Independent Contractor: Suing for Unpaid Wages & Overtime

Many employers misclassify employees as independent contractors in an effort to save money by not having to pay certain payroll taxes, Social Security, unemployment benefits and more. Employers having independent contractors are also not required to maintain records. Independent contractors are also not able to sue employers for discrimination, unpaid wages and overtime, meal and rest breaks and more.

Is the independent contractor actually an employee? Many times, Yes.

If the courts find that the independent contractor was actually an employee and thus misclassified in error by the employer, then the independent contractor gains all rights as an employee. The newly court classified employee is then able to sue for unpaid overtime, wages, missed meal and rest breaks, and will often be compensated heavily.

Lawyers know it does not matter whether the employer or the worker both believe the worker is an independent contractor or whether the worker signed an independent contractor agreement. What matters is how California Wage and Hour law defines a worker and independent contractor.

The key issue defining whether a worker is an employee or independent contractor is the employer's right to control how the worker performs work. If the employer has a right to control the work, then the independent contractor is actually an employee as set out by California Wage and Hour laws. In June 2014, the California Supreme Court ruled (Ayala v. Antelope Valley Newspapers, Inc.) that it does not matter if the employer does not exercise that right. Any time an employer has a right to control how work is performed, the worker is an employee, regardless of any contract that was signed.

Employee Vs. Independent Contractor

Generally speaking, when an employer controls where, even if in different places, and how work is performed, then the worker is an employee. A more detailed analysis of the employment test is done by the courts using the Borello factors.

Examples of how an employer may control a worker:

• Giving the worker a schedule of work hours or scheduling work hours and days
• Telling the worker to work at specified location(s)
• Telling the worker how to do the work rather than just telling the worker the end result expected
• Telling the worker that s/he may be fired for any reason or simply firing the worker without allowing the worker to give an end result and fulfill the contract

The evidence used most by civil lawyers to prove an independent contractor was or is actually an employee are requirements set by an employer that do not give the independent contractor the freedom to do his or her job. As defined by law, independent contractors can do work where ever and however they want as long as they deliver the end result promised. For instance, an independent contractor may get hired to build a website. An independent contractor may choose to build the website at home and may schedule his or her own hours without any need or requirement to tell the employer how the work is to be performed. Hence, the contractor is independent and performing by free will.

When an independent contractor comes to the realization that s/he may have been misclassified and may actually be or have been an employee as defined by law; usually the worker will want to sue for unpaid wages and various privileges generally given to employees. If you suspect you may have been misclassified as an independent contractor, speak to a civil attorney with expertise in this matter now and call 855-200-ATTY (855-200-2889) now.

Employees misclassified as Independent Contractors sue for:

• Unpaid wages
• Unpaid overtime
• Missed meal and rest breaks
• Unemployment benefits
• Unpaid Social Security
• Unpaid taxes
• Workers' compensation
• Health benefits
• Retirement benefits
• Work expenses
• And more

When many misclassified independent contractors work for the same company, it is generally much less expensive and much more powerful to have a class action lawsuit filed against the employer. In the past, it was more difficult to get class action certification for independent contractors in California wage and hour cases. On June 30, 2014 a California Supreme Court ruling changed the litigation landscape on the part of independent contractors and made it much easier to get class action lawsuits filed. The ruling essentially made it much more feasible for a group of independent contractors to sue the employer and get compensated for damages at a lower cost. Civil attorneys from the same law firm can work on behalf of all the workers as opposed to each individual worker having to hire their own attorney from different law firms. Although in the end, the cost of the attorney(s) will be paid for by the employer. LibertyBell Law Group's lawyers in Los Angeles can be hired on a contingency basis, which means the worker does not pay for representation.

If you have been or are currently an independent contractor and would like to know if you have been misclassified and how California law defines employees and independent contractors, it is vital to speak to our Los Angeles lawyers immediately to preserve evidence and get the most compensation for your case. Call 855-200-ATTY (855-200-2889) now!

