TLD's General Counsel Blog

Client Alert -Employers Pay For California Cuisine

There's no such thing as a "free lunch" — unless you're a California employee at a work-related meal-time meeting.

California has strict rules and regulations governing employee meal breaks, with harsh penalties for violations. The meal break rules are enforced by the Division of Labor Standards Enforcement (DLSE), also known as the "Labor Commissioner." Recently, the DLSE revised its policies about working lunches and meal-time training.

Where there's Smoke...Second Hand Smoke and Child Custody Litigation.

Does your estranged or ex-spouse/cohabitant smoke around the kids when they are in their custody? As California and other states start to create new laws to keep people from smoking around co-workers, and children in cars, it would surprise me if Judges begin to order parents not to smoke around their kids, period! While some may feel this goes too far, the trend is pretty much tilted in this direction. Depending on which side you are on, it is adviseable to seek experienced family law counsel to determine your rights and obligations.

Employer is Liable for Unpaid Wages for Missed Meal and Rest Periods

Today, the California Supreme Court decided the case of Murphy v. Kenneth Cole Productions.  The court determined that the remedy provided in California Labor Code Section 226.7 constitutes a wage or premium pay and is governed by a three-year statute of limitations, rather than a penalty (carrying a shorter one-year limitations period).  This means greater potential damage awards for employees and greater liability for employers who fail to completely and consistently enforce and document meal and rest periods.  Please click here for full text of opinion.

Private Judicial Officers in Family Law

With congested court calendars in most family law courtrooms, parties are increasingly turning to private judicial officers (typically retired from the bench). This option is being selected for both ADR/mediation settings and for contested hearings. Corporate litigants in civil lawsuits have been using these methods for some time. Over the past six years, however, family law attorneys and parties have been increasingly drawn to this forum for dispute resolution.

Consumers in family law matters, particularly in complex custody and property matters, are finding that it is "cheaper" to pay a private judge than to be at the mercy of uncertain and delayed trial calendars, which force lawyers and parties to continuously "re-prepare" for hearings that wind up not taking place or taking place many months, even years after operative events have taken place.

In determining whether a private judicial officers is a worthy option for your matter, ask the following questions:

1. Are any of the litigants out of state residents?

2. Are there issues in the dispute that might be better served in a "non-public", less sensitive arena?

3. Are there adequate resources for one or both parties to pay for the retired bench officer AND the lawyers?

4. Will the agreement to appoint the private judicial officer include a reservation of discovery and/or appellate rights you would have in any other matter?

5. How many hearing prior to the contested trial do you anticipate there will be?

There is no magic answer, and each marital dispute raises different concerns. You should  weigh the various options, and make the best informed decision you can make.

Article Submitted By: Attorney Daniel Gold

What Every Employer Needs To Know About Their Obligations To Employees Who Are Members Of The Armed Forces

This spring we mark the beginning of the fifth year of the war in Iraq. As our soldiers valiantly struggle and sacrifice employers need to know that they too must shoulder some additional responsibilities. Employers need to be aware of the fact that they have certain obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

It's Not Always "50/50"

In California, the community property and the quasi-community and quasi-marital assets and liabilities must be divided equally upon dissolution absent a written agreement or in-court oral stipulation to the contrary. (Family Code Section 2550). This is only part of the story, however. Where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.(Family Code Section 2601). This may be true where the debts outweigh the assets; so called "negative" estates. In these cases, the court may look at the pro rata breakdown of the parties incomes in dividing the debts between the spouses. This results in the higher earning spouse taking on a bigger portion of the "community" debt.

Other exceptions to the "equal division" rule include: Personal injury awards under certain circumstances.(Family Code Section 2603) Some out of state real property; Sums deliberately misappropriated, Property totaling less than $5,000 in value in default cases;in cases where debts were incurred in "anticipation of separation", where one spouse has attempted to murder the other; and where one spouse has been awarded civil damages against the other for domestic violence.

Article Submitted By: Attorney Daniel Gold

Child Support and Tax Planning

Exhaustion of Administrative Remedies

The California Department of Fair Employment and Housing ("DFEH") is the State administrative agency responsible for "protect[ing] the people of California from unlawful discrimination in employment, housing and public accommodations, and from the perpetration of acts of hate violence."  According to the DFEH:

"The Fair Employment and Housing act ("FEHA"), at Government Code section 12965, subdivision (b), requires that individuals must exhaust their administrative remedies with the Department of Fair Employment and Housing by filing a complaint and obtaining a 'right-to-sue notice' from the Department before filing a lawsuit under the FEHA."

CHECKS AND BALANCES: FOCUS ON THE FINANCES

It is tough to deal with money when you are so emotionally involved with your spouse. However, statistics show, the better you handle your emotions, the better you will be able to manage your money during divorce.

If you find yourself attempting to get even, get it over with or get back together with your spouse, be on guard.  These three "gets" will affect your ability to think clearly and act in your own best interest.  The financial agreements you make during divorce, will affect you permanently.  Moreover, although you are entitled to pursue your legal rights, the judicial system is no place to get satisfaction for your emotional demands.

Research shows that divorce is second only to the death of a spouse in terms of the amount of stress produced.  You have to safeguard your sanity and emotional well-being.  As you move through your divorce, it will be easy to become overwhelmed with the financial details.  Nonetheless, you must make sure that the financial choices you make today will work for you tomorrow.  There is an excellent article, entitled, "Avoiding Common Pitfalls."  Click on the link to read about understanding your financial and emotional limits.

Article Submitted By: Attorney Daniel Gold