San Francisco Employment Attorneys Blog

Independent Contractor FAQ’s

independent contractor

Are there some benefits of hiring an independent contractor?

Contractors are relatively cheaper than hiring permanent employees. Apart from paying salaries and other compensations, employers parts with other expenses such as payroll taxes, insurance premium among other benefits. When hiring ICs, you don’t need all these expenses. Hiring an independent contractor also minimizes exposure to a law suit.

What are some of the risk of hiring an independent contractor?

Although independent contractors offer a lot of benefits, misclassifying workers as ICs can be economically devastating. Businesses are expected to pay the IRS owed taxes with interest with a penalty of about 20%. States audit is more common, and most occur when workers classified as ICs apply for unemployment compensation after their services are terminated.

How can a business determine whether a worker is an employee or independent contractor?

There is no clear way of classifying independent contractors and the actual employees. Some of the legal test used by government employees includes the Internal Revenue Services, State Tax Departments, State Unemployment Compensation Insurance Agencies, State Worker’s Compensation Insurance Agencies, and National Labor Relation Board. Each of these institutions has different rules of classifying independent contractors and employees, and each of the agencies makes its own decision without considering what the other agencies have done.

Is it important to ask consultants and freelancers to sign written independent contractor agreements?

Yes, it is critical. Asking them to sign a written agreement helps avoid future disputes. The written agreement indicates the services that the IC is expected to perform, when he/she should perform and how much the IC should be paid. Written agreements also help to establish that a worker is an independent contractor.

Is there a specific procedure I should follow to ensure that the worker I employ is really an independent contractor?

The best way to ensure that the worker you are hiring is an independent contractor is to ask the contractor to fill out a questionnaire designed to elicit information that shows that the IC is actually running an independent business. It is also important to ask the independent contractor to provide you with documents that help to prove that the IC is actually self-employed.

Are there some specific steps I should take to avoid classification problems with government agencies? 

Yes. You should treat an IC like an independent business entity. For instance, you should not supervise, trained or want to require an independent contractor to attend specific hours or companies’ functions. If an independent contractor has completed a specific job, which he was hired for, avoid giving him another work before writing a new agreement. Also, don’t give IC other benefits or business cards.

How to Deal with Intoxication in The Workplace

intoxication in the workplace

As an employer, it is your duty to deal with intoxication in the workplace You have a duty to provide a safe workplace for your employees and anyone else who interacts with them. This means that if your employee reports to work while drunk or under the influence of drugs you should deal with him or her accordingly.

What Should I Do?

The first thing you should do in such a situation is to relieve the employee his or her duties. If the employee is apparently under the influence of some kind of substances such as alcohol, marijuana or other drugs you should ensure that the employee does not continue working.

This is mainly because working under the influence of some substances can endanger the other employees. This can also because intoxication in the workplace can cause a lot of problems and many things can go wrong.

After relieving the employee his or her duty you should then take the employee into a private room. This is because such things need to be dealt with privately, away from the other employee and your clients. You should then inform the employee that you suspect that he or she is under the influence of some substance. If the employee admits it, then you have the right to terminate him or her. But you should establish the reason why the employee is intoxicated. This is because an employee might have used a substance that was described to be legal but causes someone to be intoxicated.

What If They Deny Intoxication in the Workplace?

In case the employee does not admit to being intoxicated you can subject him or her to a drug test. If you smell alcohol on his or her breath or smell the aroma of marijuana or see the employee has bloodshot eyes or see other signs of being intoxicated you should subject the employee to a drug test.

If the employee fails the drug test you also have reasons to terminate him or her. There are simple drug tests which can be done in workplaces without having to hire an expert. However, some drug tests need to be done by professionals, so that they can produce accurate results.

What If I Don’t Want to Fire Them?

Instead of terminating an employee you can also take the employee into a rehabilitation center. For this to happen the employee must agree that he or she has a drug problem. There are various programs that can deal with such issues, even while the employee is still working.

