What Are the New Rules on Workplace Sexual Harassment?

What Are the New Rules on Workplace Sexual Harassment?

California, always a pioneer when it comes to workplace sexual harassment law, has enacted additional legislation that went into effect on January 1, 2019. Companies need to be aware of this new legislation in order to revise their policies and update their employee handbooks to reflect the changes. Failure to do so could result in unacceptable liability, especially for small companies with limited financial resources. The following is a summary of the new legislation.

  • Expanded Definition of Sexual Harassment: The legal definition of sexual harassment has been expanded by SB 1300, which broadened the legal definition of “hostile work environment” sexual harassment to include even a single incident. This is as long as the incident significantly interfered with the employee’s performance or resulted in an “intimidating, hostile or offensive” work environment.

Prior to 2019, employers were already potentially liable for sexual harassment of an employee, intern, applicant, or contactor by a nonemployee (a client, for example). SB1300 expands this liability to include conduct based not only on gender but also on other protected characteristics such as race or religion.

  • Complaint Procedures: The new legislation grants employees a limited right to share information about harassment complaints with certain parties such as witnesses and victims.

  • Defamation Lawsuit Restrictions: An employee who is fired for sexual harassment might be tempted to use his former employer as a reference. Before AB 2770 came into force this year, many employers would hesitate before informing a potential new employer that the employee is ineligible for rehire due to sexual harassment allegations. This is because they feared that their ex-employee might file a defamation lawsuit against them. AB 2770 prevents an ex-employees from filing such a lawsuit.

  • Restrictions on the Content of Nondisclosure Agreements: SB 820 provides that employers may not include a clause in a settlement agreement that prevents employees from disclosing information regarding certain sexual assault, sexual harassment, harassment, or sex discrimination claims if the employee, signing the settlement agreement, has already filed a lawsuit or an administrative complaint.

This new legislation apparently does not restrict the content of a settlement agreement entered into before a formal claim has been filed.

  • Settlement Agreement Restrictions: Except in a lawsuit settlement agreement, employers can no longer force their employees to waive their harassment claims, nor can they force employees to agree to “gag orders” preventing them from discussing harassment. An employee is considered to have been forced if compliance is made a condition of employment or on the receipt of a raise or bonus.

  • Sexual Harassment Prevention Training: Sexual harassment prevention training requirements have been expanded to include companies with as few as five employees (including temporary workers). The law requires at least two hours of training every two years for supervisors and one hour every two years for non-supervisory employees. The law will also require the retraining of employees who were trained before 2019.

Contact CKB Vienna for Candid, Practical Advice

If you are concerned about how your company should react to California’s new sexual harassment legislation, we can help you formulate an action plan based on your company’s individual circumstances. Call CKB Vienna at 909-980-1040, or contact us online to set up an appointment to speak with us. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Can Dating during a Divorce Hurt My Case?

Can Dating during a Divorce Hurt My Case?

Strictly speaking, there is no California law that will disadvantage you in divorce proceedings simply because you are dating someone else. If your divorce is contentious, however, it is possible that anything you do will be used as ammunition by your spouse or their lawyer – and dating during a divorce could, under certain circumstances, be used against you. From a practical standpoint, the answer to this question is that usually it doesn’t matter, but sometimes it does.

“No-Fault” Divorce

Technically, dating before your divorce has been finalized is considered adultery. Without more, however, adultery is irrelevant because California is a “no-fault” divorce state. The only two grounds for divorce are incurable insanity and irreconcilable differences, and neither of these two grounds implicate fault.

The “Best Interests of the Child” Standard

One way that an allegation of “fault” could get in through the back door of a California divorce proceeding is through the “best interest of the child” standard. Under this standard, child custody and child support issues are decided based on the best interests of the child, even at the expense of parental rights, if necessary.

Dating, Child Support, and Spousal Support (Alimony)

Child support and spousal support are based on the needs of the respective recipients (the child and the ex-spouse), not the conduct of the parties involved. As such, in most cases, dating in divorce proceedings will not affect the amount of child support or spousal support that either party is awarded. It still might be possible, however, in unusual cases.

Dating and Child Custody

Under the best interests of the child standard, your conduct or character is relevant only if it affects the child’s best interests. Simply dating a new partner is not considered an offense against the child’s best interests. It might matter, however, if your new partner has a serious criminal record, because that might call your judgment into question. It might also matter if your new partner frequently speaks ill of the other spouse in front of your child.

Dating and Property Division

California is a community property state, which means (in oversimplified terms) that both spouses own all economic assets acquired during the marriage, no matter who earned them or paid for them. Upon divorce, assets are generally split equally between the divorcing spouses.

Although dating will not normally affect property division, under certain circumstances, it might. Suppose, for example, that you lavish your new partner with expensive gifts paid for out of assets that are considered community property. This could be used by your spouse to argue that they are entitled to more than 50 percent of the remaining community property.

We’ve Seen It All Before

At CKB Vienna, there is not much that can happen in a divorce proceeding that we haven’t handled successfully many times before. If you are involved in divorce proceedings or if you anticipate a divorce, call us at 909-980-1040 or fill out our online contact form to schedule a consultation where we can answer your questions. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside Co

How Can I Resolve Child Custody Issues Without Going to Court?

How Can I Resolve Child Custody Issues Without Going to Court?

Nobody likes to battle it out in court, especially when the subject of the dispute, child custody, is an issue that is fraught with intense emotions. Fortunately, California offers a more amicable way to settle child custody issues – the custody agreement. A custody agreement is negotiated between the two parents, sometimes alone and sometimes with the assistance of a third-party mediator.

The “Best Interests of the Child” Standard

The guiding principle behind California family court child custody decisions is the “best interests of the child.” This principle supersedes even parental rights, and a family court will reject a custody agreement if its terms do not reflect the child’s best interests. Although the child’s “best interests” do not always coincide with what the child wants, the child’s own preference is given greater weight as he gets older.

Child Custody Mediation

In contentious custody disputes, the parents might not be able to reach an agreement on their own, and yet both parents might still prefer to reach some kind of agreement rather than rely on the court to issue a child custody order. In cases like this, California offers mediation services that are designed to help the parents reach an agreement that they might otherwise find themselves unable to reach.

