Would you enjoy driving downtown and searching for a parking place just to spend two hours in an attorney’s office to talk about distributing your property when you die?

Well according to recent statistics, hardly anyone does. According to the AARP, not very many people make such an effort, or any effort at all towards their estate planning. More than 90% of the Americans have failed to take appropriate steps to protect themselves, their families and their property through proper estate planning.

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A recent court decision created a substantial loophole for insurance companies, which can hurt contractors. Although the court decision suggests that it does nothing more than interpret an insurance policy, it doesn’t make a great deal of sense from a logical standpoint.

The case involved deciding when an insurance company has the duty to defend and when an insurance company has the duty to indemnify its insured, in this case, a contractor. The duty to defend requires that the insurance company pay for the defense of a claim. The duty to indemnify requires the insurance company pay for the covered damages found to be caused by its insured.

Most professions in the state of California are subject to a great deal of regulation. Regulations are passed by an administrative body such as the Contractors’ State License Board. Although regulations don’t carry the same weight as legislation, they’re very much part of the law governing the regulated profession. With respect to contractors, the Contractors’ State License Board has a number of regulations concerning the classification system, discipline, etc.

Hearings pertaining to violations of those regulations are handled through the Office of Administrative Hearings. This is an administrative court that makes a proposed decision that the Registrar will adopt or not adopt. Quite often, the matter being complained of is poor workmanship or deviations from accepted trade practices.

We have always argued that if the violation of the License Law also triggers an insurable event, then the insurance company should both defend and indemnify the contractor, because that is the harm that was covered by the insurance policy.

This is what the contractor purchased insurance to cover. The most recent case now holds that the insurance company has neither a duty to defend nor the duty to indemnify the contractor in a situation pending in an administrative tribunal.

There is an axiom in the field of law that the duty to defend is greater than the duty to indemnify. Simply stated, if any part of a claim is covered, then the insurance company has a duty to defend the entire claim (lawsuit) even though the result may be that a portion of the lawsuit was not covered. Based on this theory, we have quite often asked an insurer to help in the defense of a disciplinary matter stating that the discipline would be imposed as a result of an insurable offense.

We have also argued that restitution ordered by the tribunal for “property damage” is covered. However, this recent case held otherwise, based on the language in the insuring policy. Typically, those policies discuss “a suit seeking damages” and “all sums that the insured becomes legally obligated to pay as damages.”

The court interpreted that language to mean only as a result of a civil action would an insurance company be required to either defend or indemnify.

In other words, there would have to be a lawsuit filed in court only.

As said previously, this doesn’t make a great deal of sense, but probably is an accurate analysis in interpreting the language.

Law Offices of Abdulaziz & Grossbart
P.O Box 15458
North Hollywood, CA 91615-5458
(818)760-2000
(323) 877-5776
(818)760-3908 FAX
Web Site www.abdulaziz-grossbart.com

Article written based on Pennsylvania and Federal Law

Each Employment Discrimination case is different. That is why you must contact an attorney to see if you have any rights. But all Employment Discrimination cases share some common traits. This Article discusses some of those traits.

To prove an Employment Discrimination case you must show several things. First, you must be able to show that something bad happened to you in your employment. This can be as simple as being fired, not receiving a promotion or not being hired for a job. Or it can complex like not given the proper training to complete the job, not being given the opportunity to apply for a promotion or not being treated the same as others in the same workplace. This “bad treatment” (Employment Discrimination) does not have to be one single event. It can be a series of events which happen over time. Take, for example, sexual harassment. You can sue for sexual harassment if a person makes sexual or other unwelcome remarks to you not once, but over several years or months. The sexual harassment is an ongoing “bad treatment.”

After you can show you have had some “bad treatment” you need to show that this “bad treatment” in your workplace was because of some “illegal reason.” What this means is that the person who allegedly discriminated against you did this “bad treatment” because he or she didn’t like your skin color, your religion, because of your sex, because you exercised your rights under the law to unionize, etc. (All of these “illegal reasons” are spelled out in federal and state discrimination laws.) If this “bad treatment” was because of some “illegal reason” then you can move on to the next step. But, if the reason for the “bad treatment” was because of your hair color, because you didn’t get along with everyone or because you weren’t performing in your job then it is unlikely you can succeed in your employment discrimination case.

However, if your employer claims you received this “bad treatment” for a “legitimate business reason” (or lies about the treatment or the reason for the treatment) then the situation become more complex. If an employer can offer a “legitimate business reason” for the treatment, and it is true, then you will lose your Employment Discrimination case. (An example of a “legitimate business reasons” is that you are not qualified for the job.) But if the “legitimate business reason” is just a cover-up for some “illegal reason”, a “pretext,” then you have to prove that this “legitimate business reason” is false when you prove your case in court. That is, you have to prove this “pretext” (the cover-up) is false and the real reason for the “bad treatment” is the “illegal reason” not the “pretext.”

