Marilynn Mika Spencer
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Answers Posted By Marilynn Mika Spencer
Answer to Worried to be terminated I used racial harassment instead of racial discrimination.
Unlawful harassment is a form of discrimination. If you filed an EEOC complaint alleging harassment and the facts you supplied to the EEOC include other forms of discrimination, you should be fine. However, you can certainly contact the EEOC and explain that you want to correct or amend your complaint to include discrimination. You should confirm this in writing to the EEOC, and keep a copy for yourself.Whether or not you were an employee is a matter of law. There are many considerations and my response will be lengthy. However, it should help you understand the type of evidence the EEOC may find helpful.
The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.
Many employers misclassify workers as independent contractors and pay them as "1099 employees" when in fact they should be classified and paid as regular W-2 employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If a worker is wrongly classified as an independent contractor instead of an employee, that worker will not be eligible for many benefits of employment or eligibility will be reduced. Areas affected include the right to:
– be paid for all hours worked or controlled by the employer;
– the legal minimum wage;
– overtime pay;
– rest and meal breaks;
– workers' compensation insurance;
– Social Security contributions;
– unemployment benefits;
– state disability benefits;
– employer benefits such as vacation, sick leave, pension, medical insurance, etc.
Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).
There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.
FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:
Behavioral Control – This area considers instructions and training. If the employer has the right to direct or control the work, even if it does not exercise that right, the worker is an employee. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who the worker can hire or not hire to help get the work done; what supplies and services to buy, and/or where to buy them. If the employer trains the worker in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates the worker is an employee and not an independent contractor. Therefore, if the employer gives the worker detailed or extensive instructions on how to get the job done, the worker is probably an employee and not an independent contractor.
Financial Control – This area considers who has the right to direct and control the business, not just the work. The more of a financial or promotional investment the worker has made in the work, the more likely the worker is an independent contractor. However, there is no requirement for an investment in order to meet the definition of independent contractor. If the worker incurs expenses in performing the work but is not completely reimbursed, the worker is more likely to be an independent contractor rather than an employee, especially if these expenses are high. If the worker has the chance to make a profit or loss on the work, the worker is probably in business for himself or herself and therefore an independent contractor.
Relationship of the Parties – If the worker does not receive benefits such as medical coverage, vacation, or pension, the worker may be an employee or an independent contractor. However, if the worker receives benefits, the worker is probably an employee.
If the worker is an employee, the employer must withhold income tax and the employee’s portion of Social Security and Medicare taxes. The employer must pay Social Security, Medicare and unemployment (FUTA) taxes on the wages the worker earns. The employer must give the worker an IRS Form W-2, Wage and Tax Statement, every year showing the amount of wages paid and taxes withheld from the worker’s pay. As an employee, the worker has the right to deduct unreimbursed business expenses from the worker’s taxes on IRS Schedule A if the worker itemizes deductions and meets the other requirements established by the IRS.
If the worker is an independent contractor, the employer must give the worker an IRS Form 1099-MISC Miscellaneous Income to report what it has paid to the worker. The worker must pay his or her own income tax and self-employment tax, and may be required to make estimated tax payments during the year. The worker can deduct business expenses on IRS Schedule C of his or her income tax return.
CALIFORNIA LAW:
The main test in California is who has the right to direct and control the “manner and means” in which the job is performed. This is similar to the IRS’ Behavioral Control described above. California then looks at secondary factors, which include:
Are the services provided on a long-term or repeating basis? Is the worker paid based on the time spent working? Are the services an integral part of the employer’s business? Does the employer establish the work hours? Does the employer determine how many hours will be worked? Does the employer dictate the order in which job tasks are to be performed? Does the worker spend all of his or her time working for one employer? Is the worker supervised? All of these factors tend to show the worker is an EMPLOYEE.
Is the worker in a distinct occupation or trade? Are the worker’s services available to the general public? Can the worker hire, supervise and pay assistants? Did the worker make a substantial investment in facilities or services? Does the worker do the job without supervision? Is the worker highly skilled or working in a specialized field? Does the worker supply the tools and other materials used to do the job? Does the worker provide the location in which the work is performed? Is the worker paid at the end of the project? All of these factors tend to show the worker is an INDEPENDENT CONTRACTOR.
Also under California law, an employer can be fined for “willfully misclassifying” an employee as an independent contractor. The amount of the fine ranges from $5,000 to $15,000 per violation. If there is a “pattern and practice” of willful misclassification, the fine can increase to $25,000 per violation.
~ So . . . if the above information causes you to believe you were misclassified as a contractor when you should have been an employee, you may want to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
You can also present your facts to the Division of Labor Standards Enforcement which will handle your case for free. However, the DLSE is underfunded, understaffed and extremely backed up. It may take over a year before it can get to your matter.
