ACC Focus on the San Diego Chapter - February 21, 2011 (Print All Articles)
March MCLE - 2011 Federal Regulatory and California Marketing Law Updates
Please join us for a discussion of:
* FTC Proposed Green Guides: Developments and Anticipated Activity
* Consumer Products and the New Public Database in the CPSC
* Developments and Trends for California's Prop 65
* Antimicrobial and cleaning claims - Review of recent EPA actions
Belinda May, SNR Denton
Gary Roberts, SNR Denton
Kit Smith, SNR Denton
11:30 - Noon Registration and Lunch
Noon - 1:00 Program
Credits: 1 Hour
12400 High Bluff Drive
San Diego, CA 92130
March Brown Bag Program - TBD Corporate Governance Topic
11:30 - Noon Registration and Lunch
Noon - 1:00 Program
Credits: 1 Hour
4401 Eastgate Mall
San Diego, CA 92121-1909
No Charge. Lunch is Graciously Provided by the Sponsor
March Brown Bag Program (Rescheduled from February) - Tax Planning in 2011:The Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010: What it Means to Your Company, its Owners and Employees
In December 2010, Congress passed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the "Act"). Although it extended the Bush Tax Cuts, it also changed the rules on depreciation and reform the estate and gift tax. This program will discuss some of the planning opportunities and pitfalls brought about by the Act.
Phil Jelsma, Partner, Luce Forward
11:30 - Noon Registration and Lunch
Noon - 1:00 Program
Credits: 1 Hour
12400 High Bluff Drive
San Diego, CA 92130
No Charge. Lunch is Graciously Provided by the Sponsor
Technology Practice Group - Approvals of Usage of Open Source Software
Join us for a Technology Social Hour and Roundtable Discussion on technology hot topics.
Please register with the contact.
4:30 - 5:00 Registration and Networking
5:00 - 6:30 Roundtable Discussion and Networking
12255 El Camino Real, Suite 300
San Diego, MN 92130
International Law Practice Group - Key Legal Issues for US Companies Entering Latin America
Please join us for a discussion focusing on key areas of concern for US investors making acquisitions or starting operations in Latin America as compared to what they would encounter in doing the same thing in the US.
Because of the differences in the systems in these countries and the way that business is conducted, any entity looking to enter, whether through a greenfield start up or a purchase, will have material issues to deal with in these 4 areas.
Stuart Berkson, Partner in the Corporate and Securities Group
Larry Nishnick, Of-Counsel in the Corporate and Securities Group
Please register with the contact.
7:30 - 7:45 Registration and Breakfast
7:45 - 8:45 Roundtable Discussion
4365 Executive Drive, Suite 1100
San Diego, CA 92121
Family Fun Day at The Wild Animal Park - May 1, 2011 - Save the Date!
Join us as the
San Diego and Southern California ACC chapters host this fun event together with Lexis-Nexis! Don't miss the food, fun and magical memories!
Bar Night at the Opera - Save the Date
Job List - February 21, 2011
Job List, February 21, 2011
Listings that are new in this edition are shown with an asterisk *
Please remember, if your company has a job opening, please let us know by contacting our new Editor, Rebecca Grossenbacher at firstname.lastname@example.org so we can include your opening in our biweekly announcement. Exceptional targeted marketing for free!!
Do you wish your company could be listed at the top of our list? Contact us directly with your opening. And you can help make this Job List more successful: Put this Job List in the hands of your HR department so that they know how to advertise for in-house attorneys, when the time comes. Take action now!
