In addition to being humiliating and demoralizing, workplace discrimination and harassment can also be confusing. To the outside observer, the laws designed to protect workers can seem incredibly powerful in some cases, and totally impotent in others. In today’s workforce, which includes members of the gig economy, questions often swirl about who is protected by the law, and whether some workers are destined to slip through the cracks.

While there are many things to consider when it comes to the subtleties of employment law, clients who consult with our lawyers often want to know up front if the treatment they experienced at work meets the legal definition of discrimination. A common issue we deal with is whether harassment/discrimination laws apply to employees who work remotely the same way they do with employees who work in an office or company-owned building. In other words, can an employee who works from home, sue his or her employer? Related questions might include:

• Are independent contractors entitled to the same harassment/discrimination protection as regular employees?
• What’s the difference between an employee and an independent contractor?
• If harassment/discrimination laws don’t apply in my case, am I helpless to do anything about it?

Continue reading to learn a little about how employment law is applied to both employees and independent contractors, as well as some answers to related concerns. If you have questions about employment law, or feel your employer has acted unlawfully, contact our office to schedule a consultation.

Employee vs. Independent Contractor, What’s the Difference?

California law provides very specific rules for how companies treat workers who are classified as employees. For instance, employees must be paid a minimum hourly wage, as well as overtime, and given specific rest breaks. For tax purposes, full and part-time employees are typically issued a W-2. A worker who’s classified as an employee might work in an office, a store, or even remotely from home.

Independent contractors meanwhile are not paid an hourly wage, but rather, a specific amount of money for a specific amount of work. These workers might include certain types of truck drivers paid a set amount depending on the number of deliveries they make. An independent contractor might offer services to a company on a sporadic or temporary basis. Often, they don’t work within the confines of an office. Labor Code §3353 defines an independent contractor as “any person who renders service for a specified recompense for a specified result.”

The California State Supreme Court issued a ruling on employee misclassification that favors workers. To review that case, click this link.

What the Law Says About Discrimination/Harassment

California’s Fair Employment and Housing Act (FEHA), which is contained in the state’s Government Code, makes it unlawful for an employer to discriminate against or harass an employee based on a number of factors including: sex, skin color, race, religion, age (over 40), nationality, sexuality, pregnancy status and other factors. The law allows an employee who believes he or she has experienced discrimination/harassment to sue an employer and seek damages.

There is also powerful protection at the federal level for employees thanks to Title VII.

Can an Employee Who Works at Home, or Outside an Office Sue for Harassment?

Generally speaking, the answer is yes. FEHA protects employees from discrimination and harassment, regardless of whether they work in an office, warehouse, store, in the field or from home. An employee who works from home might deal with an employer or co-worker who has a habit of sending sexually suggestive emails to female employees. Or an employee working from home might receive less compensation than other, similarly-skilled employees.  Either of these scenarios could lead to a discrimination/harassment case.

Do the Same Protections Apply to Independent Contractors as Employees?

FEHA prohibits discrimination against employees. Unfortunately, these protections do not apply to independent contractors. However, this doesn’t automatically mean that an independent contractor who has been treated unfairly has no legal recourse. As mentioned earlier, the State Supreme Court has offered new guidance on the classification of independent contractors.

While you might not be able to sue an employer under the state’s discrimination laws, you might have a case regarding your classification. It might be well worth your time and effort to discuss your situation with an employment attorney.

Contact Our Office with Your Employment Questions

If you feel you’ve experienced discrimination or harassment, regardless of where you perform your daily tasks, now might be a good time to speak with an employment attorney. Our attorneys offer free consultations, and if it’s determined you have a case worth pursuing, we also provide legal services on a contingency basis. This means the client doesn’t pay out-of-pocket expenses, but rather the attorney is paid with a percentage of the final settlement or judgment. Remember, there is a limited amount of time in which to file an employment lawsuit, and the clock starts ticking the moment the discrimination or harassment occurs.

If you have questions about employee classification, discrimination, or another related legal issue, contact the office of Odell & Freeze to find the answers you’re looking for.