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Legal Update

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.

The Three Feet for Safety Act has significant implications for drivers in the State of California. Primarily, it establishes a clear standard of care for drivers when passing bicyclists. If able to, drivers must pass bicyclists with three feet of clearance. If such a clearance is not available given traffic or roadway conditions, the driver must slow down and pass only when it would not endanger the safety of the bicyclist. Notably, this section does not provide that a driver may cross double lines in order to pass a bicyclist. In fact, crossing double lines is prohibited under California law except for under certain circumstances. (Cal. Veh. Code § 21460.)

Most significantly for drivers, should a collision resulting in bodily injury occur between a passing driver and a bicyclist and the driver be found in violation of this Vehicle Code section, not only is the driver subject to the aforementioned monetary fine, the driver can be found negligent per se. Negligence Per Se is a legal doctrine that establishes a presumption of negligence for a violation of a statute, ordinance, or regulation. In California, negligence per se is established when (1) an individual violates a statute, ordinance, or regulation of a public entity, (2) the violation proximately causes death or injury to person or property, (3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent, and (4) the person suffering the death or injury was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Cal. Evid. Code § 669.) Here, should a lawsuit arise because of a collision between a passing driver and a bicyclist, the driver would be presumed negligent if he or she is found to have violated Vehicle Code section 21760.

Any driver in the State of California – whether commercial or non-commercial – should be aware of this new law, which establishes a clear standard of care when passing bicyclists. Drivers should also understand the legal implications violations of this law will have on the defense of drivers involved in motor vehicle/bicycle collisions.

To read the full text of the AB 1371, please click here.

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 Kimberly Chin at 415-697-3455 or at kchin@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

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 kallen@aghwlaw.com. 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.

The ADA forbids discrimination against a “qualified individual on the basis of disability.” A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of [the] individual [who claims the disability],” or “a record of such an impairment,” or “being regarded as having such an impairment.” The officer claimed that his disability substantially limited two major life activities: “working” and “ability to interact with others.”

Major Life Activity: Working

The Court was not convinced that the officer’s disability substantially limited his ability to work. In fact, the evidence showed that the officer was a skilled police officer – his supervisors recognized him as being knowledgeable and technically competent to perform his duties, he was selected for high-level assignments, he was promoted to sergeant, and a psychologist and a physician/psychiatrist both deemed the officer to be fit for duty.

Major Life Activity: Interacting with Others

The Court was also not convinced that the officer’s disability substantially limited him from interacting with his work colleagues. Specifically, the Court did not find the officer’s inability to interact with others was severe (i.e. high levels of hostility, social withdrawal, or failure to communicate when necessary). The Court distinguished an employee simply “not getting along” with coworkers as opposed to not being able to “interact” with people in general. The Court found that the officer did not show that he was unable to interact with people in general – while the officer’s interpersonal problems involved his peers and subordinates, he was able to engage in normal social interactions with his supervisors.

The Court does not close the door on all persons who claim a disability based on ADHD. In fact, the Court rarely reverses a jury verdict for an employee who asserts a claim for an ADA violation. A valid claim will be based on how the condition’s impairment “substantially limits” one or more major life activities (NOTE: the effects of medication are not relevant under California or federal law). If an employee has a severe disability that prevents them from relating to people in general (as opposed to just coworkers), he/she may still have a valid disability claim. On the other hand, an employee who simply acts like a jerk by being offensive or inappropriate at times is unlikely to have a valid disability claim under the ADA.

To read the Court’s decision, click here.

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 Hannibal Odisho at 415-697-3463 or at hodisho@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

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 kallen@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

U.S. Supreme Court Activity in Police Cases

Posted by on Aug 17, 2014

The U.S. Supreme Court issued several important opinions over the past year: (1) Plumhoff v. Rickard (use-of-force) (2) Fernandez v. California (consent to search); and Navarette v. California (anonymous tip as reasonable suspicion) (summaries courtesy of SCOTUSBlog). The three cases provide guidance on when and how officers can use deadly force, can search a residence, or stop some suspected of criminal activity.

In the upcoming term (October 2014), the Supreme Court will address at least one police case: Heien v. North Carolina. There, a local sheriff’s deputy pulled a car over for a traffic stop on the mistaken belief that North Carolina law required two functioning brake lights (not one). The question before the Court is whether an officer’s mistake of the law can constitute reasonable suspicion for a traffic stop.

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 kallen@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

Employees Required to Use Their Personal Cell Phones for Work Must Be Reimbursed By Employer

Posted by on Aug 16, 2014

It is well-established under Labor Code § 2802 that employers must reimburse their employees for reasonable expenses their employees incur when they are required to use their personal cell phones for work.  However, what if you have one of the following situations:

  • The employee’s cell phone bill is paid for by a family member or friend;
  • The employee uses his/her phone for work under a personal rather than separate work cell phone plan;
  • The employee has an unlimited cell phone plan for which he/she does not incur an additional expense when the phone is used.

A recent California case, Cocharn v. Schwan’s Home Service Inc., addressed these issues and ruled that none of the three scenarios above excuses an employer from reimbursing their employees under Labor Code § 2802. Under § 2802, “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties or of his or her obedience to the directions of the employer[.]”

The Court considered the above three scenarios and it determined that under § 2802, it does not matter whether the phone bill is paid for by a third person (i.e. family member or friend); whether or not the employee purchased a separate cell phone plan to accommodate work-related cell phone usage; or whether the employee has unlimited usage under his/her cell phone plan. For an employer to be liable, an employee only has to show that he/she was required to use a personal cell phone to make work-related calls, and he/she was not reimbursed.

