tag:blogger.com,1999:blog-10046167191794201262024-03-08T03:34:14.161-08:00Business Law Firm of Jacobs and DoddsJacobs and Dodds is a business/labor law firm with offices in Orange County and Los Angeles County. Each partner has over 35 years of experience. The firm handles employment issues on behalf of employers, business litigation and business transactional matters for over 300 companies.
In Orange County call us at (949) 645-7300. In Los Angeles County call us at (424) 247-1195.Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.comBlogger20125tag:blogger.com,1999:blog-1004616719179420126.post-55030388703472401292018-11-08T08:06:00.004-08:002018-11-08T08:06:34.995-08:00New Independent Contractor Law - 2018The California Supreme Court case of <u>Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County</u> tightens the law regarding who is or is not an independent contractor at a business.<br />
<br />
The April 2018 court ruling states that workers are assumed to be employees unless all three of these factors can be proven:<br />
<br />
(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;<br />
<br />
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and<br />
<br />
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.<br />
<br />
The Court stated:<br />
<br />
"In the underlying lawsuit in this matter, two individual delivery drivers,<br />
suing on their own behalf and on behalf of a class of allegedly similarly situated<br />
drivers, filed a complaint against Dynamex Operations West, Inc. (Dynamex), a<br />
nationwide package and document delivery company, alleging that Dynamex had<br />
misclassified its delivery drivers as independent contractors rather than employees.<br />
The drivers claimed that Dynamex’s alleged misclassification of its drivers as<br />
independent contractors led to Dynamex’s violation of the provisions of Industrial<br />
Welfare Commission wage order No. 9, the applicable state wage order governing<br />
the transportation industry, as well as various sections of the Labor Code, and, as a<br />
result, that Dynamex had engaged in unfair and unlawful business practices under<br />
Business and Professions Code section 17200.<br />
<br />
Prior to 2004, Dynamex classified as employees drivers who allegedly<br />
performed similar pickup and delivery work as the current drivers perform.<br />
In 2004, however, Dynamex adopted a new policy and contractual arrangement<br />
under which all drivers are considered independent contractors rather than<br />
employees. Dynamex maintains that, in light of the current contractual<br />
arrangement, the drivers are properly classified as independent contractors."<br />
<br />
Ultimately, the California Supreme Court decided:<br />
<br />
"As a consequence, we conclude it is appropriate, and most consistent with the history and purpose of the suffer or permit to work standard in California’s wage orders, to interpret that standard as: (1) placing the burden on the hiring entity to establish that the worker is an independent<br />
contractor who was not intended to be included within the wage order’s<br />
coverage;24 and (2) requiring the hiring entity, in order to meet this burden, to<br />
establish each of the three factors embodied in the ABC test — namely (A) that<br />
the worker is free from the control and direction of the hiring entity in connection<br />
with the performance of the work, both under the contract for the performance of<br />
the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed."<br />
<br />
In the end this was the Court's analysis:<br />
<br />
<b>"Part A. Is the worker free from the control and direction of the</b><br />
<b>hiring entity in the performance of the work, both under the contract</b><br />
<b>for the performance of the work and in fact?</b><br />
<b><br /></b>
First, as our decision in Martinez makes clear (Martinez, supra, 49 Cal.3d<br />
at p. 58), the suffer or permit to work definition was intended to be broader and<br />
more inclusive than the common law test, under which a worker’s freedom from<br />
the control of the hiring entity in the performance of the work, both under the<br />
contract for the performance of the work and in fact, was the principal factor in<br />
establishing that a worker was an independent contractor rather than an employee.<br />
Accordingly, because a worker who is subject, either as a matter of contractual<br />
right or in actual practice, to the type and degree of control a business typically<br />
exercises over employees would be considered an employee under the common<br />
law test, such a worker would, a fortiori, also properly be treated as an employee<br />
for purposes of the suffer or permit to work standard. Further, as under Borello,<br />
supra, 48 Cal.3d at pages 353-354, 356-357, depending on the nature of the work<br />
and overall arrangement between the parties, a business need not control the<br />
precise manner or details of the work in order to be found to have maintained the necessary control that an employer ordinarily possesses over its employees, but does not possess over a genuine independent contractor. The hiring entity must establish that the worker is free of such control to satisfy part A of the test.<br />
<br />
<b>Part B: Does the worker perform work that is outside the usual</b><br />
<b>course of the hiring entity’s business?</b><br />
<b><br /></b>
Second, independent of the question of control, the child labor antecedents<br />
of the suffer or permit to work language demonstrate that one principal objective<br />
of the suffer or permit to work standard is to bring within the “employee” category all individuals who can reasonably be viewed as working “in the [hiring entity’s] business” (see Martinez, supra, 49 Cal.4th at p. 69, italics added), that is, all individuals who are reasonably viewed as providing services to the business in a role comparable to that of an employee, rather than in a role comparable to that of a traditional independent contractor. (Accord Rutherford Food, supra, 331 U.S. at<br />
p. 729 [under FLSA, label put on relationship by hiring business is not controlling<br />
and inquiry instead focuses on whether “the work done, in essence, follows the<br />
usual path of an employee’].) Workers whose roles are most clearly comparable<br />
to those of employees include individuals whose services are provided within the<br />
usual course of the business of the entity for which the work is performed and thus<br />
who would ordinarily be viewed by others as working in the hiring entity’s<br />
business and not as working, instead, in the worker’s own independent business.<br />
Thus, on the one hand, when a retail store hires an outside plumber to repair<br />
a leak in a bathroom on its premises or hires an outside electrician to install a new<br />
electrical line, the services of the plumber or electrician are not part of the store’s<br />
usual course of business and the store would not reasonably be seen as having suffered or permitted the plumber or electrician to provide services to it as an<br />
employee. (See, e.g., Enforcing Fair Labor Standards, supra, 46 UCLA L.Rev. at<br />
p. 1159.) On the other hand, when a clothing manufacturing company hires workat-home<br />
seamstresses to make dresses from cloth and patterns supplied by the<br />
company that will thereafter be sold by the company (cf., e.g., Silent Woman, Ltd.,<br />
supra, 585 F.Supp. at pp. 450-452; accord Whitaker House Co-op, supra, 366 U.S.<br />
28), or when a bakery hires cake decorators to work on a regular basis on its<br />
custom-designed cakes (cf., e.g,, Dole v. Snell (10th Cir. 1989) 875 F.2d 802,<br />
811), the workers are part of the hiring entity’s usual business operation and the<br />
hiring business can reasonably be viewed as having suffered or permitted the<br />
workers to provide services as employees. In the latter settings, the workers’ role within the hiring entity’s usual business operations is more like that of an<br />
employee than that of an independent contractor.<br />
Treating all workers whose services are provided within the usual course of<br />
the hiring entity’s business as employees is important to ensure that those workers<br />
who need and want the fundamental protections afforded by the wage order do not<br />
lose those protections. If the wage order’s obligations could be avoided for<br />
workers who provide services in a role comparable to employees but who are<br />
willing to forgo the wage order’s protections, other workers who provide similar<br />
services and are intended to be protected under the suffer or permit to work<br />
standard would frequently find themselves displaced by those willing to decline<br />
such coverage. As the United States Supreme Court explained in a somewhat<br />
analogous context in Alamo Foundation, supra, 471 U.S. at page 302, with respect<br />
to the federal wage and hour law: “[T]he purposes of the [FLSA] require that it be<br />
applied even to those who would decline its protections. If an exception to the Act<br />
were carved out for employees willing to testify that they performed work<br />
‘voluntarily,’ employers might be able to use superior bargaining power to coerce<br />
employees to make such assertions, or to waive their protections under the Act. [Citations.] Such exceptions to coverage would affect many more people than<br />
those workers directly at issue in this case and would be likely to exert a general<br />
downward pressure on wages in competing businesses.” (Ibid.)<br />
As the quoted passage from the Alamo Foundation case suggests, a focus<br />
on the nature of the workers’ role within a hiring entity’s usual business operation<br />
also aligns with the additional purpose of wage orders to protect companies that in<br />
good faith comply with a wage order’s obligations against those competitors in the<br />
same industry or line of business that resort to cost saving worker classifications<br />
that fail to provide the required minimum protections to similarly situated workers.<br />
A wage order’s industry-wide minimum requirements are intended to create a level playing field among competing businesses in the same industry in order to<br />
prevent the type of “race to the bottom” that occurs when businesses implement<br />
new structures or policies that result in substandard wages and unhealthy<br />
conditions for workers. (Accord Gemsco, Inc. v. Walling (1945) 324 U.S. 244,<br />
252 [“[I]f the [proposed restrictions on homeworkers] cannot be made, the floor<br />
for the entire industry falls and the right of the homeworkers and the employers to<br />
be free from the prohibition destroys the right of the much larger number of<br />
factory workers to receive the minimum wage”]; see generally Enforcing Fair<br />
Labor Standards, supra, 46 UCLA. L.Rev. at pp. 1178-1103.) Competing<br />
businesses that hire workers who perform the same or comparable duties within<br />
the entities’ usual business operations should be treated similarly for purposes of<br />
the wage order.<br />
<br />
Accordingly, a hiring entity must establish that the worker performs work<br />
that is outside the usual course of its business in order to satisfy part B of the ABC<br />
test.<br />
<br />
<b>Part C: Is the worker customarily engaged in an independently</b><br />
<b>established trade, occupation, or business of the same nature as the</b><br />
<b>work performed for the hiring entity?</b><br />
<b><br /></b>
Third, as the situations that gave rise to the suffer or permit to work<br />
language disclose, the suffer or permit to work standard, by expansively defining<br />
who is an employer, is intended to preclude a business from evading the<br />
prohibitions or responsibilities embodied in the relevant wage orders directly or<br />
indirectly — through indifference, negligence, intentional subterfuge, or<br />
misclassification. It is well established, under all of the varied standards that have<br />
been utilized for distinguishing employees and independent contractors, that a<br />
business cannot unilaterally determine a worker’s status simply by assigning the<br />
worker the label “independent contractor” or by requiring the worker, as a condition of hiring, to enter into a contract that designates the worker an<br />
independent contractor. (See, e.g., Borello, supra, 48 Cal.3d at pp. 349, 358-359;<br />
Rutherford Food, supra, 331 U.S. at p. 729.) This restriction on a hiring<br />
business’s unilateral authority has particular force and effect under the wage<br />
orders’ broad suffer or permit to work standard.<br />
As a matter of common usage, the term “independent contractor,” when<br />
applied to an individual worker, ordinarily has been understood to refer to an<br />
individual who independently has made the decision to go into business for<br />
himself or herself. (See, e.g., Borello, supra, 48 Cal.3d at p. 354 [describing<br />
independent contractor as a worker who “has independently chosen the burdens<br />
and benefits of self-employment”].) Such an individual generally takes the usual<br />
steps to establish and promote his or her independent business — for example,<br />
through incorporation, licensure, advertisements, routine offerings to provide the<br />
services of the independent business to the public or to a number of potential<br />
customers, and the like. When a worker has not independently decided to engage<br />
in an independently established business but instead is simply designated an<br />
independent contractor by the unilateral action of a hiring entity, there is a substantial risk that the hiring business is attempting to evade the demands of an<br />
applicable wage order through misclassification. A company that labels as<br />
independent contractors a class of workers who are not engaged in an<br />
independently established business in order to enable the company to obtain the<br />
economic advantages that flow from avoiding the financial obligations that a wage<br />
order imposes on employers unquestionably violates the fundamental purposes of<br />
the wage order. The fact that a company has not prohibited or prevented a worker from engaging in such a business is not sufficient to establish that the worker has<br />
independently made the decision to go into business for himself or herself<br />
Accordingly, in order to satisfy part C of the ABC test, the hiring entity<br />
must prove that the worker is customarily engaged in an independently established<br />
trade, occupation, or business.<br />
<div>
<br /></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com5tag:blogger.com,1999:blog-1004616719179420126.post-70596849356227719952017-04-08T09:11:00.001-07:002017-04-08T09:25:21.155-07:00City of Los Angeles - Mandatory Paid Sick Leave (Potholes and Pitfalls)<div class="MsoNormal" style="line-height: normal; margin-bottom: 7.5pt;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">The City of Los Angeles has a mandatory paid
sick leave (PSL) law which is part of its minimum wage <a href="http://wagesla.lacity.org/sites/g/files/wph471/f/Los%20Angeles%20Minimum%20Wage%20Ordinance%20184320.pdf" target="_blank"><span style="color: #548ed3;">ordinance</span></a> and which
has been in effect since July 1, 2016 for employers with 26 or more
employees. The Los Angeles PSL ordinance will begin to apply to employers
with 25 or fewer employees on July 1, 2017.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: 7.5pt;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">From an employer perspective, one of the
toughest challenges of these local PSL ordinances is that the rules can change
at any time. That is precisely what happened with Los Angeles’s ordinance when
the city recently revised the <a href="http://wagesla.lacity.org/sites/g/files/wph471/f/MWO-RulesandRegulations-2017-03.pdf" target="_blank"><span style="color: #548ed3;">rules and regulations</span></a> relating
