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Thursday
Jun302011

California Employment Law Tips: Prepping for a Labor Audit

Lawyer for EmployersEmployment Defense Attorney Los Angeles

 

 

 

by Sue M. Bendavid
818.907.3220

Employer Lawyer Los Angeles Google+

 

 

When it comes to California employment law, I always tell my clients: The best employer defense is prevention.

That means that as an employer, you should be prepared for everything – including a potential visit from the U.S. Department of Labor, or the California Labor Commissioner. (Read my previous blog, California Labor Laws – Ready for a Labor Commissioner Visit? for more information regarding what usually happens when you do get such a visit.)

But if, as a California employer, you want to stay one step ahead of the Commissioner and potential employee claims, there are some things you can do to prevent penalties or litigation.

Best Employer Defense –10 Tips from a Los Angeles Employment Lawyer

 

Prevention begins with good employee policies. Though a wage and hour audit can cover a whole host of topics, the typical situation focuses on overtime, exempt/non-exempt, meal and rest period rules and accurate recordkeeping and documents. See if you can answer “yes” to all of these questions, to see if you will pass a wage and hour audit:

1. Overtime
Are you paying the correct overtime premiums for hours worked by non exempt employees in excess of eight in the day, and 40 in the workweek?

2. Exempt & Non-Exempt Employees
Have you correctly characterized employees as “exempt” (not entitled to overtime pay) rather than “non-exempt” (entitled to overtime)?

3. Independent Contractors
Have you correctly identified which workers are company employees and which are independent contractors?

4. Meal Periods
Do your employees clock in and out and take a minimum of 30 minutes of duty-free meal periods after no more than five hours of work?

5. Rest Periods
Do you provide your employees with a 10 minute rest break in the middle of each four hour work period?

6. Off the Clock Work
Do you prohibit your employees from working “off the clock”?

7. Correct Wage Statements
Do you provide itemized wage statements with all required data, and do they correctly reflect pay rates and hours worked?

8. Rounding Policies
If you round off an employee’s time worked, do you comply with the law and pay the employee accurately?

9. Time Clock Corrections
When you make changes to time records, do you ask employees to verify the information is accurate and to initial the corrections?

10. Child Labor
Do you have the appropriate permits needed to employ minor workers?

If you answered “no” to any of the above California employment law questions, you should re-evaluate your company’s wage and hour policies and procedures. Correcting mistakes now will save you stress and expense in the long run. In fact, you can be held liable for violations going back for several years – it’s best to make sure you have everything in order now.

As a Los Angeles employment lawyer, I know most employers get into trouble because they simply make administrative mistakes, or don’t have good wage and hour employee policies and practices in effect. As I said, the best employer defense is not offense, but prevention.

Employment Defense Attorney Sue M. Bendavid is Chair of the California Employment Law Practice Group, who provides counsel and litigation services for business owners and supervisors throughout the state. Contact her via e-mail: 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.

 

 

Thursday
Jun232011

California Trust Attorney – Three Things You Should Know About a Trust

Tax Law Certified SpecialistState Bar Certified Specialist in Tax Law

 

by Michael Hackman
818.907.3279

 

 

 

 

What is a trust and how does it differ from a will? Before planning your California trust you should know three important things:  

1. A Trust Defined

 

A trust provides for the allocation of assets when you and/or you and your partner or spouse passes away. (Your California trust can be yours alone, or set up for both you and your significant other.)

By creating, and placing one’s assets in the trust (“funding” a trust), you ensure your assets are collected, managed and transferred according to your terms, without the hassle and expense of a probate process.

2. A Trust Administered

 

If you pass away with a California trust, you named a successor trustee to manage your assets upon your death. If you were married when you passed, your surviving spouse is generally the successor trustee.

If you create a trust with a spouse or partner, allocations are often made of certain assets into separate “sub-trusts,” which are managed or administered separately. Even if the survivor is the lifetime beneficiary, separate management of each sub-trust is required, as each sub-trust has its own rules for management and distribution. The subtrusts are often created for tax reasons.

Upon the first to die, title should be changed on assets to reflect the decedent’s death. A good trust attorney can best help you figure out which assets should be assigned to which sub-trusts.

3. Probate Avoided

 

For California trust assets to avoid probate, you should ensure your assets were actually transferred to the trust before you pass away. However, merely creating a trust won’t accomplish your goals and may saddle your family with years of expense during a probate process.

To avoid this, you should execute documents assigning your assets to the trust or re-title certain assets (e.g., transferring real property to the trust by deed). Have your trust attorney review your title to assets and the assignment document(s), to help you determine which assets to hold in trust.

Even if you have a valid trust, some assets may still be probated if not transferred to the California trust during your lifetime. But in California, a successor trustee may use a simple non-probate process to transfer some assets to the trust after the decedent’s death if the aggregate gross value of such otherwise probatable assets is under $100,000.

The state also permits courts to order that assets be added to trusts after death under certain circumstances. See your California trust attorney for more information.

