Medicaid Benefits during COVID-19

All states that wish to maintain a 6.2 Federal Medicaid Assistance Percentage (FMAP) must not terminate Medicaid benefits during the COVID-19 Pandemic, unless the enrollee volunteers. Under the Families First Coronavirus Response Act (Pub. L. 116-127), individuals enrolled in Medicaid on March 18, 2020 are exempt from termination.
This means that coverage for elderly Medicaid recipients must continue until the end of the last month of COVID-19, as declared by the Secretary of Health and Human Services. This protects individuals from losing Medicaid benefits during the pandemic, however it raises concern for their eligibility to continue in their Medicaid program once the Coronavirus Pandemic is over. Eligibility may be subject to more scrutiny than before due to a state’s budgetary pressures and pre-COVID statutes, rules, and regulations. Pending changes and transfer penalty periods may begin once the pandemic is over. Elder law attorneys should monitor their Medicaid agencies and keep clients informed of potential changes.

To read more about the Families First Coronavirus Response Act, click here.

May Review

National Elder Law Month

CASE ALERTS

Arace v. Medico Investments LLC

Cite as E071194
Filed March 24, 2020, Certified for Publication May 11, 2020, Fourth District, Div. Two

If there is proof of financial elder abuse, attorney’s fees must be awarded regardless of whether damages are awarded.

Plaintiff and Respondent, Melanie Arace, initiated action for elder abuse against Medico Investments, LLC in the interest of great-aunt, Grace R. Miller. Plaintiff alleged that Medico, or its employee, Elizabeth Colon (Colon), engaged in multiple acts of elder abuse of Miller. The jury ruled in favor of plaintiff, who was awarded damages, attorney fees, and costs. Upon Medico’s appeal, the court of appeal affirmed. The court of appeal held that once Medico was found liable for financial elder abuse, an attorney fee award was mandatory regardless of other factors.

Robertson v. Saadat et al.

Cite as B292448
Filed May 1, 2020, Second District, Div. One.

Posthumous use of stored gametic material is entirely dependent on available evidence of the decedent’s intent.

After the death of her husband, Aaron Robertson, Plaintiff, Sarah Robertson, attempted to conceive a child with his stored sperm which had been extracted while he was in a coma. When the reproductive fertility center could not find her husband’s gametic material, she filed suit. After the trial court ruled that Robertson was not legally entitled to use her deceased husband’s sperm, she appealed. The court of appeal affirmed, holding that Robertson had insufficient evidence of her husband’s consent to the posthumous use of his sperm.

 

CW3 Founder Robert L. Schein’s Interview with Valerie

COVID-19 placed unexpected challenges to Estate Planning; as well as, increased focus on its importance. In this interview, Valerie discusses with CW3 Founder, Robert L. Schein, how she has continued to make sure her clients’ needs are being met throughout this pandemic; and, answers questions about Estate Planning, Trusts, and Wills for anyone considering or in the process of estate planning. Click here to view the full interview.

Upcoming Events

Legal Land Mines in the Time of the Pandemic

Join us for Part II of our COVID-19 Webinar Series with Palm Springs Life.

July 8, 2020 11:00 AM – 12:30 PM

In Part II of our series with Palm Springs Life, SBEMP Partners Valerie Powers Smith and Vee B. Sotelo review current employers’ law suits, employees’ rights under the CARES Act, and novel legal theories that will set precedent for employers in the future.

RSVP Here

 

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

For questions please contact Valerie A. Powers Smith, Esq. at the above number or via email (powers@sbemp.com)

A group of homeowners represented by SBEMP has prevailed on a Motion for Summary Adjudication against Morningside County Club (“Morningside”), a common-interest development in Rancho Mirage, California, which asked the court to void the results of an election which imposed a $250 monthly fee (“Proprietary Fee”) on all homeowners to support The Club at Morningside (“Club”), a private Golf and Tennis Club at Morningside, regardless of whether a homeowner was a member of the Club. Concurrent with the adoption of the Proprietary Fee, the Club gave its members a credit against their monthly dues in the same amount as the Proprietary Fee. Thus, in effect, non-Club members were required to pay the fee to subsidize the Club without obtaining any privileges at the Club. The court further held that Plaintiffs were entitled to restitution (reimbursement) of all amounts paid on the Proprietary Fee.

