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Archive for the ‘Sick Leave’ Category

The following is a quick summary of the most significant changes in the law impacting California businesses.

Paid Sick Leave for All California Employees – Effective July 15, 2015, employers doing business in California must provide paid sick days to almost all employees. Full-time and part-time employees will accrue 1 hours of paid sick leave for every 30 hours worked. California’s paid sick leave begins accruing as soon as the employee starts to work , although an employer can prohibit an employee from using accrued paid sick leave in the first 90 days of employment. Employers may “limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.” Unused paid sick days carry over to the following year, but employers can place a 6-day(48-hour) cap on the paid sick day accrual. Some cities have ordinances that allow a higher cap, and employers have to comply with whichever laws are most favorable to employees. Employers must also provide written notice of the accrued and used sick leave, either on the pay stub or in a separate document, with every paycheck.

City Paid Sick Leave Ordinances –San Francisco, Oakland and San Diego passed city-wide ordinances requiring paid sick leave for certain employees. The city ordinances are similar to California’s new paid sick leave law, but typically provide additional benefits for employees working within city limits.

Federal Regulations Regarding Companions Goes Into Effect – Although the Department of Labor has said it will not enforce the new regulations until mid-year, effective January 1, 2015, companions will be entitled to overtime when they work more than 40 hours in a week, unless otherwise exempt from the Fair Labor Standards Act. While some personal attendants may still be exempt if the household owner employs the companion directly and the duties are limited to providing companionship and protection, caregivers employed by third-party employers and caregivers that provide care in addition to companionship and protection are now covered by the FLSA. Although personal attendants in California have been entitled to overtime after 9 hours in a day or 45 hours in a week, Californians using caregivers may need to pay weekly overtime after 40 hours in a week.

Additional Protections Under the Fair Employment and Housing Act –

Unpaid Interns Are Protected from Unlawful Harassment – Effective January 1, 2015, the Fair Employment and Housing Act extends protection to unpaid interns. Keep in mind that the Labor Commissioner and the Department of Labor only allow unpaid interns in a few limited situations, typically when the intern is receiving school credit and the employer receives very little benefit from the work. If you use interns, now is a good time to examine whether the interns are actually entitled to wages.

Anti-Bullying Module for Sexual Harassment Prevention Training – All employers with 50 or more employees are required to provide 2 hours of sexual harassment prevention training to all supervisory employees every 2 years. Although “bullying” is not strictly prohibited by law, AB 2053 now requires the sexual harassment prevention training include a module on anti-bullying.

No Discrimination Against Workers with Special Drivers Licenses – The DMV must issue an original driver’s license to California residents even if the person cannot lawful residence in the United States.  AB 1660 prohibits discrimination against an individual because he or she holds or presents a driver’s license issued under these provisions, or to require a person to present a driver’s license, except in specific situations. Additionally, FEHA’s definition of “national origin” now includes discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.  The new laws do not alter an employer’s rights or obligations regarding obtaining proof of lawful residency prior to employment. Any action taken by an employer that is required by the federal Immigration and Nationality Act (8 U.S.C. Sec. 1324a) is not a violation of law. Driver’s license information obtained by an employer must be treated as private and confidential, is exempt from disclosure under the California Public Records Act, and can not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

Employers Using Third-Party Employers Are Liable for Wages and Workers’ Compensation Insurance – Labor Code section 2810.3 requires a “client employer” to share with a “labor contractor” all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage.  In other words, if your company receives workers through a contracting agency, and that agency fails to pay the worker or fails to maintain valid workers’ compensation coverage, your company could be responsible for any unpaid wages or workers’ compensation claims. Employers can still include indemnification language in their contracts, but they cannot avoid liability by hiring the worker through a third-party employer.

Longer Statute of Limitations for Liquidated Damages and Failure to Timely Pay Final Wages – Existing law provides for criminal and civil penalties for certain wage violations and authorizes the Labor Commissioner to recover liquidated damages for minimum wage violations. AB 1723 expands Labor Code section 1197.1 to allow the Labor Commissioner to issue citations and seek penalties for the willful failure to timely pay wages of a resigned or discharged employee (e.g., waiting time penalties).

Several Cases Cause Employers to Reconsider Mandatory Arbitration Provisions – For years employers had difficulty requiring employees to agree to resolve all dispute through arbitration. Recent U.S. Supreme Court and California court decisions make it easier for employers to require binding arbitration for some employment law claims. Employers should evaluate whether binding arbitration is the right decision for their business. There are many pros and cons to resolving cases through binding arbitration, and employers must still be careful when drafting arbitration agreements. Just because you find an arbitration agreement on line does not mean it will be enforceable.

