The e-magazine of the Solo and Small Firm Section for December 2017.
By Ritzel Starleigh Ngo
Dear Solo and Small Firm Section Members:
Happy Holidays from our practice to yours! I want to welcome our new section members and I want to extend an invitation to please contact me via e-mail at: firstname.lastname@example.org to let me know how the Solo and Small Firm Section can better serve your solo or small practice.
To new and continuing members of our section, I urge you to join one or multiple section subcommittees: education subcommittee, membership subcommittee, mentorship subcommittee, publications subcommittee, outreach subcommittee and attorney of the year award subcommittee. We are interested in learning more about you, and also having your participation in creating new educational webinars and publishing articles.
A few updates on the official segregation of the sections from the State Bar of California: The new entity—which all sections, including the Solo and Small Firm Section, will be a part of effective January 1, 2018—is the California Lawyers Association (“CLA”), which is a 501(c)(6) nonprofit organization. Members of the State Bar will continue to pay State Bar dues to practice law and will continue to pay section membership dues to the State Bar during this transition period. The fee for section membership for the Solo and Small Firm section will not be raised but you must renew your membership when you receive your fee bill from the State Bar.
During the first couple of weeks in December, our section will be working with the State Bar and the California Lawyers Association to ensure that services provided as part of your section membership remains uninterrupted and that the new entity is fully operational and has a seamless transition! Business with the section membership will continue, along with exciting new programs and publications.
We are looking forward to visiting and networking with smaller local county bar associations. If your bar association is looking for new MCLE and networking opportunities, please contact me.
Congratulations to new members who just passed the bar exam! We look forward to seeing you at future meetings!
Enjoy the holidays, and I look forward to having a few in-person programs and events in which we meet many of the section members in person!
Ritzel S. Ngo
P.S. Stay tuned for additional email alerts in December as the transition progresses. We will keep you posted when the new website is operational and further information, including FAQs, will be available.
By Steven L. Krongold
Church located an overflow parking lot about 50 to 100 feet east of its property accessed by an intersection with no traffic signals or crosswalks. Vasilenko parked his car at the overflow lot, and attempted to cross the street in the middle of the block directly opposite the Church. Vadilenko was struck by a car and severely injured. He and his wife sued the Church for negligence and loss of consortium. He alleged that the Church created a foreseeable risk of harm by maintaining an overflow parking lot in a location that required invitees to cross a dangerous street, and that the Church was negligent in failing to protect against that risk. He also alleged that the Church was negligent in failing to adequately train or supervise its parking attendants. The Church moved for summary judgment on the ground that it did not have a duty to assist Vasilenko with crossing a public street it did not own, possess, or control. The trial court granted the Church summary judgment; a divided panel of the Court of Appeal reversed. The Supreme Court granted review. Applying the Rowland factors, the Court held that "a landowner who does no more than site and maintain a parking lot that requires invitees to cross a public street to reach the landowner’s premises does not owe a duty to protect those invitees from the obvious dangers of the public street."
Plaintiff MCC met its burden under step two of the anti-SLAPP statute to establish a probability of prevailing on its claim for malicious prosecution even though the underlying pleading was voluntarily dismissed without prejudice. "When the proceeding terminates other than on the merits, the court must examine the reasons for termination to see if the disposition reflects the opinion of the court or the prosecuting party that the action would not succeed. (cite.) And should there be a conflict as to the circumstances of the termination, the determination of the reasons underlying the dismissal is a question of fact." In light of this rule, court notes that "it is perhaps enough to say that under the reverse summary judgment analysis required under the anti-SLAPP law, this ends the matter. But even if not, the termination here was favorable to MCC" because there was no factual showing the pleading was dismissed for economic reasons. "Absent such evidence, the argument cannot prevail." Lack of probable cause element was met. There was a dispute as to the state of the attorneys' knowledge before they filed the cross-complaint, especially as attorney Adams put in no evidence to show what he knew, or what research he did, or even to whom he spoke. And there was affirmative evidence, including that attorneys at Winston & Strawn notified opposing counsel in writing four times—once before and thrice after the underlying litigation was filed—that MCC was not a proper party. Despite that, appellants filed and continued the action. In terms of malice, a highly factual issue that often precludes summary disposition, "there was no evidence that attorney Adams did anything to research the applicable facts, or applicable law, before filing the cross-complaint seeking $300 million in damages. This indicates a degree of indifference from which one could infer malice."
