Contra Costa Lawyer, July 2015

Volume 28, Number 4 | July 2015

Employment Law

The High Price of BYOD: Managing Legal Risk for Employers page 6 Why Make Employees Stand All Day? page 9 Is Your Worker an Employee or an Independent Contractor? page 14

The headline says one thing. The story says something else. You want someone to help you make sense of it all.

That’s where we come in.

the novak group at ubs financial services, inc. bringing confidence to your financial decisions.

Perry A. Novak Senior Vice President, Wealth Management

UBS Financial Services, Inc. 2185 N. California Blvd., Suite 400 Walnut Creek, CA 94596 (925) 746-0245 perry.novak@ubs.com Perry is an active member of CCCBA, currently serving on the board of the Business Law & Corporate Counsel Section. The Novak Group has been providing financial planning and asset management services to affluent families, business owners and professionals since 1983.

Please visit us at: ubs.com/team/thenovakgroup

Neither UBS Financial Services Inc. nor any of its employees provide legal or tax advice. You should consult with your personal legal or tax advisor regarding your personal circumstances. As a firm providing wealth management services to clients, we offer both investment advisory and brokerage services. These services are separate and distinct, differ in material ways and are governed by different laws and separate contracts. For more information on the distinctions between our brokerage and investment advisory services, please speak with your Financial Advisor or visit our website at ubs.com/workingwithus. ©UBS 2015. All rights reserved. UBS Financial Services Inc. is a subsidiary of UBS AG. Member FINRA/SIPC.

JULY 2015

5/2015

Contra Costa 2015 BOARD OF DIRECTORS Nicholas Casper President Elva Harding President-Elect Philip Andersen Secretary James Wu Treasurer Stephen Steinberg Ex Officio Ericka Ackeret Dean Barbieri Oliver Bray Mary Carey Wendy McGuire Coats Michelle Ferber

Peter Hass Reneé Livingston David Marchiano Laura Ramsey Katherine Wenger

LAWYER Volume 28 Number 4 | July 2015

The official publication of the

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

FEATURES THE HIGH PRICE OF BYOD: MANAGING LEGAL RISK FOR EMPLOYERS by JoAnna L. Brooks

WHY MAKE EMPLOYEES STAND ALL DAY?

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org

by Harvey Sohnen

CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo Emily Day

KEEPING UP WITH CALIFORNIA REGULATIONS MEANS NEW WORKPLACE POLICIES AND TRAINING

LRIS Coordinator Systems Administrator and Fee Arbitration Coordinator

Dawnell Blaylock

Communications Coordinator

Membership Coordinator

IS YOUR WORKER AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR?

CONTRA COSTA LAWYER Harvey Sohnen Suzanne Boucher 925.258.9300 925.933.1500

925.351.3171 925.258.9300 David Pearson BOARD LIAISON 925.287.0051 Candice Stoddard 925.942.5100 Samantha Sepehr 925.287.3540 COURT LIAISON Andrew Verriere Stephen Nash 415.699.0646 925.957.5600 James Wu PRINTING 925.658.0300

510.847.8523

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 times online-only - by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

THE MYTHICAL UNPAID INTERN

AN OVERVIEW OF EMPLOYMENT ARBITRATION AGREEMENTS

by Michelle Ferber and Brooke Barnum

Nicole Mills Patricia Kelly

925.681.1774

by Mukesh Advani

CO-EDITORS EDITORIAL BOARD

PHOTOGRAPHER Moya Fotografx

by Margaret J. Grover

Jennifer Comages

Steven’s Printing

by Kevin R. Allen, Esq.

DEPARTMENTS

INSIDE | by Patricia M. Kelly

PRESIDENT’S MESSAGE | by Nick Casper

20 CENTER | Food From the Bar Comedy Night [photos] Gala Reception Announcement MCLE Spectacular SAVE THE DATE 26

PRO BONO SPOTLIGHT | Gabriela Odell

CONTRA COSTA’S NEW PRO BONO WILLS CLINIC | by Verna Haas

RESTAURANT REVIEW | by Geoffrey Steele

INNS OF COURT | by Matthew Talbot

35 CALENDAR 38 CLASSIFIEDS

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

inside

he work environment has changed dramatically over recent years, with employers facing new challenges. For example, employees now use their own personal devices, including cell phones and laptops, for business. Are employees entitled to reimbursement for their costs, such as their cell phone bills, under Labor Code section 2802, which requires reimbursement for business expenses?

Patricia Kelly

In “The High Price of BYOD: Managing Legal Risk for Employers,” JoAnna L. Brooks addresses the developing law regarding mandatory reimbursements and the issues emanating from use of personal devices. In “Why Make Employees Stand All Day?” Harvey Sohnen points to the cases pending in the California Supreme Court as hopeful for providing answers to questions regarding a requirement that employers provide employees suitable seats when the nature of the work reasonably permits. At stake is whether employers can force employees, such as store cashiers or bank tellers, to stand throughout their shifts when some or all of the tasks could be performed while sitting. Margaret J. Grover alerts us to new regulations applying to heat illness prevention and California Family Rights Act (CFRA) leave in “Keeping Up with California Regulations Means New Workplace Policies and Training.” Ms. Grover informs us of the revised California Occupational Safety and Health Administration (Cal/ OSHA) regulations which include providing shade, water and cool-down periods for employees. She also sets forth the changes soon to be in effect in the CFRA that are designed to address questions which have arisen over the years while the law has been in effect. However, before reaching these issues, perhaps one needs to step back and analyze the whole situation. Are the individuals involved actually employees who are entitled to the protections of the Labor Code, Wage Orders, Government Code and Cal/OSHA regulations? Perhaps they are independent contractors who do not have such protections. There are benefits to companies who engage independent contractors and cost benefits can be passed on to the customer. Think of Uber and Lyft, which have taken on the battle over employee versus independent contractor status and is now winding its way through the courts. However, a misclassification can be a very costly mistake, as discussed by Mukesh Advani in “Is Your Worker an Employee or an Independent Contractor?”

JULY 2015

Alternatively, perhaps the individuals can be lawfully characterized as bona fide interns or volunteers who are not even entitled to any compensation. Michelle Ferber and Brooke Barnum analyze in “The Mythical Unpaid Intern” the stringent criteria to be met if an individual is not to be compensated for his or her services. Assuming there is a dispute over any of these or related issues, who will decide it? Is there a valid arbitration agreement in effect? In “An Overview of Employment Arbitration Agreements,” Kevin R. Allen raises a myriad of issues to be considered in drafting or enforcing such agreements. Finally, don’t forget that new paid sick leave laws covering nearly every employer in this state have taken effect on July 1 of this year, as described in our April edition. In addition to our employment related articles, we are pleased to announce the Pro Bono Committee’s recognition of Gabriela Odell, who has donated many years of service to Contra Costa Senior Legal Services. This issue’s Pro Bono Spotlight reflects a lively interview with Ms. Odell. We also include Matthew Talbot’s article on the final Inns of Court meeting for the 2014-2015 year and a restaurant review by Geoff Steele. s Patricia Kelly is a partner at the Law Offices of Sohnen & Kelly in Orinda, which has substantial experience addressing a broad range of employment issues, including wage and hour class action lawsuits, disciplinary actions, discrimination, harassment, wrongful termination and severance agreements. They represent primarily small companies and individuals.

president’s message

Civil Cases Gathering Dust

uch has been written about the California court funding crisis, now a seven-year-old calamity in which the beleaguered third branch of government has seen its budget slashed by over $1 billion. The repercussions have been farreaching, with over 200 courtrooms and 52 courthouses closed across the state, along with the loss of thousands of court staff.

es—where carriers illegally deny or delay payment of claims—can leave individuals who are in need without compensation. In personal injury cases, plaintiffs may have mounting medical bills and future medical costs that can only be met once a case is concluded, and this leaves them in a lurch. Some of these plaintiffs are faced with a Hobson’s choice, deciding to accept an inadequate settlement just so immediate needs are met.

One effect of the cuts experienced by state courts, including those here in Contra Costa, has been the long delay in civil trial settings, with trials sometimes being set nearly two years down the road.

The problem is compounded for those who live in rent-controlled apartments, leaving families no choice but to move out of cities in which they have been priced out. Delays in insurance bad faith cas-

Conversely, defendants also have cases hanging over their heads for great lengths of time; in a case of a defendant wrongfully accused of tortious conduct, they are denied a timely opportunity to clear their name. Furthermore, in many civil cases, evidence preservation becomes precarious: witnesses have fading memories, lose their resolve to testify or simply disappear. The courts are currently in triage mode and are doing what they can with limited resources. Governor Brown’s recent revised budget will pump some money back into the court system, including $90 million to trial courts.

Although the consequences of such delays are not as disastrous as those afflicting some courts, such as reunification hearings and child support orders delayed months in the family courts, civil delays do have an impact that affect Californians seeking the “last resort” remedy that courts are intended to offer. Many civil cases are filed by individuals who require judicial intervention into matters that cannot wait years for resolution. People seeking redress for abysmal living conditions—no working heat, or pervasive mold, for example—may not have the financial luxury of waiting years for a trial, choosing instead to abandon the case and uproot their families.

out due to trial delays. For individual plaintiffs, litigation is a stressful exercise, and having the process stretched out over years can seem oppressive.

Nick Casper CCCBA Board President The failure to resolve financial claims between large enterprises can cause serious economic harm that is difficult to quantify. Businesses and public entities are faced with mounting financial obligations as claims pile up without resolution, which makes for a more uncertain business climate and can affect budget planning, including stalling hiring decisions. There are also intangible, nonfinancial consequences that play

While this restoration of funding is a positive sign, the phrase “too little, too late” comes to mind. Until funds are restored to reopen closed courtrooms, fill judicial vacancies and rehire court staff, the ripples from the crisis will continue to be felt for years to come, including civil cases gathering dust. s As an associate with Casper, Meadows, Schwartz & Cook since 2007, Nick Casper represents injured individuals in cases involving catastrophic injury, wrongful death, medical malpractice, employment discrimination/harassment and civil rights violations. Nick has been lead counsel in five civil jury trials.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

The High Price of BYOD: Managing Legal Risk for Employers by JoAnna L. Brooks

ringing your own device (BYOD) has been the single most radical shift for employers since computers invaded the workplace. BYOD, as the saying implies, means employees use their own personal device instead of an employer-provided device to perform work. Today, 90 percent of private employers report they have BYOD in some form, and nearly 70 percent express positive attitudes toward the trend.

The Court of Appeal’s recent decision in Cochran v. Schwan’s Home Service, Inc.,1 threatens to reverse this trend. BYOD comes with a costly new price tag for California employers. Colin Cochran brought a putative class action on behalf of himself and 1,500 customer service managers, claiming they were not reimbursed for work-related use of their personal cell phones. Cochran did not actually incur any out-of-pocket expenses because he used a cell phone covered by his girlfriend’s plan and she paid the bill. Nevertheless, he alleged violation of Labor Code section 2802; Business and Professions Code section 17200 and the Private Attorney General Act (PAGA). The trial court denied class certification because it determined individualized inquiries regarding each employee’s cell plan would be necessary to determine liability.

