Thursday, December 12, 2013

Still the Best Policy

"Honesty never damages a cause that is just."
-- Mahatma Ghandi

Recently, a client mentioned to me a fact about his case that could reflect poorly on him. He asked me if, when testifying about it, he could say, "Well, the reason was X." My question: "Is X true?" He cast his eyes down, and admitted it wasn't. I told him he couldn't testify that it was.

Putting aside any ethical or moral issues, there are lots of practical reasons to be honest in litigation.

Many people say that the law isn't about a search for the truth. I think it is, and to prove it, there are plenty of ways the legal system seeks out and punishes the untruthful.

1. The Law's Gonna Getcha

For example, people or companies that file for bankruptcy have to list all of their assets so that the court can make determinations about their finances. Sometimes they don't list a pending lawsuit as an asset, even though they have a possibility of making money at it. If the civil court decides the omission was inadvertent or a mistake, no problem. But if the civil court decides it was intentional, it can throw out your lawsuit using a rule known as "estoppel." The judge isn't even required to give you a chance to explain yourself.

Another example: a couple gets divorced. During the proceedings, the husband states, under penalty of perjury, that he has no stock in the company where he's the CEO. When he's later fired, and sues for his millions of dollars in stock, the company shows him his prior statement in the divorce court. The CEO is out of luck.

In other words, the legal system requires honesty, and it imposes severe penalties if it finds someone hasn't lived up to that standard.

2. No One Will Believe You

This isn't just finger-wagging -- it's practical advice from a lawyer who has had clients torpedo their own cases by being dishonest. You have to assume the other side knows all the bad stuff about you, because they probably do. If you're caught in a lie, you may as well write the other side a big check, because it's going to cost you in terms of the value of your case.

In any employment case, the most important witness is always the plaintiff/ex-employee. Good facts are of course necessary, but it's also critical that the jury like you. And they will often hold you to a higher standard than they hold themselves, requiring a high degree of honesty before they will find in your favor. It's unfair, but this post is all about the practical benefits of honesty, not fairness.

3. Your Lawyer Will Look Bad

I always tell my clients: Tell me the bad facts. Don't let me be surprised by the other side. I can deal with any set of bad facts. What I can't deal with is being shown by the other attorneys that my client doesn't tell the truth.

When you hire a lawyer, you are depending on that person to bring about the best results for you. Your lawyer can't do that if you don't discuss everything, both good and bad, about your case. Hiding facts or lying about facts to your lawyer not only doesn't do any good -- remember, the other side probably knows about your concerns anyway -- but it will hurt your case by making it look like your lawyer doesn't understand the issues.

Whether the law is actually about the search for truth or not, it certainly tries to be, and it is unforgiving to lies both big and small. Owning up to bad facts, and being perceived as honest, just works a lot better.

Monday, November 11, 2013

Simple Human Decency: A Rant on Unacceptable Racial Slurs

I'm going to discuss the recent news about the Miami Dolphins, and the words major league football player Richie Incognito said to fellow player Jonathan Martin. I'm using this incident to point out an important principle about simple human decency.

We'll call it The First Principle: It is never okay to insult someone with racial slurs. There are no circumstances and no context in which this is okay. It is always unacceptable.

That's so important, I'm going to say it again: IT IS ALWAYS UNACCEPTABLE TO INSULT SOMEONE WITH RACIAL SLURS.

With that out of the way, we should all feel some horror that Mr. Incognito and his enablers in the Miami Dolphins organization have tried to paint Mr. Martin as blameworthy somehow. Somehow, they've managed to convince a certain segment of the country to interpret Mr. Martin's decision not to comment as meaning that he brought on himself getting called a "half-n-gger" and having his "real mother" slapped across the face.

Now Mr. Incognito is working the talk shows, telling people he didn't mean to hurt Mr. Martin, and that he's not a racist, and sometimes Mr. Martin has used the term "n-gger" himself.

If you're disgusted by what Mr. Incognito is saying, I'm with you. If what he's saying sounds persuasive to you in any way, go back to The First Principle.

