I work for a courier company that hired me as an independent contract driver. This company services a pharmacy which is where i do the work. Under the contract i signed with courier company it specifies that i can hire a 3rd party to do the work, ...
As others have mentioned, much of what you describe would make you an employee under the law as opposed to an employer. Note that an employer cannot "make" someone an independent contractor or employee; that is a legal determination. Even if an employee and employer sign an agreement that says someone is an employee (or an independent contractor), it doesn't matter. This is completely a legal decision, not a personnel decision.
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)
Would I qualify for unemployment benefits if I was discharged for off duty misconduct? Former employer doesn't have proof of anything, they only heard from others. I never even did what they said I did. So should I apply for unemployment benefits?...
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.
The California Employment Development Department (EDD) administers California’s unemployment insurance program and evaluates claims for benefits. Often, EDD telephones the claimant and the employer and interviews both. EDD compares their statements and makes a decision based on information received. By the limited nature of the initial process, EDD sometimes makes errors. For this reason, there is an appeal process.
The Notice of Determination stating your claim was denied for misconduct includes information about the appeal. You MUST file your appeal within 30 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: I did not engage in misconduct toward my employer and was falsely accused.
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.
Summaries of the law (Benefit Determination Guide)
Precedent Decisions (law the administrative law judges rely on)
Frequently asked questions
Filing a claim for unemployment benefits
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.
(continued in Comment below)See question
I was fired on 7/22 due to a misconduct. A coworker was aggressively tailgating me for approx 5 miles after work. I was in my personal vehicle and not wearing my uniform. I gave him chances to go around me, but he wanted to harass me by tailgating...
California law requires employers to pay employees according to a pre-determined schedule. FOR EMPLOYEES WHOSE EMPLOYMENT IS ENDING, Labor Code sections 201, 202 and 203 require the following:
1. If the employer ends the employment relationship, the employer must pay everything owed to the employee at the time of termination, including all accumulated wages, overtime, vacation and PTO. (Labor Code section 201)
2. However, for seasonal employees working in curing, canning, or drying perishable fruit, fish or vegetables, the employer has 72 hours to make full payment.
3. If the employee ends the employment relationship without notice, the employer has 72 hours to pay the employees in full, including all accumulated wages, overtime, vacation and PTO. (Labor Code section 202). The final wage payment must be made at the place of termination.
If the employee quits without giving 72 hours notice AND does not request that final wages be mailed to a particular address, then these payment must be made at the office of the employer within the county where the work was performed.
If an employee previously authorized direct deposit, that authorization is immediately terminated when an employee quits or is discharged, and the employer must make the final wage payment as above UNLESS the employee voluntarily authorized the direct deposit AND the employer makes the payment on time, as described above.
If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit. (Labor Code section 203).
The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.See question
Could a superviser tell me 1 more and i will report you and remember. The last driver is no longer working with us anymore
It is hard to understand your question. If you worked directly for a sub-contractor and the general contractor is giving you orders you are required to follow, you may actually be working for both the sub-contractor and the general contractor. If you are being told you must wear a uniform, that is usually legal but if the uniform is not clothing you could wear outside of work (for example, if it has an employer insignia on it), then the employer is probably required to pay for the uniform and pay for its cleaning and maintenance. Yes, an employer can warn an employee that improper conduct is not acceptable and can tell the employee that a former employee is no longer employed because the former employee engaged in the same improper conduct.See question
My former employer hasn't paid me my final paycheck yet and they are tribal. So, does that mean I can't file a complaint with DLSE due to the whole sovereignty thing? Do I have to just keep twiddling my thumbs and do nothing or can I do something?...
In addition to Mr. Pedersen's accurate advice, t may ake a difference if you worked directly for a tribe or for a contractor of a tribe; if you worked on or off a reservation; if you worked for a commercial business owned by a tribe and open to non-tribal customers, or if you worked for an entity that only services tribe members; and other considerations. You can try Googling the name of the tribe and the word "compact" or the phrase "employment law" to see if the info is easily available. However, be prepared for difficulty finding what you are looking for.
Good luck!See question
I am a federal employee in CA, three years ago I was a victim of retaliatory action by my supervisor since I file a whistleblowing case. I went through long process by filing with MSPB and I got the final order on my side, the MSPB ordered a cor...
