Employment Law Tag

sources of employment law

21 Oct Different Sources of Employment Law

There are different sources of employment law in California. You've probably heard about Title VII. This is federal law, which Congress enacted as part of the Civil Rights Act of 1964. Title VII prohibits harassment and discrimination in the workplace. But California also has its own version of Title VII: the Fair Employment and Housing Act, also known as the FEHA. Like Title VII, the FEHA prohibits workplace harassment and discrimination. Both Title VII and the FEHA apply in California. If you're considering suing your employer, you may be able to choose between the two. Different sources of employment law, similar rules and remedies After the federal government enacted Title VII, many states passed their own versions of the law. The FEHA is California's version of Title VII. Because the FEHA is based on Title VII, there are many similarities between the two laws. For example, both prohibit harassment and discrimination based on certain characteristics, such as race, gender, and religion. They both also prohibit employers from retaliating against employees who oppose harassment or discrimination. Moreover, they both set up a mandatory administrative process. Title VII created the Equal Employment Opportunity Commission. If you want to sue your employer under Title VII, you have to go to the EEOC first. Likewise, the FEHA has the Department of Fair Employment and Housing. Like under Title VII, you must go through the DFEH's administrative process before you sue your employer in court under the FEHA. Finally, Title VII and the FEHA both authorize punitive damages and allow victorious plaintiffs to collect attorney fees and costs. They both also have asymmetrical cost shifting. This means prevailing plaintiffs can recover fees and costs as a matter of right, but when defendants win, they can't recover fees and costs unless the plaintiff's lawsuit was frivolous. Though similar, there are important differences between Title VII and the FEHA While similar, there some key differences between Title VII and the FEHA. Perhaps the most important difference from a plaintiff's prospective is Title VII's damages cap. While the FEHA allows for unlimited compensatory and punitive damages, Title VII limits recoverable damages. Additionally, Title VII is federal law. This means that federal courts automatically have jurisdiction over Title VII cases. While California courts can hear cases involving federal law, a defendant being sued under federal law has the right to remove the case to federal court. While this doesn't affect the substantive law, federal courts use different procedural rules. For example, California courts do not require plaintiffs to win unanimous jury verdicts, while federal courts do require unanimous verdicts. Moreover, it's often more expensive to litigate in federal court and plaintiffs' attorney are generally less experienced there. Accordingly, plaintiffs often prefer state court. Because the FEHA is not federal law, defendants have a harder time removing FEHA cases to federal court. Finally, there are some differences in the substance of the two laws. For example, the FEHA prohibits discrimination based on sexual orientation and gender identity. It's unclear whether Title VII does so, though the Supreme Court is expected to conclusively resolve this issue in the spring of 2020. Different sources of employment law: which law should I use? Now you know there are different sources of employment law in California. If you're considering suing your employer, you might be wondering: which source of law should I use? The answer: it depends. Most plaintiffs' attorney probably prefer the FEHA. But that doesn't mean that every plaintiff in every situation should proceed under the FEHA. There are some instances in which Title VII is the way to go. First, in some situations, Title VII is your only option. For example, if you are an employee of the federal government, you generally can't use the FEHA to sue the federal government in state court. There are also some areas, called federal enclaves, where only federal law applies. If the offending conduct occurred in a federal enclave, Title VII may be the exclusive remedy. Additionally, you may be in an area where the juries are not favorable for plaintiffs. Because the applicable federal court may be in a different city or county, it's possible you could get a more favorable jury in federal court. Because you probably can't bring your FEHA claims in federal court, you may want to use Title VII if this is the case. These are only a few of the many factors involved in choosing whether to pursue claims under Title VII or the FEHA. Ultimately, this is a decision you'll need make in consultation with your attorney. It's also important to remember that there are other laws, both state and federal, that might apply in the employment context. If you believe you have a claim against your employer, contact the Khadder Law Firm today for a free consultation. To stay up to date on our blog posts and more, follow us on Twitter and Instagram....

