Employment Law Blog by Diana Maier

Law Offices of Diana Maier Adds Privacy Law to its Expertise

Posted by | ADA, Americans with Disability Act, CAN-SPAM, Certified Information Privacy Professional, Children's Online Privacy Protection Act, CIPP, Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, COPPA, DNC, Do Not Call Legislation, Do Not Call List, DPPA, ECPA, EPP, Facebook Postings, FACTA, Fair Credit Reporting Act, Family Education Rights and Privacy Act, FCRA, FERPA, GLBA, Health Information Portability and Accountability Act, HIPAA, JFPA, Privacy Law for Employees, Privacy Law for Employers, TCPA, Telephone Consumer Protection Act | No Comments

privacy image 2 handsWarning: Shameless self-promotion ahead.

Last week, after much, much studying, I received my privacy credential by the International Association of Privacy Professionals.  I’ll let them tell you what this means:

Certified Information Privacy Professional/United States (CIPP/US)

The Certified Information Privacy Professional/United States (CIPP/US) program launched in October 2004 as the first professional certification ever to be offered in information privacy. It has since become the preeminent credential in the field of privacy and remains the IAPP’s single largest educational program with several thousand CIPP/US-certified professionals working successfully in the field today.

The CIPP/US credential demonstrates a strong foundation in U.S. privacy laws and regulations. Subject matter areas covered include:

The U.S. legal system: definitions, sources of law and sectoral model for privacy enforcement
U.S. federal laws for protection of personal data: FCRA and FACTA, HIPAA, GLBA, COPPA and DPPA
U.S. federal regulation of marketing practices: TSR, DNC, CAN-SPAM, TCPA and JFPA
U.S. state data breach notification and select state laws
Regulation of privacy in the U.S. workplace: FCRA, EPP, ADA and ECPA plus best practices for privacy and background screening, employee testing, workplace monitoring, employee investigation and termination of employment

This means the Law Offices of Diana Maier will now advise companies and individuals on complying with US regulations around privacy.  For example, when can an employer discipline or terminate based on an employee’s posting on Facebook?  When should a dental office put in place HIPAA (Health Insurance Portability and Accountability Act) procedures?  When might a school or student need to comply, or be able to call upon, the Family Education Rights and Privacy Act (FERPA)?

Privacy law runs across many disciplines and goes way beyond employment law.  Anytime someone’s personal information might be used or accesses, privacy rights are at stake.

Currently I’m studying for the CIPP/European Union credential since I need that expertise for my in-house job.  Stay posted on that one!




What’s Required When You Terminate Employees in California?

Posted by | Employer Healthcare Requirements, Employer Help, Employer Information, Employment Law, Forms for California Employers, New Blog Post, Preventative Advice, Wage and Hour Litigation, Workplace Postings | No Comments


I write this post as I’m dealing with many clients trying to handle their terminations in a legally compliant manner (not to mention as kindly and consciously as possible).  What most employers terminating employees in California miss, are the numerous required notices and action steps they must take at or before the time of termination in order to comply with the law. There are many, and I’ve laid them out below with links to the needed forms.

1)  Give all the required forms at termination.  These include info about unemployment or disability insurance,  enrolling with Cal Cobra and a change in the employment relationship form.  Also give the employee any forms regarding relevant retirement benefits, disability, or other programs that she’s eligible for, currently enrolled in, or needs to enroll in.  Specifically:

a) For employers with 20 or more employees, provide a Consolidated Omnibus Budget Reconciliation Act (COBRA) notice and election form to employees who are participating in the employer’s group health plan the day before termination and to any of the terminating employee’s dependents on the plan.

b) Provide a Health Insurance Portability and Accountability Act (HIPAA) certificate of group health plan coverage to all terminated employees who are participating in the group health plan at the time of termination.

c) The Department of Health Care Services requires employers with 20 or more employees to provide theHealth Insurance Premium Payment (HIPP) notice, DHCS 9061, to certain employees covered under the program.

d) If termination is due to a layoff or position elimination covered under the WARN Act, notices need to be sent out 60 days prior to termination.