Minimum Wage Increase By Various Cities – Several cities passed their own ordinances requiring a higher minimum wage for employees working within certain geographical limits:

 

City Rate Effective
Berkeley $10.00

$11.00

1/1/15

10/1/15

Menlo Park $10.30 7/1/15
Oakland $12.05 3/2/15
Richmond $9.60 1/1/15
San Diego $9.75 1/1/15
San Francisco $11.05 1/1/15
San Jose $10.30 1/1/15
Sunnyvale $10.30 1/1/15

 

We expect to see more cities adopt similar legislation, and California legislators are trying to pass a higher California minimum wage by the end of the year (currently slated to increase to $10.00 per hour on January 1, 2016).

Employers need to update their employment handbooks and their policies to comply with the new laws. There is no better time to review your policies and practices with a knowledgeable employment attorney. The New Year affords employers the opportunity to start the year in compliance, and avoid potentially costly mistakes.

If you have any questions about the new laws, or any employment-related matter, contact our office and speak with one of our attorneys. Let us help you figure out how to employ your workers correctly, so you can focus on growing your business.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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There are several new laws and amendments currently under consideration by the Governor of California, as well as the legislature.

The Recorder reports that three bills, AB 267, AB 325, and AB 559, are currently sitting before the Governor Brown.

  • AB 267 prohibits “choice of law” or “forum selection” clauses in employment contracts if those clauses require the use of non-California law or litigation outside of California.
  • AB 325 would allow up to 3 days bereavement leave and would prohibit discrimination against employees who take time off for the  death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.  A successful plaintiff could recover back wages and attorneys’ fees.
  • AB 559 would modify a rule denounced by the California Supreme Court (Chavez v. City of Los Angeles, 47 Cal.4th 970) granting courts the authority to limit attorneys’ fees awards when the case could have been brought in limited jurisdiction as opposed to unlimited jurisdiction.

The California Chamber of Commerce and other pro-employer entities oppose these bills, and in the past have successfully defeated similar bills while Schwarzenegger was in office.

Governor Brown has already signed into law the following bills affecting employers and employees in California:

  • AB 240 Compensation recovery actions: liquidated damages.
  • AB 587 Public works: volunteers.
  • SB 117 Public contracts: prohibitions: discrimination based on gender or sexual orientation.
  • SB 374 Gambling control: key employee licenses.
  • SB 559  Discrimination: genetic information.
  • SB 609 Public Employment Relations Board: final orders.

Of course we can’t forget about AB 889 regarding domestic workers, which I’ve discussed before.

If you work or do business in California, especially if you do business on any public works projects, you should familiarize yourself with any new requirements applicable to your industry.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
South Bay: 408-293-6341
East Bay: 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

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On September 12, 2011, the DFEH issued the following press release:

State Department of Fair Employment and Housing Achieves Historic Victory
Electrical Supply Company Ordered to Pay $846,300 for Firing Cancer Survivor

ELK GROVE, CA – The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee because he had cancer.  Headquartered in Lumberton, North Carolina, Acme Electric is a division of Actuant Corporation, a Wisconsin diversified industrial corporation that operates in more than 30 countries.

“This historic administrative victory underscores the Department’s commitment to vindicating the rights of Californians victimized by workplace discrimination,” said DFEH Director Phyllis Cheng.

Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company’s largest territory from February 2004 to March 2008.   He developed kidney cancer in 2006 and prostate cancer in 2007.  Mr.  Wideman’s cancers required two surgeries and numerous cancer-related outpatient appointments.  The company immediately granted his two requests for time off for surgery and recuperative leave.  However, Mr. Wideman requested further accommodation for the travel limitation his cancers caused from June 2006 through April 2007.  Acme Electric refused to grant or even acknowledge these accommodation requests.  Instead, in December 2007, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel.  On February 28, 2008, ignoring Mr.  Wideman’s need for accommodation the preceding year and failing to take into account his dramatically improved job performance, Acme Electric fired Mr. Wideman, relying on the insufficient travel pretext.

“California’s Fair Employment and Housing Act (FEHA) provides that persons with disabilities, such as cancer, must be reasonably accommodated, so that they can continue to work productively,” added Director Cheng.

After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by failing to accommodate Mr. Wideman’s known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating against Mr. Wideman because of his disability, and failing to take all reasonable steps necessary to prevent discrimination from occurring.  To compensate Mr. Wideman for his losses, the Commission awarded him $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for the emotional distress he suffered.  In addition, the Commission ordered Acme to pay $25,000 to the State’s General Fund as an administrative fine.  Acme must further comply with posting, policy changes, and training requirements ordered by the Commission.

Medical leaves are among the most complicated issues for employers and employees.  Several laws can impact the leave, the employer’s obligations and the employee’s rights.  Knowing how those laws interact will help you make informed decisions about leaves of absences, and hopefully avoid costly litigation.