In 2015, SBEMP filed a lawsuit on behalf of 23 non-Club member homeowners against Morningside, the Club, the law firm of Peters & Freedman LLP (which acted as the Inspector of Elections), as well as various individual members of the governing boards of Morningside and the Club, challenging the validity of the Proprietary Fee under the Davis-Stirling Act. The lawsuit alleged that the Proprietary Fee was an impermissible unequal assessment and exceeded the amount necessary to defray the costs for which it was levied, both in violation of the Davis-Stirling Act. The lawsuit also alleged that Defendants engaged in election fraud by using information secretly obtained from the Inspector of Elections during the course of the election regarding who had voted. Defendants then used that information to tally the vote and determine who to contact in order to increase the number of votes in favor of the Proprietary Fee.

The court held that the undisputed facts showed that there were clear election violations which justified voiding the election results. Relying on provisions of the Davis-Stirling Act governing HOA elections (Civil Code section 5100 et seq .), the court concluded that the Inspector of Elections’ actions in providing Defendants ongoing updates of who had voted violated the principle of the secret ballot and the Inspector’s duty of fairness and impartiality to all homeowners primarily because the information was useful only to those in favor of the Proprietary Fee. The court further found that the Proprietary Fee disproportionately affected non-Club members (was “grievous and unjust” to them), which weighed heavily in favor of the court exercising its discretion in voiding the election and ordering restitution for Plaintiffs.

The ruling is particularly significant in that, like Morningside, several common interest developments with private golf clubs have also been looking for ways to shift a portion of the cost of supporting such clubs to non-club members. In light of the ruling in favor of SBEMP’s clients, they will likely now be wary of trying to do this by the means attempted by Morningside.

Charles L. Gallagher

The Motion for Summary Adjudication was prepared by Charles L. Gallagher, who has litigated this case with fellow SBEMP attorneys Shaun M. Murphy and David A. Smith. Mr. Gallagher is a litigation attorney and senior counsel with Slovak Baron Empey Murphy & Pinkney LLP. Currently, Mr. Gallagher’s practice is primarily complex civil litigation (real estate, eminent domain, contracts, municipal law/compliance and probate litigation), Federal Native American law, and appellate work. In the last five years, Mr. Gallagher has successfully prosecuted and defended actions on behalf of several commercial clients in a broad range of actions including breach of contract, fraud, land use and regulatory compliance. He has also represented municipalities in connection with the wind down of California’s Redevelopment Agencies and related litigation.

Click here to read full bio.

Shaun M. Murphy

Mr. Murphy is a Martindale-Hubbell AV-rated trial attorney and partner with Slovak Baron Empey Murphy & Pinkney LLP. Currently, Shaun’s practice is primarily complex civil litigation (contract, real estate and land use, trade secrets and intellectual property) and plaintiff’s personal injury. Shaun has experience in a broad range of issues, including employment claims, unfair competition, multi-jurisdictional product liability/recall actions, public and private construction disputes featuring delay/disruption/acceleration claims, and professional liability claims. He has also successfully defended several commercial clients in a broad range of claims including architectural copyright infringement, trademark infringement and breach of contract. He has extensive mediation and arbitration experience and has tried cases in both state and federal courts.

Click here to read full bio.

David A. Smith

Mr. Smith is a Corporate, Commercial, and Business Litigation Attorney who has represented several major creditor institutions, including Bank of America, Wells Fargo Bank, Chase Bank, Union Bank and numerous others. Mr. Smith has served as an American Arbitration Panel Judge specializing in Business Contract Transactions and related Partnership disputes in Orange County California. He has extensive background in HOA litigation and issues arising under the Davis-Stirling Act. Mr. Smith has also provided legal counsel to numerous professional sports athletes and various franchises while serving as General Counsel for both Athletes for Youth and Professional Sports Authenticators. In 2001 he was designated as an Expert in Sports Contracts and related issues and has participated in the arbitration and resolution of various contract disputes.

Click here to read full bio.

SBEMP Litigation Department

Slovak Baron Empey Murphy & Pinkney LLP’s civil litigation practice group offers a wide range of specialized litigation services for private sector companies, public agencies and individuals. Our litigators represent clients in an array of civil disputes, including:

To learn more about the firm’s Litigation Department click here.

