Employee Handbook: Your First Line of Defense

Many business owners, managers (other than human resources professionals), and employees view employee handbooks as pesky hindrances to flexibility and growth.  The contrary is true, and knowing when and how to use your handbook could save your business from hours of lost productivity, low morale, and expensive lawsuits. Solutions to 3 Common Issues Await in Your Handbook  1.  Time Off/Leave Requests Your employee handbook could guide you through the following analysis: Does the employee have a right to time off? You are likely familiar with common requests for leave due to illness,pregnancy, disability, and jury duty.  However, you may not be aware of lesser-known leaves such as those for victims of domestic violenceor for alcohol rehabilitation.  Thus, when the leave request is uncommon, check your employee handbook to confirm whether the employee is entitled to time off. Whether and what type of documentation must the employee provide? Is the time off paid or unpaid? Does the request for time off trigger your duty to engage in the interactive process? Does the request for time off trigger your duty to accommodate? Although … Continue reading

In: Employment Law | Leave a comment

Independent Contractor Misclassification

A few days ago, Uber agreed to pay up to $100 million to settle class-action lawsuits in California and Massachusetts claiming that its drivers are employees not independent contractors. Paying out $100 million is by no means the end of this story. The settlement does not affect other drivers’ ability to sue on the same grounds nor does it preclude the Labor Commissioner from determining that individual drivers are in fact employees (which it has done in at least one case). The U.S. Department of Labor also recently issued a formal interpretation of the federal Fair Labor Standards Act as it pertains to the classification of independent contractors. This advisory opinion signaled the intention of federal regulators to scrutinize independent contractor classifications and treat most workers as employees. Most companies do not have enough independent contractors to be subject to class action lawsuits worth $100 million, but how will a $1 million lawsuit or even a $100,000 lawsuit affect your business? If your company uses independent contractors, here are some steps you could take to minimize your exposure: Closely examine … Continue reading

In: California Civil Litigation, Contracts, Employment Law | Leave a comment

Breach of Contract in California

Breach of contract is likely the most common claim alleged in civil litigation cases. Contracts are the glue that holds our society together and we all enter into agreements (i.e. contracts) in one form or another on a daily basis. When the breach of that agreement results in injury, many look to the court system for a remedy. Here are a couple of the more memorable recent breach of contract cases include: Bill Cosby filed a breach of contract lawsuit against a woman who accused him of sexual misconduct, her mother, her lawyers, and the publisher of the National Enquirer. The lawsuit claims that they “disclosed information that they promised to keep secret” in return for a financial settlement. Donald Trump sued Jose Andres’s organization for breach of contract after the celebrity chef canceled his plans to open a restaurant in a Trump group building after Donald Trump’s comments on immigration. What is a contract? Simply said, “A contract is an agreement to do or not do a certain thing.” (Cal. Civ. Code § 1549.) The essential elements (parts) of a … Continue reading

In: California Civil Litigation, Contracts | Leave a comment

Trial Preparation – Anatomy of a Lawsuit Part VIII

This series applies to California lawsuits only. For rules regarding your state’s civil litigation procedure, visit the website for your specific state’s judicial branch. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step. To recap, we’ve discussed some considerations before filing a lawsuit such as What is the Deadline to File a Lawsuit and Where to File a Lawsuit. We’ve also discussed How to File a Lawsuit, Responding to a Lawsuit, Discovery, and Mediation. Here’s a visual representation of what a lawsuit looks like. This article focuses on the phase within the blue circle. Although the above flow chart depicts trial preparation as a distinctive step before trial, in reality, your attorney is preparing for the trial from the minute s/he meets with you for a consultation. Trial considerations such as jury appeal, your credibility and the credibility of other witnesses, and the evidence available will influence whether an attorney accepts the case and what theories to pursue. Once a lawsuit is filed, each stage in the litigation is meant to prepare for trial: i.e., pleadings, motions, … Continue reading

In: Anatomy of a Lawsuit, California Civil Litigation, Hiring a Lawyer | Leave a comment

Victim of Domestic Violence Leave

Women make up just under half of the U.S. labor force (46.8% according to the U.S. Bureau of Labor Statistics).  Thus, ensuring that women are safe, healthy, and productive is imperative to your business and the country’s economic growth. Yet, every 9 seconds, a women in the U.S. is beaten or assaulted. A greater proportion of women are victims of domestic violence but men suffer from domestic violence as well. In fact, in 1 year, more than 10 million women and men are physically abused by an intimate partner in the United States. (National Coalition Against Domestic Violence). In an effort to protect victims of domestic violence the California legislature have enacted laws to protect employees who are victims of domestic violence. Do You Know Your Legal Obligations to Your Employees? Non-discrimination: All employers are prohibited from discharging, discriminating, or retaliating against an employee: Who takes time off to appear in court pursuant to a subpoena or court order. (Lab. Code § 230) Because of the employee’s status as a victim of domestic violence, sexual assault, or stalking, if the … Continue reading

