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San Francisco Protects Caregiver Employees

Author: Annie Smiddy

The City of San Francisco has recognized the need for protections for caregiver employees, and in particular working parents, by enacting two ordinances providing employees the right to request flexible working schedules and paid family leave for bonding time with a new child. The changes to demographics of the modern workplace have resulted in: (1) more flexible work arrangements regarding the time or place where work is conducted, and (2) more mothers and fathers wanting time to bond with their new children. However, many employees are concerned about requesting flexible work arrangements, or taking time off after the birth of a new child, due to the stigma associated with these additional family responsibilities. These protections extend to employees who have caregiving responsibilities, such as pregnant women, mothers and fathers of young children, and employees with aging parents.

Family Friendly Workplace Ordinance
In 2013 (operative January 1, 2014), the Family Friendly Workplace Ordinance (“FFWO”) was enacted to provide employees the protected right to request a flexible work schedule. The FFWO states that caregiver status is a protected class, and places notice and record keeping requirements on covered employers. The FFWO prohibits employers from retaliating against an employee who attempts to exercise of rights under the ordinance, or makes a claim or complaint pursuant to the ordinance. The Office of Labor Standards and Enforcement (“OLSE”) is authorized to investigate possible violations of the FFWO, and the agency will impose an administrative penalty up to $50.00 requiring the employer to pay to each employee or person whose rights under the ordinance were violated for each day or portion thereof that the violation occurred or continued. In addition, the City may bring a civil action for reinstatement; back pay; the payment of benefits or pay unlawfully withheld; the payment of an additional sum as liquidated damages in the amount of $50.00 to each employee or person whose rights were violated for each day such violation continued or was permitted to continue; appropriate injunctive relief; and reasonable attorneys’ fees and costs.

Paid Parental Leave for Bonding with New Child Ordinance
In 2016, the City further expanded protections for parents by enacting the Paid Parental Leave for Bonding with New Child Ordinance (“PPLO”), which requires employers who have employees working in San Francisco to provide Supplemental Compensation to employees who are receiving California Paid Family Leave benefits to bond with a new child, so that the employees receive up to 100% of their normal weekly wages during 6 weeks of parental leave. The PPLO takes effect on January 1, 2017 for San Francisco employers with 50 or more employees; on July 1, 2017 for employers with 35 or more employees; and on January 1, 2018 for employers with 20 or more employees. The ordinance places notice, posting and record keeping requirements on employers. The ordinance prohibits against retaliation for an employee’s exercise of rights provided by the ordinance. The OLSE may investigate any possible violations of the ordinance by an employer and bring an administrative enforcement or a civil action against an employer. In addition, the City may bring a civil action in court against an employer for violations of the ordinance. A person or entity may also bring a civil action against an employer after he/she/it provides the OLSE and the City Attorney with written notice and more than 90 days have passed without the City Attorney filing suit or the OLSE providing notice of its intent to bring an administrative enforcement action or a determination that no violation has occurred. The employee may be entitled to reinstatement; backpay; payment of any Supplemental Compensation unlawfully withheld or the amount of Supplemental Compensation unlawfully withheld from the employee multiplied by three, or $250.00, whichever is greater; $50.00 for each employee or person whose rights were violated for each day that violation occurred; injunctive relief; attorneys’ fees and costs.

In sum, San Francisco has expanded protections for employees with greater caregiving responsibilities. If you would like to hear more about these ordinances, Ad Astra Law Group LLP is available to help.
For a link to the text of the ordinances, as well as FAQs, please visit the following websites:

FFWO – http://sfgov.org/olse/family-friendly-workplace-ordinance-ffwo
PPLO – http://sfgov.org/olse/paid-parental-leave-ordinance

 

The “Day of Rest” Requirement is Now Clear for California Employers

Author: Wendy L. Hillger

Last month, the California Supreme Court issued an important ruling for employers concerning the state’s “day of rest” statute for employees.  California Labor Code sections 551[1] and 552[2] entitle employees to one day’s rest in seven and to not be caused to work more than six days in seven.  The question before the Court in Mendoza v. Nordstrom, Inc.  was whether this protection applies on a week-by-week basis or on a rolling basis.  The Court explained the difference:

Under the weekly interpretation, the calendar is divided into seven-day blocks, and these provisions ensure at least one day of rest in each block, but an early day of rest in one week and a late day of rest in the next may lead to an employee working seven, eight, or more days in a row—though no more than six days out of seven, on average.  Under the rolling interpretation, the provisions apply on an ongoing day-by-day basis, so that any employee who has worked the preceding six days in a row is presumptively entitled to rest on the next day.

