employment law, Legal

New California Labor Laws for 2018

Here are some of the more significant labor laws that take effect on January 1, 2018:

Conviction History of Applicants (AB 1008)

A number of other states have already enacted what is popularly known as “ban-the-box” laws, which limit an employers’ ability to review and consider a job applicant’s prior criminal conviction history.  The California Fair Employment and Housing Act (FEHA) has now been amended to prohibit employers with five or more workers from:

  • Including on any application for employment questions that seek the disclosure of an applicant’s conviction history before making a conditional offer of employment to the applicant.
  • To inquire into, or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
  • To consider, distribute, or disseminate certain information while conducting a conviction history background check in connection with any application for employment

 

Salary Inquiry Limits – Applicant’s Prior Salary History (AB 168) 

AB 168 enacts Labor Code section 432.3, which prohibits California employers from asking job applicants about their salary history, including any benefits and other compensation information from previous employment.

While California employers cannot currently use an applicant’s prior salary to justify any disparity in compensation, the inclusion of section 432.3 now keeps employers asking about salary history when interviewing, or making a job offer to applicants. If an applicant voluntarily provides their salary history, then an employer can use that information for salary consideration.  Section 432.3 also requires employers to provide the pay scale of a position to an applicant, which makes California the first state to do so.

New Parent Leave Act (SB 63)

The “New Parent Leave Act,” extends CFRA rights to employees working at locations with at least 20 employees within a 75 mile radius. The California Family Rights Act (“CFRA”) had already provided child bonding parental leave to employees at companies with 50 or more employees. This has now been expanded to small businesses with the recent California Senate Bill 63.

Essentially the same as the California Family Rights Act, the bill establishes that an employee must have at least 12 months of service with a covered employer. The employee must have at least 1,250 hours of service during the 12-month period in order to take up to 12 weeks of paid family leave. The purpose of the leave is to allow an employee time to bond with a new child within one year of the child’s birth, adoption or foster care placement. 

Immigration Worker Protection Act (AB 450)

Assembly Bill 450, “the Immigration Worker Protection Act”, prohibits employers from allowing federal immigration enforcement officials to access non-public areas of a work place without a judicial warrant. Governor Brown recently signed legislation limiting the coordination between local and state law enforcement and federal immigration officials. AB 450 was drafted to mirror this effort.

The Act also prohibits an employer from voluntarily allowing an immigration enforcement agent to access, review or obtain employee records without a court order or subpoena. The Act provides the following exceptions to this prohibition:

  • Employment Eligibility Verification forms and other documents for which a Notice of Inspection has been provided to the employer.
  • Instances where federal law requires employers to provide access to records.

If employees are to be subject to an agency’s inspection the Act requires employers to provide sufficient notice that must also meet specific content requirements in order to be compliant.

Harassment Training on Gender Identity, Expression & Sexual Orientation (SB 396)

The California Fair Employment and Housing Act (FEHA) prohibits the harassment of an employee directly by the employer or indirectly by agents of the employer with the employer’s knowledge.  Senate Bill 396 amends Sections 12950 and 12950.1 of the Government Code, and Sections 14005 and 14012 of the Unemployment Insurance Code, relating to employment.

SB 396 requires California employers with 50 or more employees to expand their mandatory sexual harassment prevention training to include the topics of “gender identity, gender expression and sexual orientation.” This training, which is conducted biennially for supervisory and managerial employees, must include practical examples to address such harassment. Employers must also post a DFEH-approved poster for all employees to review regarding transgender rights.

Legal

Negligence, DUIs in California: Legal Reasons #61

f you were injured in a DUI-related accident in California you may be able to pursue damages from the intoxicated driver through a personal injury lawsuit. Most DUI-related personal injury claims are filed on the basis of the negligence of the intoxicated driver. The claim, however, will depend on whether the intoxicated driver was charged with Driving Under the Influence.

