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Uber says drivers are independent contractors, drivers say they are employees

More and more employees in California are taking a hard look at the nature of their employment contracts.

Are they being denied benefits? Is their employer flaunting the law and not paying them formeal breaks or allowing rest time? Are they wrongly classified as independent contractors when in reality they are employees?

An Uber company driver is suing the company in federal court by invoking the Fair Labor Standards Act and alleging he is owed unpaid wages. Legal counsel is requesting that the court grant class action status to permit other drivers to join the suit.

This is not the first lawsuit of a similar nature that Uber is dealing with either. Three other drivers are making claims they are not independent contractors but rather employees and thus entitled to various benefits such as claiming expenses. In his statement of claim, Greg Fisher says he should be paid minimum wage, overtime wages (overtime must be paid after 40 hours of work per week) and other damages under the law that were not paid due to Uber classifying him as an independent contractor.

Fisher alleges he has driven for the company forstints of longer than eight hours. Of interest is that the California Labor Commission (CLC) has a decision on record that may impact Uber and other companies that utilize on-demand workers. The Commission ruled a specific Uber driver, Barbara Berwick, was indeed entitled to be paid for driving expenses, an amount of $4,152 which included toll fees she paid out while driving and a per mileage expense rate of 55 cents per mile.

The main question in these cases revolves around just how involved Uber is with its on-demand workers.According to the CLC, Uber not only approves drivers, but vets them first, dictates what cars they drive, tracks their ratings, controls the amount of money they earn by setting rates and manages driver access to the Uber application. Therefore, a driver is an Uber employee.

If you are in a questionable job situation and do not know if you are an independent contractor or not, talk to an experienced employment attorney who understands the labor laws in your jurisdiction. You may find out you are actually an employee and may be able to sue for unpaid and overtime wages that you are entitled to under the law.

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Guess Retail Inc. former worker alleges unpaid meal breaks, improper payment of wages

This lawsuit is the third launched against Guess Retail Inc. this year and has the potential to become a class action lawsuit. Burgos v. Guess Retail Inc., Case No. BC592087, in the Superior Court of the State of California, County of Los Angeles.

Former employee Kriss Burgos alleges that she was not paid for missed meal breaks, was improperly paidlater than mandated by law on termination and that there were other irregularities relating to wage payment and her employment records. Court documents indicate that Burgos was a non-exempt hourly worker and required to work without rest or meal breaks and was never compensated for them.

According to California labor law, employers must provide for regular rest breaks and an uninterrupted 30-minute meal break after the fifth hour of working.

There are five claims of violations, and the lawsuit is seeking straight time, overtime and double compensation due to Guess’s alleged failure to pay, as well as other compensatory damages and penalties.

Any worker who believes they have been unfairly denied meal or rest breaks or who were not paid according to the existing labor laws of their state should seek experienced legal counsel to determine their rights and how to proceed with a lawsuit, if that is the appropriate course of action.

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Misclassification of independent contractors an issue nationwide

Misclassification of workers as independent contractors is a problem nationwide. A misclassification of employee status prevents workers from attaining workplace benefits to which they may be entitled.

Recently, Idaho signed a memorandum of understanding with the U.S. Department of Labor to collaborate to identify businesses that engage in this illegal activity and to stop the misclassification of independent contractors. This latest move to protect workers brings Idaho in line with 23 other states that have similar agreements in place.

Those states are: Alabama, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New York, Rhode Island, Texas, Utah, Washington, Wisconsin and Wyoming. The issue that prompted revamped legislation is that state and federal agencies need to know with certainty what actual benefits and protections are accorded to an employee, such as family medical leave, employment taxes, meal and break periods, overtime pay and minimum wage.

If a worker is misclassified,the business cheats the government out of legally mandated taxes and cheats workers out of legally mandated protections. Misclassification of a worker is a benefit for a company until it gets sued or reported and investigated. It is actually less expensive for the company to strictly comply with the labor laws of each state, or make it their priority to find out what those laws say, rather than be sued and have the court award a higher amount than may actually be owed.

