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These days, consumer reviews posted online can make or break a business. Some businesses have sought to prevent negative reviews through “gag clauses” – contractual provisions buried in form contracts that customers rarely read, much less are able to negotiate. New law now bars such blanket prohibitions while providing businesses new protections to deter and deal with false and malicious postings.
These days, consumer reviews posted online can make or break a business. Some businesses have sought to prevent negative reviews through “gag clauses” – contractual provisions buried in form contracts that customers rarely read, much less are able to negotiate. New law now bars such blanket prohibitions while providing businesses new protections to deter and deal with false and malicious postings.
Effective March 14, 2017, the federal Consumer Review Fairness Act of 2016 (CRFA) prohibits non-negotiable form contracts used in selling goods or services from barring or restricting customer reviews. The CRFA protects the right to make any “written, oral, or pictorial review, performance assessment of, or other similar analysis,” including those posted electronically.
Any clause in a form contract is void if it:
Companies may still prohibit (and utilize contract terms prohibiting) the posting of trade secrets or other financial or confidential information; private personnel or medical files; private law enforcement records; or content that is otherwise unlawful or tainted by computer viruses, worms, or the like.
The CRFA of course does not restrict a business’s ability to defend itself against false postings by filing civil claims for defamation. Websites also may remove or refuse postings typically prohibited by terms of service – ones that are “clearly false or misleading,” unrelated to the goods or services on that website, or containing someone’s personal information or likeness. A website also may remove or refuse a posting that is “libelous, harassing, abusive, obscene, vulgar, sexually explicit, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic.”
The Federal Trade Commission (FTC) will enforce the CRFA, and state Attorney Generals and state consumer protection agencies may also bring civil actions under this law, but must notify the FTC. Penalties for violation are the same as those for unfair and deceptive trade practices under the FTC Act, with a maximum of $40,000 per violation.
Enforcement of CRFA will commence December 14, 2017. If you have such clauses in your consumer sales contracts, review and, as appropriate, remove them promptly. This is particularly important in California or other states that already have laws in place banning blanket “gag clauses.” California was the first nationally to enact a statute protecting consumer reviews, Civil Code 1670.8. Under California’s law, in effect since January 1, 2015, no contract for consumer goods or services may prohibit a consumer from making statements about the company or the goods or services purchased. Violations of that law contain penalties ranging from $2,500-$10,000 per offense.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
March 24, 2017
Effective January 22, 2017, the City of Los Angeles’ (City)Fair Chance Initiative for Hiring Ordinance(FCIHO) prohibits employers with 10 or more employees located or doing business in the City from inquiring into a job applicant’s criminal history by any means, including on the application form or during the job interview, unless and until the employer extends a conditional offer of employment. See,Ban the Box in The City of Los Angeles(January, 2017).
Effective January 22, 2017, the City of Los Angeles’ (City) Fair Chance Initiative for Hiring Ordinance (FCIHO) prohibits employers with 10 or more employees located or doing business in the City from inquiring into a job applicant’s criminal history by any means, including on the application form or during the job interview, unless and until the employer extends a conditional offer of employment. See, Ban the Box in The City of Los Angeles (January, 2017).
The City’s Department of Public Works, Bureau of Contract Administration recently published two FCIHO-related documents:
For additional assistance understanding and implementing the City’s FCIHO, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
March 23, 2017
In an effort to deter workplace health and safety hazards,California’s Division of Occupational Safety and Healthrequires employers with more than 10 employees tovisibly postbetween February 1, 2017 through April 30, 2017 a summary of certain 2016 work-related injuries and illnesses (Cal/OSHA Form 300A). Even if the employer had no such recordable work-related injuries or illnesses in 2016, it must insert zeros in each of the total lines and post it regardless.
In an effort to deter workplace health and safety hazards, California’s Division of Occupational Safety and Health requires employers with more than 10 employees to visibly post between February 1, 2017 through April 30, 2017 a summary of certain 2016 work-related injuries and illnesses (Cal/OSHA Form 300A). Even if the employer had no such recordable work-related injuries or illnesses in 2016, it must insert zeros in each of the total lines and post it regardless.
All covered companies, including “establishments classified in agriculture, mining, construction, manufacturing, transportation, communication, electric, gas and sanitary services, or wholesale trade, and those establishments in the retail, service, finance, insurance and real estate industries” must also annually compile and maintain in its files more detailed information on such occupational injuries and illnesses on Cal/OSHA Form 300.
Unless otherwise requested by Cal/OSHA, California establishments in low-hazard industries as classified under these Standard Industrial Classification (SIC) codes are exempt from these posting requirements.
All California employers, whether exempt from the above notice requirements or not, shall immediately report “by telephone or telegraph” to the nearest Cal/OSHA district office any serious occupational injury, illness, or death no more than eight hours after the employer first becomes aware of the incident.
More information on Cal/OSHA recordkeeping requirements is available at http://www.dir.ca.gov/dosh/etools/recordkeeping/index.html.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
March 10, 2017
For the past decade, California drivers have been prohibited from using a wireless mobile device for conversations unless it is in hands-free or voice-activated mode. In 2008, theLegislature further banned reading, writing, and texting messages while driving.
For the past decade, California drivers have been prohibited from using a wireless mobile device for conversations unless it is in hands-free or voice-activated mode. In 2008, the Legislature further banned reading, writing, and texting messages while driving.
With evolving technology, dangerous distracted driving has taken further forms not technically prohibited such as taking photos and using GPS devices. A 2015 California Department of Motor Vehicles report noted for 2013 “12 fatal collisions involving handheld cellphone use as an inattention factor, over 500 injury collisions, and nearly 700 property damage collisions.” 2013 also saw some 426,000 violations of the cell phone ban while driving.
Effective January 1, 2017, enhanced Vehicle Code section 23123.5 contains tighter restrictions on driver use of wireless devices. On the more-than-valid intention to save lives, this new section is a study in micro-managerial legislation. A driver may only operate an “electronic wireless communication device,” which “includes, but is not limited to, a broadband personal communication device, a specialized mobile radio device, a handheld device or laptop computer with mobile data access, a pager, or a two–way messaging device” if:
These prohibitions do not apply to emergency services professionals in the course of their duties or to manufacturer-installed systems that are part of a vehicle.
It remains to be seen whether this wider definition of prohibited actions while behind the wheel will significantly deter such bonehead driving practices. A violation is subject only to a fine of $20 for a first offense and $50 for each subsequent offense.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
March 6, 2017
Effective January 1, 2017,AB 1289(the Act) requires all transportation network companies (TNC) such as Uber and Lyft –businesses using an online-enabled platform to connect paying passengers with drivers using their personal vehicles– to conduct a local and national background check for each participating driver.
Effective January 1, 2017, AB 1289 (the Act) requires all transportation network companies (TNC) such as Uber and Lyft – businesses using an online-enabled platform to connect paying passengers with drivers using their personal vehicles – to conduct a local and national background check for each participating driver.
The Act specifically prohibits a TNC from contracting with, employing, or retaining a driver if she or he:
A TNC may conduct the background check itself or have a third party do so. (Such third parties may in turn be regulated by federal and California laws for consumer reporting or investigative consumer reporting agencies. See, e.g., Pre-Employment Background Checks and Background Check for Employment.)
A business affected by the Act must include a local and national criminal background check for each participating driver that shall include a “multistate and multi-jurisdiction criminal records locator or other similar commercial nationwide database with validation,” as well as the United States Department of Justice National Sex Offender Public Website.
A TNC that fails to comply with this Act is subject to a penalty of not less than $1,000 nor more than $5,000 for each offense.
However, if you are subject to the Act and have a business in Los Angeles or San Francisco, it is a good idea to check with a knowledgeable attorney before doing any such required criminal background checks. Each of those cities has a potentially conflicting “Ban the Box” ordinance prohibiting a criminal background check prior to an offer of employment. Legal guidance can thus help determine the best possible sequence for complying with these potentially conflicting laws.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
February 10, 2017
Congress created theFederal Earned Income Tax Credit (EITC)in 1975 to incentivize low-income workers to seek employment rather than welfare. In 2015, California authorized the “Cal EITC” for the same purposes.
Congress created the Federal Earned Income Tax Credit (EITC) in 1975 to incentivize low-income workers to seek employment rather than welfare. In 2015, California authorized the “Cal EITC” for the same purposes.
The federal and California EITC programs each reduce the amount of tax that the qualified low-income worker may owe. Each may even entitle such worker to a tax refund.
Effective January 1, 2017, Revenue and Taxation Code section 19854(a) requires California employers to notify all employees in writing they may be eligible for these state and federal tax benefits. This code section contains the required notice language.
Affected businesses must personally deliver or mail this notice to workers within one week before or after, or at the same time as, delivery of the employees’ annual wage summary, e.g., a form W-2.
To document compliance, employers should accurately record when and how they delivered the notification form to each employee.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
January 27, 2017
The City of Los Angeles (City) is now the second city in California after San Francisco to restrict employers from asking job applicants about criminal conviction until a conditional offer of employment has been made. See,San Francisco Employers Must Give Former Convicts a Fighting Chance(August, 2014).
The City of Los Angeles (City) is now the second city in California after San Francisco to restrict employers from asking job applicants about criminal conviction until a conditional offer of employment has been made. See, San Francisco Employers Must Give Former Convicts a Fighting Chance (August, 2014).
Effective January 22, 2017, Los Angeles’ Fair Chance Initiative (the Ordinance) will restrict employers with 10 or more employees located or doing business in the City from making such pre-offer inquiries.
The Ordinance covers many key points including:
Who is an Employer. Any individual, firm, corporation partnership, labor organization, group of persons, association, or other organization however organized, that is located or doing business in the City and that employs ten or more employees. Employer includes job placement and referral agencies and other employment agencies. It does not include the City of Los Angeles, any other local governmental unit or federal government.
Who is an Employee. Any individual who performs at least two hours of work on average each week within the geographic boundaries of the City and is entitled to receive minimum wage (or higher).
Definition of “Conditional Offer of Employment.” An offer of employment that is conditioned only on an assessment of the applicant’s criminal history, if any, and the duties and responsibilities of the employment position.
Employer Assessment. The employer must perform a written assessment that effectively links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the employment position sought by the applicant.
Fair Chance Process: An applicant must have the opportunity to provide information or documentation to an employer regarding the accuracy of his/her criminal history.
Designated Administrative Agency (DAA). The Department of Public Works, Bureau of Contract Administration will be the DAA in charge of all the administrative responsibilities under this new law.
Penalty and Administrative Fines. Up to $500 for the first violation, up to $1,000 for the second and up to $2,000 for the third and subsequent violations of the Ordinance other than sections 189.04 and 189.06. Penalties and administrative fines shall be up to $500 for each violation of sections 189.04 and 189.06 concerning posting at the job site, advertisements for positions, and record retention. This provision will not apply prior to July 1, 2017; instead the DAA shall only issue written warnings.
Notice and Posting Requirements. Employers shall post a notice informing applicants of the provisions of this new law in a conspicuous place in the workplace, job site, or other location in the City under Employer’s control and visited by employment applicants. Employers must also send a copy of such notice to each applicable labor union with which they have a collective bargaining agreement.
Affected employers should review and comply with this new law, including reviewing and modifying employee applications and adjusting assessment and interviewing protocol, to ensure lawful and timely inquiry into an applicant’s criminal history.
Click here for access to the forms and posters related to the Ordinance.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
January 18, 2017
California restricts the type of questions employers may ask job applicants about their criminal history. Employers may not request information about a felony or serious criminal misdemeanor which has been judicially expunged, dismissed or ordered sealed and employers may only seek information about criminal convictions when job-related and consistent with business necessity. For example, hiring for a finance manager or chief financial officer would almost certainly justify asking for criminal h
California restricts the type of questions employers may ask job applicants about their criminal history. Employers may not request information about a felony or serious criminal misdemeanor which has been judicially expunged, dismissed or ordered sealed and employers may only seek information about criminal convictions when job-related and consistent with business necessity. For example, hiring for a finance manager or chief financial officer would almost certainly justify asking for criminal history relating to theft, embezzlement, and similar crimes. See, Using Criminal Records in Job Screening (June, 2012).
California is now attempting to give workers with a juvenile criminal record an opportunity to demonstrate they can be rehabilitated, through Assembly Bill (AB) 1843 which amends Labor Code section 432.7.
Effective January 1, 2017, this new law forbids most employers from asking in an employment application or otherwise obtaining information relating to an arrest, detention, processing diversion, supervision, adjudication, or court disposition that occurred while the person was under the jurisdiction of a juvenile court.
AB 1843 clarifies that a “conviction” does not include any court action concerning a person who is currently under the process and jurisdiction of the juvenile court.
The law allows limited exceptions for certain health care facilities.
Employers that hire employees in California should promptly review and update their employment application forms and policies in order to comply with the new law.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
January 12, 2017
Existing law prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for specified activities in the aftermath of those acts. SeeLabor Code section 230.
Existing law prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for specified activities in the aftermath of those acts. See Labor Code section 230.
California Assembly Bill AB 2337 (the Act), passed in 2016, amended Labor Code section 230.1 to require that private employers with 25 or more employees provide employees information about their rights to appear in court, their rights to accommodation to protect their safety while at work, and their right to freedom from discrimination or retaliation based on their status as victims of domestic violence, sexual assault, or stalking. The Act requires that an employer provide new employees written notice of these rights upon hire and other employees upon request.
The Act charges the Labor Commissioner with creating a written notice for this purpose and posting it on the Commissioner’s website or before July 1, 2017, which is also the date when employers must begin complying with the Act. An Employer may use the form posted by the Labor Commissioner or develop its own form which must be substantially similar in content or clarity.
Once the notice is available, unless there is a compelling reason not to do so, it would be advisable to use the Labor Commissioner’s form and give it to all employees regardless of whether they request it.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin for more information.
Helena Kobrin
January 6, 2017