Paternity Testing Law in California

Paternity Testing Law in California

In modern times, there is no reason to wonder long about the paternity of a child. Since the advent of DNA testing, paternity can usually be established with a high degree of certainty in the event of a dispute. Establishing paternity is critically important, because it determines not only whether any form of custody will be granted to the putative father, but it also determines child support obligations. It is important, however, to know what California law says about paternity testing.

Marriage and the Presumption of Paternity

If a child is born in wedlock, California law presumes that the mother’s husband is the biological father. If the couple divorces while the child is still a minor, the husband could be assessed with child support obligations even if he is not the child’s biological father. This might sound outrageously unfair when applied to a situation where the child is the product of an adulterous affair.

All is not lost if the mother’s husband is not the father, however. This is because the word “presumes” leaves a legal loophole whereby paternity can be attributed to the actual biological father if, and only if, the mother’s husband can prove that he is not the biological father of the child. Normally, a court-ordered paternity test is required. Until then, child support obligations will continue to be assessed against the mother’s husband.

Unmarried Parents

When an unwed mother gives birth, there is no presumption one way or the other concerning the identity of the child’s biological father. A simple way to establish paternity, however, is to execute a Voluntary Declaration of Paternity. Both the mother and the putative father must sign this document for it to be valid.

If a dispute arises concerning the identity of the father, even a paternity test by itself will not establish the identity of the father for legal purposes – a court order is required. A court can order a paternity test to be carried out by a laboratory that is recognized as reputable by the court, and the result can be sealed so that any tampering can be easily detected.

The Role of the Local Child Support Agency (LCSA)

Your local LCSA can open a paternity case on behalf of the child, and either the mother or the putative father can initiate such an action. If you request Cal-Works or Medi-Cal on behalf of your child, the LCSA will automatically commence an action on its own initiative. LCSA lawyers do not represent either the mother or the putative father, and you will be able to retain your own lawyer even after the LCSA initiates a paternity action.

The Stakes Are Too High for You to Hesitate

Mistaken paternity determinations can have far-reaching effects, not only on the putative father but on the biological father and the child as well. This is something you have got to get right. At CKB Vienna LLP, we know how to work with the system to maximize your chances of a fair determination.

Pick up the phone today and call us at 909-980-1040, orfill out our online contact form to schedule a consultation with us. We serve clients from Rancho Cucamonga as well as elsewhere in California.

Common Mistakes in California Prenuptial Agreements

Common Mistakes in California Prenuptial Agreements

A prenuptial agreement (lawyers like to call them “antenuptial agreements”) is an agreement between a couple who plans to marry. It operates in the event of an eventual divorce to distribute the couple’s assets in a manner that is inconsistent with the distribution that would occur under California’ community property law. They generally work to the advantage of the richer of the two spouses.

Since the validity of prenuptial agreements is specifically regulated by California statutory law in a manner that most contractual relationships are not, they must be drafted with great care to avoid a nasty surprise years or even decades down the road. The following are some of the most common errors committed by aspiring spouses when creating prenuptial agreements.

Failing to Put the Agreement into Writing

A kiss does not establish the validity of a prenuptial agreement – at least not in the eyes of the law. Although some types of verbal contracts can be enforced (if their terms can be proven, which can be difficult when the terms are not reduced to writing), in California, a prenuptial agreement must be in writing and signed by both parties in order to be enforceable.

Failing to Arrange for Independent Representation for Each Spouse

Each spouse should be represented by their own lawyer; otherwise, you are asking for trouble down the road. Although independent representation is not an absolute requirement that applies under every circumstance, in many cases, it can provide the party seeking to undermine the agreement with a loophole that can be easily exploited.

Coercion

Your spouse’s signature on the agreement must not be coerced in any way. Obviously, securing a signature at gunpoint is coercion, but what about waiting until the last minute to seek your spouse’s signature? After all, if he or she doesn’t sign, you’ll have to cancel the wedding at the last minute. That, too, can be considered a form of coercion. Without more, however, making the signing of a prenuptial agreement a condition of agreeing to marry does not constitute coercion.

Failing to Disclose Your Assets and Liabilities

Failing to disclose the full extent of your assets and liabilities is one of the best ways to ensure that your prenuptial agreement will be invalidated. Insist on full disclosure in writing and attach it to the agreement.

Careless Wording

The best way to draft a prenuptial agreement is to imagine that there is a little gremlin sitting on your shoulder who is constantly trying to twist your words around to make them mean something that you didn’t intend. Draft the agreement in a manner that silences your gremlin. The end product should be a well-drafted prenuptial agreement that will minimize your chances of conflict and maximize your chances of victory if conflict does erupt.

Contact Us Today

At CKB Vienna LLP, we can help you draft a prenuptial agreement that will maximize your chances of fulfilling your original intentions in the unfortunate event that such a document is needed to protect your interests. If it is already too late for that, we can help you protect your interests at the negotiating table or, if necessary, in court.

Call us at 909-980-1040 or fill out our online form to schedule a consultation with us. We serve clients from Rancho Cucamonga as well as elsewhere in California.

Shareholders’ Personal Liability for Unpaid Wages in California

Shareholders’ Personal Liability for Unpaid Wages in California

It’s a nightmare scenario that becomes all too real for many shareholders in closely-held corporations. Your company goes bankrupt owing hundreds of thousands of dollars in unpaid wages, the employees demand back pay, and a court holds you personally liable for the entire amount. Here is some of what you need to know to prevent that nightmare from coming true.

Limited Liability Entities

California law provides for a wide variety of possible business entities to choose from. The most common limited liability entities are the corporation and the Limited Liability Company (LLC). Under the theory of limited liability, your liability is limited to the amount you chose to invest into the company in the first place and your personal assets outside of this investment are not at risk, even if the company goes bankrupt owing large sums of money. There are exceptions, however.

The Alter Ego Doctrine

Under the “alter ego” doctrine, a company shareholder is supposed to treat the company as a separate entity – almost as if it were a separate person. If, instead, the shareholder treats the company as his own private piggy bank, a court might consider the company to be his “alter ego” and hold the shareholder personally liable for company debts. This risk is particularly acute in California employment disputes, because California law is notoriously employee-friendly.

Factors

There is no bright-line rule that will tell you under exactly what circumstances a court will hold you personally liable for unpaid wages in the event of company dissolution. Although courts look at such claims on a case by case basis, they will balance the following factors (among many others) to reach a conclusion:

  • Whether personal and company funds were co-mingled;

  • Whether company funds were used to pay personal expenses;

  • Whether the shareholder exercised dominion over company assets;

  • In a corporation, whether the shareholder failed to observe corporate formalities such as obtaining a board resolution before issuing new shares;

  • Insufficient capitalization to meet reasonably anticipated company liabilities; and

  • Failure to file company tax returns.

