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What To Know When Terminating: Legal Reasons #17

downloadRecently I have helped several former employees who were laid off but were not given their final wages which included the hours they had worked just before being laid off, earned Paid Time Off, and commissions.  Many employers do not realize that waiting time penalties attach daily up to 30 days if wages are owed after the final pay.

If you terminate an employee or lay him/her off with no specific return date within the normal pay period, all wages and accrued vacation earned but unpaid are due and payable immediately. It is not acceptable to ask or require an employee to wait until the next regular payday for his/her final wages. You cannot withhold a final paycheck. It is illegal to withhold a final paycheck to induce the former employee to:

  • Return tools, uniforms, mobile devices, laptop computers, keys or any other items belonging to you.
  • Pay back money that he/she owes to you.
  • Turn in expense reimbursement forms.

Payment Due at Time of Discharge

The California Labor Code requires that employees receive all earned and unpaid wages at the time of termination from employment. If they do not, you can be assessed waiting time penalties. In Smith v. The Superior Court of Los Angeles County, the California Supreme Court ruled that neither length of employment nor reason for termination changes this requirement.

Not Just Another Weekend

IMG_1224A gloom sits outside my bay window. A gray sky blankets the waking day. Hear and there,  I hear muffled chirps of birds as if telling the day to wake up. It is an amazing Monday! The kind where nothing can hold the shine inside me as I reflect upon the weekend. It began on Friday when my beautiful niece performed at her first official gig. As I sat there enthralled to her beautiful voice, I couldn’t help get teary eyed as I remembered holding her in my hands, playing with her endlessly, teaching her to say “Boys are Bad.”  The little girl whose hugs and kisses always melted me is now a woman, and I could not feel prouder. With each number, she grew up in front of me (I even tried to ignore that most of her songs were about heartbreak), and it hit me that not only did I just witness an extraordinary friday, I got to see my niece as an adult.

A sunny Saturday. The kind where the sun peeks in through the windows inviting you to wake up. 7am. Part of me wanted to lay back, but then again it was that voice that always told me to keep sleeping, to do it another time, to just sleep in since it ‘s Saturday. And then suddenly the sleep disappeared. Another voice. Get. Up. Now. Oh. What. The. Fuck. Go. For. It. Anyway. And so I did. I went running, and the other voice got tinier and tinier. Then the best part of Saturday came. Brunch with my beautiful wife at Old Vine in Irvine. I wish I told her how beautiful she looked. Her bright eyes glowed in the sun. I marveled at the fact that she woke up looking great. I wished I told her my running stream of thoughts. But still it was a great saturday.

Then came Sunday. I finished the first draft of a personal essay (new records for finishing 5000 words). I ended up working for a bit at Topanga, but it also gave me an opportunity to connect with a great friend. Lately, I see opportunities where before life looked like obstacles. I ended my weekend with Load Out for MITT where  I got to experience other’s energy and help as I knew how. So today’s gray morning gets to see my shine. Today, I get to be me. Today, I look for more opportunities. Happy Monday!

Does Being Salaried Mean No Overtime? Legal Reasons #23

labor-law-300x225More often than not, many assume that because they are salaried, they are not entitled to overtime.  Because it is highly litigated, understanding the distinction between exempt and nonexempt employees is critical. Generally, exempt employees are your key personnel who possess management and decision-making responsibilities.

Always assume employees are nonexempt unless they clearly meet the job duties of an exempt position and will earn at least two times the current minimum wage on a monthly basis. I

An exempt employee is normally an executive, administrative or professional employee. Other exempt employee types include some inside and outside salespeople. All other employees generally fall under the nonexempt category. All nonexempt employees are covered by the state and federal wage and hour laws. To avoid paying overtime premiums, an employee must be exempt from the overtime requirements of both state and federal law.

Job Title Irrelevant to Employee Status

Job titles alone do not designate an employee as exempt or nonexempt. An employee with an impressive job title may not qualify as an exempt employee if his/her actual duties do not meet the exemption requirements. An employee who performs routine bookkeeping tasks does not become an exempt employee when given the title “controller” rather than “bookkeeper.” Giving an employee the title of “store manager” does not make him/her exempt if he/she opens or closes the store alone, serves customers, maintains merchandise displays and performs the work of a retail clerk.