A mediator is a third party, trained in the art of mediation, whose job it is to help the parties reach an agreement. A mediator can propose solutions to various issues, but he cannot impose an agreement on the parties. If the parties do sign an agreement, it will become binding as soon as the court approves it. If the court doesn’t approve it, either another agreement will have to be negotiated or the child custody issue will have to be resolved by court order.

Child Custody Agreements

A child custody agreement must be created in written form, and it must be signed by both parents – a handshake is simply not enough. Although it is possible for the parents to draft an agreement themselves, this is not a particularly wise course of action because:

  • Innocent-sounding wording could result in unintended legal consequences (that might escape even the scrutiny of a busy family court judge); and

  • A custody agreement might fail to address certain contingencies that a lawyer would think of but the parties didn’t anticipate. Suppose, for example, that one parent is offered a job out of state six months after the agreement is signed. A well-drafted custody agreement might be flexible enough to take this circumstance into account, and it could save the parties the trouble of going back to court for a modified custody order.

Remember to take the terms of a child custody agreement very, very seriously. Violating the terms of a confirmed and effective child custody agreement could put you in contempt of court – an offense that might even result in jail time.

Contact CKB Vienna Today

If you are involved in a child custody dispute or if you anticipate such a dispute arising, call CKB Vienna at 909-980-1040 or contact us online to schedule a consultation with us. We take cases for clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

How Does California’s “Right to Repair” Act Work?

How Does California’s “Right to Repair” Act Work?

The term “planned obsolescence” refers to a state of affairs in which consumer goods are specifically designed with short life spans, in order to compel consumers to make further purchases several years down the road, at the expense of the consumer and to the benefit of the seller.

A corollary to planned obsolescence is the practice of making it difficult for a consumer to repair an item that is broken – he must either replace it with a new item or take it back to the dealer or repair shop for an expensive repair. The California lemon law is an example of this approach. California’s “right to repair” bill is designed to remedy this situation so that consumers can repair their property on their own.

The Problem

Manufacturers are in business to make money, and they make more money by repairing something they manufactured than by providing you with the tools to perform your own repairs. Consequently, manufacturers have traditionally obstructed consumer self-repair efforts by blocking access to spare parts and repair information.

This state of affairs has triggered a growing movement among state legislatures to introduce “right to repair” bills. California’s version, the 20th to be introduced nationwide, is called AB 1163. In a nutshell, AB 1163 is designed to make it easier for consumers to repair their products by closing a loophole in the state’s warranty law.

Current California Law

California law long ago addressed the problem of manufacturers attempting to block consumer access to repair resources so as to force them to purchase a brand-new product as soon as the old one needs repair. The problem is that existing California law contemplates that the consumer will take the product to a repair facility (not necessarily one that belongs to the manufacturer, however).

Under current California law, a manufacturer that makes an express product warranty:

  • With respect to an electronic product or appliance with a wholesale price of between $50 and $99.99, must provide repair facilities with sufficient information and spare parts to allow them to repair the product for 3 years after the date of manufacture, regardless of the length of the warranty.

  • With respect to an electronic product or appliance with a wholesale price of $100 or more, must provide repair facilities with sufficient information and spare parts to allow them to repair the product for seven years after the date of manufacture, regardless of the length of the warranty.

What AB 1163 Would Do

AB 1163 would reform the product repair system by requiring the manufacturer to supply information and spare parts directly to product owners as well as repair and service facilities. Service information would be provided free of charge, while spare parts would have to be supplied on fair and reasonable terms. AB 1163 would also expand the category of products to which these provisions apply.

Contact CKB Vienna Today

If you have questions about California’s “right to repair” act and would like to know how your company can mitigate its risks in the face of a shifting legal landscape, call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

What Is a “Willful” Violation under California’s Contractor Enforcement Statutes?

What Is a “Willful” Violation under California’s Contractor Enforcement Statutes?

The California Business and Professions Code contains rules that are designed to regulate the activities of people engaged in private businesses and licensed professions. Some of its provisions apply to building contractors. Unfortunately for those who seek to comply with the law, the wording of certain sections is so vague that it is necessary to refer to court decisions to interpret it.

The California Business and Professions Code Sections 7109 and 7110

Sections 7109 and 7110 of the California Business and Professions Code can be summarized, in pertinent part, as follows:

  • A contractor who “willfully” departs from accepted trade standards or plans and specifications violates Section 7109 of the California Business and Profession Code, unless such plans and specifications were approved by the architect..

  • A contractor who “willfully” fails to comply with state or local building codes or certain health, safety, water, or labor laws violates Section 7110 of the California Business and Profession Code, even if such plans and specifications were approved by the architect.  

Violation of either of these sections can result in sanctions being imposed on the contractor by the Contractors State License Board as well as civil liability.

“Willful” vs. “Deliberate”

What, then, constitutes “willful” non-compliance? Intentional non-compliance with the law and in derogation of plans and specifications approved by the building inspector certainly qualifies as “willful.” But beyond that it gets murky, at least if you rely solely on the stator language to guide you. The California judiciary, however, has provided clarification.

In ACCO Engineered Systems, Inc. v. Contractors State License Board, the California Second District Court of Appeals ruled that a contractor’s failure to comply with applicable building codes was “willful” even if it was not “deliberate,” because they intentionally performed an act without actual knowledge that it was illegal. In other words, the contractor’s negligent failure to ascertain whether or not an action is legal still counts as a “willful” failure to comply with the law.  

Reliance on Building Inspector Approval

Is a contractor shielded from liability as long as they strictly comply with plans and specifications approved by the state building inspector? Disturbingly, the answer is no. This is even though the building inspector, as a public official, is normally shielded from liability for approving plans and specifications that are not code compliant.

The contractor’s liability is based on the construction contract, which will almost certainly require the contractor to complete the contracted work in a manner that complies with applicable building codes and the requirements of the building inspector. If these two requirements conflict, it is the requirements of the building inspector that must yield, not code requirements. The risk of non-compliance is thereby shifted from the owner and the architect to the contractor.

Take Action Today

If you have questions about California’s contractor enforcement statutes, or if you have been accused of violating one of them, call CKB Vienna today or contact us online to schedule a consultation with one of our experienced construction attorneys. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

What to Do If You Suspect a Former Employee of Misappropriating Company Trade Secrets

What to Do If You Suspect a Former Employee of Misappropriating Company Trade Secrets

Intellectual property is the most important asset that many companies possess – especially in California with its world-leading tech industry. Trade secrets are particularly vulnerable because they lack the comprehensive legal protections that are intrinsic to more established forms of intellectual property protection. If you suspect a former employee if misappropriating your company’s trade secrets, you are going to have to act quickly and decisively.

