How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask socrateaser Your Own Question

socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33559
Experience:  Retired (mostly)
Type Your California Employment Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

I want to appeal the ALJs decision as I believe I satisfied

Resolved Question:

I want to appeal the ALJ's decision as I believe I satisfied the lag test requirements - I earned $1880 3rd quarter of 2012 as an independent contractor and performed some work. I believe I proved my connection to the job market as they requested. The ALJ's "Decision" has so many typos and incorrect dates in it, that I cannot trust the ALJ's decision. Do you believe I have a ground to stand on?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
The "lag test" requires that independent contractor/self employment work must be based upon the individual's election to have self-employment earnings made subject to the unemployment insurance laws, and the individual's contributions to the unemployment insurance system.

If you were employed as an independent contractor, and you did not elect to have your earnings subjected to the system, such that you made contributions to the system from your earnings, then the $1,880 in earnings would not be included in your base period earnings.

On the other hand, if you were to claim that you were actually a misclassified employee, and that your earnings should have been subjected to unemployment contributions, as well as other payroll taxes during the base period, and if EDD were to determine that you were in fact an employee and not an independent contractor, then your earnings would be included in the base period for unemployment insurance purposes.

The problem at this point may be that you never asked EDD to determine that you were an employee, rather than an independent contractor. I don't know, frankly, what would happen were you to file a payroll tax fraud claim this late in the process (see this link). You don't really have anything to lose, and you could try to convince the CUIAB (California Unemployment Appeals Board) that it should consider additional evidence that you were in fact misclassified as an independent contractor. That's probably how I would handle it if I were representing you (assuming that I understand your current circumstances).

If you need help in determining what facts you would have to allege in order to prove that you were an employee, rather than an independent contractor, then see Form DE 38.

Please let me know if I can be of further assistance.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 1 year ago.

I don't really care if my earnings as an independent contractor are utilized to compute my UI Award. It is my understanding that all I need to do is show that I had a connection to the job market and earned at least $1,300 during the 52 week period of my original claim 10/20/2011 to 10/19/2012. I already have a UI Award, but need to satisfy the lag test requirements. I earned money ($1880 in the third quarter of 2012), and performed some work. EDD's website even states that earnings to satisfy the "lag test" can come from any source, be it employee/employer, independent conractor, etc. Am I not understanding this correctly? Thank you. Ellen

Customer: replied 1 year ago.

To Socrateaser: I don't really care if my earnings as an independent contractor are utilized to compute my UI Award. It is my understanding that all I need to do is show that I had a connection to the job market and earned at least $1,300 during the 52 week period of my original claim 10/20/2011 to 10/19/2012. I already have a UI Award, but need to satisfy the lag test requirements. I earned money ($1880 in the third quarter of 2012), and performed some work. EDD's website even states that earnings to satisfy the "lag test" can come from any source, be it employee/employer, independent conractor, etc. Am I not understanding this correctly? Thank you. Ellen

Expert:  socrateaser replied 1 year ago.
No, you're not understanding it correctly. The lag test is two parts. The "some work" element does not require that independent contractor status be utilized in conjunction with an election to subject self employment earnings to unemployment insurance contributions. However, the "earnings requirement" element does require that the self employed claimant have subjected his or her earnings to unemployment insurance contribution. In short, if you didn't pay into the system out of those $1,880 in earnings, then you cannot get anything out of the system.

The only way to avoid this outcome would be to convince the CUIAB that you were in fact an employee and that your "employer" owes unemployment insurance contributions to the EDD.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33559
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    845
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    329
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3365
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.