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Commencing May 1, 2015, all employers (regardless of where located) must pay wages of at least $12.25 per hour to each employee who performs work in San Francisco (including temporary and part-time employees).
Commencing May 1, 2015, all employers (regardless of where located) must pay wages of at least $12.25 per hour to each employee who performs work in San Francisco (including temporary and part-time employees). As discussed in our prior blog article San Francisco Minimum Wage Escalates to $11.05 and Beyond, the minimum wage requirement, set forth in the November 4, 2014 San Francisco Minimum Wage Ordinance, applies to adult and minor employees who work two or more hours per workweek, including non-city resident workers performing work in San Francisco. Wages includes salary, hourly pay, piece rate, commissions and non-discretionary performance bonuses. The San Francisco minimum wage cannot be waived by the employee except through a bona fide collective bargaining agreement.
Employees who assert their rights to receive the City’s minimum wage are protected from retaliation and may file a civil lawsuit against their employers for any violation of this ordinance. The City can investigate possible violations, shall have access to payroll records, and can enforce minimum wage requirements by ordering reinstatement, payment of back wages, and penalties. See San Francisco Office of Labor Standards Enforcement’s Frequently Asked Questions for more information.
Affected employers must also post an updated San Francisco Minimum Wage notice by May 1, 2015, where employees can read it easily.
For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Starting January 1, 2015, employers (regardless of where located) must pay wages of at least $11.05 per hour to each employee who performs work in San Francisco (including temporary and part-time employees). The minimum wage requirement, set forth in the November 4, 2014San Francisco Minimum Wage Ordinance, applies to adult and minor employees who work two or more hours per week.
Starting January 1, 2015, employers (regardless of where located) must pay wages of at least $11.05 per hour to each employee who performs work in San Francisco (including temporary and part-time employees). The minimum wage requirement, set forth in the November 4, 2014 San Francisco Minimum Wage Ordinance, applies to adult and minor employees who work two or more hours per week.
Employees who assert their rights to receive the City’s minimum wage are protected from retaliation and may file a civil lawsuit against their employers for any violation of this ordinance. The City can investigate possible violations, shall have access to payroll records, and can enforce minimum wage requirements by ordering reinstatement, payment of back wages, and penalties.
Affected employers must also post an updated San Francisco Minimum Wage notice where employees can read it easily.
For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
December 24, 2014
As covered inMandatory Paid Sick Leave for California Employees, AB 1522 requires each California employer, regardless of size (and except for those with collective bargaining agreements and other very limited exemptions), to provide paid sick leave benefits to any temporary, part-time and full-time employee once he or she has worked for that company in California for 90 or more days.
As covered in Mandatory Paid Sick Leave for California Employees, AB 1522 requires each California employer, regardless of size (and except for those with collective bargaining agreements and other very limited exemptions), to provide paid sick leave benefits to any temporary, part-time and full-time employee once he or she has worked for that company in California for 90 or more days.
The California Labor Commissioner’s office recently published its anticipated set of frequently-asked questions (“FAQs”) (and answers) on employer AB 1522 obligations. Among other aspects of the law, the material addresses:
For additional assistance understanding and implementing AB 1522, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
December 24, 2014
In aDecember 10, 2014 directive, the Internal Revenue Service (IRS) has increased its optional standard mileage reimbursement rate for an employee’s business use of his or her vehicle from 56 cents in 2014 to 57.5 cents in 2015.
In a December 10, 2014 directive, the Internal Revenue Service (IRS) has increased its optional standard mileage reimbursement rate for an employee’s business use of his or her vehicle from 56 cents in 2014 to 57.5 cents in 2015.
The government calculates the mileage rate by an annual study of the fixed and variable costs of operating an automobile, including insurance, repairs, maintenance, gas and oil.
Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred. Many employers choose to use the IRS mileage reimbursement rate to satisfy their reimbursement obligation.
