Contra Costa Lawyer - July 2017 Employment Law

Contra Costa

Lawyer Volume 30, Number 4 | July 2017

Mind the Gap: The Increasing Divide Between California and Federal Employment Laws Under the Trump Administration

page 5

California’s Wage Equality Law: Will a Rise in Social Awareness and Litigation Lead the Way to a Rise in Pay? page 8 ‘Covfefe‘ and the Workplace

page 13

Employment

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Contra Costa 2017 BOARD of DIRECTORS Philip Andersen President James Wu President-Elect Michelle Ferber Secretary Wendy McGuire Coats Treasurer Elva K. Harding Past President Mary Carey Steven Derby Mika Domingo Oliver Greenwood Renée Welze Livingston David Marchiano

Ericka McKenna Nicole Mills Craig Nevin Dorian Peters Laura Ramsey Summer Selleck

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The official publication of the

B A R A S S O C I A T I O N

features Mind the Gap: The Increasing Divide Between California and Federal Employment Laws Under the Trump Administration

by Wendy Coats, Bailey Bifoss and Carolyn Pham 5 California’s Wage Equality Law: Will a Rise in Social Awareness and Litigation Lead the Way to a Rise in Pay?

by Yen Chau 8 ‘Covfefe‘ and the Workplace — California Labor Code’s Anti-Retaliation Provisions in The Modern Day Political Workplace

by Beth Mora 10 What You Should Know About the Private Attorneys General Act in 2017

by Kevin R. Allen 12 Recent Developments in PAGA Litigation, by Margaret Grover

13

Recent Developments in California Rest Period and Day-of-Rest Law

by Phillip J. Smith 17

departments INSIDE: Employment Law and the Changing Political Scene

by Beth Mora

Samantha Sepehr

19

Summer Employment – Quick Tips to Avoid Common Pitfalls

by Michelle Ferber and Jennifer Lucas

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Volume 30, Number 4| July 2017

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The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year – six times online-only – by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@ cccba.org.

The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

23 photos: CCCBA Goes to the Ballgame 27

Coffee Talk: California’s Minimum Wage Rate

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Board of Directors – Did You Know?

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Last Month’s Contra Costa Lawyer: June 2017 The Bankruptcy issue

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photos:

Walk-a-Thon for Food from the Bar

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Classifieds

LIFESTYLE 24 CCCBA Diversity Awards Announced 25 Spotlight: Legal Aid for Low Wage Pregnant Workers | by Katherine Wutchiett 28 Sustaining Law Firms 31 Bar Fund benefit 34 CCCBA Member Information Series 39 Save the date: MCLE Spectacular CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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INSIDE

by Beth Mora, Guest Editor

Employment Law and the Changing Political Scene With the heat of summer comes passion, enthusiasm, vacation and much desired rest (well, for some).

You will find this and more as you pass through the July Employment Law edition of the Contra Costa Lawyer magazine. The Employment Law edition is a welcome read for attorneys in all areas of practice as we are a diverse group of employees and employers, similarly immersed in the ever-changing political climate.

Keeping the present political landscape in mind, the magazine provides several compelling articles, “Mind the Gap: The Increasing Divide Between California and Federal Employment Laws Under the Trump Administration”; “Cali-

fornia’s Wage Equality Law: Will a Rise in Social Awareness and Litigation Lead the Way to a Rise in Pay?”; and, ‘“Covfefe‘ and the Workplace California Labor Code’s Anti-Retaliation Provisions in The Modern Day Political Workplace.”

As wage and hour claims as well as PAGA actions continue to develop in the courts and Congress, the magazine presents several timely articles: “What You Should Know About the Private Attorney General Act in 2017,” “Recent Developments in PAGA Litigation” and, “Recent Developments in California’s Rest Break Law.” A terribly relevant summer sizzler: “Summer Employment – Quick Tips

Bankruptcy Law • • • •

Chapters 7/11/13 Individual and Business Bankruptcies Debtor and Creditor Representation Complex Bankruptcy Matters

to Avoid Common Pitfalls.” Finally, we encourage you to review our Pro Bono spotlight, “Legal Aid for LowWage Pregnant Workers in Contra Costa County.”

In the hot dry heat of Contra Costa County, the ever-changing world of employment law is a reality. The July edition of the Employment Law issue offers a cool breeze to get you to Fall.

A heartfelt thank you to those who contributed their time and effort in presenting articles I am certain you will find educational and enjoyable.

Have a great summer.

Beth W. Mora owner of MORA EMPLOYMENT LAW, a law firm dedicated to representing victimized employees. She is a zealous and skilled advocate for those facing a range of employment law issues. In every case she handles, Ms. Mora is committed to aggressively pursuing her clients’ best interests while treating each person she serves with integrity and compassion.

L A W O F F I C E S O F

David A. Arietta Certified Specialist Bankruptcy Law State Bar of California Board of Legal Specialization

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JULY 2017

David A. Arietta 700 Ygnacio Valley Rd. Ste. 150, Walnut Creek david@ariettalaw.com

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On the Cover: 1954 City employees picket City Hall in New York; and 1941 CIO pickets jeer at workers entering a mill in Greensboro, Georgia. Both photos from the Library of Congress.

FEATURE

Mind the Gap:

The Increasing Divide Between California and Federal Employment Laws Under the Trump Administration

By: Wendy Coats, Bailey Bifoss and Caroline Pham Under the Trump administration, many businesses are likely looking forward to contracted regulations and more employer-friendly policies from the federal government. However, employers in the Golden State should not get their hopes up just yet.

Historically, California requires more from its employers than the federal government does. The state has different and heightened rules, including some protecting employees from discrimination, governing the payment of compensation, and restricting employers’ ability to regulate employee conduct. Recently, even California localities have jumped on the regulatory train, passing oftenexperimental ordinances governing paid parental leave, predictive scheduling, and minimum wage requirements. As a result, California employers must remain cognizant of federal, state, and local standards.

California’s outspoken response to the new administration indicates that the gap between state and federal employment laws will only increase. As the Trump administration scales back Obama-era regulations governing overtime, protected employee classifications, equal pay, and health care, we expect California and its localities to counter by expanding progressive regulations. Here are four key areas where we expect the divide to deepen for employers when complying with state and federal requirements:

Overtime Exemptions Unless exempt, employees at the federal and state level must receive overtime pay beyond a certain number of hours worked per day or per week.

Overtime exempt employees generally: (1) perform managerial or professional tasks and (2) receive a predetermined salary. To be overtime exempt, federal law requires that an employee’s minimum salary be $455 per week, or $23,660 annually, a level that has not changed since 2004. To qualify as overtime exempt in California, salaried employees must earn twice the minimum wage (currently $10.50 per hour for employers with at least 26 employees), $43,680 per year.

In November 2016, a Texas federal judge blocked the Obama administration’s attempt to increase the federal annual salary requirement to $47,474, exceeding even California’s standard. Under the Continued on page 6 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Mind the Gap

Continued from page 5

Trump administration, the proposed increase has stalled. However, Trump’s Labor Secretary, Alexander Acosta, indicated a willingness to amend and reinstate the regulation.

During his confirmation hearings, Acosta said it was “unfortunate” the overtime regulations had not been updated since 2004, and noted that a straight inflation adjustment to the overtime threshold would be approximately $33,000 per year.

In response to the federal stagnation, California introduced legislation on February 17, 2017. If California’s Assembly Bill 1565 passes, an employee will have to earn a minimum of $47,476 to qualify as overtime exempt. As a result, California employers may have to pay employees more than double the amount they would need to earn nationally in order to classify them as overtime exempt.

Protected Classifications In May 2017, President Trump took steps to fulfill campaign promises by signing the Promoting Free Speech and Religious Liberty executive order. The order protects an individual’s ability to engage in religious and political speech without fear of discrimination or retaliation by the federal government. It

directs Cabinet members to consider amending regulations to address conscience-based objections to the Affordable Care Act’s (ACA) preventative-care mandate. The executive order, however, did not explicitly provide protections to religious entities when making employment decisions based on characteristics like sexual orientation or marital status.

Historically, California has led the way in creating new protected classifications on which employers may not base employment decisions. For example, while federal courts are only now evaluating whether sexual orientation is a protected classification under Title VII, California’s Fair Employment and Housing Act (FEHA) has included LGBTQ protections since 2000. Although California exempts religious entities from FEHA’s employment nondiscrimination mandate, other California legislation, like the Unruh Civil Rights Act, does not include an explicit exemption for religiouslyaffiliated businesses. As a result, religious entities in California ought to be wary of relying on federal protections when making employment decisions. Additionally, all Golden State employers should take steps to ensure that they keep up with California’s expansive list of protected classifications.

Equal Pay Under the Obama administration,

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JULY 2017

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the Equal Employment Opportunity Commission (EEOC) strengthened its position on equal pay. For more than 50 years, the EEOC has surveyed workforce data along race and gender lines. In 2016, the EEOC expanded the survey’s scope, requiring employers to report total compensation for all employees by gender, race, and ethnicity across 12 pay bands and for ten job categories. When the EEOC likely becomes Republican-controlled in July 2017, some expect the agency will dial back its requirement that employers submit their pay practices information.

California, on the other hand, continues to ramp up on equal pay.

California employers may not use an employee’s prior salary to justify any disparity in compensation between genders. Additionally, California employers must permit employees to disclose their own wages and discuss the wages of others. On May 22, 2017, California’s legislature initiated Assembly Bill 168, which prohibits employers from asking applicants about prior salary history. Therefore, while employers may be spared from reporting their pay practices to the federal agency charged with investigating those practices, they ought to still ensure compliance with California’s stricter standards.

Affordable Care Act (ACA) Reform Despite the dramatic headlines reflecting repeal attempts, the ACA remains the law with which employers must comply. Nevertheless, the Trump administration has made clear that it will continue efforts to dismantle the ACA. Even as the federal requirements appear in flux, California employers face state and local healthcarerelated ordinances. San Francisco employers, in particular, must

comply with the locality’s Health Care Security Ordinance (HCSO). The HCSO requires private businesses with at least 20 employees and nonprofits with at least 50 employees to make defined health care expenditures on behalf of their employees. In 2017, the expenditure rate for San Francisco employers with 100+ employees is $2.64 per employee, per “payable hour.” This results in a mandated health care expenditure of more than $1,000 per employee per quarter for some employers.

California employers face a myriad of overlapping – and sometimes conflicting – federal, state, and local employment laws and regulations. With the Trump administration’s signal that it intends to scale back federal regulation in the employment sector and Cali-

fornia’s expected response, the gap between these will likely continue to widen.

Wendy McGuire Coats is a Partner and Appellate Counsel in Fisher Phillips’ San Francisco office and serves as Treasurer on the CCCBA’s Board of Directors.

Bailey K. Bifoss and Caroline A. Pham are both associates in Fisher Phillips’s San Francisco office. Fisher Phillips is a management-side labor and employment firm with five of its 33 offices in California.

2603 Camino Ramon, Suite 385 San Ramon, CA 94583 T: (925) 355-9800

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FEATURE

by Yen Chau California’s anti-discrimination laws offer some of the most comprehensive protections to employees in the nation. It is thus not surprising that California, along with Massachusetts and New York, leads the charge on pay equality mandates.

