JCL Law Firm, APCJCL Law Firm, APC2024-03-18T14:14:28Zhttps://www.jcl-lawfirm.com/feed/atom/WordPress/wp-content/uploads/sites/1101542/2020/07/cropped-3428176_Favicon-Final-512x512-1-32x32.pngOn Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752412024-03-18T14:14:28Z2024-03-15T14:13:11Zindependent contractor, you lose out on many protections and benefits, putting you at a disadvantage. If that’s happened to you, then you should be prepared to take legal action so that you can recover what you deserve.
Signs that you should’ve been classified as an employee rather than an independent contractor
There are several things to be on the lookout for when you’re worried about the classification of your job. This includes each of the following:
Giving you a company email address.
Being employed for a significant period of time, like more than a year.
Being regularly paid in a way that’s consistent with how the company pays its regular employees.
Being reimbursed for your job-related expenses.
Participating in meetings meant for employees.
Receiving training from the company that’s providing you work.
Being subjected to high levels of oversight by the employer.
Having your hours and work location dictated by the employer.
Having work-related equipment provided to you by the employer.
Identifying job duties that are identical to those performed by the company’s employees.
If any of these issues are present in your work arrangement, then you’re warranted in digging into the matter further to determine if your job has been misclassified.
Take legal action when justified to do so
You shouldn’t let an employer get away with taking advantage of you. Yet, that’s what happens in several instances of job misclassification. It’s up to you to stand up and have your voice heard. If that has you feeling uneasy, then consider seeking out support to help you advocate to protect your interests.]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752392024-03-04T22:10:43Z2024-03-01T22:09:31ZFiling a wrongful termination claim against your employer is an available option. And depending on the circumstances and factors involved, it could assist with the recovery of damages and losses suffered because of the unlawful termination.
Wrongful termination basics
All states, apart from one, allows for at-will employment. This means that an employer can fire an employee at any time and for any reason. But it also means that an employee enjoys the same rights, allowing them to quite anytime and for any reason. While it seems like an expansive right, there are exceptions. An employer cannot fire an employee for illegal reasons, such as for discriminatory reasons or for retaliation.
When there is an employment contract, there are legal obligations created. This means that an employee cannot be terminated at a time or a reason that would violate the terms of the agreement. This could constitute a breach of contract. Additionally, like an at-will employee, even if it does not violate the terms of the contract, a termination cannot be for illegal reasons.
Filing a claim
Often, a wrongful termination involves discrimination. This could be based on an employee’s race, color, national origin, sex, religion, disability, pregnancy, age or any other protected characteristic. A wrongful termination could be related to retaliation. This means that the employer wanted to punish or fire an employee for engaging in a protective activity.
Examples of retaliation includes reporting sexual harassment, trying to form a labor union, taking time off under FMLA, filing a workers’ compensation claim, reporting illegal activity of employer to law enforcement, sitting on a jury, serving in the military, filing a claim for a hostile work environment, reporting safety violations, filing a Title VII claim, reporting unsafe working conditions to OSHA, taking time off to vote or participating in a formal investigation into the employer’s practices.
If you believe you were wrongfully terminated, it is important to understand your rights and what actions you can take. A legal professional could answer any questions you have, which can help you navigate the matter and better protect your rights and interests.]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752372024-02-16T17:19:22Z2024-02-16T17:19:22ZThe state employs two main tests for this determination: the ABC test and the Borello test.
ABC test overview
Adopted by the California Supreme Court in 2018, the ABC test establishes three conditions. First, A, control and direction. The first question is whether the worker is under the hiring entity’s control and direction during the work.
Next, B, the question is whether the work performed by the worker is outside the usual course of the hiring entity’s business.
Finally, C, independent business: This looks at the independent nature of the business. If the hiring entity fails to satisfy any of these conditions, the worker is considered an employee under California law, entitled to corresponding protections.
Borello test overview
Established in 1989, the Borello test is a multifactor assessment that focuses on various aspects of the work relationship, emphasizing the hiring entity’s right to control the work. Factors considered include whether the worker has a distinct occupation or business, the extent the worker was directed, skills required and the tools and workplace provision.
Other factors include the duration of services, method of payment, the level of regular business involvement, perceived relationship by parties and the degree of permanence in the working relationship. Unlike the ABC test, the Borello test does not require meeting all factors and necessitates a case-specific evaluation for classification.
Applicability of each test
In 2019, Assembly Bill 5 was signed into law, establishing the ABC test as the default standard for most California workers. However, exemptions were provided for specific occupations and business relationships. Some exemptions include licensed professionals, certain contractors offering professional services, referral agencies and certain business-to-business contracting relationships.
