TLD's General Counsel Blog

The Best Defense is a Great Offense

California’s Labor Laws are geared to provide maximum protection to the employees. As an employer, your best defense against costly litigation is a three step process.

First, ensure that your procedures are compliant with both federal and state laws. This includes, but is not limited to, meal and rest breaks, payroll, grievance procedures, and medical/sick leave policies.

Second, ensure that your procedures are in line with what is set forth in your employee manual or other handbook.

Third, ensure that your employment decisions are even handed. Treating employees differently in similar situations can lend to claims of discrimination. Thus, in all decisions you make, you should consider whether it’s a precedent you’re willing to establish.

Tredway, Lumsdaine & Doyle, LLP is available to answer questions or concerns you may have relating to your employment practices and procedures.

Article Submitted By: Attorney Annie Markarian

Restraining Orders

Restraining orders are powerful tools that we have used to protect our clients in a variety of situations. Restraining orders can limit both physical interactions and communications by telephone, email, or mail. In addition, certain restraining orders can grant monetary damages and even affect long term child custody. While common in domestic violence cases, restraining orders also are not limited to family or romantic relationships. They may also be appropriate in business or real estate disputes where there have been threats of violence or physical altercations. Restraining orders may also be appropriate where there has not been any physical threats or abuse. For example, elder abuse restraining orders may be granted to protect an elder or dependent adult from family, neighbors, caretakers, or any other person who may have engaged in financial abuse or otherwise acted to jeopardize the elder or dependent adult’s physical or financial well-being.

Article Submitted By: Attorney Jennifer Lumsdaine

Cal/OSHA - Tips for Helping Employees Work Safely, Minimize Heat Stress

What can I do to protect my employees from the effects of working in high temperatures?

When employees work in hot conditions, employers must take special precautions in order to prevent heat illness. Heat illness can progress to heat stroke and be fatal, especially when emergency treatment is delayed. Operations involving high air temperatures, radiant heat sources, high humidity, direct physical contact with hot objects, or  strenuous physical activities have a high potential for inducing heat stress in employees engaged in such operations. During the summer, workers employed in outside jobs such as construction and agriculture are subjected to many of these conditions and, for those who ignore the signs and symptoms, can become victims of a heat stress incident. According to Cal/OSHA, heat illness contributed to 12 work-related deaths in 2005 and eight in 2006. It has been well publicized that Cal/OSHA has adopted regulations for outdoor workers to address the employer’s responsibility to ensure that employees are provided means to counter the effects of working in high temperatures. These requirements, Heat Illness Prevention in Outdoor Places of Employment, are contained in Section 3395 of the General Industry Safety Orders.

Injury/Illness Prevention Plan

Employers are required to put their heat illness prevention procedures, including employee training, in writing. It is recommended this document be incorporated into the employer’s injury and illness prevention plan (IIPP). Training, at a minimum should include: l why it is important to prevent heat illness; l procedures for acclimatization; l the need to drink water frequently; l the need to take breaks out of the heat; l how to recognize the symptoms of heat illness; l how to contact emergency services and how to effectively report the work location to 911; l the importance of choosing water instead of soda or other caffeinated beverages and avoiding alcoholic beverages all together during high heat.

Signs to Recognize

There are several “causal factors” that may affect a person’s sensitivity to heat. Age, weight, degree of physical fitness, degree of acclimatization, metabolism, use of alcohol or drugs, and a variety of medical conditions such as hypertension, all affect a person’s sensitivity to heat. Even the type of clothing worn must be considered. Prior heat injury predisposes an individual to additional injury. Four conditions must be recognized by supervisors of employees potentially exposed to heat stress: Heat rash or prickly heat, heat cramps, heat exhaustion, and heat stroke. The Cal/OSHA website, HRCalifornia and CalChamber booklets contain detailed descriptions and symptoms of heat stress-related illnesses with intervention treatments. Specific measures that can be adopted to lessen the likelihood of a heat stress illness include: l administrative controls, such as work rotation, starting work early in the morning or in the evening; l providing plenty of fluids to drink, especially water; and l providing personal protective equipment in the form of cooling vests and light-colored or reflective clothing and/or shade.

