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The main test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. S.G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989). The process of distinguishing employees from independent contractors is fact specific. The right to control retains significance, but is no longer determinative. State Compensation Ins. Fund v Brown (1995). While the right to control work details is the most important consideration, the authorities also endorse several “secondary” factors of the employment relationship. The courts also noted that the “control” test, applied rigidly and in isolation is often of little use in evaluating the large variety of service and employment arrangements that can potentially exist.

The secondary factors usually considered by courts are (1) whether there is a right to fire at will without case; (2) whether the one performing services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the principal or the worker supplies the instrumentalities, tools, and and the place of work for the person doing the work; (6) the length of time for which the services are to be performed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a party of the regular business of the principal; (9) whether the parties believe they are creating an employer-employee relationship; (10) whether the classification of independent contractor is bona fide and not an obvious attempt by the employer to avoid employee status; (11) the hiree’s degree of investment other than personal service in his or her own business and whether the hiree holds himself out to be in business with an independent busienss license; (12) whether the hiree has managerial skill; and (14) whether the service rendered is an integral part of the alleged employer’s business. Sotelo v Medianews Group, Inc. (2012).

The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. Antelope Valley Press v Poizner (2008). Thus, signing an independent contractor agreement is not dispositive and is often of little significance to determining whether a worker is an employee or independent contractor.

After Carie Charlesworth was terminated from her teaching job due to security concerns about her estranged husband, the California mother championed legislation to make sure no one would ever have the same experience of being fired. This past Friday, Charlesworth got her wish when Governor Brown signed a measure into law to protect victims of domestic violence from losing their jobs and workplace discrimination. The new legislation will go into effect on Jan. 1, 2014.

Charlesworth said she was put on leave from her position as a second-grade teacher at Holy Trinity School in El Cajon, California in January 2013, after her ex-husband, Martin Charlesworth, 41, showed up that month in the school parking lot, prompting a campus lockdown until the police arrived. The couple divorced two years ago and Charlesworth said she got a restraining order against her ex-husband because he had been physically abusive. She said she also made her principal aware of the situation.

In April 2013, she received a notice that said the “unfortunate and challenging situation” created by her ex-husband would result in her contract not being renewed for the upcoming school year.

The 14th Amended of the Constitution provides that no state shall deprive any person of… property without the due process. Before the state deprives someone of a protected property interest, the right to some kind of prior hearing must be provided. Regents of State Colleges v Roth (1972). Property interest is not created by the Constitution. Rather, it is created and defined by the existing rules and understandings that stem from an independent source, such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

The Supreme Court explained that government employees can have a protected property interest in their continued employment, if they have a legitimate claim to tenure or if the terms of their employment make it clear that the employee can be fired only for cause. Perry v Sindermann, 408 US 593 (1972). Thus, such employees as assistant college professors, who are hired for a fixed one-year term and are not tenured, do not have a property interest in their job if their contract is not renewed after its expiration.

Thus, the first main step in determining whether an employee has property interest in his/her job under the 14th Amendment is asking whether the position can be terminated only for cause and/or whether it is tenured.

The Board of Chiropractic Examiners may impose discipline against a licensee-chiropractor in California only when that chiropractor’s misconduct is substantially related to the qualification, functions or duties of such a license. It has been held that sexual misconduct with a patient and a conviction involving use of dangerous drug alcohol, such as DUI, are events that can lead to a discipline against a chiropractor’s license. Further, certain types of advertising are forbidden and constitute ground for discipline.

Like in disciplinary actions against other types of professional licenses, a chiropractor may and should present evidence of mitigating circumstances during the license defense proceedings.

Hiring the right attorney, experienced in professional license defense, who can present the case and the mitigating circumstances in the most favorable light without overreaching can be critical in reducing the discipline from revocation to probation with or without suspension, or reducing the penalty from suspension to a letter of admonishment, which letter can also be appealed subsequently.

The California Board of Registered Nursing is charged with investigating licensed nurses and taking disciplinary actions when appropriate. These kinds of actions are brought under the Administrative Procedure Act. The Board’s executive officer files the disciplinary action against, but the board itself is the ultimate decision maker in any such action. The board may only impose discipline against a licensed nurse only when the licensee’s misconduct or violation is substantially related to qualifications, functions, or duties of the nursing license. The criteria for determining whether such substantial relationship exists is outlined in the board’s regulations. The typical disciplinary actions involve penalties ranging from a citation to license suspension or revocation.

