Category: Uncategorized

           

Written by Michael S. Dorsi

Leap, a new comfortable-looking private bus service in San Francisco, recently came under scrutiny for removing wheelchair accessibility equipment from buses it purchased and retrofitted. Chris Pangilinan, a former San Francisco Municipal Transportation Agency engineer, recently filed a complaint with the Department of Justice alleging that Leap violated the  Americans with Disabilities Act.

President George H.W. Bush signing the Americans with Disabilities Act into law.

If anything, it is surprising that Leap has not already been sued. Hotel and restaurant owners in California are often familiar with so-called “serial plaintiffs  who bring hundreds— sometimes thousands — of disability access lawsuits. They keep doing so because the law favors their cases.

A person harmed by a violation of the Americans with Disabilities Act may sue under California’s Unruh Civil Rights Act.[1] Successful plaintiffs are awarded damages of triple the harm suffered, no less than $4000, plus mandatory attorneys’ fees.[2] Attorneys’ fees are only available to plaintiffs; defendants may not recover their fees even if they win a defense verdict.[3] The damages and fees rules create a strong incentive for defendants to quickly settle their cases and remedy any conditions that do not conform to ADA rules.

California State Assembly Speaker Jesse Unruh, after whom the Unruh Civil Rights Act is named, with Willie Brown, who would go on to serve as Assembly Speaker after Unruh’s retirement.

The Unruh Civil Rights Act does require that the plaintiff be directly harmed.[4] Mr. Pangilinan, who now works in New York, may not be directly harmed, but there are likely other potential plaintiffs. Leap may have defenses, but defending an Unruh Civil Rights Act case is difficult, costly, and risky.

*Mr. Dorsi is an attorney with Ad Astra Law Group, who has represented plaintiffs and defendants in fee-shifting litigation under public interest statutes, including disability access litigation the Unruh Civil Rights Act.

[1] Cal. Civil Code § 51(f).

[2] Cal. Civil Code § 52(a).

[3] Turner v. Association of American Medical Colleges, 193 Cal.App. 4th 1047, 1060 (2011).

[4] Surrey v. TrueBeginnings, LLC, 168 Cal. App. 4th 414, 420 (2008).

 

 

Author: Wendy Hillger

To help increase funding for affordable housing, Gov. Jerry Brown recently signed a bill (Senate Bill 2: “Building Homes and Jobs Act”) that places fees on some real estate transactions in the state of California.  Effective in January 2018, a fee of $75 per single parcel of property will now apply for documents such as deeds and notices.  The fees are capped at $225 per transaction.   Recording of these documents for sales of residential and commercial property are specifically excluded [SB 2 bill text, section 2(19)].

The State Senate estimated these fees would bring the state between $200 to $300 million annually.  The additional revenue from the fees will be a permanent source of funding to pay for affordable, low-income housing, of which lawmakers estimate 1.8 million units are needed in the state.

The full bill text can be read here:

 

By Sean Gentry

In response to the health concerns and shelter in place orders affecting individuals and business through the United States, the federal government has passed new paid sick time laws that all employers need to be aware of, called the Families First Coronavirus Response Act (FFCRA or Act).

This law goes into effect for April 2020 and continues through December 31, 2020.  It affects all employers with 500 or fewer employees.  In general, this law requires affected employers to provide their employees who cannot work (or remote work) with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.  Covered employers must provide to all employees:

• Two weeks (up to 80 hours, or a part-time employee’s two-week equivalent) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
  
  OR
• Two weeks (up to 80 hours, or a part-time employee’s two-week equivalent) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine, or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition.

For the first category, the amount of sick time to be paid is 100% of the employee’s income up to a maximum of $511 daily and $5,110 total.

For the second category, the amount of sick time to be paid is 2/3^rd of the employee’s income up to a maximum of $200 daily and $2,000 total.

However, in the case of employees caring for their child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons, then up to 12 weeks (i.e., 10 more weeks) of paid sick leave and expanded family and medical leave is available and paid at 2/3^rd of the employee’s income up to a maximum of $200 daily and $12,000 total.

Employees are eligible for the extra 10 weeks of paid leave only if they have been employed for at least 30 days prior to their leave request.  Employees are eligible for the paid sick time regardless of length of employment.

The Department of Labor (DOL) has explained that “unable to work” means the employer has work for you and one of the COVID-19 qualifying reasons set forth above prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of Remote work (“telework”).