Some programs require that the employee should stop working for a certain period so you can be rehabilitated properly. If the employee is committed to the rehabilitation program, then the problem can be dealt with effectively. Therefore, through following the outlined guidelines you can effectively deal with intoxication in the workplace if it should occur.

 

 

 

All About Pregnancy Leave in California

pregnancy leave

California has the most wide-ranging set of laws protecting women during pregnancy leave or maternity leave. The California Family Rights Act provides significantly longer job protection in the event of pregnancy complications, followed by an extended maternity leave.

Should this situation arise, the extended job protection will be honored.But can you afford all the time away from work? You can if you plan, then act accordingly.

California Family Rights Act

The California Family Law Act is similar to the Federal Family Leave Act for the care of a child in that it allows twelve weeks of unpaid leave, which is considered a vacation protected by work. Both laws apply only to employers with more than fifty employees.

The law of California is different in how a lack of work for your disability is treated. Suppose you are experiencing pregnancy complications and must leave work twelve weeks before your delivery. By the Federal Law, you will use your protected time from work.

The law of California does not take into account the time from work on your disability. This is considered by the Disability Abatement Act in California.

Seven Months of Pregnancy Leave

You will receive seven months of part-time leave with specified protection: four months before the birth if complications arise, plus six weeks to recover from childbirth, plus six weeks of communication with the child.

The California SDI and Paid Family Leave provide a partial payment of 55% for seven months, if necessary.

Will I Lose My House?

The good news is the laws of California, which protects your work for a long time at a partial payment. If this happens to you, and you are right, will your job still be there for you? Can you make your mortgage payments in seven months with a 45% reduction in wages?

While pregnant, it is important to know that you employer can only change your position and job responsibilities if your pregnancy makes you unable to perform your required duties.

Through the actual maternity leave, your employer is obligated to reimburse you the equivalent amount of what you would receive on short term disability. Upon completion of the 12 weeks, your employer is obligated to restore you to the same pay and the same or equivalent position as your old job.

What Will Determine Your Benefits

In 2002, California led the way to take paid family leave, and other states, such as Massachusetts and New Jersey, take into account the next lawsuit. And not all states allow women to take short-term disability leave to cover childbirth, childbirth and post-natal recovery.

Your employer may have practices that dictate the order in which you can take different types maternity or pregnancy leave. In any case, you will want to start exploring your options as soon as you can. During your pregnancy, make sure that all your documents are ready and assembled before the baby’s arrival.

What to Know About Military Sick Leave in California

sick leave

Both California law, as well as, the federal laws include provision for protecting all employees, including military, some paid sick leave. In 1994 the Uniformed Services Employment and Reemployment Rights Federal Act provide for permanent military employee’s job and benefit protection.

The military act prohibits employers from discriminating against any member of the military forces, which mean that California cannot discharge an employee just because of his/her military duties or training. This Protection Act covers all employees including members of National Guard from other states. It also covers all businesses regardless of size.

Military Leave for Spouse and Family

For Military Leave for Spouse and Family, all employers with over 25 employees are required by law to grant their employees up to 10 days unpaid off when their spouses are home on leave even during a military conflict. The military spouse who wishes to take time off must give notice to the employer within two business days and must provide their request on a written documentation.

Employers can allow their employees to utilize their accrued paid sick leave, paid time off or vacation during this leave, although it is not a requirement.

The employer is also required to allow spouse, parent, child or next of kin who is a member of the military to an emergency leave of up to 26 weeks to care for a soldier who may be undergoing medical treatment.

According to the act, employers should always remain proactive in notifying their employees about potential military leave options that are available to them. Employers are mandated to provide notice to all employees under USERRA that includes their obligations, benefits, and rights.

Sick Leave Rules

The sick leave in California demands that the call-up notification to employers should be provided in advance and can be either written or verbal. An employer may request copies of documents proving this.

If an employee goes on leave during the period of active duty, he/she is not entitled to receive pay. Employers may, however, pay their servicemen a lower salary during such leave.

According to USERRA employees who leave their usual job for military duty should be given same treatment as required under employer’s leave policies. Employers should provide continuous health coverage for up to 24 months.

