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HOWARD LAW, P.C.
Pacific Arts Plaza
675 Anton Boulevard, First Floor
Costa Mesa, California 92626
Tel: (800) 872-5925
Fax: (888) 533-7310
HAPPY NEW YEAR FROM HOWARD LAW!
Each year, when the month of December comes to a close, we have the opportunity to look back and reflect on the year to see how far we’ve come, and to be open to all that the New Year will bring—so when that celebratory New Year’s Eve ball drops, we have the chance to begin January with an open slate and set positive New Year’s resolutions, for all that is yet to come in the new year.
2011 was a big year of transition for all of us here at Howard Law, as we launched our new firm—Howard Law, PC—taking the same great team of professionals and attorneys that made Howard Nassiri such a success, in order to form a stronger firm dedicated to passionately advocating on behalf of our clients.
This decision to form Howard Law came clearly to all of us, even during a rocky economic climate, as we felt it was an important time to stand up for the people of California and protect their civil rights, to renew our pledge to outstanding client service and cost-effective legal support, and to strengthen our firm’s dedication to ensuring the promising futures of our clients.
As this new year begins, our dedicated team of Costa Mesa, California attorneys and professionals have the New Year’s resolution to strengthen our efforts to make each of our clients feel safe and secure, and to continue working tirelessly on your behalf, protecting your interests and ensuring that your voice is heard—with our extensive knowledge of California and federal law, and comprehensive understanding of the policies and regulations that impact your lives.
At Howard Law, PC, we are honored to begin this New Year’s journey with you and will strive to support you in all of your legal matters throughout 2012.
Here’s to a wonderfully prosperous New Year to all!
HOWARD LAW, P.C.
VINCENT D. HOWARD
HOWARD LAW PRACTICE AREAS
Labor and Employment Highlights from 2011
A Year in Review
Last year was an historical year for California and federal labor and employment law, with many hot topics stealing the 2011 headlines: for example, GINA’s final regulations taking effect, the Supreme Court’s rulings on the long-running Walmart v. Dukes sex-discrimination lawsuit, Charlie Sheen’s very public employment lawsuit against Warner Brothers, and the U.S. Department of Labor’s continuing battle against wage and hour violations of the Fair Labor Standards Act (FLSA), among others.
Here are few key labor and employment law highlights
that our Riverside labor and employment lawyers have followed in 2011:
GINA’s Final Regulations Take Effect
After a unanimous vote by the U.S. Equal Employment Opportunity Commission (EEOC), in 2011 the final regulations that implement the employment provisions of GINA (Title II), the Genetic Information Nondiscrimination Act of 2008, took effect. GINA prohibits employers from genetic testing or discriminating against employees based on genetic make-up. Title II of GINA represents the first extension of the EEOC's jurisdiction since the passing of the Americans with Disabilities Act of 1990 (ADA).
Supreme Court Rules in Third Party Retaliation Limits Case
In January of last year, the Supreme Court ruled unanimously on a retaliation ban limits case, stating that under Title VII of the Civil Rights Act of 1964, a company can be sued for retaliation by terminating an employee’s fiancée. In Thompson v. North American Stainless, a female engineer claimed to have experienced gender-based discrimination and filed a complaint with the EEOC. At the time of the complaint the engineer was engaged to marry a metallurgic engineer who also worked at the plant. He was fired three weeks after the EEOC sex-discrimination complaint was revealed, and decided to file his own third-party retaliation claim. The highest court decided that third-party victims of retaliation are covered by federal protections.
Charlie Sheen Rants, Fights and Sues for Millions
In one of the most highly publicized employment battles of the year, Hollywood actor Charlie Sheen filed a $100 million dollar lawsuit in March of last year, suing Warner Brothers Studio and Chuck Lorre, the executive producer of Two and a Half Men, the television show once starring Sheen, for wrongful termination, retaliation, breach of contract, among other Los Angeles, California employment charges. Sheen’s contract was reportedly terminated for health issues that allegedly led to his inability to perform his duties for the show, for public rants against Lorre, and for alleged drug use and destructive behavior. Sheen and Warner Brothers reportedly finalized a multi-million dollar settlement in September.
