The Marin Lawyer March 2023

T H E M A R L A W

LEGAL LEGAL updates

Editor: Chelsea Heaney

March 2023

Guest Editors: Jeffrey Knowles, Shanti Eagle, Mee Mee Wong

Creative Director: Aariel Nigam

2023 Officers

President: Ahtossa P. Fullerton

President-Elect: Scott Buell

Secretary: Thomas (Tom) McInerney

Treasurer: Kristine Fowler Cirby

Past President: Robert S. Rosborough

5 Year Past President: Mary McLain

Board of Directors

2023 Directors

Chelsea E Heaney

Valerie G Kushel

Thomas M McCallister

Mary M Sackett

2024 Directors

Neusha N Ghaedi

Jeffrey G. Knowles

Mary A. Stearns

Alexander S. Vadhat

David L. Winnett

2025 Directors

Robyn B. Christo

Morgan H. Daly

Shanti Eagle

Lucie C. Hollingsworth

Elisha J. Yang

Executive Director

Mee Mee Wong

Membership & Events Administrator

Denise Belli

© 2023 All Rights Reserved

CONTENTS

20 | What to Know About SB 1439: Newly Expanded Pay-to-Play Law Requires Careful Consideration by Attorneys and Other Agents to Ensure Compliance

SEAN WELCH AND HILARY GIBSON

25 | Judges Profile: Get to Know Judge Verna

Adams

CHELSEA HEANEY

27 | New Laws and Compliance Updates for California Employers in 2023

HOLLY SUTTON, REBECCA STEPHENS, AND JAMIE TALT

39 | Unshackled: Reimagining the Practice of Law

ALEX VAHDAT

Chelsea Heaney

This issue of the Marin Lawyer picks up where the January 2023 Marin Lawyer left off, with an immigration-related piece profiling the Multicultural Center of Marin, written by MCBA Board Member and elected Marin County Supervisor Mary Sackett. In her piece, Ms. Sackett details the incredible work performed by the Multicultural Center of Marin over the course of the past twenty years, including the organization’s focus on providing youth leadership opportunities, services for the unhoused, environmental justice working groups, and programs that promote and preserve the cultural assets of our immigrant communities.

Next, Daniel J. Turner, an attorney with Reuben, Junius & Rose, LLP, provides an insightful account of the progress (or lack thereof!) shown by various Bay Area counties in meeting their obligations under the state’s Housing Element Law. Mr. Turner details the various penalties for non-compliance with the Law after the recent passing of the deadline for Bay Area cities and counties to revise and update their Housing Elements. He concludes his article with a discussion of the various housing advocacy group lawsuits resulting from the failure of several jurisdictions to meet the Housing Element deadline.

provide an extensive and informative overview of several new or amended employment laws recently passed in California, covering topics ranging from off-duty marijuana use, reproductive rights, California Family Rights Act, COVID-19, criminal law and the workplace, new avenues of enforcement against employers, privacy, and pay transparency, among others

FEEDBACK

TheMarinLawyerencouragesourreaders toalsobeourwriters Ifyouhave somethingyoudliketowriteabout,getin touchwithus Wealsoencourageour readerstobeourcritics Ifthere’s somethingyou’dliketosee(ornotsee)in theMarinLawyer,letusknow Ifyou’dlike morearticlesonpracticallawfirmtopics, tellus Morebookreviews?Letusknow Alfeedbackiswelcome

Shifting to the employment arena, Holly Sutton, Partner and Chair of the Farella Braun + Martel Employment Practice, Rebecca Stephens, Partner with Farella Braun + Martel Employment Practice, and Jamie Talt, Sr. Associate with Farella Braun + Martel Employment Practice,

Sean Welch and Hilary Gibson, partners in the San Rafael office of Nielsen, Merksamer, Parrinello, Gross & Leoni, LLP, explore how California’s SB 1439, which went into effect January 1st, 2023, expands the previously narrow application of California Government Code section 84308, which restricts the ability of an officer of a state or local government agency, or a candidate for such office, to accept a contribution of more than $250 from certain contributors if the official makes or will make a decision regarding the contributor involving a “license, permit, or other entitlement for use. ” Specifically, Mr. Welch and Ms. Gibson detail how SB 1439 extends the provisions of Government Code section 84308 to all officers of local agencies, whether appointed or elected and the implications related thereto. Particularly relevant for our purposes as attorneys, the article includes an interesting discussion on the concept of “ agency ” and how the expanded Section

84308 may apply to attorneys representing clients in a covered proceeding

Lastly, MCBA Board Member Alex Vahdat provides an engaging overview of his interview with author and attorney Paul T. Llewellyn from the February 28th, 2023, General Membership Meeting regarding Mr Llewellyn’s new book, “Unshackled: Reimagining the Practice of Law.” Relying on real-life experience having practiced law in both England and the United States, Mr. Llewellyn’s book explores a wide variety of ideas ranging from how law students are trained, the billable hour model, and civility amongst attorneys. I have ordered myself a copy and urge you all to do the same, as it is sure to be an interesting read!

In addition, be sure to check out the March 2023 President’s Message from MCBA President Ahtossa Fullerton discussing her thoughts on the importance and relevance of bar associations in today’s world, as well as the “Judge’s Profile, ” featuring Judge Verna Adams, who has served on the Marin County Superior Court for more than 23 years!

Chelsea E. Heaney has been an Associate Attorney at Vance & Wills, P C since its inception in 2020 Chelsea joined Vance Family Law as an Associate Attorney in August of 2018. Since that time, Chelsea has assisted clients in an array of family law matters, including child custody and support, spousal support, domestic violence, and varters Chelsea is thorough and detail-oriented, and, above all, a good listener She currently sits on the MCBA Board of Directors

Thank You

2023 MBCA Program Sponsors

Platinum Sponsor

Gold Sponsors

The Trusted Real Estate Advisors for Probate and Income Property Sales

Silver Sponsors

Bronze Sponsor

Interested in sponsorship? Contact Mee Mee Wong

The Value of Your Local Bar

Ahtossa Fullerton

Dear Friends,

As I write my President’s Message from the Iranian American Bar Association Conference in Los Angeles, I consider the importance and relevance of bar associations in today’s world.

I love being a part of MCBA For me, it offers a form of connection to all the other lawyers in my community. In addition, the feeling that I am making a difference motivates me to join and volunteer. I am sure many of you taking the time to read our newsletter feel the same.

However, as a volunteer on a number of bar boards, I’m aware that a common concern for board leadership has been a decline in membership, through retirement and attrition, even before the pandemic years. Why is this? Are attorneys busier than they were in years past? Are young attorneys simply uninterested in getting together in person, perhaps preferring virtual communication? Are law firms simply strapped for money and less capable of supporting their local bars, despite the fact that bar associations provide so much for the communities from which they benefit?

The Marin Bar, as with any organization, must periodically take stock to ensure it is meeting the needs of those eligible to join. Certainly, the more robust the membership, the more all members benefit by way of increased networking, more CLE opportunities, more hands to share the volunteer work, and more minds brainstorming to improve our Bar. Let us consider what would happen to our local attorneys and community at large if our Bar ceased to exist? What would we lose?

We would lose the home base of our legal community. Our Bar assists in providing legal counsel to those with limited resources. It provides affordable CLEs on issues pertinent to all practice areas and many relevant specifically to Marin. It connects the Marin Bar with the Marin County Superior Court, ensuring opportunities for each to communicate and cooperate in improving the court experience. It partners with other bar associations in Marin, in the Bay Area and statewide, to connect a wider legal community. It provides the physical spaces for us to get to know each other – to become friends as well as colleagues, promoting the congeniality, support, and kindness that the Courts and many attorneys believe to be increasingly important as the world changes in unforeseen ways.

