1ST Amendment Right To Peacefully Protest

There are many protests happening after the U.S. Supreme Court ruling to overturn Roe v. Wade. If you are attending a rally or protest, here is what you need to know about your First Amendment right to peacefully protest:

The right to protest is fundamental to our democracy and sacrosanct. The Founding Fathers thought that the right was so important that they wrote it into the first 45 words of the Bill of Rights and labeled it the First Amendment to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As the Supreme Court observed in 1958, “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”

In an eerie coincidence of numerical proportions, the 45th President is aiming to thwart, limit, or outright eviscerate the fundamental right to protest and have grievances heard. On Monday, President Trump left the White House, walked across Lafayette Park in Washington, D.C. and posed in front of St. John’s Episcopal Church while holding a Bible. The path to this photo op was cleared by the U.S. Park Police, Secret Service, Department of Homeland Security, and other agencies. The overwhelmingly peaceful protesters and members of the media were driven from the area using aggressive and violent crowd control tactics which included tear-gas, rubber bullets, smoke canisters, pepper spray pellets, and good ole’ brute force.

It has been widely debated as to whether tear gas or smoke were really used on the protesters. However, that debate is hollow. It was a crowd of American citizens engaged in constitutionally protected protests against police violence. So it does not matter what was used because it was fired into a crowd of people just wanting their voices to be heard and fighting to prevent the injustice that was suddenly thrust upon them. Imagine the heartbreaking absurdity of sanctioning police brutality at a protest against police brutality.

The simple reality cannot be brushed aside by rhetoric or partisan sound-bites. The clear and undeniable fact remains that law enforcement officers who harass peaceably assembled citizens are violating the First Amendment, no matter the tactic used. It is unlawful and those rights must be protected.

Even though the incident on Monday in Washington, D.C. occurred before the curfew set by the mayor, curfews in and of themselves violate civil liberties. Public officials at every level of government are making arbitrary decisions about when, where, and what time citizens are allowed to have their voices heard. Just like it is wrong to forcefully disperse protesters before curfew, it is just as wrong to disperse them after curfew.

Under state law, cities and counties can impose curfews during a state of emergency “to provide for the protection of life and property.” However, there must be actual or imminent violence beyond the means of the government to address the issue. That threshold must be met. Unfortunately, curfews are enforced in very arbitrary and discriminatory ways. Historically, curfews have been used to suppress the voices of the people.

Even if curfews are being enacted for a legitimate purpose, there is an added danger for continued police misconduct. This is not a fear but a reality that is broadcast not only on the television news but throughout social media. The chilling scenes play out daily since the imposition of curfews where law enforcement rush crowds of peaceful protesters as soon the curfew time begins. Like a ticking time-bomb that explodes as soon as the clock strikes. Many of the violent confrontations have occurred under the cover of curfew enforcement. Unfortunately, depending on the particular law enforcement officer enforcing the curfew, a crowd could encounter a warning to go home, a ticket, mass arrests, or even rubber bullets. Those are just the mild encounters.

But the risk is not just one sided. We cannot also deny that a heavy-handed response to protests and the imposition of curfews also place the lives of law enforcement officers at risk. Violent confrontations sometime become unavoidable when fight or flight takes over. Additionally, there are those that are just waiting for an opportunity to inflict harm on law enforcement. Those consequences are not considered by those in power when the goal is to eviscerate the fundamental right to protest government action. It is very easy to make demands and insist on “dominating” the protestors with a heavy hand of “law and order” when you sit behind a desk or hide in a bunker.

In short, there is no denying that government and law enforcement have a goal of curtailing the rioting, looting, and destruction of property. But those interests must be weighed against a sweeping infringement of a fundamental right. The use of force, such as arrests, or the use of less-lethal weapons, should not be imposed against protesters unless strictly unavoidable. Otherwise the intended effect would be muzzling voices that need to be heard and censorship.

We will gladly represent anyone whose rights have been infringed.

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Can Employers be sued for Workplace Injuries?

