All posts by Hanna Bowman

Wilke Fleury Ushers Health Plan Client’s Expansion into Texas

Sacramento, Calif., April 30, 2018 – Wilke Fleury’s health care law team has again assisted client Paveljit S. Bindra, MD, MBA, MSc, FACC to form a new health care entity. In 2016, the firm helped Dr. Bindra obtain a Knox‐Keene license to create Imperial Health Plan of California, Inc., one of California’s only full‐service health plans formed and entirely owned by a single physician.

With the firm’s help, on April 13, 2018, Dr. Bindra was issued a certificate of authority as an Accident and Health insurance company by the Texas Department of Insurance, allowing him to establish Imperial Insurance Company of Texas, Inc.

“Helping Dr. Bindra with the complex regulatory, financial and legal aspects of expanding access to quality care in both California and Texas has been immensely gratifying,” said Michael G. Polis, partner, Wilke Fleury, who worked with Associates Anna Eck and Aaron Claxton on the recent licensing in Texas.

Dr. Paveljit Bindra has extensive healthcare experience in population health, health maintenance, and healthcare administration. He is Board Certified in Internal Medicine, Cardiology and Cardiac Electrophysiology. He has served as a Chief Medical Officer and Chief Information Officer of an acute care health system, was a partner in a large cardiology practice in Southern California, and served as the CEO and founder of an investment firm. Dr. Bindra earned his MBA from the Wharton School of the University of Pennsylvania, an MD from Harvard Medical School and an AB from Harvard College. He was a Fulbright Scholar at Magdalen College, University of Oxford, and received an MSc in Comparative Social Research.

Wilke Fleury is a thriving mid‐sized general practice law firm located in California’s business and political epicenter, Sacramento. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families and individuals, making Wilke Fleury one of the region’s most respected and long‐standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.

David Frenznick and George Guthrie Named Fellows of the Construction Lawyers Society of America

Wilke Fleury attorneys David Frenznick and George Guthrie have been selected as Fellows of the Construction Lawyers Society of America.

David Frenznick is a partner with the firm and handles complex cases involving construction and construction defect. George Guthrie’s practice focuses on litigation involving construction, including complex civil matters encompassing private and public construction disputes.

The CLSA is an invitation-only international honorary association composed of preeminent lawyers specializing in construction law and related fields. Fellowship is limited and selective, with lawyers being invited into Fellowship upon a proven record of excellence and accomplishment in construction law at both the trial and appellate levels. Lawyers nominated or selected may be in any discipline in the construction law arena, including contract specialization, negotiations, litigation, arbitration, appellate and/or surety law, but who have in addition superior ethical reputations. The CLSA seeks a high level of diversity in its selection process. Fellows are generally at the partner or shareholder level or are independent practitioners with recognized advanced status among their peers. The CLSA is dedicated to promoting superior advocacy and ethical standards in construction law and fostering a scholarly and advanced exchange of ideas in all practices related to the specialty.

Be Careful What You Ask For: How To Make Sure Your Return-to-Work Policies Don’t Violate the ADA

As the costs of doing business increase each year, many employers are looking for effective ways to ensure productivity among their employees, promote workplace safety and prevent chronic absenteeism. Many employers, for example, require that employees returning from a medical leave of absence undergo a “return-to-work” medical exam to ensure that the employee can safely perform his or her job functions.

Generally, return-to-work medical exams or disability-related inquiries are legal. Employers can ask questions about the medical issues surrounding an employee’s disability or leave. However, to comply with the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, the exams and disability-related inquiries must be limited in scope and narrowly tailored to evaluate whether the employee can perform the essential functions of the job. The employer cannot use the employee’s medical leave as an excuse to make broad, intrusive disability-related inquiries or subject the employee to medical exams that have nothing to do with why the employee went out on medical leave.