Visit our Website

With locations in Palm Springs, CA, New Jersey, NJ, and Manhattan, NY,   SBEMP’S Litigation practice group offers a wide range of specialized litigation services for private sector companies, public agencies and individuals. Our litigators represent clients in an array of civil disputes, including: intellectual property, personal injury, complex business and real estate, trusts and estate, construction defect, owner, contractor/sub-contractor disputes, eminent domain and condemnation, homeowners’ association and hospitality, partnership disputes, tribal, healthcare, first amendment, and defamation.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Indian Wells, CA— December 19, 2019 — The law firm of Slovak, Baron, Empey, Murphy and Pinkney (SBEMP) announced an expansion into family law headed up by veteran family law attorney, Carolyn H. Martino, Esq.

“With more than 25 years of practice in the Coachella Valley and Los Angeles, Ms. Martino has earned an exceptional reputation for integrity, professionalism, and dedication to achieving positive results for her clients. Her expertise in handling complex dissolutions involving significant assets and custodial issues dovetails perfectly with SBEMP’s goal of serving the full spectrum of legal needs for our clients. We are very fortunate to have her on board.” said SBEMP Managing Partner, John Pinkney. Ms. Martino will launch the new practice field for SBEMP from their recently opened Indian Wells offices.

A New York native, Ms. Martino’s father was a legal scholar interested in International Law and public policy. She earned her undergraduate degree at UCLA and her J.D. at Loyola Law School. In addition to her outstanding legal acumen and trusted client relationships, Ms. Martino devotes her free time to her family and philanthropy through a variety of endeavors, including her roles as Co-Chair of the Family Law Section of the Desert Bar Association; Founding Member and VP of the Coachella Valley Youth Hockey Foundation; and Member of the City of Indian Wells Architecture and Landscaping Committee.

“Family law matters are so personal and unique to each individual,” Martino said, “yet they require the same keen attention as business law matters. Complex and emotional real-life issues related to how children are going to grow up and how a family’s financial life is going to change can become all-consuming. That is the part of this practice field that I connect with – the ability to hopefully counsel and guide people through what will be one of their most challenging periods in life, and to do so discretely and with compassion.”

About SBEMP: Established in 1995, SBEMP LLP has grown to become the largest full-service law firm based in the Coachella Valley. With offices in Palm Springs, Indian Wells, Orange County, San Diego, New Jersey, and New York, SBEMP provides legal services that range from labor and employment law, business and real estate law, mergers and acquisitions, healthcare law, tribal law, trusts and estates, litigation, public agency law and now family law. The foundation of the firm is hard work, creative and aggressive advocacy, and an unwavering focus on the needs of our clients. Our goal in every matter is to achieve the best possible result in a cost-effective manner.

Contact Us

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Indian Wells, CA; Costa Mesa (Orange County), CA; San Diego, CA; New Jersey, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

KNOW YOUR PARENTAL RIGHTS

Brief Overview of Special Education Law & the IEP Process
by Peter Nolan

Parents of children with disabilities between the ages of 3 and 21 have important educational rights protected under the law. The Federal Individuals with Disabilities Education Act (IDEA) provides for procedural safeguards with regard to the processes involved. Specifically, families with special education children have the right to:

Most importantly, parents must be given the opportunity to participate in the decision-making process regarding their child’s special education program. Parents have the right to participate in IEP meetings about their child’s eligibility, assessment, educational placement and other matters relating to their child’s free appropriate public education (FAPE).

To effectively protect their educational rights, parents need to be informed of the basic special education process under IDEA.

Step 1 – Child must be identified as possibly needing special education and related services. Schools engage in “Child Find” activities to assist in identification, but parents  may also ask to have their child evaluated.

Step 2 – Child is evaluated.

Step 3 – Eligibility is determined.

Step 4 – IEP process takes place. The process includes notification of parents, scheduling of meetings, and the development of the child’s IEP. During this process, the parents may express their concerns or disagreements directly with the IEP team.

Step 5 – Services are provided. The program laid out in the child’s written IEP is then implemented.

Along the way, the child’s progress is measured and reported to the parents. At least once a year, the IEP is reviewed and modified as necessary. Each child is reevaluated at least every three years.

Although forms will vary from one school district to another, every IEP should include the same information. That is:

As a parent of a special education child, you have the right to take any dispute you have with your child’s school district to a neutral third party for resolution.

For more information on the IDEA, the IEP process and your rights, contact your local school district, California Department of Education Special Education Division, U.S. Department of Education’s Office of Special Education and Rehabilitative Services, or contact us at SBEMP to discuss your child’s individual situation and see how we can protect your family’s rights.

