Independent contractor or employee

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Independent contractor or employee

I was hired by a company January and February 2018 as an independent contractor. I am a one

person LLC and my business is real estate. The company that hired me is a wine packaging company and I did clerical work for them. I was under the control of the President of the Company and used their compuuand supplies. This work was not in the scope of my established trade and the work was related to their wine business not to my established trade of real estate. The company refused to pay me but finally did this month after 13 months of waiting. They paid me as an LLC and told me I could not collect a waiting penalty because I was not an employee. I told them per ABC test they misclassified me and I am legally an emplyobased on the work they hired me to do.

Asked on April 15, 2019 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

If you have an LLC and the LLC was "hired"--that is, the company was hiring and paying the LLC, not you as a person--then you were an independent contractor. When you have an LLC and the LLC is what the company hires and pays, you are not an employee (of the other company; you may be an employee of your own LLC), since only natural persons, not LLCs, can be employees. It does not matter whether it was in your established trade or not: an LLC can work outside it's established trade if it chooses.
If there were paying you personally, not paying your LLC, you were most likely an employee based on what you write: the degree of control they exercised would be enough to make a natural person an employee. 


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