What You Should Know Before Putting Surveillance Cameras in Your Place of Business

Posted by on Jun 1, 2017 in Newsflash | 0 comments

California employees’ reasonable expectations of privacy are protected by Article I, Section 1 of the California Constitution and by the common law tort known as “invasion of privacy.”  In determining whether particular acts or policies go too far in encroaching on an employee’s privacy rights in an impermissible way, the law requires balancing (1) an employee’s reasonable expectation of privacy with (2) an employer’s legitimate business purpose for the intrusion. When analyzing whether an employer has invaded the privacy of an employee, the court first looks to whether the employer intentionally intruded into a place, conversation, or matter as to which the employee has a reasonable expectation of privacy.  Second, the intrusion must occur in a manner that is highly offensive to a reasonable person. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231) Courts have consistently held that notice of and consent to an impending potential intrusion can “inhibit reasonable expectations of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 36.)  Thus, when considering placing surveillance cameras in your place of business, whether for safety or security issues or any other reason, the following guidelines should be followed to minimize any potential liability or claims of invasion of privacy: Mark the Cameras – Well-marked cameras reduce an employee’s reasonable expectation of privacy.  Having a camera plainly visible and located next to a sign stating “recording in progress,” greatly diminishes an employee’s claim of an expectation of privacy.  The courts use a sliding scale- the more obvious an employer is about its video surveillance practices, the less likely a reasonable expectation of privacy exists or will be deemed to have been unlawfully intruded on. Create, Distribute and have the Employee Execute a Clear Workplace Video Surveillance Policy – This can be done by placing a policy in an employee handbook or through a stand-alone policy.  Employees are less likely to have a recognized claim that their privacy rights have been invaded if they are put on notice by a specific written policy that the employer records employees in open work areas.  The policy should include the scope, duration and methods of surveillance.  It should also notify employees that video recordings may be used to monitor work performance and may be used as part of any discipline-related investigation.  Finally, employers should require each employee to sign an acknowledgment that he or she has reviewed and understands the video surveillance policy. Limit the Number of People who can Access the Cameras – Since privacy interests are at play, limit the number of people who can access and control the footage of the surveillance cameras.  If possible, limit access to the CEO and one or two other high ranking (and trusted) employees. Do Not Place Cameras in Sensitive Private Places – Do not place any video or audio recording devices in any bathrooms, locker rooms, or rooms designated by an employer for changing clothes.  Secret cameras can also cause major concerns- at a minimum, the safest and most practical course of action for employers is not to place secret cameras in work areas that employees would not expect to be recorded.  These include offices, cubicles, break rooms, file rooms, etc. If you have questions regarding the use of video surveillance cameras or need assistance in updating your...

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Avoid Costly Litigation by Ensuring Your Website is ADA Compliant

Posted by on Jun 1, 2017 in Newsflash | 0 comments

A little over a year ago, we wrote an article, Is Your Website ADA Compliant?, which explained that a business opening itself to and holding itself out to the public must meet certain requirements to remain in compliance with the Americans with Disability Act (“ADA”), which affects not just the physical buildings but a company’s website.  Individuals with various disabilities rely on technology to help them navigate websites or access information contained on those websites, and many commercial websites are not designed to interact correctly and effectively with the assistive technology such individuals utilize.  As a result, many websites fail to incorporate or activate features that enable users with disabilities to access all of the website’s information or elements. When the article was first published, it was more of a cautionary tale.  However, recently litigation concerning non-ADA compliance in commercial websites has really started to ramp up.  Therefore, it is now imperative for companies to assess their websites to ensure compliance or face the increasing risk of litigation, which are extremely difficult and costly to defend. Recently, the Department of Justice (“DOJ”) published an “ADA Best Practices Tool Kit,” which includes website accessibility guidance and a checklist that can be used to verify compliance with the ADA.  The tool kit identifies common website accessibility problems and proposes solutions and other considerations to assist in developing ADA-compliant websites.  It also includes a detailed action plan for making existing web content accessible.  The checklist is intended to guide preliminary assessments of website accessibility, and policies and procedures for maintaining website accessibility. It should be noted that while the tool kit is primarily geared toward state and local governments, which are governed by a separate title (Title II) of the ADA, it will be helpful to companies to begin determining their compliance.  The DOJ has indicated that the same rules significantly impact the website accessibility requirements for companies, which are expected to be issued in 2018.  However, in the meantime, ADA lawsuits are being filed based on the general ADA standards and companies cannot wait until the 2018 requirements are issued to move their websites into compliance. It is far better to spend money now on your IT professional to ensure your company’s website compliance than to be liable for damages and penalties for non-compliance.  As always, if you have any questions concerning your company’s compliance with federal, state or local laws, the attorneys at Navigato & Battin are here to...

