The Glamorous Grind
The Glamorous Grind is where bold legal minds meet unfiltered conversations. Join hosts Ilona Antonyan and Mila Arutunian—powerhouse attorneys at Antonyan Miranda—for this dynamic podcast as they dive into headline-making lawsuits, past cases, and the hustle of balancing career, family, and ambition. With fascinating guests, including celebrities, business leaders, and former clients, Ilona and Mila keep it raw, real, and always glamorous.
The Glamorous Grind
Misclassified? The Truth About Independent Contractors vs Employees
Are you actually an employee—but getting paid like a contractor?
In this eye-opening episode of The Glamorous Grind, Ilona and Mila expose the legal gray areas surrounding independent contractor misclassification. From workplace horror stories to California’s ABC Test, AB5, and the Uber & Lyft legal wars, this episode is packed with insight every worker and employer needs to hear.
🎧 You’ll learn:
- What makes someone a W-2 employee vs a 1099 contractor
- Why so many businesses get it wrong—sometimes on purpose
- The real consequences of misclassification (spoiler: lawsuits 💸)
- The truth about gig economy protections under Prop 22
- What to do if you think you’ve been misclassified
- Legal tips for employers, HR teams, and contractors
💼 Whether you’re a startup founder, a freelancer, a gig worker, or just someone clocking 40+ hours a week—you can’t afford to miss this one.
🔊 Red Flag or Green Flag, Glam Tip of the Week, and a raw Q&A from a listener bring the law to life in classic Glamorous Grind style.
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Welcome to the Glamorous Grind where grit meets glamour and the law is always in style.
Mila:Today we're tackling a topic that affects many people in the workforce the misclassification of employees as independent contractors.
Ilona:It's a practice that denies workers essential rights and benefits, and, as business owners, it is important to know the difference.
Mila:And as an employment attorney, this is something I see unfortunately a lot. Let's discuss how you can protect yourself.
Ilona:So, mila, before you joined our firm, you worked on employment defense side for many years. What sort of cases do you see that are related to employee status?
Mila:Misclassification is very common, where people are classified as independent contractors as opposed to employees, and the problem is there's no black or white line right. Everything is arguable. There are tests that courts use to determine if someone is properly classified as an independent contractor or if they should be an employee. A lot of times employers will misclassify workers. Sometimes this is accidental. They don't know any better, especially when it's small companies, they think they can have independent contractors. But other times employers do this purposefully, honestly, because it's a lot cheaper. Why is it cheaper? It's cheaper because they don't have to give them insurance, even though they're working full time. It's cheaper because they don't have to do payroll taxes. They don't have to have them on the payroll. There are numerous benefits that employees get that independent contractors don't get.
Ilona:Well, I take an issue with it being potentially cheaper because some people who are independent contractors they may be independent contractors because they have a lot of skills in business and then they charge more per hour to make up for the benefits they have to buy for themselves.
Mila:So it's not necessarily cheaper, depending on what field you're in. Obviously right, it's really dependent. But there are certain situations when people should be classified as employees. They act as employees because there are benefits that the law instills in being an independent contractor. But sometimes employers don't allow the employees to have those benefits but they still classify them as contractors. Here's the problem. So when you're an employee of a company, there are very specific requirements to be a salaried employee where you don't get breaks, you don't get lunches, you don't get paid overtime, you get an hourly salary. So under California law there are very specific requirements you have to meet to be salaried. That way the employee doesn't have to give you lunches, doesn't have to give you breaks, can work you 15 hours a day and one of those requirements is you got to be paid double the minimum wage. So if the minimum wage that goes up every year, right.
Ilona:In California it does Every year. They're like okay, here's the minimum annual salary, so as long as you meet that, you're good.
Mila:Well, it's not just that, it also has to be. There are very specific wage orders that provide which types of employees can be salaried versus hourly. So there are like executive positions are people with very specific licenses, like attorneys, who can be salaried as long as they meet the minimum wage requirement as well.
Ilona:What are the juiciest cases you've handled on the defense side?
