Pursuant to California Labor Law, the basic test for determining whether a worker is an independent contractor versus an employee is whether the principal has the right to direct and control the manner and means by which the work is performed.\u00a0 In essence, control is the motivating factor.\u00a0 How control is considered is by analyzing \u201ccontrol\u201d and considering the secondary factors that serve as evidence of the existence or nonexistence of the right of control.\u00a0 The secondary factors are based on common law as developed in past court cases and administrative hearings.\u00a0 Those factors were present in the chart we handed you at our last meeting.<\/p>\n
The following elements should be helpful:<\/p>\n
What we do understand is the relationship you have with your trainers is unique to the type of business you are in, and traditionally, the relationship has been one of independent contractor and principal.\u00a0 Our colleague expressed concerns, similar to ours, that your industry has been, and will be later, scrutinized because of the traditional approach to classification of trainers as independent contractors.\u00a0 Often times, although a business has been conducted in a past manner, this does not necessarily mean that it has been, or will continue to be, lawful.\u00a0 The elements that cause a potential dispute in this traditional approach is that the trainers are in the same business as the company itself, the clients are those of the business, not the specific trainers, the equipment being used is owned solely by the business, the scheduling of clients is directly monitored, provided for, and controlled by the company, the marketing is done by the business, not the trainers, and these factors cumulatively push the classification over to the employer-employee side.<\/p>\n
What is highly determinative in the classification as independent contractors is those workers properly classified as independent contractors usually have their own clients, provide for their own marketing, invoice the company\/principal, are in a business separate from the company, and schedule their own time for doing the work.\u00a0 In essence, when you have guest trainers, these individuals run their own business apart from yours.\u00a0 Their relationship with you is short term, for a specific time period, and specific job (i.e. training for a specific weekend), bringing their own expertise as a \u201cguest\u201d trainer, and understand that this is a single job and that they are coming in as an independent contractor, not an employee.\u00a0 They may even wear or market for themselves outside of Poletential, although we did not go into specifics about your guest trainers\u2019 marketing efforts.<\/p>\n
Another example we briefly discussed was the possibility of bringing in technicians to assist you with your aerial studio.\u00a0 If you brought in assistants to help you with this studio, you would be bringing in individuals with a separate skill set separate and apart from your business (i.e. operation of carabineers and experience with aerial apparatuses).\u00a0 Essentially, these individuals have a business separate and apart from yours entirely, and would most likely be invoicing your company for the specific job they performed.<\/p>\n
Although it would be impossible to outline every scenario, your on-going structure of how you classify your workers may be exposing you to potential penalties, and potential wage and labor disputes.\u00a0 Our determination is that your trainers and administrative staff should be classified as employees.\u00a0 Our recommendation is to restructure your relationship with your workers, and treat them as employees.\u00a0 We can guide you through this process, provide you with further information related to the possible penalties, and provide you with counseling so that you have a smooth transition if you would like to follow our recommendation.\u00a0 We understand this is different approach from tradition and your past relationships with these individuals; however, it is our duty to inform you of the legal considerations and ramifications of misclassifying so that you are fully informed.<\/p>\n
If you want\u00a0to learn\u00a0more on employee classification contact us at:<\/p>\n
2070 Pioneer Court
\nSan Mateo, CA 94403
\nTel 650-572-7933
\nFax 650-572-0834<\/p>\n
McDowall Cotter<\/a>\u00a0provides comprehensive legal services in three areas of practice: civil litigation; business; and wealth preservation. To learn more visit us at\u00a0https:\/\/mcdlawyers.net<\/a>. We are a San Mateo based law firm and for more than 50 years, McDowall Cotter’s chief objective has been to deliver exemplary legal services that are personalized, effective and efficient.<\/p>\n","protected":false},"excerpt":{"rendered":" Regarding how Trainers are Being Classified in the Realm of the Athletic Gyms\/Studios. Pursuant to California Labor Law, the basic test for determining whether a worker is an independent contractor […]<\/p>\n","protected":false},"author":13,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"open","ping_status":"closed","template":"","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"class_list":["post-962","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/mcdlawyers.net\/index.php?rest_route=\/wp\/v2\/pages\/962","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mcdlawyers.net\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/mcdlawyers.net\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/mcdlawyers.net\/index.php?rest_route=\/wp\/v2\/users\/13"}],"replies":[{"embeddable":true,"href":"https:\/\/mcdlawyers.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=962"}],"version-history":[{"count":0,"href":"https:\/\/mcdlawyers.net\/index.php?rest_route=\/wp\/v2\/pages\/962\/revisions"}],"wp:attachment":[{"href":"https:\/\/mcdlawyers.net\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=962"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}