Supreme Court Decides Wal-Mart Class-Action Sex Discrimination Claim
In July, the U.S. Supreme Court announced its ruling in what could have been the largest class-action gender discrimination lawsuit in U.S. history—settling Walmart v. Dukes, the ten-year discrimination lawsuit brought by a class of female Wal-Mart employees who accused the retail giant of engaging in sex discrimination and violating Title VII of the Civil Rights Act. In the 5-4 ruling, the Supreme Court sided with Wal-Mart, stating that the discrimination lawsuit could not continue as a potential class of 1.5 million female employees, who claimed to have suffered sex discrimination from every level of employment from entry-level workers to management. The court decision found that the former and current female workers in the claim are vastly different and the case could not proceed as a class action unless the members had common elements to link them together as one class.
Verizon Pays $20M in EEOC Disability Lawsuit
Last year, in the largest disability discrimination settlement in a single lawsuit in the EEOC’s history, Verizon, the telecommunications giant, agreed to pay $20 million to resolve the EEOC’s nationwide class disability discrimination lawsuit. Verizon Communications was accused in the lawsuit of violating the Americans With Disabilities Act (ADA) by refusing to make exceptions and accommodate disabled employees under the company’s “no fault” attendance plans—which disciplined employees if they accumulated a designated number of “chargeable absences.” The EEOC accused Verizon of denying reasonable accommodations to hundreds of disabled employees by either disciplining them or terminating their employment when they needed more time off than Verizon’s leave policy allowed—especially when “chargeable absences” were caused by disabilities.
Wage and Hour Violations Hit Record Highs
According to the U.S. Department of Labor (DOL), overtime payment is the largest wage and hour violation issue in the country, with thousands of complaints reported annually. In 2010, around 6,800 wage and hour violation lawsuits were filed, amounting to roughly 700 more than the year before, and the DOL forced employers to pay a reported $176 million in employee back wages. In the past five years, employers have paid around $925 million in overtime wages and back pay to 1.2 million workers, proving the DOL’s continuing fight against workplace labor violations.
In May of last year, the DOL launched the first smartphone app allowing employees to track their working hours independently and self-determine the wages that they are owed—to reduce wage and hour violations in the workplace. The application is available in English and Spanish to iPod Touch and iPhone users, and the DOL is exploring other versions for Blackberry and Android smartphones.
Employee Misclassification in 2011
Employee misclassification was also a hot topic in 2011 in state and federal legislation. In April, Senators Tom Harkin (D-IA), Sherrod Brown (D-OH), and Richard Blumenthal (D-CT), introduced the Payroll Fraud Prevention Act, mandating that employers keep accurate records of employee classification and the status of each worker performing services within the company. In October, California Representative Lynn Woosley (D-CA) introduced the Employee Misclassification Prevention Act of 2011 (EMPA) (H.R. 3178) to curb the misclassification of employees and to help stimulate the national economy. California Governor Jerry Brown also approved Senate Bill 459—a bill that reprimands companies and employers who willfully engage in employment misclassification with stiff penalties. The DOL and the IRS also combined departmental efforts by signing a memorandum of understanding to eliminate the practice of employment misclassification across the country.
California Suitable Seating Lawsuits on the Rise
Last year, a flurry of California retail chains like Target, Wal-Mart, and Home Depot were sued for failing to provide suitable seating for employees with positions requiring them to stand on their feet all day during their work shifts. The lawsuits were brought under the Private Attorneys General Act (PAGA), claiming that the retail stores violated an IWC Wage Order (Wage Order 7-2001, Section 14) containing provisions regulating working hours, minimum wage and other issues including suitable seating—stating that employers in the retail industry are required to provide their employees with suitable seats when the nature of their work reasonably permits the use of seats.
