[Sign Up Now] to Receive Our FREE Daily SCVTV-SCVNews Digest by E-Mail

SCVNews.com | Opinion/Commentary: Employment Contracts Keep Lawyers Employed | 03-22-2013
Inside
Weather
Santa Clarita CA
Sunny
Sunny
87°F
 
Calendar
Today in
S.C.V. History
August 19
1879 - Newhall civic leader Charles Henry Kingsburry born in Missouri [story]


Commentary by Carl Kanowsky Esq.
| Friday, Mar 22, 2013
Carl Kanowsky, Esq.

Carl Kanowsky, Esq.

Thank God we have appellate courts.

Without them causing confusion and misdirection, we employment attorneys might have to get some real work.

Two cases that came down at the end of 2011 illustrate what I mean by befuddling interpretations of the law.

If you’re an employee, one case gives you a feeling of protection and righteousness. But the other case will have you convinced you can’t challenge the system.

For an employer, one case reaffirms the widely held belief that California unreasonably coddles the employees (although I’m not aware of reasonable coddling), while the other delivers the pot of gold at the end of the rainbow.

The pro-employer case is Arnold v. Mutual of Omaha. In that one, Arnold quit her position as an agent for Mutual of Omaha, then sued the company for not paying many of her expenses and earned wages.

Mutual’s response: “What are you talking about? You’re an independent contractor, not an employee.”

The appellate court agreed with the big insurance company.

The court cited these factors as determining whether Arnold was an employee or an independent contractor: “Whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired (and) additional factors.

“These factors were: whether the principal has the right to discharge at will, without cause; whether the one performing services is engaged in a distinct occupation or business; 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; the skill required in the particular occupation; whether the principal or the worker supplies the instrumentalities, tools and the place of work for the person doing the work; the length of time for which the services are to be performed; the method of payment, whether by the time or by the job; whether or not the work is a part of the regular business of the principal; and, whether or not the parties believe they are creating the relationship of employer-employee.”

Using these factors, the court found that Arnold was registered by the Department of Insurance as an independent agent, authorized to offer products to prospective clients from different companies.

Arnold was responsible for keeping the license current. She received commissions and 1099 tax forms. She decided on her own what potential clients to solicit. She signed a contract on which she was identified as an independent contractor.

During her deposition, Arnold said she had read the contract and understood when she signed it that her appointment with Mutual was as an independent contractor. Mutual didn’t evaluate Arnold’s performance and didn’t monitor or supervise her work schedule.

There was a host of additional evidence showing that Arnold shouldn’t be considered an employee, all of which convinced the appellate court that she had no right to sue Mutual for violations of employment law.

So, score one for the employer.

The other case, Wisdom v. Accentcare, went the opposite way. In that one, most applicants to Accentcare had to sign agreements that required all disputes to be resolved by binding arbitration. One of Wisdom’s co-plaintiffs, Rodriquez, signed such an agreement.

She, along with Wisdom, went to work for Accentcare, and then sued it for not paying them and the class they represented for overtime and what was called “off-hours” work.

Accentcare responded by arguing that since Rodriquez had agreed to binding arbitration when she filled out her employment application, then she could only use arbitration. Consequently, everything needed to be put on hold until that arbitration finished.

The employer lost that argument in both the trial and appellate courts. Both ruled that the so-called “agreement to arbitrate” was unconscionable.

The reasons for the decision included that there was no opportunity to negotiate the agreement; the arbitration rules were not explained or provided; and the prospective employees didn’t know they were waiving their rights to a jury trial.

No one explained the agreement to them or told them that signing it was optional. (Yeah, right. Try applying for a job and telling the employer you won’t sign an arbitration agreement. What are your chances of then getting hired?)

So, don’t assume all employment agreements are binding. Check with a labor attorney first. But even then, sometimes it’s anyone’s guess.

 

Carl Kanowsky is an attorney in Santa Clarita. He can be reached at cjk@kanowskylaw.com. Visit him online at www.kanowskylaw.com.

 

 

 

Comment On This Story
COMMENT POLICY: We welcome comments from individuals and businesses. All comments are moderated. Comments are subject to rejection if they are vulgar, combative, or in poor taste.
REAL NAMES ONLY: All posters must use their real individual or business name. This applies equally to Twitter account holders who use a nickname.

0 Comments

You can be the first one to leave a comment.

