Unfortunately, salary misclassification is fairly common in California – that’s what happens when an employer says that a worker is a contractor rather than an employee. Sometimes it’s completely unintentional; the employer actually believes the worker is a contractor. However, in some cases, employers deliberately misclassify employees in an effort to save money or dodge their tax obligations. That’s a problem in itself, but contractors and employees also have different levels of protection under the Fair Employment and Housing Act, or FEHA, when it comes to discrimination and harassment purposes.
But is there a way to tell whether FEHA would consider you a contractor or an employee?
Absolutely – and this guide explains.
Related: What constitutes workplace harassment in California?
How to Know if You’re a Contractor or Employee Under FEHA
California’s Fair Employment and Housing Act provides special protections for workers who are classified as employees, and you’re not entitled to many of those protections if you’re a contractor. Therefore, FEHA specifically outlines what makes a person a contractor and what makes them an employee.
Related: What are the differences between contractors and employees?
FEHA’s definition of an independent contractor for discrimination and harassment purposes is a person who:
- Has the right to control how they perform their job
- Has control over where and when the work is performed (though may still be required to meet deadlines)
- Controls the supplies they need, such as tools and instruments they use, to perform the work
- Is generally engaged in an independently established business
- Performs work that requires a particular skill that isn’t ordinarily used in the business’s work (such as a copywriter or bookkeeper for companies that perform a vastly different service)
Other people aren’t entitled to FEHA protections, either, such as:
- Immediate family members
- Some non-profit workers
- People who work for some religious non-profit associations and religious corporations
Here’s a closer look at each.
Immediate Family Members and FEHA
Generally, immediate family members can’t be considered employees under FEHA, even if they meet all the requirements for other purposes. That includes parents, spouses and children.
Related: 1099 workers vs. W-2 workers
Non-Profit Workers and FEHA
Some non-profit employees aren’t entitled to FEHA protections, such as those who work for a non-profit sheltered workshop or rehabilitation facility. However, this doesn’t necessarily mean all workers in non-profit sheltered workshops and rehabilitation facilities are exempt from FEHA protections; if you’re not sure about your specific situation, you should contact an attorney to get clarification. And even if they are exempt, sometimes employees have the right to sue an employer, such as when it engages in discriminatory practices or harassing activity that isn’t necessary to serve employees with disabilities. Again, it’s best to talk to an attorney if you’re not sure about your situation and you work for a non-profit sheltered workshop or rehabilitation facility.
Religious Non-Profit and Religious Corporation Workers and FEHA
Some religious non-profit organizations and religious corporations aren’t considered employers, which means that the people who work for them are not considered employees. This exception means that these organizations aren’t subject to many anti-discrimination laws. However, sometimes there are loopholes – such as when the religious organization has a for-profit division, and those profits are subject to state or federal income taxes, that division is likely not exempt from anti-discrimination laws. There can be a lot of gray area when it comes to religious non-profit organizations and religious corporations, so it’s best to talk to an attorney about your specific situation if you’re unsure whether you qualify for protections under FEHA because of where you work.
What About Other Non-Profits?
Most non-profit associations and corporations can be considered employers under federal and California law. The exception is when they’re religiously affiliated.
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Do You Need to Talk to a Lawyer About Whether You’re a Contractor or Employee Under FEHA for Discrimination and Harassment Purposes?
If you’re not sure whether you’re a contractor or employee, or if you are sure and have been discriminated against or harassed, you may want to speak with an attorney. Call our office at 818-230-8380 or fill out the form below for your free consultation. We’ll be happy to answer your questions and ensure you’re on the right track.