Employment Law

Employment Law

Employment Law: Your Misclassification May Entitle you to Substantial Compensation

As you may have heard, LeBron James is officially an employee of the Los Angeles Lakers! But what does that mean?  I’m not talking about the obvious benefits the Lakers will reap on the court from having the greatest player in the game come to Los Angeles.  No.  I’m asking why do we call him an “employee?”  Why isn’t he considered an independent contractor who does work for the Lakers?  After all, LeBron James is a global brand whose name and likeness is plastered all over clothing, soft drinks, and media platforms.  The NBA media only half-jokingly has referred to LeBron as the coach, general manager, and owner of the teams he’s played on.  Such is the force of his influence, skill, and personality.  Despite the significant power that he wields, he remains an employee of the Los Angeles Lakers.  Today, I will explain what makes someone, even King James, an employee.  I will also explain how an individual who is misclassified as an independent contractor may be entitled to substantial compensation.


Employee by Default

There is a rebuttable presumption that you are an employee. Put simply, you are presumed (presumption) to be an employee unless your employer can prove that you are an independent contractor (rebut the presumption).  Just because you may have a written agreement stating you are an independent contractor, or just because your employer issues you a 1099 instead of a W-2, does not mean you are, in fact, an independent contractor.


Degree of Control

An independent contractor is defined as “one who renders service in the course of an independent employment or occupation, following his employer’s desires only in the results of the work, and not the means whereby it is to be accomplished.

That phrase above is the key distinction between an employee and an independent contractor.  Generally, the right of the employer to control the details of work; or conversely, freedom from that control is the most determinative factor that tends to illustrate whether someone is an independent contractor or an employee.

When attempting to sort out the nature of the relationship, courts look at a number of factors, all of which must be considered, and none of which are determinative by on their own.  Depending on the legal remedies associated with laws at issue, this means applying the “multi-factor” or the “economic realities” test adopted by the California Supreme Court in the case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341.  In applying the economic realities test, the most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed.  Additional factors that may be considered depending on the issue involved are:

  • Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
  • Whether or not the work is a part of the regular business of the principal or alleged employer;
  • Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
  • The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
  • Whether the service rendered requires a special skill;
  • 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;
  • The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
  • The length of time for which the services are to be performed;
  • The degree of permanence of the working relationship;
  • The method of payment, whether by time or by the job; and
  • Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Summed up, these factors are used to determine whether someone is engaged in business for themselves (independent contractor), or if they are performing work that would traditionally be performed by an employee.

Let’s go back to LeBron as an example.  You may be saying to yourself, “wait a minute. LeBron is the one who makes the plays on the court!  And he certainly has a special skill!”  Yes, that is true.  However, the team supplies and pays for the uniform.  The team tells him where he has to go and what time he has to be there for practice, games, team events, etc.  LeBron is under contract and cannot go play for another team.  In other words, there is a permanence of working relationship between the Lakers and LeBron. (At least for the next four years).

There is a significant difference between control over the details and general supervisory control of an owner.  Even in an independent contractor relationship, the owner may have the broad general power to supervise and control the results of the work to ensure satisfactory performance.  These general supervisory rights can include:

  • The right to inspect the work;
  • The right to stop the work;
  • The right to make suggestions or recommendations about the details of the work; and
  • The right to prescribe alterations or deviations in the work.

However, even where there is an absence of control over work details, an employer-employee relationship will be found if:

  1. The principal retains pervasive control over the operation as a whole;
  2. The worker’s duties are an integral part of the operation; and
  3. The nature of the work makes detailed control unnecessary.

