The Marin Lawyer September 2019 by Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER September 2019 Editor Robert Rosborough Guest Editor Marie Barnes Editorial Producer Kiersten Ross

2019 Officers Charles Dresow, President Susan Feder, President Elect Robert Rosborough, Secretary J. Timothy Nardell, Treasurer Thomas Brown, Past President David Feingold, 5 Year Past President Board of Directors 2019 Directors Scott Buell Anna Pletcher 2020 Directors Marie Barnes Gregory Brockbank Andres Perez Nestor Schnasse 2021 Directors Habib Bentaleb Michael Chaput Ahtossa Fullerton Sarah LĂŠger G. Kelley Reid Executive Director Mee Mee Wong Communications Kiersten Ross Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org ÂŠ 2019. All Rights Reserved. Cover Photo: "Power house mechanic working on steam pump". By Lewis Hine, 1920 National Archives and Records Administration, Records of the Work Projects Administration (69-RH-4L-2) [VENDOR # 36]

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTENTS P5 P7

Editorâ&#x20AC;&#x2122;s Introduction: Labor Robert Rosborough

Presidentâ&#x20AC;&#x2122;s Message: An Invitation to Innovate Charles Dresow

A Labor Day Lament: On this Labor Day, Let us Remind Ourselves of the Fruits of the Labor Movement and the Threat to Them from a Hostile Supreme Court Marie Barnes

P11 P14 P16 P18 P20

An Interview with Elaine Quinn, Founder of The Conscious Lawyer Barbara Monty

California Employment Law Update Beth Arnese

Nonprofit Profile: The YWCA Empowering Women by Creating Real Change Marie Barnes

A Sound Business Decision: Hiring People with Disabilities Jessica Pliner & Lisa Newmark

Think Twice Before Paying Workers as Independent Contractors Rather than

Employees Lisa Maslow Contents continued on page 4. THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTENTS P23 P25

P28 P30 P32 P33 P35

P36

Legal Challenges to the On-Demand Industry Keegan Dresow

Using Metadata in Depositions Mark Griffin

Paid Family Leave Has Begun Carrie Ann Colton

Five Things Every Small Business Owner Should Know About California Labor Law Sarah LĂŠger

Section Chair Profile: John Cuerva Marie Barnes

Murphy v Kenneth Cole Productions: A Major Victory for Employees Jennifer Reisch

New Members

Upcoming Events

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

EDITOR’S INTRODUCTION ROBERT ROSBOROUGH

Labor

hope everyone enjoyed their Labor Day holiday. Did you take the day off? Amidst barbecues and parades, did you contemplate what Labor Day is all about? Our guest editor, Marie Barnes, did. Many thanks to her for putting together this employment-law themed issue for us. You might check out her Labor Day Lament, where she briefly discusses the history of the American labor movement and the impact of last year’s Supreme Court’s Janus decision on public employee unions. Or for a practical primer on a topic much in the news these days, read Lisa Maslow’s article on the specifics of the Dynamex case’s “ABC test” for distinguishing employees and independent contractors and the possibility of legislation on this hot topic. You don’t need to be an employment lawyer (or Uber or Lyft), just an ordinary employer or employee, to need to know the law to protect yourself or your clients. Moving beyond our labor theme, check out Mark Griffin’s tips for using metadata in depositions. For those who ask, “meta-what?”, welcome to the digital world. With a higher and higher percentage of information stored electronically, the metadata that tells you things like when a file was last

accessed or who created it is useful for far more than just organizing your discovery. It can be critical in getting to the truth in depositions. Find out how in Mark’s article. And I highly recommend Barbara Monty’s interview with Elaine Quinn, the founder of The Conscious Lawyer magazine and website. If you want to know what’s cutting edge in the legal world, the Conscious Lawyer is the place to find out. And returning to our labor theme, I would also like to highlight our non-profit profile this month. You might be surprised at how dynamic the YWCA is, working to advance many aspects of social justice and making a concrete difference in many women’s lives. Its highly successful “50+ Employment” program helps many women improve their job prospects and helps many Marin employers by matching them with strong job candidates.

quarterly magazine.) Enjoy the issue and as always, all feedback is welcome. View this article online at Marinbar.org. Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adultfamily conflict such as disagreement over caring for an aging parent and HOA disputes. He maintains an estate planning and general advisory and transactional law practice focusing on personal and small business issues. Rob also teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher. EMAIL

I would also like to remind our readers that all of this issue’s contents are available as always on MCBA’s website as well as in our quarterly digital magazine. You can read the magazine “flipstyle” online or download it as a pdf to take with you to read (which you can do with every issue of the Marin Lawyer, just not as nicely formatted as the

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Visit MCBA or email volunteer@marinbar.org to learn more and to get involved.

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PRESIDENT’S MESSAGE CHARLES DRESOW

An Invitation to Innovate

elcome to another digital edition of the Marin Lawyer. With articles largely provided by our Bar Association’s members and guest edited by one of our board members, each edition of the Marin Lawyer is a great example of the vibrant intellectual culture of our Bar Association. That’s just one facet of what makes MCBA and all local bar associations the traditional bedrock of the legal community. But this traditional role does not guarantee relevance or effectiveness. To ensure a vibrant legal community, we must innovate to keep up with the needs of our members and the community at large. Doing so helps ensure that we can continue to contribute to the pursuit and protection of justice. Whether the division of the State Bar into two entities is innovation that serves the needs of its members is still being debated. But the two entities are here to stay: The State Bar of California and the California Lawyers Association. The Bar continues to enforce discipline, handle attorney admissions (including the bar exam) and otherwise provide protection to the public. The California Lawyers Association is in effect a spinoff of the Bar’s former practice group sections. Unfortunately, in a stroke of administra-

tive “genius,” each new entity is charging its own dues.

With State Bar membership remaining mandatory while membership in the CLA is voluntary, it doesn’t take a fortune teller to see that the CLA will be competing for membership dollars with local bar associations. The CLA is positioning itself as a provider of some of the same benefits that local bar associations have traditionally provided, such as CLE, networking, career advancement, and attorney interests advocacy. Further adding financial pressure to California attorneys is the State Bar’s efforts to raise the annual dues. The State Bar’s attempt to raise membership dues to $862 for 2020 ultimately did not come to pass but it illustrates the necessity of strong local bars to advocate for the financial interests of their members. And dues still rose significantly nonetheless. The bottom line is membership in our association will become expendable unless we take steps to ensure our relevance moving forward. To remain relevant and vibrant, we need to provide benefits to our members that the larger, statewide associations can’t, particularly programming and networking directly focused on and relevant to Marin County.

settles in and develops, I encourage members to reach out to MCBA’s leadership, including directly to me (415-453-9433 or cdresow@rflawllp.com), to express what you’d like to see in your local bar association and especially with ideas on how to provide Marin-centric programming. I am confident that the engagement, interests and resources of our talented members can help us innovate and meet the needs of our members and our community in a shifting legal landscape. View this article online at Marinbar.org. Charles Dresow is a partner at Ragghianti Freitas LLP and is the MCBA President for 2019. His practice focuses on representing those accused of crimes. EMAIL | WEBSITE

As the new statewide structure

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The San Francisco call. [volume] (San Francisco [Calif.]), 30 July 1901. Chronicling America: Historic American Newspapers. Lib. of Congress. <https:// chroniclingamerica.loc.gov/lccn/sn85066387/1901-07-30/ed-1/seq-1/>

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JUVENILE LABOR DEPENDENCY UNIONS MARIE BARNES

A Labor Day Lament: On this Labor Day, Let us Remind Ourselves of the Fruits of the Labor Movement and the Threat to Them from a Hostile Supreme Court Disclaimer: The views below are those of the author and do not necessarily reflect those of MCBA and its members.