An Example of What NOT To Do
In Scott v. Napolitano, an employee suffered a number of physical injuries and psychological disorders that required him to take medical leave. Over a period of six years the employee suffered sinusitis, an injury to his right arm and shoulder, and was diagnosed with depression, anxiety and work-related stress. The employee’s supervisor became concerned that these health issues would impact his ability to perform the full range of his job duties and be trusted with his government issued side-arm. The supervisor recommended that the employee complete a “fitness for duty” examination.

Prior to the scheduled exam, the employee was asked to fill out a medical questionnaire by the examining physician. Many of the questions were very broad and not limited to a specific time-frame. For example, the employee was asked if he had ever been treated for a mental condition and to list all medications he was currently taking. In addition to the questionnaire, the employee was required to sign a release that permitted any doctor, hospital or clinic to release all of the employee’s medical information to his employer.

The employee refused to answer many of the questions in the medical questionnaire because he believed they violated his legal rights. Further, the employee crossed out the language of the release and wrote that he would only authorize the release of the results of the upcoming “fitness for duty” exam, not any other personal medical records. The employee was warned that he had 14 days to answer all of the questions and sign the full release. When the employee did not comply, he was suspended for insubordination and was advised that he must answer the questions and sign the release. The employee again refused and was terminated. The employee sued, alleging the employer’s practices violated the ADA and the Rehabilitation Act.

The court agreed with the employee and found that the questions in the medical questionnaire were impermissibly over-broad disability-related questions. The court held that medical exams and inquiries cannot be required unless those exams and/or inquiries are shown to be job-related and consistent with business necessity. A business necessity may include ensuring workplace safety or preventing excessive absences. Further, once a business necessity is shown, the exam or inquiry cannot be any broader or more intrusive than needed for the employer to determine if the employee is currently able to perform the essential functions of his or her job. For the most part, exams or inquiries related to the specific medical condition for which the employee took leave will be all that is warranted and should be limited to a specific time-frame.

Lessons for You
Return-to-work medical exams or disability-related inquiries are permissible as long as you comply with the ADA and Rehabilitation Act. Remember that these exams and inquiries must be driven by a business necessity, such as ensuring workplace safety. Also, the exams or inquiries must be limited to determining whether the employee can currently perform his or her essential job duties. Exams or inquiries not limited in time or tailored to the specific medical condition for which the employee took medical leave may violate the ADA and Rehabilitation Act and subject you to liability.

Wilke Fleury Names Two New Partners: Samson R. Elsbernd and Neal C. Lutterman


As it concludes its 95th year, Wilke Fleury looks to the future with strategic partnership moves. A multi-generational firm, Wilke Fleury elected two new partners this year – Samson R. Elsbernd and Neal C. Lutterman – who complement the firm’s shifting generations of leadership. Walking in the footsteps of their predecessors and colleagues, Samson and Neal bring diverse experience and unique capabilities to Wilke Fleury’s partnership effective January 1, 2018.

Samson R. Elsbernd concentrates in employment law representing employers, management, and higher education in complex employment issues, including wrongful termination, harassment, discrimination, retaliation and wage and hour claims. He is a member of the Executive Committee for the State Bar of California’s Labor and Employment Law Section, a member of the Society for Human Resource Management and a member of the Sacramento County Labor and Employment Law Section. Samson received his Juris Doctor from University of the Pacific, McGeorge School of Law and his Bachelor of Arts from The George Washington University.

Neal C. Lutterman joined Wilke Fleury in 2015 focusing on the defense of physicians, hospitals, medical groups and allied healthcare providers in professional liability matters. Prior to joining the firm, he served as Deputy City Attorney for the City of Stockton, supervising the Litigation Division and primary advisory attorney to key City departments. Earlier, he was a shareholder in a litigation firm representing physicians, surgeons, hospital and medical groups. Neal received his Juris Doctor from the University of Pacific, McGeorge School of Law and his Bachelor of Arts from the University of California, Irvine.

“We are excited to continue building the firm’s capacity to best serve the needs of our clients. Both Neal and Samson are highly respected by their peers and clients for consistently thoughtful and thorough preparation and for delivering excellent representation,” said Steve Marmaduke, managing partner. “We look forward to working alongside this talented new generation of partners and continuing to build upon the values and work ethic service to our clients that are the hallmarks of our firm.”