How Trade Secrets Work

Trade secrets are designed primarily to protect intellectual property that cannot be protected under patent, trademark, or copyright law, or information that a company would like to avoid ever disclosing – such as the formula for Coca-Cola, which has been kept secret for far longer than the period of validity of a patent. It can protect customer lists, corporate minutes, and even business plans.

To qualify as a trade secret, the information must be:

  • Economically valuable, at least in part, because it is kept secret; and

  • The subject of reasonable company efforts to keep it a secret.

What You Should Not Do: Rely on a Restrictive Covenant or Non-Compete Agreement

California courts typically take a dim view of restrictive covenants and non-compete agreements that restrict a former employee’s future employment options by preventing him from working for competitors even after the termination of the employment relationship. This is a reflection of a strong California policy of encouraging employee mobility. California is unique; no state is it more difficult to enforce a restrictive covenant than it is here.

Your Legal Weapons

If you suspect a former employee of misappropriating your trade secrets, the primary weapons in your legal arsenal include (but are not limited to) the Federal Defend Trade Secrets Act and the California Uniform Trade Secrets Act. You may be entitled to an emergency injunction, a permanent injunction, civil damages, and even double or triple damages for malicious misappropriation of trade secrets. In extreme cases even criminal sanctions might be available.

Third-Party Liability

Of course, an award of money damages against a rogue former employee might be of little use to your company if the employee lacks the financial resources to pay a judgment. Nevertheless, there is a realistic possibility that you could win damages against a competitor company that knew or should have known of the proprietary nature of the information that your former employee shared with it.

Gathering Evidence

Gathering persuasive evidence is the most important part of your company’s response to suspected misappropriation of trade secrets by a former employee. It is critical that you gather sufficient admissible evidence before you make any allegations since you could render your company vulnerable to a malicious prosecution lawsuit if your accusations appear to be frivolous or baseless.

Two of the most time-tested ways of gathering evidence are:

  • Hiring an outside examiner to investigate your suspicions and gather evidence. There are experienced professionals available for this purpose.

  • Once you have enough evidence to maintain a credible lawsuit, submit a formal complaint to court and use discovery procedures to compel the disclosure of further evidence.

Now Is No Time to Hesitate

If you suspect that your former employee is misappropriating your company’s trade secrets, every day that you delay responding could cause additional damage. Call CKB Vienna immediately or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

How to Handle Internal Sexual Harassment Complaints

How to Handle Internal Sexual Harassment Complaints

Sexual harassment, once an ignored phenomenon, is now a major workplace issue, especially in California. Employers who fail to prepare for internal sexual harassment complaints are unnecessarily subjecting themselves to a tremendous legal risk. To mitigate your risk, you are going to need to prepare for such complaints before they are filed, and you are going to need to handle them properly once they do arise.

How the System Works

Both federal and state law prohibits sexual harassment, and both put the onus on the employer to prevent it. The Equal Employment Opportunity Commission handles federal sexual harassment claims while the California Department of Fair Employment and Housing handles state claims.

A current or former employee, or even an independent contractor, is entitled to file a complaint and trigger an investigation by the authorities. Fines are possible as are civil lawsuits. And in extreme cases, even criminal penalties.

Advance Planning

Before a sexual harassment claim ever arises, you should complete the following preparations, among others:

  • Institute a formal, written company sexual harassment policy that every employee is required to sign.

  • Establish formal investigation procedures in the event of a complaint.

  • Amend your employee handbook to establish clear rules prohibiting sexual harassment.

  • Conduct regular sexual harassment training of your employees, unless you are one of the small minority of companies that is not required to do so.

To accomplish all this, you will need familiarity with California workplace sexual harassment law.

After a Complaint Arises

After a sexual harassment complaint arises, you need to take quick and decisive action:

  • Listen carefully to the complainant’s story and draft a written report.

  • Make an effort to segregate the alleged perpetrator and the complainant so that they do not work together, and so that the alleged perpetrator cannot continue any harassment or retaliate against the complainant (a leave of absence might be appropriate in certain cases).

  • Conduct a thorough investigation. It would be a good idea to retain a neutral third party to conduct the investigation.

  • Reach reasonable, objective conclusions about the complaint. You are walking a tightrope here – you could be accused of (i) taking the complaint too lightly; (ii) railroading the alleged perpetrator; or (iii) both at the same time.

  • Notify both parties of the results of your investigation.

  • Take appropriate disciplinary measures, up to and including termination, if the allegation is true. Even if you conclude that the allegation is unsubstantiated, you should ensure that the complainant and the alleged perpetrator no longer work together – without disadvantaging the complainant in any way, since you could be accused of retaliation that way.

  • Reevaluate your company’s sexual harassment policy based on what you learned from handling a real-life complaint and make any necessary changes.

We Can Help You Manage Your Legal Risks

The risk to your company of a mishandled sexual harassment complaint are almost impossible to overstate – in a worst-case scenario they could even include corporate bankruptcy. If your company has received an internal sexual harassment complaint, or if you wish to prepare in advance in case such an allegation surfaces in the future, call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

How Can I Fight Back against Child Abuse Allegations During a Divorce?

How Can I Fight Back against Child Abuse Allegations During a Divorce?

Divorce is a tragedy and child abuse is a horrible crime. Unfortunately, however, sometimes a spouse or even a third party will weaponize a child abuse allegation to gain advantage in a divorce or child custody proceeding. When this happens, there is no need for you to feel helpless – the legal system offers many ways of uncovering the truth and clearing your name.

The “Preponderance of the Evidence” Standard

A child abuse allegation during divorce proceedings is not a criminal charge (although it could conceivably lead to criminal charges). Instead, it is a civil claim. And as such, it need not be proven “beyond a reasonable doubt” to be treated as true. Instead, the standard of proof is “a preponderance of the evidence,” which means something like a 51 percent likelihood of being true.  This standard is much easier to meet that the “beyond a reasonable doubt” standard.

Disputing the Allegation

Despite the lowered standard of proof applicable to civil proceedings, as the accused, you do retain one significant advantage – it is up to your accuser to prove the accusation, not up to you to prove it wrong.

