Independent Contractor

Who is an Independent Contractor?

There is no set definition of this term. Labor law enforcement agencies and the courts look at several factors when deciding if someone is an employee or an independent contractor. Some employers misclassify employees as an independent contractor to avoid workers’ compensation and other payroll responsibilities. Just because an employer says you are an independent contractor and doesn’t need to cover you under a workers’ compensation policy, doesn’t make it true. A true independent contractor has control over how their work is done. You probably are not an independent contractor when the person paying you:

  • Controls the details or manner of your work
  • Has the right to terminate you
  • Pays you an hourly wage or salary
  • Makes deductions for unemployment or social security
  • Supplies materials or tools
  • Requires you to work specific days or hours.

As an independent contractor what are my rights to Workers Compensation?

If you are truly an independent contractor, employers do not have to cover you under workers’ compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security. However, employers oftentimes improperly classify their employees as independent contractors so that they, the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. 

Am I an independent contractor or an employee?

This is where Hunt Law Group can help. We will determine your status and get you the compensation you deserve.  

Dru Vincent Hunt Attorney at Law

Dru Vincent Hunt
Attorney at Law

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Personal Injury

Bringing a Timely Action

Statute of Limitations

statute of limitations is the deadline for filing a lawsuit. Most lawsuits MUST be filed within a certain amount of time. In general, once the statute of limitations on a case “runs out,” the legal claim is not valid any longer. The period of time during which you can file a lawsuit varies depending on the type of legal claim. For personal injury you must file the lawsuit within two years from the time of injury. If the injury was not discovered right away, then it is one year from the date the injury was discovered. 

Tolling the Statute of Limitations

Sometimes the statute of limitations is suspended (“tolled”) for a period of time, and then begins to run again. For example, tolling may happen when the defendant is a minor, is out of the state or in prison, or is insane. When the reason for the tolling ends (if the minor turns 18, or the defendant returns to California or gets out of prison, or the defendant is no longer insane), the statute of limitations begins to run again.

Cases dealing with tolling may be very complicated and you need to talk to a lawyer.

Compensation Available

In personal injury cases, “damages” is a term that refers to the amount of money awarded to the injured party who suffered harm due to the negligent, reckless, or intentional action of the defendant. Damages can be grouped as either general, special or punitive.

General Damages

General damages flow naturally from the defendant’s wrongful action.  There is a clear link between the defendant’s behavior and the plaintiff’s injury. While every personal injury case will look a little different, general damages can include: pain and suffering; mental anguish; and loss of consortium. It may be difficult to calculate or precisely quantify the amount of money necessary to compensate the injured person for general damages. Determining general damages often involves assigning an exact dollar amount to a subjective injury. Damages such as mental anguish are unique to each plaintiff and thus difficult to calculate.

Special Damages

Special damages financially compensate the injured person for losses suffered due to the defendant’s actions. Special damages are out-of-pocket expenses that can be determined by adding together all of the plaintiff’s quantifiable financial losses. However, these losses or expenses must be proven with specificity. Special Damages may include: loss of wages; medical expenses; and cost of repair or replacement of damaged property. Unlike general damages, special damages are often easy to calculate because an exact dollar amount has already been spent on these items. 

Punitive Damages

Punitive damages are intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some portion of the punitive damage award. Punitive damages are generally only awarded when the defendant’s actions are so deplorable that they warrant the financial burden they impose.

Liability Rules

Intentional Tort

A type of tort that can only result from an intentional act of the defendant. Depending on the exact tort alleged, either general or specific intent will need to be proven.  Common intentional torts are battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress.

Negligence

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

Five elements are required to establish a prima facie case of negligence:  the existence of a legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in fact of physical harm by the negligent conduct; physical harm in the form of actual damages; and proximate cause, a showing that the harm is within the scope of liability.

Strict Liability

Strict Liability requires only that you prove injury but you do not have to prove negligence by the defendant in order to recover damages. A common example in California is the dog bite case. The plaintiff only has to prove they were actually bitten by the dog and sustained injury, they do not have to prove there was any negligence by the defendant in care or control of the dog.

Products Liability

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all sellers of the product who are in the distribution chain. Potentially liable parties include: the product manufacturer; a manufacturer of component parts; the wholesaler, and the retail store that sold the product to the consumer. In general terms, the law requires that a product meet the ordinary expectations of the consumer. When a product has an unexpected defect or danger, the product cannot be said to meet the ordinary expectations of the consumer.

