Should Employers Ban E-Cigarettes in the Workplace?

Given the widespread popularity of electronic cigarettes, more cities and states are passing legislation to address their use in the workplace. Electronic cigarettes, or e-cigarettes, are battery-powered and tobacco free. They vaporize a liquid nicotine solution that users inhale and then puff out (i.e., “vaping”). The exhaled water vapor appears similar to traditional tobacco smoke but without the odor.

Three states, New Jersey, North Dakota, and Utah, have enacted bans against e-cigarettes in the workplace. Multiple cities have followed suit, including Seattle, Boston, New York City and Chicago. Surprisingly, California, usually in the forefront of such legislation, has yet to expand its workplace smoking bans to encompass e-cigarettes. Absent a state-wide ban, some California counties and cities have prohibited e-cigarettes on their own, including Marin County, Santa Clara County, and the City of Los Angeles.

Employers with multi-city or multi-state operations should consider instituting a uniform ban on e-cigarettes to ensure compliance as such prohibitions continue to spread. Even in jurisdictions with no restrictions on workplace vaping, employers may wish to ban the practice outright for several reasons, such as to prevent co-worker and customer complaints and to avoid triggering indoor smoke detectors. Some employees have reportedly misused e-cigarettes or “vape pens” to smoke marijuana in their workplaces. That practice may be difficult to detect because the vapor does not have a discernible odor.

Where lawful, some employers view vaping as a means to increase productivity and decrease absenteeism since such users need not leave the building for multiple cigarette breaks beyond the minimum required rest periods. If an employer permits vaping, however, it should explicitly ban marijuana or other drug use in vape pens and reserve the right to inspect such devices for such illicit substances.

For assistance creating complete and comprehensive workplace policies, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Fair Use Definition and Defense

“Fair Use” is the most prevalent defense against copyright infringement and possibly the most misunderstood. It is a subject all in itself.

Simply stated, if a use is “fair use,” it allows you to use someone else’s creation in a particular way without liability for copyright infringement. However, there is no shortage of misconceptions on when fair use applies. Even a long-time copyright lawyer will not always be able to make a definite determination.

The Copyright Act (section 107 of title 17 United States Code) states that: “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It prescribes four principal elements that courts analyze in determining whether a fair use defense is valid or not:

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work [including such issues as whether it is published or unpublished and whether it is creative or factual];

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

While these criteria may sound pretty straightforward, application is far from simple except in a truly obvious case. Courts have engaged in much discussion of what these factors mean and how they are to be interpreted. For example, the distinction between commercial and non-profit use is not clear-cut. Commercial use is not always “unfair” and non-profit use not always “fair.” The federal Ninth Circuit Court of Appeals once decided that an educational (classroom) use by one teacher of multiple pages from a cake decorating booklet created by another teacher for her classroom was not fair use. See Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983). The Fifth Circuit Court of Appeals found that copying of articles from scientific journals for scholarly use by Texaco’s scientists also was not fair use, in American Geophysical Union V. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994). In contrast, when 2 Live Crew took Roy Orbison’s famous song, “Pretty Woman,” changing the words and recording it as rap music – an undisputed commercial use – it was fair use as a parody. See Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994).

Unfortunately, some people decide they are engaged in fair use when they do not really know what it is. For example, one composer mistakenly thought it was fair use if you did not use more than four measures of music by someone else. This is why, in most instances, creative people are best off when they stick with what they know best – creation – and leave it to the legal experts to determine if they are on safe ground when they want to make use of someone else’s creation in their own. A copyright attorney can advise whether: (a) you are taking a large or small risk that you will receive a cease and desist letter from the copyright holder; (b) a fair use defense will or will not be viable; (c) you should forget the idea altogether; or (d) you should apply to the content owner for a license. On the other hand, if you think someone has infringed your copyright by using a portion in his or her own material, a copyright lawyer can tell you if you have a case or need to step back and take a deep breath.

For assistance with fair use analysis or other issues of copyright law, contact our Of Counsel attorney, Helena Kobrin.

What Is Copyright Infringement?

Copyright infringement has two sides: a) protecting your own copyrighted material and b) avoiding violations of another’s copyrighted work.

The U.S. Copyright Act, section 106, gives a copyright owner exclusive rights to the control of an original work, including reproducing it, publicly displaying it, publicly performing it, making derivative works, and selling, leasing or licensing it to others. Infringement occurs when someone uses another’s work or part of it in these and other ways without the owner’s permission.

To prove copyright infringement, in the simplest terms, the owner must show that he or she owns the copyright to the work in question and that the infringing item is a copy of the original. Copy does not necessarily mean an exact duplicate. The owner can prove this element by showing that the “copy” is substantially similar to the owner’s original and that the infringer had access to the original. If the alleged infringer came up with the same idea independently and created a similar work without any access to that original, there may not be an infringement.

Sometimes the analysis is simple. For example, if you wrote a book, another’s publication of the identical text under a different name and cover would clearly be copyright infringement. Unauthorized use of another’s original photo for the cover of a music album or a secret video recording from the audience of a first run movie for production of pirated DVDs are also examples.