ach year on the first Monday in September, many Americans can be found firing up their grills, watching parades, shopping and relaxing. Others are spending it like any other day: working. The significance of Labor Day is often overshadowed by hot dogs and parade floats even though all this fun is possible only because of one of the fruits of the labor movement in America: a day off. Fruits like a 40hour workweek, days off, and workplace safety protections are today so often taken for granted that many Americans do not realize they are the result of the hard-fought struggles of the labor movement. San Francisco played a pivotal role. In 1901, it was the only city in America where a general strike was called and succeeded. San Francisco has remained a union town ever since. Today, 14.7 percent of California workers are union workers. The largest union in Marin County is the Marin Association of Public Em-

ployees (MAPE), which represents 1300 county employees, including Deputy Public Defenders. But in the last year, the percentage of California workers who are members of a union declined. Some of the blame for that can be attributed to last year’s Supreme Court decision in Janus v. American Federation (June 27, 2018, No. 161466) 138 S.Ct. 2448, 585 U.S. ___. Overturning a forty-oneyear-old precedent, the Court held that teacher unions and other public employee labor organizations could not collect mandatory fees for collective bargaining from workers who declined to join the union. The Court also held that workers must affirmatively opt into a union before dues could be deducted from their paycheck. Writing for a majority of five, Justice Alito stated that forcing nonunion workers to finance union activity, “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Understanding that this decision

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meant that public sector unions would be undermined and stand to lose millions of dollars, Justice Alito wrote, “But we must weigh these disadvantages against the considerable windfall that unions have received… over the past 41 years.” In dissent, Justice Kagan sharply criticized the majority decision: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law— and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

In the eyes of the majority, the existing system forced nonunion workers to endorse the political ideology of the union, an ideology the worker may disagree with. They reached this conclusion despite the fact that nonunion workers had the 9

choice to opt out of paying for the union’s political activities. These unions are now working for the benefit of those who support them monetarily as well as those who do not. What does Janus mean for unions? The most drastic impact is already being seen in declining numbers of public employee union members. However, California has passed legislation to soften Janus’ blow by allowing unions to have access to newly hired employees and providing help in recruiting new members. The long-term effects remain to be seen. As we celebrate Labor Day, let us remember the true significance of this day and the many fundamental parts of our everyday lives that are actually hardwon protections that are still at risk. View this article online at Marinbar.org. Marie A. Barnes devotes herself to the practice of both criminal defense and family law. Over the course of her career, Marie has defended a wide range of criminal matters, from misdemeanors to major felonies and brings the knowledge and wisdom she gained as a former prosecutor to the defense. In family law, Marie focuses on issues arising from domestic violence and how they affect divorce and child custody. Marie was born in San Francisco and is fluent in Spanish. She received her Bachelor's degree in Political Science and Psychology from Sonoma State University and received her Juris Doctorate from Western Michigan University, Thomas Cooley Law School. In her spare time she volunteers for various organizations that provide free or low-cost legal services to the community. EMAIL | WEBSITE

The Marin Lawyer encourages our readers to also be our writers. If you have something you’d like to write about, get in touch with us. We also encourage our readers to be our critics. If there’s something you’d like to see (or not see) in the Marin Lawyer, let us know. If you’d like more articles on practical law firm topics, tell us. More book reviews? Let us know. All feedback is welcome. info@marinbar.org

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE THE CONSCIOUS CIVIL RIGHTS LAWYER ACT BARBARA MONTY

An Interview with Elaine Quinn, Founder of The Conscious Lawyer

hat is The Conscious Lawyer?

The Conscious Lawyer started as an online magazine in early 2017, and has since evolved into a website with articles about a variety of established and emerging conscious law practices. I appreciate that the term â&#x20AC;&#x153;consciousâ&#x20AC;? can mean different things to different people. One way of understanding the term, particularly in relation to being a lawyer, could be: to be awake to the reality that we are all deeply interconnected, and that therefore how we practice law can and does either positively or negatively impact ourselves, others and the world around us. When we are practicing unconsciously, perhaps we are blindly following long-established practices and principles without considering their potential for harm. In the time-pressured and challenging circumstances we work in, we are understandably often oscillating between these two states of wake-ness and sleep-ness. Many, though, do seem to be realizing that the law often can do more harm than good and seem to be striving to bring more awake-ness, more awareness, more compassion, and more love, to the practice. It is an incredibly exciting time because this historic profession is undergoing radical change and offers way more possibilities for

ways of working than it did twenty, even ten, years ago.

Who publishes it, from where, how often? Four editions of the magazine were published online. It has evolved into a website where lawyers, legal academics and others with an interest in the law can publish their writing, and even artworks and poetry. There is a great repository of ideas, interviews and initiatives from different legal areas like contemplative law, animal law, restorative justice, earth law, conscious contracts, and law and spirituality. Although the website is UK-based, contributions are welcome from around the world and that is reflected in the content already up on the site! Why was The Conscious Lawyer started? The idea originated at a time when I had started some academic research on the integration of mindfulness into legal education in the UK. The academic papers on the state of legal education in the UK and abroad were quite disillusioning: rising levels of stress and depression among law students; rising levels of university tuition fees resulting in increased interest in the higher paying corpo-

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

rate legal jobs; and greater focus by law schools on churning out market-ready law graduates. At that time, the integrative law movement was emerging, and even flourishing, in the U.S. and it felt like a good idea to help bring more attention to the positive possibilities the movement offered. I was working for a commercial law firm in London, and responsible for editing and publishing a legal bulletin for insurance clients, so the idea of beginning a magazine for the conscious law movement was born.

What drew you to do this? For almost five years, I worked in a large law firm in Sydney. During this time, I was developing a regular practice of meditation and spiritual inquiry. It became clear that these seemingly separate aspects of my life 11

were intertwined, and mutually beneficial. Prior to learning about meditation, I had experienced a considerable amount of anxiety practicing law—there seemed to be so many rigid rules and regulations that applied to every situation, and so many possibilities for things to go wrong. I would consider every problem and issue from a tight, overly-intellectualized perspective (because that is how I had been education and trained). It didn't feel like there was much space within law practice to breathe, to relax, to think and feel spaciously and creatively about practical, as well as legal, solutions that would really benefit clients. Meditation and other contemplative practices enabled me to develop, and start to embed, those skills despite the timepressured and heavily rulebased environment and industry I was working within. I started to realize that these skills were incredibly beneficial to my ability to practice law effectively, that it must be the same for other lawyers, and that therefore it was a very worthwhile endeavor to explore further. What is your background? I was admitted to the Roll of Solicitors in the Republic of Ireland in 2007, to the California Bar in 2009, and to the Roll of Solicitors in England & Wales in 2016. Since 2008, I have practiced in Ireland (a general practice in my hometown of Longford), in Sydney (as a disputes lawyer with international law firm Kennedys), and in London

(as a practice development and knowhow lawyer with international law firm Pinsent Masons). Working freelance for several years when I moved to London allowed me the flexibility and space to envision, and eventually create, the magazine. I think the evolution of freelancing within law is another element that can really drive positive change, as more and more lawyers have the time to be innovative and explore other passions. This can contribute to increasingly breaking up the rigidity and stuffiness traditionally associated with being a lawyer, and that can only be a good thing.

There is a real wealth of articles, ideas and initiatives available to read on the website from a range of unique and inspiring voices. There are too many to mention and I would encourage anyone who is interested to visit the website here. Some of these include: Inspiring interviews with pioneer lawyers and legal academics Peter Gabel (law and spirituality), the late Polly Higgins (the law of ecocide), Dr Marjorie Silver (transforming legal education), and J. Kim Wright (the integrative law movement). [Editor’s Note: Kim Wright spoke to MCBA’s ADR section just last month.] Art/Law Network founder Dr Lucy-Finchett Maddock, bringing together a gathering of artists, lawyers, and agitators, to work and collaborate for change.

