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Monday
Sep282015

Yes We CAN (talk about politics in the workplace)

Lawyer for EmployersEmployment Defense

 

by Tal Burnovski Yeyni

818-907-3224

 

As election times draw near, news about debates, political faux pas, and myriad guarantees are becoming more and more entrenched in our lives. Which, coincidentally, brings about the oh so common political discussions among friends, families and even co-workers.

As an avid political junkie I enjoy the occasional, lively debate. I have also witnessed several political discussions gone sour. While disagreement over politics can generate a healthy exchange of thoughts and ideas it can also cause a great deal of frustration and anger.

Which begs the question: Can employers limit their employees' political speech in furtherance of a drama-free work environment?  

The short answer is no. Political discussions can be problematic at times, but prohibiting them altogether is against California's public policy. California Labor Code prohibits employers from making, adopting or enforcing any rule, regulation or policy that:

(a) forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office, and

(b) controls or directs, or tends to control or direct the political activates or affiliation of employees. (Labor Code §1101).

There’s more. Labor Code §1102 provides:

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

Meaning, Labor Code §§ 1101-1102 reinforce the substantial public interest in protecting the “fundamental right” of employees to engage in political activity without interference or threat of retaliation from employers. (Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477, 1487). 

Therefore, in California, employers should be very careful in prohibiting political discussion and even more so dismissing an employee for voicing his or her political opinions.

However, employers are not left to navigate through the rough seas of politics without an anchor. There are a few steps employers can take to promote a pleasant work environment during the upcoming election season: 

  • Employers may draft or revise their employee conduct policies to direct employees to observe professional behavior at work and avoid using rude and abusive language or outbursts toward management, employees or others.

  • Employers are further encouraged to remind employees about acceptable conduct in the workplace. 

  • If you are struggling with a similar issue, please consult a legal advisor  

In the meanwhile, don't get upset about politics. Take the example of Will Rogers, who once famously said: I don't make jokes. I just watch the government and report the facts.

Tal Burnovski Yeyni is an Employer Defense Attorney at our firm. Contact her via email: tyeyni@lewitthackman.com; or by phone: 818-907-3224.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Sep252015

Pow! Boff! Thwack! Batmobile Wins Copyright Litigation

Business LitigationIP Litigation Attorney

 

 

by Nicholas Kanter
818-907-3289

 

DC Comics Litigation

 

It's not every day a Ninth Circuit court opinion includes, "Holy copyright law, Batman!," or “To the Batmobile!”  But in affirming a district court’s ruling in a copyright infringement case by DC Comics against the maker of Batmobile replicas, Judge Sandra Segal Ikuta chose these choice quotes, among others, to add a little more drama to the case.

DC Comics’ lawsuit centered on the Batmobiles driven by actor Adam West in the 1966 television series Batman, and actor Michael Keaton in the 1989 motion picture BATMAN.  Mark Towle, owner of Gotham Garage, made and sold replicas of these super autos for and to car collectors – to the tune of $90,000 each.

DC Comics, a company of Warner Bros. Entertainment and Time Warner, brought suit against Towle in 2011 in the United States District Court for the Central District of California alleging copyright and trademark infringement, as well as unfair competition. The parties filed cross motions for partial summary judgment as to DC Comics’ trademark, copyright and unfair competition claims, and as to Towle’s laches defense (wherein he claimed DC waited too long to sue for trademark infringement).

The District court granted DC’s motion in part, finding the Batmobile was a character entitled to copyright protection because the vehicle:                                     

1. Is known by one consistent name that identifies it as Batman's personal vehicle;

2. Has several traits that remained consistent over time, including "high-tech gadgets and weaponry", color and bat motifs; and

3. Has personality traits, consistently depicted as "swift, cunning, strong and elusive", and is even portrayed as a “superhero, Batman’s sidekick, if not an extension of Batman’s own persona.”    

9th Circuit Opinion: "To the Batmobile!"

