1.  Current Pregnancy Disability Leave Law

California’s current Pregnancy Disability Leave law applies to all employers with five or more employees.  It provides that employees who are disabled by pregnancy, childbirth, or related medical conditions can take up to 16 weeks of job-protected leave in 12 months.  If the employer provides more than 16 weeks of leave to workers with other temporary disabilities, it must also provide the same extra leave to women with pregnancy-related disabilities. The job-protected pregnancy disability leave must be provided to all women employees, even those who are new and/or part-time.

The employee is entitled to take pregnancy disability leave as needed, and in small increments or on a reduced work schedule, if her health care provider recommends.  The leave may be used for prenatal visits and to cope with severe morning sickness in addition to more serious disabilities. The law only requires that the employee be unable to perform one or more of her job functions due to pregnancy or a pregnancy-related condition.  However, the employer may require the employee to provide a certification from her health care provider that the pregnancy leave is medically necessary.

2.  New “Clarification” of Current Law

The new law “clarifies” that it is an unlawful employment practice for an employer to interfere with, restrain, or deny an employee’s pregnancy leave rights.  The effect of this is that employers who have previously discouraged employees from taking pregnancy leave may now be vulnerable to an employee rights violation claim for this past conduct.  If you are in this situation, you should contact your business law attorney for advice.

3.  New Employee Health Benefits During Pregnancy Disability Leave

The new law also requires employers to continue group health insurance coverage for up to 16 weeks for employees who become disabled due to pregnancy, childbirth or a related medical condition.  The group health benefits must be maintained at the same level and under the same conditions that would have existed if the employee had not taken leave.  If the employer currently pays the entire health insurance premium for employee coverage, the employer must continue to do so for up to 16 weeks of pregnancy disability leave.  However, if the employee normally contributes to these insurance premiums, she may be required to continue paying her portion of the premiums (for either self or dependent coverage) while on leave.

If the employee does not return from leave, the employer generally may recoup premiums it paid for the employee’s continued coverage during the leave. However, no premiums may be recovered if the employee fails to return due to a continuing disability or because she then takes a leave under either the federal Family and Medical Leave Act or the California Family Rights Act, two laws which cover employers with more than 50 employees and which have some interrelationship with the pregnancy disability leave law.

Call San Diego Law Firm to Update Your Business Policies on Pregnancy Leave

The experience business law attorneys of San Diego Law Firm can help bring your business into full compliance with the new pregnancy disability leave and health care benefits law.  We can update your employee handbook, leave policies and procedures, and posted employee notices and communications to fully reflect the new law.  We now offer extended evening hours so you can meet with us without disrupting your business.  Please call us at (619) 794-0243 to make an appointment.  We look forward to helping you.

When forgiven mortgage debt is not taxable

You can escape Federal and California income tax on forgiven mortgage debt in each of these situations:

 1.  Your Total Debts Are Calculated to Exceed Your Total Assets 

To the degree your total debts exceeded the fair market value of your total assets immediately before your mortgage was reduced or eliminated, you are legally “insolvent” and the cancelled mortgage debt is not taxable income.  Many California residents can meet this legal definition because they have home equity loans, auto  loans, rental property mortgages, and other liabilities that exceed the total fair market value of all their assets.  An experienced real estate attorney can easily help you with the expert appraisals and accounting needed to establish legal insolvency for tax purposes.

2.  Your Mortgage Was Eliminated or Reduced in a Chapter 13 Bankruptcy 

Chapter 13 bankruptcy allows judges to reduce or eliminate home equity loans and second and third mortgages.  This “forgiven” debt, no matter how large, is not counted as taxable income. Chapter 13 can also eliminate or reduce many other types of debt. Again, an experienced attorney can determine if you qualify for Chapter 13, and can help you decide whether this would be a good choice for your situation.

