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Tuesday
Feb232016

Money, Money, Money...Must Be Funny...in the Employee Training World

Lawyer for EmployersEmployment Defense Attorney

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Score one for the employers this year:

An appellate court decision issued last month determined that an employee who chooses to partake in the employer’s voluntary training program is required to reimburse the employer for related expenses if the employee does not stay with the employer for a “reasonable period of time” following completion of the program.

In USS-POSCO Industries v. Case, UPI faced a shortage of skilled Maintenance Technical Electrical (MTE) workers. To address this, UPI decided to implement a Learner Program. Accordingly, UPI and the representative union in the workplace entered into a Memorandum of Understating (MOU) which stated: 

[D]ue to strong demand for [MTE workers] the Company needs to retain successful candidates as employees for a reasonable period of time in order to recoup the substantial $46,000 investment in their training. . .UPI may require candidates in the Learner Program to sign [a reimbursement agreement] that would require reimbursement for a portion of the training should a candidate voluntarily terminate employment within 30 months of completion of the Learner Program.

The employee (Floyd Case) signed a one page reimbursement agreement acknowledging UPI would pay his “wages, benefits and training expenses” while he was in the Learner Program, but there would be no guarantee participation in the program would ensure promotion, transfer, or continued employment with UPI.

He further agreed that if he was fired for cause or voluntarily left UPI within 30 months after completing the program, he would, absent a compelling hardship such as a serious injury or family death, refund $30,000 of the expenses of the training, less $1,000 per month of subsequent service at UPI.

Two months after completing the program, Case left UPI to work for a different company.  When Case refused to reimburse UPI, the company sued for breach of contract and unjust enrichment. Case cross-complained, asserting the reimbursement agreement was unenforceable and UPI had violated the Labor Code and other statutory provisions in seeking reimbursement. Both the trial court and an appellate court sided with the employer.

In its affirmation, the Court of Appeal noted: 

  • Labor Code provisions re employer payment of costs of business operations do not apply in this case, as the training program offered by UPI was strictly voluntary and optional.  

  • Case did not make any expenditure or suffer any loss in direct consequences of the discharge of his duties. Rather, it was UPI that fronted the costs of his voluntarily training.

  • Case had alternative options: He could have passed the MTE test without additional training or education, self-studied for the test, or completed the program and then passed the test. Case, however, chose the 3rd option “presumably because he would get training during the workday, would earn wages during the lengthy training period, and would obtain the training without any upfront cost and potentially without any cost at all.

  • Finally, the Court also held the reimbursement requirement was not an invalid restraint on employment. The employee “voluntarily agreed to participate in the training program and understood UPI would front all the costs of the program and expected reimbursement of training costs if he chose to leave within 30 months. This was an agreement concerning advanced educational costs. It did not restrain Case from working for a competitor or any other entity…” […] “Repayment of the fronted costs of a voluntarily undertaken educational program, the benefits of which transcend any specific employment and are readily transportable, is not a restraint on employment.

Bottom Line for Employers

This decision centers on one main issue – UPI did not require the employee to participate in the program. Rather, it offered the option to employees who sought employment as MTEs as UPI thought it would benefit as well. Accordingly, UPI was entitled to seek reimbursement from employees who did not stay following completion of the program. 

  • Don’t label a required training program as “voluntary” – that will not allow you to seek reimbursement.

  • Note that an employee’s participation in a mandatory training program might also count as hours worked.

Tal Burnovski Yeyni is an Employer Defense Attorney at our firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Feb112016

Mile Marker: Google Beginning to Clear Legal Hurdles for Self-Driving Cars (but many more ahead)

Personal InjuryPersonal Injury Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

Self-Driving-Cars

 

Can self-driving vehicles (SDVs) use the carpool lane? That may be a legal question for another day, as SDVs still have barricades to overcome before moving to the fast lane and becoming available commercially for consumers. 

But the Federal Government opened the door – by giving serious consideration to, and taking the first steps in expanding, the previously unambiguous term “driver” – to include the Artificial Intelligence (AI) operating Google’s Self-Driving System, along with human motor vehicle operators.