Negligence Per Se. If the driver that caused your accident was arrested for and/or charged with driving under the influence, your lawsuit for damages will be based on negligence per se. Negligence per se means:

  • The driver violated a statute, ordinance, or public regulation;
  • The violation was the proximate cause of the injury or death in question; and
  • The injury or death resulted from behavior that the statute, ordinance, or public regulation was designed to prevent.

An arrest for and/or charge of DUI in California does most of the groundwork for a civil suit for damages. The first prong of the required elements is taken care of by the arrest and/or DUI charges. The victim must prove that the injuries sustained – or live(s) lost – are a direct result of the driver getting behind the wheel while under the influence of drugs or alcohol.

Damages in DUI Personal Injury Cases

Victims of drunk driving accident cases can file a personal injury claim to recover damages for their injuries. Additionally, families of victims who were killed in drunk driving accidents may file wrongful death lawsuits to recover compensation for the loss of their loved one. Damages are generally broken down into two categories: economic and non-economic.

Economic damages are those awarded for calculable, verifiable out-of-pocket expenses incurred by the victim and/or his or her family. These often include medical expenses, surgery, rehabilitation, hospital bills, lost wages, lost earning potential, and funeral costs.

Non-economic damages are those awarded for injuries that are hard to value. Non-economic damages may include mental anguish, pain and suffering, and loss of consortium.

Punitive Damages for Driving Under the Influence in California

Punitive damages are generally not available in California personal injury cases. However, the state has carved out an exception for drunk driving personal injury lawsuits. In a 1979 cause, the California Supreme Court heldthat punitive damages may be “recoverable from an intoxicated automobile driver, because the person who voluntarily drinks and does drugs knowing they will drive demonstrates a conscious and deliberate disregard of the safety of other persons.”

 

Legal

Why You May Need an Attorney: Legal Reasons #60

Whether you need an attorney to start your business depends in large part on what legal type of business you are starting. The simpler the business, the less need for an attorney. Let’s look at the various business legal types:

Sole proprietorship – This business type doesn’t require you to register with a state. You probably don’t need an attorney to start this business type, since no specific paperwork is required, outside of any local business licenses. 

Partnership or LLC – These business types must register with a state. Other documents must be prepared, like a partnership agreement or LLC operating agreement. You may be able to register online with your state or use an online service to register your business. If your business is at all complicate, it’s a good idea to use an attorney to help you start these business types.

Corporation or S Corporation – These businesses must register with a state, must prepare bylaws and other documents, and have a more complicated ownership structure. You almost certainly need to use an attorney to help you start these business types. (Note: The S corporation starts as a corporation then elects S corporation status.)

  • If you are being sued, it’s too late. Most small businesses put off hiring a lawyer until the sheriff is standing at the door serving them with a summons. Bad mistake. The time to hook up with a good business lawyer is before you are sued. Once you have been served with a summons and complaint, it’s too late–the problem has already occurred, and it’s just a question of how much you will have to pay (in court costs, attorneys’ fees, settlements and other expenses) to get the problem resolved.
family law, Legal

Divorce and Property: Legal Reasons #59

There is a strong presumption under California law that assets and debts a couple accumulates during marriage are community property. California law also provides that property spouses acquire before divorce but after the date of separation is separate property. The date of separation is not necessarily the date one spouse moves out of the marital home. Instead, it is the date that one spouse decides to end the marriage, and it requires some act of physical separation combined with other actions clearly demonstrating that the spouse has decided to end the marriage.

Whether you handle your own property division or a court handles it for you, there are three crucial steps to the process:

  • determine whether the property (or debt) is marital or separate
  • agree on a value for marital property, and
  • decide how to divide the property.

The spouses—or the court if they can’t agree – generally assign a monetary value to each item of property. Appraisals can help a couple determine the value of real property as well as items like antiques or artwork. Retirement assets can be very difficult to evaluate and may require the assistance of an actuary, C.P.A., or other financial professional.

Spouses can divide assets by assigning certain items to each spouse, by allowing one spouse to “buy out” the other’s share of an asset, or by selling assets and dividing the proceeds. They can also agree to hold property together even after the divorce. Although continuing to hold property together isn’t a very attractive option for most people, since it requires a continued financial relationship, some couples agree to keep a family home until children are out of school. Others may keep investment property, hoping that it will increase in value.

