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160513 Mayor Steve Martin
Breakfast over the Grade

Carmel & Naccasha was pleased to sponsored a table at the 2016 State of the North County event on May 13, 2016. Interesting talks by Pat Mullen of PG&E, new Paso City Manager Tom Frutchey, Atascadero City Manager Rachelle Rickard, Stirling Price of Atascadero State Hospital, Mayor Tom O’Malley of Atascadero and Mayor Steve Martin of Paso Robles. Mark Lisa of Twin Cities Community Hospital was an entertaining master of ceremonies.

Thanks to the Paso Robles and Atascadero Chambers of Commerce for organizing such an informative event. Lots of things happening in the North County and we are glad to be a part of it.

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Emilie K Elliott square2
The Dangers of Misclassifying Your Workers

Employers are often confused about what makes a worker an employee rather than an independent contractor. The distinction is of great importance, as misclassification can lead to litigation by, and damages owed to, a number of different players, including the employee, the IRS, the FTB and the Division of Workers Compensation.

What makes a worker an employee? It really comes down to the degree of control exerted by the employer over the employee in terms of the manner and means of accomplishing the work. The more control exerted by the employer, the more likely the worker, regardless of how he or she is classified, is actually an employee. This is a fact-intensive inquiry, and there are very few “bright line” rules – which is part of the reason the correct characterization is so important and lends itself to litigation.

Other important and relevant factors are the degree of integration of the worker into the employer’s business, whether the worker uses his or her own tools (computer, desk, telephone, etc.) or whether such tools are supplied by the employer, whether the work performed is part of the regular business of the employer, where the individual performs the work, whether the services he or she provides require a special skill, the worker’s opportunity to profit or lose depending on his or her managerial skills, the length of time and degree of permanence of the working relationship and whether payment is by the amount of time spent or by the job. All of these factors bear on whether a worker appears to be running his or her own business (i.e., like an independent contractor) or, alternatively, whether the worker is actually a part of the employer’s business (i.e., like an employee).

Often, employers and workers think that, because they memorialize in an agreement that they are in a certain kind of relationship (independent contractor or employee), they are “in the clear,” but this not necessarily true. Although the parties’ intention (and their relative negotiating power) has some bearing, the relationship still has to be bona fide, and the actual effect of the agreement must look and act in accordance with what the parties say it is. Otherwise, a court or other interested entity may seek to void your stated characterization, and a number of consequences could flow from this.

Speaking of interested entities, a number of government agencies are interested in whether a worker is misclassified. These entities include, but may not be limited to, the IRS, the Division of Labor Standards Enforcement (DLSE), the Employment Development Division (EDD), the Division of Workers’ Compensation (DWC) and the Franchise Tax Board (FTB). Adding to the confusion and uncertainty, one entity’s determination that a worker is not misclassified is not binding on the other entities. Thus, although an employer may escape penalties with the DLSE, the same employer may be required to back pay payroll taxes with the FTB or IRS if a worker is later determined (by those agencies) to be an employee rather than an independent contractor.

Other consequences of misclassification by an employer include, but are not limited to, having to pay the worker for unpaid and unknown overtime and the associated penalties plus interest, meal and rest break penalties, waiting time penalties (for not paying all amounts due within 72 hours of termination, even though, at the time, the employer did not know the employee was misclassified), wage statement penalties, workers’ compensation fines, IRS and FTB fines and penalties, and, potentially, class action exposure.

Employers can’t afford to get this wrong! Misclassification can lead to severe consequences for an employer. If you have questions about the proper classification of your employees, or any other labor and employment law questions, please contact Emilie Elliott at eelliott@carnaclaw.com, or at 805-546-8785. The attorneys at Carmel & Naccasha have extensive experience in handling matters related to labor and employment law on behalf of employers and public agencies and are happy to assist you.

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Do Not Enter
Many thanks to Norcast and SLO Fire

Our block of Marsh Street is closed to through traffic during the construction on San Luis Drive. Recently, a delivery truck was going too fast to make the turn at the Road Closed sign and decided to use our driveway instead. He whipped in to the driveway, failed to notice the overhead lines and snagged them. SLO Fire was here almost immediately and let us know that the truck was caught on the phone and cable lines, but not power. One call to Norcast Telecom Networks and Jeff Buckingham appeared on the scene. Jeff worked with SLO Fire and the truck was moved. Many thanks to Jeff and the Norcast team, SLO Fire, and SLO PD. They were amazing! Just another reminder to do business with a local provider.

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Naccasha Attends World Business Forum

Founding Partner Ziyad Naccasha traveled with a group from the San Luis Obispo Chamber of Commerce to New York City this past November and attended the World Business Forum. Read his ‘takeaway’ from the event as well as those of Scott Dawson of the Orfalea College of Business at Cal Poly, Kris Yetter President and General Manager of Promega Biosciences and Noreen Martin CEO of Martin Resorts.

