Understand Your Rights. Solve Your Legal Problems
A lot of drivers don't like it when motorcyclists overtake traffic. They think that leaving the lane and going in front of other vehicles is unsafe. However, the truth is that not all US states consider the practice illegal. Lane splitting is a safer option for motorcyclists. Giving them the ability to get out of the way of congestion and having to travel at a slower speed than the other traffic. But, is it legal to lane split in every state? Let's take a look at motorcycle lane splitting laws. Read on.
Lane splitting, also called white-lining, nose riding, or lane sharing, is the practice of riding a motorcycle between lanes or lines of stopped or slow-moving cars. It is controversial, and its legality varies from place to place. In the United States, lane splitting is illegal in most states, with a few states allowing it with some exceptions.
Lane splitting has several benefits, chief among them being the decreased likelihood of being rear-ended by a car. It also decreases the amount of time spent stopped in traffic and can be a lifesaver in a traffic jam. However, lane splitting can be dangerous and is not for everyone. It requires skill and experience and even then can be risky. Motorcyclists who choose to lane split should be aware of the risks and be sure to ride defensively.
Lane splitting, or riding between lanes of stopped or slowly moving traffic, is a great debate. Some say it's illegal, while others argue it's a safer way to ride. So, what's the real answer?
In some states, like California, lane splitting is legal, while in others it is not. However, intentionally blocking a motorist is illegal.
In most states, motorcycle lane splitting in the US is not explicitly illegal. However, that doesn't mean it's necessarily legal, either. The best course of action is to check your local laws and use common sense when lane splitting.
Some safety experts argue that lane splitting is safer than riding in a lane of traffic. They say it allows riders to get out of the way of danger, and it can help reduce traffic congestion.
Others say that lane splitting is dangerous and distracting. They argue that it's hard for drivers to see motorcycles splitting lanes, and it can lead to motorcycle lane splitting accidents. You may see this page for more facts.
It can be difficult for motorists to see motorcycle riders who are lane-splitting. This increases the risk of a collision. Additionally, lane splitting can also be dangerous for riders themselves. When a motorcycle rider lane splits, they are more likely to be hit by a car door or be involved in a multi-vehicle collision.
Given the risks, motorcycle riders need to use caution when lane splitting. If possible, they should avoid lane splitting during heavy traffic periods. Additionally, riders should be sure to always use their turn signals when changing lanes.
Motorcycle lane splitting is a dangerous maneuver that is illegal in most states. Riders should know the lane splitting laws in their state before attempting it. Many states have enacted laws specifically prohibiting lane splitting, so riders should be aware of the risks involved.
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In this feature, experienced employment lawyer Elnaz Masoom provides an outline of the process involved in an employment tax audit by California’s EDD, what business owners should expect, and what steps should be taken in the aftermath.
This article covers the general process and important issues that we see come up in the course of California’s Employment Development Department tax audits, with a focus on the employment misclassification audits of businesses that utilise the services of independent contractors. Substantive legal analysis of California’s independent contractor laws is not part of this content.
The EDD audit process will always begin with a notice from the EDD. Oftentimes, this notice will come along with a list of documents or information being requested, a questionnaire, and a general description of the audit process. Following this initial communication, the EDD will set up a visit or a phone call to discuss the documents produced and ask follow-up questions. Once the auditor reviews the available records, the auditor will provide you with a Proposed Notice of Assessment either verbally or in writing, followed by the Notice of Assessment setting forth the findings and your liability assessment. If you are assessed back taxes or penalties, you will also be notified of your right to appeal the EDD’s determinations and assessments.
Random audits are rare. Occasionally, audits are triggered when a former 1099 contractor applies for unemployment benefits with the Employment Development Department (EDD) or by the late payment of payroll taxes. Notably, the most significant source of audits is the Joint Enforcement Strike Force (JESF). Led by the EDD, the JESF is a coalition of California state government enforcement agencies, including the Franchise Tax Board (FTB) and the Division of Labor Standards Enforcement (DLSE), that work together and share information to combat what is known as the “underground economy.” The JESF has procedures for reporting underground operations to the EDD for investigation, often resulting in EDD audits.
Random audits are rare.