Viatech filed a complaint seeking $166,372.14 in compensatory damages, plus attorney fees and costs, based on failure to pay invoices for product purchased. Defendants asserted numerous defenses, including that the underlying contract was unenforceable, Vitatech breached the underlying contract, and Vitatech improperly manufactured and labeled its products. Defendants settled for a lump-sum payment of $75,000, secured by a stipulation for entry of judgment for the full amount alleged in the complaint if defendants breached. When defendants breached, the court entered judgment for $303,620.12, which included $166,372.14 in compensatory damages and $104,427.01 in prejudgment interest. Judgment was vacated. Court held the stipulation was an unenforceable penalty under Civil Code section 1671(b) because it bore no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach. Court applied Ridgley v. Topa Thrift & Loan Assn. (1998) 17 Cal.4th 970, Greentree Financial Group, Inc. v. Execute Sports, Inc. (2008) 163 Cal.App.4th 495, and Krechuniak v. Noorzoy (2017) 11 Cal.App.5th 713. Court had authority to vacate the judgment under C.C.P. section 473(d) because the contract was void as against public policy.
Court abused its discretion in refusing to continue a summary judgment hearing to allow plaintiff time to secure new counsel and file opposition. The MSJ was filed on December 1, 2014, and set for hearing on September 25. Opposition was due September 11. Mediation began September 4, and when no resolution was reached by September 10, the deadline to file opposition was extended to September 14. The mediator advised that a settlement was reached on September 11, and on September 14, Denton’s attorney Letizia filed a notice of conditional settlement. Very early on the morning of September 16, Denton discharged Letizia for “refusing to withdraw the 998 offers that were still pending in addition to the conditional settlement, provided her with a signed and dated substitution of attorney form, and instructed her not to perform any further work on my case, and to have no further contact with any of the parties associated with the case.” Later that day, Denton signed a notice of substitution of attorneys, substituting himself in place of Letizia. After Letizia had been discharged and instructed by Denton not to communicate with other parties, Letizia told the City that Denton was no longer agreeable to the settlement. The court thereafter granted an unopposed ex parte application to vacate the notice of conditional settlement, and to maintain the previously scheduled date of September 25 for the hearing on the City’s summary judgment motion. Denton did appear at the hearing and argue. Denton also appeared in propria persona at the MSJ hearing, without any opposition having been filed, and asked for a continuance. The request was denied and the MSJ granted. The Court reversed. Denton’s situation here was certainly analogous to one of the statutory grounds for a trial continuance: “A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (Cal. Rules of Court, rule 3.1332(c)(7).) “Denton went from coasting toward approval of the settlement by the board of supervisors to having to rev up to oppose a summary judgment motion being heard in just four days, and to do so without counsel or access to his client file. The words ‘change in status’ and ‘not ready’ in rule 3.1332(c)(7), hardly begin to describe it.” “Superimposed on all this was what the trial court did—granting summary judgment for lack of opposition—was the equivalent of a terminating sanction. Such cannot be upheld here, just as it was not in Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, where the trial court refused a continuance to allow the defendant to prepare a separate statement in opposition to the bank’s summary judgment motion, and granted the motion.”