to this ordinance. The city also revised its answers to <a href="http://wagesla.lacity.org/sites/g/files/wph471/f/MWO-FAQ-2017-03.pdf" target="_blank"><span style="color: #548ed3;">frequently asked questions</span></a> (FAQ).<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: 7.5pt;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Some of these changes or clarifications are
important, providing information on topics such as:<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.0pt; margin-left: 18.75pt; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list .5in; text-indent: -.25in;">
<!--[if !supportLists]--><span style="color: #351c75;"><span style="font-family: "symbol"; font-size: 10.0pt;">·<span style="font-family: "times new roman"; font-size: 7pt; font-stretch: normal; line-height: normal;"> </span></span><!--[endif]--><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">How to determine business size;<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: 15.0pt; margin-left: 18.75pt; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list .5in; text-indent: -.25in;">
<!--[if !supportLists]--><span style="color: #351c75;"><span style="font-family: "symbol"; font-size: 10.0pt;">·<span style="font-family: "times new roman"; font-size: 7pt; font-stretch: normal; line-height: normal;"> </span></span><!--[endif]--><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">How to pay employees for sick time;<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: 15.0pt; margin-left: 18.75pt; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list .5in; text-indent: -.25in;">
<!--[if !supportLists]--><span style="color: #351c75;"><span style="font-family: "symbol"; font-size: 10.0pt;">·<span style="font-family: "times new roman"; font-size: 7pt; font-stretch: normal; line-height: normal;"> </span></span><!--[endif]--><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">When an existing paid leave or paid time off
policy can satisfy the requirements of the ordinance;<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: 15.0pt; margin-left: 18.75pt; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list .5in; text-indent: -.25in;">
<!--[if !supportLists]--><span style="color: #351c75;"><span style="font-family: "symbol"; font-size: 10.0pt;">·<span style="font-family: "times new roman"; font-size: 7pt; font-stretch: normal; line-height: normal;"> </span></span><!--[endif]--><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">How to use the frontloading method during the
first year that the law applies to an employer and in subsequent years; and<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: 15.0pt; margin-left: 18.75pt; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list .5in; text-indent: -.25in;">
<!--[if !supportLists]--><span style="color: #351c75;"><span style="font-family: "symbol"; font-size: 10.0pt;">·<span style="font-family: "times new roman"; font-size: 7pt; font-stretch: normal; line-height: normal;"> </span></span><!--[endif]--><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">Whether a maximum cap on accrued hours is
allowed.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: 15.0pt; margin-left: 18.75pt; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list .5in; text-indent: -.25in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: 7.5pt;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">The Los Angeles PSL ordinance contains
different provisions than the state PSL law. Employers with businesses in a
city with a local PSL ordinance need to comply with both the state and the
local law. For each provision, protection or benefit, employers will need to
provide whichever is more generous to the employee. With respect to the City of Los Angeles the city laws and ordinances will almost always be more generous.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Employer
means any person, as defined in the California Labor Code including a corporate
officer or executive, who directly or indirectly or through an agent or any
other person, including through the services of a temporary services or
staffing agency or similar entity, employs or exercises control over the wages,
hours or working conditions of any Employee. <o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><b>Employer
Requirements</b><o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><b><br /></b></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">• Employer must pay hourly minimum wage and
provide paid sick leave for hours worked within the geographic boundaries of
the City.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">• Employer must post the Office of Wage
Standards Wage Notices in a conspicuous place at any workplaces or job sites in
English, Spanish, Chinese (Cantonese and Mandarin), Hindi, Vietnamese, Tagalog,
Korean, Japanese, Thai, Armenian, Russian and Farsi, and any other language
spoken by at least five percent (5%) of the Employees at the workplace or job
site.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">• Employer must keep payroll records for four
(4) years.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">• Employer must provide employees with the
Employer's name, address, and telephone number in writing at the time of hire.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><b>Paid
Sick Leave</b> <o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Starting
July 1, 2016, all Employers, except for Employers with 25 or fewer Employees,
were required to provide paid sick leave according to the Los Angeles
Minimum Wage Ordinance (MWO). The paid
sick is to be provided to all Employees who work at least two hours in a
particular week in the City of Los Angeles for the same Employer for 30 days or
more within a year.</span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><b>Employers with 25 or
fewer Employees begin providing sick leave benefits on July 1, 2017.</b><o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><b><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">Entitlement</span></b><b><span style="font-family: "times new roman" , serif; font-size: 12.0pt;"> </span></b></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<b><span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><br /></span></b></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">Front-Loading</span></u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">. At least 48 hours provided either at the
beginning of each year of employment, calendar year, or 12 month period;</span><span style="font-family: "times new roman" , serif; font-size: 12pt;"> </span></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><span style="font-family: "times new roman" , serif; font-size: 12.0pt;"> <b>Or</b></span><span style="font-family: "times new roman" , serif; font-size: 12pt;"> </span></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">Accrual</span></u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">. One hour of paid sick leave for every 30
hours worked.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">72-Hour
Cap</span></u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">. Accrued
unused paid sick leave shall carry over to the following year of employment and
may be capped at a minimum of 72 hours; <b>however</b>,
an Employer may choose no cap or a higher cap.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">Separation
from employment</span></u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">. An Employer is not required to provide
compensation to an Employee for accrued or unused sick days at separation from
employment.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">Reinstatement</span></u><span style="font-family: "times new roman" , serif; font-size: 12.0pt;">. If an Employee is re-hired within one (1)
year of separation from employment, previously accrued and unused paid sick
leave shall be reinstated.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<b><span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Usage<o:p></o:p></span></b></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">When: An Employee may use paid sick leave beginning
on the 90th day of employment.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">How: An Employer shall provide paid sick leave
upon the oral or written request of an Employee for themselves or a family member,
or for any individual related by blood or affinity. <o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">The
use of paid sick leave may be limited to 48 hours leave annually.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<b><span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Administrative Fines for Violations<o:p></o:p></span></b></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Each
and every day that a violation exists constitutes a separate and distinct
violation. Any administrative fine assessed within a three (3)-year period in
any Notice of Correction and determined to be a subsequent violation of the
same provision by the same Employer may be increased cumulatively by fifty (50)
percent from the maximum administrative fine allowed. <o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Failure
to post notice of the Los Angeles Minimum Wage rate and Sick Time Benefits-
Municipal Code Section 188.03(A) Fine: Up
to $500<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Failure
to allow access to payroll records - Municipal Code Section 188.03(B). Fine: Up to $500<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Failure
to maintain payroll records or to retain payroll records for four years -
Municipal Code Section 188.03(B) Fine: Up
to $500<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Failure
to allow access for inspection of books and records or to interview employees -
Municipal Code Section 188.03(C) Fine: Up
to $500<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Retaliation
for exercising rights under this article - Municipal Code Section 188.04 - The
Penalty for retaliation is up to $1,000 per employee. Fine: Up to $1,000<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Failure
to provide employer's name, address, and telephone number in writing -
Municipal Code Section 188.03(A) or 188.05(B) Fine:
Up to $500<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Failure
to cooperate with the Division's investigation - Municipal Code Section
188.05(B). Fine: Up to $500<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75;"><br /></span></div>
<span style="color: #351c75;"><br /></span>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;">Failure
to post Notice of Correction to employees - Municipal Code Section 188.06(D). Fine:Up to $500<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="color: #351c75; font-family: "times new roman" , serif; font-size: 12.0pt;"><br /></span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "times new roman" , serif; font-size: 12.0pt;"><span style="color: #351c75;">Here is a link to the city approved poster that employers in the City of Los Angeles must post in the workplace: </span><a href="http://wagesla.lacity.org/sites/g/files/wph471/f/MWO-Poster-EN-11.pdf" target="_blank">Los Angeles Mandatory Paid Sick Leave Poster</a></span></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-43761264699471442312017-04-01T08:01:00.000-07:002017-04-01T08:01:19.895-07:00New California Laws Effecting California Businesses in 2017<b>LAW AND FORUM CHOICE IN EMPLOYMENT CONTRACTS</b><br />
<br />
Law: SB1241<br />
<br />
Employees who primarily work and reside in California cannot be required by employers to enter agreements that would put their claims in a non-California forum or generally litigate claims under law of another jurisdiction. Effective Jan. 1.<br />
<br />
What it means: In a legal dispute between employee and employer, what happens in California has to stay in California. The bill forbids adjudication outside of California, including arbitration, for a claim arising in California.<br />
<br />
With SB1241, a Texas-based company, for example, can no longer hold a California employee to the noncompetition rule or law in an employment contract that is based on Texas law.<br />
<br />
<br />
<b>WAGE DISCRIMINATION PROTECTIONS COVER RACE, ETHNICITY, PRIOR SALARY</b><br />
<br />
Laws: AB1676 and SB1063<br />
<br />
Both bills are amendments to the state’s Fair Pay Act.<br />
<br />
AB1676 says an opposite-sex employee’s prior salary alone cannot justify a disparity in compensation for equal work on jobs which require equal skill. It takes prior salary away from other bona fide reasons giving an opposite-sex employee lower pay, such as education, training or experience.<br />
<br />
SB1063 expands the Fair Pay Act to race and ethnicity as well as gender.<br />
<br />
<br />
<b>PROTECTIONS FOR VICTIMS OF DOMESTIC VIOLENCE, STALKING, SEXUAL ASSAULT</b><br />
<br />
Law: AB2337<br />
<br />
What it says: Employers are required to inform workers who are victims of domestic violence, stalking or sexual assault of their existing rights to take time off work for a variety of services, medical treatment, counseling and safety planning. Unscheduled absences due to those circumstances cannot be punished if the employee provides certification in a reasonable amount of time. Effective July 1, 2017.<br />
<br />
What it means: Workplace notices at businesses with 25 or more employees will need to be updated soon.<br />
<br />
<br />
<b>IMMIGRATION DOCUMENTATION, UNFAIR PRACTICES</b><br />
<br />
Law: SB1001<br />
<br />
What it says: Applies to state law existing federal law that, among other items, makes it unlawful for an employer to request more or different immigration documents than required by law, or to refuse documents that “on their face reasonably appear to be genuine.”<br />
<br />
What it means: Before this law, the issue of complying with immigration document requirements was purely a federal matter. This bill allows employees to litigate these issues in state court.<br />
<br />
<br />
<b>JUVENILE CRIMINAL HISTORY AND JOB APPLICATIONS</b><br />
<br />
Law: AB1843<br />
<br />
What it says: Potential employers cannot ask an applicant about information concerning past involvement in juvenile court, including adjudication or court disposition.<br />
<br />
What it means: The law adds juvenile court outcomes to existing California law that prohibit employers from asking workers or applicants about an adult arrest that did not result in a conviction, a court referral to a diversion program or a matter that has been expunged or sealed. It does not include applicants or workers who are “under the process” of juvenile court proceedings. There are exceptions regarding health worker records for both adult and juvenile court records. Employers need to immediately review and revise their employment applications.<br />
<br />
<b>CALIFORNIA MINIMUM WAGE</b><br />
<br />
Effective January 1, 2017 the minimum wage in California goes up to $10.50 an hour. However, employers need to know that individual counties, such as Los Angeles, have higher minimum wage rates and the rates can depend on how many employees an employer has. In Los Angeles County, effective July 1, 2017, if an employer has more than 25 employees the minimum wage rate will be $12.00 an hour. If an employer has 25 or fewer employees the minimum wage will be $10.50 an hour.<br />
<br />
<b>SINGLE-USER RESTROOMS ALL-GENDER DESIGNATION</b><br />
<br />
AB1732 says all single-user restrooms meant for public access must by March 1 be identified as an all-gender toilet facility.<br />
<br />
<br />
<b>MINIMUM WAGE DISPUTE BOND</b><br />
<br />
AB2899 Employers appealing an unfavorable Labor Commission ruling for wage and hour violations must post a bond that includes the assessed amount of unpaid wages. The bond amount, which excludes penalties, will be forfeited to the employee if the employer does not prevail and does not pay the owed amount within 10 days of the case’s conclusion.<br />