CASE ALERTS

Disability Law Center of Alaska v. Davidson 

Summary: In March, 2018, the Disability Law Center of Alaska and minors R.S. and J.S., represented through their parent Kikona Savo, sued Commissioner of the Alaska Department of Health and Social Services, Valerie Davidson, and the State of Alaska, Department of Health and Social Services. The defendant’s motion for summary judgment was denied on grounds that plantiff, Davidson, did not inform the defendant on how to apply for applied behavioral analysis (ABA), did not reimburse ABA under the program, or provide ABA services in reasonable time. This case is yet another example of the importance of ABA programs and knowing the rights of special needs minors. Click here to learn more.

Green v. Green

Summary: Molly Green, after the death of her husband, filed a restraining order against stepson, Holden Green, in 2014. The Superior Court issued a one year protective order to Molly Green. Once the one year period had passed, Molly renewed the restraining order for another five year period in 2015. Holden then filed three separate appeals, claiming the initial restraining order was unqualified, and that the extension of the order and awarding of Molly’s attorney fees and costs were both unnecessary. The California Court of Appeal for the Sixth Appellate District ruled in Molly Green’s favor, affirming the renewal order. Click here to learn more.

Did You Know?

Families with 529 accounts can now transfer, at a rate of $15,000 annually, to an ABLE Act account for their child with special needs. Before doing so, families are encouraged to consult with their tax professional to fully understand the associated tax consequences.

ABLE Act beneficiaries who work are able to contribute part of their income (i.e., up to the Federal Poverty Level, $12,490.00) on top of the annual funding of $15,000.00.

It is permissible for a SNT Trustee, where the language contained therein supports the same, to fund an ABLE Act account for the SNT beneficiary up to the annual $15,000.00 allowance.

Palm Springs Life Vision 2019

Valerie A. Powers Smith was recently featured in Palm Springs Life as a 2019 visionary. Watch the video below and read the full article here.

A group of homeowners represented by SBEMP has prevailed on a Motion for Summary Adjudication against Morningside County Club (“Morningside”), a common-interest development in Rancho Mirage, California, which asked the court to void the results of an election which imposed a $250 monthly fee (“Proprietary Fee”) on all homeowners to support The Club at Morningside (“Club”), a private Golf and Tennis Club at Morningside, regardless of whether a homeowner was a member of the Club. Concurrent with the adoption of the Proprietary Fee, the Club gave its members a credit against their monthly dues in the same amount as the Proprietary Fee. Thus, in effect, non-Club members were required to pay the fee to subsidize the Club without obtaining any privileges at the Club. The court further held that Plaintiffs were entitled to restitution (reimbursement) of all amounts paid on the Proprietary Fee.

In 2015, SBEMP filed a lawsuit on behalf of 23 non-Club member homeowners against Morningside, the Club, the law firm of Peters & Freedman LLP (which acted as the Inspector of Elections), as well as various individual members of the governing boards of Morningside and the Club, challenging the validity of the Proprietary Fee under the Davis-Stirling Act. The lawsuit alleged that the Proprietary Fee was an impermissible unequal assessment and exceeded the amount necessary to defray the costs for which it was levied, both in violation of the Davis-Stirling Act. The lawsuit also alleged that Defendants engaged in election fraud by using information secretly obtained from the Inspector of Elections during the course of the election regarding who had voted. Defendants then used that information to tally the vote and determine who to contact in order to increase the number of votes in favor of the Proprietary Fee.

The court held that the undisputed facts showed that there were clear election violations which justified voiding the election results. Relying on provisions of the Davis-Stirling Act governing HOA elections (Civil Code section 5100 et seq.), the court concluded that the Inspector of Elections’ actions in providing Defendants ongoing updates of who had voted violated the principle of the secret ballot and the Inspector’s duty of fairness and impartiality to all homeowners primarily because the information was useful only to those in favor of the Proprietary Fee. The court further found that the Proprietary Fee disproportionately affected non-Club members (was “grievous and unjust” to them), which weighed heavily in favor of the court exercising its discretion in voiding the election and ordering restitution for Plaintiffs.

The ruling is particularly significant in that, like Morningside, several common interest developments with private golf clubs have also been looking for ways to shift a portion of the cost of supporting such clubs to non-club members. In light of the ruling in favor of SBEMP’s clients, they will likely now be wary of trying to do this by the means attempted by Morningside.