This incident has tapped into an ongoing debate about whether African-Americans can use the n-word when talking to each other (because Mr. Incognito brought that up as a justification for his own words). Unless you're African-American, you don't get to decide that. You get to have an opinion, but make sure that you understand that your opinion about it isn't really all that important. And whether it's okay or not for African-Americans to say it, it never, ever justifies the use of that racial slur by someone who is not an African-American.

I felt moved to write this entry because Mr. Incognito and Mr. Martin are co-workers. They're highly paid, high profile co-workers, but they're still co-workers. Mr. Incognito is paid a lot of money to play a game that children like to play in sandlots and on grass fields, but he attaches such importance to what he does for a living that he tries to justify his use of racist language in the spirit of building camaraderie and ultimate success on the football field. I think Mr. Incognito needs a little perspective.

Federal law prohibits harassing a co-worker on the basis of race, sex, religion, disability, and other protected characteristics. To violate the law, the harassment has to be so severe or pervasive that it fundamentally alters the nature of the workplace.

Nothing in the law requires that Mr. Incognito have "intended" to hurt anyone. Harassment (unlike discrimination) is viewed from the reasonable perspective of the harassed person.

Yet the statements Mr. Incognito and his Dolphin cohorts have been making are typical of the harasser's profile. Mr. Incognito says he's not a racist, which is irrelevant, because whether he's a racist or not, his words were unacceptably racist. He says we should examine his words in context, that Mr. Martin didn't mind in the past, and no one ever complained before.

In other words, he's saying that Mr. Martin didn't mind before; what's the big deal now?

In the real world, it sometimes takes a while for the abuse to build to the point that the victim finally objects. Pretending that the victim should always say something the first time he hears an ignorant slur is just nonsense. Worse, it's dangerous nonsense, because it allows the perpetrator to blame the victim for not getting offended fast enough.

Everyone has the right to work in a place that's free of illegal harassment, where you can do your job without abuse that's based on a protected characteristic. It's not just the law; it's simple human decency.

Sunday, November 3, 2013

What if your Job is in Jeopardy?

People frequently want to know what to do if they feel they're being illegally harassed at work, or if they think that they're about to get fired for an illegal reason. The answer depends on what your goal is, and what your particular situation is like.

First of all, remember that most types of workplace harassment are not illegal. Harassment is only illegal if it's based on a protected characteristic, like race, age, sex, religion, disability, or a handful of others. If you're being harassed at work, but it's not because of a protected characteristic (and you're not in a union), you probably have no legal recourse at all. Consider trying to address the problem internally, either with the person harassing you, that person's supervisor, or with human resources. Remember, though, that your complaints of legal, but harassing, activity can get you fired, and again, there's no legal recourse for that. So consider carefully whether what you're experiencing is something you can live with, or if you feel the need to do something about it at the risk of experiencing retaliation without recourse for you.

So let's assume for the moment that you feel you're being illegally harassed because of a protected characteristic, or that you think you're about to get fired for an illegal reason. What do you do about it?

My best advice is: Do what you can to address the situation, while keeping your job and avoiding a lawsuit. Sometimes that means looking for another place to work, and not saying anything until you've found one. Even if it's not the best thing for having a lawsuit later, the odds are good that you'd rather have a job than a lawsuit, especially in a rotten economy.

Look, the people who I help usually have no reasonable options available to them other than filing a lawsuit. They've been fired, or the illegal harassment they've suffered is so extreme that the law needs to address it. The legal system, however, needs to be looked at as a last resort. It's ugly, expensive, time-consuming, and your time and energy would be better spent finding a new job and getting on with your life, if you can manage it.

If you nonetheless feel the need to protect your legal rights, the first thing to do is to buy a journal. In that journal, write every harassing or discriminatory act as it occurs. I don't mean every sideways glance that your supervisor gives you (no one, including juries, likes a complainer), but things that actually affect you economically or extremely outrageous conduct. Don't write anything else in that journal; it may be shown to a jury in the future, so no doodles, no grocery lists, nothing like that. Make sure to take that journal home every night, because they have a way of disappearing when left at the office.

Also in that journal, write everything you remember that happened previously. Don't try to pretend that you're writing it as it happened; make it clear that you're recalling it as well as you can.