The National Highway Traffic Safety Administration (NHTSA, or Administration) just responded to a November letter from Chris Urmson, Google’s Director of the company’s Self-Driving Car Project, which requested the interpretation of federal driving laws as they pertain to SDVs. Google hopes to make SDVs commercially available to the public by 2020, and that means making them compliant with Federal Motor Vehicle Safety Standards (FMVSS).

The NHTSA did grant some interpretations, but remains hesitant on others, citing a need for further Google SDV testing and further legislation in the future.

One reason for the Administration’s caution is that most FMVSS were written for vehicles of the past century, when all cars had human drivers sitting in the front left of a vehicle, with access to, and control of, steering and braking systems. The laws weren’t written to accommodate AI drivers or cars.

But the NHTSA did manage to favorably interpret some of Google’s questions re SDVs. They include:

1. Self-Driving Systems are drivers, in terms of certain operations like using turn signals and hazard signals; making transmission shifts; idling; parking and accelerating. 

2. Driver seatbelts may not be necessary, since the NHTSA interprets “driver” as the SDS in the case of Google’s proposed vehicle design: 

“It is possible that the provision as specifically written is not necessary for safety as applied to Google’s vehicle design, but Google has not demonstrated that in its present interpretation request.  FMVSS No. 208 would need amendment to clarify how a vehicle design like Google’s might comply with it.  One safety concern is that a human occupant could sit in any DSP [designated seating position], and that therefore the non-wearing of a seat belt by any occupant could create a safety risk.”  

3. Questions re Electronic Stability Control Systems (ESC) need further review, because the FMVSS mandate specific performance requirements for ESC systems. Though the NHTSA agrees that a Google-designed SDS is in fact the actual driver, the Administration feels a need to determine in future: 

“…how to evaluate the SDS control of the steering inputs, and whether and how to modify test conditions and procedures to address more clearly the situation of a vehicle with steering controlled entirely by an AI driver, with no mechanism for the vehicle occupants to affect the steering.”

A Futuristic Legislative Highway for Driverless Cars

Artificially Intelligent Vehicles

Self-driving test vehicles already cruise the streets. However, California DMV rules – where Google operates most of its prototypes – require human, licensed drivers to be inside with access to steering, brake and gas pedals. They must monitor the SDV’s operations at all times, and be ready to take control should technology fail or other emergencies arise.

Google’s November letter to NHTSA expresses concern that human error will make their completely autonomous SDVs unsafe should the humans try to override artificial intelligence.

The Administration acknowledged this concern, paving the way for years of further extensive testing and monitoring of vehicles completely controlled by AI with no human override capabilities.

But the proverbial genie is out of the bottle – Federal Rules will have to be modified to keep up with and include SDVs. There is much work to be done on both sides of this issue before we will have an SDV in our own garages – a prospect that is both scary and exciting for some of us.

 

Andrew L. Shapiro is the Chair of our Personal Injury Practice Group

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Feb052016

What's a "Yahoo"? An Object Lesson in Employer-Employee Relations

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Can you mistakenly fire employees? According to recent media reports, Yahoo apparently did.

Terminations and Layoffs Attorney

News about Yahoo’s mix-up were reported earlier this week in various media outlets. As it turns out, as many as 30 employees have been let go in conversations with their supervisors but were later told that they were simply on the lower performance scale  - and were not meant to be fired.  

Additionally, the company’s performance review system is now challenged in court by an ex-employee, who claims the rules implementing Yahoo’s Quarterly Performance Reviews (“QPR”) were vaguely drawn and communicated on a need-to-know-basis, thus making the QPR process subject to abuse.

What can employers learn from Yahoo’s reported mistakes?  

  • If you use a performance evaluation system, make sure your supervisors understand the system and its guidelines;

  • Communicate with management. A quick clarification can go a long way;

  • Do not underestimate managerial training. Performance reviews can be very helpful or ridiculously awkward, and as we see here, may possibly generate lawsuits. Educate your supervisors about the proper way to conduct performance reviews.   

  • And do not fire employees you do not intend to fire!

 

Tal Burnovski Yeyni is an Employer Defense Attorney at our firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Jan262016

On the Road: Safer Rental Cars

Injury Attorney Los AngelesAccident Attorney

by David B. Bobrosky

(818) 907-3254

 

A mind boggling number of cars are on the recall list for safety problems – including about 34 million American vehicles for defective Takata airbags alone. Additionally, last year was a record for the National Highway Traffic Safety Administration, which levied nearly $300 million in fines against Takata, Honda, Chrysler and BMW, according to Car and Driver.