 

The health coverage may be terminated before the end of the 24-month period if an employee fails to return to work without proper reasons. If the military sick leave in California is longer than 31 days, the employer may charge the employee up to 102 percent of the cost of the period.

A Non-Compete Agreement Overview

non-compete agreement

With today’s high employee turnover and diminishing company loyalty, the risks of having intellectual property, confidential information, and customers walk out the door with ex-employees have grown tremendously. As a business owner, it is vital that you address these risks by developing confidentiality policies and non-compete agreements.

Non-Compete Agreements for your business should be drafted by attorneys so they meet particular company needs, conform to relevant state laws, and are deemed enforceable.

Under a Non-Compete Agreement, an employee agrees not to compete with the employer after employment ends. Confidentiality covenants are generally also included in such agreements. In enforcing such agreements, courts must balance the need to protect its interests with the employee’s need to make a living. Therefore, the documents must be very carefully drafted to ensure enforceability.

There are a few issues to consider when implementing non-compete agreements

Competition

Competition must be carefully defined. In general, the more narrowly this term is defined the more likely it will be able to be enforced. If you define competition as companies in any field related to your industry, you will be too broad in your definition and have difficulty enforcing after an employment split.

Customers

Customers or a specific type of customer must be clearly defined if customer relationships are to be protected.

Goodwill

The good relationship an employee or company has with a customer is an asset that belongs to the company. However, courts closely examine the nature of the employee’s responsibilities and relationship with customers to determine whether goodwill is threatened.

Limit Your Non-Compete Agreement to Key Employees

Key employees with significant responsibilities and/or regular customer contacts are more likely to be restrained from competing. Non-competes for lower level employees are hard to justify.

Confidential Information Must Be Clearly Defined and Identified

The only information that may be protected is confidential information. Courts consider the importance of the information to the business, if the information is otherwise available to third parties, and what restrictions were implemented to prevent its disclosure. Be careful not to be over-inclusive in your definitions of what you consider to be confidential.

Start from the Beginning

Non-compete agreements must be supported by consideration. In other words, employers must give something to the employee in exchange for his/her promise not to compete. Hiring an applicant generally, provides the necessary condition.

 

After employment has begun, additional consideration may be required, such as a signing bonus, a promotion, or a pay increase. However, such agreements are stronger and more easily enforced if signed at the start of employment.

Agreements

Agreements must be negotiated in good faith and be restricted in time and location. These concerns are particularly important in today’s high-tech environment where information becomes obsolete quickly and markets change daily. In some industries, one year can equate to several generations or an eternity.

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Federal Contracting in California

federal contracting

A federal contractor is a person, company or any other entity that is involved in a contract with the federal government of the United States, which buys the contractor’s products or services. Federal contracting is regulated with a strict set of specific terms and conditions, which means that federal contractors work under special laws in different condition than individuals or other entities in the private sector.

 

Laws and Regulations

Laws and regulations applied to federal contracting are also applied to their subcontractors. Subcontractors work with prime contractors to help them provide final products, goods or services which the government acquires.

 

Federal contracts are subject to specific labor laws, which means federal contractors must be in compliance with various laws that protect workers in their workplace. The Office of Federal Contract Compliance Programs (OFCCP), as a division of U.S. Department of Labor Employment Standards Administration, makes sure that employers who work with the government are in compliance with distinct laws which prevent discrimination and impose affirmative action.
Fighting against discrimination is implemented in the core of these laws.

 

Therefore, according to Executive Order 11246, every government contractor who does over $10,000 in government business per year is strictly forbidden from discriminating against workers on the basis of race, color, religion, gender or nationality.

 

Disabilities

 

Section 503 of the Rehabilitation Act of 1973 also states that they are prohibited from discriminating workers with disabilities and mandates affirmative actions to help disabled workers in becoming more qualified employees. Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) obliges federal contractors (who do over $25,000 in yearly government business) to prevent discrimination of individuals with veteran status and also provide affirmative action in all employment or advancement practices for qualified veterans.