All of these factors need not be present for personal liability to be assessed.

Joint and Several Liability

When a California court finds that a limited liability entity is the alter ego of the shareholders and that personal liability should be imposed, it may find each of the shareholders jointly and severally liable for corporate debts. Facing joint and several liability is not an enviable position to be in.

Suppose, for example, that 10 shareholders each own 10 percent of company shares. A court could allow aggrieved employees to sue any one of these 10 shareholders for 100 percent of their claim. It would then be up to that shareholder to seek proportionate contribution from the other shareholders. However, this might not be possible if, for example, the other nine shareholders are insolvent or bankrupt.

Take Decisive Action Today

The potential personal liability of a shareholder in a closely held company is much greater than most people realize, especially in employee-friendly California. At CKB Vienna LLP, our first concern is to help you prevent a claim being lodged against you in the first place. Should a claim arise, however, we are more than ready to fight for you and win – whether at the negotiating table or in court.

Telephone us at 909-980-1040, or contact us online to schedule a consultation with us. We serve clients from Rancho Cucamonga as well as elsewhere in California.

GPS Tracking of Employee Locations: The Legal Implications in California

GPS Tracking of Employee Locations: The Legal Implications in California

New technology means it is easier than ever to use GPS tracking to keep track of the locations of your employees. This could be critical to productivity in positions where employees often work off-site and must be trusted to make productive use of their time. GPS tracking, however, raises privacy concerns under the California constitution, and it requires employers to observe certain limitations.

Legal Precedent: Moreno v. S.F. Bay Area Rapid Transit District

The Moreno v. S.F. Bay Area Rapid Transit District case is an important legal precedent that provides two of the primary legal principles applicable to determining the legality of GPS tracking:

  • A link to a privacy policy that appears when an app with a GPS tracking function is being installed is not enough to impute consent to tracking to an employee who uses the app.

  • Tracking a user through an ID number does not raise the same privacy concerns that tracking a user through his personal information does.  

Chip Implants

Chip implants, permanent implants that are inserted under the skin, raise acute privacy concerns because they are invasive and can be used to track employees 24/7. They might also raise religious freedom concerns since some conservative Christians are already identifying chip implants as the “mark of the beast” described in the Bible. Penalizing an employee who refuses to use an implant for religious reasons might raise First Amendment concerns.

Company-Owned Devices

You enjoy much greater freedom to track the location of company-owned devices such as a cell phone. If all you are tracking is the location of the device itself, then it is generally permissible to track it even when the employee is off-duty. After all, tracking tells you only the location of the device, not necessarily the employee. Two caveats: (i) the same might not apply to tracking the location of a chip implant, and (ii) employees should still consent to tracking.   

How Employers Can Protect Themselves against Liability

Observing the following guidelines should greatly reduce your legal risk:

  • Employees should be tracked by ID number, not by name or personal data.

  • Employees should be specifically notified that their location will be tracked, and their specific consent to tracking should be obtained.

  • Track employees only during working hours – even lunch breaks are off limits.

  • Take reasonable measures to prevent interception by third-party eavesdroppers.

  • Do not use chip implants.

Act Decisively to Mitigate Your Legal Risk

Privacy is a big deal in California, and state courts tend to show bias in favor of employees in the event of a dispute. Put these two concerns together and you could end up with the proverbial “perfect storm.” At CKB Vienna LLP, however, we can help you prepare and implement policies that can help you minimize the risk that a dispute will erupt in the first place and maximize your chances of victory should you be dragged into a dispute by an employee or a third party.

Call us at 909-980-1040 or fill out our online contact form to schedule an appointment to discuss your concerns. We serve clients from Rancho Cucamonga as well as elsewhere in California.

How the Business Judgment Rule Protects Rancho Cucamonga Corporate Directors

How the Business Judgment Rule Protects Rancho Cucamonga Corporate Directors

Corporate directors are responsible for making decisions that can cost shareholders a lot of money. These costs can be imposed by bad decisions, of course, but they can also be imposed by good decisions that don’t satisfy everyone. If a director could be sued in his personal capacity by any shareholder who disagreed with his decisions, few people would dare to act as a corporate director. The business judgment rule limits the personal liability of directors.

The Duties and Liabilities of Corporate Directors

Two broad principles govern the decision making of California corporate directors:

  • The fiduciary duty of loyalty: A director must act with loyalty to the corporation, not his personal financial interests. A director is not allowed to use corporate resources for his own benefit (beyond his salary) even if the corporation is not thereby harmed.

  • The fiduciary duty of care: A director must exercise diligence, competency, and “good faith” (laudable motivations) when making corporate decisions.  

Breach of either of these duties can subject a director to personal liability.

The California Business Judgment Rule

The business judgment rule is designed to prevent shareholders and courts from second-guessing the decisions of corporate directors. It serves as a counterweight to, and to an extent a restatement of, the potential liability that directors face for breach of their fiduciary duties. Under the California business judgment rule, a director cannot be held personally liable if the following conditions are met:

  • The director acted on an informed basis;

  • The director acted in good will; and

  • The director honestly believed that the decision at issue was in the corporation’s best interests (regardless of whether it actually was or not).

If a director is sued by a shareholder, the director can assert that he complied with the business judgment rule and ask the court to dismiss the lawsuit. This is without ever reaching the question of whether the director’s decision was right or wrong under the circumstances.

Loopholes

Although the business judgment rule can be overcome, in a civil lawsuit it, is the party asserting director liability who has the burden of proving, under a “more likely than not” standard, that the business judgment rule does not apply to the dispute. Some examples of loopholes through which liability has been successfully asserted include:

  • Establishing that the director violated his fiduciary duty of loyalty or care. A major red flag occurs if the director personally benefited from a decision he made (he gave himself a raise, for example).

  • Establishing that the director’s decision wasted corporate resources, even if no violation of the duties of care and loyalty occurred.

Once a plaintiff has submitted evidence that the business judgment rule does not apply to his claim, the director can still put forth evidence that his decision was right (because it was reasonable and fair, for example). This time, however, the burden of proof will be on the director, not the shareholder.


Here at CKB Vienna, we understand the difference between the “lawyer’s solution” to a business problem and a more effective business solution that takes into account surrounding circumstances and business realities. We stand ready to help you craft a tailor-made solution to your problem. Call us at 909-980-1040 or contact us online to schedule a consultation in our Rancho Cucamonga Office. We serve clients all over town including Alta Loma and Etiwanda.

What Are the Qualifications for a Trade Secret?

What Are the Qualifications for a Trade Secret?

