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Monday
Sep282015

Yes We CAN (talk about politics in the workplace)

Lawyer for EmployersEmployment Defense

 

by Tal Burnovski Yeyni

818-907-3224

 

As election times draw near, news about debates, political faux pas, and myriad guarantees are becoming more and more entrenched in our lives. Which, coincidentally, brings about the oh so common political discussions among friends, families and even co-workers.

As an avid political junkie I enjoy the occasional, lively debate. I have also witnessed several political discussions gone sour. While disagreement over politics can generate a healthy exchange of thoughts and ideas it can also cause a great deal of frustration and anger.

Which begs the question: Can employers limit their employees' political speech in furtherance of a drama-free work environment?  

The short answer is no. Political discussions can be problematic at times, but prohibiting them altogether is against California's public policy. California Labor Code prohibits employers from making, adopting or enforcing any rule, regulation or policy that:

(a) forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office, and

(b) controls or directs, or tends to control or direct the political activates or affiliation of employees. (Labor Code §1101).

There’s more. Labor Code §1102 provides:

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

Meaning, Labor Code §§ 1101-1102 reinforce the substantial public interest in protecting the “fundamental right” of employees to engage in political activity without interference or threat of retaliation from employers. (Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477, 1487). 

Therefore, in California, employers should be very careful in prohibiting political discussion and even more so dismissing an employee for voicing his or her political opinions.

However, employers are not left to navigate through the rough seas of politics without an anchor. There are a few steps employers can take to promote a pleasant work environment during the upcoming election season: 

  • Employers may draft or revise their employee conduct policies to direct employees to observe professional behavior at work and avoid using rude and abusive language or outbursts toward management, employees or others.

  • Employers are further encouraged to remind employees about acceptable conduct in the workplace. 

  • If you are struggling with a similar issue, please consult a legal advisor  

In the meanwhile, don't get upset about politics. Take the example of Will Rogers, who once famously said: I don't make jokes. I just watch the government and report the facts.

Tal Burnovski Yeyni is an Employer Defense Attorney at our firm. Contact her via email: tyeyni@lewitthackman.com; or by phone: 818-907-3224.

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
Oct312012

California Landowners & Managers: 7 New Laws in Effect January 1st

Corporate Litigation Lawyer Los AngelesCommercial Real Estate Litigation  

 

Paul C. Bauducco
818.907.3245

 

Whether you own private or commercial rental property, serve as a member of a housing association, are a California realtor, or just have an interest in buying, selling or leasing property, take note:

With the New Year come new rules regarding your real estate.

Hopefully you are already in compliance with the new laws Governor Jerry Brown signed this past legislative season. If not, there are some important property ownership and management laws you should be ready for on January 1st.

 

2013 Common Interest Development & HOA Laws

 

Assembly Bill 1838 amends the Davis-Stirling Common Interest Development Act,  which regulates common interest developments like apartments, condos, townhouse developments and stock cooperatives.

1.  Cancellation Fees: HOAs won't be able to collect cancellation fees for HOA sales disclosure documents under AB 1838 if the cancellation is requested in writing, and if the work on the order has not yet been fulfilled, or if the HOA has already been compensated for that work.

2.  Davis-Stirling Simplified: The Act has also been reorganized. Assembly Bill 805 (the bill relocates the Act to a different part of CA Civil Code) doesn’t go into effect until January 1, 2014, so HOAs won't have to change governing documents to reflect the move until the end of 2013.

 

New Laws for Landlords & Property Managers

 

If you own or manage apartments, townhouses or space in an RV park, these new California landlord tenant laws apply to you:

3.  Notice of Default: Landlords must disclose written notice of default under any mortgages or deeds of trust on rental properties to any prospective tenants, if renting properties containing one to four residential units, before signing a lease agreement. Under Senate Bill 1191, the tenant may void the lease and recover either one month's rent or twice the amount of damages and all prepaid rent should a landlord fail to provide notice.

4.  Foreclosure Notice: Month-to-month tenants must be given a written 90 Day Notice to Terminate a rental unit when a property is foreclosed. If a tenant still has a fixed-term lease, generally the tenant can remain until the end of the term, under Assembly Bill 2610

5.  Mobile Home Owner Rights: Per Assembly Bill 2150, managers or owners of mobile home parks must provide a specified notice in the rental agreement for space, before February 1st of each year, starting in 2013. The notice sets forth rights and responsibilities of the mobile home owner, including a 90 day notice of a rent increase.

6.  Abandoned Property: When a tenant quits the premises and leaves behind personal property, the landlord must sell the abandoned property at public auction if it is worth $700 (formerly $300) or more, per Assembly Bill 2521.

