Driven advocacy & proven results

Nick Heimlich represented an owner of real property that owned the property with a relative.  The two relatives could not agree on what to do with the property.  A lawsuit was filed to determine what would happen with the property.  After extensive negotiations, the lawsuit was settled privately and the parties agreed on what to do with the property. 

This kind of dispute where there are multiple owners of real estate that cannot agree on what to do with the property (like sell it or keep it) often leads to one party filing a type of lawsuit called Partition.  Partition is when one party is asking the Court to force the sale of the property.  Often as part of the Partition action, the party filing the lawsuit will also ask the Court for an accounting.  An Accounting claim is where the Court could determine who has put in more money into the property.  Sometimes even if there are multiple owners of real estate, one party or some parties put in more of the expenses of the real estate.  Things to account for in a real estate dispute like a partition might include the down payment for the property, the monthly payments made, who lives (if it is lived in) the property, who pays the property taxes, who pays the insurance and who has received any rental income.  Additionally, if there any extensive repairs or renovations done to the property, a party may seek reimbursement for that.

On multiple occasions, Nick Heimlich has represented parties who bought real estate together who were dating but not married at the time of the purchase of the real estate.  Then, when the parties broke up, they had much more to deal with than just the usual moving out, but they have to figure out what to do with the house.  Buying real estate before marriage complicates the breakup because now there is a property that is often co-owned by people who no longer get along.  Further, one or both of the parties may be on the mortgage loan.  This type of real estate partition case is then filed to have the Court help decide whether the parties should sell the property.  Often before the Court would order a sale, the Parties are able to negotiate a settlement where either the property is sold the proceeds divided as agreed upon, or one party buys another out.  I have successfully arranged situations where either the property is sold or one party buys out another party.

In addition to resolving what to do with the property, there will need to be an accounting of who has paid for the cost of the real estate, who is on the loan, any down payments, mortgage payments, property taxes, insurance, etc.  Nick Heimlich has experience in helping work with clients to get copies of relevant documents so that the Parties can resolve who has paid for what and how the monies from any sale should be split.  Sometimes, one party is also able to buy out the other party by either refinancing the loan, or with cash from other sources so no sale of the real estate has to occur.

As an attorney representing many small businesses in the San Jose area, many of those employers can have claims made by former employees for claims of non-payment of wages, overtime, rest breaks, meal breaks and other claims.  Nick Heimlich has represented employers who had former employees claimed that they worked overtime hours that they were not paid for.  Overtime can apply where workers who were non-exempt and hourly were not paid for hours over 8 hours in a day, or 40 in a week or in certain other instances.  However, sometimes employees might claim they worked hours that the employer claims they did not work. 

Similarly, disputes can arise when employees claim they were not given their rest periods or meal periods and seek additional hours of pay for those missed rest or meal periods.  Nick Heimlich is aware of ways to help try to locate timekeeping records or other evidence to assess the validity of claims.  He has helped many clients resolve their lawsuits for wage and hour issues thru private settlements.  Some of those private settlements are reached thru private negotiations, and sometimes thru mediations.  Mr. Heimlich has represented clients with a single former employee, or sometimes multiple employees suing the employer at the same time.  Mr. Heimlich has represented employers in state courts in California, such as Santa Clara Superior Court, Alameda County Superior Court, and before the California Department of Labor Standards and Enforcement (DLSE) for claims regarding wages owed, meal or rest period violations and other claims.

I represented a client involving a dispute about commissions owed.  The matter was before the Department of Labor Standards and Enforcement (DLSE), which is an administrative agency with the state of California.  I gained experience of dealing with the claim filing process, the hearing process and going all the way to the final award of the Labor Commissioner.  The DLSE is an alternative forum to court for filing an initial claim for many employees.  The process generally involves no fees for the employee or employer.  The hearing is less formal and takes less time to prepare for than a regular court trial.  The total legal costs in this forum is generally less and the result tends to be decided sooner that a Court might.

In a case involving an employee that worked at a restaurant I dealt with a number of legal issues, including unpaid wage claims, liquidated damages for non-payment of minimum wage (under California Labor Code Section 1194.2).  There were also claims involving interest under California Labor Code Section 1194.2, additional wages under California Labor Code Section 203 as a waiting time penalty.  The case was involving a restaurant employee.  There were also tips at issue, and penalties for not providing records under California Labor Code Section 226(f).  The case went to a final award in the DLSE.  The Law Offices of Nicholas D. Heimlich has represented many employers in the DLSE proceedings.

When an employee is not paid minimum wage, Labor Code Section 1194.2 allows that employee to claim a penalty equal to the amount of unpaid minimum wages.  If wages are owed to an Employee, then under Labor Code Section 203, there is a waiting time penalty.  A waiting time penalty is basically 30 days of pay (as if you were working all 30 days, based on the hours you normally work and your final rate of pay).  Employers should be careful to make sure that all wages owed are paid to avoid penalties like Labor Code Section 1194.2 and Labor Code Section 203.

