Archives for January 2022

¿Cómo sé si soy un empleado o un contratista independiente?

Usted sabe la diferencia entre un contratista independiente y un empleado? La respuesta a esta pregunta es más complicada de lo que parece. 

En muchos casos los contratistasy los empleados trabajan lado a lado sin diferencia.  Pero bajo la ley de California existen ciertas diferencias que distinguen los dos y esas diferencias son importantes para asegurarse que usted está recibiendo los derechos y privilegios que vienen con cada clasificación 

Típicamente un contratista es una persona que recibe un pago fijo para un servicio o trabajo. Un empleado es una persona que trabaja para un salario anual o por hora. 

Pero, entre esas mismas definiciones hay situaciones donde un contratista puede estar clasificado incorrectamente. La clasificación de empleo es importante porque empleados típicamente tienen mas derechos que contratistas independientes.

Una persona es considerado un contratista independiente si :

(1) el trabajador esta libre del control y dirección de la compañía por cual el trabajador esta conduciendo los servicios;

(2) el trabjaor hace un servicio que es diferente de el trabajo o profession de la empresa que contratar al trabjador, y;

(3)  el trabajador se dedica a un comercio o servicio estabilizado que es el mismo servicio que el trabajador hace para la empresa.

Un ejemplo de un contratista independiente seria si usted, un plomero, está contratado por una fábrica de costura para hacer servicios de plomeria de una o más ocasiones. En esa situación usted sería un contratista independiente.

Pero, si usted es una costurera y está contratada por una fábrica de costura para hacer servicios de costura y la misma empresa le da la maquina de coser y materiales para coser, usted podría ser clasificada como un empleada aunque la empresa la clasifique como contratista independiente. 

Si usted piensa que su empleador lo calificó incorrectamente usted podra tener el derecho a traer una demanda contra su empleador para recibir compensatión para los beneficios que usted no recibo de parte de la clasificación incorrecta.

¿Cuáles son mis derechos en el trabajo si soy víctima de un delito?

El 14 de Febrero es unos de los días donde hay un aumento en delitos graves especialmente en violencia doméstica. 

Bajo el código laboral sección 230, es illegal que un empleador despide o tomar represalias contra un empleado por tomar tiempo para asistir audiencias judiciales cuando el empleado a sido una víctima de un delito o familiar inmediatdo de una víctima de un delito.

En California, los empleadores están obligados a permitir a que un empleado asista a una audiencia tribunal, o una junta con una agencia de la fiscalía cuando el empleado es una víctima de un delito o un familiar inmediato de la víctima.

El empleado también tiene la obligación de entregarle al empleador la notificación formal que da la corte o agencia de la fiscalía a menos que el aviso no sea posible. En estas situaciones, el empleador no puede tomar represalias contra un empleado si el empleado presenta su comprobante dentro de un tiempo razaonable.

Si usted cree que su empleador ha tomado represalias contra usted por tomar tiempo libre para asistir a audiencias judiciales o una junta con una agencia de la fiscalía usted podría tener un caso contra su empleador. Llame a nuestra oficina para una consulta gratis.

Should I Sign the Severance Agreement My Boss Gave Me?

Evaluating Whether It Makes Sense To Accept a Severance Package Offered by Your Employer

Losing your job is often a frightening experience, and you may feel financially vulnerable if you are unsure of where you will find your next employment opportunity. When you are being laid off, your employer might ask you to sign a severance agreement – a contract, which typically includes some level of monetary compensation in exchange for a release of your legal rights.

Should I Sign a Severance Agreement?

Signing a severance agreement to obtain a much-needed payout can be understandably tempting, but you should always be careful to protect your interests. Employers will often use severance agreements to restrict your rights in pursuing legal action against them in the future. Consequently, you must thoroughly review the terms of any severance agreement and weigh the pros and cons of signing. Below, we review many of the questions you should be asking, what to watch out for, how and when you should negotiate, and other important factors to consider.

