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
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
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
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
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
Wage Claim Process in California
In California, workers who believe that they are owed wages, overtime, or vacation pay may file their claims in court or with the Labor Commissioner. Claims filed with the Labor Commissioner are adjudicated by the Division of Labor Standards Enforcement (DLSE) and is a much more informal process. If you recently received a Notice of Claim and Conference from the DLSE, here is an overview of what the process normally looks like. Worker Filed a Claim. The process began with an employee (plaintiff) filing a DLSE claim form alleging that his/her employer (defendant) failed to pay wages or other compensation owed to the plaintiff. After the claim is assigned to a Deputy Labor Commissioner (deputy), he or she will determine, based on the circumstances of the claim, how to proceed. Within 30 days of the filing of the complaint, the deputy will notify the parties as to which of the following actions the DLSE will take as to the claim: referral to a conference; referral to a hearing; or dismissal of the claim. Not all cases will go to a … Continue reading
New Year Plan for 2016: Checklist for California Businesses
I love this time of year because in addition to the holiday parties and good cheer, it’s a time of reflection, taking stock of what we did well, where we could improve, and creating a plan for next year’s targets. You are probably doing the same thing for your business. Here is a checklist for business’s New Year Plan to help your California business prepare for 2016. Hiring Employment Applications – Check for compliance with California’s laws related to questions about arrest and criminal records. San Francisco is one of the 100 cities and counties that has implemented a “ban the box” law prohibiting those questions entirely. Interview and Hiring Protocols – Review your interview questions and hiring protocols to ensure that your hiring decisions won’t give rise to discrimination claims. Systemic discrimination is a hot enforcement area. Salaries – assess your starting (and incumbent) salaries to make sure that you can justify any pay discrepancies between people who perform similar duties. California’s new, tougher equal pay law goes into effect on January 1, 2016. Policies and Procedures Employee Handbook Review – make … Continue reading
Responding to a Lawsuit in California – Anatomy of a Lawsuit Part V
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. You wouldn’t operate on yourself so consult with a lawyer if you have a legal dispute. 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. Here’s a quick orientation on filing a lawsuit in California. This article discusses the actions within the blue circle. How to Respond to a Lawsuit? Get thee to a lawyer – as I mentioned in Part VI, lawsuits are very deadline driven and blowing the deadline to respond to a lawsuit could result in a default judgment against you, which translates to you automatically lose. What is the Deadline for Responding to a Lawsuit in California? Within 30 days after service of the complaint. The clock starts to run the day after … Continue reading
10 Business Events that Should Trigger a Call to Your Lawyer
As an owner of a small business, I understand the external demands faced by small and medium-sized business owners. Sometimes we think we can do it all . . . until we realize that we can’t. At some point, a business owner wonders “when should I contact a lawyer?” Unfortunately, many businesses wait until a problem that would have cost a few hundred dollars to fix turns into a $10,000 problem before finding a lawyer. Here is a list of when to call a lawyer for a quick consultation. As Desiderius Erasmus said, “prevention is better than cure.” This is not an exhaustive list and the prevention is not absolute ,but at the very least, it will minimize your potential risks. 1. Before hiring your first employee The Prevention: Violations of federal and California anti-discrimination laws; Misclassification of exempt and non-exempt employees; Violations of the Fair Credit Reporting Act and California laws on backgrounds checks and consumer reports; and Violations of federal and California employment laws on overtime pay, meal and rest breaks, and pay stub violations. 2. Before firing an employee … Continue reading
Filing a Civil Lawsuit in California – Anatomy of a Lawsuit Part IV
This series applies to California lawsuits only. For rules related to lawsuits in any other state, visit the website for your state’s courts. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step. Please consult a lawyer for help with your particular case. Below is an infographic chart with an overview on filing a civil lawsuit in California. This article discusses step one, the actual filing of a civil lawsuit. Before Filing a Civil Lawsuit There are some considerations before filing a civil lawsuit in California, such as figuring out 1) What is the Deadline to File a Lawsuit; and 2) Where to File a Lawsuit. I almost always recommend communicating with the other side and working together to find a win-win solution to a problem before going the civil lawsuit route. Sometimes you can do that yourself but other times you may need a California business lawyer or a civil litigation attorney to step in help you negotiate a solution. If that doesn’t work and you hit an impasse, you may have no … Continue reading