Independent Contractors and Misclassification

With the New Year beginning many employers are gearing up to hire new workers. Many of these new jobs will not be made under traditional employment relationships because employers are seeking ways to reduce overhead costs in the continuously struggling economy. The most common way for an employer to reduce their staffing costs is by contracting out for services by using independent contractors. However, many employers unfairly mislabel workers as independent contractors to avoid payroll taxes, overtime, and break requirements. With the Affordable Care Act’s employer mandate around the corner in 2015 most employers are tempted more than ever to state that their workers are independent contractors. However, independent contractors have rights as well, and those rights are not limited by the mere fact of being labeled a contractor.

Independent Contractors Protected from Discrimination

Although independent contractors may not sue for discrimination under the Fair Employment and Housing Act (FEHA), many do not realize that the Unruh Civil Rights Act protects contractors from being discriminated against on the base of disability, race, age, genetic information, religion, sex, martial status, nationality, ancestry, color, sexual orientation, and similarly related personal characteristics. In fact lawsuits brought under the Unruh Act may be more freely prosecuted because unlike FEHA claims, which require a right to sue letter to be granted, Unruh Act claims may be plead without filing a charge with the Department of Fair Employment and Housing.

Independent Contractors Not Protected by Fair Labor Standards Act

When it comes to pay independent contractors are not protected by California or federal overtime, minimum wage, and payroll standards. However, to determine whether a worker is an employee or contractor an employer must perform the economic realities test. The 8 factors of the economic realities test are:

1) Whether the worker is engaged in a distinct business

2) The level of supervision given to the worker

3) The level of skill required

4) Whether the worker supplies the tools and place for work

5) The time it takes to perform the services

6) The method of payment

7) Whether the work is part of the regular business of the employer

8) Whether the parties believe an employer-employee relationship exists.


The basic gist of the test is that the more control the employer has over the worker and the more the worker is vital to the employer’s business, the more likely it is that the worker is an employee.

Employment Law Expertise

If you have been misclassified as an independent contractor or discriminated against by your employer contact the Law Offices of Michael S. Cunningham. Our seasoned employment attorneys can provide you with a case evaluation to help you determine your best legal options. Call (858) 376-7390 today.

Janitorial Services Company Cited $332,675 by Labor Board for Failure to Pay Wages

Unpaid wage claims can be extremely expensive for employers in all ranges of business, from janitorial services to high level professional services.  The California Labor Commissioner recently demonstrated this by filing citations against a bay area janitorial services company, the Little Lopez Corporation, which allegedly denied overtime and breaks to employees.

The Labor Commissioner’s investigation revealed that the company forced employees to sign blank timesheets so that they could falsify records. According to a press release issued by the Labor Commissioner the company also denied the workers 10 minute breaks because they were forced to combine their breaks during their lunch time.

The Little Lopez Corporation provides janitorial services for many large supermarkets throughout Northern California, including Raley’s and FoodMaxx. The citations included $236,175 for wages that should have been paid to workers, as well as $96,500 in civil penalties.

California Wage and Hour Law

California requires all non-exempt employees who work more than 8 hours a day to be paid at 1 and ½ times their normal hourly rate. Any time a non-exempt employee works over 40 in a week must also be paid at the time and a half rate. Employees must be allowed to take a 30 minute uninterrupted break before their 5th hour of work.

When employers violate these or other labor codes filing a claim with the Labor Commissioner is not the only way to get the wages that your employer owes you. In fact, filing a private lawsuit is often advantageous to filing a claim with the labor commissioner. First, if you file a private lawsuit against your employer you are entitled to perform discovery to get enough evidence to prove that a violation occurred. Getting an attorney in a private lawsuit is also advantageous because an employer can appeal a labor commission claim to a court within 60 days of the decision, which leaves you with little time to get an attorney willing to take the case.

Claim Your Unpaid Wages Today

If you suspect that your employer has failed to pay your wages due contact the Temecula labor board attorneys at the Law Offices of Michael S. Cunningham. Call (858) 376-7390 for a free consultation today.

Americans with Disabilities Amendments Act Compared to Fair Employment Housing Act


In almost all aspects, California law is friendlier to employees than Federal law. This is especially true when it comes to disability discrimination.

Definitions of Disability

California’s Fair Employment Housing Act (FEHA) prevents discrimination against any employee with a physical or mental impairment that limits one or more major life activities. It also protects employees with a history of having an impairment or who are regarded as disabled. The Americas with Disabilities Act (ADA) provides similar protection, but it adds the extra hurdle of requiring that the impairment substantially limit a major life activity.