Consider making a complaint to the offending person or to that person's supervisor. If you're at this stage, consider making the complain in writing and keeping a copy. It is illegal to retaliate against you for complaining of an illegal act, but employers do illegal things all the time, and you'll want a written record that you actually made the complaint (employers' first line of defense in litigation: "We never got a complaint from that person.")

When I say "consider" doing these things, understand that I'm not telling you to do any of these things because I don't know your precise situation. There's no one answer that fits everyone.

If you feel your job is in jeopardy or you need to protect yourself legally, call an employment attorney immediately. That person will take the time to understand your circumstances, and give you the advice that's best for you.

Making a living is hard enough these days without feeling like your job is at stake. Make sure to protect your rights, do what you can to keep from getting fired, and try hard not to sue anybody. If it comes to that, though, know what you have to do to maximize your chances for coming out on top.

Friday, October 25, 2013

It's Who You Know: Disability by Association

People who call me usually think they have more rights than they actually do in the workplace. For example, did you know that if you needed to take care of a disabled grandparent, sister or brother, your employer could fire you for it and there would be nothing you could do about it? At least, that was true until recently.

 Protection for people with disabilities is covered in California under the Fair Employment & Housing Act ("FEHA"). The FEHA requires that employees with a disability be given a reasonable accommodation to perform the essential functions of their job, if that wouldn't make an undue hardship for the employer.

The FEHA is a good, reasonable law -- the word "reasonable" is built right into it. So employers aren't required to anything unreasonable at all. Also, if the employer can demonstrate that an accommodation would present an undue hardship, it's off the hook.

Now, FEHA defines someone with a disability as anyone who themselves have a disability, or is associated with someone with a disability (as well as some other circumstances which don't matter here). So does an employee who is associated with someone with a disability (like a disabled grandmother) have a right to a reasonable accommodation at work?

Until recently, this was an unanswered question. Now, though, a friend and colleague, Doug Silverstein of Kesluk & Silverstein, won an appeal before the Court of Appeals addressing this issue.

The plaintiff in that case, Mr. Rope, alleged that he needed to take time off to donate a kidney to his disabled sister. Mr. Rope alleged further that, rather than give him the time off, his employer fired him.

Heartless, yes, but not everything that's heartless is also illegal. Did the employer's alleged actions here break the law?

Yes, said the Court of Appeals. The Court of Appeals ruled that, since FEHA defines "disability" as including someone associated with a disabled person, then that someone by definition has a disability as well, and has a right to a reasonable accommodation (for example, time off from work without getting fired).

Be careful, though, said the Court of Appeals. Ever suspicious of us rapacious plaintiff's attorneys and of all of you rotten employees out there who prepare spurious cases, the court gave us a warning: "Our holding should not be interpreted as a siren song for plaintiffs who, fearing termination, endeavor to prepare spurious cases by talking up their relationship at work to a person with a disability; such relationships do not, by themselves, give rise to a claim for disability discrimination." Somewhere in its opinion, I'm sure the Court of Appeals also warned off employers who, having torn their own hearts from their chests as a still-beating blood-sacrifice on the altar of Capitalism, prepare spurious reasons to terminate their disabled employees. I'm sure it's in there somewhere if I keep reading; I just haven't found it yet.

This opinion really advanced the law in this area (although there are some worrisome parts in there about other issues, but that's a topic for another day). This fills in a huge gap that's existed in the law for quite some time. People with caretaking responsibilities for disabled relatives have placed their livelihoods at risk when they've had to attend to their family members. Hopefully, this decision will give their jobs some needed protection.

Wednesday, October 16, 2013

Deep Duty: When Employers Sue

It doesn't happen often, but I sometimes get calls from workers who are being sued by their former employers. You won't be surprised to learn that these workers are pretty panicked. Getting sued is scary, especially if you're being sued by your former employer. After all, they know a lot about you, they probably have much more money than you do, and the idea of getting sued by them is just downright frightening.

Most of what I see involves former employers claiming that their ex-employee stole "trade secrets" or "confidential information" when they went to work for someone else. The run-of-the-mill case involves the former employer whining that their ex-employee stole their customers or convinced their other employees to work someplace else.

