Ad Astra Law Group, LLP

Tenants’ Rights in Single Family Homes

San Francisco’s Rent Ordinance rules concerning housing do not apply to single family homes, right? Wrong.

San Francisco has both eviction controls and rent controls. California’s Costa-Hawkins Rental Housing Act (Civil Code § 1954.50 et seq.) exempts single family homes (and other separately alienable dwellings) from local government’s rules that limit rent increases. The San Francisco Rent Ordinance reflects this rule, exempting single family homes from the limits on rent increases. As a result, landlords renting out single family homes can raise the rent beyond the increases permitted by the San Francisco Rent Ordinance.

However, the San Francisco Rent Ordinance also has specific rules for owner move-in evictions. Single family homes are governed, generally, by eviction controls.

Single family homes in San Francisco . . .

Attorneys’ Fees for Computer Misuse? What about for Defendants?

Author: Michael Dorsi

Attorneys who have dealt with computer misuse statutes know that while the federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, provides federal jurisdiction, California’s Comprehensive Computer Data Access and Fraud Act (“CDAFA”), Cal. Penal Code § 502, has a broader scope and more plaintiff-friendly remedies. Those remedies include attorneys’ fees. But what happens if a plaintiff sues under the CDAFA, and loses. Can the defendant win fees?

There is a frustrating split of authority on this question.

The split is between Swearingen v. Haas Automation, Inc., No. 09CV473 BTM(BLM), 2010 WL 1495204, at *3 (S.D. Cal. Apr. 14, 2010), and US Source LLC v. Chelliah, No. G049481, 2014 WL 6977597, at *6 (Cal. Ct. App. Dec. 10, 2014). Swearingen says fees are for plaintiffs only; US Source says defendants* can win fees as well.

Normally this would be easy to work out. US Source is more recent and decided by the California Court of Appeal on a question of state law. Swearingen is a federal district court decision, so it is not binding on anyone (beyond its own case). Going forward, US Source ought to control.Read More >

DOL Set to Rescind Restrictions on Tip Pooling

Author: Sean Gentry

The U.S. Department of Labor is preparing to eliminate a 2011 restriction on certain hospitality employers from entering into tip-sharing agreements with individuals who are not customarily and regularly tipped.

The effect of this is that restaurant employers will likely be able to include kitchen and back-of-the-house employees in the tip pool. This may alleviate problems some restaurants have had in retaining high quality back-of-the-house employees because it may allow employers to more easily compensate such employees in comparison to tipped employees.

As a reminder, employers are still subject to state laws. In California this means that the tip-pool may not include any owners and most managers or supervisors, even if those individuals provide direct service to a customer.

The 9^th Circuit Court of Appeals previously upheld this 2011 regulation, but that case is now before the U.S. Supreme Court in the case of Oregon Restaurant & Lodging Assoc. v. Perez. Therefore, despite some serious concerns about the effects this change in policy may have on tipped employees nationwide, we expect to see dramatic changes this year as the DOL and Supreme Court weigh in on tip-pooling, and as California’s legislature might react by imposing some of its own new regulations.

Waiting for Godot at the Clerk’s Office

Author: Michael S. Dorsi

California law permits plaintiffs to file a complaint and seek a temporary restraining order on an ex parte basis the day the plaintiff files the complaint. This is not for every case, but it is an important procedure when time is of the essence. Sometimes judges attempt to cajole the parties into an agreement that will hold until the judge can decide a fully briefed preliminary injunction, and sometimes judges will issue a TRO on the papers submitted on day one.

But to get to a day-one temporary restraining order, you must get past the clerk’s office.

San Francisco Superior Court adopted rules that make getting past the clerk difficult. For most civil cases, parties represented by an attorney file their complaint in hard copy, then all subsequent filings must be online via the e-filing system. This includes papers for ex parte appearances.Read More >

Hiring Seasonal Employees – Don’t End Up on the “Naughty” List

Author: Trina Clayton

For many retailers, the holiday shopping season is a “make or break” period that can define their bottom lines for the entire year. Other businesses such as restaurants and hotels also see a huge uptick in traffic associated with holiday shopping and travel. Temporary and part-time employment spikes as retailers and other businesses increase staffing to accommodate this seasonal increase in business.

