When Employers Claim Employees are Independent Contractors

independent contractorsFor some companies, labeling employees as independent contractors has not turned out to be such a great money-saving idea after all. Some companies will do anything to save themselves a buck, even if it harms workers and violates state and/or federal law. This appears to have been the case for CMI Transportation, K&R Transportation California, and Cal Cartage Transportation Express, all subsidiaries of NFI Industries,

Claims in the Case

According to court documents regarding these port-trucking companies,workers were classified as independent contractors, and were then hired to get products transported. This saved the companies a boatload of money, but how?  

The Cost of Doing Business

The Bureau of Labor Statistics determined that wages account for roughly 70% of employee compensation, while benefits take up the additional 30%. So, if employers can avoid benefits that are mandated by law, such as Social Security, unemployment insurance, workers’ compensation, and Medicare, they can really make out well. Additionally, they never have to go to the bargaining table to discuss issues like vacation pay, sick pay, pensions, paid leave, and the like.

Employees or Independent Contractors?

With the huge savings associated with hiring independent contractors, why does every business not label workers that way? The fact is that making such determinations is not a matter of personal choice. There are legal questions to consider. Answering yes to one or more of these questions likely means workers are employees, deserving of all benefits the law dictates:

  • Is the business reliant on the work in order to do business? Someone who lays carpet in a department store is not essential to daily business operations, whereas clerks and warehouse workers are.
  • Is termination without cause a right of the employer? If so, the worker is not an independent contractor who can only be terminated only if the terms of the contract are violated.
  • Is the worker considered to be semi-skilled or unskilled? If so, they are the target audience for protections by the California Unemployment Insurance Appeals Board.
  • Did the employer train the worker? Independent contractors usually provide a service for which they are already certified.
  • Is the worker expected to provide his or her own supplies for the job? Employers do not generally provide tools and such to independent contractors.

Independent Contractors and the Consequences of Misclassification

In California, there is a big price to pay when employers intentionally misclassify their workers. In one case, a judgment for $13 million was won when janitors were misclassified as independent contractors by a couple of companies. What will happen in the trucking lawsuit remains to be seen. [Read more…]

The Rights Employees do and do Not Have

Employee RightsWhat are my rights as an employee? Is your employer crimping your style at the office? Does it feel as though you are walking on eggshells because you are so unsure of what is ok and what is not? Sure, everyone knows discrimination is illegal and that the workplace has to accommodate for disabilities. What about the nitty-gritty things that nobody ever talks about? Uncertainty is an ugly companion on the job; it is better to clarify your rights at work from the get go. If serious concerns arise, a local employment attorney could help.

These Activities Fall Within Your Rights:

  • Discussing working conditions: If you have concerns about safety conditions, are curious about how much money your co-workers make, or believe certain policies are unfair, you have every right to discuss those issues with your colleagues. If you have been forbidden to do so by policy or contract, there is a good possibility your employer is breaking the law.
  • Keeping copies of signed documents: When you hire on with a company, they may ask you to sign a mountain of paperwork, from arbitration clauses to confidentiality agreements. Make sure you get copies of everything you put your signature to, so if problems arise later, you are clear about what their expectations are, and you can better evaluate how you will handle disputes.
  • Having a copy of the employee manual: Are you required to read and know what is in the employee manual? If so, you are entitled to have a copy, whether it is a hard copy or an online manual.
  • Receiving overtime pay for hours over 40: If you are an hourly employee, you must be paid time and a half for any hours exceeding 40 in one week. Employers sometimes try to get around paying for overtime by misclassifying workers as salaried, requiring employees to complete duties off the clock, requiring both exempt and non-exempt duties in your job description, and a multitude of other tricks.

These Activities are Not Protected at Work

That does not mean, however, that employees have free reign at work. There are plenty of activities in which employees assume they can engage, but that could get them into legitimate trouble with the boss.

  • Complaining about your job: You can actually be fired for complaining about problems at work if those problems are not the result of illegal behavior. So, if you want grouse about how unprofessional your boss is in his or her attire, bite your tongue. Even away from work, those kinds of comments can get you canned.
  • Getting into an argument with a co-worker: Whether talking about politics, education, or any other topic, do not assume you can freely spout your opinions. You are being paid to do a job, not change the world with your views on the state of the White House. Avoid disputes that should not be occurring in the office.

Protecting Workers’ Rights

At Beck Law P.C., we work hard on behalf of clients whose workplace rights have been violated. If you need legal advocacy in Sonoma County, Mendocino County, or Lake County California, contact us in Santa Rosa today.

Retaliation for Reporting Workplace Violations

RetaliationRetaliation in the workplace. California workers are entitled to certain  protected rights. When they are violated, workers may report those violations to the Division of Labor Standards Enforcement (DLSE) to seek reparations. Unfortunately, sometimes employers do not appreciate this reporting, and seek retribution against reporting employees. When that happens, aggressive legal representation can make the difference to the success of your case.

Keep in Mind

Anyone can file a complaint, regardless of immigration status, language, or identification. All workers are protected under California law, and the Labor Commissioner’s office has no interest in your immigration status; nor will they report on immigration issues to other agencies.

Protected Activities

There are specific activities that are protected under California law. Those include:

  • Refusing to work when conditions are not safe, or making complaints about those conditions to bosses, labor unions, or government agencies;
  • Filing a wage claim against employers who do not pay earned wages;
  • Assisting in an investigation or testifying on behalf of co-workers’ claims;
  • Refusing to sign agreements promising not to file claims or divulge information regarding safety conditions in the workplace;
  • Using sick leave to deal with family or domestic partner illnesses;
  • Requesting time and private space to pump breast milk;
  • Taking time off to deal with domestic violence or sexual assault issues relating to yourself of your children.

