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Month: October 2020

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Exempt vs Non-Exempt

Topics: Employment Law

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There are two types of employees: exempt and non-exempt.  This sounds like the setup to a joke, but classification actually has some very important distinctions in how the rules of employment law apply employees.  What does exempt and non-exempt even mean?  What are employees being exempted from?  How is exempt or non-exempt determined?  Understanding these questions can help ensure that workers are not being taken advantage of by their employers.  Violations of classification can be pursued for damages under employment law. Exempt and non-exempt refers to the Fair Labor Standards Act (FLSA), a law passed in 1938 addressing the abuses suffered by workers at the hands of employers.  The original FLSA set in to law the eight-hour day and 40-hour workweek America continues to see as normal today.  The FLSA provides requirements for minimum wages, overtime pay, and child labor.  The law, however, does not apply to all workers.  FLSA protections only apply to employees and are not extended to independent contractors.  And protections do not apply to all employees.  Employees protected by FLSA provisions are "non-exempt" from FLSA laws while employees not protected are "exempt" from FLSA laws. Non-exempt employees are entitled to a minimum wage, currently (California, 2020) $13/hr for businesses with more than 25 employees and $12/hr for business with 25 employees or fewer.  Those figures will rise by $1 every year on January 1 until they reach $15/hr.  Non-exempt employees are also entitled to overtime pay:
  • After 8 hours of work in 1 day - 1.5 times hourly rate
  • After 40 hours of work in 1 week - 1.5 times hourly rate
  • After 12 hours of work in 1 day - 2 times hourly rate
  • After 8 hours of work in 1 day on the 7th consecutive day of work - 2 times hourly rate
Non-exempt employees are often given additional benefits not provided under the FLSA, including rest and meal breaks.  Non-exempt workers in California are required to have at least 30 minutes of uninterrupted meal breaks for every 5 hours of work.  Because meal breaks are unpaid, workers cannot be required to work or remain on location.  Employers also must provide non-exempt employees with at least 10 minutes of uninterrupted break time for every 4 hours of work. Exempt employees, however, are not entitled to these same benefits.  Employers are not required to provide exempt employees with overtime pay, rest breaks, or meal breaks.  Exempt employees are not paid by the hour, but for the work they accomplish.  They have a set salary, which must be at least twice the minimum wage for full time employment, but paying an employee on a salary does not automatically classify the employee as exempt; exempt workers must typically meet other guidelines.  In California, employees typically classified as exempt include managers, administrators, professionals (such as doctors and lawyers), computer professionals, and salespersons.  Each category has specific guidelines that must be met to be considered exempt.  For overtime laws, the State of California Department of Industrial Relations website contains all employee classifications that are exempt. Exempt workers who believe they may be incorrectly classified and are entitled to overtime pay should contact an experienced employment law attorney.  The Law Offices of Scott Warmuth can help you determine if you should be compensated for overtime work and receive all of the benefits provided to exempt workers.  Call us today at 888-517-9888 for a free consultation.
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San Gabriel Valley Master Key – Episode 8 – Sandy Roscoe

Topics: San Gabriel Valley Master Key

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[vc_row][vc_column][vc_column_text]Episode 8 of the San Gabriel Valley Master Key podcast, co-hosted by Attorney Scott Warmuth, was officially released today!  This episode features Sandy Roscoe, Executive Director of the San Gabriel Chamber of Commerce. Episode Description:  Sandy Rosco is the Executive Director of the San Gabriel Chamber of Commerce. She loves and is passionately committed to helping small businesses grow. After Sandy Rosco lost her sister she was hired by the Chamber of Commerce which helped her find new footing. In 2006 she helped start the Business Expo that is now held every year free to the public. Since then she has also started the Education and Family Expo and Tasty Tuesday where members of the Chamber are invited to come together at a fellow member’s small business restaurant. Through her commitment to the community of San Gabriel Sandy Rosco has found her footing in a purpose that honors her sister. Available now on Spotify, YouTube, Google Podcasts, Apple Podcasts, and iHeartRADIO!  Visit the San Gabriel Valley Master Key website for more information.[/vc_column_text][/vc_column][/vc_row]
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Going and Coming Rule in Workers’ Compensation Claims

