California Supreme Court Limits Use of Independent Contractors

On April 30, 2018, the California Supreme Court issued its long-awaited opinion in Dynamex Operations West, Inc. v. Superior Court, clarifying the standard for determining whether workers in California should be classified as employees or as independent contractors for purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”).  The Court held that there is a presumption that individuals are employees.  The Court held further, that an entity classifying an individual as an independent contractor bears the burden of establishing that such a classification is proper.

After reviewing the major relevant cases, the Court acknowledged that a worker is an employee if he or she is “employed” by an “employer,” and “employ” is defined as: “ (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” If any of these standards are met, the worker is an employee and not an independent contractor.  However, the Court indicated that the “suffer or permit to work” standard is a “term of art” that cannot be interpreted literally because it would obviously encompass workers who are traditional independent contractors (e.g. plumbers).  Thus, the Court interpreted the scope of “suffer or permit to work” by adopting the “ABC test.”

The ABC Test

Under the ABC test, a worker will be deemed to have been “suffered or permitted to work,” and thus, an employee for wage order purposes, unless the alleged employer proves:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Note that each of these requirements need to be met in order for the presumption that a worker is an employee to be rebutted, and for a court to recognize that a worker has been properly classified as an independent contractor.  Following Dynamex, California businesses that treat some workers as independent contractors should probably review their relationship under the “ABC test” to determine whether any or all such workers should be reclassified.  In summary, the Court has imposed a burden on businesses to now defend their classification of workers as independent contractors.

– All Rights Reserved © 2018 by Michael L. Mau, Esq. and The Mau Law Firm

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9th Circuit Rules an Illegal Minor has No Right to Court Appointed Counsel

February 1, 2018 Leave a comment

Immigrant children who enter the country illegally with their parents have no right to a government-appointed paid lawyer in court, as just recently ruled by the 9th Circuit Court of Appeals. The ruling came in the case of a Honduran boy who arrived in the United States in 2014 at age 13 with a parent and was denied a stay of deportation. The boy had appeared in immigration court without a lawyer. While criminal defendants, citizens or not, have the right to government-funded legal representation, that right doesn’t automatically extend to immigration cases. The court seemed sympathetic to the child’s plight, but looked to Congress as the body for appropriate legislation to codify such a right.

In summary, the 9th Circuit held that neither the Due Process Clause nor the INA [Immigration and Nationality Act] creates a categorical right to court-appointed counsel at government expense for alien minors. Possibly left open was the question of whether an unaccompanied minor, would have such a right. The case is C.J.L.G. v. Jefferson B. Sessions III [AG]; No. 16-73801, United States Circuit Court of Appeals for the Ninth Circuit.

– All Rights Reserved © 2018 by Michael L. Mau, Esq. and The Mau Law Firm

Accessory Dwelling Units / In-Law Units Encouraged by New Laws

An ADU, previously known as “in-law” units or “granny flats,” are additional living spaces on single-family lots that have a separate kitchen, bathroom, and exterior access independent of the primary residence. Two bills, SB-1069 and AB-2299 were recently enacted amending provisions of the Government Code, and generally encouraging the building of ADU’s.  These bills require local governments to permit property owners to build ADUs in single-family and multifamily residential zones, so long as the ADU meets specific standards defined in the bill. Those standards include, but are not limited to, parking, height, setback, lot coverage, landscape, architectural review, and maximum size of a unit. As long as the standards are met, local cities and counties are required to approve the ADU. Property owners, who are interested in adding an ADU to their property, should consult with their local building or planning department and an attorney.