Why Are You Being Offered a Severance Package?

It is important to understand that businesses operating in California are in no way obligated to necessarily offer you a severance package when you are being terminated. This is true even if you are being dismissed due to factors outside your control, like a company-wide layoff. Therefore, you must evaluate why your company has chosen to offer you a severance package and what they hope to gain from you signing a severance agreement.

Note that severance packages can sometimes be obligatory if there are provisions requiring one in your employment agreement. A mandatory severance offer is often included for senior executives and other salaried employees. Unions can also sometimes require some level of severance be offered. An employer might openly have a policy to offer severance packages as a reward for company loyalty.

Absent an existing contract or company policy, however, an employer is most likely to offer a severance package when they seek to protect themselves from future legal action. To accomplish this, the company will attempt to incentivize you to sign a severance agreement, which will voluntarily restrict some of your rights.

If all of this sounds a bit dubious, be aware that severance agreements in most circumstances are considered perfectly acceptable by California courts. Many common provisions of a severance agreement are legally enforceable. In some cases, employers may attempt to include terms that are not enforceable and will not hold up to scrutiny in court. You must also sign the severance agreement voluntarily.

What Are the Terms of the Severance Agreement?

In order to receive the monetary incentives of a severance package, you will first have to sign the severance agreement. It is critical you understand that these terms are seeking to protect the company, not you. Never sign a severance agreement without carefully reviewing its contents. Make every effort to understand what each item means and how it can impact your future rights.

Common provisions of severance agreements include:

  • Non-disparagement requirements. This means you will not be permitted to publicly speak negatively about, or “disparage,” the company or its employees.
  • Restrictions on your rights to file future lawsuits against the company. Signing a severance agreement can mean voluntarily relinquishing the ability to file or participate in lawsuits against the employer, even in situations where there is a legitimate offense. These types of clauses typically preclude you from pursuing cases involving wrongful terminationemployment discriminationsexual harassment, and retaliation.
  • Non-disclosure agreements. In many cases, you will have already signed some form of a non-disclosure agreement, or NDA, as a condition of your past employment. A severance agreement will often reaffirm, renew, or modify the terms of a previously signed NDA. Additions often include restrictions on speaking about why you were dismissed and the terms of your severance package.

Generally, these types of severance agreement terms are considered legally enforceable. This means that if you violate the agreement, your employer has the option of filing a lawsuit against you.

Are There Any Red Flags in Your Severance Agreement?

As we mentioned above, there are some terms that employers will sometimes insert into severance agreements that are neither lawful nor enforceable. In these situations, an employer is banking on an employee not understanding their rights and not having the resources to litigate the matter should it later become a point of contention. Consequently, it is important to identify problematic terms and address them before an agreement is signed.

Examples of terms an employer cannot enforce in a severance agreement include:

  • Requirements that force you to lie under oath. While an employer can include non-disparagement and nondisclosure clauses, they cannot force you to lie if called to testify in court.
  • Requirements restricting your ability to report crimes. While a severance agreement can preclude you from filing lawsuits against a company, they cannot prevent you from reporting crimes carried about by the company or its employees.
  • Non-compete clauses. There are some very limited situations where an employer may be able to specify you cannot work within a given industry for a certain amount of time after your dismissal. California has historically rejected any attempt to enforce these provisions.
  • Any relinquishing of owed wages. An employer cannot lawfully deny you wages that you have earned, including overtime, and unused vacation days. It should also be noted that an employer cannot delay the payment of final wages due to an ongoing severance negotiation.

If one or more of these types of clauses appear in your severance agreement, proceed with extreme caution. Do not sign the severance agreement without first consulting with an experienced employment lawyer.

What Is Included in Your Severance Package?

There is no reason to sign a severance agreement without a robust severance package to justify your relinquishing numerous rights. Companies typically set their own policies on the monetary size of a given package or determine them on a case-by-case basis.