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Swiss animal welfare attorney Antoine Geotschel and academic Dr. Sabine Brels, who have founded the Global Animal Law Project, on the legal status of animals. UK-based integrative lawyer Rhiannon Thomas, who writes about an integrative approach to end-of-life conversations and creating values-based wills. California-based artist and writer Kim Vanderheiden, who has created a beautiful body of work on justice and love, including establishing the Justice Conversation website. Dutch lawyer and one of the pioneers of earth restorative justice Femke Wijdekop writes about her work. Indian Intellectual property lawyer Manojna Yeluri writes about her 'coffee for contracts' experiment providing creatives with legal counsel in exchange for a cup of coffee. …and the planned series of pieces on bringing forgiveness into law practice written by yourself and mediator/lawyer Eileen Barker, with the first part appearing this past April. With what organizations, groups, associations are you connected? As well as those mentioned above, there are a number of excellent networks and groups that I am aware of—some of which are long established, and some of which have recently 12

emerged—including: The Project for Integrating Spirituality, Law and Politics (PISLAP), a US nationwide network of lawyers, law professors, law students, legal workers, and others who are seeking to develop a new spirituallyinformed approach to law and social change, and who have come together for over twenty years. As well as an annual conference, PISLAP run a regular series of conference calls with speakers from different backgrounds within the movement. For more information, and to be updated about these calls, you can email: contactpislap@gmail.com. The International Society for Therapeutic Jurisprudence (ISTJ) (including their newly established UK branch). Cofounded by David Wexler and Bruce Winick in 1987, therapeutic jurisprudence is an interdisciplinary field of philosophy and practice that examines the therapeutic and antitherapeutic properties of laws and public policies, legal and dispute resolution systems, and legal institutions. It is possible to become a member of ISTJ here and to subscribe to their regular blog and newsletter here. Forrest Webb and Legal Changemakers' Cafes, a recently formed group of lawyers

working on transforming what it means to be a lawyer through collaboration and exploration of how to make the world a better place. The Legal Changemakers' Cafes are a great way to get together with other lawyers in person or on-line to talk about all of these topics. New Economy Law, an initiative recently established by UKbased lawyer Mothiur Rahman, who has also been working closely with the Extinction Rebellion movement in the UK, described as "a Legal Innovation Lab strengthening civic resilience for precarious futures." Nature's Rights (previously Rights for Nature Europe). Founded by UK lawyer Mumta Ito, this is a young, international non-profit organization committed to establishing rights of nature in law and policy in Europe and around the world.

Humanity. There is an opportunity to start government petitions to stop ecocide here. Wild Law Special Interest Group. Emerging out of the book by Cormac Cullinan, wild law seeks to align law with ecology and the science of living systems. What do you see in the future for the magazine? I begin maternity leave shortly, and am hoping to have more time to reflect on this question! How does one become connected to or involved in the goals of the magazine or submit articles? Anyone interested in writing an article about any topic with a conscious law perspective, or simply interested in learning more, is welcome to make contact by emailing info@theconsciouslawyer.co.uk. View this article online at Marinbar.org.

Stop Ecocide—Change the Law (previously Mission Life Force). Emerging from the work of wellknown earth lawyer Polly Higgins (who passed away earlier this year, leaving an incredible legacy of work behind her), this movement is working to make Ecocide (the serious loss, damage or destruction of ecosystems, including climate and cultural damage) an atrocity crime at the International Criminal Court—alongside Genocide, War Crimes and Crimes Against

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CA THEEMPLOYMENT CIVIL RIGHTS LAW ACT BETH ARNESE

California Employment Law Update This article was published in the March 2017 issue of the Marin Lawyer and is reprinted here in its original form.

mployment laws in California are constantly changing. Even if you do not practice in the employment law arena, it is a good idea to keep up with the latest changes. A few of the more significant new state and local laws include the following: California Fair Pay Act Expands to Include Race and Ethnicity The California legislature has expanded the Fair Pay Act to include protections on grounds of race and ethnicity. The language of the new law prohibits employers from paying “employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Note that this language mirrors that of the gender-related protections of the California Fair Pay Act. In addition, AB 1676 now prohibits employers from relying on an employee’s prior salary to justify salary gaps among similarly-situated employees. The Legislature is concerned that allowing employers to justify a

salary gap based on prior salary would adversely affect female candidates who may have had a lower prior salary for various reasons. Employers can inquire about prior salary history, but they may not rely on it entirely to justify a wage difference between employees of different genders or different ethnicities who perform substantially similar work.

As my law firm recommended previously when the law applied only to pay differences between men and women, it is critical for employers to document the legitimate reasons for salary gaps between similarly-situated employees who perform substantially similar work. Before you can do that, of course, you need to understand whether there are any pay gaps in your company. Smaller companies who are making this determination on their own should err on the side of finding a pay gap and documenting the reasons for it. Larger companies or companies with more resources may want to consider hiring a third-party auditor to conduct company-wide reviews of their payroll. State Disability and Paid Family Leave Increases California's State Disability Insurance (SDI) and Paid Family Leave (PFL) programs currently

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provide only 55% of wage levels for six weeks to allow workers to bond with a child or provide care for a sick relative. AB 908 revises the formula for determining benefits available for both SDI and PFL and raises the weekly benefit amount for periods of disability commencing on January 1, 2018, to either 60% or 70% depending on income. Effective January 1, 2018, AB 908 also removes the seven-day waiting period for these benefits. Although these new provisions do not directly affect employers, they are helpful to understand when dealing with an employee on leave. Companies in San Francisco should also be aware that employers with 50 or more employees are required to provide supplemental compensation to employees who use California paid family leave 14

(PFL) benefits for new child bonding. This new requirement, the Paid Parental Leave Ordinance, went into effect on January 1, 2017. Ban the Box Expands California Labor Code section 432.7 currently prohibits most employers from asking a job applicant to disclose information about an arrest or detention that did not result in a conviction. Employers are also banned from using such information as a factor in connection with employment decisions. AB 1843 expands this prohibition to include any information concerning or relating to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was under the jurisdiction of a juvenile court. This latest law reflects the trend of limiting an employer’s ability to find out about a person’s criminal history at the time the person is applying for a job. However, it is worth noting that employers in California may consider a criminal conviction if it is relevant to the job. For example, an employer could ask about drug convictions for job applicants who, if hired, would have access to drugs and medication. San Francisco employers face even more stringent laws about criminal background checks. The Fair Chance Ordinance prohibits San Francisco employers with at least 20 employees from

inquiring about a job applicant’s criminal history on an employment application, including “checking the box” to indicate criminal convictions or other criminal justice system involvement when they apply for a job. Los Angeles also recently adopted a similar law, the Los Angeles Fair Chance Initiative for Hiring. The laws surrounding an employer’s obligations in this area can be complex, and we are frequently called upon to counsel our clients about what they can and cannot do when it comes to a job applicant’s or an employee’s criminal history.

Single-User Restroom Labeling Required Beginning on March 1, 2017, business establishments must identify all single-user toilet facilities as "all-gender." The new law authorizes inspectors, building officials, and other officials to inspect for compliance with these provisions. Notification of Rights for Victims of Domestic Violence, Sexual Assault, or Stalking Existing California law requires employers with 25 or more employees to provide protected leave for victims of domestic violence, sexual assault, or stalking so that they can take time off from work for specific reasons related to their situation of domestic violence, sexual assault, or stalking (1). Such reasons include seeking medical attention for injuries caused by

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domestic violence, sexual assault, or stalking; obtaining services from a domestic violence shelter, program, or rape crisis center; obtaining psychological counseling related to an experience of domestic violence, sexual assault, or stalking; or to participate in safety planning and other actions to increase the employee’s safety from future domestic violence, sexual assault, or stalking. AB 2337 requires such employers to provide notice of these rights in writing to all new employees and to existing employees upon request. This bill requires the Labor Commission, on or before July 1, 2017, to develop a form for employers to use for such notification purposes. Employers are not required to comply with this notification requirement until the Labor Commission posts this form on its website. (1)

“Protected leave” is an employment law term that generally means that an employer (a) cannot terminate and/or retaliate against an employee as a result of the employee requesting or taking the leave; and (b) must maintain the employee’s position or a similar position to which the employee may return at the conclusion of the leave. This article was originally published in the March 2017 issue of the Marin Lawyer. The republication of this article is in its original form and does not reflect changes in the law since the original publication date. Beth Arnese is an attorney at the Judicial Council of California. Beth has over eleven years of experience as a civil defense attorney, litigating employment and commercial law matters in both in the public and private sector.

HUMAN NONPROFIT RIGHTS COMMISSION PROFILE MARIE BARNES

The YWCA: Empowering Women by Creating Real Change

s we celebrate Labor Day, we should not forget the particular difficulties that women face in the workplace even today and even here in Marin. As guest editor this month, I’ve chosen to highlight a dynamic and vibrant organization serving Marin County and San Francisco: the YWCA. Established well over a century ago, it may surprise you to learn that the YWCA has been a pioneer in working for racial justice, labor union representation and women’s rights. The first YWCA began in 1855, in London, England, as a Christian organization focused on improving the lives of working women. Three years later, the United States began its first chapter and in 1878, the YWCA San Francisco and Marin was founded. Today, the YWCA serves over 2 million women and girls in the United States, and 25 million women globally in over 100 countries. It describes its mission as eliminating racism, empowering women and promoting peace, justice, freedom and dignity for all. It does this through advocacy, providing affordable housing and a variety of programs, including its

“Fifty+ Employment” program.

