Comments for California Employment Law

Comment on Look Out Brinker and Brinkley, Here Comes Sharon by Rob

Rob — Wed, 25 Jan 2012 17:30:42 +0000

In my experience there are always two sides to the story. In this particular instance, the issue was limited to the employee’s entitlement to unemployment insurance, which usually is a much narrower issue than what would be involved in a typical wrongful termination suit. I suspect you are correct that there was more going on than is revealed by the news article. I don’t know what the statutes of limitation are in her venue, but at this point I would not expect further litigation. Then again, who knows?

Comment on Look Out Brinker and Brinkley, Here Comes Sharon by Joe Coute

Joe Coute — Wed, 25 Jan 2012 17:21:00 +0000

I’d be willing to bet there were other reasons behind her dismissal. Most reasonable employers, even those perched on the employment at will doctrine, would take steps to warn an employee against behavior that could lead to their termination. A ten year employee with an otherwise “clean record” would surely be more valuable to an employer than to warrant dismissal for her exhibiting her dedication to the company by this single event….don’t you think!? I’d be surprised if she doesn’t pursue legal alternatives beyond UI.

Comment on Independent Contractor versus Employee Crackdown by Rob

Rob — Tue, 20 Dec 2011 16:35:26 +0000

I wouldn’t say it is impossible. It all depends on the circumstances. There have actually been several court decisions regarding messenger and/or delivery package companies that have come to opposite conclusions. The more control asserted by the primary company the more likely it is the workers should be classified as employees. For example, if the primary company requires the delivery people to wear specific uniforms, use specific equipment, adhere to specific schedules and drive company trucks, then the workers are likely employees. If, on the other hand, the primary company leaves it up to the delivery people to determine routes, equipment, clothing, etc., and the delivery people work for several different companies, then there is a chance the workers could be considered independent contractors. There’s nothing wrong with FedEx, for example, contracting with DHL to delivery packages in certain areas. The independent contractor/employee analysis has a lot of gray areas and is made even more complex by the fact that different agencies use different tests which could yield different results. Add on top of that a new California law that allows the Labor Commissioner to impose up to $25,000.00 in additional penalties for willfully misclassifying employees as independent contractors and you can see why this is an area of significant concern.

Comment on Independent Contractor versus Employee Crackdown by Mark Damron

Mark Damron — Sun, 18 Dec 2011 15:03:13 +0000

So with what has been explained here, it seems impossible for lets say a package delivery business to use independant contractors? If the business is only in the business of package delivery and that business also has employee drivers doing the same work, then the business could not be classifying the IC’s properly. To add, most package delivery company’s do not hire out on a daily basis. Some IC’s have relationships that go on for years with the IC doing the same job delivering the same route and working out of the business’s faciltiy and this goes on for years. Another question here is what about tools that the business requires the IC to use?? Most business use scanners to track packages but is the business allowed to charge the IC for the use of that scanner? What about the issue of tracking and monitoring the IC by way of GPS that is installed in the scannner in addition to only paying the the IC by way of the scanner?? The scanner is the the IC’s invoice to the business and the IC is not permitted to turn in a separate invoice. It seems almost impossible for any package delivery company to utilize IC’s without the threat of misclassification.

Comment on Independent Contractor versus Employee Crackdown by Rob

Rob — Wed, 07 Dec 2011 17:27:21 +0000

Renting a booth, in and of itself, does not necessarily mean the worker is an independent contractor. For example, if the booth renter has his/her own business, handles his/her own marketing, handles his/her own finances and record-keeping, and is in a separate business from the entity leasing the space, then it is more likely the person is an independent contractor. I’ve seen other situations, particular in hair salons, where the entity leasing the space requires the “renters” to wear a common uniform, schedule appointments through a common front desk, collects the money for the services and takes a percentage of the fee before paying it out to the renter. While the renter in the second scenario is free to cut hair however he/she would like, the entity renting the space is still exerting a significant amount of control, and there is a greater risk the “renter” is really an employee.

Keep in mind that no single factor is necessarily determinative regarding the status of the worker. That’s part of what makes the analysis so difficult (that and the fact that each agency has it’s own definitional test).

Comment on Independent Contractor versus Employee Crackdown by Jason Mackey

Jason Mackey — Wed, 07 Dec 2011 02:23:53 +0000

What about an instance where someone is a “booth renter” in a building. The “booth renter” is not under the control of the principal/employer, their policies or required to endorse/sell their products and only rents the space to perform their business.