<br />Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-73443078007366831682016-06-22T07:00:00.001-07:002016-06-22T07:00:12.585-07:00California Employers and How to Defend Wage and Hour Claims before the Division of Labor Standards and EnforcementIn California the Division of Labor Standards Enforcement (DLSE) adjudicates wage claims on behalf of workers who file claims for nonpayment of wages, overtime, or vacation pay, pursuant to California Labor Code sections 96 and 98. DLSE deputies hold informal conferences between employers and employees to resolve wage disputes. If a matter cannot be resolved at the informal conference, an administrative hearing is held to make a final determination on the matter.<br />
<br />
An employee (plaintiff) alleging the non-payment of wages or other compensation by his or her employer (defendant), must file a claim (the DLSE Form 1, “Initial Report or Claim” form) with a local office of DLSE to initiate investigation of the claim by the Labor Commissioner. The employee is asked to provide any time records the plaintiff kept of the hours and dates worked that support the claim, paychecks and pay stubs showing the wages paid during the claim period and dishonored (or “bounced”) paycheck(s) during the claim period.<br />
<br />
However, under California law it is the employer’s legal responsibility to keep accurate employee time and payroll records, and to provide employees with itemized wage statements each time they are paid (or at least semimonthly). In order to file a claim, employees are not required to keep their own time records or to have the documents above. <br />
<br />
After the claim is reviewed by a Deputy Labor Commissioner (deputy), he or she will determine, based on the circumstances of the claim, how best to proceed. Within thirty (30) days of the filing of the complaint, the deputy shall notify the parties as to the specific action which will initially be taken regarding the claim. The possible actions include referral to a conference, referral to a hearing or dismissal of the claim. In Southern California the vast majority of claims are sent to an informal conference first.<br />
<br />
If a conference is held, the conference is supposed to be conducted informally and the parties are not supposed to be put under oath. This is not always the case. In many cases the deputy will conduct the conference as if it is a mini hearing. Many employers make the mistake of believing that the conference is informal and they don’t need an attorney. The truth is that in most instances if an employer begins to explain “informally” their position the deputy will expect the employer to know the labor laws and be able to explain how the laws do or do not apply to them.<br />
<br />
The purpose of the conference is to determine if the claim can be resolved without a hearing. Plaintiffs (employees) are not required to prove their case at the conference. The parties should be prepared to talk with the deputy about the claim, including whether there are any witnesses. However, the parties do not need to bring witnesses to the conference. It is imperative that the employer bring any documents that support their position to the conference. If the defendant employer makes payment of the claim, or any part of the claim, directly to the plaintiff, the plaintiff must notify the deputy. If the payment satisfies the claim in full, the case will be closed.<br />
<br />
If the conference does not resolve the matter a hearing is set. The parties will receive, either by mail or by personal service, a Notice of Hearing which will set the date, time and place of the hearing. Although hearings are conducted in an informal setting, they are formal proceedings, as opposed to the conference. At the hearing the parties and witnesses testify under oath, and the proceedings are recorded.<br />
<br />
Each party has the following basic rights at the hearing:<br />
1. To be represented by an attorney or other party of his or her choosing.<br />
2. To present evidence.<br />
3. To testify in his or her own behalf.<br />
4. To have his or her own witnesses testify.<br />
5. To cross-examine the opposing party and witnesses.<br />
6. To explain evidence offered in support of his or her position and to rebut evidence offered in opposition.<br />
7. To have a translator present, if necessary.<br />
<br />
The hearing officer has sole authority and discretion for the conduct of the hearing and may:<br />
1. Explain the issues and the meaning of terms not understood by the parties.<br />
2. Set forth the order in which persons will testify, cross-examine and give rebuttal.<br />
3. Assist parties in the cross-examination of the opposing party and witnesses.<br />
4. Question parties and witnesses to obtain necessary facts.<br />
5. Accept and consider testimony and documents offered by the parties or witnesses.<br />
6. Take official notice of well-established matters of common knowledge and/or public records.<br />
7. Ascertain whether there are stipulations by the parties that may be entered into the record.<br />
<br />
An employer who intends to introduce business records into evidence must bring a person to the hearing who can explain how such records were prepared and be prepared to testify that the records are accurate and were prepared in the regular course of business. If available, the originals of all documents should be brought to the hearing plus two sets of copies.<br />
<br />
The hearing officer is not bound by formal rules of evidence and therefore, has wide discretion in accepting evidence. He or she also has discretion in deciding whether the assessment of penalties is appropriate in a particular case. This is important. Most employers who appear without counsel at these hearing are shocked by the amount of the penalties that can be assessed against the employer and don’t understand what the employer needs to establish to avoid certain penalties.<br />
<br />
Within fifteen (15) days after the hearing, the Order, Decision or Award (ODA) of the Labor Commissioner will be filed in the DLSE office and served on the parties shortly thereafter. The ODA will set forth the decision and the amount awarded, if any, by the hearing officer.<br />
<br />
Either party, or both, pursuant to Labor Code Section 98.2, may appeal the Labor Commissioner's ODA to the superior court. The party appealing may obtain a Notice of Appeal (DLSE 537) from the DLSE office. The appeal must be filed in court within the time period set forth on the ODA, and a copy of the Notice of Appeal must be served on the Labor Commissioner and the opposing party. Whenever the defendant employer files an appeal, a bond in the amount of the ODA must be posted with the reviewing court. The court clerk will then set the matter for de novo hearing, which means that a judge will hear the case again with each party having the opportunity to present evidence and witnesses.<br />
<br />
In the case of an appeal by a defendant employer, DLSE may represent a plaintiff who is financially unable to afford counsel in the appeal proceedings. The decision to represent the plaintiff is within the sound discretion of DLSE legal staff. The employer, however, must pay for its own attorney. The hearing in the superior court is actually a trial and the rules of evidence apply. Witnesses can be called to testify. These trials can be very expensive for the employer.<br />
<div>
<br /></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com1tag:blogger.com,1999:blog-1004616719179420126.post-48966528374639238242016-06-18T11:13:00.001-07:002016-06-18T11:13:34.982-07:00The Cities of San Diego, Los Angeles and Santa Monica Have Imposed Sick Leave Ordinances on Employers<b><br /></b>
<b><br /></b>
So far this year three cities in Southern California have passed ordinances mandating certain sick leave requirements for employers. These ordinances are considerably more liberal then the state sick leave laws mandated by the State of California. Under California law as long as the ordinances passed by cities have sick leave policies offering at least as much protection for employees as the state laws, the local ordinances will control. If employers in one city have workers travelling to other cities to work, the employer must track each employees hours spent in the other city if the other city has a sick leave ordinance. The employer must comply with the sick leave ordinances in the other cities that have the ordinances based on the hours worked in that city by the employee.<br />
<b><br /></b>
<b>San Diego</b><br />
<br />
<u>Overview</u>:<br />
<br />
Thanks to a votes’ initiative that passed in June 2016, San Diego will have its own paid sick leave policy of five days (40 hours). This is in excess of the California Sick Leave law that allows employers to limit use of accrued paid sick leave to three days (24 hours).<br />
<br />
Like the state law, San Diego’s paid sick leave will accrue at one hour for every 30 hours worked and cannot be used until after 90 days of employment. San Diego’s sick leave initiative allows accrued leave to be front loaded or accrued, and it must be carried over year to year. This provision is the same as state law.<br />
<br />
The San Diego law differs from state law in that employees may accrue an unlimited amount of sick leave. However, employers may limit the amount an employee can use to 40 hours per year. If a business is not within San Diego city limits, if an employee performs at least two hours of work per week within San Diego, they accrue paid sick leave for the hours they work within the city. In-home supportive services, workers employed under a publicly subsidized summer or short-term youth employment program, or any student employee, camp, or program counselor of an organized camp under State law are exempted.<br />
<br />
<u>The Particulars</u>:<br />
<br />
Employees begin to accrue sick leave on commencement of employment, or the Ordinances effective date (which looks like it will be July 2016), whichever is later.<br />
<br />
Employees are entitled to begin using sick leave 90 days after the commencement of employment, or the Ordinances effective date, whichever is later.<br />
<br />
Employers are authorized to limit the use of earned leave to 40 hours in a twelve-month period.<br />
Employers cannot cap the accrual of sick leave and unused time must be carried over.<br />
Upon an employee's separation, employers are not required to pay unused leave, but the employer must maintain it for six months if the employee returns. This is the same as state law.<br />
<br />
Leave can be used if an employee is physically or mentally unable to work due to illness, injury, or a medical condition, including pregnancy; for "Safe Time" (time away necessary to handle certain matters of domestic violence, sexual assault, or stalking, when the employee or a designated family member is a victim); for medical appointments; and to care for family members (a child, spouse, parent, grandparent, grandchild, sibling or the child or parent of a spouse) with an illness, injury, or medical condition.<br />
<br />
<u>Notification and Record Keeping Requirements</u><br />
<br />
San Diego employers are required to post bulletins and notices regarding the new minimum wage and sick leave laws. Below is a summary of the key requirements.<br />
<br />
Employers are required to post bulletins announcing the minimum wage for the upcoming year and its effective date.<br />
<br />
Employers are also required to post notices in the workplace informing employees of the current minimum wage, the employee's rights to minimum wage and earned sick leave, information about the accrual and use of earned sick leave, the right to be free from retaliation, and the right to file a complaint with the enforcement office or a court of competent jurisdiction.<br />
<br />
The notices and bulletins must be posted in a conspicuous place in the workplace or job site in English, Spanish, Chinese, Vietnamese, and Tagalog, and any language spoken by at least five percent of the employees at the workplace or job site.<br />
<br />
Employers are also required to maintain written or electronic records documenting their employees' wages earned and the accrual and use of earned sick leave. Employers are required to retain these records for a period of at least three years.<br />
<br />
<u>Remedies and Civil Penalties</u><br />
<br />
An employer who violates the provisions of the Ordinance may be subject to legal action or civil penalties, as follows:<br />
<br />
An employee may bring a legal or equitable action for harm caused by violation of the Ordinance. An employee is entitled to relief, including, but not limited to, withheld back wages, liquidated damages equal to double withheld back wages, damages for denial of use of accrued sick leave, reinstatement, and reasonable attorney's fees and costs.<br />
<br />
An employer who violates the provisions of the Ordinance is subject to a civil penalty for each violation up to, but not to exceed, $1,000 per violation.<br />
<br />
An employer who fails to comply with the notice and posting requirements is subject to a civil penalty of $100 for each employee who was not given appropriate notice, up to a maximum of $2,000.<br />
<br />
An employee is not required to submit a complaint to the designated enforcement office in order to bring a private cause of action against his or her employer.<br />
<div>
<br /></div>
<br />
<b>Los Angeles</b><br />
<br />
Beginning July 1, 2016, Los Angeles employers with at least 26 employees – and, on January 1, 2017, employers with fewer than 26 employees – must comply with two new laws.<br />
<br />
Los Angeles employers must provide six days (48 hours) of paid sick leave per year. Even if a business is not within city limits, if an employee performs at least two hours of work per week within the city, they accrue paid sick leave for the hours they work within the city limits. Like the state law and the San Diego law, the new Los Angeles law requires that all employees receive this sick leave (or participate in an equally generous PTO plan), including part-time and temporary employees, who must accrue this benefit at the rate of one hour for every 30 hours worked, and they must be able to access it after 90 days of employment. Also like the state law, the benefit may be front loaded or accrued and carried over to the next year.<br />
<br />
<b>Santa Monica</b><br />
<br />
Starting January 1, 2017, Santa Monica employers with more than 50 employees must provide nine days (72 hours) of paid sick leave. The application, accrual, and carryover procedures are the same as the San Diego and Los Angeles laws.<br />
<div>
<br /></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-80034678032166844512016-06-18T07:54:00.000-07:002016-06-18T08:06:19.861-07:00California Sick Law Law ExplainedThe laws regarding sick leave law in California can be confusing and are complex. However the following is a summary of the law as of June 15, 2016. Please note that local city governments can establish their own ordinances regarding sick leave. These ordinances will control as long as they offer at least the minimum amount of sick leave offered under state law. The city counsel for the City of Los Angeles has recently passed such an ordinance which will probably take effect in July 2016:<br />
<br />
The state’s sick leave law went into effect on January 1, 2015. However, the right to begin accruing and taking sick leave under this law did not go into effect until July 1, 2015.<br />
<br />
To qualify for sick leave, an employee must:<br />
• Work for the same employer, on or after January 1, 2015, for at least 30 days<br />
within a year in California, and<br />
• Satisfy a 90-day employment period (similar to a probationary period) before taking any sick leave.<br />
<br />
If an employee works less than 30 calendar days within a year for the same employer in California, then you are not entitled to paid sick leave under this law.<br />
<br />
The 90 calendar day period works like a probationary period. If an employee works less than 90 days for their employer, the employee are not entitled to take paid sick leave.<br />
<br />
A qualifying employee began to accrue paid sick leave beginning on July 1, 2015, or if hired after that date on the first day of employment. An employee is entitled to use (take) paid sick leave beginning on the 90th day of employment.<br />