 

Equal Opportunities

Federal contractors are also required to comply with basic requirements set by the Equal Employment Opportunity Commission (EEOC). This means they must prevent discrimination, post Equal Employment Opportunity (EEO) posters, include an EEO statement in employment advertising, keep records and file EEO reports on a yearly basis.

In addition to being legally protected from discrimination in the workplace, workers who work for federal contractors also enjoy other benefits.

 

In September of 2016, a law was established to secure paid sick leave for federal contractors. In addition, federal contractors and their workers have the right to know how much their colleagues are getting paid.

 

Pay transparency makes sure that every individual gets valuable information to help them negotiate a fair paycheck, which prevents improper treatment to workers.

 

Employees of federal contractors have the right to file a complaint if they believe they have been mistreated or discriminated in any way.

Gender Identity Discrimination Laws in California

gender identity discrimination

Gender identity discrimination against the LGBT community in the workplace has been documented for decades. Thanks to several internal policies and laws, the situation has improved from what it was 10 or 15 years back. But even now, discrimination is there.

 

A study conducted by the Williams Institute found that somewhere between 15 percent and 43 percent of employees have been fired because of their LGBT status. The situation is even worse for transgender employees. Around 78 percent of transgender employees face harassment at work.

 

Although the federal law doesn’t offer much protection to LGBT community, the California Law is in favor of LGBT community. In 1992, FEHA was signed. FEHA provides the LGBT community protection against discrimination in the workplace on the basis of gender, sexual orientation, and gender identity.

What Constitutes Gender Identity Discrimination at the Workplace?

Some of the discrimination cases can be very obvious and some may be a bit subtle. The following are some examples of sexual discrimination:

1. Paying smaller wages to the LGBT community even though they are doing the same amount of work.
2. Giving promotions to employees who are less qualified but not part of the LGBT community.
3. Not giving a job offer or firing an employee because he or she is from LGBT community.

Apart from harassment in the workplace, California Law also offers protection to the LGBT community from adverse employment actions. In California, it is also illegal to discriminate against an employee on the assumption of his or her sexual orientation from their appearance.

 

Hence, it doesn’t actually matter whether the employee is from the LGBT community or not as long as all employees are treated equally.

Can Your Employer Force You to Wear a Uniform?

All the employers have the right to implement their own dress codes. However, it should be appropriate and in accordance with the gender. Your employer cannot force you to wear a uniform which doesn’t conform to your identity.

All the employees also have the right to access a safe and appropriate washroom facility. If you are not given a washroom which conforms to your gender’s identity, then it will be considered as harassment.

If you feel that you are being discriminated against because of your gender, then you should immediately consult a lawyer and take the necessary steps. This is a very serious offense and you shouldn’t just let it pass. Lawyers will first assess the legal rights which you have, evaluate your claim and chalk out the perfect strategy for your case.

Illegal Interview Questions and Topics

interview questions

It is normal that during job interviews, the employer will try to gather as much information as possible about you, but keep in mind that it is against the law for the employer to ask about or bring up certain topics. Keep an ear open for possible illegal interview questions. Sometimes this might be hard to catch, as they are usually pretty simple and common questions. FEHA (California Fair Employment and Housing Act) declared that topics are that off-limits can fall under:

  • Racial / ethnic background and national origins
  • Age (over 40)
  • Religion
  • Marital status
  • Sexual orientation
  • Sex / Gender
  • Arrest and conviction record
  • Medical conditions and physical disabilities
  • Children

These interview questions can take in the form as:

  • Do you have any kids?
  • Do you take part in any religious holidays?
  • Have you ever been arrested in the past?
  • What country do you come from?
  • Do you socially drink?
  • Of what ethnic background is your accent?
  • Are you planning on retiring in the near future?
  • What is your credit score? Do you currently have any debt?
  • When was the last time you used drugs?
  • Are you pregnant?
  • How old are you?