Wilke Fleury is a thriving mid‐sized general practice law firm located in California’s capital. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families, and individuals, making Wilke Fleury one of the region’s most respected and long‐standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.

New Labor & Employment Laws from 2017 Legislative Session

A number of noteworthy labor and employment laws made their way through the California Legislature this year. Below is a list of those enacted by the Governor:

Family Leave

SB 63, authored by Senator Hannah-Beth Jackson, extends parental leave laws for companies with 50 or more employees, the California Family Rights Act, to companies with 20 to 49 employees. The bill provides up to 12 weeks of job-protected parental leave for parents to bond with a new child within one year of the child’s birth, adoption, or foster care placement. Employers are prohibited from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave.  SB 63 better aligns job protected leave laws with paid leave available through the Paid Family Leave (PFL) program funded through employee payroll deductions.

Equal Pay 

AB 46, authored by Assemblymember Jim Cooper, clarifies that the Equal Pay Act also applies to public employees.

AB 168, authored by Assemblymember Susan Eggman, prohibits an employer from seeking salary history information, relying on an applicant’s salary history in determining whether to offer the applicant employment, or relying on salary history to set salary. Upon request, the employer must also provide the pay scale for the position for which an applicant is applying.

Minimum Wage Increases

In 2016, SB 3, authored by Senator Leno, was signed into law. The measure went in to effect January 1, 2017 and increased the state’s minimum wage requirement for the year to $10.50 for employers with 26 or more employees. Additionally, the law set a schedule of incremental minimum wage increases every year through  2022 when the schedule eventually tops out at $15 per hour. As of January 1, 2018, the minimum wage requirement increases to $11 per hour for employers with 26 or more employees and $10.50 for employers with 25 or less employees.  Accordingly, the increased 2018 minimum salary for exempt employees would be $45,760 and $43,680 respectively. A complete schedule of increases can be found via the bill link above.

Immigrant Workers Rights

AB 291, authored by Assemblymember David Chiu, extends the State Bar Act protections to prohibit disclosure of tenants’ immigrations or citizenship status to federal immigration authorities. The State Bar Act makes it a cause for suspension, disbarment, or other discipline for any member of the State Bar to report suspected immigration status or threaten to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member, as defined, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment. This bill expands that provision to make it a cause for suspension, disbarment, or other discipline for a member of the State Bar to report suspected immigration status or threaten to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member, as defined, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to the hiring of residential real property.

AB 450, authored by Assemblymember David Chiu, imposes various requirements on public and private employers with regard to federal immigration agency immigration worksite enforcement actions. Except as otherwise required by federal law, the bill prohibits an employer or other person acting on the employer’s behalf from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant, except as specified. The bill also prohibits an employer or other person acting on the employer’s behalf from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order, subject to a specified exception.

SB 54, authored by Senator Kevin De Leon, prohibits state and local law enforcement agencies, including school police and security departments, from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. The bill applies those provisions to the circumstances in which a law enforcement official has discretion to cooperate with immigration authorities. The bill would require, by October 1, 2018, the Attorney General, in consultation with the appropriate stakeholders, to publish model policies limiting assistance with immigration enforcement to the fullest extent possible for use by public schools, public libraries, health facilities operated by the state or a political subdivision of the state, and courthouses, among others. The bill would require, among others, all public schools, health facilities operated by the state or a political subdivision of the state, and courthouses to implement the model policy, or an equivalent policy.

Conviction Histories

AB 1008, authored by Assemblymember Kevin McCarty, prohibits an employer, with certain exceptions, from inquiring into or considering the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions.