California Trust, Will and Probate

Trust administration can be a lengthy process, depending on the terms of the trust. Many plans provide periodic distributions to your children or other beneficiaries until your beneficiaries reach certain ages (wills, of course, can also establish similar trusts for beneficiaries).

For more information about wills and probate, please see my colleague, Robert Hull’s blog “Will and Probate Explained – Why You Should be Prepared”.

Michael Hackman is a California trust attorney and a Certified Tax Specialist as specified by the State Bar of California’s Board of Legal Specializations program. Mr. Hackman Chairs our Tax and Estate Planning Practice Group and can be reached at 818.990.2120.

 

 

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
Jun102011

Will and Probate Explained – Why You Should be Prepared

 

by Robert A. Hull

Sound estate planning, the realm of the trust, will and probate generally keep property in the family, make sure debts are settled and don’t become burdens on your loved ones, and ensure your wishes for the distribution of your property – assuming such wishes are legal – are implemented according to your instructions.

Let’s start with wills.

If you pass away with a will, your property will be distributed according to its terms. Your will can leave your assets to a trust you created during your lifetime. In such a case, your will is called a “pour over” will because it “pours” assets not already in your trust, into your trust. Your will can also include a trust created in the will itself.

Your will also names an executor to administrate your “probate estate” (more on that in a minute). This executor organizes and distributes your assets per the terms you outlined in your will, and arranges payments of debts and taxes.

And, if you have minor children, your will should name a trusted guardian for them.

 

What is Probate?

 

Probate is the process by which the Court supervises and validates your executor’s management and distribution of assets, as well as payment of your debts. Probate generally takes a long time, sometimes several years.

If there are assets which are subject to the probate process, the executor must file papers to “open a probate” with the Court. The will and probate process is highly specialized and very time-sensitive (i.e., there are many hard and fast deadlines based on your date of death, the date certain documents were filed with the Court, etc.). Thus, we don’t recommend that your executor handle this process without the assistance of a knowledgeable trust and estate attorney.

Generally, state law sets the fees that an attorney assisting with a will and probate may charge (a certain percentage of the gross value of the assets probated). However, such fees, and the time and inconvenience of managing a probate, will inevitably be significantly greater than the fees necessary to draft a complete estate plan which can avoid the need for probate.

However, probate is necessary to lawfully settle your debts and assets only if you die with “probate assets”.

 

Your Assets – What Should be Covered in Your Will and Probate Planning?

 

Only certain assets do not require a probate process – they are called, logically, “non-probate assets”. Some examples include:

▪ Assets in Joint-Tenancy
▪ Assets held by Trusts
▪ IRAs
Life Insurance Proceeds
▪ Other assets with named beneficiaries

The administration of these assets are not governed by your will, but rather by the terms of the specific instrument. So even if you wrote a will, the executor may not need to open a probate, provided all of your assets are “non-probate” assets (or if you have less than $100,000 in probate assets). That’s good news for you and your beneficiaries.

 

No Will – What Happens Then?

 

If you pass away without a valid will, you die “intestate”. That is, the Probate Court will dispose of your property according to the California intestate beneficiary succession laws in place at the time of your death. If you are married, there are different schemes for community property and separate property.

If you don’t have a will, you don’t have an executor, so the Court will appoint a person nominated according to the statutory scheme (probably someone from your family) to act as your estate administrator. There is no authority to make transfers of your probate assets without the transferor being appointed executor, and an executor, with exceptions, cannot act without court approval.

Without a will, you can only hope that the people that you would have as beneficiaries and the amounts they would receive are consistent with the distributions provided for under the intestate succession laws.

A simple will and probate plan is a good first step toward the efficient management of your assets following your death. However, there is a much more powerful tool which, when used in conjunction with a will, can also have numerous tax benefits and help your estate avoid probate entirely.

Robert A. Hull is a Los Angeles trust and estate planning attorney at the Firm, and his practice includes business and corporate law. Contact Mr. Hull at 818.990.2120, or by e-mail: rhull@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.

 

 

Thursday
Jun022011

California Auto Insurance - Policy Check

Injury Attorney Los AngelesLos Angeles Injury Lawyer 

 

by David B. Bobrosky
(818) 907-3254

 

California auto insurance industry experts estimate that 33 percent of the state’s drivers have no automobile liability coverage. And the rate of uninsured drivers in low income areas may exceed 60 percent.

Though recent figures from different sources have the overall numbers closer to 20 percent, that’s still more than 4,000,000 drivers with no insurance in the state.

And based on our own practice findings, we estimate that nearly 50 percent of the drivers we deal with have either no insurance or just the minimum.

Many of our clients think they have full coverage, which usually means they have liability, collision and comprehensive coverage. Unfortunately that excludes one of the most important auto coverage you could have – uninsured/underinsured motorist coverage.