The law allowing for the inspection of an employer’s books and records gives the EDD the right to inspect “ordinary and necessary” records relating to workers, whether these workers are employees or outside contractors. [i]
Intrusive audits can easily get out of hand — this can occur if you deal with an inexperienced auditor who goes into a phishing expedition not necessarily with a clear purpose but to see what might be discovered. Other times, the auditor insists on inspecting each and every document listed on the EDD’s Minimum Required Records list, even when they are not relevant to the audit, or are duplicative of other requests[ii]. As interpreted by the US Supreme Court and the California Supreme Court, the information sought must be “reasonably relevant to the intended investigation.”[iii]
Notably, the usual statute of limitations for EDD audits is three years, but on certain occasions may be extended up to eight years if the auditor finds “bad conduct” on behalf of the business. This bad conduct is identified as failing to pay payroll taxes on time without good cause. In the case of fraud or investigation for evading taxes, there is no statute of limitations.
For years, improper audit techniques on the part of EDD have resulted in misclassification findings while creating chaos for businesses. It is the responsibility of the auditor to take a proper representative sample of workers and their functions before considering reclassifying an entire group of workers as employees rather than independent contractors. When an inadequate sampling is conducted, reclassification is improper and lacks support.
If the auditor did not go far enough in taking a representative sample or there is no sampling at all, more interviews and diligence is warranted by the auditor under the employer’s Bill of Rights. [iv]
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Depending on the outcome of your EDD audit, the aftermath will vary. The auditor may find violations, underpayments, or an overpayment of taxes. A determination of underpayment of taxes will warrant your business to pay overdue taxes with interest and penalties. Payment will be due 30 days from when the assessment is finalised; otherwise, a penalty will be added. The taxpayer’s appeal rights are limited and time-sensitive, so the 30 days post-audit are crucial. Within 30 days from the Notice of Assessment, you must either pay the amount fined or file an appeal. Any negative findings of the EDD can have serious repercussions for the future of your business.
Even if you can “afford” the penalties, you may have to change how your business operates. Aside from the penalties that will accompany the EDD’s determination, the way your business operates will need some serious revisions. Changing the way your business operates comes in conjunction with abiding by a whole new set of laws and regulations that you did not have to previously follow.
We have seen over the years that these changes are not easy to implement as they include an analysis of various wage and hour laws and management practices. Plus, most legitimate contractors maintain significant control over how and when they perform their tasks, negotiate mutually agreeable contract terms, are free to complete work without control by another, and would not agree to any other type of business arrangement.
Why Do You Need Legal Counsel by Your Side?
During an EDD audit, consulting with legal counsel will provide you with a better idea of your company’s rights and facilitate communication with the EDD. Legal counsel will also help you build a solid case defending your business practices, as audits can be fast-paced and have serious consequences. Competent legal counsel can spot inadequate audit methods and fight the auditor’s unreasonable expectations. This is probably the most crucial reason to have proper legal advice and representation to protect your business model, which you may be forced to change as a result of an audit. Finally, legal advice is key during the transition from the contractor to an employee model.
Elnaz Masoom, Managing Attorney
1625 The Alameda, Suite 700, San Jose, CA 95126
Tel: +1 408-599-3191
About Elnaz Masoom
Elnaz Masoom is the founder and managing attorney of Masoom Law PC, an employment and litigation law firm based in San Jose, California. Elnaz has practiced employment and business law exclusively since 2010 and has assisted organisations across a multitude of different fields and with widely varied business strategies, cultures and product offerings. With an interdisciplinary understanding of business organisation, management practices and labour laws, Elnaz has successfully represented businesses and employers during employment tax audits up to and including administrative hearings and appeals.
[i] See CUIC §§ 1085, 1092.
[ii] See EDD Publication DE 231 TA.
[iii] See 1980 Younger v. Jensen, 26 Cal 3rd 397; see also US. V Powell (1964) 379 US 48.
[iv] https://edd.ca.gov/siteassets/files/pdf_pub_ctr/de195.pdf.
On Tuesday, British online fashion retailer Boohoo announced it had settled a US class action lawsuit that claims it offered large discounts to customers in California based on inflated original prices.
Boohoo, which sells clothing, accessories, shoes, and beauty products, had agreed to terms for a preliminary settlement back in November 2021.