Indeed, California’s 2016 Fair Pay Act which strengthens California’s pay equality statute, CA Labor Code § 1197.5, is suggested to possibly be “the nation’s most aggressive attempt” to close the salary gap between men and women. Aiming to give the statute some teeth, the Fair Pay Act strengthened Labor Code § 1197.5 by making it easier for employees to show disparate pay practices.

California’s Wage Equality Law:

Will a Rise in Social Awareness and Litigation Lead the Way to a Rise in Pay?

Previously, comparisons could be made only against employees of the opposite sex who worked at the same location, and who performed “equal work on jobs the performance of which requires equal skill, effort, and responsibility.” Under the 2015 amendment, which became effective in 2016, there is no longer a same location condition. Salaries can be compared against personnel at any of the employer’s work sites.

Further, employees no longer have to show that they performed the same or “equal work;”; pay equality is required for “substantially similar work, when viewed as a composite of skill, effort, and responsibility.”

In addition, the burden is now explicitly on employers to justify the entire amount of any pay differential based on only certain factors, such as seniority, merit, production, or other bona-fide business necessity related factor. These factors must be reasonably applied. And effective this year, Labor Code § 1197.5 was further broadened to afford equal pay protections based on race and ethnicity.

While the impact of the recent changes is yet to be seen, histori-

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cally, closing the pay gap is difficult.

One might be surprised to learn that the equal pay requirements under Labor Code § 1197.5 have been around for 68 years. But according to the U.S. Department of Labor, women in California still earn only 84.8% of what the state’s men earn.

When race is considered, the pay gap widens – compared to the white male’s dollar, Asian women, African American women, and Latinas earn only 72 cents, 63 cents and 43 cents, respectively. So, will the recent changes be enough?

Although it cannot be the only factor, California still allows prior salary history to be a factor in setting an employee’s wages. Some, however, argue that using an employee’s prior salary only works to perpetuate wage discrepancies. New York City and Philadelphia have actually barred employers from asking job candidates about their salary history or benefits. Massachusetts enacted the same law, but the first statewide ban does not go into effect until July 2018. In 2015, Governor Brown vetoed a California bill (AB-1017) proposing the same, but the current bill (AB 168) to ban wage history may fare better.

Opponents of stricter pay laws, though, fear that stringent regulations will force employers to adopt rigid and flat pay scales, and leave them unable to attract the best candidates. It may well be that simply increasing the scope and breadth of black letter laws is not an adequate solution. Ample prohibitions already exist against discrimination on the basis of gender, race or ethnicity. Yet as noted above, women, especially women of color, remain under compensated compared to their male counterparts; and sometimes, the pay disparity flies in the face of logic.

Take for example the suit filed last year by members of the U.S.

Women’s Soccer Team, including star Hope Solo, against the U.S. Soccer Federation. According to figures submitted by the players, female soccer players were paid 25% of what male players earned, even though the women’s team generated $20 million more than the men’s team. With these readily and verifiable statistics, how can such pay disparities exist? Suits filed by female attorneys and partners, such as Jaroslawa Johnson of the international firm Chadbourne & Parke, allege that their compensation rates were lower than male attorneys, despite the women’s higher productivity and revenue production.

Based only on the demonstrable statistics, these women’s lower pay rates make no objective sense.

But compensation decisions are undoubtedly shaped also by subjective reasons.

Subjective factors, such as friendships, may directly lead to a larger raise or starting salary. These factors can lead to greater career opportunities, such as an invitation to a client dinner or a mentoring relationship, which can then indirectly translate into higher performance (perceived or not) and salary. Because these intangibles make it difficult to assign compensation levels consistently and equably, employers must take it upon themselves to increase opportunities for women and people of color, and to eliminate their own internal pay gaps, like companies such as Salesforce and Cisco. Both companies have conducted self-studies and voluntarily adjusted salaries upon finding pay inequalities. Employers who do not proactively take such steps may soon find themselves being forced to do so, such as Farmers Insurance Company.

In Coates et al. v Farmers Group Inc., hundreds of female attorneys sued Farmers for allegedly consistently paying and promoting similarly qualified male attorneys more.

To settle the case, Farmers agreed to pay $4 million to the plaintiffs.

Farmers is also required under the settlement to enact various reforms, such as to provide diversity trainings, hire an outside consultant to review and modify its compensation, performance and promotion policies and procedures, and to use its best efforts to increase the number of female attorneys in its higher salary grades.

From the Farmers suit, to the suit by the U.S. Women’s Soccer Team, to Hollywood actresses such as Meryl Streep and Jennifer Continued on page 30

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“Covfefe” and the Workplace California Labor Code’s AntiRetaliation Provisions in the Modern Day Political Workplace

by Beth W. Mora, Esq. Often, during a presidential election, political discussions dominate news, social media, household meals, social gatherings and the workplace. The 45th President of the United States of America’s term in office has arguably garnered more attention than any other President in our nation’s history to date. On May 31, 2017 the President issued a tweet which included the word “covfefe” resulting in mass hysteria as well as closely followed mockery; evidencing the intense heated political climate.

A May 2017 American Psychological Association survey found American workers are more likely to say they are feeling stressed and cynical because of political discussions at work now than before the 2016 presidential election.1 Key take away’s from the survey include: • 26% of full-time and part-time employed adults said they felt tense or stressed out as a result of political discussions at work since the election, an increase from 17% in September 2016 when they were asked about political discussions at work during the election season.

• 21% said they have felt more cynical and negative during the 10

JULY 2017

workday because of political talk at work.

• 54% said they have discussed politics at work since the election.

• 40% of American workers say it has caused at least one negative outcome, such as reduced productivity, poorer work quality, difficulty getting work done, a more negative view of coworkers, feeling tense or stressed out, or increased workplace hostility.

This is a significant increase from the pre-election survey data, when 27% reported at least one negative outcome.2 While increased stress and reduced productivity are cause for concern for any employee and employer, the increased infusion into the workplace of politics, personal use of the internet, social media and relating conversations is similarly alarming, resulting in potential legal claims.

How should an employer respond?

Asking employees to cease engaging in the use of the internet or cease engaging in social media would likely result in an employee rebellion of epic measure. While at the same time, American politics continues to be eventful while stressful. Thus, it is not surprising that the workplace will have to cope with this dynamic.

Further, at times seemingly innocent comments or conversations in the workplace about “politics,” a social media group, or weekend activity can lead to claims of discrimination, harassment or retaliation in violation of the California Fair Employment and Housing Act’s anti-discrimination, anti-harassment and/or antiretaliation laws. For example, workplace discussions about a particular political issue may include mention of person’s gender, race, national origin, sexual orientation, age or religion as well as related views on social issues such as immigration, women’s rights and healthcare, which often are polarizing issues on which there are strong and opposing views among employees. The potential for heated disagreements, inflammatory as well as impulsive remarks is apparent. Unfortunately, such comments may result in claims of discrimination, harassment or retaliation.

Hence the obvious question, can employers limit their employees’ political speech in furtherance of a drama-free work environment?

No; it is never that simple for the employee and employer relationship. Political discussions can be problematic at times, but prohibiting them altogether is against California’s public policy. California Labor Code Section 1101 prohibits

employers from making, adopting or enforcing any rule, regulation or policy that: (a) forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office, and (b) controls or directs, or tends to control or direct the political activates or affiliation of employees.3 Further, California §1102 provides:

Labor

Code

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.4 Meaning, California Labor Code §§ 1101-1102 reinforces the substantial public interest in protecting the “fundamental right” of employees to engage in political activity without interference or threat of retaliation from employers.5 It is important to note that California’s law against retaliation only prohibits actions by the employer that are politically motivated. Thus, Labor §§ 11011102 do not prohibit employers from taking adverse employment actions in response to an employee’s political activities if that response is based on a rational basis rather than the political beliefs of the employer and/ or employee. California employees whose employers violate California Labor §§ 1101-1102 by punishing them for their political beliefs or activity may be able to sue the employer for wrongful termination and/or wrongful constructive termination after complying with administrative prerequisites.6 An employee may be entitled to lost wages and benefits, alleged pain and suffering as well as even punitive damages in the appropriate factual setting.7

Therefore, in California, employers should be careful in prohibiting political discussion and even more so dismissing an employee for voicing his or her political opinions, something which maybe attempted under the guise of creating harmony in the workplace or under Constitutional First Amendment arguments. However, employers are not without relevant tools to manage this complex matter. Employers should update their handbook, policies, procedures, and training as well as engage their human resources managers accordingly. Finally, of utmost importance, as situations such as these are truly fact specific, it is important to seek the advice of an experienced employment counsel.

1 2017 Work and Well-Being Survey: Special Focus on Politics, American Psychological Association, May 2017. http://www.apaexcellence.org/assets/general/2017-politics-workplace-survey-results.pdf?_ ga=2.167172279.887043204.14967728831377947416.1495835394 2 2017 Work and Well-Being Survey: Special Focus on Politics, American Psychological Association, May 2017, See Executive Summary.

3 Labor Code §1101.

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4 Labor Code §1102 5 Ali v. L.A. Focus Publication (2003) 112 Cal. App.4th 1477, 1487.

6 See California Labor Code 2699.3, Labor Code §1101, Labor Code §1102.

7 See California Labor Code §1105, CACI §2433, California Civil Code §§3294, 3943, 3947.

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a d Up

h t n o s e t

What You Should Know About the Private Attorneys General Act in 2017

By Kevin R. Allen

This article is a top-level summary of how California’s Private Attorneys General Act (“PAGA”) works. PAGA has been revised several times, and has been the subject of many appellate court decisions, since it was first introduced in 2004.

Margaret Grover describes some of the more recent changes in “Selected Issues in PAGA Litigation,” which appears on the next page. Given its complexity, employment attorneys are well advised to consult with an experienced PAGA attorney before prosecuting/defending against a PAGA claim.

About PAGA PAGA provides employees with a private right of action against a California employer in order to collect penalties on behalf of the state’s Labor and Workforce Development Agency (LWDA). It is technically a type of qui tam claim.

PAGA requires that 75 percent of any penalties collected be paid to the LWDA, with the remaining 25 12

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r o t t A e t a v i r eP

percent distributed to the aggrieved employees.1 It provides for attorney’s fees and costs to the employee who successfully brings the suit. 2 PAGA groups violations into three categories and provides for slightly different procedures for each category.

Category One: Violations of Labor Code Provisions Specifically Listed in Labor Code section 2699.53 This first category includes violations of those Labor Code sections identified in section 2699.5. There are over 150 different violations listed, including Section 203 (waiting time penalties), Section 226.7 (meal and rest break premiums), Section 1198 (which includes any “conditions prohibited by the wage order”)4, and certain violations of Section 226 (wage statement penalties).5 Before commencing a category one claim, an employee must satisfy certain notice requirements.6 A PAGA lawsuit can be dismissed outright if the notice is deficient.7 The employee is required to give written notice describing the “specific provisions … alleged to

have been violated, including the facts and theories to support the alleged violation” to the LWDA via its website (along with a $75 filing fee) and on the employer via certified mail.

