News Archives - Page 12 of 28

August 19, 2020

Frederick M. Heiser Photo — Klinedinst attorney Frederick M. Heiser has been named Managing Shareholder of the firm’s Irvine office. Heiser will have direct management and oversight of this fast-growing office in the heart of the West-Coast region.

IRVINE, CALIFORNIA — Klinedinst PC is pleased to announce Frederick M. Heiser has been named Managing Shareholder of Klinedinst’s Irvine office. Mr. Heiser takes over the role from Kevin Gramling, who will continue as Shareholder in the Irvine office.

Mr. Heiser focuses his practice on business and commercial litigation, commercial general liability, and employment. His clients include local entrepreneurs, small family businesses, and Fortune 500 companies.

Mr. Heiser is regularly called on by general counsel, business owners, and claims representatives to protect their interests and to provide hands-on, strategic, and efficient direction for complex civil cases. He has found success in retail defense, business litigation, employment law, and general liability matters.

“Fred has grown his practice and leadership ability exponentially during his time at Klinedinst, and has been instrumental in the incredible growth in our team,” added Mr. Gramling, who founded the Orange County office and served as its Managing Shareholder for 20 years. “His positive and extremely respectful attitude is appreciated and respected by both clients and team members alike. His dedication, personality, temperament, and leadership skills will serve the Irvine office well for years to come.”

Klinedinst’s presence in Orange County recently expanded into new offices in Irvine’s Park Plaza. Now leading a roster of 12 attorneys, Hesier has taken on the crucial role of continuing Klinedinst’s culture, relationship management, and commitment to individual growth, both personally and professionally, allowing attorneys to best serve clientele.

Heiser often speaks and presents on matters of retail and hospitality litigation, and partners with companies to strategically develop policies and procedures to minimize their liability risks. As a member of the USLAW Network, Defense Research Institute (DRI), and Claims and Litigation Management Alliance (CLM), Heiser advises industry leaders on a broad range of legal topics.

Heiser earned his JD from Washington and Lee (W&L) School of Law in 2004. He also earned his bachelor’s from W&L, graduating magma cum laude in 2001. He is a former President of Washington and Lee University’s Los Angeles Alumni Chapter and remains an active member of the Chapter in Los Angeles and Orange County.

Even though he joined the firm three years ago, Mr. Heiser is no stranger to the Klinedinst history and culture. He originally joined the firm back in 2004, becoming one of the newest associates in the Los Angeles office. He left to pursue other opportunities but ended up re-joining the firm ten years later in 2017 as Counsel. He steps into the role of Managing Shareholder as Kevin Gramling, who held the position for 20 years, concentrates on expanding his trial practice which takes him throughout the Western states.

“The Klinedinst leadership team, especially Kevin Gramling, has built this office into something incredibly special. Kevin has left some very big shoes to fill,” said Heiser. “I couldn’t be more excited about taking on this new role and am grateful for everybody’s confidence in me. We have such a talented team and I look forward to many great times ahead.”

Photo of Klinedinst’s Irvine Office. — Klinedinst’s Irvine Office
2 Park Plaza, Suite 1250
Irvine, CA 92614

Klinedinst PC congratulates Mr. Heiser in his new role as Managing Shareholder of the Irvine office. More information on Mr. Heiser can be viewed at: www.frederickheiser.com

About Klinedinst

Klinedinst has become the go-to firm for clients across California, across the West, and across the globe. Our litigators, trial attorneys, and transactional lawyers guide clients through every problem, finding solutions at every turn. The firm serves clients from offices in Irvine, Los Angeles, Sacramento, San Diego, and Seattle. Whether representing businesses in court, helping negotiate transactions, or handling matters in state, federal, or appellate courts, Klinedinst attorneys help to get the job done.

August 18, 2020

SAN DIEGO, CA – Klinedinst attorney Dan Lawton filed an amicus brief today in the California Supreme Court in the matter of Masellis v. Law Office of Leslie F. Jensen, et. al., 50 Cal.App.5th 1077 (2020) on behalf of legal malpractice insurer AXA XL. The team’s brief argues that the Court of Appeal’s recent application of law in this “settle-and-sue” case merits review by the highest court in the State. Specifically, the amicus curiae letter asks the Court to settle questions raised by Masellis that could have a significant impact on all lawyers, their clients, and their insurers across California.

The Masellis case concerns the rules of proof that apply in California “settle-and-sue” actions. In such cases, the plaintiff challenges a prior settlement as an act of lawyer malpractice and argues the lawyer-defendant could have negotiated a better deal.

