Employee misclassification lawyers in California: Salaried isn’t exempt.A 1099 isn’t independence.
An exemption takes two keys.
Contractor status takes three.
For California workers told they’re exempt, a “manager” or an independent contractor, and paid as if the label settles it. The law looks at the work you actually do.
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Called a contractor? Try the three questions Lea nuestra guía en español
Answer both questions to try the keys.
The lock turns with your answers.
The two-key check
Told you’re exempt? A salary doesn’t settle it. Try both keys.
Under California’s most common exemptions, you’re exempt from overtime only if both tests are met. Two questions, about a minute. Nothing you choose leaves this page, and it’s a guide, not a legal answer.
Key 1
The salary test
To be exempt, you must earn a salary of at least twice the state minimum wage for full-time work.
$16.90×2×2,080 hrs=$70,304
The 2026 state minimum wage, times two, times full-time hours (40 a week for 52 weeks): at least $70,304 a year, or $5,858.67 a month. The test uses the state rate, not a higher city rate.
Turns at $70,304 a year or more in 2026.
Doesn’t turn below $70,304, or if you’re paid by the hour.
Key 2
The duties test
You must spend more than half your working time on genuinely exempt work, and regularly use your own discretion and independent judgment. What counts is the work you actually do, not your job title.
Lab. Code § 515(a), (e)May turn if most of your day goes to managing a department and directing two or more people, making independent decisions on company policy or operations, or licensed or learned professional work.
Doesn’t turn if most of your day goes to following set procedures, answering phones and routine office tasks, or hands-on work like stocking, serving, cooking, driving or building.
Both keys turn: you may be exempt.
It depends on the details. What you actually do each day, how much of your time it takes, and how you’re paid all matter, and these details are easy to get wrong. A free case review can tell you where you stand.
At least one key doesn’t turn: you may be owed overtime.
If either test isn’t met, overtime is generally owed, even on a salary. Talk to us about your hours and pay.
Some jobs have their own rules. Certain computer software professionals have a separate pay test ($58.85 an hour in 2026), and some other jobs and professions have their own exemptions, so this check doesn’t cover every case. Paid on a 1099 instead? That’s a different test: the three questions below. It’s general information, not legal advice.
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Free Case ReviewIs this you?
The label says one thing. The job says another.
If any of these sound familiar, you may have been misclassified. You don’t have to be sure before you call.
“You’re salaried, so there’s no overtime.”
A salary is one key. Without the duties test, it doesn’t make you exempt.
“You’re a manager.”
But no one reports to you. Managing, for the exemption, generally means directing the work of two or more other employees.
Paid on a 1099, but on the schedule they set
If the company controls how and when you work, it may not be able to show you’re free from its control.
Your own tools, car and phone, with no reimbursement
Employees must be reimbursed for necessary expenses they pay to do the job.
No sick pay, no workers’ comp
Employees generally earn paid sick leave and are covered by workers’ comp if they’re hurt on the job. If you’re really an employee, that may include you.
“You’re a partner now.”
A title doesn’t decide your status. The law looks at control, the company’s business, and whether you have your own.
The same work as their employees, as a “contractor”
Work inside the company’s usual line of business is hard to call independent.
Ten-hour days on a salary, and no overtime line
If you’re not truly exempt, daily overtime can start after 8 hours, even in a week under 40.
The ABC test
Called a contractor? Three questions decide it.
California law treats you as an employee unless the company that hired you proves all three of these. Each one is a lock only the company can open. If even one stays shut, you’re treated as an employee.
Part A
Free from the company’s control
You’re free from the company’s control and direction in doing the work, both under the contract and in fact.
Do you decide how, when and where you do the work, on paper and in practice?
Not answered
Part B
Outside its usual business
The work you do is outside the usual course of the company’s business.
Is your work outside the company’s usual line of business?
Not answered
Part C
Your own independent business
You’re customarily engaged in your own independently established trade or business of the same kind.