Employers often have questions about issues that arise about employees.  Sometimes, clients need advice on how to deal with an unproductive employee or one that is not reliable.  I have experience guiding employers to try to create reasonable expectations of performance and asking employees to match those expectations.  I also have experience guiding clients who have tried hard to get employees to improve their performance on either having those employees quit or decide voluntarily to find different employment.  It’s best to contact a lawyer before you have terminated an employee.  It is also key that expectations and documentation be given to employees so everyone knows what is expected and the consequences for failing to perform.

Small businesses often get into a problem with a non-paying customer or vendor or similar issues.  I often try to advise clients on what to do with unpaid bills and to guide them thru the process of either getting paid.  Sometimes unpaid bills can be resolved with persistence, and other times the unpaid bills require the willingness to file suit.  However, it is always wise to try to limit the size of unpaid bills as sometimes companies or individuals will be unable to pay.  The Law Offices of Nicholas D. Heimlich has advised many individuals and companies on collections issues for unpaid invoices, unpaid bills, or loans not repaid.

Mr. Heimlich has been advising clients regarding franchises for many years.  He has had the opportunity to advise clients regarding franchises for many different industries, such as fitness franchises, tutoring, child care, restaurants, personal services such as grooming.  Mr. Heimlich has advised many franchise owners on entering into a franchise, exiting franchises and legal disputes regarding them.  Mr. Heimlich has been advising franchisees and prospective franchisees since about 2007.  Mr. Heimlich been practicing law since 2004 and am admitted to the United States District Court, Northern District of California and have appeared and argued before the California Supreme Court. 

To assist clients with a franchise review, the firm must review the Franchise Disclosure Document (“FDD”) (often 200-300 pages) for relevant concerns, including the background of the franchise, the longevity of the franchise, any legal or financial concerns raised by the review of the FDD.  Reviewing the FDD is a rather complex procedure that requires looking at the document over many different parts to identify items that may be of concern. 

As a lawyer who has advised franchisees both on their contracts and litigated in Court franchise disputes, it is a good idea to have an attorney thoroughly review it before investing thousands or hundreds of thousands of dollars in the new business.  The cost of reviewing a franchise is often a small percentage of the cost of any dispute involving the franchise or the overall cost of starting a franchise business.

Our firm has experience with representing clients who provide outsourced services or employees to other companies.  I have represented many clients in the high tech sector who have provided services to other high tech companies.  Many times a large company like a billion dollar high tech company will need employees to do certain roles but cannot locate employees on its own in a timely manner.  Sometimes other companies who already have people hired as employees will offer to have their employees work for another company under the employer of our client.  Our clients will of course mark up the costs and services to the other company and make a profit.  The types of services provided are sometimes very technical or information technology or similar types of services.  Sometimes there are multiple layers of companies between the largest company and the client I represent.  If some company in the chain.

I’ve represented companies who have done business with California entities or entities who do business in California.  The Companies may be out of Texas, New York, Massachusetts or elsewhere.  However, they signed a contract with some California company and then have a legal dispute with that entity that does business in California.  Often the contract may specify that any dispute between the parties needs to be brought in say, Santa Clara County California.  This type of clause is called a venue clause, which can force a party to bring their lawsuit or arbitration in Santa Clara County, California.  The details of where the dispute must be filed and the forum (like Arbitration or Court) depend on the contract language and the type of dispute between the parties.  For example, only certain matters can be brought in Federal Courts, and generally must have a specific legal basis to bring the suit in federal court.  In federal court (to put it simply) usually requires some federal law or that both parties be citizens of different states and that there be more than $75,000 in dispute.  This citizenship plus dollar amount in dispute is called diversity jurisdiction, which is established under Federal Law, 28 U.S.C. Section 1332.  So, if you have a contract with specific language about the legal dispute having to be in California, feel free to contact the firm.

Many clients have come to Nick Heimlich to seek advice when business owners cannot get along.  I’ve helped advise clients when the owners can no longer operate the business together and sometimes cannot even talk with each other.  Many different types of businesses have disputes among owners, such as stores selling goods, or service providers (such as cleaning services, professional services, personal services, etc.).  When the owners can no longer get along, there is the question of how to resolve the dispute given the business and whether that business continues or closes.

In the cases where the business closes, Nick Heimlich has advised Companies on winding down operations.  Often, one needs to look at all the contracts signed, all vendors, customers, and even city, state and federal taxing authorities.  Then, Nick Heimlich helps to guide the owners on issues with closing the business.  Sometimes there are also legal disputes even during the winding down, or even after.  One example has been prior employees suing a business after it has closed for lost wages or other claims.  Sometimes, it may be defending or suing over a breach of contract involving the business.  These cases can often take some time and become challenging if there are multiple disputes in different legal forums.  For example, the wage cases (or other employee claims) might be before the local Superior Court, like Santa Clara County, or before the Department of Labor and Standards Enforcement (which has a location in downtown San Jose).  It is important for a closing business to realize that sometimes it will have to fight claims if the parties are seeking unreasonable sums that may not be owed by the business.  Nick has litigated cases involving closing businesses in Santa Clara County Superior Court.