The appellate court reversed the trial court’s denial of class certification, stating its underlying legal assumptions were erroneous, namely, the assumption an employee must suffer an expenditure or loss to recover under Section 2802. The Court of Appeal held employers must reimburse employees for required use of their personal phones for work-related calls, and must reimburse a reasonable portion of their cell phone bills for such use under Section 2802—regardless of whether the employee incurs any additional out-of-pocket expense from the work-related usage. The individualized details of the employee’s cell phone plan do not factor into the liability analysis, only damages. So why is Cochran so costly for employers? Section 2802 is not new law. It has always required employers to reimburse employees for “necessary” work-related expenditures. In previous Section 2802 cases, however, the courts analyzed the actual harm to the employee—whether the employer wrongfully failed to reimburse out-of-pocket expenses it knew or should have known were reasonably incurred on the employer’s behalf. Here, the court explained Section 2802 is not limited to reimbursement for out-of-pocket expenses but is intended to prevent employers from receiving a windfall by passing operating expenses on to the employee. The Cochran case

JULY 2015

suggests reimbursement is always required when the employer knowingly reaps the benefits of BYOD. The ruling applies to work-related cell phone expenses, but could easily be applied to smartphones, Wi-Fi, apps, software, laptops, tablets and other personal computing devices used to access data in the cloud and on network servers. The sweeping nature of the Cochran decision in a world full of emerging technology leaves many unanswered questions. How does the employer determine what devices must be provided or require reimbursement? How does the employer calculate the reimbursement owed? Employers need to answer these difficult questions now, or risk facing the legal consequences later on. Due to the complexity of the modern workplace, there is no one-sizefits-all approach to answering these questions. The following are the top five steps for employment attorneys to keep in mind when advising em-

ployers on BYOD and reimbursement policies: 1. Identify the technology necessary for the employees to do their jobs. For each job, ask the following: Does the job require use of a computer, phone or other device? What software or applications does the employee utilize or access to complete job tasks? Is the employee expected to perform the work at home or while traveling? Is the employee expected to respond to calls, emails or texts while outside of the office? 2. After identifying the necessary technology, weigh the costs and benefits of employer-issued technology versus BYOD. Depending on the employerâ&#x20AC;&#x2122;s culture and needs of the business, it may be feasible to eliminate BYOD. Among the benefits, employer-provided technology enables the employer to select the devices and applications, ensure protection of stored business information, and control

usage terms and cost. Providing necessary technology also reduces the risk of exposure by avoiding later disputes concerning the handling of BYOD reimbursement. 3. If the employer has an existing BYOD program, determine whether the use of a personal device is required or voluntary. If an employeeâ&#x20AC;&#x2122;s use of a personal device is entirely voluntary, an employer may not need to reimburse the expense. Post-Cochran, counsel should explain the risk of shifting the costs of necessary technology to an employee. At a minimum, employers taking this approach must be able to prove the employee had the option of using employer-provided technology. Existing BYOD policies may need to be modified to ensure the employee made an informed decision before incurring the costs of BYOD. 4. If BYOD is required, a number of methods should be explored

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

The High Price of BYOD, cont. from page 7

for calculating the reasonable portion of the reimbursement, such as: (1) reimbursing total cost of the device, applications and service plan; (2) paying a fixed lump sum amount based on estimated cost of similar devices and work-related usage; or (3) reimbursing the employee for a percentage of the actual device cost and monthly usage. Any of these reimbursement methods require research regarding the cost of the applicable technology, service charges and anticipated usage by the employer’s workforce. If the employer is offering anything less than reimbursement for the total cost of the device and service plan, there needs to be good faith support for the employer’s method for calculating

a reasonable portion of the reimbursement. The BYOD policy should allow for adjustments to the methods for calculating reimbursement to accommodate new technology and/or fluctuations in usage depending on the employee’s job. 5. Assess overall risk of past practices with the employer. Formulate a plan to estimate and reimburse past required expenses within the applicable statute of limitations as a means to limit exposure. s

JoAnna Brooks is a Shareholder with Littler Mendelson, PC, in its Walnut Creek office where she represents employers in all aspects of employment law. Ms. Brooks regularly defends management in class action matters. If you have any questions, you can contact her directly at (925) 927-4530 or at jbrooks@littler.com. 1

Cochran v. Schwan Home Services, Inc., 228 CalApp.4th 1137 (August 12, 2014).

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

Missed Calls Costing You Clients? Have a live, professional telephone Receptionist for a fraction of the cost of an on-site employee.     

Enhance your professional image. Eliminate missed calls. Improve client service. Manage your workload. Convert callers to clients.

Meet and train our Receptionists to function as an extension of your staff and the front-end for your practice.

To learn how a modern-day, off-site Receptionist can help grow your practice, schedule a web demo or live tour. Call (925) 627-4200 or visit ReliableReceptionist.com

JULY 2015

1701 N. California Blvd., Walnut Creek, CA 94596

Why Make Employees Stand All Day? by Harvey Sohnen

aking employees stand all day can have harmful health consequences, but many employers continue to refuse to allow employees to sit down to perform any of their duties. The California Supreme Court has recently been called on to interpret state regulations concerning a requirement that employers provide employees suitable seats when the nature of the work reasonably permits use of seats. At stake is whether employers can force employees to stand throughout their shifts when some or all of the tasks could be performed while sitting. The regulations in question are contained in Industrial Welfare Commission (IWC) Wage Orders, seen posted on the walls of many workplaces, which regulate the wages, hours and working conditions of most California employees. There are 17 such Wage Orders. Section 14(A) of each of the Wage Orders provides: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Although the requirement of seating is not new, enactment of the Private Attorney General Act of 2004 (PAGA), Labor Code section 2698 et seq., enabled private litigants for the first time to enforce the law. They can do this through representative actions (and class actions),

with the plaintiff/employee standing in the shoes of the state of California to enforce the law. The first major employee victory in this area came in 2010 in Bright v. 99 Cents Only Stores, 189 Cal. App. 4th 1472. Bright was a seating claim brought as a class action by cashiers at retail stores who were to stand for their entire shift at their registers.

Surprisingly, the court criticized the stools that plaintiffs had proposed, and commented that if “lean stools” had been proposed, the case might have gone the other way. If nothing else, Garvey led lawyers on a hunt for furniture catalogs to figure out that a lean stool seems to be a cross between a step ladder and a bar stool.

The trial court dismissed the suitable seating claim. The employees appealed and the California Court of Appeal, 2nd District, gave employees the green light to bring suitable seating claims under PAGA and seek penalties under that law.

Notwithstanding this odd result, there has been a steady stream of seating cases, in many cases against retail stores, where cashiers stand all day, and against those banks that require tellers to stand unremittingly at the counter.

The penalties are $100 per pay period for each aggrieved employee for the initial violation. In the case of a subsequent violation, the penalties go from $100 to $200. Seventy-five percent of the penalties go to the state, for whom the action is brought, and 25 percent to the employees. A successful plaintiff can also recover an award of attorney’s fees.

This author’s firm, the Law Offices of Sohnen & Kelly, was counsel for the plaintiffs in Brooks v. U.S. Bank, a case for supermarket branch tellers of U.S. Bank, in which claims for seating and rest breaks settled for $1.9 million in 2014. Also in 2014, Gallardo v. AT&T Mobility was settled for retail sales staff for $1,050,000. In 2011, Church v. GameStop was settled for video game retail store employees for $750,000.

The first suitable seating class action to go to trial was Garvey v. Kmart Corporation, U.S.D.C., Northern District of California, in 2012. It resulted in a decision in the employer’s favor. The court found a legitimate basis for requiring employees to stand because they had to convey a “ready-to-assist” attitude to customers, consistent with the company’s goal of projecting the appearance of efficient service.

In 2013, the 9th Circuit Court of Appeals was confronted with issues about what the suitable seating mandate means in Kilby v. CVS and Henderson v. JP Morgan Chase Bank, pending class action. Kilby involves cashiers at CVS Pharmacy, with Wage Order 7 applicable. Henderson involves tellers at JPMorgan Chase Bank, with

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Why Make Employees Stand,

employees stand without letup will have some justification ready—such as “customer perception.” What weight is to be given to these employer justifications for requiring standing?

cont. from page 9

the same language of Wage Order 4 applicable. The 9th Circuit requested that the California Supreme Court answer three questions about these provisions. In 2014, the California Court accepted the request (Case S215614). The three questions in Kilby and Henderson are: (1) For purposes of IWC Wage Order 4-2001 § 14(A) and IWC Wage Order 7-2001 § 14(A), “(1) Does the phrase ‘nature of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employee’s duties? (a) If the courts should construe ‘nature of the work’ holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat? “(2) When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee? “(3) If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A)?” The first question addresses a reality of many jobs— some tasks can be performed sitting while others may require standing. For example, even for the most sedentary of secretarial jobs, the employee will have to go across the room occasionally to take papers out of a printer or obtain a file. So what proportion of the tasks need to be “sitting” tasks before the suitable seating requirement is triggered? The second question mixes three separate points. One can be assured that any employer who makes its

—

The physical layout of the workplace raises a cost issue. If the employer has designed its space so that there is no room for sitting, can the cost of modification justify not providing seats? Finally, should seating standards be determined on a one-size-fits-all basis, or should they be tailored to who is actually in the job? For example, can employers make judgments about which employees are most and least in need of seating by virtue of age and physical characteristics? The third question seems to be an echo of the curious “lean stool” twist in Garvey. For an employee to prevail, does he or she have a burden to find the right chair or stool in a furniture catalog? The answers to these questions will have a significant effect on the California workplace. The United States and California Chambers of Commerce and AARP have filed amicus briefs in Kilby and Henderson. As noted by AARP, while prolonged standing is associated with the development of musculoskeletal disorders in workers of all ages, it can be particularly difficult for some older workers, which is the nation’s fastest growing segment of the working population. So why are employers so resistant to allowing employees to sit? While no date has yet been set for oral argument of Kilby and Henderson, an announcement of that argument may well occur very soon. The decision will let us know where California workers stand—or sit. s Harvey Sohnen is co-editor of the Contra Costa Lawyer magazine. He is a principal in the Law Offices of Sohnen and Kelly in Orinda, where the focus of his practice is wage and hour law class actions, and other employment and commercial cases.

