Month: August 2018

Business Law, employment law, Legal

Let’s Make Everyone An Independent Contractor!

Sanjay Sabarwal

Although the idea of converting all employees to Independent Contractor to avoid Wage and Hour headaches as well as payroll taxes sounds like Manna from heaven, it guarantees that you will be found liable for violations under California Employment laws.

Mislabeling a worker as an independent contractor creates potential liability for employment taxes and penalties, and liability for failure to fulfill the many legal obligations owed to an employee, such as wage and hour requirements. California courts have decided several cases about who is, or is not, an independent contractor. Cases have been brought for failure to pay overtime, as well as for other labor code violations.

California administrative agencies, the federal Department of Labor (DOL) and the Internal Revenue Service (IRS) closely scrutinize alleged principal/independent contractor relationships to ensure that those relationships are not, in reality, employer/employee relationships. Enforcement efforts to combat misclassification are on the rise.

Challenges to the legitimacy of an existing independent contractor/principal relationship can arise in many forms, including:

  • Filings for unemployment insurance (UI) benefits
  • Claims for unpaid wages
  • Claims for workers’ compensation
  • Charges of employment discrimination
  • Investigations by the IRS, the DOL, the Department of Industrial Relations (DIR) and Employment Development Department (EDD) to audit wage payments, workers’ compensation coverage and Unemployment Insurance Fund contributions

Willful Misclassification

It is unlawful for any person or employer to “willfully misclassify” an individual as an independent contractor. The law also prohibits employers from charging a misclassified independent contractor for goods, materials, space, rental, services, government licenses, repairs, equipment maintenance or fines that arise from the individual’s employment, if the charges would have violated the law if the person had been an employee.1

Willful misclassification means: “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”

The civil penalty for violation of this law ranges from $5,000 to $25,000 for each violation. Other remedies include requiring the employer to display on its website or in the workplace a notice of the serious violation of misclassifying an independent contractor, a statement that the employer has changed its business practices in order to comply with the law, and information on how to contact the California Labor and Workforce Development Agency to report misclassification.

The notice must be posted for one year, and signed by an officer of the employer.

The law also imposes joint liability on a person who is retained to assist with classification and who knowingly advises an employer to treat an individual as an independent contractor to avoid employee status. Joint liability does not apply to a licensed attorney or to a person who provides advice to his or her own employer. Joint liability would apply to a non-attorney outside consultant.

These civil penalties are in addition to any fines or taxes owed to the DOL, IRS or the EDD or any unpaid wages owed to workers.

Defining Independent Contractor

California labor law defines an independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”2

An independent contractor works for another entity under a verbal or written contract, usually for a specific length of time. The independent contractor is responsible for only his/her own work, and is generally responsible for his/her own schedule. The independent contractor must also be responsible for how the work is completed.

  • You should assume all workers are employees unless they clearly meet all legal requirements and pass all tests various federal and state agencies use for proper classification of independent contractors. Consultation with legal counsel is usually warranted.

Food For Thought, Inpsiration, Journal

We Get To

Sanjay Sabarwal

Today at my gym, my coach reminded us that we don’t have to but we “get to do” things. Life is a privilege especially for those of us blessed with so much in our lives. It became a great reminder for the beginning of this week.Gratitude gets us so much further in life than feeling victimized and feeling sorry for one self. It’s easy to make everything into a chore than the privilege it is for so many of us.

So today, I begin this week with gratitude and the acknowledge that I get to do so much while others cannot or won’t. It’s always a choice.

What’s yours?

family law, Legal

What You Need To Know About Divorce in California

Sanjay Sabarwal

Divorce can be a difficult time for all of the parties involved. Being properly informed before you file for divorce will put you on the right track and help put your mind at ease as you enter into the divorce process. It is always a great benefit to have certain questions answered before entering into a major life decision.

Date of Separation

First and foremost, it is extremely vital that you document the date of separation. This date will be the deciding factor in concluding what property and assets can and will be divided between you and your spouse in a California Family Court versus what property and assets belong solely to you.

It’s really as simple as it sounds. Any property and assets acquired before the date of separation can be communally divided between you and your spouse, while anything acquired after the date of separation, cannot.

If you find it is too difficult or impossible to come up with an approximate date of separation, don’t worry. California court will conduct two tests, an objective and a subjective, that will help determine that information for you.

One area of note regarding this matter is the home. California has divorce-related automatic restraining orders prohibiting the sale or mortgaging of the marital home. Even If you or your spouse holds the sole title to your home, the property is considered communal. If this is the case in your situation, make sure to discuss this issue with your Attorney.

Six Month Minimum

Next, it is important for you to know that the state of California will not restore your status to single or complete your divorce until no less than six months has elapsed. This means that you will not be able to remarry or claim ‘single’ on your taxes until six months has passed. While six months is the ultimate minimum, it is a fact that most divorces may take longer.

The six month waiting period begins when the respondent, the spouse being served the divorce petition, receives the paperwork filed by the petitioner, the spouse that is taking action. Since California is a no-fault divorce state, all it takes is one spouse to file for divorce and start the process.