The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.
I hope there is a good resolution to this situation.
posted Aug 8, 2014 3:20 PM [EST]
Answer to Can my boss steal my shifts and give them to his son just so he doesnt have to pay me?
Please be sure to read the info in the link I provide below.Unfortunately, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.
There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.
Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.
I hope there is a good resolution to this situation.
posted Jun 20, 2014 1:06 PM [EST]
Answer to Is it wrong to attempt to obtain employment from a comapny that paid you severence pay years ago?
There is nothing morally "wrong" in doing so, but your husband must review the actual language of the settlement agreement to see if he agreed not to seek employment with the company in the future.** No attorney-client relationship is created based on this communication. Please consult with an experienced employment attorney as soon as possible to better preserve your rights.**These comments are for information only and must not be taken as legal advice. The Spencer Law Firm has not analyzed the details of your potential claim. The Spencer Law Firm cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. The Spencer Law Firm will not take any action on your behalf unless you and The Spencer Law Firm sign a legal services agreement.All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Deadlines can be as short as just a few days. For referrals, you may contact the Lawyer Referral Service of the San Diego County Bar Association at (619) 231-8585, or the county bar association for your county. Also, you can find lists of plaintiffs employment attorneys atposted Nov 3, 2013 5:44 PM [EST]
Answer to Stock option with acceleration upon termination
Stock option and incentive plans are fairly complex and the details should be reviewed with an attorney who has the right experience. There are all kinds of "gotcha" clauses employers add to these agreements.For this type of assistance, you can expect to pay hourly. Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more. You should expect to need at least three hours for this kind of consultation.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope you can resolve your situation and wish you the best.
posted Aug 23, 2013 3:33 PM [EST]
Answer to After returning from an uprotected medical leave (not FMLA), do I have to accept a lessor position?
First, make sure it is correct that there is no comparable job available. Just because an employer says one is not does not mean that is so. Also, consider whether your leave was protected by laws prohibiting disability discrimination (the ADA and the Fair Employment and Housing Act). It may be that the law required the employer to hold that job for you. If so, it may be retaliation to give you a lesser job. Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.; Please look at my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true..Also, if your leave was related in any way to a workplace injury, you may have additional rights.
If none of that applies, then you should know what the unemployment laws say about pay decreases. Employees who voluntarily quit their jobs due to a decrease in pay are eligible for unemployment benefits if the pay cut was large enough. In Bunny’s Waffle Shop v. California Employment Commission (1944), 24 C. 2d 735, 151 P. 2d 224, the court found an employee who suffered a 25 per cent pay cut was eligible for benefits. According to the Unemployment Insurance Appeals Board (UIAB), an employee who quits due to pay reduction of 20.96 per cent is eligible (UIAB Precedent Benefit Decision No. P-B-124). However, a pay decrease of approximately 11.2 per cent is not sufficient BY ITSELF to merit unemployment benefits (P-B-88).
According to the UIAB, a 15.4 per cent and a 17.5 per cent wage reduction MIGHT BE good cause to quit (and therefore allow unemployment benefits) if there are other factors (P-B-127). If the pay cut is due to a transfer, the UIAB will consider: (1) The comparative skills of the two jobs; (2) Whether the employee had ever worked in the department to which he was being transferred; (3) The length of time he had worked in the job from which he was being transferred; and (4) Whether the employee had a reasonable belief that he would be recalled to the job from which he was being transferred in a reasonably short period of time (P-B-127).
In UIAB P-B-88, the UIAB stated “A review of our decisions makes it apparent that no justification exists for any presumed rule of thumb that a reduction in wages of ten percent is not good cause for leaving work but anything over ten percent is good cause without reference to the other factors presented in the particular case." In that decision, the UIAB listed some of the factors other than wage reduction which bear upon decisions under various circumstances:
1. The claimant’s prospects for securing other work at a wage commensurate with his prior earnings;
2. Whether the claimant was aware of the labor market as it affected him;
3. The comparative skills required;
4. Substantial prospects of other employment based upon objective facts known at the time of election;
5. The distance and cost of commuting;
6. Loss of seniority and recall rights;
7. Opportunities for advancement in the lower classification.
You can find much more information about resigning due to a pay decrease on the Employment Development Department web site here:http://www.edd.ca.gov/uibdg/Voluntary_Quit_VQ_500.htm.
