By: Meagan Christiansen

Just this week, the Department of Labor (DOL) and the Internal Revenue Service (IRS) announced they are joining together to prevent employers from misclassifying employees as independent contractors. On September 19, 2011, Secretary of Labor Hilda L. Solis hosted a ceremony at the DOL headquarters in Washington to sign a memorandum of understanding with the IRS, which allows the agencies to share information and coordinate enforcement of employers thought to be misclassifying independent contractors. Seven states also signed similar agreements, including Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah, and Washington.  Hawaii, Illinois, Montana, and New York are expected to follow shortly. California is likely to sign on at some point in the not too distant future.

The reasons behind the increased scrutiny are two-fold. For one, independent contractors are ineligible for minimum wage and overtime pay, unemployment insurance, workers’ compensation and social security benefits.  Second, the government does not collect employment taxes on compensation paid to independent contractors.  Therefore, where misclassification occurs, federal and state governments lose out on much needed tax revenues.

What does this mean for you? It is becoming increasingly apparent that both federal and state government agencies are cracking down on the misclassification of independent contractors. Employers who contract with independent contractors should carefully examine those classifications to ensure misclassifications are not occurring. Doing so will allow employers to avoid costly consequences due to increased federal and state scrutiny. 

By: James Kachmar

On September 14, 2011, the California Legislature enrolled Senate Bill 459 and presented it to Governor Jerry Brown for signature. (As of the time of this post, the Governor has still not acted on SB 459.)

SB 459 was introduced by Senator Ellen Corbett to address the issue of misclassification of employees as independent contractors. Under California law, there is extensive statutory provisions that address the employee/employer relationship and provide numerous protections to employees in areas such as minimum wage, overtime and working conditions. SB 459 was introduced to prevent the misclassification of employees as independent contractors so that “true” employees could receive the protections of these statutes. SB 459 would subject employers to civil penalties of up to $25,000 per violation in the event that an employer willfully misclassifies an employee as an independent contractor. SB 459 also provides employees with a private cause of action if they suffer actual harm.

Continue Reading Legislative Alert: Employee Misclassification Bill Sent to Governor

By: Chuck Post

Over the last year, Weintraub Genshlea Chediak Tobin & Tobin has tripled the size of its employment law department. In addition to enhancing the services we can provide to our clients, this growth has allowed us to continue presenting our quality seminars and maintaining our Labor and Employment Law Blog. Our results have paid off. We are pleased to announce that LexisNexis has ranked our blog as one of the Top 25 employment and labor law blogs in the nation for 2011. We are honored and proud to receive this recognition given the number of other high quality labor and employment law blogs out in the blogosphere.

Voting is now under way to determine the nation’s top (#1) employment and labor law blog for 2011. If you have enjoyed reading the commentary and information we regularly provide on our blog, please take the time to vote for “The Labor and Employment Law Blog” as the Top Blog of 2011 by clicking here.

We look forward to continuing to provide you with commentary and information about developing employment and labor issues in the years to come. Thank you.

By: Susan E. Kirkgaard

Employment claims of discrimination based upon national origin have risen over 65% since 1997, according to the EEOC. This statistic becomes even more striking when one considers that discrimination claims in general rose only 20% in the past ten years. Recent EEOC decisions present the ongoing trap for the unwary – if an employee or job applicant is treated less favorably because of language, accent or ethnic background, the employee may have a claim for national origin discrimination.

In California, the workforce is extremely diverse – according to the U.S. Census, 39% of people in California speak a language other than English at home. Even going back to 2002, 28% of California residents then were foreign born. That number has increased to date. So what does that mean for California employers? Last September the EEOC accused supervisors at an Oxnard flower wholesaler of harassment laced with national-origin bias, including such remarks as Mexican women didn’t “know their place.” (EEOC v. Cyma Orchids, Inc., No. 10-7122 (C.D. Cal. complaint filed Sept. 23, 2010).) Use of such language should be clearly off limits – training and supervision of managerial staff is key to curtailing this discriminatory conduct and creating an environment where such language would not be tolerated. 

Continue Reading National Origin Discrimination Claims on the Rise!

Beth West, Board Chair of the Sacramento Employer’s Advisory Council, invites you to attend the SEAC’s all-day seminar, “From Twitter to Facebook: Avoiding The Risks of Today’s High-Tech Workplace,” at the Holiday Inn Capitol Plaza on October 24th, 2011.

Continue Reading Join Weintraub attorney and SEAC Board Chair, Beth West, at the SEAC’s full-day fall seminar “From Twitter to Facebook: Avoiding the Risks of Today’s High-Tech Workplace”