If you, or someone you know, has a question about a medical leave of absence, contact an attorney familiar with leave of absence laws.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
South Bay: 408-293-6341
East Bay: 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

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Most employers have some sort of vacation policy.  Under California law, if an employee has unused accrued vacation at the end of his/her employment, the employer must pay out the unused but accrued vacation.  Several companies also offer a sabbatical program, which typically offers a longer period of paid time off after a particular length of employment.  While traditionally sabbaticals were designed to allow professors and the like to gain new experiences and knowledge that would enhance the reputation of the colleges offering the sabbaticals, as private non-educational employers began offering sabbatical programs employees were allowed to take sabbaticals merely to “recharge their batteries.”  Unlike vacation plans, an employer can have a “use it or lose it” sabbatical policy.

So, what’s the difference between a sabbatical and vacation, and can employers simply call their vacation plan a sabbatical in order to avoid the end-of-employment payment required by vacation plans?  That’s what Paton v. Advanced Micro Devices, Inc. had to decide.

After going through a short history of the sabbaticals, as well as several DLSE opinion letters on the issue, the court announced a four-part test to determine whether a sabbatical really is a sabbatical:

  1. The sabbatical leave should be granted infrequently and intended to retain experienced employees who have devoted a significant period of service to the employer.  The court suggested a 7-year rule, allowing employees to take sabbatical every 7 years, but acknowledged that greater or shorter periods might be appropriate depending on industry standards.
  2. The length of sabbatical should be longer than that “normally” offered as vacation. Since regular vacation time may be used for rest, a sabbatical ought to provide the extended time off work that regular vacation does not. The court did not indicate what length of time would suffice, but in Paton the employee was entitled to a four-month sabbatical and the court believed there was sufficient question as to the validity of the sabbatical policy for a jury to decide the issue.
  3. The sabbatical must be in addition to regular vacation.  According to the court, [b]ecause an employer could offer a minimal vacation plan and reward senior staff with sabbaticals as a way to avoid the financial liability of a more generous vacation plan, the employer’s regular vacation policy should be comparable to the average vacation benefit offered in the relevant market.”
  4. The sabbatical program should incorporate some feature that demonstrates that the employee taking the sabbatical is expected to return to work for the employer after the leave is over. This was an element implied by the Labor Commissioner, but not explicitly enunciated as a requirement for a valid sabbatical program.

The court  rejected the idea that the sabbatical must be for specified purposes (i.e., continued education, career development, etc.) and be limited to upper management (an element previously identified by the Labor Commissioner as necessary for a true sabbatical.

Another interesting tidbit, while many recent decisions refuse to follow Labor Commissioner opinion letters, the Paton court acknowledged that the court is not required to reject those opinions.  Unfortunately, employers and employees won’t know which opinions are correct and which are not good law until the courts review each opinion letter.

If your company uses sabbaticals as a way to reward long-term employees, speak with an employment attorney to ensure the company policies follow the law.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
South Bay: 408-293-6341
East Bay: 925-405-6833

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

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The United States Department of Labor announced a new “Advisor” on their website that helps employers determine which federal disability nondiscrimination laws apply to their business or organization as well as the various responsibilities faced by companies that receive financial assistance from the federal government.

According to the DOL, “The Advisor will provide you with a customized list of federal disability nondiscrimination laws that may apply and links to detailed information that will help you understand your requirements under these laws.”  The Advisor may also be useful to job applicants and employees who are interested in learning about which laws might apply.

The Advisor addresses the following laws:

  • Title I of the Americans with Disabilities Act of 1990 (ADA)
  • Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA)
  • Section 188 of the Workforce Investment Act of 1998
  • Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance)
  • Section 503 of the Rehabilitation Act of 1973, as amended
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

It does not tackle Section 501 of the Rehabilitation Act, Title III of the ADA, Workers’ Compensation Laws or any state or local disability nondiscrimination laws.

The Advisor can be accessed at http://webapps.dol.gov/elaws/odep/q1.aspx.

The Advisor appears to be a good start for employers who want to know which disability laws apply to them, but don’t forget that State or local disability nondiscrimination laws may have stricter requirements or greater applicability.  Employers and employees should consult with counsel familiar with disability discrimination and accommodation issues to ensure they are complying with all applicable laws.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

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A lot of people are still asking about PTO, Sick Leave and Vacation benefits.  Instead of responding to each one individually, I thought I’d do a quick recap.

Most employers are not required to provide PTO, Sick Leave or Vacation benefits for employees.  There are some exceptions, such as companies with employees in San Francisco.  But, once you provide any of those benefits there are certain laws that restrict what you can and cannot do with them.