Mila:I can't say they get that juicy. If I'm honest, I mean most of the time when I was on the defense side and these cases came through my door I felt very bad for the plaintiffs, because these plaintiffs worked like crazy hours and they were paid well under the annual salary requirement and they were working crazy hours, not taking lunches, working around the clock, and they barely made enough to survive. I mean, even with the minimum wage as high as it is in California, with the cost of living so high, you need well above double the minimum wage to live comfortably. And I'm not even talking about live comfortably like you can afford vacations, I'm talking about live comfortably like you can afford food. They were misclassified as independent contractors, barely paid the minimum thresholds of like minimum wage if you count the amount of hours they were working, not having any insurance benefits, like they would get sick and they can't go to the doctor.
Ilona:You know, the federal minimum wage, I think, is like $7. I don't know how people live on that nowadays. I mean it's impossible.
Mila:Unfortunately, there are people who do work for that amount because they have no choice. It's very sad because and again, I see it from both sides, having come from the employment defense side and representing employers, I saw employers doing everything they could, trying their best to pay their employees fairly, but the minimum wage is so high and they still have to make a profit.
Ilona:Well, here's from an employer's perspective, and you only learn when you know it's best to call an employment law attorney. Sometimes, when you want to hire people, they say, hey, can I get paid as an independent contractor? And if you're not aware you can get sued. That person may be trying to set you up, which happens sometimes. There are those people that are like, oh yeah, I'll take a job, and then they send you a letter that's written by an attorney, and so there are those that try to set you up, and then there are those who truly just feel like it's more convenient for them to get paid as an independent contractor. What should employers know to do before agreeing to a request by a potential employee to be an independent contractor?
Mila:I would recommend no matter how big or small you are as an employer, you need to consult with an attorney when making hiring decisions.
Ilona:What if they have an HR department? Would they know?
Mila:They might. Sometimes the HR department should consult with employment attorneys. Here's the problem. Employment laws change every single year and it is impossible to upkeep with it. As an HR person Like you need an attorney involved to make sure that even something as simple as your handbook is compliant with all of the up-to-date laws. So I always recommend this. Employers need to have attorneys involved. I don't care if you have to take out a loan. Consider it an investment because the cost of litigation in California is so high. A nuisance value employment case in California could be $50,000,. Nuisance value that means if you get sued by an employee and you get out of it paying 30 grand after litigating the case and paying your attorneys. Like you've won. Employers a lot of times do everything they can, have the best intentions and things happen and if you're not on top of it, you will get sued. That is just a fact.
Ilona:Yeah, I mean, in America anybody can sue for anything. Yeah, that's the reality. That's why so many lawyers have practices, good or not, it's time to get gritty. Audience Q&A. Our listener asked the following question hey, I've been working full-time hours for this company for over a year and they tell me when to work, provide all the equipment I need and I have to report to a supervisor, but I'm still classified as an independent contractor. I receive no benefits. They don't withhold taxes. Is this legit? What should I do?
Mila:One of the requirements of being an independent contractor in California is that the employer, the company you're contracting with, does not oversee your work. You are independent, so you get to set your own hours. You get to come and go as you please, you get to make the calls as to how your work is going to be handled and you're paid on a contractual basis. But sometimes the employer will be like no, you have to be in from eight to five every single day. You have to work on our equipment. You cannot work remotely and are very controlling over the contractor's work. That contractor should be an employee at that point. It shouldn't be a contractor. I'm so excited I finally get the glamorous flag.
Ilona:And they match with your jacket, relatively speaking Okay, so tell us if this is a red flag or a green flag. You work for multiple clients, but the employer controls your workflow.
Mila:It depends. So if you work for multiple clients through the employer, through the company, and the company controls your workflow, then that's absolutely a red flag because it sounds like the company you should be an employee, not an independent contractor, mostly because they control your workflow. Now if you have multiple clients and those employers control your workflow, then it's a green flag because if you're able to have multiple clients, even if they specifically control kind of what you do in the capacity of your contract with them, that could be okay, so long as the other aspects are made, because if you're working multiple clients, you probably are not working full-time eight to five and you have flexibility. And then the other issue it would depend on what industry are you in versus what industry is the employer in.