7.  Animal Control: Landlords who allow tenants to keep pets cannot require tenants to have their pets declawed or devocalized as a condition of occupancy, per SB 1229.

These are just some of the California real estate laws affecting landlord-tenant relations and home owner associations in 2013. Please feel free to contact me if you have any questions regarding real estate or construction law.  A better understanding of the law can prevent problems and litigation.

Paul C. Bauducco is the Chair of our Business Litigation Practice Group. You may reach him via email: pbauducco@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
Oct102012

Rumble in the Employment Law Jungle: Campaign 2012

by Robert A. Hull

It’s a grudge match – a political campaign versus a law whose consequences could tilt the election. Who wins?  A fascinating battle ensued this past week between President Obama’s presidential campaign and the Worker Adjustment and Retraining Notification (WARN) Act.

In this corner, the WARN Act mandates that businesses of a certain size must give notice of a possible mass layoff or plant closing 60 days before such a layoff/closing (even if those businesses are not certain such layoffs will occur).

The reason?  To give workers a chance to look for new employment and prepare themselves for probable job losses.

In that corner, a lean, mean presidential campaign on guard against any dramatic events which could tip the election.

 

Background to the WARN Act Showdown

 

Certain dramatic across-the-board budget cuts (i.e., ‘sequestration’), including very deep defense cuts, are set to take place January 2nd, as the result of the failure of Congress to find a solution to the budget impasse. No solution is forthcoming.

Thus, many federal contractors are facing the likelihood that they will need to lay off many thousands of employees on January 2nd. Under the WARN Act, they would need to give notice to those employees by November 2nd, right before the general election.

To make matters worse, many of these employees are located in the battleground state of Virginia. Needless to say, workers receiving layoff notices immediately prior to an election would tend not to favor the incumbent.

 

Political Punch, Corporate Counter-punch

 

The bell rings. The President’s campaign looks confident, strong. Lockheed Martin plans to issue WARN Notices before the election, in Virginia.

A sharp uppercut: The Obama campaign is stunned, just for a moment. The White House requested that Lockheed hold off on the notices. In July, the Labor Department issued guidelines saying the contractors do not have to provide WARN notices before making layoffs January 2. They anticipated this bout.

The need for layoffs is “uncertain” because Congress can come to an agreement before then. Nice combination – jab, jab, straight right. But Lockheed responds that, if they don’t give WARN notices, they’ll face liability for failure to warn or else be forced to delay layoffs, a devastating counterpunch.

The Obama campaign struggles to keep its feet. But, wait – it's up and throws a haymaker!

The Office of Management and Budget issues a memo on September 28th saying that the government will pay for any employee compensation costs as determined by a court, as well as the litigation costs and attorney’s fees (irrespective of outcome), owed by the federal contractors for failure to give the WARN notices. WARN is down! Lockheed and other contractors agree not to issue layoff notices before the election. The campaign is victorious.

Lessons?  A presidential political campaign can be a force to be reckoned with, for certain. But, if you’re a business with a possible mass layoff or plant closure and are thinking about not providing WARN notices, be forewarned. Unless you face sequestration on January 2nd, you will have to pay for all of your compensation costs, litigation costs and attorneys' fees as a result of your failure to give such notice.

Final Word:  Lockheed and all others should TAKE heed. The September 28th memo appears to only cover liabilities associated with the failure to give notice under the FEDERAL WARN Act. (Read the full White House Memo.)

Many states, such as California (but not Virginia), also have certain STATE WARN-type provisions. If mass layoffs or plant closures occur in those states, and state laws are not complied with, companies like Lockheed may still be on the hook.

 

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
Jul252012

Business Succession Planning: The Shareholder, Operating or Partnership Agreement

 

by Robert A. Hull

 

For many of us, one of our most valued assets, is our business. What happens when you or one of your business partners becomes disabled, divorces, retires or passes away? Will your business continue to function smoothly?  Will there be infighting between owners or spouses/estates/children of owners?  

Hopefully, you established procedures for some of these scenarios when you started your company. If you didn't, you need a business succession plan. Here's a hypothetical to illustrate why:

You co-own a custom wing-nut company that manufactures state-of-the-art custom wing-nuts for almost any industry that uses this type of fastener, with a partner who is married with three children. You are also married, with three children.

However, you've never gotten along with your partner's spouse, who you think is spoiled, grasping and just plain annoying. Worse, your partner's three kids all embody many of the same negative traits.

To further complicate matters, your own spouse worked from home throughout your own marriage, raising three mostly good kids . . . a great parent, but not in the least bit business minded.

