The Letter of the Law: March 2012
IN THIS ISSUE:
CONSTRUCTION: New 2012 Prevailing Wage Requirements for Contractors
FAMILY: Saving Money in a Divorce
EMPLOYMENT: $15 Million Judgment Against U.S. Bank Reversed in Wage and Hour Class Action
New 2012 Prevailing Wage Requirements for Contractors
By: Kyle D. Kring
Contractors working on public works construction projects in California will find that they are subject to new regulations of the Division of Labor Standards Enforcement’s (DSLE) Compliance Monitoring Unit (CMU). The CMU is a new component within the Department of Industrial Relations, DSLE created to monitor and enforce prevailing wage requirements on public works projects which receive state bond funding, and on other projects that are legally required to use CMU. The CMU began operations on January 1, 2012, following the recent adoption of AB 438 and approval of revisions to the program regulations. One of the new key requirements of CMU is that you now must electronically file your certified payroll reports (rather than submit a paper form) using a third party electronic certified payroll service – My LCM. My LCM is designed to flag violations and enable Prime Contractors and Awarding Bodies to verify, accept or reject certified.
The service must be used by all awarding bodies and contractors for projects subject to CMU monitoring and enforcement for contracts awarded on or after January 1, 2012. A link is established for electronic certified payroll at https://app.mylcm.com. The site includes step-by-step instructions on how to assign contractors, manage employee profiles and submit certified payroll reports.
Awarding bodies will be required to register projects into My LCM and make sure that all contractors are registered on its projects. Prime Contractors will also be responsible for all sub-contractors working on the public works project and will have the responsibility to ensure that they and their subcontractors are registered and trained as required to utilize the electronic payroll service.
The CMU will not only monitor specific public works projects to ensure compliance and enforcement of prevailing wage requirements, the CMU will also, (1) conduct random onsite inspections, (2) visually monitor construction activities, (3) conduct contractor and worker interviews, and (4) verify CLSB licensing and Workers Compensation insurance, among other things.
As part of your preparation for the new prevailing wage requirements, if you are a prime contractor it is always important to ensure that your Subcontract Agreement properly complies with Labor Code § 1775 in order to escape possible liability for violations of the prevailing wage statutes by your subcontractors.
With divorces costing anywhere from $3,000 to $100,000 or more, most couples would be interested in finding ways to assist their attorney in saving money. When Kring & Chung is alerted by a client that cost-saving measures should be taken where possible, we make a concerted effort to educate and utilize our client as part of our available resources during the dissolution process.
There are many ways to save on costs during a divorce. To be frank, if a client is only willing to put in a half-hearted effort, then it may be better to let the attorney’s office handle the issue completely.
A client can perform photocopying functions and possibly save some time and costs on photocopying charges. A client can sometimes act as a messenger or take documents to court for filing. However, a client cannot act as a process server, because the laws of California require that process not be served by a party to the action.
In divorce, the parties can work together to figure out how to equitably or equally divide their personal property. Generally speaking, personal property will be the contents of their home. It can be as simple as rolling the dice. Whomever rolls the higher number chooses the first item. The next person chooses an item of similar value or emotional desirability, and so forth. Another method is to sit down together and assign values to items of property. As long as the parties feel that they are both receiving a similar dollar value of personal property, and as long as the parties are reasonably content with the division, this is sufficient. Keep in mind that in general, property a person brings into the marriage is already their separate property, and is not divided in a divorce. Property that a third person gives to a party during marriage is usually separate property, and property a party purchases using separate property is usually their separate property. If valuable collectibles, art, antiques, and jewelry are involved, then appraisers may be necessary in order to determine a fair market value. It rarely makes sense to pay an attorney their hourly rate just to argue over pots, pans and other replaceables. Personal property is normally valued at current fair market (re-sale) value. We have heard judges refer to this as “garage sale value.”
