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Update on Emotional Support Animals: Dept of Transportation Okays Miniature Ponies on Planes

. Under the federal Americans With Disabilities Act ("ADA"), reasonable accommodations are required for any employee “disability." The term "disability" has been interpreted by the courts to cover emotional disabilities. A recent trend in treating mental health disorders is the use of emotional support animals. Increasingly, it seems that allowing an employee to keep an emotional support animal at work is being defined as a "reasonable accommodation" under the ADA.

By |2019-09-19T12:17:02-07:00September 16th, 2019|

Anabi Oil Case: Word “Breach” vs. “Termination” in Contract Difference Between Win and Loss

A recent case called Anabi Oil Corporation v. Highland Park Oil, Inc., Case No. B283511 (Cal. App. 2nd Dist. August 15, 2019) provides a good example of how words matter when courts evaluate and interpret the contract. In that case, the notable words were "terminate" as opposed to "breach."

By |2019-09-19T12:12:49-07:00September 15th, 2019|

Who can be a Shareholder in a San Diego Dental Hygienist Professional Corporation?

Registered dental hygienists in alternative practice cannot form a standard corporation or a limited liability company through which to operate their practice. Only professional corporations are allowed. This is mandated by the Moscone-Knox Professional Corporation Act (the “Moscone-Knox Act” or the "Act") which was passed by the California State Assembly in 1968.

By |2019-09-19T12:05:49-07:00September 14th, 2019|

California Wineries Denied Effort to Trademark “BIG SIX” for Wine Products

In general, trade and service marks must be unique and distinctive enough to identify the commercial source of the goods or services. Descriptive words generally do not function in that manner. In the mind of the consumer, the descriptive words are just that — descriptive words. Likewise, generic words do not function in the minds of the consumer as the identity of the maker/provider of the goods or services.

By |2019-09-19T11:56:16-07:00September 13th, 2019|

Some Reasons for Caution When Considering Clauses that Mandate Pre-Litigation Mediation

Most mandatory pre-litigation mediation clauses require some sort of negotiation and mediation within a certain number of days before litigation or arbitration can be filed. In this manner, the effort to negotiate and mediate becomes a precondition -- almost jurisdictional -- to a party's ability to file a lawsuit.

By |2019-09-19T11:52:17-07:00September 12th, 2019|

California Supreme Court Again Prohibits Arbitration of Employee Wage Disputes

In general, the Federal Arbitration Act protects and encourages arbitration and preempts state laws. The California Supreme Court was forced to dial back Sonic-Calabasas and, instead, ruled that mandatory arbitration was not always unconscionable. If the arbitration provided sufficient procedural safeguards and was equivalent to the kind of hearing one might expect in a court of law, then the mandatory arbitration of wage claims would be enforceable.

By |2019-09-19T10:27:11-07:00September 11th, 2019|

Will California Join Illinois in Limiting Use of Artificial Intelligence in Hiring Decisions?

Supposedly, the reason for using an AI program to evaluate potential job candidates is to eliminate bias that might be held by human evaluators. But privacy and worker advocates have been concerned about the expansive nature of the evaluation that is done. AI can be programmed to analyze facial expressions and/or eye contact, the speed of a person's response, and other non-verbal cues that are not generally considered relevant to most job applicants.

By |2019-09-19T10:01:53-07:00September 10th, 2019|

San Diego Employers: Deadline to Comply With Anti-Harassment Training Requirements Pushed Back to January 2021

Under this new law, supervisory employees would be required to have two hours of anti-harassment training (up from one hour) every year and non-supervisory employees would be required to undergo a one-hour prevention training class/video.

By |2019-09-19T09:55:10-07:00September 9th, 2019|

Can I Prohibit Negative Online Reviews With My Consumer Contracts? FTC Says “No”

The FTC is tasked with enforcing several federal laws including the Federal Trade Commission Act ("FTC Act") and the Consumer Review Fairness Act. The FTC Act prohibited unfair and deceptive business practices and unfair and deceptive advertising. The Consumer Review Fairness Act was enacted by Congress to prevent companies from unduly interfering with consumers' rights to post online reviews.

By |2019-09-19T09:33:13-07:00September 8th, 2019|

Federal Court: Gas Station Franchisee Showed Violation Where Right of First Refusal Offer Was Not the Same

When Congress enacted the Petroleum Marketing Practices Act, the concern was to prevent arbitrary or discriminatory discontinuance of franchise agreements. The Act gives the franchisee various rights and allows the franchisee to maintain civil actions against any franchisor who violates the Act.

By |2019-09-18T15:27:39-07:00September 7th, 2019|

Does My San Diego Website Have to be Accessible to the Blind?

There is a federal law called the Americans With Disabilities Act (ADA) that outlaws discrimination on the basis of disability in “places of public accommodation.” See 42 U.S.C. § 12181(7). The general question that the courts have been struggling with is whether a website is a "place" of public accommodation.

By |2019-09-18T15:23:31-07:00September 6th, 2019|

San Diego Employers do Not Have to Police Meal Breaks

If a San Diego employer violates these meal break laws, employees can file suit and recover the statutory penalties, which are one additional hour of pay at the employee's regular rate of compensation for each work day that the meal period is not provided. In general, this is called the "meal break premium." The meal break premium is due whether or not the employee makes a demand for it.

By |2019-09-18T15:07:35-07:00September 5th, 2019|

Does the Implied Covenant of Good Faith and Fair Dealing Apply to San Diego Franchises?

In general, the covenant does not prevent a franchisor from exercising rights that are expressly provided for in the franchise documents. It is essential to have an experienced San Diego corporate attorney review your franchise agreements to provide advice and counsel.

By |2019-09-18T15:02:11-07:00September 4th, 2019|

CCPA Effective Date is January 1st: Does Your Business Have Indemnity Insurance Coverage?

The CCPA provides consumers with various rights with respect to the data and personal information that is collected on them by businesses operating here in the Golden State. Violation of the CCPA could be very costly. The CCPA allows for the imposition of statutory civil penalties of up to $7,500 per violation per consumer. Even a few violations could result in substantial fines and penalties. The CCPA is a complex and confusing statute.

By |2019-09-18T13:31:01-07:00September 3rd, 2019|

Claim for “Wage Conversion” Disallowed by California Supreme Court

In a recent case involving unpaid wages, a former employee attempted to use the legal theory of conversion to sue the owners for unpaid wages. See Voris v. Lampert, Case No. S241812 (Cal. Supreme Court August 15, 2019). As a matter of law, a conversion claim can be made against the individual owners and also allows for the imposition of punitive damages against the owner.

By |2019-09-18T13:05:18-07:00September 2nd, 2019|

An Example of Challenging a Trademark Application: Fans of Tom Seaver Say Tom Brady is Not “Tom Terrific”

In June 2019, Tom Brady filed for a trademark registration for the phrase "Tom Terrific." According to news reports, Brady claimed that he did not like the nickname and that he "... wanted to make sure no one used it, because some people wanted to use it." See USA Today report here. Brady filed an application with the US Patent and Trademark Office ("USPTO") for use of the trademark with respect to t-shirts, football-related memorabilia, and sports collectibles.

By |2019-09-18T12:47:43-07:00September 1st, 2019|