SENIOR CONSUMER REAL ESTATE LENDING ATTORNEY
Union Bank, San Diego
Source: Member Referral
Union Bank, N.A. seeks a senior consumer real estate lending attorney to provide legal support to its Consumer Lending Division. The position may be located in Los Angeles, San Diego or San Francisco. Provide legal counsel to Union Bank's Consumer Lending Division on federal and state mortgage and consumer lending requirements, including TILA, RESPA, ECOA, Fair Lending, HMDA, FCRA and Dodd-Frank; Provide legal counsel on state and local consumer and real estate laws relating to origination, servicing, workouts and foreclosures; Review of the bank's consumer mortgage and lending documentation;
Keeps informed of state and federal legislative and regulatory proposals which would affect the bank; Assist in planning and policy setting for the consumer lending business; May take an active role in education and training of less experienced counsel or paralegals or clients; and Serve as consultative resource to other Union Bank in-house counsel as to assigned subject matter area. Qualifications: Candidate must be a member of the California State Bar or otherwise qualified to practice law in California as in-house counsel; Minimum 15 years experience with a law firm and/or in-house in national consumer real estate lending, including origination, servicing, workouts and secondary markets; Demonstrated ability to provide clients counsel and guidance on matters ranging from complex legal questions or inquires to routine day-to-day legal matters;
Ability to analyze and research complex legal issues and translate such research and analysis into practical and effective advice to clients; Thorough knowledge of multi-state real estate consumer lending practices, documentation, legal and regulatory requirements; Excellent issue spotting, risk assessment and problem solving skills; Strong written and verbal communication and interpersonal skills; Excellent organizational skills and attention to detail; and Flexibility and adaptability to changing priorities and deadlines. Please apply online at www.unionbank.com
InteWest Capital Corporation, La Jolla
A successful real estate investment firm located in La Jolla, CA is looking for an in house general counsel. Requirements: Juris Doctor degree. The candidates need to have a minimum of 10 year experience in the following areas: Real Estate Transactions. Loan Documents. Joint Venture, Partnership and LLC Agreements. Lease Agreements. Purchase and Sale Agreements. Loan Modifications. Bankruptcy Proceedings. A real estate asset management experience is a plus. To Apply: email@example.com
HP, San Diego
This attorney will work in the legal team for HP's Imaging and Printing Group (IPG), one of the three major business groups within HP, one of the world's largest technology companies. IPG is the leading imaging and printing provider in the world for printer hardware, printing supplies and managed print solutions, spanning customer segments from consumers, small to medium businesses to large enterprises. In particular, this attorney will support IPG's growing retail publishing and web based business units and the global logistics business units. This position will manage legal solutions for the client at a business unit level and will involve both inbound, partner and customer facing transactions. The attorney in this position will: Develop new ideas and methods to effectively address recurring legal issues or matters facing multiple client organizations. Identify and resolve complex legal issues. Design and implement processes to enable efficient and effective legal support of high volume work-flow. Contribute to complex multidimensional projects or transactions. Demonstrate flexibility and creativity in enabling business goals while managing legal risk.The attorney for this role will need to be able to work efficiently and effectively at a high level in a fast paced environment. Proven interpersonal skills both in a personal and virtual environment, leadership and time management skills are required. Areas of legal expertise that will be required include contracts, antitrust, intellectual property, negotiations, marketing, and privacy. Specific and extensive multi-year experience are required in drafting and negotiating contracts and agreements involving marketing and promotional activities, supply chain and procurement purchases, inbound and outbound licensing, and intellectual property matters(trade secrets, licensing, patents, and copyrights). This candidate must be a self-starter while working closely with other members of the IPG legal staff. Education and Experience Required: Advanced university degree in law (e.g. JD or LLB). Meets local legal license requirements. Typically 6-10 years commercial legal experience at a law firm or in-house. Advanced level of experience in one or more general or specialty law practice areas acquired through being a leading resource in-house or in similar industry or law firm environment. Knowledge and Skills Required: Areas of legal expertise required include contracts, antitrust, intellectual property, negotiations, marketing, and privacy. Specific attributes should include extensive experience in drafting and negotiating contracts and agreements involving marketing and promotional activities, supply chain and procurement purchases, inbound and outbound licensing, and intellectual property matters(trade secrets, licensing, patents, and copyrights). Strong interpersonal skills, time management and leadership skills are required. Advanced breadth and depth of practical legal and relevant business knowledge. Recognized subject matter expert in one or more practice areas. Strong knowledge of company policies and procedures. Awareness of the international legal environment. Advanced skills and experience in negotiating or advising on complex or high Value/risk matters or in specific practice areas. Proactive and effective communicator of valuable information to clients and colleagues. English language skills to business standard strongly preferred. Consultative Legal Leadership. Provides collaborative, consultative leadership in advising and educating management and business stakeholders from a legal perspective. Stakeholder Negotiation & Commitment Building. Collaborates effectively with others to ensure shared commitment to an enterprise and mutually beneficial results. Ethical & Value-Based Management. Builds and personifies the corporate business practices and ethical environment essential for retaining investor, employee, market and customer trust. Legal Fundamentals. Adversarial Business Ventures (national/international). Understands the legal challenges involved in advising business decision-makers on major domestic or foreign business or government transactions. Intellectual Property (IP) Law. Understands the intellectual property component of contemporary business transactions, and how this impacts the business interests & health of HP. Employment/Employee Relations. Understands the legal dimension of employee/employer relationships within area-of-control, and ensures compliance to these obligations. Legal Financial Analysis/Accounting. Understands the interrelationship of financial accounting and business law, as this impacts key financial products & processes. Litigation Skills. Understands the processes, methods and challenges of civil litigation, and in winning a legal remedy for the benefit of HP. HP Standards of Business Conduct. Acts as a key corporate officer in area-of-control for assessing and aligning specific situations for compliance to HP's Standards of Business Conduct. Professional Change Management. Develops methods for supporting innovation and change across the organization. Problem Solving. Approaches problems in a rational manner using sound strategies that ensure comprehensive understanding and effective resolution. Global Projection.
