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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I have a complicated situation with an employee. He tried

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I have a complicated situation with an employee. He tried to claim we owed him money for hours he worked, when he did not. At this time he was an independent contractor and we paid him only for the hours he worked. He never worked 40 hours, came and went as he pleased within our businesses hours and took days off as he pleased. Our accounted said he was leaning towards being an employee and we should consider making him an employee. So, he threatened to take us to the labor board if we didn't pay him a certain amount of money. By advise of an attorney we did not since he was basically black-mailing us and if we paid him it would not necessarily prevent him from going to the labor board anyway. When he didn't get the money then he filed a false worker's comp case (it was denied). He also filed a disability case (still pending). His doctor's release ends today. Yesterday we received a notice in the mail he filed a California Labor Board retaliation claim against us. He has not been fired and his pay had not changed. The only thing that changed was we made him an employee and now pay into his payroll taxes, etc. He has been gone for a month exactly tomorrow and we realize we don't need him. We didn't hire a temp. I absorbed his workload which was very easy. We have not heard from him in over 10 days (but his doctor's release did state through today) so we are not sure if he intends to come back to work tomorrow or not. I have sent him emails to verify, but no answer from him. If he does show up for work tomorrow 1. Do I need to see a complete medical release? 2. If he is released, can I lay him off since we don't need him and really can't afford him any more? 3.If I can't lay him off can I reduce his hours to try and make ends-meet?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.

LegalPro54 :

Hello and thank you for entrusting me to answer your question. If you didn't change anything about his employment, then on what grounds is he alleging retaliation? A claim of retaliation requires showing that the employer took adverse employment action against the employee in response to the employee engaging in protected conduct (taking disability, reporting labor code violations, etc.) Please clarify for me. Thanks so much.


When he was original brought to the company he was told he would be an independent contractor and paid $15 per hour to equal $600 per 40 hour week. He did make his own hours within the hours of our hours of operation, but we supplied him with everything he needed to do his job. He was supposed to bring in his own clients and then work into a commission based position and run a department. He was not able to do that and needed the weekly money we paid him. We then raised him to $16.25 an hour and if he worked a full 40 hours would make $650 a week. He no longer needed to worry about relying on clients to make a commission off of. He did this for about 2.5 years. He preferred to remain as an independent contractor because he owed back taxes and he needed to work that out.

Customer: replied 5 years ago.
I was in the middle of a huge explaination. Where did that go???
Customer: replied 5 years ago.
He claimed that his timeclock hours were changed and he worked more hours than he was paid for. He claims that when he brought that to our attention we retaliated by making him an employee even though he was making the same money $16.25 and hour. We did offer to settle at $500 because there was no reconciliation possible at that time and we wanted him to sign a document basically stating no reconciliation is possible, no addmission of guilt by either party, no party could speak badly of the other. He refused it. Then he threatened us with the labor board unless we paid. We refused to pay. Then he claimed he hurt his back at work and filed worker's comp. It was denied for lack of evidence. He filed State Disability. Still pending and now a labor board stating retaliation for the above reason. His doctor's release ends today and he is supposed to come back to work tomorrow. Have not heard from him. We don't know if he plans to come back or not. Not new information from him or his doctor with the medical release.
Expert:  Patrick, Esq. replied 5 years ago.
I'm not sure how being converted from IC to employee status would constitute as retaliation, since employee status generally confers greater rights and privileges upon a worker (for ex., eligibility for workers comp, ue benefits).

That said, it tends to be a common misconception that the law in California prohibits employers from terminating employees who are on protected medical leave. This is not exactly true. California law protects employees from being terminated on the basis of them taking medical leave--but does not absolutely prohibit termination of an employee on a medical leave. The difference is subtle, but quite important.

In order to prevail on a claim of wrongful termination, an employee would typically need to show that there was no legitimate basis for his or her termination other than the fact that they were on protected leave. If an employer has a legitimate financial need to eliminate a position, it can typically do so even if the employee in that position is currently on protected leave. However, the DLSE will heavily scrutinize such employer decisions, especially if they occur after an employee has complained about an employer's conduct.

You should also bear in mind that an employer must pay wages earned between the 1st and 15th days of any calendar month must be paid no later than the 26th day of the month during which the labor was performed, and that wages earned between the 16th and last day of the month must be paid by the 10th day of the following month. (See CA Labor Code Section 204) An employer must also pay all wages owed immediately upon termination or layoff of an employee. Willful failure to timely pay wages actually owed may result in penalties, however, penalties will typically not be assessed if there is a reasonable dispute as to whether the wages are owed.

I hope that this information helps you in deciding what to do. Please bear in mind that none of the above constitutes legal advice.
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Customer: replied 5 years ago.
Yes, we pay on a weekly basis, so no issue there. He has not worked for a month and was paid for the time he did work. So, I don't think we owe him any additional money. Can he claim retaliation because he thinks he wasn't paid for hours he worked (even though he was?)
Expert:  Patrick, Esq. replied 5 years ago.
As a law professor of mine once said, a plaintiff can "claim," anything, but it's a different question entirely as to whether they can actually prove it and prevail in a lawsuit. Consider the above information that I have supplied as well as the risks and costs of litigation in deciding what to do. I wish you the very best of luck.
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