Practice Areas:
Employment and Labor
Construction
Business
Civil Litigation
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door-button-758000-m.jpgClick here for the link to Part 1 of this Article dealing with the ADA or here for the link to Part 2 of this Article dealing with the Unruh Act and California’s Construction Related Accessibility Standards Act.

Commercial property owners are now required to notify lessees about their property’s compliance with accessibility standards. Civil Code Section 1938 now states: A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after July 1, 2013 whether the property being leased or rented has undergone inspection by a Certified Access Specialist (CASp), and, if so, whether the property has or has not been determined to meet all applicable standards pursuant to Section 55.53.

The top 10 complaints received by California Commission on Disability Access are:

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handicap-1177156-m.jpgClick here for the link to Part 1 of this Article dealing with the ADA.

The Unruh Act is California’s state law equivalent of the ADA. The Unruh Act incorporates many provisions of the ADA, but there are some differences between the two statutes. As one major example, the Unruh Act provides for payment of damages to a plaintiff where the ADA does not allow for damages.

Another significant area of difference with the ADA is how the Unruh Act handles certain accessibility claims in public accommodations. The Construction Related Accessibility Standards Act was added to California’s Unruh Act in 2009 and was amended in 2012.

The Construction Related Accessibility Standards Act contains procedures that can help certain defendants avoid some of the turmoil and expense associated with a construction-related accessibility claim. An accessibility claim asserts that a defendant failed to adhere to statutory access standards of a business that is open to the public.
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handicap-1177156-m.jpgThe Americans with Disabilities Act (ADA) is the federal law that requires all people receive full and equal access to public accommodations. Title Ill of the ADA prohibits discrimination based on disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases or operates a place of public accommodation.

Public accommodations are defined as goods, services and privileges that are made available to the public. The ADA established requirements for twelve categories of public accommodations, which include:

• shopping malls,
• stores,
• restaurants,
• bars,
• service establishments,
• theaters,
• hotels,
• recreational facilities,
• private museums and schools,
• doctors’ and dentists’ offices,
• and other businesses.
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Many California businesses use independent contractors. They do so for a handful of reasons, but one of the most common reasons is to save money. An independent contractor does not involve the same costs that an employee does, such as overtime, payroll taxes, vacation and sick time, and other benefits.

The perceived cost savings can come at a steep price for the employer in the form of an employee lawsuit for misclassification or a payroll audit by a governmental agency. The end result can be that an independent contractor is reclassified as an employee. This will cost the business owner significant amounts of money for unpaid overtime, payroll taxes, and other penalties, reaching backward in time three to four years.

Reclassification turns the independent contractor into an employee, retroactively, just like a zombie. And we all know how hard it is to kill zombies, especially ones that are due a lot of money.
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1265719_construction_in_progress-1.jpgTwo of the most commonly used remedies available to contractors are mechanics liens and stop payment notices. The rules and procedures affecting mechanics liens, stop payment notices and bond claims changed on July 1, 2012 (SB 189).

An earlier blog dealt with changes to these laws that took place in 2011. Part 1 of this blog for changes that took place in 2012 can be found here.

The following information is meant as general information only. One should not use this information to calculate the timing deadlines of these procedures. It is essential to take into account the specific facts and circumstances of each situation because they affect the timing, notice, and procedures. If the circumstances in this blog pertain to you or your company, contact our office to obtain advice on how to use them.

Stop Payment Notice – When there is a discrete sum of undisbursed construction funds, a contractor may file a Stop Payment Notice. Upon receipt of a Stop Payment Notice, the owner or construction lender holding the funds is required to sequester “sufficient funds” to pay the claimed amount. This has the effect of tying up those funds pending resolution of the matter. On a private works project, a contractor must obtain and serve a bond to require the lender to withhold the money claimed in a Stop Payment Notice.
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1265719_construction_in_progress-1.jpgConstruction contractors have enhanced collection remedies to help them obtain payment. Two of the most commonly used remedies are mechanics liens and stop payment notices. These rights are based on the California Constitution and various statutes.

On July 1, 2012, the rules and procedures affecting mechanics liens, stop payment notices and bond claims changed (SB 189 and 190). New forms and procedures are required. A prior blog dealt with other changes to these laws that took place in 2011.

The following information is meant as general information only. One should not use this information to calculate the timing deadlines of these procedures. It is essential to take into account the specific facts and circumstances of each situation because they affect the timing, notice, and procedures. If the circumstances in this blog pertain to you or your company, contact our office to obtain advice on how to use them.