Arbitration Agreements

SB 33, authored by Senator Bill Dodd. Current law requires a court, on petition of a party to an arbitration agreement alleging (1) the existence of a written agreement to arbitrate a controversy and (2) that a party to the agreement refuses to arbitrate the controversy, to order the petitioner and the respondent to arbitrate the controversy if the court determines that an agreement to arbitrate exists, unless the court makes other determinations. This bill adds to these determinations instances in which a state or federally chartered depository institution is seeking to apply a written agreement to arbitrate, contained in a contract consented to by a respondent consumer, to a purported contractual relationship with that consumer that was created by the petitioner fraudulently without the consumer’s consent and by unlawfully using the consumer’s personal identifying information.

Retaliation Protections

SB 306, authored by Senator Bob Hertzberg, authorizes the Division of Labor Standards Enforcement to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner. The bill also authorizes the commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for prescribed injunctive relief.

Joint Employer Liability

AB 1701, authored by Assemblymember Tony Thurmond, specifies that all contracts entered into on or after January 1, 2018, require a direct contractor making or taking a contract in the state for the erection, construction, alteration, or repair of a building, structure, or other work, to assume, and be liable for, specified debt owed to a wage claimant that is incurred by a subcontractor, at any tier, acting under, by, or for the direct contractor for the wage claimant’s performance of labor included in the subject of the original contract.

Protections for Service Members

AB 1710, authored by the Committee on Veterans Affairs, conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act by protecting service members from hostile work environments in their civilian jobs.

Workplace Harassment Prevention

SB 396, authored by Senator Ricardo Lara, requires employers with 50 or more employees to train supervisors on prevention of  harassment based on gender identity, gender expression, and sexual orientation as part of other anti-harassment training. Additionally, the bill requires employers with 5 or more employees to post the Transgender Rights in the Workplace poster beginning January 1, 2018.

By Shannon Smith-Crowley & Krystal Moreno


Employees’ Race Matters: Some Race-Based Decisions are Permitted under California Employment Discrimination Law

California employers are, or should be, well-versed with the Fair Employment and Housing Act (FEHA).  The FEHA is California’s anti-discrimination law.  It applies to employers with 5 or more employees and prohibits employment discrimination based on race.  This does not mean that employers are prohibited from making any decision based on race; rather, FEHA protects an employee from discrimination based on the race of the employee.

In Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, two police officers fatally shot and killed an unarmed, innocent man with autism.  The officers were removed from the field following an investigation into the shooting.  Afterwards, the officers sued for disparate treatment discrimination under the FEHA, alleging that they had been treated differently based on race since they were Hispanic and their victim was African-American.  The officers prevailed at trial and won a verdict, but the court of appeal overturned the verdict because the victim’s race was an inappropriate consideration.  Employment decisions can be based on “broader political concerns,” including the race of someone who is not the employee as long as the race of the employee was not a substantial factor in the employment decision.  So, the LAPD could consider the community reaction to the shooting and decide not to return any employee to the field after fatally shooting an African-American without violating FEHA.   The officers’ evidence failed to demonstrate that African-American officers, or any other non-Hispanic officers, would have been treated differently than they were treated following the shooting, and so their evidence could not support an employment discrimination verdict.

This case serves as a reminder that for FEHA discrimination claims, it’s the employee’s race that matters. FEHA guarantees equal treatment in the workplace to employees, so an employment discrimination claim must be based on the employee’s own protected characteristics.  Even though the employees were not able to sue the employer under FEHA for the alleged unequal treatment of other individuals based on race, this case does not mean that there is no protection from such treatment under other laws, just that such discrimination is not employment discrimination.


Besides race, the FEHA also prohibits discrimination based on religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

  By Samson R. Elsbernd

Wilke Fleury and Attorneys Recognized as ‘Best Law Firm’ and ‘Best Lawyers’ by U.S. News!

Wilke Fleury is pleased to announce its inclusion in the 2018 editions of ‘Best Law Firms’ in America and ‘Best Lawyers’ in America. The two award categories reflect excellence in legal service – firms included in the 2018 “Best Law Firms” list are recognized for professional excellence by clients and peers and Best Lawyers® has become universally regarded as the definitive guide to legal excellence.