Possible Examples of Employer Retaliation

Employers may express their displeasure with you for reporting your concerns in a number of unlawful retaliatory manners:

  • Termination;
  • Suspension;
  • Transfer or demotion;
  • Pay or hour deductions;
  • Threats or disciplinary action.

California’s Whistleblower Laws and Retaliation

A whistleblower is defined as a person who reports a reasonable belief that an employer is in violation of state or federal laws or regulations, or who believes that unsafe work practices or working conditions put employees at risk.  California Labor Code Section 1102.5 protects whistleblowers from retaliations and requires employers to reinstate any wage or benefit reductions that may have occurred due to retaliation.

Evidence that Engaging in Protected Activity Resulted in Retaliation

Demonstrating a causal connection between your activity and the employer’s unlawful retribution will be important in exonerating you. That connection may be shown in a number of ways:

  • By looking at the time frame in which protected activity and disciplinary action occurred;
  • By examining written and verbal communications made by your employer;
  • By comparing the treatment of employees who engaged in protected activity with the treatment of employees who did not engage in such activity.

[Read more…]

Time Off From Work – New Provisions

Time OffDo you wish to enroll your child in a new school, but time off from your work schedule makes the process too difficult? You are likely unaware of SB579, but it is a legal provision that both you and your employer should become acquainted with.  Labor Code 233, sometimes called the Kin Care law, has been revised to include favorable impacts for employees. Because this law, as most, is open to interpretation, getting experienced legal help for your individual circumstances is always a good idea.

How Does Labor Code 233 Impact Time Off For Child-Related Activities?

This law protects employees in their efforts to participate in school activities for children in pre-kindergarten through twelfth grades. In addition, the law provides that parents, grandparents, and other custodial guardians, including step-parents and foster parents, may take time off of work to deal with child care provider emergencies, school emergencies, or to simply enroll a child in school or with a licensed child care provider. In fact, the law entitles you up to 40 hours per year for such activities in the state of California.

Employers may require employees to use their personal leave, comp time, vacation time, or other leave for such activities, but if that is unavailable, the law allows up to eight hours per month of unpaid leave.

What Other Time Off Changes Does Labor Code 233 Invoke?

Changes made to the “Kin Care” law took effect in January of 2016. These changes widen the scope of activities for which individuals may use their accrued sick leave. Employees may now use up to one-half of protected leave under these circumstances:

  • Health reasons related specifically to the employee;
  • Health reasons related to the employee’s family members;
  • Employees who are victims of sexual assault, stalking, or domestic violence.

Is a Doctor’s Note Required in Order to Take This Type of Time Off?

Under the new provisions, an employer’s right to seek verification of an illness is limited, as well. The changes in Labor Code section 233 protect employees from disciplinary action when using one-half of their accrued leave. Employers may not request a doctor’s note substantiating the illness until the employee has used one-half of the leave. So for example, if an employer provides 20 sick-leave days per year, a request for a physician’s documentation of illness could not be requested until after the first 10 days of leave has been taken.

Do All Employers Have to Provide This Type of Time Off?

Labor Code Section 233 applies to all employers who employ 25 or more individuals. [Read more…]

Jointly Employed? New NLRB Ruling Has Major Implications

Jointly EmployedDoes your business include employees who are jointly employed (meaning that they work for you and another employer), as well as employees who work only for you? If the answer is yes, a new ruling from the National Labor Relations Board (NLRB) may complicate how your company handles collective bargaining.

In the case of Miller & Anderson, Inc., the NLRB was faced with the issue of whether workers who are solely employed by one employer can collectively bargain alongside jointly employed workers without the permission of their employers. It does not mark the first time the NLRB has ruled on the jointly employed issue. In 2000, in the case of M.B. Sturgis, Inc., the NLRB ruled that employer consent was not necessary. In 2006, however, the NLRB took the opposite approach in Oakwood Care Center, 348 N.L.R.B. No. 37, and held that Sturgis was incorrect.

The ruling in Miller & Anderson is a return to the Sturgis standard. It holds that jointly employed workers in this situation can bargain collectively, regardless of whether their employers approve.

A Return to the Old Standard

This issue involves Section 9(b) of the National Labor Relations Act. Section 9(b) refers to different types of bargaining units, such as “employer units,” “craft units,” and “plant units.” The NLRB has long held that when employer units contain employees who work for multiple employers, these “multi-employer” units can only bargain collectively with the consent of all parties – meaning all of the employers involved have to give their permission.

But what happens when some of the employees are employed by a “supplier” employer (such as a temp agency) and perform work for a “user” employer? (The NLRB refers to these types of units as “Sturgis” units.) Does a Sturgis unit constitute a multi-employer unit?

In Oakwood, the NLRB ruled that Sturgis units are multi-employer units. However, Miller & Anderson reverses this holding. It states that multi-employer units are created “without regard for any preexisting community of interest among the employees of the various separate employers.” According to the ruling, a traditional multi-employer unit contains employees whose employers have nothing to do with one another, aside from being in the same industry.

A Sturgis unit, on the other hand, contains employees who are all employed by the same employer (even though some of the employees are joint employees, who also work for a different employer). The Miller & Anderson ruling states that because workers in Sturgis units share an employer, Sturgis units are not multi-employer units, and that they meet Section 9(b)’s definition of an employer unit – which does not require employer consent to bargain collectively. [Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.