I don't get too concerned when I see these claims. Although I'm sure there's a customer list out there somewhere that's a trade secret, I haven't seen it yet, and California allows you to compete with your old employer for their customers as long as you don't use trade secrets or confidential information in doing so.

For almost 150 years, California has been pretty clear about this: the right to compete fairly outweighs the employer's right to keep its customers. California long ago slammed the door shut on noncompetition agreements, and courts through the years have hammered nails in the door jamb to keep it shut.

Now, though, one California appellate court may have cracked the door open just a tad.

In Angelica Textile Services v. Park, the California Court of Appeal ruled that Angelica Textile Services could proceed with its lawsuit against Mr. Park, its former employee. Angelica claimed that Mr. Park breached his employment contract, as well as his duty of loyalty to the company, all while still employed there.

Did you know that you had a duty of loyalty to your employer? If it sounds one-sided, that's because it is. Your employer has a duty to pay you on time, not discriminate against your or harass you based on any protected activities or protected acts . . .  and that's about it. Your employer doesn't owe you any duty to manage you well, pay you what you're worth (as opposed to what you agreed to take), or serve edible food in the cafeteria. You, on the other hand, have a duty to give your employer your best effort while working there.

Mr. Park's case was a little different, though. He was a Vice-President, so he had an even higher duty of loyalty than most employees. According to Angelica Textile, Mr. Park tried to set up a competing business *while working for Angelica.*

If Mr. Park had waited until he wasn't working for Angelica anymore, he might have been in the clear doing what Angelica accuses him of doing (assuming he didn't use any trade secrets to compete against them). Because he was working for them at the time the alleged actions took place, that could be a breach of duty if the allegations are true. Also, Angelica's attorneys did a good job drafting their allegations so that some of them didn't require that Mr. Park have used trade secrets. This way, they stayed away from the law governing trade secrets (called the Uniform Trade Secrets Act), and got to keep some of their claims.

This case also went a little further than I've seen other cases go. I've argued successfully to courts that soliciting employees isn't illegal, but this case, without any real analysis, just dives in and swims the other direction. This could come to a head if another appeals court explicitly disagrees. That's what brings cases to the attention of the California Supreme Court.

I'll have more to say on anti-solicitation agreements and convenants not to compete in a future post.

Tuesday, October 15, 2013

Punishment: Make 'Em Pay

People frequently ask me about punitive damages, usually when they're trying to figure out how much their case might be worth. I usually tell them I don't consider punitive damages when estimating a case's value, except in very rare circumstances. Here's why.

Juries allow punitive damages when the defendant's actions are so reprehensible that they must be punished. Punitive damages are meant to punish and deter future conduct. Just like in criminal law, there are two types of deterrence in civil law:

  • Specific deterrence: aimed at preventing this same defendant from doing the same bad act again

  • General deterrence: aimed at sending a message to others that they shouldn't do this bad act either

There are two requirements for a plaintiff (the person suing) to be allowed punitive damages:

1. The conduct the plaintiff is suing for must be so bad that the jury believes it must be punished or deterred; and

2. The person who did the conduct must be so highly placed in the organization that the organization itself deserves to be punished and deterred.

Those are pretty stiff requirements. In most employment cases, the conduct either (a) won't be bad enough, or (b) the person taking the action won't be high enough in the organization.

California has some important decisions that make it easier to meet the second requirement. For example, cases have held that even very low-level employees can meet the requirements for punitive damages if they are given complete discretion about handling or investigating complaints, and their conclusions aren't reviewed by anyone higher. California has also held that employees who completely ignore their company's procedures for investigating complaints can expose the company to punitive damages.

Essentially, California has decided that if employers abdicate their responsibilities to investigate workplace complaints of illegal activity, and their low level employees become de facto decisionmakers, the company may expose itself to punitive damages.

Once a bad act has been taken, there are other ways to bring high-level decisionmakers into the mix, and to give the plaintiff access to punitives. But as you can see, it is the rare case when the possibility of punitive damages become a real factor in determining how much a case is worth.

Wednesday, October 9, 2013

Sexual Harassment: It's Only Illegal If I Pay You for It

Can I sexually harass an intern, so long as she's a volunteer and doesn't get paid for her work? Yes, says a New York federal court.