Existing law requires plaintiffs to prove causation and damages to a legal certainty. They must demonstrate that, if not for the lawyer-defendant’s malpractice, the plaintiff would certainly have received more money in a settlement or after a trial. The law also forbade juries from speculating about whether the lawyer-defendant might have gotten her former client a better deal. It required plaintiffs to prove to a legal certainty that a challenged settlement was so unreasonably low (or high) as to fall below the standard of care.

In the amicus letter, the Klinedinst team argues that the Court of Appeal’s decision in Masellis wrongly rewrites or at least muddles these rules.

In the Masellis case, Masellis had obtained a divorce settlement which included $1.2 million in cash and $20,000 per month in spousal support. After securing the settlement, she discharged her lawyer (Jensen) and sued her, alleging the defendant could have secured a better deal.

When the case was heard, the jury agreed and awarded Masellis damages. Jensen appealed, arguing that Masellis should have had to prove that she certainly would have done better had she rejected the settlement. However, the Court of Appeal affirmed the judgment in Masellis’ favor.

With its published decision, the Court of Appeal effectively weakened the legal certainty standard that the original trial judge rightfully should have applied. In their filing, Klinedinst lawyers point out that the decision exposes thousands of settlements to speculative second-guessing by juries and paid expert witnesses. The decision harms lawyers’ ability to negotiate and advise their clients about out-of-court settlements. It also threatens increased liability insurance premiums for lawyers and law firms, raising the cost of law practice and threatening clients with higher fees boosted to cover that increased cost. California’s strong policy favoring out-of-court settlements, the letter argues, will suffer unless the Supreme Court intervenes and reverses Masellis.

The Supreme Court is expected to decide whether to grant or deny review in Masellis by the end of September. If the court should grant review, then the parties and other amici would have the chance to file comprehensive briefs on the matter and ask the court for a decision on the merits of the case.

Read the full amicus letter here.

About Klinedinst

With over 40 years of solid history, Klinedinst is the go-to firm for clients across California and Washington State. Our litigators, trial attorneys, advisor, and transactional lawyers guide clients through their issues, finding solutions at every turn. The firm serves clients from its offices in Irvine, Los Angeles, Sacramento, San Diego, and Seattle. Klinedinst attorneys are deeply committed to finding practical solutions and helping get the job done.

August 3, 2020

SACRAMENTO, CA — Klinedinst’s Ian A. Rambarran published an article in California Mortgage Finance News, a publication of the California Mortgage Bankers Association (CMBA) which discusses two new consequential opinions—both which offer significant implications for borrowers and lenders. Johnson and Rambarran’s article examines all sides of the opinions, including the potential to alter the existing authority on foreclosures and shifts in the duties of loan officers.

Johnson and Rambarran are regular contributors to CMBA’s publications and are go-to authors of matters concerning foreclosures, loss mitigation, loan modifications, and more. Additionally, Rambarran is a recurring speaker on regulatory compliance topics and served as the immediate Chair of the CMBA Legal Issues Conference and delivered the keynote address.

The CMBA, representing hundreds of companies and tens of thousands of California employees, is the leading advocate for the industry in the largest mortgage/real estate market in the nation. The CMBA represents residential and commercial/multi-family mortgage bankers, as well as their essential vendor partners.

The two rulings discussed in the article are Perez v. Mortg. Elec. Registration Sys. and Weimer v. Nationstar Mortgage. In Perez, the ruling helps to harmonize the law on the issue of whether a borrower may challenge a lender’s authority to foreclose before foreclosure has occurred. The holding in Perez sends a strong message to borrowers at the federal level and leaves no room for equivocation across the U.S. District Courts. For now, lenders and servicers have consistently been granted favorable laws in both the federal and state courts about challenges to their rights prior to foreclosure.

Next, in In Weimer v. Nationstar Mortgage, LLC the Third District Court of Appeal weighed in on the split in judicial districts as to whether a loan servicer has a duty sounding in negligence for mishandling loan modification applications. The court ruled in favor of the borrowers on this point and held that when a servicer reviews a borrower’s application for a modification, a special relationship is created between the two parties.

Klinedinst congratulates Ian on their notable publication and thanks them for their devotion to their practice and to the CMBA. The summer 2020 edition of California Mortgage Finance News can be viewed here, and Johnson and Rambarran’s article, ‘Recent Appellate Decisions Support Both Lenders and Borrowers in California’ can be viewed here.

