governments are concerned. Read more to see if you may have a misclassification claim.

Independent Contractors

To qualify for the protection of federal (FLSA) or state labor law, an individual must be an “employee.” For this reason, companies will often classify workers as “independent contractors” so they are not subject to: meal and rest break, overtime, expense reimbursement, and minimum wage requirements.

Under federal law, whether you have been correctly classified as an independent contractor hinges on how much “control” your employer has over where, when, and how you perform your work. The more control an employer exerts, the more likely someone should have been classified as an “employee.”

The misclassification rule is even more protective under California independent contractor law. In California, there are three different ways an independent contractor can prove they should have been classified as an “employee.” If the worker wins under any of the three, they are entitled to overtime pay, labor code penalties, and other benefits.

Exempt Employees

Even if your employer classifies you as an “employee,” some employees are considered “exempt” from labor code protections, such as meal and rest breaks, overtime, expense reimbursement, and minimum wage. Employers may properly classify employees as “exempt” if they fall into one of the established exemptions, which include:

Each exemption has its own requirements that, if not met, would mean that the employee has been misclassified. Follow the links to learn more, or speak to our employment attorneys.

Talk to an Employment Lawyer

Think your employer has misclassified you? Call or message us for a free and confidential consultation.

  • This field is for validation purposes and should be left unchanged.


Eric Gibbs

Founding partner of Gibbs Law Group LLP, Eric Gibbs has been selected for the peer-reviewed list of Best Lawyers every year since 2012.

Steven Tindall

An employment-law litigator with over 20 years’ experience, Steven Tindall is well-acquainted with navigating the ins-and-outs of employee misclassification lawsuits. His largest recovery in a single employment case is $29 million.

Linda Lam

Prior to joining us at Gibbs Law Group LLP, Linda Lam worked at a national employment law firm, where she represented workers in lawsuits to recover unpaid wages and benefits.

Steve Lopez

Steve has prosecuted a variety of complex employment cases involving misclassification of independent contractors. He is fluent in English and Spanish.

Our Employment Law Practice

Gibbs Law Group LLP is consistently ranked on U.S. News’ list of “Best Law Firms.”

The attorneys in our employment law practice have all be selected as 2018 Northern California Super Lawyers or Risings Stars.

Learn More about Employee Misclassification

Want to know if you're misclassified?

Contact us and we can help you figure it out. We can also evaluate how much you’re owed. Contact us for a free consultation.

  • This field is for validation purposes and should be left unchanged.