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Kevin Michael Schwin

Kevin Schwin’s Answers

130 total

  • Can an employer have a contractor he is using sign release of liability for a vehicle he is letting the contractor use?

    I work for a locksmith. The technicians are Independent Contractors. A new tech is starting but does not have a vehicle. The owner is letting him use one for now. Can a release of liability be signed so the owner is not held responsible if there i...

    Kevin’s Answer

    This is a loaded question. The simple answer is, probably not. Below is a detailed explanation.

    First, it should be noted that in California people are presumed to be employees, not independent contractors. Lawsuits are filed every day where people allege they were mis-classified as independent contractors, where they should have been classified as employees. In your case, this distinction is important because if the new tech is, in fact, an employee, then a release of liability would be pointless. The employer would be held liable for any damage or injuries caused by the employee while in the course and scope of employment. And, if the employee is injured, that would be covered by workers' comp.

    If you are concerned about an accident, you should be very careful to make sure this technician is truly an independent contractor. This is because workers' compensation coverage is required for employees, but not for independent contractors. If the technician is later found to be an employee, and not an independent contractor, all kinds of very serious legal problems can arise from a failure to maintain workers' compensation coverage.

    On the other hand, if this new tech is, in fact, an independent contractor, a release of liability may provide some security, but probably not the kind of security the owner would like. An independent contractor, like an employee, is considered an "agent" under the law. Thus, if an independent contractor gets into an accident in the course and scope of performing work, then the owner, or "principal" is going to be liable to any third party. Any release of liability between the owner/principal and technician/agent would not be binding on an injured third party. Such a release would only be binding on any claims the technician might bring against the owner. So, for example, if the brakes fail or a tire pops or something like that happens, and the technician is injured, the technician could sue the owner under the theory that the owner knew or should have known of the problems with the vehicle and failed to have the vehicle repaired, thereby causing the injury. In such a case, a release of liability may potentially protect the owner. However, a court would likely scrutinize any such release and may ultimately find it unenforceable for any number of reasons.

    As for liability to third parties, if the technician is truly an independent contractor, then the owner and the technician can enter into what is called an "indemnity agreement" whereby the technician is legally obligated to cover any liability of the owner. Such an indemnity agreement, however, may also be pointless because an injured third party can still go after the owner and collect on any judgment against the owner. All an indemnity agreement would do is allow the owner to collect from the technician any money recovered from the owner. If the technician has no assets to indemnify, then the indemnity agreement is not going to prove very helpful. Also, any such indemnity agreement may ultimately be found unenforceable for any number of reasons (though, an indemnity agreement with an independent contractor is probably enforceable).

    All this assumes the technician is actually an independent contractor, and not an employee. If the technician is an employee, then any indemnity agreement and/or release of liability will probably be invalid and unenforceable pursuant to California Labor Code sections 2802 and 2804. You should consult with counsel to determine if the technicians are being mis-classified as independent contractors.

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  • Can I still file For wrongful termination after 1 1/2 years?

    I was let go from my job as a manager(contractor) back in December 2012. My boss was double dipping 2 jobs government and contractor. Well in January2013 I was contacted by CID for an Interview for questioning. I told them everything I knew. She a...

    Kevin’s Answer

    The statute of limitations applicable depends on the precise claims you have. From the information you provide, it appears you may have claims under Labor Code section 1102.5 and also a claim for "wrongful termination in violation of public policy". The statute of limitations for Labor Code 1102.5 is presumably three years, though that is not settled and some lawyers argue it is only one year. The statute of limitations for a claim for wrongful termination in violation of public policy is two years. There may also be other claims, which may or may not be time-barred. You should consult a lawyer immediately.

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  • I sign a yearly contract. Can my employer eliminate my position after giving me a verbal contract?

    I am on a yearly teacher contract. When my new contract was almost due, I was asked if I would like my same position next year at 80% time and was given an exact salary for the year. I verbally (and happily) accepted. I was expecting my written co...

    Kevin’s Answer

    You may or may not have legitimate grounds to sue for wrongful termination. It depends on a lot of facts that are not in the summary. Were you employed by a public or a private school? Did they fire you before or after your contract expired? Did you rely upon the promise of continued employment to your detriment (e.g. by rejecting a job offer from somebody else because you thought you would be continuing on with the school)? Was the offer of continued employment in writing? Were there any other terms to the offer of continued employment that you verbally accepted, and if so, what? Did they actually eliminate the position, or is that just an excuse to cover up some ulterior motive? If you suspect an ulterior motive, what it is and how can you prove it?