One of the employees who sued Nordstrom had worked each day from Friday, January 14, 2011, to Friday, January 21, 2011.   Nordstrom’s workweek was Sunday to Saturday.  The Court ruled this was not a Labor Code violation, after a lengthy review of the statute’s text, the legislative history, the Industrial Welfare Commission Wage Orders and the general statutory scheme.  The unanimous Supreme Court noted, “We conclude sections 551 and 552, fairly read in light of all the available evidence, are most naturally read to ensure employees at least one day of rest during each [work]week, rather than one day in every seven on a rolling basis.”

 

There are some exceptions:

1) This protection is not applicable for workers who do not work more than six hours in any day of the workweek;

2)  Employees can work more than seven days in a row if they are given time off equivalent to one day’s rest in seven days.

 

[1] “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”

[2] “No employer of labor shall cause his employees to work more than six days in seven.”

Triple Damages for Emotional Distress Arising from Intentional Harm to Trees

Author: Geoffrey Murry

New case law has heightened the stakes in tree-related disputes among neighbors.  In January 2017, the California Court of Appeal for the 2nd District in a case entitled Fulle v. Kanani ordered the trial court on remand to triple Encino homeowner Jeanette E. Fulle’s non-economic damages arising from intentional harm to trees on her property by Kaveh M. Kanani, a malicious neighbor. In this case, those non-economic damages arose from the homeowner’s “annoyance and discomfort” at the loss of the trees and the inconvenience arising from work at her property to remedy the damage.  The case was one of first impression in California courts, addressing for the first time whether the tree-related damage multipliers in Code of Civil Procedure section 733 and Civil Code section 3346 applied just to a party’s “out of pocket” expenses arising from the harm to trees or also to intangible damages, including emotional distress damages.  The court found that both categories of damages are subject to the multipliers.

 

Triple damages for willful injury to the trees of another have been allowed in the State of California since 1851.  Conduct that is merely negligent that results in injury to another’s trees requires the award of double damages.  At the time of enactment of Code of Civil Procedure section 733 and later, in 1872, when a similar provision was included in the state’s new Civil Code, the public policy supporting this extraordinary relief was primarily to discourage poaching from wooded lands over which one had no claim of right.  In 2017, however, the more common application of these code sections is to remedy negligent or intentional acts that have the effect of killing, weakening or disfiguring trees that occupy residential real property.

 

Despite these changed circumstances – where the plaintiff now is not necessarily an owner of substantial acreage but rather an aggrieved residential homeowner and the defendant is not a poacher but rather either a malicious or clueless neighbor or a hapless laborer – the law remains in force and is employed frequently in neighbor litigation.  The amounts at stake can be significant.  In the Fulle v. Kanani case above, the damages awarded by the jury to the homeowner were $27,500 for damage to the trees, $20,000 for the cost to repair the harm caused, and $30,000 for the homeowner’s “annoyance and discomfort, loss of enjoyment of the real property, inconvenience, and emotional distress.”  Because the neighbor cut the trees intentionally — here, to improve his view of the San Fernando Valley — all of those amounts are tripled in the award, increasing the basic award of $77,500 by $155,000.

 

There are several lessons present in this:

 

  • Always give some thought before cutting trees or even limbs and branches near property lines as mere blunders will result in double damages awarded to a successful plaintiff;
  • An intentional act that harms trees may seem like quick and easy way to resolve an annoyance but it can be very costly indeed both in terms of tripled damages and your own attorney’s fees; and
  • If trees on your property are harmed by a third party, whether accidentally or intentionally, the mandated double or allowed triple damages can make pursuing a claim more worthwhile.

 

You can read the full text of Fulle v. Kanani (2d Dist. 2017) 7 Cal.App.5th 1305, here.

 

As a seasoned real estate litigator, Geoffrey Murry of Ad Astra Law Group has the experience to handle disputes among neighbors related to trees, as well as boundaries, easements, encroachments, or nuisance activity, amid a variety of other real estate disputes, all in a competent, cost-efficient and compassionate manner. You can contact the firm at 415-795-3579 to arrange an in-person meeting or telephone consultation to discuss your matter.

