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Apr112014

Divorce Mediation - How is it Better?

Encino Tarzana Divorce LawyerDivorce Mediation Attorney

by Vanessa Soto Nellis

818.907.3274

 

Recently, actress Gwyneth Paltrow and Coldplay front man Chris Martin announced the demise of their marriage. But rather than calling the split a separation or divorce, they've labeled their breakup a "conscious uncoupling".

This may sound a bit abstract, metaphysical, or just plain weird to some people, but it seems they have the right intentions: To realize they still have emotional bonds though they can't live together, to avoid the publicity fiascos of a celebrity divorce under a social media microscope, and to co-parent their children.

Anyone can do the same – make a conscious effort to avoid the bitter court battles many couples of our parents' generation undertook – we just label it differently: divorce mediation.

Divorce mediation is a smart move for anyone seeking a divorce who wants to remain financially and emotionally intact. Let's do a side by side comparison:

 

Overall, family law mediation is definitely the better way to get divorced in terms of time, money and stress. Plus, it gives you more control over the outcomes affecting your children and your property, and your relationship with your ex, particularly if you plan to remain on good terms for the sake of your families.

Be sure to hire an attorney for the job though, as you want to ensure the agreement reached is enforceable by California law. Additionally you should make sure you hire an experienced mediation attorney, to reduce the risk of the lawyer having biases (expressed or not) for one side.

 

Vanessa Soto Nellis is a Divorce Mediation Attorney in our Family Law Practice Group. Contact her via email: vnellis@lewitthackman.com

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
Apr092014

Rent Control re Former Resident Managers: Good News for Landlords

Business LitigationCommercial Real Estate Litigation Attorney

 

by Nicholas Kanter
818.907.3289

 

Many apartment building landlords utilize a resident manager to manage day-to-day operations. The resident managers are commonly provided rent-free or reduced-rent accommodations in exchange for performance managerial duties.

When the landlord decides to terminate the managerial duties and start charging rent, the question of how much rent may be charged in a rent-controlled apartment often arises. The Court of Appeal in 1300 N. Curson Investors, LLC v. Drumea recently answered this question.

Landlord LawIn Drumea, the plaintiff-landlord terminated the defendant-resident manager’s managerial duties after eight years. Prior to being a resident manager, the defendant was a tenant at the rent-controlled apartment paying $850 per month.

Concurrent with terminating the defendant’s managerial duties, the plaintiff served defendant with a rent increase notice which advised the defendant that she would have to start paying rent in the amount of $1,552.03.

The defendant refused to pay the increased rent claiming it violated the Rent Stabilization Ordinance (RSO) because:

 

  1. She was never served with annual rent increase notices during her eight years as a resident manager, and

  2. The rent increase was cumulative and retroactive in violation of the RSO.

 

Accordingly, the plaintiff filed a lawsuit seeking a declaratory judgment that the increased rent demand was lawful. While the RSO requires a landlord to serve a tenant with a notice in advance of any annual rent increase, and prohibits cumulative or retroactive rent increases, the Court found that such requirement and prohibition do not apply to a former-tenant resident manager that was paying no rent:

We conclude that a former resident manager who was already a tenant in the unit before being appointed resident manager may be charged rent upon termination of managerial services in the amount of the rent the former manager had been paying tenant, plus the annual adjustments authorized under the Ordinance, and the landlord has no obligation to serve annual registration statements or notices of rent increases during the period that the former manager occupied the unit rent-free. 

The Court reasoned that this decision was consistent with the purpose of the RSO in that it protects a former-tenant resident manager from having to pay the prevailing market rental value of the apartment, if the market rent has increased more than the increases allowed under the RSO.

California Law Commercial PropertyTwo words of caution: although the RSO mandated annual rent increase notices and annual registrations statements do not need to be served on resident managers that pay no rent, these notices must be served on a resident manager that pays partial rent.

Moreover, to avoid a wage and hour claim, a landlord employing a resident manager must also make sure he/she is paying minimum wage for all hours worked and applicable overtime. If the landlord is providing living accommodations towards minimum wage, there must be a voluntary written agreement that explicitly references that such credits are being applied toward the minimum wage obligation of the landlord-employer and the credit must not exceed the permissible caps as stated in the wage order.

Nicholas Kanter is a Real Estate Litigation Attorney and Shareholder in our Business & Civil Litigation Practice Group. Contact him via email: nkanter@lewitthackman.com.

For more information concerning proper payment and documentation of wages for a resident manager, contact Sue M. Bendavid, Chair of our Employment Practice Group via email at: sbendavid@lewitthackman.com.


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
Mar192014

Bridging the Pay GAP

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Last week, GAP announced it would be increasing its minimum wage to $9 in 2014 and $10 in 2015 for employees nationwide. In its press release, GAP’s Chairman and CEO, Glenn Murphy, stated the clothing company “did this because it is right for our company and right for our people.”

Just one step behind, President Obama is continuing to push efforts to increase federal minimum wage to $10.10 per hour – more  than a dollar higher than the $9 proposal made in his 2013 State of the Union address. Federal minimum wage has not increased since 2009. In states that don’t mandate a higher rate, federal minimum wage remains $7.25 per hour.

Also last week, President Obama directed the Department of Labor to propose revisions to the Fair Labor Standards Act (FLSA) regulations regarding overtime exemptions. The President asked the Labor Secretary to consider: 

  1. How existing protections can be “modernized” to conform to the intentions of the FLSA

  2. The changing nature of the workplace 

  3. Simplifying regulations to make them easier to understand by both employees and employers, and easier for employers to apply 

This has been interpreted to mean we can expect a proposed: 

  1. Increase in minimum salary paid to an employee for the employee to qualify as exempt (currently, $455 per week); and

  2. Replacement of the FLSA “primary duty” test with a more substantive test to require an employee to spend a certain percentage of his/her time on exempt duties to qualify for exempt status. 

