Contra Costa Lawyer - March 2020 - The Employment Law Issue

Contra Costa

Lawyer Volume 33, Number 2 | March 2020

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Contra Costa 2020 BOARD of DIRECTORS Oliver Greenwood President Nicole Mills President-Elect Mika Domingo Secretary Dorian Peters Treasurer James Wu Past President Gina Boer David Erb Mark LeHocky David Marchiano Ericka McKenna Cary McReynolds

Craig Nevin David Pearson Michael Pierson David Ratner Summer Selleck Qiana Washington

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org

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Lawyer Volume 33, Number 2 |March 2020

The official publication of the

features Language Matters, by Beth Mora . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Shining a Light on Sex Harassment and Discrimination Settlements,

by Mark LeHocky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Doing the Right Thing: Avoiding the Risks Inherent in Correcting Misclassification of Independent Contractors, by Yen Chau and Marta Vanegas. . . . . . . . . . . . . . . 11 Work Made For Hire: Effect on Copyright and Employment Laws in the Tech and Entertainment Industries After Dynamex and AB 5,

by Natasha Chee and Marta Vanegas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Are You Competent? What Labor & Employment Attorneys Need to Know About Criminal Law, by Terry Leoni. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Employment Arbitration Agreements: Recent Supreme Court Cases and the Current Legal Landscape in California, by Aaron Langberg, MCLE Self Study. . . 25 Three Additional Important California Employment Law Changes in 2020, by James Wu. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

COLUMNS 4

INSIDE: A 2020 View of Employment Law, by James Wu, Guest Editor

15

Coffee Talk

29 Adventures with Attorneys

NEWS & UPDATES 5

Increases to California Minimum Wage and White Collar Exemption Salary Test

21

PHOTOS: Lunar New Year

22-23 PHOTOS: Annual Installation Luncheon and Diversity Awards The Contra Costa Lawyer (ISSN 1063-4444) is published 11 times in 2020 – five times onlineonly – 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.

30

Diversity Networking Mixer

32

What You Missed in the February Issue

33

Classified Advertising

33 Advertiser Index 34-37 Calendar 38

2020 Sustaining Firms

39

2020 Education Series: Your Law Practice Roadmap

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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INSIDE A 2020 View

of Employment Law

by James Wu, Guest Editor

“Gig workers,” “#metoo,” “nonbinary,” “mandatory arbitration,” “misclassification,” “ban-the-box,” “leaves of absence,” and “no-rehire,” are just some of the buzzwords and concepts tackled by our fantastic authors this month: Yen Chau, Natasha Chee, Aaron Langberg, Mark LeHocky, Terry Leoni, Beth Mora and Marta Vanegas.

“Employment law” is not just a practice area for attorneys. Employment law permeates all facets of society and culture. This issue of the Contra Costa Lawyer magazine focuses on practical and forwardthinking concepts and strategies for those who are already sophisticated employment law attorneys, as well as those who are new to, or only dabble in, employment law.

For example, “#metoo” has provided the momentum for numerous California legislative changes in the past two years, including but not limited to, the following: • Extended to three years: the California deadline to file claims with the Department of Fair Employment and Housing • Expanded sexual harassment training for employers 4

MARCH 2020

• Additional implicit bias training for courts and attorneys • Confidentiality and “no-rehire” provisions in settlement agreements • Required gender representation on boards of public companies • More comprehensive requirements for workplace lactation accommodations • Recognition that California is a non-binary state While we do not tackle all of these topics in this magazine, Mark LeHocky and Beth Mora have provided excellent articles that delve into some of these issues in mediation, and in the workplace. Beth’s article titled “Language Matters,” in particular, contains important definitions and information all of us should consider for use in and beyond the workplace.

No employment law themed magazine in 2020 would be complete without an article focused on AB 5 independent contractor vs. employee classification. The law is somewhat controversial and confusing. Yen Chau, Natasha Chee and Marta Vanegas have dissected the law and

written articles that tackle strategies for dealing with AB 5 and “misclassification.”

Another quickly evolving area of the employment law surrounds arbitration agreements. First-time author Aaron Langberg analyzes California’s law and hostility towards such agreements, and the current (as of late January 2020) status of that law.

Read Aaron’s article and take the MCLE Self Study test to earn one general MCLE credit.

Finally, Terry Leoni’s article is another great example of the ubiquitous nature of employment law topics, and how employment law and criminal law mesh in many areas, including the relatively new “ban-the-box” law, leaves of absences for victims of crime, and other cross-over issues.

In addition to each author, I would like to thank David Ratner for his role in reviewing and editing the articles. David is also serving as the 2020 Section Leader for the Employment Law Section, and I look forward to seeing the section thrive in 2020. Stay tuned for more news, MCLE programs, and social events from your CCCBA Employment Law Section members.

Increases to California Minimum Wage and White Collar Exemption Salary Test

$17

$16

$62,000

$16

$60,000

$15

$60,000

$15

White Collar Exemption

$58,000

$14

$56,000

$13

$54,000 $52,000

$12

$50,000

$11

$48,000

$10

1/1/2020

1/1/2021

annual salary

1/1/2022 hourly

White Collar Exemption

$64,000

California Minimum Wage

$17

$62,000

$64,000

$58,000

$14

$56,000

$13

$54,000 $52,000

$12

$50,000

$11

$48,000

1/1/2020

1/1/2021

annual salary

1/1/2022

California Minimum Wage

26+ Employees

Up to 25 Employees

$10

hourly

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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He/Him/His

Language

by Beth Mora

They/Them Theirs

MARCH 2020

Ze/Hir/Hirs

She/Her/Hers

MATTERS

The Contra Costa County workforce is diversifying – slowly beginning to reflect the society in which we operate in terms of race, gender, ability, ethnicity, age, class, spiritual practice, and sexual orientation. Even so, our communications often fail to recognize the diversity of the workforce, hence encouraging bias and discouraging inclusivity.

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My pronouns are...

California’s Fair Employment and Housing Act (Gov. Code §12940 et seq.) makes it illegal for an employer to fire, fail to hire, discriminate, or engage in harassment in any way against an employee because of gender, sexual orientation, gender identity, gender expression, or one who is or perceived to be transgender or gender non-conforming.

This includes to discrimination or harassment against an employee who indicates a pronoun that corresponds to their gender identity including refusing to acknowledge the indicated pronoun.

Language plays a critical role in how individuals interpret the work-

place, including how individuals think and behave. Even for the bestmeaning person, word choice can reflect unconscious assumptions and bias which can be interpreted as discriminatory. Engaging inclusive communication, is a simple task with endless rewards. Genderinclusive language enhances trust and confidence of employees while at the same time, combats unconscious prejudice that can harm an employee and potentially result in a claim of discrimination and harassment against an employer.

The following are a few initial steps that can be taken by individuals and employers to support gender inclusivity through language in the workplace.

Never Assume Someone’s Gender Identity Do not assume a person’s gender identity based on gender expression (e.g., behaviors and dress.) Word choice can unconsciously reinforce stereotypes and assumptions.

Ask yourself about unconscious assumptions and unconscious bias.

By refraining from making assumptions, such as giving a person an opportunity to share their pronouns, you demonstrate that you did not assume their gender identity based on appearance.

Offer Your Pronouns Gender inclusion can start by offering your own pronouns. (i.e.: Good morning, my name is Beth, my pronouns are she/her/hers.) By engaging this introduction, you are welcoming another to share their pronouns if they wish to do so, permitting the person to be seen for who they are. Pronouns can also be offered through other manners including an email/slack signature, staff directory, name tags and social media profiles.

Gender Neutral Language When engaging a written or verbal communication, avoid exclusionary forms of language. Look at your audience, an individual or a group of people whose pronouns you have not been told or is of mixgender, then assess your communication. To avoid exclusion as well as assumptions, it is best to use gender-neutral language at all times. For example, there is a wide range of gender-neutral greeting terms available including, “Good morning”, “friend(s),” “folks,” “all,” or “y’all.” Further, when possible use substitutions for work terms that begin or end with “man”, chairman v. chair, foreman v. supervisor, and Congressman v. member

of Congress. Womxn can also be used as an alternative spelling of woman which is inclusive of trans and nonbinary women, designed to avoid suggestions of sexism perceived in the sequences of “man” and “men.”

Education & Training Appreciating and respecting diverse pronouns and gender identities is a small, though some argue a significant first step toward inclusivity.

These steps should be conducted with careful thought. For example, the offer to share pronouns must always feel and be optional. Further, a person’s pronouns can change over time and they may change based on context as well. Below is a preliminary list of terms to aid in initial education efforts. Workplace training and assessment of the employer’s practices about gender, gender inclusivity and gender literacy should be engaged by qualified professional. Coupled with proper training, employees should know and understand the employer’s policy, that it is in place and will be enforced.

Terms Cisgender:

A person whose gender identity and expression are aligned with the gender they are assigned at birth.

Gender:

A set of cultural identities, expressions and roles – codified as feminine or masculine – that are assigned to people based upon interpretations of their bodies, and more specifically, their sexual and reproductive anatomy. Since gender is a social construction, it is possible to reject or modify the gender one is assigned at birth, and to develop, live and express a gender that feels truer and just to oneself.

Gender Binary:

A socially constructed system of viewing gender as consisting solely of two categories, “male” and “female,” in which no other possibilities for gender are believed to exist. The gender binary is a restrictive and inaccurate way to view gender because it does not take into account the diversity of gender identities and gender expressions among all people. The gender binary is oppressive to anyone that does not conform to dominate societal gender norms.

Gender Expression:

The multiple ways (e.g., behaviors, dress, etc.) in which a person may choose to communicate gender to oneself and/or to others.