Ilona:Do you think it's helpful for people who work for multiple clients to have an independent contractor agreement that's written and signed? For example, they may be consultant or just kind of go with the flow and sign a W-9 and I'll pay you per hour.
Mila:Oh, always have an agreement. Always have an agreement. Always have an attorney review the agreement, Because the other thing you have to look out for when you have multiple clients when you're working in an industry is they could have NDAs. If you've learned information from one client that you could potentially use in your work with another client, you don't ever want those allegations coming at you if the two companies are competing with each other. So it's extremely important to have contracts in place.
Ilona:Red flag or green flag, you're excluded from company meetings and communications, despite doing similar work as employees.
Mila:I would say green flag. I think it's okay if you're excluded from company meetings. If you're not an employee of the company. If you're an independent contractor, even if you're doing similar work, the employer or the company has no obligation to include you in company meetings or internal company events.
Ilona:Red flag or green flag. You're an independent contractor, but when you come to the office to do a couple hours of work, you're dressed in a miniskirt and as if you're going to a club showing all your goodies.
Mila:I think it depends. In some places of employment maybe that is acceptable, depending on the dress code of the company.
Ilona:I guess I would say If it was in violation of the dress code of the company? Should you have an independent contractor sign off on a dress code policy for the company?
Mila:You certainly don't have to, but the company could make expectations to you clear of what they expect you to dress like, and if it's professional attire, they absolutely have the right to do that.
Ilona:Red flag or green flag. Have independent contractors review and sign off on their acknowledgement of the employee handbook that contains the terms and standards that the employees are bound by.
Mila:I would say probably green flag, because the employer has the duty to its employees to protect the employees and a lot of times those handbooks or a lot of those policies will be relating to harassment, discrimination, retaliation. So employers could require their independent contractors to be bound by those policies. However, there are policies in those handbooks that contractors are not going to be bound by Meal breaks, rest break, requirements overtime. So you know, if there are policies like that, it would be red flag. I would say if the employer is trying to get the contractor to sign off on a handbook in its entirety, it would probably be a red flag. They can't force them to be bound by all of their policies, but if there are specific policies that the employer wants the contractor to be bound by that are general, I think that would probably be okay.
Ilona:Let's discuss this. I know it's a gray area, but what if you are a personal injury law firm with hundreds of attorneys and they get to choose whether they want to be independent contractors or W-2 employees, and if they choose to be independent contractors, you still expect them to be at the office almost every day? You give them your computer, all the software and they have to be at the office X amount of days a week. Would that be a misclassification?
Mila:I would say probably. I know that a lot of law firms do this, but technically, if you are requiring your folks to be in office, if you are giving them your equipment, they're not using their own equipment. If you are controlling the type of work that they do, they should be an employee and not a contractor.
Ilona:With the rise of the gig economy, worker classification has become a hot topic and none felt it hotter than Uber and Lyft this year.
Mila:Let's do an article breakdown.
Ilona:I cannot imagine my life without DoorDash, without Instacart, because I don't have time to go and spend two, three hours at Costco between drive and shopping, and I have to do that once or twice a week. And I'm so grateful that these gig jobs exist because one I don't have to go to. These people make extra money and can support their families. And it's just very convenient.
Mila:So the issue was in about, I believe, 2019,. 85 came out that said that all these Uber and Lyft drivers have to be classified as employees, not independent contractors. And Uber and Lyft fought the bill saying A our folks want to be independent contractors, not employees, because they like the flexibility. They don't want to be full-time employees or part-time employees. And B we don't have the capacity to oversee these folks as employees. We don't have the capacity to give them health insurance, to give them lunches and breaks and do all of the administrative work that goes into that Plus that's going to increase the cost for all users.