Courts Strictly Uphold ADA Disability Requirements

It is much more difficult to prove that an employee has a disability under ADA than under FEHA. A recent case from the 5th Circuit Court of Appeals demonstrates this. In Neely v. PSEG Tex., LP () an employee with major depressive disorder and generalized anxiety disorder sued his employer for disability discrimination after he was disciplined and terminated for several disagreements with his supervisors.

At trial the jury decided that the employee could not prove that he was disabled, even though he had been diagnosed with the above disorders. The employee appealed the decision, arguing that whether he had a disability did not need to be proven. The 5th Circuit strongly disagreed. Although in 1991 ADA was amended to make it much easier to prove a disability, the court held that disability still must be proven in order to win a disability discrimination lawsuit.

FEHA Disability Definition is Much More Relaxed

FEHA’s focuses more on whether the employer discriminated against the employee, rather than whether the employee was actually disabled. FEHA broadly construes the definition of disability and does not take into account whether medication or an assistive device can resolve the limitations imposed by the medical or psychological condition. That means that even if a hearing impaired employee can have normal hearing with the use of a device, they will still qualify as being disabled under FEHA.

Usually, having a diagnosed medical condition other than sexual behavior disorders, compulsive stealing, pyromania, and illegal substance addictions will entitle an employee to FEHA protection. If the Neely case had been brought under California law, the employee would have likely met the definition of disabled.

Stand up to Disability Discrimination

If you have been discriminated against contact the Law Offices of Michael S. Cunningham for a free case evaluation. Call (858) 376-7390 today.

New Rights for California Employees in 2014

New Rights for California Employees in 2014

Last year the California legislature passed many new protections for employees. This article will review 3 of these new laws. The following laws all took effect January 1, 2014.

Limitation on Employers’ Ability to Recover Attorney’s Fees: SB 462

Employers who successfully defend against unpaid wage lawsuits may not recover attorney’s fees from their employees unless the employer can show that the employee brought the lawsuit in bad faith. In other words if the employee knew that they did not have a valid claim but brought the lawsuit anyway, the employer could recover the costs of defending the lawsuit from the employee. However, this law does not apply to cases where there employee is seeking unpaid overtime or for violations of the minimum wage law. Employers in these situations may generally not recover attorney’s fees.

Overtime for Personal Attendants: AB 241

Personal attendants were previously exempt from overtime requirements, however they now have special rights. A personal attendant must be paid one and a half times their regular rate of pay for all hours worked in excess of 9 in any workday and for more than 45 hours in a week. A personal attendant is defined as an individual employed in a private home to supervise, feed, or dress a child, or care for a person who, due to age or mental or physical disability, needs supervision. These employees must be hired by a private party or a third party that is recognized in the healthcare industry to provide these services. Personal attendants are a subset of domestic care workers; domestic care workers who are not considered personal attendants are still exempt from overtime requirements.

Amendments to Leave Law: SB 400

Victims of stalking now have the same rights to take leave to appear at legal proceedings as the victims of domestic violence. When the victim works for an employer with more than 25 employees he or she may also receive time off to participate in safety planning, or to seek services related to the domestic violence, sexual assault, or stalking that they were the victims of. These victims also may not be retaliated against, and must be given reasonable accommodations by their employers.

Enforce Your Rights

If your employer has failed to pay you or provide you the rights that you are entitled to contact the employment  law attorneys at the Law Offices of Michael S. Cunningham. Schedule a free consultations by calling (858) 376-7390.

When Unpaid Interns are Eligible to Collect Unpaid Wages

With so many unemployed entry level professionals and students, many are turning to unpaid internships to give them the experience and contacts they need to launch their career.

However, not all employers will qualify to allow interns to work without pay. The Department of Labor has 6 criteria for determining whether an individual may be eligible to participate in an internship at a for-profit company, without pay.

1. First the internship must include similar training as would be given in an educational environment.

This does not necessarily mean that the employer must provide formal training in a classroom setting, but the intern should enjoy a good deal of training during the program. Ideally, time would be split between work and training.

2. The experience of the internship must primarily benefit the intern, rather than the employer.

This is probably the most difficult part of the test for private employers to pass. The surge in the number of unpaid interns is not a benevolent phenomenon. The fact that the economy is so tough means that some employers to try to take advantage of the oversaturated job market in order to cut their own costs. A true internship should provide interns with transferable skills, rather than having them engage in less meaningful work such as filing documents or fetching coffee and mail.

3. The intern may not take over the duties of a regular employee and must work under close supervision of the staff.

An employer simply cannot lay off employees just because they know that they would be able to get unpaid interns to do the same work at no cost.

4. The employer may not receive an immediate advantage from the intern’s activities.

This means that the employer’s operations should probably be impeded from time to time due to the engagement with the intern. For example, by having to provide the intern with reviews or formal training and mentoring.