Gender Identity: A personal

conception of oneself as male, female, both, neither and/or another gender. Gender identity can be the same as or different from the gender a person is assigned at birth. Gender identity is a matter of self-identification; no one can tell anyone else how to identify or what terms to use. Gender identity is different from sexual orientation, and everyone has both gender identity and a sexual orientation.

Gender Non-binary:

An umbrella term for gender identities used by people whose gender is no exclusively male or female.

Gender Nonconforming:

A descriptive term and/or identity of a person who has a gender identity and/or expression that does not conform to the traditional expectations of the gender they are assigned

Continued on page 8 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Language Matters Continued from page 7

at birth. People who identify as “gender nonconforming” or “gender variant” may or may not also identify as “transgender.”

Pronouns: The pronouns or set

of pronouns that a person identifies with and would like to be called when their proper name is not being used. Examples include “she/her/hers,” “he/him/ his,” “ze/hir/hirs,” and “they/ them/theirs.”

Some people prefer no pronouns at all.

Transgender:

An umbrella term describing people whose gender identity does not match the gender they were assigned at birth.

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MARCH 2020

The above steps will not hold true for every person and every situation, though they are worth considering as individuals, employees and employers work towards gender equity in language. There are immeasurable benefits to implanting language gender equality policies in the workplace including fostering a positive work environment for all.

As you consider how to implement gender equity in language into your daily life, consider the words of Philosopher, Ludwig Wittgenstein, “The limits of my language means the limits of my world.”

Attorney Beth W. Mora at MORA EMPLOYMENT LAW, is dedicated to representing victimized employees.

She is a zealous and skilled advocate for those facing a wide range of employment law issues. Ms. Mora is committed to aggressively pursuing her clients’ best

interests while treating each person she serves with integrity and compassion.

1. Workplace guidelines for attorneys extend beyond the FEHA. In October 2018, the California Supreme Court revised the Judicial Code of Ethics to include gender identity and gender expression as protected characteristics that cannot be used to harass, discriminate against or harbor bias against any person. The next month the California State Bar released its amended ethical rules for attorneys with a similar revision.

2. Recognizing the importance of gender inclusivity and literacy, companies are joining this important conversation and movement including the following who have made changes in their workplaces: TIAA launched genderidentity awareness guidelines; Intuit introduced an optional pronoun field for employees in their Slack profile; and, Workday whose clients include Amazon, Target, IBM and Bank or America, added to their profiles 20 options for pronouns and gender identities. “The End of Pronoun Presumption, Those she/her/hers at the end of email messages are more than a passing trend.”

Qaurtz at Work. By, Lila MacLellan, June 24, 2019 https://qz.com/work/1647596/genderpronouns-in-the-workplace-are-not-a-passingtrend/ 3. GLSEN Pronouns: A Resource, Supporting Transgender and Gender Nonconforming (GNC) Educators and Students https://www.glsen.org/ sites/default/files/GLSEN%20Pronouns%20 Resource.pdf

Shining a Light on Sex Harassment and Discrimination Settlements:

The Collective Benefits from California’s Recent Secret Settlement Restrictions

by Mark LeHocky Recently enacted limitations on confidentiality in sexual harassment and sex discrimination settlements embodied in California’s Stand Together Against Nondisclosure (STAND) Act largely eliminate secret settlements that have historically kept survivors of harassment, assault and discrimination from revealing the details of their cases. Propelled by the Me-Too Movement and the alleged abusive behavior of Roger Ailes, Bill O’Reilly, Harvey Weinstein, Steven Wynn and too many others, California last year enacted Code of Civil Procedure (CCP) §1001.

As discussed here, CCP §1001 and related new laws have altered the landscape for assessing and mediating sexual harassment and sexual assault claims, with benefits to both employees and employers who act promptly and thoughtfully.

Increased incentives to mediate early CCP §1001, effective January 1, 2019, prohibits and makes void as a matter of law provisions of settlement agreements that prevent the disclosure of factual information concerning sexual harassment, assault, discrimination, or retaliation for reporting these claims. CCP § 1001 allows for confidentiality of only the settlement amount, and, if requested by the claimant, the claimant’s identity.

Notably, CCP §1001 confidentiality provisions apply only where the claimant has filed a claim with an administrative agency or in court.

Where neither a DFEH/EEOC

complaint nor a lawsuit has been filed, settlement confidentiality may be preserved.

Concerns about confidentiality and adverse publicity may have prompted some employers to mediate and settle sex harassment cases before CCP §1001 took effect.

Anecdotally, it appears that more cases are being mediated pre-filing, which may be triggered at least in part by the new laws discussed here.

If CCP §1001 has led more employers to mediate pre-litigation, the overall benefits of doing so may well eclipse confidentiality considerations, particularly where a substantial claim has been asserted. It is sad but often true that individuals accused of sex harassment or discrimination – let

Continued on page 10

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Shining a Light

Continued from page 9 alone assault – deny the conduct alleged, leaving some employers and insurers to conclude that the claims lack merit. Yet all the more reason to promptly and fully assess the disputed claims aided by a neutral trained to take a dispassionate yet hard look at conflicting assertions, corroborating evidence, and the risks for all concerned of a fully litigated course.

Indeed, the slew of headlines describing alleged repeated predatory behavior by prominent figures pointedly make the case for promptly uncovering and remedying – rather than burying – claims of harassment, assault, discrimination and any related retaliation. A problem buried is often a problem likely to recur, which harms everyone.

Other limits on confidentiality restrictions Even as to pre-filing settlements, California law now forbids restrictions on a person testifying in other proceedings about alleged sexual harassment or criminal acts. Also enacted as of January 1, 2019, Civil Code §1670.11 declares void any provision in a settlement agreement or contract that purports to waive a person’s right to testify

about alleged sexual harassment or criminal conduct when that person has been lawfully compelled or requested to do so. Hence, even more reason to thoroughly and promptly investigate and end any impermissible conduct.

“No-rehire” provisions are no longer lawful with one exception As also relevant here, Governor Newsom recently signed into law AB 749, which forbids employers from including a “no-rehire” provision in a settlement agreement.

As of January 1, 2020, employers may not, as part of a settlement, prohibit or restrict a settling employee who has filed a claim or internal complaint from seeking employment with that employer or its affiliates.

Notably, AB 749 permits, as one exception, a no-rehire provision in a settlement agreement with employees accused of sexual harassment or sexual assault if the employer has made a good faith determination that the accused employee has engaged in the alleged conduct. This exception appears intended to protect employers who thoroughly investigate claims of sex

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Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

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MARCH 2020

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harassment or sexual assault and conclude that accused employee should not be re-hired, let alone retained, following that investigation and determination.

A word of caution: None of AB 749’s exceptions should be read too broadly or lightly, lest employers face additional litigation over whether they adequately investigated and acted in good faith. But taken together, these laws empower employers as well as employees to promptly shine a light on, and for employers to take appropriate steps to remedy, alleged acts of sex harassment and discrimination.

A former litigation attorney and former public company general counsel, Mark LeHocky is a mediator and arbitrator with ADR Services, Inc., who handles individual and class employment claims, intellectual property, business, insurance, contract, and individual and mass torts. Mark has repeatedly been voted a Best Lawyer in America for Mediation by Best Lawyers©, and also teaches on the intersection of law, risk and business decision-making at UC Berkeley’s Haas Graduate School of Business. See www.marklehocky.com.

1. AB 749’s other exceptions permit (a) employers and employees to mutually agree to terminate a current employment agreement in the absence of any pending legal claim, internal complaint or grievance, and (b) employers to refuse to employ or rehire an employee if there is a legitimate, non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the employee.

Doing the Right Thing:

Avoiding the Risks Inherent in Correcting Misclassification of Independent Contractors

By Yen Chau and Marta Vanegas So much has already been written about AB51, and yet, so much more is left to discuss. Many articles have been written on the overbreadth of the new law, many questions posed as to the exemptions seemingly arbitrarily granted for certain workers, and many news pieces on the costly impact to California businesses, such as the darkened curtains of local symphony orchestra non-profits2.

Lately, coverage of AB5 has shifted to legal challenges to the law.

($15.60 in 2021), in reality, drivers could receive as little as $5.64 per hour – a non-livable wage5.

First came the truckers, soon after Uber and Postmates and, last but certainly not the least, the freelance journalists3. California businesses and their attorneys are waiting with bated breath to see how those lawsuits play out. Others are exploring how to gain exemptions in 2020. Uber, Lyft, and Doordash have pooled together a reported $90 million dollar fund to push through a ballot measure that allows app-based drivers to remain classified as independent contractors despite AB54.

Also in the news is the state of New York, which in addition to following California’s lead, is contemplating a compromise third worker category – the “dependent worker,” an independent contractor with limited employment rights, such as the right to unionize, strike, and demand minimum wage6. This year (and the next few to come) will certainly bring changes to the worker classification landscape. Whether the changes will be big, small, good, or bad, or maybe all of the above, we can only wait to see.

The UC Berkeley Labor Center reports that, although the planned ballot initiative claims to guarantee drivers 120% of the minimum wage

Meanwhile, however, employment lawyers are advising their clients as best they can. And one of the most common questions asked is: “How

do we convert independent contractors to employees?”7 This question is, or should be, immediately followed up with: “Can we get a [prophylactic] release?”—as in a release of claims arising from the prior misclassification of the worker.

This is a tricky question.

First, the relatively new California Government Code section 12964.58 prohibits an employer from requiring an employee to sign a release as a condition of employment or continued employment.

