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Hear Our Thoughts. Beware The Dangers Of Debt Settlement And Filing For Bankruptcy…

Beware The Dangers Of Debt Settlement And Filing For Bankruptcy

You're over-extended. Drowning in debt. You're not sure you can cover the minimums for much longer. You've missed more payments than you want to think about.

You're in a situation where your credit score is going from good to bad to worse.

And that's a big deal!

A poor credit score affects your ability to get important loans such as mortgage, car, or even credit cards.

Bad credit makes these loans more expensive (which doesn't help paying off debt), or stops you from getting these kinds of loans you need to live and get ahead in your life.

Does Bankruptcy Or Debt Settlement Make Sense?

Maybe. But there's more to the problem.

Most people don't realize that bad credit affects other areas of your life that have nothing to do with loans.

For example, bad credit can stop you from moving out and renting a new apartment, getting a better job, or even getting a cell phone!

As you can see, once debts get out of hand and your ability to pay them takes a hit, you end up stuck in a vicious cycle that is difficult to get out of.

But there's more.

The stress alone makes many people feel helpless. I see this all the time in my office.

The non-stop creditor phone calls, the strain on your personal relationships, lost sleep, and your health takes a beating, too.

How are you going to work to earn money to pay off your bills if you can't sleep well, your phone doesn't stop ringing, and you can't think straight?

A few options exist to put a stop to all of this, but they have their dangers.

Bankruptcy Or A Debt Settlement: Solution Or Curse?

Although these could be effective they can also create additional problems down the line.

For instance, bankruptcy takes 10 years to come off your credit record and not all debts can be wiped clean. There many other dangers to be aware of when using bankruptcy.

Debt settlement has its own landmines to tiptoe around.

For instance, you could owe taxes ON your settled debts. Yes, you read that right. The government may treat your settled debts as income and send you a tax bill!

How are you supposed to pay that?

Which Option Is Right For You?

The best way for me to answer that is to meet, talk, and review your paperwork in person.

Your situation is unique.

But if you do nothing, or if you delay, that's when the worst will happen to you.

Call my office for a complimentary consultation, there's no cost and no obligation: call (866) 651-6118.

Chris T. Nguyen, Esq. Call (866) 651-6118

Are You Threatened By A Bank Levy Or Wage Garnishment?
There’s Hope If You Know What To Do.

Imagine trying to stay above water and get back on your feet financially. You're holding down a job and paying your bills as agreed.

Then out of the blue you learn that one of your creditors, the government, or your ex-spouse attacks your paycheck and bank accounts!

It happens all the time.

And it's underhanded and sneaky.

They don't give you the option to plead your case and protect the good, hard work you're putting in to turn things around.

They just use brute force to reach their grubby hands into your pocket and yank out a chunk of your paycheck and another chunk from your bank accounts.

What's worse, they'll even try to attack your spouse's paycheck and bank accounts, if you let them.

And this may all be legal.

But the law isn't supposed to be used against you like this, right?

It's supposed to be fair and protect you and give you a chance to clear your debts... and give you some breathing room to get back on your feet.

But that's almost impossible with a big cut in your paycheck every week or with your bank accounts drained.

It's not fair.

And there's nothing you can do about it, unless you get some legal muscle behind you.

Your creditors, ex-spouse, or the government do not respect or fear you. That's why they levy your bank accounts and garnish your wages.

They thought they could just walk all over you.

You can, and should, fight back to protect your rights, protect your livelihood, and protect your family.

But you should not fight this on your own because you’re not alone, even if it feels like it.

You need experienced back-up to fight for you.

At Benari & Nguyen LLP we fight on your side and win for you. Call us at (866) 651-6118 now.

We use our legal muscle and experience to stop these bullies from hurting to you, and we may even be able to get the money they took back to you, if you qualify and act fast!

Don't stand for this any longer! If you're going through a bank levy or wage garnishment now, or fear it may happen soon, call my office for a complimentary consultation - there’s no cost and no obligation.

The sooner we speak the easier it is to get your money back, if you qualify. And the easier it is to stop this mess before it even has a chance to start.

Call - (866) 651-6118 and schedule your free and confidential consult.

Chris T. Nguyen, Esq.

Best Employment & Labor Law Lawyer in San Diego

Competent and impressive are the terms that come to mind when referring to attorney Omni Ben-Ari. He is a professional who loves his work and strives for his clients to the best of his capacity.  


What Does Omri Ben-Ari Do?

He leverages his extensive legal knowledge and skills in offering his services to people who end up on the short end of the stick when it comes to employment issues and labor law.


Mr. Ben-Ari offers legal consultation services to guide his clients in everything from advocating for aggrieved employees, defending employee rights, against corporations big and small.

Mr. Ben-Ari is a litigator. His experience and expertise in labor and employment law, allow him to provide the utmost commitment to his clients. He strives to provide progressive and personalized legal services for each and every client who passes through his door.