Strategy

The following strategies can help you overcome a false allegation of child abuse in a divorce proceeding:

  • Expose any factual inconsistencies in your accuser’s testimony (an alibi backed by objective evidence that contradicts your accuser’s testimony, for example).

  • Expose inconsistencies among various documents – between your accuser’s affidavit, for example, and the content of medical records or a police report.

  • Expose inconsistencies in your accuser’s behavior. Did your spouse, for example, fail to report the abuse for a long period of time only to level the accusation once a dispute arose during divorce proceedings?

  • Look for a motivation for your accuser to lie, and collect objective evidence documenting that motive.

  • Force your accuser to be specific. Exactly when, where, and how did the alleged abuse take place? Forcing your accuser to provide details (at a deposition, for example) will often resort in a story that is full of holes and therefore easy to discredit.

  • Above all, remain calm! It is infuriating to be falsely accused of such a serious crime. Don’t let it get to you, because an emotional reaction can lead you into behavior that some might interpret as evidence of guilt.

Evidence

The California Evidence Code is so thick that it must be printed in its own separate volume. Since only evidence can win a case, you (or your lawyer) will need to thoroughly understand the rules of evidence in order to maximize your chances of prevailing. You will need to know, for example, when to object to hearsay evidence or other impermissible forms of testimony, and you will need to know how to respond when the other side challenges your evidence..

Start Fighting Back Today

If you have been subjected to child abuse allegations incident to a divorce, it is imperative that you fight back and that you get started immediately. In fact, it would be a good idea to start preparing now if you even anticipate such an allegation. Call CKB Vienna today or contact us online to schedule a case evaluation by one of our experienced family lawyers. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

How Can I Keep My Home after a Divorce?

How Can I Keep My Home after a Divorce?

Divorce is one of the most emotionally traumatic events anyone can experience. In addition to the emotional trauma, you can expect a significant degree of financial uncertainty as property is split between you and your spouse. The family residence is normally the most important item of property that a couple owns, and if you want to keep it, you are going to have to understand the rules that govern the distribution of marital property in California.

Marital Property under California Law

Under California marital property law, any property obtained by either spouse during the marriage (until legal separation) is presumed to be marital property, owned jointly by each spouse, unless an exception applies. Relevant exceptions include:

  • Property inherited by only one spouse

  • Property that is given to only one spouse

  • Property that one spouse purchases with separate assets (with money earned before the marriage took place, for example)

  • Property that both spouses agree belongs to only one spouse

Certain other exceptions apply as well.

If the Home Is Titled in Only One Spouse’s Name

Like other property, real estate transferred to a married person during the marriage is generally presumed to be marital property. This presumption can be overcome under certain circumstances, however. The presence of only one spouse’s name on the title document, for example, might be used to assert that the spouses intended the house to be one spouse’s separate property.

This conclusion is not inevitable, however. Who paid the mortgage payments on the house? Were mortgage payments taken out of marital property or out of one spouse’s individual assets? If you want to keep the house, it is certainly to your advantage if your home is titled in your name only. And it is certainly to your disadvantage if the house is titled in the other spouse's name only. But this is not necessarily the end of the story.

Buyout

If you want to keep the house but it has been classified as community property, one way you could gain undisputed ownership would be to buy out your spouse’s 50 percent interest in it. This would likely require the agreement of the other spouse, although the family court judge might decide to award you the house and award your spouse a larger share of the marital estate’s other property in compensation.

Deferred Sale

If the reason why you seek sole ownership of the family home is to maintain a stable environment for your children, a family court judge might order a deferred sale if it would be in the best interests of the children (you could also agree to this with your spouse). Under this arrangement, the custodial parent would live in the house with the children until they reached a certain age, and then the house would be sold and the proceeds split between the spouses.

Long Term Co-Ownership

Divorcing spouses can agree on long-term co-ownership of the family home. This is not a typical arrangement, of course, because of the high potential for conflict. Although you can agree to this arrangement with your spouse, a family court judge is unlikely to order it.

Consult with the Professionals

If you anticipate your home being involved in a property division incident to a divorce, call CKB Vienna today or contact us online to schedule a case consultation with us. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

How Does an Employee Stock Ownership Plan Work?

How Does an Employee Stock Ownership Plan Work?

When an employee becomes part-owner of the company he works for, his entire relationship with the company changes and his work attitude might be positively affected in a manner that no other incentive can match. An Employee Stock Ownership (ESOP) plan, if carefully designed, can yield a variety of other benefits as well, including tax savings. Although the terms of an ESOP are somewhat flexible, they do bear certain features in common.

The Basic Structure of an ESOP

An ESOP is a benefit plan that the employer (and sometimes the employee) contributes to. Unlike salary benefits, its assets can be measured in company stock (cash contributions may be allowed as well), giving the employees a direct stake in the success of the company – if the company’s stock soars, the employees’ assets increase, too.

In a typical ESOP plan, a company will fund an ESOP by establishing a trust fund and (i) contributing shares of company stock, (ii) contributing cash to buy company shares, or (iii) borrowing money to buy company shares and paying back the loan over time.

In other types of ESOP plans, employers match employee 401(k) contributions with contributions of company stock and employees can also invest in company stock. The company may grant its employees the right to purchase shares at a certain price for a certain number of years.

The total amount of benefits available to each employee is based in how much stock he accumulates over time, although the exact benefits depend on the terms of the particular plan. ESOP contributions are typically measured as a percentage of the employee’s salary, although other contribution plans are possible.

Trouble in Paradise: Fiduciary Duty and ESOP Litigation

The main sources of regulation of ESOPs are the Employee Retirement Income Security Act of 1974 (ERISA). ERISA sets fiduciary duties of care, loyalty, information disclosure, etc., for plan managers, and it allows employees to file lawsuits for breach of these fiduciary duties. A recent Supreme Court decision, however, has made it somewhat more difficult for employees to file lawsuits over breach of fiduciary duty with respect to publicly traded shares.

Summary of Some of the Major Tax Benefits of an ESOP

The tax benefits of an ESOP are numerous, including (but not limited to):

  1. Contributions of both stock and cash are tax-deductible.

  2. In S corporations, the company ownership percentage held by the ESOP is income tax free.

  3. ESOP dividends are tax-deductible in most cases.

  4. Employee contributions to an ESOP are tax-free.

  5. ESOP distributions to employees that represent gains (stock appreciation) are taxed at low capital gains rates rather than ordinary income tax rates.

