employment law, Legal

Fired While On Disability Leave? Legal Reasons #50

If you were fired while you on leave, you may have a claim for wrongful termination.

The laws covering whether you can be fired while you’re off work recovering from a physical or mental illness or injury are complicated. First, it depends whether you are taking leave under the FMLA or similar state leave law, taking other unpaid leave, or collecting workers’ compensation temporary disability benefits. Whether or not you are collecting short-term or long-term disability (LTD) insurance benefits doesn’t matter – LTD policies offer no protection for your job.

Third, there are some situations in which you can legally be fired even though you’re on disability leave, as long as your employer follows the rules under the Americans with Disabilities Act (ADA).

Job Protection Under the Family and Medical Leave Act (FMLA)

If you are covered by the Family and Medical Leave Act (FMLA), you can take up to 12 weeks of unpaid leave to deal with a physical or mental medical problem (or to take care of a family member’s medical issues). Unfortunately, the FMLA does not apply to most employees who work for small businesses—it applies only to employees who work at companies with at least 50 workers (who must work within 75 miles of each other). Also, employees can take FMLA leave only if they worked at least a year for an employer and worked at least 1,250 hours for that employer last year.

Assuming you are eligible for FMLA leave and you correctly requested it, you cannot be fired while on FMLA leave. And when you return from FMLA leave, your employer must give you back your position, or one that is nearly the same—assuming you can still do the job.

Job Protection under the Americans with Disabilities Act (ADA)

Even after you have exhausted your 12 weeks of FMLA leave per year, the Americans with Disabilities Act (ADA) can make it difficult for your employer to fire you when you are out on disability leave. Fortunately, the ADA covers more small businesses than the FMLA—those with just 15 or more workers.

Before firing you while you’re on disability leave—or not reinstating you to your position after your disability leave ends—your employer has to try to “accommodate” you; that is, make the job suitable for you, given your impairments. Examples of ways an employer could accommodate your disability include granting you more unpaid leave after you’ve exhausted your FMLA leave, allowing you to work a flexible schedule, or making your workspace more ergonomic.

Your employer must work interactively with you to try to come up with accommodations that would allow you to do your job. (To protect yourself, it’s best to request accomodations from your employer in writing.) During discussions with your employer, you may need to compromise on the accommodations you asked for, however, since your employer only has to make accommodations that are reasonable and that won’t cause the company “undue hardship.” What constitutes undue hardship is based on the cost of the accommodations to your employer and the size of the company.

 

family law, Legal

Divorce and Real Estate Part 1: Legal Reasons #59

How is California community property divided?

Many think  you would have to divide each physical object equally.  All that the law requires is that the net value of the assets received by each spouse must be equal. Thus, it is not uncommon for one spouse to be awarded the family residence, with the other spouse receiving the family business and investment real estate, as long as each spouse gets assets that are equivalent in value. Since the total net value of the assets being received by each spouse is equal, such a division is proper.

Ordinarily, it is not difficult to determine whether a particular asset is community or separate property. However, certain types of assets can pose unique problems in this regard, including a business that one spouse owned before marriage and both spouses worked on during the marriage, or property that belonged to one spouse before marriage but was shared during the relationship.

What about a closely held business or professional practice?

Like any other asset, a business or professional practice must be considered in the valuation and division of community property. To the extent that a business or practice has been developed during the marriage, there is a community property interest that must be dealt with in the dissolution. The most difficult and time-consuming aspect of determining the value of a business or professional practice is in evaluation of “goodwill.” This is the intangible value that most businesses have, which is based on the expectation of future business, based on established name or reputation. If the business or practice is operated by one of the spouses, it has a goodwill value even if it could not be sold on the open market.

Often, a business person or professional will say, “How can there be any goodwill . . . if I stop working, the office does not make any money?” The law’s answer is that the goodwill of a business or professional practice is valued as a “going concern.” That is, the law assumes that the business will continue operating and will not lose any customers that would otherwise have been lost if it were sold to another owner.Certified public accountant and business appraisers are hired to determine the value of a business or professional practice. The accountant or appraiser who is hired reviews the books and records of the business or practice and prepares a written report.

Legal

5 Things You May Not Know About a DUI:Legal Reasons #58

1. You lose your license once you’re arrested

That’s right, the arresting officer will take away your driver’s license and unless you can show that there’s no basis for the suspension or revocation, the DMV will retain the license until you have completed the DUI administrative and criminal proceedings at which point, your driver license will be returned after you pay a $125 reissue fee ($100 if under 21).

2. You have to deal with two separate legal proceedings

As you expect, you will face a court hearing but what you may not expect is there is also an administrative hearing at the DMV.  Once the officer takes away your license (see above), you have ten days to request an administrative hearing at the DMV. Don’t count on a reversal of the suspension as very few drivers succeed at this hearing. The DMV suspension or revocation is an immediate administrative action taken against your driving privilege only —  that is, it only deals with your license and driving privileges. This is called Administrative Per Se (APS). Any sanctions imposed by DMV under APS are independent of any court-imposed jail sentence, fine, or other criminal penalty imposed when a person is convicted for driving under the influence (DUI).

3. Your DUI is public knowledge and you will receive solicitations from attorneys

Attorneys, bail bonds people, and others involved in the DUI legal circus can easily obtain the address you furnished to the arresting officer and they will likely bombard that mailing address with information about their services.