It is his experience that appeals to clients for his personal ability to encompass complex interdisciplinary legal issues and come out of it all with the results his clients expect.

Mr. Ben-Ari is more than just a legal advisor; he is more than your average attorney. He is all of these things rolled into one person. He is an attorney who is passionate, committed, and voracious in getting his clients the financial benefits they deserve.

If you believe you may have a potential labor or employment legal issue do not hesitate to contact Omni Ben-Ari.

What Type of Case Does He Handle?

His practice involves representing individuals who are faced with the following situations:

·        Discrimination in the workplace. These are actions that deal with race, color, harassment, discrimination against national origin, religion, age or disability.

·        Harassment – such as sexual, or any situation that creates a hostile work environment.

·        Unfair Labor Practices in the workplace – such as denial of wages, of overtime, worked, or of equal pay.

·        Defamation of character

·        Denial of leave – for family medical leave, uniformed services employment or reemployment rights.

Omri Ben-Ari pursues hundreds of labor issues every year. He is extremely proud of his successful track record and in his ability to successfully represent victims of labor claims. 

Omri is experienced in representing people against corporations but also before administrative agencies such as the Department of Labor, and the Equal Employment Opportunity Commission.

If you have been mistreated by an employer or another employee, do not hesitate to contact Omri Ben-Ari today. Learn about your legal rights and about the options you have. Call today and get the legal help you need.




Take Your Phone On Break?

In Augustus v. ABM Security Services, Inc., the California Supreme Court held that employees who were required to carry phones or pagers during their rest breaks - even if they never actually received a call - were deprived of their statutory right to a duty-free break period. Consequently, awarding the aggrieved employee class a 90 million dollar judgment.

But what does this mean? Well, the court stated that an employer cannot satisfy its obligations to relieve employees from duties and employer control during rest periods when the employer nonetheless requires its employees to remain on call.

Long story short, employers should think twice before requiring their employees to remain "on call" while on break.

By Omri A. Ben-Ari, Esq.

Best Practices for Preventing Workplace Harassment

Workplace harassment claims have become increasingly more widespread form many of Californias employers. It is best said that the best offense is a good defense. In that spirit, here are best practices employers should undertake to help protect itself from workplace harassment claims.

First, a plain language policy outlining an organization's stance on workplace harassment. However, merely having a plan is worthless if it is not regularly communicated to all employees, and reinforced with regular employee training. Employers should implement training programs that help employees understand their rights, know how to inform their employer of harassment complaints - better the employee inform you before contacting a lawyer, and understand the consequences of engaging in harassing behavior.

Second, create a simple complaint procedure that's easy for the aggrieved employee to follow. Giving an employee a few avenues to report wrongdoing will diminish claims of bias later on.

Third, implement regular training sessions for supervisors and managers. Make sure your management team is acutely aware of the repercussions of retaliation. Make the training as interactive as possible (e.g., hold live training sessions as opposed to online questionnaires).

Fourth, if you have concerns about ongoing harassment, think about obtaining a disinterested investigator. By disinterested I mean an unbiased person with no skin in the game. This investigator should be familiar with these types of investigations and be in a position to do something about it.

Implementing these best practices can help reduce and hopefully prevent workplace harassment and diminish an employer's exposure.

Omri A. Ben-Ari, Esq.

Life After Bankruptcy: 5 Ways to Rebuild Credit Score

A common myth many believe is that filing a bankruptcy will ruin their credit long term; that filing a bankruptcy means losing a chance to buy a home or obtain financing. Our Orange County bankruptcy attorneys can help you prioritize your debt relief and get you bank on track. Through these five pro tips, you can help reclaim your financial health.

1. Dispute credit report errors.

We all have three separate credit reports. The three major credit bureaus that provide each credit reports are Experian, Equifax, and TransUnion. It's hard to look at credit reports at times when it seems like we have an F rating, when we deserve an A. However, did you know that credit reports can contain mistakes that do not belong to you? It's important to check your credit reports for false information that may be lowering your credit score.

The Federal Trade Commission conducted a study in 2012 that found 1 in 5 consumers had an error on at least one of their credit reports. The Federal Trade Commission found in a 2015 follow-up study that an unresolved error on one of their reports believe at least one piece of disputed information is still inaccurate. Credit scores are solely based from credit reports; therefore it is important to ensure the information on your credit report is true.

Under the Fair Credit Reporting Act, you are entitled to a free copy of all three credit reports once a year. You can access these reports by the government-mandated site run by the major bureaus,

Some questions you can ask yourself as you are looking through your credit report are: Is all of my personal information( including Social Security number, birth date, full name, and address) accurate? Are all of my credit accounts being reported? Are there any payments I made on time that are marked as late or missing? Are there any accounts or applications for credit I didn't make or remember? Are there any items on from decades ago that were taken care of still appearing on my report?

