Page 7 – Adishian Law

EL SEGUNDO, CA (March 1, 2010)—Today Google named the Adishian Law Group as a Favorite Place. The status of Favorite Place puts the Adishian Law Group in the rarified atmosphere of less than 1 percent of all the estimated 28 million US businesses.

This acknowledgment by the world’s largest search engine measures the number of times people found the Adishian Law Group business listing and clicked on it for more information. Such recognition is an indicator of the useful information found in the firm’s Website (www.AdishianLaw.com).

“Google’s acknowledgment of our firm’s popularity was a complete surprise,” says firm President, Chris Adishian. “We view it as another affirmation of the value we aim to deliver. Our Website contains free, practical legal information and resources that help businesses and individuals evaluate their rights and options.”

Google’s Favorite Place status says something not only about how many people visit a website, but why. People will only visit the most useful sites that are on point with their search criteria. Says Adishian, “We view the plain talking, friendly, straight-forward and informative style of our Website as a reflection of our law firm and the way we conduct our practice. It is professionally satisfying that we have provided useful information to so many people and companies.”

About Adishian Law Group, P.C.

Adishian Law Group is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of March 2013, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 4 States outside of California and 9 foreign countries — in over 340 legal matters.

For more information about this topic or to speak with Chris Adishian:

Unpaid wages, unpaid bonuses or unpaid commissions all refer to the same basic wrong, the employee was not paid! Litigation for unpaid wages, bonuses or commissions are among the most frequently filed lawsuits in America.

In an earlier blog post, we highlighted that under California statutory law, “wages” are broadly defined, and that case law has specifically included “bonuses” in the definition of wages.

Why it matters….

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. Simply put wages are due on the date of termination. If you are employer you should build that into your planning when conducting terminations or layoffs. If you are employee, you should make sure that you are paid all wages due on your date of termination, and certainly prior to signing any release. Failure to properly and timely pay wages can have consequences far in excess of the underlying amount due, including:

waiting time penalties;
interest and
attorney’s fees.

Waiting Time Penalties

California Labor Code § 203 “[i]f an employer willfully fails to pay, without abatement or reduction, in accordance with sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefore is commenced.”

Interest

California Labor Code § 218.6 further provides that “[i]n any action brought for the nonpayment of wages, the court shall award interest on all due and unpaid wages at [an annual rate of 10 per cent] as mandated by subdivision (b) of § 3289[1] of the California Civil Code, which shall accrue from the date that the wages were due and payable as provided in Part 1 (commencing with § 200) of Division 2.”

Attorney’s Fees

“In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party…” Labor Code §218.5. With the cost to get to trial in high-stakes cases running well into six figures on the plaintiff’s side, there is substantial exposure to a defendant company that fails to properly pay wages.

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

What amounts are included in wages? We get variations on this question all the time including, “Is my bonus part of my wages?”

The Law

Wages are defined under California Labor Code § 200 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.” This is a very broad definition that includes virtually any form of compensation used in the modern economy, so long as it is “fixed or ascertainable” by some “method of calculation.”

Yes, under California law bonuses are wages. Ralphs Grocery Co. v. Sup. Ct. (Swanson) (2003) 112 Cal. 4th1090, 1103, 5 Cal. Rptr. 3d 687, 697.

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

What is a §1031 Exchange?

Section 1031 provides for “Nonrecognition of gain or loss from exchanges solely in kind: (1) In general. No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment.” In short, this means that if you want to sell an investment property now worth $3,000,000, that you originally purchased for $1,000,000, Section 1031 will allow you to rollover the entire $3,000,000 (including the roughly $2,000,000 in gain calculated as $3,000,000 minus $1,000,000, leaving depreciation out for the sake of simplicity) tax free!

Some Rules

In order to qualify for tax free treatment under Section 1031, the Seller must (1) use a Qualified Intermediary; (2) Identify the replacement property within 45 days; (3) The replacement property must be “like-kind” and (4) The replacement property transaction must close within 180 days of the closing of the relinquised property. As may be obvious, this area of real estate law is “jargon-heavy.”

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

Telephone: 310.726.0888 | 650.955.0888 | 415.955.0888

Email: askalg@adishianlaw.com

Social Media: @algpc | LinkedIn | Facebook | YouTube

In the current recession, commercial landlord’s are just beginning to feel the pressure from tenants seeking rent concession or the outright elimination of their rent obligation. See Wall Street Journal, “Struggling Retailers Press Struggling Landlords on Rent”, January 2009. There is also a rapidly shrinking pool of high-quality “anchor” as major retail chains file bankruptcy seemingly one after the other. As a commercial property owner, what should you do to protect your interest?