If the LWDA declines to investigate, or otherwise fails to respond to the employee, within 65 days of the postmark date of the notice, then the employee can proceed to file a civil lawsuit seeking PAGA penalties.

Category Two: Health and Safety Violations (Labor Code 6300 et seq.)8 The second category is for health and safety violations predicated on any section of Labor Code sections 6300 et seq. (other than those listed in Section 2699.5).

In addition to sending notice to LWDA and employer, an employee bringing a health and safety-based PAGA claim must also send notice to the Division of Occupational Safety and Health, which is then required to investigate the claim. If the Division issues a citation, the employee is precluded from commencing a civil action under PAGA. In the alternative, if the Division does not issue a citation then the aggrieved Continued on page 14

t c A l a r e n e G n eys Recent Developments in PAGA Litigation

by Margaret J. Grover The Private Attorneys General Act, California Labor Code Sections 2698 through 2699.5, (PAGA) was enacted in 2004, giving employees the right to recover civil penalties associated with specific violations of the California Labor Code. For basic information about PAGA, please read Kevin Allen’s article (left). This article addresses recent developments and practical considerations when filing PAGA claims.

• The proposed settlement must be provided to LWDA at the same time that it is submitted to the court.

• The judgment or order regarding PAGA penalties must be provided to LWDA. • All items provided to the LWDA must be submitted online.

1. 2016 Changes to PAGA – Filing Procedures, Response Time, LWDA Involvement

2. Practical Considerations in Filing PAGA Claims

SB 836, effective June 27, 2016, made important changes in PAGA requirements. Except as otherwise noted, the requirements apply prospectively to all PAGA cases pending as of June 2016 and to all PAGA claims initiated thereafter.

Attorneys should carefully evaluate whether to bring a PAGA claim. The responsibility to the public at large should be considered before the action is filed. “[W]here plaintiffs bring a PAGA representative claim, they take on a special responsibility to their fellow aggrieved workers who are effectively bound by any judgment.” O’Connor v. Uber Technologies, Inc., No. 13-CV-03826-EMC, 2016 WL 4398271, at *18 (N.D. Cal. Aug. 18, 2016), citing Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 381 (2014). “Such a plaintiff also owes responsibility to the public at large; they act, as the statute’s name suggests, as a private attorney general, and 75% of the penalties go to the LWDA ‘for enforcement of labor laws . . . and for education of employers and employees about their rights and responsibilities under this code.’

Cal. Lab. Code § 2699(i)) This duty imposed upon the PAGA representative is especially significant given that PAGA does not require class action procedures, such as notice and opt-out rights.” O’Connor, 2016 WL 4398271, at *18.

• PAGA claim notices must be filed online, with a copy sent by certified mail to the employer.

• Employers must file cure notices and responses to a PAGA claim online, with a copy sent by certified mail to the aggrieved employee or aggrieved employee’s representative.

• There is a $75 filing fee for a new PAGA claim notice.

This fee may be waived if the party is entitled to proceed in forma pauperis.

• A $75 filing fee is required for any initial employer response to a PAGA claim notice.

• The Labor and Workforce Development Agency (LWDA) now has 60 days to review a notice under Labor Code § 2699.3(a).

• A filed-stamped copy of the complaint must be provided to LWDA in any PAGA action filed on or after July 1, 2016.

• A settlement of a PAGA action must be approved by the court, even if the settlement does not include any PAGA penalties.

The employer is likely to wage vigorous defenses if a PAGA claim is included, given the potential exposures.

In Silva v. See’s Candy Shops, --- Cal. App. 4th --- (2016), the employer was granted summary judgment because the employee’s LWDA notice was defective as it was not sufficiently specific. In addition, the court found that, although the employee had alleged wage and hour Continued on page 15

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

13

What You Should Know About PAGA in 2017 Continued from page 12 employee may appeal to the Superior Court for an order directing the Division to issue a citation.

Category Three: All Other Labor Code Violations9 The third category is for Labor Code violations other than those covered by the first two categories. Some common violations include wage statements that fail to provide inclusive dates of a pay period or the legal employer’s name and address, as required by Labor Code Section 226.

The notice requirement is the same as category one claims but an employer can “cure” the violation within 33 days of the PAGA notice. An employer sends notice to LWDA and the employee describing the actions taken to cure the violation. The employee can respond to the LWDA, as to why those actions did not actually cure the violation, and the LWDA has 17 days to review the actions taken and make a determination on whether the employer did in fact cure the violations. There are limitations on the number of times an employer can avail itself of the cure provision.

14

JULY 2017

If the LWDA determines that the employer did not cure the violations, or otherwise fails to provide a timely response, then the employee can proceed with the civil lawsuit. If the LWDA instead determines the violations have been cured then an employee can appeal the agency’s determination by filing an action with the Superior Court.

Tolling PAGA claims are subject to the one-year statute of limitations.10 The limitations period is tolled by serving a PAGA notice until the employee fully exhausts his or her administrative remedies.11

Class Certification Even though PAGA is a representative action, it does not need to be certified as a class action. See Arias v. Superior Court, 46 Cal.4th 969 (2009). However, many trial attorneys and courts are still grappling with how this works and District Courts have been known to dismiss PAGA claims for being “unmanageable.”12

Arbitration The United States Supreme Court is expected to issue a Continued on page 16

Recent Developments in PAGA Litigation Continued from page 13 violations in her PAGA claim, the employee’s interrogatory responses showed she had “abandoned” these claims.

Other courts have dismissed PAGA claims because they are unmanageable, that is, claims of the potentially aggrieved employees are so varied that they cannot effectively be heard together. See, e.g., Brown v. American Airlines, 2015 WL 6735217 (C.D. Cal. Oct 5. 2015).

While the PAGA claims carry a right to recover attorneys’ fees, most wage and hour claims also permit recovery of fees. Three-quarters of the PAGA penalties are turned over to the state and the remainder paid to the employees. If there is no class action, distribution of the penalties may require identification of aggrieved employees, calculation of penalties per employee, and engagement of a class action administrator. Similarly, the requirement for court approval of the settlement imposes additional costs and may take control of the settlement from the parties.

3. Settlement of PAGA Actions PAGA allows “aggrieved employees” to bring actions against employers for civil penalties on behalf of themselves and other employees for violations of the Labor Code. To recover penalties, a PAGA plaintiff arguably must prove an underlying Labor Code violation as to each allegedly aggrieved employee for each pay period within the statutory period. To determine liability, the court may need to adjudicate issues specific to each pay period for each allegedly aggrieved employee.

This raises potentially significant manageability problems. In addition, the nature of the proof required in a PAGA action can vary considerably depending on the underlying Labor Code claims raised.

In reviewing a settlement of a PAGA action, courts are obligated to “review and approve any penalties sought as part of a proposed settlement agreement pursuant to [PAGA].” Cal. Lab. Code § 2699(i).

In Alonzo v. First Transit, Inc., the appellate court reversed a trial court’s approval of a PAGA settlement, and remanded the matter, directing the trial court to conduct a new hearing for final approval of the settlement agreement in compliance with Section 2699(i). Alonzo v.

First Transit, Inc., 2015 WL 6000931 (Cal. App. Oct. 15, 2015). The parties had agreed to settle the case for $2 million, with $10,000 allocated to the PAGA claims, all of which was to be paid to the LWDA. The appellate court explained that the trial court’s analysis of the settlement terms and description of the settlement process did not address the sufficiency of the $10,000 allocated to the PAGA claims. Rather, the court’s analysis and comments at the final approval hearing focused on whether the gross amount of the settlement was fair under the standards governing class action settlements, and whether the class members received proper notice of the settlement. “… [T]he fact that the court overlooked the agreement’s failure to allocate 25 percent of the PAGA penalties to the aggrieved employees, as required by section 2699, subdivision (i), strongly suggests that the court did not separately review and approve the PAGA portion of the agreement.”

When there are questions of liability and damages, the Northern District has approved resolution of PAGA claims with minimal awards. For example, the Honorable Edward M. Chen approved a settlement that equaled 0.15% of the verdict value of PAGA claims in Viceral v. Mistras Group, Inc., Case No. 15-cv-02198-EMC (N.D. Cal. Oct. 11, 2016). That case involved multiple classes and included PAGA claims.

Judge Chen recognized that there were significant problems of proof regarding all of the claims, including

the PAGA claims, explaining that “the PAGA claims are subject to a very high risk on the merits.” In approving the settlement, Judge Chen compared the maximum value of the claims to the amount paid in settlement, noting that the PAGA claims were more deeply discounted than were the class claims, but finding that despite the “dramatic reduction,” the amount was reasonable “under the unusual and peculiar circumstances of this case where Plaintiffs face a substantial risk of recovering nothing on either the PAGA or class claims.”

4. Conclusion PAGA claims present unique problems, given the unique position of the Plaintiff as the representative of the State. In filing a PAGA claim, counsel should evaluate the facts and determine whether the claims have merit or are feasible of being litigated in a representative action.

In settling the matter, counsel should keep in mind that a court will need to approve the settlement and evaluate whether the allocation of settlement dollars between PAGA penalties and other claims will withstand judicial scrutiny.

Margaret Grover is a partner in the law firm of We n d e l , Rosen, Black & Dean LLP, where she heads the Employment Practice Group.

Maggie has been practicing employment law for over 30 years, handling matters in arbitration, mediation, administrative hearings, and state and federal courts.

During that time, she has also counseled employers and employees and served as a neutral.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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What You Should Know About PAGA in 2017 Continued from page 14 major decision impacting class action waivers in June 2017.13 However, the California Supreme Court and the Federal Ninth Circuit Court of Appeals have both already held that an employee cannot waive a future PAGA claim vis a vis an arbitration agreement or class action waiver.14 [An arbitration agreement entered into after a dispute arises is often treated differently.15] PAGA claims can be compelled to arbitration if they fall within the scope of an arbitration clause.16 If not, then trial courts often compel arbitration of covered claims but retain/stay the PAGA claims pending the resolution of the arbitration.17

Penalties If the underlying Labor Code provision already provides for a civil penalty then an employee can seek to collect that penalty on behalf of other aggrieved employees. Where the underlying Labor Code section does not already provide a civil penalty, the PAGA penalty is equal to $100 per employee per pay period for the initial violation and $200 for each employee per pay period for each subsequent violation.18

Settlements A trial court must review and approve any proposed settlement that releases PAGA claims. A copy of the proposed settlement must also be submitted to the LWDA online at the same time as the court.19

Kevin R. Allen is the principal of Allen Attorney Group in Wa l n u t Creek. He prosecutes wage and hour class actions and PAGA representative claims as Special Counsel to Velton Zegelman, P.C. in Sunnyvale.

1 Cal. Lab. Code § 2699(i).

2 Cal. Lab. Code § 2699(g)(1).

3 Cal. Lab. Code § 2699.3(a).

4 This includes the failure to provide employees with suitable or to maintain comfortable temperatures at work.

5 Paragraphs (1) to (5), inclusive, (7), and (9) of subdivision (a) of Section 226.

6 See Cal. Lab. Code § 2699.3(a)(1), (2) 7 See Alcantar v. Hobart Service, 800 F. 3d 1047 (9th Cir. 2015); see also Silva v. See’s Candy Shops, --- Cal.App.4th --- (2016).

8 Cal. Lab. Code § 2699.3(b).

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11 Cal. Lab. Code § 2669.3(d).

12 See e.g. Bowers v. First Student, Inc., No. 2:14-CV-8866-ODW (Ex), 2015 WL 1862914, at *4 (C.D. Cal. April 23, 2015); Amey v. Cinemark USA Inc., No. 13-cv-05669-WHO, 2015 WL 2251504, at *16 (N.D. Cal. May 13, 2015).

14 See Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014); Sakkab v.

Luxottica Retail North America, Inc., 803 F. 3d 425 (9th Cir. 2015).

15 See Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348, 383 (2014).

(925) 948-8998

www.trustcare.biz JULY 2017

10 Cal. Code of Civ. Proc. § 340.

13 On January 13, 2017 the US Supreme Court granted a petition for a writ of certiorari and consolidated three cases (Nos. 16-307, 16-285, 16-300) to decide whether class action waivers violate the labor law provisions in the National Labor Relations Act (NLRA).

Carol W. Wu, Esq., CLPF Lori Hefner, MBA, MA in Gerontology & CLPF

16

9 Cal. Lab. Code § 2699.3(c),(d).

16 See e.g. Valdez v. Terminix Intern’l Co. Limited Partnership (9th Cir. March 31, 2017) (unpublished).

17 See e.g. Franco v. Arakelian Enterprises, Inc., 234 Cal. App. 4th 947, 966 (2015).

18 Cal. Lab. Code § 2699(f)(2).

19 Cal. Lab. Code § 2699(l)(2).

FEATURE

Recent Developments in California Rest Period and Day-ofRest Law

by Phillip J. Smith California generally requires employers to provide non-exempt employees with a paid rest period of ten (10) minutes for every four (4) hours worked, or major fraction thereof.1 California also requires employers, under certain circumstances, to provide eligible employees with one day of rest every seven days.2 In the last year, a trio of California state court decisions have addressed and clarified the provision and payment of rest periods and rest days under California law.

In Augustus v. ABM Security Services, Inc., the California Supreme Court held it is unlawful to require employees to remain on duty or on call during rest periods.3 In Augustus, a putative class of security guards sued for failure to provide paid rest periods because their employer required guards to “remain vigilant” and carry their pagers and radio phones during rest breaks in order to respond to “calls when needs arose.” The California Supreme Court agreed such a policy was unlawful and explained that in order to comply with the law, an employer

Photo credit: tj.blackwell via Foter.com / CC BY-NC

must relinquish all control over how employees spend their break time, and relieve their employees of all duties during rest breaks.4 However, California continues to explicitly recognize two limited circumstances under which an employer can lawfully exert control over an employee during a rest break. First, employers in the public housekeeping industry can require certain employees to remain on premises and on duty during rest periods.5 Second, employers for certain on-site occupations in the construction, drilling, logging and mining industries can require employees to take rest breaks at “employer designated areas, which may include or be limited to the employees immediate work area.”6 In Vaquero v. Stoneledge Furniture LLC, the California Court of Appeals held that non-exempt employees paid solely on commission must be separately paid for rest breaks.7 In Vaquero, a class of non-exempt, commission-only sales associates argued they did not receive paid rest breaks because their employer paid them a recoverable advance or “draw” against future commissions when the associate failed to earn

a minimum of $12.01 an hour in commissions during a given pay period.8 The employer argued employees were paid for rest breaks because associates earned a guaranteed minimum of at least $12.01 for each hour worked, associates recorded their total time worked using the employer’s timekeeping system, the timekeeping system captured time spent on rest breaks because employees did not clock out and back in for rest breaks, and the employer treated “break time identically with other work time.”9 The Court of Appeals concluded the policy failed to provide paid rest breaks on two grounds. First, employees would not be paid for rest periods if they earned commissions in excess of the guaranteed minimum.

Rather, “[s]ales associates who were paid their commission received the same amount of compensation regardless of whether they took rest breaks.”10 Second, if an employee received the guaranteed minimum because they did not earn sufficient commissions, the employer “took back” the previously paid minimum guarantee, including amounts ostensibly paid for rest breaks.11 Accordingly, an employer utilizing Continued on page 18

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Rest Period and Day of Rest Law Continued from page 17 a commission-based compensation plan must “separately account and pay for rest periods to comply with California law.”12 Finally, in Mendoza v. Nordstrom, Inc., the California Supreme Court resolved several ambiguities within California’s day of rest laws.13 The California Labor Code states that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven” and “[n]o employer shall cause his employees to work more than six days in seven.”14 In Mendoza, a putative class of non-exempt employees brought suit for failure to provide days of rest because employees were required to work more than six consecutive days in a row without receiving a day of rest.15 The California Supreme Court’s holding was three-fold—first, an employer must generally provide its non-exempt employees one day of rest per workweek, not one day of rest every seven days on a rolling basis.16 Second, an employer is not required to provide a day of rest to a non-exempt employee if that employee does not work more than six hours a day during each and every day of that seven-day workweek.17 Conversely, the exception is destroyed if an employee works more than six hours on any day during any day of that workweek.

Third, an employer must notify eligible employees of their entitlement to a day of rest and cannot “encourage its employees to forgo rest or conceal the entitlement to rest [but an employer] is not liable simply because an employee chooses to work a seventh day.”18 The monetary costs of non-compliance can be substantial under California’s rest period laws—an eligible employee who does not receive his 18

JULY 2017

or her paid rest periods can seek recovery for premium pay of up to two additional hours of pay each day, at the employee’s regular rate of pay, for up to the past four years’ of employment.19 Injured employees can also seek civil penalties for the failure to provide paid rest breaks under California’s Private Attorneys General Act.20 Similarly, the monetary costs of non-compliance can be significant under California’s day of rest laws. An eligible employee who is not provided his or her day of rest can seek recovery of civil penalties, under California’s Private Attorneys General Act, equal to $50 for an initial violation, and $100 per subsequent violation, as well as any underpaid wages, for the past year of employment.21

and litigation avoidance, policy development and compliance. He is a member of the Employment Section of the Contra Costa County Bar Association.

1 Cal. Code Regs. Title 8, §§ 11010-11160 2 Cal. Lab. Code §§ 550-558.1 3 Augustus v. ABM Security Services, Inc., 2 Cal.5th 257, 260 (2016) 4 Augustus, 2 Cal.5th at 272-73 5 Cal. Code Regs. Title 8, § 11050, subd. 12(C) 6 Cal. Code Regs. Title 8, § 11160, subd. 11(A) 7 Vaquero v. Stoneledge Furniture LLC, 9 Cal. App.5th 98, 102 (2017) 8 Vaquero, 9 Cal.App.5th at 103 9 Id. 10 Vaquero, 9 Cal.App.5th at 115 11 Vaquero, 9 Cal.App.5th at 115-16 12 Vaquero, 9 Cal.App.5th at 117 13 Mendoza v. Nordstrom, Inc., 216 Cal. Rptr.3d 889 (2017)

Philip J. Smith is Senior Counsel with Constangy, Brooks, Smith & Prophete LLP, focusing on employment litigation involving claims for discrimination, harassment, retaliation, and wage and hour matters, as well as counseling on a variety of workplace issues including risk assessment

14 Cal. Lab. Code §§ 550 and 551 15 Mendoza, 216 Cal.Rptr.3d at 892 16 Mendoza, 216 Cal.Rptr.3d at 898 17 Mendoza, 216 Cal.Rptr.3d at 901; see also Cal. Lab. Code § 556 18 Id. 19 See Cal. Lab. Code § 226.7 (c); Cal. Civ. Pro. Code § 338 (a); and Cal. Bus. & Prof. Code § 17208 20 See Cal. Lab. Code § 2699, et seq.

21 See Cal. Lab. Code §§ 558 (a) and 2699, et seq.

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Summer Employment

– Quick Tips to Avoid Common Pitfalls

by Michelle Ferber and Jennifer Lucas With students out of school and seasonal employees ready for summer work, shifting summer schedules, and perhaps relaxed dress codes, it’s important not to lose sight of legal issues and requirements. The following briefly highlights several common summer employment pitfalls.

Paying Your Summer Interns/ Seasonal Employees The law narrowly limits who can work for free. Ultimately, summer help should be compensated.

Regardless of Title, Workers May Not Qualify as “Unpaid Interns” Although it seems like a win-win to hire students to work in exchange for “experience,” an employer’s ability to do so is limited. Both federal (DOL) and state (DSLE) law set these requirements for unpaid internships: (1) work similar to a vocational program, (2) internship for the benefit of the intern, (3) intern cannot displace a regular employee, (4) Employer cannot derive benefit from intern’s work, (5) intern not entitled to a job at the end of the internship, and (6) all understand that intern is not entitled to wages. (DOL Fact Sheet #71; DSLE Opinion Letter 2010.04.07.)

Workers Might Not Qualify as “Volunteers” A “volunteer” is someone who performs work for a public service, religious or humanitarian reason without expectation of compensation. Importantly, an individual cannot “volunteer” to work at a for-profit company.

(DLSE Opinion Letter 1988.10.27.)

Important Details to Remember When Hiring Minors Most anyone under 18 is considered a “minor.” The FLSA prohibits employment of minors under 14 with limited exceptions.

(Labor Code §1286(c).) Minors between the ages of 14 and 18 may work in certain occupations after the employer obtains the appropriate work permit. (Cal. Labor Code §§1294.3, 1308.5.) Even with a permit, there are various jobs a minor may not perform, including, for example, construction work. (Cal. Labor Code §§1292-1297, 1308.2, 13.08.3; 8 Cal.C.Regs §§11701-11707; 29 USC §203(l).) Under certain circumstances, minors may be paid subminimum wages – discuss this with legal counsel first! (29 USC 206(g).)

Summer Schedule Tips With summer childcare schedules and other shifting obligations, employees may have unique scheduling needs during the summer. It’s

great to be flexible, but watch out for these common issues and pitfalls:

Overtime Pay Cannot Be Waived If an hourly employee changes his or her schedule to work the same hours over the course of fewer days, he or she is entitled to overtime pay for all hours over 8 worked in a single day.

He or she cannot “waive” the right to receive overtime for those hours.

–Exception “Makeup Time:” “Makeup time” is a temporary alternative to overtime (intended for occasional use) that allows an employee to request time off for a “personal obligation” and make up the time on another day without receiving overtime pay.

If you choose to allow makeup time, you must comply with the following rules: (1) you cannot require or encourage employees to use makeup time, (2) makeup time cannot exceed 11 hours of work in a single day or 40 hours in the week, (3) makeup time must be within the same work week as the time off, and (4) the employee must provide a signed request for each occasion that he or she wants to use makeup time.

(Labor Code §513.)

–Compensatory Time Off Prohibited: With extremely limited exceptions, the practice of giving compensatory time off (paid time Continued on page 20

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Summer Employment Continued from page 19 off from work in exchange for the equivalent amount of time to the extra hours worked) in lieu of overtime payments is prohibited in California. (DLSE Enforcement Policies and Interpretations Manual, §§6.1, 6.1.1.)

Use of “Sick” Time: What should you do if you suspect an employee is using “sick time” for time off other than “sick,” such as for a beach visit or other non-healthrelated events? First, employees are not entitled to use their sick days until their 90th day of employment, so seasonal employees may not have accrued sick days to use in the first place. If they are entitled to paid sick leave, it is inadvisable to take disciplinary action related to

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JULY 2017

its use. Section 245.6 of the Labor Code authorizes use of sick time for a wide range of reasons (which can include mental health reasons), and also creates a presumption that any disciplinary action taken within 30 days of use of sick days is “retaliatory.” Moreover, asking questions about why an employee took a sick day may violate privacy laws. The risks of taking disciplinary action for what appears to be “misuse” of sick days are extremely high.

Dress Code Issues An employer can relax its dress code for beach season, but carefully consider and communicate the rules to employees in writing. Some important factors regarding dress codes include:

Equal Application: Dress codes must apply equally to everyone. For example, a rule requiring tattoos to be covered must include all tattoos, not just “inappropriate” ones.

While one may arguably set reasonably differing clothing or grooming standards for men and women, it is not advisable to do so. Although the 9th Circuit has upheld policies permitting women to wear their hair long while men must keep their’s short (Jesperson v. Harrah’s Operating Co. (9th Cir 2006) 444 F.3d 1104), California law states that women may not be prohibited from wearing pants to work. (Gov’t.

Code §12947.5.) This indicates a conflict in the law with regard to gender-based standards. The best practice is to keep your dress code as equally applicable as possible.

Reasonable Accommodations Required: FEHA protects religious dress and grooming practices.

Regardless of your dress code, an employer must reasonably accommodate an employee’s customs of dress or

appearance based upon religious beliefs, unless doing so creates undue hardship or safety concerns.

(Gov’t. Code §§12926, 12940.)

Final Words of Advice Penalties for violating state and federal labor laws can be severe, and even one claim filed against an employer could cost more than the amount saved by underpayment or maintaining illegal internships.

While this article provides some food for thought and highlights potential pitfalls which may arise in summer, an employer should always consult with legal counsel if there are any questions about whether business practices are compliant.

Michelle R. Ferber is an employment and business lawyer and the founder and managing shareholder of Ferber Law, A Professional Corporation. Her practice focuses on defending employers in actions involving harassment, discrimination, retaliation, wrongful termination, wage and hour violations and business torts.

Jennifer R. Lucas is an associate attorney with Ferber Law, A Professional Corporation.

She is an employm e n t lawyer with significant experience in litigation, corporate law, insurance, surety, construction, real estate, probate, trusts, and public entity work.

Results of

Food from the Bar The 26th Annual Food From The Bar fundraiser for the Food Bank of Contra Costa and Solano was another success, bringing in over $56,500.

Twenty-four law firms participated in the event that included the Walk-a-Thon, Comedy Night, and a competitive food drive among the firms.

Justice Maria Rivera did a great job as MC of Comedy Night

Congratulations and thank you to the winners: 1-5 Employees:

Law Offices of Suzanne Boucher

6-10 Employees: Bramson, Plutzik, Mahler & Birkhaeuser LLP 11-20 Employees: Brown, Gee & Wenger LLP 21-50 Employees: Gagen, McCoy, McMahon, Koss, Markowitz & Raines 51+ Employees:

Archer Norris

The 22nd annual Comedy Night at Back Forty Texas BBQ in Pleasant Hill was a highlight. Hosted by Justice Maria Rivera, this year’s show featured Rocky LaPorte and Emily Epstein White. More than 20 generous sponsors donated to support the event.

Over the years, the Bar Association has collected more than $1.25 million and 56 tons of food for the Food Bank. A special thank you to our sponsors; we could not have done this without your support!

Comedian Rocky LaPorte with a new friend from the front row, Kate Mignani, Law Student Section Co-Leader.

BenefactorS

Contra Costa County Bar Association Huseby PATRONS

Archer Norris McNamara, Ney, Beatty, Slattery, Borges & Ambacher Newmeyer & Dillion LLP CONTRIBUTORS 3D-Forensic.

ADR Services, Inc. Aiken Welch Court Reporters Brown, Gee & Wenger, LLP Buchman Provine Brothers Smith, LLP Certified Reporting Services Esquire Deposition Solutions Ferber Law, P.C. First Legal Network Gagen, McCoy, McMahon, Koss, Markowitz & Raines Law Office of Suzanne Boucher Miller Starr Regalia QUIVX Vasquez, Benisek and Lindgren LLP

A big thank you to the team at Archer Norris for taking the lead on Food From the Bar. Above, Catherine Lubbe and Melane Conrad. Below, the walkers from Archer Norris when they were full of energy! More Walk-aThon photos on page 33.

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Court Volunteer Appreciation Event

On May 11, the Superior Court hosted a volunteer appreciation event in honor of the many volunteers that support the courts all year long. Above, Elisa Pantaleon, Alan Frenklach, Theresa Ramos, and Judy Walker. Top right, Pattie Hsu, Hon. Theresa Canepa,, Hon. Rebecca Hardie and Cheryl Vereschagin, below, Presiding Judge Jill Fannin. Right Magda Lopez and Terry Abts.

The Next Generation Court Tour Thank You

by Theresa Hurley, CCCBA Executive Director Volunteering as a Court Tour Docent is a fantastic job! During the school year, docents tour 5th & 8th grade classes around the Martinez courthouses where the students learn about court security, the Judicial Branch, and how our legal system works.

Students visit the detention facility, observe legal proceedings, meet court staff and participate as a juror, defendant or even the judge during a mock trial. They discover that being a lawyer is different from what they see on “Law & Order” and it is not easy to be a juror!

CCCBA has a cadre of dedicated court tour docents, many of whom have been lending their time and talents to the Court Tour program for years.

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JULY 2017

We give a huge THANK YOU to these wonderful volunteers who help to educate the next generation of Contra Costa County citizens.

• Judge Richard Flier (Ret.) • Commissioner Don Green (Ret.) • Laurel Green • Kevin Lally • Lisa Reep • Robin Siefkin • Susan Stoltz • Stephenie Teichman • Robin Thornton • Jane White Interested in becoming a Court Tour Docent?

Contact Theresa Hurley at thurley@ cccba.org or (925) 370-2548 for more information.

CCCBA Goes to the Ballgame

The CCCBA had a great time at the A’s game and catered tailgate on May 9.

Pictured top of this page Matt Cody, Justin Schnitzler, Steve Steinberg, Joshua Cohen. Top right, Mika Domingo and Anthony Spagna. Middle, Mobile taco bar by El Piesa Catering and right, Archer Norris represents! Above left, Justine and David Erb. Above right, Scott Reep, Lisa Reep, Pam Marraccini, Suzanne Boucher and Ian Carpenter.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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CCCBA Diversity Award Program Announced Diversity and inclusion in the law is something the Contra Costa County Bar Association values greatly and has worked hard to promote. To that end, we are pleased to announce the Bar Association has decided to recognize and present awards to law firms that embrace and implement diversity awareness and inclusiveness in their firms. A “law firm” for these purposes includes law practices of any size – including solo practitioners. Our hope is this initiative will inspire us to be more aware, and inclusive, and to better appreciate our differences.

There are four levels for this award – Bronze, Silver, Gold and Platinum.

In order to quality for an award

the law firm must demonstrate its commitment to diversity education within the office, external and internal diversity efforts and on recruiting and retaining diverse attorneys. The application includes a list of about 100 different diversity and inclusion activities to choose from. Firms which complete at least 45 tasks earn the Platinum Diversity Award – our highest honor.

Completion of 35 tasks earns Gold; 25 Silver; and 15 Bronze. The 2017 CCCBA Diversity Award Checklist is available on the CCCBA website at www.cccba.org. Firms that wish to be considered must submit their award checklist by December 15, 2017. We will recognize and present awards to our firms at the Installation Lunch in January 2018.

Special thanks to the members of the Contra Costa County Bar Association Diversity Committee who have worked with me, as chair of the Diversity Awards Sub-committee, in formulating this initiative. I would particularly like to thank the other members of the Award Sub-committee: Mona AghazadehSanaei, Kristen Thall Peters and Phil Andersen.

We are hoping this award will strengthen the commitment so many of our members made when CCCBA initially rolled out our Diversity Pledge, and we invite all of you to join us in pledging to advance diversity and inclusion in our Bar Association.

Renée Livingston CCCBA Diversity Award Sub-committee Chair

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JULY 2017

SPOTLIGHT

Legal Aid for Low-Wage Pregnant Workers in Contra Costa County

by Katherine Wutchiett

Why is this important?

A desire to empower low-wage families to access health-promoting workplace rights has resulted in a new partnership between Legal Aid at Work (formerly Legal Aid Society-Employment Law Center) and Contra Costa County Health Services, Family, Maternal and Child Health Programs. This innovative model makes legal resources available for low-wage families at locations that pregnant women and new parents already visit to obtain medical care, benefits or community services.

Low-income pregnant women frequently need pregnancy accommodations to keep working; such as help with heavy lifting, avoiding exposure to toxic fumes, sitting on a stool, carrying a water bottle or taking frequent bathroom breaks.

Further, pregnant women need leaves of absence for pregnancy and childbirth-related disability and bonding with a new baby, continuation of health insurance during leave, and access to public benefits such as temporary disability insurance and Paid Family Leave. Even when new mothers return to work, they often need lactation accommodations and flexible or predictable schedules to enable them to continue breastfeeding their babies and meet their caregiving obligations.

Low-wage pregnant workers and new parents are often pushed out of their jobs and foisted deeper into poverty at precisely the time when they need their income most.

While California has some of the most expansive legal protections in the country to meet the workplace needs of pregnant women and new parents, many workers have no idea these protections exist. As a result, too often, their rights are denied.

However, virtually all pregnant women receive prenatal care, and 84 percent of women giving birth in Contra Costa County initiate prenatal care in the first trimester.

By making legal resources available to these individuals in Contra Costa County at the same places as medical care, benefits and community services, this new partnership will ensure that low-wage families across the County are able to understand and take advantage of their workplace rights.

Workplace conditions have a direct impact on health outcomes, particularly during the pregnancy, postpartum, and infant periods. Pregnancy leave and pregnancy-related accommodations (such as sitting while working or avoiding night shifts) decrease the likelihood of preterm birth and mortality. Longer maternity leave is associated with decreased maternal depression, and improved infant childhood cognitive development. Lactation accommodations facilitate maternal breastfeeding and reduce maternal stress. Breastfeeding has well-documented health benefits for mothers and infants. Paid sick leave also has positive health impacts on parents and children.

The medical legal partnership (“MLP�) approach allows for early intervention at the moment employment concerns arise, rather than waiting until after a woman already has lost her job and suffered devastating consequences to her wellbeing and financial security.

Because the vast majority of patients do not know how to access legal services, harnessing the trusted relationship the family already has with their health care or social service professional is key to connecting individuals to much-needed legal resources they would otherwise never know about.

As a part of this MLP, Legal Aid at Work uses a multifaceted approach to help protect Contra Costa families.

First, Legal Aid at Work provides trainings to client/patient-facing Continued on page 26

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

25

Spotlight: Legal Aid at Work Continued from page 25 professionals within Contra Costa Health Services and other interested community organizations. Surveys of trained Contra Costa social service and health care providers show that 100% “agree” or “strongly agree” that “[a]ddressing patients’/ clients’ employment-related legal needs is as important as addressing their medical condition,” and that “[t]his information will be useful to my patients/clients.” Legal Aid at Work also supports these professionals, and their clients or patients, by providing educational tools like the Pregnancy + My Job and Parenting + My Job flyers that illustrate how PFL, FMLA, and other laws help with job protection and wage replacement. View these flyers online at www.cccba.org/flyer/ LAAW.pdf.

When professionals seek technical assistance or clients or patients have questions about their rights, they can call (800) 880-8047, Legal Aid at Work’s Work & Family Helpline, where anyone can leave a message with their questions and have their call returned by a counselor or attorney within two to three business days.

Additionally, Legal Aid at Work holds rotating on-site clinics across Contra Costa, including Pittsburg WIC, where pregnant women and new parents can meet face-to-face with Legal Aid attorneys who will advise them of their rights and work to help them get the time off, accommodations, or wage replacement to which they are entitled. Legal Aid has assisted countless visitors to the clinic as well as through its hotline. Their stories are personal and touching, each important as they start their family.

Legal Aid at Work, with Contra Costa Health Services, is working hard to ensure that all families in Contra Costa County have the opportunity to access workplace rights that benefit their health and wellbeing.

Katherine Wutchiett is a Skadden Fellow with Legal Aid at Work, where she leads the Contra Costa Work & Family MLP and protects the rights of pregnant women, parents, caregivers, and survivors of domestic and sexual violence to care for themselves and their loved ones without risking their jobs and income.

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26

JULY 2017

Coffee Talk

Coffee Talk is a regular feature of the Contra Costa Lawyer magazine. We ask a short question related to an upcoming theme and responses are then published in the Contra Costa Lawyer magazine.

This month we ask,

Do you agree with the State of California’s minimum wage rate? Why or why not?

Background: The current California state minimum wage of $10.50 per hour is effective from January 2017 for employers in California with 26 or more employees. Employers with 25 or fewer employees have a minimum wage of $10.00 per hour.

This is greater than the Federal Minimum Wage of $7.25. (California’s minimum wage rate is linked to a Customer Price Index, which is intended to raise the rate along with inflation. The current minimum wage rate is re-evaluated yearly based on these values.

“

The minimum wage should be higher in California. A minimum wage increase arguably reduces employee turnover, which reduces employers’ costs, and it increases worker purchasing power, which stimulates consumer demand, further the increased income helps support the health and welfare of a family as well. These are just some of the positive effects of a higher minimum wage which ultimately impact a community at large which offset alleged negative effects of an increased minimum wage.

“

I am a very small outfit, with two part-time, hourly employees (and five contract employees). Both of my hourly staff are paid more than the minimum wage. One can’t live in the Bay Area with less.

”

Michael Herwood

”

“

Working Californians deserve a living wage – one that allows them to support themselves. The federal minimum wage is far too low. It has not kept up with inflation in recent years. California’s minimum wage is better. But, with the high cost of living, particularly in the Bay Area, $10.00-$10.50 per hour is still inadequate. And with 70% of our economy dependent on consumer spending, a living wage is good for business, too, because it helps to maintain the consumer spending necessary for our state’s economy to thrive.

Steven F. Lincoln Brown Gee & Wenger LLP

”

Beth W. Mora Mora Employment Law

Thinking of

Youngman Ericsson Scott, LLP

Conservatorships?

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think

Tax attorneys

Matt Toth as in:

Pedder, hesseltine, Walker & Toth, LLP

Youngman.com

(925) 930-6000

oldest partnership in Contra Costa County (since 1955)

925.283-6816 • www.pedderlaw.com

3445 Golden Gate Way, Lafayette, CA 94549 AV Martindale-hubbell

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

27

We gratefully acknowledge our

2017 SUSTAINING LAW FIRMS

firms with

30+ attorneys:

Archer Norris Miller Starr Regalia n

firms with

20-29 attorneys:

McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP firms with

15-19 attorneys:

Bowles & Verna, LLP Buchman Provine Brothers Smith, LLP Clapp Moroney Bellagamba Vucinich Beeman Scheley

Greenan, Peffer, Sallander & Lally, LLP Littler Mendelson, PC firms with

5-14 attorneys:

Barr & Young Attorneys Bramson, Plutzik, Mahler & Birkhaeuser, LLP Brown, Gee & Wenger, LLP Casper, Meadows, Schwartz & Cook Craddick, Candland & Conti Doyle Quane Family Law Group Edrington, Schirmer & Murphy Ferber Law, APC Gagen, McCoy, McMahon, Koss, Markowitz & Raines Galloway, Lucchese, Everson & Picchi Gillin, Jacobson, Ellis, Larsen & Lucey Hartog Baer & Hand, APC Livingston Law Firm, PC Whiting, Fallon, Ross & Abel, LLP 28

JULY 2017

California’s Wage Equality Law Continued from page 9 Lawrence speaking out on the issue, to Salesforce’s $3 million investment towards equal pay, social awareness and movement against pay inequality is rising.

This, coupled with the enactment of tougher laws and even more laws proposed, including a federal bill prohibiting inquiry into past wage information, can only lead to an increase in litigation. Attorneys should advise their clients to conduct self-studies and proactively correct any unequal treatment discovered. This expenditure would not only mitigate litigation risk, but would also be an investment in the company’s culture and ethics, and in employee retention and morale.

Yen P. Chau practices complex civil litigation.

Her practice includes representing and counseling employees and employers in all aspects of employment and labor law, including discrimination, harassment, wrongful termination, wage and hour, and disability accommodation issues. Yen advocates for her clients in state and federal courts, as well as before the Department of Fair Employment and Housing, Equal Employment Opportunity Commission, the Labor Commissioner’s Office and the Workers’ Compensation Appeals Board. Her practice also includes appellate advocacy and the defense of contested claims in mediations and administrative hearings. Yen is the 2017 President of the Contra Costa County Bar Association Employment Section.

1. Masunaga, Samantha. “California equal pay bill may be toughest in nation.” Los Angeles Times September 2, 2015 2. Bureau of Labor Statistics, US Department of Labor, Chart: Women earn 88 percent as much as men in Hawaii, among the highest in 2015 (December 2016) https://www.bls.gov/cps/ earnings.htm#demographics 3. National Partnership For Women and Children, California Women and the Wage Gap, April 2016, http://www.nationalpartnership.org/ research-library/workplace-fairness/fair-pay/42016-ca-wage-gap.pdf 4. Raghu, Maya and Lowell, Caitlan “EMPLOYER LEADERSHIP TO ADVANCE EQUAL PAY: EXAMPLES OF PROMISING PRACTICES” National Women’s Law Center, March 2017 https://nwlc.org/wp-content/uploads/2017/03/Employer-Leadership-to-AdvanceEqual-Pay.pdf 5. Coates et al. v Farmers Group Inc. U.S. District Court for the Northern District of California, case number 5:15-cv-01913 6. H.R.6030 “The Pay Equity for All Act of 2017” seeks to amend Fair Labor Standards Act of 1938 to make it unlawful for an employer to ask about prior salaries or retaliate against any employee for opposing any such conduct.

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

29

ACUÑA  REGLI

Did you know?

Mark W. Frisbie Is Retiring Effective May 31, 2017 Acuña  Regli Will Continue to Serve His Clients

CCCBA’s Bar Fund was established in 1988 to help improve the conditions for those in need through a permanent and ongoing source of income. We are proud to say that due to generous donations from people like you, our total grants to date are $734,320!

Estate Planning  Administration  Conservatorship  Inheritance Litigation

 Mark entrusted his clients to the attorneys and staff at Acuña  Regli.

Our firm will provide notices of Mark’s retirement, maintain custody of his files, and respond to client inquiries and requests. This ensures that Mark’s clients will enjoy uninterrupted service after his retirement.  Our practice is strictly limited to estate planning; probate and trust administration; conservatorship and special needs planning; and, inheritance litigation.  Please call Frank R. Acuña or Tracy S. Regli at (925) 906-1880 if we can assist you with winding down your practice for retirement.    

Frank R. Acuña, Partner Tracy S. Regli, Partner Alex Y. Chen, Associate Lisa M. Zaragoza, Associate

ACUÑA  REGLI Attorneys at Law A Limited Liability Partnership

 Kevin P. Urbatsch, Of Counsel  Sara Harrison, Paralegal  Sarah C. Galle, Paralegal

3478 Buskirk Avenue, Suite 300 Pleasant Hill, CA 94523 (925) 906-1880 www.AcunaRegli.com

Each year in the fall, CCCBA sponsors a fundraiser in support of The BAR FUND and to raise consciousness about the need for pro bono legal services for our community.

The Bar Fund Goals: • Promote and support Pro Bono legal advice, counsel and representation to the County’s poor and needy • Maintain equal access to justice • Support and improve administration of justice • Contribute to wider understanding of the law and legal reform

Elder Law is

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.

Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, approximately one in ten families has a relative with this disease.

Of the four million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

If the diagnosis is Alzheimer’s, call elder law attorney

Michael J. Young

Estate Planning, Disability, Medi-Cal, Long-term Care & VA Planning Protect your loved ones, home and independence.

Alzheimer’s Planning 30

JULY 2017

n

925.256.0298 www.YoungElderLaw.com 1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

• Preserve American heritage of rule by law • Encourage elevated standards of legal education and performance Past recipients include: • Community Violence Solutions Anti-Human Trafficking Campaign • Family Justice Center’s Legal Incubator Project • Bay Area Legal Aid’s CCC Homeless Youth Project • Contra Costa Senior Legal Services • Contra Costa High School Law & Justice Academies • CASA of Contra Costa This year’s Bar Fund Recipient is Social Justice Collaborative. The CCCBA will hold a Bar Fund Benefit on Thursday, September 28, 2017 at the Lafayette Memorial Veteran’s Center. Be a sponsor and support the Bar Fund! See page 31 for details.

Sponsorships Available for the

Bar Fund Benefit Thursday, Sept. 28 5:30 pm – 8:00 pm Lafayette Veterans Memorial Center 3780 Mt. Diablo Boulevard Lafayette In Support of:

Social Justice Collaborative

SocialJusticeCollaborative.org

Diamond | $10,000

Gold | $2,500

• Recognition on Social Justice Collaborative website and on promotional materials • 10 passes to the reception • Recognition on print invitation (if confirmed by Friday, July 21st) • Recognition in press releases, event publicity and at the event • Top placement in all event materials

• 5 passes to the reception • Recognition on print invitation (if confirmed by Friday, July 21st) • Recognition in event publicity and at the event • Prominent placement in all event materials

Platinum | $5,000

• 2 passes to the reception • Recognition on print invitation (if confirmed by Friday, July 21st) • Recognition in event publicity and at the event • Placement in all event materials

• 10 passes to the reception • Recognition on print invitation (if confirmed by Friday, July 21st) • Recognition in press releases, event publicity and at the event • Prominent placement in all event materials

Silver | $1,000

Read more about the CCCBA’s proud 29-year tradition of raising funds for the less fortunate in Contra Costa County through the BAR FUND on page 30. We hope that your firm will join the prestigious list of sponsors.

Contact Theresa Hurley at thurley@cccba.org or (925) 370-2548 to discuss sponsorship opportunities.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

31

The June Issue of Contra Costa Lawyer – Here’s What You Missed

Thank you to David Arietta for putting an excellent issue on Bankruptcy for the Contra Costa Lawyer’s June 2017 issue.

FEATURES: • Not Eligible to File Bankruptcy? An Analysis of What is Required, by David Arietta • Lien Strips Revisited, by Steve Knuppel • You Did What to My Claim? Capping a Commercial Landlord’s Attorney’s Fees in Bankruptcy, by Reno Fernandez • Mortgage Modifications in Wonderland: Conquering the Red Queen (Mortgage Modification in Chapter 13 through Mediation),

by Nathan Scheg / Bob Jacobs • Life After Debt: Rebuilding After Bankruptcy, by Jen Lee • Broke But Not Broken: Private Workouts in Lieu of Bankruptcy, by Matthew D. Metzger • Interview with Chief Bankruptcy Judge, Roger L. Efremsky, by Mary Tang • The Personal Injury Case and the Automatic Stay, by Carl Gustafson

COLUMNS: • Inside: “What Goes Up, Must Come Down,” by David Arietta • March Inns of Court Program by Joe Nykodym

Find it online at www.contracostalawyer.cccba.org

30 years experience in Probate & Trust Administration 3445 Golden Gate Way Lafayette, CA 94549 (925) 283-6998 l.neiger@mac.com

32

JULY 2017

More Photos from the Walk-a-Thon

Thanks to all who walked on May 19 and raised funds for Food from the Bar. For results of this effort, see page 21.

RobeRt b. Jacobs Mediator • arbitrator

Mediator | Arbitrator for Claims Involving:

Celeste Shearer, Lori Rehana and Sharon Nolen-Morse from McNamara, Ney, Beatty, Slattery, Borges & Ambacher

Business Law

ReaL estate Law

ConstRuCtion Law

Purchase or Sale of Business Breach of Contract Fraud • Nondisclosure Nonpayment Nonperformance Credit Sales Loans • Franchises Family-Owned Business Shareholder, Member or Partnership Disputes

Purchase or Sale of Real Estate Broker • Agent Nuisance • Trespass Undisclosed Defects Leases • Title Defects Partition • Boundaries Family Owned Properties Loans • Deeds of Trust Foreclosure • CC&Rs Encroachments

Contract Issues Construction Defects Early Termination Nonpayment Mechanic’s Liens Change Orders/Extras Progress Payment Disputes Delay Claims Scope of Work Construction Bonds Construction Loans

email Bob7@RBJLaw.com • tel 925-847-8680 www.RBJLaw.com

Conservatorships • Establishment • Litigation

Celeste Shearer, Lori Rehana and Sharon Nolen-Morse from McNamara, Ney, Beatty, Slattery, Borges & Ambacher

Probate, Trust & Estate • Litigation • Administration Law Offices of

David B. Pastor • Free Consultation •

David B. Pastor

Attorneys Crystal Van Der Putten and David Burnett from Livingston Law Firm

CCCBA Member Since 1977

www.davidbpastor.com 1280 Boulevard Way, Suite 212 • Walnut Creek, CA 94595

925-932-3346 david@davidbpastor.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

33

2017 Member Information Series

The CCCBA’s 2017 Member Information Series features experts in short- and longterm financial planning in four informative presentations throughout the summer.

The fee for all presentations is $15 for CCCBA members, $10 for Barristers and law students, $20 for non-members.

1. Maximizing Your Social Security Benefits

2. Understanding Retirement Healthcare

Tuesday, June 27 | 12 Noon - 1:30 pm | CCCBA Conference Rm., 2300 Clayton Rd., Suite 510, Concord | Lunch will be provided

Wednesday, July 19 |12 Noon - 1:30 pm | CCCBA Conference Rm., 2300 Clayton Rd., Suite 510, Concord | Lunch will be provided

Most of us are paying into Social Security but know little about how to utilize our benefits, which can be worth over $1 million for a couple retiring today. The most commonly used strategy of starting benefits at age 62 may not be optimal. Yet, misperceptions about the program often lead people to make that choice.

Research shows that a couple, both aged 65 and retiring this year, can expect to spend an estimated $260,000 on healthcare throughout retirement. That’s a staggering statistic. This workshop will address shifting our retirement planning focus from accumulation or saving to distribution or spending. Then we will discuss the 5 steps in the healthcare planning process and finally close with discussing what are the next steps you can take.

Learn to avoid mistakes, to maximize your benefits and optimize your timing. Find out about the three streams of Social Security benefits.

Presented by: JP McDermott MBA, CLTC

Presented by: John Burns, FSA, CFP®, RICP® Principal Michelle Soto, CFP®, CDFA™ T 925.949.7423 jpmcdermott@financialguide.com www.advisors.massmutual.com/jp-mcdermott T 415.781.8535 www.BOSINVEST.com

CA Insurance License #0G32564

3. Student Loan Debt Repayment Strategies

4. The Smart Consumer: A Bullet-Train Presentation on Identity Theft, Credit Bureaus, Collections and More

Tuesday, August 8 | 6:00 pm - 7:30 pm | CCCBA Conference Rm., 2300 Clayton Rd., Suite 510, Concord | Dinner will be provided Student Debt Now: What do I do?

Student Debt Soon: How to make it a good idea!

IBR, REPAYE? Consolidation? Forgiveness? Refinance?

Come learn strategies around: – What repayment program is right for me?

– Purchase a home or attack the debt?

– The impact of skipping retirement contributions from year to year – What are the most efficient ways to save money for the future?

– How do I protect myself and family along the way?

Tuesday, August 29 | 12 Noon - 1:30 pm | CCCBA Conference Rm., 2300 Clayton Rd., Suite 510, Concord | Lunch will be provided The title says it all! Get the real untold stories about the pressing and yes, sometimes confusing issues and entities we as consumers face every day. Your consumer savvy will hit new heights after this program.

Presented by: Michael R. Meinert

Presented by: Jimmy Diehl, MBA,CFBS® and Wesley Yamada T 925.708.6223 www.meinertlaw.com T 925.979.2308 www.furstnergroup.com

Calendar

Upcoming Events | Overview July 13 | CCCBA CCCBA Happy Hour Gathering more details on page 36

July 13 | Estate Planning & Probate Section Mentoring Group Meeting

more details on page 36

July 18 | Women’s Section Women’s Section Happy Hour more details on page 36

July 19 | CCCBA Member Information Program Understanding Retirement Heathcare

August 8

August 29 | CCCBA Member Information Program The Smart Consumer: A Bullet-Train Presentation on Identity Theft, Credit Bureaus, Collections and More more details on pages 34 and 37

September 14 | Intellectual Property Section Mix, Mingle & MCLE with the Intellectual Property Section more details on page 37

September 15 | Immigration Section

Update on Immigration Laws and the Issue of Unaccompanied Minors more details on page 37

more details on pages 34 and 36

September 28 | Alternate Dispute Resolution Section

| CCCBA Member Information Program

Mediating with Self-Represented Litigants - 2017

Student Loan Debt Repayment Strategies more details on pages 34 and 36

August 15 | Women’s Section Women’s Power Lunch

more details on page 36

August 17 | CCCBA CCCBA Happy Hour Gathering more details on page 37

more details on page 37

September 28 | CCCBA BAR FUND BENEFIT in Support of the Social Justice Collaborative more details on pages 31 and 37

November 17 | CCCBA 23rd Annual MCLE Spectacular more details on page 39

Estate Planning Symposium, May 2

The Estate Planning & Probate Section’s annual Symposium tied in with the May issue of the Contra Costa Lawyer. Pictured right, Nathan Pastor, with author Shara Beltramo and Guest Editor and the leader of the Estate Planning Section Virginia George.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

35

July 13

| CCCBA

CCCBA Happy Hour Gathering Join your CCCBA friends for this casual, no host event, where CCCBA Board Members and Section Leaders will gather together with CCCBA members in a relaxed, happy hour setting to socialize. Don’t expect anything formal like name tags or check-in tables. Instead come when you can, grab a beverage, and find us on the patio or in the bar area. A gathering of the CCCBA, big or small, is typically hard to miss. We can’t wait to see you.

Time: 4:30 pm – 7:00 pm Location: Metro, 3524 Mt. Diablo Blvd., Lafayette, CA More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

July 13

| Estate Planning & Probate Section

Mentoring Group Meeting CCCBA members are invited on the second Thursday of the month to a meeting with mentors of the Probate Section to discuss issues of general interest or concern. The mentors would like to know what’s on your mind and will offer some practical feedback provided by practicing attorneys from all areas of practice within the probate section. Please submit discussion topics and questions in advance via email to Deborah Moritz-Farr at dfarr@thalaw.com. Efforts will be made to include all suggested topics, however, due to time limitations, topics identified by more than one member will be prioritized. Bring your brown bag lunch.

July 18 | Women’s Section Women’s Section Happy Hour Come to the Women’s Section Happy Hour and get to know other CCCBA members and build your professional relationships.

The RSVP is only to give us a general headcount. If you find, at the last minute, that you’re free and haven’t emailed, please come!

This is a no-host Happy Hour!

Time: 5:00 pm – 7:00 pm Location: Corners Tavern Restaurant and Bar, 1342 Broadway Plaza,Walnut Creek CA RSVP: Please email Ariel Lee at Ariel@BrownellLegal.com

Time: 12 Noon – 1:15 pm

Save the Date: Join us for our next Happy Hour on November 14th at Stanford’s.

Location: Turner, Huguet, Adams & Farr, 838 Escobar Street, Martinez, CA

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

RSVP: Online at www.cccba.org/attorney/calendar

July 19 | CCCBA Member

Information Program

Understanding Retirement Healthcare Speaker: J.P. McDermott – MBA, CLTC, Financial Planner, Mass Mutual Research shows that a couple, both age 65 and retiring this year, can now expect to spend an estimated $260,000 on healthcare throughout retirement. That’s a staggering statistic. This workshop will address shifting our retirement planning focus from accumulation or saving to distribution or spending. Then we will discuss the 5 steps in the healthcare planning process and finally close with discussing what are the next steps you can take.

Time: 12 Noon – 1:30 pm Location: CCCBA 5th Floor Conference Room, 2300 Clayton Rd., Suite 510, Concord, CA Cost: $10 Barristers, Law Student Section members, $15 CCCBA members, $20 nonmembers RSVP: Online at www.cccba.org/attorney/calendar

36

JULY 2017

August 8 | CCCBA Member

Information Program

Student Loan Debt Repayment Strategies Speakers: Jimmy Diehl – Managing Partner The Furstner Group, MBA, CLTC

Wes Yamada – Managing Partner

Student Debt Now: What do I do?

Student Debt Soon: How to make it a good idea!

IBR, REPAYE, Consolidation, Forgiveness?

Refinance? It’s simply not that easy… come learn strategies.

Time: 6:00 pm – 7:30 pm Location: CCCBA 5th Floor Conference Room, 2300 Clayton Rd., Suite 510, Concord, CA Cost: $10 Barristers and Law Student Section members, $15 CCCBA members, $20 nonmembers RSVP: Online at www.cccba.org/attorney/calendar More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

August 15 | Women’s Section Women’s Section Power Lunch What is a Women’s Section Power Lunch?

Think LinkedIn but over lunch. The Women’s Section Power Lunch is an opportunity to meet and build professional relationships.

The RSVP is only to give us a general headcount. If you find, at the last minute, that you’re free and haven’t emailed, please come!

Parking garage next door. Variety of food choices and meal sizes. Pay for self, no registration, no split checks.

Time: 11:30 am – 1:00 pm Location: Tender Greens, 1352 Locust St., Walnut Creek CA RSVP: Please email Ariel Lee at Ariel@BrownellLegal.com More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Aug. 17 | CCCBA CCCBA Happy Hour Gathering Join your CCCBA friends for this casual, no host event, where CCCBA Board Members and Section Leaders will gather together with CCCBA members in a relaxed, happy hour setting to socialize. Don’t expect anything formal like name tags or check-in tables. Instead come when you can, grab a beverage, and find us on the patio or in the bar area. A gathering of the CCCBA, big or small, is typically hard to miss.

We can’t wait to see you.

Time: 4:30 pm – 7:00 pm Location: Salute e Vita Ristorante, 1900 Esplanade Dr., Richmond, CA More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Sept. 15 | Immigration Section Update on Immigration Laws and the Issue of Unaccompanied Minors Speaker: Hon. Carol King, (Ret.) Please join the Immigration Section as Judge King presents an overview of the current issues in Immigration Law and discusses how the courts are handling unaccompanied minors in the Immigration, Family and Juvenile courts. Thanks to the ABA for a grant for this program.

Aug. 29

| CCCBA Member Information Program

The Smart Consumer: A Bullet-Train Presentation on Identity Theft, Credit Bureaus, Collections and More Speaker: Michael Meinert, Consumer Attorney Get the real untold stories about the pressing and yes, sometimes confusing issues and entities we as consumers face every day. Your consumer savvy will hit new heights after this program.

Time: 12 Noon - 1:30 pm Location: CCCBA 5th Floor Conference Room, 2300 Clayton Rd., Suite 510, Concord, CA Cost: $15 CCCBA members, $10 Barristers and law students, $20 non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Sept. 28 | Alternative Dispute Resolution Section

Mediating with Self-Represented Litigants - 2017 Speakers: Hon. Barry Goode

Ron Mullin, Esq.

Malcolm Sher, Esq.

Location: CCC DA’s Office Community Room, 900 Ward St., Martinez (Entrance on Court St.)

This program is required for mediators wishing to mediate under the Superior Court sponsored ADR program and will be offered once in 2017 by CCCBA. Judge Goode, Ron Mullin and Malcolm Sher will discuss the unique challenges of mediating a dispute with one or more self-represented litigants.

Bring Your own Brown Bag Lunch.

MCLE: 1 hour General credit

Time: 11:45 am – 1:30 pm

Cost: Free for Immigration Section members and Judges, $10 CCCBA members, $5 for law students

Location: Judge Goode’s Courtroom, Dept. 17, Wakefield Taylor Courthouse, 725 Court St., Martinez, CA

Registration: Online at www.cccba.org/attorney/calendar

MCLE: 1 hour General, 0.5 Legal Ethics credit

Time: 12 Noon - 1:30 pm

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Cost: $10 for ADR Section members, Barristers and Law Students, $15 CCCBA members Register: Online at www.cccba.org/attorney/calendar

Sept. 14 | Intellectual Property Section

Mix, Mingle and MCLE with the Intellectual Property Section SAVE THE DATE! Speaker: To Be Announced Please join the Intellectual Property Section for a timely and informative MCLE presentation. After the presentation, you are invited to attend a hosted cocktail mixer and to do some mingling as well.

Time: 12 Noon – 1:15 pm Location: Kilpatrick Townsend & Stockton LLP, 2175 North California, Suite 600, Walnut Creek, CA MCLE: 1 hour General credit Register: Online at www.cccba.org/attorney/calendar More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Sept. 28 | CCCBA BAR FUND BENEFIT in Support of the Social Justice Collaborative This year we will be fundraising for the Social Justice Collaborative’s programs in Contra Costa County For the past 29 years, Contra Costa County Bar Association’s BAR FUND has been proudly raising awareness of the need for pro bono legal services for low income members of our community. Each year, CCCBA members come together to learn about and support a worthy group.

Time: 5:30 pm – 8:00 pm Location: Lafayette Veteran’s Memorial Hall, 3780 Mt. Diablo Blvd., Lafayette, CA Registration Information available in late July www.cccba.org/attorney/calendar Sponsorships are being accepted now. Contact Theresa Hurley, at thurley@cccba.org or (925) 370-2548.

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

37

Classifieds

Contra Costa

.

Lawyer

has gone full color!

Color Ads at black and white rates through 2017 only: Display Ad Print MEMBER Rates: Full page: 2/3 page: 1/2 page: 1/3 page: 1/6 page: Business card: 1/12 page:

$ 550 $ 500 $ 415 $ 350 $ 215 $ 165 $ 125

Walnut Creek, Two window offices available in a 9 attorney

suite. Both offices are furnished and have available legal assistant cubicles. The offices are on the 2nd floor of a handicappedaccessible building which offers free parking. Rent includes access to the high speed copier (pay by page), internet, wireless, phone system and cable. Also available are coffee/tea/soda services and conference rooms. $1100 per office.

Call Neil at (925) 279-3433.

BEAUTIFUL WALNUT CREEK OFFICE SPACE AVAILABLE

Call Carole Lucido at (925) 370-2542 or email clucido@cccba.org.

Beautiful offices w/ 7 solos. Networking poss. Single story converted house w/ pillars, built in’s, FP, molding, kit., conf rm, lg treed rear deck, etc. Corner w/ skylight & built-ins. Perfect for working hard and relaxing at end of long day! Very congenial.

No smoking. Call Paul at (925) 938-8990.

Probate paralegal to attorneys Joanne C. McCarthy. 2204 Concord Blvd.

Concord, CA 94520. Call (925) 689-9244.

advertisers index Acuna Regli . . . . . . . . . . . . . . . . . . . . . 30

Mitchell & Mitchell Insurance . . . . . . . 24

ADR Services . . . . . . . . . . . . . . . . . . . 14

Morrill Law Firm . . . . . . . . . . . . . . . . . . 9

David A. Arietta . . . . . . . . . . . . . . . . . . 4

Novak Wealth Management . . . . . . . . . 2

Barr & Young Attorneys . . . . . . . . . . . . 7

David B. Pastor . . . . . . . . . . . . . . . . . . 24

Braverman Mediation & Consulting . . 26

Pedder, Hesseltine, Walker & Toth, LLP . . . . . . . . . . . . . . . . . . 11, 27

Bray & Greenwood . . . . . . . . . . . . . . . 11 Diablo Valley Reporting Services . . . . 40 Ferber Law . . . . . . . . . . . . . . . . . . . . . . 7 Robert B. Jacobs . . . . . . . . . . . . . . . . . 29 Landmark Valuation . . . . . . . . . . . . . . 20 Lenczowski Law Offices . . . . . . . . . . . . 6

38

CONFERENCE ROOM AVAILABLE

JULY 2017

Candice Stoddard . . . . . . . . . . . . . . . . 18 Trustcare Fiduciary Services . . . . . . . . 16 Lisa M. West . . . . . . . . . . . . . . . . . . . . 32 Michael J. Young . . . . . . . . . . . . . . . . . 30 Youngman Ericsson Scott . . . . . . . . . . 27 Zandonella Reporting Service . . . . . . 33

CCCBA members receive a discount on renting the conference room at the CCCBA office in Concord. Rent by the hour or by the day for client meetings, negotiations or other small group sessions. Convenient location near Concord BART. For information call Barbara Arsedo at the Contra Costa County Bar Association at (925) 370-2544 or barsedo@cccba.org.

notary service CCCBA members are eligible for free notary service at the CCCBA office in Concord. Call Carole Lucido at (925) 370-2542 or clucido@ cccba.org or Barbara Arsedo at (925) 370-2544 or barsedo@cccba.org for an appointment.

Lorin Bender Roksana Bidgoli Aaron Cargain Maxwell Eberitzsch Nicole Fassonaki Mikie Gildea Bruce Gerstman Aaron Gothelf Melissa Grant Catherine Healy Zahra Imani Hesan Rachel Holmes Sarah Jacobvitz Diane Johnson Christopher Larson

Anthony Lebe Scarlett Leiva Jennifer Lucas Julia Lum Edward Mario Betsey McQuarrie Cary McReynolds James Miller Tariq Mojaddidi Barry Morris Erin Myers Brooke Okland Keith Patterson Mareike Perez Andrew Quan

Elena Ramirez Rachel Rosenfeld Angela Rowen Martin Sances Robert Schwartz Morgan Simpson Bryan Tierney Cammila Valerio Tessa Weeks Jeffrey Weil Caitlin Wiley Margot Williams Ann Wrixon Alay Yajnik Nadia Yakoob Minna Yang

Event Benefactor

PROUDLY PRESENTS

JAMS

23rd Annual

MCLE Spectacular!

Friday, November 17, 2017 Breakfast Kickoff Speaker

Event Patrons ADR Services, Inc. Judicate West Friday November 17, 2017

Cynthia McGuinn

Walnut Creek Marriott | 2355 N. Main Street

Walnut Creek, Marriott Hotel

Rouda, Feder, Tietjen & McGuinn American Board of Trial Advocates - ABOTA President-Elect

Plus up to 7 morning

Luncheon Keynote Speaker

Congressman

and afternoon breakout sessions to choose from.

U.S. Representative from California's 15th Congressional District

New this year –

Eric Swalwell

Afternoon Plenary Speaker

TBD

Event Partners Certified Reporting Services FINDLAW Mitchell & Mitchell Insurance Contact Anne K. Wolf for Sponsorship Opportunities (925) 370-2540, awolf@cccba.org

an evening cocktail party!

EARN UP TO 8 MCLE CREDITS INCLUDING THE HARD-TO-GET ONES!

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

39

Deposition Reporting in Contra Costa County since 1986

Trusted with the Bay Area’s most complex cases, Diablo Valley Reporting Services has been part of the legal landscape for more than 30 years.

Contra Costa County attorneys have come to rely on DVRS as a firm that is large enough to handle the most challenging cases, but small enough to provide the utmost in personal and professional service.

• • • • • •

Proud to Partner with Some of the Area’s Best Certified Shorthand Reporters Leading Technology Personal Service and Delivery Deposition Suites and Conference Rooms Available Centrally Located in Downtown Walnut Creek, near BART A Loyal Supporter of the Contra Costa County Bar Association for Three Decades

2121 N. California Blvd., Suite 290, Walnut Creek, CA 94596 • dvrs2121@yahoo.com

40

DIABLO VALLEY REPORTING SERVICES

JULY 2017

925.930.7388