NOTE: This is where it becomes complex to determine whether the reason for this “bad treatment” was because of some “illegal reason” or not; and this is where an attorney can help. There are a lot of laws which provide illegal reasons for “bad treatment.” If an employer violated one of these laws then you can sue them, if an employer did not then basically you can’t.

The next step to proving your Employment Discrimination case is proving that you fall in a “protected class.” Being in a “protected class” just means that you were a person that is supposed to be protected when Congress, or your state Legislature, wrote the discrimination law. For example, to file a suit under the Americans with Disabilities Act you must have some sort of disability to be in the “protected class.” Most people usually fit into the “protected class.”

There are also several other things which you may have to prove in your case. These depend on what type of case you have. For example, if you are trying to say you were not hired because of your race for a job, you must prove that you were qualified for the job. Further, you would have to prove that the job was still open after you applied for it. These other requirements vary from case to case and depend on which law you are suing under.

One of the most important aspects about Employment law is, however, that you must see an attorney almost immediately after you think you have been discriminated against. The law allows only a very short amount of time to file a lawsuit before you are prevented from succeeding in your lawsuit. If you have a federal employment claim you must notify the EEOC within 180 days of the “bad treatment.” If you do not you are generally forever barred from filing a lawsuit.

A lot of people are very curious about what they could recover if they are successful in their lawsuit. Generally, if you are successful in your suit you might be able to recover the following:

1. Back Wages (money you would have received if you had worked for the company the whole time up until the time of your trial);
2. Front Pay (money paid for theoretically working for some time in the future–for example two years salary);
3. Consequential Damages (money for just being discriminated against);
4. Punitive Damages (money received because the court decided to punish the company for discriminating against you); and
5. Attorneys’ Fees (money usually paid to your attorney for working on the case).

Employment law is a complex area of law. It generally requires professional legal help. But if you had to sum up Employment Discrimination in a sentence or two it would basically be this: If you have been received “bad treatment” in your workplace because of some “illegal reason” then you might have an Employment Discrimination case. But, remember you must have received this “bad treatment” because of the “illegal reason.”

Article written based on Pennsylvania and Federal Law

In 1993 Congress passed and the President signed into law the Family and Medical Leave Act. The purpose of this law is to balance the needs of the workplace with the needs of families. It allows employees to take reasonable leave for medical reasons, for the birth or adoption of a child, for the care of a child, spouse, or a parent who has a serious health condition.

To be eligible under this law you have to employed for at least twelve months from the employer you wish to take the leave. And generally your employer must have at least 50 employees working for him or her in order for you to be able to take leave under this law.

If you qualify under this law you are entitled to take a total of twelve workweeks of leave during any twelve period for any one of the following:

1. the birth of a child and care for your newborn child;
2. the placement of a child for adoption or foster care;
3. to care for your spouse, your child or a parent if they have a serious health condition; or
4. a serious health condition which prevents you from performing the functions of your position.

The amount of leave you take under the Family and Medical Leave Act can be taken intermittently or on a reduced schedule if your employer and you agree to it. But the total amount of leave available to you cannot be reduced to under twelve weeks. If you take intermittent leave the employer can transfer you, temporary, to another position provided that the new position has the equivalent pay and benefits and better provides for your leave. But if you and your spouse work for the same employer both of you cannot take twelve weeks of leave each. You must generally split the twelve weeks between both of you.

Generally, leave under the Family and Medical Leave Act is non-paid leave. Your employer can offer some paid leave, but they are not required to do so. You, or your employer can require you to, use your accrued paid vacation time, personal time or medical/sick leave during your twelve week leave.

If you know that you are going to require leave for the birth or adoption of a child you must notify your employer 30 days in advance of the leave, if practicable. Also you have to make a reasonable effort to schedule medical treatment (if you are taking leave for a serious health condition) so it will minimize the disruption to the employer, if at all practicable. And when you are on your leave your employer can require you to state your intentions on whether you intend to return to work.

If you are taking leave for a medical reason, your employer can require you to have medical certification issued by a health care provider. If your employer wishes, at the employer’s expense, they can have a second opinion issued on the medical reasons for your leave. If your medical certification and your employer’s second opinion differ, your employer may require you, at your employer’s expense, to submit to another opinion from a health care provider. This third opinion from a health care provider, chosen by you and your employer together, is binding on both of you. Your employer can also require subsequent additional medical certifications on a reasonable basis.