Knowing California courts’ stance on the employee’s relative bargaining power9, it is highly risky to state that such a release is not, at least implicitly, a condition of continued employment. Releases under that section allow only “a negotiated settlement

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Doing the Right Thing Continued from page 11

agreement to resolve an underlying claim under this part that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process.”

Because this provision is in the Government Code, and AB5 only extended the Supreme Court’s Dynamex decision10 to cover the definition of “employee” in the Labor and Unemployment Insurance Codes11, an otherwise misclassified independent contractor is, arguably, not an “employee” covered under Government Code Section 12964.5; and, therefore the parties may freely enter into a release agreement.12 A safer approach is, however, to operate under the assumption that the worker was most likely misclas-

sified, because the retroactive “ABC” test, now codified by AB5, is almost impossible to satisfy in most circumstances. Most employers understand that, if their contractor is an integral part of their business, then that worker fails the “B” prong of the ABC test.13 If so, then the worker may be entitled to the protections of Section 12964.5, and a release obtained in the course of converting the independent contractor to employee would not be valid.

Additionally, Labor Code section 206.5 prohibits the release of a claim for “wages due” unless “payment of those wages has been made.”

California courts have held that the enforceability of agreements to release claims for Labor Code violations turns on whether a bona fide dispute over the employee’s past wages exists.14 Perhaps then, the only avenue for an enforceable release is for the company to notify its workers of

the potential misclassification issue, thereby establishing “an underlying claim that has been filed by [the worker] … through [the] employer’s internal complaint process.15” In essence, the company would obtain a release very similar to a Pick Up Stixtype release16. Such releases must only release past claims and must not purport to exonerate the employer from future violations. And, as a settlement of a bona fide dispute, the release must not condition the payment of wages concededly owed on the release’s execution17.

An employer who misclassified workers in the past has a good chance of successfully establishing a bona fide dispute; either in the nature or amount of any wages owed (e.g., whether the misclassified worker has worked any overtime, as the hiring entity was likely not keeping time records for the independent worker), or whether any penalties were owed (non-compliant meal and rest breaks, inaccurate wage statements, etc.).

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To cover all bases, however, a release should explicitly exclude from its scope certain claims that are not susceptible to be waived or released by operation of law. Such non-waivable claims include any undisputedly due wages19; employee reimbursement and indemnification rights20; and the employee’s right to bring actions for wrongful death and personal injury against the employer in certain circumstances21.

Furthermore, an agreement between an employer and employee to work for less than minimum wage or not to receive overtime premium wages is void – the employee may still be entitled to receive the unpaid minimum wage and overtime, interest, and costs and attorney’s fees22. An employee who did not receive minimum wage may also recover liquidated damages in an amount equal to the unpaid minimum wages and interest23.

In misclassification claims, the independent worker often alleges to have worked such a large number of hours that the compensation received for the worker’s services falls to a rate below minimum wage. Compounding this issue, the minimum wage calculation must also take into account any un-reimbursed expenses incurred by the worker24.

Thus, the employer obtaining a release from an independent contractor should require the worker to represent and warrant the number of hours worked, and must ensure that the consideration paid to the worker is sufficient to cover any unpaid minimum wages and overtime compensation. Otherwise, the release is vulnerable, and the employer risks liquidated damages

and plaintiff’s attorney’s fees25. Due to these risks, entities desirous of enforceable releases that would likely not trigger an agency investigation or a lawsuit are advised to consult an employment attorney before executing such releases.

Yen Chau is an experienced employment attorney at Donahue Fitzgerald LLP. She provides expert employment advice, counseling, and litigation support to clients. Yen is an active member of the legal community, regularly presenting and authoring articles on current employment topics, and she is a former Section Leader of the CCCBA’s Employment Section.

Marta R. Vanegas is a shareholder at Martin & Vanegas, APC, practicing employment and business law, representing individuals and small businesses in trial courts and administrative proceedings.

She graduated from University of California, Davis School of Law. Contact her at martinvanegaslaw.com 1. AB 5: WORKER STATUS: EMPLOYEES AND INDEPENDENT CONTRACTORS, Chapter 296, 2019-2020 Session, September 19, 2019 (hereinafter “AB5”).

2. See, e.g., Shelley Henderson, Room with a View: Invasive AB 5, OC BREEZE, Jan. 2, 2020 (available at https://www.oc-breeze. com/2020/01/02/150260_room-with-a-viewinvasive-ab-5/, last accessed Jan. 21, 2020); Sarah Weber, Special Report from Californians for the Arts: AB5 and the Arts Industries, ACSO.org, Nov. 16, 2019 (available at https://www.acso.org/ index.php?option=com_dailyplanetblog&view=entry&year=2019&month=11&day=15&id=4 3:special-report-from-californians-for-the-artsab5-and-the-arts-industries, last accessed Jan. 21, 2020); Gabrielle Canon, California’s controversial labor bill has passed the Senate.

Experts forecast more worker rights, higher prices for services, USA TODAY, Sept. 11, 2019 (available at https://www.usatoday.com/story/ news/politics/2019/09/10/what-californias-ab5-means-apps-like-uber-lyft/2278936001/);

Carolyn Said, AB5 gig work bill: All your questions answered, SF CHRONICLE, Sep. 16, 2019 (available at https://www.sfchronicle.com/ business/article/AB5-gig-work-bill-All-yourquestions-answered-14441764.php).

3. See, e.g., John F. Kunstler et al., California Truckers Drive Challenge to Dynamex and AB 5, NAT’L LAW REVIEW, November 18, 2019 (available at https://www.natlawreview.com/ article/california-truckers-drive-challenge-todynamex-and-ab-5); Jennifer Carsen, Postmates, Uber challenge AB-5 in suit, HR DIVE, Jan. 3, 2020 (available at https://www.hrdive.com/news/ postmates-uber-challenge-ab-5-in-suit/569697/, last accessed Jan. 21, 2020); Suhauna Hussain, Freelance journalists file suit alleging AB5 is unconstitutional, LA TIMES, Dec. 17, 2019 (available at https://www.latimes.com/business/ story/2019-12-17/freelance-journalist-ab5-lawsuit).

4. See, e.g., Kate Conger, Uber, Lyft and DoorDash Pledge $90 Million to Fight Driver Legislation in California, NY TIMES, Aug. 29, 2019 (available at https://www.nytimes. com/2019/08/29/technology/uber-lyft-ballotinitiative.html?auth=logingoogle1tap&login=google1tap).

5. Ken Jacobs and Michael Reich, The Uber/Lyft Ballot Initiative Guarantees only $5.64 an Hour, UC BERKELEY LABOR CENTER BLOG, October 31, 2019 http://laborcenter.berkeley.edu/ the-uber-lyft-ballot-initiative-guarantees-only5-64-an-hour/ 6. New York State Dependent Worker Act (A.08343/S.06538) (available at https:// legislation.nysenate.gov/pdf/bills/2019/A8343); see also Rebecca Smith, New York State’s Dependent Worker Act falls short for gig workers, NATIONAL EMPLOYMENT LAW PROJECT BLOG, June 17, 2019 (available at https://www.nelp.org/news-releases/new-yorkstates-dependent-worker-act-falls-short-for-gigworkers/, last accessed January 21, 2020).

7. This process requires: 1) proper termination of any existing contractor agreement; 2) suitable messaging for the changes; and 3) proceeding with the company’s usual hiring practices.

8. Added Stats 2018, ch 955, § 4 (SB 1300), effective January 1, 2019.

9. See, e.g., Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 115 [99 Cal.Rptr.2d 745, 6 P.3d 669] (“[W]e must be particularly attuned to claims that employers with superior bargaining power have imposed one-sided, substantively unconscionable terms as part of an arbitration agreement.”); Ontiveros v. DHL Express (USA), Inc. (2008) 164 Cal.App.4th 494, 509 [79 Cal.Rptr.3d 471] (“The Court finds that in light of the multiple provisions that are substantively unconscionable, the agreement shows on its face an intent to impose upon Plaintiff, as the weaker party, an inferior forum that works to the employer’s advantage.”).

10. Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 232 Cal.Rptr.3d 1, 416 P.3d 1.

11. Lab. Code §§ 2750.3; 3351 (section 3351 extends the definition of “employee” under section 2750.3 to California’s workers compensation system only as of July 1, 2020).

Continued on page 15

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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 asked,

“What are some creative, non-traditional employee incentives that you recommend for employee recruitment or retention?”

Work from home a couple days a week. Bring your kids and pets to work. Home baked goods every week. Leave early to watch your kids school plays, sporting events, or just be with your family.

Matthew P. Guichard

I am not sure if this is I would love to offer new but we did a “beat the bosses” yoga or a massage therapist gym competition at our office so that we can all make sure we pay attention to our health and fitness (with a prize incentive--Jesse Gill won!). We are also engaging in “in house” services for employee enrichment/learning on healthy ways to address stress and other topics. Finally, we are beginning a new program regarding “compassion awareness” for improvement in handling client stress in order to help clients and develop awareness and feedback that also, in turn, becomes functional and healthy for the attorneys and our office team, as well.

coming in and giving a chair massage to my staff. We are all too stressed. I hope to make this a reality.

Marta R. Vanegas, J.D., LL.M.

Carin L. Johnson The Law Offices of Johnson & Johnson

Doing the Right Thing Continued from page 13

12. This obviously assumes that the company has not already been hit with a misclassification claim either in court or before an administrative agency, which the parties are clearly free to settle.

13. Dynamex, 4 Cal.5th at 961 (“[A] hiring entity must establish that the worker performs work that is outside the usual course of its business in order to satisfy part B of the ABC test.”)

