Employment Categories

09 Oct New Bills to Make Uber, Lyft Drivers Employees

Following California's lead, other states are considering bills to make Uber and Lyft drivers, as well as other gig economy workers, employees. In September 2019, California's legislature passed Assembly Bill 5, which would change how the state regulates the use of independent contractors. In practice, AB 5 aims to make many workers in the gig economy, such as Uber and Lyft drivers, employees. Currently, such workers are independent contractors. Now, other states are mulling similar bills. Illinois lawmaker preparing bill to make Uber, Lyft drivers, others in gig economy, employees Illinois State Representative Will Guzzardi, will sponsored a bill similar to AB 5. Like AB 5, Guzzardi's bill targets gig economy workers, such as Uber drivers and food delivery app couriers, turning many into employees. Doing so would bring these workers under the protection of more labor regulations, such as the state's minimum wage laws. This effort is in the early stages and it's unclear how much support the bill will have. Either way, experts believe other states will follow California and Illinois in considering bills limiting the use of independent contractors. Lawmakers in other states will certainly be monitoring the reaction to these bills in California and Illinois. New York considering a bill that would extend some protections to non-employees New York State Senator Diane Savino says she'll introduce new legislation that would extend protections to"dependent workers," a new classification the bill would create. Unlike the California or Illinois bills, this bill does not intend to make Uber and Lyft drivers employees. Instead, it will extend certain employee protections to gig economy workers without making them employees. Critics say this is a half measure that will not do enough to combat what they say are Uber and Lyft's predatory employment practices. However, such an approach may prove more politically appetizing for lawmakers weary of radical changes to employment law. The difference between being an employee and an independent contractor is significant There are significant differences between being an employee and an independent contractor. State and federal labor law often does not extend to independent contractors. For example, independent contractors are often exempt from minimum wage laws. Unsurprisingly, employers regularly classify their employees as independent contractors. Unsure if you're properly classified? Read our blog post, for more information. If you believe your employer has missclassified you as an independent contractor, contact the Khadder Law Firm today for a free consultation. For updates on these bills and more, follow us on Twitter....

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05 Apr Working overtime to keep up

What if my employer gives me more work than I can accomplish in 40 hours and I'm working overtime to keep up Sometimes an employee ends up working overtime to keep up with their work. But what if your employer hasn't authorized your overtime? What if they don't know that you're working nights or weekends to keep up? Can you recover pay for that time? In general, an employer can prohibit you from working overtime. But, if you work that time, you should still be entitled to overtime pay, at least as long as the employer hasn't told you not to work any overtime. Especially if your employer gives you more than 40 hours of work. If they tell you, “Don't work more than 40 hours,” but you do so anyway, that’s different. In that case, you may not be able to recover overtime pay. But, if they give you the work, and they don’t tell you not to spend as much time as you need? Then you are entitled to overtime pay. Each case is different. If a court was looking at it, they might adjust how much overtime pay you are entitled to. In doing so, the court will consider the specific circumstances of how you worked those overtime hours. Another factor is whether the employer knew about the overtime. If you believe that your employer has failed to pay you overtime that you have earned, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter....

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02 Apr Overtime claims and record-keeping

A common issue arises regarding overtime claims and record-keeping, or the failure to keep records. Both California and federal law require employers to pay overtime to eligible employees. If your employer hasn't paid you overtime to which you're entitled, you can bring a lawsuit against your employer to recover that pay. In most cases, you can prove your claim using your employer's records. But what if your employer hasn't kept records of your overtime? Proving overtime claims and record-keeping It's more difficult to prove your claims if your employer doesn't have adequate records of your hours. Fortunately, California has laws regarding overtime claims and record-keeping. California law requires employers to keep and maintain records on the hours that their non-exempt employees work. If they fail to do so, they can be liable for penalties under the California labor code. Therefore, if your employer is complying with the law, you should be able to prove your claim with their records. But even if they don't, the law still allows you to pursue your claims. Proving claims without your employer's records Ideally, your employer has records that accurately reflect how much overtime you've worked. But this isn't always the case. While this can make things more complicated, it's not fatal. For example, suppose an employee sues her employer for failure to pay overtime and the employer hasn't kept records of that overtime. Typically, the court will allow the employee to estimate the amount of overtime they have worked. The court will take that into consideration in determining how much the employee can recover. The more precisely you can estimate the overtime, the better. If you believe that your employer has failed to pay you overtime that you have earned, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter....