Heat Risks

There is no absolute cut-off below which work in heat is not a risk. With heavy work at high relative humidity or if workers are wearing protective clothing, even work at 70 degrees Fahrenheit can present a risk. In the relative humidity levels (20 percent to 40 percent) often found in hot areas of California, employers need to take some actions to effectively reduce heat illness risk when temperatures approach 80 degrees Fahrenheit. It is especially important to be vigilant during periods of abnormally high heat. Even though Section 3395 is specific to outdoor workers, the requirements can be useful to all employers who have employees subject to working in/at a work site where the temperature/humidity can result in heat illness — for example, poorly ventilated warehouses, work processes exposing employees to high temperatures and/or humidity such as foundries or glass bottle manufactures, construction sites, etc. Heat illness is a foreseeable hazard as defined and enforced by Cal/OSHA.

Using Section 3395, employers can address the conditions within a building or permanent work site and prevent the occurrence of heat illness. As stated previously, the steps taken should be included in the company’s IIPP.

More Information

Cal/OSHA has published informational documents at www.dir.ca.gov. Click on “Heat Illness Prevention” under “What’s new.” CalChamber members can find information on heat illness by searching on “heat illness” at www.hrcalifornia.com. In addition, the CalChamber has developed a mini-book, Heat Illness Prevention in California. It is written in both English and Spanish and has readily understood illustrations of the outward symptoms of heat illness. For information on obtaining this booklet, call (800) 331-8877 or visit www.calbizcentral.com.

Article Provided by: volume 34, number 18 ● June 6, 2008 of the CalChamber Alert Newsletter. And written by Mel Davis - Cal/OSHA Consultant

Training Alert – OSHA Compliance and Workers' Compensation

When: Wednesday, May 14, 2008
Time: 12:00-2:00
Light Lunch Provided – Please Arrive Early

Don't miss this one-time opportunity to hear Peter Riley of CALOSHA review tips for employers on how to reduce your liability as an employer and safeguard your workplace.

In addition, we will be reviewing the rules and regulations of First Aid Injuries versus Recordable Injuries and how you can reduce your costs by paying claims direct.

No Cost for Advisor clients. $49/all others.
This class will fill up so please rsvp early if you are planning to attend. Call or email Monica to reserve your seat.

Monica McMahon
HR Coordinator
HR NETwork, Inc.
Phone: 714.799.1115
Fax: 714. 898.2731
monica@hrnetworkinc.com
www.hrnetworkinc.com

Employers, Beware!

In this day and age of technology, circumstances in which employers are liable for the torts of their employees are growing exponentially. For example, as of July 1, 2008, all California drivers must use a hands-free apparatus when using a cell phone while driving. In addition to the fines for violating this law, employers should be wary of the potential civil liability.

Specifically, if a violation of this law contributes to an automobile accident, an employer may be held liable for damages sustained by the accident victim. A jury of 12 people who themselves have been delayed, cut off, or sideswiped by a technologically stimulated driver, will be more than happy to force the employer to share responsibility for the tragedy.

Article Submitted By: Attorney Annie Markarian

ARC Walk - ARC of Southeast Los Angeles County

A rowdy gang of 34 TL&D supporters showed- up to the ARC Walk on Saturday, April 5, 2008 to show our great support for ARC of Southeast Los Angeles County. TL&D also donated $2,500 to become a diamond sponsor of this special event.

Arc of Southeast Los Angeles County is committed to providing for people with mental retardation and other developmental disabilities the ability to form and work towards goals through training and education, based on their individual abilities. Arc of Southeast Los Angeles County is further committed to helping to reduce and limit the incidence and consequences of mental retardation through education research, advocacy and the support of families, friends and community.

