DOCSLIB.ORG

10 Tips for Counseling California Employers

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
10 Tips for Counseling California Employers SESSION 805 California Calling: 10 Tips for Counseling California Employers Bonita D. Moore Faegre Baker Daniels LLP Los Angeles, California Daniel G. Prokott Faegre Baker Daniels LLP Minneapolis Employment Law Institute – May 2017 Minnesota CLE’s Copyright Policy Minnesota Continuing Legal Education wants practitioners to make the best use of these written materials but must also protect its copyright. If you wish to copy and use our CLE materials, you must first obtain permission from Minnesota CLE. Call us at 800-759-8840 or 651-227-8266 for more information. If you have any questions about our policy or want permission to make copies, do not hesitate to contact Minnesota CLE. All authorized copies must reflect Minnesota CLE’s notice of copyright. MINNESOTA CLE is Self-Supporting A not for profit 501(c)3 corporation, Minnesota CLE is entirely self-supporting. It receives no subsidy from State Bar dues or from any other source. The only source of support is revenue from enrollment fees that registrants pay to attend Minnesota CLE programs and from amounts paid for Minnesota CLE books, supplements and digital products. © Copyright 2017 MINNESOTA CONTINUING LEGAL EDUCATION, INC. ALL RIGHTS RESERVED Minnesota Continuing Legal Education's publications and programs are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distributed and oral programs presented with the understanding that Minnesota CLE does not render any legal, accounting or other professional advice. Attorneys using Minnesota CLE publications or orally conveyed information in dealing with a specific client's or other legal mat- ter should also research original and fully quoted sources of authority. CALIFORNIA CALLING: 10 TIPS FOR COUNSELING CALIFORNIA EMPLOYERS BONNIE MOORE DAN PROKOTT FAEGRE BAKER DANIELS LLP TABLE OF CONTENTS Page A. Introduction .........................................................................................................1 B. Ten Tips ..................................................................................................................1 1. Effectively Handle Hiring ............................................................................1 2. Classify Workers Correctly ..........................................................................6 3. Avoid the Real Lawsuits of California (Wage / Hour Issues) .....................8 4. Don’t Take a Break From Staying on Top of Leave Laws ........................14 5. Yes, There is Another Local Ordinance ....................................................20 6. Understand the Do’s and Don’ts of Employee Conduct Management. .....21 7. Don’t Fall Into a Termination Trap ...........................................................22 8. Resolve to Understand Dispute Resolution Nuances .................................26 9. Navigate Non-Compete Agreements .........................................................27 10. Know Everything Else Unique to California, Or Do Your Best… ............28 A. INTRODUCTION California has many wonderful attributes, and is home to the world’s sixth-largest economy, but it is also one of the most challenging places for an employer to do business because of its many and ever-growing employee-friendly laws, usually accompanied by penalties and/or attorneys’ fee provisions that make ignorance or errors very costly. The ten tips below provide useful road signs for employers navigating in California. B. TEN TIPS 1. EFFECTIVELY HANDLE HIRING. a. Protected Classifications i. California’s Fair Employment and Housing Act (FEHA) prohibits discrimination in employment based on any of the following characteristics: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex (including pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth, breastfeeding), gender, gender identity, gender expression, age, military and veteran status, and sexual orientation. ii. Prohibiting discrimination based on these characteristics should be included in an employee handbook and employers must distribute the Department of Fair Employment and Housing’s (DFEH) Brochure 185 on Sexual Harassment to all employees. Cal. Gov. Code §§ 12900 - 12996 b. Arrests and Convictions i. Employers cannot ask about, or base hiring or other employment decisions on, arrests that have not resulted in convictions (unless they are pending trial), arrests involving successful completion of a diversion program, legally expunged convictions, prior convictions judicially dismissed, or misdemeanor convictions for which probation has been completed. Cal. Lab. Code §§ 432.7 - .8, 433 ii. Employers cannot ask about, or base hiring or other employment decisions on, certain marijuana convictions that are more than two years old. These include convictions for possession of marijuana or paraphernalia, operating a business that displays or sells marijuana, or being under the influence of marijuana. 