Leave a Comment


Opinion Section Policy
All opinions and ideas are welcome. Factually inaccurate, libelous, defamatory, profane or hateful statements are not. Your words must be your own. All commentary is subject to editing for legibility. There is no length limit, but the shorter, the better the odds of people reading it. "Local" SCV-related topics are preferred. Send commentary to: LETTERS (at) SCVNEWS.COM. Author's full name, community name, phone number and e-mail address are required. Phone numbers and e-mail addresses are not published except at author's request. Acknowledgment of submission does not guarantee publication.
Read More From...
Related Content
RECENT COMMENTARY
Tuesday, Aug 15, 2017
If left uncontrolled, diabetes can lead to some really bad outcomes, including kidney problems, glaucoma and other eye disorders, foot ulcers, amputation of feet or legs, stroke, diabetic coma, and even death.
Friday, Aug 11, 2017
There is no doubt the vast majority of Democrats and liberals loathe Trump. Certainly all of the leftists thoroughly hate him, and they have some company. They’re called Republicans.
Wednesday, Aug 2, 2017
In his August message to the community, Santa Clarita City Manager Ken Striplin details the city's emergency preparedness resources.
Tuesday, Aug 1, 2017
As our first president George Washington said, “We must consult our means rather than our wishes.”
Sunday, Jul 30, 2017
Many shocking surprises have shown up around the world as the ice melts. We’ve found a perfectly preserved baby woolly mammoth, a field of dead reindeer that died of anthrax, and then last year, infected people in Russia, and in Alaska, an Air Force plane that disappeared was finally found in the Colony Glacier. It had crashed in 1952, killing everyone on board.
Wednesday, Jul 26, 2017
When President Donald Trump ordered Secretary of the Interior Ryan Zinke to review the status of 27 national monuments created by three former presidents, many across the nation took it as a call to action to advocate on behalf of the monuments closest to their homes, and their hearts.