Surrender or Termination or Both.

A lessee cannot effect a surrender and termination of a lease unilaterally. The landlord must accept the offer of termination for it to be in effect. Under California law, an abandonment of the premises by the tenant is merely an offer to surrender their lease. See Miller & Starr, 3rd. Ed., Vol 7, Sec. 19.

Upon receiving an offer of termination from a tenant, a commercial landlord must make an election of his remedy: (1) Ignore the offer to terminate, treat the lease as continuing and sue to recover rent as it becomes due provided that the lease permits the lessee to sublease or assign its interest; or (2) Accept the offer to terminate, and pursue remedies under CCC §1951.2.

How well companies and individuals managing real estate assets through an economic downturn is critical to long term success in real estate.

About Adishian Law Group, P.C.

buy viagra online without prescription canada

via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of March 2013, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 4 States outside of California and 9 foreign countries — in over 340 legal matters.

For more information about this topic or to speak with Chris Adishian:

Minority shareholder rights in California include protections from oppressive conduct by the majority shareholder.

California Corporation Code § 1800 provides several grounds for involuntary dissolution. A court may grant involuntary dissolution where (1) “[t]hose in control of the corporation have been guilty of or have knowingly countenanced persistent and pervasive fraud, mismanagement or abuse of authority or persistent unfairness toward any shareholders or its property is being misapplied or wasted by its directors or officers.” § 1800(b)(4), and (2) “liquidation is reasonably necessary for the protection of the rights or interests of the complaining shareholder or shareholders.” § 1800)(b(5). See also Bauer v. Bauer, 46 Cal.App.4th 1113, 54 Cal.Rptr.2d 377, Stuparich v. Harbor Furniture Mfg., Inc. 83 Cal.App.4th 1268, 100 Cal.Rptr.2d 313, 2000 Daily Journal D.A.R. 10,657.

Involuntary corporate dissolution under subdivision (b)(4) requires a showing that those in control of the corporation have been guilty of, or have knowingly countenanced, “persistent and pervasive fraud, mismanagement or abuse of authority or persistent unfairness toward any shareholders,” or that the corporation’s property “is being misapplied or wasted by its directors or officers.”

Bauer described the course of conduct that satisfies the definition of the improper “squeezing out” of a minority shareholder, thus entitling a minority shareholder to dissolution of the corporation to protect his or her interests. The court took its definition of a from Marsh’s California Corporation Law, the portion quoted by the Bauer court is below:

“The term ‘squeeze-out’ is . . . generally intended to describe a situation where the majority controlling shareholders, who are also the principal officers of a corporation, engage in a course of conduct which is designed to exclude a minority shareholder or shareholders both from participation in the conduct of the corporate business and from the economic benefits derived therefrom . . . The conduct most typically takes the form of refusing to pay any dividends on the corporate stock, refusing to permit the minority shareholder to have any corporate office or position on the board of directors . . . , and the payment of large salaries to the controlling shareholders who are the principal officers of the corporation . . . Obviously it makes a great deal of difference whether dividends had once been paid on a regular basis, but were stopped; whether the minority shareholder had a job with the corporation from which he was fired; and whether the controlling majority shareholders increased their own officers’ salaries, after the rift appeared and the dividends were terminated.” 2 Marsh’s California Corporation Law (3d ed. 1995) § 11.46, 958-960

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

Minority shareholder rights in California include protections from a breach of fiduciary duty by the majority shareholder.

Majority shareholders may be held liable for damages for breach of a fiduciary obligation to minority shareholders, Jones v. H. F. Ahmanson & Co., 1 Cal.3d 93, 81 Cal.Rptr. 592, 460 P.2d 464; Brown v. Halbert, 271 A.C.A. 307, 316, 76 Cal.Rptr. 781; and 3 Witkin, Summary of Calif. Law (1960) Corporations, s 99, p. 2390 (1967 Supp. p. 998). A majority shareholder breaches his fiduciary duties to the minority when he uses his control to distribute a disproportionate share of corporate profits (whether in the form of a dividend of excessive executive compensation), depriving the minority of its fair share of corporate profits. See Jara v. Suprema Meats (2004) 121 C.A.4th 1238, 18 C.R.3d 187; Witkin Summary of California Law, Tenth Edition 2. [§ 181].

