Title: December 12, 2007
Q. I dated a married woman last year. We had sexual relations on several occasions. She told me that she had a platonic relationship with her husband. Before we stopped seeing each other, she informed me that I got her pregnant. She is about to give birth to the child. If this child is mine, I want to be involved in its life, but I have not seen or talked to this woman for several months. How can I become involved in raising my child?
A. How do you know that it is your child? Are you certain? You would need to have a DNA test performed on the child, the woman and you. As I am sure you realize, this might be cause for a breakup of this woman’s marriage. Maybe her relationship with her husband was not what she portrayed it to be. If the child is not yours, your willingness to re-insert yourself back into her life may cause problems for a lot of people. As it stands right now, the child is presumed to be her husband’s child. If she is not contacting you, she might not want her husband to know she had an affair with you. No matter what, I believe it is a mistake for you to force the issue. Stay out of her life right now. Believe me, she will contact you if you are the father of the child.
Q. Can my employer require that I work on the weekends without pay?
A. Your employer can ask you, but you can say no. You are not required to work without pay. You are entitled to compensation for all work performed for your employer. If you do not get paid for overtime, you can file a claim with the Labor Commission. If you are being retaliated against for having filed a claim with the Labor Board, this could be the basis for a civil lawsuit against your employer.
Q. I invented a product that can be used in a commercial kitchen. I have a meeting next week with the general manager of a large restaurant chain in Los Angeles to demonstrate my product. I do not have a patent for this product. What if this company steals my idea? How do I protect myself?
A. You should have a non-disclosure Agreement for the manager to sign. These agreements are very common. If he refuses to sign it, do not demonstrate the product. You can get a “provisional” application for patent at a minimal cost. This is good for one year. In the meantime, you can market the product to various companies. If it sells, then you should get a patent ASAP.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Showing posts with label labor commission. Show all posts
Showing posts with label labor commission. Show all posts
Tuesday, March 24, 2009
Legal Eaze #79 Process Server Charges/ Overturn Custody Judgement/Sales Commission
Title: October 24, 2007
Q: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her 3 times but were unsuccessful. Now they want to charge me more to serve her. What do I do?
A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physical service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife’s location.
Q: Is it possible to overturn a judgment of full custody?
A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party’s attorney’s fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.
Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?
A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Q: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her 3 times but were unsuccessful. Now they want to charge me more to serve her. What do I do?
A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physical service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife’s location.
Q: Is it possible to overturn a judgment of full custody?
A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party’s attorney’s fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.
Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?
A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Legal Eaze #76 Non-Competition Clause/Not Credited For Made Up Time
Title: September 3, 2007
Q. My brother bought a “roach coach” business. He paid good money for 3 trucks, the routes and included a no-compete clause so that the company he bought the business from would not get back into the same business within 5 years from the sale. That business is now back in business, operating on the same routes that were sold to my brother only 2 years ago, and taking business away from my brother. What should he do?
A. I believe your brother should sue that company. Usually non-competition clauses are enforceable as long as they are not overly restrictive. For example, not permitting the operators of that company to re-open in the same area the business was previously operating simply protects your brother’s investment in purchasing the company. The enforcement of non-compete clauses in business-sale contracts depends upon the notion that part of what the buyer is paying for is the goodwill of the business (defined as the expectation of future public patronage) and by competing, the seller is unfairly undermining the value of the goodwill for which he was paid. Here your facts make it clear that part of what your brother bought and paid for was “the route”, and if the seller is going after his old customers on the route, that would violate a typical non-compete clause and could be the basis for a successful lawsuit.
Q. One of my co-workers took off a half day last week. He made it up this week. He was then told by our supervisor that because he failed to notify him of the switch, he would not only be docked for the time he missed, but would also not be credited for the made-up time. Is this legal?
A. The employer must live up to its agreement with the employees when a worker needs time off. The contract covering a particular pay or benefits provision does not necessarily have to be written down. However, if there is a written policy, a past practice, a general understanding, that alone may be deemed to be the contract between the parties as to that particular practice. Hence, a particular practice will generally not be against the law most of the time, but failure to honor a practice in an arbitrary or discriminatory manner is likely to be a breach of contract, a civil wrong addressable not through the Labor Commission but through a private lawsuit.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Q. My brother bought a “roach coach” business. He paid good money for 3 trucks, the routes and included a no-compete clause so that the company he bought the business from would not get back into the same business within 5 years from the sale. That business is now back in business, operating on the same routes that were sold to my brother only 2 years ago, and taking business away from my brother. What should he do?
A. I believe your brother should sue that company. Usually non-competition clauses are enforceable as long as they are not overly restrictive. For example, not permitting the operators of that company to re-open in the same area the business was previously operating simply protects your brother’s investment in purchasing the company. The enforcement of non-compete clauses in business-sale contracts depends upon the notion that part of what the buyer is paying for is the goodwill of the business (defined as the expectation of future public patronage) and by competing, the seller is unfairly undermining the value of the goodwill for which he was paid. Here your facts make it clear that part of what your brother bought and paid for was “the route”, and if the seller is going after his old customers on the route, that would violate a typical non-compete clause and could be the basis for a successful lawsuit.
Q. One of my co-workers took off a half day last week. He made it up this week. He was then told by our supervisor that because he failed to notify him of the switch, he would not only be docked for the time he missed, but would also not be credited for the made-up time. Is this legal?
A. The employer must live up to its agreement with the employees when a worker needs time off. The contract covering a particular pay or benefits provision does not necessarily have to be written down. However, if there is a written policy, a past practice, a general understanding, that alone may be deemed to be the contract between the parties as to that particular practice. Hence, a particular practice will generally not be against the law most of the time, but failure to honor a practice in an arbitrary or discriminatory manner is likely to be a breach of contract, a civil wrong addressable not through the Labor Commission but through a private lawsuit.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
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