It's possible that one credit report from one bureau may contain errors while the others do not. For this reason, it should be a priority to check all three credit reports for inaccuracies.

2. Pay your bills on time.

cheduled time is a great way to establish credit history. It shows others that you can manage credit and adhere to your contractual obligation to pay bills as agreed.

Late payments can result in costly penalties, and may even cause your interest rate to rise significantly. Missing an entire payment for the month will be reported in your credit history, causing your credit score to take a huge hit. That's why it's important to try and make payments on time, even if it is only the minimum amount. Paying your bills on time shows that you are committed, trustworthy, and diligent when it comes to paying your debts.

By paying your debts on time, this demonstrates to others, whether to companies you are applying for their services or companies that want to hire you, that you are highly capable of managing your finances. Companies will want to do business with you, and more than likely will offer their best rates and lowest down payments.

Some tips to help you pay your bills on time include setting up your bills on auto payment with your bank, using an online calendar to set reminders to make payments, and scheduling an email to be sent to you when a bill is due.

3. Build a strong credit age( don't close old credit cards).

Closing old credit accounts simply because the accounts are being used anymore is a common mistake some people make. Older credit accounts with good history can assist you in building strong credit scores over time. Closing an account that's not in use means deleting great credit history after ten years; this results in a drop in your credit score.

A short credit history makes it very difficult for people to establish credit history. Let's face it: there are not many options you have in order to improve your credit. Some try to remedy this through piggy backing into a friend or family member's credit card through being added as an authorized user. However, it may be hard to find someone who is willing to do this as they would be responsible for any purchases you make. Your other option is to simply wait it out, make your payments, and allowing your accounts to building a good credit age.

4. Get a secured credit card.

There are two types of credit cards: secured and unsecured. On one hand, you have an unsecured credit card which is not secured by any type of collateral; this is the most common type of credit card. The other type of credit card is a secured credit card. Secured credit cards are basically secured through a deposit into a checking account that "secures" the line of credit the bank or lender is extending to you. For example, you may deposit $200 into your checking account and receive a line of credit for $200. You can get a secured credit card with bad credit. Adding a new account with positive payment history is a good investment in rebuilding your credit score. This will show creditors you are responsible with your finances.

5. Pay down your debts( clear up any collection accounts).

It's easy to lose track of payments, and there may be an overwhelming inclination to close accounts hoping those missed payments will disappear. Unfortunately, they will remain on your credit report. The best way to combat uncertainty is to organize it into manageable portions. Getting yourself on the right track means adopting healthy habits, like setting up payment due date alerts with all your credit cards and loans to get organized. Moving credit card payment due dates on your bank or lender's website to make sure they fit your payment schedule will allow you to properly allot and make payments when due. If you have a long track record of making your payments on time, consider asking your credit card issuer or lender if they can forgive that late payment. By paying down your debts, you show that you are consistent in taking charge of your financial responsibilities.

In following these five steps to rebuilding your credit score after a bankruptcy, you ensure a healthy financial recovery. Life after bankruptcy can be a difficult task. Our Orange County bankruptcy attorneys at Ben Ari & Nyugen Attorneys and Counselors ensure you do not face a bankruptcy alone. From handling your local Orange County bankruptcy to creating effective solutions to assist your debt relief, you can rely on Ben Ari & Nyugen Attorneys and Counselors to protect you and your family.


We at Ben Ari & Nyugen Attorneys and Counselors believe that you should not have to choose between paying your bills and supporting your family. By representing both individuals and business, we are your premier Orange County bankruptcy and debt relief attorneys dedicated in helping you free yourself from debt. Our experienced bankruptcy attorneys are dedicated in helping you find the right debt relief solution. With us, you won't face debt settlement alone. Connect with Ben Ari & Nyugen Attorneys and Counselors with a free consultation to discuss your bankruptcy concerns today.

Top Three Things to Look for in a Bankruptcy Attorney

After struggling for so long, and careful consideration, you've decided you’ve had enough: you are filing for bankruptcy. You've seen advertisements on TV, radio, billboards, and bus stops, but how do you know which one is right for you? In a time of free information, it can be confusing to decide how to choose a bankruptcy lawyer. With the added pressure of being hounded by creditors, many people may be at a loss

If you are considering bankruptcy, and don't know where to start, consider looking into hiring an experienced Orange County bankruptcy attorney. Here are the top three things to look for in a bankruptcy attorney:

Bankruptcy cases are specialized and complex; there are no two alike. Attorneys who are not regularly practicing bankruptcy law may fall short when predicting potential pitfalls surrounding your case. You want to make sure to find an Orange County bankruptcy attorney that spends a significant portion of their practice to bankruptcy. The inexperience of an attorney that does not regularly practice bankruptcy may be your cost. This can result in many negative and time consuming ventures, as your case being dismissed, having to attend more mandatory hearings, and even loss of your properties and assets.