EEOC Sets Record Highs in 2011
In November, the EEOC’s annual Performance and Accountability Report (PAR) stated that the commission received 99,847 discrimination charges in fiscal year 2011----the highest number of charges in the EEOC's 46-year history. The EEOC's PAR also showed that the EEOC staff also brought historic amounts of monetary relief through administrative enforcement--with $364.6 million in benefits for victims of workplace discrimination, which was also the highest amount ever obtained by the EEOC.
"Legal Help You Need, When You Need it!
Labor and Employment Laws Taking Effect in 2012
Many new labor and employment laws will take effect in the State of California this year—and our Orange County labor and employment attorneys will discuss a few of these laws below, in order to help you to understand how they will apply to you and your employment in 2012.
Independent Contractor Misclassification Bill - SB 459
This new law adds California to the growing list of U.S. states that are fighting against the misclassification of employees by enacting new legislation that increases the penalties on employers who are found to have knowingly or voluntarily misclassified workers as independent contractors.
Under the new California law, SB 459:
- If an employer is found to have engaged in any violations of the new law, the person or employer shall be subject to a civil penalty amount totaling no less than $5,000 and no more than $15,000 for each violation, as well as any other fines or penalties as permitted by law
- If the employer is found to have engaged in the repeated practice of willful misclassification, the penalties will total at least $10,000 and no more than $25,000 for each repeated violation, in addition to any other penalties or fines granted by the law.
The bill also prevents employers from charging misclassified employees a fee from deducting any monetary amount from their pay for any purpose, including for goods, materials, services, rental space, repairs, or any other fines or fees that could arise from an individual’s employment—where any of these acts would have violated the law if the employee had not been willfully misclassified. Senate Bill 459 also provides that employers will be ordered to post a comprehensive notice of the company’s willful employee misclassification in a prominent area on the website, stating that the employer has changed their practices to prevent future employment violations. This will take effect on January 1, 2012.
California Wage Theft Prevention Act --AB 469
This act requires employers to provide all new non-exempt employees with written notice of specific wage information and information about the company in the employer’s normal language used to communicate job-related information upon hiring. The law also requires that employers provide a notice containing the following information for each employee at the time of hire:
- The rate or rates of payment and basis thereof, whether the employee is paid by the hour, shift, week, day, piece, salary, commission or other form of payment, including any overtime rates as applicable
- Any allowances
- The regular payday, as chosen by the employer in accordance to the law
- The name of the employer, as well as any of the employer’s other “doing business as” names
- The physical address of the employer, or the principal place of business, along with the employer’s mailing address and telephone number
- The name, address, and telephone number of the workers’ compensation insurance carrier used by the employer
- Any other information the Labor Commissioner deems necessary and material
Employers are also required under the act to maintain three years worth of itemized wage statements and records of deductions. This new legislation also increases the criminal and civil penalties available under the existing provisions of the California Labor Code regarding payment of wages. This law takes effect on January 1, 2012.
California Employment Credit Check Law, AB 22
This law bans California employers from requesting consumer credit reports for Californians during the job application process—with exceptions to some California positions. If an employer is planning to obtain a credit report during the hiring process, they must provide the job applicant with a written notice informing them of the specific reasoning for the report, as well as the exception to the law. The exceptions are considered if the individual is applying:
- For a managerial position in certain industries, a position in a financial institution, in law enforcement, and in the California state Justice Department.
- For anyone who has access to people’s credit card account or bank information, Social Security number and date of birth
- For a position where the individual is a signatory on the employers bank account, authorized to enter into financial contracts, sign checks, or who has the ability to transfer money for an employer
- A position that includes access to proprietary information, information that is confidential, or information that involves trade secrets
- A position that involves access to over $10,000 in cash of the employer, a client, or a customer during the workday
- Any position within certain financial institutions
- This law will go into effect on January 1, 2012.
