Category: Civil Litigation

Unpaid Wages in California: What Are The Most Common Claims?

Unpaid Wages in California: The Most Common Claims

California has some of the most progressive labor laws in the United States and one of the highest minimum wages. Despite this, or perhaps partly because of it, some employers will still underpay their employees or deny them their rights under the law. Workers may suspect they have a claim against their bosses but still hold off on any legal action because they don’t have all the information they need or don’t know how to go about collecting what’s owed to them. Here’s what you need to know about unpaid wages in California.

Common Unpaid Wage Claims

An unpaid wage claim arises when an employer violates an employee’s statutory or contractual rights, resulting in the employee being paid less than they are owed. Here are some of the most common unpaid wage claims in California.

Minimum Wage

The current minimum wage in California is $15/hour or $14/hour for employers with 25 or fewer employees. If you are being paid less than that rate, you may be entitled to the difference in pay. Remember that some local minimum wages are actually higher than the state’s requirements. In San Francisco, for example, the current minimum wage is $16.32/hour.

Overtime Compensation

Most workers are entitled to overtime compensation if they work more than eight hours a day, 40 hours a week, or six days per week. Work that exceeds those limits should be compensated at 150% of the regular rate. In some cases, such as for work that exceeds 12 hours in a day, workers must be compensated at 200% of their regular rate.

Off-the-Clock Work

Employers may pressure or force employees to work before or after they’ve clocked in as a way to reduce expenses. This is often connected to overtime compensation, as employers seek to avoid going over the limits stated above.

Meal Breaks

Employees who work at least 5 hours a day are entitled to a meal break of at least 30 minutes. If the workday exceeds 10 hours, they are generally entitled to a second break.

Exempt/Contractor Classification – Some types of employees, such as white-collar workers, are exempt from many of these requirements, as are independent contractors. There may still be an unpaid wage claim, however, if the worker was improperly considered exempt or treated as a contractor.

Though these are the most common claims, this is by no means an exhaustive list. You may be owed unpaid wages if you were not paid for vacation days, reimbursed for business expenses, and more. If you suspect you are owed unpaid wages, you should contact an attorney.

Pursuing an Unpaid Wage Claim

One of the first priorities in successfully pursuing an unpaid wage claim is to ensure the case is filed before the statute of limitations expires. The statute of limitations is the maximum time allowed between when a violation occurs and when a claim can be filed. If the statute of limitation expires, you cannot collect on your claim.

The statute of limitations in unpaid wage cases depends on the type of claim involved. In most cases, such as claims arising from minimum wage, overtime, and meal break violations, the statute of limitations is three years. If the behavior is part of a regular pattern of underpayment, the statute of limitation usually starts running at the most recent violation. However, it’s very important to know that the statute of limitations may be shorter in some cases. For example, the statute of limitations for claims involving a bounced paycheck is just one year.

Because of this time limit, it’s crucial not to wait. If the statute of limitations is close to expiring, some employers may try to delay you through bad-faith negotiations. If the time limit passes, they win.

If you are still working for the employer against whom you have a claim, it’s understandable to be worried about retaliation. State law prohibits employers from retaliating against workers who file an unpaid wage claim against them. Such retaliation can take many forms, from firing the employee to reducing their hours. If your employer does something like this, you may have another legal claim against them.

Get Help with Your Unpaid Wage Claim

If you are considering pursuing an unpaid wage claim, it is highly advisable to do so with the help of an attorney. Your employer will almost certainly have a legal team, and they may try to intimidate you and make a lowball offer. Our experienced labor attorneys can evaluate your case, identify your potential claims, and help you get fair compensation. Contact us today to get started.

Do You Need a Lawyer for Pain And Suffering Damages?

Woman lying in bed in pain with hand over her shoulder and neck.

Getting what you deserve in a lawsuit for pain and suffering isn’t always a straightforward process. An identical plaintiff might get significantly different results from different attorneys. A pro per plaintiff (someone who represents themselves) is almost sure to have a less satisfying and drastically different outcome.

Even though the goal is always the same, i.e., to make the plaintiff “whole” again after the defendant has caused them harm, there are many different ways to approach the issue. It’s incredibly complex when it comes to showing damages from pain and suffering.

When Are Pain and Suffering Damages Appropriate?

Economic damages are, for the most part, relatively easy to calculate. For example, if someone steals your car, the economic damage you’ve suffered is the value of the car, its contents, any income you lost as a result of not having the car, etc. Non-economic damages, such as pain and suffering, are appropriate for less tangible harm.

