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Manylaws and rules dictate whether an employer can legitimately classify someone as an independent contractor (I/C). They include California's strict ABC three-factor test and the numerous exceptions enacted by the legislature as part ofAB 2257, as addressed in our What's New in 2021 series (links below).
Many laws and rules dictate whether an employer can legitimately classify someone as an independent contractor (I/C). They include California's strict ABC three-factor test and the numerous exceptions enacted by the legislature as part of AB 2257, as addressed in our What's New in 2021 series (links below).
Each state has its own rules, in addition to the IRS behavioral, financial, and relationship factors, and the federal Department of Labor criteria which apply nationwide.
Some employers mistakenly classify workers as I/Cs to avoid paying withholding taxes or because a worker asked for none of the deductions from his/her checks. Others misclassify workers as I/Cs out of ignorance of the law or think they know better. Doing so can be an expensive mistake.
It is a rare month when we are not defending a business challenged for such misclassification.
Perhaps most ironic are the claims from employees who asked to be treated as I/Cs. Yet, empathy for a worker's financial stress is not a defense to misclassification. Neither is the money saved by not deducting taxes. Rather, government entities view these practices as a company's attempts to gain an unfair advantage over employers who follow the law.
Take-Aways: A worker is legally an I/C only if the relationship meets the applicable legal factors. Employers are well advised to consult with an attorney and ensure someone really qualifies as an I/C before classifying the person as such. As the fines and penalties can be substantial, this is particularly critical in rigid "ABC" states like California.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
September 16, 2022
Current temperatures well into the hundreds require employers to safeguard workers from heat illness.
Current temperatures well into the hundreds require employers to safeguard workers from heat illness.
Heat illness is serious and potentially fatal. The two most serious are: heat stroke (e.g., red, hot dry skin, high body temperature, muscle twitching, confusion, fainting, convulsions, unconsciousness) and heat exhaustion (e.g., dizziness, headache, sweaty skin, fast heartbeat, nausea, vomiting, weakness, and/or cramps). Heat rash and heat cramps can also occur.
Title 8, section 3395 of the Cal/OSHA regulations requires all employers to take heat illness prevention measures starting at 80° F, with escalation to high heat measures at 95°F for employers in agriculture, construction, landscaping, oil and gas extraction, and transportation of heavy industrial and commercial products that include loading and unloading.
A Cal/OSHA August 29, 2022 news release reminds employers to take these measures to protect employees:
Employers can view heat illness prevention requirements and training materials on the Cal/OSHA website, including at the Heat Illness Prevention web page and the Heat Illness Prevention tool.
Take-Aways: Employers must make heat illness prevention a major priority to avoid serious illness or death of workers. The Cal/OSHA website has good resources to assist in doing so. The five actions discussed above must be part of heat illness prevention measures both on paper and in practice starting at 80 degrees.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
September 9, 2022
To safeguard personnel as well as protect company property from theft or destruction, an employer can search and inspect an employee's workspace, such as a personal office or cubicle. Yet where should the company draw the line? Can management search a locked desk drawer? An employee locker? A purse or briefcase?
To safeguard personnel as well as protect company property from theft or destruction, an employer can search and inspect an employee's workspace, such as a personal office or cubicle. Yet where should the company draw the line? Can management search a locked desk drawer? An employee locker? A purse or briefcase?
A well-written handbook can and should answer these questions. Policy should spell out: (a) the legitimate grounds for company search and inspection of specified work areas and personal property brought into the workspace; and (b) employee option to leave personal items outside of the office if they do not wish to have them subject to inspection.
Policy elements can also include:
Take-Away:
Implement and regularly review a comprehensive, clearly written handbook with an updated and California-compliant workplace inspection and personal property policy.
We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our template handbook - which contains the above policy and much more - and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.
See also:
Cindy Bamforth
September 9, 2022
Combatting discrimination, the California Department of Fair Employment and Housing (DFEH) investigates and mediates or prosecutes complaints under the state'sFair Employment and Housing Act(FEHA).
Combatting discrimination, the California Department of Fair Employment and Housing (DFEH) investigates and mediates or prosecutes complaints under the state's Fair Employment and Housing Act (FEHA).
The DFEH also enforces state civil rights laws under:
To increase awareness of its mission and to better enable the public to access its services, effective July 1, 2022, the DFEH has been renamed the Civil Rights Department (CRD).