ICE out of the courthouse.

Advocacy

Affordable Housing

While Marin County has the fifth-highest per capita income in the United States, the “per capita” disguises a stark disparity in the income of its residents. YWCA Marin has led the charge to increase the minimum wage

In San Francisco, the YWCA provides safe, clean and affordable apartments for low-income seniors and people with disabilities. For its residents, the YWCA provides assistance with food, social activities, health and fitness opportunities and support in the language each resident speaks. Residents are healthier and happier, so much so that their life expectancy shows a dramatic increase. Community Programs

to $15 an hour and has made strides towards creating affordable housing in Marin through legislation. YWCA Marin also participates in “Stand Against Racism,” a national campaign to build community and raise awareness around racism. This year’s campaign focused on immigration, not only providing information and education but also trainings and advocacy, including to keep

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Across the country, many YWCAs adapt and expand programs designed to meet the specific needs of their communities. Proud of this “community equity quotient,” YWCA Marin/San Francisco offers practical programs to help residents achieve their goals. One of those programs addresses a pervasive problem in the workforce: age discrimination. Older women are a growing part of the workforce. The Bureau of Labor and Statistics predicts that by 2024 there will be twice as many women over 55 in the workforce as women under 24. According to Bette 16

Gundersheim, the YWCA's Business and Outreach Coordinator, "Women are three times more likely to age into poverty, and face the double-bind of age and gender discrimination as they try to enter or reenter the workforce and sustain themselves in Marin County."

moting peace, justice, freedom and dignity for all, the YWCA’s task is great and the issues are real. For nearly 150 years, YWCA Marin/San Francisco has worked tirelessly to address them. There are many ways to help it stand for social justice. To find out how, contact the job. The hundreds of participants Marin office at 415-479-YWCA The YWCA’s Fifty+ program of- each year find jobs on average in or visit its website. You can also fers free training and placement half the time and at more than learn more about the 50+ Emservices exclusively to women double Marin’s minimum wage. ployment program here. over 50. These are one-on-one The YWCA's Gundersheim says, View this article online at Marinbar.org. services that include computer "With the high cost of living in training, resume writing, interMarin, coupled with Marin’s view preparation and negotiaunique status as the fastest aging tion training. They also include county in the state of California, direct placement services with YWCA is proud to offer the first employers who partner with the and only program in the Bay ArYWCA. The program is designed ea meeting the unique employto ensure that participants feel ment needs of mature women." supported every step of the way from gaining skills to obtaining a With a mission that includes pro-

THANK YOU TO OUR 2019 MCBA SPONSORS Platinum

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HELP HIRING FAIR HOUSING THE DISABLED JESSICA STUART PLINER & LISA NEWMARK

A Sound Business Decision: Hiring People with Disabilities This article was published in the December 2014 issue of the Marin Lawyer and is reprinted here in its original form.

I work at a law firm with approximately 15 attorneys in our San Francisco office. About two and one-half years ago, our firm hired Simon Ho to work as part of our support staff. Mr. Ho is a young man with autism. When Mr. Ho started work at our firm, he had a job coach from TransCen, Inc., (transcen.org), a non-profit organization dedicated to improving educational and employment outcomes for people with disabilities. Mr. Ho’s job coach often accompanies him to work, and assists in teaching Mr. Ho the required job skills. Mr. Ho works in our office four days a week for approximately

Simon Ho in front of the Capitol Building.

ten to fifteen hours and his assistance is greatly appreciated. Some examples of Mr. Ho’s duties include monitoring the office-supply inventory, stocking supplies upon receipt, ensuring that all printers and copiers are stocked with the appropriate paper, loading staplers, helping with keeping the kitchen tidy and assisting with the filing for the firm’s cases by sorting all the firm’s loose filing by case. Mr. Ho’s support has been invaluable to our law firm. On August 5, 2014, Mr. Ho testified at the State Capitol before the California Senate’s Informational Hearing by the Select Committee on Autism and Related Disorders, chaired by Senator Darrell Steinberg. The Informational Hearing focused on vocational training and employment for individuals with autism spectrum and related disorders. Mr. Ho finds his work rewarding and especially appreciates how having an income allows him to be self-sufficient. Mr. Ho is headed to Europe next week and his long -anticipated trip was funded in large part through his employment income. The link to the Informational

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Hearing is here: www.senate.ca.gov

In light of the extremely positive experience my law firm has had working with Mr. Ho, I wanted to inform the MCBA members about a non-profit organization in San Rafael, called Integrated Community Services (ICS) that provides employment services for individuals with disabilities. A diverse workforce builds understanding and acceptance while advancing new perspectives. It melds a team together. People become more tolerant of others once they understand we are more similar in our needs, hopes and desires than we are different. This process of acceptance and inclusion not only makes a company (and the world) a better place, it also makes good business sense. Since 1994, ICS has forged winning partnerships between skilled workers with disabilities and community-minded companies in Marin County. ICS’ customized nofee employment program offers all the job development, recruitment, training and follow-up support services needed to put diversity to work in your company. And, since ICS’ services are funded by government agencies, the only cost to you as an employer is the wage for the employee. ICS’ 18

employment services make it easy to hire very capable people with disabilities—men and women who want to work and contribute to your team. ICS will act as the bridge between a skilled candidate with disabilities and your firm to ensure a successful job placement. If you have a current opening, ICS will analyze the work skills required and find a suitable candidate to match the job. For instance, if you have documents that need scanning or data that needs entering, ICS might have the perfect person for that job. ICS works with individuals with Autism and many of them enjoy tasks that are repetitive and structured. When one of ICS’ job seekers is hired by a company, an ICS Job Coach works with the employer to teach your new employee the basic job skills required of the position. In addition to supporting the employee, ICS helps train and educate the staff on issues related to disabilities. ICS’ involvement provides the guidance and internal supports required to create a successful outcome and a

cohesive team. Hiring people with disabilities can improve productivity through innovative and effective ways of doing business. Matching jobs to employee abilities not only improves labor

efficiencies, but is a best practice for any company. In fact, companies that employ people with disabilities have seen their commitment to diversity translate into lower costs. Positions with a high turnover rate or jobs involving repetitive tasks can be reframed around the talents and strengths of people with disabilities. One can reduce hiring and training costs by increasing retention. People with disabilities have very high retention rates and employing them can also reduce costs due to absenteeism as employees with disabilities receive the

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highest marks on reliability and dependability. As can be seen, hiring people with disabilities is not an act of charity, but a sound business decision for companies both large and small. If you are interested in exploring how ICS can customize positions for people with disabilities in your company, please contact Lisa Newmark at 415-455-8481. This article was originally published in the December 2014 issue of the Marin Lawyer. The republication of this article is in its original form and does not reflect changes in the law since the original publication date. Jessica S. Pliner is a partner in the San Francisco and Walnut Creek offices of Lewis Brisbois and is a member of the Labor & Employment Practice. Jessica is active in the local community, volunteering at Legal Aid of Marin. She also served as an officer for the Marin County Bar Association, and is a previous Board Recording Secretary for the Sustainability Project. Jessica was part of the Bar Association of San Francisco’s Conference of Delegates in 2015, and is a former volunteer for BASF’s Homeless Advocacy Project. EMAIL | WEBSITE

INDEPENDENT NONPROFIT CONTRACTORS PROFILE LISA SPANN MASLOW

Think Twice Before Paying Workers as Independent Contractors Rather than Employees

aying a worker as an independent contractor can be risky business in California. Misclassifying an employee as an independent contractor often results in substantial penalties. Employers face liability for unpaid overtime hours, missed meal and rest breaks, late wage payment, failure to provide wage statements and maintain time records, unpaid sick leave, failure to provide workers’ compensation insurance, unpaid payroll taxes (with interest and penalties) to the IRS and EDD, and a possible audit by the California Division of Labor Standards Enforcement. And that’s not a complete list! Up until 2018, the legal test for determining independent contractor status under California wage and hour law was complex and vague. That changed when the California Supreme Court adopted the “ABC” test in Dynamex Operations West, Inc. v. Superior Court, (2018) 4 Cal.5th 903. The California legislature is now considering legislation to codify and expand Dynamex, much to the consternation of the business community. What is the ABC Test? An employer/business/hiring entity must establish each of

the following to establish an independent contractor relationship under the California Wage Orders: (A) That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; and (B) That the worker performs work that is outside the usual course of the hiring entity’s business; and (C) That the worker is customarily engaged in an independently established occupation or business of the same nature as the work performed for the hiring entity. Factor A is familiar to most employers and may be the simplest to satisfy. Factors B and C are more challenging: •

Factor B means that a contractor cannot perform the same services that the employer provides in its usual business operation. If a worker will perform the same duties as a regular employee, that person should be classified as an employee—even if the work is done

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in a remote location or on a part-time basis. •

Factor C requires that the worker actually have other clients/customers in order to establish that the worker is an “independent contractor” rather than someone with just one or even two clients/customers. For example, does the contractor have a website, business cards? While an independent contractor might provide services on a full-time basis for a month or two, a long-term full-time engagement (with a large 1099 from a single employer) may violate the ABC test.