1 Cal. Lab. Code § 432.8 iii. The Los Angeles “Fair Chance” Ordinance, which became effective January 1, 2017, prohibits employers with at least 10 employees who work two or more hours each week within the City of Los Angeles from asking or requiring disclosure of a job applicant’s criminal history prior to a conditional offer of employment. Los Angeles Municipal Code § 189.000 et seq. (Ordinance No. 184652) a) This includes a prohibition on asking any question that seeks the disclosure of a job applicant’s criminal history, such as including a criminal history “check the box” question on a job application or a question during an initial job interview. b) Los Angeles employers covered by the ordinance also must engage in a “Fair Chance Process” before withdrawing a conditional offer of employment based on the applicant’s criminal history, which includes: (1) a notification and “written assessment” process; (2) providing the applicant five business days to respond; (3) a “written reassessment” if the applicant provides any documentation or information in response; and (4) retaining records of job applications, including the written assessments and reassessments, for three years. c) The Fair Chance Ordinance also prohibits retaliation against an employee or applicant for reporting any alleged violation of the Ordinance or for participating in the Fair Chance Process. d) In addition, covered employers must: (1) state in every advertisement seeking applicants for employment that they will consider qualified applicants with criminal histories; (2) prepare and post a notice informing applicants of the Fair Chance Ordinance’s provisions in a conspicuous place at any location job applicants may visit; and (3) send copies of the posted notice to every labor union with which they have a collective bargaining agreement. e) Generally, there are no exceptions to the ordinance, unless the employer is required by law to inquire about criminal history or prohibited by law from hiring individuals who 2 have committed certain criminal offenses, or the position requires use of a firearm. c. Juvenile Criminal History Subject to certain limited exceptions (e.g., health care facilities may ask an applicant about certain juvenile offense history), employers may not ask applicants to disclose, or utilize as a factor in determining any condition of employment, “juvenile offense history:” information concerning or related to an arrest, detention, process, diversion, supervision, adjudication or court disposition that occurred while the applicant or employee was subject to the process and jurisdiction of a juvenile court. Cal. Lab. Code § 432.7 d. Background Checks i. California law is more stringent than the Fair Credit Reporting Act on information that can be obtained in a Consumer Report. ii. A consumer credit reporting agency shall not report records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedates the report by seven years. Cal. Civil Code § 1786 et seq. iii. In addition to the arrests and convictions limits, as well as anti- discrimination prohibitions, state law prohibits employers from using consumer credit reports unless the applicant is sought for a managerial position or for any position involving access to bank/credit card information, social security numbers, or date of birth. Cal. Lab. Code § 1024.5; Cal. Code Regs. tit. 2 § 11016 iv. California law prohibits the state from releasing certain criminal records to employers not explicitly authorized by statute to receive such records, and prohibits those employers from receiving the records. Cal. Lab. Code § 432.7; Cal. Penal Code § 11105 e. E-Verify i. Employers are prohibited from using the E-Verify system to check the employment authorization status of existing employees or applicants who have not received an offer of employment, except 3 as required by federal law or as a condition of receiving federal funds. ii. Employers have the right to utilize E-Verify, in accordance with federal law, to check the employment authorization status of a person who has been offered employment. iii. If the employer receives any notification issued by the SSA or the DHS containing information specific to the employee’s E-Verify case or any tentative non-confirmation notice, which indicates the information entered in E-Verify did not
Load more

Recommended publications
  • Civil Code Section 163.5: Solution Or Enigma Donald W
    Hastings Law Journal Volume 9 | Issue 3 Article 3 1-1958 Civil Code Section 163.5: Solution or Enigma Donald W. Curran Kenneth W. Rosenthal Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Donald W. Curran and Kenneth W. Rosenthal, Civil Code Section 163.5: Solution or Enigma, 9 Hastings L.J. 291 (1958). Available at: https://repository.uchastings.edu/hastings_law_journal/vol9/iss3/3 This Comment is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. COMMENTS CIVIL CODE SECTION 163.5: SOLUTION OR ENIGMA? By DONALD W. CuRRAN* and KENNETH W. ROSENTHAI.* Nowhere are the important California legislative changes of 1957 more striking than in the field of community property. The legislature brought about a basic change in community property law by enactment of section 163.5 of the Civil Code: "All damages, special and general, awarded a married person in a civil action for personal injuries, are the separate property of such married person."' It is the purpose of this comment to present a brief discussion of the stat- ute's probable effect, first on the law of negligence and second, on the law of damages. Effect of Section 163.5 on Negligence as Between Spouses Prior to the enactment of Civil Code Section 163.5, California courts had held recovery for personal injuries of either spouse to
