Publications Archives

Meal & Rest Breaks: Two Premium Payments Allowed for Each Meal and Rest Break Missed Per Day

On June 2, 2011, the California Court of Appeal, Second Appellate District held in United Parcel Service, Inc. ("UPS") v. Allen, 2011 DJDAR 8073 that Labor Code Section 226.7 allows for two premium payments per work day, one for failure to provide a meal break and one for failure to provide a rest break. This is in an important clarifying ruling, because often in wage and hour litigation there is a dispute as to the number of premium payments owed based on the number or type of break periods that the employer failed to provide.

A Waiver of Rights to Assert Class Action Claims in Arbitration Agreements

In a potentially far-reaching decision affecting wage/hour and other class action litigation brought against employers, the United States Supreme Court has held in the case of AT&T Mobility LLC v. Concepcion et ux. (2011) 131 S.Ct. 1740, that an arbitration agreement may legally require a waiver of the right to assert class action claims in arbitration. Many important aspects of this ruling specifically abrogate or potentially alter previously controlling

California Civil Code Section 2782 - Schwarzenegger and the Legislation's Legacy

In general, under the recent amendment to Civil Code § 2782, the subcontractor is now only obligated to provide indemnification for construction defect claims to the extent that such claims arise or result from the subcontractor's scope of work. Subcontractors cannot be required to indemnify a builder or general contractor for liability or defense costs for construction defect claims which arise out of the builder's, general contractor's or other subcontractor's negligence.

Automatic Restraining Orders

In a family law matter, the Family Law Summons contains automatic restraining orders on its second page. These automatic restraining orders, referred to as ATROS and pronounced "at-röse," take effect immediately against the petitioner upon issuance of the summons, and take effect immediately against the respondent upon service of the petition on the respondent. These ATROS should be taken every bit as seriously as any other court-issued restraining order as the court enforces ATROS equally. In Goold v. Superior Court (2006) 145 Cal.App.4th 1, the Court sanctioned and incarcerated a husband for repeated violations of the ATROS. In Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, a Court awarded the wife one-half of the lost profits from the husband's sale of community securities that were sold by the husband without written consent or Court Order.

Employee Stock Ownership Plans

A common asset in a marital dissolution proceeding is the Employee Stock Ownership Plan ("ESOP"). An ESOP is a specialized employment benefit in which the corporate employer makes contributions of either cash or stock to a trust for its participant employees. The employees are then allocated a pre-determined amount by percentage in direct proportion to the employee participant's compensation.

Employer Liability for After Work Driving

The Fourth District Court of Appeal in California recently decided the matter of Lobo v. Tamco (2010) 182 Cal.App.4th 297. This case holds that a triable issue of material fact exists regarding whether an employer's infrequent reliance on an employee to drive his own car to meet with customers was an incidental benefit to the employer. The legal finding of such an incidental benefit may be sufficient to support a claim of vicarious liability against the employer for personal injuries caused while the employee was off the job, driving after work.

Short Sale Disclosure

The duty of a listing broker and agent to a buyer has changed in light of the onslaught of short sales. On October 6, 2010, the California Appellate Court in the case of Holmes v. Summer, 4th Appellate Dist., 3rd Div. 2010, extended the listing agents' duty to a buyer, requiring disclosure of financial obstacles affecting title. Specifically, if the listing agent or broker is aware that monetary liens and encumbrances exceed the sale price of a residential property, requiring the seller to either undergo a short sale or deposit a substantial amount of cash into the escrow to obtain a release from the lender, there is a duty to disclose this state of affairs to the buyer.

New IRS Guidelines for Flexible Spending Accounts

Many companies today offer flexible spending accounts (FSAs) as part of their health care packages for employees. On September 3, 2010, the IRS issued new guidelines to help employers interpret the rules put in place by recent health care reform changes, relating to over-the-counter medicines and drugs. These changes will take effect as of 2011.

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