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Joshua Alan Burt

Joshua Burt’s Answers

445 total

  • Can a company hire you verbally over the phone (emails and vm to prove) then decide last minute not too

    Hired by corporate director of huge company after 6 weeks of negotiating agreed on position and pay and hours and client directories also was hired to help as a "temp" employee to get them caught up on collections. I had a start date and end date ...

    Joshua’s Answer

    Mr. Pedersen explained the legal issues in your case very well. It all boils down to whether you can prove you were offered the job with a specific term of employment explicitly agreed upon. From you facts, it sounds like that may be the case. More facts are necessary to develop the case.

    The two main causes of action you would pursue are (1) breach of contract and (2) fraudulent inducement. The fraudulent inducement claim may be the easier claim to prove since that would not necessarily require proof that you were guaranteed a specific term of employment. You were induced to stop looking for work for months by their fraudulent offer of employment.

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  • Are there any lawyer's that will take a legal malpractice case on contingency?

    I was involved in a business litigation lawsuit. A contract was supposedly dated, signed and handed to the plaintiff by myself on the day I was having surgery. A month before trial I was having issues with my attorney and hired a new attorney. ...

    Joshua’s Answer

    Legal malpractice cases are a rather interesting breed of cases. Not only do you have to prove that the lawyer made a mistake, you will need to prove that the mistake was the reason you lost the case.

    You also may have a claim to get back the attorneys' fees you paid with respect to the work on those witnesses and any issues related to those witnesses even if they did not cause you to lose the case. The attorney charged you for the work that s/he nullified with their own failures.

    Some professional negligence attorneys do take these cases on contingency. However, the attorney will want to review the entire file and discuss the matter with your trial attorney before deciding on how to be compensated.

    As you look for an attorney, you should gather the entire file for the case and be prepared to discuss all the details with the prospective attorney. I would also suggest writing a detailed summary of the events that you believe caused you to lose the case. This will help the attorney to come up to speed on the case and evaluate the merits more speedily.

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  • I was in an accident in 2008. My insurance paid one of the people that was hit but would not pay 2nd car and their ins is suing

    Me and this is 4 years later. They didn't serve me papers. They are garnishing wages of 25 per cent. Are they allowed to do this after all this time?

    Joshua’s Answer

    If they are garnishing wages, it would appear that they already received a judgment in their favor. That would have entailed the filing of a lawsuit and your failure to respond to the lawsuit in a timely fashion.

    You will want to call your insurance carrier and explain to them that you were never served. They should cover you unless it becomes clear that you had notice of the lawsuit and failed to notify the insurance carrier in time to respond to the lawsuit.

    If the insurance carrier refuses to cover you for any reason, you will need to hire your own attorney to review the judgment, whether you were properly served, and whether you can undue the judgment and restart the case.

    That attorney can also evaluate whether your insurance carrier's failure to cover your legal expenses and damages is cause for a bad faith denial of insurance benefits case.

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  • My business is switching contractors over to employees. Will the change lead to a review or audit?

    We have been in business for a few years so they were classified incorrectly. I have heard of something like “recognition of prior mischaracterization” when you do something like this. Will this change lead to a review of my business? I don’t t...

    Joshua’s Answer

    Transferring independent contractors to regular employees is a very delicate situation. If their responsibilities, what equipment they use, and other I.C./employee factors have not changed, you will want to be very careful not to give these persons an opportunity to sue you for incorrectly labeling them independent contractors in the first place. That can result in significant penalties and possibly other damages if you did not pay them as employees are required to be paid.

    You need to speak with an experienced employment wage and hour attorney to discuss whether this is advisable and how to go about it.

    It was a very good idea for you to seek out guidance.

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  • Was I being gender-discriminated?

    I'm a Hospital Corpsman/Medic who is getting honorably discharged from the Navy in a few weeks. On my job hunt, I encountered a private practice Doctor-- via Email-- who was interested in me as a candidate and scheduled an interview. Upon my confi...

    Joshua’s Answer

    This is a classic case of gender discrimination assuming that the prospective employer does not have reason to require a bonafide occupational qualification such as the gender of the employee.

    The employer has the duty to prove that it is entitled to enforce a bonafide occupational qualification. Since you were applying for a medical receptionist position, it seems highly unlikely that gender would be a bonafide occupational qualification under the circumstances.

    You should discuss this with an experienced employment attorney as soon as possible. Questions you should be prepared to answer include giving more specifics about the job opportunity, whether it required interacting with the patients in any stage of undress, and anything else that could create discomfort for female clients of the employer.

