State Reveals Its Template for Notice to All Newly Hired Employees
Balancing Worker Privacy with an Employer’s Rights to Protect Safety
Anita Woodworth, American Red Cross worker, arriving in Brisbane, 1942
Effective January 1, 2015, California Assembly Bill 1443 plugs a gap that had left interns, trainees, and others lawfully involved in unpaid work experience unprotected from unlawful harassment and discrimination.
Since its enactment in 1980, California’s Fair Employment and Housing Act (FEHA) has prohibited employers from discriminating against “any person … in compensation or in terms, conditions, or privileges of employment” because of that person’s membership in a so-called “protected classification.” FEHA originally protected five such classifications: race, color, national origin, gender, and religious creed. That law now embraces some 15 protected categories, the rest added over the ensuing decades: ancestry, physical disability, mental disability, medical condition, genetic information, marital status, gender identity, gender expression, sexual orientation, age (40 or older), and military and veteran status. Government Code § 12940(c).
Unless a person’s inclusion in such a category has a direct bearing on job requirements (for example, a health club would obviously “discriminate” against men for a women’s locker room assistant position), FEHA deems an individual’s membership in a protected classification irrelevant to the hiring, promotion, pay level, benefits, discipline and termination of that person. The law is intended to level the playing field, confirming that businesses should base such employment decisions on competence and performance.
This law has varying definitions of “employer” obligated to comply with the above provisions. A company with five or more on its payroll over significant portions of the previous two calendar years is subject to FEHA’s discrimination provisions. Government Code § 12926(d). A company with but one employee is responsible for upholding FEHA’s harassment prohibitions. Government Code § 12940(j)(4)(A).
Until now, unpaid interns and trainees have fallen between the cracks, because such work experience programs were not included in the types of work covered by such FEHA protections. Government Code § 12940(c).
Beginning in 2015, a business employing five or more can no longer “discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person” based on his/her membership in a protected class. Government Code § 12940(c) (emphasis reflects amended language). Similarly, a business employing even one person cannot unlawfully harass such unpaid person interning or training with that company based on protected class membership. Government Code § 12940(j)(1) and (4)(A).
The new law separately requires that the religious observances of interns be protected and that they be free of any adverse actions – i.e., actions related to selection, termination, training, or other decisions – based on their religious beliefs. Government Code § 12940(l)(1).
While California businesses may not be legally obligated to pay interns or trainees and while such persons need not be included in all phases of operations, it has always been management’s safest course to afford them the same courtesies and protections extended to employees regarding discrimination and harassment. Now the law requires it.
If you need further information, please feel free to contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.
Who is an “Employee” Under California’s Anti-Discrimination Law?
Proving Workplace Discrimination is Now More Difficult in California
Age Discrimination in Employment
A California Employer’s Guide to New Laws 2012: Genetic Information Discrimination
Workplace Age Discrimination Laws Protect “Old People” Only
California Labor Code section 515.5 exempts certain employees in the computer software field from overtime compensation. The criteria include set minimum compensation. The California Department of Industrial Relations (DIR) recently increased this minimum, effective January 1, 2015.
To comply with the section 515.5 exemption, California employers will now have to pay otherwise qualified computer software employees a minimum hourly rate of $41.27, up from $40.38. The new rate translates to $7,165.12/month or $85,981.40/year.
While persons who qualify for this exemption need not be paid at “time-and-a-half” or “double time” rates for overtime hours, employers should accurately document the actual number of hours such qualified persons work. While companies commonly direct employees to track their hours worked, employers are primarily responsible for ensuring those records are truthful and complete.
An employee is an exempt computer professional only if he or she also meets each of the high-level skills and duties criteria for that exemption. An employer should ensure that any such worker meeting the very specific requirements laid out in Labor Code section 515.5. Among these, the employee must be “primarily engaged” (more than 50% of the time) in intellectual or creative work which requires “the exercise of discretion and independent judgment” applying systems analysis to determine the “functional specifications” of hardware, software or systems; designing computer systems or programs; and/or documenting, testing, creating or modifying computer programs related to computer systems software or hardware design.