The CRD is the largest state civil rights agency in the United States. It is empowered "to protect the people of California from unlawful discrimination in employment, housing, businesses, and state-funded programs, and from bias-motivated violence and human trafficking."
Through https://calcivilrights.ca.gov the CRD offers updated website content, posters and brochures.
For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforthor Helena Kobrin.
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Cindy Bamforth
September 1, 2022
In recent years, disability discrimination suits have skyrocketed from the visually impaired alleging online businesses deprive their access for lack of special reader features.
In recent years, disability discrimination suits have skyrocketed from the visually impaired alleging online businesses deprive their access for lack of special reader features.
In a win for such targeted companies, an appeals court has ruled against the blind plaintiff in Martinez v. Cot'n Wash, Inc, finding Cot'n Wash's website did not violate California's Unruh Act because (a) any lack-of-access features was unintentional; and (b) the federal Americans with Disability Act did not apply to online-only enterprises.
Disabled persons are entitled to be free from discrimination. Unfortunately, however, a few mercenary plaintiffs' law firms have attempted to unreasonably extend this legitimate protection by filing dozens of suits against companies for persons who often never would have sought online patronage of those companies but for their desired plaintiff status.
While the Martinez decision eventually could be reversed by a higher court, for now California online-only businesses not engaged in deliberate discrimination against disabled users have a viable defense against such claims.
Take-Aways:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
Tim Bowles
August 23, 2022
Improper conflicts of interest occur whenever employees are involved in circumstances dividing their loyalties between the employer's best interest and the employee's or a third party's.
Improper conflicts of interest occur whenever employees are involved in circumstances dividing their loyalties between the employer's best interest and the employee's or a third party's.
Although some conflicts are legally protected, such as employee interactions with labor organizations, others, such as working simultaneously for a direct competitor, are not.
Another less obvious conflict of interest can occur when a manager wishes to concurrently romance a subordinate co-worker.
Dating a coworker can also potentially expose employers to allegations of sexual harassment, sexual favoritism (a form of sexual harassment), or discrimination. However, if an employer interferes improperly, it may incur privacy invasion claims.
While some employers attempt to avoid claims by banning all workplace dating, this may venture too far into personal matters. To balance the interests of all concerned, companies should consider a policy that (a) prohibits any such relationships that might present a conflict of interest, such as a supervisor dating a subordinate; and (b) defines the parameters of workplace romances.
If a supervisor and subordinate wish to date, the company can and should request one of the individuals to transfer to another division to avoid potential harassment claims if the relationship should ever sour.
Management is also within its rights for the couple to confirm mutual consent by a written "love contract" defining the parameters of such a relationship.
Policy elements can include:
Take-Away:
Implement and regularly review a comprehensive, clearly written handbook with an updated and California-compliant conflicts of interest policy.
We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our template handbook - which contains the above policy and much more - and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.
See also:
Cindy Bamforth
August 19, 2022
California's Paid Family Leave (PFL)is a temporary disability program administered under the state's Employment Development Department (EDD)to provide wage replacement benefits when a person must be off work in certain circumstances.
California's Paid Family Leave (PFL) is a temporary disability program administered under the state's Employment Development Department (EDD) to provide wage replacement benefits when a person must be off work in certain circumstances.
Employees eligible for PFL benefits may receive up to eight weeks of state-funded partial wage replacement for leaves of absence to care for a seriously ill family member, bond with a new child, or participate in a qualifying military event. Small businesses of up to 100 employees may apply for grants up to $2,000 per employee on PFL to offset the increased costs associated with the leave.
The EDD -- overseeing unemployment and disability benefits, payroll tax collection, and other workplace matters -- has also recently published its updated English version of the Paid Family Leave pamphlet (DE 2511, REV 20, dated 3/22).
The revised pamphlet summarizes the paid family leave benefits program, eligibility criteria, and the benefits application process and contains simplified instructions regarding the leave.
The EDD will soon release the pamphlet's Spanish version.
All California employers must distribute the PFL pamphlet to all new hires and qualifying employees taking time out from work for a covered reason.
Employers should begin using this new version by downloading it for free from the EDD's website or purchasing it from the California Chamber of Commerce or other organizations.
For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforthor Helena Kobrin.