Ms. Lihuan Wang worked as an unpaid intern for Phoenix Satellite Television US in 2009. She sued the company, claiming that its D.C. bureau chief sexually harassed her.

According to Ms. Wang, the bureau chief invited her to his hotel room, claiming that they would talk about hiring her permanently. Ms. Wang claimed that, once she entered his room, the bureau chief threw his arms around her, tried to kiss her, and "squeezed her buttocks with his left hand." Ms. Wang said she refused him, and left the room. According to Ms. Wang, the bureau chief then expressed no further interest in hiring her.

The New York federal judge threw Ms. Wang's case out just last week. The judge stated that, because Ms. Wang wasn't paid for her work, she wasn't protected under New York's anti-sexual harassment laws.

It seems bizarre that unpaid interns, who are usually young and looking for any opportunity available, are not protected from sexual harassment, but this judge ruled that's the case under New York law. He's not the only judge to rule that way. Federal judges across the country have held that unpaid interns have no protection under Title VII, the federal version of the civil rights statutes.

Title VII protects "employees" from discrimination and harassment. It defines an employee as an "individual employed by an employer." No, I'm not kidding. Yet somehow, federal courts have decided that that meaningless definition doesn't include people who work without pay.

Even California has held that public workers who are appointed without pay are not entitled to protection under the Fair Employment & Housing Act, California's version of the civil rights statutes. See Estrada v. City of Los Angeles, 218 Cal.App.4th 143 (2013). Although some California cases have indicated that this would apply to private employers as well as public ones, that matter hasn't actually been decided in California yet.

So what does this mean? Are companies really free to sexually harass their volunteers?

Incredible as it seems, there may certainly be an argument that this is the case. Of course, many times, companies break the law when they use volunteers. California requires people to be paid for their work in most instances. It seems absurd -- and I doubt a court would find -- that a company that was illegally failing to pay its workers and illegally classifying them as volunteers could escape the laws against sexual harassment.

There are also other remedies. I hope that Ms. Wang's attorney also sued for battery, which is an unwanted touching. It doesn't come with as many remedies as the civil rights laws, but it's better than nothing.

If you believe that you have been sexually harassed at work, make sure to contact an employment attorney quickly. There are short time periods that you have to follow, and failing to act within those time periods could cause you to lose your rights forever.

Saturday, October 5, 2013

A Few Words About the Michael Jackson Verdict

You may have been following the trial of Jackson v. AEG Live, in which Michael Jackson's mother Katherine sued AEG Live. Mrs. Jackson claimed that AEG live was negligent when it hired Dr. Conrad Murray to take care of Michael Jackson's medical needs while preparing for an upcoming concert tour.

After following it as it was happening, and reading about it after the result came out, I can say with perfect 20/20 hindsight, that the jury verdict form may have sunk Katherine Jackson's case from the beginning.

If you've followed the trial, then you know that the jury found that AEG Live wasn't liable for Michael Jackson death. Maybe you saw that coming. Maybe you were left wondering, "How the heck did that happen?" After all, Conrad Murray was criminally convicted for manslaughter in connection with Michael Jackson's death. Since the standard for a criminal conviction, beyond a reasonable doubt, is much higher than the "more likely than not" standard for civil liability, how could the jury find AEG not liable?

This trial is a good example of how the justice system works. Whether you agree with the verdict or not, there's a lot to learn from what happened.

When someone sues, they have to have what we call a "legal theory" for why the other person is liable (meaning owes them money). A "legal theory" is a legal reason for explaining why what the other person did violated the law in some way.

So let's break it down. Here, Katherine Jackson sued AEG Live for "negligence." Negligence requires that the plaintiff (the person suing, in this case, Katherine Jackson) demonstrate that (a) AEG live had a duty to use due care, (b) that AEG breached that duty, and (c) that the breach caused whatever happened that Ms. Jackson was suing for.

Mrs. Jackson had to prove each one of those things to win her suit.

Now, juries don't get to decide how they "feel" about a case. They can't make their decisions based on a general "impression" of what happened. They have to go through each requirement for negligence (called the "elements" of negligence) and see if Mrs. Jackson proved her case.

Here, the jury answered "No" to one of the questions they had to answer on the jury verdict form: "Was Dr. Conrad Murray unfit and incompetent to serve as the singer's general practitioner?"

