Maternity Leave & Your Rights

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When you're expecting, the last thing you should have to think about is your rights at work, but some employers deny workers rights to maternity leave. Workers have various Federal, state, and local laws governing maternity leave, and if you find yourself fighting with your employer over your right to maternity leave, your attorney through our Legal Protection Subscription Plans for Individuals & Families can walk you through your options based on the laws of the state where you live, as well as give you advice for your specific situation. Learn more about all the benefits of membership, and read on for a brief overview of maternity leave rights.

Maternity leave allows mothers to have time away from their jobs in order to rest and recuperate from child birth as well as bond with and care for their newborns. Depending on your employment situation, this kind of leave will most likely be unpaid, as paid maternity leave is rare in the United States. Federal Law through the Family and Medical Leave Act (FMLA) requires that your employer give you 12 weeks of unpaid, job-protected maternity leave; unfortunately, this law only applies if your employer has more than 50 employees. Since October of 2020, Federal employees are guaranteed 12 weeks of paid parental leave, but maternity leave laws vary from state to state for non-Federal employees.

FMLA leave has eligibility rules, including that you have worked for your employer for at least a year, and 1,250 hours in the 12 months preceding when the leave begins. The employer must have more than 50 employees, or be a public agency or a school. The FMLA only covers new mothers so that they have time to bond with their child, and this applies to adoptive parents, as well.

Employers are not required to pay employees while on FMLA maternity leave, but some employers do offer paid leave, though they are not required to by any federal, state, or local law in the United States. The Civil Rights Act of 1964 and the Pregnancy Discrimination Act of 1978 provide some additional protections for a pregnant person's job if they need time off due to child birth, as well.

If your employer is resisting giving you time off for maternity leave, you may need to advocate for yourself, and knowing the laws in your state will be very helpful in this situation. Your attorney through our Legal Protection Subscription Plans for Individuals & Families will be able to give you advice based on your specific situation and your state of residence or employment, including help filing a claim with the Equal Employment Opportunity Commission (EEOC), a governmental body that enforces Federal laws that make it illegal for employers to discriminate against employees. Learn more about all the benefits of membership or sign up today to protect your rights!

Random Drug Tests & Your Rights

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In workplaces across the US, random drug tests have become increasingly common since the late 1980s when employers were required by federal laws to have drug testing policies in their employee guidelines. What rights do employees have when it comes to random drug testing? Are random drug tests legal? Do you have the right to be informed about an upcoming drug test or can you be tested without warning? If you have questions about workers' rights or other employment-related concerns, your attorney through our Legal Protection Plans for Individuals & Families will be able to give you personalized advice and assistance for your specific situation. Learn more about our Subscription Plans and read on for more info about randomized drug testing.

Random drug testing is unannounced, randomized testing of employees to see if they test positive for illicit substances. These are commonly conducted using urine analysis tests that can detect traces of illegal drugs and other substances for some time after the drug use occurred and long after the effects have worn off. Federal law states that employers have the right to drug test employees, but some states also have laws governing how random drug tests are to be conducted, so it is important for employees to know the laws of their state in regards to random drug tests.

The first question people generally ask is, "Can I refuse a random drug test from my employer?" And the most basic answer to that question is no. If your employer has a published policy in place requiring random drug tests, you will have to comply or risk punishment, up to and including being fired from your job. You may be able to get a medical exception from your doctor if you have a disability that prevents you from taking urine tests or if your state has laws that prohibit random drug tests. However, whenever you refuse a drug test from your employer, you do risk disciplinary action, which may include termination.

The second question people typically ask is, "Is it legal for my employer to require me to take a random drug test?" As long as they follow local, state, and federal rules and procedures, employers have the right to test employees for drugs. These rules essentially say that the testing must be conducted in an impartial and fair manner and that all employees have an equal chance of being selected for each random test. No employee should be chosen for testing more than once. Company policies regarding random drug tests need to be clearly outlined in employee handbooks or other employment materials given to employees.

