Archive for the ‘Labor Law’ Category

How To Challenge An Unemployment Claim in Louisiana

On January 19, 2011 Author By Scott Wolfe Jr

When an employee is terminated and claims unemployment benefits in Louisiana, the claim is associated with your business’ account and will affect your unemployment insurance rates in the future. It’s no secret that people can abuse the unemployment benefits system. Unfortunately, the burden really falls on employers to prevent abuses.

In Louisiana, unemployment claims are administered by the Louisiana Workforce Commission. Whenever an employee is terminated, the employee will be entitled to receive benefits unless: (i) The employee was terminated for misconduct that makes them ineligible for benefits; or (ii) The employee voluntarily quit the employment.

La. R.S. 23:1601 explains what qualifies as “misconduct” or “voluntary termination.”

Misconduct means “mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.”

Voluntary termination requires leaving an employment post “without good cause attributable to a substantial change made to the employment by the employer.”

If a former employee has applied for unemployment benefits and you contend that the employee does not qualify, you’ll need to provide the Louisiana Workforce Commission with sufficient information to justify your position. We’ve created an Avvo.com Legal Guide on this subject, giving you a step-by-step guide on how to challenge these unemployement claims.

Read the Avvo Legal Guide here. We’ve summarized the steps below.

  1. Determine Whether The Unemployment Claim Has Merit:  An obvious first step, as there’s no use in fighting an unemployment claim that is eligible for benefits.
  2. Pay Attention to Deadlines: The deadlines can be super short (10-15 days), and failing to meet a deadline is fatal to opposing a claim.
  3. Document Your Position: The more you provide to support your position, the better chance you have. Send your story to the commission in a letter, but also send statements, emails, photos, videos, documentation, payroll records, etc.
  4. Consider Hiring Counsel: If the going gets tough, you may want to hire an attorney to help prepare your position.
Posted in:     Business Matters, Labor Law  /  Tags: , , , , ,   /   Leave a comment

Is The Nailed! Blog “Nailing” Companies Before A Fair Investigation?

On November 1, 2010 Author By Scott Wolfe Jr

A couple of weeks ago, we posted about a new blog out in the blogosphere that is of interest to the Washington construction industry:   Nailed!

The blog is published by Washington’s Department of Labor and Industries, through Carl Hammersburg, the department’s Fraud Prevention and Compliance manager.  The blog focuses on fraud prevention and compliance with L&I regulations.

It’s not shy about it’s goal.   The blog is called “Nailed,” and it’s sending a message to its regulated industries that it will be nailing those not in compliance.

While I generally like the blog and its content (and sometimes share it on my Twitter account), I was a bit upset by an October 25th post:   Tragedy reveals hidden cost of independent contractor label.

The post discusses a very hot topic:  the distinction between independent contractors and employees.   I’ll be the first to tell you that the independent contractor label is often abused, with companies – big and small – holding benefits from its employees by labeling them an “independent contractors.”    Just because you call someone an independent contractor, doesn’t make it so.

The blog post uses a recent tragedy to “reveal the hidden cost” of improperly using the independent contractor label.

According to the post, a Burien two truck driver lost his life in an accident, and his family contacted L&I requesting death benefits.   According to L&I:

That’s when we discovered his employer had not paid for the insurance that would entitle his family to death benefits.

The owner of the tow truck company claims the victim was an independent contractor, not an employee. Even though the man was insured by the company and drove company-owned trucks, the owner insists the man killed met the guidelines to qualify him as an independent contractor.

So, what will come next in the story?   Sounds to me like L&I is going to explain how they investigated the incident and discovered that the tow truck company violated regulations and misclassified the deceased man as an independent contractor.

But no, the post goes on to say this:   “We’re opening a review of this incident…to determine if these claims hold water…”

Wait!   They didn’t already investigate this?   From the setup of this blog post – after all, look at its title – it seems like the department had already made up its mind about this.   They haven’t even investigated the incident yet!?