California Transparency in Supply Chains Act of 2010 – SB 657
This law was designed to enforce mandatory disclosure of efforts made by retailers and manufacturers doing business in California to combat the issue of human trafficking and slavery in the supply chains of their entire business operations—allowing consumers to make more informed choices about the products they choose to consume, and the companies they decide to support. This law will go into effect on January 1, 2012.
Gender Non-Discrimination Act - AB 887
The Gender Non-Discrimination Act provides the public accommodation and protection in employment, education and housing for gender identity and expression. The act seeks to clarify the definition of gender in existing California anti-discrimination laws as detailed in the Fair Employment and Housing Act, by expressly including the terms “gender identity” and “gender expression” where currently only the term “gender” appears. This will go into effect in 2012.
Equal Rights Bill – SB 117
Under this law, an employer with a California state contract that is worth more than $100,000 is required to have non-discrimination policies in place for lesbian, gay, bisexual, and transgender employees and their partners and spouses. This will go into effect in 2012.
Practice Area of the Month
At Howard Law, PC, our Costa Mesa criminal defense attorneys are dedicated to protecting the rights of individuals in Southern California and throughout the country with our extensive experience in California state and federal trials—representing individuals accused of a wide variety of criminal charges, from misdemeanors to more serious, violent crimes, including assault, assault with a deadly weapon, battery, petty theft, murder/homicide, sex crimes, burglary, theft, domestic violence, vandalism, drug cases, warrants, DUI, and medical marijuana charges, among other crimes.
"Being accused of a crime can be a frightening and life-altering experience,
and often difficult to navigate."
Our attorneys know that individuals accused of crimes are often treated like criminals regardless of the validity of the accusation. At Howard Law, our highly skilled and dedicated criminal defense attorneys stand by individuals through every step of the legal process, working tirelessly as advocates on behalf of our clients. We engage in clear communication from start to finish in legal process, involving our clients in important decisions along the way, and providing regular updates on the status of the case. At Howard Law, we also handle all parts of cases, counseling our clients whenever it is necessary about non-criminal consequences, such as the loss of a driver's or professional license.
"Timing can be crucial in criminal cases, and the earlier a criminal defense attorney can
take a case—the better they can protect your legal rights and expand your options for resolving the case fairly."
Once individuals realize they are being charged or investigated, our criminal defense team advises that they should only speak to authorities with an attorney present in order to ensure that their rights are protected—especially when asked to participate in any identification, tests, examinations, conformations, or investigations that revolve around the case.
It is also important for individuals to understand that without a private lawyer, their defense is left to a public defender that may not have the necessary time or resources to give their case the attention it deserves.
Our Howard Law criminal defense attorneys have a profound understanding of California and federal law, and are well versed in the high stakes world of the criminal justice system. Our Riverside criminal defense firm offers confidential consultations to all potential clients, so you can discuss your rights and your options with us without any further obligation. Contact us today to set up a meeting, so we can help you on your way toward a swift resolution.
This month’s Howard Law attorney spotlight shines on Gregory Alumit, a member of Howard Law’s consumer-protection litigation group and immigration and nationality law practice.
Gregory's litigation practice focuses primarily on representing homeowners who have been the victims of predatory lending practices. His immigration practice encompasses a diverse array of matters including family and employment-based immigration, nonimmigrant visas, and naturalization. Prior to joining the firm, his practice focused on construction defect, healthcare subrogation, and medical malpractice.
Gregory is admitted to practice before all California and Michigan state courts and the United States District Court for the Central and Southern Districts of California. Gregory is a member of the American Bar Association, Orange County Trial Lawyers Association, Consumer Attorneys of California, American Association for Justice, American Immigration Lawyers Association, Orange County Bar Association, Los Angeles County Bar Association, Philippine American Bar Association, and the University of Michigan Association for Orange and Los Angeles County.