Represents HP across geographical boundaries with the cultural sensitivity and business maturity appropriate to corporate access and level of responsibility involved. To Apply: https://hp.taleo.net/careersection/2/jobdetail.ftl?job=2376293&src=JB-12042
*CONTRACT IN HOUSE JUNIOR LITIGATION ATTORNEY (PART TIME / TEMPORARY)
Unnamed Company, Rancho Bernardo
Our client, a company in the Rancho Bernardo area, is seeking a part-time junior contract litigation attorney to assist with litigation management. Responsibilities will include assisting the general counsel with legal research, responding to subpoenas, document collection, review and production, drafting objections, gathering information, and the like. They are seeking a candidate with the following: 1-4 years of experience in commercial litigation; excellent academic credentials from top schools; active CA bar membership in good standing; and the ability to work on-site at the client's offices (i.e., no telecommuting). The hours will vary depending on the client's needs and the demands of the litigation schedule. In some weeks there may be little or no work, while in others the hours may be closer to half or full-time. This is the perfect position for those candidates who have flexible schedules and can adapt to a varied schedule. This is not the right opportunity for candidates who are seeking steady full-time work or those with their own law practice/clients. To Apply: http://jobview.monster.com/Contract-In-House-Junior-Litigation-Attorney-Job-Rancho-Bernardo-CA-96294550.aspx
American Water, Coronado
To provide legal counsel and representation to the leadership team on a variety of legal risks and opportunities, (regulation, litigation; employment; labor; business development; environmental, etc.) and other business matters. To serve as the Vice President/Legal for California American Water. Managing a department of four lawyers and three support staff. Provide advice and counsel on a pro-active basis to executives, senior managers and employees in respect to legal issues affecting the business. Meet internal customer's legal needs. Assist in the maximization of quality, cost and efficiency of acquired outside legal services. Serve as a member of the Functional Legal Team. Support the Division General Counsel in building the capabilities of the functional legal team. Be a source of high caliber legal resources for the business. Assist, direct and participate in judicial and administrative proceedings, with "first chair" responsibility for specific items as required. Such matters include but are not limited to general litigation, public utility commission rate cases and other matters, mediations, arbitrations, hearings, and other dispute resolution proceedings. Provide any required internal legal, risk management, or compliance reports. Maintain a high level of professional ethics, compliance, and continuing professional development. Negotiate, prepare and review all contracts and other legal documents to ensure that the best interests of the business are protected. Assist in developing and implementing regulatory strategy and deliver legal inputs in support of regulatory and rate case matters. Assist in the management and direction of employment and labor related legal issues affecting the business, with "first chair" responsibility for specific items as required in liaison with the Corporate Employee/Labor Counsel. Such matters include, but are not limited to, grievance filings, disciplines, policies, discrimination claims, compensation claims, arbitrations, union negotiations or formation of collective bargaining agreements. Provide assistance in building the Water Division Knowledge Community and developing best practices. Assist in the formulation of corporate policies and procedures and compliance with such policies and procedures. Assist with corporate governance activities. Provide assistance for internal investigations and adjudication. Represent the organization in making presentations before internal and external committees, boards, commission, and/or other governmental organizations. Assist in the monitoring of and compliance with technical corporate record keeping and filing requirements. Assist, direct and participate in the prosecution and defense of matters involving property damage claims, environmental matters, insurance claims, condemnations, or other business related issues, with first chair responsibility for specific items as required. Duties will include negotiation, research, discovery, preparation, settlement, and/or trial or arbitration. Possess the attitude and abilities to develop new legal skills and areas
