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Legal Update

Court Confirms Brinker Meal Period Standard and Plaintiff’s Higher Burden of Proof

Posted by on Nov 15, 2014

After years of wrangling and litigation, an employer’s meal period obligation under California Labor Code section 226.7 was clarified in the landmark California Supreme Court decision of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. In that case, the issue was whether employers must (1) merely make meal breaks available to their employees (Make Available Standard), or (2) actually ensure employees take their meal breaks (Ensure Standard).

The Supreme Court adopted the Make Available Standard. Under this standard, the employer is only required to relieve its employee of all job duties for the taking of a meal break. If that opportunity is made available to the employee, the employee may then choose to skip or delay the meal break (e.g., an employee may skip a meal break in order to leave work early). In contrast, the previous, and now rejected, Ensure Standard an employer had to ensure its employees took a meal break regardless of whether or not the employee wanted to take one. (more…)

Department of Justice Provides Guidelines on Body Cameras

Posted by on Nov 12, 2014

Over the past few months, there has been much attention whether police departments should equip their officers with video cameras. Last month, the United States Department of Justice issued a report regarding the use of body-worn cameras by police. The report, found here, is a worthy read. It provides guidance to cities and departments as they decide whether to issue body-cameras, and advises how to do so.

Legal Pitfalls to Avoid in Adopting a Bring Your Own Devices (BYOD) Policy

Posted by on Oct 23, 2014

60% of employees have recently reported that they use a personal electronic device for work. This is not surprising. It is probably safe to assume that almost every person now owns some form of a personal mobile electronic device. With the proliferation of these personal devices, people are increasingly using them for work-related matters such as checking work emails, making work-related phone calls, or drafting a document on a laptop or tablet. Employees use their personal devices to access confidential company data, contact customers, and store customer contact information onto their devices. Although problems do not arise in most instances, what happens when an employee quits or is terminated? What policies and practices do you have in place to prevent those employees from simply taking your confidential and proprietary information and giving it to a competitor or publicizing it in other ways? (more…)

No Duty to Defend Massage Therapist’s Alleged Sexual Assault of a Client that Occurred During a Massage

Posted by on Oct 23, 2014

(Baek v. Continental Casualty Co., California Court of Appeal – 2nd District, No. B251201, Oct. 6, 2014)

What acts are considered within an employee’s “scope of employment”? When does an insurer have a duty to defend an insured’s employee for intentional tortious acts? Most recently, the Los Angeles County Superior Court and the Second District of the California Court of Appeal determined that a massage therapist’s alleged sexual assault of a client at its establishment was not within the scope of employment. (more…)

Governor Brown signs “Healthy Workplaces, Healthy Families Act of 2014”

Posted by on Oct 17, 2014

On September 10, 2014, Governor Brown signed AB 1522, “Healthy Workplaces, Healthy Families Act of 2014” into law requiring California employers to provide sick leave benefits to their employees.  The new law contains some detailed requirements which are highlighted below. (more…)

Falsifying Timesheets, Misconduct and Unemployment Benefits

Posted by on Sep 22, 2014

In California, an employee terminated for “misconduct” is disqualified from receiving unemployment benefits. Under California Labor Code section 1256, “an individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work.” The California Supreme Court has found such misconduct to include action showing willful or wanton disregard of an employer’s interests “as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee … “On the other hand” mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.”  Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d. 671, 678.


Drivers in California Now Required to Give Three Feet When Passing Bicyclists

Posted by on Sep 15, 2014

On September 16, 2014, AB 1371, also known as the Three Feet for Safety Act, went into effect. Signed last year by Governor Jerry Brown, AB 1371 adds Section 21760 to the California Vehicle Code.

Vehicle Code section 21760 provides, in part:

(c) A driver of a motor vehicle shall not overtake or pass a bicycle proceeding in the same direction on a highway at a distance of less than three feet between any part of the motor vehicle and any part of the bicycle or its operator. (emphasis added)

(d) If the driver of a motor vehicle is unable to comply with subdivision (c), due to traffic or roadway conditions, the driver shall slow to a speed that is reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle, taking into account the size and speed of the motor vehicle and bicycle, traffic conditions, weather, visibility, and surface and width of the highway.

A violation of Vehicle Code section 21760 may result in a fine of $35.00. Moreover, if a collision occurs between a motor vehicle and a bicycle which causes bodily injury to the operator of the bicycle and the driver is found to be in violation of Vehicle Code section 21760, the driver will be fined $220.00.


Recent Ninth Circuit Police Opinions

Posted by on Sep 4, 2014

Over the past few months, the Ninth Circuit Court of Appeals has released a pair of decisions in police liability.

In Chaudhry v. Los Angeles the appellate court found that — in wrongful-death civil rights cases filed in California — the decedent’s Estate (i.e. the party standing in the shoes of the decedent and continuing his/her claim) may recover for pre-death pain and suffering damages. Previously, the Ninth Circuit had not ruled on the issue. The issue had been left to the four District Courts in California, who had to reconcile state and federal law. The District Courts had been split. Post-Chaudhry, plaintiffs in federal civil rights litigation will be able to recover more money.

In Cruz v. Anaheim, the appellate court reversed summary judgment for the defendant (finding a triable issue of fact for the jury). In doing so, however, the Court reaffirmed officers’ right to self-defense. “It would be unquestionably reasonable for police to shoot a suspect in Cruz’s position if he reaches for a gun in his waistband, or even if he reaches there for some other reason. reason. Given Cruz’s dangerous and erratic behavior up to that point, the police would doubtless be justified in responding to such a threatening gesture by opening fire.” Cruz, — F. 3d –, 2014 WL 4236706, * 1. The Court emphasized: “[t]o decide this case a jury would have to answer just one simple question: Did the police see Cruz reach for his waistband? If they did, they were entitled to shoot; if they didn’t, they weren’t.” (Id., at * 2).

This document is intended to provide you with general information about legal developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Kevin Allen at 415-697-3455 or at This communication may be considered advertising in some jurisdictions.

Common Sense Prevails: Being a Jerk Not a Disability

Posted by on Aug 29, 2014

Is an employee who attributes his/her interpersonal problems with his coworkers and inability to work to attention deficit hyperactivity disorder (ADHD) protected under the Americans with Disabilities Act (ADA)? According to a recent ruling by the 9th Circuit Court of Appeal, that answer may be no.

On August 15, the 9th Circuit published a ruling in Weaving v. City of Hillsboro, a case in which a police officer alleged wrongful termination by the Hillsboro Police Department in violation of the ADA. The officer claimed that because of his disability (ADHD), he was unable to work and interact with his work colleagues, and was thus terminated. In a rare reversal of the jury verdict, the 9th Circuit disagreed and held that based on the evidence presented at the jury trial, ADHD did not substantially limit the officer’s ability to work or to interact with others.


Importance of Video in Police Cases

Posted by on Aug 18, 2014

For any police department considering getting cameras for its officers, the article below is highly recommended. In the Rialto (California) Police Department, citizen complaints dropped 88% after officers started wearing cameras. Video can help protect against frivolous lawsuits.

What Happens When Police Officers Wear Body Cameras

(Wall Street Journal, 8-18-14)

This document is intended to provide you with general information about legal developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Kevin Allen at 415-697-3455 or at This communication may be considered advertising in some jurisdictions.