Wage Law

If a person’s work requires a license, and the person performing the work does not hold the necessary license, there is generally a statutory presumption that the person is an employee, rather than an independent contractor. However, if the person alters his status, for example, by surrendering his contractor’s license, and does not inform the employer of the change, the worker is estopped from relying on the statutory presumption by virtue of the omission or misrepresentation. Chin v. Namvar (2008) 166 Cal.App.4th 994.

Chin arose after a painter fell from ladder on the job. The painter then brought an action against the hirers for unfair competition, Labor Code violations, wrongful termination, and negligence. The painter lost at trial, and on appeal the Second District Court of Appeal held that one who misrepresents himself as a licensed contractor is estopped from asserting that his unlicensed status makes him an employee; the burden is on the hirer/employer to show such misrepresentation and estoppel; upon such a showing, the laborer is estopped him from claiming employee status; and therefore, this painter was an independent contractor, even though he was not licensed to do work for which a license is required.

You can download the full text of Chin here in pdf or word format. No petition for review was filed and the opinion is final.