posted Jul 16, 2013 10:29 AM [EST]
Answer to legality og hiring 10 part time employees rather than 5 full time employees to avoid paying benifits
I'm afraid you won't like the answer to your question. There is no law that requires an employer in the private sector to provide benefits to employees. Generally, an employer can decide whether to offer benefits, what benefits to offer, and to whom the employer offers them. There are restrictions that prevent an employer from limiting benefits to employees BECAUSE OF their race, religion, disability, sex, age (40 and over), national origin, pregnancy, genetic history, and in some states, because of their sexual orientation or marital status. Also, an employer is free to define "full-time" and "part-time" as it wishes. There are no laws in the private sector that designate any particular number of hours as full-time or part-time. Given this, the employer can define employees as part-time even if they work the same number of hours as full-time, and limit benefits to those employee the employer has defined as full-time. If, however, there is a company policy that defines all employees who work a certain number of hours as full-time, you may be eligible for that classification. But language can be tricky. For example, a policy that says "All full-time employees work 40 hours per week" is not the same as "All employees who work 40 hours per week are full-time." Also, if your job is covered by a contract between a union and the employer, or if you have an individual contract, the employer must comply with the terms of that contract. It isn't fair and it isn't good social policy. But it is legal. I hope your situation resolves. I wish you the best. ** No attorney-client relationship is created based on this communication. Please consult with an experienced employment attorney as soon as possible to better preserve your rights.**These comments are for information only and must not be taken as legal advice. The Spencer Law Firm has not analyzed the details of your potential claim. The Spencer Law Firm cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. The Spencer Law Firm will not take any action on your behalf unless you and The Spencer Law Firm sign a legal services agreement.All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Deadlines can be as short as just a few days. For referrals, you may contact the Lawyer Referral Service of the San Diego County Bar Association at (619) 231-8585, or the county bar association for your county. Also, you can find lists of plaintiffs employment attorneys atposted May 5, 2013 09:29 AM [EST]
Answer to Is it considered termination when my manager deletes my access to my work account?
** No attorney-client relationship is created based on this communication. Please consult with an experienced employment attorney as soon as possible to better preserve your rights.**The following comments are for information only and must not be taken as legal advice. The Spencer Law Firm has not analyzed the details of your potential claim. The Spencer Law Firm cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. The Spencer Law Firm will not take any action on your behalf unless you and The Spencer Law Firm sign a legal services agreement.All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Deadlines can be as short as just a few days. For referrals, you may contact the Lawyer Referral Service of the San Diego County Bar Association at (619) 231-8585, or the county bar association for your county. Also, you can find lists of plaintiffs employment attorneys atposted Apr 17, 2013 6:41 PM [EST]
Answer to Typical Length of Time at one client
There is no set time frame, though the longer the time, the less likely the person is an independent contractor. The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.Many employers misclassify workers as independent contractors and pay them as "1099 employees" when in fact they should be classified and paid as regular W-2 employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If a worker is wrongly classified as an independent contractor instead of an employee, that worker will not be eligible for many benefits of employment or eligibility will be reduced. Areas affected include the right to:
– be paid for all hours worked or controlled by the employer;
– the legal minimum wage;
– overtime pay;
– rest and meal breaks;
– workers' compensation insurance;
– Social Security contributions;
– unemployment benefits;
– state disability benefits;
– employer benefits such as vacation, sick leave, pension, medical insurance, etc.
Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).
There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.
FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:
Behavioral Control – This area considers instructions and training. If the employer has the right to direct or control the work, even if it does not exercise that right, the worker is an employee. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who the worker can hire or not hire to help get the work done; what supplies and services to buy, and/or where to buy them. If the employer trains the worker in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates the worker is an employee and not an independent contractor. Therefore, if the employer gives the worker detailed or extensive instructions on how to get the job done, the worker is probably an employee and not an independent contractor.
Financial Control – This area considers who has the right to direct and control the business, not just the work. The more of a financial or promotional investment the worker has made in the work, the more likely the worker is an independent contractor. However, there is no requirement for an investment in order to meet the definition of independent contractor. If the worker incurs expenses in performing the work but is not completely reimbursed, the worker is more likely to be an independent contractor rather than an employee, especially if these expenses are high. If the worker has the chance to make a profit or loss on the work, the worker is probably in business for himself or herself and therefore an independent contractor.
Relationship of the Parties – If the worker does not receive benefits such as medical coverage, vacation, or pension, the worker may be an employee or an independent contractor. However, if the worker receives benefits, the worker is probably an employee.
If the worker is an employee, the employer must withhold income tax and the employee’s portion of Social Security and Medicare taxes. The employer must pay Social Security, Medicare and unemployment (FUTA) taxes on the wages the worker earns. The employer must give the worker an IRS Form W-2, Wage and Tax Statement, every year showing the amount of wages paid and taxes withheld from the worker’s pay. As an employee, the worker has the right to deduct unreimbursed business expenses from the worker’s taxes on IRS Schedule A if the worker itemizes deductions and meets the other requirements established by the IRS.