3.  The Mortgage Debt Relief Act of 2007 Applies

In 2007, Congress passed the Mortgage Debt Relief Act; it was extended in 2011 and now lasts through 2012.  Under that law, mortgage debt that is forgiven on a “qualified principal residence” is not taxable income if it is under set dollar limits and was forgiven as part of a mortgage restructuring, foreclosure or a short sale.  California has a similar law, but the dollar limits are different.  

Under this federal law, debt forgiven between 2007- 2012 can be excluded from taxable income if it is less than $2,000,000 for taxpayers who file as married filing jointly, single, head of household, or widow/widower, and $1,000,000 for taxpayers who file as married filing separately.  Under California law, these limits are $500,000 and $250,000 respectively for 2009-2012, and $250,000 and $125,000 for 2007-2008.  In California, registered domestic partners are treated the same as married taxpayers filing jointly or separately.  There is no federal limit on the amount of income that can be considered “qualified principal residence debt”; for California tax, the limit is $800,000 for the first group of taxpayers, and $400,000 for the second.

Only “Qualified” Debt Forgiveness Can Escape Income Tax

To be considered “qualified principal residence indebtedness” that can be forgiven without income tax owing, the mortgage debt must meet these requirements:

   1.  It must have been used to buy, build or substantially improve your principal residence and be secured by that residence.  Refinanced debt used for this purpose is also OK.

   2.  It cannot have been a “cash out” refinance where loan proceeds were used for other purposes, such as paying off credit cards, school tuition, or buying another piece of property.

   3.  It cannot have been debt on a second home, rental property, or business property.  For this and other non-real estate debts, you will need to come within the insolvency or bankruptcy exceptions.

Call San Diego Law Firm for Help with Mortgage Debt Strategies

Over 2,000,000 California residents are currently stuck with “underwater mortgages,” as California has suffered some of the largest decreases in property values in the nation. If you are in this situation, our experienced San Diego real estate lawyers can help you identify the best strategy for handling your mortgage while avoiding additional income tax on forgiven mortgage debt.  We provide skilled legal help with insolvency calculations and Chapter 13 bankruptcy, and can assist you with a deed in lieu of foreclosure and other real estate strategies that require legal documentation.  Please call San Diego Law Firm at (619) 794-0243 to schedule a consultation. We look forward to helping you.

Avoid Trademark Conflict when Using Artwork to Brand Your Business

Using artwork to identify (brand) your business offers many advantages over using a live person, such as your CEO or a media spokesperson. Artwork never ages or dies and is not subject to scandal.  Your business will be easier to sell later if you have a strong brand identity, not identified with any person, available for transfer to a buyer.

Before buying a license to use any artwork as your business brand, though, see a trademark and copyright attorney for a brand development consultation.  A modest amount of legal research can confirm that the artwork you are interested in won’t give rise to a trademark dispute with a business in the same general industry.  For example, a dental office could choose to be identified by a smiling T. Rex illustration, but an insurance agency identifying itself with a T. Rex could find itself in a trademark dispute with Geico, already identified by an illustration of a standing green gecko.

Buy Exactly the Copyright License You Need

Your copyright attorney can also help you select the exact licensing rights you need, so you don’t waste money on a license that is overly broad. For example, a dental office might want to license a photo-realistic T. Rex for use in a banner at a consumer tradeshow, to reinforce its message about the benefits of choosing modern rather than “Jurassic” dentistry, but might be unsure if this would develop into a business identity. The copyright attorney would likely recommend a short-term print-only copyright license, which requires only a form agreement.  If the T. Rex was a big hit at the tradeshow, then the dental office could decide whether to buy print rights for a longer period of time, or rights to additional uses, or even exclusive U.S. rights.

When to Obtain a Written Assignment or Exclusive Copyright License

The creator of an original work of art has the right to decide who can use it, how, when, and where they can use it, how long they can use it, who can adapt it to other forms, and who can financially benefit from reselling it.  This “bundle of rights” is part of the “copyright” that every creator has by law in their artwork, whether or not they register or document their copyright.