Written By: Christopher Dolan and Aimee Kirby

This week’s question comes from Victoria, who asks: My son, who is 24 years old, recently took a job at a manufacturing facility. They have a cleaning crew at night to make sure everything is clean for the next day. My son befriended one of the young female workers of the cleaning crew, as he sees her every day. While his friend was working, she suffered an amputation of her pinky finger on her left hand. My son told me that the company routinely leaves the equipment on so that their workers can start working the minute they hit the yard and don’t have to lose time starting everything up again. My son feels terrible for his friend. and wants to know if she can sue his company despite the worker’s compensation that his friend might get from her cleaning job.  

Hi Victoria,

I am sorry your son’s recent work experience. Workplace safety is generally, on a state level in California, overseen and regulated by Cal-Osha. Cal-Osha most likely inspected the yard after this severe accident. Cal-Osha probably sent an inspector out to determine if any workplace safety violations contributed to the incident, loss of her finger. Cal-Osha will then give the company a chance to respond to any proposed violation and issue a citation if they don’t find the explanation voids the citation. An easy way to think of a Cal-Osha violation is to compare it to a ticket issued by the police for violating a safety vehicle code section. These tickets can range thousands of dollars if the violation is serious. 

That company’s Workers Compensation policy will cover your son’s friend as an employee of the cleaning crew. Workers Compensation Insurance covers injuries on the job and is considered no-fault insurance. No-fault insurance would mean insurance that covers medical expenses and loss of earnings, past and future, even if your son’s friend was responsible for her injury. 

If I understand what you son is asking, it is if, on top of the Worker’s Compensation benefits, anyone at his company can be responsible for their negligent actions regarding leaving on the equipment to save time. 

The question seems straightforward, but the law behind it is very complex. In the Seabright vs. US Airways case, the Supreme Court held that contractors that subcontract for work could delegate all duties to maintain a safe work environment of their facility to the subcontractor. Seabright clarified issues that conflicted with the various appellate courts in California regarding this issue. While it doesn’t make much sense that your son’s employer could delegate safety concerns to the cleaning crew that they knew existed and they created, that is essentially the holding in Seabright. The court’s rationale in Seabright was that the subcontractor was in the best place to take measures in their work to make the condition safe. What is remarkable is that often the subcontractor can’t force the contractor to do something. Still, the court indicated that they must not take the job, if the subcontractor can’t make the job site safe and that if an injury happens, the subcontractor always has the Workers Compensation policy of their employer to fall back on. 

The “Privette Doctrine” has governed the extent of liability that general contractors and property owners have for worksite injuries suffered by a subcontractor’s employees. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held 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.” 

There are some exceptions to the Privette doctrine that was discussed in the Seabright case. One exception is if the subcontractor is, really, an employee of the contractor. Another exception is if the company your son works for maintained control of the premises and deliberately acted to increase the dangers to his friend. Lastly, an exception exists if there was a mandatory duty imposed on the company that the Privette Doctrine cannot eliminate. 

Lastly, a theory called Federal Preemption is an even more complicated part of this analysis. It stands for the concept that if there is a law in conflict with any federal law, that federal law will always win over state law. Because of all the twists and turns in this particular law, your son’s friend should speak to an experienced attorney on these issues to see if she can sue your son’s employer for their separate negligence. 

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DLF Statement: Roe V. Wade

The Dolan Law Firm is deeply disheartened and incensed by the Supreme Court’s decision this morning, overturning over 50 years of historical precedent representing our nation’s recognition of a woman’s right to control her reproductive decisions, a right supported by at least 73% of this nation’s population.

The Dolan Law Firm, made up of over 65% female identifying employees, is fiercely and collectively devoted to advocating for women’s fundamental rights, including a woman’s right to make decisions about her own body, her own healthcare and her own destiny. We believe a woman’s decision to become pregnant, remain pregnant or end a pregnancy belongs to her and her alone.

This decision represents violence against women, as women who become pregnant, regardless of the circumstances, will be forced to give birth or face criminal consequences. A government that forces women and girls into motherhood before they are ready or have the resources to care for a child is fundamentally wrong, sustains the patriarchy and further cements the destinies of underserved women and girls on the cusp of poverty or already living in poverty. The effect this decision will have on those communities is profound and devastating.

