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Aug012016

Employers' Guide to Los Angeles' Sick Leave & Minimum Wage Ordinance

Employment Defense

by Tal Burnovski Yeyni

818-907-3224

 

Most Los Angeles employers know the City Council implemented a new sick leave ordinance for employees working within the City of L.A. on June 2016.

However, as the Sick Time Benefits section was added to an existing Minimum Wage Ordinance, there has been some confusion over definitions and compliance dates.

Last week the City published revised FAQs and updated Regulations which shed some light over unanswered questions. Here is what we know about the City of Los Angeles Sick Leave Ordinance as of now: 

  • “Employee”: Section 187.04(A) of the Ordinance states that “every employee ... is entitled to paid sick leave”. The FAQs clarify that an Employee is: 

1. “any individual who performs at least two hours of work in a particular week within the geographic boundaries of the City of Los Angeles”; and

2. “... entitled to payment of a minimum wage from any Employer under the California minimum wage law...”

Accordingly, exempt employees are excluded from the definition of Employee under the Minimum Wage and Sick Leave Ordinance and not entitled to sick leave benefits under the Ordinance. Note, however, that exempt employees working within the City of Los Angeles are entitled to sick leave benefits under the California Healthy Workplace Healthy Family Act of 2014. Employees outside the City of Los Angeles might also be covered under another local ordinance (e.g., San Diego, Santa Monica, San Francisco, etc.) 

  • Los Angeles Sick Pay“Particular Week”: The Regulations explain that Particular Week “means any seven (7) consecutive days, starting with the same calendar day each week. “Week” for the purpose of the [Ordinance] ... shall be a fixed and regularly occurring period of seven (7) consecutive 24-hour periods which is equivalent to a period of 168 hours.

  • “30 Days Requirement”: To be eligible for sick leave under the Ordinance, an Employee [as defined above -- i.e., works two (2) hours within the City and entitled to minimum wage] must work within the City for the same Employer for 30 days or more within a year from the start of employment.

  • Employees Working in L.A. Sporadically:  As explained above, to be eligible for paid sick leave under L.A. Ordinance, an individual must meet the definition of Employee and work within the City of the same employer for 30 days or more within a year from the start of employment. But what happens when an Employee works in-and-out of the City?

    The Regulations offer the following explanation: “If an Employee continuously works for an Employer with only sporadic work time within the geographical boundaries of Los Angeles, ‘commencement of employment’ means the initial start date by the Employee for the Employer. The ‘year’ or 12 month period begins [on] the first ‘day’ the Employee works in the City. If the Employee has not worked a total of 30 days within that 12 month period, the Employee does not qualify for Sick Time Benefits".

    Accordingly, to determine whether Employers have to start complying with the Ordinance, Employers must track employees’ work within the City. Note that even as little as 10 minutes of work within the City is considered a work day. Once an Employee has 30 days of work for an Employer within the City, the Employee is eligible for sick leave benefits.

  • Compliance Date Based on Employer’s Size:  Section 187.04(A) of the Ordinance states that “Every employee who, on or after July 1, 2016, works it the City ... is entitled to paid sick leave.

    This was interpreted to mean that all Employers, regardless of size, must start complying with the Sick Leave Ordinance as of July 1, 2016. Wrong. The FAQs state there is a deferral schedule based on the size of the employer: “Paid sick leave applies on July 1, 2016 for Employers with 26 or more Employees, including Non-Profit Corporations with or without the minimum wage rate deferral. Paid sick leave applies on July 1, 2017 for Employers with 25 or fewer Employees.

  • Determining Size: The size of an Employer’s business shall be determined by the average number of Employees employed during the previous calendar year rounded up to the next whole number of Employees.  The Office of Wage Standards (OWS) recommends small businesses to complete the MW-2 Small Business Deferral Eligibility Worksheet, which can assist Employers in determining eligibility.

    An Employer should not submit MW-2 to the OWS, but instead retain it with supporting documents in the Employer’s records. Supporting documents may include, but are not limited to: Payroll records; Timesheets and/or attendance records; Quarterly Contribution Return and Report of Wage (DE9 and DE9Cs); Report of New Employees (DE 34).

  • Hours per Year: An eligible Employee is entitled to take up to 48 hours of paid sick leave annually. However, as with California Law, an Employee may use sick leave on or after 90 days of the first day of employment or July 1, 2016, whichever is later.

