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CA unemployment for household employee who is misclassified as contractor California

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  • CA unemployment for household employee who is misclassified as contractor California

    Hello,

    This man has been working in the home for an ALS patient. He is not trained in this area. The ALS man knew this young man and wife just hired him with a regular schedule. He has worked there for the entire year of 2010. On the 30th of Dec she told him not to return. No reason given. The emotional trauma set aside, I feel he should be eligible for unemployment. I just learned that he is being paid as an independent contractor.

    I would like to give him some guidance/direction so he can file a claim with EDD.

    Many thanks in advance for any guidance.

    Pamela

  • #2
    Who are you in this situation and what makes you think he was misclassified?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      I am a CPA who is good friends with the young man's Mother.

      The wife told the 3 workers how to perform their job: care, feed, bath, her husband. She had LTC insurance and is being reimbursed. LTC Co. has not come out to confirm workers. The other 2 workers are here from Pacific Islands without green cards. He needs 24 hour care. One worker works a 6pm - 7am each night.

      He has been working 3 days a week (about 33 hours) for 11 1/2 months. Maintained a time card at the home. Gets paid weekly for hours worked.

      Comment


      • #4
        Was he free to take other jobs?
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          Yes, he was free to take other jobs.

          Comment


          • #6
            Then I'm not as sure as you that he was misclassified. Patty and DAW are better at this than I am - maybe one of them will pick this up.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              I'm very grateful for your time, thank you.

              Patty and DAW: If you have any comments, I would appreciate them.

              Warmly,
              P

              Originally posted by cbg View Post
              Then I'm not as sure as you that he was misclassified. Patty and DAW are better at this than I am - maybe one of them will pick this up.

              Comment


              • #8
                Is there something that I need to do to address Patty or DAW? Or is it a matter of them just having an opportunity to look at the thread?

                Thanks again.

                Comment


                • #9
                  I saw the question. I can give you a pointer to the general laws on worker classification for federal. I can give you a pointer to the CA-DLSE manual, which sort of discusses the same thing for CA.
                  http://www.dol.gov/whd/regs/compliance/whdfs13.pdf
                  http://www.dir.ca.gov/dlse/Manual-Instructions.htm

                  The problem is this. I am not expert in the specific areas you ask about. I doubt that anyone on this website is. Basically someone would have to study the court and administrative decisions specific to CA and the very specific industry you have mentioned.

                  In general it goes something like this:
                  - The worker files a UI claim with CA-EDD.
                  - CA-EDD will say that they have no record on file (which they will not).
                  - The worker will say that was because they were an independent contractor (IC).
                  - CA-EDD will say that ICs do not get UI.
                  - The worker say that they really should not have been IC, that they really should have been classified as an employee, so just go ahead, reclassify me as an employee, and give me UI.
                  - CA-EDD will pay "prove it". Show us exactly which court/administrative decisions support your position.
                  - The worker will say "what"?
                  - CA-EDD will say talk to an attorney and get back to us when you are ready to support your case.
                  - The worker will say "you got to be kidding me".
                  - CA-EDD will say "no we are not".

                  You see the problem here. My industry expertise is software and manufacturing. I do not have any expertise what-so-ever with home care workers. Now, could CA-EDD be more helpful? Sure. Will they? Probably not, what with a massive backlog and many/most of their former employees laid off. Past that, an argument could be made that any time a worker chooses to be an IC, they can try to claim later that they really were an employee, but that is a low percentage outcome historically.

                  If you want the "cheap" answer, have the worker file a UI claim, and when they lose, appeal, appeal, appeal. The problem is that CA-EDD will feel no need to do the worker's research for them. And the worker will lose the first round because there "wages" were never reported to the state in the first place.
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

                  Comment

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