    [Show full text]
  • A Guide to Employment Law for California Workers Marci Seville Golden Gate University School of Law, [email protected]
    Golden Gate University School of Law GGU Law Digital Commons Women’s Employment Rights Clinic Centers & Programs 5-1997 Know Your Rights: A Guide to Employment Law for California Workers Marci Seville Golden Gate University School of Law, [email protected] Maria Blanco Whitney Gabriel Anne Yen Follow this and additional works at: http://digitalcommons.law.ggu.edu/werc Part of the Labor and Employment Law Commons, and the Law and Gender Commons Recommended Citation Seville, Marci; Blanco, Maria; Gabriel, Whitney; and Yen, Anne, "Know Your Rights: A Guide to Employment Law for California Workers" (1997). Women’s Employment Rights Clinic. Paper 1. http://digitalcommons.law.ggu.edu/werc/1 This Article is brought to you for free and open access by the Centers & Programs at GGU Law Digital Commons. It has been accepted for inclusion in Women’s Employment Rights Clinic by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Know Your Rights A Guide to Employment Law for California Workers Women's Employment Rights Clinic Golden Gate University School of Law May 1997 Editors: Maria Blanco, Whitney Gabriel, Marci Seville, and Anne Yen I I Know Your Rights A Guide to Employment Law for California Workers Women's Employment Rights Clinic Golden Gate University School of Law May 1997 Editors: Maria Blanco, Whitney Gabriel, Marci Seville, and Anne Yen ACKNOWLEDGEMENTS Women's Employment Rights Clinic faculty, students, and staff who contributed their work to this handbook: Marci Seville, Director
    [Show full text]
  • Debating the Field Civil Code 105 Years Late
    Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 1-2000 Debating the Field Civil Code 105 Years Late Andrew P. Morriss Texas A&M University School of Law, [email protected] Scott J. Burnham James C. Nelson Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Law Commons Recommended Citation Andrew P. Morriss, Scott J. Burnham & James C. Nelson, Debating the Field Civil Code 105 Years Late, 61 Mont. L. Rev. 371 (2000). Available at: https://scholarship.law.tamu.edu/facscholar/172 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. DEBATING THE FIELD CIVIL CODE 105 YEARS LATE Andrew P. Morriss,* Scott J. Burnham* and Hon. James C. Nelson** In 1895, Montana adopted a version of the Field Civil Code - a massive law originally drafted by New York lawyer David Dudley Field in the early 1860s. The Civil Code (and its companion Political, Penal, and Procedural Codes) were adopted without debate, without legislative scrutiny, and without Montanans having an opportunity to grasp the enormity of the changes the Codes brought to the Montana legal system. In sponsoring this debate over whether to repeal the Civil Code, the Montana Law Review is finally giving Montana the opportunity to examine the merits of the Civil Code that she was denied 105 years ago.
    [Show full text]
  • FLO & EDDIE, INC. V. PANDORA MEDIA, INC., No. 15
    FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FLO & EDDIE, INC., a No. 15-55287 California corporation, individually and on behalf of D.C. No. all others similarly situated, 2:14-cv-07648-PSG-RZ Plaintiff-Appellee, v. ORDER REQUESTING CERTIFICATION TO PANDORA MEDIA, INc., a THE CALIFORNIA Delaware corporation, SUPREME COURT Defendant-Appellant. Filed March 15, 2017 Before: Stephen Reinhardt and Richard A. Paez, Circuit Judges, and Paul L. Friedman,* District Judge. Order * The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. 2 FLO & EDDIE, INC. V. PANDORA MEDIA, INC. SUMMARY** Certification to California Supreme Court The panel certified the following questions of state law to the California Supreme Court: 1. Under section 980(a)(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold to the public before 1982 possess an exclusive right of public performance? 2. If not, does California’s common law of property or tort otherwise grant copyright owners of pre-1972 sound recordings an exclusive right of public performance? ORDER We certify the questions set forth in Part II of this order to the California Supreme Court. All further proceedings in this case are stayed pending final action by the California Supreme Court, and this case is withdrawn from submission until further order of this court. I. Administrative Information We provide the following information in accordance with Rule 8.548(b)(1) of the California Rules of Court. ** This summary constitutes no part of the opinion of the court.