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Employers Beware: Gender-Neutral Bathrooms are Now Law in California

Posted by on May 1, 2017 in Newsflash | 0 comments

On March 1, 2017, AB 1732, or the Equal Restroom Access Act, went into effect.  The law seeks to combat gender identity discrimination by making it mandatory for all single occupancy restrooms in any business establishment, place of public accommodation, or government agency to be identified as all-gender toilet facilities.  For the purposes of this bill, a “single occupancy restroom” is defined as “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.” What this means for companies and employers is that any business with single-occupancy bathrooms must make the bathrooms gender-neutral.  Additionally, the restrooms should be identified as all-gender toilet facilities by signage that complies with Title 24 of the California Code of Regulations.  As of now, this Bill does not apply to multi-stall bathrooms, nor does it require any workplace to add to existing facilities.  Therefore, if your workplace only provides multi-stall bathrooms, then this law does not affect your place of work. The bill allows an inspector, building official or other local official responsible for code enforcement to inspect for compliance with AB 1732.  While the bill does not provide for any penalty for non-compliance, employers and companies that fail to comply to run the risk of being sued for discrimination. If you have questions regarding AB 1732 or any other employment laws, the attorneys at Navigato & Battin are here to offer...

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The Necessity of Buy-Sell Agreements for all Co-owned Companies

Posted by on May 1, 2017 in Newsflash | 0 comments

As attorneys, we are unfortunately tasked with thinking through and planning for the worst case scenarios.  It is always easier (and significantly less expensive) to address possible negative outcomes and set a path for resolution that everyone is clear on and agrees with ahead of time, when everyone is getting along, than after the fact, when people are significantly less likely to be willing to work together.  This is one of the reasons we advise our co-owned company-clients to enter into buy-sell agreements with their co-owners early on.  A buy-sell agreement protects the company and its owners when a co-owner voluntarily or involuntarily leaves the company, or when there is a significant dispute or change of heart about how the company should operate. The purpose of the agreement is to predetermine how the owners’ ownership interests will be sold or transferred upon the happening of certain ‘triggering events.’  While the triggering events vary based on the company’s needs and goals, the most common triggering events include: divorce of an owner, death of an owner, bankruptcy of an owner or other assignment to creditors, permanent disability of an owner, or an owner’s withdrawal from active participation in the company.  It is basically a prenuptial agreement between business owners. The buy-sell agreement lays out the options the company and other owners have in the event a triggering events occurs.  For example, in the event of the death of an owner, many companies want the option to purchase the deceased owner’s interest from his/her estate rather than having the estate retain the ownership interest in the company (and potentially inserting a stranger into the business operations).  The buy-sell agreement would state exactly what the rights of the company and other owners are, including the formula for determining the value of the deceased owner’s ownership interest and setting out payment terms should the company elect to purchase the shares back. To ensure the availability of funds in the event of an owner’s death, many parties will purchase life insurance policies on each of the owners.  Thus, in the event of death, the proceeds from the policy are used to fund the purchase the deceased owner’s interest. While no one expects to get into disputes with their co-owners during these major events, the reality is that no one can predict the future and prudent planners will find a way to proactively address just what happens in the event a business relationship takes an unexpected turn.  A properly thought out and drafted buy-sell agreement can prevent fighting between family members, co-owners and spouses, keep the business afloat, and avoid liquidity problems that often arise on during these unforeseen events. If you are interested in discussing whether a buy-sell agreement is necessary for your company, the attorneys at Navigato & Battin are here to...

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Could AB 199 Destroy the Housing Marketing in California?

Posted by on Apr 4, 2017 in Newsflash | 0 comments

For the past several weeks, the construction industry has been buzzing with opinions regarding Assembly Bill 199 (“AB 199”).  AB 199, which was introduced by Assemblyman Kansen Chu, D-San Jose, and authored in part by the Construction Trade Council, requires that workers be paid “prevailing wage” on residential projects that have any agreement with the state or a political subdivision. The last portion of that phrase (“…any agreement with the state or political subdivision”) is the primary point of contention with AB 199.  Critics of AB 199, which include the California Chamber of Commerce, the California Building Industry Association, the California Business Roundtable, the California Manufacturers, and many other associations, argue that this phrase is ambiguous and that it could apply to the mere pulling of permits for a housing project.  If opponents are correct on this assumption, AB 199 would impact virtually every residential housing project in the state, with builders estimating it would raise home construction costs up to 45% and increase housing prices by approximately $90,000. For his part, Chu denies that this provision applies to the simple pulling of permits.  However, if AB 199 passes the Assembly and Senate and Governor Jerry Brown signs it into law, it will undoubtedly wind up in the courts for judges to interpret its meaning.  With so much at stake, one would hope for clearer guidance from the drafters of the legislation.  The first hearing on AB 199 was March 15th and drew a large opposition crowd.  It will certainly be interesting to see how the battle over AB 199 unfolds, and as always, Navigato & Battin, will keep you apprised of any new...