About the Authors

Photo of Ian A. Rambarran — *Ian A. Rambarran*

Ian A. Rambarran works with the firm’s corporate clients, focusing primarily on business, financial services, employment, intellectual property, real estate, transportation, and construction issues. A graduate of the University of the Pacific, McGeorge School of Law, Mr. Rambarran currently serves as Chairman of the California MBA Legal Issues Committee. He frequently counsels and represents clients in business and commercial disputes, and represents lenders and financial institutions in disputes throughout California. Mr. Rambarran can be reached at irambarran@klinedinstlaw.com.

Please Note

This article is intended to be for informational purposes only. This information does not constitute legal advice. The law is constantly changing and the information may not be complete or correct depending on the date of the article and your particular legal problem. The use of information from this article does not create any type of attorney-client relationship.

About Klinedinst

Klinedinst is the go-to firm for clients looking for litigation, trial experience, transactional representation, and legal counsel. The firm’s offices in Los Angeles, Sacramento, San Diego, Irvine, and Seattle service the entire West Coast. What sets Klinedinst apart is the relationship our attorneys foster with each and every client. Klinedinst lawyers are indispensable strategic partners to business leaders, helping to achieve business objectives and create proactive solutions to resolve the many legal challenges that businesses are confronted with every day. Whether vigorously advocating for business clients in court, or guiding business transactions and negotiations, Klinedinst is the trusted legal advisor to have by your side.

July 31, 2020

By James D. Snyder, Senior Counsel, Klinedinst PC

On July 16, 2020, the Court of Justice of the European Union issued its long-awaited decision in the case Data Protection Commission v. Facebook Ireland, Schrems (Shrems II). The EU high court invalidated the European Commission’s adequacy decision for the EU-U.S. Privacy Shield Framework. If you are one of more than 5,000 US companies with European users of customers, and you transfer their personal data to the US for company use, the EU’s top court has now thrown a wrench into your authorization and you will need to figure out an alternative mechanism to authorize the transfers immediately.

Enter California’s California Consumer Privacy Act of 2018 (CCPA), which has been in effect since January 1, 2020. Many have commented that the CCPA is similar to, and in some instances, more stringent than the EU’s General Data Protection Regulation (GDPR). So, could California’s own CCPA lead the way toward California businesses’ transfers of EU data being adequate? This article suggests that California ask the European Parliament this very question; now!

In the aftermath of the death of the US-EU Safe Harbor regime and the implementation of GDPR, the US and the EU agreed on a mechanism called Privacy Shield to authorize the transfer of data from the EU to the US. An alternative for companies transferring data from the EU to the US is to enter into Standard Contractual Clauses (SCC), which are European Commission approved clauses that outline a range of rights that are responsibilities in line with GDPR. In essence, if you are a US company that relied on Privacy Shield until you put a new mechanism in place like SCCs, you cannot serve users or customers in the EU.

The EU-U.S. and Swiss-U.S. Privacy Shield Frameworks were designed by the U.S. Department of Commerce and the EU Commission and Swiss Administration to provide companies with a mechanism to comply with data protection requirements when transferring personal data from the EU and Switzerland to the US. In 2016, Privacy Shield was essentially created for ease because, like now, many US companies were without any legal mechanism to make authorized transfers when the Safe Harbor regime was struck down by the EU high court. To use the Privacy Shield register, companies self-certify that they will essentially comply with EU data protection rules. This does not mean that companies who do not already enter into SCC’s to conduct the transfers but suffice to say that many transfers simply relied on this self-certified registration.

The CCPA is a broad law enacted in the State of California that applies to businesses inside and outside of the state, as well as internationally. The CCPA created new data privacy rights for California consumers, requiring businesses to tell them what personal information has been collected and how the business (or any third party) is using the information. Consumers can force businesses to delete their data or prohibit the business from sharing personal information with third parties. (Note that the California data protection process is ongoing with CCPA 2.0 looming on the upcoming ballot, but the updated law would be more restrictive and any updates shouldn’t impact a question of adequacy.)

During the third annual review of the data-transfer agreements at the European Parliament, the question was posed to members of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (when discussing its October 23, 2019 report with representatives of the European Commission and European Data Protection Board)–is it possible for California itself to have its own Privacy Shield arrangement, separate from the other 49 states in the US? The response from the commission was, in principle, yes. The commission explained that GDPR provides for the possibility to recognize a territory at a sub-federal level adequate, so in principle, the commission’s answer was yes. Given 5,000-plus US companies (many of which must or have become compliant with CCPA) are now in violation of GDPR, California should immediately press the EU to confirm the adequacy of CCPA compliance in lieu of Privacy Shield.