According to California’s Division of Labor Standards Enforcement, using the IRS mileage reimbursement rate will generally satisfy an employer’s reimbursement obligation absent evidence demonstrating otherwise. For example, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and necessary business-related vehicle expenses, the employer must pay the difference.
For further information and assistance, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
See our related blogs:
New 2010 IRS Mileage Rate
IRS Announces New Standard Mileage Rates
Mileage Reimbursements for 2013
IRS Mileage Reimbursement Rates for 2014
Cindy Bamforth
December 19, 2014
In aDecember 10, 2014 directive, the Internal Revenue Service (IRS) has increased its optional standard mileage reimbursement rate for an employee’s business use of his or her vehicle from 56 cents in 2014 to 57.5 cents in 2015.
In a December 10, 2014 directive, the Internal Revenue Service (IRS) has increased its optional standard mileage reimbursement rate for an employee’s business use of his or her vehicle from 56 cents in 2014 to 57.5 cents in 2015.
The government calculates the mileage rate by an annual study of the fixed and variable costs of operating an automobile, including insurance, repairs, maintenance, gas and oil.
Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred. Many employers choose to use the IRS mileage reimbursement rate to satisfy their reimbursement obligation.
According to California’s Division of Labor Standards Enforcement, using the IRS mileage reimbursement rate will generally satisfy an employer’s reimbursement obligation absent evidence demonstrating otherwise. For example, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and necessary business-related vehicle expenses, the employer must pay the difference.
For further information and assistance, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
See our related blogs:
New 2010 IRS Mileage Rate
IRS Announces New Standard Mileage Rates
Mileage Reimbursements for 2013
IRS Mileage Reimbursement Rates for 2014
Cindy Bamforth
December 19, 2014
While private parties doing business are free to agree to arbitrate any dispute between them outside of the courts, an employer who presents a “take-it-or-leave-it” arbitration requirement to a job applicant as a condition of hiring...
While private parties doing business are free to agree to arbitrate any dispute between them outside of the courts, an employer who presents a “take-it-or-leave-it” arbitration requirement to a job applicant as a condition of hiring presents special problems. California’s appeals courts have been particularly dedicated – or perhaps in commerce’s view obsessively picky – in refining the detail required to render an employment arbitration agreement fair, balanced and thus enforceable in this state. The decision in Garden Fresh Restaurant Corp. v. Superior Court, 180 California Reporter , third series (Cal. Rptr. 3d) 89 (November 17, 2014), is the latest.
One of the more hotly contested refinements on arbitration agreements is the wording necessary to disqualify an employee from bringing a “class action” or “representative claim” into his or her arbitration on his individual claims. As we outlined in “Contractor Misclassification . . . Class Action?”, an employee’s class action allegations seek to include a large number of his or her co-workers claims in the lawsuit. A “representative” claim or action similarly seeks to include co-workers, but under special, streamlined criteria and procedures.
In Garden Fresh, the Court of Appeal decided that when the employment arbitration agreement does not specify whether the employee can include class action or representative claims in arbitration, it is up to a judge, not an arbitrator, to decide.
The trial judge in Garden Fresh originally declined to make the ruling on an employee’s ability to include a representative claim in her arbitration, instead referring the question for the arbitrator to decide. This was bad news to the employer Garden Fresh Restaurants since, in theory anyway, an arbitrator might well be more inclined to include class or representative actions in the arbitration out of the prospect of a more complicated and thus more profitable proceeding for that arbitrator. Handing the question to the arbitrator also raised the stakes because arbitration decisions and awards are commonly not reviewable by a court. Thus, an employer would almost certainly be stuck with an arbitrator’s ruling to allow a class or representative action, a development that could jack up considerably the leverage against the employer to settle.
However, Garden Fresh, and with it other California employers, fared better with the appellate court. Just as trial judges are required to examine agreements for their fairness on matters such as an employee’s decreased scope of claims or increased cost in arbitration, the Court of Appeal saw this as a “gateway” issue requiring judicial determination.