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Costco takes on Titleist

Posted by on Apr 4, 2017 in Newsflash | 0 comments

Avid golfers may be interested in the legal showdown between two industry giants, Costco and Titleist.  Costco sells golf balls – at $15 a dozen – under the brand Kirkland Signature.  Recently, the parent company of Titleist sent a letter to Costco claiming that the Kirkland Signature balls violated patents held by Titleist.  It also claimed “false advertising” based on Costco’s claim that all Kirkland Signature products “meet or exceed the quality standards of leading national brands.”  Titleist demanded that Costco stop selling the balls. Costco did not take Titleist’s written demand lying down.  Not only did Costco refuse to stop selling the golf balls, it filed a lawsuit against Titleist.  According to Dan Navigato (a partner at Navigato & Battin and avid golfer himself), “The lawsuit is in effect a preemptive strike by Costco.  By filing the lawsuit, Costco seeks an affirmative ruling by the court that the golf balls it is selling under the Kirkland Signature brand do not violate any of Titleist’s patents.” The lawsuit could take years to resolve.  Until then, you may want to stock up on the Kirkland Signature golf...

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The Costly Punishment for Damaging Your Neighbor’s Trees

Posted by on Mar 1, 2017 in Newsflash | 0 comments

At some point or another, it is likely that every person will eventually have to deal with a boundary dispute.  A particularly common boundary dispute involves the trimming or cutting of a neighbor’s tree when the tree has grown over a property line.  Under California law, an adjoining landowner may reasonably trim the branches of a neighbor’s tree which overhang onto his/her property, but only up to the property line.  Adjoining land owners are not permitted to enter a neighbor’s property to trim or remove the tree or its branches. Recently, a defendant found out the hard way what the repercussions of entering a neighbor’s property to abate the encroachment can be.  On January 31, 2017, the California Court of Appeal ruled that annoyance and discomfort damages resulting from tortious injuries to timber or trees are subject to the statutory damages multiplier.  Fulle v. Kanani, Case No. B271240.  The plaintiff in this case had several trees on her property which she claimed provided aesthetic benefits, shade, and privacy.  However, the trees partially blocked the defendant’s view of the San Fernando Valley.  Thus, defendant hired a work crew that went onto plaintiff’s property without her permission and cut the trees to approximately half their height and removed all the tree branches. Plaintiff sued the defendant for trespass and negligence, requesting treble damages under California Code of Civil Procedure section 733 and California Civil Code section 3346.  The case was tried before a jury, which found that defendant intentionally, willfully, and maliciously entered plaintiff’s property and cut her trees.  The jury awarded the plaintiff $27,500 for damages to the trees, $20,000 for the cost of repairing the harm, and $30,000 for noneconomic loss, including annoyance and discomfort, loss of enjoyment of the property, inconvenience and emotional distress.  Plaintiff then went on to request treble damages for both her economic and noneconomic harm.  The trial court ruled that treble damages were only applicable to economic damages, not noneconomic damages. On appeal, the Court of Appeal ruled the opposite, finding that annoyance and discomfort damages resulting from tortious injuries to timber or trees are the subject of damage multipliers under both sections 733 and 3346.  This ended up being a costly lesson for the defendant.  Adjoining land owners have a duty to act reasonably in cutting any encroaching trees or branches.  If you are ever unsure about your rights, the attorneys at Navigato & Battin are here to provide...

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Necessary Steps when Closing Your Business Doors

