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Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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For 4 1/2 years I was contracted with Colonial Life as their

Customer Question

For 4 1/2 years I was contracted with Colonial Life as their Territory Recruiter for Northern California. When I was offered the position, I was required to obtain an insurance license and sign a Sales Rep Agreement (standard Colonial Agent agreement) with a Territory Recruiter Addendum. I was never expected to perform the duties of a sales rep, nor did I do so during my 4 1/2 years as their Territory Recruiter. All of my job responsibilities were as Territory Recruiter, which never involved any activities requiring an insurance license.

Furthermore, when I originally started with Colonial, the territory office was located in Elk Grove. I was told that I had to work in the territory office at least 2-3 days a week and could perform my duties from my home office on the other days. In 2012, the territory office relocated to Concord. I was told, at that time, that they required my presence in the territory office five days a week--although I was still considered an "independent contractor." When I told them I was unable to commute the 100 miles, one way, to Concord 5 days a week, they began a search for my replacement and Colonial terminated the Territory Recruiter Addendum to my contract on September 30, 2012.

Each Colonial Territory Office consists of a Territory Manager, Territory Executive Assistant, Territory Instructor, and Territory Recruiter. Each of these roles support the growth of the Territory through the development of new and existing Agency District Managers and Sales Representatives. All of these territory-level positions were classified as employees except the Territory Recruiter, even though the Territory Recruiter is expected to participate in many territory-level activities and events, and provides similar support activities for the territory.

A tax auditor with the CA EDD just determined that I was an "employee" and allowed my wages to be used for unemployment eligibility (even though the EDD ruled that I "voluntarily quit" and denied me benefits). I just learned that Colonial has reclassified the Territory Recruiter position as an employee position vs. independent contractor, maybe as recently as March 1st, and possible as a result of my claim for unemployment benefits.

My question is this: Am I entitled to unpaid employee benefits? The company offers excellent paid benefits to employees and their families--benefits to which I would definitely have participated in had I been allowed.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good morning Marlene,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

That doesn't surprise me in the least---that your position would be determined to be that of an employee and not an independent contractor.

You can make a claim for the value of the lost benefits based on them not offering them to you based on the misclassification. You may also demand that you be paid overtime for all hours you worked overtime, excluding your commute time.

And, you might also consider putting together a reimbursement request list---because under CA law, an employer is obligated to reimburse their employees the actual cost of all employee expenses made in the performance of work for the employer.

The specific law which mandates that employer reimburse employees for expenditures is as follows:

CA Labor Code 2802.

(a) An employer shall indemnify his or her employee for all

necessary expenditures or losses incurred by the employee in direct

consequence of the discharge of his or her duties, or of his or her

obedience to the directions of the employer, even though unlawful,

unless the employee, at the time of obeying the directions, believed

them to be unlawful.

(b) All awards made by a court or by the Division of Labor

Standards Enforcement for reimbursement of necessary expenditures

under this section shall carry interest at the same rate as judgments

in civil actions. Interest shall accrue from the date on which the

employee incurred the necessary expenditure or loss.

(c) For purposes of this section, the term "necessary expenditures

or losses" shall include all reasonable costs, including, but not

limited to, attorney's fees incurred by the employee enforcing the

rights granted by this section.

Additionally, based on the misclassification, the employer did not pay their share of the FICA taxes that you paid, and you will want to consider recovering those.

Finally, as unpaid wages, benefits and reimbursement are all considered wages in CA, you may actually sue the employer in court and recover your wages/commissions. Additionally, if you sue in court, under federal laws (FLSA), you are also entitled to seek what is called Liquidated damages. Liquidated damages is equal to the amount of back wages that they owe you and must be paid in addition to the wages themselves---so you essentially get double the wages owed you in the claim based on their willful failure to pay you. http://labor-employment-law.lawyers.com/wage-and-hour-law/Liquidated-Damages-and-FLSA-Claims.html

Here is an excellent article which deals with pursuing an FLSA claim---which you may do in either state court or federal court. Do take the time to review it:

http://www.thefreelibrary.com/Pursuing+an+FLSA+claim%3a+many+employers+have+figured+out+how+to+skirt+...-a0183316511

 

As you appear to potentially have a rather significant claim, I strongly urge you to consult and possibly retain a local employment law attorney to assist you in these multiple claims that you appear to have.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug

LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Marlene. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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