When you are out on leave under the Family and Medical Leave Act your employer must maintain your health benefits under any group health plan for the duration of your leave. If, however, you fail to return to work after your leave you may be required to reimburse your employer for these benefits. You are not required to pay for these benefits if your failure to return is a result of circumstances beyond your control or because of the continuance of a serious medical condition. You do not however, accrue seniority or other employment benefits during your leave.

When you return from your leave you must be restored to your former position or a equivalent position. The exception to this rule is if you are a highly compensated employee. If you are a highly compensated employee and your employer does not wish to reinstate you, your employer can refuse to do so if reinstatement causes substantial economic injury to the employer.

If an employer interferes with the rights of the employee or discriminates against an employee for asserting his or her rights under this law, an employee can sue the employer. An employee can recover either money damages or can require the employee to reinstate the employee. If the employee requests money damages he or she can receive money equal to the amount of wages, salary and benefits lost for violation of this law plus interest paid on this lost compensation. The employee can also recover liquidated damages equal to the amount paid in lost wages, salary and benefits if the court believes the employer did not violate this law without reasonable grounds. The employee, if he or she wins her lawsuit, can also require the employer to pay reasonable attorneys’ fees and costs of the lawsuit.

One of the most publicized types of employment discrimination in the news today is sexual harassment. There are two types of sexual harassment: Quid Pro Quo and Hostile Working Environment.

Quid Pro Quo

Quid Pro Quo occurs when a person is subjected to sexual advances and their refusal of those sexual advances results in negative consequences for them. Or if a person is going along with the sexual advances and they want to stop, but if they do stop something bad will happen to them this also is Quid Pro Quo. A common example of Quid Pro Quo is when a supervisor says to the employee you must sleep with me or you will get fired. Or the supervisor says if you don’t continue sleeping with me you will get fired. Both of these situations constitute Quid Pro Quo sexual harassment.

Sexual advances don’t just have to be sexual intercourse. Sexual advances can be unwanted sexual solicitations, sexual horseplay, and/or sexually suggestive contact or conduct. And sexual advances do not have to be sexual in nature. The advances can satisfy the law’s requirement if the person committing sexual harassment performs the advances because of the employee’s sex. That is, if a supervisor only does something because the employee is a particular sex, that would constitute sexual harassment (or sex discrimination) under the law.

Another important part of sexual harassment is that the sexual advances must be unwelcome or unwanted. If the employee consents willingly to the advances then there is no sexual harassment. But remember this, if a person goes along with the advances to prevent something bad from happening to them this is not considered consensual, it is considered sexual harassment.

Hostile Working Environment

The second type of sexual harassment is Hostile Working Environment. A claim for Hostile Working Environment occurs when an employee is subject to sexual conduct or acts, which was unwelcome, and the conduct was severe enough to interfere with the employee’s work or severe enough to create an offensive working environment for the employee.

Hostile Working Environment differs from Quid Pro Quo in that in a Hostile Working Environment claim an employee is subject to the actions of another person rather than being provided with a choice. For example, if a supervisor came up and told an employee to sleep with them or they would lose their job this would be Quid Pro Quo. If the same supervisor just came up and fondled the employee this would be Hostile Working Environment. If the supervisor did both, then the employee could sue for both Quid Pro Quo and Hostile Working Environment.

Sexual conduct under a Hostile Working Environment claim can be defined as a lot of things. Touching, sexual comments, gestures are all considered sexual conduct under the law. But, other actions not sexual in nature can constitute sexual harassment as well. For example, constantly asking an employee out on a date can constitute harassment. Following an employee around and invading his or her personal space can also constitute harassment. And if someone does something which is not sexual in nature but they do it because of the sex of the employee this can constitute sexual harassment (or sex discrimination). Just like Quid Pro Quo the sexual conduct must be unwelcome.

The key part of a Hostile Working Environment claim is usually whether the conduct was severe enough to interfere with the employee’s work or severe enough to create an offensive environment. There are a lot of cases (and a lot of debate over) what defines this area. Just because the employee didn’t like it does not make it illegal. There are several factors taken into consideration when considering whether the conduct was severe:

1. how often it occurred;
2. how bad it was;
3. whether the conduct involved touching;
4. who committed the conduct;
5. was more than one person committing the conduct; and
6. how did the conduct interfere with the employee’s work.

Because of the discrepancy of the courts to fully define what constitutes severe conduct you should see an attorney to explain your rights.

Following are some commonly asked questions about Sexual Harassment:

Can a Woman Sexually Harass a Man?

Yes. It makes no difference under the law whether a man harasses a woman or whether a woman harasses a man. Both are illegal.