5. The internship is not contingent on a job offer at the end of the term, in other words a job is not necessarily available at the end of the term.

Although the intern should be able to receive employment at the end of the internship, the DOL wants to avoid allowing employers to require their employees to work for a short time without pay in order to get a job.

6. Finally, both the intern and employer have to both understand that the intern is not eligible to receive wages for the internship.

This is usually not the biggest issue, with so many individuals looking to distinguish themselves n anyway they can from their colleagues, many interns are more than happy to forgo pay. The problem is when the employer takes advantage of the intern’s inability to get a job by making them perform work that directly benefits the employer without pay.

If your employer has failed to pay you contact the experienced California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 to schedule a free case evaluation.

When Obesity Discrimination is Illegal Disability Discrimination

In some cities, including San Francisco and Santa Cruz, city officials and government contractors cannot discriminate against employees and job applicants based on their weight. However, under California law weight and obesity discrimination is generally not illegal without additional physiological complications. Nevertheless, in some situations an individual struggling with obesity can file a lawsuit under federal law when an employer or potential employer makes a decision against them based on their weight.

California and federal law protects individuals with disabilities or perceived disabilities from discrimination, but federal law is broader. The Americans with Disabilities Act (ADA) is federal anti-discrimination law that defines disability as a condition that substantially limits one or several major life activities. In some cases Obesity might be a disability under ADA. The department responsible for implementing ADA, the Equal Employment Opportunities Commission (EEOC) won a settlement against an employer in 2012 after a federal court agreed that obesity impairs major life activities including walking, digesting, and bending. See EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

California law by comparison is generally stricter than federal law. Under California employment discrimination law an employee must also show that if a major life activity is impaired, that the impairment is due to a physiological condition. This means that obesity must result from a physiological disorder to be considered a disability under California law; it must not merely be a condition resulting from an individual’s voluntary action or inaction.

As a result California courts have been much more reluctant to allow obesity to be claimed as a disability than Federal courts. For example, in the case of Cassista v. Community Foods, Inc, 5 Cal. 4th 1050 (1993) a woman struggling with obesity applied to work at a grocery store. The store rejected her application and told her that they were concerned she would not be able to perform the necessary functions of the job because she was obese. The woman sued the store under California disability law, but the Supreme Court of California held that the woman failed to show that she had an underlying physiological disorder that caused her obesity or that the store believed she had an underlying disorder.

When employers discriminate against job applicants or employees due to a disability the employer may be subject to liability. If you think you have been discriminated against find out how to get the justice you deserve by calling the California disability discrimination lawyers of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 for a free case evaluation.

When is Reasonable Accommodation Required?

Both the Americans with Disabilities Act and the Fair Employment and Housing Act (FEHA) require employers to make reasonable accommodations for their disabled employees and job applicants. These accommodations can range between accommodations like giving the employee a special tool, providing the employee with extra breaks, or even allowing the employee to take leave or work from home. An employee is not required to specifically ask for “reasonable accommodations” or to even figure out what the accommodation would be. The employer has a duty to engage with the employee in the process of figuring out what a reasonable accommodation would entail, this is called engaging in the interactive process.

Exceptions to Reasonable Accommodation Requirements

However, an employer is not required to provide reasonable accommodations in a few limited circumstances. First an employer is note required hire or employ an individual who will endanger the health and safety of themselves or others because they will be unable to perform the essential duties of the job. The essential functions of a job are the duties that are necessary due to one or more of the following:

  • a) The reason the position exists is to perform the function at issue.
  • b) The amount of employees available to perform that function is limited.
  • c) The function is highly specialized and the individual is hired for his or her ability or expertise in performing the function.

Whether a job duty is an essential one is a fact intensive question and can bring up a significant amount of debate. In determining whether a job function is essential the following factors are relevant: the employer’s judgment, the job description, the amount of time the individual performs the job function, the work experience of past individuals in the job category, the current work experience of individuals in the job category, and the terms of any associated collective bargaining agreement.

Reasonable accommodation is also not required if an employee suffers from alcoholism and they perform alcoholism related misconduct. For example, in the case of Gonzalez v State Personnel Bd. (1995) an employee was absent without leave on several occasions, despite the fact that the employee proved he was an alcoholic, the employee was justifiably terminated. Similarly, an employer is not required to accommodate the use of medical marijuana, even if it is prescribed by a doctor.

Disability discrimination is a major problem, enforcing your rights to be free from discrimination also helps others and prevents employers from engaging in disability discrimiantionin the future. To learn more about how to get monetary recovery for disability discrimination contact the employment lawyers of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation today by calling (858) 376-7390.