Mila:Oh, absolutely. I mean and that was one of their arguments too the reason why we can keep the cost down is because they're independent contractors and we don't have to pay for employing these folks. So then they fought it and they basically said we're going to leave California and not do business here if this continues. So then Prop 22 was passed, said that they could be like specifically for gig drivers such as Uber, lyft, instacart. They could be classified as independent contractors even though technically under the law, they should be an employee.
Ilona:I think that's great. It's a win for Californians. One we get to have all those convenient services. Two for the citizens of our state to have that extra income, especially for single parents and those sharing custody.
Mila:Yeah, no. And the funny thing is I remember being on the defense side when all of that stuff was happening and I was like this doesn't really benefit anyone. It doesn't benefit workers. If they can't have the flexibility A and B, then it's going to be more expensive for the consumer and they're going to have to actually like apply for work, as opposed to right now they just sign up.
Ilona:As long as they have good reviews on the app, they can pretty much get the job and the state can still control how much taxes they collect because Uber and Lyft will issue 1089 to those people, and the workers who are independent contractors may qualify for cheaper health insurance through Covered California, which could cost less sometimes than what their premium would be through an employer.
Mila:And you know, like a lot of immigrants, they come to this country. They don't speak English. What can they do? I mean a lot of my uncles. When we first came to this country, most of them were taxi drivers, but then, when Uber and Lyft came out, they all went to Uber and Lyft, even though they were barely able to utilize technology. It just made a lot more sense to do Uber and Lyft than it was. And I remember, even like with the taxi drivers, it was so inefficient because you have to wait for a fare and they would just sit around at these cafes like waiting, whereas Uber and lyft they set their own schedules. They turn on the app whenever they want to do work, they come out to downtown and they, you know, bid on the work and it just makes sense for everyone.
Ilona:I thought that the cabs will now be cheaper because uber and lyft are a competition. So recently when I traveled, I took a cab from the airport last. To get to the airport from my house, I paid 60 bucks for using Uber. To get back using a taxi from the airport, I paid $160 plus. Then tip on top of it and I was like what? I was surprised that it was way more expensive. I thought you know, they had to compete and it would be about the same, but it wasn't.
Mila:I'm surprised taxis are still in business with Uber and Lyft employees. So yeah, I mean we'll see how it turns out. But basically the lawsuit is that the drivers who worked for Uber and Lyft want back pay for the time between AB5 went into effect before Prop 22 was passed.
Ilona:Let's decode the legal criteria that distinguish employees from independent contractors. What's the ABC test and what's AB5 got to do with it?
Mila:The ABC test. This is the primary test used in California to determine if their worker is an employee or an independent contractor, codified by AB5, a worker is presumed to be an employee unless the hiring entity can prove three specific conditions related to the worker's control, the nature of the work and the worker's independent business status. But so here's the problem. That happens, people are hired as independent contractors and paid a daily wage, but then they're required to be working for 15 hours a day and if you count the daily wage over a period of a month, they're making well below the salary requirements. Yet they're not given lunches, they're not given breaks, they're not given insurance. That seems unfair for sure. So I mean, I've seen it go both ways A lot of times. Employers will not benefit, the contractor will benefit. If everything is proper as the legislature intended it, it should be a mutually beneficial relationship, because the employer gets a very specific service and they don't have to have this person on payroll.
Ilona:What advice would you give to employees?
Mila:I am a person of integrity. I don't want to screw over companies. I also don't want to screw over people Like I think everyone should get what they're owed. So here's the advice I would give to all the employees is that make documented complaints. Whenever something bad happens, make a complaint, Because once you make a complaint, the employer has a duty to do something about it to protect you. No matter how big or small it is, you should make a complaint and make it in writing. If people are experiencing a hostile work environment, it should be documented and then the employer has a duty, what's considered a hostile work?
Mila:environment. Generally speaking, a place of employment doesn't have to be a sorority. Everyone doesn't have to be super nice to each other. But at the same time, if there's consistent hostile reactions if a supervisor is hostile to employees they are not properly managing them.
Ilona:Would that be name calling? Would that be?