A Mechanics Lien allows a contractor to record a lien against the property that the contractor improved, giving the contractor a source from which to satisfy a judgment. A Stop Payment Notice (previously called a stop notice) enables a contractor to force an owner or a bank to set aside undisbursed construction funds held by them. Contractors are required to follow procedures to perfect their mechanics lien claim, stop payment notice rights, and bond claims, some of which are described in this blog. Failure to do so will result in waiver of those rights.
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question mark blue and white.jpgDefense

Continued from Part 1.

A duty to defend another is a separate part of an indemnity provision. It requires the person giving the indemnity (the indemnitor) to pay for an attorney to defend the person receiving the indemnity (the indemnitee). A defense provision is important because of the cost of litigating a lawsuit. Sometimes the ultimate settlement of a matter is less costly than the overall expense involved in litigating the case.

The Timing of the Duty to Defend is Critical

When negotiating a defense obligation, it is important to specify when the duty arises. As the party receiving the promise to defend, the indemnitee wants the duty to defend to arise at the inception of any claim or even with the threat of litigation. The indemnitee also wants the defense to apply as broadly as possible, not just to a narrow set of circumstances. The indemnitor, on the other hand, may want the duty to defend to arise only in certain circumstances.
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question mark blue and white.jpgIndemnity

Most contracts contain an indemnity provision. While indemnity is neither exciting nor easy to understand, recognizing how it will affect your promises and expectations is very important.

There are two major kinds of indemnity, express indemnity and implied indemnity. Express indemnity is a provision in a contract where the parties spell out who is responsible for what. Implied (or equitable) indemnity arises when there is no express indemnity provision. This blog deals with express indemnity.

Indemnity has been defined as “the obligation resting on one party to make good a loss or damage another party has incurred.” Rossmoor Sanitation v. Pylon (1975) 13 Cal. 3d 622, 628. “[T]he question whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded.” Id. at 633. The parties have great freedom to allocate responsibility in indemnity and defense provisions of their contract, as long as those arrangements do not violate public policy. E. L. White v. City of Huntington Beach (1978) 21 Cal. 3d 497, 507.
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938292_california.jpgThere are a number of important changes in the law for 2013 affecting California employers. Part 1 discusses new laws for issues ranging from religious dress to commission payments. Part 2 covers issues ranging from whistleblower protection to information that must be provided to all new hires. The items discussed here are not a full list of all changes to the law this year, nor are the points referred to comprehensive of each law, given the nature of this summary. Unless otherwise noted, these laws take effect on January 1, 2013.

New Hire Information – AB 469 affects Labor Code § 2810.5 and requires employers to provide new hires with written information before work commences. Among other things, the employee must receive information specifying their rate of pay and how it is computed, the regular paydays, the legal name (and d.b.a. name) of the employer, the physical address of the employer’s main office or principal place of business, the employer’s telephone number and the contact information for their worker’s compensation carrier. When changes occur to this information, the employer must notify its employees in writing within seven calendar days. There are a few, limited exceptions to the requirement of providing this information.
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Published on:

938292_california.jpgThere are a number of important changes in the law for 2013 affecting California employers. Part 1 discusses new laws for issues ranging from religious dress to commission payments. Part 2 covers issues ranging from whistleblower protection to information that must be provided to all new hires. The items discussed here are not a full list of all changes to the law this year, nor are the points referred to comprehensive of each law, given the nature of this summary. Unless otherwise noted, these laws take effect on January 1, 2013.

Social Media – At the top of the list is a law affecting social media policies and practices. AB 1844 added Labor Code § 980 that prohibits employers from asking employees or job applicants for their social media passwords. There is an exception that allows employers to request passwords in conjunction with certain types of workplace investigations. The Labor Code does not prohibit employers from requiring employees to provide a password for access to an employer issued electronic device.

Employers should be aware there is increased scrutiny on how employers draft and enforce social media policies. Employers should be careful not to draft overly broad policies that might restrict concerted activity or punish legitimate off-the-clock activity by employees. Many employers are unaware that the Labor Code prohibits employers from taking action against employees for lawful conduct occurring during nonworking hours away from the employer’s premises. This is an important consideration in drafting and enforcing social media policies.

Businesses should develop reasonable policies that ensure the content created by their employees for the business are clearly the property of the business. Contact this office for assistance in developing appropriate social media policies.
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