Action for wrongful termination. Genworth moved to compel arbitration of the dispute. On appeal from an order denying its motion to compel arbitration, Genworth contends the trial court erred in concluding the arbitration agreement is unconscionable and in refusing to sever any provisions the court considered to be unconscionable. Court concluded the arbitration agreement was procedurally and substantively unconscionable. Baxter had no opportunity to negotiate terms, nor did she have any meaningful choice in the matter. She could either quit her job of over five years or agree. The contract was presented in a take-it or leave-it manner. Baxter lacked equal bargaining power. These facts present a “high degree of oppressiveness” supporting a finding of procedural unconscionability. The discovery, statute of limitations, and other terms were “unreasonably favorable to the more powerful party,” citing Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145. Severance was not appropriate for two reasons. Multiple defects indicate “a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage.” (Armendariz, supra, 24 Cal.4th at p. 124.) Second, there was no single provision a court can strike or restrict in order to “remove the unconscionable taint from the agreement.” (Ibid.) The trial court would have had to rewrite the unconscionable provisions in order to ensure mutuality and fairness. The court lacked the power to do so.
Yelp user, under the pseudonym "Alex M," posted the following negative review of a certified public accountant who prepared a tax return: “Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.” The CPA sued for libel, and served a subpoena on Yelp for identifying information on Alex M. When Yelp objected, the trial court granted a motion to compel and awarded sanctions against Yelp of $4,962.59. Yelp filed a writ petition, and appealed the sanctions. The Court of Appeal denied writ relief, but reversed the sanctions award. Court held that: (1) Yelp had standing to assert its user's first amendment rights. (Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623); (2) The review contained provably false statements of fact that could constitute libel. (ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603); and (3) Plaintiff satisfied his burden of showing a prima facie case to support the identity subpoena against the first amendment challenge. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154). Finally, in light of the complex issues presented and the evolving state of the law, among other reasons, sanctions were not appropriate. (Diepenbrock v. Brown (2012) 208 Cal.App.4th 743.)
Acerchem UK, a United Kingdom limited company, is a wholly owned subsidiary of Acerchem International, which is based in Shanghai, China. Acerchem UK does not conduct business in the United States. Acerchem sent a newsletter promoting its rice protein products to 343 email addresses. The newsletter used Appellants’ “As Good as Whey” and “Non-GMO” logos in the newsletter. Most of the newsletter’s recipients were located in Western Europe. No more than ten recipients were located in California. The district court granted Acerchem UK’s motion to dismiss for lack of personal jurisdiction. Court of Appeal affirmed. Applying the “effects” test, derived from Calder v. Jones, 465 U.S. 783 (1984), the defendant must have “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Acerchem UK committed an intentional act by adding logos to the newsletter and sending it to a list of recipients. Relying on Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014), Court held that Acerchem UK did not “expressly aim” its intentional act at the forum. Any California contacts Acerchem UK created by sending a single newsletter to 55 recipients of unknown residence are too “attenuated” and “isolated” to support the exercise of jurisdiction. No more than ten of the newsletter’s recipients were physically located in California. Indeed, most of the recipients were located in Western Europe. Acerchem UK itself conducts no business in California. It can hardly be said that “California [wa]s the focal point both of the [newsletter] and of the harm suffered.”
Yelp investors filed a class action securities fraud lawsuit on grounds Yelp falsely stated that the reviews generated on its website were “firsthand” and “authentic” information from contributors about local businesses when, in fact, according to a Wall Street Journal article based on FTC data, more than 2,000 businesses claimed that Yelp had manipulated reviews of their services. Some complaints alleged that Yelp salespersons would remove good reviews or promote bad reviews when businesses did not agree to advertise with them. Other complaints reported that bad reviews were suppressed for companies that advertised with Yelp. After the WSJ article, Yelp’s stock had declined 6%. Plaintiffs sued Defendants alleging that Yelp’s statements regarding the independence and authenticity of posted reviews were materially false which directly caused loss of value when the falsity was exposed in the WSJ article. The court disagreed. “[D]isclosure of customer complaints that refer to allegations of fraud, without more, are insufficient to allege loss causation.” Loss causation cannot be adequately made out “merely by resting on a number of customer complaints and asserting that where there is smoke, there must be fire. Rather, for Plaintiffs in this securities fraud context, there must be particularized allegations of fraud and strong evidence of scienter or culpable intent of the corporate managers involved. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005).
