BILL DANIELS | LAW OFFICES, APC — Personal Injury, Encino, CA William A. Daniels | (800) 573-0490

Big news today is that the U.S. Supreme Court upheld a Vermont personal injury jury verdict against drug manufacturer Wyeth.  The drug company had attacked the verdict claiming it had no liability under state law because the FDA had approved its labelling.  Wyethe v. Levine, 2009 WL 529172 (U.S.Vt.)

To their credit, the Supremes said, “no way.”  While the FDA is an important regulatory agency charged with overseeing drug safety at the federal level, the states have a role in protecting their own citizens as well.

What does this all mean?  Well, to the consumer, it means that when they are injured by a defective product, the manufacturer is now more likely to be held accountable under local state standards, rather than finding shelter under what is generally a much more lax federal system.

Does this mean personal injury claims involving product liability have become simple to prosecute?  Absolutely not.  These are still tough, hard fought cases and they will continue to be.

What the Wyeth decision does mean is that we have hopefully seen the high water mark of the Bush-era attempts to roll back state consumer protections, a movement that has caused untold harm to many millions of citizens.

Posted under Civil Justice Attorneys, Civil Procedure, Personal Injury

In California, employees are generally considered “at will,” which means that the law permits employers to suspend, demote or terminate (fire) them without providing a reason.  As a result, if you believe your employer has simply been unfair to you in the workplace, there is usually no remedy other than finding another job.

There are important exceptions to this general rule, especially where an employer acts in a discriminator manner.  It is illegal for an employer to discriminate in the workplace because of age, gender, race, national origin or sexual orientation, among other protected classes.  It is also usually prohibited to fire or discipline an employee for reporting or complaining to officials or governmental agencies about illegal discrimination, what is usually referred to as “whistle-blower” conduct.

To protect our precious system of trial by jury, the law also prohibits firing or otherwise disciplining an employee for missing work due to jury service.  However, your employer may limit the amount of paid time provided where an employee is selected to serve on a jury.

In some cases, if you quit or relocated because you were relying on a job offer, but the offer wasn’t made in good faith, you might have a remedy.  However, this exception requires that you can show that the employer made the offer in bad faith, meaning they knew the job offer wasn’t serious at the time it was made.

Some employees have contracts for fixed employment terms or that state they can only be fired for good cause.  Where an employer violates that agreement, the remedy is a breach of contract action i a civil court.

In some cases, a court will find an implied in fact contract that gives an employee rights beyond those the at will doctrine provides.  In finding an implied in fact contract, the court will look at such factors as length of employment, job performance evaluations, job duties, commendations, assurances of employment for certain terms and promises made in an employee handbook or human resources policy manuals.  There is no fixed standard in the court’s analysis and such factors as whether an employer is acting out of economics or was justified in acting because of poor job performance by the employee will all be taken into consideration.

Often, if you believe you have suffered illegal discrimination in the workplace or some other illegal job action, your best course is to consult an experienced employment attorney who can help you analyze your options.

Posted under Civil Justice Attorneys, Employment

In general, California job applicants can be asked to take a drug test as part of the job application process.

For existing employees, the rules are different.  Usually an employer must have some sort of legitimate concern before requiring drug testing of an existing employee, such as a reasonable suspicion of illegal drug use.  

Some jobs involving public safety don’t restrict employer drug testing in the same manner as regular employment.  If you drive a passenger bus, operate railroad equipment or work in various other special areas, particularly in the transportation field, an employer has greater rights to require drug testing and may not even be required to give advance notice.

When in doubt, consult with the Department of Labor Standards Enforcement or your union representative.

Posted under Employment

There are limits on what employers in California can ask you during a job interview, so it pays to know your rights.

In general, interview questions must relate to the background and skills that are necessary to perform the job in question.

Normally, your potential employer can’t ask questions about your age, religous beliefs or sexual orientation.  Also prohibited in most cases is asking whether or not you have, or once had, a disability, though the employer may ask if you are able to perform the general job duties for which you are being considered.

A potential employer usually is prohibited from asking if you’ve ever been arrested if the arrest did not lead to a plea bargain, verdict or some other finding of guilt.  Employers are generally barred from obtaining your arrest record or from using an arrest alone in making employment decisions.  While there are exceptions to this rule (such as for certain law enforcement and other sensitive positions) this protection applies generally to both job applicants and employees seeking promotion.

Employers may ask if you have been arrested and are awaiting trial on criminal charges or, usually, if you have been convicted of a crime.  Still, there are protections for workers in this area as well.  So, an employer is usually barred from asking about any marijuana conviction more than two years old, or from inquiring about a conviction where the records were sealed.

