1.  Current Pregnancy Disability Leave Law

California’s current Pregnancy Disability Leave law applies to all employers with five or more employees.  It provides that employees who are disabled by pregnancy, childbirth, or related medical conditions can take up to 16 weeks of job-protected leave in 12 months.  If the employer provides more than 16 weeks of leave to workers with other temporary disabilities, it must also provide the same extra leave to women with pregnancy-related disabilities. The job-protected pregnancy disability leave must be provided to all women employees, even those who are new and/or part-time.

The employee is entitled to take pregnancy disability leave as needed, and in small increments or on a reduced work schedule, if her health care provider recommends.  The leave may be used for prenatal visits and to cope with severe morning sickness in addition to more serious disabilities. The law only requires that the employee be unable to perform one or more of her job functions due to pregnancy or a pregnancy-related condition.  However, the employer may require the employee to provide a certification from her health care provider that the pregnancy leave is medically necessary.

2.  New “Clarification” of Current Law

The new law “clarifies” that it is an unlawful employment practice for an employer to interfere with, restrain, or deny an employee’s pregnancy leave rights.  The effect of this is that employers who have previously discouraged employees from taking pregnancy leave may now be vulnerable to an employee rights violation claim for this past conduct.  If you are in this situation, you should contact your business law attorney for advice.

3.  New Employee Health Benefits During Pregnancy Disability Leave

The new law also requires employers to continue group health insurance coverage for up to 16 weeks for employees who become disabled due to pregnancy, childbirth or a related medical condition.  The group health benefits must be maintained at the same level and under the same conditions that would have existed if the employee had not taken leave.  If the employer currently pays the entire health insurance premium for employee coverage, the employer must continue to do so for up to 16 weeks of pregnancy disability leave.  However, if the employee normally contributes to these insurance premiums, she may be required to continue paying her portion of the premiums (for either self or dependent coverage) while on leave.

If the employee does not return from leave, the employer generally may recoup premiums it paid for the employee’s continued coverage during the leave. However, no premiums may be recovered if the employee fails to return due to a continuing disability or because she then takes a leave under either the federal Family and Medical Leave Act or the California Family Rights Act, two laws which cover employers with more than 50 employees and which have some interrelationship with the pregnancy disability leave law.

Call San Diego Law Firm to Update Your Business Policies on Pregnancy Leave

The experience business law attorneys of San Diego Law Firm can help bring your business into full compliance with the new pregnancy disability leave and health care benefits law.  We can update your employee handbook, leave policies and procedures, and posted employee notices and communications to fully reflect the new law.  We now offer extended evening hours so you can meet with us without disrupting your business.  Please call us at (619) 794-0243 to make an appointment.  We look forward to helping you.

If you order the employee to remove the offending material, he or she may file a claim for discrimination or for violation of his or her employee labor law rights. If you do nothing, other employees may be offended, and if the material has sexual, racial, religious, or other discriminatory overtones, you may see your inaction as approval of hostile workplace conditions that discriminate against them. Your employee’s offensive comments may also cause you to lose customers or valued business associates.

The best way to solve this problem, or to prevent it in the first place, is to create a written technology policy and enforce it equally in all situations, regardless of what the content is or who has created it.  The reason for the policy – to avoid workplace conflicts, to protect the financial well-being and reputation of the business, and to make sure all employees feel valued and protected from harassment and discrimination – should be clearly stated in the policy.  Here are things to consider for your social media policy:

Workstation Screen Savers

Although a screen saver is technically not social media, the open nature of most workplaces means an offensive screensaver is likely to be visible to other employees, and possibly, to suppliers and even to customers. The best policy is to prohibit all personalized screen savers or computer desktop backgrounds.  If you tell one employee to remove an offensive personal screen saver or desktop background, yet allow other employees to keep their own creations visible, the first employee may perceive racial, religious, or other discrimination in the unequal treatment.  Also, the National Labor Relations Board has ruled that if any personal screen savers are allowed, employers must permit ones with pro-union messages. It is acceptable business policy to simply prohibit all personal screensavers and desktop backgrounds. 

Social Media – Facebook, YouTube, Twitter, Blogs, Etc.

The National Labor Relations Board protects the rights of both union and non-union employees to join in groups of two or more to discuss issues of pay, safety conditions, performance reviews, and other workplace conditions. The NLRB has said this rule applies equally to social media, which would include websites such as Facebook, Twitter, YouTube, and LinkedIn, as well as blogs and company forums.  