Glassdoor.com is a website where employers promote their companies to potential employees, and employees post reviews of their experience working at the companies. The reviews on Glassdoor.com are anonymous. But to post reviews, users must first provide Glassdoor with valid e-mail addresses, though the addresses do not appear on the site. The subject of a government fraud investigation was reviewed on Glassdoor.com. The government served Glassdoor with a subpoena that ordered it to provide the grand jury with “Company Reviews” and associated “reviewer information.” Glassdoor, Inc. appealed denial of its motion to quash the grand jury subpoena on grounds it would violate its users’ First Amendment rights to associational privacy and anonymous speech. It contends that the district court should have applied the compelling-interest test in Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972), to determine whether the subpoena violates the First Amendment. The Court disagreed. The good-faith test established in Branzburg v. Hayes, 408 U.S. 665 (1972), controls. Because there was no evidence that the grand jury’s investigation of fraud, waste, and abuse by a third party in performing a government contract was being conducted in bad faith, the Court affirmed denial of the motion to quash, and sustained the civil contempt order and sanctions of $5,000 per day until Glassdoor fully complies by producing the requested information.
Selected Bill Summaries
Marilyn A. Monahan
Marina del Rey, CA
A.B. 46 – California Equal Pay Act (Chapter 776): A.B. 46 expands the California Equal Pay Act to public sector employers. It amends section 1197.5 of the Labor Code.
A.B. 168 – Employers: Salary Information (Chapter 688): In summary, A.B. 168 prohibits all employers, including the legislature, the state, and local governments, from seeking salary history information about an applicant for employment and requires an employer to provide the pay scale for a position to an applicant upon reasonable request, among other things. The bill adds section 432.3 to the Labor Code.
A.B. 450 - Employment Regulation: Immigration Worksite Enforcement Actions (Chapter 492): In brief, A.B. 450 “prohibits an employer from providing access to a federal government immigration enforcement agent to any non-public areas of a place of labor if the agent does not have a warrant.” The law applies to both public and private employers, and the Labor Commissioner and the Attorney General have the power to enforce the law.
A.B. 1008 – Ban the Box (Chapter 789): In summary, A.B. 1008 prohibits “an employer, with certain exceptions, from inquiring about or considering a job applicant’s conviction history prior to a conditional offer of employment, and sets requirements regarding the consideration of conviction histories in employment decisions.” AB 1008 applies to employers with 5 or more employees.
A.B. 1701 – Labor-Related Liabilities: Original Contractor (Chapter 804): A.B. 1701 adds a new section to the Labor Code (218.7) that provides that direct contractors are liable for the wages and fringe or other benefits that should have been paid by a subcontractor. The bill contains a statute of limitations. It does not apply to work performed by an employee of the state, a special district, a city, a county, a city and county, or any political subdivision of the state.
A.B. 1710 - Prohibited Discrimination against Service Members (Chapter 591): The purpose of this bill is to update California law to conform to 2011 amendments to the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by amending section 394 of the state’s Military and Veterans Code. The bill prohibits discrimination in terms, conditions, or privileges of employment against an officer, warrant officer, or enlisted member of the military or naval forces of the state or of the United States because of his or her membership or service.
A.B. 1711 - State Military Reserve Personnel: Leave Benefits (Chapter 92): A.B. 1711 provides that a member of the State Military Reserve shall be granted military leave and other specified benefits on the same basis as a member of the National Guard or other military reserve member. The bill adds section 19771.5 to the Military and Veterans Code.
S.B. 63 - Parental Leave (Chapter 686): S.B. 63 enacts the New Parent Leave Act. The bill expands the California Family Rights Act (CFRA) to include smaller employers, but only for the purpose of baby bonding. More specifically, it requires employers of 20 or more employees to allow an eligible employee to take up to 12 weeks of leave to bond with a new child. The employer must also maintain and pay for an employee’s health coverage during this time.
S.B. 295 - Farm Labor Contractors: Sexual Harassment Prevention (Chapter 424): Existing law prohibits the issuance of a farm labor contractor license unless the applicant attests in writing that certain employees have received sexual harassment prevention and reporting training in accordance with prescribed requirements relating to the substance, administration, and record of the training. This bill would, among other requirements, mandate that training for each agricultural employee be in the language understood by that employee.