of expertise. Be willing to undertake a program of continuing education regarding matters unique to the business to permit substitution for the Division General Counsel at times of schedule conflicts or unavailability. Handle legal aspects of financing activities of the business as directed. Assist in the legal aspects of new business activities of the corporation including, but not limited to, O & M contracts, Mergers and Acquisitions, Antenna leases, and service contracts. Support property and easement/right-of-way acquisition. Assist in providing legislative/regulatory evaluations and advice, including the drafting of proposed legislation or changes thereto and possibly providing explanation of the organization’s position on such matters for legislators and governmental administrators. Perform other projects as assigned by the Division General Counsel. Contribute to effective communication by listening and providing constructive feedback; supporting the creation of an open and honest work environment; cascading and sharing knowledge and information relevant to other members of the team and colleagues across the business. Skills: Excellent written and oral communication skills. Strong interpersonal skills with an emphasis on initiative, knowledge sharing, teambuilding, and decision-making. Strong leadership skills, including ability to work effectively with all levels throughout the organization and across functional lines. Strong management skills for planning, organizing and communicating. Ability to conduct effective legal research. Must have fundamental computer skills. Ability to maintain flexible working hours. Overnight and extended periods of travel are necessary. Ability to handle confidential or sensitive information in an appropriate and professional manner. Ability to successfully interact with and be responsive to other management, professional and non-professional employees of the Corporation and its affiliates. Ability to successfully represent corporate interests before courts of competent jurisdiction and to interact in a professional and persuasive manner with the appropriate stakeholders. Ability to professionally and successfully interact with governmental, legislative or law enforcement entities/representatives. Appropriate and successful interaction with other attorneys and professionals, including management of outside legal counsel. Ability to provide successful interaction with customers, contractors, vendors and the general public. Ability to develop strong and rewarding relationships in respect to all of the aforelisted interactions. Expertise in one or more practice areas relevant to the business; i.e., public utility laws and regulations, litigation, financing, commercial transactions, property, labor & employment, environmental, mergers & acquisitions, and administrative law. At least 5 years of experience as a licensed, practicing attorney. Civil litigation experience and/or experience before a state utility commission desirable. Juris Doctorate from an accredited law school. Licensed to practice in one or more states where the Region currently conducts business. Professional disciplinary record that does not limit ability to receive professional licensing reciprocity, if available. To Apply: http://careers.peopleclick.com/careerscp/client_americanwater/external/jobDetails.do?functionName=getJobDetail&jobPostId=9838&localeCode=en-us&source=Indeed.com&sourceType=PREMIUM_POST_SITE
CHIEF HEALTH COUNSEL
UCSD, San Diego
The University of California, San Diego invites applications for the position of Chief Health Law Counsel. Responsibilities include the wide range of legal issues associated with a major academic medical center and research university, including, but not limited to the following: health care anti-fraud and abuse compliance matters, health information privacy matters, health care transactions and affiliations, managed care disputes, federal health care program reimbursement matters, compliance with restrictions on tax-exempt entities, health professional and facility accreditation/licensure, human subject research protections, medical staff and peer review matters, compliance with UC policy; and other issues as they arise or are assigned. The Chief Health Law Counsel (“CHLC”), reports to and works in collaboration with the Chief Campus Counsel and the Deputy General Counsel – Health Law and Medical Center Services, and provides legal services to the UC San Diego Health Sciences, which includes the Medical Center, the Medical Group, and the Schools of Medicine and Pharmacy, in the areas of Healthcare, clinical service, and contracting. The CHLC has relationships with peers at other UC campuses and works with them on joint or system-wide efforts, as appropriate. The CHLC also coordinates with other offices, such as the Office of Risk Management, the Office of Contracts and Grants Administration, and the Office of Technology Transfer and Intellectual Property Services Office, as appropriate. The Chief Health Law Counsel provides advice and counsel related to the operation of a comprehensive academic health sciences campus and medical center. QUALIFICATIONS: * Licensed California attorney with a minimum of eight years legal experience with significant experience in health care-related law. Demonstrated ability to collaborate and work cooperatively with other attorneys, groups, clients and constituencies with differing priorities and perspectives. Knowledge of and experience with academic research, in a university environment, and associated issues of health system and governmental relations. Superior academic qualifications, with strong analytic, writing, and client consultation skills. Demonstrated ability to distill large quantities of often imperfect information and to generate creative approaches to legal challenges facing Health Sciences, including the Medical Center, the Medical Group, the Schools of Medicine and Pharmacy, in the areas of Healthcare, including clinical service and contracting.