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Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

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  • What are my rights/actions to take after not being booked as an ind. cont. based on comments and allegations from other IC's?

    I am working as an independent contractor for a company and have not been booked for anything, even though I am just as qualified as others working for the company. The change happened I was put in the hospital following the negligent and wreckles...

    Marilynn Mika’s Answer

    I agree with Mr. Pedersen that your post indicates you may be an employee and not an independent contractor. Whether one is an employee or independent contractor is established by law, not by the decision of an employer or by agreement between and employer and employee.

    The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.

    Many employers misclassify workers as independent contractors and pay them as "1099 employees" when in fact they should be classified and paid as regular W-2 employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If a worker is wrongly classified as an independent contractor instead of an employee, that worker will not be eligible for many benefits of employment or eligibility will be reduced. Areas affected include the right to:

    – be paid for all hours worked or controlled by the employer;
    – the legal minimum wage;
    – overtime pay;
    – rest and meal breaks;
    – workers' compensation insurance;
    – Social Security contributions;
    – unemployment benefits;
    – state disability benefits;
    – employer benefits such as vacation, sick leave, pension, medical insurance, etc.

    Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).

    There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.

    FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:

    Behavioral Control – This area considers instructions and training. If the employer has the right to direct or control the work, even if it does not exercise that right, the worker is an employee. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who the worker can hire or not hire to help get the work done; what supplies and services to buy, and/or where to buy them. If the employer trains the worker in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates the worker is an employee and not an independent contractor. Therefore, if the employer gives the worker detailed or extensive instructions on how to get the job done, the worker is probably an employee and not an independent contractor.

    Financial Control – This area considers who has the right to direct and control the business, not just the work. The more of a financial or promotional investment the worker has made in the work, the more likely the worker is an independent contractor. However, there is no requirement for an investment in order to meet the definition of independent contractor. If the worker incurs expenses in performing the work but is not completely reimbursed, the worker is more likely to be an independent contractor rather than an employee, especially if these expenses are high. If the worker has the chance to make a profit or loss on the work, the worker is probably in business for himself or herself and therefore an independent contractor.

    Relationship of the Parties – If the worker does not receive benefits such as medical coverage, vacation, or pension, the worker may be an employee or an independent contractor. However, if the worker receives benefits, the worker is probably an employee.

    (continued in Comment below)

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  • What can an ex-landlord/employer legally say when asked for reference?

    My husband & I were hired as resident propty mgrs in CA. Our emplymt required us to live on-site. The owner/employer required us to sign a lease for our aprtmt but did not require an emplymt contract. He told us we were independent contractors(10...

    Marilynn Mika’s Answer

    Even if your settlement agreement with the employer does not require the employer to provide only neutral references, or if it is silent on its obligations with respect to references, there may be something you can do about the employer's bad-mouthing you. Some possibilities include defamation, false light, interference with contract, attacking the settlement agreement, and several other things. All of this could depend on the terms of the settlement agreement and may or may not be relevant, depending on the specific facts of your case. You will certainly have to retain and pay an attorney to handle this for you.

    To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

    I hope there is a good resolution to this situation.

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  • Can a video game employee protest unfair working conditions within a virtual realm, from a private account?

    Would this fall under protected activities under the national labor act? Would the national labor act still be relevant if this company's servers are physically located in Europe? They have servers in North America AND Europe, but are a wholly-own...

    Marilynn Mika’s Answer

    First, do not write anything that could identify you or the employer here on this public web site. Anyone, including the employer, can read what you write here.

    The location of the company's servers should not be a factor. Under the National Labor Relations Act (NLRA), What matters is if you are working for an employer in the United States that is engaged in interstate commerce, which it sounds like you are, Are your paychecks from an employer in the United States? If so, the NLRA probably applies.

    Regarding protests about working conditions: The NLRA applies to non-union workers, too. You should be able to make comments about your wages, hours, and terms of employment as long as you do it on behalf of yourself AND the other employees. This is because employees have a right to concerted activity (acting together, acting "in concert") for things related to wages, hours and terms of employment.

    Do not use any of the employer's property to make your complaints. Even using our own e-mail or social media account, if you are using the employer's computers, server, or other equipment, or are making your complaints during work time, then it could be considered theft (of resources, or of time).

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  • Workers comp or labor law?

    I fell at work after I submitted my 2 weeks notice. I dropped off a drs note and the workers comp forms also filled out ab incident report since the management on duty when I fell failed to. While i was giving them the forms the manager saif they ...

    Marilynn Mika’s Answer

    It sounds like your employer may have taken you off the schedule because of your injury. If so, that could be illegal retaliation, in violation of Labor Code section 132a. However, if your injury would keep you off work for more than those two weeks – even though your employer didn't know this at the time – it may make it harder to pursue a 132a claim. Your best option is to contact SEVERAL workers' compensation attorneys and, before you hire any of them, make sure the workers' compensation attorney will represent you in a 132a claim in addition to the injury workers' compensation case. Not all workers' compensation attorneys will handle 132a cases, and it is highly unlikely you will find an attorney to represent you just for the 132a case (without also representing you for the injury case).