  • Calculating Methods:
    Front Loading Method: An Employer who chooses to provide sick leave based on the front-loading method must select one type of anniversary, either at the beginning of each year of employment, calendar year, or 12-month period. At each anniversary date, an Employer shall provide all 48 hours to an Employee.

    An Employer who uses the front-load method on a calendar year basis (January through January) may on July 1, 2016 (and only for the calendar year of 2016) provide 24 hours of sick leave for the period covering July 1, 2016 to December 31, 2016. On January 1, 2017, the Employer must front-load the full 48 hours.

    Accrual Method: An Employer who chooses to provide sick leave based on the accrual method must provide the Employee one (1) hour of sick leave per every thirty (30) hours worked. An Employee’s hours worked within L.A. must be tracked. The Regulations provide the following example for accrual: “a full-time Employee working a 40-hour work week within City boundaries (160-hours a month) will accrue 5.33 hours which must be available for use no later than 90 days after the first day of employment.

    Employers may select either the front-loading method or accrual method and may switch between the front-loading method or the accrual method only on an annual basis.

  • 72 Hour Cap: Unused sick leave, either accrued or front-loaded, must be carried over to the following year, but the Employer may cap carry-over (and accrual) at 72 hours. This is where the L.A. city ordinance substantially differs from California law, which does not require carry-over when sick leave time is front-loaded.

  • Permissible Uses: The Sick Leave Ordinance allows employees to take paid sick leave for all permissible uses under the Healthy Workplace Healthy Family Act of 2014, and to care for “any individual related by blood or affinity whose close association with the Employee is the equivalent of a family relationship.” However, it is unclear what an “individual related by blood or affinity” means.

  • Doctor’s Note: While California Law is silent on whether Employers can require Employees to provide documentation, the FAQs state that documentation is allowed only after an Employee has used more than three (3) consecutive days of sick leave. A demand to provide description or explanation of the illness or condition necessitating the Employee’s leave is prohibited.

  • Geographic Boundaries:  The FAQs also refer to a new map which could help determine if a specific address/workplace, is within the City of L.A. (http://neighborhoodinfo.lacity.org/). “If an address is located within the boundaries of the City of Los Angeles and is correctly entered, then the search will locate the address on the map with detailed address information.” 

The FAQs and Regulations also contain helpful and important information concerning the Minimum Wage section of the Ordinance.

For example, the Regulations state any changes in the number of Employees shall not impact the Employer’s status as a small business for purposes of the Minimum Wage deferral schedule. If an Employer’s average number of Employees from the previous calendar year was twenty five (25) or fewer, it shall pay based on the deferral schedule regardless of the changes in number of Employees for duration of the minimum wage schedule.

There is also valuable information concerning tracking of Employees’ time for work performed within the City and recommendations concerning required documentation regarding Employees’ hours.  

Employers can also visit http://wagesla.lacity.org/ for additional information, relevant notices,  posters and helpful charts.

Changes to Federal Employment Postings

Last week the U.S. Department of Labor announced changes to two mandatory posters, which go into effect immediately. As of August 1, 2016, employers must post the revised versions of the Federal Minimum Wage notice and the Employee Polygraph Protection Act notice. You can find revised notices here and here.

If you have questions concerning compliance with the Minimum Wage and Sick Leave Ordinance or other local ordinances and California Laws, contact employment defense counsel as soon as possible.

 

Tal Burnovski Yeyni is an attorney in our Employment 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.

Monday
Aug012016

Craft Brewers Scrap Over Catchy Names

Business LitigationFranchise, Distribution & Litigation Attorney

by Samuel C. Wolf

818-907-3218

 

The craft-beer industry is running low on names. There are more than 4,600 craft breweries in the U.S. – California leading the nation with over 500, according to the Brewer’s Association.

Microbrew Attorney

Each microbrewery generally produces many individual beers and brewers are increasingly finding themselves at odds with others across the country. The legal battles to protect beer brands and corporate names from trademark theft are increasing quickly.

The U.S. Patent & Trademark Office (USPTO) has seen at least 25,000 active registrations and applications related to beer, according to a recent article published by The Wall Street Journal.   

Microbrew: What’s in the Name Just as Important as What’s In the Bottle

Most naming disputes get resolved in quasi-judicial USPTO proceedings. Others go further.