An experienced bankruptcy attorney should be able to handle your case efficiently. An Orange County bankruptcy lawyer that does not take the time to listen to your case and understand your bankruptcy case needs may not come up with effective solutions that will help you. While one case may be as simple to pay your bills, there may be other cases that require a lot more from you. For example, a Chapter 7 bankrupcty for an unemployed debtor with no assets is more simple than a Chapter 13 bankrupcty involving a self-employed debtor.

Choosing any attorney that to take your Orange Country bankruptcy can either make or break your case. An inexperienced attorney will make you regret your decision in filing for bankruptcy.

2. Up To Date on Code Changes.

A large amount of advertisements for bankruptcy attorneys are national adverts. What does this mean for you? In an emotionally confusing and troubling time like this, you deserve a bankruptcy attorney that can simplify this process for you. Finding a local Orange County bankruptcy attorney is very important for your case.

Every district court stacks its own set of local rules and regulations regarding bankruptcy on top of federal bankruptcy laws. In addition to those rules and regulations, each individual bankruptcy trustee in your district may have more requirements or procedures to follow. Choosing a local bankruptcy attorney that is familiar with these rules and regulations can greatly reduce your stress.

3. Get what you pay for.

The unfortunate truth about looking for a bankruptcy attorney is that there is many misleading information when it comes to narrowing down which attorney is right for you. A bankruptcy attorney that charges a high fee does not mean they provide quality service. You are looking for someone who communicates in a timely manner and charges reasonable fees.

Filing for bankruptcy is time consuming. It requires a lot of paperwork that may be time sensitive. An attorney who does not return your phone calls or emails in a timely manner does not respect your time. If you cannot get in touch with a bankruptcy attorney in the consultation stages, it can be a strong indicator that your questions and concerns may go unanswered during the case. The bankruptcy trustee may ask for additional docments or information or your creditors may contact your attorney if they have issues for the case. Your bankruptcy attorney should be able to keep you informed about new developments in your case.

A key factor when it comes to hiring a bankruptcy attorney is the fee. When it comes to legal fees, people considering bankruptcy do not have a lot of leeway to spend a lot on legal fees. Bankruptcy attorney fees usually depend on the individual case and if you are filing a Chapter 7 or Chapter 13 bankruptcy. It is very important that you are getting exactly what you need. There are differing costs for hiring a bankruptcy lawyer depending on where you are located. A flat fee may not likely cover all of the services incurred while working on your bankruptcy case.

A flat fee may include:

  • analysis of the financial situation;
  • preparation of the bankruptcy petition;
  • review the petition with the client;
  • attendance of meeting with creditors;
  • follow-ups with creditors.

It is essential that you make sure these services are clearly spelled out in your representation agreement with your bankruptcy attorney. There may be some circumstances in which your bankruptcy lawyer will have to represent you in an adversarial proceeeding, which refers to when a creditor challenges the bankruptcy filing. It is important to ask your attorney what other costs you may incur for any possible litigation that may arise from the bankruptcy filing.

Choosing bankruptcy lawyers solely based on price is not a good idea, as courts often cap how much an attorney can make on a given case. Those who systematically handle such cases tend to charge fees that are in the same general area. Charging a high fee for handling your bankruptcy case is not relative to providing high quality service. You want to work with an Orange Country bankruptcy attorney that will provide expert bankruptcy consultation for a reasonable fee.

Contact An Orange County Bankruptcy Lawyer

We at Ben Ari & Nyugen Attorneys and Counselors believe that you should not have to choose between paying your bills and supporting your family. By representing both individuals and business, we are your premier Orange County bankruptcy and debt relief attorneys dedicated in helping you free yourself from debt. Our experienced bankruptcy attorneys are dedicated in helping you find the right debt relief solution. With us, you won't face debt settlement alone. Connect with Ben Ari & Nyugen Attorneys and Counselors with a free consultation to discuss your bankruptcy concerns today.

Top Three Things to Look for in a Bankruptcy Attorney
Good Debt vs Bad Debt

There is an age old saying that goes "it takes money to make money." Debt, by definition, is basically the process of one party borrowing money from another party. You can live debt free, but very few people earn enough money to pay cash for important purchases, such as a home, a car, and a higher education. We borrow money to pay for goods or services now, with the promise and expectation of repayment in a set time in the future, when we have the money to do so. From this view, all debt is the same: we take now and repay back in the future. However, debt is a complex topic; not all of it is good, but not all of it is bad either. Typically, good debt and bad debt point to the positive and negative consequences of debt. Differentiating between good debt and bad debt is an essential consideration when buying on credit or taking out a loan. What is the difference between good debt and bad debt, and how can this help or hurt you? Contacting your local Orange County debt relief lawyer can assist you in navigating all types of debt by bring you the debt relief you deserve.