Does Dynamex Apply Retroactively? Stay tuned. In May 2019, the 9th Circuit Court of Appeals ruled that the ABC test applies retroactively. (See, Vazquez v. Jan-Pro Franchising Int'l, Inc. (9th Cir., May 2, 2019, No. 1716096)). The Court withdrew the Vazquez decision on July 22, 2019, stating that it will file an order certifying to the California Supreme Court the question of retroactivity “in due course.” (Ever noticed how deadlines never apply to the 20

government?) Written Independent Contractor Agreement A signed independent contractor agreement cannot alter the outcome of the ABC test. However, it is valuable evidence that both the worker and the business/hiring entity shared the same view of the worker’s classification. An independent contractor agreement should clearly define the worker’s job responsibilities and duty to provide workers’ compensation insurance and pay required payroll taxes. Don’t forget to attach the hiring entity’s EEO/Harassment Prevention policies and Confidentiality and Nondisclosure Agreement and require compliance as a term of engagement. Reclassification from Independent Contractor to Employee Unless reclassification occurs very early in the work relationship, employers should be very careful when converting a contractor into an employee. The immediate impact will be less take-home pay since employee wages are subject to payroll taxes and withholding. Employers should be prepared to discuss the benefits of employee status with the worker (e.g., eligibility for employee benefits and employer-paid share of payroll taxes) and consider im-

mediate payment for past overtime work. Obviously, reclassification may cause a worker to believe that she should have been paid as an employee from the start. Consult with legal counsel before, not after, you broach the subject with a contractor. Reclassification from Employee to Independent Contractor Occasionally clients ask how to rehire a departing employee as an independent contractor working remotely or on a parttime basis. Red flag warning! This scenario generally violates Factors B and C except in two limited situations. First, if the worker has joined a consulting firm, he can continue to perform work for you as the employee of the consulting firm. (The consulting firm is the independent contractor in that circumstance.) The second exception is when the worker immediately starts an independent business

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and agrees to do limited transition work for her former firm on a contract basis. For example, if a departing attorney starts her own firm (with multiple clients from the start), her old firm might engage her briefly on a contract basis. Legislative Activity (Assembly Bill 5) The California Legislature appears ready to pass Assembly Bill 5, codifying the Dynamex BC test with exceptions for particular categories of workers. While most of the media coverage has focused on the lobbying efforts of the so-called gig economy companies, the July 11th version of AB 5 would exempt occupations such as physicians, licensed insurance agents, registered securities brokersdealers, direct salespersons, hair stylists, barbers, licensed construction subcontracts, and licensed real estate brokers provided they meet certain 21

specified requirements. Note the absence of Uber and Lyft drivers! What about lawyers and other licensed professionals? AB 5 currently exempts licensed professionals (including lawyers, dentists, architects, engineers, podiatrists and accountants) from the ABC test. Licensed professionals working as independent contractors will be required to satisfy specified requirements including a business license and the right to use their own employees to perform the contracted work.

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Whether and how AB 5 arrives on Governor Newsomâ&#x20AC;&#x2122;s desk for signature remains to be seen. Knowing how and when to classify workers as independent contractors versus employees is an important business decision with significant legal ramifications. California employers should use the ABC test to determine whether current contractors or future hires are correctly classified. View this article online at Marinbar.org. Lisa Maslow is a labor and employment law attorney and independent workplace investigator based in Mill Valley. She specializes in helping employers and employees avoid needless litigation through compliance or prompt resolution of wage and hour, discrimination and other employment law disputes. Lisa is a member of the MCBA Diversity Section, the Association of Latino Marin Attorneys (ALMA), and Marin County Women Lawyers. She may be contacted at the Law Offices of Lisa Spann Maslow, P.C., 415/380-9470. EMAIL | WEBSITE

Interested in sponsorship? Contact Mee Mee Wong at mwong@marinbar.org

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THEGIG CIVIL ECONOMY RIGHTS ACT KEEGAN DRESOW

Legal Challenges to the On-Demand Industry This article was published in the May 2016 issue of the Marin Lawyer and is reprinted here in its original form.

in exchange for $100 million and other concessions.

Perhaps Judge Vince Chhabria (Cotter) best illustrated the issues facing the courts: “The test the California courts have developed over the 20th Century for classifying workers isn’t very helpful in addressing this 21st

ontractor/employee classification lawsuits against Uber and Lyft have grabbed headlines in recent months, and for good reason. The outcome of those lawsuits will shape the on-demand industry for years to come. This issue, however, is not the only one that on-demand companies will face. As the on-demand industry continues to expand into other subsectors, less publicized companies are battling a diverse set of legal and non-legal issues in order to stay viable. Understanding the employee/contractor classification issue is vital because these companies hope to avoid classifying their drivers as employees, which are more expensive to the companies than are contractors. Lyft recently agreed to pay out more than $12 million as part of a settlement in which they also agreed to give their drivers additional benefits, but not to classify them as employees (Cotter v Lyft, Inc.). Cotter will not serve as a formal legal precedent, but may be a harbinger for things to come. And just last week, Uber reached a settlement in which its drivers will remain classified as contractors

Century problem... absent legislative intervention, California’s outmoded test for classifying workers will apply in cases like this. And because the test provides nothing remotely close to a clear answer, it will often be for juries to decide.” With the laws outdated, new law will be formed in courtroom battles. The on-demand restaurant delivery service sector is a less publicized subsector of the ondemand industry that has become particularly crowded in recent years, with lawsuits beginning to materialize. In addi-

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tion to the aforementioned contractor/employee classification issue, restaurant delivery startups face issues ranging from intellectual property challenges to food safety compliance. In-N-Out Burgers vs. Doordash (filed 11/06/2015) exemplifies these issues. In the lawsuit, In-N-Out alleges trademark infringement on the basis that Doordash advertises that it delivers from In-NOut while using imitation and registered In-N-Out marks in promotional materials. This, In-N-Out argues, is likely to cause confusion that Doordash is affiliated with In-N-Out, which it is not. In-N-Out never authorized Doordash to deliver its food, but Doordash continued to do so. In-N-Out argues that it has built decades of positive reputation and goodwill that this deception is likely to damage. A key reason why this damage will occur is, according to the complaint, because Doordash does not comply with food code requirements. The lawsuit is ongoing. The failure of Homejoy – an ondemand house cleaning service – further exemplifies the difficulties facing the on-demand industry. Homejoy was founded in 2010, raised $38 million by 23

2014, expanded into the United Kingdom in 2014…and closed its doors in 2015. While Homejoy was able to tap into the massive home services market, it (arguably) struggled to provide consistent, quality work from what were often young, inexperienced workers. Homejoy faced dual challenges in this regard as compared to the on-demand ride share industry: (1) unlike the ride share industry, in which a high percentage of the population are already “expert” drivers who need little or no training, a low percentage of the population is experienced in high-quality house cleaning; (2) expectations are higher in the home services market – an Uber or Lyft passenger expects only a reasonably safe and comfortable ride, whereas a homeowner wants nothing less than professional

caliber cleaning of their home. Homejoy faced the massive challenge of providing quality cleaning without hiring experienced employees while keeping training costs low enough to be able to provide the promised discounts and remain profitable. When considering those challenges, the promised efficiency and profitability of on-demand house cleaning became harder to attain. Adding the prospect of lawsuits forcing Homejoy to reclassify its contractors as employees (in addition to competition from rival Handy, which has survived and is currently fighting the employee/ contractor battle), the chances for future profitability became even slimmer, and the company shut down.

try. As Doordash illustrates, however, the challenges to various subsectors of the ondemand industry will be unique and will crossover into many other areas of law. Cautionary tales such as Homejoy show us that each subsector’s unique challenges will only add to the pressures exerted by contractor/ employee classification issues and other legal challenges. This article was originally published in the May 2016 issue of the Marin Lawyer. The republication of this article is in its original form and does not reflect changes in the law since the original publication date. Keegin Dresow is an attorney at the Social Security Administration.

