EMPLOYEE MISCLASSIFICATION

Employers bear the burden of misclassifying their employees. As an employee throughout California, you will likely either be classified as an employee, or classified as an independent contractor. Employment agreements should include the accurate classification of the employee. Proper classification as employee or independent contractor is critical to ensure receipt of correct pay including overtime pay and credit for income tax deductions in accordance with both federal and California state law.

CONSEQUENCES OF EMPLOYEE MISCLASSIFICATION

If you are misclassified as an independent contractor when you should be classified as an employee, you may experience negative consequences including, but certainly not limited to, the following:

Inability of employee to access crucial benefits, such as health insurance, and the inability to utilize sick leave or personal time off;
Significant underpayment of taxes, as taxes, social security, and Medicare may not have been withheld from your paychecks, creating a situation where you may owe thousands when taxes are due;
Failure to obtain overtime pay as an employee would; and
Inability for a misclassified employee to qualify for unemployment benefits.

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EXPENSE REIMBURSEMENT

Employers must reimburse their employees for all necessary expenditures or losses incurred in the discharge of their duties. Labor Code §2802. Common expenses include travel and automobile expenses, including a reasonable mileage reimbursement, and cell phone expenses if the employer requires the employee to carry a cell phone. The Internal Revenue Service’s standard mileage reimbursement rate for business travel is 56.5 cents per mile for 2011. Employees working from a home office are entitled to reimbursement of business expenses as well. Labor Code section 2802 has been interpreted to require employers to indemnify an employee for legal costs incurred defending lawsuits arising from conduct within the course and scope of employment. For example, one employer was required to reimburse an employee for legal costs arising from the employee’s successful defense of a sexual harassment lawsuit by a co-worker.

MILITARY STATUS DISCRIMINATION

Sadly in today’s world the women and men who serve this country are discriminated in the workplace because of their service to their country. An individual’s military status can create a situation where discrimination may be present in the workplace, or where employers are failing to follow federal and state laws in allowing military personnel certain accommodations that are not available to employees not in the military. Whether you are currently in the military, are planning to join the military, or are a veteran, you have rights that must be protected. The more you know about what rights and obligations you have as an employee with military status, the more you will be able to protect yourself if you face discrimination, harassment, or other mistreatment in the workplace.

EXAMPLES OF MILITARY STATUS DISCRIMINATION IN THE WORKPLACE

Under federal law, employers must allow employees with military status to take time off when they need to leave to perform their duties to protect this country. Further, returning veterans have a right to return to their jobs, and cannot be terminated simply because they have been gone as an active member of the military. In addition to meeting requirements prescribed by both federal and state law, employers and fellow co-workers cannot discriminate and/or harass an employee based on his or her military status.

Also, many veterans may return from war with disabilities, and some are mistreated in the workplace or made fun of for having such disabilities. As is the case with any other form of discrimination, victims have the ability to hold the responsible party accountable for their conduct. Given that this country is politically divided when it comes to war, it isn’t uncommon to witness workplace discrimination based on one’s military status and/or any physical or mental disability associated with a veteran’s return, even though such conduct may be surprising to the average person. No matter what the facts of your situation are, it is important that you have the opportunity to tell your story through the trial lawyers of the Law Offices of Terry K. Davis.