Though seemingly innocent questions, these questions are not legal as they can make the interviewee subject to discrimination. FEHA (applies to companies with five or more employees) prohibits employers from asking interview questions related to any of these topics, either it be during an in-person interview or in an application form. Questions about physical ability are permitted when the job being applied involves physical activities, and the employer would need to know if the applicant would be physically able to do certain tasks. This also applies to the rest of the mentioned illegal interview topics as well.  These laws were implemented to ensure that the employer would make hiring decisions based on characteristics that really mattered, such as skills, experience, and attitude.

 

Medical Privacy Laws in California

medical privacy

Medical Privacy Laws in the Workplace

Medical records related to a person’s medical history are made when a person receives treatment from a health professional. The same documents can cover medical history, lifestyle choices like smoking or participating in high-risk activities, and family medical history. It is not rare that these include lab tests, prescribed medications and results of a medical procedure that the was received.

Medical privacy represents implications related to privacy for any employee, if there is a chance the employer is accessing this information for some reason. If this does occur, the law in the US state of California is triggered and there are key points of how this takes place.

When Can an Employer See My Medical Information?

The law in California allows the employer to access medical information about their employee, but it must be related to a legitimate business reason. The information can be volunteered, like in the case of sick leave, or it can be requested for things like forms used for workers compensation claims.

In any case, the information can be attained by the employer, but it both must be related to the business and has to be kept private inside of the organization.

Americans with Disabilities Act states that employers cannot ask for medical tests as a basis of getting a job, meaning that tests cannot be asked for as a requirement for employment. Additionally, the same act forbids anyone from demanding their employees to take a medical test as a way of avoiding them from losing their job.

What Is HIPAA?

The federal Health Insurance Portability and Accountability Act (HIPAA) represents a standard that is valid nationwide and which regulates the problem of privacy of health information. In other words, it shows the employers how medical records are disclosed and used.

It states that employers must give notice when dealing with written privacy procedures, restrict the use of this information inside of their organization and finally, it asks for the appointment of a dedicated privacy officer and the training of their staff on this issue.

With this information, anyone will be a lot more suited to understand any relevant issue related to medical privacy in the workplace and will allow them to better prepare themselves and protect their personal information in the same working environment.

A business that wants to collect medical information from individuals for direct marketing purposes must first get written consent and must clearly disclose how the information will be used.

Work Injuries in California

Work Injuries

Those who are injured at work in California, USA get their particular privileges in their work. Workman’s compensation provides insurance and services for employees that may be hurt on the job. Workman’s compensation CA has different rules than other states. All states can transform, although the fundamental idea is mainly the same.

The worker’s compensation system is a no-fault injury system, meaning it is not the employee’s fault that they were injured. Nor was it the employer’s fault that the employee was injured. The employer carries workers compensation insurance to pay for any injuries. The cost of the insurance may very well increase for the employer when a claim is made. But that is just the way the system works.

Employees have the to speak with your physician at no cost individually if hurt while working. The worker is given healthcare to think about treatment of their injuries and to get nicely to possess the ability to return to work. A business legally cannot fire the worker because of the injuries. The employer must retain an issue of employment that is equal in spend and stature that the employee held before injuries.

Once the hurt worker completes the documents and submits it to the employer, the process will need time. After the documents are filed with the insurance provider, it is out of the employer’s hands. The insurance provider produces all options. They conduct the analysis into what happened and the validity of the claim. They decide what will and will not be covered, the pay of wage benefits to the employer, payment to the medical companies, and eventually, the termination of benefits because of their determination if the worker is healed otherwise.

In most cases, the worker’s compensation process runs smoothly, and the employee is treated properly. However, there are times that there is a fight that ensues with the insurance company because they don’t think the employee was hurt on the job. This is the time when the employee should hire an attorney. This situation can take a lot of time to resolve. All the while, the employee has been injured, cannot work, and has no income. The insurance company usually fights because there will be a large amount of money they will be required to be paid out, and they simply don’t want to. They will find any reason they can to deny an injured employee. This doesn’t always happen though. A lot of workers compensation claims are clear cut and taken care of promptly.

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