Month: June 2021

Can You Get Your Professional License Back After It’s Revoked?

In California, as in other states, professionals in a wide variety of fields are required to hold a license in order to practice their trade. Such professions range from medical doctors to accountants to private investigators. Each has a licensing board or other authority that makes and enforces rules on competence, ethical standards, and more.

If a professional falls afoul of their licensing board for one reason or another, the board may file an accusation of misconduct against them. The professional will then be given a chance to defend themselves in an administrative hearing, often before an administrative law judge (ALJ). If they are found to have committed some sort of misconduct, punishment can include the suspension or even revocation of their license.

Is it possible to get your license back after it’s revoked? The answer is yes, and you have a couple of options.

Petitioning for Reinstatement

Your license can either be revoked with stay or revoked without stay. A revocation with stay is a type of probation. It means the board will hold off on actually revoking your license for a period of time, during which you must fulfill certain requirements (taking educational courses, for example). A revocation without stay, on other hand, is a final judgment, but that doesn’t mean you don’t have any options left.

Most boards allow professionals to petition for reinstatement after some time has passed. This period can vary, but is usually one to three years. At this hearing, you can show that you have resolved the issue which led to the revocation, call fellow professionals as witnesses to vouch for you, and generally convince the board that there will be no further problems. If successful, the board can restore your license and you will be able to practice again.

Appealing the Board’s Decision

You can always appeal a board’s decision if you believe it was mistaken or unfair. Depending on the particular board involved, there may be an internal appeals process, which must first be exhausted. If you have tried everything at the board level, you can appeal its decision to a regular state court.

The court can overrule the board if it lacked jurisdiction, denied you a fair hearing, or abused its discretion. California courts have recognized license revocation as depriving someone of the “fundamental right” to practice their profession, and will look to see if the punishment was too severe for the misconduct. If the board’s decision to revoke is overturned, it may still impose some other punishment, such as probation or suspension.

Learn More About Your Options

If you are facing disciplinary action by a licensing board or your license has already been revoked, your livelihood is at stake and it’s critically important to have assistance from an administrative law attorney. An experienced attorney can help ensure you receive a fair hearing, minimize disciplinary action, and even get your license back.

Our team of administrative law experts practice all across Southern California. Contact us today to schedule a consultation.

Freelancer Laws in California

Whether a worker is designated as an independent contractor or employee has significant consequences both for the employer and the worker. Most of these consequences are financial; employers are not required to pay unemployment insurance, payroll taxes, health benefits, vacation time, and more. In return, ideally, the contractor has more control over their schedule, how they perform the work, and what jobs they take on.

There is little doubt that many businesses have abused this system by miscategorizing employees as independent contractors in order to save money, but efforts at reform have been contentious, especially in California. Industry groups and even some worker groups have fought against legislative changes, arguing that freelancers will lose their independence and jobs will leave the state. 

Here is the current state of freelancer laws in California.

The ABC Test

The test for whether a worker should be categorized as an independent contractor or an employee as established by the California Supreme Court in Dynamex Operations West, Inc., and has since been codified and extended by the legislature in Assembly Bill 5. Under this law’s “ABC test,” a worker is presumed to be an employee unless the employer can demonstrate each of the following:

  • The worker is free from the control and direction of the employer in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  • The worker performs work that is outside the usual course of the hiring entity’s business.
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

If all of these do not apply, then the worker should be considered an employee, not an independent contractor.

Exceptions to the ABC Test

Not surprisingly, the law also recognizes quite a few exceptions to the rule stated above. First, there are a number of professions that are exempted. These include physicians, dentists, veterinarians, lawyers, architects, accountants, commercial fishermen, and more.

Also, if the worker provides one of a number of specific “professional services,” the ABC test does not apply. However, this is only true if the worker’s situation meets a variety of requirements, such as a separate business address and the ability to control their own schedule, which serve to establish the worker’s actual independence from the employer. 

The law’s exceptions are numerous, and many have their own list of unique requirements that must be individually evaluated.

Prop 22

In November 2020, California voters approved Proposition 22 by ballot initiative, which exempted app-based ridesharing companies from the requirements of AB 5. As a result, drivers for companies such as Uber and Lyft are not considered employees (as they would have been under AB 5), but independent contractors. In exchange, these drivers receive a few additional protections and benefits, though only while “engaged” in work for the companies.

If your business is unsure how to categorize its workers, or if you are a worker and believe you have been wrongly categorized as an independent contractor, contact Hoffman & Forde today for a consultation.