The most common charges leading to disciplinary actions against registered nurses are “incompetence” and “gross negligence” as well as “substance abuse” and “charting errors.”

One of the very important elements of making the case for reducing the discipline imposed is showing either rehabilitation or other mitigating evidence. This is especially important in substance abuse cases, where showing active rehabilitation can be critical to maintaining a license or at least not having it revoked. Usually, simply attending AA meetings or similar meetings is not enough to show rehabilitation at a disciplinary hearing, and being involved in a more formal rehabilitation program is required in order to demonstrate to the board that the nurse is on the right track toward recovery from addiction.

Many workers don’t realize that the performance reviews that they receive from their management and their content for the most part are not regulated by law. Employers have sound discretion in determining how to review their employees’ performance, how often to do it, in what format, and whether or not to do it all. The content of performance reviews is also not subject to legal review. In other words, the fact that an employee believes that his/her performance review is unfair has very little, if any significant. The only way it can be used in a wrongful termination claims as additional, circumstantial evidence of otherwise discriminatory or retaliatory firing.

Employers have an unqualified right to use their subjective opinion in evaluating their employees’ performance. The courts do not interfere in that process. Thus, if you have a dispute with your employer over the quality of your performance, you must remember that you are hardly helping yourself by simply getting defensive and disagreeing with your employer’s opinion.

Receiving an unfavorable performance review can be a stressful and frustrating experience, especially when the employee tries his hardest to do the best job he can and truly believes that he does well. However, in the absence of evidence of unlawful discrimination or retaliation, the right way to address bad performance reviews is constructively – by both asking for the more specific feedback and criticism in your performance issues and by trying to improve at least some aspects of your work.

Getting FMLA leave approved can be a frustrating process, especially at a large company or governmental agency where every decision, even a relatively small one, has to be run by and approved by a number of supervisors. It’s possible that when you request medical leave, you will have to do a few trips back and forth between your doctor and your employer, where employer will request for additional information or clarification of your condition, symptoms, limitations and reasons for your anticipated leave.

In most cases, cooperating with the employer or even putting your employer directly in touch with your doctor is a good idea. You want to show that you reasonable do everything in your power to ensure that the employer is on notice of your condition and the need for FMLA.

Some employees decide to play “hardball” with their management, withholding information due to confidentiality concerns, etc… Unless you have some kind of embarrassing condition or are concerned that your management will not maintain confidentiality of your personnel records, you should disclose the required information, because the employer has the right to know the basic information about the reasons for your need for medical leave before granting that leave.

Many large companies have “no fault” attendance policies, where an employee gets a point or half a point for every absence or for being late regardless of the reason for that. Often these kinds of attendance policies are part of the negotiated bargaining agreement between the union and the employer. Under that policy, once the employee accumulates a certain number of points, he is automatically terminated. Such attendance policies do not override the state and federal laws that provide for disability and medical leave, and time off due to qualifying disability or a medical condition should never be counted toward the above-mentioned points. However, it is critical that you notify your management and HR as soon as possible that the reason for any given absence is your medical condition or a disability. If you don’t put your employer on notice, then employer will have no obligation to protect you from the consequences of their policy.

Some employee, who are very concerned about their medical privacy, do not disclose any significant details about their medical condition and choose to be vague and say “I wasn’t feeling well.” This kind of general statement does not put the employer on notice that you have a “serious” medical condition within FMLA/CFRA or that you might have a disability within FEHA or ADA. When your job and disability rights are in jeopardy, this is not the time to safeguard your medical confidentiality, but instead you should find out what information your employer needs in order to be properly informed that you need time off due to the medical reason and possibly other accommodations.

Despite the fact that FEHA (Fair Employment and Housing Act) has been enacted several decades ago, most people who are familiar with the basic ADA disability protections against discrimination at workplace, are not familiar or have not even heard about the FEHA. Fair Employment and Housing Act – a California version of the federal ADA, is similar and in some ways far more protective of employees than its federal counterpart.

One of the significant differences between the two laws which favors employees in the FEHA is the definition of disability. Under ADA, disability is an impairment that substantially limits a basic physical or mental function of the body. Under FEHA, on the other hand, there is no requirement of “substantial” limitation and basically any limitation of a basic physical or mental function is considered disability, entitling a worker in California to the protections, and generally triggering the employer’s obligation to engage in interactive process and provide reasonable accommodations. California Government Code 12926.1 codifies the definition of disability which is very broad and includes a wide range of chronic and non-chronic conditions that would qualify as a disability at workplace.

For more information, read the full text of the California Fair Employment and Housing Act.