In the cases where the business will continue despite the dispute, there are complicated decisions to make.  For example, who will run the business?  Is one party being bought out?  Are the owners going to split the business up (each taking some customers, etc.)?  Nick Heimlich has advised business owners in many different lines of business, such as professional services like doctors, dentists, hair stylists, contractors, high tech workers like programmers, software developers, real estate agents, real estate brokers, tutoring providers, restaurants, marketing companies, janitorial services, assisted living centers, independent living centers, group homes, food truck operators, etc.  Sometimes one business partner will be buying another out.  When someone is buying someone out, a price needs to be determined.  Sometimes, the parties can agree on a price.  Other times, an appraiser may be needed to value the business.  Some businesses can be divided up with customers being split and this avoids the need to value the business if the customers and their associated revenue are fairly well known.  The businesses will also have to deal with any liabilities, such as outstanding bills or real estate leases.  If you have a dispute and are trying to divide up a business, contact Nick Heimlich for assistance.

This content is not guaranteed and is written in March of 2024 about past events.

Are you facing a proceeding before the Labor Commissioner, in the State of California?

Nick Heimlich has experience with dealing with claims before the Labor Commissioner in California.  The Labor Commissioner helps to enforce wage and hour laws and regulations.  If you need assistance with or have been served with a claim from a former employee, then contact Nick Heimlich.

What type of experience does Nick Heimlich have?

Mr. Heimlich has handled many different cases before the labor commissioner.  For example, he has handled many cases in Santa Clara County where his office is located.  Most of the Labor Commissioner cases he has handled have been in the San Jose office of the Labor Commissioner.  One such case dealt with a variety of issues and will be discussed herein.  Actual party names are omitted to provide privacy and no specific dollars amounts are referenced for privacy.  This claim involved:

• Wages under California Labor Code Section 98.1, and/or 2802
• Liquidated damages under 1194.2
• Interest pursuant to Labor Code Section 98.1, 1194.2 and/or 2802(b)
• Additional wages pursuant to Labor Code Section 203
• Unlawfully withheld tips
• Penalties pursuant to Labor Code Section 226(f)
• Post Hearing Interest as well under Labor Code Section 98.1(c), 1194.2 and/or 2802 (b)

What is Labor Code Section 98.1 about?

California Labor Code Section 98.1 discusses how an award is issued in a labor commissioner hearing.  The Award is supposed to be issued within 15 days after the hearing is concluded.  It should be filed in the Labor Commissioner’s office and then served by first class mail on the parties.  If a party does not timely file an appeal, then the decision becomes final and can be entered as a judgment in the Superior Court.  Under Labor Code Section 98.2, a party only has 10 days after service to file a notice of appeal of the Labor Commissioner’s award.  The Appeal would be filed with the Superior Court, and must also be served on the Labor Commissioner and all parties.  In order to file an appeal, if the Judgment is against the Employer, the Employer must file a bond for the amount of the Award.

Will I be liable for the employee’s attorney’s fees and costs if the appeal of the Labor Commissioner Award is unsuccessful?

Yes, under California Labor Code Section 98.2, if the party seeking a review by appeal of the Labor Commissioner Award, then the Court shall determine the costs and reasonable attorney’s fees and costs and assess that amount upon the party filing the appeal.  An employee is successful if the court awards an amount greater than zero.

Employers should be aware that they are responsible for all costs or losses that an employee incurs for working?

For example, if an employee is directed to drive someone from the job site.  Then the employer is responsible for mileage.  If an employee orders an item for the office, such as a phone, or copier, then the employer must reimburse that.  An employee can also get their attorney’s fees and costs to seek any reimbursement.  This is under California Labor Code Section 2802.

So, what should an employer do when they are given notice of a Labor Commissioner claim?

They should contact an attorney who has experience with Labor Commissioner claims.  Mr. Heimlich has handled claims in San Jose, San Francisco, and Oakland.

What is an example of services that the firm provides for people who are considering opening a franchise?

As an attorney, Nick Heimlich can help to review a potential franchise.  A new potential business owner is considering many things, but understanding the franchise opportunity is critical.  As an attorney, Mr. Heimlich can review the Franchise Disclosure Document (“FDD”), which is the critical document for a franchisee to review.

Why have an attorney review the Franchise Disclosure Document (“FDD”)?

The franchise that a business owner chooses to join can be a very expensive endeavor.  Often franchises can cost $25,000 to $75,000 or more just to get started.  Further, the franchise also has ongoing royalty fees (generally) in the range of 8-12% of gross revenue.  So, if a business has a $1,000,000 in revenue, that franchisee may be paying $100,000 per year.  Franchise Agreements can also be 5 to sometimes 20 years.  If a franchise is even only 10 years, this is literally a million dollar investment potentially.  In addition, franchises may also restrict the products or services you offer and require that you purchase supplies or goods from their approved sellers (or sometimes the franchise), which may cost more than other suppliers for similar goods.  If a business owner is about to spend $1 million dollars, it makes perfect sense to pay an attorney some money to help understand the transaction and its costs.

What does your firm do for a business owner that is looking to open a franchise?