S.B. 306 - Retaliation Actions: Complaints: Administrative Review (Chapter 460): S.B. 306 authorizes the Labor Commissioner to commence an investigation of an employer, with or without a complaint being filed, when retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner. This bill grants the Labor Commissioner authority to seek an immediate and temporary injunction when workers face retaliation for reporting violations of the law. This bill also gives the Labor Commissioner authority to issue citations and penalties directly to enforce retaliation claims, rather than exclusively through the courts.
S.B. 396 - Employment: Training: Gender Identity, Gender Expression, and Sexual Orientation (Chapter 858): S.B. 396, among other things, expands mandatory employee training in California. The California Fair Employment and Housing Act (FEHA) currently requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years. S.B. 396 additionally requires these employers to include, as a component of that prescribed training and education for supervisors, training inclusive of harassment based on gender identity, gender expression, and sexual orientation. The bill also contains a posting requirement.
A.B. 156 - Individual Health Insurance Market (Chapter 468): In contrast to recent changes in the administration of the federal marketplace created by the Affordable Care Act (ACA), A.B. 156 expands the annual open enrollment period for purchasing individual health policies from the state’s marketplace, Covered California.
A.B. 265 - Prescription Drugs: Prohibition on Price Discount (Chapter 611): A.B. 265 prohibits prescription drug manufacturers from offering an individual a discount to purchase its non-generic drugs when a generic drug is available through the individual’s health plan.
S.B. 17 - Prescription Drug Costs: Disclosure (Chapter 603): When filing rate information with state authorities, health insurers and HMOs will be required to include information on the impact of generic drugs, brand name drugs, and specialty drugs on premiums. In addition, drug manufacturers would be required, in certain instances, to provide advance notice of price increases.
S.B. 189 - Workers’ Compensation: Definition of Employee (Chapter 770): Once again, the legislature is tinkering with the definition of “employee” for purposes of workers’ compensation coverage. Why? Only employees must be covered by workers’ compensation insurance. If business owners or their family members are not included in the definition of employee, the business does not have to pay for workers’ compensation coverage for them. S.B. 189, in summary, “lowers the ownership threshold for waiving workers’ compensation coverage from 15% to 10%, and also creates specific waiving provisions for professional corporations, worker-owned cooperatives, and closely-held family businesses.” The changes made by the bill would take effect on July 1, 2018, except as specified.
A.B. 44 - Workers’ Compensation: Medical Treatment: Terrorist Attacks: Workplace Violence (Chapter 736): A.B. 44 requires employers to provide immediate support from a nurse case manager to employees injured in the course of employment by an act of domestic terrorism (a defined term).
a. Federal Courts
b. California Courts of Appeal:
c. California Superior Courts:
New Association: We’ve got a new name! The name of our new association has been approved by the Chief Justice - the education arm of the Bar is now the “California Lawyers Association.”
Seeking Comment: S.B. 36 amended section 6054 of the Government Code—effective January 1, 2018—authorizing the State Bar to require attorneys to submit or resubmit fingerprint records to the California Department of Justice (“DOJ”) in order to receive subsequent arrest notification for these individuals. In response, proposed rules implementing the new provision have been developed. The State Bar now seeks public comment on the proposed rule. Before implementation, the rule would be submitted to the California Supreme Court for approval. Deadline: 5 p.m., Dec. 26, 2017. More information is available on the State Bar’s website.
Bar Exam Results: In November, the State Bar announced the results of the July bar exam. 4,236 people (49.6 percent of applicants) passed the General Bar Exam. (The passage rate for the July 2016 exam was 43%.) The bar reported that, preliminary statistical analyses from the July 2017 General Bar Exam indicated the following:
Of the 571 attorneys who completed the Attorneys’ Examination, 215 (37.7 percent) passed.