The circumstances dictate that the “booth renter” is providing a service independent from the control of the principal/employer. The “booth renter” controls their own schedule, maintains and urchases their own “tools” and they provide the same service(s) the principal/ employer is in business for. Does that change the definition considerably?

I ask because this has recently been brought to my attention at the place of business I work.

What is the classification for the “employee”/ “booth renter”/”independent contractor”?

Comment on Assembly Passes Domestic Worker Bill of Rights – AB 889 by Medicare Advantage 2012

Medicare Advantage 2012 — Tue, 11 Oct 2011 18:32:33 +0000

This bill will make hiring a babysitter or a home health care worker more difficult for the already financially burdened families, Or the family would probably opt for a less experienced worker.

I hope this bill can be crafted more realistically.

Comment on New Laws Regarding California Employers and Employees by Rob

Rob — Tue, 27 Sep 2011 16:40:18 +0000

I just received word that Governor Brown vetoed AB559. This bill would have reversed the California Supreme Court’s decision in Chavez v. City of Los Angeles, 47 Cal.4th 970, which affirmed courts the authority to limit attorneys’ fees awards when the case could have been brought in limited jurisdiction as opposed to unlimited jurisdiction. This means that the courts retain discretion in deciding what is or is not considered “reasonable” when awarding attorneys’ fees.

Comment on Follow Up on Current Version of AB 889 – Domestic Workers Bill of Rights by New Laws Regarding California Employers and Employees « California Employment Law

Wed, 14 Sep 2011 18:50:15 +0000

[...] Of course we can’t forget about AB 889 regarding domestic workers, which I’ve discussed before. [...]

Comment on Assembly Passes Domestic Worker Bill of Rights – AB 889 by Rob

Rob — Tue, 06 Sep 2011 15:27:00 +0000

Sandy, just for clarification purposes, the current version of the bill does not require employers to provide health care insurance. Having said that, your point is well taken and which is why I am trying to get people to read the bill themselves and make up their own mind instead of relying on the name of the bill or the opinions of those who support or oppose the bill. Once again, you can review the latest version of the bill here.

Comment on Assembly Passes Domestic Worker Bill of Rights – AB 889 by Sandy

Sandy — Mon, 05 Sep 2011 02:34:05 +0000

AB 889 specifically includes minors in its categorization of workers who would be required to be covered by health care insurance, be given lunch breaks while working, and be covered by workers’ compensation insurance. Seriously, how many teenagers will be hired to cut their neighbors’ grass or pet-sit or house-sit for their neighbors if this bill passes? This is an extremely poorly-crafted bill which will increase unemployment among the supposed beneficiaries.

Like most bills, the name is the antonym of the true effect. For example, the “Patriot Act” would have our Founding Fathers rolling over in their graves. The “Clean Air Act” merely established ways for powerful corporations to exempt themselves from liability for their pollution. Any time I read a bill, I read the title and bear that in mind as I read the prose. I look for ways in which the opposite of the purported effect can be expedited by the bill’s provisions. I am seldom left without numerous examples. I wish “Bill-debunking 101″ was a required course in government schools.

Comment on ADAAA Recap by Rob

Rob — Fri, 02 Sep 2011 19:03:38 +0000

Bush was president when he signed the bill on September 25, 2008. The post should have referred to the statute as the ADA Amendments Act of 2008 – not 2009. The facts were right, but my fat fingers were wrong when I typed it. I’ve updated the post with the correct reference. Thanks for bringing it to my attention.

Comment on ADAAA Recap by Tiffany

Tiffany — Fri, 02 Sep 2011 18:48:11 +0000

…wasn’t aware that Bush was the President in 2009…need to fact check dates.

Comment on Assembly Passes Domestic Worker Bill of Rights – AB 889 by Lisa Strunk

Lisa Strunk — Fri, 02 Sep 2011 00:49:49 +0000

This is why I think liberalism can be a sign of a mental disorder. Seriously, this out of control legislature will NEVER be happy with the citizens acting in regards for themselves without having “big brother” looking over their shoulders. I call Shenanigans!

Comment on Assembly Passes Domestic Worker Bill of Rights – AB 889 by imed

imed — Wed, 31 Aug 2011 16:54:21 +0000

wackofornia is without doubt the most screwed up state ever. can anyone say earthquake?