Steven Paul Cohn’s Answers

Steven Paul Cohn

San Jose Employment / Labor Attorney.

Contributor Level 7
  1. I was part of a layoff. 6 months later I was asked to return as a contractor. Was I entitled to higher wages in lieu of benes?

    Answered about 2 years ago.

    1. Steven Paul Cohn
    2. Michael Robert Kirschbaum
    3. Frank Wei-Hong Chen
    3 lawyer answers

    The distinction between an employee and a contractor is an area under dynamic reevaluation before the courts, ongoing. While it is generally true that a contractor, who does not receive benefits nor other employment stock perks, etc., may typically negotiate a higher compensation than an employee, this is on a case-by-case basis and higher pay is not mandatory on the part of a company. A company may find itself hard pressed, however, to justify treating a worker as a contractor and not paying...

    7 lawyers agreed with this answer

  2. Are employees entitled to have vacation, or employers have the discretion to provide or not provide vacation to them?

    Answered about 2 years ago.

    1. Michael Robert Kirschbaum
    2. Frank Wei-Hong Chen
    3. Mark Harrison Wagner
    4. Marilynn Mika Spencer
    5. Gian M. Fanelli
    6. ···
    6 lawyer answers

    There is no law that requires employers to provide paid vacation in California nor at the federal level. Vacation pay, when provided for by the employer, may be either earned or provided in an annual grant. If "earned", then it cannot be lost and must be paid out if unused at the end of an employment. A grant of vacation time may be lost if not used. This is subject to the policies of the company and the compensation package with its employees. Changing the accrual time for earning...

    7 lawyers agreed with this answer

  3. Can i sue the employer at the same time for both independent contractor and employee?

    Answered about 2 years ago.

    1. Marilynn Mika Spencer
    2. Frank Wei-Hong Chen
    3. Daniel Paul Stevens
    4. Steven Paul Cohn
    5. John Francis Mccarthy
    5 lawyer answers

    I agree with my peers that you may bring alternate theories in the same lawsuit, however the California Labor Commission, which offers a prompt settlement conference at about 6 weeks of filing, only has jurisdiction to hear claims brought by an employee. Generally, an employment is created where the employer exercises substantial control over the "manner and means" of the performance by the worker. More facts of your specific case are needed in order to competently advise you. However, this...

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  4. Can your employer give you only one at week day to work?

    Answered about 2 years ago.

    1. Christine Marie Adams
    2. Michael Robert Kirschbaum
    3. Steven Paul Cohn
    3 lawyer answers

    A California employer may alter the terms and conditions of employment at will, barring a written agreement stating otherwise. There may be other factors not here stated, however, that mitigate against the employer's ability to arbitrarily reduce your hours. One factor may be if you were hired away from another company on the representation that you would have full-time employment, such that the employer has now evidenced a "misrepresentation" to induce you to leave your last employment. (This...

    5 lawyers agreed with this answer

  5. Ive worked for my employer for 2 decades, a position came up I was interested was not posted & did not even ask if Im interested

    Answered about 2 years ago.

    1. Marilynn Mika Spencer
    2. Nathan Kased
    3. Steven Paul Cohn
    3 lawyer answers

    It is generally the law that the employer reserves the right to alter the "terms and conditions" of employment. This means that an employer does not have to select you for promotion nor transfer, but cannot deny you opportunities in violation of civil rights laws, such as based on your race, age, gender, medical condition, or your membership in any other legally protected class. Here, you report that the employer failed to post the available position, which might violate its posting and...

    4 lawyers agreed with this answer

  6. Has my employer engaged in fraud?

    Answered about 2 years ago.

    1. Nathan Kased
    2. Steven Paul Cohn
    3. Kevin Samuel Sullivan
    4. Curtis Lamar Harrington Jr
    4 lawyer answers

    Under California's new Payroll Theft Act, there are severe penalties for the type of conduct you have described. You may also be able to recover against the ManagingOwners of even a respondent Corporation under the Federal Fair Labor Standards Act, and these claims are typically not dischageable in bankruptcy. More specifics of your case would assist the panel attorneys in focusing our responses to your inquiry, while you can immediately start the recovery process with a claim before the Labor...

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  7. Can an employer in CA change employee time cards to prevent meal time violation penalty?

    Answered about 2 years ago.

    1. Michael Robert Kirschbaum
    2. Emanuel Soleiman Shirazi
    3. Steven Paul Cohn
    3 lawyer answers

    Some additional facts may be helpful here. Assuming that you are an hourly employee and are not in a mobile worforce,( i.e., delivering cars to dealers after detailing or the like, then I agree with my peers and the additional work is compensable as a missed meal period, for which 1 hour penalty is recoverable. If you therefore worked over 8 hours, then you also qualify for overtime at one and a half times the hourly wage. If you are in a mobile position, the employer may obtain in advance...

    3 lawyers agreed with this answer

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  8. What are the causes of action for an employer who did not pay and did not have any work agreement?

    Answered about 2 years ago.

    1. Daniel Paul Stevens
    2. Nathan Kased
    3. Marilynn Mika Spencer
    4. Steven Paul Cohn
    5. John Francis Mccarthy
    5 lawyer answers

    Causes of action include breach of oral contract, quantum meruit (for the reasonable value of the benefit conferred), and may even include tort remedies such as fraud/deceit and negligent misrepresentation, for which general damages and punitive damages may be awarded,( for annoyance and to punish, respectively.) If you are not an independent business and were generally under the debtor's direction as to the "manner and means" of your performance, you may indeed qualify as an employee and have...

    3 lawyers agreed with this answer

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  9. Can my employer clock me out at the end of my shift without telling me first?

    Answered about 2 years ago.

    1. Steven Mark Sweat
    2. Steven Paul Cohn
    3. Marilynn Mika Spencer
    3 lawyer answers

    While California law does not specify who may or may not clock you aot, nor that an employer keep a timeclock at all, this represents bad practice. The law does require an employer to accurately compensate for all hours worked for hourly employees and I presume that the manager is more concerned with avoiding his own discipline for not avoiding overtime than in securing an accurate payroll record. I agree with my peers that you are entitled to actual work hours being paid for and, should you...

    3 lawyers agreed with this answer

  10. Do Employee qualified for unemployment benefits if removed from job and pay reduced but not fire?

    Answered about 2 years ago.

    1. Frank Wei-Hong Chen
    2. Steven Paul Cohn
    2 lawyer answers

    Yes, you would elgible for unemployment benefits for any significant reduction in your last assigned schedule in most states, however, you may not be elgible ongoing for a "voluntary quit".The controlling issue here is whether a reasonable person placed in like circumstances would similarly have felt compelled to resign. Recognized justifications include a serious risk to emotional health, (confirmed by a letter from a healthcare provider), and a resignation in order to avoid an imminent firing...

    3 lawyers agreed with this answer