Events

California employers are again refocusing their efforts on navigating their companies through what continues to be a challenging economic climate.  Part of that strategy must include understanding their obligations under recently enacted legislation and new case law that will significantly impact their businesses in 2010. 
 
Brown Law Group will be kicking off the New Year with its complimentary 2010 Labor and Employment Law Breakfast Briefing series.  Our next seminar will be held on March 24, 2010 at the University Club.  Details will follow shortly, so be sure to save the date.  In the interim, we are happy to highlight just a few of the new laws that could affect your company:

Employers May Not Have a Right to Search Employee's Electronic Messages
 
In Quon v. Arch Wireless, the Ninth Circuit suggested that employers may not have the right to search employee's text messages, even if those texts are sent and received on employer-provided electronic devices.

In Arch Wireless, the plaintiff's employer, a law enforcement agency, noted excessive text message traffic on the employee's company-provided pager. Under the department's policy, an employee was allotted 25,000 characters as part of the plan and was required to pay for characters exceeding that amount.

The employer wanted to determine if the employees were using the system for non-work related matters. It, therefore, contacted Arch Wireless, which provided the text message service and stored archived messages for the employer. Arch Wireless produced the text messages to the employer.  The employer found that the majority of the texts were non-work related.  The employee sued her employer for violation of the Stored Communications Act, and for violation of her right to privacy and to be free from unreasonable searches and seizures under the Fourth Amendment (the Fourth Amendment may be raised against government agencies, such as a police department). 
 
The employer argued that it had a written policy in place stating that employees did not have any reasonable expectation of privacy in electronic devices provided by the company.  As such, the policy effectively destroyed the employee's expectation of privacy in the text messages. However, the Ninth Circuit rejected that argument on the ground that there was testimony from the employer's management-level employees that the announced policy was not to "audit" messages if the employee paid the overage. The promise not to inspect created an expectation of privacy.  Here, the employee paid the overage and, therefore, her expectation of privacy in the text messages remained intact.
 
Further, Arch Wireless violated the Stored Communications Act. Arch Wireless, as an archiver of messages, could not legally disclose the messages without a court order or the consent of both parties to the communication.  As such, whether an employer has a third-party provider archive messages also appears to have an impact on an employer's ability to access messages on company-provided devices.
 
The United States Supreme Court announced on Monday, December 14, 2009 that it will accept review of the Arch Wireless decision.  The Court's ruling is expected in June 2010.  Nevertheless, Companies should revisit their electronic communication policies in light of the Arch Wireless holding to ensure that they are clear and are applied consistently.

California Supreme Court Validates Proposition 8
 
In Strauss v. Horton, the California Supreme Court held that Proposition 8 (requiring that a marriage to be between a man and a woman) was a valid amendment to the California Constitution.  Although California does not recognize same-sex marriages, employers should be aware that same-sex couples who are Registered Domestic Partners enjoy rights almost identical to married persons. Further, California law recognizes same-sex marriages that were legally entered into in other states. Therefore, despite the holding in Strauss, companies should think twice before revising their employment policies in a way that may adversely impact this class of persons.

Additional Amendments to the Family Medical Leave Act
 
On January 28, 2008, the Family Medical Leave Act was amended when President Bush signed into law H.R. 4986, the National Defense Authorization Act ("NDAA").  The NDAA amended the FMLA by allowing employees to take up to 26 workweeks of leave to care for certain family members in the military who suffer a serious injury or illness in the line of duty ("Military Caregiver Leave").  The NDAA also permits an employee to take up to 12 weeks of FMLA leave for "any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation." The family member must be a member of the National Guard or Reserves (not regular military).
 
The October 2009 amendments expands Military Caregiver Leave by allowing family members of veterans to take leave, expanding the definition of serious "injury or illness" for purposes of Military Caregiver Leave, and permitting family members of all covered active duty service members to take exigency leave.
 
Employers should contact experienced employment counsel to update their FMLA policies in light of these new amendments.

Salary Reduction for Furloughed Exemp Workers Does Not Jeopardize Their Exempt Status  
 
The challenging economy spurred businesses to take steps to save money while simultaneously preserving their employees' jobs.  Many private companies followed the government's lead and elected to place their exempt, salaried employees on "furlough" days. 
 
The goal was to prevent layoffs in exchange for employees accepting less hours and less pay proportionally.  However, it was unclear whether implementing this policy for salaried, exempt employees jeopardized their exempt status. 
 