Your kids are a mixed bag. Two work for your company. One is creative – he came up with the brilliant idea of fluorescent wing-nuts which are selling like proverbial hotcakes. The other is financially-minded, the one who ensured you made the biggest profits possible on the project. The third kid just likes to head off to Las Vegas a lot. Frankly, you're a little worried.

Some of the questions you should be asking at this point are:

  1. What happens to your company if your business partner passes away or becomes disabled, divorced or simply wishes to sell his or her share of the business? Will you suddenly be partners with his or her annoying spouse and three, bratty children or with a stranger?

  2. What happens to your own interest and your company if you should become disabled or pass away?

It is crucial that you put into place a plan to address the above scenarios before any of them manifest.

Business succession planning may sound complex, but it's really a lot less difficult than leaving everything up to fate or "crossing those bridges when you come to them." No good comes from kicking the can down the road.

 

The Shareholder/Operating/Partnership Agreement – Defining Intentions and Handling Disputes

 

Business Succession AttorneyA Shareholder Agreement (for a corporation), Operating Agreement (for an LLC), or Partnership Agreement can provide some answers to these questions. 

It will clarify what you and your business partner intend for your company, and can provide guidelines for handling future disagreements. The agreement (sometimes referred to as a “buy-sell” agreement), or in some instances the governing documents of the business itself, should set forth:

  1. The respective ownership interests of the business partners.

  2. The next steps to take when an owner resigns or retires, becomes disabled or dies, or files for personal bankruptcy (e.g., buyout provisions, rights of first refusal, etc.;

  3. The valuation of the stock or interest;

  4. If your company will buy out the departing or deceased shareholder's stock or interest.

All of these issues, and more, should be addressed in a good Shareholder/Operating/ Partnership Agreement to avoid the business pitfalls resulting from a change in personal circumstances.  An ounce of prevention is worth a pound of cure.

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
Jul032012

Will Contests & Estate Disputes – Five Ways to Avoid a Family Feud 

Trusts & Estate Planning

 

by Kira S. Masteller
818.907.3244

 

Even in the most complacent of families, estate disputes can sometimes arise under the added strain of bereavement and emotional loss.

When family members don't get along (which is more common than not) family feuds can take on a costly aspect in terms of time and money spent in litigation. Estate disputes can drain all of the resources you've worked hard for, and leave the ones you love most feeling bitter, neglected and without the gifts you intended to leave them. 

 

Avoiding a Contest

 

First, you'll need to take some common sense measures.

The most common argument a family member will make when disputing a will or trust is that the writer, or testator, was not of sound mind. Based upon your age or medical condition, consider having your doctor and a psychologist evaluate your physical and mental health just before finalizing your will, so that you can avoid this allegation.

Seek your own legal counsel, separate from other family members to protect your interests and the interests of those you wish to give gifts to.  

Consider hiring a corporate trustee to serve instead of family members. Corporate trustees are less likely to be seen as abusing their trustee powers; whereas a stepparent or favored child may unwittingly cause suspicion or jealousy among your other heirs.

Last, make sure you own the property you plan to bequeath outright. Jointly owned property such as business interests, real estate, time shares, etc., may revert to other owners.

Once you've done all of these things, you're ready to put your intentions in black and white. Here are five simple steps you can take to avoid inheritance disputes when you pass: 

1. Equal and Unequal Distribution of Property:

Try not to play favorites. The general rule here is to ensure that all of your children and/or your spouse are treated equally. There's not much room for argument when three children each get 1/3 of the house, business, or other property. 

Even better, if you can distribute property while you're still living – make sure you have legal documentation reflecting what you gave or sold to your heirs – you may avoid a contest altogether. 

But how should you handle distribution of your estate if you absolutely don't want to treat all of your family members equally?  

2. Disinheritance:

Make your intentions clear by defining which people will not inherit property, or which will get smaller shares of your estate. Avoid the whys and wherefores – these only encourage bad feelings and potential contests.  

3. Family Financial Obligations:

Seed money for an heir to buy a house or start a business should be thought out carefully. Is the money an outright gift? Is it a loan that needs to be paid back to your estate? Or is it an advancement on your estate? Clearly define your intentions here, to avoid family arguments and litigation.  

4. Business & Property Contracts:

Your business is thriving and all of your children want a share, but one in particular devoted a career to nurturing and running it while the others pursued other interests. Consider selling it to your heir of choice outright, while you're still alive.  

5. No Contest Clauses:

Make your heirs forfeit their interests in your estate should they contest your trust. This can make the more disgruntled members of your family think twice before raising disputes.

 

Kira S. Masteller is a Trusts and Estate Planning Attorney who helps family members avoid will and estate disputes and probate proceedings. Contact her via e-mail: kmasteller@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.

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