If you intend to use a specific image or set of images to create your business identity or brand, you will need a signed written agreement that either permanently assigns (sells) all rights in the artwork to you, or grants you an exclusive right to use and adapt the artwork for a set number of years in a defined geographical area.  An oral agreement, or even an invoice, cannot protect you if the artwork’s creator sells the same image to one of your competitors.  It will also not be enough to protect you from a copyright infringement suit by the artwork’s creator if, for example, you decide to use your exclusive rights to brand a consumer product for sale on the Home Shopping Network, and the creator had no intention of granting you this right.

Call San Diego Law Firm for Help with Copyrights and Trademarks

San Diego Law Firm’s experienced business lawyers can help you with all issues of copyright and trademark licensing, sales, and assignments, including brand development and advertising.  For an appointment please call San Diego Law Firm today at (619) 794-0243.  We look forward to helping you.

There are many examples in California case law, and they generally do not favor the party who claimed that a commercial real estate “agreement to agree” was not enforceable because the parties could not agree.  For example, the California Court of Appeal in San Diego has noted with approval the authority of a jury to determine a “reasonable rental rate” for a commercial lease renewal where the landlord has not “negotiated in good faith” for a “reasonable” amount with the lessee of the commercial premises.  Similarly, the California Court of Appeal in Los Angeles has held that a “letter of intent” setting out the general terms for the purchase and sale of an ice-cream manufacturing plant is an enforceable “contract to negotiate an agreement” that required good-faith negotiation. The court determined that the amount of damages that can be awarded for one party’s “failure to negotiate a contract” is the amount lost by the other party who has detrimentally relied on the letter of intent.

Even more troubling, the federal Ninth Circuit Court of Appeals in California recently held that a signed “Final Proposal” that was missing a material term – the length of a ground lease – nonetheless created an enforceable ground lease with a put and call option to purchase.  The court upheld a $15.9 million award for the landlord’s lost rent for a lease term that was decided upon by the jury based on all the evidence, and for the loss of the value of the put option, even though the parties had been unable to agree on all the terms of the final agreement.

The bottom line:  when you are negotiating a commercial real estate contract in California, never sign any document – even a proposal, a letter of intent, or a current lease calling for future negotiations – unless the document also provides that either party can change its mind for any reason, and refuse to negotiate or exercise good faith to reach an agreement on any material term of a future contract, without further liability for any damages, including damages for detrimental reliance.

Call San Diego Law Firm for all Help with Commercial Real Estate Transactions

Before you negotiate or sign any commercial real estate agreement, contact the skilled business real estate lawyers of San Diego Law Firm.  We have many years of experience in negotiating and documenting all types of commercial real estate contracts, and have successfully represented many businesses in negotiating contracts to buy, sell, purchase, lease, build out, and develop commercial property.  We can help you and your business as well.  Please call San Diego Law Firm at (619) 794-0243 to schedule a consultation. We look forward to helping you.

            Trees and Other Plantings

A few cities and counties in California restrict tree height to preserve views; most do not.  However, if your home is in a planned development where views were an important feature of the initial home sales, your development’s CC&R’s may limit the height of trees, and provide that trees over a certain height must be trimmed or removed.  CC&R’s may also limit or forbid hedges or other tall plantings within a certain distance from one or more of the property lines. 

If a neighbor’s tree has branches that overhang your property, you have the right to trim those branches back to the property line.  You also have the right to dig down and sever tree roots that have come under your property and that are cracking your pavement or invading your water or sewer line. However, you need to use care in this, since you will be responsible if your root trimming destabilizes a tree and causes it to fall and damage the neighbor’s property.  If root trimming cannot be done safely, it is best to either reach an agreement with the neighbor to share the costs of removing the tree, or to seek a court order that the tree be removed because it is a legal “nuisance.”