The irony of course is that arbitration agreements are dictated by employers. Here, Garden Fresh faced the prospect of incurring a severe blow to its operations and financial stability by virtue of incomplete contract terms on which it had required the employee to agree.
The wisdom of whether an arbitration agreement could or should actually seek to limit an individual’s ability to bring class or representative actions in his/her required arbitration is a separate question. However, if the Garden Fresh agreement had included direction on that point – or directed that the trial judge should decide it – it would have saved the fees and other resources necessary to hash out the ambiguity at two levels of the California courts. The simple “math” of an ounce of prevention equaling several thousand pounds (or dollars) of cure comes to mind.
If you need further information, please contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.
While private parties doing business are free to agree to arbitrate any dispute between them outside of the courts, an employer who presents a “take-it-or-leave-it” arbitration requirement to a job applicant as a condition of hiring presents special problems. California’s appeals courts have been particularly dedicated – or perhaps in commerce’s view obsessively picky – in refining the detail required to render an employment arbitration agreement fair, balanced and thus enforceable in this state
While private parties doing business are free to agree to arbitrate any dispute between them outside of the courts, an employer who presents a “take-it-or-leave-it” arbitration requirement to a job applicant as a condition of hiring presents special problems. California’s appeals courts have been particularly dedicated – or perhaps in commerce’s view obsessively picky – in refining the detail required to render an employment arbitration agreement fair, balanced and thus enforceable in this state. The decision in Garden Fresh Restaurant Corp. v. Superior Court, 180 California Reporter , third series (Cal. Rptr. 3d) 89 (November 17, 2014), is the latest.
One of the more hotly contested refinements on arbitration agreements is the wording necessary to disqualify an employee from bringing a “class action” or “representative claim” into his or her arbitration on his individual claims. As we outlined in “Contractor Misclassification . . . Class Action?”, an employee’s class action allegations seek to include a large number of his or her co-workers claims in the lawsuit. A “representative” claim or action similarly seeks to include co-workers, but under special, streamlined criteria and procedures.
In Garden Fresh, the Court of Appeal decided that when the employment arbitration agreement does not specify whether the employee can include class action or representative claims in arbitration, it is up to a judge, not an arbitrator, to decide.
The trial judge in Garden Fresh originally declined to make the ruling on an employee’s ability to include a representative claim in her arbitration, instead referring the question for the arbitrator to decide. This was bad news to the employer Garden Fresh Restaurants since, in theory anyway, an arbitrator might well be more inclined to include class or representative actions in the arbitration out of the prospect of a more complicated and thus more profitable proceeding for that arbitrator. Handing the question to the arbitrator also raised the stakes because arbitration decisions and awards are commonly not reviewable by a court. Thus, an employer would almost certainly be stuck with an arbitrator’s ruling to allow a class or representative action, a development that could jack up considerably the leverage against the employer to settle.
However, Garden Fresh, and with it other California employers, fared better with the appellate court. Just as trial judges are required to examine agreements for their fairness on matters such as an employee’s decreased scope of claims or increased cost in arbitration, the Court of Appeal saw this as a “gateway” issue requiring judicial determination.
The irony of course is that arbitration agreements are dictated by employers. Here, Garden Fresh faced the prospect of incurring a severe blow to its operations and financial stability by virtue of incomplete contract terms on which it had required the employee to agree.
The wisdom of whether an arbitration agreement could or should actually seek to limit an individual’s ability to bring class or representative actions in his/her required arbitration is a separate question. However, if the Garden Fresh agreement had included direction on that point – or directed that the trial judge should decide it – it would have saved the fees and other resources necessary to hash out the ambiguity at two levels of the California courts. The simple “math” of an ounce of prevention equaling several thousand pounds (or dollars) of cure comes to mind.
If you need further information, please contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.
Helena Kobrin
December 12, 2014
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.
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.
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.
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:
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 mark’s 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.