The retailer says the settlement is without admission of liability and is within its existing legal provisions, which stood at £17.8 million as of February.
In an update on the case, Boohoo said: “Further to the RNS published on 4 November 2021, when the group reported that it had agreed terms of a preliminary settlement relating to a class action claim brought against the group in the United States District Court for the Central District of California, the group is pleased to confirm that the parties have reached a final settlement.
“The settlement is without admission of liability and is consistent with the guidance of 4 November 2021, being within the group’s existing legal provisions disclosed in its latest published audited accounts.
“The settlement remains subject to review and approval by the District Court.”
In San Francisco on Wednesday, US District Judge William Orrick ruled Tesla Inc was liable to a Black former employee who said the EV company ignored racial abuse at the factory where he worked. However, the judge reduced a nearly $137 million jury award to just $15 million.
Judge Orrick made his decision after jurors last October found that Tesla subjected Owen Diaz to a hostile environment at Tesla’s factory in Fremont, California, by failing to stop the racism he faced there.
Diaz worked at the Fremont plant for nine months between 2015 and 2016. He said that other employees at the factory used racist slurs when addressing him and wrote racist language on the walls, including the “N-word”. Diaz also said that one Tesla supervisor drew a racist caricature near his workstation.
Judge Orrick said the evidence amply supported the jury finding Tesla liable for the profound emotional harm Diaz suffered during his time at the company. However, Orrick reduced Diaz’s compensatory and punitive damages significantly, from $6.9 million to $1.5 million and from $130 million to $13.5 million respectively.
Diaz’s lawyer, Bernard Alexander, has said his client plans to appeal the lowered damages award.
AB 218 is a new breath of hope for survivors of childhood sexual abuse. Of course, no child deserves to experience such an unpleasant and traumatic occurrence. However, life could be unfair because some people have chosen to act despicably. Thanks to AB 218 and its modern reformation, there are now additional rights that extend beyond the three-year lookback window. Let us examine these rights.
STATUTE OF LIMITATION
Statute of limitation refers to enacted laws that provide individuals with enough time to take legal proceedings against another party after a dispute. There is always a date that marks the validity of filing a lawsuit. It shows the deadline the individual has.
A major determiner of the Statute of limitation is the kind of offense. Also, is the individual seeking justice against a criminal or only making a civil complaint?
For example, AB 218 has seen a turnaround in its structure. Offenders can be prosecuted no matter how many years ago they could have committed the crime. It helps to pursue justice as long as possible. No evil should be allowed to go unpunished for the deserving punishment.
LEGAL ASPECTS OF AB 218
The California Assembly Bill 218 allows survivors of childhood sexual abuse to take actions towards justice. It has been a source of encouragement for many survivors that are yet to pursue justice. It has been one of the best things that have been signed into law in the last two years.
The additional rights of survivors include;
In as much as they are not yet 40 years old, anyone that has survived sexual abuse as a child can still take actions towards financial compensation. Prior to now, the age limit used to be 26 years old. Nevertheless, people who have passed 40 years since the law was signed into the bill can still file claims.
AB 218 permits the survivor to take legal actions within five years of discovering a psychological injury. Experiencing trauma after harmful incidents like sexual abuse is common. Before AB 218, the duration used to be three years.
AB 218 permits the courts to issue treble damages in cases of wrongdoing. Sounds complicating? No, it should not. The AB 218 triple damage clause means that a survivor should be paid a multiple of three of any compensation or cover-up fee that they may be given.
There are different reasons young survivors may not have voiced out when they experienced sexual abuse. Some of these reasons include;
A child may not know what sexual abuse is. He or she may know something terrible was done towards them but may not understand the implication. Those who may understand may not know how to take legal procedures. They could experience the situation while with a guardian and be unable to share their story till when they are much older.
Sometimes, the post-traumatic syndrome after an occurrence could make one realize the situation was more dangerous than one would have thought. PTSD could bring flashes of bad memories and be disturbing to the person involved. Hence, AB 218 strongly considers PTSD and its possible effect on the survivor.
Much more than the psychological mess sexual abuse brings, there could be damage to the human body too. For some, they could experience discomfort at their genitals. Knowing this later in life will have a different level of response than when it occurred at first. Once the person involved understands the full effect, they will be ready to take action.