Do you have your own established business doing this same kind of work, apart from this company?
Not answered
Lab. Code § 2775(b)(1)
Answer the three questions above.
A lock opens only on a yes. The company needs all three open.
Any lock stays shut: you may be an employee.
If the company can’t prove even one of the three, California law treats you as an employee, with the wage protections that come with it.
All three open: you may be a contractor.
The company has to prove each one, and the details matter. A free case review can tell you where you stand.
Some jobs follow different rules. Some occupations and business-to-business arrangements are exempt from the ABC test when every condition the law lists is met, but workers in those situations can still be employees under a separate, older multi-factor test. App-based rideshare and delivery drivers are covered by a separate set of rules under Proposition 22. This check is a guide, not a legal conclusion. Read our guide to the ABC test
The law in plain English
The label isn’t the law
Employers choose the label: exempt, manager, contractor, partner. California law looks past it to how you’re paid, what you actually do, and who controls the work.
“You’re salaried.”
A salary is only one key. To be exempt, you generally must also earn at least $70,304 a year in 2026 and spend more than half your time on genuinely executive, administrative or professional work that calls for discretion and independent judgment. Lab. Code § 515(a), (c), (e)
“You’re a manager.”
A title isn’t enough. For the executive exemption, the job itself has to be managing the business or a department and regularly directing the work of two or more other employees, on top of the salary test. IWC Wage Orders, § 1(A)(1)
“You’re an independent contractor.”
The company has to prove all three parts of the ABC test. If it can’t prove even one, the law treats you as an employee. Lab. Code § 2775(b)(1)
“Here’s your 1099.”
Getting a 1099 instead of a W-2 doesn’t, by itself, make you an independent contractor. Neither does the word “contractor” on your paperwork. Labor Commissioner (DLSE) guidance
“You signed a contractor agreement.”
The paper isn’t the whole story. Control is judged under the contract and in fact: how the work really happens, day to day. Lab. Code § 2775(b)(1)(A)
Salaried is not the same as exempt
A salary doesn’t make you exempt by itself. Under the most common exemptions, you must earn at least $70,304 a year in 2026 (twice the state minimum wage for full-time work) and spend more than half your time on exempt duties that call for discretion and independent judgment. If either test isn’t met, overtime is owed. Try the two-key check
Lab. Code § 515(a), (c), (e)An employee, unless the company proves otherwise
Under the ABC test, you’re treated as an employee unless the company that hired you proves all three: you’re free from its control and direction, your work is outside the usual course of its business, and you’re customarily engaged in your own independently established business of the same kind. It applies to work done since January 1, 2020. Try the three questions
Lab. Code §§ 2775(b)(1), 2785(c)Some jobs follow a different test
California law exempts some workers from the ABC test, including certain business-to-business arrangements, referral agencies, licensed professionals and construction subcontractors, when every condition the law lists is met. Even then, you may still be an employee under an older multi-factor test that looks at control and the realities of the work. App-based rideshare and delivery drivers are covered by a separate set of rules under Proposition 22.
Lab. Code §§ 2776–2785; Bus. & Prof. Code § 7451Willful misclassification carries penalties
When a company voluntarily and knowingly misclassifies workers as contractors, the law provides civil penalties of $5,000 to $15,000 per violation, or $10,000 to $25,000 per violation for a pattern or practice. These penalties are enforced by the Labor Commissioner and public prosecutors, and workers can pursue them through PAGA. A company also can’t charge a willfully misclassified worker fees or take deductions from their pay.
Lab. Code § 226.8Work expenses are the company’s to pay
An employer must reimburse employees for all necessary expenses they pay because of the job: mileage, fuel, phone, tools and equipment, for example. Reimbursement comes with interest, and the costs of enforcing it include attorney’s fees.
Lab. Code § 2802Employee rights follow the real status
Workers who are really employees are entitled to minimum wage, overtime, meal and rest breaks, paid sick leave and accurate pay stubs. They’re also generally covered by workers’ compensation if they’re hurt on the job, and by state unemployment and disability insurance.