Therefore, it appears that the sick leave requirements do not apply when no work is available.  In that case, please refer to the EDD website* with regard to various considerations for unemployment insurance benefits that may be applicable for employees whose businesses have been forced to reduce hours substantially, make furloughs, or make layoffs due to Coronavirus and the shelter in place orders.

The law prohibits employers from requiring an employee to find a replacement when using qualifying paid sick leave.  On the other hand, the paid sick time stops beginning with the employee’s next scheduled shift immediately following the conclusion of the need for paid sick time.  In other words, an employee must return to work as soon as the need for leave ends, even if the employee has not used all of the paid sick time available under the FFCRA.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business.  To elect this small business exemption, you should document why your business with fewer than 50 employees needs the exemption.  However, the DOL has not yet released the criteria for the exemption, which will apparently be addressed in more detail in forthcoming regulations.  The DOL does not need you to send any materials to them when seeking a small business exemption for paid sick leave and expanded family and medical leave.

A link to the poster that all employers should share with their employees—and post in the location where similar posters are displayed once it is safe to do so—can be found here:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Employers covered by the FFCRA qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA, for amounts paid to an employee who takes eligible leave, up to the maximums listed above.  Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.  For more information on this part, please see the Department of the Treasury’s website, for example here:

https://home.treasury.gov/news/press-releases/sm952

For more information about the FFCRA, you can visit the Department of Labor’s information pages here:

https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Please note also that permitted uses of job-protected leave under the Family and Medical Leave Act (FMLA) were separately addressed under the Emergency Family and Medical Leave Act in response to COVID-19, which may be the topic of a separate article.

* Information from the EDD about unemployment benefits, options available for both employers and employees, and Coronavirus in California in general, please see the EDD’s website here:

https://www.edd.ca.gov/about_edd/coronavirus-2019.htm

https://www.edd.ca.gov/about_edd/coronavirus-2019/faqs.htm

Written by Katy Young

This morning, the New York Times ran an article about the St. Louis Cardinals organization allegedly hacking into the Houston Astros’ computer database containing proprietary player information. You can read the article here:

http://www.nytimes.com/2015/06/17/sports/baseball/st-louis-cardinals-hack-astros-fbi.html

Ad Astra is particularly interested in this story for two reasons: we are big baseball fans (in fact my brother, Chuckie Fick, pitched for both the Cardinals and then the Astros!) and big fans of the federal Computer Fraud and Abuse Act (CFAA), which creates both a criminal and civil cause of action for unauthorized access of information stored on a computer.

The Houston Astros apparently maintain a computer database containing proprietary information about its players and prospects. The database is called Ground Control and it is the brainchild of former Cardinals bigwig turned Astros’ General Manager Jeff Luhnow. The St. Louis Cardinals are accused of accessing the Astros’ database using an old master list of passwords because they were concerned that Luhnow took the Cardinals’ proprietary player information when he left the Cardinals to go work for the Astros. The CFAA doesn’t care why you accessed another’s database without authority, nor does the CFAA care what you did with that information after you accessed it (that’s a trade secret problem)- but the CFAA does create a cause of action if someone accessed your data without authority, altered or deleted anything, and you incurred at least $5,000 in damages trying to remedy the problem. The New York Times article states that the FBI is already involved, but we here at Ad Astra are wondering if the Astros want to look into filing a civil complaint against the Cardinals under the CFAA!

Author: Annie Smiddy

A new bill was recently passed into law that will provide more certainty in contracting and consulting with attorneys for the cannabis industry. While medicinal and recreational use of marijuana is still currently illegal under federal law, California authorized medicinal cannabis in 1996, and adult recreational cannabis use in 2016. The conflict in law has provided a number of obstacles for the cannabis industry. Since existing law requires that a contract “be for a lawful object,” the federal conflict in law has created uncertainty regarding the enforceability of contracts in the cannabis industry. The new law provides that commercial activity relating to medicinal cannabis or adult-use cannabis conducted in compliance with state law, and any applicable local standards and regulations, is a lawful object of a contract, is not contrary to an express policy or provision of law or to good morals, and is not against public policy. In addition, the law increases the availability of attorney-client privilege in the cannabis industry by clarifying that attorney-client privilege protections regarding “legal services rendered in compliance with state or local laws on medicinal cannabis or adult-use cannabis and [] confidential communications provided for the purpose of rendering those services” do not fall within the crime/fraud exception to attorney-client privilege. This law is beneficial because it promotes written agreements, and consultation with attorneys who are knowledgeable in cannabis regulatory issues. The law will promote good business practices within the cannabis industry, and will lead to increased compliance with California’s regulations.

See here for the text of AB 1159.