Posted under Employment

Obviously your job is important to you. It feeds your family. Pays the rent. Helps educate your children.

You work hard for your employer. You show up on time and stay late when needed. You do your best to succeed.

Though you have to meet the requirements expected at work, you also have certain rights under the law as an employee.

For example, generally speaking, you employer has to pay you the minimum wage. Most hourly employees are also entitled to regular breaks, overtime pay, worker’s compensation insurance, unemployment insurance and unpaid time off for serious illness or a new baby.

Sexual harassment in the workplace is generally prohibited, as is discrimination based on certain characteristics such as gender, race, national origin or religion. If you suffer from a disability, your employer may be required to accommodate you by making changes in the workplace so your can perform the essential functions of your job position.

Sometimes a situation at work will seem unfair or even intolerable. When it does, it is best not to suffer in silence. Let your supervisor know that there is a problem, or if appropriate, consult with human resources. Most workplace problems can be resolved informally when there is communication. You may be surprised with the result!

If your employer is unwilling to help you solve your workplace problem, there may be other solutions. The California Department of Industrial Relations can help you understand your rights and provides services for employees in the state.  There are low-income clinics and workshops aimed to assist California workers, you can find references to them on the internet.

Of course, if you have a serious employment problem, whether its wage and hour, wrongful termination or discrimination, Bill Daniels | Law Offices is on your side.

Posted under Civil Justice Attorneys, Employment, Wage and Hour

The National Safety Council is looking for a ban on all cell phone use by drivers in all 50 states.

A growing number of states and some local governments have their own bans in place.  In California, the law restricting cell phone use while driving to “hands free” mode is one of the more widely ignored traffic laws on the books.

The NSC’s point is that cell phones are inherently distracting, even if used hands free.  The only solution according to the non-profit advocacy group, is to ban their use while driving.

A Harvard University study cited by the NSC has cell phone use contributing to six percent of all auto crashes, resulting in 636,000 accidents, 12,000 serious injuries and 2,600 deaths per year.

Posted under Auto Accident, Personal Injury, Safety

Bad news for Los Angeles County judges, with the California Supreme Court refusing to hear Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, which forced L.A. Superior Court judges to take a 27% pay cut.

Hopefully the Legislature will take this issue up soonest, but no one is counting on rapid action given the state of the State’s current financial problems.

A copy of the opinion is here:  Sturgeon v. County of Los Angeles

Posted under Uncategorized

Big “duh” here for students of personal injury law.

A study reported in the New York Times found that settling a case is statistically a better course than going to trial.  Of course, personal injury lawyers and adjusters know that from their own experience, but here, it seems, is some scientific support for the notion.

According to the study, which was published in the September 2008 issue of the Journal of Empirical Legal Studies, attorneys need to take care to adequately advise their clients as to the risks versus potential rewards of going to trial.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a coauthor of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

A complete copy of the article is here.

Posted under Civil Justice Attorneys, Civil Procedure, Completely Different

Labor Code section 227.3 provides employees with a right to vacation pay upon termination of employment when vacation is offered in an employer’s policy or contract, according to the Division of Labor Standards Enforcement policy manual.

The leading California case, according to the manual, is Suastez v. Plastic Dress-up Co. (1982) 31 Cal.3d 774.  According to the DLSE manual, vacation entitlements constitute deferred wages which vest as they are earned, so any entitlement to vacation is a proportionate right and vests as labor is rendered.

Vacation pay cannot be forfeited under a so-called “use it or lose it” policy.  Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595, 1601.  However, a cap may be placed on the amount of vacation that may accrue if not taken under certain circumstances.  Henry v. Amrol (1990) 222 Cal.App.3d Supp. 1.

The bottom line, sometimes it pays to check with a knowledgable employment attorney to make sure your pay is in line with the law.

Posted under Employment, Wage and Hour

If you are looking for information about a personal injury case that you believe might be similar to your own, the Superior Court file is a great resource.

Reveiwing the file is free.  All you need to do is go the the court house where the case was filed, go to the clerk’s office and ask how you can review the file.

Generally, if the case is still being litigated, the case file will be in the courtroom where the judge is handling it.  In other cases, the files are kept in a central filing area.  In either case you’ll need the name of the parties and the case number.  Both are available on public sources, including over the internet.

California Rules of Court rule 2.550(c) specifies that “Unless confidentiality is required by law, court records are presumed to be open.

2.550(d) requires that, in order to seal a file, the court must make an express finding that:

(1)  There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and 

(5) No less restrictive means exist to acheive the overriding interest.

Posted under Civil Procedure