Trade secrets are considered a form of intellectual property; nevertheless, they lack the protection that other forms of intellectual property enjoy. So why would a business settle for trade secret protection of proprietary information rather than protection under patent, copyright, or trademark law? There are two main reasons:

  • Certain forms of proprietary information fall between the cracks in intellectual property law and are not eligible for protection under either patent, copyright, or trademark law; and

  • A company may wish to retain exclusive access to its secrets for longer than the term of protection for the intellectual property protection for which it is eligible. Imagine, for example, if Coca-Cola applied for patent protection of its formula. They would have to publicly reveal it, and anyone could use it legally after the 20-year duration of patent protection expired.

The Uniform Trade Secrets Act

California trade secret law is based on the Uniform Trade Secret Act. A uniform act is an act that is drafted at the national level and then sent to each state as suggested legislation in the hopes that all states will enact it, thereby harmonizing the law among the various states. States are not required to enact such legislation, and indeed some don’t, while other states enact it in modified form (in other words, the trade secret law of most states is similar but with state-specific idiosyncrasies).

What Counts as a Trade Secret?

A  trade secret can be any secret information legally possessed by a company that provides it with a competitive advantage, including (but not limited to):

  • Customer lists

  • Marketing information

  • Unpatented inventions

  • Computer software

  • Formulas

  • Recipes (KFC’s “17 different herbs and spices”, for example)

  • Techniques

  • Processes

  • Other information

Trade Secret Qualifications

To qualify as a trade secret:

  • The information must be commercially valuable.

  • The information must be difficult for others to legitimately acquire or independently produce.

  • The information must be unknown outside the company (including its employees and others involved in the business).

  • The company must have taken reasonable measures to keep the information secret. Typically, this is accomplished through the use of nondisclosure agreements with company employees.

What Is Trade Secret Misappropriation?

Under California law, there are two forms of trade secret misappropriation:

  • Using dishonest means to acquire trade secrets; and

  • Inappropriate disclosure or use of trade secrets (by a former employee who establishes a competitive company, for example).

A party who independently invents the same information that another company already claims as a trade secret does not thereby misappropriate it.  

Liability

A company commits misappropriation of a trade secret of another party, even if it did not know that it was someone else’s trade secret, as long as it “had reason to know” of the information’s status as someone else’s trade secret. Misappropriation liability can include court-ordered injunctions, damages, and criminal liability.


At CKB Vienna, our business litigation lawyers are knowledgeable, committed, and absolutely relentless in their pursuit of their clients’ best interests. If you possess trade secrets that need protection, or if you are concerned about liability for trade secret misappropriation, call us at 909-980-1040 or contact us online. We serve clients in Rancho Cucamonga, including Alta Loma and Etiwanda, as well as other nearby areas.

Paternity Fraud in Rancho Cucamonga

Paternity Fraud in Rancho Cucamonga

A biological father can properly be held financially responsible for the care of his minor children. By contrast, imagine that you are being assessed hefty child support payments to support a child who belongs to someone else. Further imagine that the child’s mother intentionally identified you as the father while knowing that you were not. This is the nightmare of paternity fraud.

Marriage and the Presumption of Fatherhood

California law presumes that a child born in wedlock is the biological child of both parents. Don’t get tripped up by the word “presume,” however. All it means is that, if your wife gives birth to a child while you are married to her, the law will treat you as the biological father until you prove otherwise.

Mistaken Admissions of Paternity

California issues a form, called a Voluntary Declaration of Paternity, that allows you to formally acknowledge that you are the father of the child. It is particularly useful where the child was born out of wedlock. Never sign this form unless you are certain that you are the child’s biological father, because it can become a significant legal obstacle if you find out later that you aren’t.

Court Orders of Paternity

The child’s biological mother may seeks a court order of paternity against you, which paves the way for child support payments to be assessed. Although you have the right to appear at the hearing and defend yourself, if you fail to appear, then a default judgment will be ordered against you.

DNA Testing

A DNA test must be court-ordered to serve as valid evidence, and the court can only order a DNA test within two years of the birth of the child. Past the child’s second birthday, the statute of limitations deadline expires and the court lacks the power to order a DNA test. This limitation has the potential to work great injustice, but it gives you all the more reason to seek legal counsel if you believe you have become a victim of paternity fraud.

The Paternity Disestablishment Bill of 2004

In 2004, the California legislature enacted the Paternity Disestablishment Bill, which makes it easier for the victim of paternity fraud to fight back. Among other features, the law provides the following:

  • A putative father can file a motion to withdraw a mistaken Voluntary Declaration of Paternity at any time before the child’s second birthday.

  • A putative father can file a motion to set aside a default judgment that led to a court order declaring him the child’s father. This must be within two years of the date that he knew or should have known of the judgment. He can then re-litigate the court order declaring him the father.

  • A putative father can file a motion to set aside a judgment of paternity that he participated in (in other words, that did not default on) if he was declared the father in the absence of DNA testing. He can then re-litigate the court order declaring him the father.  


If you believe that you may have been a victim of paternity fraud, contact CKB Vienna immediately by calling 909-980-1040 or contacting us online to set up an appointment at our office in Rancho Cucamonga.We serve clients from all over town, including Alta Loma and Etiwanda.

How Marital Infidelity Affects a California Divorce

How Marital Infidelity Affects a California Divorce

The infidelity of a spouse is, for many people, one of the most painful experiences in life, and it is the reason why a great many divorces are initiated. Emotionally, it is difficult to imagine that the infidelity of one partner would not be considered relevant to a divorce proceeding that was initiated for that very reason. The reality, however, is more complex.

The “No-Fault” Divorce Revolution

Put simply, adultery is not a formal grounds for divorce in California. That reality is not as harsh as it sounds, however; because, since 1970, California has offered “no-fault” divorce. The only two real “grounds” for a California divorce are “irreconcilable differences” and “incurable insanity.”

Nearly anyone can get a divorce in California by alleging irreconcilable differences, even over the objections of their spouse. Although adultery doesn’t apply directly to a California divorce, related issues such as property division and child support can be affected under certain circumstances.

Depletion of Marital Assets

Suppose that a husband (for example) maintained a long-term adulterous affair with a mistress for whom he bought expensive gifts and rented an apartment for trysts. During property division, a court is empowered to consider these “mistress expenses” a unilateral depletion of assets that belonged to both spouses and to proportionately adjust the division of property in the wife’s favor.  The same principle would apply against a faithful spouse who simply gambled the money away.

Harm to the Children

The most important principle in child support and child custody matters is the “best interests” of the child. In theory, these interests take precedence over the interests of either parent. Although a sexually unfaithful parent is not necessarily considered thereby “unfit” to raise children, sexual promiscuity might be seen as a part of an overall lifestyle that might harm the children unless custody were vested in the other parent.  