If someone lost their hand due to another person’s negligence, you could calculate their medical bills and their decreased ability to make a living. But of course, that doesn’t cover the full extent of their injuries. They would have suffered great physical pain, severe emotional distress, and perhaps long-term mental health effects (such as depression and anxiety). While no amount of money can erase these injuries, pain and suffering damages are meant to at least address them.

Should You Handle Pain and Suffering Damages on Your Own?

We strongly advise against representing yourself in any lawsuit where you might be entitled to pain and suffering damages. Such a case is likely to be complex, and you would be doing yourself a great disservice by trying to go it alone.

Imagine a situation where the defendant’s culpability is not in question. It’s just a question of how much money they will have to pay. You would have two options: settle the case or take it to court to prove damages.

Proving damages in court is no simple matter. You will have to call your witnesses, cross-examine the defense witnesses, possibly hire experts, and follow the complex rules of evidence. On top of that, the defendant is likely to fight hard because pain and suffering damages can be a lot of money. A pro per litigant is not going to be on equal footing.

This leaves you with the option to settle out of court. The defendant may be very willing to do this. But the amount they offer will be directly related to how much they wish to avoid a trial. If they know you don’t have an attorney, they will lowball you because you probably can’t beat them in court. Worse, because it’s difficult to know how much your case is worth, you may not even know that the offer is too low.

Experienced Plaintiff’s Attorneys in Southern California

If you’ve been injured and believe you may be entitled to pain and suffering damages, your first step should be to contact an attorney. Schedule a consultation with one of our litigation experts today.

Lawsuits: Pain and Suffering Damages in California

Pain and Suffering Damages

Imagine if someone intentionally burned down your house. You would be entitled to recover damages from the person who did it, of course, but how do you calculate the value of your losses? In a lawsuit, can you get damages for your personal pain and suffering?

It’s easy to determine the economic damages—the value of the house, the appliances inside, etc.—but that doesn’t cover the full extent of the harm you’ve suffered. In California, you could also likely recover monetary compensation for non-economic damages, like pain and suffering.

What Are Non-Economic Damages?

Most damages in civil lawsuits are compensatory, meaning they are meant to compensate the plaintiff with money for the losses they’ve suffered (often phrased as “making the plaintiff whole again”) rather than punish the defendant for their bad behavior. Non-economic damages are no exception. They are “subjective, non-monetary losses” for which a jury or judge must determine a monetary value. Non-economic damages include:

  • Pain
  • Suffering
  • Inconvenience
  • Mental suffering
  • Emotional distress
  • Loss of society and companionship
  • Loss of consortium (being kept from the benefits of a family relationship)
  • Injury to reputation
  • Humiliation

Using the burned house example above, you could make an excellent argument for non-economic damages for pain and suffering in a lawsuit. Even if you were not physically injured, losing your home and everything inside (including family photos, cherished keepsakes, etc.) likely caused you severe emotional distress, as well as considerable inconvenience.

As with other damages, a plaintiff must present evidence to demonstrate non-economic losses. Relevant evidence will vary depending on the situation, but it is anything that establishes the existence of the injuries and helps the judge or jury attach a specific monetary value. The evidence could include testimony from medical and mental health experts, family and friends, and you.

Limits on Non-Economic Damages

In California, there are some situations where non-economic damages are limited to a certain amount or prohibited altogether. For example, in medical malpractice cases, they are capped at $250,000, an amount that has remained the same since it was passed into law in 1975. In addition, in traffic accident cases, a plaintiff cannot recover non-economic damages at all if they were uninsured or driving under the influence at the time.

Another important limit is that multiple defendants are not jointly liable for non-economic damages. It means each defendant is only responsible for paying their portion depending on how much they were at fault. For example, if there are two defendants, one who is a millionaire and another who is penniless, and the millionaire is only 1% at fault, they only have to pay 1% of the non-economic damages. There are important exceptions to this rule, such as an employee-employer relationship between the defendants.

Personal Injury Experts in Southern California

Non-economic damages can form a large part of a plaintiff’s claim, but they are very complicated to litigate. Our experienced team of personal injury attorneys can help you prove your case and maximize your recovery. Contact us today to schedule a consultation.

What You Need to Know About Adverse Possession

Adverse possession, sometimes called squatter’s rights or squatter’s law, is probably the most contentious way to acquire title to real estate. It has existed in some form or another for thousands of years, going back at least to the time of ancient Rome, eventually arriving in the United States as part of the English common law tradition.

It amounts to a kind of “hostile takeover” of someone else’s property, taking it from the original owner without payment. Though often imagined as someone acquiring a large piece of land by underhanded means, in reality adverse possession claims are far more likely to involve a border-line dispute between two neighbors.

A successful adverse possession claim in California must prove all of the following:

Hostile Claim – The occupier (the person without title) must possess the land against the interests of the owner, i.e., without their permission.

Actual Possession – The occupier must be physically present on the property, taking care of it as if they were the owner.

Open and Notorious Possession – The occupier’s possession of the property should be plain for anyone to see, serving as a kind of notice to the owner. What constitutes open and notorious possession will depend on the type of property, but common examples are enclosing it with a fence or constructing buildings.

Exclusive and Continuous Possession – The occupier must be the sole possessor of the property for at least five years, and their possession must be uninterrupted. For example, if the occupier was on the property for four years, then left for six months, and returned, the clock on the five-year period would start over again.

Payment of Taxes – The occupier must pay all state, county, and municipal taxes levied on the property. This serves as another type of notice to the owner. Payment must be made in a timely manner, meaning the occupier can’t simply pay off five years’ worth of taxes all at once.

Resolving an Adverse Possession Case

As stated above, a typical adverse possession case doesn’t involve an intentional scheme to take over someone else’s property, but rather a neighbor encroaching on the border line. Often these situations can be resolved amicably (depending on the neighbor), but other times it’s more complicated, such as when it’s the neighbor’s house that is on the wrong side of line. The parties may be able to negotiate a transfer of title, but sometimes litigation is the only option.

During the five-year period required for an adverse possession claim, the occupier is continually trespassing on the owner’s property. This means the owner can simply file for eviction. Even if the occupier had built some structure on the owner’s land, they would have to remove it.

If the five-period has already passed, either the occupier or the owner can initiate an action to quiet title, in which the court will decide who the rightful owner is. The burden is then on the occupier to prove every element of their adverse possession claim. It’s a difficult case to win, as courts don’t like taking property from the original owner. If the occupier does win, they receive title to the land and have full rights as the new owner.

The Importance of Having a Real Estate Attorney

Adverse possession cases are complex and the stakes are high for the parties involved. No matter which side of the dispute you are on, it is critical to have an attorney with expertise in real estate matters. They will be able to review deeds and other property documents, get an accurate survey of the property boundaries, and properly evaluate the adverse possession claim in light of all the facts.

If you are involved in a real estate dispute such as adverse possession, don’t hesitate to contact our experienced team of Southern California real estate attorneys.

When Do You Need a Real Estate Attorney?

Real estate can be tricky. Even the average home purchase can be overwhelming in the sheer number of details that must be attended to. For most people, real estate is the financial largest investment they’ll ever make. It is completely normal for something to come up that leaves you wondering whether you should hire a real estate lawyer. We’ll go over some of the common situations where it might be best to have professional legal help.

Buying or Selling a Home

One of the most frequently asked questions in this area is, “Do I need a real estate attorney to buy or sell a house?” Some states legally require that real estate transactions be reviewed by an attorney—California does not. Formal requirements aside, whether or not you need an attorney depends on the situation.

As an example, consider an ordinary house purchase. Both the buyer and seller have great real estate agents, the house is in good condition, there are no liens on the property, etc. Do you need a real estate lawyer in this situation? Probably not. Bear in mind, though, that as the value of the property goes up, or if you are from out of town/out of state, it becomes a better idea to hire an attorney just to make sure everything is in order.

It is definitely more advisable to use a real estate attorney if there are any non-standard issues surrounding the transaction. For buyers, these non-standard issues can include:

–        The home is owned by the bank

–        It’s being sold as part of an estate sale

–        There are tenants currently living on the property

–        The land is in a flood zone, tornado-prone area, etc.

For sellers, common issues include:

–        The home is part of a divorce settlement

–        It’s part of an estate of which you are the executor

–        A short sale (selling for less than you owe on the mortgage)

–        Liens on the property

–        Major physical damage to the property

The list could go on and on, but the key point is this: Anything out of the ordinary should drive you to reach out to an attorney and better understand what you’re getting into. Of course, many people would prefer to avoid the cost of hiring a lawyer, but when considered as a fraction of the total price of the home and how much trouble (and money) it can save you down the road, it’s really a minor expense.

Real Estate Disputes

Whether you are a homeowner, a renter, or an HOA director, there are a wide variety of legal disputes that can pop up and disrupt your life. These range from seller non-disclosure issues to prescriptive easements to property title claims. For anyone involved in a real estate dispute and whose home or property value is on the line, we recommend contacting an attorney immediately. Any delay could prejudice your case due to statutes of limitations and other filing deadlines.

Contact a San Diego Real Estate Attorney Today

If you’re asking yourself whether you need a real estate attorney, chances are you should at least sit down for a consultation. Contact our office today to set an appointment.

Real Estate Disputes

What You Need to Know About Real Estate Disputes

There are few areas of the law that touch on our emotions so deeply as real estate disputes. This is because they often lie at the intersection of two very important aspects of our lives: our homes and our personal finances. Though people may prefer to resolve them quickly and informally, the underlying issues can be complex and passions can flare up quickly. In these cases, the best option is usually to hire an experienced real estate dispute attorney.

Types of Real Estate Disputes

Here are a few of the most common legal disputes people encounter when it comes to real estate:

Purchase Disputes – These real estate contract disputes pop up after the deal has been signed, and sometimes well after the buyer has taken possession of the property. They often revolve around a claim that the seller misrepresented or failed to disclose a material fact. For example, the seller may have neglected to mention an environmental problem or other information that affects the value or use of the property.

Property Ownership Disputes – Sometimes multiple parties simultaneously claim ownership of a property. For example, one owner performs a survey of the boundaries of their property and subsequently claims that part of the neighbor’s home is actually on their land. In such a case, there may be little room for informal negotiation.

Nuisance Claims – One owner may claim that the actions of another are interfering with the reasonable use and enjoyment of their property. These can vary widely, from excessive noise to environmental pollution. For example, if a homeowner has a view of the ocean but a proposed construction project will block that view, the owner may seek to stop construction or receive compensation.

Homeowner Association (HOA) Disputes – HOA agreements can serve a variety of purposes, including obligating owners to maintain a certain level of care or appearance in order to keep nearby property values stable. Disputes often arise when an owner wishes to do something that is alleged to be prohibited by covenants, conditions and restrictions (CC&Rs) or contests a special assessment against their property.

Landlord/Tenant Disputes – Both landlords and tenants commonly have claims against each other. These include nonpayment of rent, breach of lease agreement, and habitability issues (unhealthy conditions, failure to make repairs, etc.).

Resolving Real Estate Disputes

The best approach to real estate dispute resolution is to prevent the issues from coming up in the first place. Hiring a legal professional early in the process, such as during a real estate purchase, can help owners catch issues early and keep them from growing out of control.

Sometimes a dispute is unavoidable, though. In these cases, owners may wish to keep the case out of court through some sort of alternative dispute resolution like mediation. This approach has the advantages of being generally faster and less adversarial. Attorneys can fill the role of mediator and/or represent the parties in negotiations.

If a dispute requires litigation, all parties should have assistance of counsel. The factual and legal issues are likely to be complex, and too much is at stake to go it alone.

San Diego Real Estate Dispute Attorneys

If you are involved in a real estate dispute, our experienced attorneys can help you resolve the matter in a cost-effective manner. Schedule a consultation today.

What Is the Statute of Limitations for Unpaid Wages?

If you have not received unpaid wages from your employer, it might take some time before you begin to notice. This is especially likely if you worked flexible hours at different rates and had variable paychecks. When you do discover the discrepancy, it is important to hire a lawyer for unpaid wages and begin to build your case.

Employers know there is a statute of limitations and will often try to drag negotiations out so that the time expires before you can be paid. The statute of limitations differs based on the circumstances, but the time ranges from one year to four years.

What Are California’s Statutes of Limitations?

In California, the state’s Department of Industrial Relations encourages workers to file claims in a timely manner. These are the time restrictions provided by the department for filing wage claims:

  • Within four years if you have a written contract
  • Within three years for violations related to overtime, minimum wage, meal breaks, unpaid rest, unpaid reimbursements and illegal deductions
  • Within two years if you received an oral promise to be paid more than the minimum wage
  • Within one year if you were charged penalties for a bounced check or if you did not receive access to your payroll records

Where Can Workers Get Information To Build a Case?

Before hiring an attorney for unpaid wages, it’s important to gather all the necessary information you can. If you are not sure what information you need, consider the following tips from the Department of Industrial Relations.

Track Your Paychecks

Most medium-to-large employers provide electronic access to your paystubs online. If you work for a smaller company, you might only receive a physical printout of your pay stub. Keep copies of this information. You might need them to show the money you received versus what you should have been paid. If you do not have access to this, check your bank account for checks cashed and direct deposit payments.

Add Up Hours Worked

Unless you are a salaried worker, how many hours you spent on the job will make a difference in your claim. Hours can determine not just whether you received the right total for each hour worked but also whether you qualify as a full-time worker or should receive any special benefits or bonuses.

Gather Employer Information

You need important information about the employer to file your claim with the Labor Commissioner’s Office. This includes the address and name of the company or individual. You should find this information on the paystub, product labels or mailing labels. If the names do not match or you are unable to find the information, write down your employer’s license plate number.

How Can Workers Choose the Right Lawyers for Their Cases?

When choosing an employment law attorney for unpaid wages, choose an experienced professional who is willing to go up against corporations. You also need professionals who are accustomed to cooperating with government agencies to complete your case.

At Hoffman & Forde Attorneys at Law, we are proud to provide cost-effective services to workers in Southern California. Schedule your consultation today.

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FFCRA Paid Sick Leave: What You Need to Know

Has COVID-19 prevented you from reporting to work? Are you an employer whose workers got ill from the coronavirus? Has your child’s school or place of care closed because of the pandemic? If you answered yes to any of these questions, know your employer and worker options for paid sick leaves with the FFCRA.

What is the FFCRA?

As of April 1st, 2020, the U.S. Department of Labor (DOL) notified the public that American workers and employers will receive benefits through the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act. Both of these acts are part of the Families First Coronavirus Response Act or FFCRA. The Wage and Hour Division of the DOL administers the FFCRA’s paid leave provisions. For legal assistance regarding paid leaves, a wage and hour lawyer can help. 

FFCRA is intended to address COVID-19 workplace issues, specifically by reimbursing tax credits to private employers with fewer than 500 employees. The credits give the employees paid leave for COVID-19 specific reasons. With the reimbursements, employers can keep their workers on payroll while workers do not have to worry about choosing between their livelihood and their health. FFCRA is effective from April 2, 2020 and will expire on December 31, 2020.  

What else is covered under the FFCRA?

Under the temporary rule, there are other provisions intended to support both employers and workers. These include the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The differences between the two provisions are listed below.

EPSLA

This provision requires specific employers to give up to 80 hours paid sick leave to employees affected by COVID-19. According to the DOL, these reasons may include:

  • the employee or someone the employee is caring for is subject to a government quarantine order or has been advised by a health care provider to self-quarantine;
  • the employee is experiencing COVID-19 symptoms and is seeking medical attention; or,
  • the employee is caring for his or her son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.

Source: U.S. Department of Labor

If you are a worker requiring medical attention due to COVID-19, or you need to provide care to someone who has been required to quarantine, the 80 hours of paid sick leave that EPSLA offers may apply to you.

EFMLEA

Under this provision, the Department requires specific employers to provide a maximum of 10 weeks paid and 2 weeks unpaid emergency leave (family or medical) to their employees, provided that the employee is caring for a child whose “school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.” In California, the Labor Code section 230.8 also details provisions for parents and guardians in the event of school or daycare closure. 

For parents who need to take time off to care for their kids because of school closure, the EFMLEA will cover 10 weeks of paid and 2 weeks unpaid emergency leave. 

Who is eligible under the FFCRA?

Certain public employers and private employers with 500 or fewer employees are covered under the FFCRA. Federal employees are covered by Title II of the Family and Medical Leave Act’s paid sick leave provision. For small businesses with fewer than 50 employees, they may be exempted from providing leave if the leave requirements would threaten the business’ survival. According to the DOL, “[a]ll employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.” California’s Department of Industrial Relations also offers state-specific resources regarding COVID-19 and paid sick leaves.

Know Your Rights

No employee should be forced to choose between keeping their jobs and staying healthy; likewise, employers who are struggling need the provisions afforded by the FFCRA. If you are a worker or employer seeking legal counsel for COVID-19 related labor issues, contact our experts at Hoffman & Forde. Our wage and hour attorneys will provide expert legal advice regarding wages, paid leaves, and relevant labor laws during the pandemic.    

Sources:

U.S. Department of Labor

California Department of Industrial Relations