As a law firm, Mr. Heimlich will review the Franchise Disclosure Document and discuss the business opportunity with the client.  While Mr. Heimlich is not creating the business, he has advised franchisees on many types of businesses, such as gyms, restaurants, hotels, auto repair or maintenance places, pest care franchises, tutoring, health care, senior care, in home care services, property management businesses.  In addition to meeting with the client to understand the client’s background, business expertise, and knowledge, Mr. Heimlich will also do the document review.  After a client meeting, Mr. Heimlich gets to work reviewing the formal Franchise Disclosure Document.  The review will write up and Mr. Heimlich will provide a written review of key points of the franchise.  Those key points are then reviewed in a meeting with Mr. Heimlich.  Mr. Heimlich then also takes on questions about potential changes or revisions to the Franchise Agreement, or just general questions.  Mr. Heimlich has many satisfied clients who have been very happy with the written review that provides a thorough understanding of the risks and rewards of a franchise.

Does it matter how long the franchise has been open?

Yes, absolutely.  If a franchise is new, or has few locations, then the business model may not have been tested during a recession or in different geographic areas.  It is important for a potential business owner to understand if a franchise has survived serious challenges.  Surviving serious challenges increases the chance that the new business being opened will survive.  This is one factor that Mr. Heimlich looks at when advising potential franchise owners.

Is the number of locations of a franchise important?  What about locations in my state or part of the state in the US?

This is very important, because the number of locations will often influence how strong a brand’s name recognition is.  We all know some of the most famous brands, like McDonalds®, or Holiday Inn®, so those will instantly create potential business and demand by joining such a franchise.  Other brands, like Chick-fil-A®, Subway®, KFC®, 7-Eleven®, Burger King®, Marriott®.  Further, the location of stores or businesses is also key because even if a brand is well known throughout the world, if people in your area are not familiar with it, then the brand may have a weakness in your area.

What about the background of the officers of the franchise, is that important?

This is an often overlooked area.  While many franchises will have people with good experience, the deepness of that experience is key.  Have the officers worked at other large franchises?  Have they grown a franchise from a small number to a large number?  Or is this their first foray into franchising?

What if the franchise has litigation or bankruptcy?

This is definitely where an attorney can help to give a businessowner key expertise.  While some business owners may be wary of a franchise with some litigation, an attorney may look at it and determine that it does not always mean that one should walk away.  A large enough franchise will inevitably have some lawsuits.  The attorney’s job is to figure out (as best as one can within reason) whether this lawsuit is indicative of a larger problem, or is it just one disgruntled franchise owner.

Can an attorney help me understand the estimated costs disclosed by the franchise?

Yes, franchises are required to provide estimates of costs to open a franchise and for various start-up items.  This is critical because the business owner will have to come up with or finance this to get the business off the ground.  For example, there are often grand opening advertising expenses, inventory, real estate lease, possibly a build-out of the premises.

What about the financial statement of the franchisor?

This is often included in the Franchise Disclosure Document and shows you something about how much money the franchise has available and its financial strength.  You want a strong franchisor that will be around for a long time to help the franchisees and guide them to success.

I’d like to get started, what is the next step?

Feel free to contact us on the web, or give us a call and we will set up a time to move this forward.  Good luck!

Nick Heimlich had a client who came to him with a client that had breached a contract.  The client had provided services to the other party, but the other party did not pay the client.  The client owed about $70,000 not counting any interest, attorney’s fees or costs.  Despite many attempts by the client on its own to seek redress, there was no progress.  Nick Heimlich took on the case and represented the client in a suit for breach of contract and labor, services and materials rendered at the defendant’s request.  At the end of the case, the Court awarded a Judgment for just over $100,000.  Nick Heimlich was able to even get the client awarded the court costs, interest on the unpaid amounts until the judgment, and an award for some of the attorney’s fees.

Mr. Heimlich was retained by a client who had a company and some employees.  Surprisingly, the Company got a deposition subpoena for business records for one of its employees.  The subpoena sought information about the employee’s employment records, employment file and many items of a personal nature regarding this employee.  Wisely, the client decided they should reach out to legal counsel.  Unlike many potential clients who either ignore a subpoena or blindly comply, the client had the benefit of legal advice.  The client was advised about how the subpoena works and how to respond to it.  Importantly, the client was advised that employment records are confidential, so it is usually best to get permission from the employee to release the records.  This was a state court subpoena for business records.

Under the California Code of Civil Procedure Section 1985.6, employment records are something that an employee could object to be produced or make a motion to quash the subpoena.  To avoid the issue altogether, if it is feasible (which is often the case), an employer should get an employee’s written consent to release any employment records, such as personnel files, payroll records, paychecks, W2, etc.  Also, even if produced such records should redact key personal information such as dates of birth, social security numbers, and even the employer tax ID number.  

If the client had not had the benefit of legal advice, they might have simply produced the records without determining if there was any objection to the release and could subject themselves to legal action for violation of the employee’s rights to such personal information.

Mr. Heimlich has also handled and advised clients when the cases are in the federal court system, such as the Northern District of California and others.  In one case, my client was sent a subpoena for records for a case that did not involve him.  The client wanted advice and assistance on responding to the subpoena.  In order to best advise the client, Mr. Heimlich reached out to the legal counsel for the party who sent the subpoena to discuss what was wanted.  Doing so, helped to limit the scope of items and what was needed to be produced.  Careful discussion with counsel involved in the case made the situation much more manageable for the client and saved the client lots of time and confusion.  The client was very satisfied with the advice.