The next question people ask is generally, "Can I contest the results of drug test?" The answer is yes. If you test positive but haven't taken any illicit substances, you should immediately ask to take another test, as you may have gotten a false positive. Nearly all employers will be happy to test you again. If your employer refuses to test you again, taking another test from an outside firm or medical facility usually won't do you any good, as employers are not required to accept those results and can still fire you. If you receive a false positive drug analysis test, you should call your attorney immediately. Depending on the circumstances of your particular case, the state you live in, and other factors, you may have a case for appealing any disciplinary action from your employer, whether that be probation, being laid off, or being terminated.

If you have been punished or fired from your position due to random drug testing, an employment law attorney may be able to help you file an appeal or a wrongful termination suit, depending on the circumstances in your case. Your attorney through our Legal Protection Plans for Individuals & Families will be able to give you advice and help you understand your rights as they pertain to your specific case. Learn more about all the benefits of membership or sign up today!

What To Know About Wrongful Termination

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Wrongful termination can happen for a number of reasons: retaliation, discrimination, economic reasons, because the employer doesn't like the employee, or for no reason at all. If you've ever been wrongfully fired from your job, you can protect yourself in a few ways, including getting advice from a dedicated, experienced employment law attorney through our Legal Protection Subscription Plans for Individuals & Families. For just $29.95 per month, you can get legal help for any workplace issues - or any other personal legal issues - you may be having, at no additional cost. Learn more about all the benefits of membership and read on for information about wrongful termination.

When employees are fired in violation of state or federal laws, it is called wrongful termination. Most commonly, wrongful termination happens due to discrimination for gender, sexual orientation, race, religion, age, or disability, but also happens as punishment for employees "blowing the whistle" by filing a complaint or testifying against the company in a lawsuit. An example would be an employee getting fired after filing a sexual harassment claim.

There are two types of wrongful termination: Discharge In Violation of Public Policy and Discharge in Violation of Employment Agreement. If an employee were fired after refusing to commit an illegal act, such as committing fraud or ignoring safety regulations, that would be a wrongful termination in violation of public policy. If an employee is fired and they have a written employment contract stating they must be fired for cause, that is an example of Discharge in Violation of Employment Agreement. Additionally, some states protect workers' jobs by mandating that they cannot be fired for jury service. If you are promised a severance upon discharge and do not receive the money - or the full amount stated in the contract - this is also considered a breach of contract.

Employees who are wrongfully terminated have rights and can file suit against their former employer, may be entitled to receive back pay or wages that would have been earned if the employer had not fired them, and may be awarded punitive damages, as well.

If you've been wrongfully terminated, it is important to consult with an employment attorney as soon as possible. Your attorney will be able to give you advice based on your specific situation and develop a plan of action. Your attorney may even be able to help you negotiate a severance package. Gather all documentation to support your case, including performance reviews, communications (texts, emails, letters, messages, memos, etc). It is important to collect and preserve these documents on your end as soon as possible as your employer may destroy them once a claim is filed.

You should also understand the laws of wrongful termination where you live, as states have varying statutes of limitation on wrongful termination cases. You should also document the company's procedures and policies on termination, as they may have violated their own policies when they fired you. Additionally, some companies put it in their policies that wrongful termination cases must go through arbitration or appeals before a lawsuit can be filed.

In cases like these, your very best defense is to contact and consult with an experienced employment attorney as soon as possible. Your attorney will be able to give you more information on the type and kind of documents and evidence to preserve - particularly if you haven't been fired yet but believe that you will be soon - and tell you whether or not you have a valid claim and what kind of damages you may be entitled to, as well as giving you advice on navigating the entire process while protecting your rights.

The most important thing to remember is to not sign any documents or make any agreements until you've talked with your attorney, as these may be offers of severance that also waive your right to a lawsuit. Additionally, you should not post about the case or your job on social media or web sites as your employer will be able to use those posts in court. Finally, avoid speaking to anyone associated with the company without your attorney present. Let them know that all communication should go through your attorney.

Getting fired is generally stressful and can be emotional, and it is more so when you are terminated wrongfully. These kinds of cases can be hard to prove, but with the help of an experienced, dedicated lawyer from our network of law firms throughout the US, Canada, and the UK, you will increase your chances of proving your case and getting justice. Your attorney will be able to assist you in collecting strong evidence, navigating the process, and giving you advice throughout the process. Learn more about the benefits of subscribing to our Legal Protection Plans for Individuals & Families, or sign up now!

When You're Short Staffed: A Brief Business Owner's Guide

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Millions of American business owners have heard this refrain over the past two years: "I tested positive for COVID, so I can't come to work today." With so many workers out sick while the workload piles up, business owners, managers, and other employees are burning out as they cover for those who are ill. Nearly three-quarters of packing companies reported more employee absences since the start of the pandemic. If you're having problems with staff shortages at your small business, you may find it useful to create an employee handbook if you don't already have one or update your current handbook to reflect the stressful circumstances of dealing with COVID-19. Your small business attorney through our Small Business Legal Protection Plans can help you go over your handbook to make sure that all your guidelines are legal and enforceable. In the meantime, here are a few tips for dealing with staffing shortfalls:

Help Your Staff

Some business owners are very “hands off” regarding the day-to-day operations of their businesses, but these trying times may mean that it's time to pitch in. This will show employees that you care, that you don't want them to be overworked, and that it's important that the business stays running to a certain set of standards while others are out sick.

Prioritize

If you have several employees out sick, it may be time to prioritize tasks to make sure that what absolutely must be done gets done while less important tasks are put aside for later, when you have a full staff. Make a list of tasks and decide which are the most important and which ones can wait a little bit. Make sure your team members and employees are in the loop and check off the priorities list together.

Simplify

Look into if there is technology that can lessen workers' workloads or if some processes can be automated. Ask your employees if they have any ideas for how work can be streamlined.

Hire More People

It's not always possible, but if you can, hire more employees, temporary work staff, or contractors to pick up the slack. Depending on your industry, you may be able to outsource some work to freelancers until your full-time staff can safely return to work.

Ask Employees for Input and Ideas

This not only has the benefit of finding solutions from the people who do the work every day, but it lets your staff know that you're listening and know they're struggling.

Show Your Appreciation To Present Employees

Make sure that those employees who are working every day and picking up the slack know that you appreciate them. A bonus in their paycheck is a great way to show how much you appreciate their effort.

Let Your Customers Know

Most customers will understand that you're dealing with a stressful situation when your staff is out sick. Put up some signage asking for patience and don't let unruly customers bully your staff.

If you have questions about employee rights and employer rights during the pandemic, don't hesitate to talk to your small business attorney through our Small Business Legal protection Plans. Your small business lawyer will be able to help you understand your rights and responsibilities to your employees, what your employees' rights are, and possibly help you find solutions. Learn more about all the benefits of our Small Business Legal Protection Plans or sign up now!

Attorneys Warn Workers to Be Careful With Social Media

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We live in a world that is increasingly online for communication, photos and videos, shopping, entertainment, business, and banking. Having access to the world from the palms of our hands makes it incredibly simple to share our thoughts, pictures, shopping finds, news, and more with just a click. While it is an exciting feature of our interconnected lives, social media can also be dangerous. Using social networking to chat and connect with others about our personal and professional lives has given rise to legal cases stemming from employers seeing employees' social media posts as being detrimental to their businesses. This brings up all kinds of questions: what speech is protected? How far is too far? Could a business experience legal problems for what an employee posts online? Lawyers are urging caution when it comes to online activities, both for employees and employers. If you have questions about how much control your employer can have over your online life or if you're an employer wondering if you can impose limits to what your employees post online, our network of experienced, dedicated attorneys can give you advice before a problem occurs to avoid the issue altogether, or help you through any legal issues that might have arisen from online content. Learn more about the benefits of our legal subscription plans for small business or for individuals and families and read on for a few general tips.