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What's an independent contractor

12 Mar What’s an independent contractor?

What's an independent contractor? Put simply, someone that does work for an employer, but is not an employee. Unlike employees, who have an employment contract with their employers, independent contractors are not technically part of the company or organization for which they're doing work. Instead, they simply have a contract in which they agree to do certain work for that company or organization. Presumption against independent contractor status California law presumes that if you’re working for somebody, you are an employee. Accordingly, the employer bears the burden to prove that you are not an employee.  Even if your contract says you're an independent contractor, that doesn't mean you're properly classified as an independent contractor. Courts consider a number of factors in determining whether someone is an independent contractor or an employee. If most of the factors show someone is an employee, they are legally an employee, regardless of what the contract says. What's an independent contractor? The main factor is level of control Courts look at many factors, but level of control is the main factor. In other words, what's 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. For example, if you hire an electrician to rewire your house, you're probably not micromanaging their work. You tell them what you want done, but you don't tell them what tools to use or how to manage their time. This type of relationship is typically not employer-employee. Conversely, if a company hires someone and tells them when and where to be during work hours, what they should be doing, and how to do it, he's probably an employee. Nature and length of the relationship Some of the other factors to consider are whether the hiring entity can terminate the employment relationship at will. If they can, this suggests it's an employer-employee relationship. Also, whether the worker is engaging in an occupation or business that is distinct from the employer’s business or occupation. For example, say a law firm hires somebody to do IT work for it here and there. That is a distinct business from the employer (meaning the law firm’s business). This would probably favor characterizing the IT person as an independent contractor. Conversely, suppose you're a salesperson at a shoe store. Their business is selling shoes and your job is selling shoes. That your job is a core part of their business makes it more likely that you're an employee. Courts also consider the length of time over which someone performs the work. If you hire someone for a few hours of work, they're probably not an employee. But if you hire someone to do that same thing every day for a year, that's different. The worker's authority also comes up. If you can hire and fire others, then you're probably an employee. Another issue to consider is how the employer pays. Do they pay an hourly rate? A regularly salary? Or per job? For example, take that IT professional. If she's paid for each computer that she sets up, this might favor being characterized as an independent contractor. Conversely, if the law firm paid her a certain amount every month to run their IT, that would make it more likely that she is an employee. Type of work and skill involved There's also the worker's skill. If you’re an IT professional and you’re coming in and setting up a computer for a business you're likely an independent contractor. That's because you're 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. Also, 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. If a contract says you're independent contract, it doesn't necessarily mean you are. But courts will consider that. 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 the Khadder Law Firm today for a free initial consultation. For more, follow us on Twitter and Instagram....

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28 Feb Mandatory Arbitration Clauses

Mandatory arbitration clauses are contractual provisions that require you to submit any claims to arbitration instead of going to court. There are some exceptions to what can be forced into arbitration. One exception for now is representative actions under the Private Attorney’s General Act or PAGA. PAGA is a California law that basically deputizes individuals to seek penalties against employers that violate the California labor code. There are a few other minor exceptions, all within the State context. It is a little more complicated in the Federal context due to certain executive actions by the President. But, in the context of the state of California, it depends on what the arbitration agreement says. Most arbitration agreements are so broad that they include almost any kind of claim that can be forced into arbitration, and it doesn’t matter how egregious the conduct of the employer is; if there is an agreement between the employer and employee to arbitrate that type of claim, and there almost always is, then it can still be forced into arbitration. In that scenario, there is no way to get out of the arbitration agreement unless there is actually something unconscionable with the arbitration agreement itself. In terms of the types of claims or how egregious the claims are, it doesn’t really have an impact upon whether or not an employee will be forced to enter arbitration. If you have questions about a mandatory arbitration clause, contact the Khadder Law Firm today.   For more, follow us on Twitter and Instagram. And like us on Facebook....

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