If the worker is an independent contractor, the employer must give the worker an IRS Form 1099-MISC Miscellaneous Income to report what it has paid to the worker. The worker must pay his or her own income tax and self-employment tax, and may be required to make estimated tax payments during the year. The worker can deduct business expenses on IRS Schedule C of his or her income tax return.
CALIFORNIA LAW:
The main test in California is who has the right to direct and control the “manner and means” in which the job is performed. This is similar to the IRS’ Behavioral Control described above. California then looks at secondary factors, which include:
Are the services provided on a long-term or repeating basis? Is the worker paid based on the time spent working? Are the services an integral part of the employer’s business? Does the employer establish the work hours? Does the employer determine how many hours will be worked? Does the employer dictate the order in which job tasks are to be performed? Does the worker spend all of his or her time working for one employer? Is the worker supervised? All of these factors tend to show the worker is an EMPLOYEE.
Is the worker in a distinct occupation or trade? Are the worker’s services available to the general public? Can the worker hire, supervise and pay assistants? Did the worker make a substantial investment in facilities or services? Does the worker do the job without supervision? Is the worker highly skilled or working in a specialized field? Does the worker supply the tools and other materials used to do the job? Does the worker provide the location in which the work is performed? Is the worker paid at the end of the project? All of these factors tend to show the worker is an INDEPENDENT CONTRACTOR.
Also under California law, an employer can be fined for “willfully misclassifying” an employee as an independent contractor. The amount of the fine ranges from $5,000 to $15,000 per violation. If there is a “pattern and practice” of willful misclassification, the fine can increase to $25,000 per violation.
posted Mar 3, 2013 9:36 PM [EST]
Answer to The Union has delayed my grievance process since 4/2012 and we still have not gone to arbitration.
What has the union said? Has it told you it will not process the grievance at all? Or that it will not invoke arbitration? How do you know the delay is due to the union and not the employer?An important consideration is that the union may not have the resources to tackle contract negotiations and the grievance/arbitration process at the same time. By "resources" I mean personnel, time and money. Most unions try to do the right thing and obtain justice. But please understand that most local unions have limited money and staff resources so they must pick and choose which cases to pursue. Unions have to balance the need for more money (to hire more union reps or to take more cases to arbitration, for example) with the bargaining unit’s resistance to higher dues. This is similar to elected officials who must always balance constituents’ wishes with the need to raise taxes.Sometimes “justice” does not help an individual employee. One reason is that unions have their primary obligation to the entire group of job classifications the union represents; that group is called the “bargaining unit.” Unions have the right to decide whether to pursue a case or not. However, a union cannot make its decisions in a way that is arbitrary, discriminatory, or in bad faith. The standard is much harder to meet than meeting a negligence standard. Some union reps are highly effective; others are incompetent, just as some attorneys and politicians are incompetent. Many local labor unions are run by volunteers. Many union representatives are full-time employees of the employer so do much of their union work on their own time, especially evenings and weekends. Only some unions have enough money to reimburse their reps for missed work hours, such as when handling a grievance. Only some unions have the strength to negotiate “lost time” with the employer, where the employer has to pay the rep’s wages when the rep is handling grievances; this time is usually limited to a low number of hours.Nearly all elected and appointed union officers start out as rank-and-file workers. They may be elected due to work competence, seniority, intelligence, charm, good looks, having a big mouth, blustering, oratory skills, etc. – just like politicians. There is a range of skills and a range of experience among them. Most unions provide some training for officers and stewards, but others don’t have the resources to do so. The quantity and quality of training can vary widely.If the workplace problem is based on a statute, such as any of the laws prohibiting on-the-job discrimination or protecting whistleblowersposted Dec 27, 2012 2:38 PM [EST]
Answer to Do employers have to pay you before a company observed holiday?
I do not see any violation of law here. California Labor Code section 204 requires an employer to pay non-exempt employees twice per month on pre-designated pay dates. Civil Code section 11 states that if an event takes place on a holiday or other non-work day, then the event is still timely if it takes place on the next regular business day. California wage and hour laws follow this same statute.Your employer is making sure you get paid on the pre-designated date, which is all the employer is required to do. And as you see, in some circumstances, the employer can postpone payment to the next business day. No law requires an employer to pay employees early.
Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.
posted Nov 21, 2012 4:49 PM [EST]
Contact Marilynn Mika Spencer
Marilynn Mika Spencer
Representing working people and labor organizations in the fight for justice on the job
San Diego, CA
Phone: 619-233-1313