Monthly Archives: October 2012

Independent Contractor or Employee?

Are you an independent contractor or an employee? What is the difference?Many companies try to sidestep California’s law by hiring “independent contractors” instead of employees. If legitimate, independent contractors are not “employees” covered by the wage and hour laws, and therefore companies don’t have to pay them overtime. Legally, companies are not allowed to hire an “independent contractor” if the worker qualifies as an “employee” under California’s economic realities test.

This test looks to see whether the worker is dependent on the company to which they render their services to. In determining whether workers qualify as employees under the Fair Labor Standards Act, courts look at a number of factors, including:

  • the degree to which the employer has the right to control how the work is performed,
  • the degree to which the worker’s opportunity for profit or loss depends upon the worker’s managerial skill,
  • the worker’s personal investment in equipment, labor, or materials required for the job,
  • whether the service at issue requires a special skill,
  • the degree of permanence of the working relationship; and
  • whether the service rendered is an integral part of the employer’s business.

The importance that the court gives each factor depends on the totality of the circumstances; however, the right to control the means and manner of job performance is generally the most important consideration.

On the other hand, if the worker is classified appropriately as an independent contractor, he or she is not a “employee” under California law, and are therefore not entitled to overtime.

Sadly, abuse of this system is rampant. According to one study, tax audits done by the Economic Development Department from 2006 to 2008 show that 29% of audited employers misclassify workers as independent contractors when they should be employees. This comes from the National Employment Law Project (October 2011) Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and State Treasuries,  p. 4, 5, fn. 5.

If you have been misclassified as an independent contractor, and therefore denied overtime, give an employment attorney a call. You might be owed a lot of money.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under FLSA – Fair Labor & Standards Act, Independent Contractor, Overtime, Wages and Hours

Do Employees Get Overtime If They Are Paid A Salary?

Do employees get overtime if they are paid a salary?A common question employment lawyers get is: “I get paid a salary but I work 50, 60, 70 hours a week. Should I be paid overtime?”

As with most legal questions, the answer is far more complicated than the question. But this article attempts to outline the answer without too much legal gobbly-gook.

One of the biggest myths about overtime in California is that people who are paid a salary are never entitled to overtime.  The sad fact is that many people who are paid a salary by their employers are entitled to overtime and don’t receive it, and even more are paid hourly but don’t get any overtime because they work for dishonest companies with shady time-keeping procedures. Thus, if someone tells you that you are not entitled to overtime just because you are paid a salary, they are dead wrong.

In California, everyone is entitled to overtime pay unless they first meet one of the legal overtime exceptions. These exceptions are called “exemptions” under the law. Think of an exemption as a test: if your job passes the test your employer gets rewarded and doesn’t have to pay you overtime; however, if your job fails the exemption, then you are rewarded with overtime. I italicized “job” to emphasize that the test is dependent on your job functions, not on your personal capabilities.

Employers sometimes find it difficult pass an exemption for your job. Undeterred, many companies claim that your job meets the exemption when, in reality, it doesn’t. They do this because they don’t want to pay you the hour. It’s so much easier to pay you a salary – there are no time cards, variable monthly payments, and no overtime.

The next question becomes, what are these exemptions and does your job meet one of them? There are four major exemptions: “administrative,” “executive,” “professional,” and the “computer software professional.” If your job doesn’t meet the requirements for one of these exemptions then you are entitled to overtime pay.

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Filed under Exempt, FLSA – Fair Labor & Standards Act, Hourly or Salary?, Non-exempt, Overtime, Wages and Hours

Lisa Kudrow & Scott Howard to the California Supreme Court? Phoebe Wants to Fight.

In 2008, Lisa Kudrow (Phoebe from ‘Friends’) was dragged into court by her former manager, Scott Howard, who filed a lawsuit because she refused to pay him more than $50,000.

In the early 1990’s, Howard and Kudrow entered into an oral agreement for Howard to act as Kudrow’s personal manager. Kudrow agreed to pay Howard 10% of whatever she earned. In 1994, Kudrow landed the role of “Phoebe” on the television show “Friends.” Amazingly, for the last 18 episodes in 2004, Kudrow made $1 million an episode, plus 1 1/4 % of the show’s “backend” earnings.

So, what is the dispute about? Well, after Kudrow terminated Howard as her personal manager, she stopped paying him. Which seems completely fine except that the custom and practice in the entertainment industry at the time was for a personal manager to be paid post-termination commissions on the services that their clients rendered when the personal manager was representing them.

Currently, the two parties are bickering over when an expert should have been admitted. A Los Angeles County Superior Court barred Howard from admitting an experts testimony, and granted Kudrow summary judgment. The appeals court reversed Wednesday, saying Bauer should be allowed to testify on remand. Now, Kudrow may appeal it to the California Supreme Court.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Discharge & Layoffs, Lawsuits & Lawyers, Leaving a Job

Sexual Harassment Series #3: Moran v. Qwest Communications

For today’s post I thought I would highlight a recent sexual harassment case: Moran v. Quest Communications. In this case the jury awarded the plaintiff, Amy Moran, $4,292,710.