What Is Protected Speech?

Employees often have the misconception that the Freedom of Speech in the First Amendment to the US Constitution protects them and that they can say whatever they want, but this is not true. Freedom of Speech rights are not as strong in the work place and only a few types of speech are protected under the First Amendment and by the National Labor Relations Act, such as speaking in your workplace about your religion or talking about issues of public concern.

Online settings are not the workplace, and you do have the right to post about your wages, hours, and working conditions; however, you cannot posts threats, racial epithets or other hate speech, disclose trade secrets or other confidential information about your employer, or harass anyone, and employers have the right to look into social media posts to make sure that their information stays confidential or that their company is not being misrepresented by employees. For example, employees have been caught making false reviews about employers on review sites, impersonating a company's competitor and making comments, and making defamatory statements about an employer. These actions create legal problems for everyone involved.

Each case will vary, but the legal consequences can be devastating, and, even if you are not legally impacted, your reputation - or your company's - can suffer.

Creating Boundaries

Companies who are worried about employees posting problematic things online can and should have a social media policy in their employee handbook. Creating a policy that breaks down what employees can and cannot talk about online can avoid having employees disclose trade secrets or other confidential information. Attorneys advise that employers should proceed with caution here because you can create different legal problems for your company if you create rules that limit what employees can say too aggressively.

Trials Are On The Rise

In the not-too-distant past, hearing about defamation or libel usually only pertained to newspapers, magazines, and other media publishers. Those days are long gone. The ability for anyone to post anything at any time in a public forum means that each individual person is liable for what they publish online. Attorneys warn that it is crucial that you know your rights in regards to social media, regardless of whether you are an employer or an employee.

Social media is only getting bigger and its use has gotten more normalized over time. It is critical now more than ever to understand your rights and responsibilities before using it. Take the time to consider your words before you post and think about possible consequences of your content before publishing it in public. Remember: the Internet is forever and content never really goes away, even if it is deleted. If you have questions, either as an employee or as an employer, about your rights, responsibilities, and legal liability in regards to social media and the Internet, you can speak with an experienced, dedicated attorney today about your concerns through our legal subscription plans. We have plans tailored to individuals and families as well as plans that cater to the needs of small businesses, all for one low, monthly fee.

Learn more about our legal subscription plans for families and individuals or sign up now! If you're a small business, you can learn more about our business-specific plans or sign up today!

Can Your Boss Fire You For Job Hunting?

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Millions of people are currently looking for a better job fit amid "The Great Resignation." The Coronavirus prompted many people to make changes in their work lives; according to studies, more than half of working Americans are actively looking for a new full-time job, even if they already have one. With as many people as are working and looking for different employment right now, some wonder what happens if your current boss finds out that you're job hunting. Could you be fired? Because all US states are what is known as "at-will states," the answer is yes. An experienced employment lawyer can help you go over any contracts or agreements you're asked to sign at your job, as well as give you advice on any specific employment situation you're dealing with at your current place of work. Learn more about our legal subscription plans for individuals and families and read on for some job hunting basics.

What Is An At-Will State?

At-Will means that an employer can fire you for at any time, without notice, for any reason not specifically protected by EEOC laws. Most states have some exceptions; for instance, 42 states and the District of Columbia have an exception for public policy, which means that you can't be fired for reasons prohibited by state or federal laws. There are also "implied-in-law" exceptions.

It's Not Common, Though

Employers have the right to fire you for any reason, including job hunting, but it is pretty rare for employers to do so because employees who are fired from their positions are usually entitled to certain benefits, such as unemployment benefits, whereas employees who resign or quit on their own aren't entitled to those benefits.