As the Board works to ensure ongoing relevancy and strong membership, we hope you will consider and promote all that the Marin Bar provides not just for you and its members, but for others. If you have ideas or unmet needs, we want to hear about them. We are highly motivated to evolve in ways that will ensure our long-term success and leave a legacy for future lawyers to benefit from and enjoy

Warmly Ahtossa Fullerton

Culturally Appropriate Services for Marin's Immigrant Community

Mary Sackett

One organization bringing together our history and cultures is the Multicultural Center of Marin (MCM). 20 years ago, MCM started as a welcome center in the Canal District of San Rafael with a mission to uplift our diverse immigrant population, to hold a space for families in crisis and those experiencing food insecurity, and to provide resources.

Marin County is a beautiful place with a rich and complex history of multiculturalism. The Coast Miwok were the first people to steward the land, thousands of years ago. The delineating lines for Marin County fall on the ancestral lands of the Coast Miwok and Southern Pomo people who live here to this day. In the early 19th Century, Marin saw an influx of Spanish settlers. Religion, new dialects, and dairy farming were introduced by European and New American settlers. During World War II, shipbuilders migrated to Sausalito, which eventually became Marin’s only black community; many of their descendants still live in what is now called Marin City. Today, Marin is called home by communities from Central and South America, many seeking the promised welcome etched on the Statue of Liberty: “Give me your tired, your poor. Your huddled masses yearning to breathe free. The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me. I lift my lamp beside the golden door!”

In 2022, MCM relocated to the vacated Juice Beauty space on 5th Street in downtown San Rafael. The change has brought new life to the area and led to a series of new and exciting developments for the organization. The 7,500 square foot space hosts core programs, such as arts, media, and culture experiences, guided meditation and healing circles, family resources, and allows community groups such as the canal resilience community council to hold meetings to identify community needs and solutions for sea level rise, emergency preparedness, and food access, among other issues. Executive Director Douglas Mundo is optimistic about MCM’s next phase, “Moving to central San Rafael was an important change that reflects our value of serving multicultural families throughout Marin. We are closer to public transit and better connected than ever to our community partners around Marin. Our new location puts us physically in the center of Marin and has strengthened our partnerships in the community.”

With a new location, MCM can welcome other community partners. On the roster of partnering agencies is the Marin Asian Advocacy Project, led by Vinh Luu, serving Marin’s Vietnamese and Asian Pacific Islander communities. Luu’s team of staff and volunteers organize monthly meditation meetings and offer cultural and religious events and activities. MCM also continues to support

native and indigenous people from Marin County, Mexico, and throughout the Americas by providing space and support, whether helping to form a non-profit or making available a place to gather. MCM serves as the lead organizer for San Rafael’s annual Día de Los Muertos celebration. These partnerships and events celebrate the diversity of Marin, its people, and its history

Together they provide an important opportunity for cultural exploration.

MCM has been a consistent leader in providing safety-net resources for over 250 Marin families. During the COVID pandemic, more than 3,000 Marin families received financial support via MCM’s emergency rental assistance program. With a decades-long program to provide food distribution every Saturday, MCM has established itself as a trusted community partner. The new location creates space for County services, the Ritter Center, SPAHR Center, and other groups that provide safety net resources. It takes shape as small medical services through Ritter’s mobile program, SPAHR’s risk reduction offerings, and education. The space comes alive with drumming, meditation, and social support every Monday from 1:00 – 3:00 pm.

Serving youth is a cornerstone of MCM’s work. MCM provides opportunities for youth to take leadership roles and have a hand in shaping initiatives within the organization. The work includes serving youth in the juvenile justice system. MCM works with the County of Marin and the Marin County Office of Education to connect youth with mentors and engage in prosocial activities, including an annual backpacking trip. In the past, MCM has worked with the Marin Community Office of Education, and Community Schools, and served as a resource to provide more culturally appropriate support for students with mentorship, and prosocial academic resources after school. The hope is to showcase the success of life after juvenile justice–graduating high school, finding employment opportunities, attending college, or even starting a business. This program is a success story that connects mentors with lived experience to youth and offers an opportunity for them to reach back and uplift those in need. It requires a coordinated dance of supporting teachers and students, and teaching parents how to navigate the system while working with families on ways to advocate for their children and create a path to success.

Continuing its vision to uplift youth, MCM also hosts a youth leadership development program called Presente, which trains young people to become next-generation leaders in the community The program connects youth to leadership opportunities, to serve on the youth council, board and commissions, and to serve as mentors for the next generation as they themselves become community leaders. They teach youth how to navigate systems, build financial literacy, and gain life skills that prepare them for a successful future in the community. Graduates of the program have become bank managers, business owners, program staff, mentors, and community activists.

As Executive Director Douglas Mundo turns an eye to the future, he sees an opportunity to provide more services and support. The next item on the list is to bolster the range of economic opportunities and legal services available to community members. From immigration to juvenile justice to employment discrimination and establishing a 501(c)(3), there are daily questions and demands for legal advice. In line with this goal, MCM plans to establish a “Friends of MCM”, an inclusive list of volunteers, advisors, partnering agencies, and leaders who would offer expertise and connect people with other professionals to provide culturally appropriate community services. Even more than financial contributions, relationships drive the organization forward.

MCM welcomes anyone who would like to get involved. Its doors are open; take the opportunity to drop in when you have a chance. You can also learn more about the Multicultural Center of Marin by visiting multiculturalmarin org

Mary Sackett has dedicated the past 20 years to service in Marin County. She practiced law for 13 years in Marin, before transitioning to work for the Board of Supervisors In 2022, she was elected to the Board of Supervisors to represent District 1 She also serves on the Board of Directors for the Marin County Bar Association.

MCBA LEADERSHIP CIRCLE MCBA LEADERSHIP CIRCLE

Carole J. Gray Carole J. Gray

Paula Freschi Kamena Paula Freschi Kamena Valerie Gerard Kushel Valerie Gerard Kushel VGK Law VGK Law

Paul H. Nathan Paul H. Nathan Law Offices of Paul H. Nathan Law Offices of Paul H. Nathan

Housing Element Fallout: From Noncompliance to Lawsuits

Daniel J. Turner, published by Reuben, Junius & Rose, LLP

The January 31st, 2023 deadline for Bay Area cities and counties to revise and update their Housing Elements has passed, and only four of the Bay Area’s 109 local jurisdictions – San Francisco, City of Alameda, Emeryville, and San Leandro – have adopted fully compliant Housing Elements so far. While many of the Bay Area’s other jurisdictions have made substantial progress toward updating their Housing Elements, others have shown little effort in meeting their obligations under the state’s Housing Element Law. State law imposes a number of potential enforcement penalties and consequences on jurisdictions that fail to comply with the Housing Element Law, including the oftdiscussed “Builder’s Remedy”, and housing advocacy groups have started turning to the courts to enforce these provisions against non-compliant jurisdictions.

necessary measures to implement the plan. To achieve compliance with the law, the Housing Element must also receive certification from the California Department of Housing and Community Development, (HCD) before the jurisdiction’s statutorily determined deadline. A jurisdiction that fails to do so is considered out of compliance and is exposed to certain penalties and other enforcement mechanisms until it adopts a compliant Housing Element.