Mr. Heimlich represented a client at a hearing to prove the amount owed for a breach of contract for a loan.  Mr. Heimlich presented all the adequate evidence for the Court to award not only the principal amount owed, but court fees and some attorney’s fees as well.  The Court was clearly satisfied that Mr. Heimlich was well prepared to present the case and had all the documents handy and had submitted them to the Court prior to the hearing.

Mr. Heimlich had a client who had lent money to a business that failed to repay the client.  Mr. Heimlich filed a case in Santa Clara County, Superior Court, in the State of California for the client.  Mr. Heimlich represented the client to get a judgment for the unpaid loan.  Mr. Heimlich got the judgment even though the defendant did not participate in the case.  When a defendant does not participate in a case, the case is often said to be a “default judgment” since the Court takes a default if a Defendant has not participated in the case.

Mr. Heimlich represented a client that had lent money to a business and had not been repaid.  Mr. Heimlich filed a legal action for failure to repay the loan.  The client had claims for money lent to the other party and for a breach of contract.  This was in Santa Clara County Superior Court, State of California.  Mr. Heimlich through both advocacy in court and negotiation was able to reach an agreement to have his client repaid monies.  Mr. Heimlich also helped the client address potential liability concerns that the client had because of his involvement in the business.  The client had guaranteed some obligations and Mr. Heimlich provided for those to also be addressed in the settlement agreement. 

Mr. Heimlich also helped to get his client off the liquor license to avoid future liability or exposure.  As many people know, in California for any business to sell alcohol it must have a liquor license.  The liquor license is crucial for any alcohol based business.  However, importantly, liquor licenses cannot be held by people with certain issues, such as certain criminal convictions.  Further, if the business is not careful, the holders of a liquor license could become liable for any unintentional selling of alcohol to minors.

A client was interested in starting a new business but needed help reviewing the franchise disclosure document.  Mr. Heimlich was able to review the franchise disclosure document for the client to advise the client on the terms and consequences of entering into the new franchise.

A prospective business owner wanted a franchise review of a business opportunity that targets assisting kids with enrichment and learning activities.  The Franchise Disclosure Document was over 200 pages.  The client appreciated the thorough review of the Franchise Disclosure Document to help review the potential business.  Mr. Heimlich was able to provide a written review of key points that helped the client understand the opportunity and choices of the franchise.

Most people think of car accidents or motorcycle accidents as being covered by insurance.  However, what happens if you forget to renew your insurance?  Then, you have no insurance coverage and may not have an insurance company to hire an attorney to defend you or pay the claim.  Fortunately for a client in this position, Mr. Heimlich was able to advise and defend the suit.  Mr. Heimlich was able to help negotiate a reasonable settlement that all parties accepted.  The lawsuit took over a year, but Mr. Heimlich was able to help navigate the lawsuit for the client.  If you find yourself being sued for personal injury or a car accident where you were at fault, but don’t have insurance coverage, then call Nick Heimlich.

Mr. Heimlich helped a client who needed a review of a franchise for a pest control franchise.  After a thorough review of the franchise document, Mr. Heimlich was able to identify several issues to suggest for negotiation.  Even small changes can have a big impact.  Sometimes agreements will charge a renewal fee for a contract, which often can be negotiated because the franchise may recognize that keeping a good franchise is worth giving up a renewal fee.  Other terms, like asking a spouse to guarantee a business that the spouse is not involved in can be argued against.  Most critical in negotiations is working with a client to have the willingness to walk away or find alternatives.  If a client is not willing to consider alternatives, then negotiation can be difficult.

Mr. Heimlich has advised people who have been sued for allegedly injuring someone during a fight.  As can sometimes happen, when someone loses a fight, they may sue the other party for injuries that occurred from the fight.  Sometimes, people will sue for injuries that may or may not have been caused by the fight or might be pre-existing injuries.  Mr. Heimlich helped a client who had been sued for allegedly harming someone during an altercation.  The private settlement was for a reasonable sum that both parties accepted.  The case took over 2 years to resolve, but Mr. Heimlich realizes that not all cases will settle in weeks or even months.  Often, an attorney must have some patience to work toward resolving a lawsuit as more facts become available over time and issues can be better understood.

Mr. Heimlich is familiar with employment laws and the legal issues around employment.  A client needed an employment agreement to help protect her business and provide her with clarity on what the terms of the employment were.  Mr. Heimlich was able to provide an employment agreement based on the client’s input and needs.

Mr. Heimlich has experience with California labor claims, such as claims filed before the Department of Labor and Standards Enforcement.  In California, there are multiple ways that a party can pursue wage based claims.  While employees could choose to sue in civil court in the state of California, there is another option.  That option for unpaid wages or other benefits is an administrative agency in the State of California, under the Department of Industrial Relations, also called the California Labor Commissioner’s Office.  The Labor Commissioner can receive claims from employee who claim they were not paid wages, benefits, rest breaks or other compensation issues.  After receiving a claim, the Labor Commissioner will serve a copy of that claim upon the employer.  The employer has an opportunity to respond in writing to the labor claim.  Then, if the employer cannot directly resolve the claim, then the claim will be set for a settlement conference.