In most cases, the amount offered in a severance package will scale with the number of years that you have been employed at the company. On the lower end, a terminated employee can expect to receive a week’s pay for each year worked at the company. For example, if a person worked at a company for 5 years, they would potentially be offered 5 weeks’ pay in their severance package.

Employers could potentially offer more, with some companies choosing to offer 2 weeks’ pay or even a full month’s pay for each year worked. Your employment or union agreement might also specify the minimum amount of a severance package.

High-ranking executives can even potentially receive a “golden parachute,” a lump sum severance package that is in theory a reflection of their contributions to the company. These larger deals are often negotiated in advance as part of an employment agreement when an executive joins the company.

Can You Negotiate the Size of Your Severance Package?

There is no rule preventing you from attempting to negotiate the terms of your severance agreement or the size of your severance package. You should always know your worth and take the necessary steps to protect your interests.

Keep in mind that severance agreements tend to be inflexible, with companies often refusing to budge on modifying common terms like non-disparagement causes. The only major exception is when concerns about a legally questionable or unenforceable provision are raised. Your employer is likely to take you more seriously if you retain legal representation to assist you in contesting objectionable points.

You may have more luck when negotiating the monetary size of your severance package. Remember that you are under no obligation to sign any severance agreement and can walk away at any time, meaning you may have some leverage in asking for a larger payout. Your employer might attempt to lowball you with a paltry severance despite years of loyal commitment to the company. If you are only being offered one week’s pay per year worked, consider asking for two week’s pay per year. There is generally no harm in countering, and companies are incentivized to do whatever it takes to get a severance agreement signed.

Note that you may have a limited ability to counter depending on your circumstances. Those who belong to a union may have negotiations handled on their behalf by their representatives. An employment agreement might also explicitly lay out the terms of a guaranteed severance offer.

If you have only been at a company for a short amount of time, a severance package may not be offered at all. If you do receive an offer, you will likely not have much room to negotiate, as by that point you will only have made limited contributions to the company.

Are You Considering Legal Action Against Your Employer?

This is perhaps the most important question to consider when evaluating whether you should sign a severance agreement. Most of the rights you give up when signing a severance agreement hinge your ability to participate in legal action taken against your employer.

If you believe you were wrongfully terminated or retaliated against by your employer, you should not sign a severance agreement without first consulting with a lawyer. It can be tempting to accept the immediate lucrative benefits of a severance package, but it is critical that you not give up your rights in the process. A successful wrongful termination lawsuit can lead to the reinstatement of your job, the recovery of lost wages, and awards for punitive damages. In addition to holding your employer accountable for their actions, you will likely receive more money as part of a successful legal action than you would through a severance package.

Employers understand this, which is why their only priority is to protect themselves by limiting financial liabilities. It is typically more cost-efficient to pay a hefty severance package versus undergoing a legal battle waged by a former employee, even if the matter is eventually settled out of court.

Why You Should Seek Help From an Attorney

First, your attorney can review your severance agreement and advise you of potentially adverse provisions in the contract. If you received a severance agreement, your employer (more likely than not) used an attorney to help them draft the agreement.

In using an attorney to help them draft your severance agreement, your employer likely took every opportunity to insulate themselves from a great deal of future risk. For example, most severance agreements contain provisions that make it so that you cannot disclose what you learned or heard while in the workplace and may include penalties if you violate the provision.

Additionally, most severance packages will have some form of limitation of liability on behalf of the former employer. Once you sign the severance agreement, you can no longer sue your employer for any damages for discrimination or other unlawful conduct, such as wage and hour violations. If your employer violated your rights, you give up your ability to take legal action when you accept the severance.

If you are not sure whether or not your severance package will fully cover what you thought it should financially, signing means you can likely never do anything about your concerns. The severance agreement will have been carefully constructed by your former employer’s attorney so that it limits your rights while maximizing the benefits to your former employer.

