Contractor or employee: Post-Dynamex Confusion Reigns

On Friday, September 18, 2019, the biggest change in employment law in many decades across the country was signed into law by Gov. Gavin Newsom.  With nary a sound in the major news outlets, this law is poised to up-end the job classifications for tens of thousands of average Californians.  At the last minute, fifty industries were given sweeping exemptions, demonstrating who still wields real power in Sacramento in this Democratic super-supermajority legislature.

The key to the new law is the third prong of the new three-part test:  Is the employee working in the same field as their employer?  For example, many lawyers work as “contract” lawyers for law firms, giving them flexibility but also lower salaries.  Likewise, some doctors work on contracts the same way.  Construction outfits also hire contractors — but plumbing companies cannot hire plumbers on

So of course, some of the people who can still use the contract employee, law firms, accountancies, doctors, are no surprise.  Others, such as strippers, Rabbis and fishermen seem odd but won’t impact too many Californians.

One industry group that can still hire “contractors” is a big big surprise — building construction firms are exempt.   More and more construction firms are using laborers as contract employees, pushing down workers compensation liablities to the lowest common denominator and the persons who can afford it the least.

Sadly, the court in Dynamex was hailed as providing a simple, three-step test to clarify and strengthen workers’ rights.  This new bill remains full of gaps, loopholes and weaknesses.  Both sides will claim victory, and the big “gig economy” players have been promised that “we’ll still consider a carve out for you also.”

For federal cases and the majority of the country, the twenty-party IRS test still remains — but with 50 carve-outs and new vague language, how much has really changed remains to be seen? Some people may see massive changes, corporate restructuring, new hires and job reclassifications.  Some people may have to sue to get the Dynamex test applied to them.  Uber and Lyft have been promised continued potential carve-outs.  So while everyone in Sacramento pats themselves on the back, AB 5 is certain to do one thing:  create decades of litigation over the same old same old: are you a contractor or an employee?

https://calmatters.org/economy/2019/09/whos-in-whos-out-of-ab-5/

Formal handshake deals are the new contracts?

A recent article in the Harvard Business Review actually argues that handshake deals should replace written contracts.   “Relational contracts that rely on parties’ making choices in their mutual self-interest are nothing new, of course. The benefits of informal “handshake” deals have been studied and promoted over the decades…”  HBR admits that the basic contract is not going away:  “Some relationships, such as those involving the purchase of commodity products and services, are truly transactional and only need traditional contracts.”  But some of these new ideas may be useful as small businesses work on building networks and relationships in today’s challenging marketplaces. If you are a small business person looking for cost-effective legal advice on contracts and negotiations, call Carolin Shining for unique approaches and one-on-one service:

https://hbr.org/2019/09/a-new-approach-to-contracts

CDC Climate Change Epidemiologist Files Whistleblower Lawsuit Against the CDC

Is there top-down control over health and safety that is not evidence-based, but politically-based?  CDC epidemiologist George Luber claims that he has been gagged and silenced as his programs have been shunted aside by the Trump administration.  These included simply studying areas of North Carolina which may be subject to flooding and disease and warning camp counselors of the danges of ticsk.  The programs were approved by Congress and Luber alleged that have now been pushed aside.  An anonymous official is quoted as follows:

“Anything to do with the ACA [Affordable Care Act], abortion, effects of climate change on health, are tightly controlled by the administration’s political appointees,” the official said in the 2018 survey. “Other topics, though, are generally left alone.”

Take a look:

https://www.sciencemag.org/news/2019/08/climate-expert-cdc-poised-file-whistleblower-complaint-over-treatment

Defending Speech: ACLU sues to Stop Arrests for Criminal Libel in New Hampshire

Libel, defamation and the boundaries of social media remain in the spotlight — the ACLU recently filed a lawsuit for a man arrested for making comments about New Hampshire police on Facebook.  Defamation laws vary from state to state, but expect this one to go to the U.S. Supreme Court for the final say.

Actress de Havilland’s Lawsuit Rejected: “Don’t Put Words in My Mouth” Now Completely Toothless

At the age of 102, the famed actress Olivia de Havilland has continued to fight for her rights against the entertainment industry.  Unfortunately today the U.S. Supreme Court refused to reinstate her lawsuit against the makers of FX’s Feud: Bette and Joan.  Ms. de Havilland asserted that this show’s exceedingly unflattering portrayal of her was defamatory and demeaning.  Using a very specialized California free speech law designed to nip defamation lawsuits in the bud, Ms. de Havilland’s lawsuit was upheld by the trial court, but then thrown out at the appellate level.  Appeals to the California Supreme Court and now the U.S. Supreme Court have been futile.

Despite her loss, kudos should go to a woman who fought the studios as a young actress, and who has kept up a good fight to the bitter end.

The question now is whether or not this is sets a bad precedent for famous figures who are portrayed in an extremely negative light.   Putting words in someone’s mouth may become an approved means for creating a stir to gin up the ratings.  These cases turn on facts, so it remains to be seen how this will impact future bad actors.

https://www.hollywoodreporter.com/thr-esq/supreme-court-denies-review-olivia-de-havillands-feud-lawsuit-1174078

Protecting mentally ill minors: a legal roadmap for help?