Lab. Code §§ 1194, 510, 226.7, 246, 226, 3351How far back, and where to file
Claims for unpaid wages can generally reach back three years, and up to four years for some claims under California’s unfair competition law. Some penalties have a one-year deadline, so it helps to act early. You can file a claim with the Labor Commissioner’s Office or bring a lawsuit in court; we can talk through which route fits your situation.
Code Civ. Proc. § 338(a); Bus. & Prof. Code § 17208Asking is protected
It’s illegal for a company to fire, cut off or punish you for asking about your classification, complaining about unpaid wages, or filing a claim. A retaliation complaint to the Labor Commissioner generally has to be filed within one year.
Lab. Code §§ 98.6, 98.7, 1102.5What you can recover
What the law lets you claim
Every case is different, and no one can promise an amount. These are remedies California law provides when workers are misclassified.
Unpaid overtimeLab. Code §§ 510, 1194(a)
Overtime at one and a half times your regular rate after 8 hours a day or 40 a week, and double time in some situations.
Minimum wage for every hourLab. Code §§ 1194, 1194.2
At least the minimum wage for every hour worked: $16.90 an hour statewide in 2026, and higher in some cities. Unpaid minimum wage can also carry liquidated damages.
Meal and rest break premiumsLab. Code § 226.7(c)
An extra hour of pay at your regular rate for each workday a required meal break, and each workday a required rest break, wasn’t provided.
Work expensesLab. Code § 2802
Reimbursement for necessary work expenses you paid yourself, such as mileage, fuel, phone, tools and equipment, with interest.
Interest, attorney’s fees and costsLab. Code §§ 1194(a), 218.6, 2802(c)
Unpaid wages earn interest from the date they were due, and the law lets you recover reasonable attorney’s fees and costs.
Waiting-time penaltiesLab. Code § 203
If you’ve left and the company willfully failed to pay all wages owed, up to 30 days of your daily wages as a penalty.
Wage statement penaltiesLab. Code § 226(e)
Missing or inaccurate pay stubs can carry penalties of $50 for the first pay period and $100 for each later one, up to $4,000.
PAGA penaltiesLab. Code §§ 2699, 226.8
Where coworkers were affected too, civil penalties under PAGA may apply, including penalties for willful misclassification. About PAGA & class actions
No attorney’s fee and no case costs unless we recover money for you. If we do, our fee is a percentage of the recovery, and the case costs we advanced are repaid from your share — all set out in your written fee agreement.
Estimate what you may be owed
Our free Wage & Hour Calculator walks through your hours, pay and work expenses and shows how each estimate is worked out. It’s an estimate, not a promise; your free case review is where the real answer starts.
What to gather
Show how the job really worked
You don’t need all of this to call us. Start with what you have, and keep adding. Don’t take anything you’re not allowed to access.
Offer letter
How the job was described and how you were to be paid when you started.
Job description
What the job says you do, to compare with what you actually do all day.
1099s and W-2s
Tax forms for each year, and any switch from one to the other.
Contracts
Contractor agreements, “partner” papers, anything you were asked to sign.
Schedules
Shift texts, assigned routes and calendars: proof of who set your hours.
Expense records
Receipts, mileage logs, and phone, fuel and equipment bills you paid yourself.
Messages showing control
Instructions, rules, write-ups, and approvals you needed for time off or changes.
Pay records
Pay stubs, invoices you were told to send, and payment-app deposits.
Once we take your case, you can upload these in your client app, straight from your phone, and see them alongside your case.
Results
Results in related cases
Wage and hour results in cases handled by our attorneys, shown here as related cases.
- $1,800,000SettlementWage and Hour Class Action
- $1,200,000SettlementWage and Hour Class & PAGA Action
Prior results do not guarantee a similar outcome.