California Requirements

e) The California Employment Development Department (EDD) requires employers to provide their unemployment benefits pamphlet, For Your Benefit, DE 2320, to all discharged or laid off employees no later than the effective date of the discharge or layoff.

f) California Unemployment Insurance Code 1089 requires employers to give a written Notice to Employee as to Change in Relationship form to all discharged or laid off employees immediately upon termination.

g) Employers must notify any covered, terminated employees of their Cal-COBRA continuation rights. Cal-COBRA must be offered to both terminated employees of small employers (2-19 employees) and terminated employees covered under federal COBRA when their 18 months of federal COBRA coverage expires.

h) California Labor Code Section 2808(b) requires employers to provide to employees, upon termination, notification of all continuation, disability extension and conversion coverage options under any employer-sponsored coverage for which the employee may remain eligible after employment terminates.

2) Don’t forget to have employee’s entire paycheck ready to go at the moment that you terminate.  This should included unused vacation which is considered wages in California.  (If the employee quits, you have 72 hours to give her a final paycheck.)  It’s not an excuse if the employee storms out (deliver it to her at a home address if need be, or deposit it into a bank account).  Failure to pay the employee her final paycheck at the time  of termination will result in hefty fines many times the amount owed.

Here’s a good link to purchasable fillable forms and see the checklist from another source: http://www.docstoc.com/docs/47834261/Basic-Checklist-for-Termination-of-an-Employee-For-California—DOC


The Work-Product Doctrine in California, and how it Can Protect Witness Lists Created During Workplace Investigations

Posted by | Employer Help, Employer Information, Employment Law | No Comments

Written by intern Monica Baranovsky!

The work product doctrine is different from the attorney client privilege, and can cover certain communications that the attorney client privilege does not. California law also differs slightly from federal law regarding the work product doctrine.

The purpose of the work product doctrine is laid out in California Code of Civil Procedure § 2018.020. It is intended to preserve privacy in trial preparation so as to encourage thorough trial preparation and investigation of both favorable and unfavorable aspects of a case. To this end, it is meant to protect a lawyer from taking undue advantage of their adversary’s industry and efforts. This is a direct adoption of the case law set forth in Hickman v. Taylor, 329 U.S. 495 (1947).

The attorney is the sole holder of this privilege, and it is considered separate from the attorney-client privilege because it is an individual privacy interest that belongs to the attorney.

California Code of Civil Procedure § 20118.030 divides the work product doctrine into two separate categories: Absolute and qualified. The absolute privilege protects certain things completely from being discovered. This includes writings that reflect an attorney’s impressions, conclusions, opinions, or legal research or theories. The term “writing,” in § 2016.020(c), includes any form of recorded information including audio recordings. On the other hand, any attorney work product that does not fall under the absolute privilege falls under subdivision (b) of § 2018.030, which provides qualified protection. Specifically, this work product is protected and not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense.

There is no specific definition of what is or isn’t qualified work product in the Civil Discovery Act. California courts have been proceeding on a case-by-case basis and focus on a distinction between derivative/interpretative material on the one hand, and nonderivative/evidentiary material on the other. Work product protection generally extends to “derivative” material, or anything created by or derived from an attorney’s work on behalf of a client that reflects the attorney’s evaluation or interpretation of the law or facts involved. Anything that’s purely evidentiary is not protected.

There is currently a split in California courts about how to handle witness lists gathered during workplace investigations, and whether they are discoverable under work product or not.

Nacht & Lewis Architects Inc. v. Superior Court, (1996) 47 Cal. App. 4th 214 dealt with witness interviews and held that both the lists of witnesses and transcripts or recordings of witness interviews were in fact protected under the work product doctrine. The court was concerned about the difference between statements made by witnesses on their own initiative, then given to counsel for defense, versus statements actually taken by counsel. Regarding statements given voluntarily and then handed over, the court believed that no work product protection would be available as to either the statements or a list of those witnesses. Id. at 217-218. However, interviews conducted by counsel themselves would be treated differently and considered covered under work product doctrine. Id. This is because interviews recorded in notes or otherwise, by an attorney, would reveal a particular lawyer’s evaluation of the case since they chose certain interviewees for reasons specific to their theories on the case. Id. Furthermore, these interviews would be guided by questions the lawyer deemed relevant and then recorded by the lawyer with potential notes and comments that reflect the lawyer’s opinions and thoughts on the case. Id.