The Dolan Law Firm, PC has always and will always fight for an individual’s religious liberty and the right to make personal decisions based on religious beliefs. An individual can advocate for both religious freedom and a woman’s right to choose. These individual freedoms are not at odds with one another. To the contrary. Both underscore and represent the vital democratic value of individual decision-making in private matters, including reproductive decisions whether choosing to continue or terminate a pregnancy. Because it is vital to maintain the integrity of these individual freedoms and others, we firmly stand behind the constitutionally engrained separation of church and state.

This decision represents a critical turning point in American democracy and one that points to a dark chapter in our nation’s history. In his concurring opinion, Justice Clarence Thomas, clearly emboldened by the conservative majority, called for the Court to “reconsider” landmark decisions previously codifying rights to contraception, same-sex relationships and same-sex marriage. The rationale used by the Court in overturning Roe v. Wade, lays the foundation and indeed encourages challenges to other critical and fundamental rights recognized nationwide for decades. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan warned in their dissenting opinion that “no one should be confident that this majority is done with its work.”

We see this dissent as perhaps the most important call to action of our time. The Dolan Law Firm urges our statewide community of legal advocates, lawmakers, politicians, grassroots activists and citizens to mobilize in our effort to protect women’s rights and individual freedoms in California and work to create a network and infrastructure that will provide resources to women and girls in states now outlawing a woman’s right to make her own reproductive decisions. Our firm remains steadfast in our commitment to advocating for women’s rights and the individual freedoms of other groups threatened by this decision.

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Honoring the Celebration of Juneteenth

What is Juneteenth?
Juneteenth commemorates the end of slavery in the United States. It is an important milestone in American history but to date, it remains an under-recognized day. 

On January 1, 1863, President Abraham Lincoln signed the Emancipation Proclamation declaring the end of slavery in the United States. However, enforcement was slow and it took an additional two and a half years for General Gordan Granger to arrive in Galveston, Texas to announce General Orders No. 3 (end of slavery).

“The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.”

In other words, enslaved people in Galveston, Texas did not know they had been freed until June 19, 1865. This date marks the true end of slavery in the United States. 

In 2021, the Senate unanimously passed a resolution establishing June 19 as Juneteenth National Independence Day, a federal holiday commemorating the end of slavery in the U.S. The House voted overwhelmingly in favor of the resolution. President Biden signed the resolution on June 17, 2021, making Juneteenth a federal holiday created since Martin Luther King Jr. Day was signed into law in 1983.

47 states and the District of Columbia recognize Juneteenth as either a state holiday or a day of observance (June 20th) but only a handful observe it as a paid holiday. Juneteenth has also been celebrated under other names such as: 

  • Freedom Day
  • Jubilee Day
  • Liberation Day
  • Second Independence Day
  • Emancipation Day. 

Dolan Law Firm honors the celebration of Juneteenth all over the nation and acknowledges it’s crucial to find time to pause and reflect on our nation’s history of oppression, and the resounding call for true liberation and equal justice for all. 

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California Paternity Leave: What You Need to Know

Written By Christopher Dolan and Mari Bandoma Callado 

My partner and I are waiting for the arrival of our baby at the end of June. We are adopting her and cannot wait to become parents. I will be asking for some time off from work to bond with our baby and would like to know more about my rights as an adoptive father. How much time off can I take? Am I entitled to paid leave? Do I get to keep my health benefits? In the three years I have worked for my company, I noticed that not a lot of the men I work with take time off to bond with their newborn. I am worried about being retaliated against for requesting paternity leave I work for a small tech company with 15 employees in Oakland, California. Thank you and I hope you have a great Father’s Day! – James

Thank you for your question, James. Congratulations and Happy Father’s Day to you too. It is really unfortunate there is still a stigma against taking paternity leave. 

Time Off to Bond with Newborn, Newly Adopted or Foster Child

The California Family Rights Act (CFRA) requires California employers with 5 or more employees nationwide to provide employees who worked for their employer at least 1,250 hours in one year just prior to taking leave up to 12 weeks of unpaid, job-protected leave to bond with a newborn, newly adopted, or foster child within the first year of birth or placement in the home.  Employees do not have to take this leave all at once as time off from work can be taken intermittently. 