Lawyers on Common Business Violations & Lawsuits

Lawyers stress that all businesses, small to large, need to be certain they are in compliance with state and federal laws on labor and civil laws. Law enforcement is cracking down on employment law violators and significantly increasing their budgets and efforts to prosecute and bring civil lawsuits against business owners. It is vital for the owner of a business to get counsel from a lawyer, now more than ever.

Read more about common business violations, statistics, and criminal charges that can be made against a business owner not in compliance and a telling infographic in the press release titled LibertyBell Lawyers on Common Business Violations and Lawsuits. (Click the image on the page to view larger).

Los Angeles Civil Lawyers Back Immigration Reform in Employment

Los Angeles civil lawyers from LibertyBell Law Group back immigration reform in employment. On the federal level, legislators are considering sweeping reforms in immigration, such as H1B visas. In Calfornia, civil lawyers are applauding the immigration reforms in driver's licenses, in-state tuition and more soon to be realized.

Recent research by the American Enterprise Institute shows that for each 100 immigrant workers who gained advanced degrees from U.S. universities an additional 262 American jobs were created. After graduating many immigrants go on to form private businesses. In fact, 20% of small business owners are immigrants according to the Fiscal Policy Institute.

The best civil attorneys in California know how vital immigrants are to the economy as many possess an entrepreneurial spirit and are determinant innovators. In fact, 75% of the patents awarded in 2011 by the top universities were to immigrants.

Our civil lawyers who defend immigrants in matters of employment know all to well the obstacles and unjust treatment facing many of them. Fortunately, as research lifts the veil on employment and small business job creation, Congress is taking a hard look at immigration reform in 2014.

Whether it be an employment or a criminal matter that is hindering your stay in Los Angeles or you feel you may be deported; contact our civil lawyers in California. Our Los Angeles employee rights lawyers have the experience and expertise to protect you in employment and make sure you are receiving fair compensation and are getting mandatory meal and rest periods, regardless of your citizenship or green card status, illegal or not.

If you are being investigated for a crime it is imperative you contact our civil and criminal lawyers immediately to prevent deportation. Criminal federal immigration laws are much broader than state laws and can have you deported even if you do not get convicted or get just a misdemeanor.

For matters on employment or wage/hour call our Los Angeles, California civil lawyers now at 855-200-2899. For criminal and immigration defense matters, call our federal and criminal lawyers now at 855-200-ATTY (855-200-2889).

Civil Attorneys on Fraud for Unpaid Bonuses & Breach of Contract

Attorneys representing plaintiffs won an appeal recently, Moncada v. West Coast Quartz Corp., claiming fraud and breach of contract. The employees' civil attorneys had filed a lawsuit for unpaid bonuses promised repeatedly over the course of 5 years. The sole shareholders of the business promised bonuses and "enough for the employees to retire" if they stayed and worked for the company until it was sold. Employees were promised by shareholders that they would be rewarded for their loyalty. The bonuses were to be paid after the sell of the company. The contract dispute came into light when the business was sold and no bonuses were paid.

The civil court did dismiss some of the claims, such as intentional infliction of emotional distress and equitable estoppel. The judge upheld misrepresentation (fraud), breach of contract, and promissory estoppel. The employees' attorneys successfully argued that if the allegations were true, the actions by the defendants would coincide with promissory fraud.

Elements of Fraud:

1. Representation made by the defendant was false
2. The defendant intended to defraud
3. The defendant knew the representation was false and misstated or concealed a material fact
4. The plaintiff was unaware of the fraud and may have acted differently if made aware of the fraud
5. The plaintiff has suffered damages as a result of the fraudulent misrepresentation

Promissory fraud is a type of fraud wherein a promise made by a defendant, without intending to ever perform it, and induces a plaintiff to enter a contract.  Attorneys know that false promises made to induce a person or entity to take action in a contract or for employment are actionable in a civil lawsuit. A claim of promissory fraud is a common way for civil attorneys to win punitive damages for breach of contract.

