Month: February 2015

What are the Benefits and Downsides of Being Classified As An Employee Versus An Independent Contractor?

employee vs. independent contractor

Workers may be classified into two general legal categories: employee and independent contractor. The distinction between the two is really important. A worker, such as a painter, who provides unsupervised, specialized work that is needed only irregularly, is a clear-cut example of an independent contractor.

Frequently, the worker is trying to claim the status of “employee” to qualify for the legal protections and employee benefits given to employees. At the same time, the employer is seeking to classify the worker as an independent contractor.

From the employer’s standpoint, considerable money can be saved by classifying a worker as an independent contractor. A business that hires an independent contractor does not have to provide workers’ compensation insurance, unemployment compensation, overtime, or job benefits. Further, it does not need to pay state and federal payroll taxes for the worker. More importantly, when an independent contractor is hired, the employer is not required to pay any part of the contractor’s Social Security and Medicare taxes.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

Advertisements

How Do You Classify an Employee Versus an Independent Contractor?

employee vs. independent contractor 2

Although various employment statutes offer a variety of explanations as to what constitutes employee status versus an independent contractor, two primary criteria distinguish independent contractors from employees.

First, independent contractors agree on the desired work product and then control the means and manner of achieving the outcome. Second, independent contractors offer services to the public at large, not just to one business.

Keeping in mind that all of the factors of a worker relationship must be assessed and weighted and that no one factor is determinative, courts have used the following criteria to determine whether a worker is an employer or independent contractor:

– The nature and degree of control or supervision exercised by the employer
– The extent to which the services is part of the employer’s business
– The amount of the worker’s investment in facilities and equipment
– The worker’s opportunities for profit or loss
– The method of calculating the payment for work (ie- by time worked or by the job)
– The skill and judgment required for the independent enterprise to succeed
– Whether annual, vacation, or sick leave is given
– The intention of the parties regarding independent contractor or employee status.

Workers who are lower paid, lower skilled, lack bargaining power, have a high degree of economic dependence on their employer, and are subject to regular supervision and control are more likely to be considered employees. Workers who have “significant entrepreneurial opportunity for gain or loss,” and retain direction and control over their work, are more likely to be considered independent contractors.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

What is Required for an Employer to Reasonable Accommodate A Disabled Employee?

interactive-process-2

In our last blog, we discussed an employer’s obligations in regards to reasonably accommodating disabling employees. As we discussed, there is a lot of confusion and unclarity regarding what these responsibilities entail and what employers can do to reasonably accommodate disabled employees.

California courts have made it clear that they are looking for evidence of a “cooperative dialogue” and good faith on the part of both parties. Barnett, 228 F.3d. at 1014; Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 266 (200). Further, neither side is allowed to engage in obstructionist conduct. Also, the dialogue between employers and employees includes making reasonable efforts to communicate concerns and making information available to the other party.

For example, if the employee requests a particular accommodation, the employer must give it “due consideration.” If the employer rejects the proposed accommodation, it must “initiate discussion with the employee regarding the alternative accommodations.”

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been discriminated at work based on their disability? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

What Obligations Do Employers Have in Regards to Disabled Employees?

interactive-process

California employers are required to refrain from discriminating against any employee on the basis of disability. Further, employers have an obligation to provide “reasonable accommodations” for employees with disabilities.

The California Fair Employment and Housing Act (FEHA) provides that to an effective accommodation requires employers and employees to participate in a mutual, good faith interactive process. However, this process is often confusing and unclear.

Guidance provided by FEHA provides clarification about the interactive process — both employers and employees should take a common-sense, problem-solving approach to the process and should act in good faith at all times. It is important to note that there are no “magic words” to invoke the interactive process. Rather, the obligation starts once the employer is aware of the need to consider an accommodation.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been discriminated at work based on their disability? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

Employers Are Prohibited from Discriminating or Retaliating Against Employees For Using Accrued Sick Days

retaliation for paid sick leave

The passage of the Healthy Workplaces, Healthy Family Act prohibits discrimination or retaliation against employees for using accrued sick days or for filing a complaint regarding any sick day policy violation.

Under the new Labor Code section 248.5, the Labor Commissioner may award reinstatement, back pay, and even payment of sick days unlawfully withheld, plus the payment of an additional sum in the form of an administrative penalty to an employee whose rights were violated.

If the employer fails to promptly comply, the Labor Commissioner may take action to ensure compliance, including filing a civil action. In such cases, the violating employer may be sanctioned to pay to the State of California up to $50 for each day a violation occurs.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been deprived of your accrued sick days after July 1, 2015? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

All You Need to Know About Accrual of Paid Sick Leave

Paid-sick-leave

After July 1, 2015, employees who work in California for 30 or more days within a year from commencement of employment will accrue paid sick leave at a rate of no less than one hour for every 30 hours worked.

Exempt employees will be deemed to work 40 hours per week for accrual purposes, unless their normal work schedule is less than 40 hours. In such a case, they will accrue paid sick leave based on their normal workweek.

Further, covered employees will be entitled to use accrued paid sick days beginning on the 19th day of employment, after which they may use paid sick days as they are accrued.

Please note that accrued paid sick days carry over to the following year of employer. However, employers may limit an employee’s use of paid sick leave to 24 hours or three days in each year of employment.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been deprived of your accrued sick days after July 1, 2015? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

Employers Need to Give Notice and Post New Paid Sick Leave Laws

notice to employees

A new year brings new laws for California employers. As we discussed in our last blog, the Healthy Workplaces, Healthy Family Act requires employers to provide paid sick leave.

Labor Code section 2810.5 has been amended in 2015 to require employers to provide written information at the time of hire about new paid sick leave entitlements.

Specifically, this law requires that notices must now also include language advising employees of their right to accrues and use paid sick leave, their right to be free from retaliation, and their right to file a complaint.

An employer is also required to display in each workplace of the employer a poster notifying employees of these paid sick leave rights.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

You May Be Entitled to Recovery Periods to Rest

Lunch Break

Labor Code section 226.7 prohibits employers from requiring employees to work during any meal, rest, or recovery period. The law also requires employers to pay an additional hour of pay at the employee’s regular rate of pay for each workday a meal, rest, or recovery period is missed.

Due to the growing concerns that employers were not sure if rest or recovery periods need to be paid, in 2013, the California Legislature added the language regarding “recovery periods” to specificy that rest or recovery periods required under California law shall be counted as hours worked for which there will be no deduction from wages. Thus, recovery periods count as hours worked the same way working during rest periods count as hours worked.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been deprived of your recovery periods? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://employmentlawyersla.com/ if you have any questions regarding your rights at the workplace.