California could have set the standard when it comes to the Statute of limitations, but some efforts should be commended. It is essential to say that Gavin Newsom was the Governor when AB 218 was signed into a bill. However, another effort that should be praised is that of Samuel Dordulian, former Deputy District Attorney for Los Angeles County.
According to Mr. Dordulian, the AB 218 is like "a time machine" because it allows solicitors to go "back in time" to take legal actions. Also, he mentioned the fact that the Statute of limitation could have expired.
By expiration, he meant that the “loockback window" had removed the Statute of limitations for three years. Before, survivors only had three years to file their cases against offenders. However, things have evolved as these offenders can now be subjected to litigation irrespective of when the crime could have been committed.
Also, the lookback window will expire by January 1, 2023. Nevertheless, many childhood sexual abuse survivors would have fought for their justice and be happier that justice is served. Also, other states have taken a cue from California and put laws that help survivors in place.
Conclusion
The world is becoming a better place. Thanks to good bills that are enacted to create a saner environment. AB 218 may be expiring by 2023, however, it has been a life-saver for many.
Many employers in California have had the unfortunate experience of either litigating a lawsuit or resolving a pre-litigated matter under the Private Attorneys General Act (PAGA), typically after extensive time, effort and resources have been expended. In both instances, the cost to defend is usually enormous. Indeed, some small (and large) businesses have been forced to declare bankruptcy because of PAGA claims.
Under PAGA, an “aggrieved employee” may bring a representative action on behalf of him or herself and other “aggrieved employees” for civil penalties for various violations of the Labour Code. (Labour Code §§ 2698, et seq.)
PAGA was intended to deputise citizens as private attorneys general to enforce the labour code considering the state government’s limited resources. Particularly, PAGA – sometimes called “the Bounty Hunter” statute – allows these employees to step into the shoes of state regulators to recover civil penalties and to receive part of the amount recovered as compensation: seventy-five per cent (75%) of the penalties recovered go to the state, and twenty-five (25%) go to the employees.
However, since its enactment in 2004, rather than streamline and regulate employer violations of the Labour Code, PAGA claims have skyrocketed for various reasons unrelated to legitimate violations, including the fact that employees cannot waive their right in an arbitration agreement to bring PAGA claims, thereby creating litigation challenges for employers. Further, because PAGA allows for attorneys’ fees, most employers will settle PAGA claims before trial to avoid expensive litigation.
Notably, underlying claims that create exposure in PAGA actions include the full gamut of wage and hour violations, such as missed meal and rest breaks, failure to provide itemised wage statements, and failure to pay overtime. Given the array for potential exposure, even for the scrupulous employer, plaintiffs are incentivised to file complaints alleging a wide variety of purported violations, even if they did not or could not have personally suffered a violation of the subject provision.
In October 2021, several business organisations, including the California Chamber of Commerce, California New Car Dealers Association and Western Growers proposed an initiative, the California Fair Pay and Employer Accountability Act (CFPEAA), for the 2022 ballot. If approved by California voters, the CFPEAA effectively repeals PAGA by eliminating the ability to pursue civil penalties via a representative action.
For employers, the greatest upside of the CFPEAA, as it relates to future PAGA lawsuits, is that it would eliminate the ability for aggrieved employees to stand in the shoes of the Labour Commissioner and recover civil penalties through a representative action. Instead, the Division of Labour Standards Enforcement would have greater enforcement responsibility and the California Legislature would be required to provide funding for the Labour Commissioner to enforce Labour Code violations (i.e., the Labour Commissioner handles violations). This would remove the supposed need for private enforcement.
Additional benefits of the CFPEAA to employers includes, but is not limited to, the following:
Clearly, for employers, the CFPEAA is a promising solution to California’s rampant PAGA problem. Supporters of the initiative have until June 6, 2022, to collect at least 623,212 valid signatures to qualify the measure for the November 2022 general election. While the CFPEAA may admittedly struggle to qualify for the ballot (considering that three PAGA-reform initiatives did not make it on the ballot in 2017), the passage of Proposition 22 in 2020 demonstrates that business-driven employment law ballot measures can be adopted, even in the very employee-friendly Golden State.