Products Liability is generally considered a strict liability offense. Strict liability wrongs do not depend on the degree of carefulness by the defendant. Translated to a products liability terms, a defendant is liable when it is shown that the product is defective. It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it.

Vicarious Liability

Vicarious liability is where the employer (Superior) is liable for the damages caused by their employee (Respondeat). In order for the employer to be found vicariously liable, the injury must have occurred while the employee was acting within their scope of employment.

Joint and Several Liability

Under joint and several liability, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.

Joint and several liability is most relevant in tort claims, whereby a plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability.

Why do I need an attorney?

There are many difficult issues when litigating a personal injury lawsuit. The specific procedure and timing in which the lawsuit must be filed; establishing the defendant’s liability; determining adequate compensation; and then collecting the court ordered award when the case has concluded. At Hunt Law Group we pride ourselves on making this complicated and emotional time as bearable as possible. We will represent you from the initial filing all the way until the court ordered award is in your hand.

Dru Vincent Hunt Attorney at Law

Dru Vincent Hunt
Attorney at Law

Work Related Injury

What is Workers’ Compensation?

If you have a work-related injury or illness, your employer is required by law to pay for workers’ compensation benefits. You could get hurt by one event at work, such as hurting your back in a fall, getting burned by a chemical that splashes on your skin or getting hurt in a car accident while making deliveries. This also applies to repeated exposures at work, such as hurting your wrist from doing the same motion over and over or losing your hearing because of constant loud noise.

What benefits am I entitled to?

Workers’ comp insurance provides five basic benefits:

  • Medical care: Paid for by your employer to help you recover from an injury or illness caused by work
  • Temporary disability benefits: Payments if you lose wages because your injury prevents you from doing your usual job while recovering
  • Permanent disability benefits: Payments if you don’t recover completely
  • Supplemental job displacement benefits (if your date of injury is in 2004 or later): Vouchers to help pay for retraining or skill enhancement if you don’t recover completely and don’t return to work for your employer
  • Death benefits: Payments to your spouse, children or other dependents if you die from a job injury or illness.

Employer’s Responsibilities

After an injury or illness occurs, your employer must:

  • Provide a workers’ compensation claim form to you within one working day when a work-related injury or illness is reported
  • Return a completed copy of the claim form to you within one working day of receipt
  • Forward the claim form, along with the employer’s report of occupational injury or illness, to the claims administrator within one working day of receipt
  • Within one day of receiving your claim, authorize up to $10,000 in appropriate medical treatment
  • Provide transitional work (light duty) whenever appropriate
  • If you are the victim of a crime that happened at work, the employer must give notice of workers’ compensation eligibility within one working day of the crime.

Can my employer take part of my check to pay for workers’ compensation insurance?

No. Workers’ compensation insurance is part of the cost of doing business. An employer cannot ask you to help pay for the insurance premium.

What happens if my employer is uninsured and I’m hurt on the job?

Failing to have workers’ compensation coverage is a criminal offense, a misdemeanor punishable by either a fine of up to $10,000 or imprisonment in the county jail for up to one year, or both. Additionally, the state issues penalties of up to $100,000 against illegally uninsured employers.

If you have a work-related injury or illness and your employer is not insured, your employer is responsible for paying all bills related to your injury or illness. Workers’ compensation benefits are only the exclusive remedy for injuries suffered on the job when your employer is properly insured. If your employer is illegally uninsured and you have a work-related injury or illness, you can file a civil action against your employer in addition to filing a workers’ compensation claim.

If you think you may be an independent contractor click here

Why do I need an attorney?

Often times a person may not need an attorney to file and receive a workers compensation claim. However, if you find yourself in a tough situation with no money coming in and you are unsure what to do next, do not hesitate to contact the Hunt Law Group where we pride ourselves on getting injured people the compensation they deserve.

Dru Vincent Hunt Attorney at Law

Dru Vincent Hunt
Attorney at Law

Misdemeanors

Maximum Penalty

  • A $1,000 fine; and
  • Up to one year in county jail

Examples of Misdemeanors

  • Petty theft
  • Driving under a suspended license
  • Vandalism
  • Drunk driving

Misdemeanors Typically Proceed Like This:

  1. ARREST
  2. ARRAIGNMENT
  3. PRETRIAL
  4. JURY TRIAL OR COURT TRIAL

ARREST

The police arrest the defendant and take him or her to jail. Then, one of three things happen:

  • The jail lets the defendant out without filing charges; or
  • The defendant posts bail/bond or is released on his own recognizance (“OR”). If this happens, the authorities tell the defendant when to go to court for arraignment; or
  • The defendant stays in custody (jail). Law enforcement officers transport the defendant to the court for arraignment.