Salary Requirements for Exempt Employees

Exempt employees generally must earn a minimum monthly salary of no less than two times the state minimum wage for full-time employment, and the salary must be a pre-determined sum. There are different rules for some employees, such as physicians, computer professionals and outside salespersons. However, placing an employee on a salary does not exempt that employee from wage and hour laws. A nonexempt employee placed on a “salary” earns overtime just as hourly wage earners do.

The following topics describe some of the more important issues you should consider regarding an exempt employee’s salary.

Minimum Salary for Exempt Employees

The minimum monthly salary for most exempt executive, administrative and professional employees is no less than two times the state minimum wage for full-time employment — $3,466.67 per month effective January 1, 2016. To calculate this amount, multiply the state minimum wage by the number of hours a full-time employee works in one year. Divide the result by 12 months.

The California minimum wage rate increased to $10 per hour effective January 1, 2016. The exemptminimum salary requirement is based on the current state minimum wage, not any applicable local minimum wage

The minimum salary calculation is:

  • California minimum wage = $10.00/hour
  • Number of hours a full-time employee works in a week = 40
  • Number of weeks in a year = 52
  • Number of hours a full-time employee works in a year = 40 x 52 = 2,080
  • Minimum annual salary for a full-time exempt employee beginning January 1, 2016 = $10.00 x 2 = $20 x 2,080 = $41,600
  • Minimum monthly salary for a full-time exempt employee beginning January 1, 2016 = $41,600 ÷ 12 = $3,466.67

Breathing Easy

take-a-breath-and-let-the-rest-come-easy-quoteBeen a few days back from London, and it hit me how crazy the past month has been. From two weddings, to moving, to being out of the country, there hasn’t been much time to reflect or do my habits of meditating, and working out or even going to work regularly.  For a while, I indulged in feeling guilting until it began to feel suffocating. I realized that I had this fear of slipping back into gaining weight and over thinking things or disappointing co-workers and clients,.  I paused, and really focused that this was a temporary break not me taking a step back.

Sometimes, I make up scenarios in my head that are way worse than reality, and I now get to take a pause, ground myself, and trust that I will always head back to my chosen path. I get to trust myself, but more important, I get to accept that nothing is in my control and I can waste time bemoaning how the present is, or accept for what it: now.

So I take a breath. Take it in. And trust that it will all work out. It always has.

DO’s After An Car Accident: Legal Reasons #22

  1. Make a police report after an accident, unless the damages are minimal. If practical, do not move your car until the police arrive at the scene.
  2. Get the following information from the other driver: his name, address, driver’s license number, home phone, work phone, cell phone, vehicle license plate, insurance company’s name and policy number. (Look at his driver’s license for verification).
  3. Get the following information from all witnesses at the scene: their names, addresses and telephone numbers. Do not rely on the police to get this information. Take photos of the damage to your car and of the accident scene. It is important to take pictures from different angles, and before any repairs are made.
  4. Notify the DMV. In California, the DMV must be notified of any accident where there has been (1) an injury (no matter how small), (2) death, or (3) property damage in excess of $750. ** CLICK HERE TO COMPLETE DMV SR1 REPORT**. This must be filled out, printed and mailed to the DMV within 10 days of the date of your accident, regardless of whether the accident occurred on public or private property. (Please note that your insurance company is not obligated to file this report for you.)
  5. If you were injured, it is extremely important that you see a medical provider immediately. People who wait days, weeks or even months before seeing a doctor jeopardize their claim. Insurance companies will frequently deny claims or make extremely low settlement offers in cases where there has been a significant gap in time between the accident and the date of first medical treatment.
  6. If you experience continued pain as a result of your injuries, you are entitled to compensation for all pain and suffering you are expected to endure in the future.
  7. Notify your insurance company of the accident even if the other party is at fault. if you have collision coverage, then have your own insurance company cover damages to your vehicle, for the following reasons: (1) your company owes you a duty to promptly and fairly settle your property damage in good faith. However, the other parties insurance company has no such duty and can drag its feet in responding to your demand and make low ball offers. (2) If the other party is at fault, your insurance company will be able to get your deductible back from the other party. And if you were not at fault, using your collision coverage will not effect your insurance rates.
  8. Assuming the accident was the fault of the other driver, his insurance company is responsible for the reasonable cost of a rental vehicle for a reasonable period of time while your car is being repaired. Numerous issues come up when dealing with the other person’s carrier. If your own policy has rental car reimbursement coverage, check your policy. (Please note that when you rent your vehicle that the insurance company will not reimburse you for any extra insurance or collision deductible waivers which you purchase from the car rental.)
  9. Keep a diary of all your injuries, pain and emotional feelings. Remember that this information will fade from your memory with the passage of time. And your case may not settle for months, so the diary will be beneficial to refresh your memory of what type of pain and emotional distress you experienced after your accident. Tell friends and family about the pain that you are experience, but do not discuss the details of the accident with them.
  10. Remember that in California you are entitled to recover lost wages for the time you were off work, even if you used your sick pay or received other disability benefits.
  11. Keep all records, physical evidence or photos, and submit them to your personal injury attorney.