Last fall the Brooklyn Brewery sued a tiny unknown brewery in the San Joaquin Valley called Black Ops Brewing, claiming its name violated the trademark it had for a seasonal $30 imperial stout the New York brewery produces called Brooklyn Black Ops. Several months of litigation and one preliminary injunction later, and the Fresno operation is now called Tactical Ops Brewing Inc.  

Alcohol Distribution AttorneyBeer-namers also have to consider wine and spirits trademarks. Fireball Cinnamon whiskey maker Sazerac Co. recently opposed Martha’s Vineyard-based Bad Martha Brewing Company’s attempt to trademark “Fireball Beer,” leading the Massachusetts brewery to abandon the mark. 

It’s always cheaper to obtain a trademark registration than trying to prevent competitors from passing off a brand without statutory trademark rights – and much easier to enforce registered rights than rights under any common law principle. This is because federal registration provides constructive notice of the registrant’s claims of ownership and is prima facie evidence of the validity of the registered trademark and of the registrant’s right to use the trademark in commerce nationwide.

As the beer market gets congested, new brewers must proceed cautiously to avoid run-ins. Microbrewers should: 

  • Explore registrations early.

  • Conduct trademark availability searches using the USPTO’s Trademark Electronic Search System before investing in production.

  • Conduct Internet searches to assess common law usages of the proposed mark.

  • Assess any conflicting or similar marks prior to filing for a registration or adopting the mark.

These preliminary steps can help avoid costly disputes later on.  

Samuel C. Wolf is an attorney in our Franchise & Distribution, and Business Litigation Practice Groups. 

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.

Wednesday
Jul132016

Terminated: A Marriage’s End Should Not Lead to Employment’s End

Divorce Attorney
Discrimination Defense Attorney

by Vanessa Soto Nellis
& Nicole Kamm

 

Last month, the New Jersey Supreme Court ruled in Robert Smith v. Millville Rescue Squad (MRS) that an employer cannot terminate an employee for separating or divorcing – the processes of which apparently falls under the protected category of marital status under New Jersey’s Law Against Discrimination (LAD).

 

Operations director and paramedic Robert Smith and his wife both worked for MRS and decided to separate when he began an affair with a squad volunteer. When Smith asked about continued employment, the squad’s CEO, John Redden, said it “All depends on how it shakes down.”

Redden also allegedly told Smith at a later meeting that the CEO would not take the case to the squad’s board if there had been the slightest chance of Smith and his wife reconciling; and that Smith “had eight months to make things right” with his wife. He also warned Smith the divorce would be “ugly”.

The board decided to terminate Smith based on corporate restructuring, poor work performance, and failure to improve work performance.

Smith sued MRS, alleging wrongful discrimination and wrongful discharge under New Jersey’s LAD. Smith testified that he was never subject to formal discipline, received annual raises, and was promoted twice.

The trial court ruled Smith failed to show he was discriminated against. An appellate court reversed, and the New Jersey Supreme Court unanimously upheld the appellate decision, stating the LAD prohibits employers from discriminating against job candidates and employees because they are single, married or “transitioning from one state to another”. The court considered the CEO’s comments to be biased against people seeking divorce.

Marital status is one of the extensive list of protected categories under California’s Fair Employment and Housing Act. Under Government Code §12940(a), employers are prohibited from refusing to hire, employ, or train; discriminate in compensation, employment conditions or privileges; or terminate an individual because that person is married, single, separated or divorced.

These protections for divorcing employees may raise some issues for business owners and management. Consider the following: 

  • Spouses of partners and employees with complex compensation packages may have a financial interest relating to spousal and child support, which means a company may have to undergo a valuation process.

  • A valuation could mean a disruption in operations as employees gather and provide information for forensic accountants who may need to review the books, inventory, etc.

  • A business’s human resources department may be subpoenaed to provide information. 

So unless a business qualifies for a rather narrow ministerial exception, an employer can’t fire an employee for divorcing. 

An Ounce of Prevention: Protecting Business Interests

From a family law perspective though, there are some things a business owner may do to minimize damage from an employee or business partner’s divorce:  

  • Business partners and highly compensated executives should draw up prenuptial or postnuptial agreements, and have a buy-sell agreement in place.

  • Business owners should compensate themselves and their partners with actual salaries, rather than stock or other interests in the business. An ex-spouse may in certain cases, wind up with ownership interests.

  • Partners and major shareholders going through a divorce should consider hiring a joint forensics accountant to represent both parties, to hopefully reduce disruptions to business operations.