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  • Can my employer tell me to transfer to another facility or quit?

    I work for a vet hospital and my boss recently told me she want to move me to another hospital. I told her I Dont want to and if I Dont accept the transfer is she firing me. She told me "no I'm offering you a position at another hospital, either y...

    Kevin’s Answer

    Generally, your employer has the right to re-assign you to a different location unless there is some contract between you and the employer that specifies otherwise (which there probably is not). In other words, they can fire you for refusing the re-assignment. And, in fact, you may not even qualify for unemployment under these circumstances if you do not accept the re-assignment (though it would depend on a number of other factors such as how far away the other hospital is, whether working conditions at the other hospital are inferior, etc.)

    However, if the employer is re-assigning you to a different location for unlawful discriminatory or retaliatory reasons, then that is a different story. Their motives must be lawful. If you believe they have unlawful discriminatory or retaliatory motives (e.g. you are being re-assigned because of your race, sex, national origin, etc.), you should speak to a lawyer.

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  • I was laid off and will be covered by the W.A.R.N Act in CA. Can I work as a 1099 contractor during the 60 day period.

    I would like to accept contract work through another company but do not want to lose my severance/W.A.R.N Payments through this 60 day period. If I work as a 1099 contractor during the 60 days instead of a W2, would it still be legal to receive p...

    Kevin’s Answer

    You should be fine. If you were laid off, you can and should seek other means of supporting yourself immediately, whether by subsequent employment working for somebody else or subsequent self-employment as an independent contractor. Your layoff, and any severance payments your receive, have absolutely nothing to do with any subsequent jobs you take. You could get your severance and start working as an independent contractor. You could get your severance and start working as a W2 employee. You could get your severance and remain unemployed. It does not matter.

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  • Is Labor Code §1102.5 separate from Government Code § 8547 ?

    Are they both considered whistleblower acts? When it came time for summary judgment, defendants argue that I can't maintain my whistleblower violation act under §8547 because I didn't allege facts showing that I was an employee under labor code §...

    Kevin’s Answer

    Both Labor Code 1102.5 and Government Code 8547 protect whistleblowers. However, the two statutes are different in several respects. For example, Government Code section 8547 only protects certain government employees. On the other hand, Labor Code section 1102.5 protects employees of private as well as public employers. Government Code section 8547 has a narrow definition of "employee," as defined in Government Code section 8547.2. A different definition of "employee" applies to Labor Code section 1102.5, as defined in Labor Code section 1106. So, it is possible you are an "employee" for purposes of Labor Code section 1102.5 but not for purposes of Government Code section 8547. On the other hand, if you are an "employee" under Government Code section 8547, then you are also an "employee" under Labor Code section 1102.5.

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  • What defines an employee under government code §8547?

    what defines an employee under government code §8547? can anyone direct me to the code section discussing that?

    Kevin’s Answer

    California Gov't Code section 8547.2 states as follows:

    "For the purposes of this article, the following terms have
    the following meanings:
    (a) "Employee" means an individual appointed by the Governor, or
    employed or holding office in a state agency as defined by Section
    11000, including, for purposes of Sections 8547.3 to 8547.7,
    inclusive, an employee of the California State University, or an
    individual appointed by the Legislature to a state board or
    commission and who is not a Member or employee of the Legislature. In
    addition, "employee" means a person employed by the Supreme Court, a
    court of appeal, a superior court, or the Administrative Office of
    the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive,
    and Section 8547.13, except for those provisions of Section 8547.4
    concerning notice of adverse action and the State Personnel Board.
    "Employee" includes a former employee who met the criteria of this
    subdivision during his or her employment."

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  • Can I sue a prospective employer? I passed all their background check, including drug test. However they rescinded their offer

    My recruiter told them I might have smoked marijuana recently. But I did pass the drug test. This was the reason they rescinded job offer. Also I ended up quitting my current job, because I thought I had passed all the background check. I also...

    Kevin’s Answer

    You may have a claim for defamation against the recruiter if s/he told the company you smoked marijuana recently and that statement was false. If you have proof that the statement was made by the recruiter, and the statement is false (falsity can be proven by the passed drug test), then you might have a meritorious case.