Amazing Moments

memory-moment-quotes-text-true-favim-com-304955As I sit in the sunny London (never thought I would say that), I am grateful for the laugh filled moments that I have had so far. There is a bit of tug in my heart to head home (in 2 days) yet more than it is with some awe that I realize what amazing family I have. The moments shared will definitely become part of retelling the time we came for my parents 50th anniversary and my cousin’s 50th birthday (both amazing functions).

Yet more than anything else, it is with gratitude and love that I see now that my extended family ensures we get together more often, share more laughs, more moments to think about so we have more memories together. I am truly blessed to have people in my life who wish to be part of it and who go above and beyond to ensure that our loved ones have the best things in life.

Already the sunlight glances off the keyboard, and I am struck with London’s beauty but more than I am grateful for these amazing moments.

Determining Fault in a Car Accident: Legal Reasons #21

aid1662395-728px-Determine-Who-Is-at-Fault-in-a-Car-Accident-Step-3-Version-2The reality is that the odds of getting into an accident have increased tremendously with the advent of higher smart phone use. Distracted driving has become commonplace, and so have vehicle collisions. Once you know your safe, the question comes up.  Who is at fault?

Drivers have a duty to exercise reasonable care while behind the wheel. Obvious infractions or violations of the California Vehicle Code, such as driving in excess of the speed limit, ignoring traffic signals, failing to signal, etc. can be used as evidence of one’s negligence in contributing to the cause of a car crash. All of these are examples of evidence which may assist the decider in their determination of fault.

Who decides fault? Typically, it is an insurance adjuster, sometimes aided by a police report which is based upon statements from the drivers and possibly witnesses to the accident, physical evidence, such as skid marks on the road, damage to the cars, etc. However, sometimes fault is not easily determined and a car accident case winds up in court, so that a judge or jury can make a fault determination.

An Amazing Weekend

michaels bachelor partyAs I pack today, I cannot help reflect on the weekend as I got to spend it with some very special people in my life. It is amazing that all together I have known them most of them for over two decades, and although we don’t get to hang out regularly.

It amazed me how much love I experienced with these guys, and it felt like coming home in a way I hadn’t experienced in a long time. We talked of old times, and I realized we shared so much of each other and how much of an influence they were in my life.  I felt selfish in a way because even though we were there for a bachelor party, it felt like homecoming for me, and the comfort and love that surrounded me is one that I will cherish for a long time. Good food, good music, and great spent time together. Who could ask for anything more? (Well the alcohol helped a bit)/

I try not to make predictions, but one thing is clear these guys will be in my life for the rest of it, and I would have it no other way. It truly was an amazing weekend

Why A Marital Settlement Agreement Instead of Trial: Legal Reasons #20

 

imagesRecently. I received several calls about a MSA (Marital Settlement AGreement) where one party wanted them to just orally agree while the other wanted down on paper. The partner did not want an attorney drafting the MSA, but old adage “Penny Wise, Pound Foolish” came to mind because oral agreements with former partners that are not drafted are fraught with

 

A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together.

When and if you begin the divorce proceedings, you will attach the separation agreement to your divorce papers and ask the court to merge, but not incorporate, the agreement into the final judicial decree.  If the marital separation agreement is incorporated into the decree, it becomes a court order and is enforceable by the court.  If you don’t incorporate the separation agreement into your decree, it simply becomes a contract or agreement between you and your spouse.

If you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Settlement Agreement. An agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings.

In a community property” state, like California, all property acquired during the marriage is “marital property” and all property owned before the marriage is “non-marital” property. Gifts or inheritances to either spouse during the marriage is non-marital property.

 

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