Mila:It can be name calling, it can be brushing them off, it can be excluding them from opportunities. All of these things could be hostile. But here's the thing even if it's something that's not illegal, once you make a complaint to HR, hr is going to talk to the supervisor and just be like hey, knock it off right, like, and then you're protected from retaliation.
Ilona:So the employee needs to go to HR department and make a written complaint.
Mila:Yes, some companies are smaller, they don't have HR, but you do have to make the complaint to someone who is in a supervisory position. Some of the most difficult cases to prove are pregnancy discrimination cases because, as you know, when a woman is pregnant, a lot of times like you're more tired, you're a little bit slower, you're creating human life. A lot of times, especially if you have morning sickness, you can't really operate like you would normally and the problem is employers will write you up for performance when you're pregnant and the performance issues may actually be related to your pregnancy and the employer isn't taking into account.
Ilona:Does it matter if you told the employer you were pregnant versus you didn't?
Mila:Yes, because if the employer has no knowledge you're pregnant, you can't really prove that it's in discrimination for your pregnancy.
Ilona:Yeah, that makes sense.
Mila:But so I've had cases like that where you know employers will write women up and then when the I've had two cases like this that when the woman tells the employer they're pregnant, they start writing them up gave me emails or correspondence showing that, you know, prior to the actual pregnancy they had performance issues. That weren't formally documented Maybe they weren't written up, but there were internal emails showing that this was an issue and those are very hard to prove. I actually had a case where a woman was five months pregnant and she had a really high risk pregnancy. So she didn't tell her employer until she was about five months in. And, um, she, immediately after she told them she was pregnant, they started, uh, sending her written communication saying you need to have your zoom camera on during meetings.
Mila:Like this is against company policy. You don't have your zoom camera on during meetings. Like this is against company policy. You don't have your Zoom camera on during meetings. And she was like this has never been an issue before. But all of a sudden I'm getting these like documented write-ups for not having my Zoom camera on, like one time her camera wasn't working and the chief operating officer would send her these like very hostile texts like turn your Zoom camera on all caps exclamation's like. Well, what is happening?
Ilona:so what happens if it was undocumented before the pregnancy? You said it's a difficult type of lawsuit and gets documented after. To me it seems like once the employer is unnoticed, then, and if they have undocumented before, well, they would still be liable, but the would still be liable.
Mila:but the problem is these cases just end up getting so drawn out. So for that particular case we ended up filed in state court. It was removed to the federal court because the employer was in a different state and the employee was remote and the federal judge was just like not having it. She was like, well, the employer has communications showing this was an issue before. Just because they started writing her up formally after she was pregnant doesn't mean anything. We ended up settling the case. We spent a ton of time on it and even the judge was like you're not going to be able to prove it.
Ilona:I'm surprised that the pregnancy cases are more complicated. I thought they would be a lot easier.
Mila:They're more complicated because it's such a fine line between performance due to pregnancy versus your performance, like if you want to prove causation you have to prove cause.
Mila:you have to prove that the adverse employment action or you know whether it's a write up or cut hours or a termination is because of your pregnancy. Like the pregnancy, legally, the pregnancy has to be a substantial motivating factor in the employer's decision. So if they had prior write-ups, prior things, even if it got worse, you can't necessarily prove that the pregnancy was a substantial motivating factor. Was it a factor? Probably?
Ilona:Wouldn't that apply to any disability, because pregnancy is considered a disability. Would that apply if someone ended up having some other disability? Or illness, and then they are not performing their job.
Mila:Yep and I see this a lot also performing their job. Yep, and I see this a lot Also. The other place I see this oftentimes is mental health disabilities such as anxiety, ptsd, even inability to sleep. Insomnia could be a disability if your doctor qualifies as such, if you have. You know, a lot of veterans we see coming back. They're trying to reintegrate into the workforce. They have really bad PTSD. They can't be around loud noises.
Ilona:But how does it work? I know in another episode you said that as long as an employee reports it, the employer has a duty to accommodate. Yes, so let's say somebody reported it and the employer accommodated, but their performance is really terrible, interferes with business functions. How does that work in terms of a potential lawsuit when it ends up in your hands? It's hard.
Mila:It's hard and you have to make the arguments on both sides, and I do so. That's the thing. So the process has to go. If a complaint is made that I have a disability or I'm unable to perform my functions, you have to provide from a physician a note stating what accommodations do you need specifically? And nowadays everyone wants to come. Every employer is trying to get employees back into the office, so they want to know from the physician not just they have to work from home, but like what accommodations do they need at home that I can provide here on site? And a lot of employers are fighting hard to force people into office right now, like it is a thing. So then they have to show that here are the accommodations that we can provide you so that you can continue to effectively perform the functions of your job with these accommodations.
Ilona:So let's say, if someone cannot drive, an employer can argue you can take an Uber, right?
Mila:Well, if they pay for it if they, the employer is not going to pay for an Uber if they can't drive. If they can't drive, if it's a temporary condition, maybe they might be able to do remote for a temporary time, as long as they're accommodating the conditions. If their performance still doesn't meet up to the expectations, they can then terminate them. As long as the employee can't argue I wasn't accommodated. I'll say that, even when claims happen, a lot of times employers will keep making the same mistakes again and again, because every time there's a claim, they quietly settle it out before a lawsuit is filed.
Ilona:I can see that applies to a lot of the sexual harassment cases you handle. Oh yeah, Especially when it involves attorneys and people who are licensed or that have publicity.
Mila:Yeah, people with professional licenses don't want, you know, public lawsuits against them showing these things. So a lot of times employment lawsuits will settle.
Ilona:But then some people stupidly do it again and again. They should learn from it, but they don't.
Mila:Yeah Well, California does have this fee shifting provision. That's in the law and it incentivizes employment attorneys to take cases and it basically says that if you're an employee and you bring a lawsuit, if you win on the lawsuit, even if your verdict is $1, you can get all of your attorney's fees and costs that's unfair it is unfair.
Mila:It's a very unfair for the employers. But as a result, you know, you bring a claim and even it's a if it's a very low value claim, an employer has the incentive to settle and pay a little bit of a premium like it's killing california business I agree. A lot of employers don't do business in California because of the cost of litigation.
Ilona:I didn't even know that, but that sounds so ridiculous to me.
Mila:But so like you can bring, like I don't do this because I have integrity, but sometimes plaintiff's attorneys will throw everything at the wall and bring you know, maybe there's one thing that was done wrong against this plaintiff, but they will make a thousand claims like harassment, discrimination, retaliation, blah, blah, blah and make this huge lawsuit out of it, even though there's only liability on maybe one claim. But the employer, once they hire an attorney, the attorney is like okay, you only have liability on one claim, but to litigate this it's going to cost us $200,000. So even if your jury verdict at the end of the day is $25 in damages, you will owe that attorney $200,000 in fees.
Ilona:I think it's best to pay an attorney to defend than have multiple lawsuits that are BS, because that just incentivizes people to bring frivolous claims.
Mila:But here's the problem Maybe you did screw up somewhere. Maybe there's like sometimes it's worth it to settle. I see a lot of cases where because there is vicarious liability on an employer through the actions of a supervisor, which means that if your supervisor screws up and does something illegal, the employer is automatically liable for that. If the supervisor sees something illegal happening and fails to report it, the employer is automatically liable for that. So a lot of times you'll have situations where, like, the employer did nothing wrong, but the supervisor either failed to report or did something wrong, so the plaintiff will bring a claim and it's worth paying rather than trying to F around and find out Today's glam tip. Know your worth and your rights. Understanding your employment status is crucial.
Ilona:And remember, being informed is the first step to empowerment, and the most glamorous look you can have is confidence and security. Mila, thanks for talking about this, and I think it's helpful not just for employees, but also for business owners.
Mila:And to our audience. If this conversation opened your eyes, share it. Awareness is key.
Ilona:Like your weekly dose of the glam, don't forget to subscribe. It's law, it's life, it's the Glamorous Grind.