Wilke Fleury Recognized in U.S. News 2018 Edition ‘Best Law Firms’ in America

Wilke Fleury is honored to be recognized among the nation’s Best Law Firms by U.S. News – Best Lawyers.

“Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.”

Wilke Fleury Attorneys Elected to U.S. News 2018 Edition ‘Best Lawyers’ in America

Congratulations to David A. Frenznick and Ernest James Krtil on their election to the 2018 Edition ‘Best Lawyers in America.’

“Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

David A. Frenznick – Litigation, Real Estate

David has extensive and broad experience in the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.

Ernest James Krtil – Closely Held Companies and Family Business Law

Jim’s depth of experience in his practice emphasizes business law including mergers and acquisitions, nonprofit organization law and taxation, as well as estate planning and probate and trust administration, including trust and estate disputes.

VLOG: Disclosing a Disability Does Not Pardon Past Bad Conduct

Read the full article here:

Disclosing a Disability Does Not Pardon Past Bad Conduct

California employers can establish workplace conduct policies and discipline employees who fail to comply with them.  Employers also have to engage in an interactive process with employees who have a disability to explore reasonable accommodations, if any, to address work limitations from the disability.  However, an employer’s duty to reasonably accommodate an employee’s disability is prospective, meaning that employees are not excused for their past bad conduct just because a disability may have contributed to it when the employer was unaware of the disability at the time the transgressions occurred.  A recent case is instructive.

In Alamillo v. BNSF Railway Company (9th Cir., Aug. 25, 2017), 2017 WL 3648514, an employee sued his employer under California law for wrongful termination based on disability, failure to accommodate his disability, and failure to engage in the interactive process.  The employee had ten unexcused absences during the year.  While the discipline process for the most recent unexcused absences was ongoing, the employee was diagnosed with obstructive sleep apnea (OSA).  The company accommodated the OSA prospectively, but did not excuse the employee for the unexcused absences before it learned about the OSA. As to them, the discipline process continued and the employee was ultimately terminated when the discipline process finished because of the past attendance violations.  The court of appeal upheld the employee’s termination because there could be no failure to engage in the interactive process after the violations had already taken place and because no reasonable accommodation could fix the past absenteeism since reasonable accommodations are prospective.

As this case reminds us, employers do not have to change or excuse employee transgressions that occur before the employer knows about a disability.   Rather, once an employer learns that an employee has a disability, the employer should work with the employee to prospectively address any limitations from it, but past transgressions remain and may subject the employee to discipline notwithstanding the disability.

  By Samson R. Elsbernd

VLOG: Employers May Implement Vacation Accrual Waiting Periods

Employers may lawfully defer an employee’s paid vacation accrual until after their first year of employment. On July 28, 2017, the California Court of Appeal in Minnick v. Automotive Creations, Inc., No. D070555 (Cal.App. 4 Dist. 2017) affirmed that California law does not prohibit employers from imposing a waiting period before paid vacation time accrues.

For more information, click on the link:

Wilke Fleury Secures $4,000,000 Judgment Against the United States

On August 31, 2017, Senior Judge Lynn J. Bush of the United States Court of Federal Claims issued a $4,000,000 judgment against the United States in favor of Magnus Pacific Corporation, a Wilke Fleury client and one of the leading geotechnical contractors in the country.

Magnus Pacific’s claims arose out of levee restoration work performed for the United States Section of the International Boundary and Water Commission (USIBWC) along the Rio Grande River near Presidio, Texas.

Magnus Pacific’s work took place from approximately April of 2011 through May of 2012, and was performed pursuant to a contract entered into with the USIBWC.  During the course of the project, Magnus Pacific encountered site conditions that differed significantly from those depicted in the project plans and specifications.  Those differing conditions led to significant additional work, and associated cost overruns.  Magnus Pacific requested the USIBWC’s voluntary payment of those additional costs, but those requests were rejected.