New Law Regarding Single-User Restrooms

Author: Wendy Hillger

In California, the new “Equal Restroom Access Act” requires single-user restrooms to be available to individuals of all genders. California employers who provide single-user restrooms must comply with the Act’s signage requirements no later than March 1st.  If employers have questions about how this new law may impact them, please contact us.

The Supreme Court Is Set to Clarify Employment Agreements and Arbitration Clauses on Class Action Waivers

Author: Sean Gentry

The U.S. Supreme Court has agreed to hear cases regarding class action waivers in employment agreements.  In the past, the Supreme Court has upheld such waivers of class action claims, where employers have their employees sign agreements to arbitrate those claims individually if they should arise (not as part of a class) under the Federal Arbitration Act.  However, recent cases in the U.S. Circuit Courts have weighed in on whether these waivers are enforceable in light of the National Labor Relations Act, which has created a split among the courts on whether the waivers were valid under the National Labor Relations Board’s decisions in D.R. Horton, Inc. (2012) and Murphy Oil USA, Inc. (2014).  This split includes the Ninth Circuit here in California (Morris v. Ernst & Young) and the Seventh Circuit (Epic Systems Corp. v. Lewis), which both agreed with the NLRB’s decisions to invalidate the waivers under the NLRA, against the Fifth Circuit (National Labor Relations Board v. Murphy Oil USA, Inc.), which did not.  The Supreme Court’s decision on this matter will hopefully bring some certainty for employers about how effective the use of these waivers will be going forward, and whether to use arbitration clauses in their employment agreements.

Employers Should Evaluate Their Workplace Policies and Procedures After Voters Passed Proposition 64 to Legalize Marijuana in California

Author: Sean Gentry

With the passage in California of Proposition 64 legalizing recreational use of marijuana for persons aged 21 years or older under state law (though not under federal law) and allowing for the sale of marijuana in certain circumstances, employers will want to review and potentially revisit their testing procedures and workplace policies.  Despite the new legal uses of marijuana, employers can still implement and enforce policies than ban marijuana (along with alcohol and other drugs) and intoxication from the workplace.  Employers may still take disciplinary action against employees that violate these policies, up to and including termination, even if the use of the marijuana is for medical purposes.

As for pre-employment drug screening, testing is permissible if it is administered on a fair and consistent basis for all applicants.  Employers can choose not to hire applicants that test positive, again even if the marijuana use is for medical purposes.  However, employers should not test their current employees.  Such drug screening is only permissible in select circumstances where the employer has reasonable grounds for suspicion of drug use in the workplace.  An accident is not an automatic grounds for suspicion or for such a test.  In San Francisco the criteria for such drug screening of employees is even higher.  Nonetheless, larger employers may be required to provide certain reasonable accommodations for employees seeking help for substance abuse problems and should not take adverse actions against the employee while they are seeking treatment.  If you have questions regarding this new law or workplace drug policies generally, or if you need help with designing or administering workplace policies and procedures, Ad Astra can help employers navigate these issues.

 

Be advised of new federal Overtime Pay rules which start December 1st

Author: Wendy Hillger

The U.S. Department of Labor has revised its rules under the Fair Labor Standards Act concerning overtime pay.  As of December 1, 2016, the salary and compensation levels needed for white collar workers (executive, administrative, and professional categories) to be exempt from overtime compensation under federal law will more than double.

California employers need to be cautious, however, because California has a different salary threshold pegged to the state minimum wage that will increase over time.  Likewise, California maintains a different test for determining whether an employee is engaged in duties that are exempt from the overtime rules.  Hence, an employee may be exempt under federal law but not under California law. If you have questions, please call us at Ad Astra Law Group.

Court Declines to Enforce Uber’s Terms of Service

Scripta Ad Astra is extremely pleased to present a guest post by Nicole Syzdek.  Ms. Syzdek is an Associate with our friends at Brand & Branch LLP, who focus on branding (trademark protection, registration and enforcement), and provides advice on privacy and data security practices.