Even if your former employer does not have an attorney helping them create the severance agreement, you need your own attorney to help you. Your employer might have included illegal provisions in the agreement or could violate laws or statutes in the language that they used.

What they include could be unenforceable, or it could be enforceable and put you in a negative position. Without legal guidance when drafting an agreement, the agreement could be detrimental to either party signing it.

Severance Packages Often Include Non-Disclosure Provisions That Could Expose You to Liability

The contents of your severance package will likely include provisions that require that you not disclose information that you learned while you were employed. This could include information that is essential to the job or trade that you learned and would be valuable to you in your working life after your time with the company.

Non-disclosure agreements can also include penalties and other provisions that could expose you to future liability or litigation. Former employers are not always honest or positive in their intentions, and a carefully crafted non-disclosure agreement could make it so that you have a difficult time getting a job in a similar company or the same industry without exposing yourself to costly litigation in the future.

Non-Compete Clauses in Your Severance Package Could Make You Unemployable

When you are losing your current position and receive a severance package offer, you are likely going to be considering what you will do next to earn a living and support your family. Without a steady income, your financial stability might maintain for a decent amount of time, but the economy is not always stable, but the inflation rate has been on the rise in a very stable way.

Keeping this in mind, knowing that you can line up valuable employment that puts your skills and experience to use is important. However, your severance package might include a non-compete clause that prevents you from working for another company in the area or industry for some time.

A non-compete clause might not seem especially intimidating at the moment of signing your severance package, as you are also ideally getting a check alongside your severance agreement. You can rest assured that this check is as low as possible from the perspective of the employer, as they intend to maintain profitability while getting rid of the employee they are breaking ties with.

The severance package might seem to cover some of your lost wages or salary and other work benefits for some time, but unless you are getting a platinum parachute like the disgraced executives of corporate American during the banking crisis, your settlement amount will run out, and you will be seeking out additional employment.

Losing Employment Value Can Entitle You to Legal Relief

Some severance agreements prevent you from putting your valuable experience and education to work for you. When this happens, your specialty degree with a high student loan payment becomes a liability, as you cannot work in the field, but you still have to keep making student loan payments.

Employers cannot enforce some non-compete agreements for this reason.

When your non-compete agreement prevents you from finding gainful employment that is equal in value to what you did before, a court may refuse to enforce it.

While you might think that you have to take a lower-paying job in another industry or work a lower position because of the severance agreement you signed, this may not be the case. In fact, if you did not work in gainful employment for a considerable amount of time and missed out on wages and benefits because of an unconscionable severance package and non-compete agreement, you could even seek damages.

Your Employment Attorney Can Help You Collect Your Full Benefits

When you receive a severance offer that seems lower than it should be or fails to effectively cover what it should, your employment attorney can help. Our experienced California employment attorneys have handled many cases involving severance and know the norms.

Employers and their lawyers take advantage of employees who have never gone through a severance negotiation by offering them as little as possible while encouraging them to sign as quickly as possible.

Your employment attorney will step into your shoes, take over all negotiations, and ensure that you receive the fullest possible severance package that your employer is willing to provide. If you already accepted a severance agreement, your attorney might have a solution.

If you have questions about whether you should sign a severance agreement or believe you are the victim of wrongful termination, call (619) 342-8000 or contact us online to schedule a free case evaluation.

Private Sector Vaccine Mandate Blocked by United States Supreme Court

On January 13, 2022, the Supreme Court of the United States (“SCOTUS”) ruled against the Biden Administration’s vaccine mandate for private U.S. Companies leaving only one exception for health care workers. 

The Private Sector Vaccine Mandate was announced by the Biden Administration in November of 2021 and required U.S. companies with at least 100 employees to require their employees to be vaccinated against COVID-19 or be tested on a weekly basis starting January 4, 2022. The mandate was set to be enforced by the Occupational Safety and Health Administration (“OSHA”). 