Tredway, Lumsdaine & Doyle has supported ARC for many years through special events such as this, and by hiring people with developmental disabilities as support for the law firm. “Community service is important for any business, but its particularly important for lawyers,” said Joe Lumsdaine, senior partner for the firm, “Lawyers serve in a privileged position. They should be willing to support the community in return.”

Compliance with Orders to Withhold, Wage Garnishments and Levies

Many employers and financial institutions are frequently forced to deal with Orders to Withhold (Wage Garnishments) and Levies resulting from tax deficiencies, judgments and support orders against their employees or clients. Failure to comply with the Order to Withhold or levy can result in financial penalties against the employer or financial institution, which essentially shifts the debt from the employee/client to the employer or financial institution. However, there can also be issues with compliance.

First, very specific rules and limitations apply to all Orders to Withhold and Levies. Some of these rules, such as the withholding periods and notice requirements are set forth on the Order or Levy. However, many of these rules are not provided directly to the employer or financial institution at the time the Order or Levy is received. Rather they are hidden within the California Code of Civil Procedure.

Recently, Tredway, Lumsdaine & Doyle successfully represented a financial institution from liability stemming from the company’s compliance with an Order to Withhold after their customer sued them for allegedly mishandling an Order to Withhold. Although the Court ruled in favor of the financial institution, the Court also held that the company had acted wrongly in submitting their customer’s monies to the State of California as demanded by the Franchise Tax Board. The Court found that, under the Code of Civil Procedure, the type of account was not subject to the Order even though the Order to Withhold clearly stated that the account was subject to the Order. Tredway, Lumsdaine & Doyle was only able to prevent the financial institution from liability by directing the Court's attention to an indemnity provision within the Code.

Every Order to Withhold and Levy thus needs to be handled carefully and with full knowledge of all laws related to the enforcement of debts.

Article Submitted By: Attorney Jennifer Lumsdaine

What You Don't Know Can And Will Hurt You

Many businesses, small and large, are successful because early attention was paid to properly forming, maintaining and organizing the structure, observing formalities and ensuring legal compliance. Other businesses are successful in spite of themselves. No surprise, it is this latter group that faces the most risk from employment-related claims from its workforce.

Oftentimes, the first an employer becomes aware of an issue is when it has received notice of a complaint from an administrative agency or a lawsuit. Challenged practices include how and when employees are paid, overtime, meal and rest periods, handling of harassment, discrimination and retaliation claims, privacy issues, breach of contract, benefits administration, whistle blowing, termination, workers’ compensation, safety, unemployment, due process and union issues. By then, it is too late. An employer’s business practices will be laid bare for examination by a hearing officer, judge or jury. If that employer did not take the time to scrutinize and test its own business practices before that time, liability is sure to follow.

So then, where to begin? The jumping-off point for any business (new or established) to begin its evaluation is with a formal audit. This can be a daunting task, especially if the enterprise has no pre-established human resource department. HR Network is a human resource outsourcing firm which has worked alongside Tredway, Lumsdaine & Doyle LLP in caring for business clients.  HR Network routinely provides formal audit functions, which are broken down as follows:

HR Compliance Audit

HR Network will come on-site to conduct a comprehensive assessment and audit, reviewing all areas of HR compliance required of employers including: employee file set up, compliance and maintenance; procedures and policies for employee issues; affirmative action plan; safety plan; wage and hour compliance; hiring and termination practices; payroll procedure; required postings and open workers’ compensation claims. After the audit, the business client will receive a full report highlighting areas of concern regarding compliance issues with an analysis and recommendations, as well as a timeline of proposed changes. Costs for this audit range from $1,995.00 for a business with less than 20 employees, to $2,595.00 for 21-49 employees and $3,595.00 for more than 50 employees.

HR Mini Compliance Audit

HR Network will come on-site to conduct a limited assessment and audit, reviewing the 10 most common employment mistakes that employers make and give the business client insight on how to avoid them. In addition, HR NETwork will review the business’ current employee handbook for compliance. The cost for this audit is $295.00.