In affirming the District Court’s opinion, the 9th Circuit relied on prior copyright infringement cases involving characters in comic books, television shows and movies:

Not every comic book, television, or motion picture character is entitled to copyright protection. We have held that copyright protection is available only “for characters that are especially distinctive.” Halicki [Films, LLC v. Sanderson Sales & Marketing], 547 F.3d at 1224. To meet this standard, a character must be “sufficiently delineated” and display “consistent, widely identifiable traits.” Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003) (citing Toho Co., Ltd. v. William Morrow & Co., Inc., 33 F. Supp. 2d 1206, 1215 (C.D. Cal.1998) (Godzilla)).

The 9th Circuit, like the district court, also applied a three part test, determining that a character entitled to copyright protection must:

1. Have "physical as well as conceptual qualities";

2. Be "sufficiently delineated", or immediately recognizable; and

3. Be "especially distinctive and contain unique elements of expression", i.e. not just any black sports car with weapons.

The court found that the Batmobile is a copyrightable character, that DC Comics is the owner of the copyright and that Towle infringed on DC Comics' exclusive right to produce derivative works of the character. 

Nicholas Kanter is a Business Litigation Attorney at our firm. Contact him via email: nkanter@lewitthackman.com, or by phone: 818-907-3289.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Sep182015

Online Piracy: 9th Circuit Cautions Copyright Holders re DMCA Takedown Notices

 

Franchise Agreement LawyerIntellectual Property Attorney

 

 

by Tal Grinblat
(818) 907-3284

 

A mother who uploaded a 29 second video to YouTube probably never dreamed she'd wind up with over a million views and a lawsuit by a major music publisher that went to the Ninth Circuit court of appeal.

Stephanie Lenz first videotaped her toddlers cavorting in her kitchen back in 2007 – Prince's Let's Go Crazy was playing in the background. She posted the video online along with the title "Let's Go Crazy" #1 to share with her family and friends. About four seconds into the video, Lenz asks her thirteen month-old son “what do you think of the music?” after which he jumped up and down while holding a toy.

An employee of Universal's music division (acting as Prince’s publishing administrator responsible for enforcing his copyrights) found the song on YouTube, considered the video's title and Lenz's question to her son and other details, to conclude the song was the focus of the video. Universal then sent YouTube a takedown notice pursuant to Title II of the Digital Millennium Copyright Act (DMCA) demanding the removal of Lenz's video.

To avoid infringement claims, YouTube complied with the DMCA notice and subsequently notified Lenz of the removal – citing Universal's claims of copyright infringement. Section 512(c) permits service providers, like YouTube to avoid copyright infringement liability for storing users’ content if the service provider “expeditiously” removes or disables access to the content after receiving notification from a copyright holder that the content is infringing. 17 U.S.C. § 512(c).

Lenz responded with a counter-notification to Universal, asserting fair use of the Prince song, and a demand that YouTube reinstate the video.

Abuse of the DMCA

If an entity abuses the DMCA notice procedure, it may be subject to liability under §512(f). That section provides:

Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages.

The 9th Circuit, in considering Lenz's claims that Universal misrepresented Lenz’s copyright infringement in their takedown notice to YouTube, questioned whether or not Universal abused the takedown procedures by not first evaluating whether or not the alleged infringement constituted fair use.

The Copyright Act of 1976 defines fair use as use of another’s work for purposes of criticism, comment,  news reporting, teaching, scholarship, or research (17 U.S.C. § 107). The Act includes a four part test to determine what constitutes fair use:

(1) Purpose or character of use, including commercial or nonprofit purposes;

(2) Nature of the copyrighted work;

(3) Amount of the work used;

(4) Effect of the use of the work on its market value.

The three judge panel decided there was not enough evidence to conclude that Universal knowingly made misrepresentations of copyright infringement in the DMCA takedown because the copyright holder need only form a subjective good faith belief that a use is not authorized to bring a DMCA take down notice.  However, the Court made it clear that copyright holders must consider the doctrine of fair use before issuing takedown notices:

Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law. That this step imposes responsibility on copyright holders is not a reason for us to reject it. 

Should a jury conclude that Universal ignored or neglected to assess fair use before sending the takedown notification, it will be liable for damages.  Similarly if in evaluating the evidence a jury finds Universal’s actions were NOT sufficient to form a subjective good faith belief about the video’s fair use or lack thereof, Lenz could again recover damages from Universal, even if Lenz’s damages are nominal.