WANTED —

Law Offices of David A. Arietta

Conservatorships think

BANKRUPTCY ESTATE PLANNING TRUST ADMINISTRATION AND PROBATE

Matt Toth

as in Pedder, Hesseltine, Walker & Toth, LLP

oldest partnership in Contra Costa County (since 1955)

p 925.283-6816 • f 925.283-3683 3445 Golden Gate Way Lafayette, CA 94549 AV Martindale-Hubbell

JULY 2015

700 Ygnacio Valley Rd, Ste 150 Walnut Creek, CA 94596 (925) 472-8000 david@ariettalaw.com

Certified Specialist Bankruptcy Law State Bar of California Board of Legal Specialization Rated AV Preeminent Martindale-Hubbell

www.AriettaLaw.com

Keeping Up with California Regulations Means New Workplace Policies and Training by Margaret J. Grover

egulations applying to Heat Illness Prevention and governing leave under the California Family Rights Act have recently been updated. California employers should examine their policies and training programs to ensure that both are in compliance.

It’s Getting Hot in Here The Heat Illness prevention regulations promulgated by California Occupational Safety and Health Administration (Cal/OSHA) were updated effective May 2015 (8 Cal. Code of Regs. § 3395). The new regulations provide additional protections for employees working in the heat. In addition, the regulations now require employers to articulate plans for emergencies and to train all employees. The enhanced protections include: • Shade Requirements: Shade is required whenever the work site temperature exceeds 80 degrees. If there is no available shade on the work site, the employer must provide a shade structure. Employers are to monitor the temperature and be prepared to provide shade. When shade is required, it must be in a location that does not “deter

or discourage access or use.” Employees should not have to cross traffic or waterways to reach the shade. Shade must be sufficient for all employees on a meal or rest break to sit in the shade at one time. The regulations recognize that breaks may be staggered, so that the shade need not be large enough to accommodate all employees at the work site at once. • Water: Water must kept as close to the employees as practicable. It must be fresh, pure and suitably cool. The water should be cooler than the air temperature, but not cold enough to cause discomfort. • Cool-down Periods: Employees must be allowed and encouraged to take a preventive cool-down rest when they feel the need to do so to protect against overheating. Employees who take a cool-down rest are to be monitored and encouraged to remain in the shade.

The cool-down rest must allow the employee at least five minutes in the shade, and the employee may not be ordered back to work until signs of heat illness have abated. If the employee shows or reports symptoms of heat illness, first aid or emergency care is to be administered. High-heat procedures are new to the regulatory scheme. When the temperature exceeds 95 degrees, additional protections are to be implemented. These include effective observation or monitoring for heat-related illness, improved communications and designated procedures for calling emergency medical assistance. In addition, the high-heat procedures are to be reviewed in a pre-shift meeting, during which all employees must be encouraged to drink plenty of water and take cooldown rests, when needed.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

California Regulations, cont. from page 11

Emergency response procedures are also required under the new regulations. The emergency response procedures should include ensuring that supervisors recognize the symptoms of heat illness, understand how to prevent progression of the condition and know basic first aid. Emergency response procedures must also include a plan for effective emergency communications. Employers are now required to train all employees, with supervisors receiving more detailed training. In addition, employers are required to publish a heat illness prevention plan in both English and the language understood by the majority of employees. Cal/OSHA is publicizing the changes. During any inspection, including those following a serious workplace injury, the agency will review the heat illness prevention policy for compliance.

We Are Family

interests of the other with respect to the employee; or (3) where there is common control between the businesses. • Employee Work Site Definition: Determination of whether an employee works within 75 miles of 50 employees and is, therefore, eligible for leave, has been refined. A work site can refer to a single location or a group of contiguous locations. If the employee lacks a fixed work site, the employee’s assigned home base, from which her or his work is assigned, or to which the employee reports, is used, even if not in the same state. • Leave Eligibility: For employees who begin leave before having completed the 12 month length of service requirement for eligibility, if the leave would otherwise qualify for protection under the CFRA, the time off counts toward the length of service.

Elder Law is

The California Fair Employment and Housing Council has changed the regulations governing leave under the California Family Rights Act, California Government Code § 19245.2 (CFRA). Many changes adopted are to regulations implementing the federal Family and Medical Leave Act, 29 U.S.C. sec. 2601, et seq. (FMLA).

JULY 2015

• Employer’s Time to Respond to Leave Request: Under both state and federal laws, the employer now has five business days to respond to an employee’s request for leave. • Certification of Need for Leave: An employee must be given not less than 15 days to provide certification. The request for certification must advise the employee of the consequences of failure to provide adequate certification.

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall. Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, approximately one in ten families has a relative with this disease. Of the four million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

The CFRA amendments are contained in Title 2, California Code of Regulations, Article 11, § 11087 et seq., and became effective July 1, 2015. Key changes include: • Joint Employers: Determination of whether or not a joint employment relationship exists requires examination of the entire relationship and will generally exist: (1) where the entities have agreed to share employees; (2) where one employer acts in the

Thus, an employee who works full time for 11 months, then takes workers’ compensation leave would not be eligible for CFRA leave until the anniversary of her or his hire date. The first month of time off would not be protected under CFRA, nor would it count against the employee’s leave entitlement. Once the employee’s anniversary date passes, she or he would be eligible for the full 12 weeks of CFRA leave.

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

Michael J. Young

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

Alzheimer’s Planning

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

Absent extenuating circumstances, if the employee fails to provide certification within 15 days, the employer may deny CFRA protections for leave after the 15 days, until the employee provides a sufficient certification. If the employee never produces the certification, the leave is not CFRA leave. • Rights on Return: On return from CFRA leave, an employee is entitled to the same or comparable position. Any comparable position should be “virtually identical” to the employee’s former position in pay, benefits, shift, schedule, geographic location, working conditions, privileges, perquisites and status. The position must involve the same or substantially similar duties and responsibilities. • Key Employee Provisions: The regulations provide substantial clarification to provisions allowing an employer to deny reinstatement to a “key employee,”

including a test for determining whether an employee is a “key employee” and the employer’s notice obligations. • Return to Work: An employer may not require an employee to undergo a fitness-for-duty examination as a condition of an employee’s return. After an employee returns from CFRA leave, any fitness for duty examination must be job-related and consistent with business necessity. • Use of Paid Time Off: The regulations detail when an employer may require use of accrued paid time off, and differ depending on the reasons for the leave. One area to note is that Paid Family Leave to care for the serious health condition of a family member or to bond with a new child is not “unpaid leave.” The employer may not, therefore, mandate the use of any accrued paid time off. • Health Insurance: Detailed information is provided regard-

ing when and how an employer should collect the employee’s portion of health care premium, and what is required to terminate benefits for non-payment. • Retaliation Protections: Additional detail is provided about the scope and nature of protection against interference with CFRA rights and retaliation. • New Notice and Certification Requirements: The regulations add new notice requirements and a new medical certification form.s Maggie Grover has been practicing employment law for more than 25 years and currently leads the employment practice group at Oakland’s Wendel Rosen Black & Dean, LLP. Maggie has represented both employers and employees, and enjoys helping parties resolve disputes as a mediator.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Is Your Worker an Employee or an Independent Contractor? by Mukesh Advani

ew areas in employment law are subject to as much debate and factual analysis as to when an individual is an independent contractor and not an employee. Companies occasionally classify their workers as independent contractors because the cost savings and other benefits are significant. However, the law imposes considerable liabilities and penalties when an individual is treated as an independent contractor and later found to be an employee, especially when misclassification is intentional. The cost savings of classifying a worker as an independent contractor are substantial. For example, the company does not have to pay an employer’s portion of Social Security, Medicare, federal and state unemployment taxes or pay workers’ compensation insurance, employee benefits, the minimum wage or overtime. The company does not need to comply with other wage and hour law requirements such as providing meal and rest periods and reimbursement for business expenses. In addition, the company is not subject to the requirements of the Immigration Reform and Control Act of 1986, workers have no protection under many state and federal antidiscrimination laws, and such workers do not subject the company to vicarious liability for their acts. However, misclassifying a worker as an independent contractor creates potential liability for employment taxes and penalties, including monies that should have been withheld from wages as FICA and income taxes. If individuals are found to be employees, the Employment Development Department (EDD) will assess the employer for unemployment insurance contributions, disability insurance contributions and state income tax withholding amounts.

JULY 2015

Further liabilities are imposed, including for overtime payments and other wage claim liability, workers’ compensation insurance premiums (along with potential liability for workplace injuries), and other civil penalties and fines. Reclassified workers may also be entitled to coverage and benefits under employee benefit plans. An employee or an administrative agency may file suit to recover back wages and an equal amount in liquidated damages, plus attorney fees and court costs. The law also imposes significant penalties on any employer who “willfully” misclassifies an individual as an independent contractor. California law starts with a rebuttable presumption that a worker is an employee.1 There is also a rebuttable presumption that where a worker performs services that require a license pursuant to Business and Professions Code Section 7000, et seq., or performs services for a person who is required to obtain such a license, the worker is an employee and not an independent contractor.2 There is no established rule or definition of when a worker may be considered an independent contractor. Rather, it depends upon the individual facts and circumstances. An employer is not immune from liability for misclassification simply because the worker signed a written contract agreeing to be treated as an independent contractor, wants to be treated as an independent contractor, works part time, does assignments from time to time, is paid only by commission, has no supervision or works for more than one organization, or is issued a 1099 rather than a W-2 form. Even a professional, such as a lawyer, a physician or an accountant could be either an employee or an inde-

pendent contractor depending upon the facts and circumstances. California courts and the Division of Labor Standards Enforcement (DLSE) consider a number of factors set forth in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341. All of these factors, called a “multi-factor” test or “economic realities” test, are required to be considered but none of them are controlling. The principal test of an employment relationship is this: Whether the person to whom service is rendered has control or the right to control the worker both as to the work done and the manner and means in which it is performed. However, the “control” test may not be applied in isolation given the “infinite variety of service arrangements.”3 Additional factors that may be considered are: “(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools and the place of work for the person doing the work; (e) the length of time for which the services are

to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.”4 It is important to note that the same individual may be considered an employee for purposes of one law and an independent contractor under another. For example, the DLSE will often use the five prong “economic realities” test to decide the issue. However, in a separate matter before a different state agency with the same parties and same facts, that agency may be required to use a different test (such as the control test) which may result in a different determination. The IRS uses its own “20 Factors” test, although “the right to control” is the principal test under the IRS rules as well. Moreover, the IRS weighs the factors differently from its California counterparts.5 While there are clearly great advantages to an organization classifying a worker as an independent contractor, the consequences of getting it wrong could be severe. At the same time, a company should not be hesitant to classify a worker as an independent contractor where the facts and circumstances so warrant. Each working relationship must be thoroughly researched and analyzed. The company should assume all

Morrill Law Firm Phone 925.322.8615 • Fax 925.357.3151 2175 N. California Blvd., Suite 424 Walnut Creek, CA 94596

Joseph Morrill, Attorney Heather Hoekstra, Attorney Nathan Pastor, Attorney

Will & Trust Litigation Financial Elder Abuse Conservatorships Estate Planning Trust Administration Probate Mediation

3220 Blume Drive, Suite 200 Richmond, CA 94806

Ruth Koller Burke, Of Counsel Vahishta Falahati, Of Counsel Nicole Morrill, Paralegal Jill Olivier, Paralegal

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Independent Contractor, cont. from page 15

workers are employees unless they clearly meet all legal requirements and pass all tests various federal and state agencies use for proper classification of independent contractors. s Mukesh Advani is Of Counsel to Dental & Medical Counsel and practices in the areas of employment law, including wage and hour and wrongful termination litigation matters, insurance coverage matters for policyholders, general civil litigation and appellate law. He may be reached at ma@dmcounsel. com. 1

Labor Code § 3357.