GDPR Article 45(1) states, “A transfer of personal data may take place where the commission has decided that the third country [or] a territory within that third country ensures an adequate level of protection,” and 45(3) states, “The implementing act shall specify its territorial application.”

Whether the CCPA would be adequate is likely not the only thing that would be assessed. Like the analysis of Privacy Shield’s adequacy, California’s regime would need to have independent oversight and possibly show that data could be retained within California to pass muster. There is also the question of whether California has the constitutional power to ask for such an agreement and an analysis of conflicts of law issues between the GDPR, the CCPA, and various domestic US laws would need to be assessed. None of the above however should prevent the State from seeking these answers on behalf of its businesses, which likely make up the majority of impacted US businesses.

If California were its own nation, it would be the fifth-largest economy in the world. With a GDP of $2.9 trillion, California would slot between Germany and the United Kingdom in the world’s top economies. California has set the tone for data protection overhauls across the US with the likes of Nevada, New Hampshire, Washington state, Illinois, Virginia, and Florida, to name a few, joining California enacting or actively pursuing data protection overhauls. The Consumer Data Privacy and Security Act of 2020 has also been widely discussed, as the US begins contemplating a Federal data protection regime, but the process is nowhere near complete and many have commented that the Federal bill or alternatives are not nearly as stringent as CCPA, raising adequacy concerns in relation to GDPR.

The European Commission must follow a four-step process to adopt an adequacy decision. First, it must make an initial proposal finding that the third country’s domestic laws are adequate. Article 45(2) of the GDPR provides the framework of this proposal and the European Data Protection Board’s (EDPB adequacy referential includes additional context. Further, the European Court of Justice explained that adequate in the context of an adequacy decision means “essentially equivalent” and does not mean exact alignment with EU privacy laws. Second, the EDPB provides an opinion on the draft proposal. Third, the EU parliament comments on the draft, and finally, the European Commission subsequently adopts the proposal.

The US has a single law in California’s CCPA, that is in place now in the world’s 5^th largest economy, that the EU Parliament has already acknowledged could be adequate in and of itself. California must act now to seek a California-EU (and Switzerland) agreement to allow California-compliant businesses to conduct EU-California transfers pursuant to businesses’ compliance with the CCPA. Adequacy decisions by the European Commission are not generally fast and the State of California should make all efforts to begin immediately in the wake of Shrems II.

About the Author

In his practice, Mr. Snyder represents clients in business transactions, M&A, and data privacy issues. He provides legal and compliance counsel to emerging startups and established companies in areas involving licensing, finance and investments, data privacy and security, corporate structuring, contracts, patent, trademark, copyright, and domain portfolios. He has built a reputation as an outside General Counsel, providing legal guidance on a wide range of issues. For questions about policies, documentation, or best practices for remote employees, contact Mr. Snyder at jsnyder@klinedinstlaw.com.

About Klinedinst

July 9, 2020

The book review, published in California Litigation, the journal of the Litigation Section of California Lawyers Association, offers an informative view into the implications the Stringfellow Acid Pits had on environmental law, toxic torts, appellate procedure, and insurance coverage into the present day.

Klinedinst’s Dan Lawton just published a new book review on Brian Craig’s “Stringfellow Acid Pits: The Toxic and Legal Legacy” a fascinating look at an environmental disaster that launched an epic legal battle that spanned over three decades. His review, published in California Litigation, the journal of the Litigation Section of the California Lawyers Association is a must-read, that offers the reader a forthright retrospect of this important new book.

The review, which can be read in full here, explores the history of the Stringfellow Acid Pits calamity before analyzing the cause and effects of the legal situation that resulted in a legal saga involved more than 1,000 lawyers, 4,000 plaintiffs, and nearly 200 defendants, and led to the longest civil trial in California history.

Dan Lawton is Senior Counsel at Klinedinst PC and a member of California’s Litigation editorial board. He practices litigation in the firm’s appellate and professional liability groups, including civil trial work and complex commercial and intellectual property litigation on behalf of both plaintiffs and defendants. He also has a deep background in civil appeals and is certified as a legal specialist in Appellate Law by the State Bar’s California Board of Legal Specialization.

About Klinedinst

July 2, 2020

SAN DIEGO, CA — Klinedinst’s Steven K. Berenson published an article in Law360, a nationally-recognized source for legal news, which clarifies an important issue on the standard of proof a plaintiff must satisfy in “settle and sue” legal malpractice cases, an area of longstanding confusion. The Court’s ruling in Masellis v. Law Office of Leslie F. Jenson could represent a shift in the playing field of legal malpractice plaintiffs’ cases.

In his published piece, Berenson explores the ruling’s implications for defense counsel moving forward, and analyzes the playing field for plaintiffs’ attorneys, as proof of settle and sue still remains a formidable challenge, even after the decision made by the California Court of Appeal for the Fifth Circuit. This ruling increases the likelihood of plaintiffs’ prevailing in settle and sue legal malpractice cases, and has the potential to alter the existing balance between attorneys and their former clients in malpractice litigation.

Steven K. Berenson, Esq. — *Steven K. Berenson*

Steven K. Berenson is an experienced Professional Liability attorney and has represented individuals and government entities in state and federal courts in a wide range of matters such as legal ethics, civil litigation, and family law. Mr. Berenson spent two decades as a full-time law professor, where he focused on family law, legal ethics, and veterans’ legal issues.

View Article on Law360 (Subscription Required) ➤

Law360 is one of the most widely-read news sources for lawyers, business leaders, and judges across the U.S. Over 1 million subscribers receive Law360 updates, published on a daily basis. The publication also has more than 40 practice areas, industry, and state sections that cover legislation, regulation, litigation, corporate transactions, and legal industry news.

Read the full article (subscription required) on Law360 here. You can also download the full article PDF without a subscription from here.

About Klinedinst

June 23, 2020

By Fred M. Heiser

For many in the retail and hospitality industry, business is paused by the spread of the novel coronavirus, awaiting word that it is safe to resume. Other essential businesses that avoided complete shutdown still face significant pandemic-related disruptions. Now more stores are gradually beginning to reopen with the prospect of returning to some semblance of “business as usual.” But, as they do, measures should be taken to address another anticipated crisis: a wave of COVID-19 exposure claims in the courts.

In part, this potential litigation is the logical result of an increase in human contact as restrictions lift and people return to stores and restaurants. When this occurs, people diagnosed with COVID-19 (or their families) will seek to hold liable the businesses where they claim they contracted the virus. Thus, many of the principles that help companies thrive in the best of times will become even more critical as the pandemic continues to play out.

Ways COVID-19 Claims Could Play Out

As of this writing, court dockets reflect only a few COVID-19 case filings. It is, therefore, too soon to tell how these types of cases will fare in the courts. But exposure claims are nothing new. Reviewing past infectious disease cases is instructive, providing a glimpse into how current and future COVID-19 claims may ultimately unfold. For example, cases involving exposure to tuberculosis or valley fever (a fungal infection) include allegations centered around a defendant’s failure to warn of the possibility of contracting an illness, failure to employ adequate controls to prevent transmission, and failure to prevent employees that displayed symptoms of an ailment from infecting others.

Many COVID-19 claims will likely be similar. It will not be surprising to see, for instance, cases about a restaurant’s failure to mitigate transmission among its employees, customers, or the general public; a retailer’s failure to warn customers of risks that it either knew or should have known about; or vicarious liability stemming from an employee’s careless decision to work despite displaying COVID-19 symptoms.

To help forestall widespread litigation, some states have already passed laws enacting certain COVID-19 business immunities. Legislation in California and in other states is still evolving. Federal immunities may even be in the works in Congress. Nevertheless, no one should expect absolute immunity. Immunity is unlikely to protect companies from liability for gross negligence, recklessness, or intentional harm. Thus, COVID-19 plaintiffs may simply “plead around” negligence and accuse defendants of reckless or intentional wrongdoing instead. For example, a plaintiff may assert that a company was reckless because it failed to enact adequate procedures to prevent COVID-19 transmission, despite well-publicized standards.

Naturally, causation will be a primary line of defense and one on which many in the industry already seem to be relying. Yet defenses centered around causation will be costly and are not guaranteed. First, they will require efforts like contact tracing, social media analysis, and other investigation into where else a plaintiff was and who else a plaintiff was near. Second, many defenses will require the retention of experts that are likely to include epidemiologists, infectious disease specialists, and industrial hygienists. Third, to prevail, it is unlikely that a COVID-19 plaintiff will be required to rule out every other possible means for contracting the virus. Rather, plaintiff experts will probably rely on a “reasonable degree of medical certainty” standard. Defendants could then essentially be tasked with establishing other viable ways a plaintiff may have contracted the virus, and how potential exposure at a defendant’s premises was limited or non-existent. As litigation in this area continues to evolve, so too will strategies for anticipating and handling these claims.