The California Division of Labor Standards Enforcement cleared up that issue for employers in its August 19, 2009 opinion letter addressing that question. While the DLSE now allows employers to implement furlough days for exempt employees, an employer's policy must meet certain requirements before the DLSE will validate it.  Companies are advised to consult with experienced employment counsel before establishing a furlough policy for their exempt employees.

Department of Homeland Security Recinds "No Match Rules"
 
When an employer submits employee information to the Social Security Administration ("SSA"), they will sometimes receive what are commonly known as "no match" letters.  "No match" letters notify employers that an employee's social security number does not match his or her personal information.  Because the SSA did not provide guidance on steps an employer must take upon receiving a "no match" letter, the Department of Homeland Security implemented regulations to address that issue.  However, after union resistance to these regulations, the DHS elected to rescind its regulations effective November 6, 2009.
 
Despite rescinding its guidelines, the DHS nevertheless emphasizes that an employer must respond to a "no match" letter immediately and in a reasonable manner in light of the fact that "Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of constructive knowledge."  However, with no official steps for an employer to follow, employers again find themselves in a quandary.  As such, companies are advised to consult experienced employment counsel when responding to "no match" letters after November 6, 2009.

Genetic Information Non-Discrimination Act ("GINA")
 
The federal Genetic Information Non-Discrimination Act ("GINA") became effective November 21, 2009 and, with very limited exceptions, prohibits employers from acquiring or using genetic information about its employees.
 
While employers' initial reactions may be that they do not gather genetic information about their employees, companies should note that medical information maintained by employers may well include records dealing with family medical history and which may fall within GINA's definition of "genetic information."  As such, the law is likely to affect a wider range of companies than initially imagined.
 
GINA also requires employers to post notices describing the Federal laws prohibiting job discrimination based on previously recognized employment categories, as well as genetic information.  Companies should revise their employment policies to comply with GINA and take measures to comply with GINA's posting requirements.

Alternative Workweek Schedules
 
Alternative workweek schedules allow non-exempt employees in a "work unit" to work in excess of 8 hours per day without incurring overtime. These types of schedules generally present a win-win for both employers and employees alike because they provide workers with schedule flexibility while ensuring that the employer does not incur the additional expense of paying out overtime compensation. 
 
Generally, an employer may propose an alternative workweek schedule of up to 10 hours per day (12 for health care workers). Hours in excess of 10 per day or 40 per week are overtime.  Before implementing such a schedule, however, employees must approve of it through a secret ballot election. Among other things, the new law clarifies that even a single employee may qualify as a "work unit" for purposes of establishing an alternative workweek. 
 
Further, if an employer offers more than one alternative workweek schedule, the "menu" may now include a traditional five-day, eight-hour workweek. Consequently, employees who do not wish to work other than a traditional workweek may still vote in favor of an alternative workweek program without affecting their schedules. 
 
Finally, the new law also permits employees to move from one alternative workweek schedule option to another on a weekly basis.

A 50% Increase in Workers' Compensation Uninsured Employer Penalty
 
An employer failing to procure workers' compensation insurance now faces significantly greater penalties.  Previously, Labor Code § 3722, provided that uninsured employers must pay a penalty in the amount of $1,000 per worker. However, the new law increases the penalty to $1,500 per uninsured worker.  The old law also provided an alternative method for calculating penalties.  That method has also been amended.  Companies should contact experienced employment counsel to determine its potential impact on them.

Conclusion 
 
As always, it is a pleasure to continue assisting your company comply with California's labor and employment laws.  If you would like to learn more about the new legislation and case law discussed in this email, be sure to contact Brown Law Group's Administrative Assistant, Valeina Jack, to reserve your seat at one of our complimentary upcoming 2010 Labor and Employment Law Breakfast Briefings, which will be conducted through March 2010.  Ms. Jack may be reached by email at jack@brownlawgroup.com and by telephone at (619) 330-1700.

Join Brown Law Group at the Lawyers Club Monthly Luncheon, held at the Bristol Hotel in downtown San Diego.  The guest speaker is Byron Walls of California CrimeFight.  Doors open at 11.45 a.m.

12:00 – 1:15p.m. Luncheon and program
$25   Members
$30   Non-Members
$20   Students

Bristol Hotel, 1055 First Avenue, San Diego, 92101

Brown Law Group is a proud sponsor of the 10th Annual San Diego Asian Film Festival.  The San Diego Asian Film Festival is one of the largest exhibitions of Asian international and Asian American cinema in North America. Along with narrative features, the Festival also showcases documentaries, short films, and animation. The 10th Annual San Diego Asian Film Festival takes place October 15-29, 2009 in San Diego.  Visit sdaff.org for details regarding the schedule of programs, screening venues and tickets.
 
