Changes to the Prop 65 Warnings are Due in August- Does it Apply to You?

Author: Wendy Hillger

Proposition 65 requires the State of California to maintain a list of chemicals that can cause cancer, birth defects or other reproductive harm.   These warnings apply to landlords, business owners, bars/restaurants, and other retailers.  Businesses with 10 or more employees that expose individuals to listed chemicals through their products or operations generally must provide warnings.  At present, approximately 900 chemicals are required to be disclosed, such as additives or ingredients in pesticides, common household products, food, drugs, dyes, or solvents. Additionally, listed chemicals may also be used in manufacturing and construction, or they may be byproducts of chemical processes, such as motor vehicle exhaust.  These chemicals can be in the products that Californians purchase, in their homes or workplaces, or that are released into the environment.Read More >

Opinion Roundup: California District Courts and the Computer Fraud and Abuse Act – January 2014 through June 2014 – Part One

Author: Scripta Ad Astra Staff

This week, we will have a three-part series on all of the substantive district court opinions in California regarding the Computer Fraud and Abuse Act (“CFAA”) (18 § U.S.C. 1030) for the first part of 2014 – January through June. We are concentrating on California because that is where most of the Ninth Circuit opinions are generated – not surprising given that Silicon Valley and many technology firms are located in California and within the Ninth Circuit’s jurisdiction.

The CFAA is important to businesses small and large because it provides them the opportunity to seek recourse for unauthorized access to data and information they store and protect on their internal servers or on the cloud.  CFAA violations address outside computer “hackers” as they are commonly perceived in the media, but also “inside” hackers: former employees or business partners that have found ways to access information from their former business associates which they are no longer supposed to view.  The CFAA does not address how information is used once it is acquired, but only covers the initial access of information that one has no authority to view or exceeded his or her authority in so viewing.

Over the next week – Monday, Wednesday, and Friday – we will provide a roundup of the first six months of published California federal opinions regarding the CFAA.

Oracle Am., Inc. v. TERiX Computer Co., 2014 U.S. Dist. LEXIS 561 (N.D. Cal. Jan. 3, 2014)
Judge: Paul S. Grewal, United States Magistrate Judge

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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.


How to Enforce Settlement Agreements Under CCP §664.6

Author: Annie Smiddy

In the case of Sayta v. Chu, on November 29, 2017 the Court of Appeal of the State of California, First Appellate District, clarified the requirements for enforcing settlement agreements pursuant to California Code of Civil Procedure Section 664.6 (“Section 664.6”). Most settlement agreements in pending litigation include a provision that provides for enforcement of the agreement pursuant to Section 664.6. The statute allows the parties to take advantage of an expedited procedure to enforce the agreement without filing a separate lawsuit. It’s cheaper, easier, and fulfills the purpose of the agreement – to resolve the parties’ dispute.

However, Sayta confirmed that the expedited procedure of Section 664.6 is only available when the parties request the trial court retain jurisdiction, either in writing or orally before the court, while the case is still pending, before entry of dismissal. The appellant in Sayta relied on the provision in the confidential settlement agreement stating that the parties agreed to enforce the agreement pursuant to Section 664.6. The Court of Appeals determined that this confidential agreement did not constitute a “request” for the trial court to retain jurisdiction, as required by Section 664.6. “‘[T]he court lost subject matter jurisdiction when the parties filed a voluntary dismissal of the entire cause. Since subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel, the court cannot ‘retain’ jurisdiction it has lost.’” (Sayta, supra, citing Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206-207.)Read More >

Employer Arbitration Clauses Can Waive Class Action Claim

Author: Sean B. Gentry

The U.S. Supreme Court recently ruled that employers can use arbitration clauses in employment contracts to limit their employees’ right to file or participate in class actions lawsuits on wage and hour claims. Employers can require their employees to pursue most types of employment claims in arbitration instead of court and can prevent employees from banding together to more efficiently litigate their claims as a group. For employers that have been waiting to see how the law settled on this matter, or that have been wondering about the validity of arbitration agreements already in place with their employees, it is now clear that these agreements will be enforced as long as they meet certain standards of fairness.

This case, entitled Epic Systems Corp. v. Lewis, resolved a number of conflicting Circuit Court opinions on this issue that stemmed from the National Labor Relations Board decision 2012 in D.R. Horton, Inc., which found that individual employment arbitration agreements were incompatible with the collection rights of employee under the National Labor Relations Act and that the NLRA was not preempted by the Federal Arbitration Act. However, a 5-4 majority of the Supreme Court disagreed with that finding and instead held that the FAA preempted the NLRA.

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NovelPoster Files Amicus Brief in United States v. Nosal

Written by Michael S. Dorsi

San Francisco-based NovelPoster, having settled its Computer Fraud and Abuse Act (“CFAA”) claim against Javitch Canfield Group, filed a brief as amicus curiae in the Ninth Circuit Court of Appeals case of United States v. Nosal (9th Cir. Case Nos. 14-10037 and 14-10275).

While the NovelPoster and Nosal cases originated differently — NovelPoster was a civil action and Nosal is a criminal prosecution — both cases touched on an important question: is a person liable under the Computer Fraud and Abuse Act for acting without authorization — a term that applies equally in civil lawsuits and criminal prosecutions — if the actions in question did not involve circumventing a technical or code-based access barrier.

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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.

Be Careful with Your Data

Author:  Michael S. Dorsi

Recent revelations indicate that U.S. military or intelligence personnel (and maybe Russians too) using the popular run-tracking app, Strava, may have unintentionally divulged sensitive location information. While these runners may have turned on security features that anonymize their data, their anonymized data became part of Strava’s heat maps, which show popular running routes. A running route around what appears to be an abandoned airfield in the desert can give away that the airfield isn’t so abandoned.Read More >

The Masterpiece Cakeshop Case Is Not an Invitation to Discriminate

Author: Sean B. Gentry

Yes, as the media widely reported, the U.S. Supreme Court sided with the baker in the case about a Colorado cake maker turning away business from a same-sex couple after he told them that he did not design custom cakes for gay couples.  However, rather than making a significant nation-wide ruling, the Court simply held that the Colorado Civil Rights Commission’s consideration of the baker’s case was “compromised” and it had treated him unfairly.  Thus, the ruling in no way opened the door to discrimination for businesses against any persons with protected, immutable characteristics.

In fact, Justice Kennedy wrote that it is “unexceptional” that Colorado law “can protect gay persons in acquiring products and services on the same terms and conditions that are offered to other members of the public.”  The problem was that the Commission did not apply the law “in a manner that is neutral toward religion.”Read More >

Ellen Pao v. Kleiner Perkins: The Defense Risked a Split Verdict

Written by Michael Dorsi

As this post goes up, the jury in Ellen Pao v. Kleiner, Perkins, Caufield & Byers has been sent back to deliberate on the fourth claim — that Ellen Pao was fired in retaliation for her bringing this lawsuit.

The case has been closely watched for the scrutiny of the culture of Kleiner Perkins, venture capital, and Silicon Valley, which Ms. Pao’s attorneys characterized as a boy’s club. In the end, only two of the twelve jurors agreed with Ms. Pao’s case concerning gender discrimination, but two more found that Ms. Pao was the victim of retaliation.

While watching Kleiner Perkins’ attorney Lynne Hermle give her closing argument, I suspected that there could be a split verdict, finding Kleiner Perkins liable only for retaliation, not for gender discrimination.

What did not cross my mind in the audience was that the jury might end up without a sufficient majority on the fourth claim, or more bizarre result today: that the jury thought they had enough votes, but counted wrong.

Kleiner Perkins Story of Ellen Pao in Performance Reviews

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