At the settlement conference, the employer (and their counsel if they have one) can attend and the employee (and their counsel, if they have one) also attends.  The purpose of the settlement conference is to discuss ways to potentially settle the claim.  Settling the claim means some sort of agreement between the employer and employee to resolve some or all of the claims raised by the employee.  The settlement often, but is not required to, include monetary compensation to the employee.  Sometimes, an employer may be able to offer other ways to settle a claim, such as rehiring an employee, or offering to help the employee find new employment.  Other times, a positive reference may be of great value to the employee. 

            The Labor Commissioner will be the person presiding and facilitating the settlement conference.  Often, the labor commissioner will start off by presenting the claim to the employer and making sure that the employer is aware of the claim.  Then, the Labor Commissioner will ask if the employer is willing to discuss settlement or issues regarding the claim.

            Sometimes, the parties will be sent to separate rooms to allow the labor commissioner to discuss privately with each side.  The Labor Commissioner may also provide relevant information such as laws that may apply to the situation to allow counsel or the parties to better understand the claims involved.  Ultimately, the goal of the settlement conference (not always achieved) is a private settlement of the case and the agreement is put into a written agreement that everyone signs that day.  Getting an agreement in writing is critical to avoid parties changing their mind later, or wanted to demand more or pay less in the future.

            Even though the goal is a settlement, not ever case will be settled.  Further, a settlement is voluntary, not mandatory.  Sometimes the parties are too far apart to resolve the case, or one or both parties want a Labor Commissioner to decide the case, rather than settle the case.

            After an settlement conference ends without settlement, then the Labor Commissioner’s Office will usually set a hearing date.  The hearing will be where parties may present evidence and witnesses including documents to prove their case, or defend their case.  The hearings are usually recorded by audio by the Labor Commissioner’s office.  Then, after the hearing, the Labor Commissioner will send out an Award deciding the claim.

            The Award can be contested, but has a very short timeline to contest the Award.  The Award is called an Order, Decision or Award (ODA).  The appeal usually must be filed within 10 days of the service.  Strict procedures apply for an appeal and failure to follow the procedures may result in denial of the appeal, which will make the Award final (without change).

A covenant not to compete is when a person agrees to not compete with another person.  Often covenants not to compete may be included in an employment contract.  In that context, the employee that works for say a restaurant is prohibited from working for a competing restaurant for a certain period of time, say 2 years.  These types of clauses can also be included in franchise agreements for the franchise business owner.  Additionally, they are sometimes included in franchise agreements even for people who do not own the franchise, such as non-owner spouses, children, employees of the franchise, managers of the franchise.

            Mr. Heimlich is a California based attorney.  While in some states covenants not to compete can be enforceable depending on their scope and time.  In most states, a covenant not to compete that prohibits someone from working in a trade or profession without restriction to time and location will be invalid.  Similarly, courts will often say a given covenant not to compete is too broad as to time or geographic location, or both.

            In California, the default is that covenants not to compete are invalid.  Under Section 16600 of the California Business and Professions Code that anyone who is restrained from engaging in a lawful profession, trade or business of any kids is to that extent void.  California law even goes further to say that it is void regardless of where and when the contract was signed.  Section 16600.5.  California law also states that it is unlawful to include a noncompete clause in an employment contract.

            In California, the only context (realistically) where a covenant not to compete would be enforceable is in the context of a business sale.  In a business sale where the owner sells the goodwill of the business and disposes of all of their ownership interests or assets, then a covenant not to compete can be enforceable.  Section 16601 of the California Business and Professions Code.

            The Federal Trade Commission is also working toward severely limiting or banning non-competes in most businesses.  So, effectively unless the law changes, covenants not to compete are becoming extinct and unenforceable even as to existing non-competes.

Mr. Heimlich has advised tenants of commercial space regarding their proposed lease agreements, renewals and options to renew.  Mr. Heimlich has advised these tenants in many different types of industries from industrial leases, restaurant leases, office leases, retail leases (such as grocery stores, convenience stores).  As part of the review process, Mr. Heimlich can help to explain the often confusing language involved in a commercial lease.  Sometimes, changes are also suggested to the leases to help the tenant have the lease adjust to their desired use of the property.  While he cannot guarantee a given property owner will agree to lease changes, many property owners will make some changes to a lease. 

            Some of the key terms to a lease are fairly obvious, but details can matter.  For example, a key term is the rental rate and the length (number of years) included in a lease.  But, sometimes the rental rate is not written out as an exact number, but is a % change from a prior year (or based upon some inflation index).  In those cases, it is generally easier for all parties concerned to simply commit to a fixed rent price with the exact dollar amount stated.  This avoids any disputes about the proper amount of rent to pay for a given time period.  Getting the rent to a specific figure is also important for any lease extensions or options to avoid ambiguity.

            It is also important for a client to review the terms of the lease that may limit their hours of operation, signage, or other items.  Sometimes these items are written in a generic fashion and don’t reflect reality.

            Finally, as some tenants may not know, not all leases are the same.  Some property owners will have a more onerous lease and others will have a more reasonable lease.  Shopping around can sometimes not only get you a better lease contract, but sometimes even get you a better rental rate.