Topics: Auto Accident, Workers' Compensation

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[vc_row][vc_column][vc_column_text]The Going and Coming Rule is a legal concept that dictates whether a workers' compensation claim is available to workers injured during a commute to and from work.  In general, workers traveling to and from work are not eligible to claim workers' compensation benefits.  While it could be argued that commuting to work is technically a work-related function, established laws and precedents make it clear that using that specific argument will not be successful.  However, there are actual exceptions to the going and coming rule that can allow an injured worker to seek benefits. Driving is a work duty - If it is your job to drive a vehicle around and you are involved in an accident, you are eligible for workers' compensation benefits.  Going and coming only applies if you are commuting to and from work.  If you are working when an injury occurs, you are eligible.  This exception affects any workers who move around a lot for their job, such as delivery drivers, truckers, postal workers, police officers, and public transit workers.  If you are performing your job, you are not subject to the going and coming rule. You are traveling between work sites - If you have been told to travel from one job site to another, your commute is exempt from the coming and going rule.  A fast food worker told to cover a shift in a different store facing a staff shortage, an IT worker assigned to set up a router at a residence, or a plumber traveling from repair to repair, would all be examples of this exception.  Essentially, any worker told by a supervisor to travel to another location for any job duty is exempt from the going and coming rule. You are on a work trip - Workers traveling for the job are exempt from the rule at all times, not just during a commute.  The trip to the airport, the flight to your destination, the drive to the hotel, the drive to the work site, and the drives back to the hotel and airport would all be exempt.  Any injury suffered while traveling related to work during the extent of a business trip would be eligible for benefits.  Travel outside of working hours for personal reasons, say to a golf course or museum, might also be exempt from the going and coming rule, but it is less certain. You were tasked with an errand - If at the end of your shift a supervisors hands you a bank deposit bag and asks you to stop by the bank on your way home, you have been tasked with a "special mission".  Though you may be technically off the clock and doing your boss a favor, if you are involved in an accident on the way to the bank, you would be eligible for workers' compensation benefits.  Special missions can be critical to a business or simple mundane requests, but if you are injured while performing a work errand, you can seek benefits. Essentially, if you are injured in the course of your work duties during a commute, you are likely eligible for workers' compensation.  That said, insurance companies may still try to deny a workers' compensation claim under the going and coming rule if they can.  A dedicated workers' compensation law firm can examine your claim and fight to ensure that you properly receive benefits.  The Law Offices of Scott Warmuth offers free consultations to evaluate your workers' compensation claim.  Call us today at 888-517-9888.  If we do not win your case you will not be charged for our services.[/vc_column_text][/vc_column][/vc_row]
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California Minimum Liability Requirements Among Lowest in the U.S.