While the ABC test is the default, these exemptions may be subject to different tests, such as the Borello test. It is essential to note that even exempted workers must meet particular criteria to qualify as independent contractors. Additionally, federal laws may supersede state laws for certain workers engaged in interstate commerce, such as truck drivers. In navigating the complexities of worker classification in California, understanding these tests and their applicability is vital.]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752352024-01-30T16:57:56Z2024-02-02T16:21:12ZCommissions are legal in California in most cases, but they are subject to some parameters:
Commissions are supposed to be a percentage of a product or service an employee sells. Commissions on loans are acceptable.
If an employer elects to use commission to pay all or part of an employee’s wages, they still must follow the state’s wage and overtime laws. In other words, commissions cannot be a way for a business to get around paying minimum wages.
An employer and employee should spell out their commission arrangement in a contract. The contract should state when an employee earns commissions. For example, the agreement may specify that a loan officer earns their commission after a loan gets finalized and the borrower makes a down payment. The terms of when commissions are earned must be fundamentally fair.
Once an employee earns their commission, a business owes it to them just like any other wages. If they do not pay according to the law, the employee may seek compensation over and above the wages the business owes them.
If a loan officer working in the greater San Diego area believes that their employer has underpaid their commissions, then they may have legal options available to them.
Loan officers should be aware of their other employee rights as well
As employees in this state, loan officers have a full range of rights provided to them under both California and federal law. They should remember this, especially in difficult or tense situations with their employers.
For example, the push to earn revenue can sometimes lead to financial businesses cutting legal and ethical corners when it comes to lending money.
Loan officers who see concerning behavior at their workplaces, whether from management or colleagues, have protection if they choose to go to the proper authorities with their concerns.]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752322024-01-23T16:34:19Z2024-01-23T16:34:19Zillegal activities or practices at your workplace, or become a whistleblower, you might find yourself a victim of workplace retaliation.
Why employers retaliate
There are various reasons why an employer may retaliate against an employee. Retaliation can happen before or after you report illegal activities.
An employer may retaliate to intimidate or frighten you into not reporting an illegal activity or to punish you after reporting something. Even something small, such as talking with a manager or human resources representative about the situation could trigger retaliation.
Workplace retaliation comes in many forms. Being fired or laid off is an obvious form of retaliation, but other types of retaliation are more subtle.
Some additional examples of workplace retaliation include:
Changed work hours
Demotion
Harassment
Low performance reviews
Pay reduction
California law allows whistleblowers to protect themselves and others from abusive, dangerous or illegal workplace situations. You have a right to report abuse, a hostile work environment, safety hazards, unsafe working conditions illegal or unethical practices.
You may hear that proving retaliation is difficult, and this is true. You must prove the incident that led you to become a whistleblower and the retaliation itself.
Write down and document everything
The strongest way to do this is through documentation. Document everything you can about what you discovered that caused your employer to retaliate. Save or store it in a safe place, preferably not on work equipment or anywhere else your employer may have access to.
Write down everything you can remember about any incidents that occurred involving retaliation. This includes dates, times, locations and any witnesses. Write down what your employer said or did and what you did in response.
Request that any future communications with you be in writing, whether through printed documents or email. If you are questioned as to why, say that you want to make sure you do not forget. The purpose is to create a paper trail.
Be careful with recording
You may be tempted to record conversations or incidents, but California is a two-party consent state. This means that you must have the other person’s permission to record them.
If you do not have their permission, any recordings cannot be used as evidence. You can request permission to record any conversations or meetings, but you should not record unless you get permission.
Employers can defend themselves against a claim of workplace retaliation by providing a legitimate, non-discriminatory reason for the action.
For example, if you were terminated or an adverse action was taken against you because of excessive tardiness, your employer could use your attendance records as evidence against you. If the records do show absences in violation of your employer’s attendance policy, your claim of retaliation may fail.
Standing up for your rights
Workplace retaliation can affect not only your current job but future employment opportunities. The effects of retaliation are severe and can cause mental health issues such as depression or post-traumatic stress disorder.
Employers who engage in retaliation should be held accountable for this behavior. Your actions can protect your rights and prevent the same situation from happening to someone else.]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752302024-01-19T16:47:24Z2024-01-19T16:47:24ZMain differences
In an employment relationship, the employee is under the employer’s control. The employer may provide the resources to complete the work and the employee must work according to the employer’s schedule. Employers also withhold taxes from the employee’s paycheck and must provide them with a W2 at the end of the year. An employer may also offer the employee health insurance benefits, paid time off, and a retirement plan.
If you are an independent contractor, it means that you are in control of your work and decide when and where to complete it. You must pay your own taxes and will receive a 1099 form each year, you do not receive employee benefits and are not covered by most labor laws. Often, you are also allowed to work for several clients at the same time and are hired for one or more specific projects.
Misclassification
It’s important for both parties to understand the extent of the working relationship.
Your employer could face several penalties for misclassifying you as an independent contractor instead of an employee. These include tax consequences for failing to withhold and legal consequences if you pursue a claim against them for unpaid benefits, back wages, and overtime pay.