Penalties for Non-Compliance

Background

California’s Housing Element Law was enacted in 1969 and is intended to encourage housing development by requiring cities and counties to adopt Housing Elements as part of their General Plans. A Housing Element is a jurisdiction’s detailed plan for the development of housing within its borders, and it must meet various statutory requirements, such as identifying adequate development sites to meet the jurisdiction’s allocated housing need, creating programs to incentivize the production of affordable housing units, and describing the

Among the potential consequence of noncompliance is the notorious Builder’s Remedy. Under the Builder’s Remedy, a jurisdiction is prohibited from denying an affordable housing project based on the project’s noncompliance with the jurisdiction’s General Plan or Zoning Ordinance. It effectively frees such projects from all local zoning and development controls, unless the jurisdiction can justify project modifications or disapproval by articulating specific, adverse impacts on health or safety. To qualify for the Builder’s Remedy, a project must provide either 20% of units as affordable to ≤80% AMI households (low-income), or 100% of units as

affordable to ≤120% of AMI households (moderate-income). While potentially very powerful, it should be noted that the Builder’s Remedy has had minimal real-world testing, with sparingly few examples of successfully entitled projects.

Beyond the Builder’s Remedy, a non-compliant jurisdiction can experience a variety of other consequences For example, a jurisdiction that does not become compliant within 120 days of missing its deadline is subject to tighter implementation and rezoning timelines once it does adopt a compliant Housing Element. Further, as long as a jurisdiction remains noncompliant, it may be subject to other statutory or judicial losses of zoning and permitting authority, it may be liable for court-imposed fines, and it may have reduced access to state funding and grants for housing, infrastructure, and municipal operations.

Current Status of Bay Area Jurisdictions

The 105 remaining Bay Area jurisdictions –beyond those four listed above – are in various states of noncompliance with the Housing Element Law. These jurisdictions range from those that have made substantial progress toward compliance and are undergoing review and certification by the HCD, to those jurisdictions that have barely begun preliminary drafts

Oakland, the Bay Area’s third-largest city, is among those jurisdictions that did not achieve compliance by the deadline after its Housing Element was denied certification on February 3rd Despite having already undergone multiple revisions since it was first submitted in December of 2022, a number of technical deficiencies were identified in Oakland’s Housing Element and HCD requested further edits. HCD’s denial letter to Oakland also commended the

city’s overall efforts in completing the process. Oakland resubmitted its Housing Element on February 13th, and it is currently pending review.

Based on the Compliance Report, another 59 jurisdictions have submitted initial or subsequent drafts of the Housing Element to HCD for review but have not yet adopted it. Because the adoption process includes environmental review, public participation, and multiple hearings, these jurisdictions have a long road ahead of them (although it will vary greatly for each individual jurisdiction). A further 12 jurisdictions have not yet submitted anything to HCD and may not have even begun the drafting process.

Housing Advocacy Group Lawsuits

In response to the numerous jurisdictions that failed to meet the Housing Element deadline, housing advocacy groups, including YIMBY Law, California Housing Defense Fund, and Californians for Homeownership, have started filing lawsuits against those jurisdictions that are furthest out of compliance. These lawsuits are requesting that the court compel each jurisdiction to bring its respective Housing Element into compliance and are asking the court

to impose additional sanctions available to the court under the Housing Element Law, which range from fines to removal of permitting authority. Further, each lawsuit is seeking a judicial declaration regarding the provisions of the Builder’s Remedy, with the apparent intent of laying the groundwork for developers to take advantage of it without having to face extraneous judicial challenges.

It is unknown whether these advocacy groups will expand their current litigation efforts, and it remains to be seen whether any developers will actually employ the Builder’s Remedy at risk of garnering the ire of local agencies for future projects. However, these lawsuits may provide helpful insight into how the courts – and the cities themselves – will respond to the various enforcement mechanisms enacted over the past few years.

2023 Gala Installation Reception

The Marin Lawyer

On February 9th, over 100 guests, elected officials, and judges from the Marin Superior Court celebrated the induction of our 2023 officers and directors at Alexander Hall in San Anselmo.

Fortunately, the evening reception landed on the rare day of good weather that week. Guests noshed on delicious canapes and sipped a special cocktail, “A Sparkle in Her Eye,” in celebration of all five incoming directors Robyn Christo, Morgan Daly, Shanti Eagle, Lucie Hollingsworth, Elisha Yang along with 2023 President Ahtossa Fullerton.

The brief program kicked off with Assemblymember Damon Connolly presenting a California Assembly resolution to outgoing President Rob Rosborough, and Executive Director Mee Mee Wong presenting him with a ceremonial gavel. Judge Beverly Wood then administered the oath of office to the incoming and returning directors and officers, followed by a separate oath of office for incoming President Ahtossa Fullerton, all welcomed with cheers and applause. Judge Verna Adams presented honoree Ann Munene with the Ann Diamond Young Lawyer Award. Judge Adams was a colleague and mentee of Ann Diamond, a family law trailblazer whose influence is still felt in how family law is practiced in courts across the country. The program concluded with the introduction of our 2022 MCBA Legal Scholarship recipients. Guests pledged a generous total of nearly $17,000 to support MCBA’s scholarship fund and next year’s scholars. Thank you to our donors for stepping up to the call for financial support for these amazing law students. Be sure to check out photos of the event on MCBA’s Facebook page!

Congratulations to MCBA’s 2023 Officers and Directors Officers

President: Ahtossa P. Fullerton

Wasacz, Hilley & Fullerton LLP

President-Elect: Scott Buell

Buell Law and Mediation

Treasurer: Kristine Fowler Cirby

Cirby Family Law

Secretary: Thomas (Tom) M. McInerney

Ogletree Deakins

Past President: Robert S. Rosborough

Monty White LLP

Five-Year Past President: Mary McLain

McLain Mediation

2023 Directors

Chelsea E. Heaney

Vance & Wills, PC

Valerie G. Kushel

VGK Law

Thomas M. McCallister

Marin County District Attorney's Office

Mary M. Sackett

2024 Directors

Neusha N. Ghaedi

DeMartini, Walker & Ghaedi LLP

Jeffrey G. Knowles

Coblentz Patch Duffy & Bass LLP

Mary A. Stearns

Alternate Defenders, Inc.

Alexander S. Vahdat

Berman Tabacco LLP

David L. Winnett

Liuzzi Murphy Solomon Churton

Hale & Winnett LLP

2025 Directors

Robyn B. Christo

Epstein Holtzapple Christo LLP

Morgan H. Daly

Morgan Daly Law Office

Shanti Eagle

Farella Braun + Martel

Lucie C. Hollingsworth

Legal Aid of Marin

Elisha J. Yang

Hanson Bridgett LLP

Congratulations to MCBA’s 2022 Scholarship Recipients

Katiuska Pimental Vargas

3L - University of San Francisco School of Law

Alejandra Chumbes

2L - University of San Francisco School of Law

Samantha Cox Parra

2L - Berkeley School of Law

Natalie Dybeck

1L - University of California, San Francisco School of Law

Alexandria Kozak

2L - Golden Gate University Law School

Thank You to the Evening’s Generous Sponsors

Table Sponsors

Barrister Sponsors

Farella Braun + Martel LLP

Wasacz Hilley & Fullerton LLP

Advocate Sponsors

Judicate West

Ogletree Deakins LLP

Supervisor Mary Sackett

First Republic Bank

Boies Schiller Flexner LLP

Introducing Our Amazing MCBA Scholarship Recipients

Christopher Locke and Anne Munene, Co-Chairs of MCBA Legal Scholarship Committee

MCBA founded its Legal Education Scholarship in 2011 under the leadership of MCBA President Otis Bruce. The vision was to establish a scholarship fund to help deserving law students connected to Marin County with their law school expenses. Seeded with an initial $50,000, the fund has provided 36 scholarships to 23 recipients. Every year, MCBA is proud to advance the legal careers of these accomplished students and to continuously expand the ranks of the MCBA Legal Education Scholarship alumni.