Regional Requirements

Finally, you might be wondering if you have to live in California to file for a divorce in the state. The answer is yes. Either you or your spouse must have lived in California for at least six months and have resided in the county that you plan to file for divorce in for at least three months. If you have lived in California for six months, but in different counties for the minimum three months, you may file in either county.

If you fail to meet either of these requirements, you may file for a legal separation until you meet them. Once the required time has passed, you may then file an “Amended Petition” and ask the court for a divorce.

If you have any questions or need help regarding any of these issues, contact us to set up a consultation.

Family, Food For Thought, Inpsiration, Journal

Back to Basics

Sanjay Sabarwal

It can be difficult to take self analyze certain emotional situations especially when dealing with loved ones. More and more I realize that I am blessed to be surrounded by so many who love me and who I love in return.

I see that when I forget the basics of connection, seeking or offering support, or making time to things that bring joy, I feel a certain emptiness, a guilt that somehow life is passing me by.

And then there are confirmations in a way you don’t want to happen, and it becomes clear that taking intimacy, and loved ones for granted is a recipe for feeling disconnected and alone. And so it is with the law. Each time I get a new client, it is a reminder that if people had taken care of the basics, they would not need my services.

So I use today to remind myself and others to be kind, be patient, be loving, reach out to others, stop feeling sorry for yourself, but most of all remain open to the possibility of what life offers up. It’s usually not pretty, but it ends up providing lesson that you need even when you don’t want them.

Business Law, Legal

So You Want to Start a Business?

Sanjay Sabarwal

Do the following tasks either before launch or during the early days of your startup.

1. Determine viability

Be brutally honest.  Your startup needs to be something you can make a profit doing or delivering.  Ask yourself: would you buy it? Run the numbers: will customers pay enough so that you can cover costs and make a profit?   Here is a list of 29 more questions to ask, attributed to noted investor Paul Graham.

2.  Create a business plan

It’s easy to convince yourself that you don’t need a business plan, but creating a business plan with financial projections forces you to think through details. Keep your plan a living breathing thing that you revisit and adapt regularly.

3.  Figure out the money

Most startups take a lot more time to get off the ground than you expect. Know where your living expenses for the first year will come from (savings, a job, spouse’s income, etc.).  If you need financing for the business start investigating as soon as possible.

4. Get family behind you

Spend time to make sure your spouse and other close family ‘buy into’ your startup.  You’ll have enough challenges without resistance from family.

5. Choose a business name

You want a name that will stick in your target audience’s heads. And it shouldn’t already be taken by another company. Do Google searches and use a corporate name search tool to see if the name you have in mind is unique. Check at the state and Federal level.

6. Register a domain name

Get a matching domain to your business name.  An AOL email address or a website with free hosting and a name like mysite.wordpress.com makes it seem like either (a) you are not running a real business or (b) you don’t plan to be around long.

7. Incorporate / figure out legal structure

Incorporating your startup can protect your personal assets. Talk over structure (corporation, LLC, sole proprietorship) with your attorney and accountant.

8. Apply for an EIN

An Employer Identification Number (EIN) helps you separate yourself from your business. You’ll need it if you plan to incorporate your business or open a business bank account.  Plus, with it you can avoid giving out your social security number (an opening  to identity theft). EIN numbers are free; apply online.

9. Investigate and apply for business licenses

You may need one, if not several, business licenses for your startup, depending on your industry and where you are located.  Most licenses are at the state or local level.  Here in the United States, the SBA has a helpful business license and permits tool.

10. Set up a website

Get your website up and running as soon as possible. Today, it’s necessary for credibility.  Even if your product is not yet built, you can start with company information.

11. Register social media profiles

Getting set up on the major social media channels (Facebook, LinkedIn, and Twitter, to start) will make marketing on them later easier. Also, it’s important to reserve your brand as a profile name. Try Knowem.com to reserve the names.

12. Start your revenue stream

Start generating revenue as soon as possible.  At the early stages of a startup there is never enough money – resist the temptation to wait until things are “perfect.” Oh, and get your lawyer to create any customer contract forms necessary.

13. Rent retail or office space

If you’ve got a brick-and-mortar business, you’ll need to sort this out early. If you plan to run a retail business, pay attention to foot traffic, accessibility, and other factors that will affect the number of people who will walk in your store. EXCEPTION: If you don’t have a brick and mortar or retail business, then hold off renting an office as long as possible to avoid saddling your startup with lease payments.

14. Order business cards

As a startup founder, you’ll be doing a lot of networking, so order plenty of business cards. They are inexpensive enough that you can reorder them later if things change. Without cards you lack credibility.

15. Open a business bank account

It’s all too easy to use your personal bank account to pay for business expenses, but it becomes a gnarl to untangle later.

16. Set up your accounting system

Once you have your bank account set up, choose an accounting program. Start as you intend to go. Few things will doom your business faster than books that are a mess.

17. Assign responsibilities to co-founders

If you have one or more founders, it’s imperative that you decide who will do what up front. Put it in writing.  Co-founder disagreements can destroy your business.

