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 Brandon, Esq. Your Own Question

Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1830
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
69271599
Type Your California Employment Law Question Here...
Brandon, Esq. is online now
A new question is answered every 9 seconds

I have a labor board hearing soon because I filed a wage complaint

Resolved Question:

I have a labor board hearing soon because I filed a wage complaint as I believe my former employer misclassified me as an independent contractor when I was really an employee. My question is this: he argued at the initial conference that I was "professionally exempt" (I was a nursing instructor). However, I was not paid a salary, and I believe the exemption cannot be applied to me (IWC Wage Order 4-2001). However, is that all I have to prove, or can he argue case law/common law at the hearing? I know what that law is as I have researched it, but which law reigns supreme here? I would like to think that all I have to argue is that I was not paid a salary I am an employee, but do I need to prove anything else? Please only answer if you have experience in dealing with matters like this.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

In response to your question, I have good news and bad news. The bad news is that he can absolutely bring up case law and common law at the hearing in support of his argument.

Now for the good news. Unless the case law specifically overrides the statute, the statute is typically controlling. Then, case law is decided in this order from least persuasive, to most persuasive. Superior court, Court of Appeal, California Supreme Court, U.S. Supreme Court.

Your employer has two distinct, (relatively poor) arguments. The first, is that you are an independent contractor and are thus exempt from withholding, overtime, meal and rest break rules, and a host of other restrictions and requirements. The second, is that you are an employee, but as an employee you are professionally exempt. Absent a written agreement, the second argument is somewhat ridiculous as the default assumptions of someone employed in California is that they are a non-exempt employee absent an employment agreement to the contrary.

While it is the employers job to prove that you are an independent contractor, to properly win your case, you will need to prove that you were in fact an employee.

Accordingly, to be best prepared, you will want to show that the employer had the "right to control the manner and means of accomplishing the result desired." This means you should try to bring as much evidence as you can to show that the employer had the right to control the work you produced. Additional factors to determine whether someone is an employee, or an independent contract are:

(a) whether the one performing services is engaged in a distinct occupation or business;

(b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

(c) the skill required in the particular occupation;

(d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
(e) the length of time for which the services are to be performed;

(f) the method of payment, whether by the time or by the job;

(g) whether or not the work is a part of the regular business of the principal; and

(h) whether or not the parties believe they are creating the relationship of employer-employee.

 

S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations, 48 Cal.3d 341, 351

 

In regards XXXXX XXXXX the argument that you are an exempt employee under the professionally exempt status, all you need to do is point to the fact that there is no contract setting out your exempt employee status.

 

Here is a good website which sets out the differences between the different types of employees and independent contractors and how to qualify under one of the above categories:

 

http://www.pashalaw.com/daily-business-legal-tip/employee-v-independent-contractor-v-exempt-v-nonexempt

 

Hopefully this fully answers your question. If you have any additional questions, or if you need additional clarification, please do not hesitate to ask. Have a wonderful start to 2013.

Customer: replied 1 year ago.

I have a follow up question: To keep a long story short, he is accusing me of time card fraud because I generally didn't clock out for my lunch breaks after the first few months that I worked there. The reason was that I was allowed 2 hours of prep time for each class appearance I taught, and would use some of that time during my lunch breaks. He wrote me a letter after I filed my wage complaint and said that he will sue me for fraud separately or as part of his appeal if he loses the wage complaint case. In defense, I have two signed letters from my two directors of nursing who were my bosses during my tenure with the employer saying that I was able to do that, and have signed statements from 62 students from at least a half-dozen of the classes that I taught at the school that state I tutored or reviewed material with them during my lunches. The employer never made issue of this before, and there were other employees who worked there that did the same thing. He has also threatened to contact the board of nursing (as I am a nurse) and the CA State Bar (I am a law school graduate studying for the bar exam). I truly believe I am in the right here. Do I have anything to worry about?

Expert:  Brandon, Esq. replied 1 year ago.
If he were to file an action for fraud against you, not only would he loose, but you would have a retaliation claim against him. In addition, if he engages in any retaliatory action, such as contacting the board of nursing, or the CA State Bar (who will not find fault in anything you have done) as a result of you exercising your legal right to bring your wage claim, then you would also have additional retaliation claims as a result. Often, employers try to retaliate against employees for engaging in these types of claims, that is why the law is designed to protect employees from such actions.

However, as this person appears to be relatively unscrupulous, and because you are likely missing a large portion of what is actually owed to you (such as treble damages depending on the circumstances) I would highly reccomend speaking with an Employment attorney in your area. If you decide to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with. While you can definitely choose to have an employment attorney take your case on contingency, you can also choose to have the attorney recoup all expenses from your employer. There are numerous California statutes in place which allow attorneys to recover their attorneys from employers. In either situation, you would owe nothing out of pocket, and will likely end up with significantly more.

Expert:  Brandon, Esq. replied 1 year ago.

I wanted to write to check up to see if you had any additional questions or concerns concerning your question. If you do have additional questions or need additional clarification please do not hesitate to ask. Please remember that I do not know what you may already know or with that you need help with unless you tell me. If you have not provided a positive rating because you would like a different expert to answer your question, please ask and I will opt out of the question so that another expert may answer. If, however, you found the information helpful to you, please do not forget to provide me with a positive rating by clicking on one of the happy faces, or I will not receive any credit for my time in trying to assist you. Please keep in mind that even after a rating has been issued you can continue to ask questions related to the original post and I will be happy to answer them. If for some reason the rating feature is not working or you cannot find it, please write me back and let me know. Please remember that when you are asked to give a rating, you are rating My Service and not this website itself or the law as it applies to your case. I wish you all the best in 2013.

Brandon, Esq., Lawyer
Satisfied Customers: 1830
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and 2 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:

    857
    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:

    332
    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:

    3511
    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.