The Letter of the Law: September 2014
IN THIS ISSUE:.
On September 10, 2014, Governor Brown signed AB 1522 otherwise known as the Healthy Workplaces, Healthy Families Act of 2014.
Specifically, the Act amends Labor Code § 2810.5 to provide that an employee who, on or after July 1, 2015, works in California for 30-days or more within a year from the commencement of employment is entitled to paid sick days to be accrued at a rate of no less than one hour for every 30 hours worked. The employee is entitled to use accrued sick days after the 91st day of employment, typically the end of the Introductory Period. The Act authorizes an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. Failure to comply with the new law subjects an employer to administrative fines imposed by the Labor Commissioner and authorizes the Labor Commissioner or the Attorney General to recover civil penalties, which includes attorneys’ fees and costs.
There are some limits on accrual. An employer will be allowed to cap total accrual at 48 hours or six days. Employers that already provide for paid sick leave per their Company policy that covers the new three paid sick days per year, will not have to provide an additional three days. Employers will be required to provide written notice to its employees of this new law.
Some employers are specifically excluded from this law, including in home supportive services, such as home health care givers. Also excluded are individuals employed by an air carrier as flight deck or cabin crew member, whom are covered under federal labor laws.
Governor Brown proclaimed in a written statement, “make no mistake, California is putting its workers first.” California is one of only two states (Connecticut) that has adopted a paid sick leave law.
On the road to the Governor’s desk, this bill’s passage through the Assembly and Senate was not without its share of drama. According to the Bill Analysis, opponents to the bill argued while many employers voluntarily offer sick leave for full-time employees, expanding this mandate on all employer will create a huge fiscal burden on employers. “For example, many employers currently offer paid sick leave which accrues on a per month or per pay period basis. However, this bill requires them to completely change their existing policies in order to mirror the accrual rate proposed under this Bill.” Opponents also argue that this creates new exposure for employers who do not comply, opening up the risk for litigation.
Supporters of the Bill include most unions and employee based associations. The author and proponents of the Bill pointed to studies which have found that providing sick days to workers saves money for businesses by reducing turnover, reducing the spread of illness in the workplace, and improving workers’ morale and productivity.
Employers will need to anticipate the change which goes into effect on July 1, 2015 and plan accordingly. Planning should include being prepared to provide written notice to all employees. For those employers not already providing paid sick leave of at least three days a year should ensure that the Sick Leave policy in the Employee Handbook or Manual is revised.
By: Justin R. Taruc.
Nevada’s rule on the admissibility of expert witness testimony is codified in Nevada Revised Statute 50.275, which states that a qualified expert witness may testify as to matters within that expert’s scope of knowledge, so long as such testimony will assist the trier of fact to understand the evidence or determine a fact in issue. While the Nevada Legislature laid the foundation to allow expert testimony to be presented and granted judges the discretion as to whether to allow such testimony, it was not until Hallmark v. Eldridge (2008) 124 Nev. 492, that the Nevada Supreme Court gave further clarification on the factors judges were to consider when admitting expert testimony evidence.
In Hallmark, the Nevada Supreme Court clarified the three requirements that must be satisfied before an expert witness is able to testify pursuant to NRS 50.275. First, the witness must be qualified in an area of scientific, technical, or other specialized knowledge (known as the “qualification requirement”). Second, the witness’s specialized knowledge must assist the trier of fact to understand the evidence or to determine a fact in issue (known as the “assistance requirement”). Finally, the witness’s testimony must be limited to the matters within the scope of the witness’s knowledge (known as the “limited scope requirement”).
In order to meet the qualification requirement, courts are advised to consider the witness’s formal schooling and academic degrees, as well as licensure, employment experience, practical experience, and specialized training. Notably, the Court warned that the enumerated factors were not an exhaustive list, and other factors may be considered. What these factors all have in common is their underlying attempt to show that the witness is competent to provide testimony in a specialized field. Where the witness is not qualified, the witness should not be able to testify.
Likewise, in order to meet the assistance requirement, the Court determined that an expert’s testimony will assist the trier of fact only when it is relevant and the product of reliable methodology, considering factors including whether the opinion is within a recognized field of expertise, is testable and has been tested, published and subject to peer review, generally accepted in the scientific community, and based more on particularized facts rather than assumption, conjecture, or generalization. Lastly, to meet the requisite limited scope requirement, the witness must only testify as to matters which are within the scope of his specialized knowledge.
While NRS 50.275 tracks the Federal Rule of Evidence (“FRE”) regarding admissibility of expert testimony, namely FRE Rule 702, Hallmark and its progeny markedly differ from those holdings handed down in federal court regarding the rigid application of the factors to be considered when determining whether a witness is to be qualified as an expert. Particularly, while the federal court rulings have focused on a stricter application of the factors as enumerated in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, essentially the Federal Court’s equal to Nevada Supreme Court’s Hallmark, the Nevada Supreme Court struck down a strict application of the Hallmark factors, and has opted to allow more judicial freedom in determining whether to allow a witness to testify as an expert. Accordingly, there is usually room to argue that Plaintiff’s proposed expert witness should not be deemed an expert witness, and Hallmark provides the springboard for such an argument.
NEWS AND EVENTS: .
Three Partners Named “2014 Top Attorney” by OC Metro Magazine .
Congratulations to Managing Partners, Kyle D. Kring and Kenneth C. Chung, and Partner, Laura C. Hess, on being named “Top Attorneys” in Orange County for 2014. Kring was recognized for his work handling construction matters, while Chung and Hess were recognized for their work handling employment and management matters. OC Metro has partnered with AVVO.com to spotlight the leading attorneys in Orange County. This is the second consecutive year Kring has received this distinction and the third year for Chung and Hess. The full article can be seen in the September 2014 issue of the magazine, or at www.ocmetro.com.
California HR Conference 2014 .
On August 27, 2014, Kyle Kring and Laura Hess presented So You Received a Sexual Harassment Complaint, What Not to Do, a Trial Lawyer’s Perspective to approximately one hundred attendees of the 2014 California HR Conference which took place at the Anaheim Convention Center. “The attendees were savvy human resources professionals looking for more than just the basics on how to conduct sexual harassment investigations,” said Laura Hess. “We talked about what the HR staff can do at the investigation level that will really help the lawyers trying the case. Kyle and I have tried many sexual harassment cases, so we shared what juries care about and what they do not.” We would like to thank those that attended the informative workshop and look forward to speaking at the conference in the future.
Our employment law group represents employers in all aspects of labor and employment law including advising and counseling to prevent costly litigation.
Andrew Yun Joins Kring & Chung’s Irvine, CA Office .
Kring & Chung would like to welcome Andrew Yun to the Irvine, CA office. Yun’s practice focuses mainly on business and transactional matters. Yun provides an extensive range of services to his business clients including drafting and negotiating nondisclosure agreements, operational agreements, employment and consulting agreements, distributorship and licensing contracts, commercial leases, and all forms of mergers and acquisitions and strategic alliance arrangements. After graduating from Loyola Law School, Yun became well-versed in bankruptcy law while working as an extefrn and clerk.