Many small businesses run into the issue of non-paying clients or customers.  I helped one client by sending demand letters for delinquent accounts.  I also help advise clients on steps to try to collect their unpaid invoices before I even send any demand letters.  Sometimes, a client or customer needs clarification or a small issue resolved to obtain payment.  After the client has exhausted all efforts to get paid on their own, then Mr. Heimlich can be called upon to send a demand letter after a review of appropriate documents and contracts.  Mr. Heimlich has had clients that have been paid based upon sending demand letters and follow-up to the demand letters.  While, he cannot guarantee a specific result for a given client, often a demand letter is something done prior to any legal action is initiated.

The firm has helped property owners that had multiple people on title to multiple properties who could not get along and figure out who should own which property or who should be paying which mortgage bills and expenses.  After lengthy discussions and many months, the parties along with their counsel were able to work out an arrangement on the properties.  Co-ownership disputes for real estate are very common.  Often the parties may start off with similar interests in what to do with the property, but over time, things can change.  For example, one owner may be paying all of the expenses, but only owning part of the property.  This can cause friction and disputes when the parties cannot agree how to allocate ownership if people are not paying their percentage of expenses or costs of ownership.

Mr. Heimlich has experience dealing with labor and employment claims.  In one case, Mr. Heimlich analyzed claims regarding unpaid wages, failure to provide meal and rest period penalties, failure to provide accurate paychecks and access to payroll records, and failure to pay wages upon termination.

            A key to analyzing wage and hour claims is being familiar with the statutes that apply in different situations and gathering the proper evidence to assess the claims.  For unpaid wages, one needs to analyze if all hours were paid for by an employer.  Also, the employer needs to check that for any unpaid hours, does it trigger overtime pay?  The overtime pay will trigger additional liability.

            California Law regulates paydays.

            Mr. Heimlich can help advise on when paychecks are due.  There are laws about when a paycheck must be paid by.  California Labor Code Section 204, employees are entitled to his pay at certain times, either on or before the 16^th day of the month for labor performed between the 1^st and 15^th day of the month, Employees must be paid on or before the 26^th day, for labor performed between the 16^th and last day of the month, Employees must be paid on or before the 10^th day of the following month.  Overtime wages must be paid in the next pay period in which the overtime labor was performed. 

            California Minimum Wage (statewide) on January 1, 2024 is $16.00 an hour.

            All employers must pay at least $16.00 per hour for employees.  Certain cities or counties or industries may have higher minimum wages that apply.  For example, fast food workers get $20 per hour starting April 1, 2024.  For example, San Jose (the biggest city in Santa Clara County) has a minimum wage of $17.55 and Santa Clara (the city) has a minimum wage of $17.75, also in Santa Clara County, Sunnyvale has a $18.55 minimum wage, Palo Alto has a $17.80 per hour, Mountain View has $18.75 per hour for minimum wage, Milpitas has $17.20 per hour, and Cupertino has a minimum wage of $17.75 per hour.

            Failure to pay minimum wage can trigger a penalty equal to the unpaid wages.

            If an employer fails to pay minimum wages of say $1,000, then under California Labor Code Section 1194.2, another $1,000 would be owed as a penalty.  Further, there would also be attorney’s fees and costs, and interest.  There is also another penalty for unpaid wages under Labor Code Section 558, which adds a penalty of $50 for each underpaid employee per pay period for the first one, but violations after that will be $100.

            Attorney’s fees of the employee’s attorney can also be owed under the labor code.

            Under California Labor Code Section 218.5, an employee can be awarded their reasonable attorney’s fees and costs if they prevail in a wages, fringe benefits, health or welfare or pension fund contributions case.

             Overtime wages are required for many employees.

            Under California Law, for hours over 8 in a day or 40 in a week, then overtime pay is owed.  Overtime is one and a half times the regular pay from hours 8 to 12.  Any hours over 12 are paid at twice the regular rate.  There are some exceptions, but this is the general rule.

            The main exception is for exempt employees.  Employees to be exempt must be paid more than 2 times the minimum wage as a salary.  Additionally, the employee must spend the majority of their time doing exempt duties (such as a professional, administrative, executive, etc.).

Employees who are not exempt are often entitled to meal and rest breaks.  As to meal breaks, under California Labor Code Section 512(a):

            “An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”

            What this means is that if an employee works six or more hours, they must be provided with a 30 minute meal period.  The meal period is unpaid.  If the employee is not provided with their meal period, then they could be entitled to a penalty of up to 1 hour of pay for each missed meal period.  If an employee works 12 hours (or more), then a second meal period would be needed.  The meal periods are unpaid and an employee should be clocking out for the meal period, so it can be tracked and proven if there is a dispute.

            Also, under California Labor Code Section 512.1 (b), an employee is entitled to a rest period of 10 minutes net rest time per 4 hours worked or major fraction thereof.  Generally a major fraction thereof means about 2 hours.  The rest period is paid time, so the employee does not have to clock out.  The employer should track the rest period time to be able to demonstrate the amount owed.

            For both the meal and rest periods, the employee should be relieved of all duties during any meal or rest break.

