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Hire a Service, Not a Driver

April 15, 2001

Q: I have a disabled, salaried employee who has semi-regular responsibilities in the field. He is unable to drive and does not own a vehicle.

I intend to pay the cost of hiring a driver to allow his field work.

Should my employee hire and pay for the driver as a work-related expense and submit an expense report to me for reimbursement, or should I deal directly with the driver and pay him as a contractor?

--A.K., Huntington Beach

A: It is important that you contract with a commercial car service, not just some individual.

Using a driver who is not part of an established business could create a number of problems. For one thing, you may have difficulty classifying the driver as a contractor if the driver works primarily for your company. Though the test for independent-contractor status is somewhat complex, it boils down to whether the individual is controlled by you in the manner and means by which he or she performs the services, or whether the driver operates an independent business, is autonomous and serves other clients.

The risks of misclassifying employees as contractors include liability for payroll taxes not withheld and for overtime pay.

Perhaps a greater source of liability in this instance is if the driver injures someone in an accident while driving your employee. If the driver does not operate an independent business and have his or her own commercial liability insurance, any injured third parties probably would sue you in the event of an accident.

Therefore, you should be sure that any car service you use has adequate liability and workers' compensation insurance coverage. Because of the potential liability to your company, you should select the car company and deal directly with it, rather than having your employee do so.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

If Voted for, No Extra Pay for 10-Hour Days

Q: I have a friend who works four 10-hour days a week in customer service for a large manufacturing firm. Occasionally, she works a fifth day during the week.

She has told me that she receives overtime pay only when she works that fifth day. Shouldn't she be entitled to overtime when she works more than eight hours in a day? How should she go about investigating and asserting her legal rights?

--R.A., Anaheim

A: Nonexempt employees generally are entitled to overtime if they work more than 40 hours in a week or more than eight hours in a day.

There are two exceptions to the rule, however.

First, an employee can request personal time off and make up the time without the employer being required to pay overtime. The time must be made up in the same workweek, and the employee cannot work more than 11 hours a day or 40 hours in a workweek to make up the time off. A signed, written request must be given to the employer for each make-up time request. Also, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval for the make-up time.

Alternative workweek scheduling is the other exception. This allows nonexempt employees to work more than eight hours in a day without requiring the employer to pay daily overtime, so long as the affected employees vote on a formal agreement and all the employees in a particular work group work the same alternative workweek.

The four-day, 10-hour-day schedule is very common, but precise procedures must be followed to make this method legal. Among the many other requirements, all affected employees must approve this method in a secret ballot during regular working hours at the work site. A two-thirds vote is required for the plan to become effective.

If your friend didn't vote on such a plan, it probably isn't legal.

Check with an attorney or consult with the California Division of Labor Standards Enforcement regarding these exceptions.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at http://www.latimes.com/shoptalk.

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