Category Archive: Legal Blog

  1. Misclassifying an employee as an “Independent Contractor”

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    The decision to classify someone as an Independent Contractor rather than an employee is one that carries significant risk and should not be carried out lightly. The exposure includes back taxes, missed meal and rest breaks, potential unpaid wages, and penalties if an agency determines a person was misclassified.

     

    Some of our clients are surprised when they come to us for a specific corporate question and suddenly find the conversation turning to their personnel structure when they tell us they have “independent contractors.” When we start delving in to the facts of situation, often times we will recommend someone’s status be changed to that of an employee.   A client may say, “but I have an Independent Contractor agreement…” That is when we have to tell them having an agreement is only a small factor in the overall determination of status.

     

    Many business owners are unaware of the multiple agencies that have some overlapping, but also some differing, factors as to whether someone should be an employee or an Independent Contractor. To start with, there is the common law, or case law, factors, the IRS, and EDD, which all has factors that are weighed in making a determination.

     

    If you are thinking about designating someone as an independent contractor it is recommended you consult an attorney familiar with employment law so your organization does not make a critical misstep.

  2. Did you know? It’s Getting Hot in Here – Employer Obligations for Outdoor Workers – San Diego

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    A recent amendment to the California Labor Code takes California’s Heat Illness Prevention Statute a step further by requiring “CDRPs…”  What are CDRPs you ask?  They are mandatory Cool Down and Recovery Periods to prevent heat exhaustion or stroke for workers subjected to outdoor work in high heat conditions.  The CDRP language can be found under Labor Code Section 226.7.  Although the Statute does not set a time limit for the recovery period, it does mandate that the employee should not be working during the cool down period.  For those of you who do not already know, California’s Heat Illness Prevention Statute requires employers to provide training, access to shade and drinking water for workers subjected to high heat conditions.   The addition of CDRPs provides greater protection to workers by allowing them to take an actual break from the heat rather than just carrying on work under a shaded structure or having a quick drink of water.

    Employers should be careful to follow these laws because violations would result in paying wage premiums, in addition to meal and rest period premiums, if audited by Cal/OSHA.

    This brings me to a topic, undocumented workers, which “dove tails” nicely with heat related illness for outdoor workers.  As we know, many outdoor workers are undocumented immigrants.  The question then arises whether these employees are covered by the workers compensation system given their federal immigration status.  The answer, in California, is yes undocumented workers are covered by the workers compensation system.  California codified this under Labor Code Section 1171.5.  This is not the case in all states.  Some states specifically exclude undocumented workers from coverage via their state statutes and some states simply have not addressed the issue.