Labor Code§ 2750.5. The California Supreme Court recently granted review in Dynamex Operations West, Inc. v. Superior Court (SC S222732.rev. granted 1/28/15) in which the 2nd District Court of Appeal held that the test for determining whether an individual is an independent contractor or employee will depend upon whether the individual has alleged a violation of a wage order provision. If such an allegation has been made, then the definitions of “employ” and “employer” in the wage order apply to determine whether a worker is an “employee” or an independent contractor. This decision may be contrary to well-established “multi-factors” or “economic realities” test the courts traditionally consider to analyze employee versus independent contractor status. S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341.

Borello at 350. This “multi-factor” test was more recently reaffirmed by the Supreme Court in Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522. 4

See Ayala v. Antelope Valley Newspapers, Inc, supra, at p. 532, quoting Borello, supra, 48 Cal.3d at p. 351. 5 The Supreme Court may provide some clarity on this in Dynamex Operations West, Inc. (See footnote 1, supra.)

JULY 2015

Since 1949 Rated AV by Martindale-Hubbell

Bray & Greenwood LLP Oliver W. Bray* Oliver A. Greenwood Over 29 years in practice

736 Ferry Street Martinez, CA 94553 925-228-2550 925-370-8558 (fax) braygreenwood.com

obray@braygreenwood.com ogreenwood@braygreenwood.com

• Probate, Trust & Estate litigation and administration • Elder Abuse litigation • Conservatorship and Guardianship establishment and litigation • Fiduciary Representation and Court Accountings • Estate Planning, Wills & Trusts Free case evaluations for referring attorneys *Certified Specialist in Estate Planning, Trust and Probate Law – State Bar of California Board of Legal Specialization *Selected to Northern California Super Lawyers each year since 2006

The Mythical Unpaid Intern by Michelle Ferber and Brooke Barnum

ummertime is upon us, and that means that there are eager students looking to gain valuable work experience. At first blush, it might seem like recruiting an unpaid summer volunteer or intern is the perfect “win-win.” From an organizational perspective, there is always work to be done and having an enthusiastic individual do it for zero dollars sounds like the ultimate cost-savings measure. From the intern’s point of view, it could be the proverbial “foot in the door” or at least a worthwhile resume boost. But, and it’s a big “but,” titles do not determine the legal relationship between an individual worker and a company. Simply calling an individual an intern or a volunteer will not allow a company to avoid the requirements of the employer-employee relationship, which includes the payment of wages and following all applicable Labor Code requirements.

Who Legally Qualifies as a Bona Fide Volunteer or Intern? It’s true that certain individuals in specific situations can fall outside of the sweep of wage and hour requirements. However, the law carefully limits who qualifies as a volunteer or intern. And that’s why the unpaid intern is a mythical creature in the context of most organizations. A person may be categorized as a volunteer if she or he donates her or his services, without contemplation of payment, for humanitarian, public service or religious reasons. This means that certain public agencies and certain nonprofit organizations may have volunteers. Those organizations still must ensure that there is no expected payment of any kind in exchange for the volunteered services. Payment is an expansive concept as it includes in-kind services like housing or meals, in addition to cash. However, since for-profit organizations are not humanitarian, public service oriented, or based on religious service, this means that the law does not permit them to have volunteers. In other words, there is no such thing as a volunteer at a for-profit company.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Unpaid Intern, cont. from page 17

What about interns? Well, the law stringently governs who counts as an intern. True interns under the law are actually “trainees.” The Department of Labor identifies six legal criteria that must be applied to determine whether a trainee is exempt from wage laws. The criteria are as follows: 1. The training, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in a vocational school. 2. The training is for the benefit of the trainees or students. 3. The trainees or students do not displace regular employees, but work under their close observation. 4. The employer derives no immediate advantage from the activities of trainees or students, and on occasion the employer’s operations may be actually impeded. 5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period.

6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training. The criteria are applied by looking at the totality of the circumstances. No one factor is more important than any other, and the particular circumstances of a given trainee are taken into account. This means that there is very little predictability about whether a particular “trainee” is or is not properly classified as an employee: A dangerous reality for employers! In addition, the above criteria are specific and demanding. It is clear that the law is written so as to ensure that a trainee program is set up first and foremost to benefit trainees. The law is less concerned with the benefits that trainees provide to employers. In fact, any benefits to the employer are treated as incidental. And looking to the fourth factor, if an organization derives any immediate advantage from the activities of an intern, then this fact alone will likely transform an intern into a legal employee. Another important point to note is that interns cannot displace regular employees, so if an organization is bringing in “interns” at the same time that it is cutting back employees, this criterion weighs against the employer. This factor is geared towards protecting the job stability or prospects of employees.

Where Does this Leave an Organization that Wants to Bring on Summer Help? Assuming that you still want to bring on summer help (or temporary help any time of the year), then reflect on why you want to do so. If the answer is to benefit your organization, then the best practice is to hire employees and comply with all the wage and hour requirements that apply.

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

FIDUCIARY SERVICES AND CARE MANAGEMENT

While growing older is often a rich and satisfying experience, it’s not always easy. Trustcare Fiduciary Services offers clients a holistic approach to address challenges due to aging. We are state licensed and specialize in serving as successor trustee, executor, conservator, or attorney-infact for finance. We also provide clients with geriatric care management and work with their medical professionals and families to create and implement an individualized care plan. Honoring the wishes of our clients is our key objective.

TRUSTCARE FIDUCIARY SERVICES (925) 948-8998, www.trustcare.biz

JULY 2015

Even one legal claim filed against the organization will more than likely cost more than the anticipated savings of illegal volunteer positions or internships. In the state of California, wage violations carry liquidated damages. If you tack on to that exposure the other civil penalties, attorneys’ fees and other potential wage damages, the potential exposure to an employer’s pocketbook is incredibly high. Additionally, a single claim can quickly turn into a class action if you have hired multiple incorrectly classified “interns” over the years. s Michelle Ferber is the Managing Shareholder of Ferber Law, P.C., in San Ramon. Michelle specializes in employment litigation and advice and counsel. Brooke Barnum is an associate attorney with the firm.

Tax & Estate Planning Attorneys Individual & Business Tax Issues Tax Preparation • Tax Planning • Tax Controversy Sophisticated Estate Planning • Estate Administration Trust & Estate Litigation • Probate

YOUNGMAN & ERICSSON 1981 N. Broadway, Suite 300 | Walnut Creek, CA 94596 (925) 930-6000 | Youngman.com

Walter C. Youngman, Jr., Attorney-CPA Jean Claude B. Mallein, Jr., MBA, LL.M-Taxation State Bar Certified Specialist-Estate Planning, Trust & Probate

Tara H. Shine, Attorney

Dani Altes, Paralegal Lisa Salvetti, Legal Secretary Maudie Sullivan, Certified Tax Preparer

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Headl

ining

SA JOKUITOR P I S RE

Act: A

uggie

Smith

COMEDY NIGHT May 7, 2015

Opening Act: Robin Cee

For more photos, visit our Facebook page at facebook.com/CCCBA!

Sunita Popal, Julia Levitskaia, Adam Carlson, Nick Casper and James Huan Ly

Justice James Marchiano (ret.) and Larry Sly

Steven Mehlman and spouse

JULY 2015

The Contra Costa County Bar Association presents:

SPONSORSHIP OPPORTUNITIES Platinum | $5,000 • 10 passes to the reception, plus first drink • Recognition on print invitation (if confirmed by July 24th) • Recognition in press releases and event publicity • Prominent placement in all event materials • Recognition at event

Gold | $2,500

SAVE THE DATE!

GALA RECEPTION in support of the

FAMILY JUSTICE CENTER'S Legal Incubator Project

Thursday, October 1, 2015 Lafayette Park Hotel | 5:30 - 7:30 pm

• 5 passes to the reception, plus first drink • Recognition on print invitation (if confirmed by July 24th) • Recognition in event publicity • Prominent placement in all event materials • Recognition at event

Silver | $1,000 • 2 passes to the reception, plus first drink • Recognition on print invitation (if confirmed by July 24th) • Recognition in event publicity • Placement in all event materials • Recognition at event Our goal for this year is $40,000!

To inquire about sponsorship opportunities, please contact Theresa Hurley at thurley@cccba.org or (925) 370-2548.

Single Ticket Price: $85 / Law Students: $60 Individual Sponsors: Those who purchase two or more tickets CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER at $100 each will be listed on the program.

SAV PROUDLY PRESENTS

E TH ED ATE !

21st Annual

MCLE Spectacular! Friday, November 20, 2015 Walnut Creek Marriott | 2355 N. Main Street

Event Sponsor JAMS

Breakfast Kickoff Speaker

Cindy Cohn

Executive Director of Electronic Frontier Foundation

Premium Sponsors The La Musga Company Judicate West Thomson Reuters Westlaw

Luncheon Speaker

Mark DeSaulnier U.S. Congressman, 11th District of California

Afternoon Plenary Speaker

Richard P. Carlton Acting Director, Lawyer Assistance Program at the California State Bar

Ear

nu pt o8 MC LE Cr edi ts!

JULY 2015

Sponsors ADR Services, Inc. Aiken Welch Court Reporters Certified Reporting Services JFK University College of Law

An Overview of Employment Arbitration Agreements by Kevin R. Allen, Esq.

hether drafting an arbitration agreement or advising a client to challenge an existing agreement, employment attorneys need to be familiar with the pros and cons of arbitration, its requirements and limitations, as well as the legal theories currently available to invalidate such agreements.