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  • I ran a red light in my company vehicle, but got fired because i was on probation. Can i still get unemployment benefits?

    there is a camera in the vehicle, and company seen it on camera, but i was nt stopped by a police, or anything like that, no ticket or nothing.

    Marilynn Mika’s Answer

    Based on these requirements, your eligibility depends on whether EDD determines running a red light is "misconduct." Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if ALL of the following is true: he or she is (1) unemployed due to no fault of his or her own; (2) physically able to work; (3) actively seeking work; (4) ready to accept work immediately; (5) has received enough wages during the base period to establish a claim; and (6) meets eligibility requirements each week benefits are claimed. An overview of these requirements can be found on the web site of the California Employment Development Department (EDD) http://www.edd.ca.gov/Unemployment/Eligibility.htm.

    There is a legal presumption (similar to an assumption) that a claimant is entitled to benefits unless the claimant was either fired FOR MISCONDUCT or quit without cause. "Misconduct" generally means taking intentional acts against the interest of the employer. Some examples are tardiness or absences without reason, insubordination, showing up drunk, initiating a fight, etc. "Unsatisfactory performance" is NOT misconduct unless the claimant intentionally did a bad job. If the claimant did his or her best but the employer wasn’t satisfied, the claimant is still eligible for benefits. The burden is on the employer to show that the claimant intentionally did a bad job. For more information on misconduct, see http://www.edd.ca.gov/uibdg/Misconduct_-_Table_of_Contents.htm.

    If your claim is denied, the Notice of Determination stating your claim was denied for misconduct includes information about how to appeal. You MUST file your appeal by deadline stated in that letter. Do not miss the deadline. In the appeal, make a brief statement saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. For example: "I was fired because I ran a red light, but it was a mistake. I didn't do it on purpose."

    In a few weeks, you will receive notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible. You should also know the law the administrative law judge will consider. You can get a lot of helpful information on the EDD website.

    Home page
    http://www.edd.ca.gov/Unemployment/
    Eligibility requirements
    http://www.edd.ca.gov/unemployment/Eligibility.htm
    Summaries of the law (Benefit Determination Guide)
    http://www.edd.ca.gov/UIBDG/
    Appeals
    http://www.edd.ca.gov/Unemployment/FAQ_-_Appeals.htm
    Precedent Decisions (law the administrative law judges rely on)
    http://www.cuiab.ca.gov/precedent_decisions.shtm
    Frequently asked questions
    http://www.edd.ca.gov/unemployment/FAQs.htm
    Filing a claim for unemployment benefits
    http://www.edd.ca.gov/unemployment/Filing_a_Claim.htm

    You can be represented by anyone at the hearing. If your appeal will be difficult or you are uncomfortable speaking, you may wish to retain an attorney to help you prepare or to represent you. For training, expect the attorney to need approximately three hours. For hearing representation, expect the attorney to need three to seven hours to prepare, depending on the complexity of the case, witnesses, documents and other evidence, and allow two hours for the hearing itself. Unemployment hearings usually last one hour or less, but you must arrive early to look at the file and there is a possibility you will have to wait for the previous case to finish.

    Generally, as of 2015, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies

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  • Can my employer say negative thing while I'm on maternity leave?

    I have been on maternity leave since May to do complications. While being on leave,I have been informed that our store has been under investigations for employees not following the company policies. When these employees and other members of manage...

    Marilynn Mika’s Answer

    It sounds like you are asking about defamation. Defamation can be libel (written) or slander (oral). Generally, defamation is a false and unprivileged statement which exposes a person to hatred, contempt, ridicule or injury, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in his or her occupation. Some kinds of defamation require the plaintiff to prove actual harm. Other kinds of defamation constitute defamation per se, which means harm is assumed due to the nature of the defamation. You may wish to speak with attorneys who practice in area. Often, this kind of case is handled by personal injury attorneys or civil litigation attorneys.

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  • Can I recover incorrect PTO time pay after employment ends?

    I recently left a company and I did not receive what I thought was the correct amount for PTO payout. I had suffered a traumatic event and was hospitalized 2x within a 2 month period. In between hospital stays and after, I worked full 8+ hour days...

    Marilynn Mika’s Answer

    • Selected as best answer

    Your situation is atypical and it is unlikely anyone here on Avvo will be able to give you a meaningful answer without knowing far more. For example: Was the time card one that you submitted to your employer to verify the number of hours you worked, or one that the employer used to bill the customer? If it was used to bill the customer, did you have the responsibility to adjust the time the customer was billed? What is the employer's policy on the relationship between an employee's hours worked, and the time for which a customer is billed? Did your employer know you worked more than four hours on the days in question? How did the employer know?

