Ain’t No Such Thing as a “Free Call”

Employer Must Pay Portion of Employee’s
Unlimited Data Plan for Work-Related Calls

Journalist Lucy Morgan with video camera and phone - ca. 1985

Journalist Lucy Morgan with video camera and phone – ca. 1985

The California Court of Appeal has ruled in favor of employee Colin Cochran on his class action lawsuit on behalf of 1,500 customer service managers against Schwan Home Service for reimbursement for work-related use of personal cell phones. Cochran v. Schwan’s Home Service, Inc. (August 12, 2014). Cochran alleged the company violated California Labor Code Section 2802, which provides:

“An employer shall indemnify [reimburse] his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer….”

Schwan’s Home Service had convinced the trial judge that class members had no claim for reimbursement under section 2802 if the workers had plans for their personal phones providing unlimited minutes for a flat rate or if someone other than the employee paid the bill. (In Mr. Cochran’s particular case, it was unclear whether he or his girl friend had actually paid the bill.)

The Court of Appeal disagreed, ruling that an employer must reimburse the reasonable expense of the mandatory use of a personal cell phone regardless of whether the employee actually incurred extra expense for such calls or not: “To show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed.” Cochran at page 8. Otherwise, the court reasoned, the employer would receive a windfall from passing its operating expenses onto the employee. Id. at page 7.

Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill for all types of cell phone plans and even if someone else pays the bill. Id at page 7. The court did not discuss how to calculate that percentage.

California employers should promptly consult with competent legal counsel regarding their reimbursement obligations. For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.


The Annals of Copyright Number 2

You May Have a Copyrighted Work
and Don’t Know It

Richard and Cherry Kearton taking a photograph of a bird's nest, 1900

Richard and Cherry Kearton taking a photograph of a bird’s nest, 1900

If you have ever written a story, poem, novel, essay, research paper, or song, taken a photograph or video, performed music, or been in a play or a film, you were at some point a copyright owner. However, you may not still own those rights if you have sold, assigned or otherwise given those rights away. Loss of rights might be by a formal agreement, for example through an entertainment, publishing or music industry contract, or by some other means. If you were an employee in the U.S. when you made your creation, your employer owns the copyrights, based on U.S. law and the concept of “work-made-for-hire.”

A copyright is an owner’s exclusive right to do certain things with an original work and to prevent others from doing so without permission. For example, under U.S. law, the owner is entitled to protect an original work from being copied by others in whole or in part, whether by photocopy or by audio or video copy. Copyright also protects the right to publicly perform or display an original work, to make derivative works from it, and to sell, lease or license copies of it to others. Copyright protects your tangible, specific expressions of your creation, but not the idea or concept behind it.

If you – or one of your employees while on the job – create a written work, sound recording, musical composition, graphic design, architectural plan, photograph, or many other creative works, that creation is copyrighted even if you never take any action to protect it legally.

Nevertheless, there are good reasons why you should protect your copyrighted works by registering them with the U.S. Copyright Office. Registration carries the right to file suit if an infringement occurs, as well as the rights to collect so-called “statutory damages,” set amounts that do not require proof of actual money loss, as well as attorney fees. Especially if you publish or broadcast your copyrighted work in a manner that it could easily be infringed, it is better to file for a registration early on than to have to scramble to register after an infringement occurs, incurring higher expedite fees in the process and missing out on some of the remedies available to a registered copyright owner.

There is of course much more to the process. If you need help with your copyrights, please contact our Of Counsel attorney, Helena Kobrin.


Brinker Case Settles for $56 Million

California Restaurant Workers Settle High Profile
Wage and Hour Class Action Lawsuit

The Library of Congress Women workers employed as wipers in the roundhouse having lunch in their rest room, C. & N.W. R.R., Clinton, Iowa  April 1943

Women workers employed as wipers in the roundhouse having lunch in their rest room, C. & N.W. R.R., Clinton, (The Library of Congress April 1943)

After waging a 10-year legal battle, Brinker Restaurant Corp., the parent company for Chili’s and Maggiano’s restaurant chains, has settled its wage and hour class action lawsuit. On August 6, 2014, the parties reached a preliminary agreement to resolve all 120,000 class members’ claims in exchange for a maximum settlement payment of $56.5 million. The settlement terms remain subject to court approval.

This highly publicized case, which wound its way up to the California Supreme Court two years ago, affects all California employers. In its much-anticipated 2012 ruling, the high court held businesses must provide uninterrupted 30-minute meal breaks to their workers but are not obligated to ensure that no work is done during any such break. The Court cautioned that employers must not “impede or discourage” employees from taking that uninterrupted time off.

