Can pay, based on hours worked with no guaranteed minimum, be deemed a “salary,” making employee exempt from overtime?

Posted by Steven Vartabedian on

California Labor Code section 515, subdivision (a), sets forth the requirements for determining whether an employee may be classified as exempt from pay requirements including those with respect to overtime: (1) the primary job duties are executive, administrative or professional), (2) the work involves the regular exercise of discretion and independent duties, and (3) the […]

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Is the full amount billed for medical care admissible at personal injury trial to prove past medical, future medical or general damages?

Posted by Steven Vartabedian on

The recent appellate opinion in Corenbaum v. Lampkin (filed 4/30/13) 2013 DJDAR 5591 answers “no” on all counts. The California Court of Appeal, Second Appellate District, Division Three, determined that only the actual amount paid for past medical care (here, as is typical, the discount rate paid by the medical insurer) is relevant and admissible. […]

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When may an attorney represent in a new action a party adverse to former client he represented in previous actions?

Posted by Steven Vartabedian on

The short answer is the attorney may represent the new client against his old client when the new case does not involve matters substantially related to the prior representations. A “substantial relationship” exists where ” the attorney had a direct professional relationship with the former client in which the attorney provided legal advice and services […]

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What are the risks of filing an appeal as a tool to force settlement?

Posted by Steven Vartabedian on

In Kleveland v. Siegel & Wolensky, LLP (filed 4/17/13) 2013 DJDAR 4961, the appellate court answered this question with a stinging rebuke: where there was no arguable merit to the initial probate petition and appeal, the court awarded attorney fees and sanctions totaling more than $60,000 against the appellant’s attorneys in the later appeal of […]

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When should a “negligence per se” jury instruction be given and what is the impact of the giving or not giving?

Posted by Steven Vartabedian on

There is a popular notion that if a party has violated a statute, legal liability necessarily flows from that violation. Not always so. Spriesterbach v. Holland (filed 4/9/13) 2013 DJDAR 4567 discusses some of important nuances concerning this subject. Plaintiff rode his bicycle on a sidewalk in the direction opposite the direction of vehicular traffic […]

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New Regulations and Court Decisions Spotlight The Interactive Process

Posted by Micah Nilsson on

Determining whether an employee’s physical or mental impairment should be considered a “disability” under the law has always been challenging for employers.  Recently amended California regulations establish that employees have an increasingly light burden to demonstrate they are disabled. The regulations effectively encourage employers to spend less time figuring out if an employee is disabled […]

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Does a third party’s criminal conduct of throwing concrete down onto a freeway relieve truck manufacturer’s duty to design windshield to protect against such flying objects?

Posted by Steven Vartabedian on

In Collins v. Navistar, Inc. (filed March 29, 2013) 2013 DJDAR 4169, a juvenile was throwing chunks of concrete from a freeway overpass onto the freeway, hitting a number of vehicles. One such vehicle was that of plaintiff’s deceased spouse, William Collins; a two and a half pound chunk penetrated the windshield and hit William […]

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Does California law require employers to compensate piece-rate employees a separate hourly minimum wage for non-piece-rate-producing required hours?

Posted by Steven Vartabedian on

The situation: wage and hour class action brought by automotive technicians against their employer who compensates repair work employees on a piece-rate basis; while total compensation would not drop below the “minimum wage floor” (total compensation for total number of hours), employees were not otherwise compensated anything for those specific hours they were required to […]

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Time Clock Practices – Rounding Up or Down of Time Worked

Posted by Mark Kruthers on

“To round or not to round?” That is a question asked by many employers when trying to decide how best to structure their payroll policies and practices. In an attempt to simplify the way time worked is reported and paid, and in the hope of eliminating issues caused by employees who “clock in” a little […]

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When is a rejected joint offer to settle enforceable to award expert witness fees (CCP sect. 998)?

Posted by Steven Vartabedian on

In McDaniel v. Asuncion (filed March 27, 2013) 2013 DJDAR 4038, the plaintiffs, wife and daughter of decedent who lost his life in an automobile accident, sued numerous defendants for wrongful death. Before trial, defendant Asuncion served a joint offer to the two plaintiffs to settle against this defendant alone in the amount of $100,000, […]

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