Sexual harassment training deadline extended to January 1, 2021

Posted by on Oct 1, 2019 in Newsflash | 0 comments

A few months back, we reminded our employer clients that, for most employers, January 1, 2020 was a hard deadline to conduct sexual harassment training for all of their employees. (See article here). At the close of this legislative season, Governor Newsom signed into law a bill delaying that deadline to January 1, 2021, for employers who have between 5 and 50 employees (meaning those employers who were not already subject to the requirement). This means any employer who was previously required to complete sexual harassment training for its employees by the end of this calendar year now has one extra year to meet this requirement. Any trainings already completed in 2019 will satisfy the requirement for two years. The Department of Fair Employment and Housing (DFEH) is required to provide online training courses for employers which, if used by employers to conduct sexual harassment training for their employees, will satisfy this law. DFEH initially anticipated the online trainings being available by the end of 2019, however, these online trainings are not yet available. Instead, DFEH has offered a sample sexual harassment and abusive conduct prevention training, accessible here. Currently, employers with 50 or more employees must conduct this training for new supervisors within six months of their hire date. After the January 1, 2021 deadline passes, employers with more than 5 employees will be required to conduct this training with all new employees, supervisory and non-supervisory, within six months of their hire date. The training for new employees may coincide with training for all employees, or it may be conducted separately. If you believe you are an employer who is now required to conduct sexual harassment training, or if you are not sure whether you are such an employer, contact Navigato & Battin for...

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AB5 Broadens and Creates Carve Outs to Dynamex

Posted by on Oct 1, 2019 in Newsflash | 0 comments

For companies that rely on independent contractors to make up or supplement their workforce, January 1, 2020, will no doubt present a challenge. In previous newsletters, we have discussed California Assembly Bill 5 (“AB5”) and the California Supreme Court decision in Dynamex Operations West v. Superior Court, No. S222732 (“Dynamex”) which AB5 sought to codify. (See here and here). In short, AB5 will codify the Dynamex test for determining which workers are employees and which are independent contractors. It is expected that many workers who were or are classified as independent contractors will now need to be reclassified as employees – triggering the newly classified employees’ rights to wage and labor law protections, and costing employers who will now owe higher taxes (and likely higher wages) following the reclassification. AB5 will become effective on January 1, 2020, giving employers about three months to ensure they are classifying their workers correctly. Last year, the California Supreme Court decided in Dynamex that a new “ABC” test was the appropriate test to determine whether a worker is an independent contractor or an employee. The test is as follows: to prove a worker is an independent contractor, the employer must show: (A) the employer has limited control over the worker, (B) the worker is not performing tasks which are within the employer’s normal course of business, and (C) the worker has his or her own business under which he or she completes those tasks. Although prongs A and C likely do not pose significant hurdles for employers to clear, prong B certainly does. It is unclear exactly how narrowly employers will be allowed to define their normal course of business in arguing certain workers are not performing tasks within that course of business. (Think of Uber classifying itself as a “technology company” in an attempt to show its drivers are not performing tasks within the normal course of business of such a company.) AB5, in certain respects, both broadens and tightens the effect of the Dynamex decision. Originally, the Dynamex decision only applied to classification of workers in relation to Wage Orders – meaning not all labor laws would be scrutinized under the ABC test. AB5 changes that. Now, workers must be classified correctly under the ABC test for all labor laws, including unemployment insurance, worker’s compensation, and wage and hour laws. This expansion is sure to be felt by employers who are being sued for a variety of wage and labor violations, employers challenging unemployment decisions, and employers facing EDD audits. On the other hand, AB5 also includes a number of carve-outs for certain industries. Where previously there were no exceptions to workers who would be subject to the Dynamex decision, AB5 provides carve-outs for the insurance industry, physicians, surgeons, dentists, podiatrists, psychologists, and veterinarians operating under a properly issued license; properly licensed lawyers, architects, engineers, private investigators, and accountants; securities broker-dealers, investment advisers, and their agents registered with either the relevant federal or state agency; and certain commercial fishermen. The above will be governed by the existing Borello test. Real estate licensees and repossession agency workers will be governed by a combination of the Business and Professions Code and the Borello test. If your company uses independent contractors and you have not scrutinized that practice under the Dynamex ABC test, the...

