Skip to main content
William F. Bernard

William Bernard’s Answers

130 total


  • I submitted a complaint letter to HR in regards to my Manager

    I submitted a complaint letter to HR in regards to my Manager. Someone told her and she confronted me about it in front of my coworker. I thought that HR Complaints were confidential?

    William’s Answer

    HR people aren’t doctors or priests; there’s no confidentiality statute and you shouldn’t assume confidentiality when talking to them, even if you’re at lunch. Even if you’re talking to them when you run into them at the grocery store over the weekend. HR is there to serve the company; their loyalty and responsibilities are to the employer. If they hear information that they judge needs to be shared or used to address a situation, their job obligates them to do that. A parallel: Imagine you’re a computer programmer and you learn there’s a serious bug in the software you’re working on, but you do nothing. You’d be being negligent and not doing your job, right? It’s the same thing with HR. Now, in some cases, you can talk to HR in confidence if you explicitly work out an understanding of confidentiality before you share. But even then, it might not really be kept confidential. I’ve seen plenty of cases where a HR person judged that the best interests of the company required that the information be passed along, even after promising confidentiality to the employee.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

    See question 
  • Does the company that is about to acquire the company I work for have the right to drug test me even though I was already tested

    I was drug tested as a condition of employment by my current company. They are now about to be acquired. I am trying to find out any and all legalities and likelihoods around this issue.

    William’s Answer

    When determining whether a drug test was legal, California courts balance the employer’s reason for testing against the employee’s legitimate expectation of privacy. California has recognized that employees start with a stronger claim here: Employees already have a job (and a work history the employer can use to evaluate their performance), which gives them more of a stake in the process and may give the employer less of a need to test. An employer that has a reasonable suspicion that an employee is using drugs may be on safe legal ground in testing, provided that the suspicion is based on objective facts. Random testing is more controversial, although courts have upheld random testing for very safety-sensitive positions. However, California court cases have found that employers may require employees to pass a drug test as a condition of employment. As long as an employer tests all applicants for particular job positions and doesn’t single out certain applicants based on protected characteristics (such as race or disability), courts have upheld this type of testing. Therefore if you are now an employee of a new company (new employer), as long as you have been given proper notice and the testing is equally applied to all, you may well have to submit to testing.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

    See question 
  • Is a company supposed to compensate for interrupted lunches and breaks?

    Where I work I am an hourly paid manager. However, most of the time I am the only manager and when the cashiers need something they call wether I'm on break or lunch. Is the company supposed to pay for that time I'm forced to work off the clock?

    William’s Answer

    Current California labor laws for rest breaks and meal periods require that the employer provide non-exempt employees with a 30 minute uninterrupted meal break after 5 hours of work (unless the employee’s workday is completed within 6 hours), and a 10 minute rest break time after each 3 ½ hours of work. You don’t have to be paid for meal breaks if:
    the break is at least last 20 minutes, AND
    you are relieved of all work (you are not told what to do during the break) The Department of Labor says that a meal break can be unpaid, even if you are not allowed to leave your work site. But, if you are doing anything for your boss, you must be paid. You must be completely relieved of your work and responsibility if you are not paid. If your meal breaks are often interrupted that is a strong sign that you should be paid for your breaks.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

    See question 
  • Can my company fire or demote me after I requested 14 weeks of leave because I broke my ankle and won't be able to do my job?

    I was a Pharmacist-in-charge and broke my left ankle during vacation in March. On 3/13, I got an ankle surgery and no weight could be bear on my left ankle for weeks, so I couldn't work because my work request standing 8 hours every day. My docto...

    William’s Answer

    The Family and Medical Leave (FMLA) provides longer service employees of larger employers the right to take up to 12 weeks from work without losing their job. The FMLA is available to employees who need to care for their own or a family member's serious health condition. Beginning in 2008, a spouse, son, daughter, or parent of an employee who is a member of the military service can take up to 26 weeks of military caregiver or exigency leave. The FMLA does not create a right to compensation. Therefore, FMLA leave is unpaid, unless the employee uses available vacation or sick time. Moreover, federal law (The Americans With Disabilities Act) prohibit employers, in a variety of circumstances, from firing employees who have disabilities, sustain work-related injuries or require time away from work in connection with a health issue (or that of a family member.) In my experience, many employers do not properly train or advise their managers about coordinating the employer’s various obligations under these laws. I would seek an employment lawyer right away.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

    See question 
  • Can your employer make you work with someone who sexually harassed you? Can they make you sit down with them and talk it out?