Promissory Fraud is often done in these industries

• Employment
• Real Estate
• Securities
• Loans

Difference between Fraud and Breach of Contract

California civil attorneys know oral contracts can be enforceable except for a few exceptions. When an oral contract or agreement is broken, in California, it can result in a court ordered breach of contract or fraud and payment of damages. The main difference between fraud and breach of contract is intent, though both can be acknowledged in court simultaneously. Experienced civil attorneys for the plaintiff also seek and successfully gain more compensation from fraud than breach of contract.

Our civil attorneys in California know how powerful a claim of fraud is and how much more effective it can be in obtaining compensation for punitive damages. However, it is vital for you to seek expert counsel from a civil attorney in pursuing fraud for breach of contract. Litigation for fraud can be costly as the elements of fraud must be proved. If the elements for fraud exists beyond hearsay and much evidence exists, your civil attorneys may counsel you on seeking a settlement and winning punitive damages without a lengthy jury trial decision. The defendant may be well aware of the fact that an expensive jury trial will result in more money paid out and lost. LibertyBell Law Group's civil attorneys always have the best interests of the client in mind. Call civil attorneys now at 855-200-ATTY (855-200-2889)  to get advice on your fraud or breach of contract matter.

Civil Attorneys Note new Employment Law Protects Outdoor Workers

Civil attorneys are taking note of a new California employment law, SB-435 Compensation: meal and rest or recovery periods. The new law amends Section 226.7 of the California Labor Code. The employment law requires recovery periods to be given to outdoor workers as necessary and if the employer fails to provide recovery periods the employer will be forced to pay the employee one additional hour of pay for each missed recovery period. Civil attorneys express that "recovery periods," which may also be referred to as rest periods, specifically addresses the needs of outdoor workers while working during hot weather.

Outdoor Workers most Affected by New Employment Law:

• Agricultural
• Construction
• Landscaping
• Oil and Gas Extraction
• Transportation (not those working in air-conditioned vehicles and not those loading and unloading). 

Civil attorneys speculate the new California employment law will raise litigation lawsuits and settlements. Especially, class-action cases against employers who do not make adequate adjustments or train supervisors to assimilate with new labor requirements. Civil attorneys know the new employment law is attempting to minimize cases of heat illness and deaths prompted by recent research.

Civil Attorneys advise California employers with outdoor workers on these Cal/OSHA rules:

• Provide training to supervisors, managers, and employees on recognizing symptoms of heat illness and how to prevent it, risk factors of heat illness, acclimatization, and importance of drinking water.
• Provide 1 quart fresh water per hour to each employee and encourage employees to drink it.
• Provide access to a shaded area within 2.5 minutes walking distance where employees can cool-down from the heat. 25% of the employees should be able to access shade without touching each other at all times.

If you are an employer and want to minimize your exposure to lawsuits, class-actions, and or California penalties, consult with a civil attorney. A California civil attorney with employment law expertise can review your employee manuals, documents, training materials, procedures and more to affirm your compliance with all state and federal labor laws and regulations. There are many new state and federal laws, including current labor, wage and hour laws that are made or constantly being amended. California legislators and courts expect employers to be in compliance at all times.

Don't risk yourself or your business to very costly and debilitating legal problems, call an experienced civil attorney now at 855-200-ATTY (855-200-2889).

The list and information above is not exhaustive, visit the complete guide for Employers by the California Division of Occupational Safety and Health for more information on prevention of heat illness.

Attorneys Note New Labor Law Protects Illegal Immigrant Employees

California attorneys note a new labor law, SB-666 Employment:retaliation, that protects illegal  immigrant workers and family members. The labor law prohibits employers from making threats to an employee about reporting an employee's illegal status when the worker complains.  SB-666 also protects workers from an employer's retaliation, such as firing or discriminating against the employee, when the worker complains. SB-666 protects past, current and future employees alike.

The new labor law also prohibits attorneys from using immigration related threats to workers complaining or reporting on ill working conditions. The law seeks to end the threats made by attorneys representing employers to prevent illegal immigrant workers from testifying, giving a deposition, or voicing their rights. Attorneys may be disbarred, suspended or given other discipline for reporting or threatening to report the immigration status of a witness, including his/her family member, for voicing employment rights.