To highlight that apparent bias that L&I will have entering the investigation, I commented on the blog post with the following:

Hi Carl – Let me start by saying I’m a big fan of the Nailed Blog, and the concept behind it. I am a reader and subscriber, and frequently refer to it on our blog: http://www.constructionlawmonitor.com.

As an attorney who represents clients in the construction industry, we confront this “independent contractor v. employee” issue a lot. There is certainly a problem with the label being used incorrectly. I find that folks don’t use it incorrectly on purpose…they just don’t understand the distinction. After all, the distinction can get quite technical.

All that aside, I’m commenting because I didn’t like this post. Let me explain.

In reading the first three paragraphs, I assumed that L&I had already opened an investigation and closed it: finding the towing company was in violation. But then I encountered the fourth paragraph: “We’re opening a review of this incident…”

Wow! If this were any other blog, I wouldn’t be caught off-guard by the commentary. But since Labor & Industries will be the government agency investigating this incident and the towing company’s conduct, I was surprised that the agency would be starting the investigation with such bias.

This is unfortunate. There are circumstances where the independent contractor label would be appropriate, and maybe this is one of those circumstances and maybe its not. But I think Nailed! went a little too far with this post, as it seems like L&I made up its mind upon hearing the sad story…and not the facts.

It’s unfortunate, but sometimes it seems like government agencies have an agenda of their own, and they plow through honest legal questions and determinations to advance their agenda.

I sympathize a great deal for the Burien man who lost his life, and for his family.    And if the tow truck company was improperly classifying employees to save money, they should be nailed.

But we don’t know that yet.   It’s too bad that the department with the first crack at making that determination seems to already have made up its mind.

Articles About Classifying Employees / Contractors:
Posted in:     Labor Law, Regulations  /  Tags: , , , , ,   /   2 Comments

E-Verify Required in Mississippi on State and Private Projects

On September 14, 2010 Author By Scott Wolfe Jr

At the Construction Law Monitor, we’ve traced the history of the E-Verify requirement from President Bush’s aggressive regulation to the less severe Obama one.   Along the way, there has been a lot of discourse about the federal requirements, and specifically the requirement that E-Verify get used on every federal contract, and even those contracts that just use federal funds.

Here is something we haven’t mentioned:   State Requirements.

Some states have passed legislation requiring E-Verify on state funded projects, and even on qualifying private projects.

Most notable for our Louisiana clients is legislation passed (and in force) in Mississippi.

The Mississippi Employment Protection Act is the culprit in that state, and the folks over at the I-9 and E-Verify Blog published this excellent summary of the law’s e-Verify component:

The Mississippi Employment Protection Act has also been implemented in stages, mandating E-Verify registration and participation for state agencies and political subdivisions, all public contractors, all public subcontractors, and private employers with two hundred fifty (250) or more employees starting July 1, 2008; private employers with at least one hundred (100) but less than two hundred fifty (250) employees on July 1, 2009; and as of today, private employers with at least thirty (30) but less than one hundred (100) employees. The law will further expand to cover all employers in Mississippi on July 1, 2011.

Employers that do not comply with the law by the applicable effective date may have any existing state contract terminated and become ineligible for public contracts for three years, or have any license, permit, or certificate allowing the employer to do business in Mississippi suspended for a period of one year, or both.

If you’re doing work in Mississippi, be aware that the e-Verify requirement is much broader than elsewhere in the country.   Other aggressive states?   South Carolina and Utah are among them – anyone else know of any others?

Posted in:     Around The Web, Labor Law  /  Tags: , ,   /   1 Comment

How To Respond To A No-Match Letter: New Avvo Legal Guide

On September 9, 2010 Author By Scott Wolfe Jr

The post-Obama E-Verify requirements have been in effect for more than 1 year already, and while the feared teeth to the Department Of Homeland Security’s (DHS) “No-Match” letters were removed from the regulations, those no-match letters are still being received by employers.   Employers are still responsible for handling them with care…and unfortunately, because of the intersection between your duties to the DHS and your employee, care is certainly required.

