Employers Misclassifying Workers Face Joint Federal/State Investigations

Brian J. Hoffman, The Legal Intelligencer
November 22, 2016

Employers have often played “fast and loose” with regulations governing workforce classification, tempted by the significant savings associated with independent contractor treatment. As such, in August 2016, Pennsylvania became the 35th state to reach an agreement with federal authorities to coordinate inquiries and share enforcement data in wage and hour investigations.

The Pennsylvania Department of Labor and Industry (PA DOL) and the United States Department of Labor (“US DOL”) inked a Memorandum of Understanding which serves to facilitate the exchange of information during enforcement actions. Historically, a particular focus of both the US DOL and PA DOL has been the misclassification of employees as independent contractors. Previously, an investigation by the PA DOL or US DOL of an employer would NOT necessarily lead to a reciprocal investigation by the other party. Now, given the execution of the Memorandum of Understanding, employers should expect that a wage and hour investigation by one department will likely lead to an investigation by the other. As such, employers challenged on employment classification practices while under audit will likely see overall liabilities increase during any given inquiry, as both federal and state taxes and penalties will be imposed.

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Wage Theft Hotline Hits Home With California Port Drivers

BY JOHNNY MAGDALENO
OCTOBER 31, 2016

Reyes Castellano has been driving cargo in and out of the Long Beach, California, port for 15 years. The 58-year-old has always had to put a big chunk of his paycheck toward covering repair and maintenance costs for his vehicle, but ever since K&R Transportation, the company he works for as an independent contractor, asked drivers to switch out their diesel trucks for ones powered by clean diesel and natural gas, his expenses have gone through the roof.

“Since I’ve had that truck I’ve spent about $30,000 in repairs,” says Reyes, who’s listed as the owner-operator of his vehicle. Last year, he says he made $74,000, but after deducting all the expenses he put into his work, he brought home $24,000. “Filter gets warped, turbo goes out, repaired the transmission a couple of times – they get so hot in there, like there’s no insulation or nothing.”

But what gets him the most is that he’ll spend anywhere from eight to 10 hours some days just waiting for companies at the port to ready their shipments. That’s time on the job that he’s not getting paid for, and that’s why he and a few dozen other drivers decided to go on a two-day strike at ports in Long Beach and Los Angeles on October 25.

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Union: Drywallers working in Douglas County Courthouse were misclassified, denied appropriate compensation

By Christopher Burbach | 

About 75 laborers and community advocates demonstrated outside the Douglas County Courthouse on Tuesday to demand enforcement of the Nebraska Employment Classification Act.

Their spokesman, union representative Steven Mulcahy, said drywallers on a courthouse renovation job had been misclassified as independent contractors instead of employees.

That meant that the workers were denied overtime pay, and that their employers didn’t pay workers’ compensation or payroll taxes for them, said Mulcahy, of the North Central States Regional Council of Carpenters.

“Our goal is to get some enforcement, because without that, it’s not going to stop,” Mulcahy said. Contractors on the $15 million courthouse renovation could not be reached for comment Tuesday.

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California Commissioner Awards $34.9M to Fight Workers’ Comp Fraud

By: Andrew Polk
October 13, 2016

California Insurance Commissioner Dave Jones today announced he has awarded $34.9 million in grants to 37 district attorney offices representing 44 counties across California to combat workers’ compensation insurance fraud.

The grants, funded through employer assessments, support law enforcement efforts in investigating and prosecuting workers’ compensation insurance fraud.

Grant funding is based on assessments from California insured and self-insured employers, and district attorneys apply for workers’ comp fraud grant funds.

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Pennsylvania Labor & Industry Kicks Off Misclassified Workers Public Awareness Campaign

Pennsylvania Department of Labor & Industry
Oct 19, 2016, 14:51 ET

HARRISBURG, Pa., Oct. 19, 2016 /PRNewswire-USNewswire/ — Pennsylvania Department of Labor & Industry Secretary Kathy Manderino today kicked off a statewide public awareness campaign about worker misclassification. The campaign was funded by a$473,000 grant from the U.S. Department of Labor.

“Worker misclassification is a nationwide problem that has a negative impact on Pennsylvania’s economy and unemployment compensation fund,” Sec. Manderino said. “It creates an uneven playing field for employers who properly classify their workers.”

Worker misclassification occurs when employers treat certain employees as independent contractors when they should not be classified as such. This may be done to reduce payroll and other costs.