Topics: Auto Accident

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[vc_row][vc_column][vc_column_text]Car crash minimum liability insurance requirements across the country are scattershot.  Some states require certain types of insurance that others do not.  Some states require much higher policy limits than some others.  Two states, New Hampshire and Virginia, do not even require car insurance, though at-fault drivers are still considered financially responsible for the damages caused.  For a state as big and populous as California, it may surprise people to learn that we have one of the weakest minimum liability insurance policy requirements in the country.  Low requirements for minimum coverage put drivers at risk. California requires drivers to carry an insurance policy that cover $15,000 per person, $30,000 per accident, and $5,000 property damage.  It does not require uninsured/underinsured motorist coverage.  For minimum coverage limits, this places California almost dead last in the country.  See the chart below for required coverage comparisons in 2020:
State Per Person Per Accident Property Damage UM/UIM Coverage
Alabama 25000 50000 25000
Alaska 50000 100000 25000
Arizona 15000 30000 10000
Arkansas 25000 50000 25000
California 15000 30000 5000
Colorado 25000 50000 15000
Connecticut 25000 50000 25000 25000/50000
Delaware 25000 50000 10000
Florida* 10000
Georgia 25000 50000 25000
Hawaii 20000 40000 10000
Idaho 25000 50000 15000
Illinois 25000 50000 20000 25000/50000
Indiana 25000 50000 25000
Iowa 20000 40000 15000
Kansas 25000 50000 25000 25000/50000
Kentucky 25000 50000 25000
Louisiana 15000 30000 25000
Maine 50000 100000 25000 50000/100000
Maryland 30000 60000 15000 30000/60000/15000
Mass. 20000 40000 5000 20000/40000
Michigan 20000 40000 10000
Minnesota 30000 60000 10000 25000/50000
Mississippi 25000 50000 25000
Missouri 25000 50000 25000 25000/50000
Montana 25000 50000 20000
Nebraska 25000 50000 25000 25000/50000
Nevada 25000 50000 20000
New Hampshire** 25000 50000 25000 25000/50000/25000
New Jersey* 5000
New Mexico 25000 50000 10000
New York 25000 50000 10000 25000/50000
North Carolina 30000 60000 25000 30000/60000/25000
North Dakota 25000 50000 25000 25000/50000
Ohio 25000 50000 25000
Oklahoma 25000 50000 25000
Oregon 25000 50000 20000 25000/50000
Pennsylvania 15000 30000 5000
Rhode Island 25000 50000 25000
South Carolina 25000 50000 25000 25000/50000/25000
South Dakota 25000 50000 25000 25000/50000
Tennessee 25000 50000 15000
Texas 30000 60000 25000
Utah 25000 65000 15000
Vermont 25000 50000 10000
Virginia** 25000 50000 20000 25000/50000/20000
Washington 25000 50000 10000
Washington, D.C. 25000 50000 10000 25000/50000/5000
West Virginia 25000 50000 25000 25000/50000/25000
Wisconsin 25000 50000 10000 25000/50000
Wyoming 25000 50000 20000

*Florida and New Jersey are no-fault states that require a different type of car insurance called personal injury protection often required in no-fault insurance states. **New Hampshire and Virginia do not require car insurance, but for insurance that is offered, these are the minimum requirements.  Drivers are still financially responsible for any damages they cause.

As the chart shows, California and Pennsylvania are the only states with red across the board, but Pennsylvania is a no-fault state that also requires personal injury protection coverage.  Of the states that take into consideration the fault of the driver, California ranks at the bottom for all categories.  Put simply, minimum insurance levels may not cover all the medical bills and other costs associated with even a moderate crash.  Uninsured/underinsured motorist (UM/UIM) insurance could help offset some of those costs but is not required in California. The Law Offices of Scott Warmuth strongly recommends that California drivers obtain UM/UIM insurance to protect themselves from other drivers who only maintain minimum liability coverages or have no insurance at all.  UM/UIM is generally quite affordable and can make a huge difference.  Our auto accident attorneys have encountered too many clients who were badly injured in a crash but could not receive fair compensation because they did not have UM/UIM insurance. If you have been injured in an auto accident in California, call our offices today at 888-517-9888 to speak with an injury expert about your case.  All initial consultations are free of charge.  We guarantee that if we do not win your case we will not charge you for our services.[/vc_column_text][/vc_column][/vc_row]
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Supreme Court Will Hear Cases on Remain in Mexico Policy, Border Wall

Topics: Immigration

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[vc_row][vc_column][vc_column_text]Even with an election only two weeks away, legal challenges involving immigration law under the Trump administration continue to work their way through the courts.  On Monday, the U.S. Supreme Court announced that it will soon hear two cases related to controversial immigration policies: the "Remain in Mexico" asylum rule and the funding of construction of a border wall on the United States' southern border with Mexico.  Though the Supreme Court has chosen to hear these two cases, both cases could be considered moot depending on the outcome of the presidential election. In March, the 9th Circuit U.S. Court of Appeals issued an injunction against the Trump administration, preventing it from continuing the Remain in Mexico policy in California and Arizona  However, before the injunction could take effect, the Supreme Court ruled the policy could be enforced as the case against the policy, officially known as Migrant Protection Protocols, was heard in heard in court.  The plaintiffs in this case (Wolf v. Innovation Law Lab) are asylum-seekers who were forced to wait in Mexico for a decision on their asylum claims. The border wall case is not really about the legality of the construction of the wall itself, but how the wall is being paid for.  The Trump administration was unable to secure funding for the border wall through Congress, instead opting to transfer funds from projects appropriated to several military projects.  The transfer of funds was originally blocked by a district court judge and upheld by an appellate court, but the Supreme Court lifted that injunction as well.  The case is Trump v. Sierra Club.  Though the border wall is the reason for the court case, the arguments are more related to the power of government than immigration specifically. Immigration law is at a crossroads in the United States of America, but no matter which path is taken, the Law Offices of Scott Warmuth will help its clients meet their immigration goals.  We offer 100% free initial consultations, so call us today at 888-517-9888.[/vc_column_text][/vc_column][/vc_row]
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San Gabriel Valley Master Key – Episode 7 – Jeff Julian