Good debt refers to the type of debt that can help you in generating income and increase your net worth; it is basically an investment debt that creates value. A few examples of good debt include mortgage, school loan, real estate loan, investing, and small business ownership.

Good debt can have negative aspects to it when the following occurs:

  • Monthly debt payments taking up more than approximately 36 percent of your gross monthly income; this includes mortgages and credit cards.
  • Carrying too much debt into your retirement years, when income is typically reduced.
  • Having too much secured debt that puts your assets into jeopardy.
  • Not taking advantage of many tax breaks on mortgage or home equity loan or line of credit.

Even though good debt can have some negative aspects, some debts are completely negative. The downside of debt is known as bad debt. Bad debt comes into play when referring to the purchase of disposable items or durable goods using high interest credit cards and not paying the full balance on them. Each month you make a partial payment on your credit account, you are charged interest. With a good debt, the service or good you are paying for continues to maintain or grow in value; in a bad debt, the item you purchased continues to lose value while the amount you pay on it continues to grow. Some items particularly related to bad debt include: vehicles, clothes, consumables, and other services, and credit cards.

There are some debts that are in a gray area between good debt and bad debt. Some of these debts include consolidation loans, borrowing to invest, and credit card rewards programs. While these can be good for consumers who are seeking debt relief, they also have the high potential of creating more debt. Your local Orange County debt settlement attorneys can work towards helping you take the best course of action when it comes to receiving the debt relief you deserve.



While the concept of good debt and bad debt is simple enough to understand, settling debts can be a complicated process. Looking for a local debt Orange County debt settlement lawyer can be difficult because many national companies have advertising campaigns attempting to reach our residents, and even appear as being located in our region. With Ben Ari & Nyugen Attorneys and Counselors, our local Orange County debt relief lawyers maintain offices and operations here so you can meet with a debt counselor to create a progressive, effective debt relief plan customized for your unique circumstances.



We at Ben Ari & Nyugen Attorneys and Counselors believe that you should not have to choose between paying your bills and supporting your family. By representing both individuals and business, we are your premier Orange County bankruptcy and debt relief attorneys dedicated in helping you free yourself from debt. Our experienced bankruptcy attorneys are dedicated in helping you find the right debt relief solution. With us, you won't face debt settlement alone. Connect with Ben Ari & Nyugen Attorneys and Counselors with a free consultation to discuss your bankruptcy concerns today.

Steps to Filing a Bankruptcy

Bankruptcy is a legal status of a person or entity designed to assist debtors receive relief from debts they cannot pay that is owed to creditors. In turn, creditors may be paid through whatever property or assets that are not essential to debtor’s every day living .

You are a debtor if both statements are true: 

  • You are a person or entity that owes a debt to another party.
  • You cannot repay the money in the time allotted for that payment.

Even though bankruptcy can eliminate some debt, it does not eliminate all types of debt. Filing for bankruptcy can be a stressful and overwhelming ordeal. You can find a lot of information about filing a bankruptcy online. However, an experienced Orange County bankruptcy lawyer can help you navigate the specific circumstances of your case by identifying which debts can be wiped out, what debts will remain, and whether pursuing a bankruptcy is right for you.


Bankruptcy is understandably met with trepidation. Bankruptcy can actually assist you by allowing you to:

  • Keep your property.
  • Wipe out credit card debt and other unsecured debts.
  • Eliminate or prevent wage garnishment.
  • Stop creditor harassment (phone calls, letters, emails).
  • DIscharge IRS and State Tax Liens.
  • Restructure debt or business.

The two most common types of bankruptcy are Chapter 7 and Chapter 13 bankruptcy. Chapter 7 bankruptcy liquidates your general unsecured debts like credit cards and medical bills and helps wipe them out. You must have little or no disposable income in order to qualify for a Chapter 7 bankruptcy. After filing for a Chapter 7 bankruptcy, a trustee will be assigned to your case. They will review your bankruptcy papers and supporting documents, as well as sell your nonexempt property to pay back your creditors. Chapter 7 is usually for low income debtors who have little to no assets and want to get rid of their unsecured debts.

If you are disqualified from filing a Chapter 7 bankruptcy because you make too much money, your only option may be to file for a Chapter 13 bankruptcy. Chapter 13 focuses on reorganizing debt for those debtors with regular income. This allows debtors to pay back a portion of their debts through a repayment plan. A Chapter 13 bankruptcy allows you to keep all of your property, including nonexempt assets, in exchange for repaying all or a portion of your debts through a personalized repayment plan contingent on your income, expenses, and types of debt. 


The first step in filing for bankruptcy starts with gathering the appropriate paperwork. Itemizing your current income sources; major financial transactions for the last two years, like home or vehicle purchases; monthly living expenses; secured and unsecured debts; and property (all assets and possessions, not only real estate). Tax returns for the past two years, deeds to real estate you own, your car titles, and documents for loans should also be included.