However, your business can do several things to limit undesirable commentary by employees using social media:

1.  You can prohibit employees from identifying your business and their position in a way that suggests they represent your business or are speaking on its behalf.  An employee could then not put up a blog entry saying something like, “As a manager of XYZ company, it is obvious that the mayor is unfair to our industry.”

2.   You can prohibit employees from disclosing confidential business information and trade secrets if these terms are clearly defined (for example, in an employment manual), and the prohibition does not interfere with an employee’s rights to discuss workplace conditions.

3.  You can forbid employees to use social media to sexually harass another employee or to create a hostile workplace based on an employee’s sex or sexual orientation, or to make comments that violate Title VII of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of sex, race, religion and national origin), the Americans with Disabilities Act (forbidding discrimination based on disability), and the Age Discrimination in Employment Act (forbidding discrimination based on age).  Although the law is not yet clear, you may also be able to prohibit comments that do not pertain to working conditions but that are derogatory to other groups of people protected by specific employment laws, such as women who are pregnant.

The experienced business attorneys at San Diego Law Firm can help your business craft social media, technology usage, and other employee policies that will protect your business interests in maintaining a stable, reputable, and productive workplace while not violating the legal rights of your employees. We can also help you if your business has been threatened with legal action by an employee or former employee based on your current or former policies.  Please call San Diego Law Firm at 619-794-0243 to make an appointment.  We look forward to helping you.

Our primary anti-discrimination laws come from California’s Fair Employment and Housing Act (FEHA), the federal Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Taken together, these laws cover discrimination based on the usual categories, such as gender, age, race, and religion. They don’t say it’s illegal to discriminate against the ugly, or for other appearance-related reasons. And while there are a few laws here and there outlawing appearance-based discrimination, such as some cities’ local laws (ordinances), for the most part it’s still an open question.

But even if there isn’t a law protecting against appearance-based discrimination where you live, the complaint might instead be based on other forms of discrimination that are illegal, such as sex discrimination. Regulating personal appearance may even interfere with privacy rights. This all goes to show that there are a lot of legal issues to evaluate.

Employers have rights to maintain a professional workplace, and there are some limited exceptions to discrimination, but the law continues to develop in this area. If you’re an employer, this means you must tread carefully. Getting qualified legal advice can be key to reducing your risk of ending up in court. Generally, employers will want to steer clear of controlling employees’ appearances in ways that don’t really have much to do with legitimate job performance matters…but there’s much more to it than just that. Every situation is different, and the answers aren’t easy, but a qualified employment lawyer’s advice can help guide your business decisions. For example, do you know which questions you can and can’t ask an applicant during an interview? Is your criteria for hiring, promoting, and firing legal? Does your code of conduct impose stereotypes on your employees? And remember, even if you’re cautious about the pitfalls, it’s just as important that you have a company policy firmly in place to prohibit the kind of employee conduct that can get your business into legal hot water.

Call (619) 794-0243 and meet with San Diego Law Firm’s experienced employment lawyers if you’re facing an employment discrimination charge or lawsuit. We also welcome the opportunity to help you develop effective workplace policies that can help your business avoid legal trouble and greater expense.

Exempt vs. Non-Exempt Employees

California wage-and-hour laws classify employees as either “exempt” or “non- exempt.”  A California exempt employee is one who meets the legal requirements to be considered “exempt” from receiving overtime pay.  California exempt employees are also not covered by most other California wage-and-hour laws, such as those pertaining to rest breaks, meal periods, alternative work week schedules, requirements for time keeping, and so on.

Under California law, overtime pay must be paid to non-exempt employees at the rate of time and one-half for any hours worked over 8 per day, and for any hours worked over 40 hours per week.  The first 8 hours on the 7th consecutive day worked also earn time and one-half.  The employee must be paid twice his or her normal rate for any work over 12 hours per day, and for any work over 8 hours on the 7th consecutive day of work.  Federal law also has rules governing overtime, but California law controls whenever it is more favorable to the employee.

Duties and Salary Determine whether Employee is Exempt

Whether an employee is “exempt” from overtime depends on his duties and salary.  Regardless of his job title, a California exempt employee must spend more than half of his actual work time in exempt duties that include exercising his independent discretion and judgment.  An exempt employee must also receive a salary that is at least twice the California minimum wage for full-time employment, and employees in some industries are protected by laws with additional requirements.  An experienced business attorney will usually need to review both the exact duties and the salary paid to determine if the employee is exempt from overtime payment, or if he or she has been misclassified by the employer.

