Answers to common questions
A: There are 3 types of criminal cases:
An infraction is a minor violation. Many traffic violations are infractions. The punishment for infractions is usually a fine, and if the defendant pays the fine, there is no jail time. Click for information on traffic cases.
A misdemeanor is a crime with a maximum punishment of:
o Either 6 months or 1 year in a county jail, and/or
o A $1,000 fine (for most misdemeanors).
Examples of misdemeanors are:
o Petty theft
o Driving with a suspended license
o Drunk driving (also known as “DUI” or “driving under the influence”)
A felony is the most serious kind of crime. If found guilty, the defendant can be sent to jail or prison for a year or more, or even receive the death penalty for very serious crimes. Defendants convicted of felonies are usually sent to state prison for sentences of 16 months or more.
Examples of felonies are:
o Possession of illegal drugs (called “controlled substances”) for sale
A criminal case happens when the government files a case in court to punish someone (the defendant) for committing a crime. If the defendant is found guilty of a crime, he or she may face jail or prison.
A civil case happens when one person, business, or agency sues another one because of a dispute between them, usually involving money. If someone loses a civil case, they may be ordered to pay the other side money or to give up property, but they will not go to jail just for losing the case.
There are other important differences, like:
In a criminal case, the government must prove the defendant’s guilt “beyond a reasonable doubt.” In a civil case, the plaintiff must prove his or her case by a “preponderance of the evidence” (more than 50 percent). This means that a party to a civil case can win if he or she is able to convince the judge or jury that his or her side of the case is slightly more convincing than the other side’s.
In criminal cases where the charge is a misdemeanor or felony, if the defendant cannot afford a lawyer, the court will appoint one without cost to the defendant. In civil cases, if a party cannot afford a lawyer, they have to represent themselves. There is no right to a court-appointed lawyer in an infraction case.
In criminal cases, defendants almost always have the right to a trial by jury, except in infraction cases. In civil matters, there are many types of cases where there is no right to a trial by jury.
A good rule of thumb is if you hear the words “You have the right to remain silent”, you should probably do just that!
First, if they come knocking and ask if they can come in, you have the right to say no. While you may think you have nothing to hide, you never know what others in your household are up to. Only allow the police in if they have a warrant or if they tell you they are coming in regardless. Bottom line, if they ask, you can say no. The same thing goes if they ask to search your vehicle, or your person. If they believe they have the right to do it, they will go ahead with or without your permission.
If you receive a request to go to the police station to answer questions, or if the police come to you and ask you questions, you do not have to answer them and can politely decline. You can assume, though, that if the police really want to talk to you, they will come up with ‘probable cause’ and either arrest you (requiring that you be read the Miranda Warning) or will get a search warrant if they feel you are in possession of evidence that a crime has been committed.
California’s prevailing wage laws ensure that the ability to get a public works contract is not based on paying lower wage rates than a competitor. All bidders are required to use the same wage rates when bidding on a public works project. California law requires that not less than the general prevailing rate of per diem wages be paid to all workers employed on a public works project.
No. The fact that a person who provides services is paid as an independent contractor, that is, without payroll deductions and with income reported by an IRS form 1099 rather than a W-2, is of no significance whatsoever in determining employment status. Your employer cannot change your status from that of an employee to one of an independent contractor by illegally requiring you to assume a burden that the law imposes directly on the employer, that being, withholding payroll taxes and reporting such withholdings to the taxing authorities.
If you are an employee and your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you question him about your employment status, or about not being paid overtime, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, you can file an action in court against your employer. If, on the other hand it is determined that you are in fact an independent contractor, DLSE cannot assist you as it does not have jurisdiction over independent contractors, and you would have to go to court to enforce your rights.
The Labor Commissioner is charged with enforcement of worker misclassification and like other provisions of the Labor Code, it gives those affected the right to file a complaint. The definition of willful misclassification is voluntarily and knowingly misclassifying an employee as an independent contractor.
At least ten million workers are classified as independent contractors nationally, an increase of more than two million in just six years. According to the U.S. Government Accountability Office, the number of independent contractors in the total employed workforce grew from 6.7 percent in 1995 to 7.4 percent in 2005. In 2005, there were 10.3 million independent contractors. Independent contractors, in 2005, had an average age of 46 years, were almost twice as likely to be male than female, and almost two-thirds had some college or higher education. Independent contractors were employed in a wide range of industries (such as professional services and construction) and occupations (including sales and management). When employees are misclassified as independent contractors, they lose rights afforded by laws designed to protect workers and may not have access to employer-provided health insurance coverage and pension plans.
When a worker is misclassified as an independent contractor, he or she is not subject to California minimum wage and overtime protection laws. Additionally, the worker has no workers’ compensation coverage if injured on the job, no right to family leave, no unemployment insurance, no legal right to organize or join a union, and no protection against employer retaliation. The misclassification of workers as independent contractors creates an unfair playing field for responsible employers who honor their lawful obligations to their employees. The misclassification of workers results in a loss of payroll tax revenue to the State, estimated at $7 billion per year, and increased reliance on the public safety net by workers who are denied access to work-based protections.
What employers should know
On Sept. 8, 2011, the California legislature passed Senate Bill 459 prohibiting the willful misclassification of individuals as independent contractors. The new legislation, enacted on Oct. 9, 2011, creates civil penalties of between $5,000 and $25,000 per violation. The new law will also prohibit charging fees to or making deductions from the compensation paid to those misclassified workers.
What workers can do
Workers who do not receive minimum wages, overtime pay, or pay for meals and breaks because their employer misclassifies them as an independent contractor can file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office).
Yes. DLSE’s enforcement policy does not preclude an employer from providing a specific period of time at the beginning of the employment relationship during which an employee does not earn any vacation benefits. This could apply to a probationary or introductory period, and can even apply to the whole first year of employment.
Such a provision in a vacation plan will only be recognized, however, if it is not a subterfuge (phony reason) and in fact, no vacation is implicitly earned or accrued during that first year or other period. For example, a plan with the following provisions would be an obvious subterfuge and not recognized as valid:
Year 1: No vacation
Year 2: 4 weeks vacation
Year 3: 2 weeks vacation
The four weeks’ vacation earned in the second year, when viewed in the context of the two weeks’ vacation earned in the third year, makes it clear that two of the four weeks earned in year two are actually vacation earned in year one.
A valid vacation plan could look like the following:
Year 1: No vacation
Year 2: 2 weeks vacation
Year 3: 3 weeks vacation
Years 4 through 10: 4 weeks vacation
In those instances where a “waiting period” (Year 1 in the examples above) is found to be a subterfuge, employees who separate from their employment during the “waiting period” will be entitled to prorated vacation pay at their final rate of pay. On the other hand, where the employer’s vacation plan has a valid “waiting period” provision, employees who separate from their employment during that period will be ineligible for any vacation pay.