New Ethics Rules for Prosecutors: On November 2, 2017, the California Supreme Court issued an order that puts into place an important new ethical rule regarding the special responsibilities of prosecutors to disclose exculpatory evidence. The order relates to an amendment to Rule 5-110.
By Robert M. Klein
A law practice devoted to helping personal injury victims.
It is the end of November and the holiday season is upon us. How do you reach out to clients? Or referral sources? Or prospects? Staying in front of a client or a referral source is an important marketing strategy and a holiday card is a nice way of saying thank you. But, do you send a paper card or an e-card?
I searched online to discover whether there are any studies or research that discuss the benefit of an e-card vs. a paper card. While I found nothing definitive, here is some information I found: More than 50% of the U.S. population and 85% of all Internet users visit a greeting's site annually, according to research firm Jupiter Media Metrix. Another study stated that the global market for greeting cards is projected to decline due to social media, e-cards and changing consumer values.
There is a solution for a law firm - use a combination of both.
The benefits to sending e-cards include a lower cost; the cards can be easily shared and forwarded via email and/or social media. The recipient can send a reply within the email program. There is no need to track down the ever-changing physical mailing address and by using an e-card service provider you will have access to data analytics, including such things as click rates, replies and other features.
The advantage of a paper card includes, among other things, a recipient literally touching your card which creates a sensory memory. The reader knowing you spent time signing the card, adding a handwritten note and that you paid personal attention to who a card was sent. Of course, the paper card has a higher cost per recipient and it takes more time to prepare and mail. Some may also consider the environmental impact. This can be countered by purchasing cards from a charity provider which lets the recipient know some of the proceeds support a cause of your choosing. Finally, and as counterintuitive as this may sounds, some studies indicate millennials are more impressed with paper cards than they are with e-cards.
Here are sites which offer services for either e-cards or paper cards. Please note, I have no contact, or experience, or connection to these companies. I am simply providing a starting point for your own use.
Buying cards from a charity: www.cardsthatgive.com; www.greetforgood.org
Paper card mailing services: www.postable.com; www.sincerely.com/ink; www.paperlesspost.com/; www.sendoutcards.com/
E-card and/or e-card services: www.Snapfish.com; www.Jacquielawson.com; www.americangreetings.com; www.bluemountain.com; www.123greetings.com; www.hallmarkeecards.com; www.Punchbowl.com; World Wildlife Fund Free Ecards, and Museum of Modern Art (MoMA) E-CARDS.
Posted on November 8, 2017 by Julie Brook, Esq. [CEB]
Reprinted by permission.
The recent allegations of sexual harassment against Hollywood producer Harvey Weinstein has renewed awareness of sexual harassment issues in the American public, and hopefully in American employers. California has long required sexual harassment prevention training, but many employers have questions about how it works. Here are some answers.
California law requires that employers train supervisory employees on sexual harassment and abusive conduct prevention every two years. Govt C §12950.1. New supervisory employees must get training within six months of promotion.
Which employers does this apply to? This requirement applies only to entities that regularly employ at least 50 employees or regularly contract for the services of at least 50 people. Under the regulations issued by the California Fair Employment and Housing Commission, the 50 employees need not all be located in California. See 2 Cal Code Regs §11024(a)(5).
Who’s a “supervisory employee”? It’s not defined in the statute, but the definition incorporated into the regulations (2 Cal Code Regs §11024(a)(8)) is that it’s any individual with the authority
to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action … if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
It’s unclear whether the terms “supervisor” and “supervisory employee” are synonyms. “Supervisory” duties may be broader than the status of being in management for the purposes of respondeat superior. This means that even low-level supervisors should be given the minimum training required by Govt C §12950.1.
What does the training have to cover? The training, which can only be presented by “trainers or educators with knowledge and expertise” in preventing harassment, discrimination, and retaliation, must include the following topics:
Is showing a video enough? No. Merely having a supervisor watch a video or noninteractive web-based product—”show and go”—would not meet the statutory requirements to conduct “classroom … or … effective interactive training and education.” The regulations define acceptable interactive training to include classroom training, e-learning with links to live trainers or educators within two business days, and “webinars” and “other effective interactive training,” and state that instruction must include questions to assess learning and numerous hypothetical scenarios. See 2 Cal Code Regs §11024(a)(2).