After graduating from the University of Michigan Ann Arbor with a Bachelor of Science degree in Biopsychology and Cognitive Science, Gregory earned his law degree from the University of San Francisco School of Law. While in law school, Gregory served as a board member for the Asian Pacific American Law Student Association and an editor for the Maritime Law Journal.
Gregory was born and raised in Flint, Michigan, and currently resides in Huntington Beach, California. He loves to travel, watch any Detroit and U of M games he can, and spend as much time outdoors as possible.
Recent Howard Law Case Summaries
Personal Injury Settlement:
In re L.B.– The defendant, who was required to yield to oncoming traffic, failed to do so and turned left in an intersection; colliding with our client, LB, causing serious injury. LB was riding his motorcycle when he entered into an intersection where he had a green light and the right of way. LB was rushed to the nearest hospital where he had to undergo multiple surgeries. LB’s recovery has been successful but difficult. He had to re-learn how to use his hands and legs. In addition, he suffered loss of income, medical expenses, and property damage as the motorcycle he was riding was totaled. LB hired Howard Law to represent his interest and to file a lawsuit against the person responsible for the collision. We are happy to report that our office successfully settled the case for the maximum amount of the defendant’s insurance policy.
Wrongful Foreclosure Litigation
In re B.S. – Wells Fargo, BS’s lender, foreclosed on his home and set a trustee sale date of January 6, 2012. When this happened, BS hired Howard Law to protect his interest. Our Southern California Foreclosure Prevention attorneys reviewed his matter and determined that Wells Fargo allegedly violated California’s foreclosure laws. As such, Howard Law filed a lawsuit on BS’s behalf to protect his interest. Howard Law also requested that Wells Fargo postpone its trustee sale of BS’s home because of the pending litigation. Wells Fargo refused to postpone the sale. Because Wells Fargo refused to postpone the sale, our office filed an Ex Parte application with the court requesting a Temporary Restraining Order be issued. On December 28, 2011, the Court held a hearing on the Ex Parte application and granted our request for a Temporary Restraining Order, which prevented the January 6, 2012 trustee’s sale from occurring. Further, the Court set an additional hearing date to evaluate if all parties are ready to participate in a mediation to discuss a potential resolution of the case, including a possible loan modification.
Howard Law in the News
The Howard Law firm continues to participate in a number of distinguished legal associations and charitable organizations throughout Orange County, California. Here are a few of our recent Howard Law firm activities:
- Vincent Howard was recently sworn in as the 3rd Vice President for the Orange County Trial Lawyers Association (OCTLA) on January 14, 2012 at the 49th Annual Installation of Officers & Directors and Judicial Awards Program.
- On January 18, as a member of the board of governors of the Consumer Attorneys of California (CAOC), Vincent Howard will lead the way with other California trial attorneys and hit the streets of downtown Los Angeles to “Stand Up For Justice”—a rally aimed raise awareness about the funding needs of California’s courts, which have endured over $600 million in cuts during the past years of fiscal chaos. The rally’s speakers will include Gov. Gray Davis, CAOC President Niall McCarthy, former Supreme Court Justice Carlos Moreno, Cal Chamber President Alan Zaremberg, AAJ President Gary Paul, Assemblyman Mike Feuer and Joe Dunn, the State Bar of California’s CEO, to name a few.
- December 23rd of last year marked the annual Morgan Drexen, Howard Law Christmas Party, where our team of Howard Law staff and attorneys celebrated the end of a great year and toasted to new beginnings in the 2012!
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The information contained in this Newsletter is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this Newsletter, clients or otherwise, should act or refrain from acting on the basis of any content included in the letter without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this Newsletter contains general information and may not reflect current legal developments, verdicts or settlements. The Firm ("Howard Law") expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this Website. Results of prior successes do not guarantee a similar outcome. The result any one individual client obtains is unique to their specific facts and circumstances regarding their case. This Newsletter is a public resource of general information concerning our firm. It is intended, but not promised or guaranteed, to be correct, complete, and up-to-date.