Whatever evidence the jury heard convinced it that, as a general proposition, Dr. Murray was not unfit and incompetent. We heard jurors say afterward that if the question had been, "Was Dr. Murray unethical," the outcome might have been different.

I'm not sure that this question on the jury verdict form accurately reflected the legal requirements for negligence. It's not clear to me at all that Dr. Murray had to be unfit and incompetent for AEG Live to have been negligent in hiring him. Those questions, however, were argued to the court by the plaintiff and the defendant, and this is the verdict form that the court decided would go in front of the jury.

These legal discussions about what instructions jurors get and what questions the jurors have to decide occur in the courtroom, with all the lawyers and the judge present, and away from the jury. The lawyers make their arguments, but the judge ultimately decides what the jury will hear and what the jury will be asked to decide.

Here, maybe the plaintiff and defendant agreed about what would be on the form. We don't know, although all of it is public record, so someone who was curious enough could get hold of the courtroom transcripts and find out.

It does seem, though, that what went on the jury's verdict form figured heavily in the ultimate outcome of the case.

Tuesday, October 1, 2013

You Only *Thought* You had a Constitutional Right To a Jury Trial

California's Constitution guarantees the right to trial by jury, and says that it is an "inviolate right," meaning it's a right that can't be violated.

Oh, but violate it we have. You only thought you had a constitutional right to a jury trial, but if you signed an arbitration agreement when you started working -- or even signed a receipt for an employee handbook with an arbitration agreement in it that you likely didn't read because you were so dang happy at finally getting back to work again -- then you probably sacrificed your right to a jury if things ever go south with your employer.

The good news is that you can still bring a lawsuit when you have an arbitration agreement. That's the end of the good news.

The bad news is that you don't get to have a jury if you're bound by an arbitration agreement. More bad news is that, instead of a jury, you get an arbitrator deciding your case. What's an arbitrator? An arbitrator is a retired judge or a lawyer who gets paid to decide your case. Guess who pays the arbitrator? And guess who pays the arbitrator whenever they get sued, and has financed half of the arbitrator's vacation home and their children's private school educations? Yes, your employer is the only repeat player in the room, and is paying thousands of dollars to the person deciding your case against that same employer. Remember that constitutional right to a jury trial? I wouldn't blame you if you don't.

And the bad news doesn't stop there. When you have a trial by jury, if the judge or the jury get something wrong, you have a right to appeal. You can ask three appellate judges to look at the case and decide whether the trial followed the rules or not. In an arbitration, those same three judges won't even look at whether the arbitration followed the rules or not. Yes, even if the arbitrator didn't follow the rules, the arbitrator's decision will still stand.

By now, you won't be surprised to learn that arbitration results are statistically much worse for employees than jury results. One study by Cornell University professor Alvin Colvin found that plaintiffs (the person suing) win about 43% of the time when they have a jury, but only 21% of the time -- less than half the success rate -- in arbitration. Again, it gets worse. If the employer has other cases with the same arbitrator, the plaintiff's success rate drops to a dismal 12%.

Courts like arbitration because the courts are under-funded, and they get to clear out their calendars by sending cases to arbitration. Employers like arbitration because they almost always win, and when they lose, they don't have to pay nearly as much as a jury would make them pay. Arbitrators like arbitration because they get paid a lot of money. There's only one type of person who loses in arbitration, and that type of person looks a lot like you.

So what can you do about it?

The best thing to do is to call your United States Congressperson and Senators right now, and tell them you want a law that excludes arbitration agreements from employment and consumer contracts. You can let them know you had no idea what you were signing, because you probably didn't, and it's unfair for employers to make people waive their constitutional rights just to feed their families and put gas in their cars.

If you find that you're stuck with an arbitration agreement, there are ways out of it, but the courts are making it harder and harder. A good people's lawyer will, if it makes sense for your case, look for every way legally available to get out of an arbitration agreement. There are some tricks of the trade, but again, overworked trial judges really like arbitration, so the best long-term solution is getting Congress to pass a law that favors working people.

Your right to a jury is an important constitutional right, and it should be there for you when you need it. Arbitration is your employer's best effort to make sure it's not.