Cohabitation before the Divorce Is Finalized

It is not at all uncommon for a spouse, who is separated pending divorce (whether or not “legally separated”), to take up residence with a new boyfriend or girlfriend before a divorce is finalized. Indeed, some people would not even consider this to be an example of genuine adultery at all.  

It could affect spousal support, however, if the receiving spouse is the one living with a new partner and the arrangement affects the new spouse’s need for spousal support. For example:

  • The new partner might be voluntarily providing support to the receiving spouse; or

  • The couple might be saving money by combining expenses – an apartment for two might cost less than twice the amount of an apartment for one, for example, thereby reducing the expenses of the receiving spouse.

In all cases, the moral issue of adultery itself is utterly ignored by California courts. It is only when incidental issues arise that a divorce is affected.  

Here at CKB Vienna, we understand that a divorce is far more than just a change in legal and financial status. It is a deeply emotional issue that can explode into a firestorm if not appropriately managed. We are committed to helping you navigate the process while, at the same time, demanding fairness.


Our office is located in Rancho Cucamonga and we serve clients from all over town, including Alta Loma and Etiwanda. Call us at 909-980-1040 or contact us online so that we can begin exploring your options today.

Employment Arbitration Agreements in Rancho Cucamonga

Employment Arbitration Agreements in Rancho Cucamonga

The term “arbitration” is often (and more clearly) referred to as “rent-a-judge.” It is a process by which a private party resolves a dispute between two or more parties. It differs from mediation in that a mediator cannot impose a resolution on the parties (he can only seek their consensus), while an arbitrator is empowered to impose a resolution on one or both parties.

Employment arbitration typically refers to arbitration of a dispute between an employee and an employer. Such arbitration is typically agreed to by both parties before a dispute arises (in an employment contract, for example). An arbitration clause in an employment agreement, or a stand-alone arbitration agreement, typically prevents either party from bringing the dispute to court or appealing the initial arbitration decision.

“Adhesion” Employment Arbitration Agreements

Employers typically like arbitration for reasons that are obvious when you think about it. Even a small company with only 100 employees faces 100 possible lawsuits from its employees. Courtroom litigation costs a lot more than arbitration does, and just a few lawsuits could bankrupt a company from legal fees even if it won every lawsuit.

An adhesion employment arbitration agreement is an arbitration agreement that a prospective employee must sign in order to be hired, or that a current employee must sign in order to keep his job. California courts sometimes strike down adhesion arbitration agreements on the reasoning that the employee had no real choice but to sign it.

The following should be included in any employment arbitration agreement in order to minimize the chances that your arbitration agreement will be struck down by a court:

  • The employer, not the employee, should bear the cost of arbitration.

  • Claims for workers' compensation benefits, unemployment insurance benefits, and the collection of allegedly due and unpaid wages should be excluded from the scope of arbitration.

  • Both parties (not only the employee) should be barred from submitting a dispute to a court for resolution.

  • A mechanism should be provided for the appointment of a truly neutral arbitrator.

  • Reasonable access to documents and witnesses should be guaranteed for both parties.

  • The arbitrator should be required to issue a written decision that includes essential findings and conclusions.

  • The arbitrator should be allowed to award just as much in damages as a court could award, including punitive damages.

Martinez v. Scott Specialty Gases Provides Employers with Leverage

The 2000 California case, Martinez v. Scott, allows courts to dismiss all employment claims by an employee who files a lawsuit in defiance of a valid arbitration agreement that prohibits such lawsuits. The reasoning is that, since the employee waived his only valid means of resolving his dispute (arbitration) by filing a lawsuit, there remains no valid forum with the jurisdiction to hear his complaints.

At CKB Vienna, we understand the difference between the business solution to a dispute and a “lawyer’s solution” that looks good on paper but fails to take into account business realities. Telephone us at 909-980-1040 or contact us online to schedule a consultation. Our office is located in Rancho Cucamonga and we serve clients from Alta Loma, Etiwanda, and elsewhere in town.

California Equal Pay Laws

California Equal Pay Laws

“Equal pay for equal work” is more than just a slogan in California, because the California legislature has enacted a comprehensive set of equal pay laws. These laws have teeth; violate one of them and your company could end up in big trouble – perhaps even bankrupt. A general familiarity with the legislation in this area can help your company avoid this fate.

The California Equal Pay Act of 1949

The California Equal Pay Act of 1949 states:

"No employer shall pay any individual in the employer's employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs."

Any lawyer reading the wording of this provision will immediately notice how narrow the coverage is and how vague the wording is. Vague wording means potential loopholes. As time passed, the loopholes multiplied and the grumbling grew louder. In 2015 the California legislature responded by supplementing this legislation with new, stricter legislation.

The California Fair Pay Act

The California Fair Pay Act modified the California Equal Pay Act of 1949 to render it probably the most employee-friendly equal pay legislation in the United States. Three features of this law deserve special mention:

  • The salary history provision: With limited exceptions, a company cannot ask a job applicant how much they were making at a previous position and they cannot base an employee’s salary on his or her previous salary. The law also requires the company to provide an applicant with a written pay scale upon request.

  • The “substantially similar” work provision: An company cannot pay employees of different genders, races, or ethnic backgrounds differently for “substantially similar” work. “Substantially similar” work means similar effort, skill, responsibility, and working conditions.

  • The “bona fide factor other than sex, race, or ethnicity”: An employer can justify paying two employees differently on the basis of a “bona fide factor other than sex, race, or gender.” The factor must be applied in a reasonable manner, it must account for 100 percent of the difference in pay, and the employer bears the burden of proving this justification.

Complaint Mechanism

An employee who believes he or she has a claim for unequal pay has three practical avenues for pursuing a remedy:

  • File a complaint with the California Labor Commissioner (CLC);

  • File a civil lawsuit; or

  • Seek a private settlement with the employer.


A common means of resolving an equal pay complaint is to start off by filing a lawsuit, and then use the lawsuit as leverage to open private settlement negotiations with the employer. In most cases, the employee has two years after the violation to file a lawsuit.

Contact Us for Immediate Assistance

The foregoing information barely scratches the surface of what you need to know to avoid falling afoul of California equal pay legislation. At CKB Vienna LLP, we can guide you through its byzantine corridors so that your compliance cannot easily be questioned. We can also represent you with aggressive advocacy if a claim is made against you or if a lawsuit is filed against you.


Contact us by calling 909-980-1040, orsimply complete our online contact form to schedule an appointment with us. We serve clients from Rancho Cucamonga as well as elsewhere in California.

Collecting Real Estate Deficiency Judgments in Rancho Cucamonga, California

Collecting Real Estate Deficiency Judgments in Rancho Cucamonga, California

Suppose a debtor defaults on a mortgage while owing $110,000 on the loan. The sale of the property nets only $90,000, excluding costs and fees, leaving you with a deficiency of $20,000. A deficiency judgment is your way of collecting this $20,000. You must sue the debtor. And if you win, the money can be taken from the debtor’s personal assets – through wage garnishment or seizure of bank account assets, for example.

