What is Wrongful Termination?

Employment is At-Will with Exceptions The vast majority of employers and workers in California have heard the term “at-will” employment.  Employers often interpret at-will employment to mean that employees could be terminated at the employer’s will.  Workers often interpret it to mean it that employers may not terminate an employee without a reason or notice or for unfair reasons. The legal standards are somewhere in the middle. In California, “at-will” employment means that an employer may terminate the employment relationship for any reason or for no reason at all.  On the flip side, employees may also quit for any reason or for no reason at all with or without notice.  However, on the employer side, there are certain restrictions or exceptions to the “for any reason or for no reason at all.”  That is, employers may not terminate (or make conditions such that an employee has no other choice but to quit) for a wrongful reason.  In other words, employers may terminate the relationship so long as the reason for the termination is not discriminatory, in breach of a contractual … Continue reading

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Emoji and Deciphering Intent in the Digital Age

[Originally published as Emoji and Deciphering Intent in the Digitial Age, by Tanya Kiatkulpiboone and Andrea W. Paris, in Orange County Lawyer Magazine, June 2017, Vol. 59 No.6 on page 42.] An emoji known as “Face with Tears of Joy” was named the Oxford Dictionaries’ 2015 Word of the Year. See Figure 1. Caspar Grathwohl, President of Oxford Dictionaries, explained that “Emoji are becoming an increasingly rich form of communication, one that transcends linguistic borders[.]” Katie Steinmetz, Oxford’s 2015 Word of the Year Is This Emoji, Time (Nov. 16, 2015, 2:08 PM), http://time.com/4114886/oxford-word-of-the-year-2015-emoji/. Nevertheless, Oxford Dictionaries have yet to add any emoji to the dictionary, not even their Word of the Year, thereby acknowledging their expressive abilities without defining them. What Are Emoji? Emoji are small images or icons used to express emotion, ideas, or things in electronic communications. They were created in Japan in the 1990s by Shigetaka Kurita, who worked for one of Japan’s largest mobile phone operators. The name originates from the Japanese terms for picture (“e”) and written character (“moji”).  Frequently Asked Questions: Emoji and Pictographs, … Continue reading

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

Do I Need a Written Contract?

You may have been in the situation where you had an agreement with someone else to do something. It may have been a family member, a friend, a customer, or a service provider. You or the other person didn’t want to go through the formal process of putting it in writing because you have a close relationship, don’t want to offend the other person, or don’t want them to think you don’t trust them. Then something goes wrong. You discuss it with the other person and now there’s a dispute as to what you both actually agreed to, or you never talked about what you two would do if x, y, z happens. Do you have a breach of contract claim? Maybe. In this scenario, your first and most difficult hurdle in prevailing in a breach of contract lawsuit is the lack of a written contract. There are multiple reasons why you would want a written contract. Here are a few: It gives clarity regarding each person’s rights and duties. The process of creating a contract forces the parties to … Continue reading

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What to Do When a Client Doesn’t Pay

This is the first post in a new series called “What to Do” where I will discuss “what to do” in various common situations that come up in small and medium sized businesses. Feel free to send me your “what to do” question. Today’s topic is what to do when a client doesn’t pay. This is a common problem that businesses big and small face and if you’re in business, you’re selling services or products in exchange with the expectation that you will be paid for those services or products. The cost to your business of unpaid invoices is not just the dollar amount on each invoice but the opportunity cost of the investment you could make in your business from that income. Additionally, it costs your business time and money to collect on unpaid balances. Thus, the cumulative effect of multiples unpaid invoices, even for small outstanding amounts, is detrimental to your business’s viability and growth. Before starting work: For the proactive business here are some tips to help you avoid or minimize the change of having a client … Continue reading

In: California Civil Litigation, Contracts, Starting a Business, Uncategorized, What to Do | Leave a comment

Lease vs License Agreement

If you are opening a brick and mortar store and are about to sign your first lease on a space or if you are moving to a new space, congratulations! Committing to a location for your business for a number of years is a big commitment. Before you put your signature on that document, let’s clarify whether you are holding a lease or a license agreement and what that means. A lease gives exclusive possession in the premises. Regardless of whether the agreement is labeled a “lease” or “license agreement” the test of whether the law considers an agreement to use real estate is a license or a lease is whether the contract gives you exclusive possession of the premises “against all the world, including the owner.” If it does, then you have a lease. If the agreement only gives you the privilege to occupy the premises under the owner, in which case it is a license. An example of this would be, someone who rents a home for a 1 year term, who has the homeowner’s agreement that the … Continue reading

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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

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

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

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