“We have learned that going green today can mean saving green” said partner, Robert Patch II.  Lang, Richert and Patch has shown that you can reduce your carbon footprint without installing costly solar roofing shingles and wind turbines. Implementing greener paper management protocols and reducing energy-use are two economical ways to go-green.

Paper Management
Given the paper-intensive nature of practicing law, Lang, Richert & Patch has focused on adopting greener paper management. “Along with recycling over ninety percent of our mixed waste paper, we have adopted a policy to only use paper products that are made with at least 30% recycled content. We also encourage employees to print all internal documents double sided to reduce paper consumption,” said Rene Lastreto, a partner of Lang, Richert and Patch. By embracing green practices, Lang, Richert & Patch is making a commitment to lead the Central Valley as a steward of the environment and hopes that other law firms and other businesses will follow suit.

Reducing Energy Use
Small businesses pay more for energy than big businesses, and adopting green practices can dramatically reduce energy costs. Simple things like replacing traditional light bulbs, regularly servicing heating and air conditioning, or installing motion sensor lights can cut energy bills by 20% to 30%. Replacing office equipment? Make sure to get Energy Star compliant models with “sleep mode” to reduce energy when not in use. Green policies don’t have to be complex or burdensome. To get the attorneys and staff in your office to become more environmentally conscious, start with something simple: turn off the lights when you leave. This includes when you leave for lunch – a novel concept that eliminates hundreds of hours of unnecessary energy consumption every week.

Lang, Richert and Patch has already seen the intangible benefits of going green. For one it breeds loyalty. “Our employees appreciate our efforts – they want to work for companies who are socially responsible,” said Mr. Patch. The firm has also found greenness is a valuable tool for recruiting young, talented attorneys who have made it clear that environmental consciousness is a factor in their decision making. “In order to get the best and brightest recruits, we have to keep pace with the eco-friendly firms in the Bay Area and Los Angeles” said Mr. Patch. Moreover, sophisticated clients and large corporate clients, who already have green policies, expect their outside counsel to adopt environmentally friendly practices. Like their corporate clients, Lang, Richert and Patch is discovering that taking steps that are good for the environment can also be good for the bottom line.

It won’t be long before we will all drive to work in an energy efficient car, enter our environmentally-friendly “LEED”certified building, and transact business in a paperless environment. In the meantime, Central Valley law firms and other businesses should follow the leadership of Lang, Richert and Patch and implement environmentally friendly policies that can help business and save money.

The Court of Appeal for the First Appellate District in Nadaf-Rahrov v. Neiman Marcus Group, Inc., et al. (Sept. 10, 2008, Cal. Ct. App. 1st) __ Cal.App.4th __ [2008 DJDAR14314] held the federal definition of “reasonable accommodation” applies to disability-based discrimination claims under California’s Fair Employment and Housing Act, Government Code section 12940 et seq. (the “FEHA”), perpetuating a split among California Courts of Appeal regarding the scope of protections available under the FEHA to qualified disabled workers.  The following holdings are of particular significance.

First, Nadaf-Rahrov holds that an employer is liable for failing to provide a reasonable accommodation under Government Code section 12940, subdivision (m) (“Section 12940(m)”) “only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.”  (Id. at p. 14322, italics added.)  This holding directly conflicts with that in Bagatti v. Department of Rehabilitation (2002, Cal. Ct. App. 3d,) 97 Cal.App.4th 344, which rejected application of the ADA definition of “reasonable accommodation” under the FEHA and held that liability under Section 12940(m) may attach even if the plaintiff is not able to perform the essential functions of the position held or desired.  (Id. at p. 362.)

Second, Nadaf-Rahrov holds that the availability of an effective, reasonable accommodation is a material element of a claim against an employer for failing to engage in a good faith, interactive process under Government Code section 12940, subdivision (n) (“Section 12940(n)”). (Nadaf-Rahrov, supra, __ Cal.App.4th at p. __ [2008 DJDAR at p. 14325].)  Thus, absent proof of the availability of a reasonable accommodation, an employer cannot be held liable for failing to engage in the interactive process.  This directly conflicts with Wysinger v. Automobile Club of Southern California (2007, Cal. Ct. App. 2d ) 157 Cal.App.4th 413, which held that the FEHA imposes liability on employers under Section 12940(n) regardless of the availability of a reasonable accommodation.  (Id. at p. 425.)

Third, under Nadaf-Rahrov, the employee bears the burden of proving  the availability of a reasonable accommodation for purposes of Sections 12940(m) and (n), to wit: that he or she was qualified to perform the essential functions of the job held or desired and that the job was available.  (Nadaf-Rahrov, supra, __ Cal.App.4th at pp. __ [2008 DJDAR at pp. 14323, 14325].)  In so holding, the Nadaf-Rahrov court recognized that “[a]lthough it would be unfair to require and employee in the workplace to unilaterally identify available accommodations, an employee in litigation can use discovery procedures to do so.”  (Id. at p. __ [2008 DJDAR at p. 14325].)  Thus, while it is the employee’s burden under Section 12940(n) to identify the availability of an accommodation for which he or she is qualified, the employer is liable if such a position is identified to have existed for the first time during litigation.

Finally, regarding Section 12940(n), it is not enough that an employer consider reassigning an employee only to vacant positions in the employee’s immediate workplace or to those which the employee specifically requests reassignment if a vacancy exists elsewhere in the employer’s organization that would not amount to a promotion.  (Id. at p. __ [2008 DJDAR at pp. 14319-14320].)  Thus, an employer’s failure to consider vacancies outside the employee’s immediate workplace may provide grounds for liability under Section 12940(n), as well as justify broad discovery regarding vacancies within the employer’s organization.

In adopting the federal definition of “reasonable accommodation,” Nadaf-Rahrov harmonizes certain protections afforded to disabled workers under the FEHA and the ADA.  Other California courts, however, continue to view the FEHA’s protections as broader.  Because this division among California’s Courts of Appeal runs to the very elements required to state a claim under Section 12940, subdivisions (m) and (n), the issue is ripe for Supreme Court review.

On October 22, 2008, the California Supreme Court granted review of Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25.  The Court of Appeal found, among other things, that employers need only provide, not ensure, that meal and rest periods are taken.  Because the Supreme Court has granted review, the findings by the Court of Appeal are no longer good law and should not be followed.

Original Article Posted Below:

www.calchamber.com

(July 23, 2008) In a decision that will have an impact on the laws governing meal and rest breaks, the 4th District Court of Appeal yesterday ruled that California law requires that employers need only provide meal periods, and, as a result, as with the rest period claims, the plaintiffs’ meal period claims are not amenable to class treatment.

The issue before the court in the case of Brinker Restaurant Corporation et al., v. The Superior Court of San Diego County, is did the trial court err in certifying this matter as a class action without first determining the elements of plaintiffs and real parties in interest against the defendants?

The court ruled that the class certification order is erroneous and must be vacated because the lower court failed to properly consider the elements of the plaintiffs’ claims in determining if they were susceptible to class treatment.

The court concluded that:

1. Employers cannot impede, discourage or dissuade employees from taking rest periods; they need only provide, not ensure, rest periods are taken;
2. Employers need only to authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period;
3. Employers are not required to provide a meal period for every five consecutive hours worked;
4. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them, not ensure they are taken; and
5. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if the employer knew or should have known the employees were doing so.

Furthermore, the court concluded that because the meal and rest breaks need only be “made available” and not “ensured,” individual issues predominate and based on the evidence presented to the trial court, they are not amenable to class treatment.

Finally, the court concluded the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have know employees were working off the clock.

For more information, visit the Customer Service page at http://www.calbizcentral.com/Help/Pages/help.aspx.

Understanding the Intentions
At first read, the legislation seems straightforward and reasonably defined. However, when applying real-world scenarios, the ambiguities begin to appear. The aim of SB 1137 is to avoid residential, non-judicial foreclosures whenever possible, by requiring additional communications between the borrower and lender.

What Loans are Affected by the New Foreclosure Law?
The answer is not as clear as one might hope, but the text of the legislation identifies loans made between January 1, 2003, and December 31, 2007 that are “secured by residential real property and are for owner-occupied residences.” Loan agreements signed and dated during these periods meet this initial requirement. Whether these loans are “secured by residential property and…are for owner-occupied residences” is the more difficult determination. Many legal professionals agree that this section is not limited to “1-4 residential properties.” More likely this covers any loan secured by property on which the borrower principally resides.

What are the New Notification Requirements for Affected Loans in Default?
The new notice provisions affect both Notice of Default (“NOD”) and Notice of Sale (“NOS”) requirements. The new laws require lenders to contact borrowers at least 30 days prior to filing a NOD. If contact cannot be made, lenders must file a declaration with their NOS stating that “due diligence,” as defined by the statute, has been followed. Some very limited exceptions exist.
The new NOS provisions require increased compliance for any loan secured by residential property, where the mailing address of the borrower is different from the mailing address of the property. Presumably, the legislature included these provisions for the protection of tenants who might not otherwise get notice. Lenders are required to provide statutory language to tenants including posting and mailing notices in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. There are statutory fines for anyone tearing down the notices.

Conclusion
In addition to notice requirements, the new laws also have post-foreclosure implications for lenders. Any REO’s (properties retained by the lender after an unsuccessful foreclosure sale) that are not properly maintained may expose lenders to fines of up to $1000 per day by local government entities. While this is just a brief introduction to the new compliance regulations, it is easy to see that lenders need to make immediate changes to their current foreclosure practices. Policies and procedures need to be implemented to ensure that lenders are following the proper time line and notice requirements. Although the laws may be more complex and ambiguous than they first appears, compliance is mandatory, but manageable.

If you have questions or concerns related to this or any other legal issue, please contact Lang, Richert and Patch at (559) 228-6700.

E-discovery rules have caused in-house counsel to take a harder line with some of the e-mails that workers think are private

“Don’t put this in writing, but … ” Those are the opening words of an e-mail that got the writer’s company in legal hot water. And there are plenty more where that came from.

“This is off the record,” started the e-mail that in fact put it all on the record.

How about this one? “We may be in breach of contract, and here’s why.”

These examples of troublesome e-mails general counsel say they’ve run across don’t include the countless off color so-called jokes forwarded to contact lists of colleagues, interested or not, or links to Web sites that are definitely not part of a corporate job description.

The “send” button — together with its evil cousins, “forward” and “reply all” — are causing a world of trouble for corporations as they connect to evidence in legal proceedings and create a new mess for in-house lawyers to clean up.

“We all need to educate ourselves and our clients about the large bucket of problems that come up with e-mails,” said R. Scott Meece, global general counsel, senior vide president and secretary of CIBA Vision Corp. “People send e-mails as though they were having conversations with someone in a bar.”

The problem with e-mails has been a recurring topic recently in GC roundtable discussions and elsewhere — including protracted legal battles.

“We’ve broken open a lot of investigations just because of what we find in the e-mails,” said W. Scott Sorrels, a partner with Powell Goldstein specializing in corporate securities and regulatory matters and a former enforcement attorney with the U.S. Securities and Exchange Commission. He and Jennifer D. Odom, a Powell Goldstein partner specializing in securities, corporate and regulatory litigation as well as electronic discovery, have given a series of presentations on the perils of e-mail.

“We had one example that started out, ‘don’t put this in writing but … ‘” Sorrels said. The writer “then proceeded to shoot himself in the foot, the knee and the elbow.”

It has now become routine even in civil investigations for computers to be subpoenaed so lawyers can look at e-mails and hard drives. And one thing always leads to another. “We have forensic software that shows multiple levels of deletions. It shows thought processes. We can learn far more than from just a document alone,” said Sorrels. “E-mails have taken over the world.”

“You wouldn’t believe the things that people say — as though they’re just talking to a buddy,” said CIBA Vision’s Meece. Yet these e-mails are saved, backed up, forwarded or otherwise preserved — even when people think they’ve deleted them. “They very well can live forever.”

Even worse, sometimes e-mails tell a part of the story, but not all of it. So their continuing existence amounts to a sound bite taken out of context, multiplied and amplified forever.

“My biggest fear with e-mails is not that it can be used against you in some way, but that the assumption is it’s telling the whole story, and it’s not,” said Meece. “It may be the truth but not the whole truth, and there may be some silly stuff in there that’s not ‘nothing but the truth.’”

Ask just about any GC or labor and employment lawyer, and you’ll hear similar concerns. “We deal with this issue all the time — more and more,” said Matthew W. Clarke, a partner in Smith, Gambrell & Russell’s employer services. “The main problem that occurs over and over is that people have such a casual attitude and approach when it comes to writing and sending e-mails.”

The resulting problem is not just a matter of taste but a matter of law — as in harassment or hostile work environment. “People will put something in an e-mail that they would never say in front of other people or in a drafted memo,” said Clarke. “They’ll just put catty comments or frankly inappropriate language. They don’t think the e-mail will ever come back to bite them or ever see the light of day. Now, with e-discovery rules, plaintiffs are dredging up e-mails that go back years. They call people names. They make inappropriate comments.”

These include, Clarke said, “can you believe that [expletive] is complaining about this?” Or, “I can’t believe she’s pregnant at such an inconvenient time at work.” Or, “we need to get rid of the dead wood.”

E-mails, text messages, BlackBerry communications all are potential time bombs if not worded thoughtfully and with discipline. “It just creates the potential for a permanent record for all this type of stuff,” Clarke said. “People don’t realize that to some degree, if it’s in an e-mail, it’s analogous to etching it in stone.”

Clarke’s best advice to in-house counsel is to work with other departments to regularly repeat training in e-mail etiquette. Remind employees that their communications on office computers — and even company cell phones, BlackBerrys and home computers used for work — belong to the company and are not in any way private. If it’s off the record, don’t write it. Pick up the phone or better yet, walk over. Don’t hit the send button in the heat of anger.

And above all, said Clarke, never say anything in an e-mail that you wouldn’t want to see displayed on a giant screen in a court room in front of a judge and jury even years from now. Because that is exactly where it might end up.