  6. Employees can “roll over” their ESOP distributions into an IRA instead of paying current tax, if they so choose. A 10 percent penalty applies to the income taxable portion of the distributions if distribution is made before retirement age and if the employee does not roll over his contributions.

Contact CKB Vienna Today

If you are considering creating an Employee Stock Option Plan, or if you seek to revise such a plan that you have already created, call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Can a Landlord Evict You without a Court Order?

Can a Landlord Evict You without a Court Order?

The short answer to this question is, “no, you cannot evict a tenant without a court order.” What this means is that, although you can take certain actions that will legally obligate the tenant to move out under certain circumstances, you cannot simply change the locks on his door or throw his possessions out onto the street. You will need a court order, and the actual ejection itself must be performed by a public official.  

Termination with Cause: The Three Notices

When termination of the lease is for cause (as opposed to expiration of the lease), the eviction process begins when you establish grounds for it and serve the tenant with one of the following types of notices, depending on the grounds for eviction:

The Three-Day Notice to Pay Rent

If the tenant is late on rent, you can send him a Three-Day Notice to Pay Rent, which is an ultimatum telling him to either pay rent in three days or move out.

The Three-Day Notice to Cure

The Three-Day Notice to Cure is the notice that you send the tenant if he violated the lease in a non-serious manner (if he brought a pet into the unit, for example). This is the same type of ultimatum as the Three-Day Notice to Pay Rent – either cure the lease violation or move out.

The Three-Day Unconditional Quit Notice

This notice is justified when the tenant commits a serious lease violation (if he sublets the unit to someone else, for example). This type of notice tells the tenant to move out in three days, period, with no opportunity to cure the lease violation.

Termination for Expiration of the Lease

A lease naturally expires after a certain period of time. At that time, the tenant must move out regardless of whether he violated the terms of the lease. California classifies lease periods as follows:

Month-to-Month Tenancies

If the tenant is leasing the unit one month at a time, you must wait until the current leased month ends and then notify him of the termination of the arrangement:

  • 30 days in advance if he has lived in the unit for less than a year; or

  • 60 days in advance if he has lived in the unit for a year or more.

Fixed Term Leases

If the lease sets a fixed term (one year, for example), the tenant must leave when the term expires and you don’t need to notify him in advance unless the lease requires you to do so.

Filing a Lawsuit

Once the notice period has expired without its conditions (if any) having been met or the lease term naturally expires, you can file an unlawful detainer lawsuit or an eviction lawsuit to get a court-issued eviction order against the tenant.

Calling the Sheriff

If the tenant still refuses to move out, you can obtain a Writ of Possession from the court clerk on the strength of the eviction order. Once it is taken to the sheriff’s office, the sheriff will issue the tenant a final five-day notice to vacate. If the tenant refuses to comply, the sheriff will force him out of the unit.

Seek Professional Advice Today

If you are in a dispute with a tenant who you fear you may have to evict or if you anticipate such a dispute arising, call CKB Vienna today or contact us online to schedule a consultation on the matter. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

What Are the Types of Harassment in the Workplace?

What Are the Types of Harassment in the Workplace?

When it comes to the defining what exactly “harassment” is, many people might sympathize with US Supreme Court Justice Potter Stewart’s comment on obscenity: “I can’t define it, but I know it when I see it.”  California, however, has legally defined workplace harassment, and it serves as a potent deterrent to misconduct in many cases. Although sexual harassment serves as a media magnet, many other forms of workplace harassment exist.

Protected Classes

All forms of harassment, other than threats and physical assaults, are considered harassment only if they are based on an individual’s membership in a named “protected class.” These protected classes include:

  • Age

  • Race, color, national origin or ethnic background

  • Religion

  • Physical or mental disability

  • Marital status

  • Gender (including sexual harassment)

  • Gender identity

  • Sexual orientation

  • Military or veteran status

These categories include everyone, not just people defined as minorities. Under the right circumstances, for example, a heterosexual could win a claim for sexual orientation discrimination. Nevertheless, California law specifically excludes certain types of disabilities from being used as the basis of a harassment claim. It is not “discrimination against the mentally disabled,” for example, to fire a kleptomaniac employee who steals from the company.  

Specific Conduct that Constitutes Harassment

It would be impossible to list all specific acts that could constitute harassment in a California workplace. Some conduct does not constitute harassment, however; being insulting and rude, for example, does not constitute harassment unless it is based upon a person’s membership in a protected class.

Once threats, violence, or discrimination are involved, however, behavior can be classified as harassment if it (i) creates a hostile work environment, or (ii) constitutes quid pro quo sexual harassment.  

  • Hostile work environment harassment: The conduct must be either severe or frequent, it must constitute objectively offensive conduct, and the victim must have been subjectively offended by it. Frequent ethnic slurs could certainly qualify, and even repeated, unwelcome request for a date by a co-worker might qualify.

  • Quid pro quo sexual harassment: This type of harassment occurs when a job benefit is offered in exchange for sexual favors, if a job benefit is withheld in retaliation for refusing sexual favors, or if either of the foregoing is promised or threatened.

Liability for Sexual Harassment

When a company employee harasses a co-worker, the company itself can be held liable for monetary compensation (in addition to the perpetrator) if the perpetrator was a supervisor – even if the company itself was without fault. Even if the perpetrator was not a supervisor, the employer can also be held liable if it knew or should have known of the harassment and failed to respond appropriately.  

Manage Your Legal Risks through Decisive Action

If you have concerns about workplace sexual harassment issues – whether a dispute that has already erupted or a potential problem that you would like to head off – call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Do Employers Have the Right to Drug Test Employees?

Do Employers Have the Right to Drug Test Employees?

It’s quite understandable why an employer might want to test his employees for drug use. After all, the use of drugs, especially while on-duty, can generate safety hazards and dissipate productivity. On the other hand, it’s not too difficult to understand why an employee might object to drug testing (at least under certain circumstances), even if the employee in question does not use drugs.  

Drug Testing and Federal Law

Although California is subject to federal law, federal law is quite thin on the question of employee drug testing. It does require drug testing in certain sensitive occupations such as truck drivers and airline pilots. The Fourth Amendment’s prohibition against arbitrary search and seizure can also apply; a urine test, for example, is considered a search of a person’s body. By and large, however, the federal government leaves employee drug testing laws to the states.