Can a Man Sexually Harass a Man?
Or a Woman harass a woman?

Yes. The United State Supreme Court has said that under the law it is illegal for a man to harass a man or for a woman to harass a woman. The same laws apply.

Who do I sue the person who harassed me or the company we work for?

You cannot sue the individual person who harassed you. You must sue the company. Of course if the person who harassed you touched you, you might be able to sue that person for assault and battery (a tort action). But in sexual harassment suits you cannot sue individuals.

What can I get if I win a Sexual Harassment case?

If you win a Sexual Harassment case you could be awarded money for wages, consequential damages (for the act of being discriminated against) and punitive damages (for punishment of the company) capped at a maximum of $300,000 or lower depending on how many employees work for the company, and attorney fees. There are no guarantees. You could recover nothing.

If I think I have been Sexually Harassed what do I do?

If you think you have been sexually harassed see an attorney as soon as possible. You only have a limited amount of time to file a claim (usually only 180 days from the time of the harassment).

Despite what most high-tech employers think, California courts are extremely reluctant to enforce a non-compete agreement that an employee signs as a condition of his/her employment.

California Business and Professions Code Section 16600 provides that subject to certain limited exceptions “every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.” Thus, the general rule is that a non-compete agreement is void as a matter of law and California courts will not enforce it. The reason is a public policy against contracts preventing people from earning a living.

A non-compete agreement IS enforceable under certain, limited conditions

In determining whether an exception to non-compete agreements being void the California courts apply a balancing test with the courts being willing to uphold reasonable limited restrictions.

Exceptions

California law provides for certain limited exceptions to the rule that non-compete agreements are void. California Business and Professions Code Section 16601 provides that a person who sells substantially all of his/her interest in a company or all the assets thereof may have a valid non-compete agreement that will be enforced by California courts. The statute does not permit a non-compete agreement where the shareholder sells less than substantially all of his shares. Thus, where an employee signs an agreement not to compete against his/her employer after the employment has ceased, there is no sale of his/her ownership interest in the company and a non-compete agreement will not be enforceable.

Limited scope in order for the non-compete agreement to be valid.

Despite the fact that Business and Professions Code Section 16601 permits non-compete agreements, there are still other requirements in order for such a non-compete agreement to be valid. In order to be valid, the non-compete agreement must, in addition to being part of a sale of substantially all of the person’s interest in the company, be limited in terms of both time and geography.

Time Limitation

Since there is a general policy against preventing a person from earning a living, the Courts are reluctant to uphold these agreements in general. Where a non-compete agreement fits within the exception of the sale of substantially all of a person’s interest in the company, there still must be a limitation on the length of time that the non-compete agreement is valid. If the non-compete agreement provides that the seller will not compete with the purchaser for 50 years it is almost certain that California courts will void such an agreement as being too great a limitation on the seller’s ability to earn a living.

California courts generally permit non-compete agreements for only relatively short-term duration, usually not to exceed two to three years. A non-compete agreement with a two to three year limitation on competition is likely to be enforceable. Any longer period of time and the courts will look with a skeptical eye towards enforcement. Here too, however, there may be circumstances that justify a longer term. Consultation with an attorney in this area is essential to drafting an enforceable non-compete agreement.

Geographical limitation

The limitation on competition must also be restricted by geographical area. Whether a geographical limitation is reasonable will depend upon the particular facts involved. There are some basic guidelines to determining whether a non-compete agreement will be enforceable. However, an attorney should be contacted to review and properly research your particular case.

Let’s look at an example: If I sell an Italian Restaurant in Moorpark and sign an agreement not to compete with the Restaurant, the non-compete agreement must have a reasonable limitation in the geographic area in which I am agreeing not to compete.

In other words, if the agreement provides that I cannot set up an Italian restaurant in Ventura County, California courts are likely to enforce this non-compete agreement since it has a reasonable geographic limitation on competition. If, on the other hand, the agreement provides that I cannot compete against my Moorpark restaurant anywhere in the United States, the courts are unlikely enforce such a non-compete agreement as being overbroad and an unreasonable restraint on trade.

However, if I sold a chain of Italian restaurants that operated throughout most of the major cities in the United States, it is much more likely that the courts would uphold such a non-compete agreement. The idea being that a person that purchases a business will only do so if the person that they are buying from cannot open up a new competing business across the street.

The Internet and the New Economy

The rise of popularity of the Internet and b2b (business-to-business) commerce has contributed to a worldwide economy. Businesses now sell products and services exclusively over the Internet. Thus, when a person sells their business the question of geographical limitations on non-compete agreements is a more open question.