The contractor/employee classification lawsuits will continue to shape the on-demand indus-

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NONPROFIT METADATA PROFILE MARK G. GRIFFIN, ESQ.

Using Metadata in Depositions

hile attorneys have many tools to assist in taking and defending depositions, often underutilized is a file’s metadata. Many attorneys are unfamiliar with metadata, and therefore unable to take advantage of an exhibit’s metadata during offensive and defensive depositions. To best represent a client’s interests, attorneys need to understand metadata and how it may be prepared and used in depositions. The Federal Rules of Civil Procedure (“FRCP”) and California Code of Civil Procedure (“CCP”) entitle parties to the metadata of produced files. FRCP Rule 26 entitles a party to an inspection of metadata: “[A] party must, without awaiting a discovery request, provide to other parties… a copy—or a description by category and location—all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.”I Under CCP section 2031.280(a), any “documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual

course of business, or be organized and labeled to correspond with the categories in the demand.”ii As applied to metadata, CCP section 2031.280(d)(1) states that unless the parties otherwise agree, metadata should be produced in the form which it is ordinarily maintained

or in a form that is reasonably usable.iii In practice, documents are often produced as tiff or jpeg images with an accompanying load file that lists each document or file’s corresponding metadata. Metadata is data that gives information about other data. Metadata is “information stored within a document that is not evident by just looking at the file. It is an electronic ‘fingerprint’ that automatically adds identifying characteristics, such as the creator or author of the file, the name of individuals who have accessed or edited

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the file, the location from which the file was accessed, and the amount of time spent editing the file.”iv Each computer or digitally generated file contains self-generating metadata unique to the file. For example, within typical computer applications, such as Microsoft Word, Excel, and PowerPoint, each time a user creates, opens or saves a file using these applications, hidden metadata is created and stored within the document—data that your client may not want the adverse party to recover.v Attorneys should be most familiar with two types of metadata: structural and descriptive metadata. Structural metadata is data that indicates how a digital asset is organized. Structural metadata, “indicates whether a particular asset is part of a single collection or multiple collections and facilitates the navigation of information in an electronic source.”vi Think of page numbers, sections, chapters, or table of contents in a book as examples of structural metadata. Each of these provides details of a part of the book that would help a reader identify specific parts of the book—a chapter, a page or a section of the book. Descriptive metadata can be 25

very helpful to attorneys. With the abundance of information contained in each file’s structural and descriptive metadata, attorneys are currently using metadata to help streamline civil litigation and investigative document reviews through discovery review platforms, such as Relativity and Concordance. Metadata plays an integral role in these review platforms. Without metadata, documents cannot easily be sorted by sender, author, etc., and Technology-AssistedReview would not provide the enhanced searching, processing, and production capabilities that electronic discovery practitioners have grown to love.viii While attorneys have long understood the value added by using metadata to assist on document reviews, little has been done to advocate for the usage of metadata throughout additional stages of litigation, specifically for use in depositions.

Within civil litigation, a deposition is a witness’s sworn, out-ofcourt testimony. FRCP Rule 30 (a)(1) entitles a party to depose any party to a matter or a nonparty.ix Within California, CCP section 2025.010 grants the parties the right to obtain discovery by taking the oral deposition of any person, including any party to the matter.x Once a deposition has been noticed, there are two main types: an offensive deposition and a defensive deposition. In an offensive deposition, an attorney deposes a person or party, while in a defensive deposition requires

an attorney to represent the party being deposed. Depending on the type of deposition, an attorney will have different goals. During an offensive deposition, an attorney may seek to establish key facts or witness credibility, lock in the testimony of a deponent, preserve the testimony of a witness that may be unavailable at trial, or lay the groundwork for impeachment. During a defensive deposition, an attorney may seek to establish on the record objections, attack the credibility of evidence, or lay the groundwork to question critical facts. Depending on the type of deposition, exhibit metadata can help advance an attorney’s goals and objectives. Before exhibit metadata may be used in a deposition, it must be appropriately prepared. To prepare an exhibit’s metadata, an attorney should coordinate with either their litigation support department, case team, or outside vendor to prepare exhibits with corresponding metadata to immediately follow the exhibit for easy access and introduction during a review. Often, successful preparation of an exhibit’s metadata will entail printing and placing the exhibit’s metadata behind an exhibit within the deposition binder for attorney review and use. Once reviewed, attorneys should then integrate the exhibit’s relevant metadata fields within the deposition outline for introduction during the deposition. For anticipated contentious deposition topics, an attorney may have the descriptive

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metadata listed to eliminate or minimize elusive deponent responses. Depending on an attorney’s specific deposition goal, an attorney should weave the usage of metadata into their questioning. The following are different objective-driven examples of approaches utilizing an exhibit’s metadata during a deposition:xi Example 1: If the goal is to utilize the metadata to establish a record for who may introduce evidence at trial, weave the metadata into the examination. Q: According to the presentation's metadata, you are the document’s custodian. Now, do you recognize this document? Example 2: Using evidence’s metadata to establish timelines during a deposition. Q: The produced document has a last modified date in the metadata of March 8, 2019. Do you agree? Example 3: Using evidence’s metadata to attack the credibility of presented evidence in a deposition. Q: You understand what metadata is, correct? A: Yes. Q: How metadata tells you who was the last person to edit a document, who drafted a document, when the document was last saved, and so on? A: Yes. 26

Q: If the metadata for Exhibit 721 read that you were the author of the document, would you have any reason to question that? A: No. Example 4: Using metadata as a concept to attack the credibility of presented evidence in a deposition. Q: And you agree that a file’s metadata may be rapidly updated, right? A: Right. Q: And that includes the metadata for the last accessed field, correct? A: Correct. Q: Last accessed field can be sensitive, correct? A: It is uh – it may be sensitive. Q: And would you agree that the system-automated processes may update last access times? A: Yes.

Q: Such as a memory clean-up program? A: Correct. As you can see, using evidence’s metadata can only strengthen the presentation of a client’s position during a deposition. To best represent a client’s interests, attorneys must grasp how to utilize metadata and how it may be prepared and used in depositions. If attorneys and case teams are consistently evaluating how metadata may be utilized to advance your client’s position, it will become clear how to use exhibit metadata within depositions properly.

demlplaw.com/firm-blog/business-law-andlitigation/practice-alert-part-ii-what-metadatais-and-why-you-should-care-about-it/, (as of August 20, 2019). ix Fed. Rules Civ.Proc., rule 30(a)(1), 28 U.S.C. x Cal. Code Civ. Proc., § 2025.010 xi Examples are based on actual depositions but have been altered to protect the confidentiality of the testimony.

View this article online at Marinbar.org. Mark G. Griffin is a Staff Attorney at Munger, Tolles & Olson LLP in its San Francisco office. His practice focuses primarily on commercial litigation. Prior to practicing law, Mark spent years at international consulting firms providing eDiscovery support to law firms and corporate clients. The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its respective affiliates. This article is for general information purposes and is not intended to be, and should not be taken, as legal advice. EMAIL

Fed. Rules Civ.Proc., rule 26(a)(1)(A)(ii), 28 U.S.C. ii Cal. Code Civ. Proc., § 2031.280, subd. (a) iii Cal. Code Civ. Proc., § 2031.280, subd. (d)(1) iv Harvard Law School IT Services, What Is Metadata? https://hls.harvard.edu/dept/its/ what-is-metadata/ (as of August 20, 2019). v Id. vi MerlinOne, What are the Different Types of Metadata (and How are They Used)? https:// merlinone.com/types-of-metadata/ (as of August 20, 2019). vii Id. viii Blaine, Matthew K., Practice Alert Part II – What Metadata Is and Why You Should Care About It, Davison, Eastman, Muñoz, Lederman & Paone Practice Alert, 5 May 2016, available at https://

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THE FAMILY CIVIL RIGHTS LEAVEACT CARRIE ANN COLTON

Paid Family Leave Has Begun in-laws are not included as care recipients.

This article was published in the August 2004 issue of the Marin Lawyer and is reprinted here in its original form.