The difference between PTO, Sick Leave and Vacation. Sick leave is supposed to be taken for … you guessed it, when you are sick.  California law requires employers who offer sick leave to allow employees to use up to one-half of the employee’s annual sick leave to care for family members.  Vacation, on the other hand, can be used for taking time off work no related to illness; be it to take a day in the sun, go on a trip, or just lounge around the house.  Some employers make a distinction by requiring vacation to be used only with advanced approval, whereas sick leave can be taken at any time.  Paid Time Off (PTO), is usually considered a hybrid of sick leave and PTO since you can use the time for anything you want, including sicknesses and illnesses.  The reality is, there is no difference between vacation and PTO.  Some employers offer vacation and PTO, which has never made any sense to me.  More commonly, employers have decided they don’t want to track vacation separately from sick leave and so they lump them together as PTO.

So what does it matter whether you call it sick leave, vacation, or PTO?  The difference lies in how the law treats vacation and PTO.  Vacation and PTO are an earned benefit.  It is a wage.  Once the employee earns the benefit, the employer cannot take it away without compensating the employee for the benefit.  Sick leave, on the other hand, can only be used for specified purposes.  An employee’s right to use sick leave is contingent upon the happening of some specific event (i.e., they get sick).  If the employee never gets sick, then the employee never had the right to use the sick leave.  That is one reason that employers do not have to pay out unused sick leave upon termination, but they do have to pay out unpaid vacation and PTO.

Having a bona fide sick leave policy allows employers, under certain circumstances, to reduce an otherwise exempt employee’s salary if the employee has exhausted his/her available sick leave and takes additional time off for sickness or illness.  I’ve addressed this issue a number of times in prior articles.  Since PTO can be used for illnesses and sicknesses, it qualifies as a sick leave policy under San Francisco’s Sick Leave requirement, employees can use it for family  illnesses, and it qualifies as a bona fide sick leave policy allowing the reduction mentioned above.  PTO is also an accrued benefit that, like vacation, must be paid out upon termination.

Common Questions.

If our Handbook allows for PTO time to be taken at 1 hour intervals, does this mean I can have Exempt employees take PTO if they are leaving an hour early to go to the doctor? Or, does it still have to be a 4 hour interval?

The quick answer is, yes.  You can always deduct PTO, sick leave or vacation leave in whatever increments you decide.  The real question is whether you can reduce an exempt employee’s salary in increments of less than four hours when the employee has exhausted the available sick leave and PTO.  The answer to that question is, maybe.  I believe the answer is, yes, but there are no cases that have specifically authorized the reduced salary in cases where the policy allows employees to take sick leave and PTO in less than four hour increments.  The rationale of the Conley case implies that you can, but that specific issue was not before the court.  So, if you do reduce your exempt employees’ salaries for absences of less than four hours, you do so at your own risk.

If the companies policy is to entitle all employees to a paid holiday but someone ends up working that day anyway, is it just tough luck that the person is actually working when everyone else is being paid not to work?

Some employers may allow you to take the vacation day on an alternate date, or they may even pay a “holiday premium,” but the law does not require employers to pay extra for holidays or to allow employees to take holidays off.  Arguably, if the employer offers paid holidays, but you are required to work on a particular holiday you could be entitled to an extra days’ pay, but I’m not aware of any cases that have agreed with that argument.

As an employer do I have to offer sick-pay?  If so how do I determine the amount of sick days offered in one calandar year?

If you are an employer in San Francisco or some other city that requires mandatory sick leave, then the answer is, yes, and the amount of sick days will depend on what the specific regulation says.  I’ve mentioned San Francisco’s Sick Leave law in a prior article.  If your employees are not working in San Francisco or other municipality with similar regulations, then you do not have to provide sick days and the number of sick days is entirely up to you.  It will depend on your company’s needs and what it takes to attract qualified employees.

The company I work for recently changed owners. The previous owners had a PTO yearly accrual for employees who have worked for the company 10 years or more at 25 days per year. The new owners have reduced this amount to 17 days per year. Is this legal? Do employees who have been affected have any recourse?

Employers can change or eliminate their PTO policies at any time.  They cannot, however, take away accrued PTO.  For example, if you worked the required 10 years and had 25 days of unused but accrued PTO, the company can lower the amount of PTO you will accrue in the future but they cannot take away the PTO you have earned.  The company may not allow you take the time off, but when you quit or if you are fired or laid off the company will have to pay you the unused accrued PTO.  The same is true for vacation wages, but not necessarily sick leave (remember, you are only entitled to sick leave if you meet the “condition precedent” of being sick – I don’t write the rules, I just interpret and enforce them).

There is another issue raised by the question regarding what happens when new owners take over a company and change the rules.  The business structure (i.e., corporation, LLC, sole proprietorship, etc.) can affect whether you are losing benefits that are previously accrued and is probably left for discussion in a future article.

That’s about all I can do for today.  There are plenty of more questions that I hope to address in future articles.  Thanks for the feedback.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

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