AB 1844 / Labor Code Section 980 – Places Restrictions on Employers’ Access to Social Media of Employees/Applicants

Social media – like Facebook, Twitter, Google+, etc. all can provide a wealth of information about a person’s true extracurricular activities.  Photos can show daily activities or likes.  Status updates show locations and whereabouts.  Indeed, some social media applications even have GPS trackers pinpointing exact locations.  These social media sites have for obvious reasons served as an enticing alternative for employers who wish to engage in background checks and monitor employee conduct.  Perhaps that has come to an end.

Effective January 1, 2013, the recently codified Labor Code section 980 (former AB 1844) will prohibit an employer from requesting a job applicant or employee for access to his or her social media, except in limited circumstances.  Section (b) of the new statute provides that an employer may not “require or request” a job applicant or employee to do any of the following:

(1) Disclose a username or password for the purpose of accessing personal social media;

(2) Access personal social media in the presence of the employer; or

(3) Divulge any personal social media.

The meaning of this third rule against asking an employee to “divulge any personal social media” is far from clear.  Because divulge is used in a very general sense, and not with respect to any specific information, “divulge” apparently means telling the employer which types of accounts the employee has (e.g. Facebook versus Twitter).  However, contrast that to the Legislative history materials, including the California Senate’s analysis, that suggest that “divulge” means to disclose specifically the username and password of an account.  Since this is a newly enacted law, it will be some time until the courts interpret it.  Until then, employers should be careful not to inquire into an employee’s social media practices altogether.

The Legislature did not provide for any specific penalties for violating this new law.  As such, enforcement could fall back under under the Labor Code Private Attorneys General Act, which could allow an aggrieved employee to file a civil lawsuit, to receive a specific penalty amount, and to obtain an attorney’s fee award.

All Rights Reserved © 2013 by Michael L. Mau, Esq. & The Mau Law Firm

 

After January 1, 2013 Type One Indemnity Outlawed for Commercial Construction

Effective on  January 1, 2013, “Type I” indemnity clauses covering an indemnitee’s concurrent active negligence will no longer be enforceable under California law for commercial construction.  On October 9, 2011, California Governor Edmund G. Brown, Jr. signed into law Senate Bill 474 on this indemnity issue.  The new law  broadens the class of indemnity provisions that are unenforceable under California law.

Under the current law as of the date of this blog post, provisions in construction contracts whereby a lower tiered subcontractor indemnifies an owner or general contractor against liability caused by the indemnitee’s “sole negligence or willful misconduct” are unenforceable. See Cal. Civ. Code § 2782(a). Additionally, provisions in construction contracts on public projects are unenforceable if they impose on the contractor, or relieve the public agency from, liability for the public agency’s own “active negligence.” Cal. Civ. Code § 2782(b).  Due to these limitations, owners and general contractors often included “Type I” indemnity provisions in lower tiered agreements, whereby a lower tiered subcontractor would agree to indemnify the owner/contractor, even against liability caused by the owner/contractor’s own “active negligence.”  

Under the new law, such “Type I” indemnity provisions will no longer be enforceable. Newly added California Civil Code Section 2782.05 provides that contract clauses that purport to require a subcontractor to “insure or indemnify” a contractor, construction manager or other subcontractor against claims for damages that relate to the active negligence or willful misconduct of the indemnitee, or for defects in design, or against claims that do not arise out of the scope of work of the indemnitor, are unenforceable. Public agencies and private owners are already essentially prohibited from including Type I indemnity provisions in their agreements. See Cal. Civ. Code § 2782(b)(2) and 2782(c)(1) (newly added under SB 474). The new law expands the coverage of that prohibition to include downstream or lower tiered subcontractors and suppliers of goods.   Please see the full text of Civil Code Section 2782.05 for full details of the law.

All Rights Reserved © 2012 by Michael L. Mau, Esq. & The Mau Law Firm

 

New Law can limit Depositions to 7 hours.

Beginning January 1, 2013, depositions in California state court proceedings (with specifically enumerated exceptions) will be limited to 7 hours.  On September 17, 2012, Governor Brown signed Assembly Bill No. 1875, which  amended the Code of Civil Procedure (CCP) to be analogous with the 7-hour limit in Rule 30 of the Federal Rules of Civil Procedure (FRCP).  AB 1875 was backed by the Consumer Attorneys of California (CAOC), which claimed that the new law would reduce litigation costs for everyone.  The new deposition rule will be codified as CCP section 2025.290.

While many litigators concede that the 7-hour limit makes sense, many others will argue that the new restriction takes an important weapon out of the adversarial litigation process.  Under the new law, there are enumerated exceptions from the 7-hour deposition rule, including both the type of case (designated complex cases and employment cases) and the kind of witness (expert witnesses and designated persons most qualified) involved.  The new 7-hour limit appears to apply primarily to individual party witnesses, as opposed to persons most knowledgeable depositions for example.  Additionally, the Court could order a case exempted from this restriction as well.  Although the time limit on depositions in California state court proceedings will now more closely conform with the federal court cases, it will take some time before state court litigators become accustomed to the new rule and the impact it could have on their civil cases.