From the employer’s perspective, arbitration offers many pros. Although the rules vary depending on the parties’ agreement, arbitration typically involves more streamlined discovery and hearing procedures.1 The rules of evidence are more relaxed and the awards are usually confidential. If the employee is especially sympathetic, an arbitrator might be less inclined to issue an emotional ruling than a jury. However, there are downsides. An arbitrator’s award is not usually subject to appeal and a trial court can only refuse to confirm an award and enter judgment if there was fraud or corruption by the arbitrator, undisclosed grounds for disqualification, or the arbitrator refuses to consider evidence or provide sufficient opportunity for a hearing.2 From the employee’s perspective, one of the largest concerns seems to be getting an impartial arbitrator. The accepted wisdom is that an employer and his or her firm are much more likely to have had someone appear in front of the arbitrator in the past and to have repeat business for the arbitrator than a plaintiff and his or her attorneys. There also is some empirical data that employers tend to fare better in arbitration than employees.3

Before an arbitration agreement can be enforced, there must be evidence of an agreement between the parties to arbitrate. This is usually an easy burden, but can pose problems for employers who do not maintain adequate records or who rely on electronic signatures.4 Whether a particular dispute is arbitrable is presumptively a question for the court to decide absent “clear and unmistakable” evidence that the parties agreed that the arbitrator would decide this question.5 However, if the clause incorporates a set of arbitration rules which confers upon the arbitrator the power to determine his or her own jurisdiction, the parties “clearly and unmistakably” agree to arbitrate whether a given dispute is arbitrable.6 Some of the more widely discussed arbitration cases involve class actions and class action waivers. In 2010, the Supreme Court of the United States (SCOTUS) issued its decision in Stolt-Nielson S.A. et al. v. Animalfeeds International Corp.,7 holding that “an implicit agreement to authorize class-action arbitration … is not a term that the arbitrator may infer solely from the fact of the par-

Youngman & Ericsson

1981 North Broadway • Suite 300 Walnut Creek, CA 94596

Tax & EstatE Planning attornEys Youngman.com

(925) 930-6000

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Arbitration Agreements, cont. from page 23

ties’ agreement to arbitrate.”8 An agreement to arbitrate “all claims,” or that is silent about class arbitration, is typically not enough. The general principle is easy to state: An individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. An individual is not an independent contractor if he or she performs services that can be controlled by the payer. This applies even if the individual is given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed. In 2011, SCOTUS issued its decision in AT&T Mobility v. Concepcion,9 which allowed for class action waivers in arbitration agreements10 and invalidated state laws that singled them out.”11 Challenges continued to be permitted if based on a “generally applicable contract defense, such as fraud, duress or unconscionability.”12 However, in 2014, the California Supreme Court held that a waiver of Private Attorney General Act (PAGA) claims runs contrary to California’s stated public policy in having its labor code provisions enforced through private individuals.

Iskanian v. CLS Transportation Los Angeles LLC held that an employee’s right to bring a PAGA action is unwaivable and not preempted by the Federal Arbitration Act (FAA).13 A PAGA claim does not need to be certified and is not a class action, so it was unclear whether they could be waived. California Appellate Courts have largely followed Iskanian14 and the United States Supreme Court has refused so far to take the question up on appeal.15 However, U.S. District Courts have largely ignored it, instead holding that the FAA preempts PAGA and allows for such a waiver.16 Many expect the U.S. Supreme Court to weigh in on the issue eventually. Courts do not enforce arbitration provisions that are “unconscionable.”17 A party must show both procedural and substantive unconscionability, but on a sliding scale: “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”18 Procedural unconscionability concerns the conditions and manner in which the contract was entered into and negotiated.19 Although there are several factors that can give rise to such a finding,20 the most common is a showing that the agreement was drafted by the employer, provided to the employee as a condition of employment, and that there was an absence of meaningful choice to the employee regarding its terms.21 Other issues include whether or not the agreement identifies the applicable rules for any would-be arbitration proceeding.

Northern California Mediator / Arbitrator 18 years as Mediator 27 years as Arbitrator 35 years in Civil Practice

Roger F. Allen 510.832-7770 Ericksen, Arbuthnot 155 Grand Avenue, Suite 1050 Oakland, CA 94612

rallen@ericksenarbuthnot.com

JULY 2015

• Training includes Mediation Course at Pepperdine University 1995 • Serving on Kaiser Medical Malpractice Neutral Arbitrators Panel • Settlement Commissioner, Alameda and Contra Costa Counties • Experienced in all areas of Tort Litigation, including injury, property damage, fire loss, malpractice, construction defect

Substantive unconscionability is present when the terms of the applicable agreement are overly harsh or one-sided.22 Examples include oneway arbitration provisions; shortened deadlines for making arbitration demands, including deadlines shorter than the statute of limitations; limitations on discovery that unduly impact the employee; and limitations on attorney fee awards. s Kevin R. Allen, Esq., is the principal of the Allen Attorney Group in Walnut Creek. He represents employees and small business clients in trial and arbitration with a strong emphasis on wage and hour and class action issues and trade secret litigation.

See e.g., American Arbitration Association’s Employment Arbitration Rules. 2 See Cal. Code of Civ. Proc. § 1286.2. The FAA includes similar grounds for vacating an arbitration award. See 9 U.S.C. § 10. 3 Colvin, A. J. S. (2011). An empirical study of employment arbitration: Case outcomes and processes [Electronic version]. Retrieved June 4, 2015, from Cornell University, ILR School site: http://digitalcommons.ilr.cornell.edu/articles/577. 4

Ruiz v. Moss Bros. Auto Group, Inc., Court of Appeal, 4th Appellate Dist., 2nd Div. (2014). 5

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45 (1995).

Oracle Am., Inc. v. Myriad Group A.G., 724 F.3d 1069, 1071 (9th Cir. 2013).

7 Stolt-Nielson S.A. et al. v. Animalfeeds International Corp., 130 S.Ct. 1758 (2010). 8

Id.

AT&T Mobility v. Concepcion, 563 U.S. 321 (2011). 10

Id. at 1742- 43.

Concepcion overruled the so-called Discover Bank rule that invalidated classaction waivers contained in arbitration agreements since they could be viewed as insulating the employer from liability for wrongdoing involving small sums of damages. Discover Bank v. Superior Court (30 Cal.Rptr.3d 76).

Concepcion, 131 S.Ct. at 1746.

Cal. Labor Code Section 2698 et seq.

Securitas Security Services USA, Inc. v. Superior Court (Edwards), ___ Cal. App.4th ___ (Feb. 27, 2015).

On January 20, 2015, SCOTUS denied a petition for a writ of certiorari arising from the Iskanian decision. On June 1, 2015, SCOTUS denied a writ in companion case of Bridgestone Retail Operations v. Brown, Milton, et al. 16

See e.g., Mill v. Kmart Corp., 2014 WL 6706017, *7 (N.D. Cal. Nov. 26, 2014); Langston v. 20/20 Companies, Inc., 2014 WL 5335734, *8 (C.D. Cal. Oct. 17, 2014); Fardig v. Hobby Lobby Stores, Inc., 2014 WL 4782618, *4 (C.D. Cal. Aug. 11, 2014); Ortiz v. Hobby Lobby Stores, Inc., ___ F. Supp.

3d ___, 2014 WL 4961126, *9 (E.D. Cal. Oct. 1, 2014); Chico v. Hilton Worldwide, Inc., 2014 WL 5088240, *13 (C.D. Cal. Oct. 7, 2014); Lucero v. Sears Holdings Management Corp., No. 13-CV-1620-AJB-WVG, Dkt. No. 6 (S.D. Cal. Dec. 2, 2014). 17 See e.g., Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83, 99 (2000). 18 Armendariz, supra, at 114; see Gentry v. Superior Court, 42 Cal. 4th 443, 469 (2007); see also Suh v. Superior Court, 181 Cal. App.4th 1504, 1515 (2010). 19

Kinney v. United HealthCare Services, Inc., 70 Cal.4th 1322, 1329 (1999); Nyulassy v. Lockheed Martin Corp.,120 Cal. App. 4th 1267, 1281 (2004). 20 Factors such as inequality of bargaining power, an absence of meaningful choice on the part of the weaker party, oppression and surprise can give rise to procedural unconscionability. 21

Nyulassy, 120 Cal.App.4th at 1281.

See Little v. Auto Stiegler, Inc., 29 Cal. 4th 1064, 1071 (2003).

Will & Trust Litigation Securities Litigation Elder Abuse Litigation BARR & YOUNG AT TOR N EYS 318-C Diablo Road • Danville, CA 94526-3443 (925) 314-9999 www.BarrYoungLaw.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

pro bono

Pro Bono Spotlight: Gabriela Odell

he Pro Bono Committee of the Contra Costa County Bar Association is pleased to announce its first quarterly Pro Bono Spotlight. Our goal is to recognize individuals in our community who are dedicated to improving civil legal aid and access to justice in our county.

We are fortunate to have individuals who consistently donate their time and talents to help those in need. Our Pro Bono Spotlight is a chance to recognize and thank those individuals who help allow basic services and justice to remain accessible. Our first Pro Bono Spotlight award winner is Gabriela Odell. Going forward, we will accept nominations on an ongoing basis. The nomination form can be found at http://www.cccba.org/flyer/CCCBA_ProBono_Spotlight_Nomination_Form_E.pdf. If you are looking for a way to help, but don’t know where to start, CCCBA will host a Pro Bono mixer on Wednesday, October 28, 2015, at 5:30 p.m. at the Pyramid Alehouse in Walnut Creek. At this event, you will have the opportunity to speak with various legal service providers that need assistance.

An Interview with Gabriela Odell

What is your legal background and what kind of law have you practiced? What did you enjoy most about your time as a practicing attorney and what was challenging for you? After getting my law degree at UC Hastings, I worked at an employment law boutique for seven years, then was hired by one of the firm’s clients, Lawrence Livermore National Laboratory. I was the site’s employment and benefits attorney for 20 years before I retired a couple of years ago. It was probably the most interesting career anyone could want. A good fraction of the 7,000 employees were Ph.D. scientists who did not let you forget that they were smarter than you—until they got sued and learned humility. Eighty percent of the job was political because of the complex reporting relationships to the Regents of the University of California and the United States Department of Energy. You always had to think about “How is this going to upset congressperson so-and-so?” and “How will the headline look?” But I loved working in an environment where everyone believed they were working towards a mission larger than themselves. 26

JULY 2015

What kind of pro bono/volunteer work do you do? What got you interested in volunteering with CCSLS and the courts? After I retired, I was determined to continue with public service and to help individuals solve problems. When the court experienced big budget cuts, I volunteered to be a pro tem judge in small claims and unlawful detainer matters. I also serve on the fee arbitration panel and did some discovery facilitations. At the same time, I got inspired to help older adults experiencing elder abuse. I have a parent who has had dementia for nine years and for whom I had to step into a complex situation when she became the victim of financial abuse by a friend/caregiver. Someone told me about Verna Haas and Contra Costa Senior Legal Services (CCSLS). I prevailed upon Verna to let me help in the Senior Self-Help Clinic and to work on cases for CCSLS. Every Tuesday morning, retired Commissioner Judith Sanders and I team up to assist individuals who need help with almost every kind of legal problem. We prepare unlawful detainers for seniors who need to throw their parasitic adult children out of their house, conser-

vatorship petitions, elder abuse restraining orders, or a letter to a debt collector. Call it “speed law.” Our tag line is: “We can draft anything in an hour or less.” I volunteer in the CCSLS “Consult an Attorney” program at the Antioch Senior Center. I also give presentations at senior centers on how to avoid becoming an elder abuse victim. My most gratifying case was helping a 64-year-old autistic man who had been rescued by the fire department after being locked in a room and starved for 10 years while his ex-in-laws took his assets. He was referred to CCSLS by Adult Protective Services (APS). He literally had no identification, no insurance and his bank account was cleaned out. He was totally alone in the world. Some distant relatives were located. We learned that he had actually inherited several million dollars. Fortunately, there was someone looking out for him! We run health care powers of attorney clinics, and now I am assisting a terminal cancer patient in getting her long-term care insurance company to respond. Last year, I became a member of the CCSLS Board of Directors.