California is a community property state. This means that assets and debts are divided equally in a divorce. That is true regardless of any fault attributed, or the reasons for the divorce. Bearing that in mind during a divorce should enable the parties to accept the fact that they will be dividing these assets and debts regardless of who actually bought them or worked for them. Then, by committing to being reasonable and reasonably emotion-free, the parties can view their divorce in a business-like manner, rather than as a tool for exacting revenge or extracting emotional payment.
Another suggestion is to be organized in the presentation of documents to your attorney. If you tab documents and divide them into stacks of similar items, you are saving your attorney the time of having to do so. By keeping notes, inventories, copies of support payments, and such before, during and after divorce, you will save yourself the time of having to later recreate those items. You will also save yourself in attorney fees because the necessary information will be easily obtained when needed.
At Kring & Chung, LLP, we are pleased to offer a free initial consultation of your family law matter of up to 30 minutes. We encourage you to take advantage of this opportunity to find out how the laws of California may affect your family law issue. With family law attorneys in Irvine, Rancho Santa Margarita, Ontario, Chino and Las Vegas, we can consult with you in person or by phone – whichever is most convenient for you.
$15 Million Judgment Against U.S. Bank Reversed in Wage and Hour Class Action
By: Nami E. Chun
On February 6, 2012, the California Court of Appeal, First Appellate District decertified a wage and hour class action lawsuit filed by business banking officers and overturned a $15 million judgment against U.S. Bank. This was in the recent case of Duran v. U.S. Bank National Association, 2012 WL 366590 (Cal.App 1 Dist.).
The plaintiffs first filed their case in 2001, alleging that they were misclassified as “exempt” employees and denied compensation for overtime hours. U.S. Bank claimed that the business banking officers fit the exemption for “outside salespersons,” because they spent more than half their working time away from the office selling financial services.
During trial, the trial court used a random sample of 21 class members to testify as representatives for a class consisting of 260 members, in the interest of expediency. The trial court refused to allow the bank to introduce evidence challenging the claims of the other 239 class members. The evidence the bank sought to introduce, if deemed persuasive, would have established that at least one-third of the class was properly classified as exempt.
The Court of Appeal held that the trial court’s strategy of relying solely on the evidence derived from a 20-person sample to determine class-wide liability violated principles of due process, and deprived U.S. bank’s constitutional right to a fair trial. While innovation and pragmatic procedural devices are encouraged to simplify and manage class actions, the rights of parties may not be sacrificed for the sake of expedience.
This case supports the premise that due process principles require individualized inquiries where the applicability of an exemption turns on the specific circumstances of each employee. The attorneys at Kring & Chung are available to answer any inquiries you may have relating to this new case, as well as discuss with you any wage and hour issues.
Nami E. Chun Joins Kring & Chung’s Irvine Office
Nami E. Chun joins Kring & Chung as an associate in Irvine. Ms. Chun graduated cum laude from the University of California, Los Angeles in 2005 with a Bachelor of Science in Biochemistry. She then received her Juris Doctor, cum laude, from the University of California, Hastings College of the Law in 2009.
After being admitted to the State Bar of California in December 2009, Chun joined Clayson, Mann, Yaeger & Hansen, where she practiced general civil litigation, with an emphasis on employment and business litigation. Her employment practice involved work for both employees and employers, including wrongful termination, discrimination, retaliation, and harassment claims.
Chun will be focusing her practice on employment and business litigation.
Chun is an active member of the Orange County Korean American Bar Association and is currently serving on its Board of Directors. In her spare time, Chun enjoys hiking, cycling, cooking, and traveling.
Sacramento Partner, Shane Singh, representing Dollar Tree Stores, Inc., recently prevailed on a motion for summary judgment related to a disability access (ADA) lawsuit at a location in Citrus Heights, California. The Federal Court found that plaintiff’s allegations with regard to physical “barriers” were either moot or not applicable to the plaintiff, based on his disability. The court went on to grant judgment in favor of Dollar Tree against the plaintiff.
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