In calculating what an employee is due, an employer may consider “not only the actual expenses that the employee incurred, but also whether each of those expenses was ‘necessary,’ which in turn depends on the reasonableness of the employee’s choices.” In other words, courts will deal with each case separately in order to determine an employee’s damages once he/she has proven the employer is liable.

To read the Court’s decision, click here.

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 Hannibal Odisho at 415-697-3463 or at hodisho@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

The Next Big Thing: Ban the Box

Posted by on Jul 27, 2014

“Ban-the-box” refers to the question on the employment application that asks: “Do you have a criminal conviction?”

Effective July 1, 2014, California adopted a “ban-the-box” law prohibiting public employers from asking job applicants about criminal convictions  until after the employer has determined that the applicant meets the minimum qualifications for the job. The law makes an exception for any position where a criminal background investigation is required by law, as well as for criminal justice agencies. California Penal Code § 432.9.

But knowing about Penal Code § 432.9 is only the start to staying out of legal trouble for employers.  The next chapter is likely to be local cities and counties passing their own ordinances applying “ban-the-box” to private employers.  For example, San Francisco’s “Fair Chance Ordinance” takes effect August 13, 2014, barring private employers with 20 or more employees and operations in the City & County of San Francisco from inquiring about a job applicant’s criminal history during the preliminary stage of the hiring process. Convictions more than seven years old, diversions, and juvenile adjudications can never be considered in San Francisco and only those “directly-related” to the position sought by the applicant can be considered at all. The San Francisco ordinance is chock full of procedural requirements to snare private employers, too. Examples: Before an employer can order a criminal background check, notice must be given to the applicant complying with several federal and state statutes. Job postings and advertisements must include a statement the employer will consider qualified applicants with criminal histories.

At present, few cities and counties have targeted private employers, but with the passage of statewide legislation for public employers, keep an eye out for this development.

Like many areas of employment law, this will be a minefield of legal problems for uninformed employers.  Our practical, ready to implement suggestions to avoid legal claims for California employers, public or private, are as follows:

  • Determine if and how “ban-the-box” applies to you as a public or private employer;
  • Carefully study the local ordinances as there are likely to be important differences between them concerning the timing of any inquiry and limiting the inquiry about criminal history to crimes “directly related” to the particular job, or the staleness of the conviction;
  • If so, review all employment applications hiring materials to determine whether they need to be modified to comply with “ban-the-box” rules where the company is hiring;
  • Train managers involved in the interviewing process about when criminal history inquiries are restricted and permissible. This will require careful review of local ordinances, as some (e.g. San Francisco) only permit limited inquiries, even after a first person-to-person interview or conditional offer of employment.

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 Peter Glaessner at 415-697-3461 or at pglaessner@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

Employer May Deduct from Exempt Employees’ Vacation/PTO for Partial Day Absences of Less Than Four Hours

Posted by on Jul 26, 2014

Brief Summary
With its July 21, 2014 decision in Rhea v. General Atomics, the Court of Appeals aligns California law with Federal law regarding employee deductions from Paid Time Off (PTO)/Vacation for Partial Day Absences. Employers may now deduct partial-day absences in increments, including increments of less than four hours, from exempt employees’ accrued leave time without violating California law or losing the employee’s exempt classification.

Background
To provide some background, the California Supreme Court held more than 30 years ago in Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774 that an exempt employee’s accrued vacation qualifies as earned wages.  As such, an employer could not require an exempt employee to forfeit unused vacation/PTO and the employer had to pay out at termination any and all accrued and unused vacation/PTO.

If an exempt employee took a full day off from work, the employer was permitted to deduct a day from the employee’s vacation/PTO bank. However, if an exempt employee took a half day of vacation or worked only a partial day, employers were advised (and as was held by the California Division of Labor Standards and Enforcement – DLSE) that deducting from the employee’s vacation/PTO bank would violate California law’s salary basis test because the employer would effectively be reducing the amount that the employer paid the employee for that day.

Conley
In Conley v. Pacific Gas & Electric Co. (2005) 131 Cal.App.4th 260, the Court of Appeal held that an employer’s policy of allowing the employer to deduct hours from an exempt employee’s accrued vacation/PTO bank to cover partial day absences did not violate California law.  The Conley ruling followed federal law, under which a deduction of this type is allowed because vacation/PTO is not considered “vested.”  However, the DLSE subsequently interpreted Conley to mean that employers could only deduct from an employee’s vacation/PTO bank if the absence was for four hours or more.  Until now, employers complied with the DLSE’s interpretation of Conley by only allowing or requiring exempt employees to use vacation/PTO in increments of less than four hours.

Rhea
Recently, the Court of Appeal finally clarified the ruling in Conley with its decision in Rhea v. General Atomics. Under this decision, the “four hour” minimum absence rule is no longer required under California law. An employee’s vacation/PTO may be deducted for partial day absences, including absences of less than four hours, without jeopardizing an employee’s exempt status.

In Rhea, the employer, General Atomics, had a policy that required exempt employees to use their annual leave hours when they were absent from work for portions of any single day. A salaried, exempt employee sued the employer on the ground that the employer’s policy violated the “four hour” minimum absence rule.

The Court of Appeal agreed that under California law, vacation or annual leave is treated as a type of “wages” or “deferred compensation” that is earned by an employee. However, the Court did not agree with the employee that an employer’s deduction of annual leave for an employee’s partial-day absences constitutes a forfeiture of wages. The Court stated that the employer is not taking away vested annual leave when an employee takes a partial-day absence; it only requires the employee to use the annual leave under the terms and conditions the employer has created.

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 Hannibal Odisho at 415-697-3463 or at hodisho@aghwlaw.com. This communication may be considered advertising in some jurisdictions.