    This is a retail management situation. In California.

    William’s Answer

    If someone made you feel uncomfortable, the first person to speak to about it is the co-worker who made you feel that way. It’ll be awkward, but there’s a possibility he or she doesn’t realize the error and the issue can be squashed. Just make sure to document this conversation in writing. Make sure the harasser knows that you consider his or her conduct to be unwelcome. Tell the person that his or her behavior offends you. Firmly refuse all invitations for dates or other personal inaction outside of work. Don't engage in sexual banter or flirt back in response, or otherwise send mixed signals. Direct communication, whether verbal or in writing, is better than ignoring the behavior and hoping it will go away.
    Report harassment to your employer. It is very important that you report the harassment because your employer must know or have reason to know about the harassment in order to be legally responsible for a co-worker, client or customer's sexually harassing conduct. Tell your supervisor, your human resources department or some other department or person within your company who has the power to stop the harassment. It is best to notify them in writing, and to keep a copy of any written complaint you make to your employer. Describe the problem and how you want it fixed. This creates a written record of when you complained and what happened in response to it. If there is a policy employees are supposed to follow when reporting harassment, you should follow the policy to the fullest extent possible. While you may not think complaining will do any good, your company may later claim it would have stopped the harassment if it had known about it, so reporting the conduct is very important to show that the company was aware of the harassment. Simply, talking it out first never hurts. If it continues, then the employer must not force you to continue working with this person.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

    See question 
  • For the years a California LLC was suspended, is minimum franchise tax payment required?

    LLC is suspended and needs to be closed. In calculating required payments, will the FTB include suspended years or only the years before it was suspended?

    William’s Answer

    All outstanding liabilities from tax, penalties, and interest remain due regardless of an entity terminating its presence in California.

    See question 
  • Does a durable pwr. of att. have the pwr. to sign the resignation of trustee form when the trustee is med & mentally incapable?

    The trustee of my fathers living trust is no longer able to serve due to being medically and mentally incapacitated, he cannot protect the interests of the grantor, but refuses to resign as trustee. So can a durable power of attorney have the powe...

    William’s Answer

    Look to the terms of the trust to ascertain the conditions upon which a successor trustee is appointed. If no provision for a successor is provided, you may have to petition the court to have one appointed. I know of no POA that would allow for the appointment of a successor trustee as you describe. Rather, that is what the competent drafting of a trust instrument is supposed to provide. By the way, as a point of interest, POA's are for managing health and asset management issues while the settlor/trustor is ALIVE. Trustees manage estate issues AFTER the death of the settlor/trustor. The POA lacks "power" after the settlor/trustor's death in most instances.

    See question 
  • Is there a California Law on irrevocable trust that says the trust must be settled by the executor within a years time .

    Mother died almost a year ago in a nursing home, her home was sold and belongings donated .All bills were payed and yet it is still not settled. I had heard that the was a California Law stating the executor had 1 year to finalize everything. Than...

    William’s Answer

    I agree with my colleagues. The trust instrument controls the distribution of Estate assets. The fact that the trust is irrevocable versus revocable is of no matter.

    See question 
  • Trust can be done by husband or wife separately or it should be done together. If separately, can keep privaately?

    Benefits vs risks of doing trust together or separately if divorce arises in future? Only house is owned by both. Banks, life insurance and retirements are separate.

    William’s Answer

    No initial risks as long as property is properly identified in trust--I agree. There may be considerable tax advantages also, depending upon the value of the estate and how the trust is constructed, even where property is held jointly. I would advise seeking out an Estate Planning Lawyer.

    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

    See question 
  • I want to open a subsidiary in California. I have an LLC in Tunisia formed 1 year ago.

    Is there requirements. Do they look at the revenues made by the parent company? How can I open it if I'm not in US? Thanks

    William’s Answer

    A wholly-owned subsidiary is indeed the choice. Please ensure all record keeping is up to date with parent company--its always a good practice.

    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

    See question