    [Show full text]
  • Support and Property Rights of the Putative Spouse Florence J
    Hastings Law Journal Volume 24 | Issue 2 Article 6 1-1973 Support and Property Rights of the Putative Spouse Florence J. Luther Charles W. Luther Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Florence J. Luther and Charles W. Luther, Support and Property Rights of the Putative Spouse, 24 Hastings L.J. 311 (1973). Available at: https://repository.uchastings.edu/hastings_law_journal/vol24/iss2/6 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. Support And Property Rights Of The Putative Spouse By FLORENCE J. LUTHER* and CHARLES W. LUTHER** Orequire a "non-husband" to divide his assets with and to pay support to a "non-wife" may, at first glance, appear doctrinaire. How- ever, to those familiar with the putative spouse doctrine as it had de- veloped in California the concept should not be too disquieting. In 1969 the California legislature enacted Civil Code sections 4452 and 4455 which respectively authorize a division of property1 and perma- nent supportF to be paid to a putative spouse upon a judgment of an- nulment.' Prior to the enactment of these sections, a putative spouse in California was given an equitable right to a division of jointly ac- quired property,4 but could not recover permanent support upon the termination of the putative relationship.5 This article considers the ef- fect of these newly enacted sections on the traditional rights of a puta- tive spouse to share in a division of property and to recover in quasi- contract for the reasonable value of services rendered during the puta- * Professor of Law, University of the Pacific, McGeorge School of Law.
    [Show full text]
  • Confidentiality of Medical Information Act CALIFORNIA CIVIL CODE SECTIONS 56-56.16
    Confidentiality of Medical Information Act CALIFORNIA CIVIL CODE SECTIONS 56-56.16 56. This part may be cited as the Confidentiality of Medical Information Act. 56.05. For purposes of this part: (a) "Authorization" means permission granted in accordance with Section 56.11 or 56.21 for the disclosure of medical information. (b) "Authorized recipient" means any person who is authorized to receive medical information pursuant to Section 56.10 or 56.20. (c) "Confidential communications request" means a request by a subscriber or enrollee that health care service plan communications containing medical information be communicated to him or her at a specific mail or email address or specific telephone number, as designated by the subscriber or enrollee. (d) "Contractor" means any person or entity that is a medical group, independent practice association, pharmaceutical benefits manager, or a medical service organization and is not a health care service plan or provider of health care. "Contractor" does not include insurance institutions as defined in subdivision (k) of Section 791.02 of the Insurance Code or pharmaceutical benefits managers licensed pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code). (e) "Endanger" means that the subscriber or enrollee fears that disclosure of his or her medical information could subject the subscriber or enrollee to harassment or abuse. (f) "Enrollee" has the same meaning as that term is defined in Section 1345 of the Health and Safety Code. (g) "Health care service plan" means any entity regulated pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code).
    [Show full text]
  • Drafting and Enforcement of Guaranties
    DRAFTING AND ENFORCEMENT OF GUARANTIES: The Enforcement of Payment Guaranties, “Springing Guaranties”, Completion Guaranties, and “Partial” Guaranties under California Law By DENNIS B. ARNOLD AMERICAN COLLEGE OF MORTGAGE ATTORNEYS 43rd ANNUAL MEETING NEWPORT BEACH, CA September 24, 2016 ` © Copyright 2016 by Dennis B. Arnold. All rights reserved. DRAFTING AND ENFORCEMENT OF GUARANTIES: The Enforcement of Payment Guaranties, “Springing Guaranties”, Completion Guaranties, and “Partial” Guaranties under California Law I. INTRODUCTION & SOURCES OF LAW IMPACTING GUARANTORS 1 II. CONSIDERATION 4 III. ANTI-DEFICIENCY PROTECTIONS: DEBTORS AND GUARANTORS 5 IV. SURETYSHIP DEFENSES 21 V. WAIVERS OF SURETYSHIP RIGHTS AND DEFENSES: CIVIL CODE SECTION 2856 24 VI. CONTINUING GUARANTY 37 VII. CREDITOR’S DUTY OF DISCLOSURE 40 VIII. COMPLETION GUARANTIES 41 IX. RECOURSE GUARANTIES, SPRINGING GUARANTIES & INDEMNITIES 42 X. SUBROGATION AND REIMBURSEMENT RIGHTS OF GUARANTORS UNDER CALIFORNIA LAW 53 XI. PARTIAL GUARANTIES 58 XII. THIRD-PARTY COLLATERAL 64 i I. INTRODUCTION & SOURCES OF LAW IMPACTING GUARANTORS A. General Matters 1. Guarantees are frequently utilized, somewhat fragile and highly technical, and are subject to a broad arsenal of statutory and judge-made rights and defenses which may, unless effectively waived, undermine the efficacy of a guaranty. 2. Terminology (a) “Surety” (defined in Cal. Civil Code § 2787). The statutory definition includes both one who promises to pay the debts of another as well as one who simply pledges “property” to secure the debts of another. Section 2787 states: “The distinction between sureties and guarantors is hereby abolished. The terms and their derivatives, wherever used in this code or in any other statute or law of this state now in force or hereafter enacted, shall have the same meaning as defined in this section.