If companies are allowed to get away with misclassifying workers, they also unfairly affect the tenor of the industry in which they compete. It is an unfair and illegal advantage to misclassify workers to get a competitive pricing edge to obtain more clients. Enforcement of stated labor laws protecting workers is the priority of states seeking to level the playing field and protect workers.

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Wrongful termination lawsuit filed against California radio station

In Los Angeles, California, two former employees of a radio station filed lawsuits alleging wrongful termination as defined by California labor laws. They are accusing the station of engaging in acts that constitute defamation of character. The employees claim that the company retaliated against them for being whistleblowers regarding fraud perpetrated by the station, and the hiring of illegal immigrants.

The defendant, Grupo Radio Centro LA LCC, has denied the allegations. The plaintiffs are Sean O’Neill, who worked in the role of vice president/general manager, and Rosa Ambriz, who served as office manager. After entering into a four-year contract, O’Neill started working for the station in January 2014. He was terminated in August 2014 after having worked there for only seven months. Ambriz was laid off from her role at the same time.

The plaintiffs allege that Grupo terminated them after they were vocal about fraud concerning Nielsen ratings, and “payola” and “plugola,” which are methods of payment and incentives to publicize and/or advertise products illegally. They claim that Grupo retaliated against them by creating a hostile work environment, subjecting them to unbearable working conditions, and wrongfully terminating them. In response, Grupo’s legal counsel claims that O’Neill was fired because he failed to meet sales goals, in addition to allegations that he harassed employees.

While O’Neill alleges that Grupo violated the California Labor Code and committed breach of contract, defamation and wrongful termination, Ambriz accuses Grupo of wrongful termination and violation of the California Labor Code. There is also a co-defendant named Ricardo Sanchez, who is alleged to have composed a memo to O’Neill dated July 8, 2014, that contained remarks that were defamatory and demeaning. It is alleged that the email accused O’Neill of producing low morale among the sales workers, and that it accused O’Neill’s department of underperforming. In addition, the email stated that the clients felt uneasy engaging in business dealings with O’Neill, and that O’Neill destroyed the station.

If you think that you are the victim of wrongful termination or other violations of California labor laws, you should consult an employment lawyer.

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Wholesale bakery commits wage theft violations

A wholesale bakery based in Vista, San Diego, was cited for several wage violations, with assessments totaling more than $185,000. According to an investigation, Cookies con Amore, which sells its gourmet cookies to gourmet grocery stores and Whole Foods, consistently withheld overtime pay, rest and meal breaks from 73 workers, and compelled a number of them to sign a statement consenting to the wage theft violations. Interviews of employees and an audit revealed that such violations occurred between October 2013 and December 2014.

Although workers labored for shifts of 10 or more hours, they were compensated at straight time, and did not receive any overtime pay. They were permitted just one 30-minute break without any other rest period or break for a second meal. If the workers did not sign the statement agreeing to the unfair working conditions, they were directed to seek other employment.

The investigation by the Labor Commissioner was conducted in response to complaints received from California Rural Legal Assistance (CRLA), which is a non-profit program focusing on legal services. The Office of the Labor Commissioner, which is officially called the Division of Labor Standards Enforcement, examines workplaces to determine whether any wage and hour violations have been committed, adjudicates wage claims and enforces wage rates in public works projects. It also investigates whistleblower and retaliation complaints, provides licenses and registrations for businesses and informs the public about labor laws.

A public awareness campaign called Wage Theft is a Crime was launched in 2014 by the Department of Industrial Relations (DIR), and has assisted workers in becoming more aware of their rights. The campaign consists of print and outdoor advertising as well as radio commercials on ethnic stations in different languages.

If you think you have been the victim of wage theft, you should consult an experienced employment lawyer.