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New Rule Mandating Female Director Quotas Challenged

Posted by on Sep 3, 2019 in Newsflash | 0 comments

We discussed a new California law which requires certain California corporations to include a certain number of women on their boards of directors here. In short, this rule requires those publicly traded corporations which are based in California to have at least one female director on their boards by the end of 2019. In the following years, additional females will be required for some corporations based on the size of their boards. As we also discussed in our previous article that an equal protection challenge to this new law seemed inevitable. On August 6, 2019, this inevitable challenge was filed in the County of Los Angeles. The lawsuit challenges the female quota rule on the basis that it violates the California constitutional provision providing for equal protection. Under this provision, all persons must be treated equally, regardless of any classifications (such as gender). The lawsuit argues that by calling for a mandatory quota of women on the corporations’ boards, the genders are not being treated equally. Opponents of this requirement argued during the previous legislative session that potential board members would be assessed and chosen not on their merits, but instead on the basis of their gender. This, according to the lawsuit, is the type of treatment the equal protection clause seeks to protect against. The complaint further states that because the rule classifies persons on the basis of their gender, it must be subject to strict scrutiny – the highest level of review in these types of challenges. In order to defeat this lawsuit and continue implementing the new rule, California will need to show that the rule is justified by a compelling government interest, and that the rule’s use of gender classifications is narrowly tailored to serve that compelling interest. When this rule was signed into law almost one year ago, then-Governor Brown stated “serious legal concerns have been raised” regarding the rule, and the potential that it was not compliant with the California Constitution. These legal concerns are now being brought to light as the rule is challenged in a court of law. Because this rule provides looming deadlines for those corporations subject to the rule, this case will likely be watched by...

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California Employers Have New Duty to Protect Employees from Wildfire Smoke

Posted by on Sep 3, 2019 in Newsflash | 0 comments

As California continues through this wildfire season, employers should be aware of a new rule imposed by the California Occupational Safety and Health Standards Board (Cal-OSHA). Beginning on July 29, 2019, employers generally must monitor the Air Quality Index (AQI) at the employers’ worksites, and ensure that certain steps are taken when the AQI indicates certain levels of smoke in the air. Exempted from this new rule are those employers whose employees work indoors where there is an air filtration system, firefighters who are engaged in firefighting, and employers whose employees are only exposed to smoke for less than one hour. Industries which should be especially aware of this new rule to ensure they are compliant are construction, agriculture, landscaping, maintenance, and other primarily outdoor industries. To be compliant, employers who are not exempt must monitor the AQI for fine particulate matter (PM 2.5). If the AQI for PM 2.5 is more than 150, and the employer has a reasonable expectation that its employees will be exposed to smoke from a wildfire, the employer must take steps to reduce exposure. This is possible by relocating the employees to an indoor facility or to another location altogether where air quality is improved. In some cases, employers must provide respirators for its employees. For example, if the AQI for PM 2.5 is greater than 150, but less than 500, employers must provide respirators to its employees and encourage their use. The employees will not be required to use the respirators at this level. If the AQI for PM 2.5 exceeds 500, however, employees not only will be required to use the respirators, employers must also conduct fit testing and medical evaluations of the employees. Aside from these direct smoke-related duties of employers, employers must also provide certain trainings to its employees with relation to wildfire smoke. Primarily, employers must create a communication system whereby employees can inform employers the air quality at a location has worsened and precautions should be taken. Employers also must provide training to their employees on this new rule itself, thus making employees aware of the steps to be taken when the air quality declines to certain standards. As the 2019 fire season continues, employers should be careful to observe this new Cal-OSHA rule both to keep their employees healthy and protected from smoke, and to avoid any smoke-related litigation down the road. If you have any questions about this new rule, contact the attorneys at Navigato &...

