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  1. #1
    Join Date
    Jul 2014
    Posts
    28

    Default At What Point Do You Legally Become an Employee

    My question involves labor and employment law for the state of: California

    My question is at what point do you go from an the status of "Applicant" to "Employee"? Isn't it correct that if any work has been performed, for even the briefest period of time, you are considered to be an employee?
    Here's the situation: After being interviewed and drug tested, background check ect ect I received a written job offer. It stated if I accepted, I should report on a xx\xx date at xx:xx time. I reported for work.
    After 2 hours of orientation I was either terminated or I quit. That sounds strange I know but I was there, and I can't even say for sure which one it was. I'm leaning towards being terminated but it all happened almost together simultaneously.
    Let's just say: Basically we reached a point where it was clear neither the employer nor I was prepared to continue further. Each for our own separate reasons. However, aren't I still entitled to be paid for the time I was there?
    I thought so. Since I believed I had worked there, I reported the 2 hours to EDD. I was scheduled for a phone interview and then was disqualified for "refusing, without good cause, to accept suitable work."
    It also says I was not offered work because I demanded conditions of hire that the employer could not or would not meet.

    I don't really see how they found that I did not accept the work? Especially when they say I wasn't offered work? It makes little sense to me.
    I reported as instructed, and was allowed to begin work. Shouldn't it be, if anything, an issue of separation? I was either terminated or possible quit (I have complete faith I would be able to show it was with good cause) but after I had worked for 2 hours. To date, the employer still has not paid me.
    I'm sure that every other employee that has started working there, was paid for the time they spent doing orientation.

    I have appealed the decision and have the hearing in a few days so any thoughts on what points would be best to focus my case on would be helpful and appreciated.
    Thanks!

  2. #2
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,240

    Default Re: At What Point, Do You Legally Become an "Employee"

    I'd want to know what happened during the two hours before I even would consider commenting.

  3. #3
    Join Date
    Jun 2013
    Posts
    551

    Default Re: At What Point Do You Legally Become an Employee

    Quote Quoting techchic
    View Post
    I don't really see how they found that I did not accept the work? Especially when they say I wasn't offered work? It makes little sense to me.
    I reported as instructed, and was allowed to begin work. Shouldn't it be, if anything, an issue of separation? I was either terminated or possible quit (I have complete faith I would be able to show it was with good cause) but after I had worked for 2 hours. To date, the employer still has not paid me.
    I'm sure that every other employee that has started working there, was paid for the time they spent doing orientation.

    I have appealed the decision and have the hearing in a few days so any thoughts on what points would be best to focus my case on would be helpful and appreciated.
    Thanks!
    I agree that more info is needed if you want any advice.

    As to your confusion about how you could fail to accept work if the work was not offered, your standard and the government's standard for suitable work is likely different. If the employer offered you a position and you accepted but added conditions that the company and EDD did not consider reasonable then you could have failed to accept suitable work, and the employer could have removed the offer from the table. Obviously something significant happened in the two hours you worked to cause you to quit or be fired. Not knowing the details, no one can help you.

  4. #4
    Join Date
    Jul 2014
    Posts
    28

    Default Re: At What Point Do You Legally Become an Employee

    Alright. so the first 1.5 hrs were spent doing all the things you would typically do during any new employee orientation.
    Filling out direct deposit forms, W-2 tax forms, and reading the policies in the company handbook followed by acknowledging I had read and would follow these policies by providing my signature to the acknowledgement page of each section. All the typical training a new employee receives about how the employer expects the duties of the job to be carried out.

    Are you saying that its possible to legally become an employee, and then something that happens after later, that could reverse this?
    I thought becoming an employee would be like: Breaking an egg. Once you break it, its your choice what to do with it. You can fry it, scramble it, or you can even throw it away. But the one thing that you can't do without going back in time, is un-break the egg.

  5. #5
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,523

    Default Re: At What Point Do You Legally Become an Employee

    What was it they wanted you to do that you balked at? Or, what condition did you request that THEY balked at?

    Certainly someone wanted something that the other party disagreed with. What was it?
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  6. #6
    Join Date
    Jul 2014
    Posts
    28

    Default Re: At What Point Do You Legally Become an Employee

    Immediately preceding the employment offer, I had reported an objection to something the employer was doing that was illegal. It was very offensive and discriminatory and I hoped it was only an oversight, and not an intentional violation of my rights. I asked that they stop, and pointed out the law specifically written to protect employees in the private sector from exactly what they were doing.