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Workers not relieved of all duties while on rest breaks, says California Court of Appeal

In Augustus v. ABM Sec. Services, Inc., the Court ruled a security firm had indeed provided rest breaks for guards, despite the fact they were always on call. An important takeaway from the January 2015 decision is that while California law prohibits workers from working while on breaks, it does not prohibit employers from relieving workers’ from all duties during rest breaks. If a worker is on call during a rest break, they are still deemed as officially working and must be compensated.
California law says workers must have meal breaks and rest breaks. If they work more than four hours, they must have a 10-minute period during which they are not working on duty. Workers on duty for over five hours must have a half hour meal break during which they are relieved of all duties.
According to the case file, all guards at ABM Security Services were hired to provide security for the building to which they were assigned, deal with any safety or emergency situations, raise and lower flags, greet visitors, escort workers to their vehicles and control access to various buildings. All guards had defined breaks, but were required to keep their communication devices with them at all times and respond if they were needed.
The statement of claim alleged that ABM was in violation of California’s labor laws because workers had to keep communication devices with them continuously and respond if needed.

The Court pointed out that the Labor Code does not specifically mandate that a rest period look different from the workday. It only states that workers must not work during those breaks and that “even if an employee did nothing but remain on call all day, being equally idle on a rest break does not constitute working.” The court decided that on-duty rest breaks were permissible because “remaining available to work is not the same as performing work.”

Labor laws are not always clearly written, and it is only through challenges to the Labor Code that the courts are able to further clarify what the intent of the Legislature had been in drafting the law.

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New law puts California businesses bringing in contract workers between a rock and hard place

California has its fair share of labor laws in place to protect workers and ensure they are paid fairly, fully and on time. However, a new law that became effective January 1, 2015, is going to put a serious crimp in how California hotels, motels, bars and restaurants do business.

The law, California’s AB 1897, states that California businesses contracting temporary workers from another employer are liable to the workers if their employer fails to pay them overtime, pay them on time if they quit or are terminated, provide rest and meal breaks or is in violation of other wage-related laws. Put another way, businesses that hire contract laborers such as parking valets or landscapers are now legally liable for the contract company’s wage violations against their workers.

An employer who sends their hourly wage earners to another business to work is now deemed to be a labor contractor. The business using the employees is now deemed a client employer. There are some exceptions to the new rule, and in order to stay out of trouble with the Department of Labor, it is important to understand the new changes and what they may mean for your business. It is also a good idea for any worker regularly hired out to another business to perform tasks on their premises to find out what rights they now have if there is a wage and hour dispute.

This new law has the potential to greatly affect how hotels, motels, bars and restaurants operate. They regularly hire outside companies to take care of valet parking, janitorial services, security and window washing. Liability under this law is apt to be extremely pricey. If you do not understand how this law may affect you, speak to an experienced employment attorney and find out what you need to know.

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Honesty and Ethics in Business Law: Take Care When Filing a New Corporation

When you start a new company, there is more to consider than the filing you choose for the corporation. Your company must take great care to file honestly and ethically.

The case of Santa Ana Corinthian Colleges presents an example of exactly the opposite behavior. In a lawsuit filed by the Attorney General of California, the Colleges have been charged with misleading investors by means of securities fraud, creating false and predatory advertising aimed at low-income students and unlawfully using military logos that gave the impression that the Colleges were affiliated with the United States Armed Forces.
Santa Ana Corinthian Colleges operates 111 campus locations in North America, with approximately one-third of its 81,000 students taking their courses in California. The Colleges aim their advertisements at veterans, low-income individuals and single mothers. Most of the College’s income is derived from tuition, which is funded by the federal loans obtained by its students.

Allegedly, specific, attractive classes were advertised, but when prospective students came to tour the campus, they were told that the program in which they were interested was not available. The Colleges are also accused of placing military logos on websites and direct mail marketing to give the false impression that the school was approved by the U.S. Armed Forces, a distinct violation of California law. Furthermore, the company allegedly committed securities fraud, offering investors falsified information that claimed a 100 percent job placement rate.

The lesson in this debacle? Take care with more than the filing setup of your company. Stay on the right side of the law ethically and legally, no matter the kind of corporation for which you file. The consequences of misleading state regulatory officials and your potential customers can be severe.