In Jara, the court found that a minority shareholder had the right to bring an individual action against the corporation for excessive compensation paid to the two other shareholders, who were also executives and directors of the corporation. The court stated, “The objective of encouraging intracorporate resolution of disputes and protecting managerial freedom becomes meaningless where defendants constitute the entire complement of the board of directors and all the corporate officers.” See Jara, supra, at 1259.

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

If you are about to be fired (or just got fired)…What Should You Do?

Whether you see your own layoff on the horizon or think it could never happen to you, it is important to be prepared for a layoff in today’s economic climate. Lawrence Mishel, president of the Economic Policy Institute in Washington, D.C. recently told the New York Times, that the state of our economy right now is “indistinguishable from a recession.” Families are “losing jobs, and they’re getting a double bite as wage growth slows down and inflation kicks up. People are losing out on both ends.” Part of any economic downturn includes layoffs, as companies often look to cutting their payroll as a first option for eliminating costs.

Treading lightly around the office or storming out is the wrong move and could adversely affect your chances of a severance package or preserving your rights. Losing your job can be, and often is a traumatic experience (it ranks up there with divorce, death or bankruptcy for many people). Being prepared for a layoff and knowing your legal rights can help to minimize the negative aspects, and even turn it into a positive event for you and your career growth. So, what should you do?

1. Stay Calm, Don’t Take It Personally

The first reaction for most terminated employees is an emotional one. The pressures of financial and familial obligations can be overwhelming when you see your job and cash flow flash before your eyes. However, your last few hours in the workplace may be your best chance to get important information regarding your employment. If you can, obtain an electronic or hard copy of your personal files (including contact lists, photos), any performance reviews, customer/client commendations, or emails which you think may be important. [In California, you have the right to view your personnel file (California Labor Code §1198.5), which contains important information regarding your hiring, employment and possibly your termination. Ask human resources for a copy of your file before you leave on your last day.

2. Contact Our Firm

If you believe your termination was (or will be) wrongful, or if you simply are not sure please fill out our free wrongful termination submission form on our website for a free, no obligation review. You can also call us at 415.955.0888 or 310.726.0888. Many times these cases start with circumstantial evidence (i.e. it just seems like it was wrong, or something doesn’t seem right). Use our free case submission to organize your facts and submit it to us.

The law favors those who act on their rights. Undue delays result in a violation of a statute of limitations, causing you to lose your rights. Acting quickly also increases the likelihood that evidence (witnesses, documents, etc.) will be available.

3. Don’t Sign Away Your Rights

Do not let company management or human resources intimidate or coerce you into signing anything which you have not fully read or do not understand. Ask questions, ask for time to consult your own attorney – this is a reasonable request that any company should grant. Yes, you may be losing your job, but you don’t want to lose any of your legal rights. Most companies have form separation and release agreements on file for such an occasion which release the company of any and all liability. Do not take the word of a co-worker or superior as to the contents of any document you sign. Ensure you know what the consequences of signing are and consult an attorney.

4. Keep Detailed and Thorough Notes of Any Meetings and Events

Many times, we meet with clients to hear their stories and collect important information about their employment. More often than not, clients call us two, three, even ten days later to say, “I just remembered, there was that one time when . . .” Details can often slip your mind when you are being ushered out your office door, or rumors of layoffs have your head spinning. After conversations or meetings regarding your termination or related events, write down the date, time, and details of each. Ideally, you will already have a record of key workplace related evets written down in a personal notebook or on your home computer (not at the office).

Reliving the details of your layoff may be the last thing you want to do. However, writing down the details in an orderly chronology [date, time, event] will help you recall events to the best of your ability and better assist any attorney who tries to assess your situation or make an argument on your behalf. The smallest details can make the biggest of differences, and many times you may not recognize what those important details are until after consulting with an attorney.

It is perfectly acceptable to ask a friend, or co-worker, to sit in on the meeting and take notes. Having a more objective listener’s perspective can add more details to your timeline, bring a sense of calm to the proceeding and of course serve as a witness.

Apply for Unemployment Benefits

Lastly, apply for unemployment benefits. You can apply via the web at https://eapply4ui.edd.ca.gov/. It is important to do this as soon as possible after your termination. Some people, especially in the higher earning salary brackets (six figures and up) feel reluctant to apply for unemployment. Our position is: Apply for it. You pay into it while you are working, and it is another source (other than your personal savings) to help you bridge the gap economically until you land your next job.