14. See Watkins v. Wachovia Corp. (2009) 172 Cal. App. 4th 1576, 1587, 92 Cal. Rptr. 3d 409 (distinguishing between wage claims that are

“concededly due” from those wage claims where a bona fide dispute exists). Some may argue that the entire agreement may be void if it is in violation of section 206.5, but no court has granted such sweeping scope to the provision. A “severability cause” or “savings clause” is, nevertheless, always advisable.

15. Gov. Code § 12964.5.

16. Chindarah v. Pick Up Stix, Inc. (2009) 171 Cal.App.4th 796 [90 Cal.Rptr.3d 175] 17. Id. at 803.

18. Lab. Code § 2804.

19. Lab. Code § 206.5.

20. Lab. Code §§ 2800, 2802.

21. Lab. Code § 2803.

22. Lab. Code § 1194.

23. Lab. Code § 1194.2.

24. A failure to reimburse a worker for workrelated expenses may reduce that worker’s income below minimum wages, and be a basis for a constructive termination claim as well. See Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 828-829, 166 Cal.Rptr.3d 242 (employee was paid less than the minimum wage a result of paying for the gasoline and vehicle maintenance his schedule required).

25. These risks are in addition to potentially serious PAGA penalties that exceed the scope of this article. See generally, Lab. Code §§ 2698 et seq.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Work Made For Hire: Effect on Copyright and Employment Laws in the Tech and Entertainment Industries After Dynamex and AB5

By Natasha S. Chee and Marta R. Vanegas The “work made for hire” concept is deeply rooted in copyright law.

However, it may create unintended and unforeseen consequences regarding the creative worker’s classification under California’s Dynamex decision and AB51, especially for the tech and entertainment industries.

Federal copyright grants authorship and ownership of a work to the creating party or parties2. However, for any work made for hire created on or after January 1, 1978, the author and owner of the copyright is the employer or commissioning party3, if the work was (1) prepared by an employee in the scope of his or her employment, or (2) specially ordered or commissioned under one of nine listed categories4, which encompass works in music, film, literature, gaming, and other tech and entertainment fields.

The California Labor and Unemployment Insurance Codes classify workers as employees if they expressly agree in writing to create works made for hire as specified under federal copyright law5. A hiring entity may unwittingly misclassify an individual worker as an independent contractor and incur liability by failing to comply with certain requirements for employees, such as providing workers’ compensation insurance6; contributing to the Employment Development Department7; complying with administrative, reporting, and notice requirements8; reimbursement9 or providing overtime, wage and hour benefits, wage statements, 16

MARCH 2020

and sick leave10. Noncompliance may incur severe penalties, interest charges, fines, and possible misdemeanor charges11.

The legal landscape post-Dynamex and AB5 leans more sharply toward a finding of employee-status, making it more difficult to qualify as an independent contractor. As of January 1, 2020, AB512 codifies Dynamex13, deeming workers employees unless the worker meets the stringent “ABC test”14 or is statutorily exempt.15 While the statute exempts certain professions such as lawyers, accountants, graphic artists, fine artists, and grant writers,16 the vast majority of workers in the tech and entertainment industries are not so exempted. Cinematographers, screenwriters, animators, programmers, and content creators regardless of the distribution platform are not exempt under the statute.17 Moreover, still photographers and photojournalists are specifically precluded from exemption if their work is for a motion picture18. Individuals reclassified post-Dynamex as employees cannot be converted to independent contractors even if the statute provides them with an express exemption from employee status.19 One option is to eliminate the work made for hire provision from agreements and transfer ownership of copyright via conveyance or operation of law, such as through assignment or license20, however, this option may insufficiently protect the hiring entity’s copyright needs.

Congress created the right to terminate copyright transfers, super-

seding any contractual waivers or perpetuity terms21, and allowing for copyright ownership to revert to the original owner22. This termination right creates great risk, uncertainty, and a potentially unfavorable bargaining position if the work later becomes exceedingly valuable or is vitally integrated within an intellectual property framework.

Transfer of rights with the risk of termination and without a work made for hire provision may be an unsuitable option, as entertainment entities increasingly use their “back catalog” to generate revenue and film distribution agreements often contain lengthy terms of duration.

Another option for preserving work made for hire provisions in agreements while avoiding employee classification is to contract with a loan-out company specifically created for and managed by the creative worker. The loan-out company, usually formed for tax and liability purposes, essentially loans out the creative individual to the hiring entity. Under the Labor and Unemployment Insurance Codes only individuals, not entities, are considered employees, thus contracting with a worker’s loan-out company bypasses employee classification23. Under this scenario, the loan-out company is considered the employer of the worker, fulfilling the abovementioned requirements for its employee24. Although effective in preserving the work made of hire provision thereby protecting the hiring entity’s copyright, requiring workers to form and manage loanout companies to avoid employee classification may place too great a burden on workers, especially those of modest means.

Entertainment unions SAG-AFTRA, WGAW, IATSE, Hollywood Teamsters Local 399 and Laborers Local 724 expressed confidence in a joint letter that AB5 “is not directed at

[the entertainment] industry, and [they] do not believe it will trigger a change to industry practices” or affect loan-out companies25. Gigeconomy companies Uber, Lyft and Postmates, as well as commercial truck drivers have challenged the constitutionality of Dynamex and AB5, creating an uncertain landscape for these laws26. It would be prudent for hiring entities and individuals to consult with an experienced employment or entertainment attorney to ensure they understand their rights and obligations regarding work-for-hire provisions.

Natasha S. Chee is the principal at the Law Offices of Natasha S. Chee. Her practice focuses on Entertainment, Intellectual Property and Business Law. She works with producers, filmmakers, musicians, content creators and tech companies. She graduated from Santa Clara University School of Law and UCLA. To learn more: www.natashachee.com.

Marta R. Vanegas is a Shareholder at Martin & Vanegas, APC, practicing employment and business law, representing individuals and small businesses in trial courts and administrative proceedings. She graduated from University of California, Davis School of Law. Marta can be found at martinvanegaslaw.com.

1. Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903; AB5: Worker status: employees and independent contractors, Chapter 296, 2019-2020 Session, September 19, 2019 (hereinafter “AB5”).

2. 17 U.S.C. § 201.

3. Id. 4. 17 U.S.C. § 101.

5. Labor Code § 3351.5; Unemployment Insurance Code §§ 621, 686.

6. Labor Code § 3700 (requiring employers to secure workers’ compensation coverage).

7. See, e.g., California 2020 unemployment, disability and employment training tax rates and limits (November 8, 2019) 2019 Tax News Update 2001, https://taxnews.ey.com/news/20192001-california-2020-unemployment-disabilityand-employment-training-tax-rates-and-limits (last accessed January 13, 2020).

8. Notice to Employees: Unemployment Insurance/Disability Insurance Benefits (DE 1857A) (poster advising employees of their rights to benefits); Disability Insurance Provisions (DE 2515) (brochure regarding nonwork related illness, injury, pregnancy, or childbirth) http:// www.edd.ca.gov/pdf_pub_ctr/de2515.pdf; Paid Family Leave Benefits (DE 2511) (brochure) https://www.edd.ca.gov/pdf_pub_ctr/de2511.pdf.

9. Labor Code § 2802 (requiring the employer to indemnify employee for work-related expenses and includes attorney’s fees required to obtain indemnification as a reimbursable business expense. Plaintiff may receive attorney’s fees in wage claims with the California Labor Commissioner under Labor Code § 98 et seq. ( “Berman hearing”)).

10. Labor Code §§ 245 et seq., 515.

11. Labor Code §§ 3700 (requiring employers to secure workers’ compensation coverage), 3700.5; People v. Barker, 3 Cal. Comp. Cases 60, 62, 29 Cal. App. 2d Supp. 766, 769, (“[T]he duty of an employer to secure the payment of compensation arises as soon as he becomes such[.]”)

12. AB5: Worker status: employees and independent contractors, Chapter 296, 2019-2020 Session, September 19, 2019 (hereinafter “AB5”).

13. Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903.

14. Id. 15. Labor Code § 2750.3 16. Id. 17. Id. 18. Labor Code § 2750.3(c)(2)(B)(ix-x).

19. See fn. 11, Sec. 6.

20. 17 U.S.C. §201.

21. Id. 22. 17 U.S.C. §203.

23. Unemp. Ins. Code §623 (the term “employee” does not include any member of a limited liability company that is treated as a partnership for federal income tax purposes); Unemp. Ins. Code §621(f) (“employee” includes any member of a limited liability company that is treated as a corporation for federal income tax purposes); Unemp. Ins. Code §622 (“employee” does not include a director of a corporation or association performing services in his or her capacity as a director); See also Lab. Code §§3354, 3351(d), 3715(b).

24. See supra notes 6-10 and accompanying text.

25. https://www.sagaftra.org/important-message-california-ab-5-and-loan-out-companies.

26. Commercial truck drivers recently were deemed an exception to AB5 in Los Angeles Superior Court (https://www.sfchronicle.com/ business/article/California-judge-rules-gig-lawdoes-not-apply-to-14960988.php), and rideshare companies are pursuing legal action in California to avoid having their drivers deemed employees. (https://techcrunch.com/2019/12/30/uber-andpostmates-claim-gig-worker-bill-ab-5-is-unconstitutional-in-new-lawsuit/).

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Are You Competent?

What Labor & Employment Attorneys Need to Know About Criminal Law

by Terry R. Leoni, Leoni Law As a labor and employment lawyer, you probably breathe a sigh of relief thinking you can avoid any hint of criminal defense practice.

Well, I am here to tell you to think again! The Rules of Professional Conduct require members to act competently, either through diligence and skill or consulting with another lawyer. In my opinion, it is essential for labor and employment lawyers to have a basic understanding of prominent criminal issues that arise in the labor and employment context in order to represent clients competently.