Promise Me Not

Breach of contract lawsuits must have a foundation in a legally enforceable promise.

A breach of contract lawsuit isn’t quite as straightforward as many people might think. It isn’t just a matter of someone making a promise and then not following through. There is more to it than that, as not all promises are enforceable in a court of law. The real question becomes just what is a legally enforceable promise as compared to those little promises people make, and then don’t actually follow up on them.

To know what is enforceable is to know what is not enforceable, and that would include things like promises or jokes that a reasonable person wouldn’t take seriously; any undertaking made by someone under the age of 18; assurances made by someone with mental problems; oaths to commit illegal acts and pledges not in writing when they are required to be in writing. There are many other vows that are not legally enforceable as well, but these are best discussed with a skilled Sacramento business lawyer when discussing the possibilities of a breach of contract lawsuit.

There is a fairly strong emphasis on the use of the term “reasonable” in the justice system. This is due to the fact that many cases are decided on the basis of what a “reasonable person under similar circumstances” should have known or done. In other words, that “reasonable person” makes his or her presence known in the courtroom and to juries trying to arrive at a decision as to whether or not a legally enforceable promise has indeed been shattered. If a contract has been violated, the person who caused the damage (broke the promise) must make it up to the person who lost the benefit of the original promise in the first place.

Suffice it to say that a legally enforceable promise then becomes one made by an adult of sound mind to do or not do something on which another person relies. It’s often not quite that simple, which is why consulting an expert Sacramento business lawyer is a necessity in breach of contract cases. Deciding if a lawsuit is worth it, depending on the facts of the case, may be the first hurdle to surmount, as lawsuits are expensive. There is the option to sue in small claims court, but the limit in California is $7,500.

The best thing to do if faced with a possible breach of contract situation is to discuss all the details of the possible case with a Sacramento business lawyer. Choose battles like this wisely, as much may be riding on the outcome.

Trademark Confusion

The Confusion over Trademarks

Many people don’t seem to understand the differences between trademarks, copyrights and patents.

It’s an interesting world out there, full of signs, slogans, logos, books, artistic work, and too many other things to mention in a short article. But the main thing to know is that there is a distinct difference in what a trademark is, what copyright means, and what one does with a patent.

Trademark rights act to protect a word or logo as being “the” source for goods/services. E.g. Nike. The instant anyone says that word, we all think of running shoes and well, Michael Jordan. This is the true definition of a trademark. Now here is the interesting thing. You don’t need to file for trademark registration to have common-law trademark rights, but let’s put it this way — if you don’t file and someone infringes on those rights, you’d have a tough time enforcing them. So, it’s best to be safe and not sorry, and file with the US Patent and Trademark Office.

Other things that registering will do for you is provide the “presumption” you’re the trademark’s rightful owner and gives you statutory damages against someone using your mark in bad faith. Once your “mark” is registered, you need to remember to always keep protecting it to keep your trademark rights.

The Copyright Conundrum

The easiest way to explain copyright is to say that if you create something and it falls under the definition of being a creative work, it’s up to you who makes copies and how many copies. Of course, there are exceptions, and knowing what those exceptions are happens to be important.

At this point, it’s usually smart to contact a lawyer well versed in this area, as this type of law has the potential to be extremely complex. By the way, you may sell or even license this copyright, or if you have done work for someone else, then they buy this right in advance.

The major difficulty is defining what constitutes a creative work. Legally, it has to exist in some tangible form — on paper, a disk, or even written in stone. However, what it’s written on isn’t what makes it creative. To be creative, it can’t be just straight factual data; that is where an easily understandable explanation usually ends, as there honestly is even an element of creativity to coding in computer language.

Anything you do that is classified as creative writing, creative editing, etc., is copyrighted. So the distinction is this: the facts can’t be copyrighted, but a very clever and creative organization of those facts may be. This is referred to as compilation copyright. In short, this area may make your head spin, so speak to a copyright lawyer who has his or her head on straight and can outline what you need to know.