An attorney at the Electronic Frontier Foundation whose goals include protecting free speech online and represented Lenz, issued this statement:

Copyright abuse can shut down online artists [sic]   political analysts or — as  in this case — ordinary families who simply want to share snippets of their day-to-day lives. Universal must stop making groundless infringement claims that trample on fair use and free speech.

Tal Grinblat is an Intellectual Property Attorney and Shareholder at our firm. Contact him via email: tgrinblat@lewitthackman.com or by phone: (818) 907-3284.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Sep152015

Can Kim Davis Be Fired? What CA Employers Should Know About Religious Accommodations

Wage and Hour DefenseAttorney for Employers

by Sue M. Bendavid

818.907.3220

 

Last June, the U.S. Supreme Court determined that same-sex marriages are a fundamental liberty protected by the 14th Amendment of the U.S. Constitution – and that states must issue marriage licenses to same-sex couples.

Kim Davis, a county clerk in Kentucky disagreed, citing religious reasons for refusing to sign marriage licenses for gay couples. Davis even spent time in jail for her continual refusal to do so, which promptly led many to wonder, "Can Kim Davis be fired?"

The short answer is no. Davis was elected – she can either resign, be impeached, or finish her term. But if she were NOT a public official chosen via election, merely an at-will employee for a private company…could she be fired then? What if she worked to sell gowns in a bridal shop here in California?

The answer then becomes a little more complicated.

Federal Laws & Religious Discrimination

Many employers know that Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in the workplace. But some employers will not know that the same federal law also prohibits job segregation – an employee like Davis refusing to perform duties because of religious beliefs might be protected from being forced to take another position, such as one with no customer contact, for instance.

Also, Title VII mandates accommodations when reasonable. Workers citing religious reasons for refusing to perform a task or conform to workplace rules (e.g. a bartender refusing to wear a revealing uniform, a healthcare worker refusing to be vaccinated, or a floral designer refusing to provide flowers for a same-sex wedding) may suggest or be offered workaround solutions.

If the requested accommodation does not result in undue hardships such as: additional excessive costs, safety concerns, decreased efficiency, or infringement on someone else's rights – the accommodation should be implemented by the employer.

State Protections for Employees

California's Fair Employment and Housing Act (FEHA) is similar to Title VII in principle – it also prohibits employers from discriminating against applicants and employees because of religious beliefs and requires reasonable accommodations to be made.

Under FEHA, an employer would have to show that there will be significant difficulty or expense should the employer make a religious accommodation.

Keep in mind, there may be reasons to terminate an employee, but employers should be sure those reasons are valid and not in violation of state or federal protections.

In Nava v. Safeway Inc., for example, employee Juan Nava was terminated for destruction of  company property one week after he admitted to being offended by and subsequently removing, a gay pride poster from an employee break room. Nava sued for wrongful termination.  Safeway responded with an anti-SLAPP motion moving to dismiss the case.  Safeway argued that the lawsuit sought to censor and interfere with Safeway’s right to freedom of expression.

The trial court decided for Safeway, but a Fifth Appellate District Court reversed – finding that (although it was a close call and Safeway might later prevail) Nava could also potentially prevail with his wrongful termination suit. Therefore, the Court allowed the lawsuit to proceed.

Employer Takeaway

So back to the question: What do you do with an employee like Kim Davis?

In California, you accommodate when you can because both state and federal laws protect the religious beliefs and practices of the employee.  Absent undue hardship, you cannot take adverse action, like cutting back her hours or denying her training opportunities.  Nor should you let other employees mock her for her beliefs or anything else.  

Accommodations may cost you time or money. But in the long run, it will be less expensive than a discrimination suit.

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her via email: sbendavid@lewitthackman.com; or by phone: 818-907-3220 for more information.

Monday
Aug102015

Supreme Court Tells EPA Cost Does Matter

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

 

The Environmental Protection Agency's Mercury and Air Toxics Standards (MATS) placed national limits on mercury and other toxic emissions from power plants. The agency projected MATS to prevent 11,000 premature deaths, 4,700 heart attacks and 130,000 asthma attacks each year.

