On February 1, 2018, practicing members of the State Bar of California in Group 2 (H-M) will need to report compliance with the Bar’s MCLE requirements. The Business Law Section (BLS) is proud of the live programs and webinars it offers to California practitioners. To sign up for previously-presented programs, including special requirement credits (legal ethics, elimination of bias, and competence issues), click HERE.
In addition to the above library of previously-recorded programs, the BLS offers the following upcoming live webinars for lawyers, including members of Group 2 who are still completing their MCLE hours: READ MORE
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.
The Partnerships and Limited Liability Companies Committee (the “PLLC Committee”) and the Opinions Committee of the State Bar Business Law Section are pleased to announce that their report, Third-Party Closing Opinions: Limited Liability Companies and Partnerships (the “Report”), has just been published by the State Bar of California . The Report is now available for purchase at the State Bar’s website, here. Purchasers will receive a print paperback copy of the Report as well as a postcard with a link to the digital “e-book” version of the Report.
The Report updates and supersedes entirely the PLLC Committee’s 1998 Report on Legal Opinions Concerning California Partnerships and its 2000 Report on Legal Opinions Concerning California Limited Liability Companies (collectively, the “Prior Reports”). It reflects the major changes in applicable law—notably the California Revised Uniform Limited Liability Company Act (Cal. Corp. Code §§17701.01–17713.13) and the Uniform Limited Partnership Act of 2008 (Cal.. Corp. Code §§15900–15912.07)—as well as the changes in opinion practice since publication of the Prior Reports. Read More
Thursday, January 25, 2018, 12 noon - 1 p.m.
This program offers 1 hour participatory MCLE credit. You must register in advance to participate.
The speakers will discuss the considerations for choosing whether to form a limited liability in California or Delaware. They will explore the default provisions in Delaware and California law, and they will discuss those laws that cannot be overridden by agreement of the parties. There will be a focus on the fiduciary duties of managers.
Speakers: Rachelle Cohen and Stephen Halper
Tuesday, January 30, 2018, 12 noon - 1 p.m.
This program offers 1 hour participatory MCLE credit, including legal specialization in Franchise & Distribution Law. You must register in advance to participate.
The program will discuss the impact of business regulation upon a variety of everyday transactions that may carry various disclosure, registration and licensing requirements and that may entail significant liability for noncompliance. The discussion will address the following types of scenarios that may be subject to specific business regulation:
Speakers: Gerard Davey and Michelle Jacko
As a member of the Business Law Section
(BLS), you already know that the BLS is a leading force for all California
business lawyers. Starting well more
than one year ago, the BLS stepped forward to help lead the movement of all
Sections of the State Bar of California into a new structure, to better serve
our more than 8,000 members. We
succeeded in our efforts. Now, starting
January 1st, with the full blessing of the State Bar of California, both houses
of the state Legislature, the Governor, and the Chief Justice of the California
Supreme Court, the BLS and the 16 other former Sections of the State Bar of
California, including the California Young Lawyers Association, will step up to
become the California Lawyers Association (CLA), a nonprofit, voluntary
organization supported directly by members like you.
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.
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 Trade Secrets Practice in California. 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 trade secrets protection, workplace issues, trade secrets isappropriation, procedural issues in litigation, and insurance issues. READ MORE
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.
Help a Victim of Domestic Violence
The Women Lawyer’s Association of Los Angeles (WLALA) is looking for attorneys to volunteer one hour per month at the WLALA SOJOURN LEGAL CLINC. The free clinic is open every Monday from 6:00 p.m. to 7:00 p.m. and volunteers are asked to commit to attend at least once per month. The clinic is hosted by Sojourn, which is a provider of services to victims of domestic violence, and is held in Santa Monica, California. Attorneys who volunteer at the clinic each week are there to answer legal questions but do not represent clients.
The vast majority of WLALA SOJOURN CLINIC attendees need assistance with obtaining or maintaining a restraining order and are enmeshed in family court issues – divorce, custody, restraining orders, etc. Many have basic questions about the court process, what is appropriate to say to a judge, and how to prepare for a hearing. A few come with questions about criminal court issues, and a few are struggling with Dependency Court. Occasionally, attorneys are asked about landlord/tenant issues, bankruptcy, small claims, etc. The clinic provides an extensive guide on the basics of family law for volunteers as well as periodic trainings for volunteers. For more information please contact firstname.lastname@example.org.
If you know of other opportunities for pro bono help from BLS members, please contact Dennis Wickham, email@example.com.
We all know that social media can help drive new business. 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, Dennis J. Wickham (firstname.lastname@example.org) 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.
Business Law Section
California Lawyers Association
180 Howard Street, Suite 410
San Francisco, CA 94105-1639