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Legal Update

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.

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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.

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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.

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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[.]”

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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.

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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.

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