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12 Mar How do I know if I am properly classified as an independent contractor?

Independent contractors are treated differently than employees under California law. California, being a relatively pro-employee state presumes that if you’re working for somebody, you are an employee. The burden is on the employer who wants to treat you as an independent contractor to demonstrate that you are properly characterized as an independent contractor.  Just because a person has a contract that says you’re an independent contractor, it’s dispositive proof that you are, in fact, an independent contractor under the law. There are a number of factors to consider when determining if there is an employer-employee relationship, or if there is an independent contractor relationship. The main factor is whether the person or entity hiring the person has a right to control how the end result is achieved. In other words, what is the extent of the employer’s right to control the manner and means of the employee’s performance. If the employer exercises control over the person in terms of the manner and means of performing their job, then they are more likely an employee as opposed to an independent contractor.   Some of the other factors to consider are whether the employment relationship can be terminated at will, and whether the worker is engaging in an occupation or business that is distinct from the employer’s business or occupation. By way of example, that could be, for instance, if the business is a law firm and it hire somebody to come and do IT work for it here and there, that is a distinct business from the  employer (meaning the law firm’s business), so that would probably favor characterizing the IT person as an independent contractor. Another factor is whether the type of work performed is usually done under the employer’s direction, or it’s done by a specialist without supervision. If you’re an IT professional, and you’re coming in and setting up a computer for a business you might probably be properly characterized as an independent contractor because you are likely doing it without any supervision or direction by the company that has hired you. Another factor is the skill that’s required to perform the work, and whether the business provides the instrumentalities, tools and place of work. For instance, if you do landscaping or cleaning services, and you bring your own cleaning or landscaping tools, and you do it at the hirer’s residence or place of business, then you might be considered an independent contractor. Another factor is the length of time for which the services are to be performed.  An issue that comes up a lot is whether the worker, the person hired, can hire and fire other people. If you can hire and fire others, then you are probably not an independent contractor. Another issue to consider is whether payment for work is done by time, piece-rate, or job. For example, with the IT professional, if you are paid to set up a computer, and are paid for each computer that you set up, this might favor being characterized as an independent contractor. While a written contract that says that you’re an independent contractor doesn’t necessarily mean that under the law you should be considered an independent contractor, it is taken into consideration. If the parties believe they are creating an employment relationship, or if they believe they are creating an independent contractor relationship, then that fact is also used in determining whether you should be an independent contractor or an employee. If you believe that your employer has wrongfully classified you as an independent contractor, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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06 Mar How do I know if I’m properly classified as “Exempt”?

California law presumes that an employee should be non-exempt, and the burden is placed on the employer claiming the exemption to demonstrate that the exemption applies to its employee by showing that the employee fits plainly and unmistakably within the exemptions’ terms. It is a mixed question of law and fact, but again, the burden is on the employer, and California law is more protective than federal law on this issue. There are several categories of exempt employees addressed within the California wage and hour laws. Each of those categories of employees must meet certain criteria to qualify under the category. All of them use what is called the “primarily engaged in” test, which is that if you are primarily engaged in duties that meet the test of the exemption, then you could be considered an exempt employee. Primarily engaged means more than 50% of the work that you do falls within the exemption. One of the more common exemptions is the executive, administrative and professional employees exemption. To be exempt under this category, you have to be primarily engaged in duties that meet the test of the exemption, which are established by a wage order. To be exempt under this exemption, you have to customarily and regularly exercise discretion and independent judgment in performing those duties. Also, you have to earn a monthly salary that is equivalent to no less than two times the state minimum wage for full time employment. It’s a somewhat complicated analysis because it’s mostly a fact-specific analysis. But, the main criteria to consider is whether you are primarily engaged in exempt duties. The idea is this: If you are an employee working at a restaurant, or working in a job that pays you by the hour, and you don’t make more than twice the minimum wage, then you don’t really manage people, and you don’t exercise independent judgments; you basically have a supervisor or manager that tells you what to do. Then, you should be protected under the wage and hour laws in California. You should be able to get minimum wage pay and overtime pay, and other protections that are provided by the California labor code. If you believe that your employer has wrongfully classified you as an exempt employee, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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