Illustrating the Difference

Independent Contractor

A perfect illustration of the difference between an employee and an independent contractor is the act of hiring a plumber to do some work on your home.  As someone who is presumably not a plumber themselves or the owner of a plumbing company, you are unlikely to be overly concerned with how the plumber does his work as long as everything works and looks nice once they are finished. Similarly, when you hire a plumber to do a particular job, you are not in the position of dictating when they will show up for work, how long the work should take, or how the plumber should go about performing the work.  You as the owner may maintain general supervisory power over the way he completes the work such as which type of fixtures to install or ensuring the fixtures work.  However, despite retaining a certain degree of control, this example clearly demonstrates an independent contractor relationship because you, as the owner, do not have the ability to control the details of how the work is performed.  Moreover, when you apply the Borello factors to the same scenario, it becomes apparent the plumber is engaged in business for his or herself, and the employment relationship is temporary and definite.


Conversely, that same plumber, doing the exact same type of work, could be an employee if you called a plumbing company instead.  Naturally, the employment relationship between yourself and the plumber would not change, but that plumber may be an employee of the plumbing company.  If the plumbing company tells the plumber where to go, when to be there, how much to charge, how to interact with the client, and supplies to his tools/work truck, these are factor which suggest the plumber is an employee of the plumbing company because of the degree of control exercised by the employing company.

Keep in mind that the plumber may still have a significant degree of freedom with respect to the time and method necessary to complete the work which would be inherent in the type of work being performed.  You could also safely assume that a plumber’s duties, working for the plumbing company, are an integral part of the operation and the plumbing company retains pervasive control over the operation as a whole.

When Things Get Complicated

What if that same plumber, doing exactly the same type of work, is working for a fictional App called “Plumbit”?  Similar to the employment scenario above, Plumbit is responsible for finding clients, telling the plumber where to go, when to be there, has standards for how the plumber should interact with the client, and has a certain standard rate which plumber is required to charge.  However, using Plumbit, the plumber is free to accept or decline the work that is offered, the plumber has his or her own truck/tools, and Plumbit is only concerned with results of the work.  Is this person an independent contractor or an employee? Unfortunately, the answer to that question is not clear.

Things can also get complicated when there is a tiered hierarchy system in the particular field of work. Going back to LeBron, you can see how the franchise system works.  The National Basketball Association (NBA) is a corporate company, which is comprised of 30 franchises. A franchise is defined as “an authorization granted by a government or company to an individual or group enabling them to carry out specified commercial activities, e.g., providing a broadcasting service or acting as an agent for a company’s products.”  The thirty teams are franchises that are authorized by the NBA to field a basketball team.  Each team has an owner (or owners).  So is LeBron James an employee of the Lakers, or is he an employee of the NBA? The short answer is that he’s an employee of both.

As you can see, the employee-independent contractor distinction can get confusing.  This is why it is important, when you are concerned if you have been improperly classified as an independent contractor, to contact an employment attorney.  There are substantial penalties for misclassification.

Moreover, as is often the case, employers will intentionally misclassify employees to avoid paying the minimum wage, rest break premiums, lunch break premiums, and overtime. Failure to properly pay any of these can result in separate additional substantial penalties. Moreover, punishing an employee by subjecting them to an adverse employment action such as demotion or termination will subject an employer to even greater penalties.  If you feel that you have been misclassified, call us to schedule a free no-risk consultation.

Finally, I don’t know about you, but I am beyond excited that LeBron James will be an employee of the Los Angeles Lakers this coming season.  We’ve been talking about titles during this article, but I’m looking forward to LeBron bringing home an NBA title to Los Angeles!

Understanding The Different Types Of Theft In California

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If you have been charged with theft in California, your case will likely get classified into one of many categories. While you and your theft lawyer will go over the specifics, it is important to have a general idea of how your case will be seen in court. Then, with this highest level of legal representation, you may be able to reduce your charge as much as possible. Start with this guide to understanding the basics of California’s theft classifications.

