San Diego Estate Planning Lawyer Blog

San Diego has over 1,000,000 residents. Many San Diego residents are on lists of different companies. San Diego residents have to be careful of the companies who keep lists selling their personal information and, in some cases, where it is stolen by a third party. One example of stolen customer lists is below.

Home food service companies sell and deliver food products and appliances to their customers, many of whom later reorder more products. When a home food service company bought a customer list of one of its competitors, what might have been a competitive advantage instead became a legal headache. The list had been stolen and the food service company that bought it knew it was stolen. This can be considered receiving stolen property under the California Penal Code Section 496.

The company whose list got into the wrong hands sued the purchaser of the list for misappropriation of a trade secret. Some courts have refused to recognize customer lists as protected trade secrets when they contain information that is readily available from public sources. The essence of a trade secret is that it has value because it is not easily ascertainable. The customer list for the home food service company was protected because of the time and effort that had been expended to identify particular customers with particular needs or characteristics. The defense that the list contained only information that was easily compiled was undercut by the fact that the defendant had paid a lot of money for it.

San Diego, California has many home owners and also has many tenants and landlords. As San Diego has over 1 million residents, many of them are renters. When an apartment or home is rented in San Diego, California, the landlords must abide by both federal and state law.

Landlords are free to use credit reports in evaluating prospective tenants, but they must follow requirements set out in the Fair Credit Reporting Act (FCRA). A new guidance has been issued that describes how the FCRA applies to landlords and what the consequences are for noncompliance. The guidance focuses especially on a landlord’s obligation to provide an applicant with an “adverse action notice” when adverse action is taken based on information in the applicant’s “consumer report.”

A consumer report is a compilation of information about a person’s credit characteristics, character, reputation, lifestyle, and rental history. A report is covered by the FCRA only if it was prepared by a consumer reporting agency (CRA). The major credit bureaus are CRAs, as are many tenant-screening services and reference-checking services. If a landlord uses its own employees to verify personal, employment, and previous landlord references, the FCRA does not apply.

In San Diego, California, a new business must get a nine-digit employer identification number (EIN) from the Internal Revenue Service if it either pays wages to one or more employees or files pension or excise tax returns. An EIN is like a Social Security number for a business. It is used when filing a federal tax return, as well as for correspondence with the IRS or the Social Security Administration.

In San Diego, for your convenience, we are attaching links to the Internal Revenue Service and Social Security Administration. You can also download the appropriate forms from these websites.

IRS Form SS-4 is an application for an EIN, with information on how to apply by mail or by telephone. The IRS now has a toll-free telephone number for getting an EIN: (800-829-4933).

In San Diego, California, the Fair Labor Standards Act (FLSA) is the source of minimum wage, overtime pay, recordkeeping, and child labor standards affecting over 100 million private sector and governmental workers. To be covered by the FLSA, an enterprise must have employees whose work has at least an indirect connection to interstate commerce. In most cases, a firm must do at least $500,000 in business annually to be covered, although some entities, including hospitals, schools, and governmental agencies, are subject to the FLSA regardless of volume of business. While San Diego, California business entitities are also covered by State Law the Federal Law is also higher and supreme. As such, it is also important to know the State of California laws in relation to the State’s Department of Labor.

Please feel free to contact our law firm of Law Office of Scott C. Soady, A Professional Corporation for any further legal assistance and also feel free to e mail our firm as well.

The FLSA is far-reaching, but it does have its limits. For example, it does not require pay for vacations, holidays, severance, or sickness, nor does it mandate meal or rest periods, holidays off, or vacations. When an employee is fired, the FLSA does not require a discharge notice, a reason for the discharge, or immediate payment of final wages. Assuming the employee is at least 16 years old, the FLSA also does not limit the number of hours in a day, or days in a week, that an employee may be scheduled to work.

Wages and Overtime
Workers covered by the FLSA currently are entitled to the minimum wage of $5.15 per hour and overtime pay that is at least one and one-half times their regular rate of pay after 40 hours of work in a workweek. Some minimum wage exceptions apply under specific circumstances to disabled workers, full-time students, workers under 20 in their first 90 days of employment, tipped employees, and student-learners. Wages required by the FLSA must be paid on the regular payday for the covered pay period. Employers cannot effectively reduce the wages of their employees below amounts required for the minimum wage or for overtime pay by making deductions from paychecks for such items as shortages, required uniforms, and tools of the trade.