What have you gained/learned from taking on this pro bono work? Aside from learning much law, I am always grounded by the hardships that many seniors, low income or not, endure so stoically. They often have no one else to turn to and are grateful that someone is listening to them and taking them seriously. It’s lovely when they come in and bring you a gift, like fruit from their garden. I am reminded constantly that our legal system is failing ordinary people, not just the poor. Legal help is unaffordable for so many and often the only place they can get resolution is in the self-help centers and small claims court.

Why do you think it is important for attorneys to give back to their communities? What advice would you have for an attorney who is interested in taking on pro bono work?

When I was a new lawyer, my law firm was a strong believer in pro bono work, usually assisting nonprofits. My most exciting experience was handling a case for a nonprofit from initial filing through a federal trial while being mentored throughout by a partner. If well-established law firms could lend their expertise and resources to pro bono legal service providers, their associates could get wonderful training and feel like they were doing something rewarding. Volunteer attorneys would not have to invent the wheel every time they are faced with an unfamiliar area of law. Pro bono work can be challenging because you have to accept the fact that you can only do so much and can’t solve everyone’s problems. That is very hard for me, because I can’t stand not solving a problem!

What is coming up next for you? After spending years managing a family trust, I have started a career as a licensed fiduciary. I am also continuing to provide limited scope legal services for a low fee. Verna is a great inspiration and I am looking forward to helping her build CCSLS into a strong, wellfunded agency.

Here is what Gabriela’s nominator, Verna Haas, Executive Director of CCSLS, had to say about her: Gaby has been involved with CCSLS since 2013 and from the beginning has been an incredible resource for us and our clients. She brings a wealth of knowledge and experience because of her many years as an employment attorney, but also because of her sensitivity to the issues of aging and older adults. She has taken on an ever-growing number of assignments, from representing a Richmond tenant in litigation to serving on the board. Gaby also finds time to consult with me or offer help when we are short-staffed or are struggling with a complex case. She most recently agreed to meet with a senior who is a shut-in because of illness. With Gaby’s help, we are able to help more seniors with a wider array of legal problems. We are grateful to Gaby and to the many members of CCCBA who are already volunteering at CCSLS, and welcome anyone interested in our program to contact us at www.ccsls.org. s

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Contra Costa’s New Pro Bono Wills Clinic by Verna Haas

n a recent Tuesday afternoon, several law students gathered in a law firm in Concord. Their professor, Pamela Zimba, herself a practicing elder law attorney, fielded questions from the students.

needs, including the need for legal services. According to the California Department of Aging, between 1950 and 2000, the number of older adults increased 194 percent, and is predicted to grow to 13.9 million by 2050.

But instead of beginning a lecture or exploring theoretical issues of the law, they discussed the real problems of clients—seniors in Contra Costa County who had come to the program for help, surrounded by the bustle of a law practice.

In Contra Costa, approximately 14 percent of the population is 65 years and over. These people need legal services such as wills and planning for incapacity, but many cannot afford them.

This day, and others like it, is the culmination of a joint project by Contra Costa Senior Legal Services (CCSLS), a private nonprofit located in Concord, and John F. Kennedy University College of Law (JFKU) Legal Clinic for Elders.

In Contra Costa, as in the rest of the nation, we have an aging population that increasingly lacks the resources to meet their basic 28

JULY 2015

Meanwhile, the median Social Security payment is only $12,523 and nearly 75 percent of single recipients of Social Security have no other source of income. So thousands of our county’s seniors have less than half of the income they need to meet their basic needs, much less their needs for legal services. Yet many seniors need legal assistance and counseling regarding matters such as whether to give a relative or friend a Durable Power of Attorney, how to plan for potential incapacity with an Advance Health Care Directive, and whether they need a will or revocable trust and what to include in these various documents.

A recent measure of the economic well-being of Contra Costa’s seniors indicates that thousands are falling through the cracks. The Elder Index, which attempts to provide a better assessment than the Federal Poverty Guidelines for measuring the economic health of elders, shows that a

This new service, the Pro Bono Wills Clinic, provides free simple wills, Advance Health Care Directives and Durable Powers of Attorney to low-income residents ages 60 and over. Though still evolving, this program promises to help provide vital legal services to those in need.

Contra Costa’s Aging Population

single person ages 65 or over needs at least $26,249 to live in Contra Costa.

ConServAtorShiPS ProBAteS CriMinAl DefenSe David B. Pastor

CCCBA MeMBer SinCe 1977

• Free Consultation •

Law Offices of

DAviD B. PAStor

www.davidbpastor.com 1280 Boulevard Way, Suite 212 • Walnut Creek, CA 94595 925-932-3346 • david@davidbpastor.com

These services, and the documents prepared, can mean the difference between a senior having the ability to maintain some control over his or her finances and health care, and losing that ability. Often, if a senior has not made these legal decisions, there is no choice if/when the senior needs assistance. In such instances, a family member is forced to petition the court for a conservatorship, which is a very costly and complicated process.

Contra Costa Senior Legal Services CCSLS was established in 1976 to address the legal needs of seniors. Its mission is to provide free legal services to Contra Costa seniors, especially to those with the greatest economic and social need. The program evolved to include three main services: direct services by staff attorneys, coordination of pro bono clinics and education and outreach. Direct services are provided by staff attorneys at the Concord office. The most common legal issues confronting clients are housing, consumer debt and financial elder abuse. CCSLS also provides legal services through its coordination of over 16 Consult-An-Attorney and Free Wills clinics at senior centers throughout the county. Many members of the Contra Costa County Bar Association are familiar with this program as they have been volunteers. A list of our current volunteers can be found on the organization’s website at www. ccsls.org. With the assistance of those pro bono attorneys, CCSLS has provided hundreds of free wills, legal information and advice to thousands of seniors over nearly four decades. Now, thanks to the new collaboration with JFKU, there is a new clinic available in Concord.

The New Clinic JFKU College of Law also has deep roots in the community, having been established 50 years ago in Martinez as a nonprofit, private college for working men and women. Graduates of JFKU College of Law have been active members of the local bar, serving on the board of the CCCBA, working closely with the Contra Costa Superior Court, and volunteering with CCSLS and other nonprofits dedicated to serving the disadvantaged in Contra Costa. Located in Pleasant Hill, JFKU conducts its Legal Clinic for Elders in which students enroll in the clinic and are registered as certified law students, which allows them to provide legal services to seniors under the tutelage of their supervising attorney. Early last year, CCSLS and JFKU decided that a joint program could provide opportunities to each organization as well as to low-income seniors. This planning resulted in

AND

the formation of the new wills clinic, which began as a pilot project in September 2014. The wills clinic met throughout the fall and winter, and was so popular that it was continued into the spring. The collaboration was a winwin for everyone—students got the opportunity to confront real world issues in the realm of elder law and estate planning, and CCSLS was able to leverage its resources to reach more seniors. And finally, clients of CCSLS got access to legal services they could not otherwise afford. The challenges facing low income seniors and their need for legal services cannot be overstated. JFKU and CCSLS hope that their wills clinic is a small step towards finding a solution. s Verna Haas is the Executive Director of Contra Costa Senior Legal Services.

MEDIATION CENTER

“A unique and effective style a great mediator” Candice Stoddard Ron Mullin

Willows Office Park p 1355 Willow Way, Suite 110 Concord, California 94520 Telephone (925) 798-3413 p Facsimile (925) 798-3118 Email ronald@mullinlaw.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

restaurant review

Fleming’s Steakhouse by Geoffrey Wm. Steele, Esq.

alnut Creek has scads of steakhouses competing for the ever-dwindling clientele seeking the ultimate slab of meat. There’s Vic Stewart’s and Ruth’s Chris Steak House. And then there’s Black Angus and Back Forty Texas BBQ, as well as some establishments that may not specialize in steak, but have a great many choices of such on their menus. We visited one of the newer steakhouse chains that has taken residence here: Fleming’s Prime Steakhouse & Wine Bar. Fleming’s is located near the Century 14 Downtown Walnut Creek movie theater. There is valet parking and you should take advantage of it, especially on the weekends. Upon entry through dark wooden doors, there is a bar to the right and the hostess stand straight ahead. Fleming’s must not believe that this first interaction with the hostess is of any importance, for each time I have dined here, the hostess is usually lacking in any charm or manner. Even if you make a request for a specific dining area or type of atmosphere, it might be ignored. Apparently, you are seated wherever there is an open table. The restaurant itself is dark and cloaked in deep colored wood, attempting to transport the diner back to a traditional east coast steak and chop house like Delmonico’s of New York, Gibson’s of Chicago or Smith & Wollensky in Boston. The kitchen is open to the main dining room. There are a few private rooms off the main room. The wait staff are knowledgeable, friendly and seem to want to help you have a pleasant experience. At any one time, someone will refill your water, refresh or re-

JULY 2015

place your drink or provide you with more bread. One of the cocktails we sampled was a Bourbon Peach Martini, flavored with Maker’s Mark Bourbon that was a little on the sweet side. The wine menu is extensive without being pretentious. Most of the wines you would be able to find in just about any restaurant with a good cellar. The wait staff appears to be reasonably aware of what wine will go well with your meal. Nevertheless, you should stick to what you know and not experiment here because the wines are not cheap. The menu itself rarely changes, although recently Fleming’s has done away with one of their best appetizers, the mushroom ravioli. The manager of the Walnut Creek restaurant told me this was a corporate decision and not one that he necessarily agreed with, but the item itself was not a great seller. We started off with the recommended daily chef’s special New England Clam Chowder and the braised rib short plate for appetizers. The clam chowder was surprisingly lacking any flavor even though it was laced with bacon and the clams were apparently fresh. The clam chowder at the Walnut Creek Yacht Club is one of

the standards for this area and the Fleming’s version paled in comparison. The braised short rib comes on a bed of watery spinach leaves that unfortunately makes the rib also watery. The flavor of the braised rib is subtle without any distinctive flavor profile coming through. We also ordered a side of Lobster Tempura that came nice and hot, crispy on the outside, tender and flaky inside with a delightful sauce, perfect for tempura. The main courses ordered were the Lemon-Rosemary Brick Chicken and a Prime Bone-In Ribeye (requested to be cooked medium), along with side dishes (which are an extra charge) of Lobster Mac & Cheese and Sautéed Mushrooms. The chicken dish was excessively drenched in lemon with a crispy skin and reasonably moist chicken that was mostly because of the lemon sauce. The flavor of the chicken was almost imperceptible because of the lemon. The ribeye was a disappointment. The steak was nicely charred, but this masked the fact that the chef

could not cook it to medium (despite an extra shot at it) and the steak itself was almost blood rare. The flavor was provided mostly from the charring, and the meat itself was not up to the past steaks I have had from Fleming’s. I ladled the Sautéed Mushrooms onto the ribeye, but they lacked the rich flavor you would expect. They had been lightly sautéed in oil and butter, but clearly had not been cooked with any of the meat juices. The Lobster Mac & Cheese, however, was terrific. It was bursting with flavor with just the right amount crusting on the top, and the lobster was just the right blend with the cheese. It was a complement to both the chicken and the steak, and pretty much saved the main courses. For dessert, we chose Crème Brulée with an accompanying Chantilly Cream. I have had the unfortunate experience to taste crème brulée made by none other than Julia Child (1912-2004), and I say unfortunate, because there has never been another to come close to it.