The situation may be less than clear-cut if, for instance, you and another happen to each write original music which sounds similar for a few notes or bars. Two individuals painting the same landscape with similarities in treatment may also be possible trouble, but then again, may not. For some real-life close-calls, see the blog “5 famous copyright infringement cases (and what you can learn).”

The livelihoods of copyright lawyers depend on accurately analyzing such scenarios. However, while an experienced practitioner can and will offer his or her perception of whether similar works present a potential infringement, experts inevitably will differ in more complex cases.

If is of course far preferable to consult a copyright attorney over potential infringements before any “cease and desist” letter or, worse, a lawsuit arises from another copyright holder. If you need help with such issues, you can contact our Of Counsel attorney, Helena Kobrin.

Related articles: The Annals of Copyright Number 1, When in Doubt, Choose Contract Over Lunch (on the importance of written agreements for the use of copyrighted material) and The Annals of Copyright Number 2, You May Have a Copyrighted Work and Don’t Know It (on the definition of a copyrighted work).

Selecting a Trademark Part 2 Distinctiveness

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

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.

Descriptive Marks

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 Marks

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.

As we have described in California’s Expanded Immigration-Related Protections and California Extends Protections for Whistleblowing Employees, several California laws protect employees, regardless of undocumented status, from actual or threatened retaliation for demanding workplace rights.

These state protections of immigrant workers, some of the strongest nationwide, would seem at odds with the federal law (Title 8, section 1324a of the United States Code) making employment of undocumented persons illegal and requiring companies to confirm an applicant’s ability to work in the U.S. by a completed “I-9” form supported by sufficient evidence (e.g., birth certificate, green card).

However, in Salas v. Sierra Chemical (2014), the California Supreme Court confirmed that an undocumented individual’s initiative and ability to land a job –- whether by falsified proof of work authorization or by an employer’s willingness to look the other way – does not then strip that person from this state’s protections from workplace discrimination under the Fair Employment and Housing Act (FEHA).

In Salas, a seasonal worker sued his former employer for FEHA disability discrimination and retaliation, alleging the company did not have the right to refuse to rehire him for a new season and accommodate his disability. He had worked for Sierra Chemical for four seasons, presenting an I-9 and social security card each time. During the last season, he had injured his back twice and had filed for workers’ compensation. The next season, Sierra said it would rehire him when he received a doctor’s release for full duty. It only learned of his undocumented status late in the lawsuit and then asserted it was immune from any FEHA liability because the rehiring, in retrospect, would have violated the above federal law.

The Court rejected the employer’s position. Mr. Salas was able to raise disability discrimination as the basis for Sierra Chemical’s failure to rehire him because consideration of his documented or undocumented status was not a factor in that decision. On the other hand, if Sierra Chemical had been diligent enough to determine Mr. Salas’s status and to have declined his re-employment on that basis, then he would have had no chance of bringing the FEHA claim. The decision turned on Labor Code 3339, created by the 2002 passage of Senate Bill (S.B.) 1818, providing all California workers the “protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law . . . to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”

Mr. Salas’s FEHA rights were not entirely unaffected by his undocumented status. The Court also ruled that Mr. Salas had no right to collect lost wages resulting from any Sierra Chemical disability discrimination from the point that the employer learned he was barred by federal law from acquiring further employment in the U.S.

The employer lessons learned from this decision thus include:

(1) Do not hire workers who cannot satisfy the federal I-9 requirements;

(2) In California’s FEHA, any undocumented worker (whether that status is suspected or actual) is entitled to the protections against unlawful workplace discrimination, harassment and retaliation accorded to all employees; and

(3) On any later discovery that a worker is not (or no longer) eligible for employment under federal law (because of false documentation or any other reason), a California employer is prohibited from continuing that employment. However, because of the potential of a FEHA claim under the Salas guidelines, that employer should promptly obtain legal advice on how to promptly terminate that relationship.

For assistance with any questions on these subjects, you can contact our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Cindy Bamforth, April, 23, 2015

New Court Decision on Delivery Drivers Shows the Issue Requires Detailed Analysis

The dividing line between properly classified employees and independently contracted workers can often be about as clear as mud. The June, 2014 decision from the federal Ninth Circuit Court of Appeals in Ruiz v. Affinity Logistics Corp illustrates the perils of a company’s miscalculation on this issue.

Sears contracted with the Affinity Logistics Corporation to make home deliveries of Sears merchandise to consumers. As a condition of hiring, Affinity required delivery drivers to work as “independent contractors” through registration of fictitious business names, maintenance of separate business licenses and commercial bank accounts, and one-year, automatically renewed contracts.

Affinity directed these drivers to work five-to-seven days/week and paid them $23 per delivery, usually with eight deliveries per day. The drivers held no special licenses or training. Nearly all leased their trucks from Affinity with fees deducted from paychecks. The trucks bore the Sears’ logos and Affinity’s name and motor carrier number on their doors. The company required drivers to stock their trucks with supplies required by Affinity’s procedure manual. The company required drivers to leave the trucks at Affinity’s warehouse at day’s end, leaving their keys in case someone else needed the trucks overnight. The Affinity manual also required specific uniforms and grooming standards for drivers.

