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William F. Bernard

William Bernard’s Answers

489 total

  • Will this passage, in the contact, prevent me from providing services to my existing clients?

    I am a LLC in California, I provide IT consulting services to many medical organizations. These organizations typically provide mental health care, pediatric care and health care lobbying to the general public. I have recently solicited a new ...

    William’s Answer

    It really depends upon how the word "competitive" is described in the "definitions" section of your agreement, assuming there is such a section--which there should be by the way. Have an attorney review the agreement or simply advise the new client of your situation and, if necessary, make appropriate revisions to the contract in what amounts to, in effect, a waiver as to the other specific services you provide which you feel may otherwise be called into question.

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  • Sending e-mails to clients from my previous employer.

    I am a mechanical engineer and just promoted to be a junior project manager on my new job. Can I contact my previous clients from my previous employer and offer them the help or same services with my new/current company e-mail or just my personal ...

    William’s Answer

    It really may depend upon whether you had an ownership interest in your prior company and what any prior agreement with them, if any, states with regard to proprietary material and/or trade secret information. For example:
    Trade Secrets and Non-Disclosure Agreements agreements (also known as confidentiality agreements or NDA’s) protect trade secrets.
    "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Civil Code §3426.1(d), part of California’s version of the Uniform Trade Secrets Act.)
    If No Agreement. The Uniform Trade Secrets Act ("UTSA") protects a trade secret even if there is no written agreement if, among things, the information was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use. Employees, officers and directors owe duties of confidentiality to their company, but a written agreement provides more secure–and often broader–protection.
    Inevitable Disclosure. On the other hand, California has rejected the "inevitable disclosure" doctrine, which allows an injunction if it is "inevitable" that the employee will have to use the former employer’s trade secrets in order to do the new job.
    Reasonable Efforts. To show reasonable efforts to maintain secrecy, have signed non-disclosure agreements with the employees and principals of your company as well as with independent contractors and other businesses where appropriate.
    Specific Definition: Be certain that your definition of what constitutes confidential material is specific enough to identify the confidential information without disclosing it. Vague or overly broad definitions of what constitutes proprietary material may nullify non-disclosure agreements.
    Employees with prior experience who are coming on board may require exceptions for knowledge they already have.
    There is much to consider as your question has been broadly phrased. I would consult with a business attorney first.

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  • What do i do in a sexual harassment situation if it deals with a talent agent and i don't want to be dropped?

    my agent mentored me and i love him but i feel like i'm constantly pressured to have romantic meetings and have to respond to those text messages unlike other clients. I don't have romantic feelings toward him but instead love and respect him as a...

    William’s Answer

    I couldn't agree more with what's already been said. Sometimes, and in fact most often, the test of character and integrity in response to any given situation requires a self-examination of what we are really made of. I'm sure if you think seriously about the decision you are faced with, you will follow your conscience, make the right choice, and ultimately learn from this experience.

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  • Former employee denying access to my files.

    I need records of my weekly time sheets from a previous employer. (Worked for them 6 months ago for just under a year) The employer states they do not have these records as they clear their online storage each year. However the law says they must ...

    William’s Answer

    Employers must keep records for at least one year following separation in the United States according to the U.S. Equal Employment Opportunity Commission. Additionally, employers must maintain payroll records for up to three years.

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  • Are general partners liable for other partner's income tax on distributed gains from partnership if not paid by a partner?

    Four people formed a general partnership and purchased a piece of land 30 years ago. No K-1s have ever been filed. They are now selling it for a profit. If one of the partners does not pay income tax on his gain, are the other partners liable?

    William’s Answer

    I agree with what has been said. Partners would be jointly and severally liable only for partnership debts not taxes.

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  • How should I deal with missing vacation days on merger payout?

    Company was recently bought from a merger. Upon payout (all vacation days supposed to be paid out), noticed was missing a few days of vacation pay. Didn't seem too huge of a deal since not too much missing until I've heard about the hr manager att...

    William’s Answer

    In California, employers are not required to provide any paid vacation or paid time off (PTO) to their employees. However, studies have shown that giving employees time off to relax benefits not only employees, but also employers. Happier, healthier employees usually mean greater productivity and employee retention for employers. Because of this, many employers choose to offer vacation as a benefit of employment.

    Employers who choose to offer vacation must follow certain guidelines. California law considers accrued vacation to be a form of wages that have already been earned by the employee. Among other things, this means that accrued vacation cannot expire and must be paid out to an employee upon termination or separation from the employer. The same rules apply to PTO. Sick leave is not subject to the same rules as vacation and PTO. As of July of 2015, California employers are required to provide a minimum number of paid sick days per year.

    Vacation Accrual
    In general, vacation accrues over time as an employee works. For example, if a vacation policy gives an employee ten days of vacation each year, he or she will accrue five days of vacation after working for six months. Employers can designate a waiting period at the beginning of employment before vacation starts to accrue, though. The waiting period often correlates with the 90-day introductory period, but can be as long as the first year of employment.