The Court also clarified California’s workplace rest period laws, ruling that employers must provide their hourly employees with one paid 10-minute rest break for every four hours worked or every “major fraction thereof.”

Brinker’s $56 million settlement serves as an important reminder for management to revisit meal and rest break policies. Among other things, workplace policy should clearly specify:

  • the minimum daily working hours that trigger one or more unpaid 30 minute meal breaks;
  • the minimum working shift hours that trigger each paid 10 minute rest period;
  • employee obligations to accurately record working periods, including the entries that will frame unpaid, off-work meal breaks;
  • management’s commitment to scheduling meal and rest break periods and to fielding any employee concerns over such matters;
  • procedure for employee complaints over meal and rest break practices or incidents and their resolution; and
  • forms for employees to periodically confirm (or contest) that any and all skipped breaks in a given recent period have been voluntary.

Of course, employers must always pay employees for all time worked including any meal breaks skipped at a worker’s option.

We’ve covered earlier rulings in past blogs, “Brinkers New Rules for Meal and Rest breaks”, “Brinker: Employees May Skip Breaks”, “Brinker: Clocking In on Employee Timekeeping”, “Brinker Decision and Rest Periods” and “Brinker: California’s Meal Break Breathrough“. For information concerning meal and rest periods and related workplace practices, as well as model employee policies and forms, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

What Is Intellectual Property?

Image from page 611 of Collection of United States patents granted to Thomas A. Edison, 1869-1884 (1869)

Image from page 611 of Collection of United States patents granted to Thomas A. Edison, 1869-1884 (1869)

Have you ever created anything? Invented something? Designed something? Created a logo or a name that identifies your products or services? Written a song? Painted a picture? Taken a photograph? Perhaps you are a sculptor or a songwriter or you write blogs or screenplays. If you’ve done any of these things, then you have owned intellectual property.

Okay, so what, then, is intellectual property? It consists of things that you create through use of your intellect – your mind. There are several kinds of intellectual property. You may not be aware of all of them or you may have some of them confused with others. The most common ones are copyrights, trademarks (or service marks), patents, and trade secrets. They are different from one another, but they sometimes provide overlapping protections for various different rights that you claim in your own personal products or services or those of your company. For example, the Walt Disney Company claims both trademark and copyright protection for its numerous animated characters.

In many instances, your company’s intellectual properties are its most valuable asset, and it is penny wise and pound foolish not to hire an attorney to help you protect those properties.

We will be doing more blogs on these subjects. If there is anything you particularly would like to hear about, we welcome your feedback. If you need help with your intellectual property, please contact our Of Counsel attorney, Helena Kobrin.


Banned Box and Beyond

San Francisco Employers Must Give
Former Convicts a Fighting Chance

Alice Caush arrested for Larceny 1903 - Tyne & Wear Archives & Museums

Alice Caush arrested for Larceny 1903 – Tyne & Wear Archives & Museums

Joining a growing movement of 12 states and more than 60 cities with “ban the box” laws, i.e., deleting the typical criminal history check box often seen on employment applications, San Francisco’s Fair Chance Ordinance (FCO) goes into effect August 13, 2014.

Arguably the strictest “ban the box” legislation in the nation, the FCO requires covered private employers, city contractors, and housing providers to limit timing and use of criminal background checks and take the following steps:

• State in all job postings – and to conspicuously display an FCO notice — that qualified applicants with arrest and conviction records will be considered for the position in accordance with the FCO;
• Refrain from asking about an applicant’s conviction history or unresolved arrests at the start of the hiring process, such as on a job application form or through informal conversation;
• Wait until after conducting a live interview or making a conditional employment offer before asking about unresolved (i.e., pending) arrests and conviction history (except for any off-limits matters, such as arrests that did not lead to a conviction, misdemeanors, or convictions more than seven years old);
• Consider only those convictions and unresolved arrests that directly relate to the applicant’s ability to do the job (for example, an embezzlement conviction is likely relevant for a finance position); and
• Before denying an applicant a job due to a conviction, give the individual an opportunity to establish that the criminal background information obtained is inaccurate, he/she has been rehabilitated, or other mitigating factors such as physical or emotional abuse, coercion, or untreated abuse/mental illness that led to the conviction.

The FCO applies to employers located in or doing business in the city and county of San Francisco who have 20 or more employees (regardless of the employees’ location). It covers job applicants and employees who would be or are performing work in whole or substantial part in the city of San Francisco. Affected employers should promptly review and comply with the FCO in its entirety, including appropriate changes to job postings, employee applications, and interviewing protocol. All other employers should consider reviewing their hiring forms and policies to ensure lawful inquiry into an applicant’s criminal history, particularly if located in another “ban the box” jurisdiction.

For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.