CA Adopts New Job Protections for Grocery Workers

On Tuesday, Governor Brown signed into law new protections for workers at large grocery stores.

AB 359, in essence, protects grocery store worker form being fired without cause for 90 days after a grocery store changes ownership. After the 90 day period, the new owner must “consider” offering continued employment the old workers. The law applies to grocery stores larger than 15,000 square feet.

The law makes California the first state in the nation to pass a statewide grocery worker retention law, but several cities, including San Francisco, Santa Monica, and Los Angeles already have local ordinances that provide similar protections to grocery workers.

California employers must comply with countless laws when implementing their personnel policies, some of which are distinct to California, and it is recommended they work closely with their employment counsel in navigating California’s complex legal landscape.

Also available at Gibbs Giden’s Labor and Employment Blog.

For more information contact:


David M.Prager, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East 12th Floor
Los Angeles, CA 90067
email: dprager@gibbsgiden.com
The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.

Copyright 2015 Gibbs Giden Locher Turner Senet & Wittbrodt LLP ©

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Greedy Cumis Counsel Who Pad Their Bills Beware

 

HARTFORD CASUALTY INSURANCE COMPANY v. J.R. MARKETING, L.L.C., et al., (Aug. 10, 2015) 190 Cal.Rptr.3d 599, 2015 WL 4716917

 

The California Supreme Court ruled that Hartford Casualty Insurance Co. can bring a direct action against Squire Patton Boggs LLP to recover some of the $13.5 million it paid the law firm as independent counsel under C.C. Section 2860 (Cumis) to defend its insured against claims that it stole business from a former employer.  In Buss v. Superior Court (1997) 16 Cal.4th 35 the Court held that an insurer who must defend the entire action even if some claims are not-covered may reserve its right to seek reimbursement back from the insured for fees allocated to the clearly non-covered claims.  The Court has taken the next step and held that the insurer also has the right to directly sue “Cumis” counsel for fee gouging, expressly finding that the financial responsibility for excessive billing should fall first on the law firm and not on the clients who face potential exposure for the acts of their lawyers.  “We see no persuasive ground to hold that any direct liability to Hartford for bill padding by Squire Sanders must fall solely on the insureds.”  The Court noted that the burden of proving the fees were unreasonable and unnecessary falls on the insurer.

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The Court indicated its decision was limited to the facts and procedural history presented, which included an Order from the Court that foreclosed the insurer from “invoking the rate provisions of Section 2860” but also admonished that counsel’s bills must be “reasonable and necessary.”  The Order provided that the insurer could challenge the billings in a subsequent reimbursement action, and this Order was affirmed on appeal.  The Court expressed no view as to what rights an insurer that breaches its defense obligations might have to seek reimbursement directly from Cumis counsel under different circumstances, and noted that the enforcement Order eliminated Section 2860’s arbitration remedies.

 

The California Supreme Court’s ruling serves as a warning for private counsel to avoid court orders that allow insurers to pursue reimbursement of defense costs.  However, the analysis of the Court may have broader application.  When recognizing Cumis counsel and agreeing to discounted fee rates,  insurer’s may start expressly reserving their rights to seek reimbursement from the insured and from the insured’s private counsel.  Whether such a reservation of rights will be recognized given the limitations stated in Hartford v. J.R. Marketing is yet to be seen.  The best practice, as always, is for private counsel to be honest and reasonable in their billing practices and not assume their bills are immune from challenge if they treat the insurer as a cash cow.

For more information contact:

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Michael B. Geibel, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: mgeibel@gibbsgiden.com

The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.

Copyright 2015 Gibbs Giden Locher Turner Senet & Wittbrodt LLP ©

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Netflix Offers Unlimited Parental Leave: What’s Your Company Policy?

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Netflix upped the stakes in the tech industry when it announced it was implementing an unlimited fully-paid parental leave policy during the first year of a child’s birth or adoption.  Microsoft quickly announced that it was expanding its parental leave policy, extending fully paid time off to twelve weeks for both mothers and fathers, with an additional eight weeks of fully paid maternity disability leave for new mothers.

While generous parental leave benefits are fairly common in the highly-competitive tech industry, paid parental leave is uncommon across the United States.  No federal law requires an employer to offer paid time off to new parents, and only a handful of states provide paid time off to them.  For example, California provides new mothers and fathers six weeks of partial paid leave through the Paid Family Leave program, and new mothers with ten weeks (4 weeks pre-birth and 6 weeks after) of partial paid leave through the State Disability Insurance program.  Those programs are administered through the state, however, not the individual employer.

What’s Your Company Policy?

Even though employers are not legally required to provide paid parental leave, an employer’s own policies may require it to provide paid leave to new parents.  Generally, if an employer makes personal or medical leave available to its workers, it must make such leave available to pregnant employees and new parents.  The same is true for personal and vacation leave: employers generally must allow new parents to use this time off as parental leave if the employee meets the other requirements of the policy.  Whatever an employer’s policies are with respect to parental leave, those policies should apply equally to men and women to avoid a potential sex discrimination lawsuit.

Employers have to navigate a myriad of state and federal laws when developing their personnel policies, including their parental leave policies, and are advised to work closely with their employment counsel in doing so.