Coito v. Superior Court, (2010) 182 Cal. App. 4th 758 is in direct conflict with Nacht. It claims to reject the reasoning laid out in Nacht, but does not supercede it. In Coito, a request for production of documents by petitioner sought names and information of witnesses from whom written and recorded statements had been obtained. Counsel for the state had sent investigators to interview the witnesses and provide questions to the investigators that counsel wanted answered. Some of the statements were recorded.

The court of appeal held that neither the witness lists nor the recorded conversations should be afforded either absolute or qualified work product. Id. at 351. The court rejected the theory that who a lawyer chooses to interview could show counsel’s impressions of a case. They said that while it is possible for a lawyer to reveal his or her thoughts about a case by the way in which they conduct a witness interview, this is generally too broad of a proposition to be considered generally useful when extending the protections of the work product doctrine. Id. Competent lawyers, the court feels, should be able to conduct their interviews, both in who they choose and how they notate the interviews, in such a way as to disguise their impressions of a case.

It should be noted that Coito will be heard by the California Supreme Court, who granted review on 6/9/2010. This should help clear up the discrepancy between the two cases. Until then, however, a few things must be taken into consideration since this opinion significantly widens the scope of what information is discoverable under the work-product doctrine.

First, the attorney-client privilege will sometimes cover things that the work-product doctrine does not. They are independent protections from one another and it is possible that witness lists prepared in the course of an attorney-client relationship for legal purposes might be protected. Second, until the California supreme court weight in, Nacht is still good law and courts might choose to follow its reasoning in deciding how to classify witness lists and witness recordings. Finally, the court does give a possible hint to a lawyer who is performing a witness interview. They state that “if there were something unique about a particular witness interview that revealed interpretive rather than evidentiary information, nothing about our holding would prevent the attorney resisting discovery from requesting an in camera hearing before the superior court and the opportunity to convince that court that the interview or some portion of it should be protected as qualified work product.” Id. at 351. This would seem to indicate that if a witness interview transcript was not recorded or written down verbatim, and was selectively written to incorporate only relevant statements combined with a lawyers thoughts and impressions, that it would not fall under the scope of Coito and might still be considered work-product doctrine.


Posted by | Employer Help, Employer Information, Employment Law | No Comments

This week’s tip for financial service employers (and other companies): train all your employees, not just those required by law,  on preventing sexual harassment in the workplace.

Often times I have a sense which companies will successfully defend against a sexual harassment lawsuit and those that won’t simply by looking at their training records.  While A.B. 1825 only requires those companies with 50 or more employees to train their employees, the firms that take litigation prevention seriously train whether required by law or not.  These firms don’t just train their managers, as the law requires, either.  They train all their employees, from the President/CEO, to the part-time admin who is only marginally involved in company life.  Often times these firms are not financial service organizations.

Why are companies who train in this way successful?  Because they recognize that a plaintiff establishes defendant liability in a sexual harassment case by showing that the employer failed to take preventative steps.  In fact, section 12940(k) of the California Government Codes states that is unlawful “ for an employer…to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”

What do courts look at to decide if a company has done what it can to prevent harassment? You guessed it: sexual harassment prevention training is at the top of their list.

Think about it logically.  Companies cannot control the conduct of their employees. Unless you’re dealing with a manager sexually harassing a subordinate employee (in which case the employer is almost always liable), what the employer did to discourage the behavior in the first place is vital.  Therefore, training is a fast, relatively inexpensive way to assure protection in the case of a lawsuit. When considering how much it will save a company in terms of legal fees, hosting sexual harassment training every two years for all employees is a no-brainer.

