Sack Rosendin Inc.San Francisco Business Law Attorneys | Oakland Insurance Defense, Real Estate Lawyers2024-02-22T21:36:14Zhttps://www.sackrosendin.com/feed/atom/WordPressOn Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=469662024-01-10T02:17:06Z2024-01-10T02:17:06ZThe law requires certain documentation
There are certain employment records, like payroll records, that companies must maintain for multiple years just to remain in compliance with federal employment laws. There are many other records that can be important for the protection of a company's finances and reputation when responding to allegations from workers.
In addition to time clock records, companies may want to maintain thorough records of all employee complaints and investigations. Records related to disciplinary efforts and attempts to retrain workers struggling in their positions could also serve to defuse claims that the company mistreated workers or violated their rights. Even records of annual performance evaluations could potentially help justify a company's decision to terminate a worker or pass them over for a promotion.
In general, companies have an obligation to comply with federal laws, including rules against discrimination. They should not consider protected characteristics when hiring, firing or promoting workers. They also have an obligation to respond appropriately if workers allege safety violations or harassment on the job.
The more internal records the company maintains, the easier it may be for the business to push back on allegations that they mistreated workers from certain groups or targeted an individual because they engaged in protected workplace activities, like discussing their wages with coworkers. Even employment contracts can sometimes provide clarity regarding the relationship between the employer and the worker and what obligations the organization had to an individual.
A review of workplace contracts and other key documentation can play an important role in a business's response to complaints from workers or lawsuits filed against the company. Having the right contractual protections and maintaining appropriate business records can make a major difference for a company that might eventually face complaints from workers dissatisfied with their pay or position.]]>On Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=469602023-11-02T08:02:01Z2023-11-02T08:02:01Zonly if either (a) the safety undertaking of hiring security guards increased the risk of harm or (b) the victim reasonably relied on the protective measures to her detriment.
In the October 24, 2023 case of The Irvine Company LLC v. Superior Court, a customer at the Fashion Island shopping center got very drunk, walked up to the fourth floor of the parking structure, hoisted herself up onto the exterior wall which was forty-three inches high, taller than the forty-two inches required by the building code and the city-approved plans, sat up there for a while, and then toppled off, suffering severe spinal cord injury.
The plaintiff conceded that there was nothing inherently dangerous about the garage or the forty-three inch tall exterior walls. The plaintiff’s legal theory was that the shopping center employed a security guard service which included guards to monitor CCTVs, that the contract with the guard service included enforcement of the shopping center rules, and that one of those rules was to detect and stop “horseplay.” Her lawyers’ theory was that the shopping center undertook and assumed the duty to protect her from her own horseplay, by hiring guards to enforce the rules.
The Court of Appeal held that, as a matter of law, hiring the security guards (a) did not increase the risk of harm to the plaintiff, and that (b) the plaintiff had not reasonably relied on the presence of the security guards to protect her from her own horseplay and the detriment cause by her own acts.
I have written in previous notes on this website, that when a property owner hires security guards or installs security cameras, it has confessed that it has actual knowledge of a dangerous condition for which it needs to protect its visitors. That dangerous condition for which the owner is undertaking protection is criminal activity of third parties breaking into and stealing cars, robbing visitors or, at some venues, fighting. It is not to prevent irresponsible behavior, horseplay, by visitors. The owner or master tenant has not confessed that the shopping center has a dangerous condition of people getting drunk and doing things which are dangerous.
If you have questions about hiring security guards, installing security cameras or undertaking other safety measures at your shopping center, store, clinic or other business location, please call the lawyers at Sack Rosendin Inc. Let our success work for you.]]>On Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=469552023-10-05T11:27:57Z2023-10-05T11:27:57Zscope creep,” where a project slowly expands beyond the original boundaries of the agreement. Scope creep is a big problem because it has the potential to lead to increased costs, project delays and strained relationships between contractors and clients. Scope creep is often the caused by the following influences.
Unclear initial agreements
When a project is poorly or ambiguously defined, that can leave the scope of the work “open to interpretation.” While flexibility is important in a contract, so is specificity. Otherwise, clients may have expectations about additional work that they think should be included in the price.