<br />
All employees who work at least 30 days for the same employer within a year in California, including part-time, per diem, and temporary employees, are covered by this new law with some specific exceptions. Employees exempt from the paid sick leave law include:<br />
<br />
• Providers of publicly-funded In-Home Supportive Services (IHSS)<br />
• Employees covered by collective bargaining agreements with specified<br />
provisions<br />
• Individuals employed by an air carrier as a flight deck or cabin crew member, if they receive compensated time off at least equivalent to the requirements of the new law<br />
• Retired annuitants working for governmental entities.<br />
<br />
Employees of a staffing agency are covered by the law. Therefore, whoever is the employer or joint employer is required to provide paid sick leave to qualifying employees.<br />
<br />
The law requires employers to provide and allow employees to use at least 24 hours or three days of paid sick leave per year. Employers adopting new policies to comply with the law may choose whether to have an “accrual” policy or a “no accrual/up front” policy. An accrual policy is one where employees earn sick leave over time, with the accrued time carrying over in each year of employment. In general terms (and subject to some exceptions), employees under an accrual plan must earn at least one hour of paid sick leave for each 30 hours of work (the 1:30 schedule). Although employers may adopt or keep other types of accrual schedules, the schedule must result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment.<br />
<br />
Although employees may accrue more than three days of paid sick leave under the one hour for every 30 hours worked (or under an alternative accrual standard) under an accrual method, the law allows employers to limit an employee’s use of paid sick leave to 24 hours or three days during a year. The law also allows an employer to limit an employee’s total accrued paid sick leave to no more than 48 hours or six days.<br />
<br />
A no accrual/up front policy makes the full amount of sick leave for the year available immediately at the beginning of a year-long period, except for initial hires where it must be available for use by the 120th day of employment. The employer must provide at least 24 hours or three days of paid sick leave per year and the full amount of this leave must be available for the employee’s use from the beginning of each year of employment, calendar year, or 12-month period. Note: the employer determines how the year will be calculated, whether it tracks a typical<br />
calendar year, fiscal year, or other 12-month period). Lastly, the law allows certain types of existing sick leave policies to be “grandfathered,” if the policy was in existence prior to January 1, 2015. These policies are deemed to comply with the new law if:<br />
<br />
• The accrual provides no less than one day or 8 hours of accrued paid sick leave or paid time off within three months of employment per year, and<br />
• The employee was eligible to earn at least three days or 24 hours of paid sick leave or paid time off within 9 months of employment.<br />
Any modification to a grandfathered sick leave or paid time off policy will nullify its qualification as a grandfathered policy and the employer will be required to comply with the requirements under the new law.<br />
<br />
Because paid sick leave accrued beginning on July 1, 2015, or the first day of employment if hired after July 1, 2015, the 12 month period will vary by hire date for those employees hired after July 1, 2015. Therefore, the measurement will mostly be tracked by the employee’s anniversary date.<br />
<br />
An employer may elect to advance sick leave to an employee before it is<br />
accrued, but there is no requirement for an employer to do so under this law.<br />
<br />
If a seasonal employee works only 60 days one year but returns to the same employer within one year and work another 60 days the paid sick leave law requires that your accrued and unused sick leave be restored to you if you return to the same employer within 12 months from the<br />
previous separation. However, an employer is not required to restore previously accrued and unused paid time off (PTO), if the sick leave was provided pursuant to a PTO policy covering<br />
sick leave which was paid or cashed out to the employee at the end of the previous employment with that employer.<br />
<br />
If an employee returns to work for the same employer after more than one year The paid sick leave law does not require that your accrued sick leave be restored to the employee.<br />
<br />
An employer may provide sick leave through its own existing sick leave or paid time off plan, or establish different plans for different categories of workers. Each plan must satisfy the accrual, carryover, and use requirements of the new law. In general terms, the minimum requirements under the new law are that an employer must provide at least 24 hours or three days of paid sick leave per year. A paid time off (PTO) plan that employees may use for the same purposes of paid sick leave, and that complies with all applicable minimum requirements of the new law, may continue to be used. In general terms, the law provides that, employers who adopt an accrual plan for paid sick leave, employees must accrue at least 1 hour of paid sick leave for each 30 hours of work. An employer may use a different accrual method, as long as the accrual is on a regular basis and results in the employee having no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment, or each calendar year, or in each 12-month period.<br />
<br />
The law also has a “grandfather” clause, which allows employers with paid sick leave policies or paid time off policies that were in existence prior to January 1, 2015, to maintain those policies and be deemed in compliance as long as they meet the following requirements:<br />
<br />
• The accrual provides no less than one day or 8 hours of accrued paid sick leave or paid time off within three months of employment per year, and<br />
• The employee was eligible to earn at least three days or 24 hours of paid sick leave or paid time off within 9 months of employment.<br />
Sick leave or annual leave provided to governmental employees pursuant to either certain Government Code provisions or a memorandum of understanding meet the accrual requirements.<br />
<br />
The law states that an employer is not required to have an accrual or carryover policy for paid sick leave if the “full amount of leave” is provided to employees at the beginning of each year of employment, calendar year or 12-month period. The<br />
“full amount of leave” that an employer is required to provide under this provision is at least 24 hours or three days of paid sick leave. For initial hires, however, the employee must still meet the 90-day employment requirement prior to taking any paid sick leave.<br />
<br />
Under the accrual method, an employee can carry over unused sick leave from one year to the next. However, an employer may limit or cap the overall amount of sick leave an employee may accrue to 6 days or 48 hours.<br />
<br />
If an employer provides paid time off (PTO) which an employee can use for vacation or illness an employer will not have to provide additional sick leave as long as the employer provides the minimum of at least 24 hours or three days per year of paid leave that can be used for health care and that meets other requirements in the law.<br />
<br />
If an employer offers unlimited time off the notice, itemized pay stub or separate written statement provided with the payment of wages meets the necessary requirements by indicating the paid sick leave is “unlimited”.<br />
<br />
An employee can take paid sick leave for himself/herself or a family member, for preventive care or diagnosis, care or treatment of an existing health condition, or for specified purposes if you are a victim of domestic violence, sexual assault or stalking. Family members include the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, and sibling. Preventive care would include annual physicals or flu shots.<br />
<br />
The employee may decide how much paid sick leave he or she wants to use (for example, whether the employee wants to take an entire day, or only part of a day). The employer can require you to take a minimum of at least two hours of paid sick leave at a time, but otherwise the determination of how much time is needed is left to the employee.<br />
<br />
The employee must notify the employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, the employee need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.<br />
<br />
The law requires that an employer provide payment for sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken. This does not prevent an employer from making the adjustment in the pay for the same payroll period in which the leave was taken, but it permits an employer to delay the adjustment until the next payroll. For example, if an employee did not clock in for a shift and therefore was not paid for it but utilized his/her paid sick leave, the employer would have to pay the employee not later than the following pay period and account for it in the wage stub or separate itemized wage statement for that following regular pay period. For nonexempt employees, the employee will be paid his/her regular or normal non-overtime hourly rate for the amount of time that the employee took as paid sick leave.<br />
<br />
Employers must show how many days of sick leave an employee has available on the employee's pay stub, or on a document issued the same day as your paycheck. If an employer provides unlimited paid sick leave or unlimited paid time off, the employer may indicate "unlimited" on your pay stub or other document provided to you the same day as your wages. Employers also must keep records showing how many paid sick day you earned and used for three years. This information may be stored on documents available to employees electronically.<br />
<br />
The law states that an employer is not obligated to inquire into, or record, the purposes for which an employee uses paid sick leave or paid time off.<br />
<br />
If employees are subject to local sick leave ordinances, the employer must comply with both the local and California laws, which may differ in some respects. The employer must provide the provision or benefit that is most generous to the employee. Please note: The City of Los Angeles has drafted an ordinance going into effect in July 2016 that doubles the amount of sick leave that the employer must provide to its employees. This ordinance also enlarges who is covered under compared to state law.<br />
<br />
The paid sick leave law allows employees to decide how much paid leave time to take, subject to their employer’s ability to set a two-hour minimum. For example, if an employee has accrued ten hours, he or she can request to be paid for ten hours. If the employee decides to take less time than that in paid sick leave, then he or she will be paid for the number of hours that they chose to take. Be advised, employees must take a minimum of two hours when they choose to take sick leave if the employer sets a two-hour minimum. If an employee on an alternative work schedule is sick for three days and has accrued only 24 hours of paid sick leave, the employer will pay for the 24 hours accrued. However, if the employee has accrued 30 hours of paid sick leave they must be paid for the full 30 hours, or three days, of work.<br />
<br />
An employee does not have the right to cash out his/her unused sick days unless their employer's policy provides for a payout.<br />
<br />
Beginning January 1, 2015, employers were and are required to display a poster in a conspicuous place at the workplace. The workplace posting must contain the following information:<br />
• That an employee is entitled to accrue, request, and use paid sick days;<br />
• The amount of sick days provided for and the terms of use of paid sick days;<br />
• That retaliation or discrimination against an employee who requests paid sick days or uses paid sick days or both is prohibited; and<br />
• That an employee has the right under this law to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against an employee. The Labor Commissioner has a poster on its website that employers can use to comply with the law.<br />
<br />
After January 1, 2015, employers were and are required to provide most employees with an individualized Notice to Employee (required under Labor Code section 2810.5) that includes paid sick leave information. A Notice to Employee form revised to reflect the new sick leave law by the Labor Commissioner’s Office must be used for employees hired after January 1, 2015. For employees hired prior to January 1, 2015, the employer is required to provide a revised Notice to Employee or otherwise inform each employee of the information regarding paid sick leave, using any of the alternative methods specified in Labor Code section 2810.5(b). The Notice to Employee provisions of Labor Code section 2810.5 do not apply to exempt employees, most government employees, or to employees covered by a valid collective bargaining agreement that meets certain specifications.<br />
<br />
To avoid misinformation or misunderstanding regarding an employer’s paid time off or paid sick leave policy, employers are encouraged to ensure that employees are made fully aware of the terms and conditions of their policy. Although the notice requirements of Labor Code section 2810.5 do not apply to employees who are exempt from the payment of overtime, employees who are exempt from the payment of overtime are covered by this new paid sick leave law.<br />
<div>
<br /></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-36493815967541907832016-06-16T11:16:00.001-07:002016-06-16T11:16:33.951-07:00Ninth Circuit Case on Rounding of Employees TimeIn the 9th Circuit case of <u><i>Andrew Corbin v. Time Warner Entertainment- Advance</i></u> the Court addressed the issue of employers who round off time worked by employees in computing their wages.<br />
<br />
In the Corbin case the employer rounded time off to the nearest quarter hour. As stated by the Court, "This case turns on $15.02 and one minute. $15.02 represents the total amount of compensation that Plaintiff Andre Corbin (“Corbin”) alleges he has lost due to his employer’s, Defendant Time Warner EntertainmentAdvance/Newhouse Partnership (“TWEAN”), compensation policy that rounds all employee time stamps to the nearest quarter-hour. One minute represents the total amount of time<br />
for which Corbin alleges he was not compensated as he once mistakenly opened an auxiliary computer program before clocking into TWEAN’s timekeeping software platform. $15.02 in lost wages and one minute of uncompensated time, Corbin argued before the district court, entitled him to relief under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq., and various California state employment laws. The district court disagreed and granted summary judgment to TWEAN. The court determined that because the company’s rounding policy was neutral on its face and in practice, TWEAN’s policy complied with the federal rounding regulation, see 29 C.F.R. § 785.48(b), and Corbin’s $15.02 in lost wages did not present an issue of material fact. The court also held that the one minute of uncompensated time Corbin spent logging into an auxiliary computer<br />
program before logginginto TWEAN’s timekeeping software was de minimis as a matter of law."<br />
<br />
Time Warner, using a software program know as a "soft phone system", tracked each employee's hours by having the employee essentially log in to their phone system. The employee had to do this to be allowed to start receiving phone calls at the call center where their job of course required them to respond to customers over the phone. For example, an employee who clocked in at 8:07 a.m. to begin his workday would see his wage statement reflect a clock-in of 8:00 a.m., rounding his time to the nearest quarter-hour and crediting him with seven minutes of work time for which he was not actually on the clock. Similarly, an employee who clocks out at 5:05 p.m. to end her workday would see her wage statement reflect a clock-out of 5:00 p.m., again rounding her time to the nearest quarter-hour and deducting five minutes of work time for which she was actually on the<br />