    Employers can also give vacation to certain groups of employees but not others, as long as they don’t discriminate based on a protected characteristic, such as race or gender. For example, employers may give vacation only to full-time employees or only to managers.

    Reasonable Cap on Vacation Accrual
    Unlike some other states, California does not allow “use-it-or-lose-it” vacation policies. Under a “use-it-or-lose-it” policy, accrued vacation must be used by a certain date – usually by the end of the year – or it is forfeited. Because accrued vacation is considered earned wages, use-it-or-lose-it policies are seen as illegally withholding wages owed to employees.
    Employers can, however, place a cap on vacation accrual. In other words, once employees reaches a certain number of days, they will stop accruing vacation until they use some of their vacation. This allows employers to maintain some control over vacation accrual and prevent employees from racking up unreasonable amounts of vacation time.
    While there’s no set number for a permissible cap, the California Department of Labor Standards Enforcement (DLSE) – the agency that enforces California wage and hour laws – has provided some guidance. In the past, the DLSE has held that a vacation cap could be no less than 1.75 times the annual accrual rate.

    Vacation Scheduling
    Employers have a lot more freedom to shape their vacation policies when it comes to scheduling. In general, employers can decide when and how employees may schedule their time off from work. An employer may, for example, require that employees submit vacation requests a certain number of days or weeks in advance. Employers can also set aside certain “blackout” dates during which no employees may take vacation, such as the holiday season for a retail business or the tax season for an accounting firm. And, an employer can place limits on the number of employees who can be out on vacation at the same time. As long as the employer’s decisions are not discriminatory based on race, sex, religion, disability or another protected class under federal or California law, the employer is free to set the parameters in which vacation is scheduled.

    Because vacation is considered earned wages, an employer may be liable for “waiting time penalties” for failing to timely pay out vacation with the final paycheck. The waiting time penalty is the employee’s average daily wage, for up to 30 days. Employees who don’t receive their vacation in their final paychecks can file a wage claim with the DLSE, or sue in court.

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  • Can an LLC purchase and own equity from one of its members if that member decides to leave the business?

    We have a member in our LLC that owns 35%, one of the largest chunks, and he wants to leave the business. The other member and myself have agreed that the company will buy the equity from the seller, and distribute it to myself and the other exist...

    William’s Answer

    If you created an operating agreement such a procedure should have been addressed. Otherwise, a buy-sell agreement should be drawn up by a lawyer to accomplish your objectives.

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  • Is there a legal process that leads to termination?

    I got terminated for tardiness and absenteeism. On my last day I got a copy of my separation paperwork and paycheck. I noticed they changed the rate of pay, handed me a separate check for uniforms deposit I was unaware of, and on my final check I...

    William’s Answer

    I would agree with what has already been stated by Ms. Karila. I would just note as well that employment in CA is at-will and barring any class-based discrimination, there need be no cause stated for termination or specific procedure followed, unless one is outlined in a policy manual/handbook that specifies its required applicability to all employees equally.

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  • Looking to switch a sole proprietorship with no employees, to some employees. Need assistance.

    Needs help is switching a company from a sole proprietorship with no employees, to some employees. What type of an attorney can help me with my situation as it relates to changing the business, protection, tax benefits, financial benefits, etc.

    William’s Answer

    • Selected as best answer

    I agree that an LLC or S-Corporate structure would be suitable, especially if expansion is in your future. Make sure you secure an operating agreement if LLC is choice. Profits can be more flexible in terms of percentage assignments in an LLC if you have other members join in the future, but both structures are pass-through taxable entities which can be explained by a CPA. Remember: the entity will protect your personal assets. Secure a general liability policy for business asset protection, as well as mandated worker's compensation insurance for employees.

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  • Am I entitled to overtime pay?

    I get paid bi-weekly, and my boss only pays OT if we work over 80hrs, but my total scheduled hours are 75hrs in 2 weeks but sometimes I stay an extra 2 hours on a regular 8 hour shift so I end up working 10hours in a day. So I want to know if I sh...

    William’s Answer

    In California, overtime is any hours worked over 8 hours in a day or 40 hours in a week. There is an exception if your company has instituted a bona fide alternate work week in which you normally work 10 hour days, 4 days a week – in which case the overtime is after 10 hours rather than 8, but still after 40 in the week. This alternate work week must meet certain formalities and can not be done on a person by person basis.
    Unless you meet an Exemption, California requires that all hours over 8 in a day or 40 in a week or worked on the 7th consecutive day of a work week be paid at 1.5 times an employee’s regular rate of pay. In addition, hours worked over 12 in a day or hours over 8 worked on the 7th consecutive day in a week are paid at 2 times an employee’s regular rate of pay.

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