It is rare when I disagree with Mr. Pedersen, who is an extremely good attorney. Here, however, it does not sound like the MSPB has jurisdiction (power to act) over the retaliation you describe – though I do not understand everything you wrote. (For example, what do you mean by "I didn't file to have it."?)
The law in this situation is ridiculously complicated, . The MSPB has jurisdiction over claims that an agency retaliated against an employee because the employee filed a prior claim with the MSPB. But for the MSPB to have jurisdiction, the retaliation must be in the form of an adverse action that the MSPB would otherwise have jurisdiction over anyway. In other words, it must be a removal, suspension of more than 14 days, or a demotion.
The retaliation you describe does not appear to fit into any of the three categories MSPB can address. So, oddly enough, you have to go to a different agency, the Office of Special Counsel (OSC). https://osc.gov/ If OSC feels it is appropriate, then OSC can take the case to the MSPB. You will have to show the MSPB it can win the case, which will require proof that (1) you engaged in an activity protected by the statute; (2) you were subsequently treated adversely; (3) agency officials knew or had constructive knowledge that you engaged in protected activity; (4) there was a causal connection between the protected activity and the personnel action (that is, the protected activity caused the adverse action); and (5) the protected activity was a significant factor in the agency taking the action.
You may also file with the agency's EEO office within 45 days for the actions that you say are "very clear religious, nationality, and gender discrimination." The process for pursuing a discrimination complaint against the federal government is complicated and counter-intuitive. Because of its special characteristics, I have written a guide to help federal employees navigate the system. If you decide to pursue these claims, I suggest you first read my guide to the EEO complaint process for federal government employees and how to find the right attorney: http://www.thespencerlawfirm.com/pdf/tslf-federal-ee-discrim.pdf.
I wish you the very best in pursuing your claim.See question
My company is still undergoing major growth changes and the scheduling team has my lunch/meal break set to be at 10:30. My start time is 5AM. When asked about the issue, was told there was nothing they could do and to advise my team supervisor (wh...
The law regarding meal breaks and rest breaks in California is that most employees are entitled to one meal period of at least 30 minutes if they work 5 hours or more in one day (unless they are exempt from overtime). However, the employee and the employer can mutually agree to waive the meal period if the employee works no more than 6 hours in one day. Employees who work more than 6 hours in one day may not waive their meal breaks. The 30-minute meal break must be a full 30 minutes -- not 29 minutes -- and must be COMPLETELY free from duty. These 30 minutes must be “net.” They cannot include time spent walking to a time clock; the 30 minutes must be actual break time. The meal period should be given in the middle of the work day but the time is not precise and it subject to the work needs of the employer. The meal period is unpaid.
Employees are entitled to a second meal period of at least 30 minutes if they work more than 10 hours in one day. If the total hours worked is 12 hours or less, then the employee and employer can mutually agree to waive the second meal period but ONLY if the first meal period was not waived.
Employees are entitled to one 10-minute rest period for every 4-hour period of work performed, or major fraction of the hour. If an employee works 3-1/2 hours per day, there is no rest period requirement. The rest period must be 10 full minutes -- not 9 -- and must be completely free from duty in most cases. These 10 minutes must be “net.” The rest periods should be given in the middle of each 4-hour block of time but the time is not precise and it subject to the work needs of the employer. The rest periods are paid.
Example A: The employee works an 8 hour shift from 8:00 a.m. to 4:30 p.m. There should be one 10-minute rest break at approximately 10:00 a.m. The meal break should be from approximately 12:00 p.m. to 12:30 p.m. There should be a second 10-minute rest break at approximately 2:30 p.m.
Example B: The employee works a 5 hour shift from 12:00 p.m. to 5:00 p.m. There should be one 10-minute rest break at approximately 2:30 p.m.
Example C: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have agreed to waive the meal break. There should be one 10-minute rest break at approximately 3:00 p.m.
Example D: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have NOT agreed to waive the meal break. There should be one 30-minute meal break from approximately 2:45 p.m. to 3:15 p.m.
The employer must make these breaks available to employees and cannot interfere with the employees’ freedom to take the breaks or discourage employees from taking breaks. However, the employer does not have to make sure employees actually take the breaks.