Either by yourself or with the help of your local Orange County bankruptcy attorney, you should determine which properties are exempt from seizure based on California exemptions. A two page petition and several other forms at your California district bankruptcy court must be file. These forms are collectively known as schedules and refer to your current financial status and recent financial transactions. Filling out your schedules as accurately as possible can aid your case, whereas withholding information can hurt the outcome of your petition.

When filing a Chapter 13 bankruptcy, a proposed repayment plan must be submitted with your forms. Factors taken into consideration when deciding a Chapter 13 bankruptcy include how much money is left over after reasonable monthly expenses are paid. Judgments on cases differ because of individual circumstances, but unsecured debts can be paid off as little as 10 cents per dollar.

Your repayment plan must pass each of the following three tests, in addition to the general requirements listed above:

1) It must be delivered in good faith.

2) Unsecured creditors must be paid at least as much as if a Chapter 7 bankruptcy had been filed. Generally, this is the value of all the non-exempt property you own (please refer to California bankruptcy exemptions).

3) All disposable income must be paid into the plan for 3-5 years.

After filing a Chapter 13 bankruptcy, you will be required to attend a hearing before a bankruptcy court judge, who will either confirm or deny the repayment plan. If your plan is confirmed and you abide by this agreement, the balance, if any, on the dischargeable debts you owe will be eliminated at the end of your term.


We at Ben Ari & Nyugen Attorneys and Counselors believe that you should not have to choose between paying your bills and supporting your family. By representing both individuals and business, we are your premier Orange County bankruptcy attorneys dedicated in helping you free yourself from debt. Our experienced bankruptcy attorneys are dedicated in helping you find the right debt relief solution. With us, you won't face a bankruptcy alone. Connect with Ben Ari & Nyugen Attorneys and Counselors with a free consultation to discuss your bankruptcy concerns today.

25 quick takes on the EEOC’s proposed national origin guidance

These will be really quick takes, since there are so many of them, on the proposed Enforcement Guidance on National Origin Discrimination issued this week by the Equal Employment Opportunity Commission. (The actual document is 57 pages long, not counting the table of contents.)

Take No. 1: “National origin” includes national origin (you don’t say!), or the “physical, cultural, or linguistic characteristics of a particular national origin group.” It also includes national origin groups such as “Hispanic,” “Arab,” or “Roma.” It also includes Americans, such as Native Americans, and Americans, such as non-Native Americans. Discrimination based on national origin, including perceived national origin (for example, refusing to hire that Italian-American because you mistakenly thought he was from the Middle East) is unlawful.

Take No. 2: “Intersectional” discrimination is unlawful. This would be discriminating against someone because of national origin plus something else. For example, maybe an employer is fine with Mexican men but not Mexican women. This would be unlawful “intersectional” discrimination against Mexican women, and the woman could file a charge alleging both national origin and sex discrimination.

Take No. 3: Labor trafficking can be considered a form of national origin discrimination. I can’t improve on what my colleague Elizabeth Joiner recently wrote on this. If you haven’t read her article yet, you should do so.

Take No. 4: Word-of-mouth recruiting is dangerous, as is recruitment that is targeted at one or more particular national origin groups. However, diversity recruitment is fine as long as no national origin group is excluded.

Take No. 5: Staffing companies can be liable for national origin discrimination, and they may be jointly liable with the “primary” employers.

Take No. 6: It’s not a defense to a national origin discrimination claim that “the customer is always right.” If the customer preference is discriminatory, then the customer is wrong.

Take No. 7: It’s against the law to segregate one or more ethnic groups from other workers — for example, by putting them in low-profile, back-office positions.

Take No. 8: National security is a valid defense to a national origin claim if based on federal law or a federal Executive Order.

Take No. 9: Generally, employees should be allowed to work if they’ve applied for but have not yet received a Social Security number, unless an SSN requirement is job-related and consistent with business necessity. According to the EEOC, both the U.S. Citizenship and Immigration Services and the Social Security Administration have already taken this position.

Take No. 10: If an employer doesn’t put its harassment policy and conduct training in a language understood by employees, it might not be entitled to the Faragher/Ellerth defense. That would be bad.

Take No. 11: “Accent discrimination” is generally a no-no, but if a heavy accent materially interferes with the individual’s job performance, then it might be all right for an employer to take action on that basis.

Take No. 12: Language fluency requirements (whether English or another language) are all right if they are necessary to the particular job. Employers aren’t required to pay more to bilingual employees, but they do have to pay for all hours worked. Just in case you didn’t know that.

Take No. 13: English-only policies (or other language restrictions) are all right if use of the designated language is job-related and consistent with business necessity — for example, if use of the language is necessary for workplace safety, service of customers, or efficient job performance — and if the policies are no broader than necessary to accomplish these goals.