If your local power utility is notified that a tree is touching power lines, the utility will send workers to trim the tree back, for the sake of public safety.

            Weeds and Trash

Your CC&R’s may also protect your views and property value from harm due to weeds, trash, and other unsightly items on your neighbor’s property.  For example, many CC&R’s forbid clotheslines, garden sheds, and lawn equipment from being kept outside on any lot within the development.  In addition, California cities and counties all have code enforcement divisions with responsibility for ordering the clean-up of properties with extensive junk, trash, and debris in public view.  Once they receive a written complaint in the proper form, they will investigate to decide if the situation is bad enough for them to order the owner to clean up the property or reimburse the public agency for the cost of clean-up.  If you have no protective CC&R’s and your code enforcement agency does not deem the situation serious enough to get involved, you may still be able to obtain a court order for your neighbor to clean up their property if it is so full of weeds, junk, and trash that it is a public nuisance. 

            Buildings, Fences, and Improper Uses

CC&R’s often restrict the size and type of fences, building additions, and free-standing structures that can be added to lots in the development.  CC&R’s also may prohibit homes from being used for any commercial purpose, which becomes particularly important to surrounding residents when a neighbor’s commercial use of a residential property is an unsightly or noisy one, such a car repair business.

Building regulations and zoning laws also place limitations on fences and structures on residential lots, and zoning laws generally restrict or prohibit commercial activities on residential lots.  Again, your city or county code enforcement division will often take steps to enforce these laws and regulations once they become aware that a violation exists.

California’s Coastal Commission also has long and detailed regulations covering buildings on private property that are in the coastal zone. This is a complicated area of law, and a homeowner who is not in compliance with all Coastal Commission regulations may find that if they complain about a neighbor who blocks their views, the neighbor may retaliate by filing their own Coastal Commission complaint.  For this reason, a lawyer and an architect familiar with coastal regulations should always be consulted before the initial complaint is filed.  

            Spite Fences and Structures

California law forbids property owners from erecting “spite fences” or other structures that are not being used for any purpose other than to block a neighbor’s view.  Although these are rare, it may be possible to obtain a court order requiring the spite fence or structure to be removed by proving the lack of any practical purpose for the fence or structure, and by proving that a long-standing dispute over views or boundaries preceding the building of the fence or structure.

If your views and enjoyment of your property are being impaired by a neighbor’s trees, fence, building, or unsightly use of their property, the skilled real estate attorneys of San Diego Law Firm can help you. We have years of experience in obtaining property owners’ compliance with CC&R’s, California state laws, and local property laws and regulations through negotiation, mediation and court injunctions. We generally start with friendly outreach to seek your neighbor’s cooperation, and only take more formal steps if no cooperative agreement can be reached.  We work to minimize the time and expense of legal proceedings, to get the best outcome possible given the circumstances, and to set up a methodology and lines of communication to help you and your neighbors avoid future conflicts.  For experienced, concerned help with any real estate problem, please call San Diego Law Firm at (619) 794-0243.

If you order the employee to remove the offending material, he or she may file a claim for discrimination or for violation of his or her employee labor law rights. If you do nothing, other employees may be offended, and if the material has sexual, racial, religious, or other discriminatory overtones, you may see your inaction as approval of hostile workplace conditions that discriminate against them. Your employee’s offensive comments may also cause you to lose customers or valued business associates.

The best way to solve this problem, or to prevent it in the first place, is to create a written technology policy and enforce it equally in all situations, regardless of what the content is or who has created it.  The reason for the policy – to avoid workplace conflicts, to protect the financial well-being and reputation of the business, and to make sure all employees feel valued and protected from harassment and discrimination – should be clearly stated in the policy.  Here are things to consider for your social media policy:

Workstation Screen Savers

Although a screen saver is technically not social media, the open nature of most workplaces means an offensive screensaver is likely to be visible to other employees, and possibly, to suppliers and even to customers. The best policy is to prohibit all personalized screen savers or computer desktop backgrounds.  If you tell one employee to remove an offensive personal screen saver or desktop background, yet allow other employees to keep their own creations visible, the first employee may perceive racial, religious, or other discrimination in the unequal treatment.  Also, the National Labor Relations Board has ruled that if any personal screen savers are allowed, employers must permit ones with pro-union messages. It is acceptable business policy to simply prohibit all personal screensavers and desktop backgrounds. 

