Prohibited Conduct Need Not Be Fueled By Sexual Desire

The California legislature has amended the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not require proof of sexual desire.

The amendment overturns Kelley v. Conco Companies (2011) 196 California Appellate 4^th series (Cal.App.4^th) 191, a same-sex harassment decision covered in our sexual harassment training seminars. The case arose in part from a male supervisor losing his temper with Patrick Kelley, a male apprentice ironworker. The supervisor’s tirade included graphic, vulgar, and sexually explicit remarks. He told plaintiff he wanted to perform various sodomizing acts on him and that sexual intercourse with him would be better than with plaintiff’s wife. The supervisor also commented about plaintiff’s body and said he would look good wearing little girl’s clothes. Kelley later sued employer Conco and the supervisor for sexual harassment.

The Kelley appeals court held the defendant employer and supervisor not liable as plaintiff failed to prove “sexual intent,” i.e., there was no evidence that the heterosexual male supervisor sexually desired the male plaintiff. “The mere fact that words may have sexual content or connotations, or discuss sex is not sufficient to establish sexual harassment.” Id. at 205.

Singleton v. U.S. Gypsum Co. (2006) 140 Cal.App. 4^th 1547, another California appeals court case we have covered in training seminars conflicted directly with this Kelley decision. In Singleton, the court found an employer could be liable for same-sex harassment as such conduct did not have to be motivated by sexual desire.

California Government Code section 12940(j)(4)(c) is now amended to resolve this split in legal authority, adding the sentence: “Sexually harassing conduct need not be motivated by sexual desire.”

This FEHA amendment underscores the need for employers to provide harassment prevention training and education to all California supervisors and to take all complaints of offensive behavior seriously, including same-gender harassment allegations.

To schedule an on-site training session with one of our firm’s attorneys Tim Bowles or Cindy Bamforth, or to seek our guidance on management’s handling or prevention of sexual harassment complaints, visit our website or contact the Law Offices of Timothy Bowles directly at (626) 583-6600.

Company Ordered To Pay Worker’s $700,000 Attorney Bill

United Parcel Service, Inc. (UPS) essentially “won” an age discrimination case when a California jury awarded an ex-employee only $27,280 in damages. That relative victory was short-lived, erased by the trial judge awarding the worker $700,000 for her attorney fees. The appeals court recently upheld this decision. Muniz v. United Parcel Service, Inc. (9th Cir. 2013) 738 F.3d 214.

Kim Muniz sued employer UPS alleging, in part, that supervisor Ron Meyer demoted her based on gender and age discrimination and retaliation in violation of California’s Fair Employment and Housing Act (FEHA), California Government Code 12900 and following sections. UPS argued it had promoted Muniz beyond her level of competence and Meyer was simply the first to recognize Muniz’s failings.

The jury found Muniz’s gender wrongfully motivated UPS to demote her and was a substantial factor in causing her harm. However, while Muniz requested damages totaling over $700,000, the jury only awarded her $27,280 — $9,990 for lost earnings, $7,300 for past medical expenses and $9,990 for past non-economic losses.

Both sides claimed victory and sought payment from the other for attorney fees under FEHA, Government Code section 12965(b). The court found Muniz the prevailing party, at which point she requested $2,000,000 in attorneys’ fees (some 73 times the damages award). The district court judge then awarded her some $700,000, or 26 times the jury’s damage award.

UPS appealed the $700,000 assessment, claiming Muniz didn’t deserve that much after her very limited success at trial. However, the appeals court was unsympathetic, ruling that “a trial court does not under California law abuse its discretion simply by awarding fees in an amount higher, even very much higher, than the damage awarded, where successful litigation causes conduct which the FEHA was enacted to deter [to be] exposed and corrected.’”