    I am not suggesting you answer those questions here on this public web site. I am suggesting you may need to speak with one or more attorneys to get a better understanding of your rights.

    To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

    I hope there is a good resolution to this situation.

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  • How should I respond to my unemployment dilemma work for my ex employer for over two years. Back in the end of Jan I asked for m

    My tax records so I could file, When I asked him for it he fired me. So I tried to collect unemployment and got zero back. Guess he wasn't paying taxes himself. He also didn't pay my last two weeks of wages either. I happen to have copies of every...

    Marilynn Mika’s Answer

    Please see my response to your duplicate post here: http://www.avvo.com/legal-answers/u-was-let-go-of-my-job-in-feb-2015-filed-for-unemp-2259098.html#answer_5429189

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  • U was let go of my job in Feb 2015 filed for unemployment and I guess my boss was not paying taxes. I had photocopys of my

    Handwritten paychecks for two years. So I reported him with the labor board and anyone else that would listen.finally an auditor called me stateing that they determined that I can get unemployment and to expect a check in ten days. Edd sent me for...

    Marilynn Mika’s Answer

    The Notice of Determination stating your claim was denied includes information about the appeal. You MUST file your appeal within 20 days of the date stated in that letter. Do not miss the deadline. In the appeal, make a brief statement saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. For example: "Could not complete temp assignment due to physical limits. Have asked for more work without receiving response."

    In a few weeks, you will receive notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible. You should also know the law the administrative law judge will consider. You can get a lot of helpful information on the EDD website.

    Home page
    http://www.edd.ca.gov/Unemployment/
    Eligibility requirements
    http://www.edd.ca.gov/unemployment/Eligibility.htm
    Summaries of the law (Benefit Determination Guide)
    http://www.edd.ca.gov/UIBDG/
    Appeals
    http://www.edd.ca.gov/Unemployment/FAQ_-_Appeals.htm
    Precedent Decisions (law the administrative law judges rely on)
    http://www.cuiab.ca.gov/precedent_decisions.shtm
    Frequently asked questions
    http://www.edd.ca.gov/unemployment/FAQs.htm
    Filing a claim for unemployment benefits
    http://www.edd.ca.gov/unemployment/Filing_a_Claim.htm

    You can be represented by anyone at the hearing. If your appeal will be difficult or you are uncomfortable speaking, you may wish to retain an attorney to help you prepare or to represent you. For training, expect the attorney to need approximately three hours. For hearing representation, expect the attorney to need three to seven hours to prepare, depending on the complexity of the case, witnesses, documents and other evidence, and allow two hours for the hearing itself. Unemployment hearings usually last one hour or less, but you must arrive early to look at the file and there is a possibility you will have to wait for the previous case to finish.

    Generally, as of 2015, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies based on experience, location, attorney availability, attorney interest in the case, complexity of the matter, and more. To find a plaintiffs employment attorney in California, visit the California Employment Lawyers Association (CELA) at www.cela.org. CELA is the largest and most influential bar association in the state for attorneys representing working people. You can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

    Marilynn Mika Spencer
    San Diego, CA

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  • Can I sue for misleading during the hiring process?

    Hi after the director gave me the green light and hand shake and completed the application for employment plus my physical everything got stop. No background check was made. I called several times and they were not responding to me ever, so later...

    Marilynn Mika’s Answer

    Unfortunately, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. No employer is required to finish the hiring process, or in most cases, even to put an employee to work if the hiring process is complete.

    There is a slight chance you may have a case of promissory estoppel, which is recognized by most states. This doctrine allows a court to enforce a promise in the interest of justice if all of the following elements are present:

    -- one party makes a gratuitous promise to another (that is, a promise it was not required to make, such as a job offer); AND
    -- a second party changes its position, circumstances or actions in reliance on that promise (moves, quits another job, etc.); AND
    -- that reliance was reasonable; AND
    -- the second party was harmed due to its changed position, circumstances or actions.

    In a promissory estoppel situation, a court could determine the (potential) employer was at fault for causing you to change your life in the expectation of a job.

    Terms in an offer letter may make a difference. For example, the letter may contain "waffle words," such as "The employer can withdraw this offer at any time" or "This offer does not guarantee employment," or "This offer is contingent on passing a qualifying exam" or other similar language.

    The interactions between the parties are also significant. It is helpful if there are written communications, such as e-mail messages, that show the employer knew you were relying on the promise. For example, if you told the employer that you were resigning your other job, relocating, or making other changes in your life because of your pending employment with the employer, these communications would support a claim for promissory estoppel.

    The devil is in the details, so you must present your facts to an attorney in your state who can give you the dedicated attention your situation deserves.

    To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

    I hope there is a good resolution to this situation.

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