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California employers who order their labor posters and postings from the various sources out there, should also be aware and remember that the Employer is also required to post a copy of the appropriate Wage Order from the Industrial Welfare Commission of the California Department of Industrial Relations.  Do not forget this component of the California posting requirements.

When hiring someone to complete a project or series of tasks for you, it is sometimes tempting for the person doing the hiring to classify that worker as an independent contractor.  It is cheaper for the person doing the hiring because employment taxes do not have to be paid, certain insurance requirements do not have to be met, and certain benefits do not have be provided. Also the employer may not have to comply with wage and hour laws (i.e., overtime, meal and rest periods, reporting time pay, etc..).

This is why some businesses go ahead and classify that new worker as an independent contractor rather than an employee. But just because the business classifies the worker as an independent contractor, does not mean the various regulatory agencies will do the same, and doing so may get the business in trouble.  Regulatory agencies favor the employee and the employee model of hiring for work.  The IRS and State Franchise Tax Board would also like for you to designate the person as an employee so you have to pay the employment taxes.  They lose countless amounts of money each year to underreported self employment income.

In order to stay out of trouble with the various regulatory agencies you need to weigh several factors (developed by case law) to determine whether the person is truly an independent contractor or an actual employee. You should keep records of the decision and why the decision was made. You want information in the file that will support your decision that the person really is an independent contractor, if you go with that classification.   Generally speaking, the more control you exert over the person, the more likely the person will be classified as an employee. If you direct their work, tell them when they have to report, pay for their tools or supplies, give them any training, set the hours of work, require they only work for you, and things of this nature, you have likely exerted sufficient control over the person for them to be classified as an employee.  If the person doing the work uses their own tools, can subcontract the work to someone else, can report to work on their schedule, does work for various other individuals or businesses, provides their own training, and does not have to report like other employees, tends to suggest the person is a true independent contractor.

There are other factors different agencies look at, and some safe harbor provisions an attorney can advise you about.

The IRS has a publication discussing worker classfications.  Visit the Department of Labor’s site for discussion related to proper classification here.  Finally, the Employment Development Department has an valuable resource here.

You should also have an independent contract agreement in place with anyone you designate as an independent contractor to recite all the facets of the agreement and memorialize the lack of control you have exerted over the person in terms of the business relationship.

In Rutti V LoJack, the Ninth Circuit Court of Appeal looked at the issue of which activities performed by an employee should be counted as “hours worked” or are properly disregarded as non-compensable activity.  This case highlights the sensitive issue of working of the clock. The Court applied rules under both the Fair Labor Standards Act (FLSA) and California Labor Code.

Rutti it is an important wage and hour case for many reasons, but this post is concerned with the commuting time issue brought up in Rutti.  In that regard, the decision reemphasized the familiar rule that commuting time (i.e., travel time from home to the first place of employment for the day) need not be paid under the FLSA or California Labor Code.  Both Federal law (29 USC Sec. 254) and the California Labor Code (Labor Code Section 510) provide that time spent commuting to and from the place where the employment activities are carried out is generally not compensable “time worked.”

The emphasis in the Rutti case was that the commuting rule applies even where the employee is required to use a company vehicle and is restricted from making unauthorized stops or engaging in personal business. Rutti did allow that an employee’s travel time could become compensable if she were required to perform any “additional legally cognizable work” during the commute.  The Court gave no specific examples of such work; however, making work related cell phone calls or similar activity could be likely examples of such activities that would convert the non-compensable commuting time into on-the-clock work activity that would be compensable.

If you are an employer with employees who work outside, you should be aware of the California Heat Illness Prevention Program and Regulations. These rules not only apply to those who work outside all day, but may also apply to those employees who work both in and outside in a given day. Where employees are spending any significant portion of the day outside, the rules should be complied with to avoid regulatory violations.

The Heat Illness Prevention Regulations address such topics as shade requirements, drinking water requirements, heat illness training requirements and other related matters. Feel free to review the following links, and contact our office if you have further questions in this regard.

Heat Illness Prevention FAQ from Cal-OSHA:
http://www.dir.ca.gov/dosh/heatIllnessQA.html

Cal-OSHA Heat Illness Prevention General Information and Links: http://www.dir.ca.gov/DOSH/HeatIllnessInfo.html

Video Information from Cal-Osha:
http://gov.ca.gov/index.php?/videoblog/9624/

Pocket Pamphlet in English (also available in Spanish) to Give to Outdoor Employees: http://www.dir.ca.gov/dosh/dosh_publications/HeatIllnessEmployeeEngSpan.pdf

Employer Sample Heat Illness Prevention Policy Published by Cal-OSHA: http://www.dir.ca.gov/dosh/dosh_publications/ESPforHeatIP3-10-19-07.pdf