Happy New Year Comrades! Every new year brings with it some changes to the laws of our state. I want to pass on some information that may affect some of your post operations and how you classify employees vs independent contractors. This is not meant to be legal advice, it is meant to give you information so if you have individuals you classify as independent contractors you should check with an attorney who works in employment law to make sure this change to the California Labor Code doesn’t affect your post. If you don’t have individuals classified as independent contractors then you don’t have to worry.
On January 1, 2020 Labor Code section 2750.3 was amended to reflect a 2018 Court decision. The amendment states in essence: for the purpose of the code, the unemployment Insurance code, and for wage orders under the Industrial Welfare Commission a person providing services for remuneration shall be considered your employee rather than an independent contractor unless you can show the following is satisfied:
A. The person is free from the control of and direction of the hiring entity in connection with the performance of the work, both under the contract for the work and in fact.
B. The person performs the work that is outside the usual course of the hiring entity’s business.
C. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
What this means is, if your post is running a canteen or restaurant and you have servers or bartenders hired on as independent contractors to work in the bar or restaurant, then you may want to speak to your employment law attorney to make sure these workers are in fact correctly classified.
As you may know, you must pay taxes and insurance for your employees and you don’t want to be in a situation where you end up owing back taxes and penalties because your employees were misclassified as independent contractors. If you have individuals hired on as independent contractors, do yourself and your post a favor and check with an employment lawyer, you might just save some money in the process.
One other issue, make sure you pay your employees on time and on regular paydays. The law, for sometime allowed private attorneys to sue you for violations under the Private Attorneys Generals Act (PAGA). Before January, a private law firm could come in file a complaint for a minor violation of the labor code with very little information. The firm would then have standing to sue on behalf of any violation, minor or otherwise, on behalf of any and all employees. On January 1, 2020 the law changed under AB 673 and now the law allows for an employee on his own to come in and sue and get penalties as defined by the statute.
So imagine if your employee is missing a check or two because of an oversight on your part the employee can file a claim and sue you for the wages owed and penalties under the statue. Better to be on time and follow the rules then to have an employee sue to get what they are owed and penalties they would not be entitled to if you had only followed the rules.
Nothing in this article is meant to be legal advice nor is it meant to form an attorney client relationship between the reader and the author. If you have further questions or concerns on the subject matter contained in this article, I urge you to contact your attorney or an employment law attorney to address those questions.
Author: Autrey James
Autrey James is 2021-22 Department of California commander.