The SCOTUS ruled that the Biden Administration cannot enforce a vaccine-or-test requirement for private entities. However, an exception was made for healthcare workers employed at federally funded healthcare facilities. The Court’s ruling allows for most health care workers to be vaccinated against COVID-19 or be tested on a weekly basis. As a result, OSHA will continue to enforce the vaccine mandate for the small population of unvaccinated health care workers. 

Despite the ruling, the traditional rules of exemption continue to apply. Click here to learn more about the religious and disability exemptions that apply

I’m Working as a Retail Merchandiser — Am I an Independent Contractor or an Employee

Retail merchandisers work in almost every industry one can think of throughout California. Their work may vary based on the details of a particular industry, but the core of the work generally involves setting up and managing product displays at a variety of retail outlets in a given geographical area. Some merchandisers work “in-house,” managing inventory and floor displays for a particular retail outlet. Other merchandisers work for a non-retail company, and their work revolves around displaying that company’s product at a variety of different retail outlets. 

Merchandisers, particularly those in the second category, may sometimes be classified as independent contractors by the company hiring the merchandiser. When companies hire workers as independent contractors, they avoid guaranteeing minimum wage, paying overtime, or providing other important benefits to workers. But this classification can be erroneous as a matter of California law if the company hiring the merchandiser cannot pass the so-called “ABC” test, which determines whether a worker is properly classified as an independent contractor.

A company can fail the ABC test if it exercises too much control over the manner and means of how the merchandiser performs their job. The test also requires that merchandising the products falls within the usual course of the hiring company’s business. Finally, the merchandiser must be set up in an independent trade or business. 

Importantly, it does not matter whether a worker agrees to be an independent contractor rather than employee, and it does not matter if the worker signs a contract that refers the worker as an independent contractor. What matters is the nature of the actual work performed.

If you are working as a merchandiser, ask yourself some of these questions:

Does my employer tell me when to work? Does my employer tell me what to do, or otherwise give me specific instructions on how to do my job? Does my employer tell me what to wear? Does my employer require me to check in frequently? Are the products I am merchandising the kinds of products my employer produces for sale? Am I working for any other companies? Have I set up a business for myself as a merchandiser with independent business finances, an entity structure (such as an LLC or a corporation), and/or separate efforts to promote and market merchandising services? 

These is just a few examples of the facts an experienced labor attorney could consider to determine whether you are properly classified as an independent contractor. If you answered “NO” to the last question, or “YES” to any of the others, you might be misclassified. 

Deliberate misclassification can be a tactic for employers to dodge paying minimum wage or overtime to their workers, and to avoid their responsibilities to contribute to the Medicare and social security safety nets on which many workers rely when they reach retirement age. Misclassified employees can file claims with the California Labor Commissioner, or private lawsuits to recover unpaid wages and benefits. If you have any doubts about your status, you should consult with an attorney for advice.

California Workers Will Suffer if the US Supreme Court Invalidates the Private Attorneys General Act

The United States Supreme Court’s impending decision in Viking River Cruises, Inc. v. Moriana has the potential to reshape California labor law in a way that will harm workers in this state. In California, the state Department of Industrial Relations (itself a part of the Labor & Workforce Development Agency) is the government branch that prosecutes violations of state laws regulating minimum wage and working hours. The state has long had the power to enforce California labor law by collecting unpaid wages on behalf of workers and by collecting penalties that an employer in violation of the law would pay to the state. However, the state government has never had the manpower or resources to combat every Labor Code violation that occurs within the state. 

The Private Attorneys General Act of 2004 (“PAGA”) increased the state’s power to enforce labor laws by empowering California workers to prosecute civil lawsuits on behalf of the state government. Under the PAGA, workers can sue when their employers violate California labor law, and an employer in violation of state labor law can be forced to pay a penalty to the state, with a portion going directly to the workers as an incentive to bring cases on behalf of the state. Most importantly, the PAGA permits workers to sue not only on their own behalf, but on behalf of all other similarly aggrieved employees. Thus, a single worker can protect the rights of all workers by collecting penalties for a large group of workers in a single lawsuit. 