Katiuska Pimental Vargas, 3L - USF School of Law

Ms. Vargas attended Novato High School and earned her Bachelor of Arts from UC Santa Cruz. As an immigrant, Ms Vargas had to overcome her family's recurring struggle

bility. It was that environment assion to fight for the rights of those who come from underserved backgrounds and have been marginalized in society. Ms. Vargas has served her community by working at the Marin County Public Defender’s office and

for Senator Dianne Feinstein’s office conducting immigration and educational policy research. She has also been a community organizer around immigration issues, work for which California Senator Jim Beall (ret.) named her Woman of the Year Last summer, Ms Vargas was a judicial extern for Senior District Judge Susan Illston. As the first lawyer in her family, Ms. Vargas aspires to be a public interest attorney. She is fully funding her law school education without the benefit of financial aid and MCBA is honored to award her an MCBA Legal Education Scholarship Read more about Ms. Vargas on USF's website.

2L - USF School of Law

Ms. Chumbes' family moved to Marin from Peru when she was 12, where she graduated from Redwood High School. She is also the first in her family to attend college, having comp-

let rgraduate degree at the College of Marin and UC Santa Cruz She served as an intern at Legal Aid of Marin and aspires to be an employment lawyer, currently serving as president of the Labor and Employment Law Students Association at USF. This summer, Alejandra will be a summer associate in the labor and employment practice at the McDermott law firm

Ms. Dybeck attended San Marin High School in Novato and earned her Bachelor of Arts from UCLA. She has shown a long-term commitment to serving her community

m y working in Congressman Jared Huffman’s office. Prior to working in Congressman Huffman's office, she worked for the Marin County Fire Department, at the UCLA Center for American Politics and Public Policy, and volunteered for the successful Marin County Wildfire Prevention Authority Measure C campaign. At UCLA, she was the operations chair for a program that matched students with holocaust survivors for a weekly lunch focused on genocide education, and before college, she volunteered as a teacher’s aide at San Ramon Elementary School. As the first lawyer in her family, Ms. Dybeck aspires to be a public interest attorney specializing in environmental law and MCBA is honored to award her a Legal Education Scholarship.

also at UC Berkeley. She has served as an intern with Judge Beverly Wood and the Marin Public Defender’s Office and is active in law school affinity groups including La Raza, the Women of Color Collective, and First Generation Professionals. Also at Berkeley, she has done pro bono work for its Reproductive Justice Project and volunteers for the Samuelson Law and Technology Clinic. This fall, Ms. Cox-Parra will join Fenwick & West’s San Francisco office as an IP litigation associate.

Law

Samantha Cox-Parra has been an MCBA scholarship recipient for each of the past three years. She was born and raised in Marin and was the first in her family to attend college, Ms. Kozak earned her undergraduate degree from Sonoma State University and attended paralegal school before enrolling in law school. She worked as a criminal depart-

at Marin County Superior Court, and then as a legal assistant in the Marin District Attorney’s Office. This summer, Ms. Kozak will be an intern at Legal Aid of Marin, while she is also writing a law review article on labor trafficking.

Congratulations to all of our MCBA Legal Scholarship recipients! And our great appreciation to the generous donors to the fund. We raised close to $17,000 at MCBA's installation reception but we are still short of our goal of $20,000 so that we can award four $5000 scholarships in 2023.

Natalie Dybeck, 1L - University of California, College of the Law

Samantha Cox-Parra, 3L - Berkeley Law

Alexandria Kozak, 2L - Golden Gate School of

Alejandra Chumbes,

UPCOMING EVENTS

JUDICIAL MENTOR PROGRAM

Wednesday, March 22nd

12:00-1:30 PM

What's Really Stopping You From Applying? CONSTRUCTION LAW

SECTION MEETING (VIRTUAL)

Thursday, March 23rd

12:00-1:00 PM

1 0 GENERAL CLE

REAL PROPERTY SECTION

MEETING (IN PERSON)

Wednesday, March 29th

12:00-2:00 PM

2.0 GENERAL CLE

2022 Year in Review, Significant Developments in California Real Property Law

GENERAL MEMBERSHIP MEETING (VIRTUAL)

Thursday, March 30th

12:00-1:00 PM

1.0 GENERAL CLE

A Conversation with Justice Carin Fujisaki on Diversity, Equity and Inclusion and a Career in the Judiciary

Newly Expanded Pay-to-Play Law Requires Careful Consideration by Attorneys and Other Agents to Ensure Compliance

Sean Welch and Hilary Gibson

California Government Code section 84308 – a provision inserted into the Political Reform Act forty

Prior to 2023, the law’s application was relatively narrow and restricted contributions to local elected officials only when they were acting in an appointed capacity in the types of proceedings specified in the statute. For example, under the prior iteration of section 84308, a contribution to a city council member was only covered if the member was appointed to a board or commission and participated in a covered proceeding in that particular capacity.

However, California’s SB 1439 (Glazer) which was signed by Governor Gavin Newsom on September 29th, 2022, and went into effect January 1st, 2023 changed that. The most notable feature of SB 1439 was to remove the exception for “local government agencies whose

members are directly elected by the voters,” thereby extending the provisions of Government Code section 84308 to all officers of local agencies, whether appointed or elected. This means, for example, that members of city councils and boards of supervisors are now subject to the restrictions of section 84308 when acting in their directly elected capacities, i.e. when voting on a matter as a member of the city council or board of supervisors.

Section 84308 is multi-faceted. The law includes an outright prohibition and a “lookback” period triggering disqualification. Covered officials are prohibited from accepting contributions of more than $250 from covered parties while a proceeding is pending before their

agency and for 12 months following the date a final decision is rendered. Additionally, under a 12-month lookback provision, an official may be disqualified from participating in the decisionmaking process of the proceeding if the official willfully or knowingly received a contribution of more than $250 during the previous 12 months. The law provides a method of avoiding disqualification if the public official who received a contribution prior to the initiation of a proceeding returns the contribution within 30 days from the time the officer knows, or should have known, about the contribution and the new proceeding. It also allows a public official to cure a prohibited contribution, under certain specific circumstances, by returning the contribution within 14 days. In addition, the law also requires disclosure of contributions by recipients and contributors in covered proceedings, making it very important for lawyers and others to carefully track and disclose all contributions that might be relevant to a particular application for a permit, license, or other entitlement for use.

After extensive advocacy from both the regulated community and organizations representing public agencies, the California Fair Political Practices Commission (“FPPC”) adopted an opinion indicating that SB 1439 restrictions would not apply to contributions made prior to the effective date. The FPPC subsequently proposed regulations which are still pending as of the date of this article that would codify this opinion, as well as clarify other aspects of SB 1439 and Government Code section 84308 generally.

After the passage of SB 1439, one major question was whether the 12-month lookback period for contributions to newly covered elected officials of local agencies will be applied retroactively, i.e. whether it would apply to pre2023 contributions to local public officials such as candidates for city council and boards of supervisors who received contributions during the 2022 general election and as far back as January 2022, thereby potentially disqualifying such officials from participating in proceedings involving parties or participants who, directly or through their agents, made contributions of more than $250 at a time when there was no such restriction in the law.

Another important element of section 84308 is that it not only covers contributions by the party applying for the permit, license, or other entitlement for use but also covers and requires aggregation for purposes of the $250 limit contributions of those persons and entities associated with the party, participants in the proceedings, and their “agents ” Thus, one of the issues the FPPC’s proposed regulations seek to clarify is the concept of “agency,” which can be particularly thorny for attorneys who represent parties in a covered proceeding. A covered proceeding is broadly defined to include: business, professional, trade, and land use licenses and permits; building/development permits; project-specific zoning changes, general plan amendments, and specific plans; subdivision and parcel maps; development agreements; all contracts (other than not competitively bid, labor, or personal employment contracts); and all franchises.