“Ban the Box” Procedures

I am often asked if employers can question a job applicant about their criminal history. As of January 1, 2018, California’s “ban the box” legislation generally1 prohibits employers with five or more employees from inquiring into an applicant’s criminal history before making a conditional job offer. As a result, employers cannot inquire into criminal convictions on job applications nor during an interview if an offer has not been extended.

However, after a conditional job offer has been made, which can be contingent upon a background check, employers are permitted to ask about an applicant’s criminal conviction history. It is important to note that employers cannot consider criminal history that did not result in a conviction, such as an arrest without a conviction, pre- or post-trial diversion, or convictions that were sealed, dismissed, expunged or statutorily eradicated.

If an employer does find a criminal conviction after making a conditional job offer, the employer must first perform a multi-factored, individualized assessment of the applicant before the offer can be withdrawn. If the employer determines that the individualized assessment disqualifies the applicant from employment, the employer must notify the applicant in writing of the decision and provide a copy of the conviction information and other statutorily required information to the applicant.

Unfortunately for employers, the process does not end here.

An applicant must also be given at least five business days to respond to the disqualification of employment. An employer is then required to consider any information an applicant submits in response to the disqualification before notifying the applicant of the final determination in writing.

Obviously, hiring an employee can be an onerous process and any misstep may lead to a complaint with an administrative agency

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and/or civil liability. As such, it is essential for lawyers to not only understand the hiring process but also have a basic understanding of the arrest and conviction process.

Post-Hiring Arrest & Conviction

An arrest or conviction post-hiring can be an equally tricky minefield. Frantic employees frequently contact me after an arrest or conviction to inquire as to whether they need to inform their employer about the arrest or conviction. Generally, I advise employees to research their contractual agreements, such as collective bargaining agreements, or internal rules and regulations as detailed in a handbook, to determine if the employer requires notification of an arrest or conviction. Most frequently, employers require notification of a conviction but not a mere arrest. If rules are silent, employees are certainly not required to report either an arrest or conviction, but it may be in their best interest to proactively do so.

It is also essential to advise employees that, although employers may require notification of a mere arrest, Labor Code § 432.7 prohibits any employer from using an arrest or detention that did not result in a conviction to determine any condition of employment. A condition of employment includes hiring, promotion, termination, or any apprenticeship training program or other training program leading to employment. Again, pre- or posttrial diversion programs or convictions that were sealed, dismissed, expunged, or statutorily eradicated do not constitute a conviction. Thus, although an employee may suffer an arrest, the employee cannot generally2 suffer adverse employment conditions as a result of the arrest.

However, all hope is not lost for employers who wish to inquire

about the underlying circumstances of the arrest or conduct an investigation into the same. Labor Code § 432.7(a)(1) specifically permits an employer to ask an employee about an arrest for which the employee is out on bail or on their own recognizance pending trial. But, as stated above, no adverse employment decisions can be implemented for an arrest without a conviction.

Much like pre-employment criminality, post-employment criminality can be equally as onerous and, therefore, requires knowledge of both practice areas.

Crime Victims and Witnesses

Employers must also be mindful of employees who have been victims of crime or witnesses to a crime.

Under Labor Code § 230, employers cannot discharge or discriminate or retaliate against an employee, including a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding. Moreover, this law expands protections to victims of domestic violence, sexual assault, or stalking for taking time off from work to obtain or attempt to obtain any relief to help ensure their health, safety, or welfare or that of their children, including a temporary restraining order or permanent restraining order. Under this law, employers must also provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking who requests an accommodation for their own safety while at work.

Under Labor Code § 230.1, employers with 25 or more employees may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or sexual assault for taking time off from work to seek medical attention

for their injuries, to obtain services from a domestic violence shelter, program, or rape crisis center, to obtain psychological counseling, or to participate in safety planning and take other actions to increase safety from future domestic violence or sexual assault.

It is noteworthy that both Labor Code §§ 230 and 230.1 specify significant consequences for violating witness or crime victim’s rights, including reinstatement, reimbursement of lost wages and benefits, and criminal liability for the employer.

Be Mindful of Potential Criminal Conduct

Whether you are representing an employer or an employee, it is incumbent on you to be mindful of potential criminal conduct by your client. Recently, I represented a business owner facing 18 felony charges and a host of other criminal and administrative investigations stemming from worker’s compensation fraud and misclassification of workers, among other things.

Ultimately, the judge ordered a complete shuttering of the business and receivership over the client’s business and personal accounts. I believe that, had the client received competent legal advice from an experienced employment attorney from the outset of her business venture, she may not have lost her business – nor faced the possibility of state prison!

More common in my practice is uncovering potential criminal activity while representing an employee in what should be routine labor and employment matters, such as disciplinary proceedings or a separation agreement. For example, a recent client requested simple review of a separation agreement from a large pharmaceutical company.

I soon realized that

Continued on page 20

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Are You Competent?

Continued from page 19

certain liability waivers and legal coverage clauses needed significant revisions because the client potentially violated state and federal crimes related to authoring prescriptions at the behest of the employer.

Similarly, on numerous occasions, clients have informed me that they have recorded parties relevant to the case at issue without the other party’s consent, which is a potential violation of California’s Invasion of Privacy Act (Penal Code § 632), or unlawfully removed documents from a former employer to assist with legal representation.

client representation and strategy, but it can also create ethical dilemmas for us as lawyers. Accordingly, it is imperative to spot potential criminal culpability in order to avoid ethical violations and additional crimination activity.

Conclusion

Ultimately, labor and employment lawyers must have an understanding of some of the criminal issues that may arise in their practice to ensure competent representation or, at the very least, seek competent outside counsel for assistance.

Not only does uncovering potential criminal conduct dictate further

1. Certain employers and specific jobs are excluded from this prohibition, including a law enforcement position, a farm labor contractor, where a state or local agency is required to conduct a criminal conviction history background check.

2. Certain employers and specific jobs are excluded from this prohibition, including a law enforcement position.

Terry R. Leoni is the owner and founder of Leoni Law. Her practice focuses on administrative and licensing

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MARCH 2020

Lunar New Year

CCCBA’s third annual Lunar New Year on February 6 was a sold-out success. Held again this year at Sichuan House in Walnut Creek, it was an event not to be missed!

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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ANNUAL INSTALLATION LUNCH On January 31, CCCBA Board Members, Section Leaders and members kicked off the new year with a celebration. James Wu, CCCBA President for 2018 and 2019 passed the gavel to Oliver Greenwood, the first Board President in the CCCBA’s 85 year history who is also a magician.

Presiding Judge Barry Baskin gave a state of the judiciary address and the third annual Diversity Awards were presented.

Congratulations to all who won the honor.

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MARCH 2020

& dIVERSITY AWARDS

Congratulations to the Winners of CCCBA’s 3rd Annual Diversity Awards presented January 31, 2020 3+ Attorney Firms: Platinum Cooper, White & Cooper LLP Hanson Bridgett Livingston Law Firm Littler Mendelson PC Quarles & Brady LLP Ropers Majeski Kohn & Bentley PC

3+ Attorney Firms: Silver Miller Starr Regalia

Solo & 2 Attorney Firms: Platinum The Law Office of Ariel Brownell Law Offices of Natasha S. Chee M.S. Domingo Law Group, P.C. Key Counsel, P.C. Mora Employment Law, APC S.C. Selleck Law

Solo & 2 Attorney Firms: Gold Washington & Associates

Solo & 2 Attorney Firms: Silver Law Office of Marjorie A. Wallace

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Employment Arbitration Agreements: Recent Supreme Court Cases and the Current Legal Landscape in California

by Aaron Langberg

Arbitration agreements are widely used in the employment and consumer arenas, particularly to avoid class action litigation by requiring individual arbitration of claims. Over the past ten years, issues related to the enforceability of arbitration agreements have been hotly litigated in both California and federal courts. The U.S. Supreme Court has handed down a string of noteworthy opinions generally favoring enforcement of arbitration agreements, and preempting state laws that would otherwise curb their widespread use to avoid class actions in employment and consumer cases. As we move into a new decade, the fight continues with the introduction of California Assembly Bill 51, pushing back against the tightening grip of the federal preemption doctrine.

Recent U.S. Supreme Court Cases

The line of U.S. Supreme Court arbitration cases in the 2010’s began with the landmark case of AT&T Mobility LLC v. Concepcion, in which the court held that the Federal Arbitration Act (FAA) preempts California’s “Discover Bank rule” that prohibited arbitration agreements with class action waivers. The late Justice Scalia penned the majority opinion, writing that, “[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”

In response to the ruling in Concepcion, the National Labor Relations Board ruled in 2012 that employment arbitration agreements with class action waivers were unenforceable as they violate the National Labor Relations Act (NLRA). The Supreme Court disagreed. This time, Justice Scalia’s successor, Justice Gorsuch, wrote for the majority in the 2018 case of Epic Systems Corp. v. Lewis, holding that individual arbitration agreements are enforceable under the FAA and the NLRA does not dictate otherwise.

In 2019, following the decision in Epic Systems Corp., the Court reinforced the authority of the FAA, holding in Lamps Plus, Inc. v. Varela, that even when an ambiguity exists in the terms of the arbitration agreement as to whether the parties consented to class wide arbitration, courts cannot utilize California contract interpretation principles to compel arbitration of class claims.

This line of cases shows the Court’s strong preference for interpreting arbitration agreements in favor of arbitration and preempting state law attempts to circumvent enforcement of the agreements. It is noteworthy that each of these cases were 5-4 decisions, with the traditionally conservative justices joining in the majority opinions and Justices Breyer, Ginsburg, Kagan, and Sotomayor dissenting.