clock. At the end of each pay period, TWEAN’s non-exempt employees are paid in accordance with these rounded figures.<br />
<div>
<br /></div>
<div>
<div>
The Court noted that for more than fifty years, a federal regulation has endorsed the use of “‘Rounding’ practices.” See Wage and Hour Division, Department of Labor, 26 Fed. Reg. 190, 195</div>
<div>
(January 11, 1961). Codified at 29 C.F.R. § 785.48(b), the current regulation reads in full:</div>
<div>
<br /></div>
<div>
“Rounding” practices. It has been found that in some industries, particularly where time</div>
<div>
clocks are used, there has been the practice for many years of recording the employees’</div>
<div>
starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or</div>
<div>
quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a</div>
<div>
period of time, in failure to compensate the employees properly for all the time they have actually worked. This regulation permits “employers to efficiently calculate hours worked without imposing any burden onemployees,” offering employers a “practical method for calculating work time” and a “neutral calculation tool for providing full payment to employees.”</div>
</div>
<div>
<br /></div>
<div>
Ultimately, on the rounding of time issue the Court held:</div>
<div>
<br /></div>
<div>
"First, Corbin offers no case support for the proposition that California’s law is at odds with the federal rounding regulation and cites to no precedent that endorses his argument. Second, the only case to address Corbin’s argument, See’s Candy, explicitly rejected it. 210 Cal. App. 4th at 905–06. There, the California Court of Appeal explained that the federal rounding regulation had long successfully coexisted with FLSA’s own rule mandating overtime pay after forty hours of</div>
<div>
work over the course of a week. Id. at 906. “There is no analytical difference,” the court pointed out, “between rounding in the context of daily overtime and rounding in the context of weekly overtime.” Id. We agree. Over the long term, TWEAN’s rounding system is neutral, favoring neither employer nor employee. Third, TWEAN’s rounding policy allows employees to gain overtime compensation just as easily as it causes them to lose it. For example, an employee who clocks in for eight hours and eight minutes of work in a day, will see those eight minutes rounded up to fifteen minutes—all of which will be compensated at the overtime rate.8 Like the California Court of Appeal, we can discern no reason to analyze overtime minutes any differently than regular-time minutes, and the district court committed no error by treating them the same."</div>
<div>
<br /></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com1tag:blogger.com,1999:blog-1004616719179420126.post-33785513353672547452016-06-15T23:28:00.001-07:002016-06-15T23:30:42.308-07:00California Employment Law - PAGA (Manageable v. Unmanageable Wage Claims)The case of Brown v. American Airlines, Inc., No. CV 10-8431-AG (PJWx), 2015 WL 6735217 (C.D. Cal. Oct. 5, 2015) concerns the dismissal of PAGA claims where the claims are based on numerous individualized issues that may render the case unmanageable. <br />
<br />
PAGA allows “aggrieved employees” to bring representative actions against employers for civil penalties on behalf of themselves and other employees for violations of the Labor Code. To recover penalties, a PAGA plaintiff must prove an underlying Labor Code violation as to each allegedly aggrieved employee for each pay period for which the plaintiff seeks penalties. But to determine liability on the underlying Labor Code provisions, the court may need to adjudicate issues specific to each pay period for each allegedly aggrieved employee — which raises potentially significant manageability problems.<br />
<br />
A plaintiff may be able to meet the burden of proof where the employee alleges an employer violated Labor Code section 226(a) by providing copies or exemplars of the employer's standard wage statements. However, if the employee claims that the employer violated Labor Code section 2802 by failing to reimburse business expenses would require individualized proof by each employee. The reason for the expenses and the reasons why an employer might have refused to reimburse the employee could vary greatly from employee to employee. The result of litigating such specific issues for a large number of employees could result in an unmanageable series of mini-trials.<br />
<br />
In Brown the plaintiff brought a putative class action asserting claims for failure to pay overtime wages, failure to provide accurate itemized wage statements, unlawful business practices, and PAGA penalties. The court denied the plaintiff’s motion for class certification. The employer then brought a motion to strike the PAGA claims.<br />
<br />
The court addressed defendant’s argument that the PAGA claims were unmanageable. The court determined that there would be “too many individualized assessments to determine PAGA violations concerning overtime pay.” By contrast, the court held that the wage statement claims, which were based on allegations that wage statements improperly reflected two different pay periods, were not unmanageable. Accordingly, the court granted the motion to strike the PAGA claims except for the inaccurate wage statement claims.<br />
<br />
<br />
The basic PAGA statute is <u style="font-weight: bold;">California Labor Code Section 2699</u> which states:<br />
<br />
"(a) Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.<br />
(b) For purposes of this part, "person" has the same meaning as defined in Section 18.<br />
(c) For purposes of this part, "aggrieved employee" means any<br />
person who was employed by the alleged violator and against whom one<br />
or more of the alleged violations was committed.<br />
(d) For purposes of this part, "cure" means that the employer<br />
abates each violation alleged by any aggrieved employee, the employer<br />
is in compliance with the underlying statutes as specified in the<br />
notice required by this part, and any aggrieved employee is made<br />
whole. A violation of paragraph (6) or (8) of subdivision (a) of<br />
Section 226 shall only be considered cured upon a showing that the<br />
employer has provided a fully compliant, itemized wage statement to<br />
each aggrieved employee for each pay period for the three-year period<br />
prior to the date of the written notice sent pursuant to paragraph<br />
(1) of subdivision (c) of Section 2699.3.<br />
(e) (1) For purposes of this part, whenever the Labor and<br />
Workforce Development Agency, or any of its departments, divisions,<br />
commissions, boards, agencies, or employees, has discretion to assess<br />
a civil penalty, a court is authorized to exercise the same<br />
discretion, subject to the same limitations and conditions, to assess<br />
a civil penalty.<br />
(2) In any action by an aggrieved employee seeking recovery of a<br />
civil penalty available under subdivision (a) or (f), a court may<br />
award a lesser amount than the maximum civil penalty amount specified<br />
by this part if, based on the facts and circumstances of the<br />
particular case, to do otherwise would result in an award that is<br />
unjust, arbitrary and oppressive, or confiscatory.<br />
(f) For all provisions of this code except those for which a civil<br />
penalty is specifically provided, there is established a civil<br />
penalty for a violation of these provisions, as follows:<br />
(1) If, at the time of the alleged violation, the person does not<br />
employ one or more employees, the civil penalty is five hundred<br />
dollars ($500).<br />
(2) If, at the time of the alleged violation, the person employs<br />
one or more employees, the civil penalty is one hundred dollars<br />
($100) for each aggrieved employee per pay period for the initial<br />
violation and two hundred dollars ($200) for each aggrieved employee<br />
per pay period for each subsequent violation.<br />
(3) If the alleged violation is a failure to act by the Labor and<br />
Workplace Development Agency, or any of its departments, divisions,<br />
commissions, boards, agencies, or employees, there shall be no civil<br />
penalty.<br />
(g) (1) Except as provided in paragraph (2), an aggrieved employee<br />
may recover the civil penalty described in subdivision (f) in a<br />
civil action pursuant to the procedures specified in Section 2699.3<br />
filed on behalf of himself or herself and other current or former<br />
employees against whom one or more of the alleged violations was<br />
committed. Any employee who prevails in any action shall be entitled<br />
to an award of reasonable attorney's fees and costs. Nothing in this<br />
part shall operate to limit an employee's right to pursue or recover<br />
other remedies available under state or federal law, either<br />
separately or concurrently with an action taken under this part.<br />
(2) No action shall be brought under this part for any violation<br />
of a posting, notice, agency reporting, or filing requirement of this<br />
code, except where the filing or reporting requirement involves<br />
mandatory payroll or workplace injury reporting.<br />
(h) No action may be brought under this section by an aggrieved<br />
employee if the agency or any of its departments, divisions,<br />
commissions, boards, agencies, or employees, on the same facts and<br />
theories, cites a person within the timeframes set forth in Section<br />
2699.3 for a violation of the same section or sections of the Labor<br />
Code under which the aggrieved employee is attempting to recover a<br />
civil penalty on behalf of himself or herself or others or initiates<br />
a proceeding pursuant to Section 98.3.<br />
(i) Except as provided in subdivision (j), civil penalties<br />
recovered by aggrieved employees shall be distributed as follows: 75<br />
percent to the Labor and Workforce Development Agency for enforcement<br />
of labor laws and education of employers and employees about their<br />
rights and responsibilities under this code, to be continuously<br />
appropriated to supplement and not supplant the funding to the agency<br />
for those purposes; and 25 percent to the aggrieved employees.<br />
(j) Civil penalties recovered under paragraph (1) of subdivision<br />
(f) shall be distributed to the Labor and Workforce Development<br />
Agency for enforcement of labor laws and education of employers and<br />
employees about their rights and responsibilities under this code, to<br />
be continuously appropriated to supplement and not supplant the<br />
funding to the agency for those purposes.<br />
(k) Nothing contained in this part is intended to alter or<br />
otherwise affect the exclusive remedy provided by the workers'<br />
compensation provisions of this code for liability against an<br />
employer for the compensation for any injury to or death of an<br />
employee arising out of and in the course of employment.<br />
(l) The superior court shall review and approve any penalties<br />
sought as part of a proposed settlement agreement pursuant to this<br />
part.<br />
(m) This section shall not apply to the recovery of administrative<br />
and civil penalties in connection with the workers' compensation law<br />
as contained in Division 1 (commencing with Section 50) and Division<br />
4 (commencing with Section 3200), including, but not limited to,<br />
Sections 129.5 and 132a.<br />
(n) The agency or any of its departments, divisions, commissions,<br />
boards, or agencies may promulgate regulations to implement the<br />
provisions of this part.<br />
<br />
Jacobs & Dodds<br />
2151 Michelson Drive<br />
Ste. 266<br />
Irvine, CA 92612<br />
(949) 645-7300<br />
<br />
<br />
<br />
<br />Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com1tag:blogger.com,1999:blog-1004616719179420126.post-18036942587734983072016-05-22T10:00:00.000-07:002016-05-22T10:00:49.380-07:00California Hourly Wage and Effect on "Exempt Employees"On January 1, 2016, California’s minimum wage increased to $10.00 per hour.<br />
<br />
California’s overtime laws require employers to compensate “non-exempt” employees who work in excess of eight hours in one workday or in excess of 40 hours in one workweek, at a rate of either one and one-half or two times the regular rate of pay, depending on the amount of excess time worked. Exempt status is determined, in substantial part, by whether an employee earns a monthly salary of at least two times the state minimum wage of $10.00 per hour. The minimum wage increase, therefore, now sets a higher compensation threshold that employees must meet to reach exempt status. As of January 1, 2016 an employee must earn at least $20.00/hr. to be considered for exempt status. Of course if an employee meets all the criteria for exempt status the employee is not eligible for over time.<br />
<br />
Criteria for exempt status for private sector employees are set forth by California’s Labor Code and by the Industrial Welfare Commission.<br />
<br />
Importantly, however, while employees must be paid minimum wage pursuant to local ordinances, exempt status for employees is based on California’s state mandated minimum wage. The requirement of Labor Code section 515.8 requires a monthly salary of “two times the state minimum wage for full-time employment.” In other words, section 515.8 does not look to local minimum wage in determining exempt status. This is important to remember where a business is located in a county where the required minimum wage is in excess of $10.00/hour. San Francisco and Los Angeles are two such counties.<br />
<br />
In light of the raise in the minimum wage, employers should review the compensation schedules of their employees to ensure compliance with state and local minimum wage requirements. Businesses should confirm that all employees are being compensated at a minimum rate of at least $10.00 per hour for all hours worked. Employers should also review the annual compensation for their exempt employees and ensure that the company meets the new requirement of being compensated at an annual rate of at least $41,600 per year. If an employee's compensation does not meet this threshold, then he or she will not be eligible for “exempt” status and must be paid over time.<br />
<br />
Jacobs & Dodds<br />
2151 Michelson Drive<br />
Ste. 266<br />
Irvine, CA 92612<br />
(949) 645-7300Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-77324237083392703112013-05-19T10:55:00.003-07:002013-05-20T10:20:08.063-07:00The Importance of Employee Handbooks in California<div align="left">
<span class="size12 Helvetica12" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><b>Although there are many advantages to
utilizing an employee handbook, from a purely legal perspective, the employer is
usually hoping to establish ground rules of acceptable conduct and prevent the
company from being subjected to legal liability. The sources of such liability
are many, from wage disputes to wrongful termination, discrimination and
harassment claims.</b></span></div>
<br />
<div align="left">
<span class="size12 Helvetica12" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><b>A good employee handbook will not prevent
such a claim from arising, but can assist the company in defending its
actions.</b></span></div>
<br />
<div align="left">
<span class="size12 Helvetica12" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><b>A poorly drafted handbook can actually be
used against the company to prove the claimant's case. For example, some
preprinted handbooks contain sections dealing with the progressive discipline of
employees, containing a comprehensive scheme from oral warning to termination.