  • Petty Theft: If you have stolen any objects, property, or money valued up to $950, you will likely be charged with petty theft. This crime is classified as a misdemeanor. In California, you can face up to a $1,000 fine, up to six months in jail, or both.
  • Grand Theft: As it’s name indicates, grand theft is more serious that petty theft.If you have stolen more than $950 worth of property, then you may be subject to this charge. This crime can be considered either a misdemeanor or a felony, depending on the nature of the case. You may face jail time for one to three years for this crime.
  • Robbery: A criminal is convicted of robbery when they use violence, force, or threats to steal something from a person. According to California law, those convicted of robbery can face up to nine years in jail.
  • Burglary: Often mixed up with robbery, burglary is when a person enters or breaks into a building to steal something. Someone can be charged with this crime for entering a home,
    commercial space, car, shipping container, general building, and room. Depending on the degree of the crime, the specific consequence will vary. Your lawyer for theft defense can go over the specific severity of your case with you.

When you are convicted of one of these crimes, your theft lawyer will go through your case step by step and do what they can to achieve the best possible outcome. If you believe that you have been wrongfully convicted, it is especially important to work closely and be honest with a criminal defense lawyer. About 10,000 people in the United States may be wrongfully convicted of a crime annually, so you will need a lawyer that will work hard for you.

5 Questions To Ask Your Criminal Defense Attorney

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Beginning a criminal defense case can be a stressful and unpredictable experience. With an experienced, caring lawyer, you can make your case as straightforward and successful as possible. Once you hire an assault, theft, or domestic violence attorney, be sure to ask them these clarifying questions.

  1. What information do you need from me? For your criminal defense lawyer to properly handle your case, they will need all possible information? Ask them what information you need to have recorded and what you should prepare for a deposition. You want to make sure that nothing slips through the cracks, as this could be detrimental to your case.
  2. What can I do to ensure the lowest possible sentencing? Ask your lawyer exactly what you can do in preparation for your trial or during an investigation. Everything from where you spend your time to what you post on social media could affect your case. Avoid slip-ups by requesting specific instructions and precautions.
  3. What is the expected timeline of the case? Knowing the predicted sequence of events will ease your mind and let you take the case one step at a time. Your attorney will be able to fill you in on every step of the case, explaining the significance of every court appearance and meeting.
  4. What outcome do you expect? While your attorney will be doing everything they can to get you the best possible sentence, they will likely have a sentencing prediction from the beginning. This is especially true if you have hired the highest level of legal representation. A compassionate lawyer will be able to keep you updated on what to expect, so feel free to be open about your questions.
  5. How can I ensure effective communication with you? Even if your attorney is busy with other clients, you want to open communication as much as possible. Highly respected lawyers will be able to make time to answer your emails and phone calls in a timely manner, so be sure to ask about the most effective form of communication.

There are currently 68 million people living in the United States with a criminal record. If you have committed a crime, you might not serve the highest possible sentence. By hiring the right theft, DUI, assault, or domestic violence attorney, you are taking the right step to help your case. You can eventually move forward from your crime, just as millions of people have done.

What To Expect After A Domestic Violence Charge

defending domestic violence chargesIf you are charged with a misdemeanor or felony following a domestic violence case, there are complications that will develop afterward. Defending domestic violence charges can lead to a variety of outcomes, but chances are that you will have to face consequences regardless of the outcome of your case. Know what to expect with this brief guide.

  1. Restraining Order: The court may place a no contact order on your following you case. This will mean that you cannot visit or speak to your partner or spouse. It is important that you comply with this rule, as defying it could lead to further complications and charges.
  2. Restriction On Firearms: Following your charge, you may not be able to purchase or own a firearm. The judge, along with your domestic violence attorney, will be able to explain the details of any restrictions and their duration.
  3. Child Custody Assessment: If there are children involved in the case, the court will carefully evaluate your custody situation. Since 30 to 60% of children living in homes with domestic violence suffer abuse and neglect, it is essential that the judge and attorneys consider their physical and psychological well-being.
  4. Difficulty With Employment: Depending on the severity of your domestic violence charge and your line of work, you may lose your current job and find it difficult to secure employment in the future. Be sure to speak to your lawyer about what your employment options will be for the time being.
  5. Further Expenses: In addition to any legal fees you need to pay, you may have fines required as part of your conviction. Be sure to pay these, as not doing so could jeopardize your financial future even more.