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

California Non-Compete Agreements: It’s No Contest after Edwards

Long-term employment when companies quickly become aware the past for most American workers, especially in the technology forward California economy. Employers have benefited from these changes, by receiving the benefit of rapid flexibility in their employee base and hence cost structure. Employees have arguably benefited in some ways as well, by taking advantage of easy mobility within the workforce. Some employers have also gone one step further, by seeking to you protect themselves by adding “non-competition clauses” to their employee’s contracts.

What is a non-competition clause?

Generally speaking, a non-competition clause is any form of language in an employment contract that seeks to limit the employee’s ability to “compete” against his/her former employer once he is no longer employed by that employer.

Governing statutory law

California Business and Professions Code Section 16600 clearly forbids non-competition contracts and non-competition clauses, providing “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” In spite of the plain language of Section 16600, companies have continued to require that their employees sign non-competition agreements, asserting that these agreements somehow comply with Section 16600.

California Supreme Court Decision

In Edwards v. Arthur Andersen LLC 2008 DJDAR 12286, the California Supreme Court unambiguously held that non-competition agreements are void in California. In summary, this case arose out of the collapse of Arthur Andersen. Edwards had been an employee of Arthur Andersen, which was subsequently purchased by HSBC.

Before hiring any of Andersen’s employees, HSBC required them to execute a “Termination of Non-compete Agreement” (TONC) in order to obtain employment with HSBC. Among other things, the TONC required employees to, inter alia, (1) voluntarily resign from Andersen; (2) release Andersen from “any and all” claims, including “claims that in any way arise from or out of, are based upon or relate to Employee’s employment by, association with or compensation from” defendant; (3) continue indefinitely to preserve confidential information and trade secrets except as otherwise required by a court or governmental agency; (4) refrain from disparaging Andersen or its related entities or partners; and (5) cooperate with Andersen in connection with any investigation of, or litigation against, Andersen. Edwards signed the HSBC offer letter, but he did not sign the TONC. In response, Andersen terminated Edwards’s employment and withheld severance benefits. HSBC withdrew its offer of employment to Edwards. Litigation ensued.

At trial, the court “specifically decided that (1) the non-competition agreement did not violate section 16600 because it was narrowly tailored and did not deprive Edwards of his right to pursue his profession;…..” Edwards appealed. The Court of Appeal held that the non-competition agreement was invalid under section 16600. The decision was appealed and the California Supreme Court granted review.

In reaching its decision, a unanimous Court wrote: “We hold that the non-competition agreement here is invalid under section 16600, and we reject the narrow-restraint exception urged by Andersen. Non-competition agreements are invalid under section 16600 in California even if
narrowly drawn, unless they fall within the applicable statutory exceptions of
sections 16601, 16602, or 16602.5.” [J. Kennard and Werdeger concurred with respect to the non-competition issue, and dissented on a separate issue].

Lessons from Edwards

Clarity provided by this decision is significant especially in the California economy particularly Northern California, where high-tech job hopping is more common than not. This decision is also supported by some recent studies that concluded the constant shifting of resources and personal intellectual capital from one company to another was a major contributor to innovation and growth. See generally, The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128 and Covenants Not to Compete, 74 N.Y.U.L Rev. 575 (1999).

The lesson is that if a California employer asks you to sign a non-competition agreement it should be viewed as a cautionary sign. If you have already signed a non-competition agreement within California, you should feel comfortable that such an agreement is void, absent the agreement falling “within the applicable statutory exceptions of sections 16601, 16602, or 16602.5.”

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian:

Sometimes employers and employees both find themselves saying, “Give me a break!”

Must an employer provide a rest break to a worker during the day?

The general rule is that a worker is entitled to a 10 minute rest break for every 4 hours work, and the employer must not prohibit the workers from taking such breaks. If the nature or circumstance of work prevent the employer from giving the break at the preferred time (i.e. in the middle of the 4 hour period), then the employee must still receive the 10 minute break at another time during the day.

But, an employee cannot unilaterally choose to take his 20 minute break any time that he or she wants. For example, an employee cannot pass on both breaks in an 8 hour day, in order to leave 20 minutes early. The employer can also require that the employee stay on the premises during his or her breaks.

If the employer does not allow a rest break, then the employee can file a wage claim against the employer and recover one hour of pay for each workday that a rest period was not provided. For large employers, the damages can spiral out of control very quickly.

About Adishian Law Group, P.C.

For more information about this topic or to speak with Chris Adishian: