Unions, NLRA and the California Labor Code

California’s public policy protects a worker’s rights to join or not join, or to remain or not remain a member of a labor or employer organization.   Public policy also protects an employee’s rights to “full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment” without coercion or restraint by the employer.  (See Labor Code §921, §923).

These rights are similar to those protected under the National Labor Relations Act (NLRA) §7 (29 USC §§151–169).  The NLRA protects the rights of nonsupervisory employees to organize and join labor unions; to act in concert with regard to wages, hours, and working conditions; to strike; and to refrain from doing any of these things. It also prohibits the discharge of employees for union activity, for concerted activity regarding the employees’ common interests, or for exercising their rights under the NLRA. See 29 USC §158(a)(1), (3)–(4).

In this manner California’s Labor Code and NLRA protect similar rights.  However, NLRA grants the National Labor Relations Board (NLRB) exclusive jurisdiction over such matters, and therefore may preempt its California counterpart, in turn barring employees to bring an action in state court.

However, the California Labor Code is not redundant, in that, an employee may bring a private action against a small employer who fires the employee who supports a union, if NLRB refuses to assert jurisdiction over the employer because of its size.

A union may file a charge with the NLRB against a small employer.  In turn the NLRB may refuse to assert jurisdiction over the employer.  If the Region dismisses the charge because it will not assert jurisdiction, the dismissal letter may allow state court to assert jurisdiction.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.  Nothing contained in this communication constitutes legal advice, nor does it create an attorney-client relationship of any sort.  The information provided is solely for advertising, information and educational purposes.  Nadir Osman Ahmed is licenesed to practice law in California. 

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Why Employers should be Aware of Megan’s Law

California Penal Code Section 290.46  (“Megan’s law”) requires all convicted sex offenders to register with the state’s sex-offender Registry.  This information is available online, and it includes the offender’s names, identifying features, and, in some cases, addresses.

California business owners and employers may be tempted to search this database when deciding to hire someone.  However, employers should not make this mistake, as the consequences of such an action may be dire.

Megan’s law expressly prohibits employers from using Registry information for employment purposes, except as otherwise provided by statute or to “protect a person at risk.”  Misuse of the database may potentially expose employers to litigation and substantial damages, fines and attorney’s fees.

The “person at risk” exception could protect employers who run day care centers, hospitals, senior centers, etc.  There are certain employers, such as schools, that are forbidden from hiring sex offenders and other serious crimes.  (See Education Code Section 45122.1)  However, most customers, clients and patrons of businesses are not usually “persons at risk.”  Therefore, employers should abstain from using the registry to make employment decisions, as it may constitute misuse of the registry.

California’s public policy behind prohibiting employer’s from misusing the Registry is to protect offenders from “additional punishment” or “retribution” once they have paid their debt to society and have resumed their place among their fellow citizens.  Hence, employers must balance concerns about workplace safety with California’s public policy of giving its citizens a second chance once they have paid their debt to society.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.  Nothing contained in this communication constitutes legal advice, nor does it create an attorney-client relationship of any sort.  The information provided is solely for advertising, information and educational purposes.  Nadir Osman Ahmed is licenesed to practice law in California. 

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It’s More Than Just A Logo

Traditionally we relate trademarks/service mark (“trademark”) to symbols or logos.  However, in reality, trademarks can be more than just logos.  A business can register a sound, a phrase, product packaging, drawings, symbols, three-dimensional features such as the shape and packaging of goods, non-visible signs such as sounds or fragrances, or color shades used as distinguishing features.

The purpose of a trademark is to indicate the source of the good or service.  A business should consider the different creative ways one can create a trademark beyond simply a logo.  Following are a few examples of trademarks that go beyond merely being a logo.

coke

The iconic shape of the coke bottle is a trademark of Coke.

Intel’s sound pattern is a memorable sound mark

makers

Maker’s Mark’s distinctive wax drip

Lovin-ItMcDs_Print

“i’m lovin’ it” is an example of phrase.

Business owners should consider whether their image needs an overhaul.  Is your product or service merely blending in with the crowd of competitors, or does stick out as unique and bold?  If your business does establish a distinctive appearance, then educate your customers that you are claiming trademark rights in a particular look.  You can place notices on your websites or marketing materials.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.  Nothing contained in this communication constitutes legal advice, nor does it create an attorney-client relationship of any sort.  The information provided is solely for advertising, information and educational purposes.  Nadir Osman Ahmed is licenesed to practice law in California. 