Take No. 14: Employers who are worried about gossip or harassment that takes place in the non-designated language should try to deal with it through discipline and harassment policies rather than through banning use of the language. Not sure how the employer will do this if it doesn’t understand the language being used, but I guess that isn’t the EEOC’s problem.

Take No. 15: If an employer is going to have a language restriction, it should provide sufficient notice of that policy to employees and should not use “draconian” enforcement methods.

Take No. 16: It’s ok for an employer to comply with federal requirements regarding U.S. citizenship. But don’t go a fraction of an inch beyond what is actually required by law.

Take No. 17: All employees (or applicants) in the United States are protected by Title VII, assuming the employer is covered. An individual’s immigration status is not relevant to the merits of a national origin discrimination claim. (Undocumented status may limit or prohibit a recovery, but the EEOC didn’t mention that.) Foreign nationals outside the U.S. who apply for employment in the U.S. are protected. Foreign nationals outside the U.S. who apply for employment outside the U.S. are not protected.

Take No. 18: Foreign employers who operate in the U.S. must comply with Title VII unless exempted by a treaty or international agreement.

Take No. 19: American employers operating in foreign countries must comply with Title VII unless doing so would violate the host country’s law.

Take No. 20: Title VII prohibits discrimination against U.S. citizens working abroad for a foreign employer if the foreign employer is controlled by a U.S. company.

Take No. 21: The EEOC will like you if you use a variety of recruiting methods and advertise that you are an equal opportunity employer.

Take No. 22: The EEOC likes clearly defined criteria for hiring, promotion, job assignment, discipline, demotion, and termination. It also likes progressive discipline. Policies and training should be communicated in languages that employees understand.

Take No. 23: As already noted, employers should publish their harassment policies and conduct harassment training in languages that employees understand.

Take No. 24: Skip to footnote 179 of the Enforcement Guidance to find out where you can get EEOC guidance and other documents in a wide variety of languages.

Oh, no — that was only 24 takes! Here’s one more:

Take No. 25: The EEOC has apparently decided to stop using the term “Best Practices” and is now using “Promising Practices.” I know that some language sticklers hate the term “Best Practices” (see Business Cliche No. 4), but “Promising Practices” is not an improvement. In any event, my Takes No. 21-24, above, came from the “Promising Practices” section, and as always, I do appreciate the EEOC’s efforts to make positive recommendations to help employers comply with the law.

By Robin Shea on June 3, 2016

Image Credits: From flickr, Creative Commons license. Native American kids at pow wow by Lordcolus; Gambian woman by melanama; Mexican woman by Esparta Palma; blonde Anglo woman by Tammy McGary; Chinese man by Tauno Tohk.

Should You Ask Job Applicants About Salary History?

Seven months ago, Governor Brown vetoed a bill (AB 1017) that would have prohibited California employers from asking applicants about their salary history. Now a new bill that contains some of the same language, AB 1676, is before the legislature. Under both AB 1676 and its predecessor:

An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including, but not limited to, compensation and benefits, about an applicant for employment.

The new bill hasn’t made it very far and there’s no reason to believe it will fare better than AB 1017. But even if it doesn’t pass, should employers ask applicants about their prior earnings? I can think of three good reasons not to.

First, under California’s Fair Pay Act, salary history is not a proper justification for a pay disparity. So you can’t use that as a basis for paying one worker more than a co-worker who is performing “substantially similar” work. It’s easier to argue that you didn’t rely on this impermissible factor if you didn’t seek out the information.

Second, there seems to be growing sentiment that the question is improper and overly intrusive.

Third, if you’re looking to fill a position, you should have some idea what people in that position make and what the value is to your organization. If you genuinely have no idea, maybe the benefits of asking the question outweigh the risks. But in most situations, asking for information that you’re prohibited by law from relying on is a bad idea.

Of course, if the legislature passes the measure prohibiting salary history inquiries, the issue will be moot.

Here’s another fun aspect of AB 1676. It says that: “an employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.”

I’ve never heard of such a requirement before. Even if you make applicants sign nondisclosure agreements, isn’t it just a matter of time before your competitors know what you’re paying your workers? While we may get into this in more detail in a later post, I’ll say now that I think it’s a very bad idea. I also think the legislature knows that, since they’ve had the foresight to specifically exempt themselves from that requirement.


California Supreme Court Tells Employers to Sit a Spell While Courts Review Individual Factors for Suitable Seating

“Shut the door. Have a seat.” The phrase immediately conjures emotions from the recipient. Most likely, life-changing (typically bad) news is about to be imparted. For Mad Men fans, it harkens to the third-season finale when the partners decide to split and start their own firm (and when Betty finally tells Don to take a hike). For the employees of California forced to stand to perform their jobs, however, the California Supreme Court has given “have a seat” a refreshing new meaning.