When Non-Compete Agreements Are In Play

If you signed a non-compete agreement, you may be prohibited from working for a competing business, company, or industry for a specified amount of time stated in your contract, usually for some time after your employment has ended. Non-compete clauses vary state-to-state, and some aren't enforceable in some states. Make sure to read any non-compete contracts you're asked to sign as they can limit your future opportunities. Non-compete agreements must be found to be "reasonable" by a court and approved. The court ensures that the clauses in a non-compete are not too limiting, are limited by geography, and has a reasonable definition of what qualifies as "competition."

What If Your Boss Asks You If You're Job Hunting?

There is no law or restriction prohibiting employers from asking if an employee is job hunting, and some may take it personally and terminate the employee. If you choose to look for another job, make sure that the process doesn't take away from your current job's duties; schedule interviews on days off or use PTO and don't apply for jobs while you're at work.

Learn More About Your Rights As A Worker

Employment laws and worker's rights laws can be confusing, and adding in contracts and agreements to the process can make it more so. Having your attorney look over any contracts you're asked to sign or give you advice on a specific situation can give you confidence to go ahead with your plans and seek out new opportunities. Learn more about the benefits of our legal subscription plans for individuals and families or sign up today!

Employment Contract Red Flags

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A federal court recently ruled that Tesla must pay a former contract worker $137 million in damages following a claim of abuse while working for the company. Owen Diaz worked for Tesla as a contract worker and dealt with a hostile work environment. Other employees bullied him and other African American workers, including racist graffiti and drawings. It's a shocking story, but if Owen had signed his Tesla contract, he wouldn't have even been able to take the company to court over the abuse they did nothing about. The employment contract with Tesla stipulated that all disputes had to go through mandatory arbitration, which prohibits parties from taking each other to court, requiring all involved to settle claims and disputes privately. It rarely works out in favor of employees when included in employment contracts. These arbitration clauses prevent employees from taking an employer to court if there is a dispute, so it is a good idea to review employee contracts carefully to see if this kind of language is included.

Whether you're a short-term contractor or a long-term employee, it is critical that you read and understand what your rights and responsibilities are according to any employment contract before you sign it. Your provider attorney through our Legal Protection Plans for Individuals and Families will be able to walk you through any employment contract your employer asks you to sign and help you work through potential resolutions for any terms that strip you of your rights or throw up any other red flags.

What To Look For

Restrictive Covenants

Restrictive covenants are usually included in employment contracts to protect the company, other employees, or clients of the company. These could include clauses such as non-compete, non-disclosure, or non-solicitation.

Job Description

Even if you already know what your duties on the job will be, it is important to make sure that the language used and description of your job match up with any job description  where you applied or in your interview or other documents. If the description of your job differs, you should bring this up with Human Resources or the hiring manager. If the changes are significant, talk to your attorney about appropriate next steps.

Salary & Requirements

Again, if the language or details in the employment contract differ from what you were told in your offer letter or other communication, speak to the hiring manager or Human Resources for the company before signing. You can also discuss this with your attorney so you have a firm knowledge of what to say. This section should also include details on how and when you will be paid and how any bonuses are distributed and your eligibility.

Working Hours

Double-check the details here, too. Make sure that the start date, number of weekly working hours, and days off all match what you have been previously told. Again, if there is a discrepancy, speak to HR or the hiring manager. You attorney can help you here, too.

Sick Leave and Holiday Pay

Understanding policies surrounding sick days and holidays is also important. What does the contract state are the procedures and policies for taking time off, whether you are required to take your time off or lose it after a certain date, and if there are any days that are company holidays?

If you ever receive an employment contract from an employer - whether a new one or one you have worked with for years - and you need clarity or a better understanding of your rights, you can call your provider attorney any time for advice, document and contract review, and more at no additional fee. For just $29.95 per month, you can have the piece of mind knowing that you understand any contract given to you before you sign a legally binding document. Learn more about all the benefits of our Legal Protection Plans for Individuals & Families, or sign up today!

