Overview

​California labor laws are put into place to punish employers who do not properly follow the procedures needed to be done when an employee leaves the workplace. Employees are entitled certain rights upon termination or resignation from a job. Violations of these rights include delaying of the final paycheck, improperly presenting the final paycheck, and not giving the full amount rightfully owed. There are also rules and exceptions that some employees and employers alike may not be aware of. Employers are at risk of hefty and otherwise easily avoidable penalties if not thoroughly educated on the subject.

Practice Pointers
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The employer must present the final check to the employee at the time of termination or discharge. On the employee’s final day of work, their final check must include all of their earned wages which have not been paid. If the employee voluntarily quit, then the employee must still promptly give them their last paycheck. However, this period depends on if the employer gave sufficient notice to their employee of their resignation. If notice was given seventy-two hours prior to quitting, then the employer must give the check on the last day of work. If there was less than seventy-two hours of notice, then the employee must be given the final paycheck within seventy-two hours of their final work day. Some forms of earned income that are often overlooked include:
 

• Unused vacation time
• Missed lunch and rest breaks
• Overtime
• Unpaid commissions and bonuses

 
Failure to pay the final paycheck on time will create waiting time penalties, which add on to the total amount owed to the employee.  While an employee leaving the workplace can very commonly be a subject that is overlooked, business owners should educate themselves on the proper procedures to follow. This is critical to avoid extra expenditures and penalties that could have been easily avoided. 

Under California law, probate is triggered when a deceased person dies without any Will or if such person wrote a valid Will but the value of the deceased person’s gross estate equals or exceeds the prevailing probate threshold. As of the date of this post, the current California probate threshold is $166,250. In other words, if a California resident dies leaving behind a gross estate valued at or above $166,250, such estate will go through probate regardless of whether or not the deceased person had a valid Will.
What is probate?
‘Probate’ is a court process where a judge supervises the distribution of a deceased person’s estate. The probate threshold applies to the deceased person’s ‘gross’ estate and not the ‘net’ estate, which means that such person’s debts, liabilities, taxes and expenses do not count towards reducing the value of the estate for purposes of determining whether or not probate applies. Also, the limit is based on the summation of all assets of the deceased and is not a ‘per asset’ limit.

Why should probate be avoided?

• First, it is very expensive. Probate fees are statutorily determined and are calculated as a percentage of the deceased person’s gross estate. It starts at 4% of the gross estate for the first $100,000; 3% of the next $100,000; 2% of the next $800,000; 1% of the next $9M; and 0.5% of the next $15M. Estates above $25M are assessed a reasonable probate cost. As an example, on a $1M estate, the total probate cost would be about $45,000. This is money your estate would pay as legal costs to distribute your wealth to your family only because you did not engage an estate planning attorney to establish an appropriate estate plan for you before your death!
• Second, probate is time-consuming. On an average, it takes between 6 months – 2 years for probate to be completed during which time your assets would be locked up in the court process and your family would have to depend on the probate judge for receiving their share of your assets.
• Third, probate is a complex, stressful and formal process. Before your family can receive your assets, your estate will be subject to payment of court fees, applicable taxes, settle debtor claims, and the probate judge will have to resolve any other competing estate claims from third parties for a share of your estate.
• Fourth, court proceedings typically are a matter of public record, which would mean that the public at large could know who you were, what assets you owned, who got what, what their identities are, etc.
• And fifth, a probate judge will distribute assets, based on the default rules of California Probate Code, rather than using the emotional, subjective factors that come into play when individuals distribute their assets to their family members and other beneficiaries in a private way.