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  • Is it legal for a financial business to tell you that you can not clock hours after a certain day unless you have a good loan in

    my boss emailed me that unless i had a good loan in processing by a certain date i could no longer clock hours. we are not given paid vacations but i let them know that i need to go out of state as mother was having surgery. i was told basically ...

    Joshua’s Answer

    If your employer meant that you must work off the clock, without pay or benefits, if you do not begin processing a loan, that would violate California and Federal wage and hour laws assuming you are a non-exempt employee. At first blush, it sounds like you may be a non-exempt employee. There is so much other information I or any other attorney would need to give you a conclusive opinion about this issue.

    However, with respect to your request for leave time to tend to an ill family member, your employer more than likely violated both California and Federal laws protective employees' rights to take family and medical leave time off. Again, this does require more information for a conclusive opinion. Such information would include (1) how many employees your employer has, (2) how long and how many hours you worked in the preceding 12 months, and (3) whether you had taken all your protected leave time within the past 12 months prior to the needed time off.

    There are a lot of moving parts in this analysis. You should consult with an attorney as soon as possible.

    I hope you mother recovers well from her surgery.

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  • How does a company convert independent contractors into regular employees? Its a pretty small company.

    Its a freight company and we have about 15 local and long haul drivers and the admin staff consists of 5.

    Joshua’s Answer

    Transferring independent contractors to regular employees is a very delicate situation. If their responsibilities, what equipment they use, and other I.C./employee factors have not changed, you will want to be very careful not to give these persons an opportunity to sue you for incorrectly labeling them independent contractors in the first place.

    You need to speak with an experienced employment wage and hour attorney to discuss whether this is advisable and how to go about it.

    It was a very good idea for you to seek out guidance.

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  • How long is the statute of limitations for an employer the owes me money in California?

    My former employer owes me over $100,000 that they haven't paid me over the last several years. He has promised to pay me slowly but so far has been very slow in payments and sometimes not paying me at all when he says he will. How long is the sta...

    Joshua’s Answer

    Depending on the type of agreement you have, the statute of limitations is 3 or 4 years from the time the employer breached the contract. This will be a bit of a sliding deadline as the employer appears to have failed to pay over a number of years. Therefore, the first shorted or missed pay check will have an earlier deadline that the last failure.

    In the end, due to the ability to file a claim under California's Unfair Competition law, you should have up to 4 years from the missed payments to file the lawsuit.

    That is why you need to pursue your action as soon as possible.

    There are also penalties under California wage and hour laws that you can obtain in addition to the actual missed wages. These too have deadlines similar to the ones described above.

    Consult with an attorney directly as soon as you can.

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  • Can a surgeon take a cellphone photo in the OR without my consent & perform a procedure not consented to?

    I had a surgeon take a picture on his cellphone when I was being operated on without my consent. He also performed a procedure that he was not consented to perform. I feel that he not only violated my privacy but HIPPA violation aswell. I did not ...

    Joshua’s Answer

    • Selected as best answer

    This very much depends on the reasons for the picture and the procedure.

    If the picture was taken for the purpose of your medical file only, it may be permissible. If it was taken for personal use, this is an invasion of privacy and likely actionable.

    With respect to the lack of consent for the procedure, was the new procedure incidental to the procedure you consented to? Was it necessary to do it then as an emergency? There are so many questions that need answering before anyone can give you an opinion on this issues.

    You should consult directly with an attorney.

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  • I have called the EDD dept. for two days starting at 8am when they open and the recording always tells me they already to busy

    I find it hard to believe that after calling 30 times I can never get thru. I feel this is a lie. I do not have a computer just a phone so I can't leave a complaint. Is it possible to sue the state for giving false info?

    Joshua’s Answer

    This is not an uncommon complaint about the EDD. They are, in fact, very hard to get to. You should continue to be persistent. Also, you can go to a local public library and use their computer to access the EDD website to begin filing the necessary paperwork you would need for whatever it is that you are trying to do with the EDD. You can also use it to contact them to make a complaint.

    However, I don't think filing a complaint will get you very far. The EDD receives thousands of calls each day in each of its major offices and does not have the staff to field them all quickly. It is unfortunate, but it is the nature of the EDD office at this time.

    If you are inclined to file a complaint or notify the EDD of the trouble you have had contacting them, I have add a link to this answer that will take you to the online fillable form to do so. It also gives you addresses to where you can send the complaint.

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