Mis-classified as independent contractor in CA. Passed benefits?

[Tennis]

Jurisdiction

California

I've been working full time for over 3 years as a video editor for a large corporation creating product videos. I use the company's equipment, which has been in my home since COVID. They tell me what to do and when it's due. They tell me when to invoice them. I'm paid by direct deposit. I've read AB5 California and the Borello test.I seem to pass the tests for an employee. If I bring a lawsuit can I recoup the following: 1. One half of Self Employment and Medicare taxes I've paid. 2. Benefits that employees have at the company (ie. 3 years of medical insurance, vacation pay, sick leave). I've asked the company if I can be an employee and they have said no. Thanks for your responses.

 

[zddoodah]

If I bring a lawsuit can I recoup the following: 1. One half of Self Employment and Medicare taxes I've paid. 2. Benefits that employees have at the company (ie. 3 years of medical insurance, vacation pay, sick leave).

Obviously, the ability to recover anything depends on your ability to win, and we have no information as to your likelihood of winning.

1. You can't recoup anything unless you sue the entity to whom you paid those things, which was the IRS, and you have no basis to sue the IRS.

2. No.

I've asked the company if I can be an employee and they have said no.

Have you explained to the person(s) with whom you've made this request that you believe you are mis-classified and provided a detailed analysis of the basis for your conclusion? If not, why not?

 

[adjusterjack]

They tell me what to do and when it's due.

But they don't tell you how to do it.

That may be the key to whether you are an employee or an independent contractor.

According to IRS publication 15A "The general rule is that an individual is an independent contractor if you, the person for whom the services are performed, have the right to control or direct only the result of the work and not the means and methods of accomplishing the result."

(Emphasis mine.)

2022 Publication 15-A (irs.gov)

That may be an over-simplification because there are many nuances to the determination.

I suggest you study the publication carefully.

Note Page 8 - Computer Industry where some one similar (but not quite the same - remember "nuances") to you is an independent contractor.

If there is still doubt, you can submit form SS-8 to the IRS for evaluation.

Form SS-8 (Rev. May 2014) (irs.gov)

If I bring a lawsuit can I recoup the following: 1. One half of Self Employment and Medicare taxes I've paid. 2. Benefits that employees have at the company (ie. 3 years of medical insurance, vacation pay, sick leave).

Frankly, I don't think you'll win any of that. You had three years to question your situation but you didn't. Your opponent may be able to raise "laches" as a defense (in addition to maybe you really are an independent contractor). "Laches" is a legal doctrine that bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.

 

[cbg]

One thing I can promise you; even if you somehow managed to successfully sue (which is doubtful at best) you will not get three years back medical insurance. If you're really, really lucky and the insurance carrier is extremely cooperative, you might possibly get three months back medical insurance. Medical insurance does not work that way and a judge cannot order an insurance carrier (which was not a party to the mis-classification, if a mis-classification there was) to essentially "buy" three years of claims.

 

[Zigner]

One thing I can promise you; even if you somehow managed to successfully sue (which is doubtful at best) you will not get three years back medical insurance. If you're really, really lucky and the insurance carrier is extremely cooperative, you might possibly get three months back medical insurance. Medical insurance does not work that way and a judge cannot order an insurance carrier (which was not a party to the mis-classification, if a mis-classification there was) to essentially "buy" three years of claims.

I think the OP wants the company to pay 3 years worth of premiums to him/her.

 

[cbg]

Not gonna happen.

 

[Tennis]

With regard to the fact that I didn't speak to the company about a mis-classification for 3 years, I was concerned that they would just use another IC if I caused a problem. One advisor suggested to use the Labor code 1102.5, "Whistle Blower". If they eliminated my job because I spoke to them about mis-classification I may be able to collect damages. Still probably a long shot. Thanks for all your replies.

 

[adjusterjack]

I was concerned that they would just use another IC if I caused a problem.

"Concern" is not evidence.

It is not until you reap the consequences of "causing a problem" that you have a potential remedy.