If a computer professional meets all of section 515.5 requirements, he or she need not possess any particular academic degree to be eligible for this exemption.
Computer professionals also may be qualified for other exemptions, including the administrative or executive exemption. Each of those categories of course carries its distinct qualification rules.
For more information, please contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
In our last trademark blog, we described steps for a prudent business owner to take in choosing a mark that will avoid conflict with existing marks. The second critical consideration is choosing a mark sufficiently “distinctive” from your product or service to permit its registration or protection.
An understandable tendency is to prefer a mark that will describe the nature or quality of that product or service. However, the closer a mark is to an actual description, i.e., the more indistinguishable it is from the product or service, the less likely it is to be accepted for registration or recognized as legally enforceable. While perhaps counterintuitive, a stronger, legally viable mark is one not ordinarily associated with the product or service you are going to provide, i.e., clearly distinct from that item.
Practitioners, as well as federal and state regulatory agencies, scale the degree of “distinctiveness” by categories:
Arbitrary and Fanciful Marks
The best marks are arbitrary or fanciful.
An “arbitrary” mark is a real word used to describe something that is normally unrelated to that word. A prominent example is the use of a fruit – Apple – to identify a company that makes computers and other electronics. Almost certainly, that company would not have been able to register its name as a sufficiently distinct trademark if its founders had called it “Computers, Inc.”
A “fanciful” mark is a made-up word or expression that does not have any actual previous meaning. They can also easily be registered and protected most of the time. EXXON and XEROX are famous examples, created words that have become widely associated with the products they brand. The danger is a unique mark that becomes so tightly associated as to become synonymous with the product. When XEROX used to describe only photocopiers, it came perilously close to being declared generic and thus unprotected (see below) because the public widely regarded the term for any brand of photocopier or even for just the act of making a photocopy. Xerox Corporation has had to take strong measures to prevent this, promoting the term for a host of other products as well.
Suggestive marks reside lower down the scale. These are words or expressions that, when you hear or see them, suggest, in an indirect way, some quality or attribute of the product or service in question. Q-tips (for cotton swabs) and Greyhound (for bus transportation) are suggestive.
A term that too directly portrays a quality of what you are attempting to identify becomes “descriptive” and thus further down the strong-to-weak scale. For example, “Chewy” would be descriptive of caramel candies. Federal or state trademark agencies would be unlikely to accept it for registration as a mark for use in branding caramel candies unless the applicant could show it was already using that name for some time and a significant portion of the public currently identified “Chewy” as a distinct brand of such candies.
Generic terms are the lowest on the scale, carrying virtually no distinction from the products or services they identify. No applicant could likely register “CAR” as a trademark for an automobile manufacturer.
Thus, while a first instinct might well be choosing a mark that will swiftly identify or characterize a product or service, the law more readily recognizes and better protects marks with no or little logical connection to the item in question.
Our Of Counsel attorney, Helena Kobrin can help in the often high stakes process of choosing or defending a protectable mark.
Effective January 1, 2015 in California, private arbitration companies, including the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS), must publicly post certain previously-confidential information about their arbitrations. (Assembly Bill [AB] 802).
AB 802 amends California Code of Civil Procedure section 1281.96 to require AAA, JAMS and their competitors to publish detailed profiles on all consumer arbitrations, including employment-related matters. The legislation effectively eradicates confidentiality, previously one of the key advantages of arbitration over court proceedings.