Initial Tips For Venues Opening-up

As with other liability issues, initial steps for addressing anticipated COVID-19 claims must include implementing proper policies and procedures. Adopting protocols that protect employees and customers from exposure and transmission is key. Practices to consider include:

Follow (or exceed) industry and CDC standards for hygiene, sanitation, and safety.
Follow (or exceed) local, state, and federal prevention guidelines and recommendations.
Display signs that warn about COVID-19 risks and encourage practices that limit person-to-person contact and promote social distancing (e.g. employees wearing masks, mobile orders available, curbside pickup made easy).
Develop and implement investigation procedures for all potential COVID-19 related claims, including workers’ compensation and liability.
Retain documents that confirm enforcement of the daily precautions, policies, and procedures in place.

A few words on COVID-19 waivers. Their enforceability is still up in the air and will likely depend on each jurisdiction’s determination about whether they violate public policy. Nevertheless, venues that routinely use liability waivers should consider creating ones for COVID-19 to provide an additional layer of protection for the business and an increased level of awareness for its customers. To avoid uncertainty, this waiver should be on a form that is separate from any existing release so that it remains conspicuous. Additionally, it should: (1) be specifically tailored to the business; (2) include a choice of law provision with a connection to the venue’s location; (3) cover the release of negligence claims but not reckless or intentional misconduct; (4) incorporate a discussion about the inherent risks of COVID-19 to the particular industry; and (5) identify what preventative measures the company is taking to help protect against transmission.

Of course, not everything related to COVID-19 claims can be anticipated. The retail and hospitality industry will need to adjust to changes. Still, knowledgeable counsel remains a resource for businesses trying to figure out what’s next. Trusted counsel can help navigate through issues that are predictable, like the need to create policies and procedures designed to protect businesses, their employees, and customers. And as litigation in this area continues to develop in the months and years ahead, counsel will remain a steady “go-to” for up-to-date trends and determining what impact those trends have on handling these cases moving forward. As with COVID-19 itself, the old adage applies: An ounce of prevention is worth a pound of cure.

Frederick M. Heiser, Esq. — *Fred M. Heiser*

Fred M. Heiser is Shareholder in Klinedinst PC’s Los Angeles and Orange County offices. His clients include local entrepreneurs, small family businesses, and Fortune 500 companies. Mr. Heiser is regularly called on by general counsel, business owners, and claims representatives to protect their interests and to provide hands-on, strategic, and efficient direction for complex civil cases. In addition to litigation, Mr. Heiser partners with companies to strategically develop policies and procedures to minimize their liability risks. He can be reached at fheiser@klinedinstlaw.com

About Klinedinst

May 29, 2020

By Sylvia V. Panosian

As some California businesses prepare to re-open, they should be aware of the Government’s requirements and guidelines regarding risk assessment, protection plans, employee trainings and additional steps for their safe re-opening. On May 4, 2020, the Governor’s Executive Order announced that as California moves to allow reopening of lower-risk businesses and spaces (“Stage Two”), and later the reopening of higher-risk businesses and spaces (“Stage Three”), they may do so under new modifications and guidance provided by the State Public Health Officer’s May 7, 2020 Public Health Order.

The Public Health Order announced that all local health jurisdictions in the state may begin gradual movement into Stage Two. However, each jurisdiction will have some discretion regarding the transition. On the one hand, a given jurisdiction may implement or continue more restrictive public health measures if they believe it is warranted. On the other hand, the California Department of Health has also set forth criteria to help local health officers assess their jurisdiction’s ability to move through Stage Two more quickly than the State as a whole, and reopen additional low-risk businesses before the rest of the state if they choose to do so. Importantly, for businesses wondering if they are one of those that can reopen, the Public Health Order notes that “a list of the sectors, businesses, establishments, or activities, and any necessary modifications, that such a qualifying jurisdiction may choose to reopen will be available” here. For now, the jurisdictions that have met the criteria to move through Stage Two of the resilience roadmap, and have been approved for accelerated reopening, can be found here.

The Government’s Statewide Industry Guidance page provides that, if permitted to re-open, each business facility must do the following:

Perform a detailed risk assessment and implement a site-specific protection plan
Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
Implement individual control measures and screenings
Implement disinfecting protocols
Implement physical distancing guidelines

Additionally, if an employee needs to self-isolate because of COVID-19, that employee should be encouraged to stay at home, with supporting sick leave policies in place.