Since its inception, the PAGA has proven to be an effective tool for protecting workers’ rights. Not only does it help bring in millions of dollars in penalties that benefit the state, the PAGA has provided individual workers with a powerful tool to advocate on their own behalf by filing representative actions on behalf of the state when the state does not have the resources to fight its own battles. 

This has been most acutely felt in California as a check against the rise of class action waivers imposed on employees as a condition of employment. From an economic perspective, many lawsuits to recover unpaid wages do not make financial sense because the amount of money at issue, although usually significant to the aggrieved worker, is often dwarfed by the time and expense of litigating a civil case to recover an individual workers’ unpaid wages. For many years, class action procedures offered a solution to this problem by giving workers a chance to aggregate their claims, which permitted courts to resolve disputes much more efficiently. As a means of avoiding liability, many employers have begun requiring their employees enter into so-called “class action waivers” as a condition of employment, which essentially nullify the class action procedure. By removing the possibility of a class action, employers are able to create a system where individual workers have no economic incentive to protect their rights, and they cannot count on the government to do it for them because the government lacks adequate resources.

As a consequence of class action waivers, many labor code violations might go unpunished because of the economic disincentives to litigating individual cases. The PAGA helped ameliorate this problem for workers because California courts have consistently ruled that, unlike the right to bring a class action, which can be waived by an individual litigant, the right to prosecute labor code violations on the behalf of the state government cannot be waived as a matter of fundamental public policy. Thus, even if an employer could deprive workers of class action procedures, the workers could still band together under the PAGA and obtain some relief for themselves (and some for the state) with efficiency similar to a class action.

Of course, the PAGA is not a 1:1 replacement for true class action procedures. In a traditional class action, all wages recovered would be paid directly to the workers. The PAGA recovers civil penalties, and 75% of the penalties recovered are paid directly to the state while the workers share the remaining quartile. But compared to the alternative—not filing a case at all because of the economic disincentive—the workers’ option with the PAGA is clearly superior.

Now, corporations are asking the United States Supreme Court to invalidate the rule that employers may not force workers to waive their right to bring representative actions under the PAGA. Their argument relies on the Federal Arbitration Act (9 U.S.C. §§1-16), a body of law that was originally enacted during the Roaring Twenties to facilitate resolution of private commercial disputes, but which has received a series of ever more expansive interpretations in the US Supreme Court. 

Over the years, corporations have convinced the Supreme Court to interpret the Act expansively, so employers can force workers to arbitrate legal claims against their employers (as opposed to bringing those claims in court) even when forced arbitration would violate California law, and also to prevent workers from joining together in class actions. Now, corporations have asked the Supreme Court to issue a rule that, under the Act, employers can force employees to waive their right to bring representative actions, including actions under the PAGA. 

As a matter of doctrine, federal courts have thus far agreed with California courts that (a) parties may not waive the right to bring a PAGA action because such waivers violate public policy; and (b) claims under the PAGA are not subject to arbitration agreements because a PAGA claim concerns a dispute between the employer and the state of California, and the state is not a party to any contract with the employer. 

But the Viking River Cruises case has the potential to upend this rule because businesses are urging the Supreme Court to expand the rule permitting class action waivers to the point where it would also encompass waivers to bring representative actions. Although a representative or qui tam action is fundamentally different from a conventional class action, businesses hope the Court will rule the two devices are fundamentally interchangeable for purposes of federal arbitration law. 

A favorable ruling on this case will substantially impede the rights of workers not only in California, but also in other states that have enacted, or are thinking about enacting, laws like the PAGA. Deprived of the ability to aggregate their claims in a representative action, workers will lose a powerful tool to combat wage theft, and businesses will continue to evade justice by using a 100-year-old law to make substantive legal rights procedurally impossible to assert. 

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