MERGERS, ACQUISITIONS, SALES AND PLANNING FOR BUSINESS OWNERS

BUSINESS LAW HUBERT LENCZOWSKI, J.D., M.A.* Hubert@Lenczowskilaw.com * Adjunct Professor Taxation Golden Gate University Law School, LL.M. Taxation Program

1615 Bonanza Street, Suite 212 Walnut Creek, CA 94596 T (925) 280 7788 www.lenczowskilaw.com

A great crème brulée has the underlying custard chilled while the caramel topping, when served, is still bubbling from the torching of the caramel. Most restaurants premake their crème brulée dessert and then heat the topping, but are unable to get it bubbling without cooking the custard base. For what it was, the crème brulée was serviceable. Yet, the accompanying chantilly cream was wonderful: Light and so tasty with a hint of fresh vanilla bean, but not at all too sweet. It was the perfect pallet cleanser. You are not likely to get away from Fleming’s for under $100 for a party of two. The bill for this meal was close to $175 prior to the tip. Not cheap, but faster by far than catching the redeye to the Big Apple for a ribeye at Delmonico’s. s Geoffrey Steele is a partner at Steele George Schofield & Ramos, LLP. He is a civil litigator, with an emphasis on real property and financial elder abuse.

— WANTED — Will/Estate Contests Conservatorships

You handle the estate, we do the contest. Cases, except conservatorships, often handled on a contingent fee basis, but can be hourly. Referral fee where appropriate. Pedder, Hesseltine, Walker & Toth, LLP oldest partnership in Contra Costa County (since 1955)

p 925.283-6816 • f 925.283-3683 3445 Golden Gate Way Lafayette, CA 94549 AV Martindale-Hubbell

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

inns of court

Bad Lawyering is no Fairy Tale by Matthew Talbot

n May 14, 2015, Judge Flier’s group (starring April Seo, Flavio Carvalho, Marta Vanegas, Delia Isvoranu, Pam Marraccini, Clyde Long, John Hourihan, David Ginn and Michael Markowitz) did their presentation on something near and dear to all of our hearts: being retained by clients.

the Bakers signed a will distributing all of their assets to Wolf.

Another problem here is that the fee is most likely unconscionable. California Rule of Professional Conduct 4-200 does not allow attorneys to obtain an unconscionable fee.

Their presentation, called “Into the Woods,” was a play on the classic children’s stories like “Little Red Riding Hood.” It was narrated by the Oracles, Clyde Long and David Ginn. Judge Flier’s group always puts on a good show. Marta Vanegas and Flavio Carvalho played a husband and wife baking team who were unable to conceive. Delia Isvoranu played a witch who had cursed them. The Bakers wanted to sue said witch, but needed to find an attorney. They met with the Big Bad Wolf (played by Judge Flier) to discuss bringing an action for Intentional Infliction of Magical Distress. Wolf agreed to take the case, but only if

JULY 2015

California Rule of Professional Conduct 4-400 specifically precludes an attorney from obtaining any testamentary gift from a client. There is an exception where the attorney and client are related, but the Bakers are not related to Big Bad Wolf.

As an estate planning attorney, I can tell you that this is a terrible idea. They should have signed a trust; it would have avoided probate and gotten all of their assets to Mr. Wolf, Esq., quicker. Also, it’s wildly unethical to obtain a share in a client’s estate as part of a retainer agreement.

What is an unconscionable fee? Well, in defining unconscionable, 4-200(b) has an 11-factor test, which sounds super annoying to memorize for the bar exam. The Oracles provided all the discussion here, including the specific law. Another problem for Big Bad Wolf is that his partner, Elder Wolf (played by John Hourihan), previously had a consultation with the witch. This creates an impermissible conflict. California Rule of

Professional Conduct 3-310(e) does not allow attorneys to represent clients where they have obtained confidential information from another party to the matter. Illustrating all the things not to do in a potential client meeting would not be complete without a 100 percent satisfaction guarantee. However, California Rule of Professional Conduct 1-400(d)(2) specifically precludes false or deceptive statements to the public. No attorney can promise 100 percent satisfaction. Even I only promise 80-85 percent satisfaction (still a B grade)! Wolf’s approach to being retained counts as unreasonable pursuant to Section 3-300. That section requires full disclosure of all the terms to the retainer agreement and requires notice that the clients could obtain independent counsel to review the retainer agreement for them. He failed to provide that notice. In the next scene, Wolf sought out Little Red Riding Hood (played by April Seo). He impersonated her grandmother in the hope of eating Little Red Riding Hood. It is a tale as old as time itself (or at least the first century when the original folktale was written). The baker comes and attacks Wolf, saving Little Red Riding Hood and sending Wolf to the hospital. At the hospital, Wolf is represented by Shark (played by Michael Markowitz). Wolf wants to blame his attorney for his “eat Little Red Riding Hood” scheme (and who has not had a client say that to you before?), but the attorney says attorney-client privilege will preclude Wolf from saying anything. A discussion regarding that privilege then ensued. The problem for Shark is that the client holds the privilege, not the attorney. While they do not have a valid written retainer agreement, that does not matter. Written agreements are required whenever over $1,000 worth of legal services are to be provided. However, privilege starts when intention of obtaining legal services begins. So, Wolf holds the privilege as the client. Finally, looking for another attorney, the Bakers met with Rapunzel (played by Pam Marraccini). While everything Big Bad Wolf did was wrong, she did everything right. She lawyered the way it was meant to be. The Oracles helped

show how she was the mirror opposite of Big Bad Wolf’s more “avant-garde” lawyering style. This finished the 2014-2015 Inns of Court season, which was another great one. We have a summer mixer open to new and potential members on the evening of July 22, 2015. If you are interested in applying for RGMAIOC membership or attending our summer mixer, please contact Patricia Kelly at patriciakelly@pacbell.net. s Matthew B. Talbot, Esq., is an Elder Law attorney in Walnut Creek. His practice specializes in Estate Planning, Trust/Probate Administration, Trust/Probate Litigation, Conservatorships, Guardianships, Elder Abuse and Medi-Cal matters. Matthew is on the Executive Board of the Inns of Court. You can reach him at matthew@matthewbtalbot.com or (925) 322-1763.

ESTATE PLANNER: WANT TO RETIRE?

Leading Estate Planning Law Firm desires to purchase Estate Planning and Elder Law practices of retiring Contra Costa area attorneys. If you are interested, please contact Reed Scott at (925) 225-1025 for more information.

Candice E. Stoddard Personal Injury Real Estate Litigation Trust and Estate Disputes Mediation

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

925.942.5100 • fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 25 years

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Food From the Bar Drive RESULTS

n May, the Contra Costa County Bar Association held its 24th annual Food From The Bar fundraiser for the Food Bank of Contra Costa and Solano.

It started with the 20th annual Comedy Night kick-off, where 175 attorneys and guests enjoyed BBQ and belly laughs at Back Forty Texas BBQ in Pleasant Hill. Nineteen generous sponsors donated to support the event. That was followed by a two-week fundraising blitz by 34 large and small law offices in the county, whose 700+ employees helped raise more than $51,350 and over 450 pounds of food. Over the years, the Bar Association has collected more than $1,150,000 and 55 tons of food for the Food Bank. The attorneys say they are already planning next year’s fundraiser and comedy show, as they work toward their second million in donations! A special thank you to our sponsors; we could not have done this without your support!

THANK YOU

to CCCBA’s Court Tour Docents Learning about the detention facility, seeing how courthouse security works, finding out that being a lawyer in real life is not like it is on “Law & Order,” getting to participate as a juror, defendant or even the judge during a mock trial. These are just a few of the things that students experience during a court tour—it’s no wonder that they often remark it was their favorite field trip of the year! CCCBA is lucky to have an outstanding group of court tour docents, many of whom are CCCBA members. These fantastic volunteers educated over 2,000 Contra Costa County students, parents and teachers about our legal system over the last school year. Thank you for all that you do! • Brenda Adams • Judge Richard Flier (Ret.) • Commissioner Don Green (Ret.) • Laurel Green • David Hermelin

• Kevin Lally • Jan Maddock • Lisa Reep • Gwen Regalia • Robin Siefkin • Sue Stoltz • Stephenie Teichman • Robin Thornton • Alicia Watson • Jane White

Interested in becoming a court tour docent? Contact Theresa Hurley at thurley@cccba.org or (925) 370-2548 for more information.