During the Spring I’m going to host a training that attorneys can attend for MCLE credit and that garden-variety employees can attend to satisfy the  AB1825 requirement.  If you or someone you know is interested please let me know.  It will be an extremely inexpensive way to do it as well since I usually do these workshops for exposure, not profit.  Admission will probably be a sliding scale from $20-$60.  Far cheaper than the $1-3K or so I often charge to train in-house at a company!  Just shoot me an email: diana@dianamaierlaw.com

- See more at: http://dianamaierlaw.com.p8.hostingprod.com/blog/2011/02/#sthash.UrzTaAPP.dpuf


Posted by | Employee Lawsuits, Employer Help, Employer Information, Employment Law, Hiring Employees | No Comments

This weeks’ tip for the  financial services industry: be sure that anyone you classify as a contractor is truly that! If you weren’t aware of it, this is the hot topic of the day.  The Obama administration just invested millions in the Department of Labor’s (DOL) enforcement mechanism to crack down on employers who wrongly classify employees as contractors.   A recent CNN Money article spells out the problem well and cites the statistic that the federal government anticipates raising $7 billion over the next 10 years in these crackdowns alone. The New York Times also recently wrote an article on the topic citing that same statistic. The Department of Labor Standards Enforcement (DLSE) (the state’s version of the DOL), has already been prosecuting these actions like gangbusters.  An employee sent me an email today asking me about suing his former employer over misclassification, and an employer contacted me last week because he was being audited by the DLSE.  A stop work order was placed on his business until the DLSE hearing occurred.  If you are in doubt, even in the slightest, err on the side of making someone an employee.

How do you know if someone is a contractor?  This is the subject of a talk I give annually to employers and lawyers alike because it’s complicated.  But there are a few key things you can look for.  1) Does the person who is doing work for you also provide work for numerous companies/individuals?  That can often point to contractor status, i.e. that the person is operating independently, as her own business, and is not subject to your control.  2) Does that person work from her own location, using her own tools/resources, and simply provide you the end result of the work?  3)  Do you, the company, provide very little guidance to the person performing the work, other than telling her what needs to be done?  If you’re telling her the “how” of the work, you probably don’t have an independent contractor.  Classic examples of an independent contractor would be your firm’s non-in-house attorney, or your accountant who works offsite and only works for you a few hours a month, while simultaneously doing work for many other clients.

I am happy to send anyone who’s interested the full power point presentation I do on this topic explaining how firms are caught and audited, and how you can discern contractor from employee status.  However, the DLSE also has some great short and sweet resources on the topic here (click on DLSE).  Good luck!

- See more at: http://dianamaierlaw.com.p8.hostingprod.com/blog/2011/02/#sthash.UrzTaAPP.dpuf

Today’s Consenting Relationship Might Be Tomorrow’s Sexual Harassment Suit…

Posted by | Employee Lawsuits, Employer Help, Employer Information, Sexual Harassment Lawsuits | No Comments

Yes, I admit I ripped off this “consenting” phrase from sexual harassment prevention training I recently went to, but I couldn’t agree with the point more.   Just last week another high-profile sexual harassment case arose from the same set of facts. The article summarizing the case stated: “…Kenya Burks, who was employed as the Chief of Staff with the city of Vicksburg, initially had a consensual sexual relationship with Mayor Paul Winfield. Ms. Burks alleges in her complaint that during her employment that she attempted to end the consensual sexual relationship with Mayor Winfield after he became physically abusive; however, Mayor Winfield continued his sexual advances toward Ms. Winfield even though she had informed him that they were unwanted on numerous occasions. Finally, the complaint alleges that Mayor Winfield terminated Ms. Burks and threatened frivolous criminal charges against her in retaliation for her refusing to continue the sexual relationship with Mayor Winfield.”

This story is so commonplace that I’m sure it must be the number one way that sexual harassment lawsuits come to pass. So beware: today’s consensual, innocuous workplace romance can become tomorrow’s workplace headache. How can you protect yourself? Have a no dating policy in place and, if employees insist on dating, have them sign a dating waiver that outlines the risk they are taking, waives liability for the company, and articulates ways in which consensual relationships can become non-consensual. This is particularly important for supervisor-supervisee relationships. A sample waiver might say this:

As of Effective Date, Employee A and Employee B acknowledge again that they have a voluntary dating relationship and that they are equal co-workers. They acknowledge that they entered into this relationship voluntarily, with out duress, and are engaging in the relationship purely for personal reasons.

