Current News and Events from the State Bar of California Business Law Section.
Here is your December eNews from the Business Law Section (“BLS”) :
This is the last edition of eNews from The State Bar of
California Business Law Section. On
January 1, 2018, the BLS will become part of a new independent organization
called the California Lawyers Association. More information regarding the CLA can be found here:
http://cla.legal. But, the eNews will continue to bring you
information and events from the committees of the Business Law Section of the
CLA in the new year.
Why are the Sections separating from the State Bar?
The California Legislature passed a law, SB 36, following discussion with the State Bar and Sections with input from the Chief Justice of the California Supreme Court. Separation will allow the State Bar to focus on admissions and discipline.
When will the separation occur?
January 1, 2018
What is the new entity?
The California Lawyers Association is a 501(c)(6) nonprofit organization. The Bar, Sections volunteers and others are working together to ensure that the entity is fully operational for a seamless transition by January 1, 2018.
Who is in charge of the separation activity?
The separation process has been conducted jointly by State Bar staff and the Council of Sections, the leadership body through which all Sections interact. Pam Wilson & Associates was selected as the Sections’ consultant to assist in the transition. Pam Wilson served as Senior Director of Education for the State Bar and retired last year after 36 years of service to the Sections.
Where are the Sections going?
The California Lawyers Association will be the new home for the Sections effective January 1, 2018. The staff and employees will be located for at least six months in subleased space at the State Bar headquarters at 180 Howard Street in San Francisco, California.
What do I have to do to become a member of CLA?
If you are now a member of any one or more Sections, your membership will continue in the CLA until the end of the year, unless you affirmatively terminate your membership. Your Section membership will be renewed when you pay your license fees to the State Bar. Section dues will remain the same through 2018.
Will CLA offer the same education offerings, events, and conferences that are offered by the Sections now?
Yes. The CLA will continue to offer the same quality educational programs, conferences and events as they have in the past. Current Section membership benefits, such as Newsletters and eBulletins, will continue. The CLA looks forward to offering even more as a new entity separate from the regulatory Bar.
Who tracks my MCLE activity after separation?
The State Bar will continue to do so through its website. You will report your MCLE certification to the State Bar as you now do. You do not report your MCLE certification to CLA.
Will the CLA operate differently from the way the Sections operate now?
There will be virtually no change from the current Section operations. The goal is to make the transition entirely seamless to Section members. Every service that is now available will continue to be available and will be provided with greater efficiency and speed. There are two major changes. First, as an independent, non-profit entity, the CLA will not be compelled to operate under restrictions on communication, operations and policy that are required of government agencies. Second, the CLA will operate pursuant to a legislatively mandated “one section one vote” principle, whereby each of the 17 Sections elect a representative to serve on the CLA Board and all Sections, large and small, will have an equal voice in governance.
The CLA’s extensive membership represents the vast diversity of
California’s legal community and the various areas of law practiced throughout
the state. Innovative and dedicated, we
deliver high-quality programs, events, and resources and continuously seek new
ways to expand our offerings. Through premier educational and networking
opportunities, our members can maintain expertise in their respective fields,
build contacts, and uphold the legal profession. Under our new mantle, as an independent
entity, we are better able to provide greater value to our members, including
direct communication with the California Legislature, and be more responsive to
our members’ needs. Together, we are committed to fostering excellence and
fellowship throughout the California legal community.
During January 2018, the inaugural Board and members of the CLA
will be nominating and electing CLA’s new officers and kicking off the year
with an in-person meeting of the CLA Board, and with an all-Sections leadership
and educational chairs summit. Our
formative bylaws, operating procedures and policies and initial budgets will be
adopted at this same time. We will be up
and running, with no interruption in services, education programs,
publications, statutory and case law updates, and legislative analysis,
commentary and proposals. In short, we
rise as a rejuvenated and even stronger BLS, part of the CLA, the bar
association for all California lawyers.
BLS members are invited to the 2018 Symposium presented by the William A. Ingram Inn, American Inns of Court, addressing implicit bias and its effects on the fair and impartial adjudication of disputes in our courts and, more broadly, in the administration of justice. Do the implicit (or unconscious) biases of attorneys, judges, jurors affect their decision-making in the legal system? How can concerned judges and attorneys anticipate and address instances of juror bias? How viable is the theory of implicit bias in the realm of judicial decision-making and how should courts and responsible governmental units address the prospect of prejudicially influenced decision makers? To what extent do policy officers exhibit implicit racial bias in the discharge of their duties in the administration of the criminal justice system and how can such unconscious bias be overcome by police?
Date: Wednesday, January 17, 2018
Time: 6:00 – 6:45 p.m. Reception – Adobe Lodge
7:00 – 8:15 p.m. Panel Discussion – Recital Hall, Music and Dance Building
Judge Mark W. Bennett is Senior District Judge for the Northern District of Iowa and a nationally known expert on the administration of justice in the courts. He has trained more than 1500 trial and appellate judges from Alaska to Florida on the implicit bias in the legal system and has published more than 1400 judicial opinions.
There is no charge to attend. Note: The State Bar of California is not a sponsor of this event, but the event has been approved for 1.25 hours of ethics credits. R.S.V.P. NO LATER THAN JANUARY 12, 2018.
The Insolvency Committee published an eBulletin with an analysis of the recent changes to these Federal Rules. The eBulletin
can be found here.
Courtesy of CEB, we are bringing you selected legal developments in areas of California business law that are covered by CEB’s publications. This month’s feature is from the November 2017 update to Drafting Employment Documents for California Employers. References are to the book’s section numbers. See CEB’s BLS Landing Page for special discounts for Business Law Section members. The most significant legal developments since the last update include developments in such important topic areas as treatment of job applicants with criminal histories, equal pay, arbitration issues, immigration issues, choice of forum and choice of law clauses, unlawful workplace policies, and union activities.
DRAFTING EMPLOYMENT DOCUMENTS FOR CALIFORNIA EMPLOYERS
Selected Developments (November 2017)
Job Applicants With Criminal Histories
The California Fair Employment and Housing Council has issued new regulations (effective July 1, 2017) regarding the use of criminal history information in making employment decisions. See 2 Cal Code Regs §11017.1; see also §1.3.
Effective January 1, 2017, a criminal "conviction" for purposes of Lab C §432.7 does not include any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court. Lab C §432.7(a)(3). Another amendment of Lab C §432.7 provides that a prospective employer may not ask a job applicant about "any arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court (Lab C §432.7(a)(2)). Together, these measures make a job applicant's juvenile criminal record off-limits as a subject of inquiry for nearly all potential employers. See §1.4.
Effective January 22, 2017, the City of Los Angeles has a "ban-the-box" law comparable to the one adopted in San Francisco in 2014, termed the "City of Los Angeles Fair Chance Initiative for Hiring" (Los Angeles Mun C §189 and Los Angeles Admin C §10.48). City contractors or private employers in the City of Los Angeles with 10 or more employees are subject to new restrictions on inquiries about job applicants' criminal histories. See §1.4.
Time off for Victims of Domestic Violence, Sexual Assault, or Stalking
Effective January 1, 2017, an employer having 25 or more employees must inform each new employee of his or her right under Lab C §§230(c), (e), and (f) and 230.1 to take protected time off because of domestic violence, sexual assault, or stalking. New employees must be notified of this right on hire, and current employees on request. See §1.6. (Note that the Hiring Document Guide table in §1.6 has been updated.)
Under California's Fair Pay Act (Lab C §1197.5), an employer may not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. Lab C §1197.5(a). Prior salary does not, by itself, justify any disparity in compensation. Lab C §1197.5(a)(3). See §1.14.
In Carbajal v CWPSC, Inc. (2016) 245 CA4th 227, the court held that the employer's failure to provide a copy of the governing American Arbitration Association (AAA) rules and its failure to clearly identify which AAA rules would govern disputes between the employer and its employees increased the level of unconscionability in the employer's arbitration agreement. But see Baltazar v Forever 21, Inc. (2016) 62 C4th 1237, in which the California Supreme Court held that the failure to attach the AAA rules was not unconscionable when the challenge to enforcement of the arbitration agreement was not directed at the content of the rules themselves. See §1.17.