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Navigato & Battin Partner Appointed USD Law Adjunct Professor

Posted by on Aug 1, 2019 in Newsflash | 0 comments

Navigato & Battin, LLP is pleased to announce that partner Michael Battin has been appointed as an Adjunct Professor at the University of San Diego School of Law.  Mr. Battin will be teaching in the Experiential Advocacy Practicum in Fall, 2019.  This unique course – a requirement for all first year law students at USD — entails a combination of large lectures and small-section classes. In the small sections, which Mr. Battin will be teaching, the students will get an opportunity to practice the litigation skills they are being taught.  These critical litigation skills will include: conducting a client interview, preparing and conducting (or defending) a deposition, and preparing and conducting a closing argument. “I am excited to bring what I’ve learned over the years – sometimes the hard way – to a new generation of lawyers.” Mr. Battin noted.  “I think the EAP course, with its emphasis on practical skills and active student participation, is an excellent introduction to litigation and a great bridge from the theoretical to the actual practice of law.”  Mr. Battin has also taught Secured Transactions at California Western School of Law and, previously, taught several courses in the Paralegal Program at University of California, San Diego.  Mr. Battin looks forward to continuing his mentorship of law students and younger lawyers for many years to...

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Navigato & Battin Hosts Client Appreciation Event

Posted by on Aug 1, 2019 in Newsflash | 0 comments

Navigato & Battin thanks its clients and friends who attended Opening Day at the Del Mar Thoroughbred Club on July 17, 2019. Between mingling with old friends and new, enjoying the food, and wagering on the races, fun was had by all. “Every year, we get to show our gratitude to our clients by putting on this event at a beloved San Diego tradition. This event also lets us have face-to-face time with our clients and interact outside of the projects we’re working on for them,” says partner Dan Navigato of the day. For over 20 years, Navigato & Battin has hosted its client appreciation event at Opening Day. We enjoyed catching up, reminiscing, and showing our appreciation to each and every client who has put their trust in us for over two decades. Whether you were able to attend this year or not, we look forward to seeing you there in...

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Mid-2019 Check-In: Have you completed sexual harassment training?

Posted by on Jul 1, 2019 in Newsflash | 0 comments

California employers with 50 or more employees have been required to train and educate their supervisory employees on sexual harassment prevention since 2005. However, as we reported in the beginning of the year, this law is being expanded effective January 1, 2020. By the beginning of next year, every California employer with five or more employees must provide at least two hours of sexual harassment prevention training to all supervisory employees, and at least one hour to non-supervisory employees. This training must be provided every two years. These trainings can be completed as a group or individually, whichever may be more appropriate for the employer and employees. While the new law requires the Department of Fair Employment and Housing (DFEH) to provide online training courses which may be used to comply with this new law, DFEH does not anticipate these courses being widely available until later this year. In the meantime, DFEH has created a toolkit for employers to use, including a sample sexual harassment and abusive conduct prevention training manual. This toolkit can be found here by clicking on the links provided. A training must explain: The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964; The statutes and case law prohibiting and preventing sexual harassment; The types of conduct that can be sexual harassment; The remedies available for victims of sexual harassment; Strategies to prevent sexual harassment; Supervisors’ obligation to report harassment; Practical examples of harassment; The limited confidentiality of the complaint process; Resources for victims of sexual harassment, including to whom they should report it; How employers must correct harassing behavior; What to do if a supervisor is personally accused of harassment; The elements of an effective anti-harassment policy and how to use it; “Abusive conduct” under Government Code section 12950.1, subdivision (g)(2); and The concepts of harassment based on gender identity, gender expression, and sexual orientation, which shall include practical examples of harassment based on gender identity, gender expression, and sexual orientation. Until the online courses are available, the new law requires that in person or webinar trainings with a trainer must be utilized. Typically, these trainers will be attorneys with at least two years of experience whose practice includes employment law; human resource professionals or harassment prevention consultants with at least two years of practical experience; and professors in law schools, colleges, or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two years of experience teaching employment law. This training, whether it be one or two hours, may not occur during the employee’s personal time. This means the training must take place during work hours or some other time when the employee is compensated. DFEH has issued guidance stating that those employers who are not in compliance by the January 1, 2020 deadline may be reported to DFEH by their employees. DFEH will review these complaints in light of all the circumstances, including whether DFEH’s online training course is available. In the event DFEH finds an employer is indeed not in compliance, DFEH will work with the employer to become compliant. Employers should take care to ensure they are in compliance by the time January 1, 2020 rolls around. If you would like...