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Steps for the St. Pete’s Wage Theft Protection Program

BY DARDEN RICE, Vice Chair of St. Pete City Council
Posted on October 13, 2016 by TWC

ST. PETERSBURG – St. Petersburg’s Wage Theft Prevention Program has been underway for the past year. “Wage theft” is a broad term that includes any type of non-payment or underpayment by an employer. It can take the form of loss of overtime, illegal tip practices, being paid less than minimum wage and independent contractor misclassification.

According to a study conducted by Florida International University, Pinellas County has the fourth highest rate of wage theft in the state.

When unscrupulous businesses cheat their workers our economy suffers. Honest businesses are losing profits by being forced to compete against unethical businesses that have an unfair advantage. Workers are struggling to pay their bills and cannot afford to put money back into the local economy. All taxpayers suffer when employers refuse to pay their fair share into Social Security and workers’ compensation insurance by misclassifying their employees as independent contractors. The St. Petersburg Wage Theft Prevention Program sees these impacts first-hand on a daily basis.

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Column: Senate legislation to end wage theft epidemic

By STAN ROSENBERG and SAL DIDOMENICO
Wednesday, October 19, 2016

The Massachusetts economy is working very, very well for some people, but not nearly well enough for others. That’s why we have one of the highest rates of income inequality in the country.

Building an economy that works for everyone is one of the top priorities of the Massachusetts Senate. We are fortunate to have thriving industries in Massachusetts, like solar energy, cyber security and pharmaceuticals. We have companies that make headlines around the world for the pioneering work they do. They pay their workers well, and they make a substantial contribution to our economy.

Less well known is a persistent underground economy, with companies that never make headlines and use that to their advantage to exploit some of our most vulnerable workers. Those companies don’t pay their workers good wages, and sometimes they even refuse to pay them for the work they do. That’s wage theft, and it’s against the law.

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Justice for Irvine employees: Owner gets jail for shorting pay

POSTED BY KEN STONE
OCTOBER 7, 2016

The owner of an Irvine-based heating and air conditioning company was sentenced Friday to a year in jail and five years of formal probation for failing to pay employees a prevailing wage on public works projects and pocketing the difference.

Shamseddin Hashemi-Mousavi, who was convicted exactly a year ago Friday, could have faced up to 26 years and eight months in prison.

Orange County Superior Court Judge Steven Bromberg prohibited him from working on any public works contracts through the end of his probation, according to Deputy District Attorney Donde McCament.

Hashemi-Mousavi placed $58,000 in a trust fund to be used to pay for restitution at a later date, McCament said. Bromberg will hold a hearing later to determine what restitution the defendant owes.

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Plymouth man charged with wage theft from employees

Joseph B. Kerrissey III and two companies indicted, says AG Healey

BY CAPECODTODAY STAFF
OCTOBER 11, 2016 02:12 PM |

A Plymouth man has been charged in connection with an alleged wage theft scheme that spans back to 2011 in which he owes $100,000 to workers, Attorney General Maura Healey announced today. He also faces larceny and unemployment fraud charges for failing to contribute to the Massachusetts Department of Unemployment Assistance (DUA).

Joseph B. Kerrissey , III, age 39, and his companies J. Kerrissey, LLC and Sunrise Equipment & Excavation, Inc. were indicted by a Statewide Grand Jury. The defendants will be arraigned in Suffolk Superior Court on Oct. 26 and in Plymouth Superior Court at a later date.

“This defendant allegedly engaged in a pattern of refusing to pay his workers the wages they were rightfully owed and used a variety of methods to dissuade them from seeking to obtain those wages,” said AG Healey. “We know that workers in the construction industry are particularly susceptible to abuse. People who work hard should be able to provide for themselves and their families and we will continue to hold accountable employers who exploit their workers.”

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Red Light Camera Company Sued Again For Prevailing Wage Violation

Former American Traffic Solutions electrician says he was cheated out of over $75,000 in wages while working on red light cameras.

1/4/2017
Courtesy of the Newspaper.com

Another former traffic camera company employee says he has been shortchanged by American Traffic Solutions (ATS). In a new federal lawsuit, George A. Felix alleges the traffic camera vendor forced him to work more than eight hours per day without being paid overtime, and at a rate far below that required under California law.

Felix worked as an electrician for ATS in California from 2009 to 2014. He earned between $20 and $23 per hour setting up and maintaining red light cameras in various municipalities across the state. Felix does not say exactly how much money he believes he is owed, but ATS lawyers estimated the likely total to be in excess of $75,000.

“ATS failed to properly compensate [Felix] for working off-the-clock and overtime,” Richard E. Donahoo, attorney for Felix, wrote in his complaint. “[Felix] did not receive compensation for all hours worked over eight per day or forty per week at the required overtime rate.”

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