San Diego and California businesses that operate websites have been confronted with an increasing number of lawsuits concerning website accessibility under the federal Americans with Disabilities Act (“ADA”) and the California Unruh Act. What has been "evolving law" over the last several years has become "settled law." Essentially, businesses must make their websites accessible to the visually impaired if those websites facilitate access to physical locations. The same legal rules will likely apply to any mobile apps operated/owned by your business.
Since the Inwood case, the federal courts have concluded that contributory trademark infringement has two legal elements that must be proven with the second prong having several options. The first element is that some person or entity must commit direct trademark infringement. The second prong that must be proven -- the contributory part of the case -- can be proven one of three ways...
Many startup entrepreneurs begin their businesses as a sole proprietorship. That is the easiest and quickest way to begin working as "your own boss." Without question, being a sole proprietor is effective -- for at least a short while. After a time and after your business is succeeding and making money, however, this is often time to incorporate your business.
A no rehire provision prohibits a person who has signed a settlement agreement from being hired again by the employer. Sometimes a no rehire provision will be time-limited; but often the clause has no end date meaning a permanent ban from being hired by that employer. However, under this new law -- Assembly Bill 749 -- such clauses are now invalid in settlement agreements.
With respect to website accessibility, the recent decision of the US Ninth Circuit in Domino’s Pizza, LLC v. Robles, 913 F.3d 898 (US 9th Cir. 2019) requires that any business' website must be accessible to the visually impaired if the website is used in connection with a physical location. This ruling is based on the court's interpretation of the federal Americans With Disabilities Act ("ADA") which requires that all places of "public accommodation" be accessible to those with disabilities.
Once again, California has defied the US Supreme Court and has banned employment-related mandatory arbitration. Further, the new act, Assembly Bill 51 ("AB 51"), makes it a misdemeanor crime for an employer to attempt to get employees to sign a mandatory arbitration agreement that is banned by AB 51. AB 51 makes it unlawful for employers to require employees to sign mandatory arbitration agreements as a condition of being employed or continuing their employment. Retaliation for refusing to sign an arbitration agreement is also prohibited.
Prior to Dynamex, the main test for determining the proper worker classification was the "control test." This control test examined various facts related to how much control an employer exercised over the worker. The more control, the more likely the worker should be/should have been classified as an "employee." The Dynamex case overturned the control test and held that the new test would be called the ABC test. The ABC test retains much of the control test as part "A" and adds two additional tests. An employer must satisfy all three tests for a worker to be properly and legally classified as an "independent contractor."
The California Attorney General’s Office finally released proposed regulations to govern how the California Consumer Privacy Act ("CCPA") will be implemented. These proposed regulations will guide how the Attorney General's Office regulates businesses under the CCPA and will be cited extensively by California and federal courts when confronted with legal challenges related to the CCPA. As expected, the proposed regulations offer a lot of extra details, but provide little concrete guidance for businesses that are attempting to comply.
In simple terms, "yes," employee clock-in-clock-out time rounding is allowed under California law as long as the rounding is "neutral" in its application and does not benefit the employer substantially more than it benefits the workers. This is the holding of a recent California Court of Appeals decision.
To Give Your Trade Secrets Maximum Protection, Make Sure Compliance-With-Government-Request Notice is in Your Contracts
Trade secrets are protected under both California and federal law. The federal law is called the Defend Trade Secrets Act ("DTSA") and was passed in 2016. It is similar to many state statutes and provides a federal law which can be used to file lawsuits if employees or former employees steal or threaten to steal your business' trade secrets. However, there is a compliance-with-government-request protection provision in the DTSA which requires that certain notices be given.
Before filing a lawsuit concerning employment-related claims of discrimination or harassment (such as sexual harassment), an aggrieved employee first must make a filing with the California Department of Fair Employment and Housing ("DFEH"). The DFEH is the administrative body tasked with overseeing employment discrimination under the California Fair Employment and Housing Act ("FEHA").
Under California law, there are three methods of attempting to prove the joint employer doctrine. If proven, then both, or either, employer may be held liable for any violation of federal or California labor laws. This might include failure to pay overtime or minimum wages or failure to give proper rest breaks, etc. The three methods of proving the joint employer doctrine are:
A recent decision by a federal judge here in California has allowed a class action case against Nestle to go forward based on an allegedly misleading non-GMO label. Two aspects of the package labeling were deemed potentially problematic. First, the labeling indicated that there were no GMO ingredients even though there were potentially GMOs in the ingredient chain upstream from the final ingredient.
In general, here in California, it is "okay" to use so-called "orphan" signature pages for business contracts as long as the parties have in fact agreed to the contract and all of its essential terms. An orphan signature page refers to a separate final page of a contract, where various signature lines are located, which is circulated for original signatures without the whole contract being attached. This one page is signed by the relevant parties and is eventually reunited with the remainder of the whole contract.
Many employers skimp on their job descriptions (or generally avoid doing them). However, this is a mistake, particularly given the heightened protection that California law is providing for workers here in the Golden State. A good and accurate job description is necessary for all of the following legal issues:
A California professional accountancy corporation provides a shield for your personal assets that is not available when operating as a sole proprietorship. An experienced San Diego corporate attorney can help you set up your California professional accountancy corporation correctly and can give advice and counsel on the other legal necessities such as who can be elected to the board of directors. Here is some general information on the requirements.
At the very basic level, "contracts are promises that the law will enforce." This is the definition provided by WexDictionary run by the Cornell University Legal Information Institute. Legally speaking, here in California and elsewhere, contracts are important precisely because they create legally enforceable obligations.