What You Can Do A Bit Later

While you don’t want to put off these tasks too long, they don’t need to be checked off your list before you launch.

18. Upgrade your smartphone and choose apps

As an entrepreneur you are going to be on the go – a lot. I can’t emphasize enough how useful a good phone with good business apps can be, in running your startup. Get a credit card swipe device to accept payments, too.

19. Find free advice

Your local SBA office, SCORE, and other small business resources can provide you with free advice, access to business templates, and other tools.

20. Consult your insurance agent and secure coverage

Depending on the type of business you’re starting, you may need insurance of one kind or another, like liability, workers’ comp, or health insurance, especially if you hire full-time staff.

21. Hire your first employee

Depending on the type of business you have, you may need staff from day one (retail) or you may be able to outsource to  freelancers, interns, and third-party vendors for a while (service and tech businesses).   Just remember, trying to do everything yourself  takes you away from growing the business.

22. Line up suppliers and service providers

Finding a good source of inventory is crucial, especially in certain types of businesses (retail, manufacturing). Beyond inventory, line up good reliable suppliers and service providers so you don’t have to sweat the details.

23. File for trademarks and patents

The best thing to do is consult an attorney early about the need for patents, especially.  Get the advice early. Then you may be able to defer filing for a while, depending on the nature of your business.

24. Work your  network

Reach out to former co-workers and colleagues, as well as friends and family. Don’t pressure them to buy your products or services.  Instead, tap into them for introductions and help with other things on this startup checklist.

25. Don’t waste time on “partnerships” 

Be careful about wasting time on “business partnership” discussions. Your business won’t be attractive to potential partners unless and until you start making headway. Focus your precious time to make sales and get customers.

26. Refine your pitch

You need a good elevator pitch for many reasons: potential investors, customers, prospective new hires, bankers.  If you can’t persuasively and clearly pitch your business, how can you expect key stakeholders to buy in?

27. Refine your product, and marketing and sales approach

As you go along you will learn more about the marketplace.  Use customer feedback to refine your product and service offerings, and your go-to-market approach.

28. Secure your IT 

Whether you’re running a tech company or not, you likely have sensitive data on computers and devices that you want protected. Protect it from intrusions and disasters.  Back it up!  IT problems can derail a fledgling company.

29. Get a salesperson or sales team in place

In many startups the business owner starts out as the chief sales person. But to grow you need a dedicated sales function, so you can focus on activities other than day-to-day sales.

30.  Get a mentor

It’s all tooneasy to work “in” your business rather than “on” it.  As Michael Gerber tells us in The E-Myth, we need to be working “on” our businesses if we want them to grow and flourish. A mentor who has succeeded in your industry can provide you with priceless advice and serve as a sounding board.

Your checklist might be longer than this, but organizing what needs to be done before you launch and what you can take care of down the road makes it easier to prioritize your tasks.

employment law, Legal

Pay Days For Hourly and Exempt Employees

Sanjay Sabarwal
payday word circle marked on a calendar by a red pen

How often and by what dates am I required to pay employees?

All wages for the normal work period for non-exempt employees must be paid at least twice each calendar month on days designated in advance by the employer.

For work performed between the 1st and 15th days of the month payment must be made by the 26th day of the same month. For work performed between the 16th and last day of the month payment must be made by the 10th day of the next month.

An employer also may choose to pay employees weekly, bi-weekly or semi-monthly with payment within seven days of the end of the pay period.

Even when an employee fails to turn in a record of time worked, the employer remains legally obligated to pay the employee on the established payday.

Salaries of executive, administrative and professional employees may be paid once a month on or before the 26th day of the month.

What are the payday requirements when an employer is closed?

Occasionally, the designated payday will fall on a holiday or on another day that the employer may not be open for business. The question then becomes: When are the employees required to be paid?

If the employer is closed on a Saturday, Sunday or holiday, which happen to be the designated payday, the employer may pay wages on the next regular workday.

What is the penalty for failure to pay wages on payday?

The penalties are costly, and inability to pay is not considered a defense for failure to meet the payday.

Civil Penalties

When an employer fails to pay wages (as required by Labor Code Section 204) on a regular payday, the employer, under Labor Code Section 210, is subject to a civil penalty for each such missed payday.

The initial penalty for failure to pay wages is $100 per employee per missed payday. So if your company has 25 employees, the potential civil penalty is $2,500.

Civil penalties for subsequent missed paydays are much more severe. The penalty is $250 per employee, plus 25 percent of the amount unlawfully withheld.

Most penalties required by the Labor Code and the Industrial Welfare Commission Wage Orders go to the employees; however, payday penalties go to the state of California. These penalties may be recovered by the Labor Commissioner through a hearing process outlined in Labor Code Section 98(a) or by going directly to the courts.

Labor Code 1194.2 provides for recovery of wages because of nonpayment of the minimum wage. An employee can recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. The Labor Commissioner may assess liquidated damages based on the current minimum wage multiplied by all unpaid hours in the pay period (except overtime hours).