The Government has instructed businesses to review the guidance that is relevant to their workplace or business sector, prepare a plan based on the guidance for their industry, and then put it into action. The steps outlined above are addressed in detail for each specific industry within that industry’s guideline page. For now, industries with posted guidelines and checklists can be found here, and include agriculture and livestock, auto dealerships, child care, communications infrastructure, construction, delivery services, energy and utilities, food packing, hotels and lodging, life sciences, limited services, logistics and warehouse facilities, manufacturing, mining and logging, outdoor museums, office workspaces, places of worship, ports, public transit and intercity passenger rail, real estate transaction, retail, and shopping centers. For regions approved to move more quickly through Stage Two, hair salons, barber shops, and dine-in restaurants may also reopen with modifications. Their guidelines and checklists can be found here: https://covid19.ca.gov/safer-economy/

A careful reading of these guidelines is important, as they provide direction on a number of modifications for the safe re-opening of the business in question, including the requirement that some businesses post checklists to show customers and employees that they have reduced risks and are open for business. Moreover, the guidelines cross-reference additional applicable guidelines and safe practices provided by other government agencies such as Cal/OSHA, the U.S. Food and Drug Administration, and the CDC, which should also be carefully reviewed and implemented.

As Governor Newson indicated during his update over the Memorial Day weekend, in addition to the statewide guidance and modifications, the regional variances allow for adjustments and announcements related to guidelines on a regional basis as well. However, they are making modifications in real-time and not waiting for news conferences to announce them. Therefore, employers in all California counties should continue to monitor changes in the law and consult with legal counsel regarding updates to the employer’s obligations in response to the COVID-19 pandemic and safe business re-openings. Please contact Sylvia V. Panosian or Klinedinst’s employment team if you have any questions.

About the Author

Sylvia V. Panosian, Esq. — *Sylvia V. Panosian*

Sylvia V. Panosian is an attorney in the firm’s Los Angeles office where she represents clients in general liability, employment, and business litigation in both state and federal courts. Ms. Panosian has practiced civil litigation in a range of issues, including gender violence, sexual harassment, assault/battery, whistleblower, disability, age, race, gender, and sexual orientation discrimination, as well as wage and hour violations for individual wage cases and PAGA actions.

About Klinedinst

May 28, 2020

Susan S. Nahama, Klinedinst’s Director of Operations and Managing Shareholder will be a featured panelist on an upcoming webinar on Managing and Engaging Remote Workforces. The presentation is being hosted at HR Café, which provides continuing education and networking opportunities to the HR community in San Diego. Nahama’s in-depth knowledge of building company infrastructure and maintaining an exceptional workplace culture will be featured at this virtual event on June 3, 2020.

SAN DIEGO, CALIFORNIA – While shelter-in-place orders are slowly lifting, the need for employees to continue working remotely remains critical. Many employers are trying to stay ahead of local and state directives, while managing and engaging remote workers..

To help companies ensure compliance, HR Café is hosting a panel on June 3, 2020 featuring Klinedinst’s Susan S. Nahama. Nahama, who is Director of Operations and Managing Shareholder for Klinedinst San Diego, will help attendees learn best practices for helping their employees thrive, connect, and engage in today’s hybrid environment.

Event topics of discussion will include effective management of remote employees, reintegrating into the physical office, best practices, learning moments, and more. Susan will be joined by CEO of Coastal Payroll Johnathan Gallagher. The event will also be moderated Scott Carr, Klinedinst’s Director of Marketing and Community Relations. Each of these panelists brings a wealth of experience as to the best practices for remote workplaces, as well as the pitfalls to avoid.

Susan has been a Klinedinst shareholder since 2000, and has extensive experience in a broad range of civil litigation, with a focus on all aspects of professional liability. As Managing Shareholder of the firm’s San Diego office, she is responsible for day-to-day management, including human resources, operations, financial performance, and team-building. In her role as Director of Strategic Operations, Susan works in tandem with all of the firm’s offices and departments to build company culture, improve efficiency, and enhance operations.

The webinar will take place Wednesday, June 3, 2020 at 8:00am. It is part of HR Café’s “First Wednesdays” webinar series, and is open to HR professionals, managers, executives, and business owners.

About Klinedinst

April 27, 2020

As companies continue to navigate how to do business during the coronavirus, the threats to data and privacy continue to grow. Many hackers are using the pandemic to launch new phishing scams, putting data increasingly at risk. Klinedinst corporate attorney James D. Snyder provides guidance and tangible steps companies can take to lock down data during COVID-19 to protect you and your customers.