– All Rights Reserved © 2017 by Michael L. Mau, Esq. and The Mau Law Firm

Check your Lease before Listing a Short-term Rental

February 18, 2016 Leave a comment

A new law in effect for 2016, requires short-term vacation rental websites such as Airbnb to provide disclosures to tenants.  While subletting is often not allowed in rental agreements, and can even lead to eviction, many tenants don’t know this or even review their own rental agreements before trying it.  A tenant should always review their lease first, to see what is and is not allowed, for any new planned activity.  SB 761 places the burden on operators of home-sharing websites — such as Airbnb, HomeAway, Flipkey and others — to remind renters to check their leases or ask their property managers before engaging in subletting.  The hosting platforms will do this by posting an online notice that customers must acknowledge having read before listing a rental. Prohibitions on subletting exist for good reasons. Tenants who sublet often give out security codes and keys without tracking them, and vacationers who rent the units often use the common areas, such as swimming pools or parking, at disproportionate levels.  Noise complaints are also a common occurrence.  SB 761 is now law as new Sections 22590 to 22594 in the California Business & Professions Code.

– All Rights Reserved © 2016 by Michael L. Mau, Esq. and The Mau Law Firm

 

AB-349 Would Allow HOA Homeowners to Install Artificial Turf

AB-349 which was approved by the Assembly but is still going thru the Senate committee review process, would amend Civil Code Section 4735 again.  The existing law in part prohibits a Homeowner’s Association (“HOA”), except an HOA that uses recycled water for landscape irrigation, from imposing a fine or assessment on owners for reducing or eliminating watering of vegetation or lawns during any period for which the Governor has declared a state of emergency or the local government has declared a local emergency due to drought.

This bill amends the law further, to make void and unenforceable any provision of the governing documents or architectural or landscaping guidelines or policies that prohibits use of artificial turf or any other synthetic surface that resembles grass.  The bill makes sense in this extended drought, to approve of another method for homeowners to save water.

– All Rights Reserved © 2015 by Michael L. Mau, Esq. and The Mau Law Firm

Contractor Problem? Remember the License Bond as Security.

February 12, 2015 Leave a comment

For homeowner’s damaged by a home improvement contractor working on their their primary residence, don’t forget their License Bond as security.  For these homeowner’s, the available License Bond proceeds are the full sum of the bond or $12,500.00.  The legislature should probably at least double this bond amount, but for now this is the limit.  There are a few other categories of claimants who can pursue that full License Bond sum, such as unpaid employees of the contractor.  But a more common example, is the homeowner who hires a home improvement contractor, who abandons the job half way to completion or who causes more damage then they are fixing!  Keep in mind, this can be a contractor of different trades such as roofer, plumber or painter.  See, B&P Code Section 7071.5 and 7071.6 for more details.  If you need to pursue such a claim, call an experienced Construction Law Attorney.

– All Rights Reserved © 2015 by Michael L. Mau, Esq. and The Mau Law Firm

Short Term Rental Legislation in San Francisco

February 2, 2015 Leave a comment

New legislation in the City and County of San Francisco is taking effect that allows qualified residents to legally rent their units through the Short-Term Residential Rental Registry via the San Francisco Planning Department.  San Francisco Ordinance No. 218-14 was signed to amend the Administrative and Planning Codes to allow permanent residents of residential properties to conduct short-term rentals.  This essentially attempts to legalize what has already been an ongoing practice via services like AirBnB.

Eligible property owners and tenants can now apply to place their permanent residence on the Short-Term Residential Rental Registry.  Residents may not legally rent their unit (in its entirety or a portion of) as a short-term residential rental until they have received a Short-Term Rental Registration number from the Planning Department.  With a valid Short-Term Residential Registration Number, residents may rent their permanent residential unit for periods of less than 30 nights under certain conditions without violating Chapter 41A of the Administrative Code (the Residential Unit Conversion and Demolition Ordinance) or the Planning Code.  This includes renting a portion of their unit while they are also present for an unlimited number of nights per year, or renting all or a portion of their unit while they are not present, for a maximum of 90 nights per year.  Tenants are prohibited from making more than their monthly rent from fees charged to their guests.  For more information, see the full Press Release from the Planning Department.

– All Rights Reserved © 2015 by Michael L. Mau, Esq. and The Mau Law Firm