Attorneys who represent clients in such proceedings may be considered an “agent” of a party or participant if the attorney “represents” that party or participant in connection with the proceeding. If an attorney qualifies as an “agent” for the purpose of section 84308, the attorney’s personal contributions are attributed to/ aggregated with the party/participants, and may

therefore be prohibited or risk disqualifying the recipient official from participating in the proceeding Further, if the attorney “agent” is part of a firm, both the firm and the individual attorney are considered “agents.”

The term “represents” is not defined by section 84308. Still, the proposed regulatory amendments provide that an agent “represents” a party or participant by appearing before or communicating with the agency in connection with the proceeding. Although this regulation (to the extent it is adopted in its current form) provides some helpful clarification, who qualifies as an “agent” that “represents” a party/participant in a proceeding remains factspecific and contextual, particularly in terms of how new regulations will be reconciled with prior FPPC guidance, how broadly the concept of “agency” extends within a particular covered firm and other related issues

Against this regulatory background, the landscape related to the implementation of SB 1439 continues to shift, and uncertainty remains. The Attorney General has received a request

from the author of SB 1439 to issue an opinion regarding the implementation of the bill, in particular, the question of retroactive

application

In yet another proceeding, a coalition opposed to SB 1439 has filed a lawsuit seeking to invalidate the bill; it is anticipated the lawsuit will take many months or longer to resolve and, in the meantime, SB 1439 remains the law. Further, the proposed FPPC regulations are not yet final, and there will almost certainly be new guidance issued as both contributors and public officials seek to clarify the application of the expanded law.

Welch and Hilary Gibson are partners in the San Rafael office of Nielsen Merksamer Parrinello Gross & Leoni LLP For over 40 years, Nielsen Merksamer has specialized in government, political and initiative law, trial and appellate litigation, taxation, civil and constitutional rights, voting rights and redistricting, and regulatory agency law The firm specializes in establishing and maintaining multi-state, multi-jurisdictional campaign, gift, and lobby legal compliance systems for organizations and executives with diverse activities and interests

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Get to Know Judge Verna Adams

Chelsea Heaney

MCBA took the opportunity to learn more of the personal side of Judge Verna Adams. Congratulations Judge Adams for serving on the Marin Superior Court for more than 23 years.

If you weren’t a judge (or lawyer), what would you be doing?

I can’t answer that question. I’ve wanted to be a lawyer since I was in middle school and never considered another career path. The judge part of it followed, a combination of opportunity and good luck.

What books are you reading right now and what shows are you currently streaming?

Book(s): The High Sierra, A Love Story, by Kim Stanley Robinson (nonfiction) and This Tender Land, by William Kent Krueger (fiction). Streaming: The English Game and 1883.

What do you enjoy doing outside of work?

In no particular order: going to the gym (Elan, in San Anselmo), hiking, traveling, reading, and cooking.

What is your go-to karaoke song? Karaoke?

Describe your perfect day off. Getting a massage, going to Comforts for lunch with my husband, John, and taking a nap.

Complete this sentence: everyone who knows me, knows I love... ...politics!

How do you deal with work stress? Serenity prayer.

What career advice would you give to your younger self? You know what you want to do, now GO FOR IT!

What is your favorite part about your job?

Helping the litigants who appear in my courtroom and their children.

What advice do you have for lawyers appearing in the courtroom? You are in a helping profession. Never lose sight of your role as peacemakers.

Judge Verna Adams

New Laws and Compliance Updates for California

Employers in 2023

Holly Sutton, Rebecca Stephens, and Jamie Talt

California has passed several new or amended employment laws covering topics ranging from offduty marijuana use, reproductive rights, California Family Rights Act, COVID-19, criminal law and the workplace, new avenues of enforcement against employers, privacy, and pay transparency, among others. Some of these laws took effect January 1st, 2023, while others will take effect January 1st, 2024. Employers should evaluate their personnel rules and practices to ensure they keep pace with these changes.

Fair Employment and Housing Act Amendments

2188: No Adverse Action for Off-Duty Marijuana Use Starting in 2024

AB

Current California law generally allows workplace drug testing of current employees only when there is evidence of an employee’s impairment (with exceptions to this rule for certain safetysensitive occupations). But most drug tests are only able to determine whether the individual has used cannabis in the previous few weeks (by screening for nonpsychoactive cannabis metabolites), and do not reflect whether an individual is under the influence of marijuana at the time of the test.

While prior law permitted adverse action against employees for off-duty marijuana use, AB 2188, which goes into effect on January 1st, 2024, will prohibit adverse action against an employee for such use. Instead, the new law only authorizes adverse action against employees who are impaired in the workplace, thus necessitating a review of employers’ drug and alcohol policies and procedures to ensure compliance with the new law.

SB 523: No Discrimination Based on Reproductive Health Decision Making

Under existing law, the Fair Employment and

Housing Act (FEHA) makes it unlawful for employers to discriminate against employees and job applicants on the basis of a protected category, such as their race, age, sex, or medical condition With the introduction of SB 523, also known as the Contraceptive Equity Act of 2022, the FEHA now includes “reproductive health decision-making” as a protected category. This includes, for example, an individual’s use or access to a particular drug, device, product, or medical service for reproductive health

Moreover, employees cannot be required to disclose their reproductive health decisionmaking to their employer as a condition of employment, and employers are not permitted to take adverse action based on that decisionmaking

SB 523 also requires that employer-provided healthcare plans now cover over-the-counter contraceptives and prohibits those plans from imposing cost-sharing, such as deductibles, copayments, or other such requirements, for vasectomies.

This law will go into effect on January 1st, 2024. California employers should ensure they are prepared by updating the relevant language, including any references to protected categories, in their written employment policies.

AB 2960: FEHA Tolling

Under existing law, individuals may file a complaint with the Civil Rights Department (CRD, formerly the Department of Fair Employment and Housing or DFEH) if they believe they have experienced discriminatory employment practices. If the CRD does not bring a civil action within 150 days of the individual’s complaint, it will notify the individual of their right to request a right-to-sue notice. If the individual does not request the notice, the CRD will issue the notice once it has completed its investigation and within one year of the individual’s date of filing.

AB 2960, which went into effect on January 1st, 2023, tolls these dates during any mandatory or voluntary dispute resolution proceeding. The tolling period begins on the date the CRD refers the case to its dispute resolution department and ends when the dispute resolution department has closed its record on the case.

California Takes Further Steps to Protect Reproductive Rights

AB 2223: Exercising Reproductive Rights

Under the existing Reproductive Privacy Act, individuals have a right to privacy with respect to their reproductive decisions. This includes the right to choose or refuse birth control, bear children, or obtain an abortion. With the passage of AB 2223, individuals may now bring a lawsuit against employers under the Tom Bane Civil Rights Act for any alleged interference with their rights under the Reproductive Privacy Act.

The Tom Bane Civil Rights Act is a California state law forbidding interference with individuals’ constitutional rights, such as their right to vote and speak, with threats or violence. This law now includes reproductive rights as a category under the act, allowing employees to file a civil action against employers for injunctive relief, damages, and attorneys’ fees. This law went into effect on January 1st, 2023

AB 2134: Reproductive Health Information

If a religious employer provides healthcare coverage to employees that does not include benefits or coverage for abortion and contraceptives, this bill requires that the employees be provided with written information on the abortion and contraceptive services that may be available to them at no cost through the California Reproductive Health Equity Program. This bill also requires that the Department of Industrial Relations also post on its website information about the abortion and contraceptive benefits that may be available to employees at no cost through the California Reproductive Health Equity Program.

