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Bar Association of San Francisco Member Benefits: Publications

LRIS Employment Attorney Patrick Kitchin: Employee Misclassification Can Be Costly For Employers

 

By Emmy Pasternak, Community Outreach and Case Development Coordinator, LRIS

 

As businesses downsize and look for ways to cut costs to stay afloat in a stagnant economy, they would do well to seek the advice of an employment attorney. In order to cut costs, employers sometimes choose to classify employees as exempt from overtime pay and other benefits. Quick savings on a salary line item in a business budget may look good on a financial spreadsheet but unless the employer is very careful he or she could end up violating California labor laws. Patrick Kitchin

For the past thirteen years Lawyer Referral and Information Service (LRIS) employment attorney and panel member Patrick Kitchin has represented employees and employers in California. Nicknamed the “fashion cop” by his friends, Kitchin started out in the employment law field representing a retail saleswoman who, despite making minimum wage, was required to spend thousands of dollars each year on company clothes for her “work uniform.” This led to a major class action lawsuit against the company. The press generated by this case brought clients with similar cases to Kitchin’s door and class actions against other California retailers.

Recently Kitchin had two LRIS referred cases settle out of court. One case resulted in a six figure settlement for an employee who was incorrectly classified as exempt and often worked up to 20 hours of overtime each week. In both cases the clients lost out on overtime pay they were entitled to as well as benefits. In one instance the client was a “temp” for two and a half years, never receiving benefits or having FICA taxes taken out despite working full time. She was penalized by the IRS for unpaid taxes.
Kitchin is seeing an increase in cases where employers misclassify employees as exempt from overtime pay. “I believe many employers are making the mistake of trying to design employee compensation programs without having them vetted by a qualified employment attorney.” Kitchin recommends employers undergo a policies and practices audit. “Labor laws are incredibly complex. Prevention is a lot cheaper than defending a lawsuit.”

Kitchin enjoys working with defense counsel to resolve cases and finds the quality of most employment attorneys, defense as well as plaintiff, to be exceptionally high. “Good employers make bad mistakes, but they usually do the right thing when they’re challenged, starting with hiring good and ethical lawyers.”

LRIS receives nearly 50,000 calls annually from the public in need of legal representation. BASF’s LRIS is a State Bar Certified Referral Program and an ABA model referral service, well-known nationally for its outstanding legal assistance to the public. Refer with confidence those clients outside your practice area: call 415-989-1616 or visit www.sfbar.org/lawyerreferral.

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