We Believe...

…that film is universal. It is a powerful means to shape how people view the world and each other. It helps us understand our past, and sometimes offers a wonderful escape from the present. The Festival aims to serve the broadest audience possible and present the most diverse range of stories that connect us to the human experience.

Part I: Business Entities – featuring Robert W. Blanchard and Karina Juarez is sponsored by the Young/New Lawyers Division & Business Law Section of the San Diego County Bar Association.

The Corporate/Transactions 101 Series focuses on the life cycle of a business entity and aims to educate you on what you need to know in assisting your corporate/business clients to get their business off the ground.

Part I of this four-part series will focus on the distinction between the different types of business entities, incorporation standards and tax implications for a business.

This is a brown bag event. This activity has been approved for MCLE by the State Bar of California - 1.0 GEN. For more information regarding this seminar, visit the SDCBA website at www.sdcba.org.

Location:
SDCBA Bar Center
Bar Center
1333 Seventh Avenue
San Diego, CA 92101

 “Celebrating Five Years of Our Mission, Vision, Advancement and Diversity In the Law” - Join Brown Law Group at the Corporate Counsel Women of Color Fifth Annual Career Strategies Conference in Las Vegas.  Since 2006, Brown Law Group has been a proud sponsor of the Corporate Counsel Women of Color (CCWC). Our support of CCWC is an extension of our commitment to cultivating and maintaining diversity – a benefit when people from varied backgrounds and perspectives bring their expertise and experience together.

Formed in 2004, CCWC provides a support network to in-house women of color and to facilitate networking around the nation and abroad, promote career advancement and the success of in-house women of color, and promote all aspects of global diversity in the legal profession and workplace.

Corporate Counsel Women of Color® currently has a roster of over 2,400 in-house women attorneys of color in the United States, as well as in Canada, Asia, Africa, and Europe.  The conference will be held at the Bellagio in Las Vegas.  For more information regarding CCWC, visit their website at www.ccwomenofcolor.org.

Janice Brown will serve as a speaker at the upcoming American Bar Association’s Tort Trial & Insurance Practice Section (TIPS) Annual Meeting at the Chicago Downtown Marriott in Chicago, Illinois July 30 – August 3, 2009.  Janice will be speaking on the topic “How to ‘Try’ Your Case in ADR” and will demonstrate how trial techniques can enhance advocacy in mediation and arbitration proceedings.  Along with other speakers, Janice will set forth various strategies, forms of evidence and presentations that they utilize in these types of proceedings.  Various negotiation scenarios will be dissected and addressed with the ultimate goal of resolution. 

Deadline to register is July 17, 2009.  For more information, please go to www.abanet.org/tips/

The National Bar Association will be hosting their 84th Annual Conference, for the first time in San Diego, at the Hilton Bayfront Resort, August 1-8, 2009.  More than 2,500 lawyers, judges and legal professionals will gather at the conference to attend various events including:  Judicial Council’s Annual Thurgood Marshall Awards Luncheon, Annual Young Lawyers Division Junius Williams Luncheon, as well as more than 23 NBA section and division seminars and workshops.

Those interested in additional information and registration can go to www.nationalbar.org

Relationships and Resources Event a Win-Win for SDCBA and CalCPA Members

Relationships and Resources, a two-part event held at the SDCBA Bar Center on June 3, proved to be a hit with SDCBA members.  The event included a mixer with the California Society of CPAs (CalCPA) AND A VENDOR FAIR.  With over 200 guests in attendance, the Relationships and Resources event offered tremendous opportunities for network and exploring mutual beneficial business partnerships.  New products and services were also introduced that could assist business professionals in their practices.  – Bar Report, June 24, 2009

Stacy Fode of Brown Law Group (BLG) was in attendance, along with BLG’s Karina Juarez.

To learn more about each of the vendors and the products and services they offer, visit www.sdcba.org/vendorfair.

Mark Your Calendar:  Looking ahead in 2009

• TIPS Section Fall Meeting
   October 6-11, 2009
   Coronado, CA - Hotel Del Coronado

For more information about other meetings and CLE programs of the Tort Trial & Insurance Practice Sections, visit www.abanet.org/tips.

5.00 p.m.  VIP Reception
5.30 p.m.  General Reception
6.30 p.m.  Dinner and Program

Tickets $125 per person for dinner and VIP reception

U.S. Grant Hotel 326 Broadway, San Diego, CA