Author: Nicole Syzdek

On July 29, 2016, the Southern District of New York in Meyer v. Kalanick declined to enforce the arbitration provision of Uber’s Terms of Service on the grounds that the plaintiff did not have adequate notice of, and consequently did not consent to, Uber’s Terms. Since each online user interface differs, there is no bright-line rule to ensure the enforceability of your terms of service. Nevertheless, decisions like Meyer are instructive in helping business owners understand how to ensure that their own terms of service are enforceable if violated.

The central issue in Meyer v. Kalanick was whether the plaintiff actually agreed to Uber’s Terms of Service when he signed up to use Uber through his mobile phone. Below is an image of what the plaintiff saw prior to registration:

The court categorized this as a “sign-in wrap” since the user was notified of the existence and applicability of the Terms while registering as a user but was not required to view them. The court took issue with the appearance and placement of the terms of service language, which was located below the options to use PayPal or Google Wallet and stated:

 

By creating an Uber account, you agree to the 
TERMS OF SERVICE & PRIVACY POLICY

 

The court found that this language was in a font barely legible on a smartphone and not prominently displayed in relation to the color and size of the overall design of the registration screen. This layout, the court said, did not adequately draw users’ attention to the Terms of Service—let alone to the fact that by registering to use Uber, a user was agreeing to Uber’s Terms.

Why Should You Care?
As a business owner, it’s your responsibility to limit risk and keep your business running smoothly. One way to limit liability with respect to your websites and mobile applications is to have strong, enforceable terms of service. Your terms of service are your contract with your website visitors; they protect you by telling your customers what they are and are not allowed to do on your website or mobile app, and what they can and cannot expect from your website or service. Your terms should also enable you to ban users who violate these terms from your website, or terminate their accounts from your service.

Your terms of use are an incredibly important and powerful tool in managing your potential liability—but only if they’re actually enforceable.

The Uber decision makes clear that “click-wrap” agreements—which require a user to click through your terms of service—are the safest bet and most likely to be enforceable. By contrast, “browsewrap” agreements—burying your terms in a link at the bottom of the page or smartphone screen—are usually only enforced against other businesses that should be knowledgeable about the terms. “Sign-in wrap” agreements like Uber’s may be enforceable, but the notice of acceptance and link to the terms of service must be prominently positioned prior to the user completing the registration process.

 

Nicole Syzdek is an Associate at Brand & Branch LLP, focusing on intellectual property and technology matters, including trademark and copyright prosecution and enforcement, Trademark Trial and Appeal Board proceedings, licensing agreements, Internet policies, and privacy. She may be reached at nicole@brandandbranch.com.

To read additional posts visit www.brandandbranch.com. 

In Times of Divorce, You Still Need to Properly Disclose the Financials

Author: Regina Franco

By law, spouses are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. Family Code § 721. This fiduciary duty arises on the date of marriage and does not end just because divorce proceedings have begun.

Among the issues requiring resolution through divorce is property division. In order to effectuate a division of property within the parameters of the law, parties must comply with the disclosure requirements of the Family Code. Parties are required to exchange complete and accurate declarations of disclosures listing all assets and debts in which a party has an interest regardless of whether the characterization of the asset or debt is separate or community property. When making disclosures, parties must uphold their fiduciary duties owed to each other and once disclosures are exchanged, the fiduciary duty requires that the parties update and augment their disclosures to the extent there have been any material changes so that when the parties enter into an agreement regarding property division, each has full and complete knowledge of the relevant underlying facts.  Family Code § 2100.

The Court will not enter a judgment of divorce unless the disclosure requirements have been met. Completing and exchanging declarations of disclosures are not only a technical step to getting divorced, but a very serious requirement. A violation of the disclosure requirements or a breach of the fiduciary duty could result in an award of 100% of the undisclosed asset to the complying spouse or a set aside of a judgment of divorce. There is no question that full disclosure is not only best practice, but also is mandated by law.

 

Wendy Hillger Provides Pro Bono Eviction Defense for Needy Tenants in San Francisco

Author: Wendy Hillger
As part of Ad Astra’s pro bono pledge , Ms. Hillger volunteers for the Housing Negotiation Project. Recently, Ms. Hillger represented a tenant who was having trouble following the house rules. The landlord wanted to evict for these lease violations. The unlawful detainer trial was set for the very next Monday. At the Settlement Conference, Wendy Hillger was able to resolve the landlord’s objections and allow the tenant to stay. The tenant and his Clinical Social Worker were very grateful to avoid imminent eviction.