Upon completion of the project, and successful construction of the levee under extraordinarily difficult conditions, Magnus Pacific submitted “certified claims” to the USIBWC, again requesting payment of the additional costs incurred.  Once again, those claims were rejected.  Therefore, on October 31, 2013, Wilke Fleury partner Dan Baxter filed a lawsuit in the Court of Federal Claims, advancing three claims on Magnus Pacific’s behalf, and seeking approximately $4,000,000 in damages.  After the completion of significant written discovery, and over a dozen depositions occurring in California, Texas, Mississippi, Arizona, and Massachusetts, a three-week trial took place in August and September of 2016.  At trial, Magnus Pacific was represented by Dan Baxter, assisted by Wilke Fleury paralegal Sharon Brazell.  The United States was represented by three lawyers and two paralegals from the Department of Justice.  After trial, the parties engaged in extensive post-trial briefing, and the case was submitted for decision on January 17, 2017.

On August 31, Judge Bush issued a 110-page reported decision and associated judgment.  Judge Bush found in Magnus Pacific’s favor on all three claims, and awarded Magnus Pacific the principal amount of $3,879,919, plus interest on approximately 3/4ths of that amount.  With such interest, the amount awarded exceeds $4,000,000.

Wilke Fleury is proud of its association with Magnus Pacific (now Great Lakes Environmental and Infrastructure), and pleased at the opportunity to secure a successful outcome for its longstanding client.

See the final reported decision here: Magnus Pacific v. US–Final Reported Decision

  Dan Baxter

Employers May Implement Vacation Accrual Waiting Periods

Employers may lawfully defer an employee’s paid vacation accrual until after their first year of employment. On July 28, 2017, the California Court of Appeal in Minnick v. Automotive Creations, Inc., No. D070555 (Cal.App. 4 Dist. 2017) affirmed that California law does not prohibit employers from imposing a waiting period before paid vacation time accrues.

In Minnick, the defendants-employers’ vacation policy provided that an employee’s vacation benefits began to accrue after the end of the employee’s first year. The policy also expressly provided that “[t]his does not mean that you earn 1/12th of one week’s vacation accrual each month during your first year. You must complete one year of service with the company to be entitled to one week vacation.”

Minnick worked for defendants for six months. Consistent with employers’ policy, Minnick was not paid any vacation wages in his final paycheck. Minnick sued to recover vacation wages, arguing that the policy violated the law against forfeiture of earned vacation and that the policy did not clearly provide for a waiting period. The Court of Appeal disagreed, holding that employers may lawfully impose a waiting period before providing paid vacation time. The court determined that an employer does not “contract around” the forfeiture prohibition by providing that an employee does not begin to earn vacation pay until a certain date. Finally, the Court of Appeal found no merit in Minnick’s argument that the policy was ambiguous. By contrast, the court found that the policy statement that employees “must complete one year of service with the company to be entitled to one week vacation” made it clear that employees were not entitled to any pro rata vacation pay during their first year of employment.

This case illustrates the importance of maintaining current and clear employee handbooks and policies. Any policy requiring a waiting period before paid vacation accrues should be explicit and straightforward. However, always keep in mind that once an employee becomes eligible to earn paid vacation time, the employer must pay the employee for any unused vacation time and such time cannot be forfeited.


Earlier this year we told you about a new law requiring employers to provide written notice to employees about the rights of victims of domestic violence, sexual assault, and stalking. Employers with 25 or more employees are required to provide the notice to all new employees at the time of hire and to current employees upon request, and had been waiting for the Labor Commissioner to create a notice for them to use. The notice is available now. You can follow this link to get a copy: Victims of Domestic Violence Leave Notice

  By Bianca Samuel 


Litigation: Protecting your Minor

Has your business ever encountered an unsatisfied customer? It’s likely the answer is – yes!

When a health care provider faces this situation, they often find themselves weighing a number of variables before taking a course of action that fits their situation best.  Pediatric health care providers often face an additional factor that other business don’t encounter.  When you are determining the best course of action, consider – cost of settlement, attorneys’ fees, litigation costs, and public opinion.  Where the merits of the matter justify it, the cost of settling the dispute may be less than the risks and expenses of a prolonged legal battle.

