Whether you have been in a vehicle collision, or have been injured as the result of another accident, there are a few things you should do to ensure that your rights are protected:
THINGS YOU SHOULD DO AFTER AN ACCIDENT:
- File an accident report
. Regardless of the circumstances that lead to your injury, you need to file a report. If you were in a vehicle collision, you should insist that a report is filed with law enforcement to ensure the facts are accurately preserve. If you are injured on the premises of a business, you should file a report with the manager or owner. Attempt to get a copy of the report, or the information that will allow you to get a copy of the report once it is completed.
- Obtain Information
: Information that you should collect includes the name, address, and phone number of any witnesses, or people involved in the accident. If possible, and practical, obtain photographs of the vehicles, and/or the area where the accident occurred, and any visible injuries. (Avoid taking photographs if it will place you or others in jeopardy.) Get insurance information where appropriate. In California, drivers are obligated to carry insurance, and provide that information when involved in a collision.
- GET HELP
: There are two types of help you will need after an accident medical, and legal.
- Medical Care: The timing and nature of the medical treatment that you obtain following a collision or other accident is often overlooked. When you are injured, you should seek medical attention as soon as possible. Tell the physician what happened, and be honest about every injury or complaint regardless of how minor it seems at the time. Do not exaggerate your complaints, but also do not ignore or minimize them.
- Legal Assistance: Obtain legal advice as soon as possible. DO NOT give any information about the accident to an insurance adjuster, or make any recorded statements without consulting with an attorney first. Also, do not sign any document without consulting with an attorney. Both of these are common mistakes most people make following an accident that jeopardize their rights and any recovery they may be entitled to.
In California, most employment is “at-will” meaning that an employer or employee may terminate the employment at any time for almost any reason. There are of course exceptions to this general rule. Those exceptions include any action taken by the employer based on or done because of a protected characteristic. Protected characteristics include race, religion, sexual orientation, mental or physical disability, gender, gender identity, pregnancy, national origin, etc. It is also illegal to fire an employee because the employee complained of or reported illegal acts by the employer. Firing an employee for complaining about labor law violations, such as unpaid overtime or failure to provide meal and rest breaks, is another common basis for a wrongful termination claim.
California courts have also held that an employer’s general right to terminate an “at-will” employee is ‘subject to limits imposed by public policy, since otherwise the threat of discharge could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public.
However, if the employer provides oral assurances of continued employment, the “at will” relationship may found to have been modified, which may require the employer to establish “good cause” prior to terminating the employee. In the legal sense of the phrase as used under California state law, “good cause” means “fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary, or capricious, unrelated to business needs or goals, or pretextual.
If you have lost your job and are unsure whether it was wrongful termination, you should have you situation reviewed by an attorney to ensure that you are protecting your rights.
There is no set definition of the term “independent contractor” and as such, one must look to the interpretations of the courts and enforcement agencies to decide if in a particular situation a worker is an employee or independent contractor. In handling a matter where employment status is an issue, that is, employee or independent contractor, California law starts with the presumption that the worker is an employee. (See Labor Code Section 3357). This is a rebuttable presumption however, and the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling by itself.
Consequently, it is necessary to closely examine the facts of your relationship with your employer and then apply the law to those facts. Generally, this means applying the “multi-factor” or the “economic realities” test adopted by the California Supreme Court in the case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. In applying the economic realities test, the most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:
1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship;
10. The method of payment, whether by time or by the job; and
11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.
Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288)
Other points to remember in determining whether a worker is an #employee or independent contractor are that the existence of a written agreement purporting to establish an independent contractor relationship is not determinative (Borello, Id.at 349), and the fact that a worker is issued a 1099 form rather than a W-2 form is also not determinative with respect to independent contractor status. (Toyota Motor Sales v. Superior Court (1990) 220 Cal.App.3d 864, 877)
Uninsured / Underinsured Motorist Insurance coverage is the most important coverage you can have. In California, it has been estimated that 1 in 4 motorists are driving uninsured (UM) or underinsured (UIM), that is without adequate liability insurance protection. What this means is that they either have no insurance or not enough to cover any responsibility they have as a negligent driver who injures others. When you suffer personal injuries from an UM/UIM, even when you are not driving, you will be covered for the full extent of your injuries up to your policy maximum. To make sure you are covered, you should purchase uninsured/ underinsured motorist coverage in the highest amounts you can reasonably afford.