Two separate lawsuits comprise the pillars of the decision handed down in Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (Cal. 2016). Nykeya Kilby worked as a clerk and cashier for CVS Pharmacy, Inc. During her shift, she moved around the store stocking shelves, assisting customers, gathering carts, arranging display cases, cleaning, and removing trash. Despite these tasks, however, she spent most of her time running the register. She was required to stand to do so.

Kemah Henderson worked as a teller for JPMorgan Chase Bank. Like Kilby, she stood behind the counter to perform the majority of her job, but she occasionally escorted customers to safety deposit boxes, worked at the drive-up window, cashed checks, and handled withdrawals.

Both Kilby and Henderson filed lawsuits in federal district court in California alleging violations of California’s “suitable seating” requirement. Specifically, California wage orders require that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A) (Wage Order No. 4-2001), 11070, subd. 14(A) (Wage Order No. 7-2001)). The district court denied class certification and granted summary judgment in favor of CVS on the grounds that a court should consider an employer’s “business judgment” when determining if a chair is necessary. The district court in Henderson similarly denied class certification.

The Ninth Circuit declined to opine on the appeals, and instead turned the question of when a chair is and is not permitted over to the California Supreme Court. Over the course of 25 pages, the California Supreme Court interpreted the wage orders and regulations and proudly stood up to declare, “It depends.” First, the court held that the “nature of the work” refers to the tasks at a given location for which a right to a suitable seat is claimed. In other words, courts cannot use a “single task” as a means of determining whether a chair is permitted, nor can courts use an “all or nothing” interpretation. Courts must look to the “actual tasks performed, or reasonably expected to be performed” rather than abstract characterizations, job titles, or descriptions that may not accurately reflect the day-to-day operations.

Whether the nature of the work “reasonably permits” sitting is determined objectively based on the “totality of the circumstances.” This includes the layout of the workspace, the feasibility of providing seats, whether the seats would interfere with other standing tasks, how frequently the individual would transition from sitting to standing, and whether the quality of work would suffer. An employer’s business judgment can also be taken into account with this determination, but it is not the only factor. Indeed, the court noted that an employer should not unreasonably design a workspace in order to deny a seat to an individual.

What It Means: Unlike a Catholic mass, it was never quite clear “when” it was suitable to have a seat at some jobs. As a result of Kilby, courts must perform an inquiry on each particular location where an employee works, instead of an analysis of the employee’s job tasks. While such an individualized inquiry would seem to preclude class action treatment, whether courts will in fact reach that conclusion remains to be seen.

By Jeffrey Vlasek on April 27, 2016

Time for a Mid-Year Handbook and Confidentiality Agreement Tune Up

As I have mentioned before, every California employer, large or small, needs three things: (1) an Employee Handbook that addresses California specific issues; (2) a comprehensive Confidentiality Agreement to protect the company’s proprietary information to the greatest extent possible; and (3) an Arbitration Agreement.

From time to time, I run across employers who never want to finish their handbook. Instead it is in a constant state of revision and refinement. This can be problematic. It is not necessary to rush to update a handbook or agreement every time some new law is announced. I generally recommend thoughtful updates of all three documents, on a regular, periodic basis (at least once a year, maybe twice). It is important that these documents are drafted and reviewed as a set, otherwise they could unintentionally contradict each other.

Another objection I often hear is “why should we bother updating the handbook – no one reads it anyway.” My answer is what matters is that employees acknowledge the handbook, so you can use it as a basis for discipline, and as a defense to litigation. With so many plaintiffs’ counsel requesting personnel files to evaluate possible claims, the absence of policies is never helpful.

Believe it or not, we are already approaching the half-way mark for 2016, so June 1st or July 1st is a good time for an update. The following are a few key items to consider:

First, there is an important new federal law involving confidentiality agreements. As my partner, James Singer, explained in this helpful Alert, in order to get protections of the Defend Trade Secrets Act, your employee handbook and/or confidentiality agreement should be updated to include certain language providing immunity for whistleblowers. Failing to add this language can preclude a new avenue of recovery under the DTSA, so it certainly makes sense to include it.

Second, as my partner Jeff Polsky explained, some updates to your harassment policy may be required to comply with California’s new regulations.

Third, check your local ordinances, keeping in mind that the LA Hotel Ordinance goes into effect for additional properties on July 1st (and requires some time off policy updates in addition to wage increases), that Santa Monica’s minimum wage ordinance has updated paid sick leave requirements, and that Los Angeles employers may have new requirements for paid sick leave if a proposal recently approved by the City Council is adopted.

If you don’t want to update all of your policies mid-year, another option is a mid-year notice to employees, and then a full scale revision at year-end including all of the updates. Either way, mid-year is a good time for a policy tune-up.