Courts have found that a company that does not follow this disciplinary scheme
can be held liable for wrongful termination. Other courts have held that such
policies may imply that the company can only terminate for good cause. This can
be a problem in California where employees are typically "at-will" employees.
This means that an employee can be terminated any time, and for any reason (so
long as the reason is not based on race, religion, etc....). However, if an
employer adopts a progressive discipline system, the company may find that its
employees are no longer "at will" employees.</b></span></div>
<br />
<div align="left">
<span class="size12 Helvetica12" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><b>Many prepared handbooks contain so-called
"use it or lose it" provisions governing vacation pay. In fact, the California
Supreme Court has declared such policies to be illegal. A company that utilizes
such a policy to forfeit the accrued but unused vacation pay of a departing
employee can find itself liable not only for the monetary value of the accrued
vacation time, but interest and penalties equal to 30 days worth of the
employee's salary.</b></span></div>
<br />
<div align="left">
<span class="size12 Helvetica12" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><b>The decision to create and enforce
company policy in a written document is an excellent idea. However, care must
be taken to make sure that the employee handbook complies with all state and
federal laws and regulations. Once in place, the employee handbook must be
updated at least once, if not twice, a year.</b></span></div>
<br />
<div align="left">
<span class="size12 Helvetica12" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><b>The Orange County lawyers at Jacobs and Dodds can assist you in drafting your company's employee
handbook. Call us at (949) 645-7300 or visit us at our web site at <a href="http://www.newportbeachattorneys.org/">www.newportbeachattorneys.org</a></b></span></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-27095144710502460252013-05-04T16:10:00.001-07:002013-05-04T16:10:19.410-07:00Mediation vs. Arbitration<!-- </hs:element36> --><!-- <hs:element40> -->
<br />
<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjF6WFPqhZfWuGX20UEojq7EQlfDsq5j2br0mzyqUMUBtGluYVTmWvu2i_04T1WMySyokhPBloTt1Jjq7EVw-LJbA3SShMNCcOQ_B4w61g3joRwqaM8QEe0AYEErATtO-uiVx-Gp9JeDbY/s1600/Business+Dispute.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjF6WFPqhZfWuGX20UEojq7EQlfDsq5j2br0mzyqUMUBtGluYVTmWvu2i_04T1WMySyokhPBloTt1Jjq7EVw-LJbA3SShMNCcOQ_B4w61g3joRwqaM8QEe0AYEErATtO-uiVx-Gp9JeDbY/s200/Business+Dispute.jpg" width="178" /></a></div>
<div align="center" class="MsoNormal" style="background: white; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman"; mso-no-proof: yes;"><v:shapetype coordsize="21600,21600" filled="f" id="_x0000_t75" o:preferrelative="t" o:spt="75" path="m@4@5l@4@11@9@11@9@5xe" stroked="f">
<v:stroke joinstyle="miter">
<v:formulas>
<v:f eqn="if lineDrawn pixelLineWidth 0">
<v:f eqn="sum @0 1 0">
<v:f eqn="sum 0 0 @1">
<v:f eqn="prod @2 1 2">
<v:f eqn="prod @3 21600 pixelWidth">
<v:f eqn="prod @3 21600 pixelHeight">
<v:f eqn="sum @0 0 1">
<v:f eqn="prod @6 1 2">
<v:f eqn="prod @7 21600 pixelWidth">
<v:f eqn="sum @8 21600 0">
<v:f eqn="prod @7 21600 pixelHeight">
<v:f eqn="sum @10 21600 0">
</v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:formulas>
<v:path gradientshapeok="t" o:connecttype="rect" o:extrusionok="f">
<o:lock aspectratio="t" v:ext="edit">
</o:lock></v:path></v:stroke></v:shapetype></span><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<span style="color: black;"><span style="font-family: inherit;"><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">In a perfect world there would be no
business lawsuits because the parties involved would resolve their differences
without resorting to court action. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></span></span><br />
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">At Jacobs & Dodds each of our
lawyers has been trying cases for over 30 years. Last year partner Paul Jacobs
spent over four months in trial. However, before resorting to litigation, every
attempt is made to settle our clients' business disputes before a lawsuit is
filed. There are several alternative dispute resolution methods that can be
effective in resolving business disputes. The two most common are mediation and
arbitration.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><u><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Mediation</span></u><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Simply put, a mediator seeks to help
parties to develop a shared understanding of the conflict and to work toward
building a practical and lasting resolution. Mediation usually does not take
place in front of a judge (although it can). Mediation typically takes place
before a lawsuit is filed, although mediation can occur during the course of
litigation. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Several different styles of mediation
exist . Two of the more common forms are evaluative and transformative.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Evaluative mediation has an advisory component
because the mediator evaluates the strengths and weaknesses of each side's
legal position. Transformative mediators do not approach mediation in this
manner. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Transformative mediation, in contrast,
looks at conflict as a crisis in communication between two or more parties and
seeks to help resolve the conflict thereby allowing the parties to overcome
their differences. The agreement that arises from this type of mediation occurs
as a natural outcome of the resolution of conflict.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Mediation serves to identify the
disputed issues and to generate options that help the parties reach a
mutually-satisfactory resolution. If a mediation is successful, the settlement
reached is agreed to by all of the parties. This contrasts with litigation,
which normally settles the dispute in favor of the party with the strongest
legal argument. A judge or jury makes the determination, not the parties.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><u><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Arbitration</span></u><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";"> </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="color: black;"><span style="font-family: inherit;"><span style="color: #000066; font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">There is some confusion about the
difference between mediation and arbitration. While mediation attempts to
resolve business disputes, primarily by defining the dispute and then working
to find a practical resolution, arbitration involves the appointment of an
arbitrator who listens to the facts concerning the business dispute and then
applies the applicable law and renders a decision (award) that may be binding
or non-binding on the parties.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></span></span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<!-- </hs:element40> --><!-- <hs:element43> --><span style="color: black; font-family: inherit;">
</span><br />
<!-- </hs:element43> --><!-- <hs:realtracker> --><span style="color: black; font-family: inherit;">
<img height="5" src="http://t8.prnx.net/t.asp?pn=8&user=1750144476&to=-180&e=www.californiabusinessattorneys.com&pp=Disputeresolution&d=1551388509&l=215&tt=05%2F04%2F2013+16%3A00&j=1&m=0&spd=377&c=32&p3=Index&w=991&h=793&ck=1&ref=http%3A//www.californiabusinessattorneys.com/&f=1&sl=1" style="bottom: 0px; position: absolute; right: 0px;" width="5" /></span>
<noscript></noscript><!-- </hs:realtracker> -->Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com1tag:blogger.com,1999:blog-1004616719179420126.post-51565907961083688462013-04-28T11:05:00.000-07:002013-04-28T11:05:10.989-07:00What is a California Corporation?<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> A California corporation is a distinct legal entity
separate and apart from its officers, directors and shareholders. As a result,
a shareholder, officer or director is not the employer of those working for the
corporation, nor are they considered the owner of the corporate property. As a
separate legal entity, a corporation has the power to act in any way permitted
by the laws that created it. A corporation can own and convey property. It can
sue and be sued. A corporation can commit torts and crimes.</b></span></span></div>
<span style="color: black;">
</span><a href="http://www.californiabusinessattorneys.com/stock_certifcate.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><span style="color: black;"><img alt="" border="0" height="155" src="http://www.californiabusinessattorneys.com/stock_certifcate.jpg" width="124" /></span></a><br />
<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> Although a corporation can sue or be sued
in its name, with the exception of small claims court, it cannot appear in court
and represent itself. Nor can it appear on its own behalf as defendant in a
criminal proceeding. In general a corporation must be represented by a lawyer
when it appears in a civil or criminal case. Even where a sole shareholder's
interests are identical to those of the corporation, a non lawyer shareholder
cannot intervene in the proceeding as a method of circumventing the requirement
that the corporation be represented by an attorney. </b></span></span></div>
<span style="color: black;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> As a separate legal entity, the
corporation is responsible for its own debts. Normally, the shareholders,
directors or officers of the corporation are not legally responsible for
corporate liabilities. If there are losses in the business, the corporation
bears them to the extent of its own resources; the stockholders indirectly bear
them in that the value of their stock declines more or less in proportion to
such losses. However, the shareholders may be held personally liable for
corporate obligations if they have personally guaranteed them or if “alter ego
liability” is imposed. They may also be liable for their own tortious conduct in
ordering, authorizing or participating in corporate wrongdoing.
</b></span></span></div>
<span style="color: black;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> As a general rule, management and control
of a corporation is vested in the board of directors that are elected by the
shareholders of the corporation. The directors generally make policy and major
decisions but do not individually represent the corporation in dealings with
third parties. Dealings with third parties are conducted through the
corporation's officers and employees, to whom authority is delegated by the
directors. Although the shareholders elect the board of directors, they do not
directly control the board's activities or decisions.</b></span></span></div>
<span style="color: black;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> In a corporation, the same persons may be
stockholders, directors and officers of the corporation (and usually are in
small corporations). </b></span></span></div>
<span style="color: black;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> A corporation can be created only by
complying with California's General Corporation Law. The law requires filing of
articles of incorporation containing certain essential provisions and the
prepayment of certain fees, before a corporation can be
formed.</b></span></span></div>
<span style="color: black;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> As a separate legal entity, the
corporation is capable of continuing indefinitely. Its existence is not affected
by death or incapacity of its shareholders, officers or directors, or by
transfer of its shares from one person to another.</b></span></span></div>
<span style="color: black;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> Corporations can be "C" corporations,
Sub chapter "S" corporations, close corporations or under certain circumstances,
professional corporations.</b></span></span></div>
<span style="color: black;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="font-family: Helvetica, Arial, sans-serif;"><span style="color: black;"><b> "C" corporations pay tax on taxable
income generated by the corporation. A "C" corporation is a separate taxable
entity in the eyes of the state franchise tax board and the IRS. An "S"
corporation has its taxable income treated like the income of a partnership or
sole proprietorship. In other words, an "S" corporation is a pass through tax
entity. The income or loss of the company is reflected on the tax return of the
owners of the company. To qualify as an "S" corporation there must be fewer
than 75 shareholders, and the shareholders cannot be non-resident aliens.