Unfortunately for lenders, California law strongly favors borrowers in this situation. Unlike many other states, it strictly limits the ability of a lender to collect a deficiency judgment. The following are some examples of the limits on a mortgage lender’s freedom of action in this situation.

Judicial vs. Non-judicial Foreclosures

Two options exist for foreclosure under California law: non-judicial foreclosures and judicial foreclosures:

  • Most residential foreclosures are non-judicial in nature (the same cannot be said of foreclosures on commercial properties). Non-judicial foreclosures are carried out by the lender, not the court, and are subject to California’s anti-deficiency statute. This means that, as a lender, you are stuck with any deficiency – you have no recourse to the borrower’s personal assets.

  • Some residential foreclosures and most commercial property foreclosures are carried out by the court. Although deficiency judgments are allowed in principle, several exceptions exist, including:

  1. Deficiency judgments are not allowed for purchase money loans.

  2. Deficiency judgments are not allowed for seller-financed (“seller carry-back”) loans

  3. Deficiency judgments are not allowed for refinanced purchase money loans executed on or after January 1, 2013, except under certain circumstances.

If a deficiency judgment is allowed, the amount of the deficiency will be the lesser of:

  • The amount owed on the mortgage minus the fair value of the property as determined by the court; or

  • The amount owed on the mortgage minus the proceeds of the judicial sale.

For this reason, the lender is not guaranteed to receive the full amount of the outstanding balance – the fair value of the property may exceed the proceeds of the judicial sale (which is a very common occurrence).

The One Action Rule

Under California’s “one action rule,” a lender can only pursue one action to recover a mortgage or a debt. He can:

  • Conduct a judicial foreclosure;

  • Conduct a non-judicial foreclosure; or

  • Sue directly on the promissory note.

The lender, however, is subject to a significant disadvantage: he cannot sue on the promissory note as an alternative to foreclosure. If the debt is secured, he must pursue the security first.

At CKB Vienna LLP, we advise you on the best way to collect on any deficiency that may be owed to you and we can help you collect this deficiency. We can also help you structure transactions in a manner that will help you avoid this situation in the first place.

Call us at 909-980-1040 or fill out our online contact form to schedule a consultation with us. We serve clients from Rancho Cucamonga as well as elsewhere in California.

Trade Secrets under California Law

Trade Secrets under California Law

A trade secret is confidential information that is used in business that confers a competitive advantage over other companies or individuals that do not know of or use it. It can be technology, compilations such as lists of customers, business methods, devices, techniques or processes, among other items.

Although many trade secrets cannot be protected under patent law, some trade secrets can be protected in this manner. But the business that holds them does not wish to be subject to the time limitations on their validity. The formula for Kentucky Fried Chicken is a good example: Yum! Brands, the company that owns KFC, doesn’t want its formula patented because patent protection only lasts for 20 years.

Legitimate and Illegitimate Access

One of the disadvantages of holding a trade secret is that, if someone manages to obtain the information through legitimate means, they can use it as they please and there is very little you can do about it. On the other hand, if your employee or a competitor hacks into your computer database, discovers a trade secret, and uses it to start his own company, you definitely do have legal recourse – including criminal sanctions, in some cases.

The Defend Trade Secrets Act of 2016

The World Trade Organization (of which the United States is a member) obligates its signatories to take legal steps to protect trade secrets held by both domestic and foreign entities and individuals. The Defend Trade Secrets Act of 2016 (DTSA) is the U.S. federal government’s response to bring it into compliance with WTO standards (state law remedies for trade secret violations have been available for quite some time, however).

The DTSA allows you to sue in federal court for trade secret violations, thereby eliminating (theoretically) the possibility of local bias when an out-of-state plaintiff sues in another state’s court. Although minor discrepancies exist among state trade secret laws, they are mostly harmonized because almost every state has adopted the Uniform Trade Secrets Act.

The Pros and Cons of Trade Secret Protection

The primary advantages of trade secret protection are:

  • Trade secret protection can potentially endure forever. Think about how long the formula for Coca-Cola has been protected, for example.

  • There is no need to publicize the details of a trade secret. Patent protection, by contrast, requires complete disclosure before a patent is even granted.

The primary disadvantages of trade secret protection are:

  • Trade secret law does not protect against independent discovery. If someone else comes up with the same idea on their own, you have no recourse against them.

  • Trade secret law does not protect against reverse engineering. Of course, reverse engineering can be difficult or impossible, depending on the nature of the secret.

  • To qualify for trade secret protection, you must make an effort to keep the information secret. There is no need for such an effort for patent protection since the information has already been disclosed to the public.

An Ounce of Prevention Is Worth a Pound of Cure

At CKB Vienna LLP, we can help you create a trade secret protection policy that can protect your business interests for years or even decades to come. And if you are already involved in a  trade secret dispute, we are adept at applying the pleasure/pain principle to stop the leakage of your confidential information in a forthright manner – and win you financial compensation in the process.

Call us at 909-980-1040 or fill out our online contact form to learn how we can best assist you. We serve clients from all over the Rancho Cucamonga area, including Alta Loma, Etiwanda, Upland, Fontana, Ontario, Chino Hills, and Claremont.

Adopting a Child in California

Adopting a Child in California

Adoption is a serious matter. Considering the fact that adoption involves transferring parental rights from birth parents to adoptive parents and the fact that the birth parents may never see their child again, how could it not be a serious matter? Obviously, adoption laws exist for very good reasons. If you are considering adopting a child in California, it is important that you understand how the process works.

Obtaining Consent for an Adoption

In nearly every case, consent is required for the adoption process to get started. This consent must be given by:

  • Both of the child’s parents if they are married

  • Both of the child’s parents, even if they are not married, as long as the father’s name appears on the birth certificate

  • The child’s custodial parent only if the other parent has failed to communicate with or support the child for to least one year

  • The child’s custodial parent only if the other parent fails to respond to a court-issued notice of adoption proceedings that has been delivered to him or her

  • The adoptive parent’s spouse

  • The child being adopted as long as he/she is at least 12 years old

The foregoing is an abbreviated summary of consent requirements under California law. As with just about every legal issue, the details are far more complicated.

The Home Study

The home study is the process by which California adoption officials evaluate whether the child’s living environment would suit his best interests under your care. It involves:

  • Submitting your fingerprints;

  • Submitting to a medical examination;

  • Attending adoption classes;

  • Being interviewed by a social worker on several occasions; and

  • Submitting to a visit from a social worker in your home as well as an investigation of the child’s living conditions.

Your adoption application might be refused if you have ever been convicted of a crime involving child endangerment or child pornogrpahy. Other criminal offenses, such as violent crimes or alcohol- and drug-related crimes, might disqualify you if they occurred within five years previously. The same rules apply to any adult living in your home.

Finalizing the Adoption

If you successfully complete the home study, your adoption can be finalized in as little as six more months. You will need to undergo several more interviews with a social worker, including at least one interview with your child present.  

International Adoptions

International adoptions are growing increasingly popular, especially from China. If your adoption was finalized under, say, Chinese law, it would still be to your child’s advantage for you to re-adopt your child under California law. This would allow him or her to have an English language U.S. birth certificate. As long as your adoption was finalized overseas, however, re-adoption is not a legal requirement.

At CKB Vienna LLP, we can help you navigate the maze of California adoption law, whether you seek a domestic adoption or you seek to finalize an adoption commenced overseas. If you seek assistance with an adoption, feel free to telephone us at 909-980-1040 or simply fill out our online form so that we can schedule a consultation.

We serve prospective adoptive parents from all over Rancho Cucamonga, including Alta Loma, Etiwanda, and Claremont, among other neighborhoods.

Child Custody Law in California: The Basics

Child Custody Law in California: The Basics

Although child custody law in California is more complex than you might imagine, it is guided by a few foundational principles. Foremost among these is “the best interests of the child” that supersedes either parent’s right to authority over or contact with the child, should these values ever conflict with each other.

“The Best Interests of the Child”

The best interests of the child does not necessarily coincide with the child’s own preferences, although these can be taken into account if the child is considered old enough and mature enough to render his preferences worthy of consideration. On the other hand, “I wanna live with Daddy because he serves me ice cream for breakfast” could have the opposite of the intended effect.

The best interests of the child breaks down into two sub-principles:

  • The health, safety, and welfare of the child takes precedence over either parent’s preferences; and

  • California law presumes that the child’s best interests are best served when the child benefits from frequent and continued contact with both parents (contrary to the popular notion that the mother is always favored).

Physical Custody vs. Legal Custody

“Custody” comes in two forms, and enjoying one form of custody does not necessarily mean enjoying the other.

  • Physical custody” means the child’s living arrangements. All other things being equal, parents share physical custody – one parent may keep the child during the week, for example, while weekends may be reserved for the other parent.

  • “Legal custody” means the authority to make life decisions for the child – where he will go to school, for example, or what his religious upbringing will be.

Factors That Can Tip the Scales

The following are a few of the circumstances that can tip the scales of justice in favor of one parent at the expense of the other:

  • The child was conceived when the father raped the mother.

  • One parent has been convicted of child abuse or domestic abuse.

  • One parent has been credibly accused of child abuse (by child protection authorities, for example), even if no conviction resulted.

  • One parent has falsely accused the other parent of child abuse or other dangerous behavior (narcotics abuse, for example) to gain advantage in a custody proceeding.

  • One parent commits other reprehensible behavior that might adversely affect the child’s well-being (encouraging the child to smoke or take drugs, for example).

If any of these factors are present, a judge may deny custody to one parent altogether or limit the offending parent’s rights to supervised visitation only. In extreme cases, procedures may be undertaken to deprive the offending parent of all parental rights, including even the right to know of the child’s whereabouts.

Consensual Custody Arrangements and Mediated Solutions

Absent unusual or dangerous circumstances, courts encourage parents to come to voluntary agreements on legal and physical custody. If such an agreement cannot be reached, mediation is required. Only when mediation fails can litigation be resorted to.

Decisive Action Can Make a Difference

At CKB Vienna LLP, we can help you reach an amicable resolution to child custody issues. If necessary, however, we can initiate litigation to resolve intractable disputes. Telephone us at 909-980-1040 or fill out our contact form to learn how we can best assist you in your child custody dispute. We serve clients from all over Rancho Cucamonga, including Alta Loma, Fontana, Chino Hills, Claremont, and elsewhere in the area.

How Does the Legalization of Recreational Marijuana Use Affect Employee Rights in California?

How Does the Legalization of Recreational Marijuana Use Affect Employee Rights in California?

Is recreational use of marijuana now legal in California? Well, yes and no. Yes, because it is now legal under state law (subject to certain restrictions, of course). No, because federal law still prohibits the use of marijuana, even for medical purposes. Since federal law trumps state law (no pun intended), the answer seems clear: marijuana use is still illegal in California – sort of.

The catch is that, for now, the federal government is refraining from enforcing its anti-marijuana laws in states that have legalized its use. So how does the federal government’s voluntary forbearance affect the relationship between employers and employees who indulge in this practice?

Not Much Has Changed – for Now

Although the law is changing rapidly in this area, at present, the following state of affairs prevails:

  • Both public and private employers have the right to insist upon a drug-free workplace. Marijuana is still classified as a “drug”, even though California has legalized it. Some employers (employers of delivery drivers, for example) are required to insist that their employees remain drug-free on the job, for obvious reasons.

  • An employer may forbid the use, consumption, possession, or display of marijuana in the workplace, even if such prohibition has no direct bearing on the mission and function of the organization. A stockbroker can still be fired for bringing a bag of marijuana to work, for example.

  • An employer can terminate an employee for off-duty use of marijuana. Since it remains illegal under federal law, an employer is not forbidding an employee from engaging in a “lawful off-duty activity,” which could, in certain circumstances, raise serious legal questions.

  • An employer may administer drug tests to prospective employees and refuse to hire those who test positive for marijuana use.

  • Employers may carve out exceptions to normal marijuana prohibitions for the benefit of employees who use marijuana for medical reasons (someone suffering from glaucoma, for example, might be hired even after a positive marijuana test), but they are not required to do so since even medical marijuana use is barred under federal law.

  • In most cases, an employer can ignore a positive marijuana test and go ahead and hire a prospective employee anyway unless there is a law expressly prohibiting it (for certain federal jobs requiring high-level security clearance, for example).

Marijuana law, as it relates to employee rights, is in a state of flux right now, and some legal scholars anticipate rapid changes in the future. Employers would do well to keep abreast of these changes, especially if (i) the federal prohibition against marijuana use is lifted, or (ii) the U.S. Attorney General begins strictly enforcing federal marijuana law even in states that permits its medical and recreational use. Either way, however, many employer rights and obligations will not change.


At CKB Vienna LLP, we can help you navigate the legal minefield that the semi-legalization of marijuana has created for employers and we can aggressively represent you if a dispute should arise over your treatment of your employees. Call us at 909-980-1040 orfill out our online contact form to learn how we can help you protect your interests. We serve clients from all over Rancho Cucamonga, including Alta Loma, Upland, Fontana, Chino Hills, and Claremont.