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Supreme Court Alters Trademark Standards in Favor of First Amendment

Posted by on Jul 1, 2019 in Newsflash | 0 comments

We previously published an article about the requirements for registering a trademark with the United States Patent and Trademark Office (USPTO) here. Our past article did not explore in any great detail the numerous reasons the USPTO might deny a trademark application. However, one basis the USPTO has historically relied on to deny an application is where the applied-for mark is deemed to “consist or comprise of immoral or scandalous matter.” On June 24, 2019, the Supreme Court of the United States (SCOTUS) issued a decision rendering the “immoral and scandalous” standard as a basis to reject a trademark unconstitutional. In Iancu v. Brunetti, Erik Brunetti wanted to register a trademark for his clothing line, “FUCT.” Brunetti argued the trademark was to be read as an acronym, “F-U-C-T,” standing for “Friends You Can’t Trust.” However, as noted by the majority opinion, “you might read it differently and, if so, you would hardly be alone.” The USPTO denied Brunetti’s application as being immoral and scandalous. Brunetti appealed, arguing this rejection violated his First Amendment right to free speech. SCOTUS agreed. An important tenet of First Amendment law is that laws which ban speech based on viewpoint are unconstitutional. These so called “viewpoint-based” laws are considered unconstitutional because it is not for the government to decide which viewpoints should be silenced and which should be allowed to be heard. Instead, all viewpoints (with exceptions for incitements of violence, threats, and so on) are to be equally allowed and unrestrained. In light of this, SCOTUS in 2017 decided Matal v. Tam, which challenged a USPTO decision rejecting a trademark application for the mark “SLANTS.” The USPTO held this trademark violated the rule banning trademarks which “disparage” any person, living or dead. In the Matal decision, SCOTUS held the so-called “disparagement” bar was viewpoint-based because it was not for the USPTO to decide what types of terms disparaged a person or group of persons, living or dead. SCOTUS expanded on the Matal decision in Iancu, holding that the USPTO deciding whether certain terms are scandalous or immoral is similarly viewpoint-based. The law allowing the USPTO to reject scandalous or immoral trademarks provides that material is scandalous or immoral when its message does not comply with society’s sense of decency or propriety. Certainly in 2019, there are many different ideas as to what this sense of decency or propriety actually is, given the subjective and ever-changing nature of the concept. Because there is no uniform standard to help the USPTO establish the current society’s sense of decency and propriety, allowing the USPTO to unilaterally determine where this line is drawn and to restrain speech based on the examining attorney’s subjective views as to which side of the line a particular mark falls would necessarily call for the USPTO to exercise viewpoint-based discretion, which the First Amendment forbids. Whether this decision opens the floodgates for trademarks previously rejected as scandalous or immoral or whether Congress will revise the statute to allow the USPTO to once again reject these types of trademark applications remains to be seen. In arguing before SCOTUS, the government proposed using a different interpretation of the law which would only preclude those trademarks which were lewd, sexually explicit, or profane. SCOTUS rejected this solution, finding the proposed interpretation was so different from the...

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Topics to Avoid in Hiring Interviews