</b></span></span></div>
<!-- </hs:element11> --><!-- <hs:element22> --><span style="color: black;">
</span><br />
<!-- </hs:element22> --><!-- <hs:element26> --><span style="color: black;">
</span><br />
<!-- </hs:element26> --><!-- <hs:element29> --><span style="color: black;">
</span><br />
<div id="element29" style="height: 90px; left: 1px; position: absolute; top: 585px; width: 135px; z-index: 7;">
<span style="clear: left; color: black; float: left; margin-bottom: 1em; margin-right: 1em;"></span></div>
<!-- </hs:element29> --><!-- <hs:element34> --><span style="color: black;">
</span><br />
<div id="element34" style="height: 155px; left: 6px; position: absolute; top: 202px; width: 124px; z-index: 8;">
<span style="color: black;"></span></div>
<!-- </hs:element34> --><!-- <hs:element39> --><span style="color: black;">
</span><br />
<!-- </hs:element39> --><!-- <hs:element40> --><span style="color: black;">
</span><br />
<!-- </hs:element40> --><!-- <hs:element41> --><span style="color: black;">
</span><br />
<!-- </hs:element41> --><!-- <hs:element42> --><span style="color: black;">
</span><br />
<!-- </hs:element42> --><!-- <hs:realtracker> --><span style="color: black;">
<img height="5" src="http://t8.prnx.net/t.asp?pn=8&user=1750144476&to=-180&e=www.californiabusinessattorneys.com&pp=Corporation&d=1709905050&l=215&tt=04%2F28%2F2013+10%3A57&j=1&m=0&spd=105&c=32&p3=Incorporation&w=991&h=793&ck=1&ref=http%3A//www.californiabusinessattorneys.com/Incorporation.html&f=1&sl=1" style="bottom: 0px; position: absolute; right: 0px;" width="5" /></span>
<noscript></noscript><!-- </hs:realtracker> -->Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-55947234349754750202013-04-14T18:02:00.001-07:002013-04-14T18:02:09.016-07:00Alter Ego Law In California<div>
<span class="size14 Helvetica14">When you incorporate in California, your new
corporation and its shareholders are suppose to be distinct and separate
entities. A key principle of corporate law is that a shareholder of a
corporation is not personally liable for obligations of the corporation beyond
the extent of the shareholder's investment in the corporation. Limited liability
serves an important public policy, encouraging investment by limiting risk.
However, limited liability for shareholders is not absolute or automatic and can
be defeated in instances when the corporation is deemed to be the alter ego of
the shareholders, and the veil of the corporation is pierced. </span></div>
<br />
<div>
<span class="size14 Helvetica14"><u><b>Piercing the Veil of California
Corporations</b></u></span></div>
<br />
<div>
<span class="size14 Helvetica14"> Courts apply what is referred to as the
"alter ego" doctrine to determine whether the veil of a particular corporation
should be pierced (i.e., whether the corporate identity should be disregarded
and liability should be placed on the shareholders). The alter ego doctrine
provides that the corporate veil may be pierced when: </span></div>
<br />
<div>
<span class="size14 Helvetica14">1. There is such a unity of interest
between the shareholders and the corporation that the separate personalities of
the corporation and the shareholders do not in reality exist;
and</span></div>
<br />
<div>
<span class="size14 Helvetica14">2. Recognition of the shareholders and
the corporation as separate entities would be inequitable. </span></div>
<br />
<div>
<span class="size14 Helvetica14"> There is no one test to determine when
the corporate veil will be pierced. In California, the courts look at a number
of factors, including the following: </span></div>
<br />
<div>
<span class="size14 Helvetica14">a. Commingling of funds and other
assets.</span></div>
<br />
<div>
<span class="size14 Helvetica14">b. Failure to segregate funds of the
separate entities, and the unauthorized diversion of corporate funds or assets
to other than corporate uses. </span></div>
<br />
<div>
<span class="size14 Helvetica14">c. The treatment by an individual of the
assets of the corporation as his/her own.</span></div>
<br />
<div>
<span class="size14 Helvetica14">d. The failure to obtain authority to
issue stock or to subscribe to or issue the stock. </span></div>
<br />
<div>
<span class="size14 Helvetica14">e. The holding out by an individual that
he is personally liable for the debts of the corporation.</span></div>
<br />
<div>
<span class="size14 Helvetica14">f. The failure to maintain minutes or
adequate corporate records, and the confusion of the records of the separate
entities.</span></div>
<br />
<div>
<span class="size14 Helvetica14"> If there are two or more corporations
that are owned or controlled by the same individuals, the following added
factors are important:</span></div>
<br />
<div>
<span class="size14 Helvetica14">a. The identical equitable ownership in
the two entities.</span></div>
<br />
<div>
<span class="size14 Helvetica14">b. The identification of the equitable
owners thereof with the domination and control of the two
entities.</span></div>
<br />
<div>
<span class="size14 Helvetica14">c. Identification of the directors and
officers of the two entities in the responsible supervision and
management.</span></div>
<br />
<div>
<span class="size14 Helvetica14">d. Sole ownership of all of the stock in
a corporation by one individual or the members of a family.</span></div>
<br />
<div>
<span class="size14 Helvetica14">e. The use of the same office or
business location.</span></div>
<br />
<div>
<span class="size14 Helvetica14">f. The employment of the same employees
and/or attorney.</span></div>
<br />
<div>
<span class="size14 Helvetica14">g. The failure to adequately capitalize
a corporation.</span></div>
<br />
<div>
<span class="size14 Helvetica14">h. The total absence of corporate assets
and undercapitalization.</span></div>
<br />
<div>
<span class="size14 Helvetica14">i. The use of a corporation as a mere
shell, instrumentality or conduit for a single venture or the business of an
individual or another corporation.</span></div>
<br />
<div>
<span class="size14 Helvetica14">j. The concealment and
misrepresentation of the identity of the responsible ownership, management and
financial interest, or concealment of personal business
activities.</span></div>
<br />
<div>
<span class="size14 Helvetica14">k. The disregard of legal formalities
and the failure to maintain arm's length relationships among related
entities.</span></div>
<br />
<div>
<span class="size14 Helvetica14">l. The use of the corporate entity to
procure labor, services or merchandise for another person or
entity.</span></div>
<br />
<div>
<span class="size14 Helvetica14">m. The diversion of assets from a
corporation by or to a stockholder or other person or entity, to the detriment
of creditors, or the manipulation of assets and liabilities between entities so
as to concentrate the assets in one and the liabilities in
another.</span></div>
<br />
<div>
<span class="size14 Helvetica14">n. The contracting with another with
intent to avoid performance by use of a corporate entity as a shield against
personal liability, or the use of a corporation as a subterfuge of illegal
transactions.</span></div>
<br />
<div>
<span class="size14 Helvetica14">o. The formation and use of a
corporation to transfer to it the existing liability of another person or
entity.</span></div>
<span class="size14 Helvetica14"></span><br />
<span class="size14 Helvetica14" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><span style="color: black; font-family: Times New Roman;">Contact the business law firm of Jacobs & Dodds if you have any questions regarding alter ego. Visit us at:</span></span><br />
<br />
<span class="size14 Helvetica14" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><a href="http://www.newportbeachattorneys.org/" target="_blank">www.newportbeachattorneys.org</a></span><br />
<span class="size14 Helvetica14" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"></span>
<br />
<div>
<span class="size14 Helvetica14" style="color: #000066; font-family: Helvetica, Arial, sans-serif;"><br /></span></div>
<!-- </hs:element10> --><!-- <hs:element16> -->
<br />
<!-- </hs:element16> --><!-- <hs:element25> -->
<br />
<!-- </hs:element25> --><!-- <hs:element26> -->
<br />
<!-- </hs:element26> --><!-- <hs:element13> -->
<br />
<!-- </hs:element13> --><!-- <hs:realtracker> -->
<img height="5" src="http://t8.prnx.net/t.asp?pn=8&user=1755852196&to=-180&e=www.caincorporations.com&pp=Alterego&d=1020734599&l=215&tt=04%2F14%2F2013+17%3A54&j=1&m=0&spd=199&c=32&p3=Process&w=991&h=793&ck=1&ref=http%3A//www.caincorporations.com/Process.html&f=1&sl=1" style="bottom: 0px; position: absolute; right: 0px;" width="5" />
<noscript></noscript><!-- </hs:realtracker> -->Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-52803930470574094692013-04-06T07:37:00.000-07:002013-04-06T07:37:35.283-07:00Business Law Firm of Jacobs & Dodds - Commercial Collections<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">The business law firm of Jacobs & Dodds specializes in handling the
collection needs of businesses seeking a commercial collection law firm with
time proven debt collection methods that are cost effective and efficient.
Using the latest technology in skip tracing and asset location, and backed by
in-house attorneys with over 30 years of commercial collection experience, our
firm is capable of handling claims from inception to post judgment. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">The amount owed on each debt must exceed $50,000.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Call us today. (949) 645-7300.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Jacobs & Dodds performs the following services
for its Orange County business clients:</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">** Advanced Skip Tracing and Asset Location</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">** Accounts Receivable Collections</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">** Commercial Account Collections</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">** Deficiency Accounts </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">** Retail Accounts Collections.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">** Commercial Unlawful Detainer Judgment
Collections.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Did you know, that the older a delinquent commercial
account becomes, the more difficult it is to collect? Statistically, once
a delinquent account reaches 90 days, on average you can expect to collect only
about .75 on the dollar. At six months, you can expect to collect only
about .50 on the dollar. At nine months, typically the best you can
expect to collect is about .25 on the dollar. Don't wait any longer on
your commercial collections. Call us today.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Unless told otherwise, we assume you wish to maintain
a professional relationship with your customers or clients. We never
forget that how we pursue your overdue accounts can, and often does, reflect on
your reputation in your industry and in your community.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-89732721935974793482013-04-03T18:08:00.001-07:002013-04-03T18:08:23.924-07:00California Breach of Contract Law Simplified<!-- </hs:element7> --><!-- <hs:element8> -->
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">The basic rule is that parties to a contract must
perform as specified in the contract unless (1) the parties agree to a change
in the contract's terms, or (2) the actions of the party who deviates from the
terms of the contract are implicitly accepted ("ratified") by the
action or non-action of the other party.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">If there is no acceptance of deviation from the
terms of the contract, and the deviation is serious enough to make any real
difference in the intended result of the contract, then the deviating party is
said to have breached the contract. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Of course if one party fails more or less entirely
to perform the contract, or totally prevents the performance of the contract by
the other party, the situation is straightforward. The situation becomes more complex
where the argument is over such things as the quality of materials, the timing
of work, or the quality of the work performed when the contract involves
services.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span><br />
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><br />
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Breach of contract leaves the nonperforming or
improperly performing party open to a claim for damages by the other party. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">The aggrieved party, to help support his/her claim
for breach, should have done all the things required of him/her under the
contract up until the time of breach, and must have done nothing to make it
impossible or unreasonably difficult for the other party to perform his/her
responsibilities under the terms of the contract. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">There are so many ways for non-performance of a
contract to occur that the courts have been forced to analyze the matter in
much more subtle terms than "breached" or "not breached."
contracts.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">The doctrine of "substantial performance"
saves a party who has largely fulfilled his obligations under a contract from
suffering major loss merely because he has unintentionally fallen short in some
particular aspect which does not affect the essence of the contract.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">The ordinary remedy for breach of contract is money
damages.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Some contracts go so far as to include an agreement
on a set amount of "liquidated damages" which are to be paid in case
something goes wrong. These are acceptable to the courts as long as the amount
of liquidated damages is a reasonable estimation of the harm that would be done
by the breach. If the amount is so excessive as to amount to a penalty or fine
rather than compensation for harm the courts will ignore the liquidated damages
clause and assess damages by actually measuring at trial the financial harm
done by the breach.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">If you want to be able to collect attorney's fees in
the event of a breach of contract, there must be an attorney's fees provision
in the contract.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">If you and the other party live in different
geographical jurisdictions, you should try to include a provision that says
that the contract is to be enforced under the laws of your jurisdiction. This
makes it possible for any litigation concerning the contract to take place in a
court near your home.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">The purpose of damages in breach of contract actions
is to place the injured party in as nearly as possible the same position he/she
would have been in had the contract been properly performed, and at least to
restore him/her as nearly as possible to the position he/she would have been in
had he/she made no contract at all. In other words, no one should suffer loss
because another has failed to perform a contract properly.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Where nonperformance is total, for example, the
damaged party should get back any money he has paid, along with additional
money to compensate him for any actual financial loss that resulted from the
nonperformance. The loss must have been a reasonably foreseeable result of the
nonperformance.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Do not expect, however, to receive money damages
designed merely to punish the breaching party for dishonesty or bad behavior. Such
"punitive damages", which are possibilities in some suits for
personal injury and other wrongs, are not available in breach of contract
actions. Of course if you can allege that you were defrauded, for example, then
you are suing for wrongdoing beyond the breach of contract, and you may receive
punitive damages.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif";"><o:p> </o:p></span></div>
<br />
<!-- </hs:element8> --><!-- <hs:element9> -->
<br />
<!-- </hs:element9> --><!-- <hs:element10> -->
<br />
<!-- </hs:element10> --><!-- <hs:element11> -->
<br />
<!-- </hs:element11> --><!-- <hs:realtracker> -->
<img height="5" src="http://t8.prnx.net/t.asp?pn=8&user=1750144476&to=-180&e=www.californiabusinessattorneys.com&pp=Breachofcontracts&d=1118059759&l=212&tt=04%2F03%2F2013+18%3A03&j=1&m=0&spd=182&c=32&p3=businessdisputes&w=991&h=793&ck=1&ref=http%3A//www.californiabusinessattorneys.com/businessdisputes.html&f=1&sl=1" style="bottom: 0px; position: absolute; right: 0px;" width="5" />
<noscript></noscript><!-- </hs:realtracker> -->Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-77304949868719830012013-04-01T08:40:00.000-07:002013-04-01T08:40:10.467-07:00Buying or Selling a Business
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Buying or
selling a business is a big decision. If you are contemplating buying or
selling a business consider retaining the services of a qualified business
broker. Keep in mind, however, that business brokers are not regulated the same
way that real estate agents, attorneys, medical doctors and accountants are
regulated. There is no state agency in California that licenses business
brokers. Many business brokers have a background only in real estate sales.