  • Get a valuation of the business at the date of marriage.

  • Management should limit exposure of private records like confidentiality agreements and redactions to agreements. Trade secrets, employee files, and private financial records for the business and individuals may be at stake here. An attorney can provide counsel as to what records need to be provided, to whom, and how to keep them all out of the public record.

  • Client information may need to be protected, particularly under the Health Insurance Portability and Accountability Act.  

Employers should also be aware of the various protected categories and take steps not to discriminate, harass or retaliate against an employee on such bases.

 

Vanessa Soto Nellis and Nicole Kamm are Shareholders 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
Jun282016

Rocket's Red Glare: Burns & Other Injuries From Fireworks

Injury Attorney Los AngelesDefective Product Attorney

 

by David B. Bobrosky

(818) 907-3254

 

According to the Consumer Products Safety Commission (CPSC), about 230 people are rushed to an emergency room daily between June 20th and July 20th each year, because of serious fireworks injuries. More than half of these ER patients suffer serious burns, mostly to hands, eyes and faces. Some suffer fatal injuries.

Many accidents caused by fireworks are the consumer’s fault, primarily due to inattention, inebriation, or the taking of unnecessary risks.

Just remember what happened to New York Giants’ defensive end Jason Pierre-Paul in 2015. His inattention to which firework he was actually lighting, and an attempt to light it seven times (the wind kept blowing out the flame) nearly cost him his hand, as well as his pro-football career. He spent nearly three weeks in the hospital recovering from burns, an amputated finger and other injuries.

Many times though, fireworks manufacturers are to blame because of defects in design or a lack of sufficient warning or instruction on the packaging.

Fireworks Liability & Negligence

Sometimes, a number of individuals or entities may be found negligent. The responsible party may be a homeowner hosting a party, a fireworks manufacturer, pyrotechnic company hired to set off the fireworks, or the city that hires these companies. Even the importer may be held liable, as the company buying and selling fireworks in the U.S. has a responsibility to provide safe fireworks.

For example, a serious fireworks accident injured dozens of people in Simi Valley, California in 2013. Several injury lawsuits were filed against the Rotary Club of Simi Valley which hosted the July 4th festivities, the Rancho Simi Recreation and Park District, the City of Simi Valley, Ventura County and the pyrotechnics company, Bay Fireworks of New York.

The family of a pyrotechnic professional killed in 2014 filed a suit earlier this year against the pyrotechnic employers as well as six Chinese companies that designed, manufactured, packaged and sold a truckload of fireworks that prematurely exploded and killed four people in Texas.

California Health and Safety Code regulates the manufacture, transport, storage, sale and use of fireworks through California’s State Fire Marshall. The County of Los Angeles has its own set of regulations with classifications, which may be more stringent than state code. Click state and county fireworks code for more information, including definitions for which pyrotechnics are considered dangerous, exempt or “safe and sane”.

Serious Burn and Explosion Injuries

The problem with serious burns and other injuries sustained around explosive devices like fireworks is the long-term recovery needed. They usually require multiple skin grafts and come with a high risk of infection. Long-term physical therapy may be needed to recover the use of limbs or hands.

Fireworks accidents in particular may require intensive psychological treatment as well, as victims may be severely traumatized when attending a public event or celebrating a holiday that so seriously goes wrong. Heavy scarring or disfiguring injuries that can’t be fixed through plastic surgery may also take a psychological toll.

Treatment, whether physical or psychological, takes time and financial resources – impacting work, family and lifestyles.

Fireworks Safety

To reduce the risk of being burned or suffering other injuries from explosions, follow these safety tips: 

  1. Purchase fireworks approved for consumer use only. If wrapped in brown paper, they’re probably meant for professionals who have the proper safety gear and training, according to the CPSC.

  2. Obey local ordinances – many cities in California will ban all pyrotechnics displays, especially in very dry seasons. (See LA County fireworks info.)

  3. Keep water on hand – buckets of it are good, garden hoses are better.

  4. Don’t let children play with fireworks.

  5. Supervise children with sparklers – festive as they may be, sparklers can burn at 2,000 degrees Fahrenheit – enough to cause serious burns when mishandled.