Defective Cars

Recalls and fines are all well and good for holding automakers and their suppliers accountable for safety but sometimes, it takes solid legislation to curb the defects that injure and kill drivers and their passengers. That may come with the Raechel and Jacqueline Houck Safe Rental Car Act.

The Safe Rental Car Act is named for two sisters driving north from Ojai to Santa Cruz in a rented PT Cruiser in 2004. While driving, the car swerved off California Highway 101, hit an oncoming 18-wheeler and then burst into flames.

Initially the rental company blamed bad driving, and even speculated the accident wasn’t an accident at all – that Raechel (the driver) committed suicide and killed her sister as well.  The truth however, is that there was a recall for PT Cruisers because of faulty power steering hoses, which potentially could lead to loss of steering and fires.

There were no laws prohibiting vehicle rental companies from continuing to loan out cars despite these dangerous recalls. In fact, an area manager for Enterprise (the company that rented the car to the Houck sisters) said that it was corporate policy to rent out unrepaired, recalled vehicles if no other cars were available.

Cally Houck, mother of Raechel and Jacqueline, spearheaded a campaign to put a stop to this policy, which she considers “corporate malfeasance”. Enterprise admitted liability and was ordered by a jury to pay the Houck parents $15 million in 2010. The company began supporting the Houck Bill shortly thereafter, and was soon followed by Hertz and Avis.

The Houck Bill: Corporate Roll Call

Since then, several organizations and corporations (including the American Car Rental Association, Honda and General Motors) eventually helped champion Houck’s cause.

On the other hand, the Alliance of Automobile Manufacturers and the National Automobile Dealers Association opposed the bill, citing less dangerous defects like mislabeled parts and other minor issues which may prohibit companies from getting their cars leased or sold.

Chrysler, maker of the PT Cruiser and company subject to some of those NHTSA fines mentioned above, was opposed to the Safe Rental Car Act.  

Car Recall

The bill also found opposition with car dealers, who feared a law that could pit large rental companies against consumers – who should the dealerships service first, given a finite number of parts and services available? Auto dealers also argued that they shouldn’t be treated like rental companies, as they only keep a few cars on hand as “loaner vehicles” when customers come in for service. 

Safer Cars: Where Do we Stand Now?

The Houck Safe Rental Car Act passed both the U.S. House of Representatives and the U.S. Senate and was then signed by President Obama as part of the Fixing America’s Surface Transportation (FAST) Act. It amended §30102(a) of title 49, U.S. Code. The law now affects (a) vehicles under 10,000 pounds, (b) rented without a driver for less than four months, (c) that are part of a fleet of 35 or more vehicles (most auto dealers providing “loaner” vehicles will be exempt from the law under this condition) used for rental purposes. 

  1. Rental companies will not be able to rent or sell vehicles once they receive notification of a recall approved by the NHTSA until the defect is remedied. 

  2. Companies must comply within 24 hours of notice, unless the company has more than 5,000 vehicles in service. In that case, vehicles must be grounded within 48 hours of notice. 

  3. A company may rent, but not sell or lease, recalled vehicles if the remedy is not immediately available and if the company takes action to eliminate the risk (i.e. the company may remove defective floor mats that may jam under gas and brake pedals, should replacement mats not be immediately available from the manufacturer). 

The Secretary of Transportation will submit a congressional report within a year of enactment of the Safe Rental Car Act, regarding the effectiveness of the amendments and findings of related studies.

This may not be the far-reaching safety bill that Cally Houck initially intended, but hopefully, it will help prevent or at least minimize the number of truly horrible accidents like the one that took her daughters’ lives, from occurring in the future.

David B. Bobrosky is a Shareholder in our Personal Injury Practice Group

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Jan152016

To Bifurcate, or Not to Bifurcate: That is the Divorce Question

Divorce Attorney

 

 

by Veronica R. Woods

818.907.3250

 

Divorce Bifurcation

 

Some divorcing couples may want their divorce resolved as quickly as possible. In California, the legal minimum time requirement that a dissolution can be entered is six months from the date of service of the Petition to the entered judgment. However oftentimes, complex financial matters or other contentious questions make the process much longer.