JULY 2015

CALENDAR UPCOMING EVENTS | OVERVIEW

July 14 | Barristers and Women’s Sections

So You Want to Be a Partner (One Day) more details on page 36 July 15 | CCCBA

Ethics in Co-counsel & Contract Attorney Arrangements, Part 4 of the 2015 Law Practice Management Series more details on page 36 July 21 | CCCBA

Basic Fee Arbitrator Training more details on page 36 July 23 | Criminal Law Section

Technology in the Courtroom more details on page 36 July 30 | Family Law Section

Get to Know Your Family Law Judges more details on page 36 September 10 | CCCBA

September 16 | CCCBA

Cybersecurity: What You Need to Know, Part 5 of the 2015 Law Practice Management Series more details on page 37 September 26 | CCCBA

Practice Area Expo more details on page 37 October 1 | CCCBA

Bar Fund Gala Reception more details on page 21 October 21 | CCCBA

This is not Your Parents’ Law Firm, Part 6 of the 2015 Law Practice Management Series more details on page 37 November 20 | CCCBA

21st Annual MCLE Spectacular more details on page 22

Job Search Strategies for Success more details on page 36

For up-to-date information on programs, visit www.cccba.org/attorney/calendar and/or subscribe to our weekly “Events & News” email. To subscribe, text CCCBA to 22828.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

July 14 | Barristers and Women’s Sections

July 15 | CCCBA

July 21 | CCCBA

So You Want to Be a Partner (One Day)

Ethics In Co-counsel & Contract Attorney Arrangements, Part 4 of the 2015 Law Practice Management Series

Basic Fee Arbitrator Training

In this interactive roundtable discussion, several successful partners will explain the many ways in which an associate could show rainmaker potential, implement ethical client service practices and become an invaluable asset to the firm. Speakers:

Crystal Van Der Putten Gina Boer Jordan Rojas Karyne Ghantous Suzette Torres

Time: 5:30 pm – 6:30 pm Location: JFK University 100 Ellinwood Way, Pleasant Hill MCLE: 0.5 hours legal ethics MCLE credit Cost: $20 for section members, $25 for CCCBA members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar

Learn about important ethical issues to be aware of in co-counsel and contract attorney arrangements. Speakers: Jerome Fishkin, Fishkin & Slatter Professional Liability Attorney Joan Presky, Presky Legal, PC Katy Young, Ad Astra Law Group Time: 4:30 pm – 6 pm Location: JFK University 100 Ellinwood Way, Room S304, Pleasant Hill MCLE: 1.5 hours legal ethics MCLE credit Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact the CCCBA at (925) 370-2540

More Info: Contact the CCCBA at (925) 370-2540

This valuable training session is offered to all attorney and non-lawyer (lay) volunteers who arbitrate attorney-client fee disputes for any local Mandatory Fee Arbitration Program through the State Bar of California. We also encourage all prospective volunteers to attend. The course will provide the basic training required to serve on a three-arbitrator panel or as a sole arbitrator. Speakers: Lorraine Walsh, Esq. Malcolm Sher, Esq. Steve Gizzi, Esq. Time: 5:30 pm – 8:30 pm Location: JFK University 100 Ellinwood Way, Pleasant Hill MCLE: 1 hour legal ethics, 1.75 hours general MCLE credit Cost: $10 for CCCBA members and nonmembers Registration: Online at www.cccba.org/attorney/calendar

July 23 | Criminal Law Section

July 30 | Family Law Section

September 10 | CCCBA

Technology in the Courtroom

Get to Know Your Family Law Judges

Job Search Strategies for Success

Every trial lawyer should understand the current trends and best practices as well as the risks and pitfalls that await the unwary trial attorney. Local criminal trial lawyer Joseph Tully promises an entertaining and step-by-step tutorial in understanding and embracing this valuable tool.

Presented by the Family Law Section and the CCCBA.

Learn how to put your best foot forward when looking for a legal position! Join us for an informative session where our experienced panel members will cover the following:

Speaker: Joseph Tully Time: 12 pm – 1:30 pm Location: Creek Monkey 611 Escobar St., Martinez MCLE: 1 hour general MCLE credit Cost: $20 for section members, $30 for CCCBA members, $35 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact the CCCBA at (925) 370-2540

Help us honor Judge Jill Fannin for her years of service on the Contra Costa County Family Law bench. Please join us for an opportunity to get to know members of our local Family Law bench on a one-to-one basis. Enjoy refreshments and conversation with your Family Law judges. Time: 5 pm – 9 pm Location: Contra Costa Country Club 801 Golf Club Rd., Pleasant Hill RSVP: Please RSVP to fls.cccba@gmail.com More Info: Contact Therese Bruce at (925) 930-6789 or fls.cccba@gmail.com

• Resume and cover letters; what works and what doesn’t • Interviewing do’s and don’ts • The importance of networking • The job search process • Trends in legal jobs Q & A to follow the panel presentation. Speakers: Audrey Gee, Brown, Church & Gee Jon Lucchese, Robert Half Legal Nandor Krause, Archer Norris Time: 5 pm – 6:30 pm Location: JFK University 100 Ellinwood Way, Room S304, Pleasant Hill RSVP: Online at www.cccba.org/attorney/calendar More Info: Contact the CCCBA at (925) 370-2540

JULY 2015

September 16 | CCCBA

September 26 | CCCBA

October 21 | CCCBA

Cybersecurity: What You Need to Know, Part 5 of the 2015 Law Practice Management Series

Practice Area Expo

This is Not Your Parents’ Law Firm, Part 6 of the 2015 Law Practice Management Series

This program will discuss cybersecurity and what you should know to protect yourself and your firm. Speaker: Mike Murray, Veritext Time: 4:30 pm – 6 pm Location: JFK University 100 Ellinwood Way, Room S209, Pleasant Hill MCLE: 1.5 hours general MCLE credit Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact the CCCBA at (925) 370-2540

Law students and new attorneys: Join us for an opportunity to learn from experienced attorneys about what it is like to practice law! Attendees will have the opportunity to meet practitioners from a variety of practice areas who will speak about what it’s like to work in their field, tips on finding employment, internship opportunities and presentation skills specific to those practice areas. Practice Area Roundtables include: • • • • • • • •

A moderated panel discussion will discuss various models of managing a law firm, including potential alternative models and how they work in practice in comparison to traditional models of managing a law firm. In addition, the panelists will discuss the pros and cons of various alternative and traditional management practices. Speakers: Harry Stern, Rains Lucia Stern, PC Marie Barnes, Ad Astra Law Group Renee Livingston, Livingston Law Firm

Public Attorneys Transactional Employment Litigation Probate/Estate Planning Family Criminal Solo/Contract attorneys

Time: 4:30 pm – 6 pm Location: JFK University 100 Ellinwood Way, Room S209, Pleasant Hill MCLE: 1.5 hours general MCLE credit

Time: 10 am – 12 pm Location: JFK University 100 Ellinwood Way, Room S209, Pleasant Hill RSVP: Online at www.cccba.org/attorney/calendar

Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar

Advertise in the Member Directory LAST CHANCE! Reserve your spot by July 10, 2015.

CCCBA MEMBER RATES DISPLAY ADVERTISING (black & white rates)

Full page 3/4 page 1/2 page 1/4 page 1/8 page

$1,650 $1,200 $ 900 $ 600 $ 425

LISTINGS

Professional listings in the Services, Experts or ADR Directories are $175. With the purchase of a display ad, you receive one free listing. Additional lines are $50 each. Additional categories are $75 each.

For more information, contact Dawnell Blaylock, Communications Coordinator at (925) 370-2542 or dblaylock@cccba.org.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

CLASSIFIEDS LITIGATION ATTORNEY

advertisers index

WALNUT CREEK SPACE WITH VIEW

CCCBA solo, 20+ years experience in insurance defense: medical malpractice, elder abuse, personal injury, contracts, escrow. Available for contract/project work. Contact Deborah L. Phillips at 925-895-5207 or dprnesq@earthlink.net.

LAW OFFICES AVAILABLE IN WALNUT CREEK One large window office and one smaller office available in a nine office attorney suite in downtown Walnut Creek. Offices are on the seventh floor in Class A office building. All amenities including receptionist, conference room, secretarial area, and kitchen. Call Elliott at (925) 947-1333 or Larry at (925) 977-3898.

Single Office For Sublet; Downtown Walnut Creek; 6th Floor View; Secretarial Setup; Furnished or not; Class A. Call (925) 938-5880.

ADR Services . . . . . . . . . . . . . . . . . . . . . . . 19 Roger F. Allen . . . . . . . . . . . . . . . . . . . . . . 24 David Arietta . . . . . . . . . . . . . . . . . . . . . . 10 Barr & Young Attorneys . . . . . . . . . . . . 25

PROBATE PARALEGAL TO ATTORNEYS

Bingham Osborn & Scarborough, LLC . . . . . . . . . . . . . . . . 39

Joanne C. McCarthy. 2204 Concord Blvd. Concord, CA 94520. Call (925) 689-9244.

Bray & Greenwood . . . . . . . . . . . . . . . . . 16 Diablo Valley Reporting Services . . 40 Ferber Law . . . . . . . . . . . . . . . . . . . . . . . . . . 7

BEAUTIFUL WALNUT CREEK OFFICE SPACE AVAILABLE

Beautiful offices w/ 7 solos. Networking poss. Single story converted house w/ pillars, built in’s, FP, molding, kit., conf rm, lg treed rear deck, etc. Corner w/ skylight & built-ins. Perfect for working hard and relaxing at end of long day! Very congenial. No smoking. Call Paul at (925) 938-8990.

Lenczowski Law Offices . . . . . . . . . . . . 31 Morrill Law Firm . . . . . . . . . . . . . . . . . . 15 Mullin Law Firm . . . . . . . . . . . . . . . . . . 29 Perry A. Novak , UBS Financial Services, Inc. . . . . . . . . . . . . 2 David B. Pastor . . . . . . . . . . . . . . . . . . . . . 28 Pedder, Hesseltine, Walker & Toth, LLP . . . . . . . . . . . . . . . . . . . . . . 10, 31 Reliable Receptionist . . . . . . . . . . . . . . . 8

Advertise

in the Contra Costa Lawyer DISPLAY AD PRINT MEMBER RATES: Full page: Full page Color: 2/3 page: 1/2 page: 1/2 page Color: 1/3 page: 1/6 page: Business card: 1/12 page:

$ 550 $ 690 $ 500 $ 415 $ 520 $ 350 $ 215 $ 165 $ 125

JULY 2015

Scott Valley Bank . . . . . . . . . . . . . . . . . . 16 Candice Stoddard . . . . . . . . . . . . . . . . . . 33 Trustcare Fiduciary Services . . . . . . . 18

ONLINE AD RATE:

Lisa M. West . . . . . . . . . . . . . . . . . . . . . . . . . 8

$165/ month for members. Substantial discounts available for three or more insertions.

Michael J. Young . . . . . . . . . . . . . . . . . . . 12

CLASSIFIEDS ONLINE: $50/ month flat fee. In addition to text, you may add photos or graphics at no additional charge.

CLASSIFIEDS - PRINT: Member rates are $15 per line for a one-time insertion and $12.50 per line for three or more insertions.

Law Offices of Reed K. Scott . . . . . . . . 33

Call Dawnell Blaylock at (925) 370-2542 or email dblaylock@cccba.org.

Youngman & Ericsson . . . . . . . . . . . 19, 23 Zandonella Reporting Service . . . . . 13

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

DIABLO VALLEY REPORTING SERVICES Certified Shorthand Reporters

Serving the entire Bay Area • Deposition Reporting • Experienced Professional Reporters • Computerized Transcription • Deposition Suites Available • Expeditious Delivery • BART Accessible

2121 N. California Blvd. Suite 290 Walnut Creek, CA 94596

925.930.7388

dvrs2121@yahoo.com

JULY 2015