There is a significant difference when it comes to the application of employment law to an independent contractor and an employee. While both may be working in similar positions, misclassification may result in fines and penalties.
California law offers more protection to employees compared to 1099 independent contractors. But, unfortunately, the employer takes that advantage and misclassifies an employee as an independent contractor to avoid costs.
The confusion comes when an employee has been classified as IC and wants meal and rest breaks. If you were hired as an IC by your employer controls what you do, you might be misclassified and thus must need to claim for rest breaks or unpaid lunch breaks
Is There Meal Or Rest Breaks For Independent Contractors
An employee is not obligated to provide meal or rest breaks to independent contractors. He/she is considered to be a self-employed person and thus not entitled to employment benefits.
If you were hired as an IC, you don’t perform duties under the control of an employer. But if there is an employer-employee relationship and your employer seems to control what to be done and how much will be done, you may be misclassified. So you may consider a few things to conclude whether you are being treated as an IC instead of an employee. They include:
- Whether your work allows you to take some profit or losses depending on your managerial skills
- How many hours you work or the time required to perform assigned tasks and whether such jobs require specialized skill
There are many ways to determine whether you qualify for meal and rest breaks. Where there is misclassification, you can talk it over with your employer for reclassification and hence enjoy your meal and lunch breaks as per the employment law.
Your employer may voluntarily reclassify. As such, they may not be liable for any interest and penalties. But if this seems impossible, you can take legal action.=4Adjusting To Your Reclassification
If your employer has reclassified you, this will mean some time off for your meal or rest breaks. In California, employees should be provided with a 30-minute lunch break; this is when they have worked for five hours. Such time is unpaid. Where allocated work is to be completed in 6 hours or less, they may forfeit their lunch.
However, an employee who works for 10 hours has to get another 30-minute unpaid lunch break. But if their day’s work will not exceed 12 hours, they may choose to take the first break and forfeit the 2nd one. Such lunch break is to be paid only if an employee works during the break.
For rest breaks after reclassification, an employee must be allowed to go for a paid 10-minute rest break every 4 hours. But your employer should not provide such breaks if you are to work for less than 3 ½ hours.
If your employer relieves you to take your meal or rest, he/she will have fulfilled their obligation according to California law on meal and rest breaks.
Where you may issue about law violations, you can speak to an employment lawyer for legal guidance.