Posted by on Mar 1, 2017 in Newsflash | 0 comments

Closing a business is rarely an easy choice.  It is often stressful and in many situations disappointing.  However, all feelings aside, there are several steps that business owners should take when closing their doors. Notifying Employees Employees should be notified of your decision as soon as possible.  Whether it is 30 days or 2 weeks, the sooner the employees know, the more time they have to look for alternate employment. Selling Assets and Paying Debt With the closing of a business comes the selling of assets.  Any assets in the company name, such as equipment, vehicles, inventory, or furniture should be sold to the extent possible.  Once the assets are sold, the debt, if any, should be paid off. Filing with the Secretary of State In order to dissolve a corporation or cancel a limited liability company, certain documents must be filed with the Secretary of State.  The documents you need to file vary, in part based on whether the company has any unpaid debt.  In order to file the documents with the Secretary of State, your company must be in good standing with the Secretary of State and the Franchise Tax Board.  In addition to filing these documents, the owners of the company should prepare minutes to document their agreement to close the company. Final Tax Return The state requires all closed companies to file a final tax return in their last year of operations.  A CPA will be able to assist in the filing of any returns and any tax issues related to the sale of any assets. Contact Third Parties Any individuals or other entities that have an interest in the company should be notified.  For example, if any contracts have dates that end after the closing of the company, the company should contact those contracting parties to resolve any lingering issues and notify them of the closure. Distributions After all of the assets have been sold and debts settled, if there are any remaining company assets, they should be distributed to the owners in proportion to their ownership interests.  If there is personal property or real property, an appraiser may be necessary to determine the fair market value.  Once the assets are distributed, the bank accounts should be closed. The bottom line is this- closing a business is always more difficult than expected.  Don’t sidestep important legal requirements or problems you thought you were avoiding may follow you into the future.  Before closing your business, talk the situation over with the lawyers at Navigato &...

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On-Duty or On-Call Rest Breaks Violate California’s Labor Code

Posted by on Feb 1, 2017 in Newsflash | 0 comments

Recently, the California Supreme Court ruled on whether California law requires employers to provide off-duty rest periods.  In other words, must employees be relieved of all work-related duties and free from employer control during their rest breaks? This issue came to light in Augustus v. ABM Security Services, Inc., No. S224853, where 14,000 security guards for ABM Security Services brought a class action against ABM, alleging its policy of requiring its security guards to keep their pagers and radios on during rest periods and to remain “vigilant and responsive to calls” during rest periods violated California’s Labor Code and Industrial Welfare Commission Wage Order No. 4. The trial court ruled in favor of the employees and awarded approximately $90 million in statutory damages, interest and penalties.  The Court of Appeal reversed the trial court’s decision, holding that “simply being on call” does not qualify as performing work during a rest period.  The California Supreme Court then reversed the appellate court’s decision, concluding that California law does in fact prohibit on-duty and on-call rest periods and that employers are required to “relieve their employees of all duties” and “relinquish any control” over how employees spend their rest breaks. Employers should review their policies to ensure that employees are relieved of all work-related duties and employer control during each employee’s rest breaks.  If you have any questions regarding your employment policies, feel free to contact us to discuss your...

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New Federal Law Prohibits Non-Disparagement Provisions in Form Contracts

Posted by on Feb 1, 2017 in Newsflash | 0 comments

On December 15, 2016, former President Obama signed into law the Consumer Review Fairness Act of 2016 (the “Act”).  The Act makes certain provisions of a form contract void if the provisions prohibit or restrict an individual from engaging in a review of a seller’s goods, services, or conduct. The Act applies to “Covered Communications,” which is defined as “written, oral or pictorial review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services or conduct of a person by an individual who is a party to a form contract with respect to which such person is also a party.”  Under the Act, “Form Contract” is defined as “a contract with standardized terms that is: (1) used by a person or entity in the course of selling or leasing its goods or services; and (2) imposed on individuals without a meaningful opportunity for them to negotiate the standard terms.” The following provisions are void and it is unlawful for a person or entity to include such clauses in Form Contracts in effect on or after March 14, 2017: Clauses that prohibit or restrict the ability of an individual who is a party to the Form Contract to engage in Covered Communications; Clauses that impose a penalty or fee against an individual who is a party to the Form Contract for engaging in a Covered Communications; or Clauses that transfer or require an individual who is a party to the Form Contract to transfer to any person any intellectual property rights in review or feedback content, with the exception of a non-exclusive license to use the content, that the individual may have in any otherwise lawful covered communication about such person or the goods or services provided by such person. The Act does not protect individuals who post libelous reviews, publically slander a company or violate any duty of confidentiality imposed by law.  Additionally, companies have the right to remove or refuse to display publicly on an Internet website or webpage owned, operated or otherwise controlled by such a party any content that contains the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic; is unrelated to the goods or services offered by or available at such party’s Internet website or webpage; or is clearly false or misleading.  Finally, the Act preserves a party’s right to establish terms and conditions with respect to the creation of photographs or video of such party’s property when those photographs or video are created by an employee or independent contractor of a commercial entity and solely intended for commercial purposes by that entity. At this point, the Federal Trade Commission has not instituted a civil or administrative action with respect to the violation of the Act.  Instead, the attorney general or other consumer protection officer of any state has the right to bring a civil action on behalf of its residents to obtain the appropriate relief. All companies should review their Form Contracts and remove any prohibited clauses from such contracts by March 14, 2017.  Additionally, companies who post consumer reviews on their websites should review their terms of use agreements and community guidelines to ensure they are...

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