B. Neither Employee has requested or expects work-related favoritism from the other or from Company as a result of this dating relationship.

C. As of the Effective Date, Employee A and Employee B are not aware of any conflicts related to their dating  relationship; however, acknowledge the potential for conflicts to arise.

D. As of the Effective Date, Employee A and Employee B are not aware of any conduct that they would consider to be wrongful on the part of the Company, its employees, or other affiliated entities and waive any claim potentially related to same.

E. Should Employee A or Employee B consider the other’s conduct to be sexually harassing at any time, they will immediately inform ___of this.

F. Any such continued employment does not limit Company’s rights to terminate the at-will employment of either Employee A or Employee B, to request that one or both of the employees leave their current position and interview for a new position at Company (with no conflicts of interest), or to leave Company altogether.

Keep in mind that such a waiver will not erase company’s liability, but it will go a long way toward bringing potential problems out into the open before they become lawsuits.

- See more at: http://dianamaierlaw.com.p8.hostingprod.com/blog/2012/02/#sthash.6mYH3lY9.dpuf


Posted by | Workplace Investigations | No Comments

Potential workplace investigation clients have been asking me a lot of questions lately about who should conduct an investigation, and how, in order to garner the maximum legal protection such investigations may provide.  In short, to get the most bang for your buck, it’s important to hire someone licensed to conduct investigations (generally a private investigator or attorney, see Business and Professions Code Section 7520 et seq),  and to follow the dictates of Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal. 4th 93.  In Cotran, the California Supreme Court explained that the reasonableness of the employer’s investigation into an employee’s claim of harassment, not whether the harassment actually occurred, determined whether the employer could be liable for wrongful termination of an accused harasser.

Reasonableness was essentially determined by determining whether the investigation contained a few key ingredients.  They included: promptness of a company’s response to the allegations, the hiring of an impartial investigator who is trained in the skills required for interviewing witnesses and assessing credibility, whether allegations were kept confidential during the investigation (so as not to contaminate the reliability of information the investigator gathers); how thorough the investigation was, and whether the investigator made credibility determinations that ultimately allowed management to decide whether something actionable occurred.  California Employment Lawyers Association (CELA) member Michael Robbins wrote an excellent article on this topic.

The same year as the Cotran decision, the California Court of Appeal in Silva v. Lucky Stores, Inc. (1998) 76 Cal.Rptr.2d382 affirmed the elements of a reasonable investigation outlined in Cotran. The Silva court held that the reasonableness of an employer’s investigation depended on whether the investigation was timely, conducted by a competent investigator, and was reasonable under the circumstances.


Posted by | Employee Health Coverage, Family Healthcare, Healthy San Francisco Program | No Comments

Recently, San Francisco passed an ordinance called Healthy San Francisco.  The city’s website states that Healthy San Francisco is a program that was created by the City to provide affordable medical care to uninsured people living in San Francisco.  Participants choose a Medical Home to go to when they are sick, as well as for preventive care to help keep them healthy.

While Healthy San Francisco provides basic and ongoing medical care, the program is not health insurance.  Healthy San Francisco offers a limited network of health care providers.

In July 2006, the San Francisco Board of Supervisors passed the Health Care Security Ordinance, which created the Healthy San Francisco program and made San Francisco the first city in the nation to provide access to health care services for all adult residents without health insurance. Healthy San Francisco, a program of the San Francisco Department of Public Health (DPH), is “not a health insurance program, but it provides uninsured residents access to affordable basic and ongoing health care services, regardless of immigration status, employment status, or pre-existing medical conditions.”

All San Francisco residents, ages 18-64, who have been uninsured for at least 90 days and who are ineligible for other public programs, are eligible for Healthy San Francisco. A key feature of Healthy San Francisco is the use of medical homes, designed to improve the quality and continuity of care. Upon enrollment, participants choose a medical home from among participating clinics.

But Healthy San Francisco has its problems.  While a recent Kaiser Family Foundaton survey gave the program good reviews, other reports indicate that much of the money that is paid by the public ostensibly for the program, does not actually go toward funding health care for employees.  In addition, many employers contact me extremely confused by the ordinance’s provisions and how to enforce them.