The impact of these decisions in the employment arena is substantial.

California employers have widely reintroduced class action waiver

provisions into their arbitration agreements. As a result, class action cases subject to these arbitration agreements have been compelled to individual arbitration instead of class wide arbitration.

As a method of reducing litigation risks, more employers have required employees to sign arbitration agreements with class waiver provisions as a condition of employment.

California’s Response and Pushback

Outside the courts, there has been some social backlash to implementation of these types of agreements and some employers have voluntarily ceased the use of employment arbitration agreements altogether.

California lawmakers have recently targeted mandatory employment arbitration agreements, particularly in the wake of the #MeToo movement, urging that employees should not be required to give up their rights as a condition of employment.

Governor Jerry Brown vetoed Assembly Bill 3080 in 2018, which was authored particularly to help victims of sexual harassment by prohibiting California employers from requiring employees to sign arbitration agreements. Governor Brown said that he thought federal law would preempt such a prohibition.

A similar bill, Assembly Bill 51, landed on Governor Gavin

Continued on page 27

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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MARCH 2020

Employment Arbitration Agreements Continued from page 25

Newsom’s desk in 2019, but, unlike his predecessor, Governor Newsom signed the bill, along with 14 other bills aimed at increasing protections for California employees, into law on October 10, 2019, prohibiting mandatory employment arbitration agreements. AB 51 adds two sections to the California Code, one section (432.6) to the Labor Code and one section (12953) to the Government Code.

Labor Code Section 432.6 prohibits any person from requiring an applicant or employee to, “waive any right, forum, or procedure” for a violation of the Fair Employment and Housing Act (FEHA) or the Labor Code. In essence, the bill bans (and criminalizes) mandatory arbitration agreements for claims of discrimination, harassment, and retaliation, as well as wage and hour violations.

Government Code Section 12953 makes any employer’s violation of Labor Code Section 432.6 an “unlawful employment practice” under the FEHA, thereby creating a private right of action for employees forced to sign arbitration agreements as a condition of employment. The new law only applies to

employment contracts entered into, modified, or extended on or after January 1, 2020.

As expected, industry groups and trade associations challenged AB 51 in a complaint filed on December 6, 2019, in the U.S. District Court in the Eastern District of California arguing that AB 51 is preempted by the FAA. The plaintiffs in this case filed a motion for a temporary restraining order (TRO) on December 16, 2019, seeking an order prohibiting California from enforcing AB 51 until the court is able to hear the merits of a motion for a preliminary injunction. On the eve of AB 51’s implementation, the district court judge granted the TRO (on December 30, 2019) and enjoined the State from enforcing AB 51 pending resolution of the preliminary injunction. The court has since ordered supplemental briefing on issues of jurisdiction, standing, and severability of any provisions of AB 51. On January 31, 2020, the district court issued a minute order granting the preliminary injunction, thereby prohibiting enforcement of the new law during the pendency of the case.

We are likely to see continued litigation of the preemption issue and appeals of any subsequent decisions rendered. From the positions the

Mergers &

Acquisitions

Hubert Lenczowski 1615 Bonanza Street #212 Walnut Creek, CA 94596 (925) 280-7788 hubert@lenczowskilaw.com www.lenczowskilaw.com

U.S. Supreme Court has recently taken, California is facing an uphill battle in keeping AB 51 on the books as long as the traditionally conservative Justices continue to hold the majority vote.

Aaron Langberg is an Associate Attorney in the San Francisco office of Fisher & Phillips LLP where he represents and counsels management on a wide range of labor and employment matters.

MCLE Self Study Test To download the test form and instuctions for this Self Study MCLE article, visit www. cccba.org/for-attorneys/mcleoverview/ then click on MCLE Self Study. Scroll down to the article “Employment Arbitration Agreements” If you prefer to receive the test form via email, contact Anne Wolf at awolf@cccba.org or (925) 370-2540. Send your answers, along with payment ($30 for CCCBA members/ $45 for non-members) to the address on the test form. Certificates are dated as the day the form is received.

Attorney At Law A Professional Corporation

Planning Exits and Growth Acquisition for Business Owners

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Paper checks are notoriously unreliable.

They get lost in the mail, they get tossed in the laundry, and they carry a lot of sensitive information around with them wherever they go.

LawPay changes all of that. Give your clients the flexibility to pay you from anywhere, anytime.

Most importantly, we ensure you stay in compliance with ABA and IOLTA guidelines.

Adventures

with Attorneys

This month we are pleased to introduce this new column for the Contra Costa Lawyer magazine.

CCCBA member Palvir Shoker, of the Shoker Law Group in Walnut Creek shared one of the highlights of her two-week family vacation to Egypt and Turkey over Thanksgiving break with her husband, 8-year old daughter and 11 year old son.

The camel ride was her daughter’s idea, but after Palvir climbed aboard the seated camel, and it leaned one way and then the other before steadying itself with Palvir in the saddle, Palvir’s daughter loudly exclaimed, “There is NO WAY I am getting on!”

Palvir confided that she would probably have shared her daughter’s response, had she not been first to climb on the camel!

The family plans annual vacations like this with Palvir and her husband promising they will forgo work for the entire time, so don’t ask her about the legal system there!

Palvir offered advice to others who are considering a trip to the Mideast.

“Do your research. Check with travel agencies and plan your itenerary.

Once you’re there, just go with the flow and take in the experience of the culture and your surroundings,” she said.

If you have an adventure that you would like to share with the CCCBA, send a brief write up and a photo if possible to Carole Lucido, Communications Director, Contra Costa Lawyer magazine, CCCBA, 2300 Clayton Road, Suite 520, Concord, CA 94520, or via email at clucido@ cccba.org.

We are looking forward to your excellent adventures!

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Proudly Presents

Third Annual

Diversity Networking with Minority Bar Associations Thursday, May 28

5:30 pm - 7:30 pm Admission is Complimentary

Join us for heavy appetizers & drinks

Event Sponsor

JAMS GOLD SPONSORS

Candelaria Law Offices Law Offices of Jim W. Yu Ropers Majeski Kohn & Bentley PC

SILVER SPONSORS Law Office of Ariel Brownell Ferber Law Littler Mendelson, P. C. Miller Starr Regalia Law Office of Maria Schopp

RSVP to: https://bit.ly/2vRdesI

HUB Conference Center 2121 N. California Blvd., First Floor Walnut Creek Come learn more about the different minority bar associations in the Bay Area, network and build new connections! Bar association representatives will speak about their organizations, upcoming events and networking opportunities.

Attendance and/or sponsorship of this event qualifies for one or more activities on the CCCBA Diversity Award Checklist.

The following Bar Associations attended last year: • Asian American Bar Association of the Greater Bay Area • Asian American Criminal Trial Lawyers Association • BALIF - An LGBTQI Bar Association • California Association of Black Lawyers • Charles Houston Bar Association • East Bay La Raza Lawyer’s Association • Filipino Bar Association of Northern California • Korean American Bar Association of Northern California • South Asian Bar Association of Northern California • Vietnamese American Bar Association of Northern California • Women Lawyers of Alameda County

Interested in sponsoring?

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

l a n o i t i Add

3 Important California Employment Law Changes in 2020

by James Wu

While our feature articles have taken a closer look at many of the new and complex issues facing California workplaces, there are other noteworthy updates in 2020, including the following:

1.

Creating a Respectful and Open Workplace for Natural Hair Act – The “CROWN Act” - SB 188 amends the definition of “race” under FEHA to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Protective hairstyles includes “such hairstyles as braids, locks and twists.” Importantly, policies and procedures regarding health and safety related to hair styles, use of hairnets, helmets, etc. can still be enforced regardless of hairstyle.

As a result, employers may wish to update Employee Handbook provisions regarding “race” discrimination and harassment and review, “safety,” “grooming” and “dress code” policies.

2.

Under prior law, the statute of limitations to bring FEHA discrimination, harassment or retaliation

claims to the California Department of Fair Employment and Housing (DFEH) was one year. AB 9 triples the statute of limitations period to three years. Former Governor Brown vetoed a similar bill recognizing the value of timely resolving disputes, and the potential loss of evidence and witnesses when claims are not timely prosecuted. Governor Newsom, however, disagreed and thus, litigants may be subjected to dealing with staled claims, and will likely face fading witness memories and potential lost documentation.

This is particularly true because a plaintiff still has the additional one year (for a total of four years) to bring a DFEH claim to court after receiving a Notice of Right to Sue from the DFEH. Expanded Organ Donor Leave – Under prior law, employers with 15 or more employees were required to provide eligible employees with five days of paid leave for bone marrow donation, and 30 days of paid leave for organ donation. Starting in 2020, AB 1223, expands leave for organ donation. Specifically, employers are now required to provide a maximum of 30 business days of unpaid leave in addition to the original 30 days of paid leave in a single year.

3.

As a result, employers should update Employee Handbook provisions regarding organ donation leave, as well as any other notices or documents the employer provides regarding organ donation leave.

A bonus additional important change for California’s workplaces will be highlighted in our April 2020 issue of the Contra Costa Lawyer – stay tuned for more!

James Wu is an employment law attorney. Since 1996, James has been a guardian to employers by providing advice and counsel to reduce the risks of employment-related claims and lawsuits, and has been an advocate vigorously defending employers when claims do arise. James was honored to serve as CCCBA President in 2018 and 2019. To find out more, see www. linkedin.com/in/jamesywu.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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The February Issue of Contra Costa Lawyer – Here’s What You Missed in the Law Student Issue Thank you to Tim Hyden, Guest Editor

Find it online at www.cccba.org/cclawyer-magazine

This edition of the Contra Costa Lawyer magazine explores potential future changes in the way by which we educate law students which includes online law school and apprenticeship programs, changes in – and the social ramifications of – the bar exam, and personal perspectives from recent law school graduates.