•

ou have probably heard by now that California is the first state to offer wage benefits for employees who take time off to care for a new child or a family member suffering a serious health condition. Essentially, Paid Family Leave (PFL) is a family temporary disability insurance program within the State Disability Insurance program which provides partial reimbursement of pay for up to six weeks during any twelve month period. Prior to enactment, employees of businesses with fifty or more employees were guaranteed twelve weeks of unpaid leave (Collective Bargaining Agreements may provide for additional guarantees). This new law guarantees that six of those weeks would be partially paid. PFL applies to all employees who pay into State Disability Insurance (SDI), regardless of the number of employees. Following are some basic PFL facts, though you should consult with a specialist for a thorough analysis of your situation. •

“Family member” is defined by the PFL as a child, spouse, domestic partner or parent. Mother-in-laws and father

The PFL does not authorize employers to require the use of earned but unused sick leave in lieu of vacation. Similar to the SDI program, paid sick leave wages are treated as wages thereby reducing the PFL benefits by the amount of sick leave wages received, possibly rendering the employee ineligible for PFL benefits depending upon the amount of sick leave wages received and the weekly benefit amount. •

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The program is 100% employee-funded. Payments by employees were added to withholdings on January 1, 2004 (.0008 increase for 2004 and 2005).

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The benefit available is up to 55% of wages, to a maximum of $728.00 per week in 2004. This amount will increase each year according to increases in the state average weekly wage.

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There is a one-week waiting period before an employee may apply (similar to Unemployment Insurance).

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Employers are allowed to require an employee to use a maximum of two weeks vacation prior to receiving PFL; one week would cover the waiting period.

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Unless a business has fifty or more employees, there is no requirement to hold a job for a worker who goes on paid family leave, though employers should consult with an attorney regarding any possible accommodation requirement if the employee is ill and/or disabled.

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The PFL does not require a minimum number of hours worked or days employed to be eligible.

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The PFL did not increase the maximum wage caps for SDI. The maximum taxable wage in 2004 is $68,829 and in 2005 will be $79,418. Wages in excess of these caps are exempt from PFL insurance and SDI withholding. 28

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An employee is not eligible to receive PFL benefits if they are already receiving SDI, Unemployment Compensation Insurance or Workers’ Compensation. Self-employed individuals are covered by the PFL program if they participate in the SDI Elective Coverage Program. Part-time employees are covered if they are otherwise eligible and suffer a wage loss.

In the future, look for SB 727, the PFL clean-up bill, for changes regarding such issues as elimination of the waiting period for women who have already served a waiting period before Disability Insurance benefits for pregnancy who elect to use PFL for bonding time. Employers must also be careful of the new Bounty Hunter Law and remember to hand out PFL informational brochures to new employees and post the PFL information sheet as required by law. You can find these documents and other helpful information at www.edd.ca.gov. Speaking of the Bounty Hunter Law… AMENDMENT TO THE BOUNTY HUNTER LAW? In just seven months, the “Bounty Hunter Law” (L.C. 2698 et seq.) has spawned numerous lawsuits in California for minor, technical violations of the Labor Code. For instance, employers

required by the Labor Code to submit a copy of their employment application to the Department of Labor Standards Enforcement. Or, employers were required to post a Paid Family Notice beginning July 1, 2004. Failure to do so may result in an employee filing a lawsuit that seeks $100.00 for each violation and $200.00 for each pay period thereafter if the infraction is not corrected. This penalty is assessed per employee and workers are allowed to sue on behalf of every aggrieved employee. The further outrage is that successful plaintiffs are also awarded attorney’s fees and costs.

by midsummer. You can track the progress at leginfo.legislature.ca.gov. This article was originally published in the August 2004 issue of the Marin Lawyer. The republication of this article is in its original form and does not reflect changes in the law since the original publication date. Carrie Ann Colton is with Colton Law. Her forte is Employment Law. EMAIL | WEBSITE

It appears a fix is in the works! Senate Bill 1809, created by State Senator Joseph Dunn, DGarden Grove, will remove posting and notice violations from inclusion in L.C. 2698 et seq. A worker intending to sue would first be required to contact the state Labor and Workforce Development Agency. The agency will be able to enforce compliance. More importantly, the agency can prevent claimants and their attorneys from stalling while allowing the penalties to grow, and subsequently hitting their employer with inflated claims. The Bill cleared the Senate Committee on Labor and Industrial Relations on a 7-1 vote. Though subsequently modified to require the initial agency claim, it is expected to receive bi -partisan support in the Senate and Assembly and be presented to Governor Schwarzenegger

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LABORDIVERSITY LAW ESSENTIALS SARAH N. LÉGER

Five Things Every Small Business Owner Should Know About California Labor Law This article was published in the August 2010 issue of the Marin Lawyer and is reprinted here in its original form.

eing a lawyer in Marin means many things: you have the menu at Joe’s memorized; you have found yourself on more than one occasion explaining to a newcomer why the second floor of the courthouse is labeled C and why the third floor is labeled 1; and you have been involved in at least one lawsuit over a tree. You are probably also a solo practitioner or a partner in a small firm, which means that you are a small business owner. Most small business owners have at least two traits in common: they are hard working, busy people, and, they try to make the right decisions for themselves and their employees. Unfortunately, the area of employment law can be a minefield to navigate alone, and many small businesses without the resources for a dedicated HR department are particularly prone to making costly mistakes in employment matters. Here are five of the most common labor law issues that arise

in small businesses: 1. Salary ≠ Exempt California law presumes that every employee is entitled to overtime pay, unless the employee is “exempt.” Whether an

employee is exempt from federal and state overtime laws is an area of confusion for many employers. A very common misperception is that paying an employee a salary, as opposed to an hourly wage, is sufficient to excuse the obligation to pay overtime. Not so. The salary basis test (which requires that exempt employees are paid at least two times the State minimum wage) is only one element for consideration. The employee must also qualify for one of the executive, administrative, or

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professional exemptions, and customarily and regularly exercise discretion and independent judgment in performing his or her duties. 2. Meal and Rest Breaks: Write Them Down You probably already know that your employees are legally required to take a paid, 10-minute rest period for every four hours of work, and an un-paid, 30-minute meal period if the day’s work will not be completed in six hours. But what you may not know is that if these breaks are not enforced daily and recorded on the employee’s time sheet or company records, it will be extremely difficult to prove your employee ever took those breaks, particularly if he or she brings a claim with the Labor Commissioner, where the burden falls on the employer to refute the employee’s claims. And if you are unable to do so, you may face stiff fines: the statutory penalty for failure to provide a rest or meal break is one hour of pay for every day the break was not provided for three years, plus penalties. 30

3. Make-Up Time Means Overtime Unless…

determining contractor status. In California, courts look at a variety of factors to make the deterIt’s a common scenario: your re- mination, but the most important ceptionist has a doctor’s appoint- is the contractor’s right to conment at 3pm on Tuesday and trol the manner and means of his wants to make up two hours of or her work. The bottom line: inlost time on Wednesday. While vestigate this matter thoroughly this may sound reasonable, it before leaving anyone off the necessarily means the employee payroll. will be working ten hours in one day and is therefore due over5. Vacation “Use It Or Lose It” time for the two hours worked in Policies are Unenforceable excess of eight hours. The good news is that the law permits such Vacation pay is a contract you make-up time without payment make with your employees. So, if of overtime if the following fac- your associate accrues two tors are met: (1) The hours must weeks vacation each year, but be made up within the same hasn’t taken a day off in ten workweek, (2) the employee may years, you legally owe her twennot work more than 11 hours in a ty weeks of vacation pay. To day or 40 in the week, and (3) the avoid a large payout, many busiemployee must request the ness owners employ “use it or make-up time in writing. lose it” policies. The problem is, these policies are unenforceable. 4. Independent Contractor v. Employee: A “Contract” Isn’t The better (and legal) practice is Enough to either pay out all accrued, unused vacation at the end of each One of the biggest mistakes em- year or place a cap on accrual of ployers make is trying to cut vacation time. California courts costs by making everyone who have held caps at one and oneworks for them an independent half and two times the annual contractor. This may work in accrual rate to be enforceable. If some industries, but it is a grey you do use a cap, remember that area for law firms. Chances are you must give employees who that the person answering your have accrued beyond the prophone is your employee (unless posed cap ample time (nine he’s working out of a call center months to one year) to use their in Omaha). And this is true even accrued vacation before institutif your receptionist really, really ing the cap. wants to be an independent contractor or has signed an By the way, if your associate has“independent contractor agree- n’t taken a day off in ten years, ment.” it’s time to lighten up on that billable hour requirement. This is What makes this issue even Marin, after all. more dangerous is that the law provides no bright-line test for THE MARIN LAWYER An Official Publication of the Marin County Bar Association