For more information contact:
David M. Prager, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: dprager@gibbsgiden.com

The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.

Copyright 2015 Gibbs Giden Locher Turner Senet & Wittbrodt LLP ©

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CA Appellate Court Certifies Class in Safeway Meal Break Case

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California Appellate Court Certifies Class Based on Employer’s Practice of Never Paying Premium Wages For Missed Meal Breaks

On Wednesday, the California Court of Appeal (Second District) upheld an order certifying a class of Safeway employees alleging violation of California’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.) based on the theory that Safeway had a practice of never paying the premium wages required for missed meal breaks outlined in Labor Code § 226.7.

Alleging violations of the unfair completion law in conjunction with violations of the Labor Code is not itself a novel theory, and the Court of Appeal in this case had no trouble concluding “that a UCL claim may be predicated on a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to the employer’s instructions or undue pressure, and unaccompanied by a suitable employee waiver or agreement.”

Under such a theory, even technical compliance with the Labor Code and California law with respect to meal breaks (e.g., providing employees with a reasonable opportunity to take full rest breaks, free from all work duties) may not be sufficient to avoid a class claim under the UCL if a plaintiff can sufficiently allege a practice of never paying premium wages when required.  Employers are advised to diligently review their practices and policies on a regular basis to ensure full compliance with all applicable laws and regulations and provide adequate protections against potential claims for meal and rest break violations.

The case is Safeway, Inc. v. Superior Court (Esparza), and the full opinion can be found here.

For more information contact:
David M. Prager, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: dprager@gibbsgiden.com

The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.

Copyright 2015 Gibbs Giden Locher Turner Senet & Wittbrodt LLP ©

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$1.4 Billion Not Enough to Establish General Jurisdiction

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In Daimler AG v. Bauman (2014) 134 S. Ct. 746, the United States Supreme Court rewrote civil procedure textbooks around the country. In last year’s momentous decision, the Supreme Court held that “the place of incorporation and principal place of business are paradig[m]…bases for general jurisdiction,” and that only in “exceptional cases” should a court exercise general jurisdiction over a corporation domiciled in another state.

Just weeks ago, a California appellate court was asked to review a trial court decision finding the existence of general jurisdiction over BNSF Railway Company in a wrongful death action. Specifically, the family of a former BNSF employee filed suit in a Los Angeles Superior Court last year, alleging that the decedent’s death from mesothelioma was the result of his having worked with asbestos at a facility located in Wichita, Kansas. BNSF, incorporated in Delaware with its principal place of business in Texas, filed a motion to quash arguing that the California court lacked jurisdiction because the lawsuit did not arise from any of BNSF’s California activities (i.e., no specific jurisdiction) and because its activities within the State of California were a “minor” component of its overall operation. BNSF claimed that only six percent of its sales revenue came from California, and a similarly small percentage of its infrastructure and workforce are located in California, whereas the largest share of its workforce, sales, and infrastructure came from BNSF’s home state of Texas.

A Los Angeles County Superior Court judge denied BNSF‘s motion to quash. CitingDaimler, the court said that general jurisdiction was present because BNSF has a “continuous and systematic” relationship with California that made the company “essentially at home” here.

The Court of Appeal, however, reversed the trial court decision, reiterating that while a defendant may be sued in a state where it is neither incorporated nor headquartered, it requires an “exceptional case.” Also relying on Daimler, the Court asserted that although California was an important market for BNSF’s products, its activities in California were comparatively small compared to its national business. The uniqueness of asbestos litigation “does not make every asbestos suit ‘exceptional,’” said the Court. Although sympathetic to the plight of the plaintiff, the Court opined that allowing the plaintiff to sue BNSF either where it was incorporated or where its principal place of business was located, preserves the constitutional rights of of both parties. To permit BNSF to be sued in a multitude of states would violate the due process rights of BNSF for the reasons set forth in Daimler:

[T]he due process rights of defendants cannot vary with the types of injury alleged by plaintiffs.  Our analysis must focus on ‘the relationship among the defendant, the forum, and the litigation’…and that relationship here is simply not enough to render petitioner ‘at home’ in California such that the exercise of general jurisdiction over actions unrelated to petitioner’s forum activities is warranted.”

Despite the fact that $1.4 billion in revenue generated in California seems to be an “exceptional” drop in the bucket, it is clear Daimler and appellate cases like BNSF are establishing a high threshold for the “exceptional case.”  National and global companies like BNSF have reason to celebrate. To read the appellate opinion, click here.

The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.

For more information contact:
Christopher E. Ng, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: cng@gibbsgiden.com

Copyright 2015 Gibbs Giden Locher Turner Senet & Wittbrodt LLP ©

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Are You Using Updated Notary Acknowledgment and Jurat Forms?

Although many businesses have updated their forms to reflect the new Notary language required for Certificates of Acknowledgment and Jurats, we still see many obsolete forms floating around.  Documents with outdated Notary Acknowledgments or Jurats are being rejected by County Recorder offices throughout the State of California.