About the authors:
Antwoin Wall is a Senior Associate with Pearlman, Brown & Wax, LLP assisting clients in employment matters, including claims of discrimination, harassment, retaliation, wrongful termination, and wage and hour litigation. He can be reached at adw@4pbw.com.
Corinne Spencer is a Senior Employment Counsel and Chair of the Labour and Employment Practice Group at Pearlman, Brown & Wax, LLP. She focuses on counselling clients in employment-related matters including litigation, risk assessment, policy preparation, and training. She can be reached at cds@4pbw.com.
In a lawsuit filed in California on Wednesday, Tesla assembly line worker Erica Cloud has accused defendants, including her former manager, of “continuous and pervasive” sexual harassment. Tesla and other defendants subjected Cloud to "a hostile work environment stemming from animus towards her gender, sexual harassment," the lawsuit says.
Cloud claims her former manager hugged and massaged her while making inappropriate remarks. She said she is now experiencing retaliation from other managers after complaining to the company’s human resources department about the misconduct.
Cloud’s lawsuit is the second lawsuit suing Tesla for sexual harassment in less than a month. On November 19, another female Tesla employee, Jessica Barraza, filed a lawsuit against Tesla alleging rampant sexual harassment at the company’s main factory in Fremont, California.
"The pervasive culture of sexual harassment, which includes a daily barrage of sexist language and behavior, including frequent groping on the factory floor, is known to supervisors and managers and often perpetrated by them," Barraza’s lawsuit claims.
Three female employees who work at a UPS hub in Oakland filed a complaint in California federal court on Wednesday. The complaint claims that female staff are routinely given dead-end jobs, leading to lower pay and fewer opportunities for progression within the company than their male colleagues. The complaint also says that such issues are compounded for older female workers at the company. UPS does not have effective procedures in place for filing complaints or enforcing anti-discrimination policies, the complaint says. It alleges that UPS ignores the disparities between its male and female workers.
The plaintiffs, who are all in their 40s and 50s, say they have been denied opportunities to progress and are not afforded the benefits of seniority that are granted to male workers at the company. They also say that they have faced harassment for taking medical leave.
UPS is accused of violating Title VII of the Civil Rights Act of 1964, the federal Equal Pay Act, and comparable California laws, with the plaintiffs representing a nationwide class of female UPS employees who have been at the company since November 2017. They seek at least $250 million in actual, compensatory and punitive damages.
On Wednesday, lawyers for Walmart asked US District Judge Maxine Chesney to dismiss Greenpeace’s renewed complaint, arguing that the environmental group has again failed to demonstrate that it has suffered any harm from the retailer’s alleged deception.
The lawsuit comes as part of a series of cases claiming single-use plastic products are marketed as recyclable when, in reality, they are not due to the limited capacity of recycling facilities in the US.
Greenpeace first sued Walmart over its allegedly deceptive labelling back in December. In September, Bentonville Walmart convinced Judge Chesney to abandon its complaint for lack of standing. However, Chesney said that Greenpeace could amend its claim, which the environmental charity chose to do last month.
In a press release, Walmart said that Greenpeace was “trying to get a second bite at the apple by rewording its allegations.”
By using and modifying open-source software and not making its source code publicly available, Vizio breached two public licenses, says the complaint filed Tuesday by SFC in Orange County, California.
SFC is an advocate for developers of open-source software projects. In a statement, it said, "the first legal case that focuses on the rights of individual consumers" as beneficiaries to the licenses. The nonprofit’s sponsors include Red Hat, Mozilla, and Google.
SFC’s complaint alleges that Vizio used software that is covered by two General Public License agreements. The software was allegedly used in its SmartCast platform for streaming content from services such as Google’s Chromecast to its TVs. However, the SFC claims Vizio did not make its source code publicly available. Under the licenses, the software is supposed to be both publicly accessible and modifiable.
SFC said, "At their heart is a simple bargain. Recipients of the licensed software are entitled to use, examine, modify, adapt, and improve the software however they see fit. In exchange, the recipients must allow their licensees" to do the same.
However, in its complaint, the SFC argues Vizio has “taken full advantage of the rights granted by these agreements but refuses to let others enjoy the same rights.”
The SFC has asked the court for an order requiring Vizio to share the code.