In any case, if you are an employer with employees based in San Francisco, its important to understand the ordinance and to comply with it.  In addition, it’s critical for SF employers to understand SF’s paid sick leave laws. For this reason, many of my posts will explain aspects of this ordinance and the SF paid sick leave.  Please feel free to email or call me if you have additional questions that are not answered here.

More Things to Do as an Employer in California

Posted by | Employer Help, Employer Information, Hiring Employees | No Comments


1) Consult with an employment lawyer before making large decisions like terminating, putting an employee on leave, etc.

2) Consider getting professional insurance in case of a lawsuit by an employee or client

3) Make sure you are in compliance with wage and hour law in terms of how you are paying your employees, e.g. always pay overtime at an overtime rate unless you are certain your employees are exempt.

4) Consider a workplace handbook. California Chamber of Commerce has a good place to start.

5) Ensure that you are in compliance with OSHA laws.

6) Make sure any employment applications or hiring guidelines comply with state or federal law.

7) Consider having the workplace audited on a yearly basis for legal compliance. Have someone come in and look at how you’re handling employees and make sure there are no obvious errors in compliance with state and federal employment laws.

8) Have an employment at-will clause that each employee signs and keep it for your records.

Personal Attendant Overtime Exemption in California: A Thing of the Past.

Posted by | AB 241 Legislation, California Personal Attendants, Certified Nurse Assistant Law, Employee Lawsuits, Employment Law, Family Healthcare, Hiring Employees, Home Care Workers, Nanny Law, Overtime Exemption, Personal Attendants, Wage and Hour Exemption Law, Wage and Hour Exemptions, Wage and Hour Litigation | No Comments

personal attendant


New legislation in California means good news for employees (maybe) and bad news for domestic employers (for sure): As of January 1, 2014, companies or individuals  who hire persons to provide personal attendant care will need to provide overtime to those employees who work over 9 hours a day and 45 hours in a week.   The bill does not change the fact that personal attendants are still exempt from receiving meal or rest breaks under the new legislation.

New Legislation Requires Overtime to Be Paid to certain nannies, domestic workers, personal attendants, certified nursing assistants, and others providing home care services in California.

AB 241, sponsored by Tom Ammiano (D-SF) means that most employers will need to pay overtime, thus driving up the costs for these agencies that generally are not highly lucrative to start.  Thus, the claim that this is bad news for employers.  It’s good news for employees, only maybe, because I predict (seeing how my clients are scrambling to comply with it) that many companies will go out of business as a result of the legislation.  Families that use home care workers will likely cut back on hours to comply with the legislation.

The bill does exempt workers who are contracted through a regional or state agency either directly or via their employer.  For example, if a private agency is paid by the local regional center for the care they provide, they will not be impacted.  However, keep reading to see that next year federal regulations WILL impact these groups as well.  Also, it’s important to note that personal attendants, nannies, home care workers, etc. who spend more than 20% of their time doing things other than direct care (such as housekeeping, errands, etc.) are not exempt from overtime and never have been.

Like most pieces of legislation seemingly favoring employees, AB 241′s proponents claim it as a win for employees because it means that they will get more money for the hours they work.  However, like most legislation and legal decisions, the arguments about it rarely address the deeper issues it creates: In this case those issues are created by the many business that will need to close down as a result, meaning less work for employees overall.

What Are Personal Attendants?

Personal attendants include any persons employed by a private householder or by any third-party employer recognized in the healthcare industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision.  Personal attendants are often used to care for children (think nanny); older persons (think certified nursing assistant); and those with development disabilities (often called home health care workers).  Generally,direct care workers are workers who provide home care services, such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions.Their exemptions under both California and federal law are often hotly debated.

Of course, the federal employment agency, the U.S. Labor Department, has also hopped on the bandwagon.  It issued a press release this month indicate that home health care workers won’t be exempted from overtime starting January 1, 2015.  This will apply to any agency, whether government or private, that places home health care workers in residences or living facilities. It will not apply to private families who use personal attendants.  However, if those families reside in California, they are paying OT anyway via AB 241.

As always, feel free to email or call me with any questions on the legislation.