$200M+ recovered
Combined recoveries in cases handled by our attorneys including employment and injury matters. Every case is different, and past results do not guarantee a similar outcome.
FAQ
Questions about misclassification in California
Short answers. Your pay and the work you actually do are what decide it, so the free review is the real answer.
What is employee misclassification?
It’s when a company labels you something the law says you’re not: an independent contractor instead of an employee, or an “exempt” salaried worker who doesn’t qualify for the exemption. The label can cost you overtime, meal and rest breaks, reimbursement for work expenses and other protections employees have.
Am I an independent contractor or an employee in California?
Under California’s ABC test, you’re treated as an employee unless the company that hired you proves all three of these: you’re free from its control and direction, both on paper and in practice; your work is outside the usual course of its business; and you’re customarily engaged in your own independently established business of the same kind. If it can’t prove even one, the law treats you as an employee. Some occupations and business arrangements are exempt from the ABC test when every legal condition is met, but workers in those situations can still be employees under a separate multi-factor test. App-based rideshare and delivery drivers are covered by a separate set of rules under Proposition 22.
What is the ABC test?
It’s the three-part test in California Labor Code section 2775 that decides whether a worker is an employee or an independent contractor for California wage laws, the Wage Orders and unemployment insurance. The company has to prove all three parts, A, B and C; the worker doesn’t have to prove anything. It applies to work performed since January 1, 2020.
Does a 1099 mean I’m a contractor?
No, not by itself. Signing a contractor agreement or receiving a 1099 instead of a W-2 doesn’t, by itself, make you an independent contractor. What matters is how the work is actually done, and whether the company can prove all three parts of the ABC test.
Can a salaried employee be owed overtime?
Yes. Being paid a salary doesn’t, by itself, make you exempt from overtime. In 2026, an exempt employee generally must earn at least $70,304 a year and spend more than half of their work time on genuinely executive, administrative or professional duties that call for discretion and independent judgment. A job title isn’t enough. If either test isn’t met, overtime is owed even on a salary.
What can I recover if I was misclassified?
It depends on your situation. Workers who are really employees are entitled to minimum wage, overtime, meal and rest breaks, paid sick leave, accurate pay stubs and reimbursement for necessary work expenses like mileage, phone and tools, and unpaid wages can be recovered with interest and attorney’s fees. Some penalties may also apply. When a company willfully misclassifies workers, the law provides civil penalties of $5,000 to $15,000 per violation, or $10,000 to $25,000 for a pattern or practice; these are enforced by the Labor Commissioner and public prosecutors, and workers can pursue them through PAGA.
Can I be fired for asking whether I’m misclassified?
No. It’s illegal for a company to fire, cut off or punish you for asking about your classification, complaining about unpaid wages, or filing a claim (Labor Code sections 98.6 and 1102.5). A retaliation complaint to the Labor Commissioner generally has to be filed within one year, so it helps to act early.
Related
Where misclassification can lead
- The ABC test, in depthOur longer guide to contractor misclassification in California.Read our guide to the ABC test
- Unpaid overtimeDaily and weekly overtime, double time and off-the-clock work.Learn more
- PAGA & class actionsWhen the same label was put on your coworkers too.Learn more
- Wage & hour violationsUnpaid wages, late paychecks, missed breaks and more.Learn more
- Wage & Hour CalculatorHours, breaks and expenses, with each step shown.Estimate what you may be owed
- RetaliationPunished for asking about your pay or your status.Learn more
Free case review
Your job decides your rights. Not the label.
Tell us how you’re paid, what you actually do and who controls the work. In a free virtual consultation, we’ll walk through the tests with you and tell you what may be owed.
- Exclusively for workers
- Free virtual consultations
- Serving California workers since 2012
Contact us Estimate what you may be owed Lea nuestra guía en español
This page is general information, not legal advice, and reading it doesn’t create an attorney-client relationship. Laws change and every situation is different; talk to a lawyer about yours.
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