Types of California Car Insurance

 

Before explaining why uninsured/underinsured coverage is so important, let’s take a look at the most common coverages available:

▪  Bodily Injury Liability: provides coverage for people you cause injury to in an accident.

▪  Property Damage Liability: covers any property you cause damage to, other than your own, in an accident.

▪  Collision: covers damage to your own car when in an accident, regardless of who is at fault.

▪  Comprehensive: provides coverage for losses to your own car for incidents other than a collision. This includes cars stolen, or damaged from falling trees, animals, fires, etc.

▪  Uninsured Motorist: covers you, the insured members of your household and your passengers for bodily injuries, damages or death caused by another driver who was not insured, or who fled the scene.

▪  Underinsured Motorist: provides coverage for you, the insured members of your household and your passengers for bodily injuries, damages or death caused by another driver who had less liability insurance than you have in underinsured coverage.

Importance of Uninsured/Underinsured Insurance

 

If you’re involved in an accident with an uninsured or underinsured driver and you only carry liability, collision, and comprehensive, you are left to deal with medical bills, lost time from work and the pain, by yourself.

By adding uninsured/underinsured car insurance, you can seek compensation for your injuries for up to the policy limits of your own uninsured motorist coverage.

For example, with uninsured policy limits of $100,000, you can seek compensation for your medical expenses, lost wages, and pain and suffering up to those $100,000 limits.

If the other driver carries limits of $15,000 and you have that same $100,000 in underinsured coverage, you could obtain the other driver’s $15,000 policy limits, and recover the difference between the two policies ($85,000) from your own carrier.

Thus, by carrying uninsured and underinsured coverage, you are protecting yourself, your business and your personal assets.

Check your California auto insurance policies and make sure you have adequate uninsured/underinsured coverage. Check your excess/umbrella policies as well, as only certain companies offer excess/umbrella policies that include uninsured/underinsured coverage.

Californiauninsured/underinsured motorists coverage is relatively inexpensive…how can you not afford to protect yourself?

David B. Bobrosky is a Los Angeles Personal Injury Attorney. You can reach him at: 818.990.2120.

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
May262011

Cap and Trade System Capped for Now

Los Angeles Environmental AttorneyEnvironmental AttorneyStephen T. Holzer
May 26, 2011

Los Angeles Environmental Attorney

What is Cap and Trade? In 2006, California passed Assembly Bill 32, the Global Warming Solutions Act, meant to help the state meet a set goal of reduced greenhouse gas emissions by 2020. The California Air Resources Board (CARB) developed plans to meet those goals. 

One strategy included a cap and trade system which allowed companies emitting fixed amounts of greenhouse gases to earn credits when they emit less, and to buy credits when they emit more. But critics of the plan say the strategy wasn’t well thought out.

In late March, Judge Ernest Goldsmith of the San Francisco Superior Court issued a tentative ruling invalidating CARB’s program. The Judge has now finalized his ruling. 

 

Why Is CARB Under Fire?

 

The implementation of AB 32 was challenged not by industry, but by a coalition of environmental justice advocacy groups, which claimed CARB had not adequately considered viable alternatives to a cap-and-trade system. Who are the parties that filed suit? 

     ▪ Association of Irritated Residents
     ▪ Communities Against Toxics
     ▪ Communities For a Better Environment
     ▪ Coalition For a Safe Environment
     ▪ Society For Positive Action
     ▪ West County Toxics Coalition
     ▪ Various Individuals

The plaintiffs complained that the system, which sets an overall level of greenhouse gases that industry may emit into the environment imposes burdens on low-income communities. 

The unfairness allegedly arises because, while an overall pollution limit may be set, companies exceeding emissions allowances can buy credits from other companies and continue existing levels of individual company pollution. 

The advocacy groups complained that the companies benefitting from a cap and trade system are disproportionately in low-income areas. While the system may cap pollution in the long run, the groups allege that the end result would actually raise greenhouse gas levels in low-income communities. 

 

Cap and Trade & CEQA

 

CARB’s approach to curbing greenhouse-gas pollution was specifically challenged on the basis of the California Environmental Quality Act (CEQA). Judge Goldsmith’s final Statement of Decision agreed with the groups’ claim that CARB violated CEQA by, “failing to adequately analyze alternatives” to cap and trade. In other words,  the Judge said, CARB had failed to determine whether the goals of greenhouse gas regulation could be achieved without the flaws identified by the plaintiff groups.

You can find Judge Goldsmith’s Statement of Decision at  http://www.latimes.com/media/acrobat/2011-03/60311754.pdf  (Association of Irritated Residents, et al. v. California Air Resources Board, et al., Case No. CPF-09-509562). 

CARB was supposed to finalize the cap and trade program by the end of October. Will they make their own deadline? Some say we will be trading carbon by 2012, while others expect a court appeal. 

Stephen T. Holzer is a Los Angeles Environmental Lawyer, Shareholder and Chair of the Environmental Law Department. Contact him by calling 818.990.2120.

 

 
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