Drug Testing and the California Constitution’s Right to Privacy

Unlike the federal constitution, the California Constitution contains an explicit right to privacy. For obvious reasons, this right is implicated in drug testing, regardless of whether or not the employer is public or private. Ultimately, the question of whether drug testing is appropriate comes down to a balancing test: the employer’s need for the knowledge versus the employee’s privacy interest.  

When Drug Testing Is Allowed

Drug testing is allowed when:

  • An employer is screening an applicant for a job. The rationale is that the employer doesn’t have to hire the applicant in the first place, and the applicant has no vested interest in the job before being hired. Keep in mind that an employer may refuse to hire an applicant for using medical marijuana, even with a legal prescription.

  • Random drug testing is allowed only for certain sensitive positions. This determination is very fact-specific and, absent a specific regulation requiring drug testing in a particular occupation, there are no bright-line rules.

  • An employer may test an employee for drug use in response to a reasonable suspicion that the employee is using drugs. To reiterate, the suspicion must be reasonable – that is, based on objective facts. The case for a drug test is strengthened if a serious workplace accident involving the employee has occurred.   

  • A drug test may be included in a routine required physical examination.

When Drug Testing Could Get You into Trouble

Drug testing your employees could get you into trouble if:

  • You test for drugs in a manner that offends the employee’s privacy rights (requiring an employee to provide a urine sample in front of someone else, for example).

  • You execute drug testing in a discriminatory manner (you only test people of certain national origins, for example).

  • You unreasonably discriminate against a disabled person for using drugs necessary to treat his disability.

  • You publicize the results of a positive drug test, especially if the results turn out to be wrong. Drug testing results should be distributed on a strict “need to know” basis.

The bottom line is that testing your employees for drugs is almost always a legal risk unless it is specifically required by applicable law. Proceed with caution.

Seek Legal Advice Today

If your company is considering formulating an employee drug testing policy, or if you have concerns about the propriety or legality of drug testing under particular circumstances, call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Who Has Custody of a Child When the Parents are Not Married?

Who Has Custody of a Child When the Parents are Not Married?

Child custody is a fairly straightforward matter when the parents are married to each other, unless they are separated. Divorce can complicate things, of course, but most people have a general idea of how a California family court might divide the rights and responsibilities of parenthood between two divorced parents. But how are these rights affected when unmarried parents separate or when they never lived together in the first place?

California Paternity Law and the Presumption of Fatherhood

When a woman gives birth, her husband (if any) is presumed to be the child’s biological father. “Presumed” means that the husband will be treated as the biological father until proven otherwise. This presumption does not apply, however, if the father is not married to the mother at the time the child is born. In this case, the identity of the father can be established by (i) a court order declaring paternity, or (ii) a Voluntary Declaration of Paternity signed by both parents.

Until paternity is established, child custody cannot be awarded to an unmarried father and neither can child support obligations be imposed on him. Suppose, for example, that a married woman gives birth to a child whose biological father is not her husband and she then seeks a divorce. In this case, the court will treat the woman’s husband as the biological father for the purposes of assessing custody and child support until paternity is otherwise established.

Maternity

A mother receives automatic custody of her child as soon as he is born, due to the fact that the identity of a child’s biological mother is seldom in doubt. This custody can be withdrawn, of course, if the mother is found to be an unfit parent.

One Parenthood Is Established

If the parents of the child are not married, the question of custody does not disappear once the identity of the child’s biological mother and father have been established. In this situation, a California court will address questions of the legal and physical custody of the child in much the same way that it would address the same questions if the same parents had been married and were now divorcing.

In other words, the court will assign each parent joint legal custody, joint physical custody, sole physical custody, sole legal custody or, in unusual cases, no custody at all. Keep in mind that, if the biological father has been legally established but no court order of visitation rights has been entered, the amount of child support payments due from the father will be set at a maximum allowable for the parents’ relative gross incomes.  

We Will Fight for Your Rights

If your parental rights are in dispute, or if you anticipate that they might soon come into dispute, call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

What Does Sole Legal Custody Mean for the Other Parent?

What Does Sole Legal Custody Mean for the Other Parent?

Divorce becomes exponentially more complicated when children are involved. If you are considering divorce or if your divorce proceedings have already begun, it is important that you understand the various aspects of “custody” under California law and how they are likely to affect your post-divorce life. Remember that the fundamental principle of California custody law is “in the best interests of the child.”

Joint Custody vs. Sole Custody

California, like most states, distinguishes between joint custody and sole custody. The distinction is exactly as you might guess: In joint custody, the parents share the benefits and responsibilities of custody, while in sole custody, one parent has custody and the other doesn’t.

California courts often exhibit a preference for joint custody (especially joint legal custody), and will usually award it unless:

  • The parents cannot make decisions together (due to mutual enmity, for example);

  • One of the parents is unfit (one parent is an alcoholic, for example, or for some other reason is unable to make acceptable child care decisions); or

  • Sole custody would be in the child’s best interests for some other reason.

Physical vs. Legal Custody

California also distinguishes between physical custody and legal custody. In short, the parent with physical custody is the parent with whom the child lives. Typically, the other parent is granted visitation rights but must pay child support to the parent with physical custody. The parent with legal custody, by contrast, has the authority to make decisions about child-raising, such as:

  • Where the child will go to school;

  • What religion the child will practice, (if any);

  • What kind of medical treatment the child will receive (except in emergencies); and

  • Other decisions affecting the child’s welfare.

The Four Forms of Custody

To sum up, California recognizes four types of custody arrangements:

  • Sole legal custody

  • Joint legal custody

  • Sole physical custody

  • Joint legal custody

You can be awarded zero, one, or two of the foregoing types of custody: sole legal custody and joint physical custody, for example.

If the Other Parent Is Awarded Sole Legal Custody

If the other parent is awarded sole legal custody, you will not be able to make any decisions about child-raising on behalf of the child (for example, you will not be entitled to decide which school your child goes to). Not only can the other parent overrule your preferences, the other parent need not even consult with you before making a decision affecting the child’s welfare. Strictly speaking, however, sole legal custody is unrelated to which parent has physical custody.