Make sure your business broker has a strong background in finance, marketing
and business valuating.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span><br />
<br />
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">A business
attorney is essential if you are buying or selling a business. If you are
buying a business, a business attorney can make sure the business you are
buying has complied with all local, county and state laws. The attorney can
make sure the business location is zoned properly for the business you are
buying. The attorney can make sure that the purchase agreement is properly
drafted, and that it contains a non-compete clause that will protect your
interests. If you are selling a business, a business attorney can make sure the
purchase agreement protects your interests, and that any promissory note or
security agreement that is drafted is drafted correctly.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">There are
two ways to sell a business if the business is owned by a corporation. You can
sell the business through a stock purchase or through an "assets
only" purchase. If you use a stock purchase, you are selling all of the
outstanding shares of stock to the buyer. The buyer is buying the business and
all of its assets and liabilities. If it is an "asset only" sale, the
buyer is only purchasing the assets of the business. The buyer is not buying
the liabilities. In an "asset only" sale will, the selling
corporation's shareholders must approve the sale. Typically, the selling
corporation will dissolve and liquidate after the sale, distributing to its
shareholders its remaining assets, which is often the money received from the
sale of its assets.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">In an
"asset only" purchase, it is important to determine whether the
corporation selling the assets is a party to any contracts limiting the ability
of the corporation to sell its assets. For example, many equipment leases
prohibit the sale of the equipment to a new owner. Most commercial leases will
not allow the purchaser to simply take over the commercial leased space where
the selling corporation ws located. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">An
individual purchasing a corporation through a stock purchase or an "asset
only" purchase should consider, as part of the purchase, requiring the
selling corporation's officers, directors, and/or shareholders to enter into a
covenant not to compete as part of the sale. California law generally disfavors
covenants not to compete because they are contracts in restraint of trade. However,
such covenants are valid where given by:</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">• The
seller of a business, including its goodwill;</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">• A
“substantial” shareholder selling all of his or her shares;</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">• Any
shareholder of a corporation which sells all or substantially all of its operating
assets (or the assets of any of its divisions or subsidiaries) together with
the goodwill;</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">or</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><br />
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">• Any
shareholder of a corporation that sells all of its ownership interest in a
subsidiary. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">A covenant
not to compete will be enforced only to prevent competing activities within a
specified geographic area; typically in the county where the selling
corporation conducted it business, and only for so long as the buyer or its
successors carry on a like business. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">A covenant
not to solicit the acquired business' employees and customers is permissible
because it prevents the seller from eroding the very goodwill it sold. On the
other hand, a covenant barring the seller from soliciting all employees and
customers of the seller, including those who were not employees or customers of
the acquired business, would give the buyer unduly broad protection against
competition. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Payments
made under a covenant not to compete are amortizable over a 15–year period by
the acquiring person or corporation. The payments are not otherwise deductible
or depreciable. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">With
respect to taxes, in general the selling corporation or shareholders will
usually want the transaction to be “tax-free” (i.e., structured to avoid
presently taxable gains on the sale). On the other hand, the acquiror/buyer may
want the acquisition to be taxable to the sellers in order to obtain a
“step-up” in basis of the assets acquired. The transaction's form will
determine whether it is taxable or nontaxable, or trigger sales and property
taxes. The buyer and seller should seek the advice of a good CPA.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Sales
taxes may be imposed on a sale of assets, but not on a merger or stock
acquisition.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">An
acquisition of assets is accounted for as a “purchase.” The acquirer must
allocate the fair market value of the consideration paid for the acquired
assets in accordance with their fair market values. As a result, the assets are
brought onto the acquirer's/buyer's balance sheet at their fair market
(“stepped-up”) values, not the former (“carryover”) values shown on the
acquired corporation's books. </span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">Where the
total price paid exceeds the fair market value of the acquired assets, the
difference is “goodwill,” which must be amortized against the acquirer's
earnings for financial accounting purposes.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="background: white; line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-bidi-font-weight: bold; mso-fareast-font-family: "Times New Roman";">If you are
thinking of buying or selling a business, give us a call. (949) 645-7300.</span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-40673982955730333082013-03-31T08:43:00.000-07:002013-03-31T08:43:09.627-07:00California Unfair Competition<span style="color: black; font-family: inherit;">The law of unfair competition is primarily comprised of torts that cause an
economic injury to a business, through a deceptive or wrongful business
practice. Unfair competition can be broken down into two broad groups or
categories. Unfair competition can refer to business practices that confuse
consumers as to the source of a given product or service. Or, unfair competition
can include such business activities as false advertising, bait and switch
selling tactics, unauthorized substitution of one brand of goods for another,
use of confidential and protected information by former employees, or
independent contractors to solicit customers of a former employer, theft of
trade secrets, breach of a restrictive covenant, trade libel, and false
representation of products or services.</span><br />
<span style="color: black; font-family: inherit;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="color: black; font-family: inherit;"> In California, many business owners
are concerned about employees that leave the company and then either go to work
for a competitor, or open up a competing business. Employers are concerned that
the now ex-employee may have taken the customer list or other protected trade
secrets when the employee left the company.</span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="color: black; font-family: inherit;"> A civil lawsuit may be brought against
a former employee who takes and makes use of a trade secret belonging to his
former employer. Under certain circumstances, an employer can seek immediate
injunctive relief to stop the former employee from competing
unfairly.</span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="color: black; font-family: inherit;"> The theft of trade secrets is also a
crime. A person is guilty of theft who, with intent to deprive or withhold from
the owner the control of a trade secret or with intent to appropriate a trade
secret to his or her own use or the use of another, steals, takes, or carries
away any article representing a trade secret, fraudulently appropriates any
article representing a trade secret entrusted to him or her, or makes or causes
to be made a copy of any article representing a trade secret without authority
on obtaining access to the article unlawfully or in breach of a relationship of
trust and confidence on obtaining access through such
relationship.</span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="color: black; font-family: inherit;"> As used in Pen. Code, § 499c, (1)
"article" means any object, material, device, or substance or copy thereof,
including any writing, record, recording, drawing, sample, specimen, prototype,
model, photograph, microorganism, blueprint, or map; (2) "representing" means
describing, depicting, containing, constituting, reflecting, or recording; (3)
"trade secret" means information, including a formula, pattern, compilation,
program, device, method, technique, or process that derives independent economic
value, actual or potential, from not being generally known to the public or to
other persons who can obtain economic value from its disclosure or use; and is
the subject of efforts that are reasonable under the circumstances to maintain
its secrecy; (4) "copy" means any facsimile, replica, photograph, or other
reproduction of an article, and any note, drawing, or sketch made of or from an
article; and (5) "benefit" means gain or advantage, or anything regarded by the
beneficiary as gain or advantage, including benefit to any other person or
entity in whose welfare he or she is interested.</span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="color: black; font-family: inherit;"> Also criminally liable is every person
who promises, offers, or gives, or conspires to promise, offer, or give to any
present or former agent, employee, or servant of another a benefit as an
inducement, bribe, or reward for conveying, delivering or otherwise making
available an article representing a trade secret owned by his or her present or
former principal, employer, or master, to any person not authorized by such
owner to receive or acquire it. Similarly liable is every person who, being such
an agent, employee, or servant, solicits, accepts, receives, or takes such a
benefit.</span></div>
<span style="color: black; font-family: inherit;">
</span><br />
<div align="left">
<span class="size12 Helvetica12" style="color: #000066; font-family: inherit;"><span style="color: black;"> However, there is no trade secret
protection for information known either to the public at large or to those
skilled in the particular field. It is an essential element of the offense that
an item fraudulently appropriated by the defendant would give one who uses it an
advantage over competitors who do not know of or use the trade secret; this
element requires more than merely conclusory and generalized allegations.</span>
</span></div>
<span class="size12 Helvetica12" style="color: #000066; font-family: inherit;"></span><br />
<span class="size12 Helvetica12" style="color: #000066; font-family: inherit;">At the business law firm of Jacobs & Dodds we protect our clients from all forms of unfair competition.</span><br />
<span class="size12 Helvetica12" style="color: #000066; font-family: inherit;"><div align="left">
<br /></div>
</span>Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-70479787382875566732013-03-30T20:30:00.001-07:002013-03-30T20:30:43.754-07:00Business Start Up<div done0="11" done1="11">
Before you begin business operations, it is important
that you make appropriate decisions regarding what kind of business legal entity
should be put in place to protect your business. At the business law firm of <a href="http://www.newportbeachattorneys.org/Firm-Overview.shtml">Jacobs</a> and Dodds, we can
help you decide what business entity is right for you based upon the nature of
your business and tax considerations. Sometimes we may advise against certain
kinds of business entities based upon financial considerations and other avenues
available to offset potential liability.</div>
Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-82374118977258870402013-03-30T20:29:00.002-07:002013-03-30T20:29:57.111-07:00What We DoA business requires legal representation from startup through dissolution.
Whether you are considering business formation, need counseling on an in-house
legal matter or are facing litigation, <a class=" current" href="http://www.newportbeachattorneys.org/Our-Business-Law-Practice/">Jacobs & Dodds</a> provides comprehensive
legal services to business owners throughout Orange County and California. We
are dedicated to devising legal solutions that protect our clients' business
profits and legal interests.Anonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0tag:blogger.com,1999:blog-1004616719179420126.post-87014394184248512052010-02-06T13:30:00.000-08:002010-02-06T13:52:35.132-08:00Business Law FirmWhether forming a corporation, entering into a contract, or having to defend your business in litigation, you want swift and effective legal solutions. At Jacobs & Dodds, our lawyers understand the time and effort that our clients invest in making their businesses successful. In acting as your advocate and counsel, we will devote the same time and effort to your legal concerns.<br />
<br />
We represent small to medium-sized businesses in protecting their business interests and maximizing profits. Each attorney from our firm has over 28 years of experience directly advising and representing clients with business legal needs. Our lawyers’ extensive experience in business, large corporations, and trial experience can greatly assist you in effectively asserting your rights.<br />
<br />
At Jacobs & Dodds, we understand your company’s bottom-line. From your initial consultation with our lawyers, to assisting you with everyday legal issues including litigation, we can provide the strategic advocacy you need to protect your business against liability and safeguard your future profits. Our business law attorneys will always remain mindful of your business interests and protect you against costly or unnecessary legal problems.<br />
<br />
Jacobs & Dodds<br />
2151 Michelson Drive<br />
Suite 295<br />
Irvine, CA 92612<br />
(949) 645-7300<br />
(949) 645-7305 FaxAnonymoushttp://www.blogger.com/profile/15620676599041700173noreply@blogger.com0