Making immigration related threats about an employee's family members by an employer or an attorney is also illegal.

Punishment for Employers Making Immigration Threats to Employees:

• Suspension or revocation of business or professional license
• Civil penalty of $10,000 per employee for each violation
• Pay unpaid wages for hours worked or not giving lawful meal and rest periods.
• Other fines and penalties may apply

California attorneys who work on employment cases and matters know that undocumented workers are the most vulnerable and the most subject to abuse by employers not following Federal and California laws regarding labor. Most undocumented workers typically work in low-wage jobs such as manufacturing, construction, agriculture, and service industries. LibertyBell Law Group's California civil attorneys regularly represent and win wage and hour cases for illegal immigrants, most of which are resolved quickly through a favorable settlement.

A 2010 UCLA study, ("Wage Theft and Workplace Violations in LA: The Failure of Employment and Labor Law for Low-Wage Workers"), found 76% of undocumented workers worked without pay and 85% did not receive overtime pay. Immigrant workers were also more likely to be killed or injured on the job.

If you are an illegal immigrant or undocumented worker and want to know your employee rights in California, click here. If you believe your employer is acting unlawfully, call us at 855-200-ATTY (855-200-2889) and speak to an attorney with expertise in employment matters in California.

If you are an employer and want to make sure your business is operating within the confines of California and Federal laws, need your employment manual reviewed, or need your operating procedures and policies reviewed or advised on, call our expert civil attorneys now at 855-200-ATTY (855-200-2889).

Attorney's Fees for Wage and Hour California Cases: Who Pays?

A new law regarding attorney's fees for wage and hour California cases will only affect employers. An employer will generally have to pay for attorneys, not just their own, but also the plaintiff's attorneys, when losing a wage-hour lawsuit because of unpaid overtime, unpaid wages for hours worked, not giving lawful meal and rest periods, not paying at least minimum wage (even to illegal aliens and non-citizens) and more. In the past, now and only until January 2014, when the new law takes affect, employers who won wage-hour lawsuits were able to recover fees paid for attorney(s) that represented them.

Governor Brown signed the new law SB-462 Employment: compensation, amending California Labor Code §218.5. The new employment law states that if the party seeking action is not an employee, ""attorney’s fees and costs shall be awarded ...only if the court finds that the employee brought the court action in bad faith." In lay terms, or terms non-lawyers understand, what "employee brought the court action in bad faith" means is that an employee filed a lawsuit against the employer and was acting maliciously and deceitfully by intending to hurt the employer. Proving that an employee bought a wage and hour lawsuit against an employer in bad faith is extremely difficult to prove by attorneys. The employer's lawyers would essentially have to prove that the employee was attempting to sue the employer not to recover unpaid wages but rather because the employee wanted to hurt the employer.

When an employee sues for unpaid wages and wins, the employer must pay for the employee's fees. This will not change. It is postulated that when an employee loses the lawsuit, that is, the employer wins the wage and hour case brought against him, the employer will not be able to recover his attorney's fees when the new law takes affect.

 

Employees Don't Pay Out of Pocket for Wage and Hour California Lawsuits

California Employment law has not changed in regard to the fees that employees pay for their lawyers, which are generally paid on contingency. Employment attorneys representing employees don't usually charge for representation, but rather they charge a fee based on the amount recovered from a settlement won. This type of fee arrangement is a win-win for both the employee and the attorneys, as the employee pays no attorneys' fees and it motivates the lawyers to get the highest settlement possible and also get the settlement paid out as quick as possible.

Opponents of the new law argue that it will increase the number of frivolous lawsuits regarding wage and hour matters. However, other employment attorneys have a different opinion; lawyers don't file wage-hour lawsuits and waste their time if they know there are no grounds for the case and they don't believe they can win. After all, attorneys representing employees are not paid hourly, they are paid by contingency which means the California lawyers will only be paid if they win the employment case.