The Time to Get Started Is Now

Deadlines matter in divorce proceedings, and failure to meet them can greatly damage your interests. But there’s more to it than that. Even with no legal deadlines looming, it is never too early to get started planning. And effective planning can greatly benefit from the assistance of a lawyer with thorough knowledge of California divorce law and practice.  

If you are involved in or anticipate divorce proceedings in California, either with or without children, call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Automobile Recalls and Product Liability

Automobile Recalls and Product Liability

The state of California pioneered strict product liability legislation in the 1960s, and since then, the idea has spread throughout the United States. The frequency of automobile recalls has been a major consequence of this legislation. The relationship between product liability law and automobile recalls is not as straightforward as it might seem, however.

California Strict Product Liability in a Nutshell

Under California strict product liability law, the manufacturer of a product (an automobile or an automobile part, for example) acts as an insurer of the safety of that product if it contains a design defect, a manufacturing defect, or inadequate product warnings. Anyone injured by a defective product can win a product liability personal injury lawsuit against the manufacturer without proving that the manufacturer was negligent or at fault in any way. This liability extends to any actor in the stream of distribution of the product, including wholesale and retail distributors.

How Recalls Work

A recall occurs when the manufacturer discovers that a product it manufactured contains defects that might make the product unsafe to use – a gas tank that easily explodes upon rear-end impact, for example. The manufacturer might discover the defect on its own, or a defect may be discovered by the Food and Drug Administration or the Consumer Product Safety Commission.

Once a recall is issued, the manufacturer will issue a detailed notice of the recall and the reasons for it to all parties in the product’s chain of distribution. It will also alert the media and attempt to directly notify all known purchasers through various means. The manufacturer typically offers to repair, replace, or refund the value of the defective product..   

Does a Recall Establish Manufacturer Liability?

Suppose that a consumer is injured by a defective auto part that has already been recalled, and he then proceeds to file a product liability lawsuit against the manufacturer. Is the fact that the product had already been recalled enough to prove that the product was defective in the first place? In a nutshell, the answer is, “no.” The consumer must still prove that the product was defective. The fact that a recall was issued, however, can be used as evidence in his favor.

Does Issuing a Recall Shield a Manufacturer from Liability?

You might think that a recall is simply a clever way of allowing a manufacturer to shield itself from liability once it has already sold a product. This is not necessarily true, although the issuance of a recall can help a manufacturer avoid liability.

To avoid liability that would otherwise be imposed, the manufacturer must prove that adequate notice of the recall was issued directly to the injured plaintiff (not just to a media outlet), and that the plaintiff ignored it and continued using the product. Even then, the manufacturer is not assured of winning a product liability claim against it.

Let Us Help You Fight Back

If you are the subject of an automobile-related, product liability claim, or if you anticipate this scenario, call CKB Vienna today or fill out our online contact form to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Real Estate Mediation under a California Association of REALTORS® Residential Purchase Agreement

Real Estate Mediation under a California Association of REALTORS® Residential Purchase Agreement

The California Association of REALTORS®, a statewide organization that represents over 170,000 realtors, has issued a Residential Purchase Agreement (RPA) that functions as something of a template for real estate purchase and sale agreements throughout the state. Since it contains a dispute resolution clause that requires mediation prior to litigation or arbitration, it is a good idea to familiarize yourself with mediation before you sign it.    

The Requirement to Mediate

The requirement to mediate, quite frankly, has saved a lot of people a lot of money. Once a dispute escalates to litigation or even arbitration, costs begin to mount in terms of time, money, and energy. The requirement to mediate is a contractual obligation. If you refuse to even attempt to mediate your dispute, you will be denied the right to demand that the other side pay your attorney’s fees in any subsequent contentious proceedings, even if you win.

How Mediation Works

In mediation, a third-party mediator is assigned to your case. He will be trained in the art of mediation, and it will be his job to help you reach a mutually satisfactory resolution to your dispute. The mediator cannot impose a resolution on any party -- all he can do is facilitate. If an agreement is reached, it will be memorialized in a settlement agreement that all parties will sign. Once it is signed, it will become a contract that binds all parties who signed it.

Who Attends the Mediation

The RPA requires the buyer and the seller to participate in mediation along with the mediator. You might ask a third party to attend, such as a real estate agent or an inspector, but the RPA does not require the attendance of any third party (and third parties are usually reluctant to attend). Another contract, such as a broker’s contract, might require the participation of a third party, however. You can bring your lawyer, or you can have your lawyer appear in your stead.

Costs of Mediation

Mediators range from novices to retired judges with intimate knowledge of real estate disputes. Many community organizations, courts, and online resources offer lists of qualified mediators and may even offer mediation facilities for a fee. You are likely to have to pay a mediator (costs are typically split equally). The more expertise the mediator possesses, the higher the price is likely to be. If your dispute involves a large amount of money, however, it could be well worth it.

Nobody Takes Advantage of Our Clients.

If you are involved in a real estate dispute or if you anticipate becoming involved in one, representing yourself is not a good idea. It’s also not a good idea to hire a jack-of-all trades lawyer with no particular expertise in the field of real estate law. Contact CKB Vienna by calling us today, or by contacting us online to schedule an in-person meeting or a telephone consultation.

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

How Divorce Depositions Work

How Divorce Depositions Work

For some people, the idea of being deposed is almost as much the stuff of nightmares as being cross-examined in court, especially when the stakes are high. In contentious divorce proceedings, however, depositions are sometimes (but not always) necessary. In addition to knowing how to defend yourself at a deposition, you may need to mount an effective offense.   

Party Depositions vs. Witness Depositions

Normally, there are only two parties to a divorce case: the two divorcing spouses. To depose your spouse, your lawyer normally notifies your spouse’s lawyer. Your spouse must follow the same procedure to notify you of a deposition. To depose a third-party witness, a deposition subpoena must be issued by a judge and you must convince the judge to issue it. You can also request that any party produce certain documents.

What Are Divorce Depositions Like?

At a divorce deposition, your lawyer asks questions under oath to your spouse or to a witness;  your spouse’s lawyer asks questions under oath to you or to a witness; or both. Although you can skip the deposition if you are not being asked any questions, it is a good idea to accompany your lawyer to the deposition in any case.

The deposition will likely take place in a private law office. A court reporter will swear in the people being questioned and will record all of the proceedings. In most cases, depositions are limited to seven hours of testimony. Since breaks will be taken during this time, the total elapsed time may be greater than seven hours.   

