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

I want to appeal the...
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?
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Answered in 19 minutes by:
1/1/2013
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,498
Experience: Retired
Verified
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.

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Ask Your Own California Employment Law Question
Customer reply replied 5 years 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 reply replied 5 years 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

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
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,498
Experience: Retired
Verified
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socrateaser
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,498
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Experience: Retired

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