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Thursday, August 11, 2011

Employment Law: Settlement

Mid Six Figures $200,000 - $749,999:

Represented client, an owner and former employee of very successful privately-held company,
with respect to his claims against his former company.

Resolved without litigation.

Adishian Law Group, P.C. regularly represents very highly-compensated and uniquely compensated key employees, senior executives, C-Suite executives and company founders with respect to claims for unpaid compensation arising out of their employment. Our contact information is included below and we always offer a free consultation.

The information contained herein is not legal advice and does not establish an attorney-client relationship. The pages in this blog may contain testimonials, endorsements or results which of course, do not guarantee, warrant or predict the outcome of your individual legal matter. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: www.AdishianLaw.com. For more information about this topic or UNPAID COMPENSATION, UNPAID BONUSES, UNPAID COMMISSIONS, UNPAID WAGES, EMPLOYMENT or LABOR law, please visit www.AdishianLaw.com, contact us via email to askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. Copyright Adishian Law Group, P.C. 2011.

Employment Law: Settlement

Mid Six Figures $200,000 - $749,999:

Represented long time sales professional terminated while pregnant from very large public company employer

Resolved after extensive litigation, just prior to trial.

Adishian Law Group, P.C. regularly represents very highly-compensated and uniquely compensated key employees, senior executives, C-Suite executives and company founders with respect to claims for unpaid compensation arising out of their employment. Our contact information is included below and we always offer a free consultation.

The information contained herein is not legal advice and does not establish an attorney-client relationship. The pages in this blog may contain testimonials, endorsements or results which of course, do not guarantee, warrant or predict the outcome of your individual legal matter. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: www.AdishianLaw.com. For more information about this topic or UNPAID COMPENSATION, UNPAID BONUSES, UNPAID COMMISSIONS, UNPAID WAGES, EMPLOYMENT or LABOR law, please visit www.AdishianLaw.com, contact us via email to askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. Copyright Adishian Law Group, P.C. 2011.

Employment Law: Settlement

Mid Six Figures $200,000 - $749,999:

Represented former public company financial professional terminated for alleged conduct issues

Resolved without litigation.

Adishian Law Group, P.C. regularly represents very highly-compensated and uniquely compensated key employees, senior executives, C-Suite executives and company founders with respect to claims for unpaid compensation arising out of their employment. Our contact information is included below and we always offer a free consultation.

The information contained herein is not legal advice and does not establish an attorney-client relationship. The pages in this blog may contain testimonials, endorsements or results which of course, do not guarantee, warrant or predict the outcome of your individual legal matter. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: www.AdishianLaw.com. For more information about this topic or UNPAID COMPENSATION, UNPAID BONUSES, UNPAID COMMISSIONS, UNPAID WAGES, EMPLOYMENT or LABOR law, please visit www.AdishianLaw.com, contact us via email to askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. Copyright Adishian Law Group, P.C. 2011.

Employment Law: Settlement

Mid Six Figures $200,000 - $749,999:

Represented minority shareholder, former board member and former officer of very successful privately held corporation in action based on wrongful termination and corporate claims

Resolved after litigation, prior to trial.

Adishian Law Group, P.C. regularly represents very highly-compensated and uniquely compensated key employees, senior executives, C-Suite executives and company founders with respect to claims for unpaid compensation arising out of their employment. Our contact information is included below and we always offer a free consultation.

The information contained herein is not legal advice and does not establish an attorney-client relationship. The pages in this blog may contain testimonials, endorsements or results which of course, do not guarantee, warrant or predict the outcome of your individual legal matter. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: www.AdishianLaw.com. For more information about this topic or UNPAID COMPENSATION, UNPAID BONUSES, UNPAID COMMISSIONS, UNPAID WAGES, EMPLOYMENT or LABOR law, please visit www.AdishianLaw.com, contact us via email to askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. Copyright Adishian Law Group, P.C. 2011.

Employment Law: Settlement

Mid Six Figures $200,000 - $749,999:

Represented sales professional in claim for unpaid bonuses and other incentive compensation owed to her

Resolved without litigation.

Adishian Law Group, P.C. regularly represents very highly-compensated and uniquely compensated key employees, senior executives, C-Suite executives and company founders with respect to claims for unpaid compensation arising out of their employment. Our contact information is included below and we always offer a free consultation.

The information contained herein is not legal advice and does not establish an attorney-client relationship. The pages in this blog may contain testimonials, endorsements or results which of course, do not guarantee, warrant or predict the outcome of your individual legal matter. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: www.AdishianLaw.com. For more information about this topic or UNPAID COMPENSATION, UNPAID BONUSES, UNPAID COMMISSIONS, UNPAID WAGES, EMPLOYMENT or LABOR law, please visit www.AdishianLaw.com, contact us via email to askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. Copyright Adishian Law Group, P.C. 2011.

Thursday, May 26, 2011

Did Your "MBO" Become an "MB-No!"?

What is an MBO Compensation Plan?
Also know as a "bonus plan", "quota plan", "incentive compensation plan", "performance based compensation plan" and an array of other terms, "MBO" literally means management by objective, and in practice refers to any compensation plan where total compensation is determined based on a "pre-set" formula tied to volume, gross margin, revenue or another objective metric or metrics. MBOs are commonly used for the employees working in sales or business development.

Everybody Wins, Right?
Employers like MBO plans because if the employee does not perform, then typically no additional compensation is due under the MBO plan, which helps the Employer match revenue and expenses. Employees love MBO plans because there is theoretically no limit on how much money they can make. These plans appeal to the enterprising, self-starter who wants to work hard, and get a clear, direct reward for his or her performance.

Where It Goes Wrong
It all seems so easy, how can there be any problems? Issues arise when the performance period (whether quarter or year) comes to a close, performance has been delivered and it is time to measure performance and deliver on payment promises. For the employee, there is an obvious motivation to get as many transactions as possible to count towards their totals. For the employer, there is an opposing motivation to lower it payment obligations either by (1) aggressively applying the MBO by using any ambiguities to disqualify deals or (2) retro-actively revising the MBO outright (when management wishes to revise the MBO plan retroactively for any number of reasons --- these revisions only mean one thing, compensation paid to the employees covered by the MBO plans, in general and in specific, is going DOWN.).

This situation occurs frequently across companies of all shapes and sizes and can quickly cause the employment relationship to deteriorate. In many cases, the employee will claim that the employer has received all the benefits (i.e. new revenue), and is now failing to deliver on it payment promises. Likewise, in such cases the employer will claim that the employee is counting improper deals, claiming credit for the performance of other employees and/or even engaging in unethical behavior!

If you find that your compensation plan has been retroactively revised, or if your employer has failed to pay bonuses or other compensation that is owed to you, we recommend that you consult with an attorney immediately.

Adishian Law Group, P.C. regularly represents very highly-compensated and uniquely compensated key employees, senior executives, C-Suite executives and company founders with respect to claims for unpaid compensation arising out of their employment. Our contact information is included below and we always offer a free consultation.

The information contained herein is not legal advice and does not establish an attorney-client relationship. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: http://www.adishianlaw.com/index.php/wrongful-termination. For more information about this topic or UNPAID COMPENSATION, UNPAID BONUSES, UNPAID COMMISSIONS, UNPAID WAGES, EMPLOYMENT or LABOR law, please visit www.AdishianLaw.com, contact us via email to askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. Copyright Adishian Law Group, P.C. 2011.

Are Stock Options "Wages"?

The Definition of Wages in California
Under California Labor Code §200 wages are defined to include “all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.” Further, California courts have specifically held that a “bonus” constitutes wages. See Ralphs Grocery Co. v. Sup. Ct. (Swanson) (2003) 112 Cal. 4th1090, 1103, 5 Cal. Rptr. 3d 687, 697. Pursuant to California Labor Code §201 et. seq., if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. The California Labor Code goes on to provide for waiting time penalties, interest and attorneys' fees should an employer fail to timely page wages in whole or in part.

Traditional Rule: The "Fixed or Ascertainable" Test
In 1999, stock options were held to not fall within Labor Code § 200 because they are not “amounts” of money, and their value cannot be ‘fixed or ascertainable.’ Int’l Bus. Machines Corp. v. Bajorek (191 F3d 1033, 1039-1040). The Court in IBM wrote:

"The statute does not apply because its words read literally and in light of its purposes do not apply -- stock options are not "wages." Wages are defined by the statute as "all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation." *fn17 Stock options are not "amounts." They are not money at all. They are contractual rights to buy shares of stock. . . . The amount of money for which the shares can be sold on the market varies unpredictably from time to time, so it is not "fixed or ascertainable" by any method of calculation when the agreements are made or exercised. . . . they ordinarily do not give rise to an expectation of a calculable sum of money. *fn18. The value of the stock awarded in options may be as much affected by the fortuities of stock market behavior as by the profitability of the company."

Does the IBM decision still make sense?
Int’l Bus. Machines Corp. v. Bajorek was decided in 1999, three years before Sarbanes-Oxley and about six years before US GAAP adopted the standard practice of “expensing” the value of stock options.

If stock options can in fact be “expensed” -- then it must be that Companies are capable of assigning options a “fixed or ascertainable” value (either through Black-Scholes, the binomial model or some other methodology). Thus, if stock options are "fixed or ascertainable", then it would seem to follow naturally that they are wages and subject to all the protections afforded to employees under the California Labor Code.

Examining the contrary position, saying that stock options are "fixed or ascertainable" for financial reporting purposes but not "fixed or ascertainable" for the purposes of calculating wages under law would seem to contort reason. In fact, to our understanding, that is the very purpose of "expensing" options -- so that the shareholders know how much the Company is paying in wages via stock options!

Implications for Employees with Stock Option Compensation
It is well settled that California public policy requires the prompt payment of wages. With the development of significant secondary markets for securities in privately held Companies, we believe that the recognition of stock options as wages has potentially significant impact for owners and employee in start-up companies in Silicon Valley and elsewhere where compensation packages are typically well-below market in salary and heavily weighted with stock options. We also believe that this issue is significant for Senior Executives of publicly-traded Company whose compensation consists of significant stock option grants. Some questions to consider:

What if your stock options are vested but unexercised and you are terminated?
What if you are terminated just prior to your first block of stock options vesting (e.g. cliff vesting)
What if you are terminated just prior to additional stock options becoming vested?
What if your vested stock options expire after your termination?



What if we substitute the words "earned wages" for "stock options," in the preceding questions? Does your answer change?



Adishian Law Group, P.C. regularly represents highly-compensated and uniquely compensated key employees, executives and company founders with respect to claims arising out of their employment. Our contact information is included and we always offer a free consultation.



The information contained herein is not legal advice and does not establish an attorney-client relationship. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: http://www.adishianlaw.com/index.php/wrongful-termination. For more information about this topic and/or other areas of STOCK OPTIONS, COMPENSATION, EMPLOYMENT or LABOR law, please visit http://www.adishianlaw.com/, contact us via email to mailto:askalg@adishianlaw.com?subject=stock?Options or call us at 415.955.0888 or 310.726.0888. Copyright Adishian Law Group, P.C.
2011.

Tuesday, February 15, 2011

Adishian Law Group Newsletter (February 2011)

(edited, originally published February, 2011)

Headnotes....

New @ ALG. We are also pleased to announce the following:

  • Mhaer J. Alahydoian, Esq., is joining our firm as an Associate this month. Mr. Alahydoian earned his J.D. from Loyola Law School, with an M.B.A. from the Haas School of Business. He is a former executive with Raindance (fmrly NASDAQ: RNDC, acquired by West Corporation in 2006 for $153M), and brings broad-based business operations, M&A and real estate transactional experience. Mhaer is a member of the California Bar.

Class Action Litigation. We are presently representing a putative class of plaintiffs in an action against Greystone Bank and Greystone Service Corporation, Inc. alleging violation of California Civil Code 2924c, Breach of Contract, Unfair Competition (BPC 17200) and other claims. Per its website, Greystone Service Corporation "services ... a multi-billion-dollar portfolio of real estate loans for Fannie Mae, GNMA, private investors, public agencies, and our own portfolios."

If you have a loan (a) originated by Greystone Bank or (2) your loan is serviced by Greystone Servicing Corporation, and you have been charged excessive interest, late fees, attorneys' fees, appraisal fees or reinstatement fees, please contact us at info@adishianlaw.com. Please also visit our real estate blog for more information on mortgage class actions: http://algrealestatelaw.blogspot.com/

We expect to be taking on more class action cases over the coming months and years.

Arbitration and Mediation Services.
Chris Adishian is available to serve as an arbitrator or mediator in corporate, business or real estate disputes. Recent arbitrations and mediations include the following:

  • Served as one of three arbitrators appointed to decide a client-attorney fee dispute of approximately $60,000
  • Served as one of three arbitrators appointed to decide a client-attorney fee dispute of approximately $750,000
  • Served as one of three arbitrators appointed to decide a client-attorney fee dispute of approximately $900,000

If you would like to have Chris Adishian serve as a private Mediator or Arbitrator in your dispute, please contact the office at 310.726.0888 to check for availability of dates.

Corporate Law Update

We continue to build our corporate practice of representing top entrepreneurs and serving as general counsel for emerging companies and privately-held corporations across a range of industries from high-tech to low-tech. Ideal clients include start-ups and privately held, growth companies with $10M - $50M in revenue.

Following are some of our recent and active corporate matters. If these look or sound like something you or someone in your network are experiencing, give us a call:

  • Ongoing, broad-based, general counsel work for existing clients (litigation defense strategy, contracts, joint venture agreements, licensing, marketing agreements, employment matters, real estate matters, board meetings and general compliance, etc.)
  • Representing client with regard to defense of alleged pregnancy discrimination claim (alleged failure to reinstate)
  • Threatened breach of licensing agreement
  • Advising non-profit entity re: termination of executive
  • Advising surgeon on contract negotiations involving business and employment issues
  • Representing minority shareholder with regard to corporate inspection demands
  • Advising potential acquiror in business acquisition
  • LLC formations for real estate development, financial consulting and business start-ups
For an updated list of representative projects and transactions, please visit our Corporate Transactions Page.

In addition, we also provide a free corporate resources page, located here ALG, P.C. Corporate Resource Links.

Our flat rate corporate or LLC formation package is a great value for start-ups. If you or your clients have an idea, and are ready to run with it, please contact us at askalg@adishianlaw.com to schedule a free, no obligation consultation.


Executive-Level Wrongful Termination Law Update

Representing talented, highly compensated corporate professionals (e.g. "C-Suite" executives, Company Founders, Investment Bankers, Sales Managers, and Sales Representatives) throughout California continues to be a core piece of our practice. Many of our clients are leading performers in their chosen professions. We represent top corporate talent in high-stakes litigation against some of the largest corporations and law firms in the country. We also regularly advise senior level executives in negotiating their employment agreements.

Following are some of our current and past representative employment matters. If these look or sound like something you or someone in your network are experiencing, give us a call:

  • Representing executive level client terminated from employer 6 months after relocating to California
  • Representing VP level client, a long term employee alleging wrongful termination in advance of scheduled RIF, in an attempt to avoid paying his six-figure severance
  • Advised minority shareholder and employee in negotiating his separation from his company
  • Advised client with respect to negotiating separation from long time employer
  • Represented a highly compensated sales representative in a large mid-six-figure bonus / commission dispute
  • Represented co-founder, minority shareholder of a successful private company with respect to employment and corporate claims against the company and majority shareholder [Contra Costa County, MSC09-01153]
  • Represented a female, former sales rep for large wholesaler alleging sexual harassment and gender discrimination, based on a hostile work environment including sexually explicit emails and photos emailed to her by males

Labor Market Review: The EDD reports that nationwide unemployment remained at 9.4%, while California's statewide unemployment was 12.5%, which is still higher than the U.S. average and slightly higher than December 2009! However, the data is highly regionalized. For example, Silicon Valley (San Mateo and Santa Clara), checking in at 8.3% and 10.4% respectively, with even lower unemployment rates in selected cities like Palo Alto 5.6%, Mountain View 7.7%, Cupertino 6.8% all with strong VC presence. On the other hand, Los Angeles county is 12.7%, and Colusa, Sutter, Plumas, Merced and Imperial Counties are all over 20%!

If you have been wrongfully terminated, you must do everything you can do to protect your economic well-being as the job market remains at historically bad levels even for those with excellent education, experience and proven abilities.

For an updated list of representative client matters, please visit Employment Results.

If you have lost your job, regardless of your employment level, you clearly are not alone. We encourage you to visit our Labor Law Blog to learn what steps we recommend that you take if you have been fired or laid off. The tough news is that no quick substantive exit from the recession is apparent, but the good news is that there are definitely steps that you can take to help you get through this difficult economic environment.

We also recommend our own Labor and Employment resources page, located here Employment Law Resources.

If you or someone you know could benefit from our services, or has a fact pattern similar to the above, please contact us at askalg@adishianlaw.com for a free consultation.


Real Estate Law Update

We have a full service real estate practice, representing investors, owner-operators, buyers, sellers and developers in real estate transactions, operations and financings, as well as representing clients involved in real estate disputes in a variety of forums including mediation, arbitration and civil litigation.

Following are some of our recent and active real estate matters. If these look or sound like something you or someone in your network are experiencing, give us a call:

  • Class action: Representing putative class against lender and captive servicer that are demanding fees, penalties and interest in apparent violation of California law
  • Acquisition of prime commercial land (land alone valued at $1,500,000+) via a complex multi-party transaction, including Sec. 1031 exchange, seller carryback financing and subordination utilizing three escrows
  • Commercial unlawful detainer, default judgment, $165,000+
  • Commercial unlawful detainer, stipulated judgment, $43,000+
  • Commercial unlawful detainer, default judgment for possession granted, monetary judgment pending.
  • Commercial lease abandonment (CCP 1951.2 pending Arbitration) $175,000+
  • Residential purchase dispute (pending mediation): Seller allegedly failed to disclose special taxes, HOA, etc.
  • Residential purchase dispute (pending mediation): Seller allegedly failed to disclose to Buyer that he had substantially built over property line
  • Landlord: Drafting 20 year commercial lease
  • Landlord: Negotiation and drafting 5 year commercial lease
  • Advisory on residential purchase

Residential Real Estate Market Review: The residential income market is rebounding with steady tenant demand in certain areas driven by a variety of factors including (a) widespread foreclosures moving people out of homes and into the rental market; (b) demand for better school districts for those tenants raising families.

We remain in the down part of the real estate cycle, which is the better time to invest for the long term, and there are attractive opportunities in larger apartment complexes (20 units +). These opportunities often make sense for small groups (1-6) of investors with a long term horizon. If you are considering a long term investment in real estate, we strongly encourage you to contact an attorney and your CPA before committing capital.

Commercial Real Estate Market Review: As you can see, landlords have started to move against delinquent tenants with sub-par businesses. The commercial market remains challenging for landlords of office and strip malls. As the future rental streams (associated with weaker commercial tenants whose businesses failed), the commercial real estate bubble (supported by these overly optimistic rental streams) will start to deflate. It remains to be seen how quickly this collapse will happen and whether or not the next wave of entrepreneurs will absorb the commercial vacancies before the banks move to foreclose on commercial landlords. As we stated last summer, "Landlords holding lower quality locations with non-branded, non-chain tenants are suffering prolonged vacancies due to few new business starts and excess supply on the market." However, in the last 3 months, there are some signs of life in the commercial tenancy market. Leases are being signed. We'll know more by mid-year.

For an updated list of representative projects and transactions, please visit our Real Estate Results Page.

We also recommend that you visit our own real estate resources page, located here Real Estate Resources Links.

When you have your next real estate issue, whether it is a L-T issue, Broker-client dispute, pending litigation, mediation, arbitration, a new development, upcoming transaction, need capital or simply want to sell an asset, contact us via askalg@adishianlaw.com for a free, no obligation consultation.


The ALG, P.C. Difference

Our practice grows through relationships and referrals. Our points of differentiation are:

  1. Professional Service. We are professionals, striving always to deliver the highest level of client service in a trusted, effective manner;
  2. Representing Leaders. Our clients are exceptional individuals, families and companies who are achievers in their chosen fields and value our services;
  3. Trusted, Proven Network. We also serve as "network hub", providing our clients with a single point of contact for all of their legal needs relating to the great state of California. In terms of scale, LinkedIn calculates that our 2nd level network is over 85,300 individuals, and that our 3rd level network is over 5,011,900 individuals. Every client has access to, and benefits from, our trusted, proven network of talented professionals and other firm resources.
  4. Technology Forward. We are technology-forward, leveraging the latest technology to deliver our legal services in the most efficient manner;
  5. Direct Attorney Involvement. We provide direct attorney involvement on every client matter, supplemented as appropriate by staff;
  6. Personalized, 24 hour access. We provide highly personalized, responsive service to our clients -- clients have twenty-four hour access to our attorneys and staff;
  7. International and Cross-Border Experience. We are international, advising overseas clients on inbound activities and advising California clients on outbound activities in foreign jurisdictions; and
  8. Solutions Focused. We generate creative solutions founded on our practical knowledge of what works and what does not work.

In short, we act quickly, and when you need us, we are on the ground with you....wherever you may need us. Simply pick up the phone.

Related Services

  • Attorney Referrals. We continue to add quality attorneys to our referral network, so even if your legal needs fall outside within our core practice areas, your first call should still be to ALG. If we cannot help you directly, chances are we have a relationship with a high-quality attorney or law firms in that area of law.
  • Real Estate Brokerage: Property Management Services. Adishian Capital offers full service property management for properties in Los Angeles County and San Francisco County.
  • Conference room access in Los Angeles and San Francisco
  • Professional Introductions
  • Company/Individual background checks
  • Asset verification/Commercial debt collection

Thank you for your ongoing support, and Go Bears!

Regards,

ADISHIAN LAW GROUP, P.C.
Southern California
Pacific Corporate Towers
222 N. Sepulveda Blvd., Suite 2000
El Segundo, California 90245
P: 310.726.0888
F: 866.350.0888

Northern California
One Market
Spear Tower, Suite 3600
San Francisco, California 94105
P: 415.955.0888
F: 866.350.0888
Web: http://www.AdishianLaw.com
Skype: ALG-PC


Monday, October 18, 2010

Silguero Case: Non-competition Agreements Revisited

In the recent Silguero case, the California Court of Appeal for the Second District was presented with a twist on a recurring issue....that is, the enforceability of non-compete agreements in California. (See this blog's earlier post, Non-Competition Clauses in California).

Summary Facts: In Silguero, the Plaintiff was employed as a sales rep for Company A. During her employment with Company A, Silguero was required to sign an agreement which prohibited her "from all sales activities for 18 months following either her departure or termination." Silguero was eventually terminated from Company A, and she subsequently found employment with Company B. Thereafter, Company A contacted Company B and informed Company B that Silguero had signed a confidentiality/noncompete agreement with Company A, which prohibited Sugiura from all sales activities for 18 months following her departure from Company A. As a result of this communication from Company A., Company B terminated Silguero. Silguero sued Company B under various theories, including a Tameny claim (termination in violation of California public policy). The lower court granted Company B's demurrer without leave to amend and Silguero appealed.

Holding: The Second District reversed and remanded as to the Tameny claims, holding that Silguero had a viable Tameny claim against a subequent employer based on public policy violation of California BPC 16600.

We've seen this fact pattern prior to the Silguero ruling, and we believe that it is not an uncommon practice in California. If you would like us to review your specific fact pattern or agreement for a free, no obligation review, please visit: http://www.adishianlaw.com/index.php/wrongful-termination.

Note: The information contained is not legal advice and does not establish an attorney-client relationship. Our contact information is included and we always offer a free consultation. For more information about this topic and/or other areas of EMPLOYMENT law, please visit www.AdishianLaw.com, contact us via email to askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. Copyright Adishian Law Group, P.C. 2010.

Wednesday, July 07, 2010

California is a Daily Overtime State

Legislation which became effective on January 1, 2000 implemented significant changes to California’s labor laws. One major impact this legislation is that California has since become a “daily overtime” state. What is the difference between a "daily" overtime paradigm and a "weekly" overtime paradigm?

Weekly v. Daily Overtime
In much of the U.S. an employee who works more than eight hours per day but less than forty hours per week is entitled to just their standard rate of pay (i.e. "straight" time). But in California, all non-exempt (i.e. "hourly") employees who work in excess of eight hours per day must be compensated for their excess hours at one-and-a-half (1.5x) times their normal rate of pay --- even if the employee works LESS than 40 hours that week. Moreover, employees who work in excess of twelve hours per day be compensated at twice (2x) their standard rate of pay for each additional hour worked.

Example: To illustrate the difference in these two approaches, consider an employee who works ten hours per day, four days per week at a straight rate of $10/hour.

Under California’s daily overtime law, this employee would be paid her standard $10/hour rate for the first eight hours worked each day, but would be paid $15/hour for each additional hour worked that same day. Total earnings would be: $460 = $320 (4 * $80 per day) + 120 (4 * $30 per day).

Under a weekly overtime law, this employee would be paid her standard $10/hour rate for all 40 hours. Total earnings would be: $400 = (4 * $100 per day).

Somewhat predictably, management/ownership tends to favor the weekly overtime approach, and labor/employees tend to favor the weekly approach.

Daily overtime works in concert with Weekly overtime
Of course, the daily overtime legislation does not affect the “weekly overtime” provisions which are foundational principles of labor law nationwide. Under California’s weekly overtime laws, any employee who works either (1) in excess of forty hours per week, or (2) more than six days per week, is entitled to overtime compensation. Such an employee will receive one-and-a-half times their normal pay for each hour worked in excess of forty hours, or each hour worked on the seventh day, respectively. Additionally, on the seventh day of work in a single week, each hour worked in excess of eight hours requires compensation at double the ordinary rate of pay.

If you are an hourly employee in California, and work more than eight hours per day, forty hours per week, or six days per week, you have the right to overtime and double time rates of compensation for those additional hours. If you believe you are not being compensated in accordance with California’s overtime laws, please contact our firm for a free consultation.

Note: The information contained is not legal advice and does not establish an attorney-client relationship. Our contact information is included and we always offer a free consultation. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: http://www.adishianlaw.com/index.php/wrongful-termination. For more information about this topic and/or other areas of EMPLOYMENT law, please visit www.AdishianLaw.com, contact us via email askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. ALG, P.C. staffer Patrick Riley contributed to this article. Copyright Adishian Law Group, P.C. 2010.

COBRA 2010

On April 15, 2010, President Obama signed into law the Continuing Extension Act of 2010 (H.R. 4851), part of which provides a temporary extension to eligibility for federal COBRA premium subsidies. As a practical effect of this legislation, California employees laid-off or terminated before May 31, 2010 may be entitled to receive a substantial government subsidy to apply towards their health insurance premiums under their former employer’s health plan.

What is COBRA?
The Consolidated Omnibus Budget Reconciliation Act of 1985, commonly referred to as COBRA, is a law signed by former President Reagan. In relevant part, COBRA created an insurance program that allows some employees to maintain their former employer’s health insurance coverage after leaving employment for up to 18 months. Essentially, employers receive tax incentives to implement a health plan which provides temporarily continued coverage to employees who are terminated, laid-off or otherwise lose coverage due to some qualifying event. The purpose is to provide coverage for a set period of time or until an alternative source of health insurance is secured.

Historically, COBRA did NOT require the employer to pay for the cost of providing continuation coverage. Rather, the former employee must make the premium payments to maintain coverage under the employer’s health plan. However, in response to the recent economic meltdown, Congress recently enacted legislation that amended and supplemented COBRA.

Three Changes in COBRA
The first of these supplementary laws is the American Recovery and Reinvestment Act of 2009 (ARRA), which provides for a 65% federal subsidy of COBRA-enabled insurance, for up to 9 months after an employee's involuntary termination, so long as the employee has no other group sponsored health insurance option and is otherwise eligible to enroll in COBRA. Second, the Department of Defense Appropriations Act extended COBRA subsidy eligibility to employees terminated before February 28, 2010, and extended the 9 month subsidy period to 15 months. Third, the Temporary Extension Act of 2010 extends COBRA subsidy eligibility to employees terminated before March 31, 2010, which was later extended to May 31, 2010 by the Continuing Extension Act of 2010.

Therefore, under the current scheme, if you were terminated, laid off, or otherwise lost your eligibility to participate in your former employer’s health plan prior to May 31, 2010, you and your immediate family are potentially entitled to a 15 month continuance of that former coverage. Moreover, if qualified for such coverage, you may be eligible to have the federal government pay 65% of the cost of your premiums for 15 out of the 18 months.

Qualifying employers are required to notify all terminated employees of their potential rights to COBRA and ARRA benefits. So, if you were recently terminated and not notified of your potential rights under COBRA, you should contact your employer immediately to request their COBRA information package. For more information on whether you qualify and how to apply, please visit http://www.dol.gov/ebsa/newsroom/fsCOBRApremiumreduction.html & http://www.dol.gov/ebsa/COBRA/main.html.

Note: The information contained is not legal advice and does not establish an attorney-client relationship. Our contact information is included and we always offer a free consultation. If you would like to submit your specific fact pattern for a free, no obligation review, please visit: http://www.adishianlaw.com/index.php/wrongful-termination. For more information about this topic and/or other areas of EMPLOYMENT law, please visit http://www.AdishianLaw.com, contact us via email to askalg@adishianlaw.com or call us at 415.955.0888 or 310.726.0888. ALG, P.C. staffer Patrick Riley contributed to this article. Copyright Adishian Law Group, P.C. 2010.