By finding the best possible domestic violence lawyer for your case, you will not have to interpret these consequences alone. They will help in defending domestic violence charges and handling the aftermath. Your attorney will also assist in interpreting the domestic violence laws in your state, as these are not consistent nationally.

Here at Champion Law Firm, we are prepared to handle all domestic violence cases. Contact us today to set up your consultation.

5 Tips for Finding The Right Lawyer for Your Case

lawyer for theft defenseWith 68 million people living with a criminal record in the United States, quality defense is always needed. If you find yourself in a situation in which you need to hire a lawyer, it is essential that you hire someone who is not only prepared to handle your case, but who is well suited to your personal needs as well. Whether you are seeking to hire a lawyer for theft defense or a DUI defense attorney, finding a capable, compassionate lawyer can be simple with these intuitive tips.

  1. Narrow Your Focus: Attorneys often specialize on a handful of case types, so be sure to find one that fits your specific need. When you start your search, do your research and make a list of lawyers who specialize in your case type.
  2. Check Their Resume: This information should be readily available on the attorney’s website. Look into how long they have been practicing, how many cases they generally close, and whether they have and special certifications. For example, if you are hiring a lawyer for theft defense, research how many successful success cases they have worked on.
  3. Know Your Expectations: While doing your research, know what you expect from an attorney. Decide on a realistic budget, and be sure to stick to it. On a personal level, have expectations for the type of relationship you would like with a lawyer. Consider whether you prefer a caring lawyer or a more rigid lawyer.
  4. Schedule a Meeting: Be sure to meet the attorney in person before hiring them. This meeting will be a great indicator as to whether they are right for you. Be analytical while also trusting your gut. Access whether the lawyer makes your feel comfortable. It is important to be able to trust them. Ask plenty of questions to ensure that your legal needs will be met.
  5. Ask Around: When looking for the right attorney, word of mouth can be quite helpful. Ask friends, colleagues, and family members whether they have any recommendations. As you want the highest level of legal representation, someone’s verbal review can go a long way.

By being patient and analytical, while also trusting your intuition, finding the best attorney for your specific case can be a smooth process. Take the time to consider multiple options, and be sure to ask thorough questions.

Know Your Rights and Stay Aware of These Common Law Enforcement Myths

criminal defense lawyer

The law is widely misunderstood due to an increasing influence of the media. Whether it is through law enforcement television shows, or biased media portrayals, criminal law has become increasingly misunderstood in the eyes of the people due to skewed information.

Considering the fact that innocent people have served 3,944 years in U.S. prisons, it’s incredibly important to know your rights so you can protect yourself if you are ever arrested by a member of law enforcement. Here are some of the most common legal myths to be aware of when arrested.

Myth: Evidence cannot be used in your case if the police did not have a search warrant.
The fourth amendment to the U.S. Constitution protects Americans from unreasonable searches and seizures. It states that a member of law enforcement must first go in front of a judge and explain why they have probable cause for a search warrant. However, there are some exceptions to these warrant requirements, including plain and open view law, stop-and-frisk, automobile searches, or emergency circumstances. If this has happened to you and you feel as if your rights were violated, make sure you contact a compassionate lawyer to fight for your privacy and protection.

Myth: You have the right to a phone call.
Unfortunately, this myth has been perpetuated by the nation’s media. While many police officers allow you to make a phone call if you have been arrested, they are not constitutionally obligated to do so.

Myth: You cannot get convicted of a crime if a cop lies to you.
The Supreme Court has long upheld the government’s right to make deceptions and false claims against you if they strongly feel that you have committed a crime. While entrapment is illegal and a police officer cannot use excessive force to get you to commit a crime, they can be largely free to do and say what they feel to gather evidence.

If you ever feel as if you are in violation of your rights, it is important to contact a reputable criminal defense lawyer to protect you. Make sure to acquire the highest level of legal representation by having Kia Champion work on your case. Not all Los Angeles criminal law attorneys are the same, so choose Mr. Champion, the criminal defense lawyer that will work hard for you and your protection.