4. DUI classes are mandatory and you must pay for them, too!

No matter whether your charge is lowered to a “wet reckless” or you are characterized as a first offender, or have a Breath Alcohol Content (BAC) over .2, you will have to take a DUI education program and you will have to pay for it which may cost $1,000 or more. For example, a wet-reckless conviction requires a 12-hour DUI education program; a first offender must pay for a 30-hour program and if you blow over 0.20, you must take 60 hours of classes over nine months.

5. There are two types of license suspensions

There are two types of license suspensions — “hard” suspensions and “restricted” license suspensions.  Assuming you did not prevail at your DMV hearing (see above), there will be a thirty-day “hard” suspension of your license (no driving at all).  The 30-day period commences the day of the DMV suspension. After the 30 day hard suspensions, you may seek a restricted license by applying at he DMV provided that you file an SR-22 insurance form, and enroll into the First Conviction Program (must be the 3-month program), and the restricted license allows you to drive only to drive to and from work and to and from DUI educational classes.

family law, Legal

Common Myths about Divorce: Legal Reasons #57

No Fault

If one spouse has an affair, the other gets everything, right? You lose the house, the car, the kids, all of it, isn’t that how it goes? That’s great and dramatic for movies and TV, but that’s not the way things work in the real world. It might end your marriage, but infidelity doesn’t always influence the divorce settlement.

California is a no-fault divorce state, which means there’s no blame assigned for a failed marriage. Unless adultery negatively impacts your finances, it probably won’t impact the division of property. One example i if your spouse drained your savings buying expensive gifts. The same goes for child custody. If an affair impairs parenting ability, it may play a role. Otherwise, this is one of the most common divorce myths many people accept as fact.

Custody

That mothers always get custody of the children in divorce was taken as a given for years. Many husbands and fathers feel like they’re at a disadvantage right out of the gate. Though there may have been a bias along the way, times they are a changing. More than automatically going with a mother over a father, the court puts the child’s best interests ahead of all other concerns.

Increasingly, the courts recognize the importance of both parents remaining in a child’s life following divorce. From a legal perspective, mothers and fathers have the same rights when it comes to child custody. Each has identical claims. And in an ideal situation—we recognize not every case will be perfect—the parent who represents the best choice, regardless of whether it’s the mother or father, will walk away with custody.

 

 

COMMUNITY PROPERTY

California is a community property state. This means the court views all assets and debts acquired during a marriage as belonging equally to both spouses. The law presumes joint ownership. Many people think this means everything gets shared equally during the division of property. Common divorce myths like this, however, are not the case in most situations.

Many factors go into the division of property. The court’s general goal is for each spouse to emerge from divorce on relatively even footing and to maintain a standard of living similar to that enjoyed during the marriage. The length of a marriage, resources, health, and numerous other elements play into the ultimate divorce settlement.

 

Brownness, employment law, Legal

48 hour Sick Leave Law In Effect in City Of Los Angeles: Legal Reasons #56

The City of Los Angeles has a mandatory paid sick leave (PSL) law which is part of its minimum wage ordinance and which has been in effect since July 1, 2016, for employers with 26 or more employees.  The Los Angeles PSL ordinance will begin to apply to employers with 25 or fewer employees on July 1, 2017.

From an employer perspective, one of the toughest challenges of these local PSL ordinances is that the rules can change at any time. That is precisely what happened with Los Angeles’s ordinance when the city recently revised the rules and regulations relating to this ordinance. The city also revised its answers to frequently asked questions (FAQ).

Some of these changes or clarifications are important, providing information on topics such as:

  • How to determine business size;
  • How to pay employees for sick time;
  • When an existing paid leave or paid time off policy can satisfy the requirements of the ordinance;
  • How to use the frontloading method during the first year that the law applies to an employer and in subsequent years; and
  • Whether a maximum cap on accrued hours is allowed.

The Los Angeles PSL ordinance contains different provisions than the state PSL law. Employers with businesses in a city with a local PSL ordinance need to comply with both the state and the local law. For each provision, protection or benefit, employers will need to provide whichever is more generous to the employee.

More information can be found on the Office of Wage Standard’s website.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

The City of Los Angeles requires employers to post a minimum wage and paid sick leave poster. CalChamber’s Los Angeles Labor Law Posters contains the official notices employers must post in Los Angeles City and Los Angeles County.

employment law, Legal

$12 a Hour is the Minimum Wage in Los Angeles Now: New Legal Reasons #55

While the State’s minimum wage is not increasing for California until January of 2018, a number of other cities and counties have local ordinances that mandate increases on July 1, 2017. If you work in any of these areas, at least two hours of work in a particular week within the geographic boundaries of the City of Los Angeles, you may be entitled to the higher hourly rate. Your business must employ more than 25 employees, and be in city limits of Los Angeles. To check if your business is in the City of Los Angeles Neighborhood info website.

Moreover. you are entitled to 48 hours of sick paid leave regardless of the size of your work.

You can find more information regarding the MWO in the City of Los Angeles website​.​ You can also contact the Office of Wage Standards (the OWS) at 1-844 -924-3752 or by email at wagesla@lacity.org.