In McGill v Citibank, N.A. (2017) 2 C5th 945, the California Supreme Court held that an arbitration provision that requires a party to waive a statutory right to seek public injunctive relief in any forum is contrary to California public policy and unenforceable. See §1.17.
In Farrar v Direct Commerce, Inc. (2017) 9 CA5th 1257, the court of appeal opined that a court should limit rejection of an entire arbitration agreement to those situations in which the agreement is "permeated" with unconscionability; if an unconscionable provision can be severed, the rest of agreement can be enforced. See §3.7B.
The U.S. Supreme Court is reviewing the issue of whether an arbitration agreement between an employer and a nonsupervisory employee that includes a waiver of the employee's right to bring or participate in a class or collective action violates the National Labor Relations Act (NLRA) (29 USC §§151–169). See NLRB v Murphy Oil USA, Inc. (2017) 137 S Ct 809. There is a currently a split among federal appellate circuit courts on the issue. See §3.62.
If an employment arbitration agreement is silent on class arbitration, the court may not order class arbitration under an arbitration agreement governed by the FAA unless all parties have agreed to class arbitration. Sandquist v Lebo Auto., Inc. (2016) 1 C5th 233, 260. See §3.62.
In Tanguilig v Bloomingdale's, Inc. (2016) 5 CA5th 665 and Betancourt v Prudential Overall Supply (2017) 9 CA5th 439, the court of appeal held that a PAGA representative claim is nonwaivable by a plaintiff-employee via a predispute arbitration agreement, and that a PAGA claim (whether individual or representative) cannot be ordered to arbitration without the state's consent. See §3.62.
In Poublon v C.H. Robinson Co. (9th Cir 2017) 846 F3d 1251, the Ninth Circuit held that the waiver of a PAGA representative claim was unenforceable, but not unconscionable; the rest of the arbitration agreement could be enforced if the waiver was carved out. See §3.62.
USCIS released a revised version of Form I-9 on July 17, 2017. As of September 18, 2017, employers are required to use the revised form with a revision date of 07/17/17 N. The Consular Report of Birth Abroad (Form FS-240) has been added to the I-9's "C" list of acceptable documents, and other minor changes have been made to the list. See §§2.4B, 2.45.
On September 5, 2017, the Department of Homeland Security initiated the phase out of the immigration program known as Deferred Action for Childhood Arrivals (DACA). See §2.48.
Choice of Forum and Choice of Law Clauses
Effective January 1, 2017, Lab C §925 restrains the ability of employers to require employees to litigate or arbitrate employment disputes (1) outside of California, or (2) under the laws of another state. The only exception is when the employee was individually represented by an attorney in negotiating an employment contract. Thus, the statute generally forbids employers to require California employees to adjudicate claims outside of California or to submit to the laws of another state. An employee who successfully sues to void such offending provisions can recover his or her reasonable attorney fees. Although the law took effect January 1, 2017, it only applies prospectively to employment contracts "entered into, modified, or extended on or after January 1, 2017." See §§3.65, 7.27.
Unlawful Workplace Policies
The National Labor Relations Board (NLRB) has ruled that an employer may be liable for certain unlawful workplace policies when the employer fails to take steps to "repudiate" the policies, even when the employer revised the policies to comply with federal labor laws. Bosch Imports, Inc. v NLRB (1st Cir 2016) 826 F3d 558. See §9.2.
Employee Break Time
Labor Code §226.7 requires that employers relinquish any control over how employees spend their break time and relieve their employees of all duties, including any obligation that employees remain on call. A rest period must be a period of rest. Augustus v ABM Security Servs., Inc. (2016) 2 C5th 257. See §9.10.