California Family Rights Act Updates

AB 1949: Required Bereavement Leave

AB 1949 requires California employers with at least five employees to offer five days of bereavement leave to employees each time they lose a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. Though the leave may be unpaid, employees may choose to use accrued vacation, sick leave, or other paid time off options available to the employee If the employer requests documentation evidencing the family member’s death, they must keep the information confidential.

AB 1041: Expansion of CFRA and Paid Sick Leave to Cover “Designated Person”

Under the California Family Rights Act (CFRA) and the Healthy Workplaces, Healthy Families Act of 2014 (California’s Paid Sick Leave law), eligible employees may take time off from work to care for a child, parent (including a parent-inlaw), spouse, registered domestic partner, grandparent, grandchild, or sibling. AB 1041 expands this list to allow employees time off to care for a “designated person. ” This went into effect on January 1st, 2023.

Employees need not specify a “designated person ” prior to their leave request, but the employer can

limit employees to one designated person per 12-month period. For leaves under the CFRA, a designated person must be a blood relative or an individual “whose association with the employee is the equivalent of a family relationship.” The legislation does not further define who may be considered “the equivalent of a family relationship” at this time. Until further guidance is released, the conservative approach is to leave this determination to the employee. No such qualifier exists for leaves under the Healthy Workplaces, Healthy Families Act of 2014

Criminal Law Updates with Workplace Implications

AB 2777: Sexual Assault

AB 2777 creates a one-year window (from January 1st, 2023 to December 31st, 2023) for plaintiffs who allege they are victims of sexual assault to raise otherwise time-barred claims if they allege (1) one or more entities are legally responsible for damages arising out of the sexual assault; and (2) the entities, including their officers, directors, representatives, employees, or agents, engaged in a “ cover-up ” or “attempted cover-up ” of a previous instance or allegation of sexual assault by an alleged perpetrator of such abuse.

“Cover-up” means a “concerted effort to hide

evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.”

Significantly, AB 2777 also revives any “related claims” arising out of the sexual assault, such as wrongful termination and sexual harassment.

AB 2282: Hate Crime Expansion

Existing law establishes criminal penalties for persons who place or display certain symbols (such as burning crosses, swastikas, or nooses) with the intent to terrorize a person, with varying penalties for different hate symbols. Beginning January 1st, 2023, AB 2282 amended existing law to increase the associated penalties and make them equal, regardless of which hate symbol is utilized.

AB 2282 also expands the locations where hate symbols are prohibited to include K-12 schools, colleges, cemeteries, places of worship, places of employment, private property, public parks, public spaces, and public facilities.

COVID-Related Legislation

AB 152: COVID-19 Supplemental Paid Sick Leave Set to Expire

AB 152 extended the requirement for employers to provide COVID-19 Supplemental Paid Sick Leave (SPSL) through December 31, 2022. Unless the SPSL requirement is extended again, beginning January 1st, 2023, employers are no longer required to provide employees with COVID-19 SPSL. AB 152 also established a relief grant program administered by the Governor’s Office of Business and Economic Development for qualifying small businesses and nonprofits

that have incurred costs for COVID-19 SPSL. The grant provision will be repealed on January 1st, 2024

AB 551: Presumption of COVID-19 Occupational Injury for Public Employees

AB 551 extends current laws governing COVID19 disability retirement until January 1st, 2024. For certain public employees who retire on the basis of a COVID-19-related illness, existing law creates a rebuttable presumption that their disability arose out of or in the course of their employment, making them eligible for disability retirement under California’s public retirement systems Public employees eligible for this presumption are (1) firefighters, public safety officers, and health care job classifications, or their functional equivalents; and (2) members of the public retirement system who test positive for COVID-19 during an outbreak at their place of employment

AB 1751: Presumption of COVID-19 Occupational Injury

AB 1751 extends until January 1st, 2024 the current rebuttable presumption that employees who test positive for COVID-19 during an “outbreak” at the workplace have suffered an occupational injury and therefore are eligible for specified workers’ compensation benefits. An “outbreak” is defined as follows:

•for employers with 100 employees or fewer, four employees testing positive for COVID-19 within 14 calendar days;

•for employers with more than 100 employees, four percent of employees reporting to the place of employment testing positive for COVID-19 within 14 calendar days; and

•any specific place of employment that a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a community college district chancellor, school president, or school

superintendent orders to close due to a risk of COVID-19 infection.

Employers have 45 days to accept or deny employees’ claims resulting from an “outbreak.” Employers may rebut the presumption, including by presenting “evidence of measures in place to reduce the potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID19 infection.”

AB 2693: Notices of COVID-19 Outbreaks

AB 2068: COVID Posters

Under existing law, employers are required to prominently post citations, orders, and special orders issued by the Division of Occupational Health and Safety. AB 2068 requires that, in addition to posting orders, employers must post an employee notification prepared by OSHA, which states (1) an OSHA investigation found a violation which resulted in a citation or order; (2) the employer is required to post the notice for three days or until the unsafe condition is corrected; (3) the employer is required to communicate workplace hazards to the employees in a language they understand; (4) OSHA’s contact information and website where employees can search employer citations.

The employee notice must be prominently posted for three working days or until the unsafe condition is rectified, and in the top seven nonEnglish languages used by limited Englishproficient adults in California, as determined by the most recent American Community Survey by the United States Census Bureau (currently Spanish, Cantonese, Mandarin, Vietnamese, Tagalog, Korean, and Armenian), as well as in Punjabi if not already one of the top seven languages.

Effective January 1st, 2023, AB 2693 amends California Labor Code § 6409.6 to modify employers’ duties to notify employees of potential exposure to COVID-19 and extends those duties until January 1st, 2024. Under prior law, employers were required to provide written notices to all employees individually within one business day of a confirmed case of COVID-19 on the worksite premises. Under the amended law, employers may prominently display notices in the workplace (in all places where notices are customarily posted, including employee portals) notifying employees of the potential exposure, in lieu of individual written notices. This worksite notice must include:

•the dates on which an employee with a confirmed case of COVID-19 was on the worksite premises within the infectious period;

•the locations of the exposure, including the department, floor, building, or other areas (but the location need not be so specific as to allow individual workers to be identified);

•contact information for employees to receive information regarding COVID-19 related benefits to which employees may be entitled under applicable federal, state, or local laws; and

•contact information for employees to receive the employer’s cleaning and disinfection plan pursuant to CDC guidelines and COVID-19 prevention program pursuant to Cal-OSHA’s COVID-19 Emergency Temporary Standards.

AB 2766: Expanded Enforcement of UCL

Under existing law, district attorneys, upon reasonable belief that there has been a violation of California’s Unfair Competition Law (UCL), are authorized to exercise all of the powers granted to the Attorney General to investigate the potential violation, including the authority to issue subpoenas. AB 2766 grants the same prelitigation investigatory powers to (1) a city attorney of any city with a population over 750,000; (2) to the county counsel of any county within which a city has a population over 750,000; or (3) to a city attorney of a city and county, when the city attorney or county counsel reasonably believes that there may have been a violation of the UCL. This went into effect on January 1st, 2023.

Employers utilizing licensed contractors should be aware of this new potential violation, especially if a project with licensed contractors requires building permits. This went into effect on January 1st, 2023.

Industry-Specific Changes

AB 1788: Hotel Human Trafficking

AB 1788 subjects hotels to civil penalties if a supervisory employee knew or should have known that sex trafficking activity was occurring inside the hotel and failed to report it within 24 hours. Penalties range from $1,000 to $10,000 depending on the number of annual violations This went into effect on January 1st, 2023.