Posted by on Jun 3, 2019 in Newsflash | 0 comments

When you interview a candidate for hire at your company, you likely have a list of questions you plan to ask him or her. This list can be as simple as why the candidate wants to work for you, or substantially more complex. It is not uncommon for interviewers to ask a question during an interview only to discover later that the answer to the question included information companies are not supposed to obtain during an interview. California has a list of off-limits topics which cannot be touched during the interview. As many companies begin interviewing new graduates for positions, this list should be reviewed before compiling questions for the candidates. 1. How old are you? Beyond confirming a candidate is of legal age to be employed by your company, questions either directly or indirectly aimed at discovering the candidate’s age should not be asked. One innocent way this topic may be stumbled upon is asking a candidate when he or she graduated high school. In doing so, you are able to calculate when he or she was born and thus, his or her age. Although you may be able to make an estimate as to the age of a candidate, you may not ask directly. Similarly important, you may not advertise jobs as open only to a certain age group. This can include using advertising algorithms to have your posting reach only certain demographic groups, or by simply stating your preference for a certain demographic within the job posting. Of the latter, the California Labor and Workforce Development Agency provides examples of inappropriate qualifiers, such as “college age” or “digital native. 2. Where were you born? Questions which could reveal a candidate’s immigration status are off-limits. This is especially important to remember for employers in Southern California who may be interviewing persons who currently live in or have immigrated from Mexico or Central or South America. The California Labor and Workforce Development Agency has clarified that regardless of immigration status, California’s labor laws apply equally to all persons employed in California. This means all laws prescribing what topics may and may not be broached during an interview apply to all persons being interviewed in California. You may, however, ask the candidate whether he or she has a legal right to work in the United States to ensure the candidate may actually be hired. 3. Have you ever been convicted of a crime? A question that used to appear on just about every job application, a candidate’s past convictions are now not to be considered in hiring. We discussed California’s “ban the box” law which went into effect on January 1, 2018, in a past article. While you will be allowed to run a criminal background check after extending a conditional offer of employment to a candidate, you may not probe into a candidate’s criminal history during an interview. 4. Are you married? Do you have kids? Whether a candidate is married, has children, or is planning to have children is off-limits during an interview. Although this may seem like small talk, questions about familial status which reveal information that could lead to potentially discriminatory decisions should not be asked. Questions aimed at this information can be phrased in many ways. Regardless of the phrasing and how innocent it...

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Out-of-State Retailers Could Be Subject to California’s Sales and Use Taxes

Posted by on Jun 3, 2019 in Newsflash | 0 comments

When it came to certain state taxes, physical presence used to be the primary factor determining whether a retailer was required to collect and remit those taxes. However, after the South Dakota v. Wayfair, Inc. ruling on June 21, 2018, physical presence is no longer of utmost importance. California is one of about 30 states who have codified this ruling. As adopted, AB 147 now requires retailers who are not physically present in California but who generate over $100,000 in annual sales from California, or complete more than 200 transactions with California residents within the preceding calendar year to collect and remit state sales tax. Additionally, the law requires those out-of-state retailers selling over $500,000 of tangible personal property for delivery into California in the current or preceding calendar year to charge and remit California use tax. Finally, those retailers who do a certain amount of business within a California district where they do not have a physical presence are required to charge and remit those district taxes. In its Wayfair ruling, the Supreme Court of the United States ruled that retailers being exempt from collecting and remitting certain taxes in states where the retailers were not physically located was “unsound and incorrect.” The Supreme Court abandoned this previous physicality requirement and instead held that any retailer with certain economic and virtual contacts with a state could be subject to that state’s sales tax rules. No guidance was provided as to what exactly these contacts should be in order to subject retailers to these tax rules. California, among other states, took steps to codify this ruling and provide clarity as to the contacts required. AB 147, signed into law on April 25, 2019, provides the guidelines for requiring out-of-state retailers to collect and remit certain state taxes. This rule does not apply to all out-of-state retailers who sell goods in California. Instead, the minimum threshold to be subject to this new rule is $100,000 in sales or 200 completed transactions for sales taxes and $500,000 in sales for use taxes. Any retailer who meets these thresholds over a one year period is required to comply with this rule. Because of the one year limit to this threshold, an out-of-state retailer may be subject to this rule for some months while not subject to it for others. The starting date for determining whether an out-of-state retailer is subject to this rule is April 1, 2019. Thus, out-of-state retailers will start measuring their deliverables to California from April 1, 2019, going forward. Although tedious for the out-of-state retailers, this rule alleviates the responsibility of California consumers to report certain California taxes on these same items. California charges sales and use taxes on goods purchased outside of California; however, for goods delivered into California by these out-of-state retailers, the tax is usually to be reported and paid by the consumer. Now, those out-of-state retailers subject to this rule will be required to collect and remit the tax, instead of the consumer reporting and paying the same directly to the taxing authorities. Beyond these taxes, those out-of-state retailers who meet the minimum thresholds and deliver a certain amount of goods to particular districts within California will be required to collect and remit district taxes as well. The rule provides exemptions for certain types of...

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