In: California Leave Law, Employment Law | Leave a comment

Tip Pooling Distribution Restrictions Upheld by Ninth Circuit

Tip pooling is a common practice in the restaurant industry but the legal back and forth of how much and to whom the pooled tips could be distributed has lead to much confusion within the food services industry. Restaurants May Not Require Wait Staff to Share Pooled Tips With Back of House Staff Last month, in the case of Oregon Restaurant and Lodging Association et al. v. Perez et al., the Ninth Circuit upheld the Department of Labor’s rule barring employers from collecting tips given to waiters or other service employees and distributing to back of house staff not in the chain of service (i.e. cooks and dishwashers). Since California is within the Ninth Circuit’s jurisdiction, the Court’s decision in this case will lead to increased litigation against restaurants for unpaid wages.  Highly successful restaurants have closed their doors as a result of these wage and hour claims. PRACTICAL TIP: Enterprises with tip pooling practices should have a written tip pooling policy that specifically outlines how tips are pooled and shared. Such written policies should clearly state that pooled tips will not be … Continue reading

In: Employment Law, New Laws | Leave a comment

California Aggressively Fights Wage Theft

Senate Bill (S.B.) 588 that went into effect on January 1, 2016, seeks to ensure recovery of unpaid wages by victims of wage theft. What is Wage Theft? Wage theft is defined as failing to pay workers for all of their work, regardless of whether it is intentional or merely an honest mistake. This includes paying below minimum wage, failing to pay overtime, violating meal and rest break requirements, and failing to pay for off-the-clock work. New Penalties for Wage Theft If an employee brings a successful wage claim against your company, the Labor Commissioner can now place a lien on the company’s property or levy on the business’ bank accounts and/or accounts receivable, including a lien or levy to recover the employee’s attorneys’ fees. SB 588 prevents a company from closing down its business and re-opening under a new name in order to avoid their debts to workers. Owners and anyone else acting “on behalf of” the employer are now individually liable for wage and hour violations. This means that the Labor Commissioner can now seize the personal property and bank accounts … Continue reading

In: Employment Law, New Laws | Leave a comment

Mediation – Anatomy of a Lawsuit Part VII

This series applies to California lawsuits only. For rules regarding your state’s civil litigation procedure, visit the website for your specific state’s judicial branch. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step. To recap, we’ve discussed some considerations before filing a lawsuit such as What is the Deadline to File a Lawsuit and Where to File a Lawsuit. We’ve also discussed How to File a Lawsuit, Responding to a Lawsuit, and Discovery. Here’s a visual representation of what a lawsuit looks like. This article focuses on the phase within the blue circle. Although represented in the above flowchart as happening after the discovery phase, a case may go to mediation before a lawsuit is even filed or litigated (early or pre-litigation), at any other time, or may not go to mediation at all. It is an entirely an optional process aimed at settling the dispute before the parties spend the time and money to prepare for trial. However, if the parties are serious about settling a dispute, discovery gives each side a better sense of … Continue reading

In: Anatomy of a Lawsuit, Uncategorized | Leave a comment

Have a Legal Issue? 3 Reasons Why You Shouldn’t Wait Until the Last Minute

This is an ostrich with its head up, looking out into the horizon, rather than burying its head in the sand (although that’s just an optical illusion and they don’t really do that but you get the point). If you are served with a lawsuit or receive a letter from a lawyer or government entity, you want to be this ostrich and deal with issue head-on. I can understand the appeal of waiting as long as possible, whether it’s economics, time, or the philosophy that “ignorance is bliss.” But a legal issue is like cancer, the longer you wait to see a doctor, the worse the problem gets. Here are 3 reasons why you should consult with an attorney sooner rather than later: Litigation deadlines are important. This is one of the areas in life where deadlines are taken seriously. Most judges aren’t like that professor you had in college who deducts half a grade or so if you turn in a late paper. Judges have no problem saying #SorryNotSorry when you miss a big deadline.  This means that missing a … Continue reading

In: California Civil Litigation, Hiring a Lawyer | Leave a comment

Computer Fraud Prevention: How to Protect Your Company’s Information

In today’s business environment, companies live and die by the information and data you possess.  Your company’s confidential information is probably housed on a network that is accessible by some, or all, of your employees.  Are you doing enough to protect your company’s data from computer fraud leaving with an employee and winding up with a competitor? The Computer Fraud and Abuse Act (CFAA) The CFAA is a federal law that makes it illegal to “intentionally access a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer.”  18 U.S.C. § 1030(a)(2).  Although commonly used to prosecute criminal hackers, the CFA is valuable to employers for the following reasons: 1) the CFAA captures a broader range of conduct than does a traditional trade secrets claim (it doesn’t require a showing that the accessed information rises to the level of a trade secret); 2) the CFAA is one of the few independent causes of action an employer can use to pursue a federal cause of action relating to such theft; and 3) the CFAA … Continue reading

In: California Civil Litigation, Employment Law | Leave a comment