This article was originally published in the August 2010 issue of the Marin Lawyer. The republication of this article is in its original form and does not reflect changes in the law since the original publication date. Sarah Léger is an attorney with Ragghianti Freitas, LLP. Sarah’s civil litigation practice focuses primarily on commercial litigation and management-side labor and employment law, although she has experience as lead counsel in nearly all areas of civil litigation, and has tried many different types of cases to judgment. Sarah is a member of the Board of Directors of the Marin County Bar Association. She is a past president of the Richard M. Sangster American Inn of Court, former Vice-President and director of Legal Aid of Marin, and former Chair of the Marin County Bar Association Labor and Employment Law Section. EMAIL | WEBSITE

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SECTION DIRECTOR CHAIR SPOTLIGHT PROFILE MARIE BARNES

John Cuerva

he Marin Lawyer recently sat down with John Cuerva, the new co-chair for MCBA’s family law section. He plans to continue the section’s tradition of providing informative lectures and helping to foster professional relationships among members. What is your practice area? Family law and wills and trusts. Do you have a particular emphasis? My practice focuses primarily on family law: dissolutions, custody, support. Although I prefer to negotiate and settle disputes because it saves my clients time and money, I enjoy the challenge of going to trial. If a parent needs a strong advocate, then he or she should call me. My wills and trusts practice focuses on estate plans for middle class folks—people with a house, children, and retirement/ brokerage accounts. It is straightforward estate planning. I am also bilingual in Spanish and enjoy working with Latino clients. Why did you decide to become a lawyer? When I was a kid, I admired Abraham Lincoln, and he was a lawyer. So, there you go.

Why do you live in Marin? I am a graduate of Terra Linda High School. (Go Trojans!) I have friends and family in the County. What do you do when you're not practicing law? I like to hike and kayak. I also used to be a photojournalist and a wedding photographer, so I love photography; I still shoot film. If you could pursue any other career besides law, what would it be and why? Before I became an attorney, I was a public high school English teacher. I taught in Palo Alto, Rome, and Napa. If I left the law, I would probably go back to the classroom. I miss thinking about Shakespeare and poetry. Also, the most rewarding work I ever did was the two years I taught remedial reading to ninth graders. Many of my freshmen had never read an entire book until they took my class. Seeing them realize that they, too, were now readers was deeply satisfying. Why did you join MCBA? Marie Barnes made me. She's relentless; nice, but relentless. In all seriousness, I joined MCBA to have an opportunity to get to know the Marin Bar.

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Marin is a tight-knit community and I believe the Bar offers many opportunities to meet and establish relationships with other practitioners.

John Cuerva MCBA Family Law Section Co-Chair

If you had to pick a single highlight of your career, what would it be? Recently, I secured equal custody and visitation for a father of a five-year-old son, and I defeated the mother's move-away request. The mother had alienated their child from his father, falsely accused him of assault, and was trying to move the child out of state so that she could continue to restrict my client's relationship with his son. Upon being granted unsupervised visitation and joint custody, my client informed me that his life had changed fundamentally for the better.

Allingham & Cuerva LLP View this article online at Marinbar.org.

MISSED ALTERNATE MEALDEFENDERS, AND REST BREAKS INC. JENNIFER REISCH

Murphy v Kenneth Cole Productions: A Major Victory for Employees This article was published in the May 2007 issue of the Marin Lawyer and is reprinted here in its original form.

ver since its enactment in 2001, Labor Code § 226.7 has generated heated debate among employment practitioners about whether the “additional hour of pay” due to an employee who does not receive rest or meal periods to which she is entitled under the Labor Code and Industrial Welfare Commission Wage Orders is a wage or a penalty. Now, with the issuance of the California Supreme Court’s longawaited decision in Murphy v. Kenneth Cole Productions, Inc., Case No. S140308 (2007) __ Cal.4th __; 2007 WL 1111233 (Cal.), 12 Wage & Hour Cas.2d (BNA) 833 on April 16, 2007, future points and authorities regarding the issue can be boiled down to a single sentence and citation:

(7-0). In addition to its section 226.7 holding, the Court further held that employees have the right to bring additional, but related, wage claims during de novo trials after an employer appeals from the Labor Commissioner’s decision in the employee’s favor.

•

Employers who fail to pay the additional hour[s] of pay due to an employee denied meal or rest periods by the time of separation can be held liable for waiting time penalties under Labor Code § 203.

•

Employers who violate the requirement to provide adequate meal and rest periods – especially on a workforcewide basis – face potentially sizeable punitive damage awards on top of the wages due for the break violations.

•

Employers could face additional civil penalties under the Private Attorney Generals Act, Labor Code § 2698, et seq. (the “PAGA”) arising from their failure to pay employees additional compensation for denied meal and rest periods.

•

The characterization of the additional hour of pay as a wage invokes the potential

The implications of Murphy go further than the short holding might imply, however. Some of the key consequences of the decision include the following: •

We hold that section 226.7’s plain language, the administrative and legislative history, and the compensatory purpose of the remedy compel the conclusion that the “additional hour of pay” is a premium wage, not a penalty. The opinion, written by Justice Carlos Moreno, was unanimous

and rest period premium cases can recover their attorney’s fees and costs as well as pre-judgment interest on the additional pay owed under Labor Code §§ 218.5 and 218.6.

•

Because the additional hour of pay under Labor Code § 226.7 is a wage, and not a penalty, employees can avail themselves not only of the three-year statute of limitation per Code of Civil Procedure § 338, they can seek restitution for any “additional hour[s] of pay” that are withheld for up to four years prior to the date a complaint is filed. (See Cortez v. Purolator Air Filtration Prods. Co. (2000) 23 Cal.4th 163 [holding that unpaid wages can be recovered as restitution in a claim brought pursuant to Bus. & Profs. Code § 17200, et seq., a.k.a. the “Unfair Competition Law”].) Workers who prevail in meal

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Proposition 64 issues in Californians for Disability Rights v. Mervyn’s, LLC, 39 Cal.4th 223 (2006) and Branick v. Downey Sav. & Loan Assn., 39 Cal.4th 235 (2006), the trend in this decade has been a Supreme Court that strongly favors consumers and employees in these types of cases. Thus, California employers would be well advised to ensure that they have policies and practices in place that ensure employees are able to exercise their statutory rights. applicability of Labor Code § 206.5, which provides:

part of the holding, the Court’s opinion strongly suggested that a trial court's refusal to permit litigation of related or additional wage claims would be an abuse of discretion: “[F]orcing Murphy to file an original civil action to raise the additional claims would appear inconsistent with the legislative purpose under Labor Code section 98 of providing an expeditious resolution of wage claims.”

No employer shall require the execution of any release of any claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of such wages has been made. Any release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee and the violation of The reasoning behind the the provisions of this section Court’s decision was grounded in shall be a misdemeanor. its interpretation of the statutory language itself as well as its Since the additional hour of pay affirmation of the strong public owed under section 226.7 is a policy in California holding that wage, an employer who seeks to “statutes regulating conditions obtain a waiver and release of of employment are to be liberally liability from an employee with- construed with an eye to proout actually paying the meal or tecting employees.” rest break pay required could face liability for a misdemeanor Some employer-side attorneys and a finding that the release or have expressed shock at the outwaiver is invalid. come of the Murphy case. However, with the notable exception • With respect to the second of a split decision in the two key THE MARIN LAWYER An Official Publication of the Marin County Bar Association

This article was originally published in the May 2007 issue of the Marin Lawyer. The republication of this article is in its original form and does not reflect changes in the law since the original publication date. Jennifer A. Reisch is the Legal Director for Equal Rights Advocates. Jennifer Reisch has devoted her legal career to advocating for underrepresented individuals and communities. Formerly, she was an attorney with Talamantes/Villegas/Carrera, LLP , (TVC). TVC, together with California Rural Legal Assistance, represented the plaintiff in a related action (Banda v. Bagdasarian, Inc.), who filed an amicus brief on behalf of the plaintiff in Murphy v. Kenneth Cole Productions. WEBSITE

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