Announced Wednesday by the US Department of Labor and published yesterday, a Trump-era rule known as the “Independent Contractor Rule” which limited some workers’ rights was rescinded.  The Independent Contractor Rule limited the ability of gig workers, contract workers, and employees misclassified as independent contractors to pursue correct classification, minimum wage, and overtime.  The US Secretary of Labor says that the goal of the policy reversal is to “preserve essential worker rights and stop the erosion of worker protections”. The Department of Labor listed three main reasons why they are rescinding the rule:

• The rule did not meet the requirements of the Fair Labor Standards Act and rulings by the judicial branch
• The focus on two core factors (control over one’s work and one’s opportunity for profit or loss based on initiative and/or investment) was not a balanced approach to determining employment relationships
• The rule took too narrow a view to determine worker status

See the full Department of Labor press release here. A battle over this type of employee classification happened recently in California.  In 2019, California Assembly Bill 5 was passed, expanding the definition of what an employee is. AB 5 would have given employee benefits to many gig and contract workers, including Uber and Lyft drivers.  Before the law could take effect, the affected companies rallied behind Proposition 22, a 2020 ballot measure which exempted app-based drivers from AB 5, spending over $200 million to promote voting yes on Prop 22.  Prop 22 passed with 59 percent of the vote.  The passage of Prop 22 is one of several reasons why ridesharing companies are struggling to find enough drivers as demand begins to increase. Though the withdrawal of the Independent Contractor Rule only returns the government’s view of employee classification to the status quo, ride sharing companies have seen it as an attack on their business.  It is unknown what may happen if the 2020 battle over Prop 22 is taken to the national stage. Employment law protects the rights of workers, including workers who may be incorrectly classified as independent contractors.  Independent contractors who are misclassified lose access to many important employee benefits, including minimum wages, overtime pay, unemployment, and more.  Unsure if you should be classified as an employee or independent contractor?  The IRS provides some guidelines as to what workers should qualify as an employee. The Law Offices of Scott Warmuth’s employment law division can help employees misclassified as independent contractors ensure they receive all their entitled benefits.  Call us today at 888-517-9888 for a free consultation and case evaluation.

There are two types of employees: exempt and non-exempt.  This sounds like the setup to a joke, but classification actually has some very important distinctions in how the rules of employment law apply employees.  What does exempt and non-exempt even mean?  What are employees being exempted from?  How is exempt or non-exempt determined?  Understanding these questions can help ensure that workers are not being taken advantage of by their employers.  Violations of classification can be pursued for damages under employment law. There are two types of employees: exempt and non-exempt.  This sounds like the setup to a joke, but classification actually has some very important distinctions in how the rules of employment law apply employees.  What does exempt and non-exempt even mean?  What are employees being exempted from?  How is exempt or non-exempt determined?  Understanding these questions can help ensure that workers are not being taken advantage of by their employers.  Violations of classification can be pursued for damages under employment law. Exempt and non-exempt refers to the Fair Labor Standards Act (FLSA), a law passed in 1938 addressing the abuses suffered by workers at the hands of employers.  The original FLSA set in to law the eight-hour day and 40-hour workweek America continues to see as normal today.  The FLSA provides requirements for minimum wages, overtime pay, and child labor.  The law, however, does not apply to all workers.  FLSA protections only apply to employees and are not extended to independent contractors.  And protections do not apply to all employees.  Employees protected by FLSA provisions are “non-exempt” from FLSA laws while employees not protected are “exempt” from FLSA laws. Non-exempt employees are entitled to a minimum wage, currently (California, 2020) $13/hr for businesses with more than 25 employees and $12/hr for business with 25 employees or fewer.  Those figures will rise by $1 every year on January 1 until they reach $15/hr.  Non-exempt employees are also entitled to overtime pay:

• After 8 hours of work in 1 day – 1.5 times hourly rate
• After 40 hours of work in 1 week – 1.5 times hourly rate
• After 12 hours of work in 1 day – 2 times hourly rate
• After 8 hours of work in 1 day on the 7th consecutive day of work – 2 times hourly rate

Non-exempt employees are often given additional benefits not provided under the FLSA, including rest and meal breaks.  Non-exempt workers in California are required to have at least 30 minutes of uninterrupted meal breaks for every 5 hours of work.  Because meal breaks are unpaid, workers cannot be required to work or remain on location.  Employers also must provide non-exempt employees with at least 10 minutes of uninterrupted break time for every 4 hours of work. Exempt employees, however, are not entitled to these same benefits.  Employers are not required to provide exempt employees with overtime pay, rest breaks, or meal breaks.  Exempt employees are not paid by the hour, but for the work they accomplish.  They have a set salary, which must be at least twice the minimum wage for full time employment, but paying an employee on a salary does not automatically classify the employee as exempt; exempt workers must typically meet other guidelines.  In California, employees typically classified as exempt include managers, administrators, professionals (such as doctors and lawyers), computer professionals, and salespersons.  Each category has specific guidelines that must be met to be considered exempt.  For overtime laws, the State of California Department of Industrial Relations website contains all employee classifications that are exempt. Exempt workers who believe they may be incorrectly classified and are entitled to overtime pay should contact an experienced employment law attorney.  The Law Offices of Scott Warmuth can help you determine if you should be compensated for overtime work and receive all of the benefits provided to exempt workers.  Call us today at 888-517-9888 for a free consultation. Exempt and non-exempt refers to the Fair Labor Standards Act (FLSA), a law passed in 1938 addressing the abuses suffered by workers at the hands of employers.  The original FLSA set in to law the eight-hour day and 40-hour workweek America continues to see as normal today.  The FLSA provides requirements for minimum wages, overtime pay, and child labor.  The law, however, does not apply to all workers.  FLSA protections only apply to employees and are not extended to independent contractors.  And protections do not apply to all employees.  Employees protected by FLSA provisions are "non-exempt" from FLSA laws while employees not protected are "exempt" from FLSA laws. Non-exempt employees are entitled to a minimum wage, currently (California, 2020) $13/hr for businesses with more than 25 employees and $12/hr for business with 25 employees or fewer.  Those figures will rise by $1 every year on January 1 until they reach $15/hr.  Non-exempt employees are also entitled to overtime pay:

• After 8 hours of work in 1 day - 1.5 times hourly rate
• After 40 hours of work in 1 week - 1.5 times hourly rate
• After 12 hours of work in 1 day - 2 times hourly rate
• After 8 hours of work in 1 day on the 7th consecutive day of work - 2 times hourly rate

Non-exempt employees are often given additional benefits not provided under the FLSA, including rest and meal breaks.  Non-exempt workers in California are required to have at least 30 minutes of uninterrupted meal breaks for every 5 hours of work.  Because meal breaks are unpaid, workers cannot be required to work or remain on location.  Employers also must provide non-exempt employees with at least 10 minutes of uninterrupted break time for every 4 hours of work. Exempt employees, however, are not entitled to these same benefits.  Employers are not required to provide exempt employees with overtime pay, rest breaks, or meal breaks.  Exempt employees are not paid by the hour, but for the work they accomplish.  They have a set salary, which must be at least twice the minimum wage for full time employment, but paying an employee on a salary does not automatically classify the employee as exempt; exempt workers must typically meet other guidelines.  In California, employees typically classified as exempt include managers, administrators, professionals (such as doctors and lawyers), computer professionals, and salespersons.  Each category has specific guidelines that must be met to be considered exempt.  For overtime laws, the State of California Department of Industrial Relations website contains all employee classifications that are exempt. Exempt workers who believe they may be incorrectly classified and are entitled to overtime pay should contact an experienced employment law attorney.  The Law Offices of Scott Warmuth can help you determine if you should be compensated for overtime work and receive all of the benefits provided to exempt workers.  Call us today at 888-517-9888 for a free consultation.

Two news stories involving the intersection between the COVID-19 pandemic and employment law have been recently reported.  The Law Offices of Scott Warmuth has previously discussed both circumstances found in these recent news stories.  Issue 1: Your employer can fire you for not being vaccinated.  Issue 2: Exaggerating illness can lead to termination and possible criminal charges. It was reported on Thursday that CNN had fired three employees for coming in to work at one of the company's offices while unvaccinated.  The news came to light when a memo was sent to company employees by CNN President Jeff Zucker.  The memo specified that company policy states that vaccines are mandatory if an employee could come into contact with another employee and that there is a zero-tolerance policy on the issue.  CNN does not require proof of vaccination for its workers yet, so it was unclear how the fired employees were determined to be unvaccinated. See the news article here. It was reported on Wednesday that a firefighter for the city of Dallas was charged with felony theft for requesting and receiving paid time off for falsely claiming to have tested positive for the coronavirus.  In March, the accused firefighter reported to his work that his wife had tested positive for the coronavirus.  His work accepted his report, providing him paid time off.  After a week, the firefighter again called the department and reported his daughter had just tested positive and was granted an extra week of paid time off.  Then, two days prior to his expected return, he reported that he himself had tested positive.  He was granted another week of leave.  In total, the firefighter was granted over $12,000 in paid leave. After his return, the firefighter was asked for documentation of the positive coronavirus tests for him and his family.  Unable to produce them, he admitted to making the entire episode up.  According to bank records, at least part of his paid leave was spent on vacation. See the news article here. Advance parole is an immigration travel document that can make it very easy for immigrants seeking asylum or permanent residence to leave and re-enter the United States without harming their pending immigration applications.  Leaving the country while awaiting a green card or asylum hearing, even if you have been in the United States legally, could lead to being refused entry upon your return.  Worse, your pending immigration application would be rejected due to “abandonment”. Advance parole is received by filing Form I-131, Application for Travel Document.  For non-emergency travel, it can take several months for the form to be processed by United States Citizenship and Immigration Services (USCIS) and a decision to be reached, so it is strongly suggested to plan ahead.  For emergency travel, such as a death in the family, medical concerns, or extreme business hardships, USCIS may issue a same-day advance parole document after an appointment at a local field office.  For emergency advance parole to be considered, applicants should bring a completed and signed Form I-131, the correct filing fee, two passport-style photos, and evidence of the emergency to their appointment. It is important to note that advance parole does not guarantee re-entry into the United States.  Similar to a visa, everyone who is not a US citizen is subject to an immigration review prior to being admitted into the country.  Some common reasons for being denied admission, even while possessing a valid advance parole document, include legal status expiring prior to reentry or previous unlawful presence in the country. When seeking advance parole, the most important things are completing the Form I-131 accurately, submitting it with the appropriate evidence with enough time to receive the travel documents prior to leaving the country, and completing biometrics capture at an Application Support Center (ASC) prior to departure.  If you are an immigrant to the United States and are planning to travel outside of the country, an experienced immigration law firm can help you determine if seeking advance parole is right for your situation.  If advance parole would be of benefit, the immigration lawyers at the Law Offices of Scott Warmuth can help you complete the process quickly and accurately.  We provide free consultations at 888-517-9888.