Worker’s Status and Wrongful Termination
Independent Contractor versus Employee
One of the main problems with business is the ability to hire good people and keep them happy. Many growing or brand-new businesses start off employing people on a part-time basis or on an independent contractor basis first before hiring the worker on as a full-time, salaried employee. Where many businesses run afoul of the laws is when a part-time worker or independent contractor starts to take on more work and responsibility, leading he or she to look and behave more like an actual employee.
A worker is considered an independent contractor if the employer 1) does not control how the worker performs the work, 2) the worker provides a service that is not part of the employer’s usual business and 3) the worker regularly engages in an established business, trade, or profession that is independent of the employer’s business.
Thus, a true independent contractor is a worker that is actually in business for himself. These individuals are more like “freelance” workers who work on more than one project at a time and take several jobs on a “freelance” basis. In those instances, these true independent contractors are able to choose when, where, and how they perform the work.
Why is this important? Well, for one...the independent contractor may NOT file a wrongful termination claim against you.
Wrongful Termination
Since most employees are now employed on an at-will basis, most wrongful termination claims are no longer based on a contract. In other words, at-will employments means you (as the employer) does not need a reason to terminate the worker’s employment, and the employees are free to leave their job at any time.
In an at-will state like California, employers don’t need a reason to terminate an employee; however, the employer may not terminate the employee for an unlawful reason. Most wrongful termination claims are based on termination for discriminatory reasons, for employee’s exercising their legal rights, or public policy.
A few examples of unlawful reasons include firing an employee:
because the employee is part of a “protected class” such as age, race, gender, disability, sexual orientation, religion, etc.;
because of the employee’s political beliefs or affiliations;
because the employee took time off;
because the employee is a “whistle-blower” who reported the employer for violating the law;
because of a violation of an implied contract;
because the employee filed a workers compensation claim or reported an injury; or
for any reasons that violate public policy.
Thus, although California is an at-will employment state, the employees may bring wrongful termination claims for a variety of reasons.