Mr. Heimlich was able to review of franchise disclosure document for a franchise for an Asian food restaurant.  A client needed to review of a possible restaurant.  After a thorough review of the franchise disclosure document of over 200 pages.  The Franchise Disclosure Document has many different items.  The sections of a franchise disclosure document help to inform a potential franchisee about the franchise they are about to enter into.  The table of contents includes at least the following items (not all may have applicable information for each franchise):

1. The Franchisor entity and predecessors
2. Business Experience
3. Litigation
4. Bankruptcy
5. Initial Fees
6. Other Fees
7. Estimated Initial Investment
8. Restrictions on Sources of Products and Services
9. Franchisee’s obligations
10. Financing
11. Franchisor’s assistance, advertising, computer systems and training.
12. Territory
13. Trademarks
14. Patents, Copyrights, and Proprietary Information
15. Obligations to Participate in actual operation of the business
16. Restrictions on what the Franchisee may sell
17. Renewal, Termination, Transfer and Dispute Resolution
18. Public Figures
19. Financial Performance Representations
20. Outlets and Franchisee Information
21. Financial Statements
22. Contracts
23. Receipts

A short explanation of the sections follows.

1. The Franchisor entity and predecessors

            This discloses the name of the franchising entity, when it was incorporated and any entities before.  This gives an idea of how long the franchise has been around and its past history.

2. Business Experience

            This section discusses the officers of the Franchisor, such as the Chief Executive Officer, Vice President and others.  The background information tells you about the business experience of officers.  This section is often important to tell you about the experience of key personnel and whether they have many years of experience in business and with the particular franchise.

3. Litigation

            This section often discusses court cases or arbitrations involving the franchise.  Sometimes it will discuss lawsuits between a franchisees and franchisor.

4. Bankruptcy

            This section discusses any possible bankruptcy that the franchise or related entities may have or have had in the past.

5. Initial Fees

            The initial fees are the fees that you have to pay upfront for a franchise, this will vary based on the franchise.

6. Other Fees

            This generally covers more of the ongoing fees for a franchise.

7. Estimated Initial Investment

            This is how much one might be expected to invest in the startup of the franchise.

8. Restrictions on Sources of Products and Services

            This section is where a Franchisor may require that a franchisee buy certain products or services that are approved by the Franchisor, or directly from the Franchisor.  Franchisor’s will also often restrict a franchisee from offering different (more or less) services that what the Franchisor deems appropriate.  These restrictions are part of the Franchisor policing and upholding the quality of goods or services being offered by franchises, to set a consistent standard for the brand.  Imagine a McDonald’s that decided it did not want to offer hamburgers.  That would be a problem as it would create an uneven experience for the consumer.

9. Franchisee’s obligations

            This is a list of the things that are expected of the Franchisee while it or they are operating the business.  It includes things like when opening, sometimes hours, lease obligations, advertising, insurance, owner’s participation in the business, appearance, training, conferences, records and reporting and other items.

10. Financing

            This is for franchises that may sell items or finance the franchise fees to the franchisee.  Not all franchises will have financing available.

11. Franchisor’s assistance, advertising, computer systems and training.

            This talks about how you advertise, what methods and how you decide where to operate.  There is also often required training for franchises.

12. Territory

            The territory section may include a description of the location where the business is.  Sometimes there will be an exclusive territory where the franchisor will not sell another franchise within a certain defined territory (such as ZIP Codes, or a city).

13. Trademarks

            This section will list the trademarks of the franchise.  An attorney familiar with trademarks such as Mr. Nick Heimlich could check on the status of these trademarks with the United States Patent and Trademark Office (USPTO.gov).

14. Patents, Copyrights, and Proprietary Information

            This section will describe the patents, copyrights or other proprietary information of the franchise.

15. Obligations to Participate in actual operation of the business

            This section may explain that the franchisor expects the individual named as a franchisee to actually work in the business, not just be a remote business owner who is a passive owner.

16. Restrictions on what the Franchisee may sell

            This often details that the franchisee cannot simply offer whatever they want to the customers, but rather must conform to the standards and items set by the franchisor.

17. Renewal, Termination, Transfer and Dispute Resolution

            The renewal section will detail if the franchisee has a right to renew the franchise at the end of the contract term.  The termination, transfer and dispute resolution detail what the procedures are when a franchise relationship ends between the franchisee and franchisor.

18. Public Figures

            This section would discuss celebrity spokespeople for example.

19. Financial Performance Representations

            This will show you something like the averages of sales for individual franchises for various years for certain types of franchises (like those open 6 months or 2 years) (or longer depending on the franchise).  This typically is not a promise that your sales will be similar, in fact, they promise nothing usually.

20. Outlets and Franchisee Information

            This will list the number of outlets and often has contact information for other franchisees of the brand.  Mr. Heimlich would highly recommend contacting other franchisees to see how they feel about the brand.

21. Financial Statements

            These are the standard financial statements like an income statement, balance sheet and cash flow.

22. Contracts

            These are usually copies of the contracts that you could be asked to sign to join the franchise.

23. Receipts

            This is noting that you accepted and received certain information and disclosures.