How to Handle Yourself When Answering Questions at a Deposition

Observe the following practices during a deposition:

  • Relax, but don’t relax too much.

  • Always tell “the truth, the whole truth and nothing but the truth,” because you can be charged with a felony if you don’t.

  • If you are unsure about a question, ask for clarification before you answer it.

  • Never guess at an answer. If you don’t know the answer to a question, say so.

  • Do not answer any question that is not asked.

  • Do not interrupt your spouse during testimony or break into an argument.

  • Review the transcript after the deposition. You can ask for changes, but requesting significant changes might be used against you in court.

Preparation Is Key

Nothing is more important for a deposition than preparation. You will need access to all relevant documents at the time you begin preparing in earnest, and you will need to use them as exhibits to make your case at the deposition. If you are the one asking the questions, they must be prepared carefully. If you are the one answering them, you may need coaching from your lawyer to avoid accidentally contradicting yourself or making misleading statements.

Contact the Professionals

If you are involved in a divorce or if you anticipate such a scenario, you need legal representation, right away. Call CKB Vienna today, or contact us online to schedule a time for us to discuss your options and answer your questions. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

Grandparents’ Visitation Rights in California

Grandparents’ Visitation Rights in California

With the explosion of the divorce rate over the past few decades, much has been made of the visitation rights of non-custodial parents. But what about the rights of grandparents? Grandparents do have visitation rights in California under certain circumstances. If you are a grandparent, it is a good idea to know your rights before they come under fire.

Visitation Rights When the Child’s Parents Are Married

First the bad news. The general rule is that grandparents do not have visitation rights if the parents are still married. California family law does allow certain exceptions, however, such as in cases where:

  • The parents are married but in the midst of a long-term separation;

  • The parents have been missing for at least a month;

  • One parent consents to grandparent visitation rights, and allowing visitation is in the best interests of the child;

  • The child does not live with his parents, and allowing visitation is in the child’s best interests; or

  • A stepparent adopts the grandchild.

Visitation Rights When the Child’s Parents Are Not Married

Your chances of securing visitation rights are better if the child’s parents are not married. In this case, there are three requirements that you must meet in order to be granted visitation rights:

  • You must have a pre-existing relationship with the child;

  • There must be an emotional bond between you and the child; and

  • All things considered, the “best interests of the child” must outweigh the rights of the child’s biological parents to make decisions about who their child associates with.  

All of these factors must operate in your favor in order for you to be granted visitation rights.

How to File for Visitation Rights: Procedure

The following procedure is required to obtain grandparents’ visitation rights:

  • Determine whether a family court case is already open involving the child. If so, you will need to file a petition under that particular case. Otherwise, you must open your own case (see below).

  • Complete Form FL-300 with the help of its associated information sheet, Form FL-300-INFO. You might also need Form FL-311 and Form MC-031.

  • Make three (3) copies of all of your forms (a total of four). The original is for the court, one is for you, and the other two go to the child’s parents.

  • File your forms with the court clerk along with the filing fee. The clerk will give you a court date and perhaps a date for a meeting with a mediator.

  • Serve your papers on the child’s parents and anyone else who has physical custody of the child. You must strictly follow certain procedures.

  • Have your server fill out proofs of service on Form FL-330 or Form FL-335 and send them to the child’s parents.

  • Attend your court hearing and/or mediation. The child’s parents have the right to attend.

All of the foregoing steps must be performed flawlessly. A single mistaken detail could result in significant delays.

We’re Ready to Fight for Your Rights

If you seek visitation or custody rights with respect to your grandchildren or if you are involved in a family law dispute, call CKB Vienna today or contact us online to schedule an appointment to discuss your options. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

California Small Businesses: Drafting a Well Written Employee Handbook

California Small Businesses: Drafting a Well Written Employee Handbook

Most businesses have issued a written employee handbook that explains work rules and other relevant issues. If your company hasn’t done so yet, or if your existing employee handbook is out of date, you need to rectify this problem immediately. This is because a non-existent or inadequate employee handbook is a liability time bomb waiting to go off.  

Why You Need One

There are dozens of ways that issuing an employee handbook can help your company operate smoothly and minimize its legal risk. A few of these ways are listed below:

  • It can help you prove that your company’s policies are lawful in the event of a contrary claim.

  • It can help you remain in compliance with complex employment regulations at both the state and federal level.

  • It can help your company guarantee fair treatment to your employees.

  • It can provide new employees with a valuable orientation tool.

  • Written expectations can help avoid misunderstandings that might otherwise lead to conflict or even lawsuits.

  • It can be used to train supervisors and management staff.

Topics

A comprehensive employee handbook should deal with the following topics, at the very least:

  • Discrimination, retaliation, and harassment policy: Required by law to be included if your company employs five or more people, but you should include it anyway.

  • FMLA/CFRA leave: Required by law to be included if the company has 50 or more employees, but you should include it anyway.

  • New parent leave: Required by law for companies with 20 or more employees, but you should include it anyway.

  • Pregnancy disability leave: Required by law for companies with five or more employees, but you should include anyway.

  • Paid sick leave: Required by law even if the company has only one employee.

  • Accommodations for disabled employees.

  • Employee timekeeping

  • Overtime, meal breaks, and rest breaks

If any of your employees might not be able to read the employee handbook in English, you must provide it in their native language.

Document Drafting Concerns

California employee handbooks are governed by the California Labor Code, and it is most decidedly a legal document -- and drafting a legal document is a very different exercise than writing a letter. Legal documents sometimes appear to be drafted in “legalese,” and there is a reason for this. Two reasons, actually. One reason is simply bad writing skills, which should not be tolerated in such an important document because it is downright dangerous.

The other reason, one that is, to some extent, unavoidable, is that the language must be drafted so literally and precisely that nobody (a litigious employee, for example) can hope to “poke a hole in it” and attempt to assert that it means anything other than its obvious literal meaning. This process requires skill, and it is not for someone who lacks experience drafting legal documents. When it comes to drafting legal documents, an experienced business lawyer is a near-necessity.

We Stand Ready to Assist You

If you need help drafting an employee handbook, or if you are involved in a dispute with an employee over the content of an employee handbook, contact CKB Vienna by calling us today or by filling out ur online intake form to schedule a consultation.

We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.