  6. Follow the lighting instructions carefully.

  7. Don’t modify the fireworks or experiment with homemade devices.

  8. Don’t light fireworks near homes, dry brush, or other fireworks.

  9. Light only one firework at a time.

  10. Don’t hover over the explosives. When lighting fireworks, try to do so at arm’s length.

  11. Don’t light fireworks inside metal or glass containers.

  12. Once lit, step away. The farther away you can get, the better.

  13. Don’t throw fireworks at another person. Even if you’re expecting a small explosion merely meant to scare someone, you never can predict how badly things may go awry.

  14. Just like a gas barbecue grill, don’t try to relight fireworks that didn’t light properly the first time – soak the duds in water and then throw them away. (In the case of a gas grill, turn off the gas, open the lid to allow accumulated gas to disperse for at least five minutes before attempting to relight.) 

Whether attending a city sponsored show, or just lighting up sparklers in the back yard, always be aware of the safety risks involved with fireworks, as well as who can be held liable for negligence.

The Kardashians found this out the hard way last year, when they set off fireworks and local tempers in Marina del Rey. According to TMZ, a disgruntled neighbor attempted to sue Khloe Kardashian for a permitted, eight minute pyrotechnic display at midnight that allegedly traumatized both him and his dog. When push came to shove though, the plaintiff failed to appear in court.

The lesson goes without saying: a little common sense and a lot of precaution can keep you and your loved ones safe, and out of court as either plaintiffs or defendants.

David B. Bobrosky is a Defective Product Attorney 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.

Thursday
Jun232016

Small Claims: When Litigating Without a Lawyer Makes Sense

Corporate Litigation Lawyer Los AngelesBusiness & Real Estate Litigation Attorney

 

 

Paul C. Bauducco
818.907.3245

 

 

 

 

Many people and businesses have disputes or suffer damages in the thousands of dollars, which they need to resolve or seek compensation for. The dispute or claim might involve the sale of used furniture or other personal property, where the buyer doesn’t pay what is owed. , or damage to a car in a parking lot by someone not paying attention with their shopping cart.

With court costs and attorney’s fees, litigating these “small claims” can be very expensive, many times prohibitively so. Law firms often turn away smaller claims, not because the claim isn’t valid, but because the cost of litigating it for a client may well cost more than the damages a client can recover.

So what options are there for people and entities when the amount in dispute or damages are “too small” to hire a lawyer, but “too large” to walk away from?

One option is to file a small claims action pursuant to the “Small Claims Act”, Code of Civil Procedure §§ 116.110 to 116.950. Generally, the Small Claims Act allows an entity to file a claim with a demand of up to $5,000, and an individual to file a claim with a demand of up to $10,000.

Filing fees are low: $30 for claims up to $1,500, $50 for claims between $1,500 and $5,000, and $75 for claims between $5,000 and $10,000. In the higher courts filing fees alone are many hundreds of dollars. The Court will serve your claim by mail on each named defendant for $15 per service.

In addition to the limitations on the amount of the claim a person or entity may pursue in small claims actions, you have to represent yourself. No lawyers are allowed for either party in the case. Also, you cannot sue more than twice in a calendar year for over $2,500.

Small claims cases are presented to a judge. There is no jury. You will be responsible for preparing and presenting your case, including documents and witness testimony, but you will be saving money by not having to pay an attorney. The Superior Court and California Department of Consumer Affairs each have detailed websites with instructions on how to file and try your small claims action. Also, many courts have information and staff onsite who can give you guidance on filing and preparing your case.

Small Claims Save Time

Small claims are normally tried within weeks or a few months of filing, compared to the higher courts where a trial may be set years after the case is filed. Small claims trials can be set during the week and, where the court is larger, on at least one night or Saturday a month. The court you file your small claims in must be located in the county where an individual defendant lives or an entity defendant has its business or office.

If a plaintiff loses a small claims action, there is no appeal. However, if the defendant loses, he/she/it has the right to appeal the judgment. The appeal is heard in the Superior Court “de novo”, meaning the whole matter is tried over again as if the prior hearing never happened. Also, on appeal, the parties have the right to be represented by a lawyer.

Summary of Benefits of Small Claims Actions

-Low filing fees

-Service of the complaint by the court

-No attorney’s fees

-Early trial date

Limitations of Small Claims Actions

-$5,000 claim limit for entities

-$10,000 claim limit for individuals

-Limit of two claims of $2,500 or more per year

-A “de novo” appeal can be filed by a losing “defendant”

Small claims actions give individuals and businesses a practical alternative to the choices of expensive litigation or walking away from a claim.

 

Paul C. Bauducco is the Chair of our Business Litigation 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.
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