What the EPA didn't project, however, was the cost effectiveness of enforcing MATS.

Twenty-three states and other petitioners challenged the Agency's refusal to consider costs of emissions reduction in a Washington D.C. circuit court, which sided with the EPA, then again at a D.C. Appellate Court which upheld the lower court's decision. But in June, the U.S. Supreme Court (SCOTUS) sided with the petitioners in Michigan v. Environmental Protection Agency, and remanded the case back to the Court of Appeals to reconsider its decision in light of SCOTUS guidance.

Mercury Cleanup Costs

The central question in this case pertains to the federal Clean Air Act, as amended in 1990. One of the amendments directs the EPA to study public health hazards caused by power plant emissions and to determine whether or not these facilities should be subject to regulation. The Agency must then decree certain floor standards for emissions based on the type of facility in question and on the top-performing 12 percent of those facilities in the category. Section 7412(d)(2) of the Act clearly directs the EPA to consider the costs of reducing emissions.

In 2000 the EPA concluded coal and oil burning power plants need regulation, and reaffirmed this decision in 2012. It issued a Regulatory Impact Analysis, estimating costs of regulation at $9.6 billion per year for the power plants, but did not fully estimate the benefits of emission reduction, which it estimated at $4-6 million.

The EPA found collateral benefits for regulation of the power plants, which would reduce particulate matter and sulfur dioxide in emissions. The Regulatory Impact Analysis estimated those benefits to fall between $37 and $90 billion per year – but these substances aren't covered under the Clean Air Act, and the Agency did not base its decree for regulation on these additional benefits.

SCOTUS's 5-4 Opinion

The Supreme Court's close decision centered on the sometimes ambiguous, yet sometimes particular, wording of the Clean Air Act. On the ambiguous side, §7412(n)(1)(A):

Congress instructed EPA to add power plants to the program if (but only if) the Agency finds regulation "appropriate and necessary"…. One would not say that it is rational, never mind "appropriate," to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.

More to the point, SCOTUS cited this:

Congress called for two additional studies. One of them, a study into mercury emissions from power plants and other sources, must consider “the health and environmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies.” §7412(n)(1)(B).

The EPA made several arguments, one being that the Agency shouldn't have to consider cost when first deciding whether to regulate power plants – costs become a factor in deciding how much regulation is necessary. SCOTUS responded, "By EPA’s logic, someone could decide whether it is “appropriate” to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system."

Respondents in Michigan asked the Court to consider the potentially $90 billion in collateral benefits EPA published in the Regulatory Impact Analysis, but SCOTUS refused to do so, saying the Court could only consider the "grounds on which the agency acted."

Significance

Court analysts can and will draw various lessons from the SCOTUS decision.

First, some will argue that this shows the Court majority is returning to a literal reading of statutes and following that literal approach despite policy arguments that administrative flexibility is needed (the above quote from the Clean Air Act says EPA must consider “the costs of such technologies”). However, it is arguably hard to square such a broad conclusion after the Court, in a majority opinion by Chief Justice Roberts, virtually admitted one could, for policy reasons, ignore the plain language of the Affordable Care Act stating that subsidies would only be available for an exchange set up by “the states”, not the federal government.

Perhaps a more accurate interpretation of the approach is that the Court’s conservative majority has decided the Court has historically given substantial deference to EPA and the agency needs a shot across the bow to force the agency to proceed more cautiously, and not assume it can count on such judicial deference in the future.

Yet perhaps a third conclusion is simply that the Court is severely split, roughly 5-4, between conservatives and liberals. The decisions referenced above were decided by one or two votes, with a conservative Justice or two occasionally swinging over to vote with the liberals.

Whatever the analysis, it does seem that EPA regulation may have entered a new era in which more restrictions are placed upon the agency’s scope of action.

 

Stephen T. Holzer is the Chair of our Environmental Practice Group and a business litigation attorney. Contact him by phone: 818.907.3299, or by email: sholzer@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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