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A December 2016 decision reached by an Administrative Law Judge in New Jersey may have implications for employers in other states where medical marijuana is legal. With the current trend toward legalization of marijuana, it’s only logical for entrepreneurs to consult with attorneys about how these laws might affect them.

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The current case involved Andrew Watson, a lumber company employee who injured his hand on-the-job. Initially, Watson’s doctors prescribed Percocet to manage his chronic pain. His doctor then recommended that he try medical marijuana. Watson legally purchased medical marijuana, and submitted a claim to his employer’s worker’s compensation insurance. An ounce of medical marijuana costs an average of $489 in New Jersey, which is one of the most expensive prices in the U.S. The insurer refused compensation.

Nonetheless, Watson found that the marijuana helped manage his chronic pain effectively and with fewer side effects than the opiates. He took his case to court so that he could continue with the treatment and have the expenses reimbursed by his employer’s worker’s compensation coverage.

After considering the situation, Judge Ingrid French ruled that Watson’s use of medical marijuana is appropriate and that the insurer should pay for the associated expenses. She notes in her decision that “the effects of the marijuana … is not as debilitating as the effects of the Percocet.” Additionally, French found that Watson had “achieved a greater level of functionality,” because of the medical marijuana use and that “his approach to his pain management needs (is) cautious, mature …”

She went on to say that whether or not medicinal marijuana is used is a matter that should be reserved for doctors and patients in states where its use is legal. While some employers expressed concern over the outcome, others say that it likely will not affect them. That’s because the requirements for qualifying for medical marijuana are so stringent in New Jersey. This, coupled with the relatively limited chances of a worker also qualifying for a worker’s compensation claim, keeps them optimistic.

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U.S. District Judge Susan Illston has ruled that Walmart truck drivers are not entitled to an additional $80 million in a class action lawsuit settlement. The complaint was filed in 2008 with hundreds of California truck drivers claiming that they did not receive at least minimum wage for performing certain tasks. Although the judge denied the plaintiffs’ claim to the $80 million, Walmart will still have to abide by the initial $54 million settlement that was awarded in an earlier jury decision.

walmart-truckclose-up-side-view_129821854433586541-001Walmart asserts that its truck drivers are among the best paid in the industry, with many of them earning between $80,000 and $100,000 per year. Moreover, their attrition rate is low, and the judge commended them for taking rapid action to comply with evolving compensation laws. The drivers argued in their lawsuit that their employer compensated them only based upon miles driven and specific activities rather than hours worked, which constituted a violation of state law. Accordingly, the drivers claimed that they did not receive adequate compensation for tasks like washing and inspecting trucks. They further argued that they were not appropriately paid for mandatory 10-minute breaks and 10-hour layovers.

In November 2016, a jury of seven agreed with the drivers, awarding them approximately $54 million in back pay. This latest decision came in response to the plaintiffs’ request for an additional $5.8 million for restitution, $54.6 million in liquidated damages and $25.6 million in penalties. The judge went along with the request for $5.8 million in restitution, but denied the other claims, saying that there is not sufficient evidence that Walmart acted in bad faith or with “dishonest and wrongful motive.”

It’s possible that Walmart may still appeal the decisions by the judge and the jury. However, they scrapped their former driver-compensation package in 2015 in favor of a new one that is in compliance with California law. Because compensation laws change periodically, it is only sensible for all business owners to have their compensation practices reviewed by an employment attorney on a regular basis. This may prevent a company from finding itself involved in a similar class action lawsuit.

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A former student in San Diego has been awarded more than $1.25 million stemming from an incident in which she was forced to relieve herself in a bucket.

need-to-pee-118755742-001Back in 2012, the 14 year-old student was in a 25-minute advisory class at Patrick Henry High School when she felt the urgent need to urinate. The short class was designed so students could study. This particular session was being presided over by art teacher Gonja Wolf. Teachers had been told that frequent bathroom breaks would undermine the efficacy of the class. Wolf believed that the school did not allow any bathroom breaks during the advisory class, so she searched for an alternative.

As it happens, Wolf had already invested in a bucket that was intended to provide an alternative to using the bathroom in the case of a lockdown. The teacher admitted to having used the bucket herself when she was working late. Accordingly, she took the student to an adjacent supply closet where she gave her the bucket and instructed her to flush the contents down the sink when she was done.

It wasn’t long before word got out about the incident. Local media had a field day, and the result was that the student was teased relentlessly. An excess of gossip and lewd texts drove the student into depression. An eventual suicide attempt drove her to seek ongoing medical care. Between the media glare and the unwanted attention from fellow students, she was forced to switch schools twice before finally graduating from a charter school.

The girl and her family initially asked the district for $25,000 in compensation, a request that was denied. Nonetheless, officials offered an apology and help for the anguished student. It’s unlikely they imagined that the case would one day be settled in the courtroom, leaving them without $1.25 million in damages plus $41,000 for medical expenses.

District officials say that they may appeal the jury’s decision. Testimony at trial indicated that the district’s teachers are now told to allow bathroom breaks during all periods. Nonetheless, this has been an embarrassing chapter for everyone concerned.

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Ownership of some of the most well-known Beatles songs has been on a tortuous path for decades. Sir Paul McCartney, a former Beatle and writer or co-writer of many of the group’s biggest hits, is taking legal action to reclaim the rights to his creations. It’s an ongoing odyssey with no end in sight.

Beatles-Imagine-2902823-001McCartney is the author of many famous Beatles songs. Sometimes collaborating with John Lennon, he wrote tunes like “Love Me Do” and “Yesterday.” However, the rights to those songs were often immediately signed away. Most of the rights were lost between 1962 and 1971. Various publishers snapped up the rights, but by the 1980s, publisher ATV owned most of them. When an Australian businessman who owned a controlling share in the songs put them up for sale in 1984, Michael Jackson notoriously outbid Paul McCartney to become the owner of the Beatles’ catalog.

In fact, Jackson and Sony formed Sony/ATV, with the Beatles’ works being among the company’s major assets. The Jackson family sold their share of the company to Sony after Michael Jackson’s 2009 death. Now that Sony/ATV can claim sole ownership, McCartney is suing them to regain ownership of his work.

The lawsuit, which was filed in New York, is based on a facet of the 1976 Copyright Act, which stipulates that any creative works made prior to 1978 be returned after 56 years to their originators. McCartney’s filing is timely considering that he and Lennon first began writing together in 1962, precisely 56 years before 2018. Accordingly, a court could decide that McCartney may reclaim the lucrative rights to his songs as early as next year.

McCartney has been trying to reclaim those rights for many years. Thus far, Sony/ATV is unwilling to accommodate his request. They cite a long-term relationship with McCartney, and express disappointment that the musician filed the lawsuit, which they call unnecessary and premature.

The battle over the rights to the Beatles’ catalog is likely to continue for many years, which only highlights the need for individuals and companies to protect their intellectual property rights.

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A heated lawsuit between 21st Century Fox and Netflix reveals a great deal about the inner workings of Hollywood while also providing useful insights for employers in California and across the country. This high-profile case is a helpful reminder about the necessity of consulting with employment attorneys to cement formal contractual agreements with workers.

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The lawsuit was filed by Fox in September 2016. In their complaint, they cite a “brazen campaign” by Netflix “to unlawfully target, recruit, and poach valuable Fox executives.” Mainly at issue are two former Fox employees who now work for Netflix. One of these employees is Marcos Waltenberg, a 10-year veteran at Fox who was a vice president of promotions. The other was Tara Flynn, a vice president of creative affairs who was hired by Fox in 2012.

Waltenberg is a legal alien who needed employer sponsorship to maintain his green card status. In 2012, he asked his supervisor at Fox for a raise. The human resources department responded by saying that they were not required to sponsor Waltenberg’s green card renewal. When Waltenberg dropped his request for a raise, Fox helped him get his green card.

Flynn says she was pressured to take a three-year contract at $75,000 per year even though the compensation was well below the $250,000 annual salary that was typical for her position. She knew that her salary was well below that of two male executives who formerly held the job. When Netflix approached her with a better offer, she let her supervisors know that she was leaving, and that’s when things got ugly.

Waltenberg and Flynn were under contract with Fox when they gave notice. In a response to the complaint, defendants argue that the contracts that are forced on rank-and-file employees at Fox are too reminiscent of the studio era when the lives of actors were micromanaged by executives. The response further contends that these contracts unlawfully constrain employee mobility.

This lawsuit serves as a reminder to all California employers. Companies and HR departments need to regularly review their employment contract practices to ensure that they are keeping up with changing laws.

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With the passage of Proposition 64 in November, California became one of a handful of states to legalize the use of recreational marijuana. Many residents are thrilled with the outcome, but the new law is leaving employers wondering what their rights are.

Marijuana-legalization-94540729-001The good news is that the authors of Proposition 64 foresaw that marijuana legalization might pose a problem to numerous industries. That’s why there is a provision in the law that explicitly maintains the employer’s right to prohibit the use and possession of marijuana, particularly on any work sites. Accordingly, any company is perfectly within its rights to keep their drug-free workplace policies on track, though it does make sense to ensure that everything is in order.

Now is the perfect time to meet with an employment attorney to make certain that an existing company drug policy is sufficiently broad. If a drug policy is not already in place, then it is definitely time to craft one, a project that takes time and considerable legal expertise. Under the new law, employers are still permitted to require pre-employment drug tests, and they maintain the right to not hire candidates who test positive for marijuana. Even if the drug was obtained and used legally, the employer does not have to accept such use among their prospective employees. However, it is critical that any pre-employment drug screenings are conducted fairly and impartially, without any discriminatory element.