Poor control processes
If you want to rein in scope creep, you need an established change order process. This not only makes certain that everybody is on the same page about any changes to the scope of the work, but it can also help clients understand that certain changes will have an impact on both the time frame of the work and the budget.
Unrealistic objectives
If the client expresses unrealistic goals and you can’t reasonably meet their objectives within the scope of the project as it is initially defined, scope creep is inevitable. It’s better to sit a client down and make sure that their expectations align with reality at the start (even if it means losing their business) than to end up not being able to deliver.
Scope creep isn’t just a source of frustration for contractors – it’s also a source of inspiration for civil claims. When clients aren’t clear about their objectives or they change objectives in the middle of a project, the potential for litigation is high. If you’re in the middle of a conflict with one of your clients over scope creep, it may be time to explore your legal options with the assistance of an attorney so that you can proactively reach a solution.]]>On Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=469502023-08-25T05:57:38Z2023-08-21T09:03:32ZLee v Cardiff, a Contra Costa appeal released for publication on August 11, again a contractor was caught claiming his employees were independent contractors in order to avoid paying workers compensation insurance premiums. The contractor was ordered to repay $238,470 that the owner had paid. Workers compensation insurance for contractors is incredibly expensive. If a contractor cannot afford it, then the law does not allow it to compete with legal contractors who pay to protect their employees.
The law is absolutely clear on this issue. A contractor who is not properly licensed cannot collect any payments and will be required to return any payments for work while it was unlicensed. The state legislature and the California Supreme Court have repeatedly found that a contractor who is not properly licensed does not earn anything, even for work done properly and on time, even for fixtures and materials installed. They have declared it an important public policy.
If a contractor has even a single employee, then the law requires workers compensation insurance to protect the employee. Without workers compensation coverage, the contractor’s license is suspended, automatically. No notice. No hearing. A contractor with an employee and no workers compensation insurance, has no license.
Saying employees are contractors does not help. To be a contractor, a worker must meet all three of the following “ABC” test established by the California Supreme Court: (A) the worker must be free of control and direction of the hirer, in fact, not just on paper; (B) the worker must perform work not part of the hirer’s regular business; and (C) the worker must work in the same occupation for others. To guaranty the quality of the work and protect their reputations, most general contractors will not pass test (A). Carpenters, framers and sheetrockers all do the same thing a general contractor does. Laborers so the same thing as landscape contractors. It is going to be very hard to prove they meet test (B)
When estimating or bidding a job, if a contractor is going to need even a single co-worker, pay for workers compensation. If the contractor cannot afford the workers compensation on that job, then do not bid on it. Workers comp is not optional.
If you have any question about whether or not you can pass the ABC test or whether you can avoid paying for workers comp, please call us at Sack Rosendin Inc.]]>On Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=469482023-07-10T10:45:27Z2023-07-10T10:45:27Zmany employment lawsuits, they can potentially take action ahead of time to prevent those the issues from affecting their company. These are three of the most common reasons that employees take legal action against the organizations that employ them.
Claims of discrimination
Workers who believe that a company violated their rights may decide to take legal action against the company. Discrimination could involve a hostile work environment that goes unchecked by management or claims of seemingly institutional discrimination based on who gets promoted or terminated in layoffs. Discrimination based on age, religion, sex and disability could all lead to lawsuits. Companies should therefore respond proactively if workers claim they have experienced discrimination in the workplace.
Workplace law violations
Wage and hour claims are among the most common reasons that workers take legal action against their current or former employers. If a company has violated fair pay rules, possibly by refusing to pay overtime wages, the workers affected might take the matter to court. Similarly, severance pay disputes when a worker gets let go may also lead to an employee initiating a claim against the company. Misclassification of workers as independent contractors or failing to adhere to safety regulations might also prompt litigation.
Allegations of retaliation
Workers shouldn't have to fear speaking up for themselves. Whether they ask for unpaid leave using the Family and Medical Leave Act or they report sexual harassment to their supervisor, they shouldn't worry about the company punishing them for asserting their basic employment right. Demoting or terminating a worker after they report misconduct is one of the more obvious types of retaliation, and workers who believe their employers punished them for speaking up may decide to take legal action.