Also, it is worth remembering that there are significant differences in federal law and California law concerning the circumstances under which various categories of white-collar employees will be considered exempt.  Again, whichever law is most favorable to the employee controls.  An employer who fails to carefully analyze whether an employee working in California is exempt under BOTH federal and California law can unwittingly become exposed to liability for unpaid overtime and improper deductions, and penalties for record-keeping violations.

Employers have the Burden of Proving Exemption Applies

Under both federal and California laws, the employee is not required to prove that he or she is entitled to the protections of overtime pay laws.  Instead, the employer must prove that the employee is exempt.  If the employer has correctly determined that the employee is exempt under both federal and California law, the employer can successfully defend against a claim for unpaid overtime pay by the employee.  However, the stakes can be high, and it is worthwhile to have an experienced business law attorney evaluate any questionable situation, especially since there are significantly different requirements for a large number of industries and positions.

Our experienced business law attorneys at San Diego Law Firm have the skill and knowledge to help your business determine which of your employees are genuinely exempt from overtime pay requirements under both state and federal law.  The cost of this determination is reasonable, and far less than the cost of being liable for unpaid overtime pay and penalties in a wage-and-hour lawsuit. Please contact San Diego Law Firm today at (619) 794-0243 to schedule an appointment for skilled assistance with this or any other business law issue. We look forward to helping you.

Most disability access lawsuits are brought over a lack of handicapped parking, inaccessible restrooms, and problems with entryways.  Common targets are stores, motels, restaurants, and office buildings.  If a court finds that your business violated disability access laws, your business will be required to pay up to three times the amount of the handicapped person’s losses, with a minimum of $4,000, plus attorney’s fees and costs, even if the violation is extremely minor.  It does not matter if you did not even know about the violation, or if you knew about it but could not afford the building changes.  Your business can still be required to pay and to fix the violation.

The California laws on physical access implement the federal ADA regulations, and are located in Title 24 of California Building Standards Code.  This building code section has strict and detailed requirements for disability access to commercial space.  Some typical examples of disability access code violations are: 

             •  One of your thresholds is more than 1/4-inch high (1/2-inch if beveled);

            •  A disabled access ramp has a slope of greater than five degrees;

            •  Your doors require more than five pounds of pressure to open;

            •  There aren’t 60 inches of clearance in your bathroom for a wheelchair to navigate;

            •  Your welcome mat is too soft or too thick.

These are only a few of the violations that may subject your business to a disability-access violations lawsuit. A more complete list may be found in downloadable form on the California Department of General Services website at http://www.dgs.ca.gov/dsa/Programs/progAccess/accessmanual.aspx,

The best way for your business to avoid being sued is to have your commercial space surveyed, and then take the necessary steps to fix any ADA problems.  California has a “Certified Access Specialist” program, and if you hire a certified access specialist and follow their recommendations, you can receive business tax deductions for the disability-compliance upgrades.  If you are still sued for ADA violations in state court at a later time, you gain the legal right to delay the lawsuit while you attempt to settle it in mediation.  This may save you from going through the time and expense of a trial.

If you own a business and are considering moving to a new location, or if you want to find out if your existing space needs upgrading to meet the requirements of the disability access laws, San Diego Law Firm’s real estate lawyers are standing by to assist you.  We have years of experience in helping businesses comply with the ADA, and defending businesses sued for violating the ADA.  Please call today at (619) 794-0243 to schedule an appointment. We look forward to helping you.

Have you ever noticed a little ™ or ® symbol at the last part of a company’s logo?  That tells you that the company is using a trademark to protect their brand.  Because consumers often recognize and select products by brand, a trademarked brand can have significant value to the business that owns it.

A trademark can be a word, a symbol, or a combination of the two that gives customers a way to distinguish your business or products from those of your competitors.  The red bullseye on the walls of Target stores is an example of a trademark that is a symbol. The red Coke logo is a trademark made up of both a word and a symbol.  An example of a trademark that is just a set of words is the “I’m Loving It” tagline of McDonald’s.  You can register a word, symbol, or combination as a trademark either with the State of California or with the U.S. Government, which provides more expensive, but broader, protection.

Protecting Your Trademark

1.  Distinctive.  A trademark cannot be protected from use by others unless it is distinctive and not merely descriptive.  For example, you could not trademark “All-Beef Hamburgers” and prevent others from using the same phrase to describe their beef patties.