The publicly available information must include:
1) Whether the arbitration was demanded pursuant to a written agreement and, if so, whether the agreement designated that particular company to administer the arbitration;
2) The employer’s business name and whether it was the initiating or responding party;
3) The nature of the dispute (e.g. employment) and the amount of the employee’s annual wages;
4) Whether the employer or employee was the prevailing party;
5) The total number of occasions the employer has been involved in mediations or arbitrations administered by that company;
6) Whether the employee was represented by an attorney and, if so, the attorney’s name;
7) The dates of the demand for arbitration, of the arbitrator’s appointment, and of the arbitrator’s disposition (decision);
8) The type of disposition (i.e., withdrawal, abandonment, settlement, monetary award, or dismissal without hearing);
9) The amounts of the claim, any monetary award, any attorney’s fees awarded, and details on any other relief granted; and
10) The arbitrator’s name and his or her fee amount.
These case-by-case disclosures must be made at least quarterly on the arbitrator’s website in a searchable format from a conspicuously displayed “consumer case information” link.
For more information about this recent development and how it might affect your workplace policies and practices, please contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
How do you choose a trademark (for products) or service mark (for services)? Choosing an enforceable mark or one that can be registered with the government is not as simple as just picking a word, icon or phrase that you like. Careful research and planning are required to confirm your chosen mark does not conflict, i.e., is not likely to cause confusion in the public’s eye, with an existing mark. If you skip this step out of supposed cost or time considerations and rely purely on chance that no-one else already has rights that would trump your own, you may be in for a very expensive mistake.
Witness the nearly 30 years of legal actions (1978 – 2007) between Apple Records (aka the Beatles’ label) and Apple Computer, in part over the supposed confusion between the music company’s whole green Granny Smith apple logo and the computer company’s iTunes cartoon apple with a bite taken. Apple Records prevailed in some of the cases and there were some settlements. Apple Computer then prevailed in the last court battle over whether its establishment of iTunes violated the earlier settlement, citing another case decision to argue that “even a moron in a hurry could not be mistaken about” the distinction between the two marks. The parties then settled, with Beatles music available on iTunes. Of course, if you don’t have the kind of money these two entities could devote to the fight, you should avoid such disputes in the first place.
Some of the steps involved in picking a good trademark are:
1. Find out if anyone else is using the mark you want to use or something similar. The research can and should be done on various levels, for example, search of the USPTO (United States Patent and Trademark Office) website; with state trademark registrars; online search for others using the mark; other searches of business forums and publications.
2. Determine if any such similar or identical marks are being used to identify products or services that are the same or related to what you are looking to identify with your potential mark.
3. In the event of such conflicts, continue the selection and research process until you have a potential mark that you believe will not be too close to someone else’s and the goods or service it is used to identify.
Some potential conflicts are obvious. An individual seeking to use “Nike,” “Nikey,” or even “NighKeigh” to identify a shoe company is clearly a bad idea. In addition to marks that are identical or similar in appearance or spelling, sounding the same can be enough to rule it out.
Another less-evident factor can cause problems. Some people do not register their established marks with the U.S. or other national government or with any state. Thus, even a fairly thorough search will not find them. Yet, even without government registration, a use in commerce (between states or with a foreign country) or even on a local level, may give its owner the right to block you from using the same or a similar mark for the same or similar products or services. Thus well-planned research beyond the standard government data bases should be part of the due diligence.
Maximizing your protections should include hiring a trademark specialist attorney who can get a search done for you. While you can of course order a search yourself, you would not then receive the attorney’s analysis on potentials for conflict and invitations for trouble. “Penny wise and pound/dollar foolish” comes to mind. Skipping the relatively small investment of a close search may buy a new business the much greater expense of dealing with a “cease and desist” letter from a rival. Such a letter typically presents an assortment of bad alternatives: (a) stop using the mark to avoid a losing legal battle and incur the expense of having to switch to a new, non-conflicting mark; (b) fight the challenger in court, with virtually guaranteed high legal fees and similarly guaranteed uncertainty of outcome; or (c) ignore the letter and hope they will go away.
Prevention of infringement claims is thus key. Clearing and properly protecting a mark are part of a business’s start-up costs or launch of a new product or service. Include those costs in your budget and you will save in the long run. Contact attorney Helena Kobrin if you need help selecting a legally protectable trademark.