Health care providers typically negotiate disputes with the allegedly harmed individual themselves (pro per) or through their attorney.  However, this is a little different with pediatric health care providers.  They may find themselves in an unusual situation where they are not negotiating with the party that allegedly sustained harm – the patient who is a minor.  Often the parent or parents of the minor will negotiate on their minor child’s behalf with the health care provider, provided that the minor’s parents have not retained counsel or are attorneys themselves.  The problem with this is that while the parents could represent themselves without an attorney, they cannot represent their children.  Moreover, if a minor signed a waiver and release of his or her own rights it would not be enforceable.  Once the minor reached the age of 18, they could affirm the release at that time, but it is unlikely that would happen.

California Probate Code § 3500 provides a solution to this problem by allowing the parents of the minor to “compromise, or to execute a covenant not to sue on or a covenant not to enforce judgment on, the claim…only after it has been approved, upon the filing of a petition, by the superior court.”  This means that the parents of the minor may enter a waiver and release of the child’s rights to their claim, provided that they file the required petition with the court and the petition is approved.  After judicial approval of the petition, a health care provider would be assured that the parents of the minor have the authority to enter into a final settlement on their child’s behalf. Once the waiver is executed, the minor would be barred from bringing an action against the provider, based on the same alleged injury, at a later date.

However, the filing of a petition pursuant to California Probate Code § 3500 will undoubtedly increase the cost of any proposed settlement and may require that the minor’s parents retain counsel in order to assist with the drafting and filing of the petition.  This additional expense represents the cost of finality of the dispute.  Pediatric health care providers should be aware and cognizant of this provision in the California Probate Code and its use should be weighed in any settlement negotiation decision involving a minor.

By Aaron R. Claxton

The Power of Positivity in the Workplace

Most advice from lawyers to employers tends to focus on compliance with legal obligations imposed by statute or regulation, conformity with requirements contained in policy manuals, employee training in the area of sexual harassment prevention and like subjects, and similar “law-based” duties. What sometimes gets lost in the miasma of legal compliance is a more basic truth: The number one thing any employer can do to cultivate a vibrant work environment, and minimize employee complaints (both formal and informal), is simply to…be positive and accessible.

It is basic human nature that people are more likely to overlook grievances when the subject of the grievance —   either individually or institutionally —    is otherwise viewed positively. Taking a moment during the course of the day to say “hello” to your employees, or to ask about a weekend, or simply to look your employees in the eye while they tell you about something, can pay untold dividends that you may never know exist. Not only does such interaction make your employees feel valued and validated, but you may learn something useful about their interests or skill sets that you didn’t previously know. Moreover, unless you are the consummate introvert, you yourself will feel good about the interaction, and be more fulfilled from having at least a basic sense of who your employees are, and what makes them tick.

By contrast, if your sole interactions with your employees are work-centered (“John/Jane, please take the following memo….”), your employees are likely to see themselves as nothing more than cogs in a machine, with no independent reason for enthusiasm or loyalty beyond the paycheck they draw. Such an approach also needlessly divests you of an opportunity for your employees to see you as a human being, rather than just a larger/more senior cog. If you are viewed only as “the management,” employees are less likely to pump their own brakes on the lodging of a complaint for something that they see as offensive or actionable.

So, the next time you are tempted to power walk to your office and close the door, devote ten seconds to thinking about whether you have yet had a positive interaction with one or more employees that day. If not, take a minute or two to do so, even if it’s just to say “how are you today, Sydney”? The worst that can happen is that you find something out that you didn’t already know. And hey, is that so bad?

By Daniel L. Baxter

Shannon Smith-Crowley Co-Authors “Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment”

The article, “Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment,” features Shannon Smith-Crowley and co-author Catherine Gordon, MD and was originally published on the ACOG (The American Congress of Obstetricians and Gynecologists) members only website.

Check out the full article at the link below!

Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment