April 2012 Archives

The Letter of the Law: April 2012

IN THIS ISSUE:

EMPLOYMENT: Quick Summary of Meal and Rest Break Law

CIVIL LITIGATION: Summary Judgment: The Enemy of My Enemy

NEVADA LAW: The Effects of a DUI Conviction in Civil Liability Lawsuits

Quick Summary of Meal and Rest Break Law

By: Laura C. Hess

California's meal and rest break laws are complex. The following is a general overview of some of the most important concepts. Failure to provide employees with required meal and rest breaks can result in claims for unpaid wages, 30 day waiting time penalties, and subject an employer to exposure for attorney fees. This is one of the leading areas of employment class action litigation, where the liability exposure is multiplied by all affected employees for a period of up to four years. In sum, failure to comply with California's meal and rest break requirements could end up costing you a ton of money, so make sure you are complying.

  • Nonexempt employees must receive meal periods. The start and ending time of their meal periods must be recorded.
  • Employers must provide a meal period to nonexempt employees who work more than 5 hours in a workday. The meal period must start before the beginning of the 6th hour worked. So if your employee asks you if he can work through lunch so that he can leave early at the end of the 8 hour workday, the answer is no. Whether you choose to let the employee leave early is up to you, but the employee must take a lunch break at the required time. However, the meal period may be waived by mutual consent of the employer and employee if the employee's workday does not exceed 6 hours.
  • Employers must provide a second meal period to nonexempt employees who work more than 10 hours in a workday. The second meal period must start before the beginning of the 11th hour worked. The second meal period may be waived by mutual consent of the employer and employee if the employee does not work more than 12 hours in the workday and has not already waived the first meal period.
  • Meal periods may be unpaid, must last a minimum of 30 uninterrupted minutes, must be free of all duty, and the employee must be permitted to leave the workplace.
  • Employers must pay nonexempt employees an hour of pay at their regular rate for each workday that a meal period was not provided.
  • Rest periods must be authorized and permitted for every four hours worked "or major fraction thereof." The Division of Labor Standards Enforcement interprets the phrase "authorize and permit" as requiring employers to merely make rest periods available to employees. No rest period is required if the employee's workday is less than 3½ hours. Rest periods should, insofar as practicable, be in the middle of each work period. "Major fraction thereof" means more than 2 hours. For example, an employee who works an 8 hour workday must be authorized and permitted to take 2 paid rest periods, as close as practicable to the middle of each 4 hour segment of the workday.
  • Rest periods must be paid and uninterrupted for a full 10 minutes, must be free of all duty, but the employee may be required to remain at the worksite during rest periods. Rest periods may not be combined with another rest period, a meal period, or be taken at the start or end of the workday.
  • Employers are not required to document rest periods in their payroll records.
  • Employers must pay nonexempt employees an hour of pay at their regular rate for each workday that a rest period was not provided.

Summary Judgment: The Enemy of My Enemy

By: Brendan J. Coughlin

First year law students generally spend a year suffering through Civil Procedure class. This article will not be that time consuming. By now readers of this newsletter likely have a workable understanding of the civil litigation process. A lawsuit is filed, the parties conduct discovery, and as the case moves toward trial, negotiations occur. Frequently, parties file motions for summary adjudication, seeking to dismiss the case, clarify legal issues, or gain a strategic advantage. New law is sometimes made during the summary adjudication process as higher courts review the decisions of lower courts.

When a plaintiff is injured or damaged and sues two separate defendants, the defendants have a common interest in reducing the value of plaintiff's claims. However, the defendants also have different interests in that each wants as much of the fault as possible to fall on the other. When it comes to summary adjudication motions, defendants can have very divergent interests.

California Code of Civil Procedure section 437c(l) provides that if one defendant is dismissed from a case via summary adjudication on the basis that the defendant was without fault, no other defendant during trial, over plaintiff's objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion. This can be very important in a case for personal injury, wrongful death, or property damage, where plaintiff alleges large economic damages. Economic damages are damages such as medical charges, lost earnings, property damage, loss of use of property, loss of employment, and loss of business or employment opportunities, where a bill or charge arguably exists to quantify the value of the damage. Under California law, a defendant may be 100% liable for plaintiff's economic damages, even if only 1% responsible for the damaging incident.

An example of joint and several liability has two hunters firing shotguns into the woods, injuring their guide. In the days before forensic crime scene investigation, the hunters jointly shared liability because it could not be determined whose pellet injured the guide. In modern times, a roofer and sheet metal contractor may be joint and severally liable for property damage caused by roof leaks if both of their acts jointly caused the damage.

Therefore, co-defendants must seriously consider filing their own opposition to a fellow defendant's motion for summary adjudication. It may be a mistake to count on plaintiff's ability to defeat such a motion, especially when significant exposure for plaintiff's damages is at stake for the remaining defendant. The attorneys at Kring & Chung are experienced litigators who can answer your questions about your case and litigation strategy. Please feel free to contact us.

The Effects of a DUI Conviction in Civil Liability Lawsuits

By: Robert L. Thompson

In Nevada it is unlawful to drive under the influence of alcohol with a blood/alcohol level above .08. Nevada Revised Statutes ("NRS") §484. However, Nevada's penalties are lighter than most states in terms of fines, jail sentences, and the length of time that a person's license can be suspended. Additionally, Nevada's DUI statute is more generous regarding differentiation between misdemeanor DUI and felony DUI. A driver will be guilty of a misdemeanor DUI for first and second offenses within seven years. Even if substantial property damage is involved during the first or second offense, it could result in a more severe sentence in the form of additional jail time or heavier fines, but it will not enhance the conviction to felony DUI. For a person to be convicted of a felony DUI in Nevada, they must either have three convictions within seven years, or have caused substantial bodily harm. Substantial bodily harm includes death or severe physical impairment of another human being. In a civil action involving a DUI that caused injuries to the plaintiff, whether the defendant was convicted of felony or misdemeanor DUI has very different consequences regarding the determination of liability.

These distinctions come into play during civil litigation due to NRS §41.133, which states that if a person is convicted of a crime causing injury to the victim, the judgment of conviction is conclusive evidence of all facts necessary to impose civil liability for injury. This is otherwise known as Nevada's Victim's Rights statute. On its face, this would lead one to conclude that if a defendant is arrested at the scene of an accident for a DUI, liability will automatically be established in a later civil lawsuit. However, a distinction is made in applying the statute to felony DUI versus misdemeanor DUI. In Langdon v. Matamoros, 121 Nev. 142, 145 (Nev. 2005), the Nevada Supreme Court ruled that NRS §41.133 does not apply to misdemeanors involving traffic accidents. In Cromer v. Wilson, 225 P.3d 788, 790 (Nev. 2010), the Court held that NRS §41.133 applies to a felony DUI. This distinction is important because in a civil case arising from an accident where a defendant is convicted of a misdemeanor DUI, plaintiff's counsel cannot use NRS §41.133 to win a Motion for Summary Judgment on liability.

A misdemeanor DUI is by no means an easy fact for the defense to deal with in a civil litigation lawsuit. Although NRS §41.133 cannot be used to establish civil liability as a matter of law, that does not preclude opposing counsel from commenting on it at trial to prove his or her case to a jury. The defense should make all appropriate arguments in pre-trial motions in limine regarding the conviction's potential for prejudice to the defendant. However, since plaintiff must prove negligence to the jury directly rather than have it established as a matter of law by a judge, the door opens for the defense to raise a comparative negligence affirmative defense trial. It is important to approach discovery with this in mind. While this approach will not necessarily get a defense verdict, if the jury finds that a plaintiff is even partially negligent, the defense will be entitled to an offset during post-trial motions. Such arguments should be utilized by the defense team during mediation in order to lower opposing counsel's expectations for overall recovery, and to help achieve the best settlement possible for the client.

SCORE Seminars

Congratulations to Kring & Chung attorneys Matthew A. Reynolds and Allyson K. Thompson for their informative and entertaining seminars for SCORE in March.

SCORE is a non-profit association helping local businesses grow and prosper. The seminars dealt with Legal Issues for Start Up Businesses, and Avoiding Employment Related Litigation.

Kring & Chung attorneys are scheduled to present again on exciting topics in the coming months, including April 10th on Employment and Social Media, at National University's Costa Mesa Campus. For more details and to register for our upcoming seminar on April 10th, click here.

In the Community

On March 3, 2012, Kring & Chung attorneys Kyle D. Kring and Allyson K. Thompson shared their perspectives and experience with students from the 9th Circuit of the American Bar Association Law Student Division's Spring Meeting. The meeting was held at Whittier Law School in Costa Mesa.

The program focused on getting ahead in the current economy. Students were able to have casual conversations with the attorneys over lunch. Kring offered a hiring attorney's perspective on resumes and interviews and provided tips to impress the hiring partner. Thompson shared with the students her own insights on thriving in the local legal community.

Also at the meeting, Michelle Philo, a paralegal with Kring & Chung and SBA President at Whittier Law School, was awarded the ABA Law Student Division's Silver Key Award. The Silver Key Award is the highest circuit level award and is presented in recognition of an individual's support of the Law Student Division.

Attorney Advertising. This client newsletter is a periodical publication of Kring & Chung, LLP and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer.

Loss of Consortium Basics

By Harold D. Park

In a personal injury case, the injury suffered by a party may be so severe, that the injured party's spouse or registered domestic partner may have an independent cause of action for loss of consortium. A claim for loss of consortium entitles one to be compensated for the loss of their spouse/registered domestic partner's companionship and services, which includes the loss of love, companionship, comfort, care, assistance, affection, enjoyment of sexual relations, and the ability to have children.

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