Tuesday, September 24, 2013

Are you an Independent Contractor or are you an Employee?

You're an employee.

Well, probably, anyway.

Without knowing too much about what you do, I can say with some confidence that you're probably an employee. That's because California assumes that when you do work for someone else, you're an employee until proven otherwise.

There are a lot of rights that come with being a California employee. As an employee, you have a right to be paid on time. You have a right to a paystub that tells you how many hours you worked, how much has been deducted for your taxes, and what the actual name of your employer is (they use fictitious names sometimes, and you may not even know what the company's real name is).

You don't have any rights as an independent contractor except what's in the contract. Sometimes, you may not even have a written contract, so your contractual rights aren't even clear.

As an employee, your employer is required by law to pay workers compensation insurance, unemployment insurance, payroll taxes, and a host of other stuff.  As an independent contractor, the company doesn't have to pay any of those things.

Guess which one the company would rather say you are?

Fortunately, California doesn't really care much whether the company says you're an independent contractor or an employee. It's one factor, but it's an itty-bitty factor among much larger ones. The most important factor is control: who controls your work hours? your assignments? your work location? The more and more control the company exercises over your work day, the more and more you look like an employee and not an independent contractor.

Some companies misclassify workers as independent contractors, not because they're evil, but because they don't know any better and want to get the advantages of having independent contractors. Okay, some of them are evil. I hope you don't work for one of the evil ones.

Unfortunately for them, California has enacted stiff penalties for misclassifying employees as independent contractors. There are even more penalties for failing to issue proper paystubs, which many companies do when they misclassify employees.

If you believe that you've been misclassified as an independent contractor, and you think you're really an employee, there are some options available to you:

1. You can contact the California Employment Development Department (EDD), and ask for an audit. They will review your position, and let your employer know whether you are an independent contractor or (more likely) an employee.

2. You can tell your employer that you think you're an employee, and ask the employer to make it right.

Or, my preferred option:

3. You can wait until you find another job, and *then* bring it up to the employer. Look, it would be illegal for your employer to retaliate against you for bringing any of this up, but if employers didn't do illegal things all the time, I'd be out of business, and I'm plenty busy. And I'll bet that in this economy, you'd probably rather have a job than a lawsuit.

If you think that you've been misclassified, consider waiting until you're safely in a new job, and then decide if you want to pursue it by bringing it up to your employer or seeing an employment attorney who knows how to handle these cases. Who knows? By then, you may be happily employed by a conscientious, law-abiding company, and be ready to put the old company behind you.

Either way, you can make an informed choice about how to proceed when you know the difference between an independent contractor and an employee.

Wednesday, September 18, 2013

Question: How can I help you? Answer: Under very limited circumstances.

Thanks for visiting my blog. I'll be writing about workplace legal issues most of the time, and some of the time I'll be writing about whatever happens to interest me.

I'm an employment lawyer in California, and I represent employees who have had something illegal happen to them in the workplace. Note that I didn't say, "something wrong," or "something bad," or "something really really bad." Unfortunately, most of the time I can't help the people who call me. That's because, in order for me to be able to do anything to help someone, the employer actually has to have done something *illegal.*

That means: before an attorney can help, the employer actually has to have *broken the law*.

Unfortunately, it breaks no law for an employer to be mean, arbitrary, or to do horrible things just because the employer doesn't like you. It doesn't even break the law for the employer to single you out, or to treat you differently. So if that's what happened, an attorney can't help.

The only time any of those things do break the law is if they're based on what we call (1) a protected characteristic, like race, age, sex, religion, disability, and some others, or (2) a protected act, like complaining about racial discrimination, sexual harassment, or something else that's *illegal.*

No matter how badly your employer has hurt you, no matter how much you have suffered because of what the employer did, there won't be anything I can do unless the employer has actually broken the law.

I find myself explaining this a lot, so I figured I'd start off with that as I launch this blog.

I'm trying to post at least once a week, but if I miss a week here or there, that's probably because some employer did something illegal somewhere and I have to run that down. Don't worry. I'll be back.

I hope you find my blog entertaining and informative. Feel free to leave me a message, a comment, or whatever you feel moved to say.