Exemptions
For the FLSA to apply, there must be an employment relationship that is distinct from other arrangements, such as hiring an independent contractor. Even when it does apply, the FLSA contains many specific exemptions. The exemptions may be from overtime pay, from both the minimum wage and overtime pay, or from child labor provisions. Doubts about application of an exemption generally are resolved against the employer. Employers should scrutinize the exact requirements for an exemption before assuming it applies.

Some of the employees exempted from the overtime pay requirement are commissioned sales employees whose earnings average at least one and one-half times the minimum wage for each hour worked and certain computer professionals who make at least $27.63 per hour. Examples of workers exempted from both the minimum wage and overtime pay include employees of certain seasonal and recreational establishments and white collar employees in executive, administrative, professional, or outside sales positions who are paid on a salary basis.
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San Diego, California has been a “high tech” city for many years. In the age of online commerce, “signing on the dotted line” has for many transactions evolved into “clicking on the ‘I agree’ box.” Many companies in San Diego use these methods for business transactions. The San Diego Superior Court website can be used to assist in finding cases in which this issue has been litigated.

The resulting “clickwrap” agreement may be just as enforceable in court as if the parties had solemnly written their signatures at the end of a paper contract. As with so many twists on conventional legal concepts that have been ushered in with the Internet, courts are having to adapt time-tested principles on formation of a contract to the computer age.

Our firm of Law Office of Scott C. Soady, A Professional Corporation is committed to assisting you with new developments on the law. We have a newsletter which changes daily in the areas of estate planning and family law. You can also e mail us with any questions.

In one case, a company paid thousands of dollars for sophisticated software. The company claimed that it was entitled not only to use the software but also to receive perpetual upgrades and support. As evidence of such a bargain, the company pointed to the purchase order for the transaction. The seller of the software countered by relying on a later clickwrap license agreement in the software itself that limited its liability to the price paid for the software.

The court ruled that the language in the clickwrap agreement that limited the seller’s liability was binding. The buyer clearly had given its assent by clicking “I agree,” just as if its representative had signed a standard contract. The only issue, according to the court, was whether clickwrap license agreements are an appropriate way to form contracts, and the court held that they are.

The court was aware of and sympathetic to the context in which most clickwrap agreements are created. The typical consumer, having paid a substantial sum for software, rushes it into the computer, clicks on “install” and scrolls past the fine print in the license agreement. Arriving at the “I agree” box, the customer clicks on it with hardly a thought. The lesson from this case is that the click of a mouse is the equivalent of the stroke of a pen.

Clickwrap agreements are no less enforceable than conventional contracts, but neither will they be recognized by courts if the basic elements of offer and acceptance are absent. From the early common law of England to American law today, promises become binding only when there is a meeting of the minds. As another court faced with a disputed clickwrap agreement put it, “[a]ssent may be registered by a signature, a handshake, or a click of a computer mouse transmitted across the invisible ether of the Internet.”
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San Diego, California has over one million residents and most of these are employed. It is important to know what your legal rights are in any disciplinary situation. San Diego, California has different regulations than other states so it is crucial to have each individual case evaluated.

Two employees at a foundation wrote office memoranda stating that their supervisor was not needed on a project and that he had behaved inappropriately and unprofessionally. The foundation’s executive director informed one of the employees that she wanted to meet with him and the supervisor. Feeling intimidated at the prospect of the meeting, the employee asked that his fellow complaining employee be present as well. When this request was refused, and the employee declined to attend the meeting alone, he was fired for insubordination.

The fired employee ultimately was found to be entitled to reinstatement to his position, with an award of back pay. The decision by a federal appellate court breaks new ground for non-union employees and employers, because the basis for the ruling is a principle previously associated only with union workers. It is settled law that an employer commits an unfair labor practice under the National Labor Relations Act if it denies a union employee’s request to have a union representative present at an investigatory interview that the employee reasonably believes might result in disciplinary action.