If the employer has actually PREVENTED or INTERFERED WITH the employees' ability to take breaks, the employer may have to pay a penalty of one additional hour's pay for every day in which a meal break is not allowed, and one additional hour's pay for every day in which one or both rest breaks are not allowed.
There are some industries, such as the motion picture industry, that must follow different rules. You should always check with an attorney if you want to be certain about your rights.
The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. The DLSE’s page on meal periods is here: http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm.See question
I.send an email to the owner complaining the way he was talking to me After that i faced displinary action and retaliation.
How was the owner talking to you? Was he making comments about your race, national origin, language skills, age (40 yrs. and older), disability, or what? Was he telling you to work for improper pay or under unsafe conditions? It makes a difference. If the owner was just being a rude jerk, then there is no legal remedy. But if the employer said bad things about your membership in a protected group, such as those I mentioned above, or if the owner was giving you an illegal instruction and you protested, you may have a remedy.
It may help you to know that generally, 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. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.
There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.
Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.
I hope there is a good resolution to this situation.See question
Some time in Nov or Dec 2015, I was working and experienced what seemed like a charlie horse in my leg. I immediately went to the aid facility located on the property just to be told to stretch and drink plenty of fluids and take advil or tylenol....
I doubt your employer can put all the responsibility for this on you to deny you workers' compensation benefits. I'm not a workers' compensation attorney but do know the law is quite broadly applied. Particularly, if your employer provided the care facility for its employees' use, the employer may have institutional knowledge of your injury and cannot wriggle out of liability.
I suggest two things. Re-post your question in the California workers' compensation forum here on Avvo, and also get yourself a workers' compensation attorney. You can find a workers' compensation attorney on the California Applicant Attorneys Association (CAAA) web site: https://www.caaa.org. CAAA is the strongest California bar association for attorneys who represent injured workers. On the home page, click on the picture of the wheelchair above the words "Injured Workers." On the next page, click on the link to “Attorney Search” on the left side. Enter your city or any other information and click “Search.”
Good luck!See question
A person resigns from a union-labor contract job. The request for their work file is delayed release for two years. The information in the work file is false, derogatory/inflammatory. The union-labor contract the person was working under expired t...
I urge you to consult with one or more experienced labor and employment law attorneys with whom you can discuss the details of your situation because you need an assessment of the specific facts. The Avvo board is not set up to handle the kind of detailed analysis that is needed to offer helpful guidance. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whoever is involved in the dispute can read everything written here.
Your situation appears to involve several different laws.. First, California Labor Code section 1198.5. requires employers to provide employees with a copy of their personnel files/allow the employees to copy the file within 30 days of a request; an earlier version of the statute was similar but did not offer rights that were as broad. However, the statute does not apply to most union employees:
(q) This section does not apply to an employee covered by a valid
collective bargaining agreement if the agreement expressly provides
for all of the following:
(1) The wages, hours of work, and working conditions of employees.
(2) A procedure for the inspection and copying of personnel
(3) Premium wage rates for all overtime hours worked.
(4) A regular rate of pay of not less than 30 percent more than
the state minimum wage rate.
Were you covered by a collective bargaining agreement at the time you made the request? It may well make a difference in the remedy.
If the statute applied to your request, then your remedy under the Labor Code is $750 in damages and enforcement of the statute.
Second, assuming the collective bargaining agreement could be resurrected to apply to your situation – though I strongly doubt that it could – the time limits for filing a grievance are surely long past. I have never seen a grievance period of more than one month in the private sector and it is usually one week or less.
Also, unions are not obligated to pursue grievances for every infraction the employer commits, and in this case I cannot imagine a union pursuing a grievance against an employer for a member of a bargaining unit that the union no longer represents.
Third, what would your claim be for? Perhaps defamation. There is a one-year statute of limitation (deadline) to pursue a defamation claim. If the employer concealed the defamation, it may be longer. If the employer committed fraud in hiding the defamation, the statute of limitation could be as much as three years.
There are a number of other legal considerations to consider, but by now you probably get the point that a response to your question is fairly complex and will require you to retain the services of an attorney to look into. For this type of assistance, you can expect to pay hourly. Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more. You should expect to need at least three hours for this kind of consultation.
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.See question