Having thoughtful policies and contract inclusions in place can help employers navigate disputes with their workers and minimize the possibility of an expensive employee lawsuit down the road.]]>On Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=468212023-04-04T14:42:35Z2023-04-04T14:42:35ZWhat does enforcing a nondisclosure agreement involved?
There will typically be two main stages in a company's effort to enforce a non-disclosure or confidentiality agreement. The first stage will involve documenting the alleged infraction.
Proving that a former employee has contacted multiple clients or that the company that hired them has since started duplicating their former employer's recipes will be a crucial starting point for the enforcement effort. After all, the business that will become the plaintiff in the case must establish that there was a breach of the agreement.
Then, they will need to prepare to go to court. Many breach of contract claims involving employee misconduct settle outside of court. However, the former employee may not agree to compensate their former employer for their misconduct or to cease engaging in certain behaviors after an alleged breach of a non-disclosure agreement.
If the settlement isn't possible, then a judge can help. Judges can issue injunctions that prevent an individual or business from continuing to engage in certain behavior. Judges can also order specific performance, effectively requiring that one party complete certain actions to compensate the other. Finally, judges can also award damages when there is evidence that an employee's disclosure of protected information caused financial harm.
Effectively, businesses need to verify that any suspected violations of any particular agreements have actually occurred. Then, with the assistance of an experienced attorney, a business can start building a case to go to court even if they hope to settle the matter. Ultimately, understanding how to enforce employment contracts can help businesses that are struggling with the impact of a former worker's disclosure of key company secrets.
]]>On Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=468162023-01-04T14:51:10Z2023-01-10T14:48:31ZThe basics of obtaining a zoning variance
The process starts with a basic application where you specify what kind of variance you’re seeking and why you’re requesting it. You should also include any building plans that may be relevant to the city’s determination to grant or deny the variance. After that, there will be a public hearing on the matter.
At that point, the evaluation process will begin. Here, the city will assess your application to determine whether it should be granted. The city has the ability to grant the variance if the following conditions are met:
That abiding by the current zoning regulations would create a practical difficulty or unnecessary hardship that’s counter to the purposes of the zoning regulation.
That sticking to the current zoning regulation would deprive you of use of the land that others in similarly zoned properties enjoy.
The variance requested will not negatively impact the character or livability of surrounding properties, and the variance won’t harm the public welfare.
The variance sought will not constitute the granting of a special privilege inconsistent with similarly zoned properties.
The requested variance conforms with applicable design requirements as specified by other codes.
The variance complies with the city’s General Plan.
There may be other necessary showings, depending on the type of variance that you seek, which is why you’ll want to thoroughly assess how the code interacts with your set of circumstances if you want to maximize your chances of succeeding on your application.
What if your request is denied?
If your request is denied, you’ll have the ability to appeal. You’ll have to act quickly here, and you’ll want to be as detailed as possible as to why you think that the denial of your variance request was inappropriate. You’ll want to make sure that you raise every potential issue with your initial request because an appellate review of your application will likely be limited to the decision that was made based on the arguments presented at that point.
Help is available
Zoning issues can be extraordinarily complicated. Yet, the outcome of them can make a huge difference in the success of your business. That’s why you’ll want to be as thorough as possible in your preparation and presentation of a zoning variance request.
If you’re worried about getting tangled up in the intricacies of the applicable code, don’t worry. Experienced real estate legal teams like those at our firm stand ready to help you navigate the process.]]>On Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=468142022-11-29T16:43:22Z2022-11-29T16:43:22ZOn Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=468072022-10-07T18:42:54Z2022-10-07T18:42:54Zmany state regulations that apply to all sorts of real estate scenarios. Some of those regulations apply to you if you are buying a home for yourself and others apply if you are buying a property with the intention of renting it to someone else.
Real estate laws and regulations are designed to protect homeowners and tenants in difficult times as well as in times that are not difficult. The laws help to make everything run smoothly and cover anything and everything connected to real estate in California.