This case underscores that employers must consider the possibility of attorney fee awards to prevailing employees in FEHA discrimination cases even if the worker’s claims appear to be relatively weak. Of course, to reduce the potential for employee claims as much as possible, employers should take effective measures to prevent unlawful workplace conduct. Employers should also always promptly and thoroughly investigate all complaints of discrimination, harassment or retaliation and take effective remedial action as necessary. Company managers must always act as part of the solution to any such claim and, whether out of neglect or other ill-advised reaction, never place themselves in a position where they can be perceived as part of the problem.

For more information or assistance, please contact the Law Offices of Timothy Bowles, 626-583-6600 or visit our website at Law Offices of Timothy Bowles.

Constructive Remedy or a Job-Killer?

The California Assembly passed earlier this year the “Healthy Workplaces, Healthy Families Act of 2014” (Assembly Bill [AB] 1522), sending it over to the Senate for consideration. If passed into law, the measure would mandate all employers to provide at least three paid sick days per calendar year to all workers who qualify. There is currently no sick pay requirement under federal or California law. See our article, Don’t get Sick of Sick Pay – An Overview of California Paid Sick Leave.

This is the Legislature’s third attempt to enact such a law (previously in 2008 and 2011). In its current form, AB 1522 would direct that eligible workers earn (accrue) at least one hour of paid sick leave for every 30 hours worked and may start using such benefits after three months of employment.

The California Labor Federation, AFL-CIO supports AB 1522 contending it will guarantee “every California worker paid time off to recover from illness, care for a sick family member, or bond with a new baby. AB 1522 also protects workers claiming this benefit from employer retaliation.” While observing that many employers already voluntarily offer non-accruing sick leave to full-time workers, the California Chamber of Commerce’s objects to the bill for its creating a “huge burden” on employers through required expansion of benefits to temporary, seasonal, and part-time employees.

Connecticut is currently the only state that requires paid sick day benefits. Several cities, including New York, Washington, D.C., Portland, Seattle and San Francisco, mandate such benefits.

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

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.

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.

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.

Defenses to Copyright Infringement

As in any other sort of civil lawsuit, the alleged wrongdoer can prevail in a copyright infringement claim by asserting a valid defense. Common defenses include:

1. Lack of Copyright Notice:

Under U.S. law before March 1, 1989, copyright owners were required to put a copyright notice on their works. The challenged party could assert failure to do so to nullify the ownership requirement of an infringement claim, as the work so published would have gone into the public domain. While the U.S.’s adoption of the Berne Convention Implementation Act on that date removed this strict requirement, it still applies to older copyrights, and prudent copyright owners still put copyright notices on their published works.

2. Lack of Originality:

Copyright only applies to original works of authorship. If you depict something in a mundane way without any creativity, you may not have sufficient originality to claim copyright in what you have produced. For example, seeing a red car parked outside and then writing “There is a red car in front of the house” uses virtually no creativity or originality. Nor would simply taking a snapshot of the car without staging the lighting and other aspects of the photo.

A graphic design that lacks originality cannot be copyrighted such as “©”. A prominent example was Best Western’s failed application to copyright its logo. (The hotel chain was able to register its “Best Western” design as a trademark however.)

The Supreme Court has held that mundane information, such as the names, addresses, phone numbers in telephone directories cannot be copyrighted. However, the selection and arrangement of such information may be sufficiently original to deserve copyright protection. While the threshold for originality is low, the more originality and creativity involved in the work, the more likely copyright protection will apply.

3. Nothing was Copied:

A news photographer and a fan who simultaneously take virtually identical shots at a concert would probably not have copyright claims against each other. Thus, if the professional sought to sue to protect his photograph, the fan could likely defend himself against that claim because he did not copy from the photographer’s photo.

4. Fair use.

This defense acknowledges the copyright owner has the right to protect his or her original work but asserts that the use was “fair,” for example a minimal quotation of the work in the context of a scholarly discussion. Fair use is a major topic in itself deserving of a separate and upcoming blog in this series.

If you have copyright issues on which you need assistance, please contact attorney 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).