Under California’s new law, employers are also permitted to conduct drug tests among existing employees. Once again, it is crucial that this be done in a non-discriminatory manner. Moreover, companies may want to review their written drug policies with all employees to make it clear that marijuana use is not appropriate or acceptable. Management may also need to sit down with human resources staff to ensure that they are ready to field questions from employees.

California’s revolutionary Proposition 64 may have made recreational marijuana use legal, but it still allows employers to make important safety decisions. If you have any questions about how California’s new recreational marijuana law will affect you and/or your employees, feel free to contact me, attorney Rich Oppenheim at 818-461-8500. You may also use the form on the right side of this page.

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A company’s intellectual property is easily one of its most valuable assets. It’s vital to protect this information at all times, and to ensure that all necessary legal precautions have been taken. Even when a company’s owners think they have done everything correctly to protect their intellectual property, things can still go wrong.

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That is the case for a Santa Barbara-based startup called Olaplex LLC. The company claims to have pioneered a revolutionary three-step process for protecting hair while it is being bleached in a salon. Bleaching is harmful to hair, causing it to become dry, brittle and damaged. Nonetheless, many people still undergo the treatments, particularly celebrities who must change their hair color for various roles. The result is lighter hair, but at a high cost.

Olaplex set out to change that with a new chemical bonding process that was designed to protect hair strands during the bleaching process. They filed a patent application to protect their invention, which they called Olaplex Bond Multiplier No. 1. It debuted in 2014 and quickly began winning awards. L’Oreal, a French-based conglomerate known for many beauty products, began trying to lure away certain Olaplex employees early in 2015. When that effort didn’t prove successful, L’Oreal and Olaplex entered negotiations in which the larger company proposed to acquire the startup.

Confidentiality and non-disclosure agreements were signed. However, the deal eventually fell through. Olaplex started noticing a few months later that L’Oreal seemed to be selling a product that was remarkably similar to theirs. What’s more, their advertising campaign seemed strangely familiar.

Olaplex has now filed a patent infringement and false advertising lawsuit against L’Oreal. The plaintiff argues that the defendant gained access to secret, proprietary information while the acquisition negotiations were underway. Olaplex argues that this gave L’Oreal access to their exclusive chemical process, which the older company then used to create a knock-off product.

Officials from L’Oreal strenuously deny the allegations. Nonetheless, this entire situation is a crucial reminder of how important it is for all companies, large and small, to protect their intellectual property with the help of an experienced attorney.

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The question of whether or not a franchisor is a joint employer of the workers at a franchisee’s location was at the heart of a class action lawsuit in California. In the federal case, the judge ruled that a franchisor could be held accountable for the misdeeds of its franchisee.

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The complaint was filed in a federal court in San Francisco in 2014. Plaintiffs were a group of current and former employees at McDonald’s restaurants in the Bay Area. All of the restaurants were owned by a franchisee, which is known as The Edward J. Smith and Valerie S. Smith Family Limited Partnership. Workers leveled charges at the franchisee for violating California wage and hour laws. These allegations included consistent errors in payroll calculations, failure to pay overtime, not providing rest breaks and meal periods and neglecting to reimburse workers for the time they spent keeping their uniforms clean and ready to wear.

Along with the wage and hours issues, the lawsuit also questioned whether or not the McDonald’s corporation was a joint employer with the Smith partnership. The corporation ultimately agreed to a $3.75 million settlement, but maintains that it is not a joint employer with its franchisees. Instead, they agreed to the settlement in order to avoid the ongoing costs and disruptions of lengthy litigation.

Workers hail the settlement as a major victory that may allow other parent corporations to be held responsible for the actions of a franchisee. However, business owners take a grim view of the development. They are concerned that a trend toward holding parent corporations responsible for the actions or misdeeds of franchisees may be detrimental to entrepreneurism.

At this time, the National Labor Relations Board is making similar arguments that McDonald’s should be considered a joint employer in a worker retaliation case in New York. If this case receives similar treatment, then it may establish a precedent for holding parent corporations responsible as joint employers.

Whether you are a franchisor or a franchisee, it’s vital that you seek legal counsel so that you are aware of your rights and responsibilities as an employer.

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We at Sylvester Oppenheim & Linde would like to take a moment to wish our clients, family and friends (including our loyal blog readers), a very joyous and happy Thanksgiving.

thanksgivingWhether you are celebrating with a small gathering, or preparing for what is shaping up to be dinner for a small country, we wish you and yours all the very best.

It also seems appropriate to quote John F. Kennedy.

“As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them.”