Toxic Workplaces, Whistleblowers, and Retaliation: Worker's Rights

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Employees publicly calling out the unethical behavior of their employers is nothing new, but recent cases at Theranos and Facebook have been major national news in recent months. Employees call out bad behavior at work places of all sizes all the time. If you know something unethical or unsafe is happening where you work but you don't know who to turn to for advice, our legal subscription plans for individuals and families may be the answer. You'll be able to ask a qualified, dedicated attorney questions about your employment and your employer's unethical behavior and get advice and answers, sometimes, the same day you sign up. You'll also be able to talk to provider attorneys about an unlimited number of other issues at no additional cost. In the meantime, here is a brief overview of workplace whistleblowing.

You Have A Right To Speak Up

As an employee, you have a right to say something if you see something wrong or unethical. Gather your facts and questions and have a private conversation with your immediate supervisor. Follow your employer's policy for reporting misconduct and make sure to keep a careful record of what is said in your meeting.

Employer Retaliation

Most people think that speaking up when you witness something wrong would be encouraged, but many employees don't speak up for fear of retaliation from their employer. Retaliation can take many forms, including:

• Firing the employee

• Transferring the employee to a different job or location

• Reducing salary

• Changing the employee's role

• Denying promotions

• Removing responsibilities or access

• Threatening to do any of these things

Fear of retaliation is the main reason that employees do not report unethical or bad behavior when they see it. If you report something and think your employer is retaliating against you, here are some things you can do:

• Ask your employer why the retaliatory actions took place. Is their explanation reasonable?

• If not, voice concerns about retaliation

• If the retaliation is denied (and it probably will be) take the issue to the Equal Employment Opportunity Commission (EEOC) or the fair employment agency in your state

• Consult with an attorney about what to do next

Speaking up when you see something wrong or unethical is very important, and the fear of retaliation is real. Laws exist to protect whistleblowers against retaliation, and your provider attorney can advise you on your rights as an employee, what do to in these situations, and help you protect your rights while doing the right thing. Getting advice from dedicated attorneys who are experts in employment law is easy and cost effective with our legal subscription plans. Learn more about our plans for individuals and families or sign up today!

Legal Protection for Ride Share and Delivery Drivers

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The food service and transportation industries have been completely transformed by ride sharing and food delivery companies, and not just in how we order food or get to the airport. These new industries have employed millions of workers, but with new jobs comes new legal considerations, both for the companies and for the workers. Drivers for these kinds of companies are finding out that they need legal protections for their livelihoods, and our Ride Share and Delivery Drivers' add-on for your legal subscription plan might be right for you if you are - or are considering - joining the ride and delivery workforce.

The Legal Issues

Drivers for ride share and delivery companies are sometimes hired as independent contractors rather than at-will employees, which means that these drivers don't get the same kind of benefits that regular employees receive. Being an independent contractor comes with its own set of legal issues, including taxes, insurance, traffic violations, accidents while on the job, and more.

Traffic Violations

If your job depends on your personal vehicle, getting a traffic ticket is more problematic than getting one in regular life. Tickets can destroy your perfect driving record, can be expensive, and may cause your insurance rates to go up. A knowledgeable attorney can give you advice on how to best deal with tickets to minimize the damages and save you money in the process. Always remember to obey all the traffic laws when driving for your job, including parking for pickups and deliveries in designated areas.

Accidents

If you are involved in an accident - whether you're on the job or not, or if it is your fault - you should always contact your attorney as soon as possible. If you are a member of our legal subscription plans, contact your provider law firm. Make sure that you have the proper coverage on your insurance, and make sure everyone in your vehicle is wearing seatbelts and not violating any other laws.

Taxes

The difference between being an independent contractor and an employee is most obvious at tax time. Independent contractors are considered to be self-employed and are subject to self-employment taxes. To make the most of self-employment taxes, you should keep track of all your expenses - including gas, vehicle maintenance and repairs, cell phone and service, etc - and your income. If your income does not match your tax documents or if you deduct mileage or expenses you don't have receipts or records for, you may get audited by the IRS. Get a mileage tracker app to keep track of your mileage and save the data for your records at tax time. Your provider attorney will be able to help you understand and get organized for taxes.