5 Dangerous Myths About Domestic Abuse that Need to Be Debunked

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Domestic violence is an issue that plagues people around the world. It injures and alienates individuals who may have a chance of getting out of their abusive relationships if the people around them know the facts.

Despite the prominence of this issue, there are still a lot of myths floating around. In order to be aware of domestic violence when it’s happening and to possibly be able to help a victim, here are some common misconceptions about domestic violence.

Only women are victims of domestic abuse
While a disproportionate amount of women are victims of domestic abuse, the truth is that domestic violence affects everyone, regardless of sexual orientation, gender, race, or religion. Men and women alike are victims of violence, and are often represented by assault attorneys in domestic violence cases.

Domestic violence doesn’t affect children
As much as you might not like to believe it, more than 3 million children bear witness to domestic violence in their own homes every year. Children are also used as tools by abusers, suffering threats to make a victim stay with their abusive partner.

Victims can just leave
Domestic violence is cyclical. A victim may experience instances of severe abuse and want to leave, but then see guilt and remorse in their abuser and be convinced to stay. This cycle repeats itself and creates a very harmful environment for a victim.

Domestic violence is only physical
Domestic violence comes in many different forms. Verbal abuse and emotional manipulation are just as much crimes as physically harming another person. A domestic violence attorney may have a more difficult time proving emotional abuse, but that doesn’t mean emotional abuse isn’t a form of domestic violence.

A victim can just call the police
Calling the police is an important form of rescue for many victims of domestic abuse, but many hesitate. A victim may hesitate for a variety of reasons, but most often it’s because they don’t want their partner to go to jail or they fear calling may escalate the abuse later.

Domestic violence lawyers and assault attorneys frequently deal with cases like these. If you think someone you know is suffering at the hands of an abuser, keep these things in mind and consider contacting a domestic violence attorney.

If You’re Looking for a Compassionate Lawyer, Avoid Making These Mistakes

compassionate lawyer

Approximately 68 million people in the U.S. are currently living with a criminal record, which means at some point they may need an attorney. No matter the legal situation, it’s important to have a compassionate lawyer who genuinely cares about winning your case.

Despite the importance of finding a highly respected lawyer who will work hard for you, many people fall into the same rut over and over again. To ensure you don’t fall into that rut, here are a few mistakes you should avoid making in your search for a caring lawyer.

Believing the Hype

There’s no question that those law firms that can afford television ads or the radio jingles you hear all the time might be the first law firms that pop into your mind when looking for a lawyer who will work hard for you. Despite the claims of grandeur on television, the ads are in no way a method to determine how credible the firm is. Don’t believe the hype until you actually speak with a lawyer in person and research their experience.

Bigger Doesn’t Always Mean Better

The old adage that “bigger is better” might hold relevance in other fields, but not law. Just because a law firm is big doesn’t mean they’re going to have compassionate lawyers working with you or that they can handle your case as adeptly as an independent lawyer would. If you want personal attention given to your case, you’re better off at a smaller firm.

Not Asking Questions

There’s no such thing as an irrelevant question, especially if this is your first time searching for a lawyer. One of the biggest mistakes you can make is failing to ask any questions that come to mind. If you’re uncertain, ask about it. Communication is key to collaborating with lawyers.

Using Cost as a Determining Factor

Just as bigger doesn’t mean better, more expensive doesn’t mean more results. Cost should definitely be on your radar, but it shouldn’t be what deters you or propels you in hiring a reputable lawyer. In any case, you should be seeking the highest level of legal representation for your case.

Looking for a great lawyer can be tough, but as long as you’re aware of these critical mistakes and know how to avoid them, you should be on the path to hiring a great lawyer to represent you.

California Court’s Computer Glitch Leads To False Arrests

criminal defense lawyerA new legal software system has gone haywire in California, according to a public defense attorney who discovered the bug.

