Independent contractor or employee

UPDATED: Oct 1, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 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. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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