Rules and regulations that are important for Californians
There are several laws that affect residents of California. They are as follows:
Escrow agent is required: If you want to sell a home, an escrow agent is necessary to make the sale go through. Once the buyer deposits the escrow money in the account, the seller will deposit the deed to the property and the escrow company will hold onto those items to keep them safe. Once the escrow's requirements are met, the escrow agent will transfer the funds to the seller and will transfer the deed to the buyer.
Suing for fraudulent misrepresentation if the seller concealed some issue on the property: When the buyer files the lawsuit, the attorney will interview the relevant people to determine whether the buyer intentionally concealed the information or was unaware that there was an issue.
When a property is being sold: In the state of California, when the property is being sold, the title company will do a title search and will issue a preliminary title report, or a PTR. The title company will issue insurance to the buyer based on what is written in the PTR.
Transfer tax: When a property is sold in California, there will be a transfer tax that is imposed by the county. There are times when the city also imposes a transfer tax. This is a tax that exists because the property is being transferred from the seller to the buyer.
Lead paint and potential risks: In California, it is the law that the buyer of a property must be informed if the property contains lead paint and they must also be notified about the potential risks involved. It is the responsibility of the real estate agent to give the buyer full documentation of the history of paint on the property. The law also mandates that a state-accredited inspection must occur.
Smoke detectors: It is a law in California that all residential properties must have at least one smoke detector outside of each sleeping area. Either the seller or the real estate agent must produce written evidence of the smoke detectors.
Window safety bars: It is the law that either the seller or the real estate agent must provide information that the property has window security bars. It is also the law that the real estate agent of the seller must inform the buyer about how to remove them and also to mention any other safety mechanisms that exist on the property.
Physical condition of the home: The seller is obligated to disclose the ownership and physical condition of the home. The details include information on property tax, military artillery locations in the vicinity, working condition of all of the appliances in the home, and the presence of lead-based paint.
Relationship between the real estate agent and the seller: It is the responsibility of the real estate agent to disclose to the buyer what the relationship is between the agent and the seller, to disclose any commissions, and any information on the price of the sale of the property. The law also mandates that any information about a death on the property over the last three years must be disclosed to the buyer as well as advising them to consult the national registry for where sex offenders live in the vicinity of the property.
The right to cancel: Buyers have the right to cancel the sale agreement whenever they wish if information that should be disclosed has not been.
Consulting a knowledgeable attorney about real estate law
If you are in the process of buying or selling a property in California, consulting an experienced California attorney may make your experience much easier and much smoother. The attorney can walk you through the process and can ensure that your rights are protected at the same time so that your investment is safeguarded.]]>On Behalf of Sack Rosendin Inc.https://www.sackrosendin.com/?p=468052022-07-11T23:01:52Z2022-07-08T22:58:09ZSection 1031 of the Internal Revenue Code allows you to defer capital gains taxes in certain situations, making property investment an easier and more lucrative endeavor.
What is a Section 1031 exchange?
A Section 1031 exchange, wherein you sell an investment property and exchange it for another investment property of like-kind, is essentially a tax break because it allows you to defer capital gains taxes on the exchange. In a Section 1031 exchange, you will ultimately pay taxes only once under a long-term capital gains rate after you stop exchanging investment properties.
In a Section 1031 exchange, the proceeds from the sale of the initial investment property are kept in the hands of a third-party escrow agency and used to purchase the new investment property. You will never actually have these funds in your own hands, even temporarily. You can use this third party to hold the proceeds of your sale even if you are still looking for an investment property to buy and it will still qualify as an exchange.
In a Section 1031 exchange, the properties involved must be of “like-kind.” This rule is interpreted liberally. For example, you could exchange a farm for an apartment complex, even though these properties may seem like they do not have much in common. What is important is that the properties are located within the U.S.
Section 1031 makes real estate investment easier
If you comply with all Section 1031 rules, there is no limit on how many 1031 exchanges you can make. You can roll over gains from one investment into the purchase of a new investment as often as you need to.
Ultimately, 1031 tax deferrals can provide real estate investors with an incentive to keep investing in real estate. Still, 1031 exchanges can be complicated especially if they involve personal property or a reverse exchange. Moreover, there are important timing rules you must follow if you are making a delayed exchange.
For these reasons, many real estate investors work with an attorney when executing a 1031 exchange.]]>