All Rights Reserved © 2012 by Michael L. Mau, Esq. & The Mau Law Firm

California Mechanic’s Lien Laws Recently Changed.

Just a reminder, as of July 1, 2012, all of the mechanics’ lien laws and related laws were moved from Civil Code Sections 3081.1 through 3267 and replaced with new laws set forth at Civil Code Sections 8000 through 8848 and 9000 to 9566. Though many of the changes are  not substantive there are some differences.

This was pursuant to Senate Bill No. 189 (“SB 189”), which enacted the change to all of California’s laws regarding mechanics’ liens, stop notices and payment bonds as revised, renumbered, supplemented and/or replaced. Though SB 189 was passed some time ago, the majority of the changes went into effect on July 1, 2012.

All Rights Reserved © 2012 by Michael L. Mau, Esq. & The Mau Law Firm

 

 

AB 341 Requires Landlords with 5+ Units to Arrange for Recycling Services

AB 341 was recently signed into law, and it added a new Section 42649.2 to the Public Resource Code.  This new law requires landlords for a building with five or more residential units, to arrange for recycling services for its tenants.  The full text of Section 42649.2 is:

(a) On and after July 1, 2012, a business that generates more than four cubic yards of commercial solid waste per week or is a multifamily residential dwelling of five units or more shall arrange for recycling services, consistent with state or local laws or requirements, including a local ordinance or agreement, applicable to the collection, handling, or recycling of solid waste, to the extent that these services are offered and reasonably available from a local service provider.
(b) A commercial waste generator shall take at least one of the following actions:
(1) Source separate recyclable materials from solid waste and subscribe to a basic level of recycling service that includes collection, self-hauling, or other arrangements for the pickup of the recyclable materials.
(2) Subscribe to a recycling service that may include mixed waste processing that yields diversion results comparable to source separation.
(c) A property owner of a multifamily residential dwelling may require tenants to source separate their recyclable materials to aid in compliance with this section.

This section was part of the larger AB 341 Bill, designed to increase waste diversion and recycling in general throughout the State of California.

All Rights Reserved © 2012 by Michael L. Mau, Esq. & The Mau Law Firm

Charter City can be Exempt from State Prevailing Wage Laws

State Building and Construction Trades Council of CA v. City of Vista was just decided by the California Supreme Court [No. S173586. July 2, 2012.].  This was a dispute involving contracts for the construction of public buildings by a charter city using only local funds, in which their contract did not require compliance with the state Prevailing Wage Laws.  Judgment for the City was granted by the Trial Court, Court of Appeals and now the California Supreme Court, and was affirmed where under California Constitution, art. XI, section 5, the wage matter is a “municipal affair” and therefore governed by its local ordinances.

All Rights Reserved © 2012 by Michael L. Mau, Esq. & The Mau Law Firm

Brannan v. Lathrop cites the Privette-Toland Doctrine

Brannan v. Lathrop Construction Associates, Inc. was just decided ([No. A129695. First Dist., Div. One; May 21, 2012), affirming summary judgment in favor of a general contractor against a claim from an injured worker.  The injured worked was not hired by the general contractor, but was instead hired by a subcontractor.  The Appellate Court cited the Privette-Toland doctrine as outlined recently by the California Supreme Court, which states that: “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. . . .”  As an employee of a subcontractor, the employee was already covered by the worker’s compensation insurance scheme; he then tried unsuccessfully to pursue a separate tort claim against the general contractor without being able to show that the general contractor affirmatively contributed to his injury.

All Rights Reserved © 2012 by Michael L. Mau, Esq. & The Mau Law Firm

Civil Code 1368 was Amended to require HOA documents fees to be Reasonable

Beginning January 1, 2012, a recent bill (771) amended Civil Code Section 1368 regarding  a homeowner’s association (HOA) fees for governing documents.  The law requires the HOA, upon written request, to give an estimate of the fee for providing a prospective buyer with the governing documents of the common interest development and other required HOA disclosures.  The fee must be reasonable based upon the HOA’s actual cost for procuring, preparing, reproducing, and delivering the HOA documents.  If the fee is paid, the HOA cannot withhold the required HOA disclosures.  The law was intended to prevent an HOA’s third-party document preparation company from bundling together both mandatory and non-mandatory HOA documents, and charging a higher fee for providing all the documents.  The HOA is also prohibited from charging additional fees for electronic delivery of HOA documents.  Additionally, at a buyer’s request, the HOA must provide 12 months of approved minutes of the association’s board of directors meetings (excluding executive sessions).  Delivery of the required HOA documents must be accompanied by a cover sheet itemizing the documents required by law and those which were provided.  See Civil Code Section 1368 and Section 1368.2 for the full text.

All Rights Reserved © 2012 by Michael L. Mau, Esq. & The Mau Law Firm