    [Show full text]
  • Codification and the California Mentality Lewis Grossman
    Hastings Law Journal Volume 45 | Issue 3 Article 7 1-1994 Codification and the California Mentality Lewis Grossman Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Lewis Grossman, Codification and the California Mentality, 45 Hastings L.J. 617 (1994). Available at: https://repository.uchastings.edu/hastings_law_journal/vol45/iss3/7 This Essay is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Essay Codification and the California Mentality by LEwIS GROSSMAN* Introduction: The Pomeroy Paradox On August 8, 1878, John Norton Pomeroy, the principal instruc- tor at the newly established Hastings College of Law in San Francisco, delivered the school's inaugural address. It was the culminating mo- ment of an exhilarating decade for California's legal profession. Six years earlier, in 1872, California had moved to the forefront of American legal reform by becoming one of the first states in the nation to codify its complete body of laws. The legislature had en- acted the California Code, which included new Civil, Criminal, and Political Codes, as well as a revised Code of Civil Procedure. Com- mittees of prominent attorneys had drafted the Code, basing it largely on the work of the illustrious New York jurist, David Dudley Field.' The centerpiece of the California Code was the Civil Code, which consolidated all of the state's statutory and common-law rules gov- erning private relations (corporations, property, torts, contracts, and domestic matters) into one meticulously arranged volume.2 Only * Associate, Covington & Burling, Washington, D.C.
    [Show full text]
  • Unconscionability As a Sword: the Case for an Affirmative Cause of Action
    Unconscionability as a Sword: The Case for an Affirmative Cause of Action Brady Williams* Consumers are drowning in a sea of one-sided fine print. To combat contractual overreach, consumers need an arsenal of effective remedies. To that end, the doctrine of unconscionability provides a crucial defense against the inequities of rigid contract enforcement. However, the prevailing view that unconscionability operates merely as a “shield” and not a “sword” leaves countless victims of oppressive contracts unable to assert the doctrine as an affirmative claim. This crippling interpretation betrays unconscionability’s equitable roots and absolves merchants who have already obtained their ill-gotten gains. But this need not be so. Using California consumer credit law as a backdrop, this Note argues that the doctrine of unconscionability must be recrafted into an offensive sword that provides affirmative relief to victims of unconscionable contracts. While some consumers may already assert unconscionability under California’s Consumers Legal Remedies Act, courts have narrowly construed the Act to exempt many forms of consumer credit. As a result, thousands of debtors have remained powerless to challenge their credit terms as unconscionable unless first sued by a creditor. However, this Note explains how a recent landmark ruling by the California Supreme Court has confirmed a novel legal theory that broadly empowers consumers—including debtors—to assert unconscionability under the State’s Unfair Competition Law. Finally, this Note argues that unconscionability’s historical roots in courts of equity—as well as its treatment by the DOI: https://doi.org/10.15779/Z382B8VC3W Copyright © 2019 California Law Review, Inc. California Law Review, Inc.
    [Show full text]
  • Of Publicity in California: Is Three Really Greater Than One?