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 >

Author: Wendy Hillger

An Uber driver filed a complaint against Uber Technologies, Inc., asserting she was an employee of the ride-hailing company and thus owed back-wages and employee expenses. Uber has consistently maintained that its drivers are independent contractors. The California Labor Commission disagreed, and ruled recently that Uber is an employer.

The California Labor Commission examined the numerous factors identified by the Supreme Court (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341) to evaluate the relationship between the driver and Uber. The commissioner noted that Uber maintains a substantial amount of control over its drivers: such as the equipment they must use (an Uber-provided iPhone), the fares they can charge, the model of cars they drive, and, to some extent, how often they work. Uber also does not allow drivers to negotiate their percentage of the fare and thus controlled their wages.
Uber was ordered to have to pay its employee reimbursable expenses and interest in the amount of $4,152. Uber did dodge a bullet by being spared from having to pay the driver an hourly wage, liquidated damages or waiting time penalties for this employee. The employee failed in her burden of proof on these issues by not providing the commissioner with her pay records.

The decision was appealed in the San Francisco County Superior Court on June 16, 2015, in the matter of CGC-15-546378. A copy of the Order is HERE. A timeline for the Superior Court’s ruling is unknown, but if the Labor Commission’s Order is upheld, the decision will have wide-ranging impacts upon the ride-hailing company and its competitors like Lyft.
For information as to whether your company may be improperly classifying its workers as independent contractors, please contact Ad Astra Law Group LLP.

Aurthor: Annie Smiddy

Hiring an unpaid intern is a risky endeavor. The law presumes anyone who “suffers or permits” someone to work has employed that person. Employees are protected by the wage and hour laws, and failing to abide by these laws can expose a business to substantial liability. California’s Department of Labor Standards and Enforcement (the agency that regulates wage and hour laws) adopted the federal approach to applying an exemption to the wage and hour laws for “interns.” The DLSE uses a six-factor test, and ALL factors must be met for a person to be considered a true intern under California law:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.

Comment: The DLSE commented that this element is satisfied when “an intern’s use of the employer’s computers, network systems, and tools to perform tasks” was “directly related to training and the educational and vocational objectives of the program.” Avoid assigning mundane or routine administrative tasks (such as running errands or making photocopies). Provide resources not necessarily available to the intern. Train, educate, supervise!

2. The internship experience is for the benefit of the intern.

Comment: The internship should be “directly tied to the core components of the educations objectives” of the intern. Work with a university to provide school credit in exchange for the internship, and adhere to the university’s rules regarding school credit.

3. The intern does not displace regular employees, but works under close supervision of existing staff.

Comment: Avoid clerical work, or work that is typically assigned to employees. Make sure that the intern is being closely supervised by employees, and not working on independent tasks.  However, some incidental work will not defeat the exemption “so long as such work does not unreasonably replace or impede the educational objectives for the intern and effectively displace regular workers.”

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

Comment: Benefit to the intern is not sufficient to maintain the intern exemption; there must also be no immediate benefit to the company. Keep track of the time spent supervising and training the intern. Avoid assigning work that is necessary to the business that would typically be rendered by an employee. While “[t]he performance of the described tasks performed by interns at the placement sites has some benefit to the placement business,” the DLSE requires that “any such limited benefit is counter-balanced by impediments to the employer’s operations in both time and economic costs in teaching the intern the activities, reviewing any work performed as well as immediate economic costs to the business in participating in the program.”

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

Comment: The internship cannot be an extended job interview. The exemption is not defeated by hiring the individual after the internship, but make sure to clearly state this in a written agreement between the parties prior to beginning the internship.

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Comment: Again, written agreements are crucial!

Since the test is a multi-factored, factual analysis, there is inherent uncertainty in the ultimate determination of whether an intern is actually an employee. Under wage and hour laws, if the intern is misclassified, the company could be liable for damages and penalties, including, but not limited to, unpaid wages, liquidated damages for failing to pay minimum wage, unpaid overtime, pay statement penalties, premium pay for missed meal and rest periods, and waiting time penalties. To minimize exposure, consult with an attorney to ensure that your internship program meets the DLSE’s requirements, work with a university to provide school credit, provide a written agreement, and keep records of the project goals, training procedures, time you spend supervising and training, and time the intern spends performing the internship. Offer meal and rest periods, and understand that additional rules apply if hiring a minor.

Use the following link to see the DLSE’s opinion letter regarding the test of whether an intern is actually an employee: https://www.dir.ca.gov/dlse/opinions/2010-04-07.pdf