Proposed EEOC Guidance on Unlawful Harassment
The Proposed Enforcement Guidance on Unlawful Harassment published by the U.S. Equal Employment Opportunity Commission (EEOC) on January 10, 2017, expects employers to be proactive in eliminating workplace harassment. See https://www.regulations.gov/docket?D=EEOC-2016-0009; see also §9.30.
Employers should be aware that it is unlawful to take an adverse employment action against an employee for engaging in "concerted activities" for the purpose of mutual aid and protection with respect to union activities. When an employer takes the position that it took the adverse action for reasons unrelated to the employee's protected activity, courts have relied on the "mixed motive" test set forth in Wright Line (1980) 25 NLRB 1083. However, some courts have not applied the Wright Line test when the alleged misconduct did not take place during the protected activity. See MCPc, Inc. v NLRB (3rd Cir 2016) 813 F3d 475; see also §9.31.
Paid Sick Leave Benefits
In 2017, the City of Los Angeles enacted rules regarding paid sick time benefits that apply to all employees. See §11.2.
The 15 BLS Standing Committees publish eBulletins announcing developments in their area of law and upcoming events open to BLS members. Click HERE to sign up to receive these eBulletins from any BLS Standing Committee completely free of charge.
Legal Support Needed for
Survivors of the California Fires
Legal services organizations have been flooded with requests for
help following the fires in California. The State Bar of California has a
number of resources to help attorneys willing to help with the recovery.
Attorneys can sign up online with the State Bar to be notified
about pro bono opportunities related to the fires. Contact Sharon Ngim at
Elizabeth Hom at
the State Bar of California Office of Legal Services for questions.
To sign up to become a
Online training and technical assistance are available. Once attorneys have been trained in providing
legal help after a disaster, they can volunteer to provide pro bono legal
services with a disaster response team.
If you know of other opportunities for pro bono help from BLS
members, please contact Dennis Wickham,
Did you know that the BLS maintains a presence on LinkedIn, Twitter, and Facebook where it posts regular updates about new cases, new regulations, key legislative developments, and news and events from the BLS’s Standing Committees? What you may not know is that you can not only send items to the BLS to post or tweet, but also suggest items from your own social media pages for the BLS to re-post, re-tweet, or like. Doing so expands the reach of what you have to say to everyone who likes or follows the BLS on its various social media platforms, and may result in the BLS following you! Please submit your suggested items for consideration or direct any questions to BLS Social Media Coordinator, Reno Fernandez (reno@MacFern.com) and join the ever-expanding discussion!
Standing Committees continue to accept applications to fill vacant seats. Practitioners and other legal professionals who are members of the BLS and who have at least five years of experience are eligible to apply. Membership on a committee affords unique opportunities to participate in the creation of law in your practice area, to get to know and be known by other practitioners, to work with the recognized leaders in your field, and to stay on the cutting edge of developments and practice techniques. Membership is a rewarding experience that keeps one ahead of, and in touch with, business law developments. Most committees meet once a month, often by phone. A description of the required commitment and application process, along with a link to the application, can be found HERE.
The BLS achieves its goals through the work of its 15 Standing Committees. You are invited to attend the regular monthly meeting of any BLS Standing Committees (see below for meeting dates). These monthly meetings provide attendees an excellent opportunity to chat with committee members and other lawyers with a similar expertise. Some committees even offer free MCLE credit! Please see the contact person listed below to RSVP or request more information. Follow us on Twitter @calbarbuslaw. Use a Standing Committee’s hashtag to search for tweets by that committee in its designated field and to re-tweet.
For a list of upcoming meeting dates and contact persons, click HERE.
Dennis Wickham, Editor-in-ChiefKristina Del Vecchio, Contributing Editor
Dennis Wickham, Editor-in-Chief
Cathryn S. Gawne, Contributing Editor
Kenneth Minesinger, Contributing Editor
Corey R. Weber, Contributing Editor
Monique D. Jewett-Brewster, BLS Vice Chair of Publications
Uzzi O. Raanan, BLS Chair
For contact information, see the Executive Committee Roster HERE.
To join the BLS and receive membership benefits