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Amendments to California’s Paid Sick Leave Law

On July 12, only 12 days after California’s paid sick leave law took effect (AB 1522), the legislature amended the law.  The amendments take effect immediately.  Following are some of the key changes:

30 Days of Employment with the Same Employer

The amendment clarifies that an employee must work at least 30 days for the same employer within the previous 12 months to be eligible to accrue paid sick leave with that employer.

Calculating Sick Leave Pay

The law resolves how to calculate sick leave pay for employees with fluctuating pay rates (employees who receive commissions, piece rate, etc.).   Under (AB 1522), the law required that an employer calculate the rate of pay by dividing the employee’s total wages by the employee’s total hours worked in the full pay periods of the prior 90 days of employment. The amendments clarifies this calculation.  For exempt employees, employers may now use the same rate of pay used for other forms of paid leave.  For nonexempt employees, employers may use the same rate of pay used for calculating overtime.

Unlimited Leave

If an employer provides unlimited sick leave or paid time off, then the employer can satisfy the notice requirements by indicating “unlimited” on the notice or the employee’s itemized wage statement.

Accrual Rate

Employers can choose an accrual method that works best for them, provided that 1) the accrual is on a regular basis and 2) employee will have 24 hours of accrued sick leave available by the 120th calendar day of employment or each calendar year, or in each 12-moth period.

Record keeping

Employers must record and keep records of hours worked and sick time accrued and used for a period of 3 years.  However, an employer is not required to ask for or record the purpose for which an employee uses sick leave.

Reinstatement

The law generally requires employers to reinstate accrued but unused sick leave to employees whom they have rehired within one year of termination. The amendments provide that if an employee is paid out for sick leave at the time of termination, but returns to work for the same employer within a 12 month period, the employer does not need to reinstate the employee’s sick leave balance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.  Nothing contained in this communication constitutes legal advice, nor does it create an attorney-client relationship of any sort.  The information provided is solely for advertising, information and educational purposes.  Nadir Osman Ahmed is licenesed to practice law in California. 

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California Law Expands Retaliation Protection for Employees

On July 16, 2015, Governor Brown signed into law AB 987, amending the California Fair Employment and Housing Act (FEHA), which now restricts employers and other covered entities from retaliating against employees or other persons who request a religious accommodation or an accommodation for a disability.  The law will go into effect on January 1, 2016.  The law establishes that requesting such an accommodation is a protected activity under the FEHA, regardless of whether the accommodation is granted.

AB 987 overturns a 2013 case of Rope v. Auto-Chlor System of Washington, Inc., which held that there is no support in the existing law that “a mere request – or even repeated requests – for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA.”   In this manner, the employees request for medical leave did not constitute grounds for a retaliation wrongful termination claim.

As of January 1, 2016, California’s Fair Employment and Housing Act(FEHA) will explicitly provide the coverage that would have provided employers an opportunity to sue their employer if the employer retaliates because of an employees request for accommodation on the basis of disability or religion.

Employers should consider the following:

Employers should adequately train their supervisors, managers, and Human Resources personnel to avoid engaging in conduct that may be perceived by an employee as retaliatory in nature.  Employers must be extremely careful when terminating, disciplining or taking any  adverse action against an employee who recently requested a religious or disability-related accommodation, regardless of whether or not the accommodation was granted.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.  Nothing contained in this communication constitutes legal advice, nor does it create an attorney-client relationship of any sort.  The information provided is solely for advertising, information and educational purposes.  Nadir Osman Ahmed is licenesed to practice law in California. 

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Whether a written independent contractor agreement is sufficient to form an independent contractor/principal relationship in California?

Short Answer is not necessarily.  The contract alone is never sufficient to establish the independent contractor relationship.  It depends on the facts and circumstances surrounding the relationship.  The degree of control  over the worker needs to be analyzed in order to determine the nature of the relationship.

unnamed

There is no set definition of the term “independent contractor.” Presumption is that the worker is an employee. (Labor Code §3357) Factors that determine the nature of the worker’s relationship to the principal are outlined in Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341).  Note that the existence of a written agreement stating that an independent contractor relationship exists is factor in determining the nature of the relationship, but it is not dispositive. The 1099 tax filing is also not determinative either.

It is important for every employer and business owner in California to keep this in mind, because the misclassification of worker as an independent contractor can be extremely costly and may open the door to civil liability and possibly criminal liability.  This classification implicates your payroll taxes, minimum wage, overtime, compliance with other wage hour requirement, and Workers Compensation Insurance requirements (this is not an exhaustive list).

Contact NOA Law for more information.

Disclaimer: Nothing contained in this communication constitutes legal advice for your particular situation, nor does it create an attorney-client relationship of any sort.  The information provided is solely for advertising purposes.  Nadir Osman Ahmed is licenesed to practice law in California only.

