Douglas M Larsen's Answers

Can a freelance employee paid on a daily rate basis qualify for an Administrative Exemption under CA Law and the FLSA?

An employee is exempt if (s)he passes the salary test and the duties test. Your question focuses on teh salary test. Salary means that you are paid a set amount each workweek regardless of the quality or quantity of work performed. I don't think you can pass the duties test because it appears your compensation depends on the amount of time you work, or in other words, the quantity of work performed. The good thing is that you are eligible for overtime.

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Can my supervisor change my time card without my knowledge and a reason of why it is being changed?

The time card should accurately reflect the hours you worked. If the time card was modified and no longer accurately reflects the time you worked, you should notify the employer and ask for the additional pay for the work you performed. Making this complaint will do two things. First, it will hopefully give you a chance to get paid for hours worked. Second, it puts you in a good position vis-a-vis your employer. I would call you an "untouchable." This means that it will be difficult...

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Can my employer require me to carry a company issued cell phone?

Carry the phone and keep the job. It hasn't been a hinderance to you. I would call this a freebie. You can tell the company how dedicated you are to carry a cell phone in case of trouble. You are exempt from overtime. You are not entitled to compensation for on-call.

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How do I get a temp agency to pay me through my corporation?

You need to consider what is in it for the temp agency. What would compel it to consider you to be an independent contractor -- allowing payment to the corporation -- as opposed to an employee? If the temp agency misclassifies you, then it has substantial risks. For example, because it did not withhold personal income tax or payroll taxes, it could be liable for the payment of those, plus interest and penalties. If you want to be considered an independent contractor, you should...

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Facebook conversation got me fired.

Your question does not provide enough facts to make a detailed analysis of your situation. However, you should realize that there are many issues related to employers using social media to discipline (or fire) an employee. This is really the cutting-edge of the law. In fact, next week the NLRB is holding a hearing on whether a Connecticut employer violated the NRLA by firing an employee who complained about a boss on facebook. I am sure that case will turn on the specific facts of the case,...

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As a part time employee I have been working full time the majority time. What can I do legally to get full time to get benefits

Here's how it works: For benefits such as retirement and medical, you need to review the offical plan documents. Ask the HR department for a copy of the official plan documents. The terms of the documents govern. For example, even if an employer categorizes you as part-time, if you are working enough hours to be covered under the terms of the official plan documents, you are eligible. This is because these benefits are covered by ERISA, a federal law governing employee benefit plans....

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I was just laid off, can I still get pregnancy disability?

"Pregnancy disability" is a leave of absence. If you are not working, then you are not entitled to a leave of absence from work. You will probably qualify for unemployment benefits. In addition, you could qualify for state disability insurance. You might have facts to suggest you were laid off because you were pregnant. If this is a possibility, contact the Department of Fair Employment and Housing. Good luck, and congratulations on the baby!

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Is a promotion retroactive to a missed review?

The law does not require an employer to make a raise or promotion retroactive. Many employers do that, but it is not legally required. I suggest that you say to the employer: Thank you for the promotion. I am glad that my services are valuable to the company. I have a question for you however. Will the promotion, including raise, be retroactive? Employers are often impressed by an employee who, in a mature and professional way, raises an issue that should be considered. Good...

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Applied for an in-house position at work, interviewed but did not get the job - issue is regarding ProfileXT

With certain exceptions, the employer can hire whomever it wants for the Inspector position. The two exceptions are: (1) Some type of contract or collective bargaining agreement that requires hiring a particular person; and (2) the employer cannot discriminate based on a protected class. You have raised the issue of discrimination. You suggest that you were not given a new ProfileXT test because you were a woman. An employer cannot make a hiring decision based on the gender of the...

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Can a temporary agency have a client sign a paper stating that if they miss one day of work that they will lose a dollar of pay.

I hope I understand the question correctly. By "client" you mean worker or employee. Also, I wonder when the loss of the dollar of pay takes place. I will assume that it means your income will drop one dollar per hour. You have agreed to a certain wage with the temp agency. That is what should be paid to you for work performed. If you do something that the agency does not like (for example, not show up), the agency can say you now will earn a different wage -- one dollar less. If you...

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