 

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Indian Wells, CA; Costa Mesa (Orange County), CA; San Diego, CA; New Jersey, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Sapp v. Rogers

Cite as E068030
Filed June 11, 2019
California Court of Appeal, Fourth District
Case Overview: Court removes trust administrator for delay and breach of duties.
After the passing of Roscoe Sapp, Sr. in 1994, Edith Rogers and Roscoe Sapp, Jr., his granddaughter and son, were appointed co-administrators of his estate. The Estate included 11 parcels of land worth approximately $6-9 million. On June 22, 2001, Rogers and Sapp, Jr. petitioned the probate court of California for instructions on how to administer the estate because each had a different opinion as to what the Decedent had intended. One believed the Decedent intended for all but one of the real property parcels to be liquidated and that proceeds of the same would be distributed to heirs capable of caring for themselves with the remaining assets to be used to establish a care facility for heirs who were incapable of caring for themselves; whereas, the other believed said real property parcels should be sold and net proceeds distributed to the heirs outright. The living heirs executed documents indicating they agreed with the latter and wished for the net proceeds to be distributed equally to them, outright and free of any restriction. On August 30, 2001, the petition for instructions was granted and the Judge directed the co-administrators to “sell the [estate’s] property.”
Before the properties were sold pursuant to the 2001 Order, however, Sapp, Jr. died (in 2003), leaving Rogers as the sole administrator. By 2016, the real property parcels still had not been sold. In light of the delay,two of the decedent’s grandsons, Brian Lincoln and Armuress Sapp, each filed petitions to remove Rogers as administrator of the Estate, claiming Rogers never showed real intent to distribute the estate to Roscoe Sapp Sr.’s heirs.
The probate court filed a tentative decision granting the petitions to remove Rogers as administrator and appoint Armuress as successor administrator. According to the testimony, Rogers “tried to buy out various beneficiaries for $10,000 per person,” although the properties were worth millions. Based on this, the probate court concluded Rogers had acted in bad faith toward the heirs of the Estate and was “not capable of acting as an impartial fiduciary.” Rogers appealed (in 2017). The Appellate Court concluded that Rogers resisted implementing the 2001 instructions and acted in bad faith toward the heirs, which was deemed by the Court as “mismanagement”, necessitating the removal of Rogers and the appointment of a new administrator in order for the estate to be resolved.
Click here to read more.

North Carolina Dep. of Revenue v. Kaestner

Cite as  588 U. S. ____ (2019)
Opinion Decided June 21,2019
Supreme Court of the United States
Case Overview: Court rules that Department of Revenue cannot tax a trust created and maintained in another state.
Joseph Lee Rice, a New York resident, formed a trust which was passed on to his daughter, Kimberley Rice Kaestner, who, at the time, was also a New York resident. After moving to North Carolina, the trustee, Kaestner, divided the trust into three separate sub-trusts for her and her children’s lawful benefit. During the tax years of 2005 through 2008, North Carolina imposed a tax of more than $1.3 million even though the Trust did not have a physically presence in the State of North Carolina, did not make direct investments in the State of North Carolina, or posses any property in the State of North Carolina. Kaestner paid the tax under protest and, then, sued the North Carolina Department of Revenue for violating the Fourteenth Amendment’s Due Process Clause. The Supreme Court of North Carolina ruled in Kaestner’s favor, holding that in-state residence was not enough grounds to tax the Trust.
Click here to read more.

Gonzales v. City National Bank

Cite as B284521
Filed June 24, 2019
California Court of Appeal, Second District
Case Overview: Department of Health Care Services Entitled to reimbursement for Medi-Cal expenses.
Having suffered complications at birth, leaving her severely disabled, Brenda Gonzales received a $2.4 million settlement from a malpractice lawsuit instituted thereafter. Her settlement was irrevocably assigned to a special needs trust (“SNT”). The SNT was established by court order, pursuant to Probate Code Sections 3604 and 3605 (permitting the court to approve payment of settlements or judgments to special needs trusts established for minors or disabled persons). The SNT would terminate upon Brenda’s death. The SNT stated that its “intent and purpose…is to provide a discretionary, spendthrift trust, to supplement public resources and benefits when such resources and benefits are unavailable or insufficient to provide for the Special Needs of the Beneficiary [Brenda]…This is not a trust for the support of the Beneficiary [Brenda].” Furthermore, “no part of the principal or income of the trust shall be construed to be part of the Beneficiary’s estate.’”
After Brenda’s death, her parents, Josue Gonzales and Juanita Gonzales Garcia (Plaintiffs), requested that the remainder of her SNT be distributed to them, rather than to the Department of Health Care Services (Department) as reimbursement for Medi-Cal payments for their daughter’s medical care. The probate court denied their request and they appealed. The Appellate Court affirmed, stating that the probate court properly found the Department was entitled to reimbursement for these Medi-Cal expenses.
Click here to read more.

