Employment Classifications

New Independent Contractor Law

06 Jan New Independent Contractor Law

California's new independent contractor law went into effect on January 1, 2020. The law, commonly referred to as AB 5, would make it harder for employers to treat workers as independent contractors. It's too early to know exactly what effects the new law will have, but it will likely reshape the gig economy, which relies heavily on independent contractors. Effects of the new independent contractor law The practical effect of the new law is the reclassification of many independent contractors as employees. The new law changes the test used to determine whether someone is an employee or independent contractor. As of January 1, 2020, the law emphasizes the level of control that employers exert over the worker. And it focuses more on whether the worker's job is part of the employer's core business. In theory, this should require companies like Uber and Lyft to treat their drivers as employees. But it's unclear exactly what this will look like in practice. There is already legal controversy about the new law Even prior to it going into effect, Uber said it didn't intend to comply with AB 5. Uber and Postmates have already filed a lawsuit, claiming AB 5 is unconstitutional. More employers will likely file similar lawsuits. Furthermore, misclassified employees will likely start bringing lawsuits of their own. There are advantages to being an employee and misclassified employees can recover penalties from employers. So employers who refuse to comply with the new rules may find themselves defending lawsuits filed by misclassified independent contractors. If you believe your employer has misclassified you, contact the Khadder Law Firm today for a free initial consultation. For updates on this and more, follow us on Twitter and Instagram. And like us on Facebook....

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She could be an employee or independent contractor

19 Nov Employee versus Independent Contractor

Many people are unsure what the different classifications of employee verus independent contractor mean. So what is an employee? What is an independent contractor? What's the difference between the two? And why does it matter? Employee versus independent contractor: what's the difference? People often use worker and employee to mean the same thing. But this isn't actually correct. Some workers are employees, others are independent contractors. So what's the difference? It's actually a fairly complicated legal question. Under both state and federal law, courts look at all kinds of factors to determine whether someone is an employee or an independent contractor. For simplicity's sake, someone is generally an employee when their employer exercises a lot of control over their work. For example, someone that goes to their company's place of business everyday, wears their company provided uniform, uses company equipment, and does what the company tells them to do all day is an employee. Employees work directly for the employer and the employer pays them and provides whatever benefits the employee might get. At least until recently, this has been the dominant working arrangement in developed economies. Conversely, an independent contractor is a worker that is not an employee. This traditionally meant someone who contracted to perform a certain task. For example, the plumber you hire to fix your leaky faucet is an independent contractor. You haven't hired her as employee. You've agreed to pay her to perform a specific task in exchange for a set fee. Once she's finished, you pay her and you both go your separate ways. Why the difference matters Employee versus independent contractor is not simply a legal distinction that exists only on paper. Whether someone is an employee or independent contractor has important real world consequences. First, employees are often entitled to certain benefits, such as health insurance or retirement plans. Independent contractors are not. Second, many labor and employment regulations apply only to employees. Most state and federal wage and hour laws don't apply to independent contractors. For example, you don't need to pay that plumber you hired minimum wage or overtime. Likewise, the state and federal laws prohibiting employment discrimination and workplace harassment generally do not apply to independent contractors. So if you're classified as independent contractor, you may not be to sue if you're discriminated against. Third, and finally, having employees requires employers to provide things like workers' compensation coverage. Conversely, a company does not need to provide workers' compensation coverage for its independent contractors. Likewise, for things like unemployment insurance and social security. The changing landscape Unsurprisingly, the use of independent contractors is on the rise. Companies see it as a way to cut costs without cutting vital labor. But this also leads to abuse. Companies often hire people as independent contractors even when they should technically be employees under the law. Of course, misclassifying employees as independent contractors is unlawful and companies can be subject to penalties for doing so. But, because most people wont sue, companies usually get away with it. Naturally, the increasing use of independent contractors has caused some push back. California recently passed a law cracking down on the use of independent contractors. Other states are also considering similar laws. These laws target workers in the gig economy, such as Uber or Lyft drivers, but will affect other workers as well. If you believe you are misclassified as independent contractor, contact the Khadder Law Firm today for a free consultation. For more follow us on Twitter and Instagram....

