An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

that the hiring entity is attempting to evade the demands of an applicable wage order through misclassification. 488 In order to analyze Part C, school should consider the following questions:  Does the worker have multiple clients he/she perform work for?  Does the worker have an incorporated business?  Does the worker market his/her services to other schools or entities?  Does the worker have his/her own office?  Does the worker have his/her own business cards?  Does the worker provide and use his/her own tools and equipment? 3. O THER C ONSIDERATIONS A written agreement that purports to label a worker as an independent contractor is not determinative. 489 The California Division of Labor Standards Enforcement (DLSE), the U.S. Department of Labor (DOL), and the courts will look behind any such agreement in order to examine the facts that characterize the parties’ actual relationship. In addition, paying a worker with an IRS form 1099 rather than a W-2 is of no significance in determining employment status. A school cannot change the status of an employee to one of independent contractor by illegally requiring him to assume a burden which the law directly imposes on the school. 490 A worker’s length of service is also not determinative. For example, if the worker is permanently integrated into the school’s business, a court may conclude that the worker is not an independent contractor. 491 LCW Practice Advisor Substitute teachers are likely not independent contractors under the California wage and hour laws. They are generally classified as non-exempt employees which means they are entitled to pay for all hours worked and are eligible for overtime pay. 4. P ENALTIES F OR W ILLFUL M ISCLASSIFICATION O F I NDEPENDENT C ONTRACTORS Severe penalties may be imposed on schools for willfully misclassifying workers as independent contractors. A school is also prohibited from charging individuals who have been mischaracterized as independent contractors a fee or making deductions from compensation if those acts would have violated the law if the individuals had not been mischaracterized. The law contains significant penalty provisions for schools that violate the law, including fines of at least $5,000 and a requirement that the school post a notice of violation and other information in a prominent location on its website. 492 Finally, a person who, for money or other valuable consideration, knowingly advises a school to treat an individual as an independent contractor to avoid employee status for the individual is liable along with the school if the individual is not found to be an independent contractor.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 149