I prepared an Avvo.com Legal Guide with the steps you should take in the event you receive a N0-Match letter.    Here is a tease:

Step 1:  Do NOT Immediately Fire The Employee

Step 2:  Review Your Files for Simple Mistakes

Step 3:  Send Written Notice to Employee

Step 4:  Followup With Employee

Step 5:  Terminate, Carefully

For explanations of these steps, check out the Avvo Legal Guide.

Posted in:     Labor Law  /  Tags: , ,   /   Leave a comment

Two New Washington Laws Contractors Must Know From the 2009 Legislature

On January 14, 2010 Author By Scott Wolfe Jr

As we enter it a new year, we thought it was prudent to review what the Washington legislature passed last year that is now law and affecting the construction industry.

Earlier this week, we wrote about the small amendments to the Contractor Registration Act.

More changes to Washington’s regulatory scheme passed into law in 2009 aside from these small amendments.   In this post, we’ll discuss SB 5613 which authorizes L&I to issue stop work orders on employers not in compliance with workers compensation requirements, and SB 5904 which defines an “independent contractor” on public works projects.

Stop Work Orders Allowed on Contractors Who Do Not Pay Workers Compensation

SB 5613 was passed by the Washington legislature, and became effective in July 2009.   This new law provides Labor & Industries with an additional mechanism to enforce the worker’s compensation requirements for contractors:  stopping work.

Previously, L&I could fine employers and contractors in violation of the workers compensation provisions, but couldn’t actually force the contractor to stop work.   Now, a new section has been added to RCW §51.48 giving L&I this stop work authority.

If an employer is in violation of the workers comp requirements, L&I can force the employer to stop work on that project (and other projects where there are violations) until the employer gains compliance.   Becoming compliant will require the payment of any assessed penalties and interest.

What happens if the employer doesn’t stop work after being so ordered?   Paragraph (4) of the new section subjects the employer to a $1000 per day penalty until the employer is in compliance.

The new section is clearly aimed at punishing employers dearly if they are not compliant with the workers compensation statutes.   Where penalties alone didn’t always work in the past, now L&I can hurt contractors on jobs.  If an employer must stop work, obvious problems arise:  will they get paid for work done?  will they be responsible for delay damages on the project?   will the job be given to another contractor?

Getting clever and opening a new entity with less baggage will be of little use under the new section.  Paragraph (7) contemplates this circumstance, and provides that stop work orders are effective against “any successor…business entity that has one or more of the same principals or officers…”

Read the passed SB 5613 here.

Independent Contractor Defined for the Purposes of Prevailing Wages

In the past, much argument has ensued on public works between Washington’s Department of Labor & Industries and contractors over whether a party or entity is an employee or an independent contractor.

The consequence to the distinction is clear.   If an employee, prevailing wage rates must be paid.  If an independent contractor, the prevailing wage rate may not be required.

Well, SB 5904 adds a section to RCW 39.12 to clear up the ambiguity.

Regardless of how an employer attempts to label a party/entity, they will be considered a laborer, worker or mechanic unless all of these factors are met:

  1. They have been and is free from control or direction over the performance of the service, but unde under the contract and in fact;
  2. The service provided is either outside the usual course of business for the hiring contractor or the service is performed outside the places of business for the hiring contractor;
  3. The party/entity is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the instant contract;
  4. The party/entity is responsible for filing at the next applicable filing period a schedule of expenses with the IRS;
  5. The party/entity has an active and valid certificate of registration with the department of revenue, and all other required registrations;
  6. The party/entity maintains a separate set of books or records reflecting all items of income or expense of the business; and
  7. The party/entity is a registered contractor, if required.

Read the passed bill’s full text here.

This article was originally posted on Wolfe Law Group’s topic-specific Northwest Construction Law Blog.

Posted in:     Labor Law, Prevailing Wages, Washington  /  Tags: , , , ,   /   Leave a comment
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