AB 257: Fast Food Accountability and Standards Recovery Act

AB 1747: Contractor Discipline

California’s Business and Professions Code contemplates disciplinary proceedings by the Contractors State License Board and civil penalties (not to exceed $30,000 for specified violations) for licensed contractors who commit willful and deliberate violations of “state building, labor, and safety laws.” AB 1747 adds “willful or deliberate disregard of any state or local law relating to the issuance of building permits” to the list of offenses.

AB 257, or the Fast Food Accountability and Standards Recovery Act (FAST Act), is a first-inthe-nation law that would establish a 10-member “Fast Food Sector Council” (Council) whose purpose would be to set sector-wide minimum standards on wages, working hours, and other working conditions for workers at fast food chains (i e , restaurants consisting of 100 or more establishments nationally that share a common brand, or that are characterized by standardized options for decor, marketing, packaging, products, and services). Notably, the law would authorize the council to set a minimum wage of up to $22 per hour for fast-food workers in 2023.

Yet, shortly after its passing, AB 257 received significant opposition from restaurant owners and business groups. On December 5, the Save Local Restaurants coalition submitted more than one million petition signatures for a referendum on the FAST Act on the November 2024 ballot. In January 2023, the California Secretary of State verified that it qualified for a referendum, so the

law will not take effect unless it is approved by voters in the November 2024 election.

AB 2183: Agricultural Worker Unionization Changes

Under existing law, to unionize, agricultural workers must participate in person in a secret ballot election on the question of unionization. Beginning January 1st, 2023, AB 2183 creates two alternative procedures: (1) if the employer agrees to a “labor peace compact” prohibiting the employer from making statements for or against the union or conducting captive audience meeting with employees, workers can vote by mail-in ballot, or (2) if the employer does not agree to a “labor peace compact,” workers can organize by a majority of the employees signing a union representation authorization card, which must then be submitted and verified by the Agricultural Labor Relations Board.

AB 2183 also seeks to prevent unionization intimidation by creating a rebuttable presumption that an employer who disciplines, suspends, demotes, lays off, terminates, or takes any other adverse action against a worker during a labor organization’s campaign did so for retaliatory reasons. The employer can rebut this presumption with clear, convincing, and overwhelming evidence that the employer would have taken the same action in the absence of the organization's campaign. AB 2183 sunsets on January 1st, 2028

AB 1601: WARN Requirements for Call Centers

Under existing law, California’s Worker Adjustment and Retraining Act (Cal/WARN) requires covered employers ordering a mass layoff, relocation, or termination of non-seasonal employees at a covered establishment to provide at least 60 days' advanced written notice to affected employees, the Employment Development Department, local workforce investment

board, and applicable local government officials. Existing law only governs employers who operate an industrial or commercial facility in California that employs or has employed 75 or more employees in the previous 12 months.

As of January 1st, 2023, AB 1601 expands Cal/WARN to require 60 days’ written notice for covered employers who operate a call center and wish to relocate a threshold portion of its operations to a foreign country. Call centers are defined as facilities or operations “where employees, as their primary function, receive telephone calls or other electronic communication for the purpose of providing customer service or other related functions.”

Covered employers must issue the 60 days’ written notice when relocating any of the following to a foreign country:

•An entire call center; or

•Operating units or facilities that cumulatively comprise at least 30 percent of the employer’s call center volume as measured by the past years’ average call volume.

Due to AB 1601’s broad definition of call center, employees who work remotely and primarily serve in a customer service role are likely covered by the statute Covered employers should include these employees’ work volume in any threshold calculations to determine if their relocation plans trigger Cal/WARN advanced written notice requirements.

In addition, AB 1601 bars employers who engage in a qualifying call center mass layoff, relocation, or termination from state grants, state-backed loans, and tax credits for five taxable years, regardless of whether they complied with notice requirements unless waived by the Labor Commissioner.

AB 2243: Revised OSHA Heat Illness Rules Forthcoming

Effective January 1st, 2023, AB 2243 requires the Division of Occupational Safety and Health, before December 1st, 2025, to submit a rulemaking proposal to consider revising the heat illness standard and wildfire smoke standard for certain employees, including farm workers. direct one or more workers in that same occupation and are employed in an occupation that may be certified by the Entertainment Technician Certification Program have completed an applicable “OSHA-30” course and are certified through a program relevant to the tasks they are supervising or performing unless the vendor certifies that its employees meet the conditions for a skilled and trained workforce. Vendors who do not comply are subject to OSHA citations.

State-Provided Benefit Program Changes

SB 1126: CalSavers Retirement Savings Program

Under existing law, employers with five or more employees that do not offer an employersponsored retirement program are required to participate in a state-sponsored retirement program (CalSavers) and offer a payroll deposit retirement savings arrangement so that eligible employees may contribute a portion of their salary or wages to a retirement savings account in the program.

Effective January 1st, 2023, SB 1126 expands the definition of “eligible employer” to include any employer “that has at least one eligible employee and that satisfies the requirements to establish or participate in a payroll deposit retirement savings arrangement.” SB 1126 also specifically excludes sole proprietorships, self-employed persons, and businesses that do not employ any individuals other than the business owners.

SB 1126 sets the following deadlines for employers to enroll in a payroll deposit saving arrangement allowing employees to contribute portions of their paychecks to a qualifying retirement savings program (the deadlines for employers with more than 50 and 100 eligible employees remain the same): (1) for eligible employers with five or more employees, within 36 months after the board opens the program for enrollment; and (2) for eligible employers with one or more eligible employees, by December 31st, 2025.

Employers that do not offer an employersponsored retirement plan and are not already participating in CalSavers should note the expanded definition of eligible employers and consider whether they now fall under this statute. This law was also effective as of January 1st, 2023.

SB 951: Increased Unemployment and Family Temporary Disability Insurance Benefits

SB 951 implements a sliding scale increase of state-paid disability benefits. Under current law, the State Disability Insurance/Paid Family Leave program pays approximately 60 percent of most workers’ wages when taking time off to care for their own serious injury or illness, to care for someone else’s serious injury or illness, or to bond with their baby. Beginning January 1st, 2025, SB 951 requires the state to pay between 70 and 90 percent (depending on income) of a disabled worker’s wages. Effective January 1st, 2024, SB 951 also eliminates the taxable ceiling on these benefits

Additional Changes for Employers in 2023

CA Privacy Rights Act: Employer Exemptions Expiring

The employer exemptions from the California Consumer Privacy Act (CCPA) are expiring at the end of 2022 – meaning that the CCPA will now apply to data collected by employers regarding employees. Covered employers should review their privacy policies and programs carefully to ensure compliance with the new requirements Additional information can be found here.

SB 1044: New Protections in the Event of an Emergency Condition

Effective January 1st, 2023, SB 1044 creates new protections for employees during “ emergency conditions,” defined as the existence of either (a) disaster conditions due to natural forces or criminal act, or (b) an evacuation order due to natural disaster or criminal act, but excluding a health pandemic.

is unsafe. The law requires employees to notify their employer of the emergency condition requiring the employee to leave early or refuse to report to work. Certain employees are exempted from this prohibition, including healthcare-facility employees and employees who provide emergency services.

The law also prohibits employers from preventing employees from using their cell phones to seek emergency assistance, assess the safety of the situation, or communicate with others to verify their safety.

The law does not apply when emergency conditions have ceased.