Topics: San Gabriel Valley Master Key

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[vc_row][vc_column][vc_column_text]Episode 7 of the San Gabriel Valley Master Key podcast, co-hosted by Attorney Scott Warmuth, was officially released today!  This episode features Jeff Julian, Head Coach at the Rose Bowl Aquatic Center. Episode Description:  Jeff Julian is the head coach at the Rose Bowl Aquatics Center. He helped coach Jason Lezak before the 2008 Olympics in Beijing. In 2015 Jeff Julian was diagnosed with stage four lung cancer. While going to different doctors he was losing hope because all they saw a dead man and wouldn’t consider a treatment beyond the standard care. He about lost all hope when he finally found a doctor who gave him hope and helped put him in a clinical trial for immunotherapy drugs. Now with the cancer gone he shares his story of hope and enjoys life even more than before.“  To everyone going through a tough time, I want to tell you to never give up hope,” Jeff says. “Hope is never a bad thing. Hope is the foundation on which we get back up and the belief that something better can come tomorrow.” Available now on Spotify, YouTube, Google Podcasts, Apple Podcasts, and iHeartRADIO!  Visit the San Gabriel Valley Master Key website for more information.[/vc_column_text][/vc_column][/vc_row]
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Naturalizing with a Criminal Record

Topics: Criminal Defense, Immigration

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[vc_row][vc_column][vc_column_text]The option of becoming a U.S. citizen becomes available to most immigrants who have possessed a green card for five years or three years if the green card was obtained via marriage.  One question our team of immigration experts often receives asks whether a green card holder who has been arrested or has a criminal record can still apply for U.S. citizenship through the naturalization process.  The answer will likely depend on the circumstances of the arrest and/or conviction. According to current immigration law, any applicant for citizenship must be considered to have "good moral character".  Good moral character is a relatively open term and is not clearly defined.  In most cases it is assumed that a citizenship applicant has, by default, good moral character, but certain actions can detract from that consideration.  Too many negative actions could preclude a judgment of good moral character.  And some negative actions could carry more weight than others.  An immigrant convicted of assault would be less likely to be considered of good moral character than an immigrant convicted of speeding, for example. Immigration officials will conduct a background check of anyone applying for naturalization.  The background check will include checking your name and any aliases (such as your maiden name) against several criminal databases locally, federally, and even internationally.  Should the background check turn up any negative information, immigration officials will have to decide whether they consider you of good moral character. The uncertainty of the good moral character test is a very good reason to seek the help of an experienced immigration law firm.  The Law Offices of Scott Warmuth can help green card holders navigate the process of naturalization and identify any potential roadblocks, and address them, in advance.  We offer free consultations for our immigration services, so call us today at 888-517-9888 to learn more.[/vc_column_text][/vc_column][/vc_row]
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What is Probation?