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New Uber bill

30 Sep New bill that would make Uber and Lyft drivers employees

The California State Senate has passed Assembly Bill 5, a new bill that would make Uber and Lyft drivers employees, likely turning Uber and Lyft drivers into employees. If signed into law, the bill would restrict the use of independent contractors. Such a change would profoundly impact California's labor market. In particular, AB 5 would affect thousands of gig economy workers. This includes Uber and Lyft drivers and couriers for delivery apps such as Postmates and DoorDash. It could also affect Amazon warehouse workers and delivery drivers. New rules for determining whether a worker is an employee or independent contractor AB5 codifies and expands the California Supreme Court’s groundbreaking 2018 decision in Dynamex Operations West, Inc. v. Charles Lee. In that case, the court adopted a new test for determining when a worker is an employee. Under the new "ABC Test," a worker is presumed an employee and will deemed so unless the employer proves that: (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (2) that the worker performs work that is outside the usual course of the hiring entity’s business; and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Uber and Lyft do not treat their workers as employees, but AB 5 would likely require them to do so Under previous law, employers could usually treat workers as independent contractors as long as they did not exercise direct control over workers’ schedules and tasks. This regime allows companies such as Uber, Lyft, Postmates, and DoorDash to treat their drivers and couriers as independent contractors. Under the rule codified in AB 5, companies must show that the worker performs work outside of the core of their business. Because transporting people is so central to Uber and Lyft’s business, it will be difficult for such companies to avoid treating their workers as employees. The effects of being an independent contractor are significant While it may see like a subtle distinction, the practical effects of being an independent contractor, as opposed to an employee, are significant. Many labor and employment laws apply only to employees. For example, in some circumstances, companies can pay independent contractors below minimum wage. Additionally, employers must also carry workers’ compensation insurance to cover all employees, but not independent contractors. Perhaps most critically, much of the state and federal law that prohibits employment discrimination does not apply to independent contractors. Accordingly, independent contractors often have no legal recourse for harassment and discrimination. Unsurprisingly, misclassification is common in California. The Department of Industrial Relations estimates that misclassification costs the State $7 billion per year in lost payroll tax revenue. Even if the governor signs AB 5 into law, employers will undoubtedly continue to misclassify workers. Uber and Lyft say they wont classify drivers as employees Uber and Lyft have already announced that they do not plan to reclassify their drivers as employees if the bill becomes law. They argue that they are technology companies, not transportation companies. Therefore, they contend that their drivers do not perform tasks that are core to their business. If AB 5 becomes law, this argument will surely be tested in court. AB 5 now goes to Governor Newsom, who is expected to sign it into law AB 5 now goes to Governor Gavin Newsom for signature. Newsom has already announced his support for the bill and will likely sign it. AB 5 would go into effect on January 1, 2020. For updates on AB 5 and more, follow us on Twitter and Instagram. If you believe you have been misclassified as an independent contractor, contact the Khadder Law Firm for a free consultation....

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Overtime and record keeping

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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14 Feb If someone were denied employment and more qualified for the job than the applicant who was successful in getting the job, how does one prove that case?

Let’s first look at a situation where an applicant with a disability objectively is not as qualified as a person without a disability. Let’s assume that their qualifications are not less than a person without a disability because of their disability, but it’s because of some other factor such as education or skill. The employer doesn’t have to give preference to the person with a disability if that person with a disability is objectively less qualified than the person without a disability. If the employer hires the person without a disability over someone with a disability who is more qualified, that, in and of itself, can be evidence of discrimination. Rarely is there direct evidence of discrimination in disability cases or other cases. It is extremely rare where you would have evidence of an employer writing an e-mail or sending a message to the effect of, “I don’t want to hire that person because of their disability,” because employers are a lot savvier than that. You have to show through circumstantial evidence that it is more likely than not that you, as a person with a disability, did not get a job because of your disability. There could be stray comments to prove discrimination on the part of an employer to hire you, you may have evidence of comments that were made by an employer or supervisor where they made fun of people with disabilities, where they treated other people with disabilities poorly, or other things to show that the person had a discriminatory animus toward people with disabilities. There is very rarely any direct evidence of discrimination, but with enough circumstantial evidence you may be able to overcome the burden of proof to prevail on a disability discrimination claim. In California law, and more recently in the California Supreme Court, it was held that the disability has to be a substantial motivating factor for the employer’s decision not to hire or to fire, or do some other adverse employment action. Therefore, you have to show that the employer was substantially motivated by your disability. That raises the bar a little bit. It used to just be simple motivation: Your prospective employer could have ten reasons why they didn’t hire you, and one of the reasons of those ten was your disability, and the other nine were non-protected reasons. Now, the bar is a little bit higher. In the past, that was enough to win on a disability discrimination case. Now, it’s got to be a little bit more than that; it has to be a substantial motivating factor. If you have been refused a job because of a disability or a need for a disability accommodation, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation.  ...

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