Social Media – Facebook, YouTube, Twitter, Blogs, Etc.

The National Labor Relations Board protects the rights of both union and non-union employees to join in groups of two or more to discuss issues of pay, safety conditions, performance reviews, and other workplace conditions. The NLRB has said this rule applies equally to social media, which would include websites such as Facebook, Twitter, YouTube, and LinkedIn, as well as blogs and company forums.  

However, your business can do several things to limit undesirable commentary by employees using social media:

1.  You can prohibit employees from identifying your business and their position in a way that suggests they represent your business or are speaking on its behalf.  An employee could then not put up a blog entry saying something like, “As a manager of XYZ company, it is obvious that the mayor is unfair to our industry.”

2.   You can prohibit employees from disclosing confidential business information and trade secrets if these terms are clearly defined (for example, in an employment manual), and the prohibition does not interfere with an employee’s rights to discuss workplace conditions.

3.  You can forbid employees to use social media to sexually harass another employee or to create a hostile workplace based on an employee’s sex or sexual orientation, or to make comments that violate Title VII of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of sex, race, religion and national origin), the Americans with Disabilities Act (forbidding discrimination based on disability), and the Age Discrimination in Employment Act (forbidding discrimination based on age).  Although the law is not yet clear, you may also be able to prohibit comments that do not pertain to working conditions but that are derogatory to other groups of people protected by specific employment laws, such as women who are pregnant.

The experienced business attorneys at San Diego Law Firm can help your business craft social media, technology usage, and other employee policies that will protect your business interests in maintaining a stable, reputable, and productive workplace while not violating the legal rights of your employees. We can also help you if your business has been threatened with legal action by an employee or former employee based on your current or former policies.  Please call San Diego Law Firm at 619-794-0243 to make an appointment.  We look forward to helping you.

Even if the zoning of an area seems obvious (e.g. commercial, residential, industrial, or agricultural), San Diego and other cities often add many more detailed restrictions to each zoned area to control how various pieces of property are used.  Whether you’re building, renovating, buying, or selling real estate, if you don’t have the relevant zoning ordinances researched and analyzed by a competent attorney, you may be setting yourself up for a very costly mistake. 

If it turns out that there’s a conflict between your plans and the applicable zoning laws, there are different options to consider.  Individuals or the government can try to change the zoning laws covering the property, but this requires public hearings and other procedures that may be unnecessary.  Instead, if the change you need is reasonable for the area, a lawyer can apply for a zoning variance for you.  By getting a variance permit, you’re able to use the property differently from what the zoning law requires.  In some circumstances – such as a sudden change in zoning laws that cause your property to be in violation – a “non-conforming use permit,” or other type of permit, or even other type of legal action – may be required.  At San Diego Law Firm, we can determine the zoning and other use restrictions on your property, recommend any type variance, permit, or legal action needed for you to get the most value from your property, and take action to obtain whatever variance, permit, or other legal relief you need. 

Whether you’re a homeowner or developer, we understand the challenges that land use laws can pose to your financial investment.  Meet with San Diego Law Firm’s knowledgeable residential and commercial real estate attorneys for help in obtaining zoning permits and variances and resolving any land use disputes.  Please contact us at (619) 794-0243 for fast, friendly help with all types of land use and real estate problems.