2.  Exclusive.  A trademark cannot be registered unless it is exclusive to a type of goods sold by your business.   For example, Starbucks has registered a mermaid to identify its coffee and tea.  Disney has also registered a mermaid, which it uses on children’s dolls and playthings.  Another company could not use or register a mermaid to identify coffee or toys, but it could register a mermaid to identify its telephones – something not covered by either the Starbucks or Disney trademark registrations.

3.  Registration.  The first continuous user of a trademark has the right to protect it from use by competitors, even if the trademark was never registered.  However, registration of the trademark with the State of California (cheapest, but least valuable) or the U.S. Government can help you prove that you were the first user if someone else seeks to use your trademark later.  Trademark registration also provides additional legal rights if you have to file a lawsuit to protect your brand.

4.  Use it or lose it.  You lose a trademark if you stop using it on your products.  You also need to display the ™ or ® symbol following your trademark to put competitors on notice of your ownership of the trademark.

5.  Keep it exclusive.  You must watch for competitors using your trademark, and stop them from doing so, first by demand letter, and then by lawsuit if necessary.  If you don’t, they may acquire a permanent right to continue using your trademark by virtue of your inaction.  Many trademarks have been lost this way.  For example, “Escalator” “Laundromat” and “Aspirin” are all words that were once trademarks, but the trademark protection was lost because the trademark owners did not take legal action to protect their exclusive rights.

If your business uses specific words and/or a symbol to identify its products, the experienced business law attorneys at San Diego Law Firm can help protect your brand.  We can determine whether the words and/or symbol you are using can be trademarked, research whether any competitors are already using the trademark, and, if your trademark is available, we can prepare your state or federal trademark application and guide you through the process.  Please call San Diego Law Firm today at (619) 794-0243 to schedule an appointment

Generally speaking, two unrelated, single and consenting adults may form a registered domestic partnership in California by living together, meeting certain requirements, and filing paperwork with the state.  While it is true that most domestic partnerships are formed by same-sex couples, heterosexual couples where one partner is at least 62 years old may meet the legal criteria as well.
   
California law requires employers to give registered domestic partners of an employee roughly the same benefits that they give to spouses.  It also requires insurance companies to automatically include domestic partner benefits in an employer-purchased group insurance plan.  However,  self-insured employers presently have the option to offer insurance to spouses but not to domestic partners, although this can increase employee job dissatisfaction and may be poor public relations.

Other benefits that are offered to employees with spouses may have to be offered to domestic partners as well.  For example, domestic partners of employees may be entitled to unemployment benefits if they have to relocate because of your employee’s new job.  If your business gives time off to employees whose spouses become seriously ill, it may need to offer the same benefits to employees with ill domestic partners.  If your employee and their domestic partner adopt a child, the employee may be entitled to paid leave if adoption or newborn leave is already offered to employees with spouses.

Because the legal requirements are much higher for public agencies than they are for private businesses, if your business is bidding on a state government contract, it may also have to give domestic partners of your employees full health and retirement plan benefits in order to win the contract.

Let the experienced business law attorneys at San Diego Law Firm help you by making sure that your business is in compliance with all employment laws.  We can prepare a legally sound employee benefits plan or update an existing one, and prepare or update an employee handbook so your employees can quickly determine the benefits available to them and their domestic partners.  Please call San Diego Law Firm today at (619) 794-0243 to schedule an appointment.

Consider the story of a woman who decided to close down her cosmetics company after ten years of operation, as told by the Indie Business Blog in a posting called “A Going Out of Business Success Story.” As the sole employee of her business for many years, Jen Denslow struggled with finding the balance between work and her personal life – so much so her health declined significantly. Ultimately, she decided that closing down the business was in her best interest.  

As was the case for Jen, deciding when and whether to close your business can be one of the toughest decisions you will ever make, especially given the amount of time and energy required to start and keep it going. If you decide to dissolve your business, these are just some the questions you will need to have answers for:

• What terms govern your decision to dissolve your business: specific terms in your business agreement or the general terms of state law?

• What assets do you have left and how much are these remaining assets worth? What is the best way to handle transferring or selling these assets to minimize your business income tax?

• When and how should you tell creditors, customers, and employees that your business is closing?