• How Changes to the California Bar Examination Have Impacted Law School Education, by Dean Barbieri • Online Law Schools – Opening Up Legal Education to a New Generation of Learners, by Lisa Hutton and Nicole Mills • Highest Performers but Lowest Pass Rate, There is Something Seriously Wrong in California, by Mitchel L. Winick, President and Dean, Monterey College of Law • Work Study Program at JFK University, by Ora Prochovnick • What I Know Now that I Wished I Knew in Law School,

by Jennifer A. Navalle • How to Become a Lawyer Without Going to Law School: The Law Office Study Program, by Lorraine M. Walsh and Jessica Rodriguez

Columns: • President’s Message: A Whole New World, by Oliver Greenwood • Inside: Law School - Past, Present and Future, by Tim Hyden • Bar Soap, February 2020, by Matt Guichard

Photos • Lafayette Reservoir Walk

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MARCH 2020

Classifieds NEW MODERN LEGAL OFFICE (225 sq. ft.) Downtown Walnut Creek

Looking for a congenial attorney to sublet a partner office in our newly-designed and constructed office space in the former McNamara building, which has been redone inside and out. We are four independent attorneys sharing a high-end space with modern décor and plug and play amenities. Located just uphill from cuisine and upscale shopping of Broadway Plaza and Whole Foods. Build-out of our suite will be complete and available for move-in on Feb. 15th.

Amenities Included: • Modern cubicle space for legal assistant/ secretary • Conference Room • Small Kitchen • High-Speed Internet/WiFi • VOIP Phone System • New networked Copy Machine • Magnetic card security entry • State of the Art Heating/AC System • Plenty of free parking for you and your clients in attached parking lot • Optional paid garage parking Impress your clients and opposing counsel with your modern office and pleasant working environment. We’d love to hear from you. Contact Daisy @ 925-934-6200.

We Can Help You Build Your Practice!

Join the Lawyer Referral & Information Service. For information contact LRIS Program Director Barbara Arsedo at (925) 370-2544 or barsedo@cccba.org

Walnut Creek - For Attorneys Only Beautiful offices w/7 solos. Networking.

Single story house remodeled & converted into building for lawyers: built-ins, fireplace, molding, kitchen, conference rm., etc etc.

Very congenial. Rent negotiable. Paul 925/938-8990/pbelaw@pacbell.net

Advertiser Index ADR Services . . . . . . . . . . . . . . . . . . . 8 Barr & Young Attorneys . . . . . . . . . . . 5 The Bray Law Firm . . . . . . . . . . . . . . 29 Diablo Valley Reporting Services . . . 40

Probate paralegal to attorneys

Bruce Hahn . . . . . . . . . . . . . . . . . . . . 24

Joanne C. McCarthy, 3000F Danville Blvd., #257, Alamo, CA 94507 Call (925) 689-9244.

CONFERENCE ROOM AVAILABLE

JAMS . . . . . . . . . . . . . . . . . . . . . . . . . 26 Lawyers Mutual Insurance Company 14 LawPay . . . . . . . . . . . . . . . . . . . . . . . 28

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 contact Barbara Arsedo at (925) 370-2544 or barsedo@cccba.org.

notary service CCCBA members are eligible for free notary service at the CCCBA office in Concord.

Contact Carole Lucido at (925) 370-2542 or clucido@cccba.org for an appointment.

Lenczowski Law Offices . . . . . . . . . . 27 Morrill Law Firm . . . . . . . . . . . . . . . . 12 Novak Wealth Management . . . . . . . . 2 Pedder, Hesseltine, Walker & Toth, LLP . . . . . . . . . . . . . . . . . . . . 24 Candice Stoddard . . . . . . . . . . . . . . . 10 The Law Offices of Michael J. Young . . . . . . . . . . . . . . . . 24 Zandonella Reporting Service . . . . . 20

Looking for New Business?

Join the Lawyer Referral & Information Service Grow your practice with the CCCBA’s LRIS. We schedule over 5,500 client consultations with paying clients every year. We have immediate need for attorneys: • Who specialize in Tenant Rights or Juvenile Dependency • Spanish Speaking Attorneys (all specialties) • Moderate Means Attorneys

Contact Barbara Arsedo, CCCBA LRIS Director at (925) 370-2544 barsedo@cccba.org or visit www.cccba.org/lawyer-referral-service/ CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Calendar

Upcoming Events | Overview March 11

| Estate Planning & Probate Section

The Price of Paradise – Hawaii Estate Tax Applied to Non-Residents more details on page 35

March 11

| CCCBA and Solo Small Firm Section

Your Law Practice Roadmap #3

Clients: Getting Them, Keeping Them and Saying Goodbye more details on pages 35 and 37

March 12 |

Alternative Dispute Resolution & Litigation Sections

Ethical Dilemmas at Mediation: Avoiding and Dealing with Errors and Omissions more details on pages 35

March 26

| CCCBA

CCCBA Happy Hour Gathering more details on page 35

March 27 | Criminal Section Up Your DUI Practice at DMV Hearings more details on page 35

April 14

| Women’s Section

Women’s Power Lunch

more details on page 35

April 21

| CCCBA

Let’s Meet for Coffee

more details on page 36

April 21

| Alternative Dispute Resolution & Litigation Sections

Ethical Dilemmas at Mediation: Best Practices for Ethical Negotiation & Settlement more details on page 36

April 24

| Criminal & Employment Section

Avoiding Malpractice: Spotting Licensing & Employment Issues in Criminal Cases more details on page 36

April 29

| Estate Planning & Probate Section

27th Annual Estate Planning Symposium more details on page 36

May 1

| Senior & Women’s Sections

Law Day 2020 “Your Vote, Your Voice, Our Democracy: The 19th Amendment at 100 Celebration of the Women’s Right to Vote” more details on page 36

May 6

| CCCBA

CCCBA Board Service: An Information Session more details on pages 36 and 37

May 14 | Women’s Section

Women’s Section Annual Wine Tasting and Silent Auction Scholarship Fundraiser more details on page 37

May 28

| CCCBA’s Diversity Committee

3rd Annual Diversity Networking Mixer with Minority Bar Associations more details on pages 30 and 37

The Contra Costa County Bar Association certifies that the MCLE activities listed on pages 35-37 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

34

MARCH 2020

Planning & March 11 | Estate

Probate Section

CCCBA & Solo Small March 11 | Firm

Section

The Price of Paradise – Hawaii Estate Tax Applied to Non-Residents

Your Law Practice Roadmap #3 Clients: Getting Them, Keeping Them and Saying Goodbye

Speaker: Daniel C. Vermillion Hawaii’s estate tax can snare unwitting non-residents that own real property there.

Mr. Vermillion’s presentation will include a general discussion of Hawaii’s estate tax and how it is applied to non-residents, including some structures that advisors can offer clients to possibly avoid its application.

Time: 11:30 am – 1:15 pm Location: Massimo’s Restaurante, 1604 Locust St., Walnut Creek

Speakers: Barbara Arsedo, David Erb, Marie Quashnock, Alay Yajnik This session will deal with client relationships – beginning to end: Moderate Means, LRIS; online advertising; networking; shared offices; Chambers of Commerce; business networking advisors; evaluating potential clients – red flags; substitution of attorneys and more.

Time: 5:30 pm – 7:00 pm

MCLE: 1 hr. Estate Planning & Probate Specialization credit

Location: John F. Kennedy University College of Law, 100 Ellinwood Way, Pleasant Hill

Cost: $30 members of the EP&P Section, $40 CCCBA members, $50 non-members

MCLE: 1 hr. General credit

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

Cost: CCCBA members: $20/session, non-members: $40/session, Law Student Section members $10/session

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

Register: Online at www.cccba.org/attorney/calendar More Info: See page 39 or contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Dispute March 12 | Alternative Resolution & Litigation Sections

Ethical Dilemmas at Mediation: Avoiding and Dealing with Errors and Omissions Speakers: Thomas D’Amato, Mary Grace Guzman, Robert Jacobs Learn through a series of hypothetical situations involving mediation, the recently adopted Rules of Professional Conduct and avoiding and dealing with attorney errors and omissions. Attendees will have an opportunity to respond to challenging, difficult or unusual ethical situations.

Time: 11:45 am - 1:30 pm Location: CCCBA Building Conference Room, 2300 Clayton Road, First Floor, Concord MCLE: 1.5 hr. Legal Ethics credit Cost: $20 ADR and Litigation Section members, $15 Law Student Section members, $30 CCCBA members, $40 non members Register: Online at www.cccba.org/attorney/calendar

March 26 | CCCBA

March 27 | Criminal Section

April 14 | Women’s Section

CCCBA Happy Hour Gathering

Up Your DUI Practice at DMV Hearings

Women’s Power Lunch

Please mark your calendars for our first 2020 Happy Hour Gathering. Join us for this casual, no-host event, where CCCBA leaders gather 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.

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

Speakers: Peter Johnson and Panagiotis Prountzos DMV hearings can be foreign territory where the “hearing officer” (a non-lawyer) makes evidentiary rulings and sometimes outright ignores the law! What are the best ways to present your case at a Driver Safety Hearing? Listen to the area’s top experts on this subject to up your DUI practice at DMV hearings! Your clients deserve you to be at your best.