The couple must also assign all debts accrued during the marriage, including mortgages, car loans, and credit card debts, to one of the spouses. Couples dividing debts should be aware that their separation agreement or divorce order is not binding on creditors, who may continue trying to collect a community debt from either spouse. If a debt is assigned to one spouse, the other can ask the court to put a lien on that spouse’s separate property as security for payment of the debt. However, it’s a better practice to try to pay off all the marital debts when the divorce is finalized—if you are selling the family home or one spouse is buying the other out, there’s often a refinancing of the house loan that provides an opportunity to do this.

Legal

How To Dissolve a Business Partnership: Legal Reasons #57

Everything eventually comes to an end. For a business partnership, that end can come because of a dispute, a retirement, a death or simply because the partners wish to re-form their business as a limited liability corporation. Regardless, business partners need legal representation to ensure that their rights and financial interests are protected throughout the dissolution process.

Partnership Dissolution Requirements under California Law

The California Revised Uniform Partnership Act (RUPA) sets the rules for partnership dissolution. All dissolving California partnerships have three basic legal obligations:

  • A statement of dissolution must be filed;
  • All affected parties must be adequately notified, this includes creditors, suppliers and in many cases even the customers; and
  • Legal notice must be published and circulated for at least 12 business days.

Ultimately, these requirements are meant to ensure that partnerships are not dissolved in secret, thereby leaving affected parties in the dark. An experienced business dissolution attorney can make sure that you meet all of these basic legal requirements.

Dissolving a Partnership on Disputed Terms

The partnership dissolution process may not be too difficult when a partnership ends amicably. But, unfortunately, disputes sometimes arise. If you are ending a partnership on disputed terms, an attorney is especially vital. Important considerations include:

  • The partnership agreement: A well drafted partnership agreement should contain provisions for disputes and dissolution. It will likely establish your rights and your responsibilities as a dissolving partner. If the provisions are not clear, or you believe that your partner has not fulfilled their legal obligations, you should contact an experienced partnership dispute attorney immediately.
  • Understand your duties: You should perform all of the duties obligated under the partnership agreement. Do not leave any loose ends. It will be more difficult to dissolve the partnership if there is still unfinished business. Even more important, in the case of a dispute, the resolution will likely be much less favorable for you if you have unfulfilled duties.
  • Know the value of the partnership: You need to have a clear picture of the value of your partnership. This includes all of the assets and all of the liabilities. An adequate business valuation should be comprehensively and extremely detailed. You deserve to receive your fair share from the partnership, and the first step is knowing the precise value. This allows you to negotiate from a position of strength.
family law, Legal

How Long Will It Take to Get a Divorce?Legal Reasons #56

The biggest factor in determining how long a divorce process lasts is the level of cooperation that can be expected, a divorce proceeding can take between six to eighteen months to be resolved. If the divorce is high-conflict with lots of different issues involved, then the proceedings can take as long as five years to be resolved. Simple cases where no children are involved and there is little conflict between spouses can be resolved in as few as six months.

Beyond that explanation, this becomes a complicated question to answer. First, California has a 6 month waiting period, which begins from the time a divorce has “begun” to the first date at which a divorce can become “final.” This is the earliest date on which a married couple can be returned to a status of “single.” But that does not mean that the agreements encompassed in a divorce need to wait that long. Agreements can be reached and documents can be prepared formalizing the divorce agreement. With the proper help and formalities, the documents can even be filed with the court before the 6 month waiting period has lapsed. Then you simply wait for the minimum waiting period to pass.

CAN MY SPOUSE STOP ME FROM GETTING A DIVORCE?

No. California is a “No Fault” state, which means that either spouse may file for divorce at any time, for any reason. If the other spouse does not wish to proceed with divorce proceedings and ignores the petition filed in court, then the filing party can take steps to obtain a default judgment of dissolution of marriage.