The courts can now enforce non-compete agreements on a much larger geographical basis since sales and income can be generated over the Internet worldwide. Thus, non-compete agreements relating to Internet commerce and large geographical areas are increasingly likely to be enforced by the courts.

Non-compete agreements while employed are valid.

It is important to note that while only post-employment non-compete agreements are void, non-compete agreements during employment are quite enforceable. This is true for several reasons. Business and Professions Code 16600 applies only to post-employment non-compete agreements.

Additionally, every employee owes to his/her employer a duty of loyalty. If an employee goes into competition with the employer while continuing to be employed by that employer is likely to be in violation of his/her duty of loyalty. Further, if the employee is using any information obtain from his employer for the employer’s competitor, both the employee AND the competitor may have liability for unfair competition/unfair trade practices.

There are too many legal pitfalls for the unwary. Therefore, it is vitally important that a business consult with an attorney when hiring and when purchasing or selling a business.

Based on New Jersey Law

One of the biggest challenges manufacturers face is dealing with employees who are dishonest, non-team players or poor performers. At some point, after unsuccessfully training, coaching and trying to change the employee’s behavior, the relationship between the staff member and the company must cease.

This process is difficult for managers for several reasons;
several reasons; most lie on the “human side of “human relations.” For some managers, admitting that an employee has not met expectations signals some kind of failure for the manager. Could you have been so desperate to fill the position that you did not see the potential problems during the interview or when you checked the references?

Other managers blame themselves for a staff member’s failure, and are willing to do almost anything to insure the employee’s success.

In today’s tight labor market, many managers continue to put time, money and energy into marginal staff members because they fear they won’t be able to find more competent ones.

Many managers resist terminating employees, fearing wrongful termination or discrimination lawsuits.

The costs of keeping poorly performing employees are significant. The direct costs include lost sales, customer dissatisfaction and damage to your reputation.

Other staff members begin to resent the poor performer and the additional responsibilities they must assume in response. At best, morale in the company erodes; at worst, great employees begin to model the behavior or performance level that they perceive is the new company standard. They too become poor performers.

Employees who contribute the least are the ones that require the most supervision, training and coaching. Managers must spend time solving the problems linked to poor performers. When this happens, the rest of the staff receives less feedback and training from their supervisors.

Performance standards must be explicit to insure that employees understand their responsibilities, roles within the company and employer’s expectations. Written job descriptions and policy manuals are important tools for developing a highly motivated, well-trained, professional staff.

Develop a schedule for supervisors to meet with their direct reports to discuss the employee’s progress in meeting goals.

Begin meeting with staff members early in the training process so that deficiencies are detected quickly. Measure the employee’s performance relative to the job description for the position. Document areas in which the employee excels and in which improvement is needed. Keep copies of the progress reports in personnel files.

Although the best way to avoid the termination trap is better hiring, there are no guarantees in screening for the perfect employees. Sometimes, despite all the training, coaching and discipline, an employee may fail to meet expectations. And sometimes business conditions are such that termination is necessary, and good employees must be fired. When this happens, the fastest end to the relationship is the fairest to both the
staff member and the company.

A well-prepared termination-plan helps avoid lawsuits and discrimination claims from former employees.

Insure that you have one valid business reason for the termination. Meet with supervisors or your attorney to review documentation about the employee’s performance to insure that you separate emotions from facts. Be prepared to tell the employee the specific policy violation or performance deficiency for which they are being fired.

Prepare for the interview. Complete any necessary forms, documents or termination reports, as well as the final paycheck. Decide where and when you will conduct the meeting. There is no best time to fire an employee, but seek a time when you can meet uninterrupted and privately. If you anticipate an emotional or violent reaction, or that the employee may seek retribution in some way, have a witness present during the interview.

Tell the employee about the meeting you have scheduled. If possible, hold it as quickly as possible. If you have been meeting with the employee to discuss performance already, the termination interview should not be a total surprise, and he or she should not feel ambushed.

Tell the employee the truth about the reason for termination. Stick to the one valid business reason on which you based the decision. Be concise, be tactful, and avoid emotion or personal attacks on the individual. Make the decision final, and make no promises for the future.

Discuss severance pay, benefits and your policy for future reference checks, which might only include the dates of employment. Give the employee the final paycheck and the appropriate COBRA forms should they elect to continue any applicable insurance coverage. Make arrangements for returning company property. Finally, you may need to tell others in the company about the termination. Keep the reasons for the termination confidential. Tell only necessary employees that their colleague is “no longer with the company.” Other staff members may need the information to adjust their schedules, complete unfinished projects or assume additional responsibilities. Keep communication with your current employees open, and let them know that you value their contributions.