For those of you not already aware, the California Legislature recently passed a law to make it clear that the Notary’s seal and signature do not authenticate or endorse the contents of a document.  The purpose of the law was to make sure that consumers unfamiliar with a Notary’s duties would not be more inclined to trust a fraudulent document simply because it was notarized.

The law, effective January 1, 2015, requires the following new language to appear word-for-word at the top of the notary certificate in a box:

“A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.”

If you haven’t already done so, it is important to update all of your forms that require a Notary Acknowledgment, Jurat or Proof of Execution Certificate.  Links to updated  PDF forms can be found below:

Notary Acknowledgment (Effective January 1, 2015):

http://notary.cdn.sos.ca.gov/forms/notary-ack.pdf

Jurat (Effective January 1, 2015)

http://notary.cdn.sos.ca.gov/forms/notary-jurat.pdf

For more information contact:
Christopher E. Ng, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: cng@gibbsgiden.com

The content contained herein is for informational purposes only, may not reflect the most current legal developments and does not constitute legal advice. The transmission of information in this post (or any transmission or exchange of information over the Internet), or by any of the included links, is not intended to create and does not constitute an attorney-client relationship. The opinions expressed in this post are the opinions of the author only and may not reflect the opinions of the author’s law firm. No representations are made as to the completeness, accuracy or validity of any information contained in this post.

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Copyright 2015 Gibbs Giden ©

Do Your Website and Mobile App Comply with the ADA?

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“Does my company really have to worry about the ADA?” Whether you are a brick-and-mortar store, exclusively online retailer or any other business with a website or mobile app, the answer appears to be “yes.”

Many businesses are surprised to learn that they may be in violation of federal and state anti-discrimination laws by using a website or mobile application that are not accessible to those with disabilities. As a recent series of threatened lawsuits and Department of Justice press release indicate, all companies that have a web and mobile presence may be targets for claims that they fail to comply with Title III of the Americans with Disabilities Act (ADA) and analogous state statutes (such as California’s Unruh Civil Rights Act). Although trial and district courts in the Ninth Circuit have so far rejected some claims, potential consequences for violations of such laws may be time-consuming and expensive. Moreover, the Department of Justice is actively enforcing website accessibility as demonstrated by last month’s settlement with the owners and operators of the nation’s leading online grocery store, peapod.com

Companies around the country are often first learning about these compliance issues when they receive a letter from a plaintiffs’ ADA advocacy law firm demanding compliance and, in many cases, statutory damages. Many of these claims assert that a company’s website or mobile application lacks certain functionalities that are necessary for disabled persons to access and use such website or mobile application. These functionalities include, for example, the ability of a user to access all website features using a keyboard rather than a mouse, and including alternative text captions for website and mobile application audio and features that work with “text-to-speech” screen reader technology.

It is important for companies to be proactive and at the very least, evaluate their website and mobile applications to exhaustively determine and remedy any accessibility issues. Companies should maintain a constant dialogue with their in-house and third-party web and mobile application designers and programmers to remedy any current and future accessibility issues.

Being proactive will help a company avoid potential consequences for statutory violations. In addition to time and goodwill factors, California’s Unruh Civil Rights Act imposes a $4,000.00 statutory penalty for every violation, whereas the ADA presently permits injunctive relief and the recovery of attorneys’ fees.

Although the Department of Justice is not expected to release compliance standards until 2015, settlement agreements and consent decrees hint that the Department of Justice may require websites and mobile applications to comply with the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0 AA), developed by a private industry group. The Department of Justice has required compliance with the WCAG 2.0 AA in the past, including in the DOJ’s consent decree with H&R Block in 2013 and, more recently, in the Department of Justice’s November 2014 settlement with owners and operators of peapod.com. Under the settlement agreement with peapod.com, America’s leading online grocer is required to adopt measures to ensure that users with disabilities are able to fully and equally enjoy the various goods, services, facilities and accommodations provided through http://www.peapod.com including: (1) designating an employee as web accessibility coordinator for http://www.peapod.com, who will report directly to a Peapod, LLC executive; (2) retaining an independent website accessibility consultant, who will annually evaluate the accessibility of the website and its mobile applications; (3) adopting a formal web accessibility policy; (4) providing a notice on http://www.peapod.com soliciting feedback from visitors on how website accessibility can be improved; (5) providing automated accessibility testing and accessibility testing by individuals with a variety of disabilities of http://www.peapod.com and its mobile applications; and (6) providing mandatory annual training on website accessibility for Peapod’s website content personnel.

Don’t wait until you get a complaint from the Department of Justice (the entity tasked with enforcing the ADA) or a demand letter from a plaintiffs’ ADA advocacy law firm. If you own or operate a website or mobile application, be proactive.

For more information contact:
Christopher E. Ng, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: cng@gibbsgiden.com

The content contained herein is for informational purposes only, may not reflect the most current legal developments and does not constitute legal advice. The transmission of information in this post (or any transmission or exchange of information over the Internet), or by any of the included links, is not intended to create and does not constitute an attorney-client relationship. The opinions expressed in this post are the opinions of the author only and may not reflect the opinions of the author’s law firm. No representations are made as to the completeness, accuracy or validity of any information contained in this post.

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