Both of the above changes would substantially decrease the number of employees who qualify under the federal exemption test.

 

What Does This Mean for California Employers?

 

Bottom line – not much.

California minimum wage is already going up to $9 per hour as of July 1, 2014, and $10 per hour as of January 1, 2016. Now is a good time for California employers to start gearing up for the increase, including issuing new wage notices pursuant to Labor Code section 2810.5, adjusting overtime calculations, and reviewing exempt employee salaries to ensure they are at least two times the minimum wage ($37,440 as of July 1st).

As for the proposed FLSA changes, California employers are already subject to more narrow overtime exemptions requirements under state law. Among other things, to qualify as exempt in California, an employee must be paid a salary of at least $640 per week ($720 as of July 1st). California employees must also spend more than 50 percent of their weekly work time on exempt duties.

Though there is much debate over proposed changes in federal employment laws, California employers can take some comfort knowing that - in most cases - they are already required to comply with what may be implemented on a national level. Somewhat surprisingly - it would appear California is a trendsetter these days when it comes to changes in national employment law.

 

Nicole Kamm is a Wage and Hour Defense Lawyer at our firm. She can be reached via email: nkamm@lewitthackman.com

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
Mar072014

Employers: Don't Forget to Designate Employees' Time Off

Wage and Hour DefenseEmployee Leave of Absence Claim Defense

No Harm No "Fowl" in FMLA Case - 9th Circuit

by Sue M. Bendavid

818.907.3220

 

Score one for the employers in this case, but do so with caution:

Foster Farms did not violate California and federal law when the company fired an employee for returning to work more than two weeks after her vacation ended, according to the Ninth Circuit Court of Appeals.

Lawyers for Employers - FMLA ClaimsThe employee, Maria Escriba, requested two weeks' vacation to tend to her ill father in Guatemala. Her supervisor asked Escriba twice if she needed to apply for leave under the Family and Medical Leave Act (FMLA), which Escriba declined. She then asked for additional vacation time, but that request was denied.

When her vacation ended, Escriba did not contact Foster Farms to request time under FMLA. Foster Farms fired her because of their "three day no-show, no call" policy. Escriba claimed her FMLA rights should have automatically gone into effect to cover the additional two weeks because her employer knew she was attending to a sick parent.

The Ninth Circuit disagreed with Escriba, saying: 

An employer’s obligation to ascertain “whether FMLA leave is being sought” strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA…We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

A notable fact in this case was that Escriba had obtained FMLA leave 15 times in her 18 year work history at Foster Farms, indicating a familiarity with the request process. Escriba’s supervisor knew she needed time off to care for an ill family member, and thus asked Escriba twice, with the help of a Spanish language interpreter, whether Escriba wanted to take FMLA leave. 

That worked in Foster Farms' favor, as the evidence demonstrated the supervisor took reasonable steps to protect the employee's FMLA rights, and the interpreter later served as a witness who could attest that proper steps were taken.

 

Employer's Responsibility to Communicate and Designate

 

Though the decision went in favor of Foster Farms, this case provides some important reminders for employers: 

  • Communication – a key factor in preventing employee claims. First, supervisors should be fully aware of employee rights regarding the California Family Rights Act and the federal FMLA rules. Secondly, it's the employer's responsibility to determine the nature of a leave.


  • Documentation – equally important. Be sure to document the employee's decision when they choose whether or not to take a leave of absence.


  • Designation – When an employee elects FMLA/CFRA leave, make sure you specifically designate the time off as FMLA/CFRA. 

 

Sue M. Bendavid is an Employer Defense Attorney, and Chair of our Employment Practice Group. Contact her via email: sbendavid@lewitthackman.com

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
Feb282014

Mapping While Driving: It's Legal. For Now.

Injury Attorney Los AngelesLos Angeles Injury Lawyer 

 

by David B. Bobrosky

(818) 907-3254

 

You've probably heard about Steven Spriggs, cited for distracted driving while looking at a map on his smartphone and fined $165. The California Highway Patrol says Spriggs violated a motor vehicle law that makes it illegal to use a cell phone while driving, unless it is hands–free.

California drivers under 18 may not use any wireless device while driving.The California Code that specifically addresses this situation states,  

A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.

Spriggs claimed he did not violate the statute because he wasn't talking. A California Fifth Appellate District Court agreed with him yesterday, saying the code prohibits a driver from holding a cell phone while talking on it, reversing the ruling of lower courts that interpreted the law to prohibit all cell phone use while driving.

This may not be the final word on mapping while driving though. According to the San Jose Mercury News, the California Attorney General's Office believes state law bans all hand-held cellphone use while driving.

A spokesperson from the CHP contends that "drivers can be cited for anything an officer considers a distraction, such as reading a magazine, drinking a latte, fussing with kids in the back seat – or poking around on a mapping device."

Additionally, Spriggs' case may go to the Supreme Court if the State chooses to appeal.

There's no way to determine the ultimate outcome at this point, but that doesn't mean drivers should feel free to start poking away at their phones without a second thought. Current California distracted driving laws state: 

  1. Texting while driving is illegal.

  2. Talking on a hand-held device while driving is illegal.

  3. Drivers under 18 cannot use any wireless device while driving. 

If current laws don't put a stop to distracted driving, hopefully common sense will.

 

David B. Bobrosky is a Personal Injury Attorney at our firm. Contact him via email: dbobrosky@lewitthackman.com for more information.

 

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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