The drivers had to attend meetings with company supervisors each day before starting their Affinity-designated sequence of deliveries. Supervisors also checked the loaded trucks daily for proper tools and other materials. Affinity also required the drivers to report completed deliveries to Sears by phone as well as to call in their progress to Affinity throughout the day. The company phoned drivers running late or off course to get back on schedule or on route. Affinity also conducted “follow-alongs,” supervisors tailing drivers for the first few stops to confirm a given driver was wearing a uniform and using the proper delivery procedure.

Affinity won the first round in court. Focusing on driver ability to hire helpers and back-up drivers, a federal trial judge in San Diego ruled the drivers were independent contractors. The Ninth Circuit reversed on appeal, finding the drivers employees under California law.

That Ninth Circuit appeals court relied primarily on the California Supreme Court’s guidance in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341 [256 Cal. Rptr. 543, 769 P.2d 399] that “the right to control work details is the most important or most significant consideration.” It concluded that Affinity’s right to control the details of the drivers’ work, including their equipment, “every exquisite detail” of their appearance, and the close monitoring and direction of driver movements and production was the most important factor supporting employee status. The appeals court rejected the trial judge’s emphasis on driver ability to hire helpers, observing that Affinity actually required the drivers to hire the helpers. Affinity also imposed the same degree of driver control upon any back-up drivers. The court thus ruled these factors amounted to Affinity’s “absolute overall control.”

As also directed by the Borello decision, the Ninth Circuit found many secondary factors that required the drivers to be classed as employees, including the drivers’ lack of a genuinely distinct business operation; the lack of specialized skill requirements; Affinity’s providing the drivers with trucks and requiring drivers use a specific type mobile phone; compensation that was essentially by the hour and not by the jobs completed; drivers’ delivery work was the central aspect of Affinity’s regular business; and the lack of any definite term for the relationship.

This has almost certainly been a very costly learning experience for Affinity. In addition to paying attorney fees through several rounds of court battle only to eventually lose at the higher court, the suit was brought as a class action, potentially applicable to all Affinity drivers the company had erroneously classified as independent contractors. Affinity is thus now potentially responsible for paying compensation, penalties and interest for its alleged failure to pay each such driver sick leave, vacation, holiday pay and severance wages and for return to the drivers the fees charged them for workers’ compensation insurance.

The proper classification of workers as employees or independent contractors is a case-by-case undertaking. If the trial judge and the three appeals court judges could not agree on the proper outcome in the Ruiz case, then a company’s decision on which way to go with classification for any given individual in countless other scenarios can be anything but clear-cut. See also, our blog article Independent or Employed?. Thus, skilled legal assistance in evaluating or reevaluating such classifications is good business. Please contact Tim Bowles, Cindy Bamforth, or Helena Kobrin in our office.

DANISKA CORONADO IS FIRM’S NEWEST LEGAL ASSISTANT

We are extremely pleased to have Ms. Daniska Coronado Iberico as a legal assistant with the firm. Daniska is a licensed attorney in Peru, with business, commercial, and corporate law experience. She recently moved to the United States to become a lawyer here, now working full time at Bowles Law while fulfilling her formal educational requirements for the California bar.

Raised in a family of lawyers, Daniska received her Bachelor’s Degree in Law at the University of Lima in 2011, having served there as Associate Editor for the Lima University “Advocatus” Law Review. Following admission to the Bar of Lima, she served in Peru as in-house counsel for transnational companies in mining, construction and hydrocarbons sectors. Daniska also has considerable experience on human rights education projects in her native country, serving as a volunteer for Youth for Human Rights International.

In addition to proficiency in her areas of legal practice, Daniska brings her Spanish and English bilingual skills to the firm. We welcome Daniska and look forward to working with her.

PAM HARDER IS NOW FIRM’S LEGAL ASSISTANT

We welcome Pam Harder as a firm legal and administrative assistant.

Pam joins us with a solid background in personnel management. She is pursuing the ABA-approved paralegal studies program at Pasadena City College, with graduation and California paralegal certification slated for August, 2016.

Pam assists our attorneys with information compilation analysis and legal research. She also works with our office manager on administrative and personnel-related matters. Pam is also coordinating a project to convert the office to paperless operation.

She is also Clementine’s mom, named by many well-placed people as Most Adorable Child in Pasadena for 2014, 2015 and, so far, first quarter of 2016.

PETER BREYER – IS FIRM’S FINANCE DIRECTOR

Mr. Peter Breyer has joined the firm as our finance director.

Peter comes to us with an extensive finance background in the publishing industry. As a chief financial officer, he supervised collections, disbursements and accounting procedures. He is pleased to be working with a law firm, having acquired an interest in the law during his work securing publishing rights.

Originally from Germany, Peter set out at an early age to travel the world, eventually settling in Los Angeles. In his spare time, Peter likes to read and take walks with his dogs. He is also an avid skier and in the winter has been spotted ripping up the slopes at Big Bear.

We welcome Peter to the firm and look forward to working with him!