Publications Archives

By: Kyle D. Kring

The U.S. Labor Department's new guidelines for unpaid interns seek to make it easier for employers to use unpaid interns. The guidelines consist of a new "primary beneficiary test" using seven factors to determine whether the intern meets the standard for being unpaid. This standard is much more lenient for employers after the previous six factor test faced a great deal of criticism.

California employers should be aware of the new guidelines. California has yet to develop policy or case law of its own, making the FLSA guidelines applicable in California.

By: Kenneth W. Chung

If your lease contains an option to extend the lease term and you intend to extend your lease, then you must properly and timely send your written option exercise notice. If your notice is even one day late, then the landlord may reject your request to extend the lease term. In such event, the landlord has the right to evict you from the premises, increase your rent to an amount higher than fair market value, or require other payments or terms as a condition to extending your lease. In order to avoid such potential consequences, the option exercise notice must be properly and timely sent.

Unless you have a form lease, no two leases are identical. Therefore, you should review your lease and option provisions carefully so that you may understand and satisfy all requirements. However, please note that most leases require the option exercise notice to be sent within a certain time period before the lease expiration date. The following is a sample provision:

Tenant may exercise the Option by first giving to Landlord a minimum of 6 months written notice, but not more than 12 months written notice of Tenant's intent to exercise the Option.

By: Kyle D. Kring

Recently, in Augustus v. ABM Security Services, Inc., the Supreme Court of California ruled that employers may not require their employees to remain "on call" during rest periods. The Court noted that, "state law prohibits on-duty and on-call rest periods" and "during rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time."

In Augustus, plaintiff and the members of the class were security guards for defendant ABM. They were required to keep their pages and radios on during rest periods and remain available to answer and respond to calls if the necessary. Plaintiffs alleged that ABM failed to provide uninterrupted rest periods as required by state law and ABM acknowledged the fact. ABM argued that their policy did not violate state law because it simply required the guards to keep their devices on in case an incident arose. Importantly, plaintiffs presented evidence that breaks were regularly uninterrupted.

The trial court granted plaintiff's motion for summary judgment on damages, awarding $90 million, finding that an on-call break is no break at all. The Court of Appeal reversed, concluding that merely being on-call does not equate to performing work and therefore state law does not require employers to provide off-duty rest periods.

By: Kyle D. Kring

Posted: December 5, 2016

Please be advised the court in the Nisei Farmers League v. California Labor and Workforce Development Agency (State of California), the case pending in the superior court for the County of Fresno, issued its final ruling on plaintiff's request for a Stay of AB 1513, which was part of plaintiff Nisei Farmer's prior Motion for Declaratory Relief. The court denied the plaintiff's request for a stay and granted the state's demurrer to the complaint without leave to amend effectively ending the case at the trial court level, but for plaintiffs filing a Writ or an Appeal of the ruling (depending on whether the plaintiffs are able to amend as discussed further below). A copy of the court's Minute Order can be viewed here with the Modified Tentative Ruling on the State's Demurrer and the Tentative Ruling on the Plaintiff's Motion for Partial Declaratory Relief.

As you may recall, the Plaintiff Nisei Farmers League and CBIA recently filed a Motion for Declaratory Relief, following the denial of its motion for a Preliminary Injunction. The plaintiffs argued that AB 1513 and specifically, "actual sums due" and "non-productive time" were ambiguous as a matter of law. The court disagreed finding "in this legal context, 'actual sums due' and 'non-productive time' are defined with 'reasonable specificity' and are not vague and ambiguous as a matter of law."