Our primary anti-discrimination laws come from California’s Fair Employment and Housing Act (FEHA), the federal Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Taken together, these laws cover discrimination based on the usual categories, such as gender, age, race, and religion. They don’t say it’s illegal to discriminate against the ugly, or for other appearance-related reasons. And while there are a few laws here and there outlawing appearance-based discrimination, such as some cities’ local laws (ordinances), for the most part it’s still an open question.

But even if there isn’t a law protecting against appearance-based discrimination where you live, the complaint might instead be based on other forms of discrimination that are illegal, such as sex discrimination. Regulating personal appearance may even interfere with privacy rights. This all goes to show that there are a lot of legal issues to evaluate.

Employers have rights to maintain a professional workplace, and there are some limited exceptions to discrimination, but the law continues to develop in this area. If you’re an employer, this means you must tread carefully. Getting qualified legal advice can be key to reducing your risk of ending up in court. Generally, employers will want to steer clear of controlling employees’ appearances in ways that don’t really have much to do with legitimate job performance matters…but there’s much more to it than just that. Every situation is different, and the answers aren’t easy, but a qualified employment lawyer’s advice can help guide your business decisions. For example, do you know which questions you can and can’t ask an applicant during an interview? Is your criteria for hiring, promoting, and firing legal? Does your code of conduct impose stereotypes on your employees? And remember, even if you’re cautious about the pitfalls, it’s just as important that you have a company policy firmly in place to prohibit the kind of employee conduct that can get your business into legal hot water.

Call (619) 794-0243 and meet with San Diego Law Firm’s experienced employment lawyers if you’re facing an employment discrimination charge or lawsuit. We also welcome the opportunity to help you develop effective workplace policies that can help your business avoid legal trouble and greater expense.

Ruoff vs. Harbor Creek Condominiums

In 1993, the California Court of Appeals decided a case called “Ruoff v. Harbor Creek Condominiums.” The court decided condominium owners could be sued as individuals for accidents occurring in common areas of the development.  A 1993 Los Angeles Times article reported that the condominium owners had argued in the trial court that they couldn’t be sued because of a provision in California law concerning condominiums. That law says “volunteer officers or directors of the association who live in the condominium development are immune from damages,” meaning they can’t be made to pay for anyone’s injuries or financial losses caused by something relating to the condominium development.

The 4th District Court of Appeal in Santa Ana held that this legal provision only applied to volunteers serving on condominium association boards, not to all owners. This means that if all the condominium owners share an ownership interest in the common areas, they can be required to pay for losses not covered by the insurance held by the HOA. Because of this case, the type of additional insurance you purchase for your condominium is very important.

Look to the Master Policy First 

Because different condo complexes require different types of insurance coverage, it’s a good idea for each owner to review the master policy and HOA bylaws.  Individual condominium owners do not own the complex as a whole. Typically, each individual unit owner is responsible for insuring his or her part of the whole. Each condominium complex’s HOA Bylaws specifically spell out what a unit owner owns within the four walls of the unit. Everything else is owned by the condominium association ownership. An HOA usually collects monthly dues from unit owners and uses a portion of the dues to insure the common areas. It then becomes the unit owner’s responsibility to obtain additional insurance for the unit itself and everything inside the unit.

A 2010 MSN Article outlines two broad master policy categories:  “bare walls in” and “all in.”  A “bare walls in” policy covers “all real property from the exterior framing inward but [does] not cover fixtures or installations within a condo unit. Features such as countertops, bathroom and kitchen fixtures, and flooring are not covered.” An “all in” policy covers “fixtures, installations or additions within the interior surfaces of the perimeter walls, floors and ceilings of individual units.” Once you determine what specifically you own and what items are not insured by the master policy, you may then determine how much coverage you will need to insure the contents and structure of your condominium not covered by the master policy.

How Much and What Type of Coverage?

Typically, you can figure out how much coverage you need for possible property damage by finding out how much other owners in the development paid for recent upgrades to their units. When it comes to property-damage coverage, there are typically two types: cash value and replacement-cost coverage. Cash-value coverage replaces the value of the insured item, less any depreciation in value. Replacement-cost coverage pays for the replacement of the item itself without considering depreciation in value. It’s up to each unit owner to decide how much and what kind of property damage coverage would best suit their needs.

Liability Insurance

Lastly, a unit owner may wish to consider purchasing liability insurance for accidents that happen because of their own negligent conduct or because of some defect or problem on their property or in the common areas.  As previously stated, a condominium owner may be held liable for injuries occurring in or on common areas. Generally speaking, the common areas are insured by the HOA, but the owners may become individually liable when the damages exceed the HOA policy limits, making it a good idea for the owner to buy his or her own common-area liability insurance.  It is important for unit owners to consider this possibility when deciding what type and how much insurance to buy.

If you plan to buy a condominium and are unsure about provisions in the HOA bylaws or the HOA master insurance policy, contact one of our experienced real estate attorneys at San Diego Law Firm. We can help you determine exactly what you will own per the guidelines in the HOA’s bylaws, and whether you might be at risk of being held liable for injuries from an accident in a common area because of an inadequate master insurance policy.  Please contact San Diego Law Firm at (619) 794-0243 today to schedule an appointment. We look forward to helping you.

Exempt vs. Non-Exempt Employees

California wage-and-hour laws classify employees as either “exempt” or “non- exempt.”  A California exempt employee is one who meets the legal requirements to be considered “exempt” from receiving overtime pay.  California exempt employees are also not covered by most other California wage-and-hour laws, such as those pertaining to rest breaks, meal periods, alternative work week schedules, requirements for time keeping, and so on.

Under California law, overtime pay must be paid to non-exempt employees at the rate of time and one-half for any hours worked over 8 per day, and for any hours worked over 40 hours per week.  The first 8 hours on the 7th consecutive day worked also earn time and one-half.  The employee must be paid twice his or her normal rate for any work over 12 hours per day, and for any work over 8 hours on the 7th consecutive day of work.  Federal law also has rules governing overtime, but California law controls whenever it is more favorable to the employee.

Duties and Salary Determine whether Employee is Exempt

Whether an employee is “exempt” from overtime depends on his duties and salary.  Regardless of his job title, a California exempt employee must spend more than half of his actual work time in exempt duties that include exercising his independent discretion and judgment.  An exempt employee must also receive a salary that is at least twice the California minimum wage for full-time employment, and employees in some industries are protected by laws with additional requirements.  An experienced business attorney will usually need to review both the exact duties and the salary paid to determine if the employee is exempt from overtime payment, or if he or she has been misclassified by the employer.

Also, it is worth remembering that there are significant differences in federal law and California law concerning the circumstances under which various categories of white-collar employees will be considered exempt.  Again, whichever law is most favorable to the employee controls.  An employer who fails to carefully analyze whether an employee working in California is exempt under BOTH federal and California law can unwittingly become exposed to liability for unpaid overtime and improper deductions, and penalties for record-keeping violations.

Employers have the Burden of Proving Exemption Applies

Under both federal and California laws, the employee is not required to prove that he or she is entitled to the protections of overtime pay laws.  Instead, the employer must prove that the employee is exempt.  If the employer has correctly determined that the employee is exempt under both federal and California law, the employer can successfully defend against a claim for unpaid overtime pay by the employee.  However, the stakes can be high, and it is worthwhile to have an experienced business law attorney evaluate any questionable situation, especially since there are significantly different requirements for a large number of industries and positions.

Our experienced business law attorneys at San Diego Law Firm have the skill and knowledge to help your business determine which of your employees are genuinely exempt from overtime pay requirements under both state and federal law.  The cost of this determination is reasonable, and far less than the cost of being liable for unpaid overtime pay and penalties in a wage-and-hour lawsuit. Please contact San Diego Law Firm today at (619) 794-0243 to schedule an appointment for skilled assistance with this or any other business law issue. We look forward to helping you.