Closing a business takes more than just walking away. There are legal, tax, and financial issues which must be handled carefully to avoid complications.  Your business may have to file paperwork with the state notifying it that you are closing your business. After your business’ debts are paid, you will have to file final tax returns with both the state and federal government. If you neglect to take these steps or fail to do them correctly, you may be held personally responsible if a lawsuit results from your business’ activities – even if you are no longer in business or providing services.

If you own a business and are considering closing your doors, it is a good idea to first obtain legal advice from one of the experienced business attorneys at San Diego Law Firm. Over the years, we have advised many businesses in your situation, and we can help you comply with all laws and advise you on the best way to minimize taxes and maximize your gains while closing your particular business. Please contact San Diego Law Firm at (619) 794-0243 to schedule a consultation.  We look forward to helping you.

Why the LLC Agreement is so Important

An LLC agreement is a contract between the members of the LLC with each other and with the business entity itself.  The agreement details how the business is organized, and can grant the members binding powers over daily management issues and give members broad decision-making authority.  Because the LLC agreement describes the members’ rights relating to the operation of the company it should be carefully negotiated, put in writing, and signed by all parties.

What an LLC Agreement Should Include

A well-drafted LLC agreement should be customized to define the voting rights of members, and it should include provisions which prevent members from leaving in ways that interfere with the business purpose of the LLC. The LLC agreement should also define the methods that can be used to deal with potential management problems and disputes over finances.  Common methods of resolving disputes include:

•           arbitration;

•           buyout arrangements;

•           financial penalties for engaging in certain conduct; and

•           dissolution.

Planning for Internal “Deadlock”

When managing members cannot agree on a course of action, there may be a deadlock.    In an LLC agreement the members can agree to end a deadlock however they choose – by mediation, arbitration, or even by drawing straws.  This can help avoid economic problems and dissolution of the LLC.

Call San Diego Law Firm for Help with LLC Agreements

If you want to know whether an LLC is the best way to structure your business, or you need help to create, modify or update an LLC agreement, please contact San Diego Law Firm’s experienced business attorneys at (619) 794-0243.  We can walk you through all of your choices and the benefits of each provision in your customized LLC operating agreement.

1.  Marijuana Use under California Law

California’s Compassionate Use Act of 1996 allows a person to possess and use marijuana under a physician’s prescription, strictly for medical use.  It provides that the person who has and uses marijuana but complies with the law may not be criminally prosecuted for this by the State of California.  It allows persons with certain medical conditions, such as cancer, chronic pain, and glaucoma, to use marijuana without fear of criminal prosecution by the state.

This law raises a question for California employers, who are required to comply with the Americans with Disabilities Act (ADA). Under the ADA, employers must provide reasonable accommodations to employees with disabilities. Are California employees who have a physician’s prescription for medical marijuana use protected in any way by the ADA? And what about employees who use other prescribed drugs that may affect their job performance, or cause them to fail a drug test?

2.  Flexible Spending Account Not to Be Used for Marijuana

Recently, the Wall Street Journal published an article about an employee who asked her employer if she could use funds in her company-provided flexible spending account to purchase medicinal marijuana.  Her employer rightfully told her “no,” as the monies that were used to fund the account were regulated by the Internal Revenue Service. As such, those monies could not be used to purchase a substance that was illegal under federal law.  Most likely, a California employer would be justified in giving the employee the same response. Only California government agencies, not federal government agencies like the IRS, are bound by the California law permitting medical marijuana use.

3.  Employee Can Be Fired for Failing Legal Drug Test for Marijuana

A recent case that was decided by the California Supreme Court involved issues directly related to medical marijuana law and the workplace. In Ross v. Ragingwire Telecommunications, Inc., employee Gary Ross filed a claim against his former employer for wrongful termination.  Mr. Ross tested positive for marijuana in a workplace drug test, but had a prescription for medical marijuana. Mr. Ross was fired for failing the drug test. 

The California Supreme Court held that an employer can terminate an employee who tests positive for marijuana even though the employee is prescribed the drug and taking it for medical purposes as defined by the Compassionate Use Act of 1996.  The Court held that neither federal ADA law nor California’s Compassionate Use Act protects employees like Ross. The court said the California law does not create a public policy requiring an employer to accommodate an employee’s use of marijuana for medical purposes.

Under California law, an “at will” employee can be terminated for any reason at any time, except for reasons that would violate public policy.  Now it is clear that employers do not need to accommodate an employee’s use of marijuana for medical purposes.  Furthermore, California employers are allowed to test employees for drug use before hiring and can test current employees when testing is used as a mechanism to ensure workplace safety.