In November 2016, Brendon Woods filed a motion to eliminate the Odyssey Case Manager software until the glitch could be fixed. The software led to mistaken criminal records, unnecessary court trials, listing misdemeanors as felonies, as well as the misidentification of drug defendants, instead filing them as sex offenders.

The new Odyssey system is far different than the old system, likely explaining the number of injustices that were made by mistake. The user interface is so unfriendly that what used to take just two clicks now takes around 25, according to Debbi Pearson, a local representative of the Service Employees International Union.

The California public defenders’ office also says that the system error has caused 12,000 files to be backlogged, and that number continues to grow by 300 every day.

The system is used by 26 court systems in California, and it is impossible to tell how many false reports were actually filed. Any convicted criminal in any of these courts who have been charged within the past few months may have been the victim of an unjust system.

As this case is unusual, the University of California at Davis law professor Elizabeth Joh doesn’t know exactly what this system error means for the court or the victims. She considers what would happen if a system error that leads to wrongful arrest leads to investigation for a separate crime. She wonders what would happen, say if a second investigation led to drug evidence.

In 1994, the U.S. Supreme Court made a decision that allowed prosecuting attorneys to use evidence seized during an arrest, even with an invalid warrant, since the police made the arrest in good faith.

“So how do individual criminal defendants identify and challenge the ‘fruits of computerized error,’?” Joh said, quoting Justice David H. Souter’s 1994 case opinion.

There is no answer at this point in time, only potential theories. For these cases, anyone convicted of a crime they didn’t commit needs a criminal defense lawyer that will work hard for you, no matter the circumstance. Whether you need a sex crime attorney, a theft lawyer, DUI, or domestic violence lawyer, if your charges were falsely handled to you, you don’t deserve another single second behind bars. You need a criminal defense lawyer who believes you and realizes that this is not your fault and that the system is broken.

Each year, 10,000 people are wrongfully convicted of serious crimes. Don’t give up if you’ve been falsely accused or convicted, Call criminal defense lawyer Kia Champion for the highest level of legal representation possible.

Don’t Lose Hope If You’ve Been Charged With DUI — You Have Options

DUI defense attorneyIf you’ve recently been charged with DUI, you may not believe that you need a DUI defense attorney. In many cases, people who have been charged believe that they don’t have a chance to make things better.

The truth is, the average person drives drunk 80 times before their first DUI. You don’t need a lawyer to plead guilty, but regardless of whether you were intoxicated, you still have options to reduce your sentence. For this, you will need a DUI defense attorney.

Get a highly respected lawyer’s opinion

There’s no harm in asking. When you’re being charged with a DUI and don’t think there’s any hope, just ask. A lawyer will tell you outright if you have a case for yourself. You may have missed something when reading through your incident report, something that only a lawyer could pick up on.

Evaluate Your Options

If the lawyer believes that you can make a case for yourself, that is good news. Evaluate plea deal options, like a lesser sentence.

In many cases, if the field sobriety test was inconclusive, if your BAC level was close to the legal limit, or if there was no striking difference in your behavior when you were pulled over, you have a higher probability of having a reduced sentence.

Reckless driving is the most often reduced sentence. Reckless driving is still a misdemeanor, but results in a far lesser sentence that will not result in harsher punishment if you happen to be charged for the same crime in the future.

In the state of California, a “wet reckless” is also a plea option. A wet reckless is similar to a reckless driving charge, but the driver admits that they were under the influence of drugs or alcohol. This charge is implemented as a half-way measure, where the driver admits that there was some wrongdoing. If the reckless driving resulted in any injuries or fatalities, or if this was a repeat offense, there is a lower likelihood of the plea being granted.

If you are charged with a wet reckless, the DMV still has the right to suspend your license. Future DUI charges will also be treated as repeat offenses, despite the reduced sentence.

A drunk driving defense attorney knows the law back and forth. They know how to grant you the highest level of legal representation. Kia Champion is a compassionate lawyer who wants to make sure that you are granted the justice you deserve.