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U.S. Supreme Court leaves your “gate” open to the police.

Is it unconstitutional for a police officer to forcefully enter your home while in “hot pursuit” of a misdemeanor suspect?  Well, according to the U.S. Supreme Court in Stanton v. Sims, there is no clearly established law that answers this question.  It may, or may not be an unreasonable search under the Fourth Amendment.  The U.S. Supreme Court refused to resolve the question even though the courts around the country are divided on the issue.  However, the Court did conclude that a police officer has “qualified immunity” from any civil liability if he does so.  The Court reached this conclusion because it doesn’t know whether such an entry by an officer clearly violates the Fourth Amendment.  What a dazzling display of circular logic.

Door

In Stanton v. Sims, Officer Stanton entered Sims’s home in La Mesa CA, without a warrant.  In fact he made a “split second decision” to kick open her 6-foot tall wooden gate.  As luck would have it, the homeowner Drendolyn Sims was standing behind the gate when the gate flew open.  She suffered injuries to her forehead and shoulder.

What provoked the officer to make this “split second” decision?  He was in “hot pursuit” of a suspect.  The officer believed that a male, who was later identified as Nicholas Patrick, had committed a misdemeanor.  Patrick’s alleged offensive was that he refused to stop walking when the officer told him to do so.  Instead, Patrick walked away from the officer, entered Sims’s gate and shut it behind him.  The officer was responding to an “unknown disturbance” and concluded that Patrick’s failure to stop constituted an obstruction of justice.   (Cal. Penal Code § 148(a)(1)) The officer kicked open the gate to pursue Patrick.  Ironically, Patrick was never arrested nor charged with a crime.  Sims, on the other hand, had her face smashed in by her own gate.

Sims filed a civil suit against the officer under the civil rights act (42 U.S.C §1983), alleging that the officer had violated her Fourth Amendment right against unreasonable searches, which in turn had caused her injury.  The district court granted summary judgment in favor of the officer.  The lower court concluded that the entry into Sims’s residence was not unreasonable under the circumstances, and even if it were, officer Stanton had “qualified immunity.”  The Ninth Circuit Court of Appeal reversed by holding that the officer had in fact violated Sims’s constitutional rights, and “qualified immunity” did not apply under these circumstances.  The Supreme Court granted certiorari, but did not address the constitutional issue concerning the Fourth Amendment.  It simply held that the officer had “qualified immunity” and remanded the case.

The doctrine of “qualified immunity” protects government officials from civil liability if the conduct does not violate clearly established statutory or constitutional rights.  Effectively, police officers are immune from civil liability as long as the Court doesn’t clearly define the boundaries of police misconduct.  On this occasion, the Court had an opportunity to define these boundaries, but chose not to do so.  Thus, the Court left the “gate” open for similar police misconduct in the future.

In essence, the Court has granted the police free reign to conduct itself as it pleases by refusing to define the boundaries of the Fourth Amendment.  What does this mean to you?  Your home may or may not be your castle.  And until the Court decides the issue, an officer may enter your home while pursuing a misdemeanor suspect, without the danger of facing any civil liability.

Disclaimer:  This article does not constitute legal advice, nor does it form an attorney-client relationship of any sort.  For further assistance please contact an attorney.

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California Workers’ Compensation: Benefits

What kinds of benefits are available?

You may be entitled to:

1) Medical Treatment

2) Temporary Disability Indemnity

3) Permanent Disability Indemnity

4) Supplemental Job Displacement Benefits

5) Death Benefits

Disclaimer:  This does not constitute legal advice, nor does it form an attorney-client relationship of any sort.  For further assistance please contact an attorney.

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California Workers’ Compensation: Starting a Claim

I got injured at work.  What should I do?

If you have been injured at work, or have suffered a work related injury then you may be eligible for worker’s compensation benefits.

In order to start your worker’s compensation claim, first, tell your employer about your injury.  Your employer should provide you with a DWC-Form 1 within in one working day of knowing you are injured.  Fill out your portion of the form and return it to the employer.  Your employer will fill out their designated portion, give you a copy and send a copy to the claim’s administrator.  The claim’s administrator will handle your claim.

You will be directed to a doctor clinic or hospital.  A claim’s administrator will be assigned to handle your claim.  You may be covered up to $10,000 in medical treatment until your claim is accepted.

Remember, you should file a claim as soon as possible.  You may not be able to get benefits if your claim is not filed within a year.

Disclaimer:  This does not constitute legal advice, nor does it form an attorney-client relationship of any sort.  For further assistance please contact an attorney.

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