By James D. Snyder

With the majority of the world working remotely due to COVID-19, we are all trying to adjust and continue to be productive in these very uncertain times. When we are in the office, we take for granted the data security and privacy protections that are readily available. At home, there are certain risks involving data privacy that we should be aware of. This brief article will identify some of the data privacy issues to consider while working remotely for the foreseeable future to ensure that when we transition back to office-life, our data (and our customers, clients, patients, etc.) will be safe and protected.

When working from home, you connect to your home Wi-Fi network and the risk of a data breach is generally higher at home given less protection. The security built into the office’s network is not as robust at home generally making home an easier target for things like malware and malicious attacks. If you are using an unsecured Wi-Fi connection, always refrain from using your login information because your data can be intercepted by third parties. All of your data can be accessed in these circumstances while on the unsecured network. If the company has a virtual private network (VPN) option, it is a great idea to use the VPN access because the VPN establishes a secure and encrypted connection. This will provide greater privacy and security protection than a secured Wi-Fi! It is a good idea to, therefore, follow company guidelines and if possible, secure your home network (or use a VPN) and use commercially available antivirus software or firewalls.

While it may be easier and quicker to send that quick email on your personal device when you are working at the house, keep in mind that your personal laptop (as an example) likely has less security and backup software access and therefore it is riskier than your company-issued devices. Your personal device is much more likely to be infected with malware (without you even being aware) and accessing company data through your personal device can, therefore, infect the company’s data. Using a personal laptop at home could also potentially open up access to your personal data stored on your computer to your employer. Neither your employer nor you want that…

One simple way to safeguard data is to lock your computer when leaving your home work station. This is a good practice even while in the office and should be followed regularly. Much of what we do nowadays can be done on your smartphone as well so protecting your phone (and computer) with an appropriate password is highly recommended. It is likely that your company already requires you to change your passwords every 30, 60, or 90 days. Following this and using challenging passwords is really necessary as hackers are becoming more and more capable (get in the practice of updating your phone’s password with your computer at the same time).

In addition to locking your devices down, another simple measure is to not leave your devices unattended. Leaving your laptop or smartphone can create an opportunity for someone to access the device without your knowledge. If your device were to be taken or accessed the device’s data can be downloaded or deleted (even if there is not a breach, losing data can be disastrous). Of course, if the devices are locked you may be in the clear, but keeping the devices in a secure location is a good idea as well.

Regardless of whether you have a secure network, backing up your data is critical these days. No one wants to have to recreate massive amounts of data due to a data loss. Loss of data may also be considered a data breach and under the California Consumer Privacy Act (CCPA), your company may require access to the data to produce data due to consumer requests. Given working from home increases your vulnerability to security attacks, and given computers can simply be damaged or fail, backing up data can really be a lifesaver if something were to go wrong. There are ample cloud-based backup options and your company may already provide you with access. Consult your company’s IT group (if applicable) and discuss your back up options—you’ll be happy you did if you, unfortunately, have a data loss.

Finally, if you deal with personal health information (PHI) then the Health Insurance Portability and Accountably Act (HIPAA) applies and needs to be considered. The Department of Health and Human Services (HHS) regularly levies hefty penalties for the failure to properly manage remote worker’s access and protection of PHI. There are many examples of penalties levied by the HHS, but one that comes to recent memory include a $750,000 settlement between Cancer Care Group and HHS due to a remote employee losing a laptop when the employee’s car was broken into (link: https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/examples/cancer-care-group/index.html). Another example is a settlement between Lincare and HHS for $240,000, where a remote employee failed to safeguard PMI by exposing and abandoning the records (link: https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/lincare/index.html). All of the above suggestions will certainly help protect PMI but employers should note which employees are remote workers and record the level of information to which these employees have access to (with respect to PMI). If your company deals with PMI it is good to have robust data privacy and security policy and train all staff that has access to the PMI.

Given the majority of the world’s workforce is working remotely now, it is a great time to revisit our data privacy and security practices and procedures. Taking these steps will ensure the company is compliant with applicable data privacy laws (CCPA, GDPR, HIPAA, etc) and help you (the employee) keep data safe and secure.

Should you or your company need help to secure your own or your employees homework environment, Klinedinst PC can help! Our team of data privacy professionals can help customize a data privacy solution and training for you. We will work with you to understand your business’ needs and prepare a holistic solution to include data privacy and security policies and procedures, disaster recovery policies, confidentiality agreements, and data privacy agreements as well as policies for human resources such as a Bring Your Own Device (BYOD) policy.