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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!

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.

 

#happilyeversood

1376f5d19b3952b945ec871ce97b3458Still abuzz from last night’s amazing reception ready for my brother-in-law Ricky Sood and his new bride Sabina Sood. It’s surreal to see how much love can come together in one room when so many gather to witness and celebrate the union of two who deeply love each other, and have shown that with time some bonds not only get stronger, but transform from dating to relationship to a life long commitment.

It was easy to take a moment and just be grateful for it all, to know that this too was another unique moment that should be lost to petty fights or emotional exchanges or perhaps it all added to the flavor of the weeks festivities. It all comes down to how everyone adjusts to enjoy a milestone in a way that is an inspiring reminder as to why so many mark this occasion with thunderous joy.

Each day of this wedding created so many moments that will leave lasting impressions on some or all. It’s easy to celebrate so much love when you see it in the couples eyes for each other. So Ricky and Sabina, congratulations once again and welcome to the family!

Meal And Rest Breaks For Hourly Employees: Legal Reasons #19

california-wage-chartAlmost all hourly employees know about overtime and their meal breaks, how I am often surprised at how many employees are not aware about rest breaks, meal break violations and what the penalties are for employees who fail to provide you with these breaks appropriately.

You may not employ an employee for a work period of more than five hours per day without providing him/her with a 30-minute unpaid meal break. You owe the employee one hour of pay if the employee is unable to take one or more meal breaks.

You must also give non-exempt employees an opportunity to take a 10-minute paid rest break for every four hours worked, or major fraction thereof.

If one or more meal breaks or one or more rest breaks are not given, you owe the employee one hour of pay for any missed meal breaks and any missed rest breaks for a maximum of two hours per day.

The additional pay for a missed meal or rest break must be included in the employee’s next paycheck.

Employees are owed “premium pay” when they miss a meal break and/or a rest break in one day. The law requires employers to pay two hours of premium pay for each day that two separate violations occur.

The additional hour of pay requirement is found in Labor Code section 226.7, which discusses the remedies together, rather than in separate sections. However, the actual language of the statute states that if a meal or rest break is not provided, the employer owes the employee one hour of pay for each work day that the meal or rest break is not provided.

LEGAL REFERENCES

1. Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012)

2. United Parcel Service, Inc. v. Superior Court of Los Angeles County, 192 Cal.App.4th 1425 (2011)

3. Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007)

Independence Thought

susanbanthony380664Even though I no longer think of India as my home, its appropriate that today it is it’s Independence Day. I unshackled a lot of baggage that include self-doubt, lack of self-worth and just plain stuckness in the past few years. That independence only came after being in a hospital room recovering from brain surgery.

I spent so much of my time not acting due to fear. Even an earlier stroke did not derail me from the path of doubt. Only when I was in hospital room again did I realize that I could either get ready for another visit or I could take steps to make myself a different life.  Yes, I knew a chronic condition I was unaware of caused it, but it also hit me that did not mean, it would define me. I would not live a life unlearned, unloved or lacking.

No longer do I wish to be a writer, a lawyer, a business person, being kind or fit. I do it every day. It may not matter what the end looks like, but the point is that I am living my vision rather than dreaming of it. And that, in itself, is Independence
.

Discrimination Retaliation: Legal Reasons #18

retaliationMany employers are not aware that while California is an “at will” state which means either party can leave employment, California has strict regulations against retaliation and discrimination.

Both federal and state law protect employees and applicants from employer retaliation for engaging in activity that is protected by anti-discrimination laws.

You cannot retaliate against employees for participating in activities to further the enforcement of employment discrimination laws.The retaliation prohibition is quite broad and includes retaliation against a person who objected to a practice that is legal but that the person reasonably believed to be illegal. Protection from retaliation is not limited to applicants and employees; it covers all individuals, including former employees.

An employee who thinks he/she was discriminated against has the right to bring up the matter with a supervisor, other persons in management or a government agency. Any retaliation for making a complaint is strictly illegal, whether the retaliation is obvious (such as discharging the complaining person) or subtle (such as denying a merit increase for being “uncooperative”).

Do not view a complaint as a sign of disloyalty. Take complaints seriously and investigate them objectively. Although some discrimination complaints are insincere and harassing, the majority are sincere complaints of perceived mistreatment.

Retaliation at work can sometimes take subtle forms. Make sure you train managers on the scope of whistleblower protections. Measures which may help prevent retaliation in the workplace include:

  • Educate employees, especially supervisors, on what constitutes retaliation and the company’s policy against it.
  • Watch out for the subtle signs of retaliation against an employee, such as ignoring, isolating or undermining the employee, or changing expectations relating to the employee’s performance.
  • Implement effective complaint procedures that prohibit retaliation.
  • Limit the sharing of information regarding employee complaints to those who have a legitimate business need to know the information. Let those employees know that any retaliatory conduct taken against the complaining employee is prohibited.
  • Gather, rely on and document objective facts when making hiring and other employment decisions.
  • Carefully review discipline and termination decisions that involve individuals who participated in a complaint of unlawful workplace conduct. Consult legal counsel if necessary.

Moving Nostalgia

ulpjvg1cvfmnyrorhbtsAs I rummaged through my library, sorting which books to keep and which ones to donate (a majority of them), I couldn’t help feeling a bit nostalgic about the thousands of pages surrounding me. Each book meant something at some point, but it hit me now they just represented a past that was no longer there. I held on to books rather than passing that story on to someone else, for it to live in someone else’s imagination.

It hit me that I kept the book to look and feel smarter, that I had a library and that meant I was well read. It held up an image in my head which didn’t need to be there. Who was I trying to impress?  Don’t get me wrong,  I am holding on to some titles (mostly graphic novels and my collection of  South Asian authors) but still it was harder than I expected to let go of decades of reading material. Yet I knew I would never read them ago, and ultimately I could not justify being selfish any longer.

I’d rather share than hoard. Let others experience the same emotions I did rather than keep it locked away. Still, it’s not easy. A part of me wants to hold on to everything, but the reality is that it is time to part ways.

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