Time: 11:45 am – 1:15 pm Location: Firehouse Brew & Grill, 611 Escobar St., Martinez

What is a 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!

Time: 11:45 am – 1:15 pm Location: Urban Plates, 60 Crescent Drive, B, Pleasant Hill RSVP: cccbawomenssection@gmail.com More Info: Contact the Women’s Section at cccbawomenssection@gmail.com

MCLE: 1 hr. General credit Cost: $25 Criminal Section members, $15 Law Student Section members, $30 CCCBA members, $35 non-members Register: Online at www.cccba.org/attorney/calendar CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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April 21 | CCCBA Let’s Meet for Coffee Join CCCBA Board members and section leaders as they gather with CCCBA members in a relaxed, coffee house setting to socialize.

Grab some fuel and start your day with us!

Drop by any time!

Don’t expect anything formal like name tags or check-in tables. Instead come when you can, grab a hot or cold beverage, and find us.

Time: 7:30 am - 9:30 am Location: Bondadoso Coffee & Tea Collective, 2195 N. Broadway, Walnut Creek More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

April 21 |

Alternative Dispute Resolution & Litigation Sections

Ethical Dilemmas at Mediation: Best Practices for Ethical Negotiation & Settlement Speakers: Thomas D’Amato, Mary Grace Guzman, Robert Jacobs Learn through a series of hypothetical situations involving mediation, the recently adopted Rules of Professional Conduct and the ethical standards that apply to negotiations at mediation and in settlement.

Attendees will have an opportunity to respond to challenging, or unusual ethical situations.

Time: 11:45 am - 1:30 pm Location: CCCBA Building Conference Room, 2300 Clayton Road, First Floor, Concord MCLE: 1.5 hr. Legal Ethics credit

Planning & April 29 | Estate Probate Section

27th Annual Estate Planning Symposium Join us for three important presentations: • Civility and the Law • Deed Issues for Planners • Staying Within the Lines: Update on Ethical Rules for Trust & Estate Attorneys Speakers: Listed online

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org 36

MARCH 2020

Time: 11:30 am - 1:15 pm Location: Firehouse Brew & Grill, 611 Escobar St., Martinez

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

May 1 | Senior & Women’s Sections

May 6 | CCCBA

SAVE THE DATE: Law Day “Your Vote, Your Voice, Our Democracy: The 19th Amendment at 100 - Celebration of the Women’s Right to Vote”

CCCBA Board Service: An Information Session

Time: 11:30 am - 1:30 pm Location: Scott’s Seafood, 1333 N. Califormia Blvd., Walnut Creek

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

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

Criminal charges create issues that affect clients outside of the courtroom, including employment and licensing issues. For instance, what impact does a charge or plea have on a professional license for a nurse, doctor or real estate agent? Can an employer fire your client for just a DUI conviction?

Do victims or witnesses of crimes have any employment protections? It is essential to be aware of critical issues affecting your clients’ employment and professional licensure.

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

MCLE: 3 hrs. Estate Planning & Probate Specialization credit

Sponsored by Mechanics Bank

Speaker: Terry R. Leoni, Esq.

Cost: $25 Criminal Section members, $15 Law Student Section members, $30 CCCBA members, $35 non members

Time: 1:30 pm - 4:45 pm

Cost: TBA

Avoiding Malpractice: Spotting Licensing & Employment Issues in Criminal Cases

Cost: Members: $20 ADR and Litigation Section members, $15 Law Student Section members, $30 CCCBA members, $40 non-members

Check Online: for speaker information and registration details.

Location: Lesher Center for the Arts, 1601 Civic Dr., Walnut Creek

& Employment April 24 | Criminal Sections

MCLE: 1 hr. Legal Ethics credit

Attorney members who are interested in serving on the CCCBA Board of Directors are invited to an information session with this year’s Board to learn about board service and have your questions answered.

Time: 4:30 pm - 5:30 pm Location: CCCBA Building Conference Room, 2300 Clayton Road, First Floor, Concord RSVP: Online at www.cccba.org/attorney/calendar More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

May 14 |

Women’s Section

Women’s Section Annual Wine Tasting and Silent Auction Scholarship Fundraiser For over 20 years, the Contra Costa County Bar Association’s Women’s Section has hosted this event, which helps provide scholarships to law students with demonstrated financial need, interest in women’s issues, leadership promise and a connection to Contra Costa County.

Come and enjoy wine and hors d’oeuvres while you bid on amazing silent auction items. We hope to see you at this fabulous fundraising event!

Sponsorships Available: Contact Patanisha Davis at pat@keycounselpc.com Time: 5:15 pm - 7:30 pm Location: Round Hill Country Club, 3169 Roundhill Road, Alamo Cost: $65 Members: $75 non members RSVP: Online at www.cccba.org/attorney/calendar More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

May 28 |

CCCBA’s Diversity Committee

3rd Annual CCCBA Diversity Networking Mixer with Minority Bar Associations Learn more about the different minority bar associations in the Bay Area, network and build new connections! Representatives from different organizations will speak about their upcoming events and networking opportunities.

Join the CCCBA and a variety of Minority Bar Coalition organizations for free heavy appetizers and drinks. This event is open to all CCCBA members and guests.

Sponsorships Available: Contact Theresa Hurley at thurley@cccba.org Time: 5:30 pm - 7:30 pm Location: HUB Conference Center, 2121 N. California Blvd., Walnut Creek RSVP: Online at www.cccba.org/attorney/calendar More Info: See page 30 or contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Interested in Joining the Board?

Join us May 6 for an Information Session 4:30 pm | CCCBA, 2300 Clayton Rd., First Floor Conference Room, Concord

CCCBA Board Members will answer your questions about Board service.

• Established in 1934, the CCCBA has a history of empowering members to deliver outstanding legal service to the community.

Join us May 6 and learn more! www.cccba.org/cccba-leadership

• Key tenets include member education, fostering fellowship among members of the bar, building strong relationships with the court and connecting the community with the legal assistance it needs CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

37

gratefully acknowledges its

What Is a Sustaining Law Firm?

To qualify as a Sustaining Law Firm of the Contra Costa County Bar Association, law firms must have a minimum of five Contra Costa-based attorneys and maintain current CCCBA membership for all attorneys practicing under the same firm name in the local office.

2020 SUSTAINING LAW FIRMS Firms with 30+ attorneys: Miller Starr Regalia

Firms with 20-29 attorneys: Bowles & Verna, LLP Hanson Bridgett, LLP Littler Mendelson, PC McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP

Firms with 15-19 attorneys: Brothers Smith, LLP

Brown, Gee & Wenger, LLP

Clapp Moroney Vucinich Beeman Scheley Doyle Quane Family Law Group

Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci

CCCBA recognizes its sustaining law firms in the following ways:

Greenan Peffer Sallander & Lally LLP

• Recognition in the CCCBA website, in the Contra Costa Lawyer magazine, and in the CCCBA Membership Directory

Whiting, Fallon, Ross & Abel LLP

• Displays at the CCCBA office and at all CCCBAsponsored events For more information, contact Jennifer Comages, CCCBA Membership Director at (925) 370-2543 or jcomages@cccba.org.

Hartog Baer Hand APC

Kilpatrick Townsend & Stockton

Firms with 5-14 attorneys: Acuna Regli

Barr & Young Attorneys

Casper, Meadows, Schwartz & Cook Craddick, Candland & Conti

Edrington, Schirmer & Murphy Ferber Law, APC

Galloway, Lucchese, Everson & Picchi

Gillin, Jacobson, Ellis, Larsen & Lucey Livingston Law Firm, P.C. Morison & Prough, LLP Morrill Law

Seto Wood Schweickert, LLP 38

MARCH 2020

2020 Education Series

Your Law Practice Roadmap Practical Guidance for New & Established Attorneys

Nine Sessions | 5:30 - 7 pm | 1 hour MCLE credit | JFK University, 100 Ellinwood, Pleasant HiIl Members - $20/session, Non-members - $40/session, Law Student Section Members - $10/session 4.

Partnerships & Personnel –

Who, What, When & How to Hire

Tuesday, April 14

Speakers: James Wu – Moderator Nick Casper Denae Budde • Employees, No Employees or Contract Employees?

• Partners – LLP, PC, Partnership or do nothing, association of counsel • Transitions of leadership, buyout agreements 1 hr General MCLE credit

5.

Using Technology to Enhance and Secure Your Practice / Cyber Security Wednesday, May 13 Speakers: Diane Camacho – Moderator Josh Bevitz Ericka McKenna • Hardware • Billing and Document management software • Case management software • Trial presentation software • Cyber Security – practical & ethical responsibilities

6. Your Professional

Reputation – Ethics & Civility Tuesday, June 9 Speakers: Craig Nevin – Moderator Hon. Virginia George Hon. Terri Mockler Matt Guichard

• Etiquette in the court room • Yelp/Avvo reviews – how to respond to negative reviews • Your reputation with other attorneys, your support staff, vendors and the court 1 hr General MCLE credit

1 hr General MCLE credit The Contra Costa County Bar Association certifies that the activities listed here have been approved for the specific MCLE credit indicated by the State Bar of California, Provider #393.

Thank You to Series Sponsors: Summa Cum Laude Sponsor

Mark Your Calendar for these

Upcoming Sessions 7.

Magna Cum Laude Sponsor

The Work/Life Balancing Act Tuesday, September 15 1 hour General MCLE credit

8. Alternative Practices of Law – Inside Law

Cum Laude Sponsor

Wednesday, October 14 1 hour General MCLE credit

9. Alternative Practices of Law –

It’s a Big, Wide, Wonderful World Tuesday, November 10 | No MCLE credit

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

MARCH 2020

925.930.7388