As with hiring any employee, well-planned hiring practices that comply with applicable employment laws can help ensure seasonal employees are well-suited for the job and the company is prepared to defend any possible claims. Below are a few actions employers can take to avoid common legal pitfalls when hiring seasonal workers.

Abide by All Wage and Hour Laws: With few exceptions, California law requires employers to pay any non-exempt employees one-and-one-half times their regular rate of pay for any hours worked in excess of 8 hours in any workday, or 40 hours in a given workweek. An employee is further entitled to double their regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of 8 on the seventh consecutive day of work in a workweek. These overtime laws apply equally to seasonal workers, as do state and local minimum wage laws.

Properly convey hiring duration: You may presume seasonal employees understand they have been hired on a temporary basis, but it is particularly important for employers to explicitly specify the limited duration of employment both at the onset and in writing. In addition, employers should require any seasonal employees to acknowledge, in writing, that they understand they are being hired for a limited duration and are “at-will” employees – meaning the employer has a legal right to terminate the employee, with or without cause, at any time.

Proper Classification: Employers often misclassify employees as independent contractors – this practice is especially common when hiring seasonal employees. Employers should be sure to avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally justify such a classification.

Proper Training: Even though seasonal employees may only be with your company for a relatively short time, providing proper training is critical for maintaining a productive, fair, and safe workplace. Employers commonly forget to give seasonal employees handbooks (and have them sign off on them) – if your business has “regular” employees sign arbitration agreements, you should do this for seasonal employees as well. Seasonal employees should generally receive the same training as other new hires, such as training in anti-harassment, nondiscrimination, safety, and other important workplace issues.

LOCAL ORDINANCES

As an important reminder, both San Francisco and San Jose have enacted local ordinances designed to allow “regular” part-time employees the first opportunity to work additional shifts before an employer can hire temporary or seasonal workers.

Under San Jose’s “Opportunity to Work” ordinance passed earlier this year, San Jose businesses with 36 or more employees must offer, in writing, extra work hours to existing qualified part-time employees. If those employees aren’t qualified or decline the extra hours, an employer can then hire additional workers to fill the shifts.

Under San Francisco’s Retail Workers Bill of Rights, “formula retail establishments” with at least 40 retail sales establishments worldwide and 20 or more employees in San Francisco, must, before hiring new employees, offer additional work hours to qualified part-time employees who have performed similar work for the covered retail establishment, and afford those part-time employees 3 days to accept the offered hours.

Employment law, especially in California, is in a state of constant flux. Employers must keep apprised of new legislation, and comply with all federal, state and local employment laws. For specific legal advice regarding any employment issue, please contact Ad Astra for guidance.

Do I have to Pay a Job Applicant for “Try Out” Time?

Author: Trina M. Clayton

When hiring a new employee, many employers find it valuable to observe a candidate perform essential job skills, to help them select the right applicant. An employer may ask a candidate to demonstrate how they would actually perform the job – for instance – having a delivery driver lift heavy boxes, having a cook demonstrate food preparation skills, or having an office worker perform a typing test. Employers should be mindful, however, that depending on what the applicant is asked to do during an interview, and how much time it takes, they may need to pay the applicant for this “try-out” time.

Primary Considerations

According to the California Division of Labor Standards Enforcement (DLSE), there are three principal factors to consider when determining whether “try-out” time needs to be paid.Read More >

Familial Status Discrimination – Part I: Pre-Tenancy

Author: Trina M. Clayton

Federal and California fair housing laws, most notably the Fair Housing Act (42 U.S.C. 3601, et seq.) and the Fair Employment and Housing Act (Cal. Gov. Code §§ 12900, et seq.), prohibit discrimination in housing rental or conditions based on specific protected classes, such as race, sex, religion, disability, and (the subject of this blog post) familial status.