* Demonstrated ability to clearly articulate the priorities of a complex and dynamic organization, as well as the ability to develop legal strategies which forward these priorities within acceptable limits of risk and exposure. Demonstrated ability to work well under conditions of heavy workload, frequent overtime, rapidly changing priorities, a highly fluid authority structure, and deadlines requiring immediate action. Demonstrated ability to make timely, accurate and complete reports of activities to multiple supervisors and clients. Demonstrated ability and willingness to use standard computer software applications, including, Microsoft Word, email programs, Internet browsers and on-line legal search. SPECIAL CONDITIONS OF EMPLOYMENT:J.D. Degree from an ABA accredited institution. Active membership in good standing with the State Bar of California (or eligibility for immediate membership). To Apply: http://jobs.ucsd.edu/bulletin/job.aspx?cat=new&sortby=post&jobnum_in=56268
CHIEF LEGAL OFFICER
Aspect Performance and Brand; Telecommuting
Today we offer immediate revenue-sharing on all sales (2pts on gross sales), stock options (accelerated 2-year vesting schedule), and a salary within a few months of hire. You'll work virtually, with the flexibility to set your own hours and schedule. Most importantly, we'll deliver an exciting and challenging career opportunity, with a growing organization, where you clearly see your contribution and receive full appreciation for your effort. The Chief Legal Officer/General Counsel role is central to the Aspect growth plan. We seek a strong researcher, able to provide initial opinion across a range of corporate issues. You’ll scrutinize all facets of our business model, develop a variety of legal strategies, and establish key organizational safeguards. We require a nimble legal mind, able to counsel the executive team as it aggressively pushes into new service areas. Our General Counsel will be an ethical and innovative lawyer, capable of identifying obstacles to our success and directing our legal department and its budget as we grow, while contributing to the corporation's overall strategic vision. Please submit resumes to: firstname.lastname@example.org
Superior Court of California, Orange County
The General Counsel will be a highly competent legal professional with at least seven to ten years of progressively responsible experience in the practice of law and a demonstrated track record of successful legal and managerial accomplishments. The successful candidate will be a strong leader, creative independent thinker, and possess the organizational skills to assess the structure and efficacy of the department with a vision that focuses on providing high quality service to the judiciary and the people of Orange County.Candidates with relevant experience in the private sector as in-house/corporate counsel as well as those with experience in the public sector are encouraged to apply. Candidates must be active members in good standing with the State Bar of California and have a demonstrated verifiable reputation for integrity and no history of disciplinary offenses as an attorney or in any other capacity. To be considered for this exceptional career opportunity, please submit a resume, cover letter with current salary information, and six professional references to: Pam Derby, CPS EXECUTIVE SEARCH. 241 Lathrop Way, Sacramento, CA 95815, Ph: 916.471.3126, Fx: 916.561.7205. Email: email@example.com
Notes on Contract Work
Are you are interested in doing short-term work as an independent contractor, usually for litigation and due diligence projects, usually through an agency, and most often for law firms? We do not include these sorts of positions in this Job List, but if you are interested, there seems to be a constant demand and turn-over. So we would encourage you to contact directly our long-standing sponsor, who has extensive experience handling these sorts of placements:
402 West Broadway, Suite 1200
San Diego, CA 92101
And as a matter of full disclosure, another local company that advertises these sorts of positions is:
4520 Executive Drive, Suite 227
San Diego, California 92121-3020
858-453-0133 · Fax: 858-453-7508
Copyright © 2011 by
Association of Corporate Counsel, San Diego Chapter
All rights reserved.