ARRAIGNMENT

The arraignment is the first time the defendant appears in court. A judge (or judicial officer) tells the defendant:

  • What the charges are;
  • About his\her constitutional rights; and
  • That if s/he does not have enough money to hire a lawyer, the court will appoint a lawyer.

PLEA

The defendant enters a plea of guilty, not guilty or no contest. Here is what the pleas mean:

Not Guilty means the defendant says s/he did not commit the crime.

Guilty means the defendant admits s/he committed the crime. The judge finds the defendant guilty and enters a conviction in the court record.

No Contest means the defendant does not contest (disagree with) the charge. This plea is the same as a guilty plea, except the conviction cannot be used against the defendant in a civil lawsuit.

In some cases, the judge will let the defendant out of jail on his/her “Own Recognizance.” Or, the judge can set bail and send the defendant back to the jail.

PRETRIAL

Many things happen before the trial date (pretrial):

  • The prosecution and the defense exchange information. This is called discovery.
  • Either side can file pretrial motions to set aside the complaint, to dismiss the case, or to prevent evidence from being used at trial.
  • The defendant can change his or her plea to guilty or no contest.
  • The judge and lawyers from both sides talk about how the case could be resolved without going to trial.

JURY TRIAL

The law says how soon a defendant charged with a misdemeanor must be brought to trial. (See Section 1382 of the Penal Code). If the defendant is in custody at the arraignment, the trial must start within 30 days of arraignment or plea, whichever is later. If the defendant is not in custody at the arraignment, the trial must start within 45 days of arraignment or plea, whichever is later. The defendant can “waive” the right to a speedy trial. This means the defendant agrees to have the trial after the required deadline. But, even if the defendant waives time, the law says the trial must start within 10 days after the trial date is set or continued for trial.

Before the trial starts, the lawyers choose a jury. During the trial, witnesses may testify and the lawyers present evidence. After all the evidence is presented and the lawyers give their arguments, the jury decides if the defendant is guilty or not guilty. If the jury finds the defendant not guilty, s/he will be released. The defendant can never be tried again for the same crime. If the defendant is found guilty, the case will be continued for sentencing, or the defendant may be sentenced right away. If the defendant doesn’t agree with the guilty verdict, s/he can appeal to the Appellate Department of the Superior Court.

COURT TRIAL

Sometimes, defendants agree to have a court trial instead of a jury trial. This means a judge, not a jury, hears the evidence and arguments and decides if the defendant is guilty or not guilty.

Why do I need an attorney?

The criminal court system is filled with complicated procedural practices and the statutes that define your rights are burdensome to read and difficult to decipher. When you are feeling emotionally overwhelmed by the process of being prosecuted by the state, allow the Hunt Law Group to intervene on your behalf and  obtain you a favorable outcome.

Dru Vincent Hunt Attorney at Law

Dru Vincent Hunt
Attorney at Law

Driving Under The Influence

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In General

Being arrested for Driving Under the Influence has both criminal and civil implications. The potential criminal implications are litigated in the Superior Courts, while the civil matter is heard at the DMV administration offices. This hearing is called a Administrative Per Se hearing (APS).

DMV Implications

The DMV suspension or revocation is an immediate administrative action taken against your driving privilege only.  Any sanctions imposed by DMV under APS are independent of any court-imposed jail sentence, fine, or other criminal penalty imposed when a person is convicted for driving under the influence (DUI).

I have just been arrested for DUI. What happens now?

The officer is required by law to immediately forward a copy of the completed notice of suspension or revocation form and any driver license taken into possession, with a sworn report to the DMV. The DMV automatically conducts an administrative review that includes an examination of the officer’s report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the suspension or revocation.

You have the right to request a hearing from the DMV within 10 days of receipt of the suspension or revocation order. If the review shows there is no basis for the suspension or revocation, the action will be set aside. You will be notified by the DMV in writing only if the suspension or revocation is set aside following the administrative review.

How do I get back my confiscated driver license?

Your driver license will be returned to you at the end of the suspension or revocation, provided you pay a $125 reissue fee to the DMV and you file proof of financial responsibility. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392. If it is determined that there is not a basis for the suspension or revocation, your driver license will be issued or returned to you.

Order of Suspension and temporary license

You may drive for 30 days from the date the order of suspension or revocation was issued, provided you have been issued a California driver license and your driver license is not expired, or your driving privilege is not suspended or revoked for some other reason.

Criminal Implications

What is the minimum and maximum penalties for a first DUI conviction?