Latest Additions to SCVNews.com
1879 - Newhall civic leader Charles Henry Kingsburry born in Missouri [story]
Alerted by a concerned citizen Friday, Santa Clarita Valley Sheriff's Station deputies once again rescued dogs the owner left in a car with the windows rolled up and no water.
Deputies Break Window, Rescue Dogs Locked in Car
40 oz. to Freedom arrives in Santa Clarita as part of its anniversary tour at Concerts in the Park at Central Park on Saturday, August 19, with showtime at 7 p.m.
August 19: 40 Oz. to Freedom Rocks Central Park
Two local environmental groups filed a complaint in L.A. Superior Court Thursday regarding the approved plan to provide water to the Newhall Ranch development, set to break ground in 2018.
Environmental Groups File Complaint Against Newhall Ranch Water Plan
County Supervisor Kathryn Barger has provided $143,000 in funding to extend the season of youth and adult swim programs offered at the Castaic Aquatic Center through October 31.
Castaic Aquatic Center Programs Extended to October 31
Tonight on SCV NewsBreak, Los Angeles County firefighters and government leaders welcomed back the Super Scoopers Friday morning. Plus, the Old Town Newhall Library helped get the community ready for it as well by handing out free eclipse viewing glasses. Watch these stories and more on tonight's edition of SCV NewsBreak.
SCV NewsBreak for Friday, August 18, 2017
CalArts alumna Audrey Chan (Art MFA 07) will host a free, all-ages interactive arts workshop in Little Tokyo on Saturday and Sunday, August 19 and 20, as part of the Japanese American Cultural & Community Center’s 2017 Nisei Week activities.
August 19-20: Nisei Week Arts Workshop with CalArts Alum Audrey Chan
Western singer and songwriter John Zipperer headlines the next episode of "SCVTV Presents The OutWest Concert Series" at The MAIN in Old Town Newhall the evening of Friday, August 25.
August 25: John Zipperer Toplines ‘SCVTV Presents The OutWest Concert Series’
Habitat for Humanity SFV/SCV is honored to have received a $25,000 grant from the Disabled Veterans National Foundation, which will fund trauma workshops.
Habitat for Humanity Receives $25K Grant from Disabled Veterans
Here are agenda highlights for the next meeting of the Los Angeles County Board of Supervisors, set for Tuesday, August 22, starting at 9:30 a.m..
August 22: Board of Supervisors Meeting Agenda
Ashley Olivier, a student worker at the Santa Clarita Valley Sheriff's Station, summited Mt. Whitney with her dad, a lieutenant at LASD's Monterey Park station.
SCV Sheriff’s Station Student Worker, LASD Dad Top Mt. Whitney
Looking to enter the win column for the first time in 2017 on day two of the Summer Slam volleyball tournament, the TMU Mustangs squared off against 11th-ranked Eastern Oregon but lost in straight sets.
Mountaineers Spike Mustangs at Summer Slam
Caltrans has released "Rail and the California Economy," a research report investigating how the state’s vast passenger and freight rail system contribute to California’s economy, as well as an overview of opportunities for rail to address the state’s needs and challenges in the future.
New Report Details Rail Role in State Economy
The Master’s University women’s soccer team soared to a 7-0 victory over the visiting Eagles from Sierra Nevada College Thursday.
Lady Mustangs Soccer Win Opener 7-0
The Master’s University women's volleyball team concluded their first day of HIU Summer Slam tournament play with a five-set thriller against the Southern Oregon University Raiders on Wednesday evening, dropping the fifth set 15-9.
Lady Mustangs Fall in 5 to Raiders at HIU
A federal judge on Wednesday ruled against claims by a state workers’ union that California’s pension system unfairly changed the terms of a pre-existing collective bargaining agreement.
Court Upholds Increase in CalPERS Retirement Age
Friday's alert from the South Coast Air Quality Management District that air quality will be unhealthy for sensitive individuals in the Santa Clarita Valley has been extended through Saturday.
Updated: SCV Air Quality Unhealthy Saturday
Four annual crime reports, which provide law enforcement agencies and the public with statewide data on crime statistics, were released Friday by California's Attorney General.
AG Releases 4 California Crime Reports for 2016
The Master’s University women’s volleyball team lost their 2017 season opener Wednesday at the HIU Summer Slam in straight sets against the Warriors from national powerhouse Corban University (OR).
Warriors Drop TMU Lady Mustangs in Straight Sets
Here's the Castaic/Val Verde (Zone 2) Crime Information and Public Safety Report from the Santa Clarita Valley Sheriff's Station for the week of August 7 to August 13.
Crime Blotter: Assault, Theft in Castaic-Val Verde
Two Santa Clarita Valley Sheriff's Station employees will be recognized at the City Council meeting to be held on August 22 at 6 p.m.
City Council to Honor 2 SCV Sheriff’s Station Employees
The Santa Clarita Public Library invites residents to celebrate the upcoming total solar eclipse on Monday, August 21 with two free events at the Old Town Newhall Library.
August 18 & 21: Solar Eclipse Events at Newhall Library
The city of Santa Clarita’s Youth Sports program has seen measured success thus far in 2017.
Santa Clarita Youth Sports Sees Spike in Participation
The Santa Clarita Valley Senior Center’s new building campaign now only has $1.3 million remaining to raise before groundbreaking on the site can begin.
New SCV Senior Center Needs $1.3M to Break Ground
Sacramento County sued the California Department of Water Resources on Thursday over DWR's certification of the California 'WaterFix' delta tunnels project’s “dizzying” and “shifting” environmental review.
Sacramento County Sues to Freeze California ‘WaterFix’
1946 - Pioneering Placerita Canyon movie producer Trem Carr dies in San Diego [story]
' style=
The storewide remodel of the Walmart Supercenter at 26471 Carl Boyer Drive is complete and, in addition to the many physical changes inside, Santa Clarita residents now have access to Online Grocery Pickup.
Walmart on Carl Boyer Drive Celebrates Grand Reopening Friday
Tonight on SCV NewsBreak, two people have been hospitalized after a major collision. Plus, an acquisition of land near the 14. Watch these stories and more on tonight's edition of SCV NewsBreak.
SCV NewsBreak for Thursday August 17, 2017
Le Chene French Cuisine, a long-time Santa Clarita local favorite restaurant along Sierra Highway, has announced that they will be hosting a thrilling Murder Mystery Dinner on Saturday, November 4th, 2017.
Nov. 4: Le Chene Murder Mystery Dinner
Senator Scott Wilk, R- Antelope Valley, today announces that he is one of the 2017 inductees into the Antelope Valley High School Alumni Hall of Fame.
Sept. 22: Wilk to be Inducted into AV High School Hall of Fame
Signups are under way for the Santa Clarita Walk to End Alzheimer’s, which offers participants an opportunity to take a healthy stroll, experience outstanding live entertainment, honor loved ones who have been affected by Alzheimer’s and raise funds to battle the debilitating disease.
Oct. 7: Walk to End Alzheimer’s; Signups Under Way
Trammell Crow Company (TCC) andand Clarion Partners are pleased to announce the acquisition of 54 acres of land for the development of The Center at Needham Ranch, a state-of-the-art business park in the city of Santa Clarita, CA.
TCC, Clarion Partners Acquire More Than 50 Acres of SCV Real Estate
The California Department of Tax and Fee Administration is hosting what will be a highly educational and informative (and free) Tax Seminar for Nonprofits and Exempt Organizations.
Sept. 6: Tax Seminar for Non-Profits and Exempt Organizations
For the first time in 99 years, a total eclipse of the sun will pass over the continental United States on August 21, and Princess Cruises guests sailing on six cruise ships in Alaska will be invited to special viewing parties as part of the cruise line’s exclusive Stargazing with Discovery at Sea program.
Princess Cruises to Host On-Board Viewing Parties for Solar Eclipse