    The Right(s) of Publicity in California: Is Three Really Greater Than One? Stephen M. Lobbin* I. INTRODUCTION Ours is a country in love with its stars. Whether they exist in the world of music, sports, movies, television, or even politics, people who have achieved a certain level of notoriety in these fields receive unparalleled attention from the public. While the focus of public attention is largely on their professional endeavors, many "celebrities" are also regularly inundated with inquiries into their personal lives, and asked to give their "endorsement" to various products and services.' Most celebrities gladly welcome the chance to give out endorsements. While celebrities ostensibly gain personal satisfaction by lending their opinion and approval to a product or service because it may aid the public in making economic choices, endorsements can also be very lucrative for some celebrities.2 Public interest in the * Editor, UCLA Law Review. J.D., UCLA School of Law, 1995; B.S., The University of Virginia, 1991. This Comment was the winner of the 1994 Nathan Burkan Memorial Competition for UCLA. I would like to thank Professor John Wiley for suggesting this topic and for his valuable guidance; Keith Jaasma, Jason Freelin, Jennifer Rogers, Debbie Spander, and Greg Jones for their editing, advice, and support. This Comment is dedicated to my family, both Lobbin and Bari, and especially to little Vanessa Lauren Johnson. The idea of "endorsement" includes here any use of the celebrity's persona, such as a name or photograph, to indicate approval from one with whom the public can identify, whether to help sell a product or otherwise.
    [Show full text]
  • Release Agreement (CA)
    Resource ID: W-010-1866 Release Agreement (CA) TIMOTHY B. MCGINITY, ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP, WITH PRACTICAL LAW COMMERCIAL TRANSACTIONS Search the Resource ID numbers in blue on Westlaw for more. This is a generic form of release agreement under California law for use when parties to a commercial contract are terminating or have terminated the contract (or a portion of it) and have agreed to deliver a mutual release of claims. This Standard Document has integrated notes with important explanations and drafting tips. DRAFTING NOTE: READ THIS BEFORE USING DOCUMENT When a commercial contract is expiring fee or one or more obligations that has or if it is terminated before its natural not been satisfied when the termination expiration, the parties sometimes enter into agreement is executed). a termination agreement to: When termination does not become Settle actual or potential claims. effective until a future date, the parties are Tie up loose ends. unlikely to execute and deliver a release that is effective before termination. Instead, they In many of these situations, it is likely that commonly agree to: one or both of the parties: Execute and deliver releases on the future May claim or has claimed one or more termination date. breaches by the other party. Condition the effectiveness of the release Is concerned that the facts and included in the termination agreement circumstances leading to termination on the satisfaction of specified conditions may give rise to a breach claim by the or covenants (such as delivery of a opposing party. termination payment). Therefore, when entering into a termination Before using a conditional release, the agreement, contracting parties often parties should consider whether the include a release of claims in the termination conditional release is enforceable under agreement.
    [Show full text]
  • California's Spousal Fiduciary Duty and Financial Disclosure Obligations
    Loyola of Los Angeles Law Review Volume 47 Number 3 Spring 2014 Article 4 Spring 2014 Do Ask, Do Tell: California's Spousal Fiduciary Duty And Financial Disclosure Obligations Lauren Rakow J.D. Candidate, May 2014, Loyola Law School Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Lauren Rakow, Do Ask, Do Tell: California's Spousal Fiduciary Duty And Financial Disclosure Obligations, 47 Loy. L.A. L. Rev. 771 (2014). Available at: https://digitalcommons.lmu.edu/llr/vol47/iss3/4 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. DO ASK, DO TELL 10/19/2014 10:51 AM DO ASK, DO TELL: CALIFORNIA’S SPOUSAL FIDUCIARY DUTY AND FINANCIAL DISCLOSURE OBLIGATIONS Lauren Rakow This Note explores the inconsistencies between the Family Code and the Corporations Code addressing whether spouses are required to disclose material information. These inconsistencies have created uncertainty regarding what financial information must be disclosed between spouses, and whether it must be disclosed “upon request” or “without demand.” The Note first analyzes the history of both Family Code Section 721 and Corporations Code Sections 16403, 16404, and 16405 to better understand the uncertainty, and offers a solution to remedy the statutory inconsistencies. The Note concludes that in order to eliminate this uncertainty, the California legislature should amend Family Code Section 721 to clarify what conduct constitutes a breach of fiduciary duty, the type of information that must be disclosed between spouses, and whether information must be disclosed “upon request” or “without demand.” J.D.
    [Show full text]