Project Attorneys – NOW!
Does your company need an experienced attorney for a short term contract position? Do you need that attorney NOW? ACC-SD now has a listserv to match our talented local in-transition attorneys with companies with short term needs. Why wait? Describe your needs and qualifications required. Get responses as quick as a reply email. Try our new program, Project Attorneys--NOW!
Go to the chapter web site;
Click on “In Transition Resources”;
Then go to “Project Attorneys—NOW!”
Or follow this link: http://www.acc.com/chapters/sandiego/In-Transition-Resources.cfm
Then go to “Project Attorneys—NOW!”
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Featured Article - "Lowering California’s Unemployment Rate: An Open Letter to Gov. Jerry Brown"
Lowering California’s Unemployment Rate: An Open Letter to Gov. Jerry Brown
By Lonny Zilberman
When you first served as governor of California, I was 15-years-old and had little interest in the state’s unemployment rate. In the early 1980s, I had my own newspaper route (which I later realized was one step removed from involuntary servitude), and the state’s unemployment rate hit a whopping 10 percent. California's economy was listless and the country was slowly recovering from a deep recession. Fast forward 30 years and as Yogi Berra famously said, “its déjà vu all over again.” Except now I’m an employment attorney, the country is slowly recovering from the “Great Recession,” and California’s unemployment rate is over 12 percent!
The only good news from Sacramento is that bills sent to Gov. Arnold Schwarzenegger seeking to increase burdens on employers, were “terminated” with his veto pen. Now, with your election and with your party controlling the Legislature, I have a real concern that you might try to resurrect some previously vetoed bills. If that happens, it will only pile on more regulations on California’s already over-regulated and litigious business climate. This will perpetuate our high unemployment rate and result in employers leaving the state, lower tax revenues, and of course, negative consequences for employees in all industries.
As the new year approaches, I want to provide you with some advice on what employment laws California does not need, as old bills might resurface for your signature, and also offer some advice on opportunities to effectuate a positive change that might help create more jobs (not just lawyer jobs) and decrease the state’s unemployment rate, which I know you support.
First, a brief review of some previously vetoed bills that might make their way to your desk in the new legislative session, and which should be vetoed again. Gov. Schwarzenegger has vetoed the “Gender Pay Penalties Act” on three separate occasions. This bill would have substantially increased penalties for disparate gender pay. While eliminating illegal pay differentials is a concept everyone can agree on, Labor Code 1197.5 already provides penalties for employers who illegally pay employees based on gender. This bill would do little more than to increase frivolous litigation because there would be a stronger incentive to sue, resulting in no material benefit to workers, but only to the lawyers who bring and defend these suits.
Another often-vetoed bill by your predecessor addressed expanding leave rights under California’s Family Rights Act (CFRA). For example, AB537 would have expanded the definition of “family” to allow employees to take up to 12 weeks of job-protected leave to care for an ill adult child, sibling, grandparent, grandchild, or parent-in-law. It would have also created a “rebuttable” presumption that an employee who spends time with a family member who has a serious health condition is “caring” for that family member. If signed into law, this bill would potentially give every California employee a 12-week job protected leave per year if they claim that anyone remotely associated with them has a “serious health condition.”
California already has the strongest and perhaps most advanced employee leave statutes and workplace protection laws in the nation. If a bill like this were to be signed into law, employers are likely to see a dramatic increase in the use of CFRA, contributing to an increase in employer’s liability and loss of production. Instead of expanding the confusing network of leave laws that presently exist, and adding to litigation exposure for employers, you should be working with employers to eliminate confusion and create a system of leave laws that offer both employers and employees flexibility to meet their respective needs.
More absences in the workplace not only results in a loss of production, but also contributes to low moral among co-workers that have to pick up the remainder of the work when no immediate replacement is possible. These indirect costs vary by employer but invariably require additional expenses in HR departments to handle additional CFRA claims and manage the replacement of workers. Additional CFRA regulations will result in a rise of legal disputes with regards to eligibility and will likely expose employers to additional lawsuits, which are very costly.