Topics: Criminal Defense

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[vc_row][vc_column][vc_column_text]Probation is a legal punishment often given to first-time, non-violent offenders who plead guilty to or are convicted of a crime.  Probation allows for eligible offenders to minimize jail time by complying with certain rules and conditions imposed by the court.  The terms and length of probation can vary from case to case and are contingent on following all of the prescribed terms while not committing additional crimes.  Violating the terms of probation can land a defendant in jail, sometimes up to the maximum jail sentence allowed by the law.  Criminal defense lawyers will usually seek probation whenever possible to keep their clients from serving time behind bars. There are two main types of probation: summary probation and formal probation.  Summary probation is more common for crimes considered less serious and does not have supervisory requirements.  Formal probation is for more serious crimes and felonies and requires regular meetings with a probation officer.  Formal probation is more restrictive than summary probation.  Both forms of probation are conditional, and typical conditions of probation can include:
  • Attending court appearances
  • Community service
  • Not committing additional crimes
  • Not meeting with certain individuals or groups
  • Not visiting certain locations
  • Obtaining permission before traveling out of the state
  • Abstaining from drugs and/or alcohol
  • Being tested for drugs and/or alcohol
  • Attending substance abuse prevention programs
  • Restitution
The terms of probation are typically specific to the circumstance of the crime, with defendants needing to agree to stop any actions that could lead to a repeat of the crime.  Defendants charged with DUI will likely be required to attend substance abuse programs but will not likely be prevented from meeting with certain groups as a part of their probation.  Terms of probation need to be adhered to for the length of the probation period. If the judge determines that the terms of probation were not kept, punishment can result in additional terms of probation, extended length of the probation period, fines, and the revocation of probation, which may land a defendant in jail.  Criminal defense attorneys can assist defendants at revocation hearings. Defendants facing a potential jail sentence can reduce their time behind bars by seeking probation.  As every situation is unique, it is impossible to tell whether or not any individual charge with a crime will receive probation.  The Law Offices of Scott Warmuth's team of criminal defense attorneys work on our clients' behalf to pursue the best options for everyone.  We can help you seek probation, meet the requirements of probation, and even advocate for early release under the right circumstances.  For a free legal defense consultation, call us today at 888-517-9888.[/vc_column_text][/vc_column][/vc_row]
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USCIS Fee Increases Blocked by Federal Judge

Topics: Immigration

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[vc_row][vc_column][vc_column_text]It is hard to keep up with all of the news that is happening.  Several recent immigration stories have more or less fallen through the cracks. One such story is a judicial ruling with a positive outcome for immigrants.  The USCIS rule that included dramatic fee increases that was scheduled to take effect on October 2 was stopped by a federal judge.  U.S. District Judge Jeffrey S. White of the Northern District of California placed a preliminary injunction on the rule on September 29.  The injunction prevents the rule from being implemented until the legal case challenging the rule is heard in court. Judge White issued the injunction after coming to the conclusion that the legal challenge brought by the Immigrant Legal Resource Center and other non-profit plaintiffs was likely to succeed on the merits and met other qualifying requirements.  Interestingly, one of the arguments brought by the plaintiffs is that the political appointments of Kevin McAleenan and Chad Wolf as acting Secretary of Homeland Security were not lawful under the Homeland Security Act and therefore could not implement the rule that increased immigration fees.  This argument could potentially be used to challenge other immigration rules that have gone in to effect under its current leadership. The now postponed rule would have increased the cost to process certain immigration forms, introduced a fee for asylum applicants, increase the cost of becoming a U.S. citizen, and increased the amount of time it takes for premium processing.  This ruling is likely to be appealed and the injunction could potentially be lifted by an appeals court. See the full news story here.  See the judge's ruling here. The Law Offices of Scott Warmuth has been helping immigrants to the United States for more than 35 years.  We offer a variety of services, including visa processing, obtaining a green card, and seeking U.S. citizenship.  We offer free initial consultations to anyone seeking immigration assistance.  Call us today at 888-517-9888 to speak with our immigration experts.[/vc_column_text][/vc_column][/vc_row]
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The San Gabriel Valley Master Key Podcast – Now Available!

Topics: From Our Office

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[vc_row][vc_column][vc_column_text]The SGV Master Key podcast is now available!  The weekly show, co-hosted by attorney Scott Warmuth, features the people and businesses that make the San Gabriel Valley great.  The first episode, officially released October 5, features 55th State Assembly District member Andrew Rodriguez. The podcast is available on Apple Podcasts, Spotify, and YouTube.  All episodes are also available at the San Gabriel Valley Master Key Podcast website.[/vc_column_text][/vc_column][/vc_row]