Familial status refers to any household with children under the age of 18. It applies whether the minor is a biological child, adopted, a foster child, or legally under the custody or guardianship of an adult tenant. It applies to both traditional and non-traditional families. It also applies to pregnant women, as well as families that are in the process of securing legal custody of children through adoption, foster care, or divorce. It is illegal to discriminate against a prospective or current tenant because there is a child, or will be a child, in the home.

It is important to understand that familial status discrimination may occur at any stage of property rental. This blog will explore some of the pitfalls a landlord might run into, during the pre-tenancy period.Read More >

Familial Status Discrimination – Part II: Tenancy

Author: Trina M. Clayton

It is important to understand that familial status discrimination may occur at any stage of property rental. Our earlier blog described some of the pitfalls a landlord might run into during the pre-tenancy period. Here, we will explore potential areas of concern during tenancy.

Examples of Familial Status Discrimination

Refusing to rent to families with children.
Charging a higher security deposit to families with children even if the family has a good rental history.
Increasing rent (called a “rent surcharge”) because a resident brings a child into the household.
Steering families with children to downstairs units, certain sections of a building, or to certain buildings or areas in a development (such as near the playground).
Restrictions on children’s outdoor recreation activities or use of common areas. This could include an “adults only” pool policy or pool hours; curfew rules that target children, or general premises rules regarding adult supervision of children.
- Examples of rules which violate the Fair Housing Act include, “children on the premises are to be supervised by a responsible adult at all times” and “persons under the age of 18 must abide by the set curfew of 10:00 P.M.”
No playing rules such as, “Under no circumstances may children play on stairwells, walkways, or carports. Under no circumstances may children[s’] toys or vehicles be used in the above areas or in pool area.”

Forum Shopping? Even a Monkey Can Do It!

Author: Michael S. Dorsi

Attorneys often must choose where to file a lawsuit. They must estimate where the judge will be more favorable on procedure and substance, which court has more favorable procedures, and where the jury pool may be more sympathetic to the client. And readers should not be shocked to learn that attorneys often consider the political leanings of judges.

However, forum shopping to the Ninth Circuit Court of Appeals can have unintended consequences. While the Ninth Circuit has a liberal reputation and has historically ruled in ways that pleased Democrats and against President Trump, it is also a large court. Six of the twenty-two active judges were appointed by George W. Bush, and another eight judges on senior status were appointed by Republican presidents. Every sitting, numerous litigants draw a panel with two or three Republican-appointed judges. Many of these Republican appointees are well-regarded by lawyers and litigants of all political stripes, but if a plaintiff’s goal is to file in the Ninth Circuit and draw a politically friendly panel, that is just bad math.Read More >

Familial Status Discrimination – Part III: Potential Liability for Landlords

Author: Trina M. Clayton

There has been a marked increase in familial status suits over the past several years, with many more that settle under confidential agreements for monetary damages, making the potential for these claims quite serious. A landlord found to be in violation of familial status housing laws could incur any number of penalties including:

Civil penalties of up to $16,000 for a first violation and $65,000 for future violations;
Actual damages to reimburse a tenant or prospective tenant for costs incurred because of the alleged discrimination such as paying for the tenant’s out-of-pocket expenses for finding alternative housing or rent fees associated with alternative housing;
Damages to compensate a tenant or prospective tenant who has suffered humiliation, mental anguish or other psychological injuries as a result of the alleged discrimination;
Punitive Damages; and
Attorney fees

A landlord may also be ordered by the court to take specific action to reverse the alleged discrimination (such as renting to a family which the landlord had initially rejected), and participate in fair housing training.

It is imperative a landlord abide by federal, state and local laws regarding Fair Housing. For specific legal advice on familial status or other types of housing discrimination, please contact Ad Astra for guidance.