​PRACTICE POINTERS

• Engage an experienced estate planning attorney to set up a living trust for your family. For many individuals and families, a revocable living trust may be the correct approach.
• Ensure that all of your existing assets are ‘funded’ in the trust, i.e. either their ownership is transferred to the trust or they are made payable to your trust after death. All valuable assets, including real estate, bank accounts, brokerage accounts, stocks, investments, business interests, life insurance proceeds, retirement account funds, and tangible assets should end up in the trust in one way or another.
• Not all assets can be directly held by your trust but your estate planning attorney can help structure the right strategy for funding your trust assets. At IndUS Counsel, we give our clients detailed written funding instructions and a funding checklist with practical pointers to streamline the trust funding process.
• Funding a trust is not a one-time activity. It should be an ongoing process. As you add new assets to your estate, you should ensure that they are also funded to your trust. Otherwise, such new non-trust assets could end up being ‘probate’ assets depending on their total gross value at your death.
• While there is no prescribed time limit to complete trust funding, it is important to adopt a ‘sooner the better’ approach to avoid inadvertently risking probate occurrence in the event of untimely death or incapacity, which could defeat the purpose of setting up a living trust. As a general rule, we suggest that you fund new real estate acquisitions on a ‘real time’ basis at closing of the purchase, and all other asset acquisitions (including, new bank accounts, brokerage accounts, private investments, etc.) should be funded on at least an annual basis, if not sooner.

Funding of assets is typically a two-step process. First, you must inform the institution dealing with the asset that you want it to be placed in a trust. This would involve, for instance, in the case of real estate, recording a new title deed (typically, a ‘trust transfer deed’) with the county where the property is located, or in the case of a bank account or a brokerage account, informing the financial institution providing such account that you would like the account to be a ‘trust account’ instead of a ‘personal account’. Secondly, update your trust documents (i.e., the ‘Schedule of Trust Assets’) and specifically add the new assets in that document and execute it before a notary. The updated trust document should then be placed in your estate planning binder instead of the old document. Your attorney can help you maintain the estate planning binder.

Overview

Typically, most stock option plans allow departing employees to exercise their options within 90 days of employment termination. If the options are not exercised before that date all vested but unexercised options lapse. This 90-day window becomes critical, particularly for early stage startups, where the departing employee may not wish to exercise their options just yet as there is no ready market available to trade such shares and the value of shares is mostly "on-paper" but not exercising them would also mean that the employee is giving up the right to purchase a potentially valuable stock at a cheap rate.

To remain competitive and to attract top talent, startups should consider extending this post-termination exercise window beyond 90 days. Some well-known companies have already chosen to diverge from this usual path. Companies like Pinterest, Square, and Coinbase offer employees who have worked for a minimum period of time an extended window in which they can choose to exercise options. Triplebyte, a tech recruiting website, recommends that companies implement a 10-year exercise window instead, which may become the next industry standard.

​From the company's perspective, choosing to extend this exercise period is a serious and tricky decision. There are quite a few things to consider when making such a decision as it involves both legal and financial/tax implications.

PRACTICE POINTERS

• The way you incentivize your employees should be tailored specifically with your startup’s unique qualities in mind. Companies should tie in their extended exercise windows based on their products, services, timelines, employees, and end goals. Simply following a standard "industry norm" may not always be beneficial.
• The window for options does not have to be just 90 days or 10 years. It can be anywhere in between, even with a minimum period of service. There is room for flexibility in setting the terms and it may even make sense to have different levels of exercise windows based on a pre-set criteria.
• While employees will enjoy extended exercise windows, VCs may not necessarily prefer them. The longer the window, the less chance for the employee to utilize them until a liquidity event or until they ultimately forfeit them. As employees sit and wait, the options are still taken from what the company can work with to incentivize potential workers. The company will needs to account for these options while being careful so as to not dilute or diminish the value of their shares.
• Be very careful when incentivizing certain workers more than others. While certain workers are more critical than others, this could break the overall teamwork and drive between the employees. To prevent these sweeter deals from leaking in an undesirable way, it is better to be more open to the staff and explain the differences and incentives between workers. In any case, unequal incentives may always generate some sort of negative response from the employees, as also may open the company to employment claims for discrimination.
• As you are setting up your business, it is the best time to create and implement your stock option plan. That way, the same policy and information is given to all employees and future ones. Changes or new policies further down the timeline will create more legal, tax, accounting and practical obstacles.

 
With the technology industry growing so rapidly and their market for employees being in such high demand, there will always be need for more and more incentives to retain the most talented workers. However, there must be a balance between keeping the workforce happy and running a successful operation. Every startup is different, and every approach as to how best to incentivize their team must also be unique.