Many Californians have become overwhelmed or numb at stories of mentally ill persons who become homeless or who cannot get treatment.  One recent case demonstrates a path to how minors may receive help in our system and not be allowed to fall through the cracks.

The case below, In re: Conservatorship of the person M.B., the full resources of Alameda County’s social services network were used to try to assist an admitted severely mentally ill minor.  The minor had literally been hospitalized dozens of time argued that after a few weeks of her most recent stay, due process should allow her to live in a lower level facility than her medical team approved. Whether or not you agree with the result here (and it is always hard to know all the facts from an appellate opinion with a confidential case), we all read about when there is disastrous harm because people fall through the cracks. Maybe in this case a young woman has been given the attention and services to try and help her truly find recovery and stability.

https://law.justia.com/cases/california/court-of-appeal/2018/a152586.html

Nursing Home to Pay $450,000 In Settlement of Patient Dumping Case

Patient dumping is a serious problem as our population ages.   Recently, the Avalon Villa Care Center at 12029 S. Avalon Blvd. settled a major case with the City by agreeing in part to improve its staffing regarding care plans.

Nursing homes are often called “skilled nursing facilities” or “SNFs”.  Many people are not aware that these incidents are reported to the state of California and available online.  If you search this database, you will find ratings that are easily understood — it is surprising how even the cleanest looking, brightest facilities may have reported safety incidents including falls, failing to provide care plans and other citations from state investigators.  Make sure your loved one gets the best care possible, and if you suspect or experience a problem, you can also call state investigators.  You can also call the Shining Law Firm and we will respond and evaluate the situation immediately.

California search for health care facilities:

http://hfcis.cdph.ca.gov/search.asx

Articles on the recent settlement:

http://abc7.com/south-la-facility-accused-of-patient-dumping-reaches-$450k-settlement/3671975/

http://labusinessjournal.com/news/2018/jun/28/city-attorney-wins-450000-settlement-nursing-home-/

In copyright law, when is a phone book like a James Joyce novel? Only the data collector knows!

It is an old “chestnut” in the law that phone books cannot be copyrighted — they are just lists of data including plain names and numbers. However, today in Experian v National Marketing, No. 16-16987 (D.C. No. 2:13-cv-00618-SPL, the Ninth Circuit held that plain-seeming Experian databases of consumer information could have enough creativity to become copyrighted material:

“The novel federal question in this appeal is whether lists
of names with addresses are copyrightable when they are the
product of a sophisticated process to ensure accuracy and
utility. In other words, whether such lists are more like a
telephone book, that the Supreme Court has held lacks any
creative spark, or more like Joyce’s Ulysses that changed the
course of 20th century literature. The answer, it turns out,
lies somewhere in between, but closer to a telephone book.”

This odd quote doesn’t tell the whole tale, as this opinion is good news, bad news, good news. Good news: Experian’s databases were culled and curated just barely enough to be entitled to copyright protection. Bad news: there is no copyright theft because National did just enough to make its data different (a very low bar). But good news in the end: Experian might still be able to prove that National stole its trade secrets.

So after these twists and turns, Experian might just now try and enjoy a quote from Ulysses as it looks forward to another round of lower court trials and tribulations:

“Hold to the now, the here, through which all future plunges to the past.”

http://sos.metnews.com/sos.cgi?0618//16-16987

AB 1971 Seeks To Expand Medical Care for the Mentally Ill Homeless

Today’s article in the LA Times reports on a new bill that might offer the beginnings of real solutions for thousands of homeless people with mental illness. Controversial at its core, a 1967 mental health bill signed by President Reagan set boundaries in who could be confined ‘against their will’. These standards would be broadened for the purpose of providing medical care.

Too many people are dying on California streets — people who could be easily saved. Take a look at this bill and see for yourself whether it is a real start at a solution for those most in need.

http://www.latimes.com/local/california/la-me-5150-medical-treatment-20180418-story.html

Garbage In, Garbarge Out — More Major Press Coverage of recycLA’s failures

Today, both the Los Angeles Times and the Wall Street Journal have published must-read articles. Both papers are now sharply critical of the new Los Angeles waste hauling monopolies called “recycLA”. The Shining Law Firm is pushing forward with its lawsuit against the City on behalf of commercial property owners, apartment owners, HOA members and tenants who are paying the increased and illegal assessments and fees under this program. Please continue to send us your evidence and testimonials of how you are being negatively impacted by these fees and burdens. We’ll keep fighting to get the City to do what is right, roll back this program and refund all illegal costs!

Wall Street Journal: “Garbage In, Garbage Out”:
https://www.wsj.com/articles/garbage-in-garbage-out-in-l-a-1517961326

L.A. Times: “Is Anyone In Charge at L.A. City Hall”:
http://www.latimes.com/local/california/la-me-lopez-recycla-garcetti-02072018-story.html