Fortunately, California’s Family Code provides an alternative option: Courts may allow parties to request a bifurcation, which essentially gives the Court the leeway to grant a divorce before other outstanding issues are resolved. Bifurcation is the separation of one or more issues in a case.

The California Rules of Court: Rule 5.390 provides for the separate trial of 13 issues, if a quicker resolution of a family law matter may help move proceedings along: 

  • Postnuptial or prenuptial agreement validity
  • Date of separation
  • Date of asset valuation
  • Separate vs. community property questions
  • Distribution of increased value of a business
  • Value of business or professional goodwill
  • Termination of marriage or domestic partnership
  • Custody and visitation rights
  • Support for child, partner or spouse
  • Attorneys’ fees
  • Equitable property and debt distribution
  • Claims for reimbursement
  • Other specific issues

Submitting a motion to bifurcate also means meeting certain demands. If the reason for bifurcating involves determining an alternate date of valuation of assets for example, the party making the motion will have to give the reasons for alternating the date and whether or not the proposed date applies to all or only some of the assets.

Other indemnities must be made to protect both spouses and children, in regards to health insurance, retirement, social security and other estate benefits.

Practical reasons for “Status Only” Bifurcation

There are some practical reasons to submit a motion to bifurcate. In a status-only bifurcation, which effectively restores the parties to “single” again, a common motive is that one or both of the parties wish to remarry immediately. Another less common reason, is to protect the best interests of the children, as in the case of Dwayne Wade’s dissolution in Illinois.

Financially, there are a few reasons: 

  • Tax Incentives: Under IRS rules, a party may file as a single tax payer or “Head of Household” if s/he had a divorce finalized anytime that year, even on December 31st. Remember, spousal support payments are deductible to the payor. Conversely, the party who receives spousal support must claim the money as income.

  • Bankruptcy: If one spouse files for bankruptcy, couples may seek bifurcation so the divorce proceedings can proceed while bankruptcy issues are still being resolved.

  • Time is Money: One party refusing to agree to certain issues to prolong the proceedings just leads to more legal fees. Reasons vary: a party may want to put off the ex’s remarriage or one party is highly emotional and unwilling to compromise, dragging on proceedings for as long as s/he can. 

Legislative Intent: Slight Evidence Required

The legislature intends “that the dissolution of marriage should not be postponed merely because issues relating to property, support, attorney fees or child custody [are] unready for decision.’ [Citation.]” (Gionis v. Superior Court (1988) 202 Cal.App.3d 786, 788.) The court is more concerned that parties forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness.” (Hull v. Superior Court (1960) 54 Cal.2d 139, 147-148.) A decision dissolving the marital status is reviewed under the substantial evidence standard. No valid purpose is served by requiring the parties to stay married.

Motion to Bifurcate Divorce

Opposing a Bifurcation

The burden of evidence to defeat a status only bifurcation must be compelling.

In the recent case of In re Marriage of Kimberly M. and Fletcher Jones, Jr., the Fourth Appellate District Court of California upheld the trial court’s decision to allow bifurcation and end the marriage in status.

In 2012, Fletcher made a motion to bifurcate based on, among other reasons, detrimental effects on future investments. Kimberly alleged her spouse did not comply with preliminary disclosure requirements – these must be filed before a bifurcation judgment is granted under Family Code §2337(b). She asked for 31 conditions to be met if bifurcation is granted.

Though Fletcher provided the required list of assets and debts, and though Kimberly did not disagree that the marriage should be dissolved, she did contend that Fletcher should be required to provide current values of the listed assets and debts, and that she be allowed an opportunity to seek further conditions of the bifurcation.

The lower court found that the disclosure and augmentations Fletcher provided were sufficient to allow the bifurcation.

Additionally,

…Kimberly made no showing the rejected conditions were necessary to protect her interests. She argues they are necessary because the early termination of the marital status “may impact upon property division issues” . . . The same can be said in every situation wherein the court bifurcates the trial, resulting in termination of the marital status prior to resolution of other issues.

Here, the court reaffirmed the legislative intent that severance of a personal relationship which the law has found to be unworkable and, as a result, injurious to the public welfare, is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration.

 

Veronica R. Woods is an attorney in our Family Law Practice Group. 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120