Driver/Passenger Issues

Always make sure that the person who gets in your car is the person you're there to give a ride to. Rider scams are becoming more common as ride share services become more popular, and these scams can be detrimental to your job and income. They can cost you time and money and, in the event of a more serious situation - such as someone hopping in your car with the intent to steal it - you may wish to consult your attorney about legal aspects of rider issues. Always ask someone's name when they get in your car; if you ask them, "Are you Dave?" anybody could say "yes." Additionally, while it can be fun to have a conversation with your passengers, over sharing could lead to stalking or harassment or even identity theft. Never give out personal information - including social media handles - and make sure that your personal documents with your information on them are out of sight.

Property Damage

Those who make their living on the road know that damage to the vehicle is part of the job, and it is more than just traffic accidents that cause damage. Rowdy passengers can cause damage to your car's interior and if you're picking up people at a bar to get them home safely, you might consider bringing a bucket and paper towels with you on the trip, just in case.

Safeguard your income with our Ride Share & Delivery supplement to your individual & families legal subscription plan and get access to dedicated attorneys and law firms with experience and knowledge of legal concerns for ride share and delivery drivers. You'll be able to contact your attorney about an unlimited number of issues related to delivery and ride share employment, with up to two hours of legal research included per issue. This supplement also includes IRS Audit support for your personal tax returns, as well as legal advice and consultation for traffic tickets, accidents, and more that occur while you're engaged in your ride share or delivery employment. Learn more about this benefit or sign up now!

Worker Classifications - What Small Businesses Need to Know

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Misclassifying workers as independent contractors when they should be classified as employees can have serious financial and legal ramifications for businesses of all sizes. In 2017, the hardware chain store, Lowes, settled a $2.8 million worker classification lawsuit which claimed that Lowes had improperly classified installers as independent contractors when they were actually employees, and that this misclassification caused workers to miss out on workers' compensation benefits, liability insurance, and caused the workers to pay employment taxes that they shouldn't have been responsible for.

There are distinctions between independent contractors and employees, and the following points can help small businesses understand these differences.

The IRS has four worker classifications:

Independent Contractor - An independent contractor controls the kind of work they do, where they complete the work, and how the work is completed. The business that hires an independent contractor only controls the result or product. The business may set deadlines; businesses cannot set specific working hours.

Employee - If a business controls where, when, what, and how work is completed, then the worker is an employee.

Statutory Employee - Some workers who would normally be independent contractors can sometimes still be considered an employee by the IRS:

• Workers who work from home under specific instructions, with materials or tools provided to them by the business that must be returned to the business;

• Food and beverage delivery drivers (milk excluded);

• Commissioned laundry and dry cleaning drivers;

• Insurance agents working primarily for one life insurance company selling life insurance or annuity contracts;

• Full-time traveling salespersons submitting orders directly to the business from other businesses or wholesale establishments.

Statutory Nonemployee - Some statutes deem some workers who would otherwise be considered employees as nonemployees, and includes:

• Direct sellers and real estate workers who are not paid on an hourly basis;

• Companion sitters (private duty nurses and home health aides) not employed by a placement service.

It can be difficult to determine how to classify some workers in some circumstances.  The IRS provides a form you can complete and send to them that allows the IRS to determine a worker's classification. The form, called Form SS-8, can be downloaded from the IRS web site and includes detailed instructions for filling it out; however, it can take the IRS up to six months (or more) to get back to you. Your Small Business Legal Subscription allows you to bypass this process and consult your attorney for advice on proper worker classification.

State Regulations

Some states may classify workers differently than the IRS. It is extremely important to understand your state's regulations and how they impact your worker classification for your industry.

As you can see, being able to contact a dedicated, experienced employment lawyer can be priceless when navigating employment classification, and with our Small Business Legal Subscription plans, you, too, can have a small business lawyer "on retainer" for advice, questions, contracts, and more! Learn more here or sign up today!