    If, on the other hand, your recruiter denies telling them you might have smoked marijuana recently, then you might have a wrongful failure to hire case against the company. If your recruiter never actually told them that, but they told you your recruiter said that as an excuse to rescind the job offer, they clearly were not honest with you about their reasons for rescinding the offer. Their dishonesty may create an inference that they rescinded the offer for an illegal reason. From what you have said, the real reason may be the expunged misdemeanor DUI. If the real reason for the rescission of the offer was the expunged DUI, then you may have a case against the investment firm for violation of California Labor Code section 432.7.

    Either way, something seems fishy about this and I strongly suggest you consult with an attorney.

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  • I have been working for a referral company since 10/13 it is now 1/10/14 and my employer hasn't put me on payroll is that legal

    i have been working for a company since oct 2013 until now the employer hasn't put me on payroll and pays me cash is that legal ? he kept telling me he was going to add me to payroll once the new year started but i came back from Christmas vacatio...

    Kevin’s Answer

    It is not necessarily illegal to pay an employee in cash in California. Such a practice does, however, raise some red flags. Generally, employers pay employees with checks so there is a record of payment. With cash, there is no record. Further, no matter what the form of payment, the employer must provide an itemized statement reflecting the total hours worked, the applicable hourly rate(s) and the number of hours worked at each rate, all deductions for taxes, along with a laundry list of other things that are required by California Labor Code section 226(a). So long as your employer provides an accurate itemized statement containing all the information required by Labor Code section 226(a) with each cash payment, and so long as the cash payment is for the correct amount of wages owed (minus any deductions such as taxes), then there is nothing illegal about payment in cash. If, on the other hand, you are not being given an itemized statement, or if the itemized statement does not contain ALL the information required by Labor Code section 226(a), or if the itemized statement contains inaccurate information, then you may have meritorious claims against the company.

    You also mentioned there is a pending lawsuit by a former employee over rest and meal breaks. In California you have the right to at least one meal period lasting 30 minutes or longer for each day that you work more than 5 hours. The employer may set a designated time for the meal period, but it must either be within the first 5 hours or at the 5 hour mark. If you work no more than 6 hours in a day, the meal period can be waived by mutual agreement between you and the company. If you work more than 10 hours in a day, you are entitled to a second meal period lasting 30 or more minutes. You are not required by law to take the meal period. If you choose to work through the meal period, you may do so. However, if you work through the meal period, then the company must pay you for the time worked. At the same time, the employer cannot REQUIRE you to work through your meal period. If the employer does so, it is breaking the law.

    In addition to meal periods, you are entitled to one rest period of at least 10 minutes for every 4 hours worked or "major fraction thereof." The term "major fraction thereof" actually means that if you work less than 3.5 hours in a day, you have no right to a rest period, if you work between 3.5 and 6 hours in a day, then you have the right to at least one 10 minute or longer rest period, which is in addition to any meal periods. If you work between 6 and 10 hours in a day, then you have the right to at least two 10 minute or longer rest periods, which are in addition to any meal periods. If you work between 10 and 14 hours in a day, then you have the right to at least three 10 minute or longer rest periods, in addition to any meal periods. Etc. Etc.

    I hope this information helps.

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  • Can my Employer fire me after the FMLA expires? I have a worker comp case going on.

    I am unrepresented, have a back injury (5% disability) from work in 01/2013 was out for two weeks. went back to work and have been working ever since with the sane restrictions for 8 months. After they got the P&S report from my doctor they sent m...

    Kevin’s Answer

    • Selected as best answer

    It concerns me that before receiving the P&S report you worked with restrictions for 8 months without incident and now all of a sudden after the P&S report they claim they cannot accommodate you. It is their legal obligation to provide a reasonable accommodation (assuming your back injury qualifies as a disability). At first blush, it seems like your employer is up to no good. However, it is possible your employer is complying with the law depending on facts and circumstances not explained above. To answer your specific question to the best of my ability, yes, your employer can fire you on expiration of your job-protected FMLA leave. They can even fire you while on FMLA leave, so long as the reason is unrelated to your leave and they would have fired you for that reason even had you not been on leave. That being said, it sounds like you have potentially meritorious claims against your employer, and I suggest you consult with an attorney of your choosing about your situation.

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