Continuing our conversation of last night, I don’t want to…

Patrick, you made my day :-). I was concerned they may try and say the case had already been adjudicated, because remember, I've already filed a case against their client who paid me. You do remember this, correct?

I think there is some information I did not provide. I appealed the DLSE decision because the hearing officer did not properly calculate the unpaid overtime and misapplied the Borello factors. I took the position that if she didn’t recalculate the unpaid overtime calculation I provided (based on hours over 40 in a week, not 8 in a day) then she clearly did not review my evidence. My evidence shows I was supervised and given a title (see attached). DLSE awarded the unpaid overtime, because the hearing officer claims she was bound by EDD’s decision.My case is such a mess at the Superior Court level, because unbeknownst to me, my attorney did not include any of the evidence I provided to both EDD and DLSE that supported my claim of being supervised. So, I lost everything at the Superior Court level (see attached). I do not want to appeal without this evidence. If given another chance, I want to subpoena the defendant’s accounting software to obtain an audit report. This will support my claim of being fired and allowed to return the next day, because he gave me two different checks.

Brace yourself:Sorry for the convulsion; allow me to bullet-point the facts. Then I will need you to see if you still believe I may be able to file a new claim with DLSE claiming the staffing agent is jointly liable:• I filed an unemployment claim with EDD against the staffing agent’s client (“the defendant”), because they paid me directly; EDD found me to be an employee opposed to an IC;
• I then filed a claim against the defendant with DLSE;
• DLSE awarded unpaid ovetime based on an amount I calculated, which was incorrectly based on hours over 40 in a week and did not consider hours worked over 8 in a day, which is CA law. The officer said she would review my calculation but didn’t, and I was owed additional overtime;
• The DLSE officer did not give me a cursory application of the Borello factors and only applied them to the defendant’s claims and some of those claims he did not make, i.e., I provided supplies, or were incorrectly applied, i.e., I earned $$/hr and therefore made a profit (this is not what that test relates to)
• The DLSE officer only awarded the overtime because she was bound by EDD’s decision of reclassifying my status to employee (I still haven’t found this rule, but this is what she wrote in the ODA);
• The DLSE officer did not award waiting time penalties, because based on her application of the Borello factors, the defendant truly believed he was hiring an independent contractor;
• Since the DLSE officer did not properly calculate the unpaid overtime and came to this conclusion, I assumed she did not look at any of my evidence. So I appealed my case to Superior Court and hired an attorney to represent me at the trial de novo hearing;
• The attorney did not prepare me for trial and did not tell me he was omitting my evidence, which was given to both EDD and DLSE (emails between the defendant, myself and his clients) clearly showing the defendant giving me instructions and presenting me to his client as a manager of his firm (although I managed no one and functioned at a staff level)
• The Superior Court Minute Order states, “In applying the determining factor in Borello it is clear to the Court that the relationship of the Appellant and the Respondent was that of an “Independent Contractor””.
• During the defendant’s testimony at the trial de novo hearing, he said he paid the staffing agency, who assigned me to work at his firm as an independent contractor, 20% of every hour I worked. This gave me the idea of researching whether a joint-employer relationship exists, because I’ve always been placed by staffing agencies as their employee.With all that said, do I still have a shot at filing a new claim with DLSE claiming the staffing agency as my employer based on CUIC 606.5 and labor code section 201.3? The idea is to effectively get a new hearing to make sure all of my evidence is properly reviewed. I also believe the staffing agency and defendant will be held liable as joint-employers. I can also subpoena a document from the defendant which will support my claim of being fired, then rehired the next day. This will lay to rest any questions about the degree of control.

it does, thanks again.