They may also be subject to audits by state and federal employment authorities and could face fines.]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752282024-01-05T11:34:12Z2024-01-05T11:34:12Zsome employers try to deduct tips or wages from employees to cover the cost of skipped checks (tables that leave without paying their bills). Is this legal?
California tip laws
According to California Labor Code 351, tips are money that patrons leave for an employee over the amount due. Employers may not take any portion of the tip left for an employee by a patron. They cannot offset the employee’s wages based on that gratuity either, or mandate the sharing of tips with owners, managers, supervisors, etc.
Employer consequences
An employer who violates these laws can face a range of penalties, including criminal charges. According to California Labor Code 354, the charge is a misdemeanor that is punishable by either a $1,000 fine or jail up to 60 days, or both.
Employees have civil remedies too through both lawsuits and filing a complaint with the California Labor Commissioner's Office. Both can order employers to pay back the tips to employees, in addition to other potential sanctions and monetary penalties.
California wage and hour laws
In addition to tip laws, California wage and hour laws protect employees from unlawful wage deductions. An employer may not deduct amounts from an employee’s wages due to a dishonored check or a table that walked without paying. The only exception possible is if the employer can prove that the dishonored or skipped check was caused by a dishonest or willful act, or by the employee’s gross negligence.
For example, if an employee intentionally lets a table leave, then the employer may have grounds to deduct tips or wages from that employee. However, if an employee was unaware that a table left without paying, then the employer cannot deduct tips or wages from that employee.
Can my boss take my tips or wages to pay for skipped checks?
The answer is, generally, no. Tips are the property of the employee who earns them, and employers are not allowed to take any portion of them for themselves or offset them against regular wages. The only exception is based on the employee’s dishonest or willful act, or gross negligence.
]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752262023-12-28T18:37:05Z2023-12-21T18:36:13ZWork expense examples
Most employers have a reimbursement policy that outlines exactly which expenses can be reimbursed. Usually, these include travel expenses like airfare, hotel stays, transportation costs, like gasoline, tolls and mileage, as well as meals and business-related entertainment.
Some employers also offer reimbursement for training and professional development, like continuing education credits, conferences and similar events. The company may also cover office supplies, internet and phone expenses and other costs when working from home, in addition to reimbursement for purchasing work-related software or technology.
To encourage a healthy lifestyle, employees may also qualify for reimbursement for health-related expenses, like a wellness program, fitness classes or a gym membership.
It’s important to keep all receipts so you can demonstrate that these items you paid for qualify for reimbursement.
Addressing non-payment
If you request a reimbursement and your employer does not pay, it’s important to check the policy to make sure the item can be reimbursed. Depending on your relationship with your manager or the human resources department, you may choose to discuss it with them and present your receipts. It may be useful to document the discussion as well.
If the discussion is not successful, you may have an option to file a wage claim with the labor department and seek legal action against your employer.]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752242023-12-18T10:42:54Z2023-12-07T10:38:41Zscope of this protection and has placed additional burdens on employers to inform current and former employees of the illegality of these provisions.
Non-compete agreement laws before the fall of 2023
Prior to the legislature’s actions in late 2023, California courts had consistently ruled that non-compete agreements were void unless the employee in question was covered by one or more of the exemptions in the statute.
Many employers failed to abide by the statutory prohibition on such terms, and many employees yielded to employer demands that they sign a non-compete clause before being hired or promoted or receiving a bonus.
On October 13, 2023, Gov. Gavin Newsome signed A.B. 1076, which made the judicial ban on non-compete agreements part of the state’s Business & Professions Code.
The extended reach of A.B. 1076
In addition to codifying the judicial ban on non-compete agreements, A.B. 1076 applied the ban to all non-compete agreements regardless of the state where the contract clause was originally signed.
One particular section of the bill may have more far-reaching consequences than the codification of the judge-made rule. This section requires all employers to inform all current and former employees of the invalidity of non-compete agreements unless the employee falls within one of the exempt categories of workers.
Such notices must be delivered to the employee no later than Feb. 14, 2024. The law as amended is complex, and it is advisable to take action after consulting an experienced employment attorney.
]]>On Behalf of JCL Law Firm, APChttps://www.jcl-lawfirm.com/?p=752202023-12-04T17:07:04Z2023-11-21T17:05:41ZDiscussion with your employer
First, it’s important to keep detailed records of your work hours, both regular hours and overtime work. You may be able to access this information online, through your printed pay statements or through your company’s human resources department.
You may also want to review your company’s policies and procedures to understand the rules and requirements for overtime.
If you feel comfortable discussing the issue directly with your employer, they may help determine whether it was an unintentional payroll error or a miscommunication and then fix the issue.
It is against the law for your employer to retaliate against you for claiming the right to overtime pay.
Filing a complaint
If the communication with your employer is not successful, you may file a wage complaint with the Division of Labor Standards Enforcement (DLSE).
DLSE will investigate the claim and determine whether your employer owes you the overtime pay. They may contact your employer for more information.
There may be time limits to submit the claim.]]>