    Their response was, to not respond. They made no reply about it. Our next communication made no mention of it and they never addressed my complaint at all, either verbally or in any written communication that followed. I wanted to know if they were in fact going to stop.
    1 1/2 hours into my first shift of my first day the HR rep asked me if I had any other questions. So I asked her if they intended to stop doing what I had objected to?

    Since the entire reason I made the objection was so they would stop doing this, I just wanted to hear they weren't going to do it anymore.

    That wasn't her response. What she did say was that under a set of circumstances, they would again take these same actions.
    Which to me sounded like if and whenever they felt justified, they would start again. Whether it was legal or not really didn't seem to be her focus or the issue.- Her attitude was that they would stop, but only if it didn't effect them and was convenient.

    The final straw for me, was when I realized that my immediate supervisor was willing to lie to my face in front of the HR representative. I asked, How do I work for an employer, if I can't rely on what I'm being told?
    The HR rep reached across the table for the paperwork I had been working on and said "Well it doesn't look like you really want to work here."

  7. #7
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,523

    Default Re: At What Point Do You Legally Become an Employee

    And what was the employer doing that you believed to be illegal??
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  8. #8
    Join Date
    Jul 2014
    Posts
    28

    Default Re: At What Point Do You Legally Become an Employee

    Just violating the Employee Polygraph Protection Act of 1988 and engaging in discrimination and invasion of privacy. And by doing this, they apparently enjoy lower insurance rates and let their customer know about it, giving them an unfair advantage over the competition who choses not to trample all over the rights of their employees.

  9. #9
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,523

    Default Re: At What Point Do You Legally Become an Employee

    So, they said that you MUST complete a polygraph in order to be employed by the organization? And, this was not an agency of any of the following: "federal government or any agency thereof or the state government or any agency or local subdivision thereof, including, but not limited to, counties, cities and counties, cities, districts, authorities, and agencies" ??

    If so, and you declined to take the polygraph, what next? You can try and sue them for what you admit would be no more than a couple hours worth of time ... you can report them to the state ... you can go all over social media, the press, etc. and raise a stink ... or, you can move on and find yourself a job where you will not be asked or required to take a polygraph.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  10. #10
    Join Date
    Jul 2014
    Posts
    28

    Default Re: At What Point Do You Legally Become an Employee

    First, I don't believe that's true. The penalty for violating this law is much more severe than just a couple hours worth of time.
    But more importantly, what about making them stop so no one else is subjected to this? How about a sense of civic responsibility?
    If someone who applied before me, would have spoke up, I wouldn't be dealing with this now. If more people would speak up when an employer was breaking the law, employment conditions may not have declined to the point they are today.
    You suggest passing the buck. I don't mind getting scrappy if its for a good cause, and I happen to believe in defending my rights, as opposed to passively allowing someone else to take them from me. What good are my rights, when I allow an employer to dictate their value?

    There are very few cases brought for EPPA violations because most employers just know better.
    But I did find this opinion written by HONORABLE JOSEPH E. IRENAS that addresses this.
    LYLES, et al v. FLAGSHIP RESORT CORP, et al

    EPPA, however, is not strictly an antidiscrimination statute and its prohibitions indicate that it was intended to focus on more than just “legal injuries of an economic character.” Burke, 504 U.S. at 239. Several provisions within EPPA demonstrate that the statute was intended to protect the privacy rights of employees, as well as to restore employees to the “wage and employment positions they would have occupied absent” the unlawful conduct under EPPA. Section 2002 describes the acts specifically prohibited by EPPA. The first provision bars an employer from “directly or indirectly, [] requir[ing], request[ing], suggest[ing], or caus[ing] any employee or prospective employee to take or submit to any lie detector test.” 29 U.S.C. 2002(1). The second provision of 2002 prohibits an employer from “us[ing], accept[ing], refer[ring] to, or inquir[ing] concerning the results of any lie detector test of any employee or prospective employee.” 29 U.S.C. 2002(2). These provisions recognize that the offensiveness of employers’ use of polygraph examinations in making employment decisions stems both from the intrusiveness of the tests themselves, in addition to any adverse employment actions taken as a result of the tests.

    EPPA was intended to protect employees from wrongs that are not remediable by the award of back pay. Under Flagship’s interpretation of 2005(c)(1), if an employer asked an employee to take a lie detector test in contravention of 2002(1), the only remedy available would be for the economic injury suffered by the employee, leaving the violation of the employee’s privacy rights unremedied. The structure of 2002 indicates that EPPA was designed to do more than just restore employees to their prepolygraph employment status, but also to provide relief for the intangible harms associated with invasions of privacy, such as emotional distress.

    Can anyone answer my original question? Should I/ or Shouldn't I be legally considered an employee? Am I entitled to be paid for the time I worked?

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