Should employers do more? Yes! Government Code §12950.1 provides a floor, not a ceiling, for an employer’s harassment prevention efforts. Employers should go beyond the minimum requirements to provide extra training (additional classes or training longer than two hours) that covers all the protected categories under both federal and state antidiscrimination laws. And effective January 1, 2018, employer training under §12950.1 will have to include harassment based on gender identity, gender expression, and sexual orientation.
What happens to employers who don’t provide the training? Employers aren’t automatically liable under the statute for failing to train a particular individual, but plaintiffs may argue that the failure to meet the training mandate is evidence of an employer’s failure to take all reasonable steps to prevent harassment. And if an employer violates any of the statute’s mandates, the Department of Fair Employment and Housing may issue an order requiring compliance.
An employer’s compliance with the sexual harassment prevention training requirements won’t automatically insulate it from liability for sexual harassment, but it’s intended to prevent harassment from occurring and, if it does occur, the training will hopefully educate all supervisors to identify and handle harassment appropriately.
Get information on all employer training requirements in CEB’s Advising California Employers and Employees, chap 9. And for guidance on bringing and defending sexual harassment claims, turn to CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, chap 4 and Handling a Wrongful Termination Action.
When you pay your dues, don’t forget to renew your membership in the Solo and Small Firm Section. The 6 FREE (and hard to get) MCLE SPECIALTY CREDITS alone pay for the cost of your membership!
If you are in compliance Group 3 (N-Z), don’t find yourself on the uncomfortable end of an audit. Even if you have a year or two to fulfill your obligation, why wait? Join the Section today, and you have a year to take advantage of the free MCLE.
The general rules for compliance follow:
Here are some tips to make sure you are MCLE compliant. First, log in to your State Bar Profile and navigate to the CLE Summary and Tracking Tool. This tool automatically keeps track of all MCLE credits you’ve earned, which were reported to the State Bar. This can be a perk of attending programs sponsored by the Solo and Small Firm Section. The CLE Summary automatically tracks your attendance so you can review the MCLE that you’ve completed and can easily see where you may be deficient.
Second, if you are a member of the Solo and Small Firm Section, you are entitled to 6 free self-study credits as part of your membership. These six credits alone make your membership worthwhile. The best part is that the 6 free hours will completely cover the required special topics of ethics, competence, and elimination of bias. Access those free 6 hours by signing into your State Bar Profile by clicking HERE.
Next, check out the online catalog of programs offered through Solo’s Section by clicking HERE. You can see some of the best speakers and hottest topics recorded from live programs and webinars throughout the state. For those who need “participatory credit,” most of these programs count.
If you haven’t reviewed your MCLE compliance in a while, you should review it soon. If you need additional credits to become compliant, use your free member benefit and complete the 6 free online credits detailed above, check out the online catalog, and consider attending a live program or webinar in the coming year. Taking these simple steps will improve your practice and ensure your compliance with the MCLE requirements.
“Knowledge is power. Information is liberating. Education is the premise of progress in every society, in every family.” ~ Kofi Annan
“A pessimist is one who makes difficulties of his opportunities and an optimist is one who makes opportunities of his difficulties.” ~ Harry S. Truman
“May the forces of evil become confused on the way to your house.” ~ George Carlin
A good source for webinars is the Calendar in the California Bar Journal, showing all of the upcoming webinars from all of the Sections, as well as in-person programs.
Did you know that you can purchase previous webinars and self-studies? Do so HERE!
A. The Solo and Small Firm Section Executive Committee Meeting
Next meeting: December 9, 2017, via teleconference.
Notice and Agenda
Notice and Agenda
Questions regarding any agenda item should be directed to the Section Coordinator, John Buelter, at 415-538-2341 or 180 Howard Street, San Francisco, CA 94105-1639. The order of business is approximate and subject to change.