Assuming there is no bodily injury or death resulting from the DUI, the minimum penalties for a misdemeanor first conviction are as follows:

  • $390 fine plus over $1,000 in ordinary penalty assessments, plus additional DUI-only assessments for a total of approxi­mately $1,800.
  • 48-hour jail sentence or a 90-day license restriction allowing you to drive to and from your work—and for work—if required, and to and from an alcohol treatment program. If the 90-day restriction is imposed, it begins after your DMV four-month suspension or 30-day suspension followed by a five-month restriction.
  • Attendance and completion of a $500, three-month alcohol-treatment program (nine months if your blood alcohol level was 0.20% or higher. Completing the program is a requirement for ever being able to drive again following a “per-se” DMV license suspension and for minimizing that suspension to 30 days (plus five or eight months of restricted driving) instead of the six- or ten-month flat suspension that would otherwise be imposed.
  • Loss of your driver’s license for at least 30 days, followed by either a five-month restriction to drive to, from, and for work and to and from an alcohol treatment program, or an additional two-month restriction that allows you to drive only to and from the program.

The maximum penalties for a misdemeanor first DUI conviction in California is a $1,000 fine plus over $2,600 in penalty ­assessments, six-months imprisonment in the county jail, a six-month license suspension; ten-months for blood alcohol level of 0.15% or more, having your vehicle “impounded” (stored at your expense) for 30 days, and being required to attach an “interlock” breath device to your vehicle that will not allow the car to start if there is any alcohol on your breath. This will cost you about $800.

What type of probation is required of a first offender?

Almost all first-time offenders are placed on probation for three to five years. If you violate any of the terms of your probation, you can face a nonjury hearing where additional penalties can be applied. The standard conditions of probation include: (1) not driving with any measurable amount of alcohol in your system; (2) submitting to a blood or roadside breathalyzer (PAS) test upon the request of a police officer; and (3) refraining from further violations of the law (no further misdemeanors — ordinary traffic infractions don’t count).

Why do I need an attorney?

Fighting a DUI involves attacking the way in which the arresting officers conducted the stop, the field sobriety test and the arrest. The United States Constitution affords its citizens the right to be free from unreasonable warrantless search and seizures by the government. A DUI is exactly that; an unwarranted search and seizure. So in order for the DUI to be constitutionally acceptable, the search and seizure must be reasonable. If the actions of the arresting officers are found to be unreasonable, then the DUI must be reduced or completely thrown out. At Hunt Law Group we will help you stand up for your constitutional rights.

Dru Vincent Hunt Attorney at Law

Dru Vincent Hunt
Attorney at Law

Spousal Support Issues

What Is Spousal Support?

When a couple legally separates or divorces, the court may order one spouse or domestic partner to pay the other a certain amount of support money each month. This is called “spousal support” for married couples and “partner support” in domestic partnerships. It is sometimes also called “alimony.”

How Spousal Support Starts

In order for spousal or partner support to be legally established and officially start, there must be a court case. A spouse or domestic partner can ask the judge to make a spousal or partner support order as part of one of these types of cases:

  • Divorce, legal separation, or annulment; or
  • A domestic violence restraining order.

When Spousal Support Is Paid

You can ask for spousal or partner support to be paid while your case is ongoing. This is called a “temporary spousal support order” or a “temporary partner support order.” Support can also be ordered once the divorce or legal separation becomes final, as part of the final divorce, or separation judgment. When support is ordered upon the case becoming final, it is called “permanent (or long-term) spousal or partner support.”

Calculating Spousal Support

The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case. When the judge makes his or her final spousal or partner support order, the judge must consider the factors in California Family Code section 4320.

These factors include:

  • The length of the marriage or domestic partnership;
  • What each person needs based on the standard of living they had during the marriage or domestic partnership;
  • What each person pays or can pay (including earnings and earning capacity) to keep the standard of living they had during the marriage or domestic partnership;
  • Whether having a job would make it too hard to take care of the children;
  • The age and health of both people;
  • Debts and property;
  • Whether one spouse or domestic partner helped the other get an education, training, career, or professional license;
  • Whether there was domestic violence in the marriage or domestic partnership;
  • Whether one spouse’s or domestic partner’s career was affected by unemployment or by taking care of the children or home; and
  • The tax impact of spousal support. (Note: federal and state tax laws have not been changed to recognize domestic partnerships.)

The spousal or partner support order then becomes part of your final divorce or legal separation judgment.