How to Protect Your Company from Lawsuits in the #MeToo Era

How to Protect Your Company from Lawsuits in the #MeToo Era

The #MeToo movement has taken the country by storm, and many observers wonder whether it will ever be the same again. Nowhere has it impacted life more than at the workplace, where men and women congregate in close proximity and where a particularly successful lawsuit can create a millionaire overnight.

An employer can be sued for sexual harassment even if the company is not at fault, because under California law, misconduct by an employee can be imputed to the employer and the employer can be held liable. Obviously, employers need to take heed – but how? The following are some pointers.

Understand the Legal Definition of Sexual Harassment

“Sexual harassment” can include anything from unwelcome sexual advances, an uninvited back rub, requests for sexual favors, and a wide variety of similar conduct, including offensive statements about women in general. Legally, the sexual harassment bull has two horns:

  • The hostile work environment claim; and

  • The quid pro quo claim.

A “hostile work environment” sexual harassment claim is based on a pattern of harassment that is so pervasive that it creates a hostile work environment. In a quid pro quo claim, the plaintiff alleges that he or she suffered an adverse employment outcome (being fired or passed up for promotion, for example) as retaliation for refusing sexual advances.

Create a Sexual Harassment Policy

It is imperative that you create a formal sexual harassment policy that every employee is required to sign. This policy must be structured so that it not only forbids sexual harassment but also forbids or discourages conduct that might lead to sexual harassment or might be characterized as such – personal questions about a co-worker’s social life, for example.

Be Careful Who You Hire

Carefully check the background of any job applicant before hiring him or her, using a reputable investigator. Check references, not only for job competence but also for personal reputation. By all means conduct thorough research of the applicant on the Internet, including social media posts. Dig deep. Certain internet companies will help their clients “crowd out” negative information by filling up the first page of search results with manufactured praise.  

Institute Sexual Harassment Prevention Training

California law requires all workplaces with at least five employees to provide at least two hours of sexual harassment prevention training to supervisors and one hour of such training to non-supervisors. It might be a good idea to exceed these minimums.

Maintain an Effective Claims Process

Yes, your company could lose a sexual harassment lawsuit even if the company itself was not at fault as long as the at-fault individual was a company employee (rather than an independent contractor). If company management is found to have acted negligently in handling a sexual harassment complaint, however, things could get even worse. Make sure you have an effective claims process in place.

We’re on Your Side

At CKB Vienna LLP, we can help you formulate sexual harassment policies that will offer you maximum protection. And if you find yourself on the wrong end of an employee sexual harassment lawsuit, we will use every weapon in our legal arsenal to help you fight back.


Call us at 909-980-1040 or complete our online contact form to schedule a consultation with us. We serve clients from Rancho Cucamonga as well as elsewhere in California.

Resolving Shareholder Grievances in California: Direct Actions vs. Derivative Actions

Resolving Shareholder Grievances in California: Direct Actions vs. Derivative Actions

When a shareholder of a corporation develops a grievance against a corporation with a separation of ownership and management, he must choose between two different approaches, depending on the nature of the complaint and the circumstances: direct action or derivative action. A shareholder must generally choose between these two options – a single complaint will either be eligible for resolution through a direct action lawsuit or a shareholder’s derivative lawsuit, but not both.

Direct Action Lawsuits

In a direct action lawsuit, the shareholder alleges that the company has directly violated his rights in some way (refusing to distribute a dividend he is entitled to, for example, or by refusing to count his vote). The right violated must belong to him specifically, not to the corporation in general. In other words, he cannot maintain a direct action lawsuit if his complaint is based on injury to the corporation.

To maintain a direct action, the shareholder must show that the company’s behavior impacts some but not all of the shareholders. Or, the shareholder must show that the complaint can otherwise be characterized as a complaint about direct injury to him as a shareholder rather than to the corporation itself.

Derivative Action Lawsuits

In a derivative action lawsuit, the shareholder alleges that the directors have indirectly violated his rights by failing to look out for the best interests of the corporation. Since a corporation is a fictional entity, corporate directors act as representatives of the corporation; as such, they are subject to a fiduciary duty to act in the best interests of the corporation. This, of course, indirectly benefits the corporation’s shareholders.

A shareholder who files a derivative lawsuit is alleging that the corporation’s officers and/or directors have failed to properly look out for the corporation by performing acts (or by failing to perform acts) in a manner that is not in the best interest of the company. This indirectly harms the shareholders by reducing the value or marketability of the company’s shares.  

Demand and Futility: Before filing a shareholder’s derivative lawsuit, a shareholder is generally required to issue a formal demand to the company’s board of directors the rectify the complaint. If the board fails to do so within a reasonable time, the shareholder will have standing to file a derivative lawsuit. The demand requirement can be excused if the shareholder shows that any demand would be futile.  

Remedy: Since the shareholder’s claim against the company is derivative, the shareholder’s benefit is also derivative. If the shareholder wins the lawsuit, the court will order the board to remedy the shareholder’s complaint by acting, or ceasing to act, in a manner that will remedy the complaint (by refraining from further licensing its technology to a competitor owned by one of its former directors, for example).

Contact Us ASAP

If your company is subject to or anticipates shareholder litigation or if you are a shareholder contemplating litigation against the company that you hold shares in, call CKB Vienna LLP at 909-980-1040 or fill out our online contact form to learn how we can help you. We serve clients from the Rancho Cucamonga area, including Alta Loma, Etiwanda, Upland, Fontana, Ontario, Chino Hills, and Claremont.

Defenses to Automobile-Based Product Liability Claims in California

Defenses to Automobile-Based Product Liability Claims in California

There are two ways to defend against an automobile product liability claim. One way is to submit evidence to directly refute the plaintiff’s claims – as in “Yes, you did”/”No, we didn’t”. The other way is to raise additional facts that will partially or fully release you from liability. The following list describes several well-known examples of the second variety:

  • The Statute of Limitations: The statute of limitations defines the deadline by which you must either file a product liability lawsuit or forever hold your peace. In California, the general statute of limitations deadline is two years from the date that you knew, or should have known, of the injury caused by the product (exceptions exist). If filed too late, your lawsuit can be dismissed.

  • The Statute of Repose: Many states have passed statutes of repose. A statute of repose sets an age limit on the product itself: the clock begins ticking the day that the product is first sold, and once the deadline expires, no injury arising after the expiration date will be entertained by the courts. Although California has passed a ten-year statute of repose, it applies only to improvements in real estate. No statute of repose exists for any other product.

  • Comparative Negligence: If the plaintiff shares fault for his own injury (an intoxicated driver sues an automobile manufacturer for faulty brake drums, for example), the plaintiff’s percentage of fault will be used to reduce the amount of damages – if he was 25 percent at fault, he would lose 25 percent of his damages; if he was 60 percent at fault, he would lose 60 percent of his damages.