Once the audit is completed and the recommendations made, the next step is to implement those suggested changes. Rolling out a new pay plan, vacation plan or benefit plan involves more than just having your employees sign a revised Employee Handbook. Among other things, thought must be given to whether the new plan imposes new and different terms and conditions on employment, unfairly affects some employees over others (i.e. discriminates), deprives employees of earned and vested compensation or alters promises made to employees in a written contract.

What you don’t know can hurt you. The benefit of a formal audit is to highlight areas of concern which can then be followed by implementation of lawful policies before those buried and ticking timebombs explode into liability for the business. HR Network can be contacted at (714) 799-1115.

Article Submitted By: Attorney Shannon M. Jenkins

Valentine's Day and Office Romance

Today is Valentine's Day, the day to rekindle romance or find new romance.  Most employees may look around at the people they spend the most time with every day: their coworkers.  Employers, beware!  Although inter-office romance may seem harmless and lead to a more inviting and friendly work environment, the legal perils of sexual affairs and supervisor-employee relationships are great.  A 2005 California Supreme Court decision makes it riskier for employers to ignore sexual relationships between supervisors and their subordinates.  See Miller v. Dept. of Corporations.

Cutting off the behavior before it begins, and punishing those employees that fraternize not only lowers a company's legal liability, it also is the best way to keep a "friendly" working environment from turning sour.  Companies should engage counsel to implement an appropriate social code of conduct.  Please contact an employment and labor attorney for additional details. For more information on this subject you can read the article by Chris Hoffman in the Forum section of the Los Angeles Daily Journal titled "Frisky Business", dated Thursday, February 14, 2008 - Page 6.

Los Angeles Daily Journal

Article Submitted By: Attorney Brooke M. Pollard

Do Not Overlook Declarations of Disclosure

After or concurrently with service of the petition for dissolution or nullity of marriage or legal separation of the parties, each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council. The commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury. Unless the parties have stipulated to a mutual waiver of the final declarations of disclosure (see below), the preliminary declarations of disclosure are essentially only a general “inventory” of the parties' respective assets and liabilities. Unlike the final disclosure declarations, characterization and valuation details are not required.

Specifically, each party's preliminary declaration of disclosure “shall set forth with sufficient particularity, which a person of reasonable and ordinary intelligence can ascertain,” the following information (Fam.C. § 2104(c)):

• The identity of all assets in which the declarant has or may have an interest and all liabilities for which the declarant is or may be liable ... regardless of the characterization of the asset or liability as community, quasi-community or separate. [Fam.C. § 2104(c)(1)]

• The declarant's percentage of ownership in each asset and percentage of obligation for each liability where property is not solely owned by one or both parties to the action. [Fam.C. § 2104(c)(2)]

• Optionally, the declarant's characterization of each asset and liability. [Fam.C. § 2104(c)(2)—“may also set forth the declarant's characterization of each asset or liability” (emphasis added)]

Each party's preliminary declaration of disclosure must be accompanied by a completed income and expense declaration ... unless a “current and valid” income and expense declaration has already been provided. [Fam.C. § 2104(e)]

A preliminary declaration of disclosure may be amended without leave of court. [Fam.C. § 2104(d) (also requiring proof of service of any amendment to be filed with court)]

Indeed, though stated optionally in § 2104(d) (“declarant may amend ... ”), appropriate amendments as required by the circumstances are mandatory: The duty to disclose includes “a continuing duty to immediately, fully, and accurately update and augment” a party's disclosures “to the extent there have been any material changes ... ” [Fam.C. §§ 2100(c) (emphasis added), 2102(a)(1)]

Except by court order for good cause, before or at the time the parties enter into an agreement for the resolution of property or support issues other than pendente lite support, or, if the case goes to trial, no later than 45 days before the first assigned trial date, each party, or the attorney for the party in this matter, shall serve on the other party a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury on a form prescribed by the Judicial Council, unless the parties mutually waive the final declaration of disclosure. The commission of perjury on the final declaration of disclosure by a party may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury.

Article Submitted By: Attorney Shannon M. Jenkins