Then there was SB836, which would amend the Fair Employment and Housing Act (FEHA) to include “familial status” as a basis for employment discrimination claims. This was also vetoed. Today, almost anyone fits into some “protected” status and if we were to add something as ambiguous as “familial status” as a new “protection,” it would result in endless and unnecessary litigation to try and define what discrimination on the basis of “familial status” really means, as well as unnecessarily restrict employers’ ability to make personnel decisions.
Another bill that your predecessor vetoed tried to significantly increase penalties for misclassifying employees as independent contractors (SB622). This legislation would have assessed large ($25,000) penalties against employers who “willfully” misclassify employees as independent contractors. While everyone can agree that proper employee classification is important, is a single violation of a worker as an independent contractor worth $25,000? Who does that really help? These types of exorbitant penalties only drive large employers from this state and small employers into bankruptcy. It stokes the flames of frivolous litigation, which costs jobs.
Now, let me turn to some legislation that will likely improve California’s overall business climate and lower the unemployment rate, while still upholding employee protections.
More than any other area of California employment law, the state’s “unique” meal period provisions, found in Labor Code Section 512, present a number of issues that have cost California employers hundreds of millions of dollars in wage and hour class action settlements. The central issue is whether employers must “provide” a meal period or “ensure” one is taken, and when during the employee’s shift they must be taken. The tidal wave of class actions has resulted in an onslaught of “seminars” and “training” sessions on how to avoid liability, but those are not the kind of jobs that I’m sure we need. And, employers are trained to treat grown adults like children (“Have you taken your lunch break yet?”) Rules forcing employees to take lunch rather than leave early to be with their family, or terminating employees for meal period violations doesn’t reflect sound public policy or what California wants to be known for in the 21st century.
While the state Supreme Court’s decision in Brinker v Superior Court is expected to bring some clarity on these issues in 2011, it may not. Rather than hoping Brinker provides finality, you should urge that the Legislature provide immediate clarity by amending Labor Code Section 512. This clarity will allow employers to better manage breaks and will also stop the insanity of multi-million dollar settlements over missed meal periods that does nothing but increase the cost of doing business in California and also lines the pockets of attorneys who have launched Web sites with names like “Got Overtime” and “Meal Breaks R Us.”
Speaking of meal breaks, Labor Code Section 226.7 imposes a statutory penalty of one additional hour of pay upon employers for meal period violations. While this penalty clearly applies when the meal period was denied altogether, it is less clear when there is a very minor violation (e.g., when a 30-minute meal period ends one minute early), particularly when the employee is responsible for the violation. The Legislature should consider taking the common sense approach utilized by federal courts in not penalizing employers for de minimis violations.
California’s requirement to pay overtime for working more than eight hours per day puts it at a competitive disadvantage against many neighboring states (Arizona, Utah, Colorado, New Mexico and Oregon). It also considerably limits scheduling flexibility and forces employees to work five eight-hour days, resulting in more traffic congestion, lost family time, and increased commuting costs. You might want to ask the Legislature to reverse this rule, restoring some of the “flexibility” AB60 falsely claimed it was providing over a decade ago. Some employers might actually offer “flexible” work hours and schedules that would not penalize folks who don’t want to abide by a rigid eight-hour schedule.
Our wage orders exempt certain employees from overtime, but they do not clearly define exempt status, which have also prompted class actions resulting in multi-million dollar settlements. Scared by litigation costs, employers have responded by classifying even management-level employees as non-exempt and subjecting these employees to overtime rules. You should ask the Legislature to adopt some of the federal exemption rules, such as the one for “highly compensated” employees, in order to provide at least one bright line rule for employers.
Governor, to paraphrase one of your campaign commercials, at this point in your life you’re ready to make the tough decisions California needs to prosper. During your first stint as governor you created 1.9 million new jobs. If you want to repeat that performance, you should seriously consider these proposals.
Lonny Zilberman is a partner at Wilson Turner Kosmo in San Diego. He specializes in all aspects of employment law, including management training and litigation on behalf of California employers.
Reprinted and/or posted with the permission of Daily Journal Corp. (2010).