Effect Of Falling Behind On Spousal Support

Once a court orders one spouse or partner to pay support to the other, it becomes a court order that must be followed until the court changes or ends it, or, if the support order has an end date, until then. If you have to pay spousal or partner support and fall behind on your payments, you must pay 10% interest per year on the balance due. Interest charges are added by law, and the judge cannot stop them.

If you owe arrears (past-due spousal or partner support), it is possible that your court order, or wage assignment (garnishment) if there is one, will include an amount over the monthly spousal or partner support. This amount goes toward paying off your arrears, and it is often called a “liquidation amount.” But even if you are paying off your arrears in installments, interest continues to be added to your balance.

Not paying the spousal or partner support the court ordered you to pay can have very serious consequences. If the court finds that you have the ability to pay support but are willfully not paying it, the court can decide that you are “in contempt of court.” Being in contempt of court can be very serious because you can be sent to jail. This enforcement tool is generally used only when all others have failed.

If you are the spouse or partner getting support, you may be able to get help collecting on your support order. If the local child support agency (LCSA) is currently helping you collect (enforce) a child support order for a child you have with your spouse or domestic partner, the LCSA can help you collect (enforce) the spousal/partner support order along with the child support order. If the LCSA has not helped you yet but you do have a child support order as well as a spousal/partner support order, you can ask them to open an enforcement case on your behalf and help you collect both types of support.

Changing the Spousal Support Court Order

Depending on the situation, either spouse or domestic partner might need to change the amount of spousal or partner support that is paid. To ask for a change in the support amount, there needs to be a “change in circumstances.” This means something significant has changed since the spousal or partner support order was made.

Maybe the spouse or partner that was getting support no longer needs it, or the person paying support has had a significant drop in income and can no longer afford the amount of support. Sometimes, the spouse/partner getting support is not making a good faith effort to become self-supporting, so the paying spouse/partner can ask the court to end or change the support order based on this.

Why Do I Need An Attorney For Spousal Support Issues?

Spousal support issues can be very complex and burdensome. However the Hunt Law Group is fully prepared to deal with your spousal support issues and we are dedicated to enforcing your rights under the laws of the California Family Code.

Dru Vincent Hunt Attorney at Law

Dru Vincent Hunt
Attorney at Law

 

Child Support Issues

What Is Child Support?

Child support is the amount of money that a court orders a parent or both parents to pay every month to help pay for the support of the child (or children) and the child’s living expenses.

In addition to this basic child support, the court may require the paying parent to pay additional support to contribute money towards special expenses for the children. If there is child care cost to enable the parent(s) to work or get employment training or there are any uninsured health care costs for the children, the court must divide this cost among the parents. The court can decide if the parents should share additional costs related to the child’s education, other special needs or travel expenses for visitation. Child support payments are usually made until children turn 18 (or 19 if they are still in high school full-time, living at home, and cannot support themselves).

Who Must Pay Child Support?

Parents have a legal responsibility to support their children financially. Each parent is responsible for providing for the financial needs of his or her child according to his or her ability. They have this duty even when they separate or divorce. Parents should think about child support as soon as they separate. California’s child support law is based on the principle that even though parents have separated or divorced, children should continue to benefit from the financial support of both parents, just like they would if the parents were still together. While all the other long-term details of the separation and divorce get worked out, children still need a regular routine. They need to be fed, housed and clothed.

Determining Parentage

When parents separate, a parent must ask the court to make an order for child support. The court cannot enforce the other parent’s duty to support the child until it makes an order for support. In order to make a court order for support, the court will first have to determine parentage. If the parents were married when the child was conceived, the court may be able to skip directly to the child support issue. Also, if the parents have executed a Voluntary Declaration of Parentage form after the birth of the child, the court generally will not need to deal with the parentage issue as that form legally establishes the parentage of the child.

How The Court Determines Who Must Pay

In making an order for support, the court will determine each parent’s ability to provide for the child’s needs based upon their financial circumstances. The court will use a child support guideline formula to determine which parent will pay support and how much that support will be. How you do this depends on whether you already have a family court case (or one with the local child support agency) or you are starting a case for the first time.

Why Do I Need An Attorney For Support Issues?

Child support is an ongoing issue that lasts until the child reaches maturity. It can be reviewed upon motion by either party. This means that in order to assure a fair and reasonable amount it may be necessary to revisit the issue on multiple occasions. With Hunt Law Group we offer ongoing legal representation for our clients. This means that as things change in your life we will be there for you to address these issues with the court and your ex-spouse.

Dru Vincent Hunt Attorney at Law

Dru Vincent Hunt
Attorney at Law