California Law News: On Brinker, Arbitration, Social Media Access, Health Insurance, Church Solicitations, & More

For your reference, a roundup of legal advisories on issues of relevance to companies doing business in the state of California:

Calif. Assembly OKs Bill To Shield Workers’ Facebook Logins (Mintz Levin – Employment, Labor & Benefits)

“A landmark bill that aims to protect California employees and prospective workers from being asked by a company to turn over their usernames and passwords for their Facebook, Twitter and other social media accounts easily cleared the state Assembly on Thursday. In a 73-0 vote, the full Assembly waved through A.B. 1844, sponsored by Assemblywoman Nora Campos, D-San Jose, that would make clear to employers doing background checks that they have no affirmative duty to look into employees and job applicants’ social media accounts.” Read the update>>

California Legislation Aims to Protect Personal Social Media Account Access by Employers (Barger & Wolen)

“In effort to protect employees and prospective employees, the California Legislature is taking steps to prevent an employer’s ability to gain access to their employees’ or prospective employees’ social media accounts…. AB 1844 is expected to sail through the Legislature with little opposition, though the Governor has not indicated his position on the bill.” Read the update>>

Bill Targets Real Estate Industry And Borrowers (Allen Matkins Leck Gamble Mallory & Natsis LLP)

“… the Senate Committee on Business Professions and Economic Development and the Senate Committee on Banking & Financial Institutions held a joint oversight hearing on hard-money lending in January. Thereafter, the co-chairs of those committees co-authored a bill, SB 978, intended to address these problems. Unfortunately, SB 978 as amended to date imposes significant legal burdens not only on most borrowers but also the entire real estate industry. In effect, the bill requires the building of a haystack of new filings to find some needles of information about hard-money lenders.” Read the update>>

Arbitration Agreement Between Purported Employer and Employees Unconscionable, Court of Appeal Rules (Barger & Wolen)

“In Samaniego v. Empire Today, Plaintiffs worked as carpet installers for Defendant, Empire Today. When they were initially hired, and again later during their employment, Plaintiffs were given form contracts and told to sign them if they wanted to work for Empire. The contracts contained arbitration provisions. Plaintiffs later filed a putative class action challenging Empire’s allegedly unlawful misclassification of its carpet installers as independent contractors. The complaint alleged numerous Labor Code violations, include wage and overtime claims.” Read the update>>

Church Members Prohibited From Soliciting Donations In Front Of Grocery Store (Kronick, Moskovitz, Tiedemann & Girard)

“Church members can be permanently barred from soliciting donations outside a stand-alone grocery store, under a recent court of appeal ruling (Ralphs Grocery Company v. Missionary Church of the Disciples of Christ). The court found that the rulings which allow unions to pass out literature outside a store advocating the boycott of the store do not apply to solicitation of donations, and the rulings which compel shopping malls to allow solicitation do not apply to a single retail store.” Read the update>>

CA Employers Should Start Getting Commission Agreements in Writing (Ford & Harrison LLP)

“Under a new California law, by January 1, 2013, for any employee whose wages involve commissions, all commission agreements with employees must be in writing, specifically setting forth the method by which commissions are computed and paid. The new law provides that the written agreement must set forth how commissions are computed, and how they are to be paid. Additionally, the employer must provide a copy of the agreement to the employee. The employer must also retain a ‘receipt’ signed by the employee, indicating that the employee was provided a copy of the agreement.” Read the update>>

Brinker’s Unique Impact on the Health Care Industry (Sheppard Mullin Richter & Hampton LLP)

“Much has been written about the [California] Supreme Court’s recent holding in Brinker Restaurant Corp. V. Superior Court and its impact on meal and rest period rules. Somewhat hidden away in the opinion, however, are several important holdings from the court about the unique meal period regulations that apply to the state hospitals.” Read the update>>

Significant Changes to California’s Mechanics Lien Law Coming July 1, 2012 (Pillsbury Winthrop Shaw Pittman LLP)

“Effective July 1, all of the existing statutes governing mechanics liens, stop notices and payment bonds in California will be repealed and replaced by updated statutes. In September 2010, Governor Edmund G. Brown, Jr. signed into law SB 189, which makes a number of significant changes to the laws governing the creation and enforcement of mechanics liens in California. The law will also result in new statutes governing stop notices (on both public and private works), payment bonds and related claims.” Read the update>>

California Assembly Passes Bill Requiring Health Insurance Filing and Disclosures (Barger & Wolen)
“On May 3, 2012, the California Assembly passed a bill that would require health insurers that are regulated by the Department of Insurance to submit information to the department when the insurer plans to terminate its contract with a provider group or hospital. The bill also would require insurers to provide insureds with additional disclosures. The 80-member Assembly passed Assembly Bill 2152 with a 46-25 vote.” Read the update>>

Employee’s Wage Deduction Claim Not Preempted By Federal Law, Court of Appeal Determines (Barger & Wolen)

“In Sciborski v. Pacific Bell Directory, the California Court of Appeal, Fourth Appellate District, Division One, determined that an employee’s claims for wage deductions under California Labor Code 221 was not preempted by section 301 of the Labor Management Relations Act. Sciborski was a sales representative at Pacific Bell, selling advertising for Pacific Bell’s Yellow pages. She was a member of a union, and the terms and conditions of her employment were governed by a collective bargaining agreement. Sciborski was paid a commission on completed sales.” Read the update>>

Hidden Problems within Sabbaticals and Other Professional Development Leave Programs (Mintz Levin)

“A sabbatical program which is ambiguous or silent on the post-termination rights of employees may yield a surprise for an employer contesting payment of the value of the benefit upon an employee’s termination. A California appeals court recently evaluated this issue in the case of Paton v. Advanced Micro Devices, Inc. The underlying facts addressed whether an employee who would vest in an eight week sabbatical after completion of seven years of service should have such period treated as vacation leave or a ‘true sabbatical.’” Read the update>>

Agreement with California Attorney General May Set Floor for Privacy Protections for Users of Mobile Applications (Barger & Wolen)

“Amid growing concern about their personal information being pulled by mobile applications (‘apps’) and taking a lead from the Federal Trade Commission, whose recent report raised concerns about the lack of privacy information available to mobile app users before download, California Attorney General Kamala Harris announced a privacy agreement with the six largest mobile app providers – Amazon, Apple, Google, Hewlett-Packard, Microsoft and Research in Motion – that will impact how millions download apps to their smartphones, tablets, and other mobile devices.” Read the update>>

Facebook, Inc. And CalEASI (Allen Matkins Leck Gamble Mallory & Natsis LLP)

“In 1996, the California legislature enacted SB 261 (Beverly) which established an exemption, Corporations Code Section 25102(o), for the offer or sale of securities by a corporation pursuant to an option plan or agreement provided that specified conditions are met. Four years later, the legislature amended Section 25102(o) to include securities issued by limited liability companies… In 2001, the Business Law Section of the California State Bar successfully sponsored legislation making it clear that the failure to file the notice or to file within the period prescribed by statute does not vitiate the exemption.” Read the update>>

Employers Are Wise to Avoid English-Only Policies in Most Circumstances (Hopkins & Carley)

“Organizations adopting such policies often believe that so-called ‘English only’ rules enhance communication among employees and prohibit behavior that is rude or inconsiderate to employees who speak only English. The law permits implementation of English-only policies only in very limited circumstances, however, and employers may expose themselves to liability if they adopt such a policy without careful consideration. Both state and federal law regulate an employer’s ability to adopt policies limiting the use of a language in the workplace.” Read the update>>

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