  • Unavoidably Unsafe Products: Certain socially useful products carry with them inherent risks that cannot be completely eliminated. In the case of drugs and vaccines, the defendant can assert this as a defense as long as the drug was properly prepared and accompanied by appropriate risk warnings based on current scientific knowledge.

  • Product Misuse or Modification: If the product was misused or modified after it left the defendant’s possession in an unforeseeable manner, the defendant can claim that the misuse or modification was (i) the sole cause of the plaintiff’s injury and, therefore, the defendant should not be held liable, or  (ii) a contributing cause of the plaintiff’s injury and, therefore, the defendant’s liability should be reduced.

  • State of the Art: In a design defect case, a defendant may argue that the use of the product carries inherent dangers and that the product’s benefits outweigh its inherent risks. In a failure to warn case, the defendant may argue that the product’s unmentioned risks were neither known nor knowable by the defendant based on the current state of scientific advancement.

The foregoing is not an exhaustive list of defenses available to defendants in product liability claims. A variety of contractual defenses, for example, may be available between commercial parties.

Contact Us ASAP

If your company has become the subject of an automobile product liability claim, telephone CKB Vienna LLP at 909-980-1040 or fill out our online contact form to learn how we can help you defend your interests. We serve clients from the Rancho Cucamonga area, including Alta Loma, Etiwanda, Upland, Fontana, Ontario, Chino Hills, and Claremont.

Preferred Ship Mortgages

Preferred Ship Mortgages

Ships are expensive, which means that they can be used as collateral for more than one debt at a time. This reality often leads to conflicts among competing creditors with liens on the vessel. Since ships are mobile and can traverse the waters of more than one state, the federal government has exercised jurisdiction over ship mortgages in the form of the Ship Mortgage Act. This Act and its implications form most of the law applicable to ship mortgages.  

The Federal Ship Mortgage Act

The federal Ship Mortgage Act created the Preferred Ship Mortgage as an alternative to a mortgage under state law. Creditors who meet the qualifications and create such a mortgage are entitled to priority over most (but not all) possible creditors that may have claims against the ship. If the lender, instead, relies on a state mortgage (which almost never happens), the creditor will rank near the bottom of the line of creditors in the event of a foreclosure.

Requirements for a Preferred Ship Mortgage

Following are some of the requirements for a Preferred Ship Mortgage:

  • The mortgagee must be a U.S. citizen or an FDIC-insured, state or federally chartered, financial institution;

  • The vessel must have been built in the US; and

  • The mortgage must cover the entire vessel, including fixtures.

Other requirements exist as well. One of the benefits of a preferred ship mortgage, however, is that there are no limits on the interest rate that can be charged – even state usury laws are generally preempted under the Ship Mortgage Act.

Superior Claims

Even with a Preferred Ship Mortgage, your lien will not necessarily enjoy priority over all other claims. Claims that enjoy superiority over preferred ship mortgage claims include:

  • Some claims by vessel employees

  • Salvage claims

  • Tort claims

  • General average liens


Despite these limitations, a preferred ship mortgage is probably the most reliable way of holding a lien against a ship.

Remedies

If the borrower defaults on the mortgage, the mortgage holder can choose between two possible remedies:

  • Take action against the ship itself in federal court. If the action is successful, the ship can be sold and the proceeds can be used to pay the mortgage The disadvantage of this method becomes apparent when the proceeds of the sale are insufficient to pay off the mortgage.

  • Take action against the shipowner in state or federal court. An action against the shipowner allows you to secure a deficiency judgment that the owner will be ordered to pay if the proceeds from the sale of the ship turn out to be insufficient to cover the mortgage.

Take the First Step Today

If you anticipate litigation over a ship mortgage or if you simply need transactional advice so that you can more intelligently explore your options, call CKB Vienna LLP today at 909-980-1040, or fill out our online contact form to learn how we can help you. We serve clients from Rancho Cucamonga and surrounding areas, including Alta Loma, Etiwanda, Upland, Fontana, Ontario, Chino Hills, and Claremont.

Five Common Employment Law Mistakes Committed by California Employers

Five Common Employment Law Mistakes Committed by California Employers

California employment law is among the most extensive and employee-friendly of any state in the union. Despite the great volume of legal requirements that apply, ignorance of the law is no excuse and failure to comply with the law could lead to disastrous consequences. The following are only a few of the most common legal mistakes committed by California employers:

  • Misclassifying an employee as an independent contractor: An employer’s duty towards an independent contractor is far less burdensome than his duty towards an employee. This also applies to third parties – an independent contractor’s negligence towards a third party is not automatically imputed to the employer, for example. Nevertheless, it is the courts that ultimately decide whether a laborer is an employee or an independent contractor.   

  • A lackadaisical attitude towards sexual harassment complaints: Sexual harassment complaints must be taken very seriously. In California, for companies with at least 50 employees, all supervisors must be compliant with AB1825. Your company must institute an anti-harassment policy along with a detailed mechanism for handling complaints.

  • Failure to regularly and appropriately revise the Employee Handbook: The most common mistakes in this regard are (i) failure to create an Employee Handbook in the first place, (ii) failure to update it at least once a year, and (iii) allowing an unqualified person to handle the drafting or revisions. Failure to create and maintain an Employee Handbook will give your employees (and ex-employees) a lot more leverage should a dispute break out between you.
    .

  • Insertion of a non-compete clause into an employment agreement (particularly without a severance clause): The temptation to insert a non-compete clause into an employment agreement that applies after separation of the employee from the company can be a great temptation, especially if your company is guarding valuable intellectual property.

    California courts are notoriously unfriendly to non-compete clauses, however, and including one in an employment agreement without a severance clause can result in the entire agreement being invalidated – with unpredictable results. Consult a California employment lawyer before you even consider inserting a non-compete clause into an employment agreement.

  • Inappropriate handling of employee disabilities (including pregnancy and psychiatric conditions):  Employers cannot unfairly discriminate in hiring people with disabilities. Hiring a disabled employee, however, triggers a host of legal requirements. Failure to take them seriously can result in lawsuits for astronomical damages.   

The foregoing is only the tip of the iceberg of potential California employment law violations. We have not even discussed many common violations such as failure to provide appropriate meal and break periods and requiring off-the-clock work. The services of a top-tier California employment lawyer become more and more necessary as your company grows.

Contact Us Today

If you are concerned that your company may be in violation of California employment law or if you simply need some questions answered to remain in compliance, call our office at 909-980-1040 or complete our online contact form to schedule a conference with us. We serve clients from throughout the Rancho Cucamonga area, including Alta Loma, Etiwanda, Upland, Fontana, Ontario, Chino Hills, and Claremont.