Let’s outline the facts in detail. I’ve copied and pasted much of it from an online copy of the appellate decision. I want to highlight the kind of behavior that qualifies as sexual harassment. Although a new trial has been ordered on some aspects of the verdict, this case highlights what a jury can do for a sexually harassed employee.

Moran joined Qwest (which is now CenturyLink) in early 2006. She was hired in a sales position and was compensated in base salary plus commission. By mid 2006 her managing boss had been replaced by Dennis Sherwood.

Sherwood seems like a disaster of a boss. He had received sexual harassment training at previous jobs and, according to an appellate brief, “recognized such harassment as a serious issue.” In a previous job, Sherwood tried to start an intimate relationship with a subordinate employee while she was a candidate for hire and after she was hired.

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Sexual Harassment Series #2: Quid Pro Quo Harassment

Horrible Bosses Sexual Harassment - Quid Pro Quo - Employment Law HR Attorney - Jennifer Anniston

Anyone else see the movie ‘Horrible Bosses?’ In the movie Jennifer Aniston plays a sex-obsessed dentist who overtly harasses her dental assistant played by Charlie Day. Although mildly entertaining because it’s fiction, the movie highlights a sad truth – sexual harassment is alive and well in America.

In the eyes of the law there are two main forms of sexual harassment: ‘quid pro quo’ and ‘hostile work environment.’ Although the more common type is hostile work environment, the more sinister is quid pro quo. That is what this article is about.

We’ve all heard about blatant sexual harassment: “give me oral sex and I’ll give you a raise,” or “you can have the nice office if you go on a date with me,” or “you’re gonna have to try harder if you want to keep your job.” Usually the harassment comes from a male superior to a female subordinate. This nasty type of harassment even occurs in the heart of Orange County. I’ve heard stories of such blatant harassment happening in Irvine, Santa Ana, Newport Beach, and other OC cities.

Quid pro quo means “this for that.” It happens when a supervisor requests sexual favors in exchange for job benefits, such as getting a promotion, pay raise, or to simply keep the job. The essence of the quid pro quo theory of sexual harassment is that a supervisor extorts sexual favors from an employee.

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Sexual Harassment Series #1: Hostile Work Environment

Hostile Work Environment in California - Sexual HarassmentHere is the common story: John, a male supervisor, and Jane, a female employee, work closely together. They are friends, and have a fun working relationship. They regularly get chummy with each other and enjoy telling each other jokes. But one day, John asks about her sex life, or slaps her on the butt, or tells her that she has a great body. Since their relationship is good, Jane laughs it off and dismisses it.

The next day John throws another sexual comment her way, or lets his eyes drift to her breasts, or tells her that if he were single, he’d be asking her out for a drink. Again, Jane dismisses it as friendly banter.

But the next day, it continues. This time John sits on her desk and tells a sex joke or gets a little too close when nobody else is around. She smiles and is polite, but it’s starting to concern her. Worried she would ruin the relationship, Jane says nothing. After all, it’s not a big deal…. Women deal with this sort of behavior all day every day…right?

But the following week it continues, and the week after that. Before Jane even notices weeks turn into months. Eventually, she gets fed up and she tells HR. But when she sits down with HR, she has trouble articulating what John is doing. But she gets the message across and HR says they are going to deal with it. But they don’t. You see, John is a valuable asset to the company, and Jane isn’t as valuable. The company doesn’t want to lose John–he makes them a lot of money.

Then one day, John goes too far. He corners her, kisses her, or grabs her, or does something even worse. Jane rejects his advances, and the lust in his eyes turns to anger. Understandably, Jane starts avoiding John. There is an awkward rift between them. But John is her boss, and her job performance begins to suffer.

A week or two later, Jane gets a poor performance review, or she gets passed over for a promotion, or she gets demoted. Then, a month or two later, she gets fired.

This story repeats itself all across California. This is a typical “hostile work environment” sexual harassment case. Here, the harassment was bad, but it often is much worse. What can Jane to do? Should she just suck it up and find a new job? What if that was her dream job? What if she can’t find a new job? What if she needs to feed her children?

In California, sexual harassment (legally speaking) can take one of two forms: “quid-pro-quo” or “hostile work environment.” Here, I cover what a “hostile work environment” looks like and what you can do to stop it. I will cover the other type, ‘quid-pro quo,’ in a future post.

Keep reading after the jump…. Continue reading

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Filed under Harassment, Sexual Harassment

California Employment Lawyers Association Annual Conference

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Hey All, today I’m blogging while at the California Employment Lawyers Association Annual Conference in Costa Mesa. It’s been good to see friends and interact with colleagues. But I can’t wait to update this blog with all the good stuff I’ve been learning. From legislative updates to new strategies in wrongful termination cases, this conference is packed with great information coming from the most established employment attorneys in California.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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