Does Your Estate Plan Include Your Pets?

Have you considered your pet or pets when planning your estate? If not, you should, according to The Humane Society of the United States, the nation’s largest animal protection organization.
Click here to read the full article.

Firm Announcements

Trusts, Estates & Probate Services Now Available in Indian Wells Office

With the expansion of SBEMP, Ms. Powers Smith will now provide Trusts, Estates & Probate services in the new Indian Wells office. The Indian Wells office is the newest addition to the firm, which has locations in Costa Mesa, Palm Springs, San Diego, and New York and New Jersey.

When is the Right Time to Get Your Estate Planning Affairs in Order?

The answer is, now. Whether it is because you have yet to do your estate plan or that your plan is needing updating due to the passage of time, change in laws, or life events such as marriage, divorce, incapacity, death, or the birth or adoption of a child.

Click to continue reading.

Estate Planning and Special Needs Speaking Engagements and On-Site Training.

SBEMP offers free speaking engagements and on-site check-ups on the topics of estate planning, special needs trusts, guardianships/ conservatorships, and special education. Contact SBEMP to schedule a special engagement or on-site check-up for your group.

With locations in Palm Springs and Indian Wells, CA, New Jersey, NJ, and Manhattan, NY, SBEMP’S Trusts, Estates & Probate Department is comprised of attorneys with decades of experience in a broad range of issues from planning to administration to when incapacity or death occurs – all while using a mindful approach to identify a client’s special, business or litigation needs.  SBEMP’S Special Needs & Elder Law Department has over twenty years of experience including the following highly specialized practice areas: health care insurance, short-term and long-term disability insurance, Medicaid, Medicare, special needs trusts, trust administration, estate planning & administration, guardianships and conservatorships, and accessing disability-based benefits.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Generally, an employee’s “ordinary commute”  to and from work is not compensable under California labor law. This is true even when the employee commutes in a vehicle that is owned, leased, or subsidized by the employer. Likewise, employees who are part of a home dispatch program and who may transport tools and equipment without expending extra effort or requiring extra time for transport during their commute time are not performing compensable work.

Further, a commute may be an “ordinary commute,” and thus non-compensable, even if the employee travels to different worksites on different days, located within reasonable distances.

However, the DLSE has taken the position that travel involving a substantial distance from the assigned work place to a dist ant work site to report to work on a short-term basis is compensable travel.

There are many factors that must be taken into consideration when deciding whether or not you are required to pay for time which your employees spend traveling to job sites : whether the employees had an expectation of routinely working in different workplaces; whether the distance is reasonab le ; whether the employee is carrying the employer’s equipment ; whether the employer is exercising control over the employee will all have an effect on the final determination .

For assistance on this and other wage and hour questions, please contact the Labor & Employment Department at SBEMP.

Employment & Labor Law Attorneys of SBEMP

SBEMP’S Labor and Employment Department is comprised of attorneys with decades of experience in a broad range of labor and employment matters from day-to-day counseling to labor negotiations and litigation. Our team is prepared to guide our clients through the complex myriad of employment laws affecting California employers. We assist our clients with day-to-day personnel management issues, such as drafting employment policies, managing leaves of absence, identifying potential problems in hiring and firing practices, and ensuring wage and hour compliance. Our attorneys are also experienced litigators who regularly represent clients in all types of employment litigation, including defending wage and hour class actions as well as lawsuits alleging discrimination, harassment, and retaliation. Additionally, we regularly represent clients in administrative proceedings, such as Labor Commissioner claims, CalOSHA citations, DFEH and EEOC investigations, and DLSE complaints. Our labor and employment practice is also prepared to assist clients with labor negotiations and disputes. Our labor attorneys are experienced in negotiating labor agreements as well as representing clients before the NLRB.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.