See also:
Cindy Bamforth
August 12, 2022
Wage-related lawsuits are a booming California industry. An employer's "ounce of prevention" must include continual creation and maintenance of complete and accurate pay records. Even if a former worker's allegations are groundless, deficient recordkeeping leaves a company wide open to wage "theft" claims - e.g., off-the-clock unpaid work hours; meal period deprivation - that can be very difficult to disprove.
Wage-related lawsuits are a booming California industry. An employer's "ounce of prevention" must include continual creation and maintenance of complete and accurate pay records. Even if a former worker's allegations are groundless, deficient recordkeeping leaves a company wide open to wage "theft" claims - e.g., off-the-clock unpaid work hours; meal period deprivation - that can be very difficult to disprove.
For each employee, Labor Code 1174 and section 7 of all California wage orders direct employers to securely maintain these records at a central location for at least four years:
● Full name, home address, occupation and social security number;
● Birth date, if under 18 years, and designation as a minor;
● Time records showing when the employee begins and ends each work period;
● Meal periods, split shift intervals and total daily hours worked. "Meal periods during which operations cease and authorized rest periods need not be recorded";
● Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee;
● Total hours worked in the payroll period and applicable rates of pay; and
● When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. Employers must maintain an accurate production record supporting any employee piece pay.
All required records "shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year." An employee's records shall be available for inspection by the employee upon reasonable request.
Penalties for failure to keep and provide accurate and complete payroll records include, but are not limited to, $50 initial violation per employee, per pay period and $100 each subsequent violation to $4,000 maximum/employee (Labor Code 226(e)(1)) and another $250 initial violation per employee, $1,000 subsequent violation per employee (Labor Code 226.3).
Additional references: U.S. Department of Labor Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA); California Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual, August, 2019, section 4 "Time Record Requirements"; and Employment Development Department (EDD) 2020 California Employer's Guide, p. 78, "Recordkeeping."
Take Away: Taking the time and care to compile and preserve complete work time and pay records for every employee isn't just a good idea, it's a vital aspect of business survival 101.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also,
Tim Bowles
August 12, 2022
Notwithstanding the decriminalization of marijuana use in this state, California employers are within their rights - and right minds - to establish and enforce strict rules on employee use, possession, and/or sale of illegal drugs, controlled substances and alcohol.
Notwithstanding the decriminalization of marijuana use in this state, California employers are within their rights - and right minds - to establish and enforce strict rules on employee use, possession, and/or sale of illegal drugs, controlled substances and alcohol.
Policy elements can include:
● Requirement that all employees be fully sober and straight throughout their entire workdays;
● Clear definition of "illegal drugs" or "controlled substances" to include recreational marijuana, medical marijuana, or any substances containing THC (marijuana's mind-altering ingredient);
● Company prerogative to immediately terminate an employee for violations, including while on company or customer premises, while operating any vehicle on company business, or while operating a company-owned or -leased vehicle at any time;
● Similar prerogative to terminate an employee for an employee's guilty plea or criminal conviction for illegal sale or possession of any controlled substance;
● For an employee arrested on drug-related charges, company option to suspend without pay until the charges are resolved;
● Provision for the legal use of prescribed drugs or over-the-counter medicines so long as they do not adversely affect the employee's ability, job performance, or the safety of the employee or others;
● Rule that if an employee is aware that his/her use of permitted medication adversely affects his/her ability, job performance, or the safety of the employee or others, he or she must inform the supervisor of this condition prior to beginning work;
● Caution that if the employer, in its discretion, finds the ingestion of permitted substances appears to be preventing an employee from performing his/her work, with or without reasonable accommodation, company may direct that employee to see a doctor at its expense; company may then direct the employee to take a leave of absence without pay if doctor judges the legal substance is preventing safe and effective work performance;
● Clear criteria for company-required drug and alcohol testing in compliance with California's differing standards for pre-hire and post-hire circumstances. For example, as long as an employer applies the policy consistently, it may condition offers of employment on applicants passing a substance test. Rules for required post-hire testing must match this state's directives balancing individual privacy with company necessity to protect the health and safety of its workforce and the public; and
● Notice that an employee's refusal or failure to submit to mandatory testing may lead to disciplinary action, including termination.
Take-Away:
Ensure an updated and California-compliant drug and alcohol policy as part of a comprehensive, clearly written handbook.
We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our template handbook and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.
See also:
Tim Bowles
August 5, 2022