SB 1162: Pay Scale Disclosure and Pay Data Reporting

Beginning January 1st, 2023, all California employers must share a position’s pay scale when (1) any current employee requests it for the position in which they are currently employed, and (2) any external applicant seeking employment requests it for the position in which they have expressed interest. The “ pay scale” is the salary or hourly range that the employer reasonably expects to pay for the position (not including bonuses or equity-based compensation). California employers with 15 or more employees must also include a position’s pay scale in any internal or external job posting.

The bill prohibits employers, in the event of an emergency condition, from penalizing employees or absences or early departures resulting from an employee’s reasonable belief that the worksite

Similar to federal pay data reporting requirements, existing law in California requires employers with 100 or more employees to annually report pay data on each of 10 specified job categories to the California Civil Rights Division (CRD). This report is calculated from a “snapshot” of a single pay period of the employer’s choice between October 1st and December 31st.

Starting May 2023, California employers with 100 or more employees must submit moredetailed reporting, including the median and mean hourly rate for each job category, broken down by race, ethnicity, and sex. Employers who have retained at least 100 individuals through labor contractors the prior calendar year must also submit the above-outlined pay data for those individuals if they were performing labor within the employer’s usual course of business.

SB 1162 establishes a civil penalty of up to $10,000 per violation of the pay scale disclosure

j b i i d i il l

The bill generally prohibits the use of alternative devices that are GPS-equipped, except for fleet and commercial vehicles. Employers utilizing fleet or commercial vehicles with GPS-equipped alternative devices may monitor employees during work hours, but “only if strictly necessary for the performance of the employee’s duties.” “Monitor” means locating, tracking, watching, listening to, or otherwise surveilling the employee. The bill proscribes retaliation for employees’ removing or disabling the alternative device’s monitoring capabilities outside of work hours.

If an employer uses an alternative device to monitor employees, the law mandates the employer provide notice to employees. The law specifies what the notice should contain, including a description of the specific activities to be monitored, the data to be collected, and to who collected information will be disclosed or transferred.

E ployers who violate these monitoring provisions subject to civil penalties.

1632: Employee-Restroom ommodation for Public

AB 984: Motor Vehicle Tracking

Existing law authorized the Department of Motor Vehicles (DMV) to pilot the use of digital license plates. AB 984 authorizes the DMV to make these digital license plates (referred to as “alternative devices”) available to Californians beginning January 1st, 2023.

1632, which went into effect January 1st, 3, requires businesses open to the general lic for the sale of goods who have employee rooms to allow the use of those restrooms individuals lawfully on the premises who have hn’s disease, ulcerative colitis, other ammatory bowel diseases, irritable bowel drome, or another medical condition that requires immediate access to a toilet facility.

Businesses found to be willful or grossly negligent in their denial of qualified individuals are subject to a $100 civil penalty for each instance. Though businesses are allowed to require the individual to present “reasonable

evidence” of an eligible medical condition (such as medical documentation), given the pragma constraints (e g , the individual’s immediate need), businesses looking to reduce risk sh grant restroom access and not ask for documentation.

The new law excludes a private right of actio enforcement

SB 1477: Garnishment

SB 1477 lowers the maximum amount of weekly wages that can be garnished from a judgment debtor to settle a judgment. Existing law allows garnishment of up to 50 percent of disposable weekly earnings that exceed 40 times the state minimum hourly wage. Effective September 1st, 2023, SB 1477 reduces the maximum garnishment formula to 20 percent of the individual’s disposable weekly earnings or 40 percent of the disposable weekly earnings that exceed 48 times the state minimum hourly wage (currently $744), whichever is less.

Minimum Wage Increase

Beginning January 1st, 2023, the minimum wage in California will be $15.50 (a $1.50 increase from 2022’s $14.00 minimum wage). Note that cities and counties may set higher minimum wages than the state; for example, the minimum wage for some of California’s largest cities is below

City 2023 Minimum Wage

Los Angeles: $16.04 (for non-hotel workers)

San Diego: $16.30

San Francisco: $16.99

Oakland: $15 97 (for non-hotel workers)

Holly Sutton is a Partner and the Chair of the Farella Braun + Martel Employment Practice

Rebecca Stephens is a Partner with Farella Braun + Martel Employment Practice

Jamie Talt is a Senior Associate with Farella Braun + Martel Employment Practice

Unshackled: Reimagining the Practice of Law

Alex Vahdat

On February 28th, 2023, the Marin County Bar Association held its monthly general meeting with Board member Alex Vahdat interviewing Paul Llewellyn about Paul’s new book, Unshackled: Reimagining the Practice of Law. Paul is the founding partner of Lewis & Llewellyn, a boutique litigation firm in San Francisco and he brings a unique perspective to the topic of reforming the legal profession having studied and practiced law in England before coming to the United States. Relying on that experience, Paul discussed a wide variety of ideas ranging from how law students are trained, the billable hour model, and civility amongst attorneys.

Paul discussed the lack of emphasis on practical training in legal education. Contrasted with legal education in England, it is incumbent upon law students in America to seek out their own opportunities to receive real-world experience. As Paul pointed out, a lawyer can pass the bar and open their own law practice the next day without knowing anything at all about practicing law. Part of increasing lawyers’ satisfaction with their careers should include ensuring law students understand what law practice actually entails and are adequately prepared.

Paul also touched on how the billable hour can distract from providing effective service to clients. In certain circumstances, billable hours encourage lawyers to be inefficient and focus solely on their hour requirements rather than providing excellent legal work. However, since the billable hour model can be incredibly lucrative, law firms are hesitant to move away from it. Paul cited other billing methods that can be used such as fixed fees or bonuses for early case resolution.

Paul ended his discussion on the issue of civility.

While the law, and especially litigation, can be inherently adversarial, he argues that it is no excuse to treat opposing counsel as anything other

than colleagues and peers. In fact, it can be bad for both the client, by driving up fees and engaging in meaningless disputes with opposing counsel, and for the lawyer, by creating a bad reputation that can drag on future business.

The membership enjoyed the conversation and engaged with what Paul had to say Thank you, Paul, for joining us and sharing your insights!

Board of Directors

Chelsea E. Heaney

2023 Director

Vance & Wills, P C

Thomas M. McCallister

2023 Director

Marin County District Attorney's Office

Neusha N. Ghaedi

2024 Director

DeMartini, Walker & Ghaedi LLP

Mary A. Stearns

2024 Director Alternate Defenders Incorporated

David L. Winnett

2024 Director

Liuzzi Murphy Solomon Churton Hale & Winnett LLP

Morgan H. Daly

2025 Director

Law Office of Morgan Daly

Lucie C. Hollingsworth

2025 Director Legal Aid of Marin

Valerie G. Kushel

2023 Director

VGK Law

Mary M. Sackett

2023 Director

Marin County Supervisor, District 1

Jeffrey G. Knowles

2024 Director

Coblentz Patch Duffy & Bass LLP

Alexander S. Vahdat

2024 Director

Berman Tobacco

Robyn B. Christo

2025 Director

Epstein Holtzapple & Christo

Shanti Eagle

2025 Director

Farella Braun & Martel LLP

Elisha J. Yang

2025 Director

Hanson Bridgett LLP

Executive Board of Officers Officers

Ahtossa P. Fullerton President

Wasacz, Hilley & Fullerton LLP

Kristine Fowler Cirby Treasurer

Cirby Family Law Offices

Robert Rosborough Past President Monty White LLP

Scott Buell President-Elect Buell Law & Mediation

Thomas McInerney Secretary

Ogletree Deakins

Mary McLain

5-Year Past President McLain Mediation

To involve, encourage, and support Bar Association members, to serve as a liaison to the Marin County Courts, to educate the community and enhance access to legal services.

MISSION STATEMENT

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