Visit the SLO Chamber website to read the story.

 

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Mosier named a winner in The Tribune’s Top 20 Under 40

Top 20 image croppedCarmel & Naccasha is pleased to announce that partner Dallas K. Mosier is a winner of a Top 20 Under 40 award in the 11th edition of The Tribune’s annual competition.

Dallas was nominated by one of his peers to be considered for the annual award recognizing young San Luis Obispo County professionals who have demonstrated professional excellence and a commitment of serving the community. Seventy-five nominations were received for this round of Top 20 under 40 Awards.

Dallas joined Carmel & Naccasha in 2012 and was promoted from associate attorney to partner in November 2015.

Winners will be honored with an award at a luncheon on Thursday, January 28, 2016 at Madonna Inn.

See the complete list of winners at The Tribune website: http://www.sanluisobispo.com/news/business/article50074900.html

Click for Dallas’ Biography

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Dallas Mosier Named Partner

Carmel & Naccasha LLP is pleased to announce that attorney Dallas K. Mosier has been promoted to partner at the firm.

“Dallas’ strong commitment to his clients, his co-workers and the community at large exemplify the team work and service goals that we value at Carmel & Naccasha,” said Ziyad Naccasha, managing partner at the firm. Dallas joined Carmel & Naccasha in 2012 bringing extensive experience in trust and estate planning, special needs planning, personal income tax planning, trust administration and probate.

Dallas has assisted clients in a variety of matters in each of these areas, ranging from implementation of tax avoidance strategies to planning for family issues such as dependency, fiscal irresponsibility, and family disputes.

Dallas is very active in our local community with wide-ranging volunteer roles, including; mentor & monthly volunteer at the Cal Poly CIE Incubator and Hot House (collaborative effort to support local entrepreneurship), President of the Board of the SLO Legal Assistance Foundation (pro-bono legal services to those who cannot afford them) and, Chairman of the Board of the Paso Chamber, among others.

Click for Dallas’ Biography

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When a Policy Limits Demand can be Abusive

Demands for insurance policy limits frequently generate substantial concern for  insurers.  A properly executed policy limits demand that is rejected by an insurer will “open the policy” and expose the insurer to liability in excess of its policy limits.  The timing and form of the demand, however, are as important as the demand itself.

A policy limits demand must meet five criteria before a court is likely to hold that an insurer acted in bad faith in rejecting the demand:

  • The settlement terms must be clear enough to create an enforceable contract if accepted. Coe v. State Farm Mut. Auto. Ins. Co., 66 Cal.App.3d 981, 991 (1977);
  • All claimants must join in the settlement demand. Coe, 66 Cal.App.3d at 992-93;
  • All insureds must be released. Strauss v. Farmers Ins. Exch., 26 Cal.App.4th 1017, 1021 (1994);
  • The settlement amount demanded must be both within policy limits and “reasonable.” Comunale v. Traders & General Ins. Co., 50 Cal.2d 654, 661 (Cal. 1958); and
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Emilie speaking on the Fair Pay Act.
New California Fair Pay Act Adds Confusion and Incites Litigation

The Fair Pay Act (“FPA”), which goes into effect on January 1, 2016, requires employers to pay male and female employees the same for “substantially similar work” under “similar working conditions,” even if those employees work in different establishments.  The FPA also prohibits employer retaliation against employees for disclosing their wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under the law.

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Major Shift of Certain Real Property Transfers Signed into Law

Recently signed legislation allows for the transfer of real property upon death through what is touted to be, under certain circumstances, a more streamlined and simple process, without the typical probate proceedings. Historically, many assets, such as stocks or bank accounts and even possessions, could be passed on to an identified beneficiary through the completion of a ‘Payable on Death’ or ‘Transfer on Death’ form (POD or TOD, respectively). The new legislation, AB 139, permits a similar transfer of real property, such as a house, land or other type of building, upon the death of an owner through the same process. AB 139 is effective now through January 1, 2021 (there is a five year test period to gauge the law’s impact).

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Will California Adopt Limited License Legal Technicians?

On September 9, 2015 Carmel & Naccasha LLP’s paralegals attended a continuing legal education event put on by the Central Coast Paralegal Association (CCPA).  The CCPA presented a lunch time speaker, Mitchel L. Winick, President and Dean of the Monterey College of Law and San Luis Obispo College of Law.  Dean Winick presented the topic, “Will California Adopt Limited License Legal Technicians?”  The Dean serves on the Standing Committee on the Delivery of Legal Services, a 20-member advisory committee to the State Bar of California.  Dean Winick reported that the committee is taking a close look at a new class of legal professionals: Limited License Legal Technicians.

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