Employees are required to provide “reasonable notice” of your intent to take baby bonding or family leave. How much notice is required depends but it would be prudent to try to notify your employer at least 30 days in advance of your plans to take time off. We recommend providing notice in writing and including the dates you plan to begin your leave, the anticipated duration of that leave, and a brief explanation of why you are taking that leave (e.g. to bond with adopted baby). 

Benefits and Payment During Paternity Leave

If you have health benefits through your employer, they will continue while on CFRA leave.
Note: you may have to pay for your portion of your premiums. 

Unfortunately, your employer is not required pay you while you are on leave (unless your employer pays employees on CFRA leave), but here are a couple of ways you can receive payment during paternity leave: 

  • State benefits: California offers Paid Family Leave (PFL) which provides up to 60% or 70% of weekly wages, depending on income for a maximum of 8 weeks to bond with your newborn, adopted child or foster child within the first year. To be eligible for this partial wage replacement, you must have paid into State Disability Insurance during the base period. This is often noted as CASDI on most paystubs. To learn more about eligibility and/or to apply for paid family leave, go to edd.ca.gov. 
  • Paid Sick Leave: California’s paid sick time law gives employees sick time that can be used to recover from physical/mental illness or injury; to seek medical diagnosis, treatment, or preventative care as well as to take care for a family member who is ill or needs medical diagnosis, treatment, or preventative care; or to address needs that may arise if the worker is a victim of domestic violence, a sexual offense, or stalking. Therefore, if your baby gets sick or you want to take your child to medical appointments, you may also use your paid sick days. Your employer may not require you to use sick leave; however, you and your employer can mutually agree that you may use sick leave.
    Note: some California cities have their own sick time laws which may provide additional rights.
  • Accrued Paid Time Off: Your employer may require you to use vacation time unless you are receiving PFL from EDD to bond with a new child. 

Retaliation/Returning to Work

California laws protect employees from retaliation. It is unlawful for an employer to violate an employee’s family leave rights and retaliate against an employee who takes time off to bond with their baby. Retaliation occurs when an employer takes an “adverse action” against an employee because s/he has exercised a “protected legal right” such as requesting parental leave. An adverse action is any act by an employer that negatively and significantly affects the terms and conditions of one’s employment such as termination, demotion, suspension, reduction in pay or hours, and any other action that would discourage a reasonable person from pursuing their rights. 

When you return to work after parental leave, your employer must return you to the same or comparable position they had prior to the leave. If you notice any changes to your job title, duties, or a reduction of pay of hours, or if you hear any offensive comments about taking time off, consult with an attorney to help protect your rights. 

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CHRIS DOLAN HONORED WITH TOP PLAINTIFF LAWYERS 2022

The Dolan Law Firm is proud to announce that our founder and chief legal counsel, Chris Dolan has been honored as a recipient of one of the Top Plaintiff Lawyers in 2022 via Daily Journal.

To learn more about Chris Dolan and how he is recognized by the Daily Journal for this prestigious award, please click below to view the full article.

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What are the Rules and Regulations for Electric Scooters?

Written By Christopher B. Dolan and Cioffi Remmer

Dom in San Francisco asks: Electric Scooter are everywhere. I see them on the street. I see them on the sidewalk. I see them on bike lanes. Some people ride alone, and others ride in pairs. Some people wear helmets while others don’t even bother. It all seems dangerous and arbitrary to me. What are the rules and regulations for electric scooters? Whatever they are. I have a feeling people are not following them. 

Dear Dom,

Thank you for your question. With the popularity of alternative transportation, residents of San Francisco and other metropolitan areas are taking to bicycles, electric bicycles (e-bikes), and even faster growth – electric scooters (e-scooters) as their preferred mode of transportation. California has not been slow with recognizing the trend and implementing regulations to protect the public by passing legislation identifying the responsibilities of e-scooter riders and operators. 

When e-scooters first hit the scene, riders, pedestrians, and motorists were confused about whether these speedy two-wheel people-movers were to be treated like bicycles or motorcycles in terms of roadway restrictions and rider safety. For example, before introducing e-scooters on city streets, California Vehicle Code section 21200–21213 concerned operation of bicycles. These sections regulated issues such as physical characteristics of bicycles, e.g., height of handlebar), safety attributes, e.g., brake requirements, lamp requirements, location of operation, e.g., bike lanes, roadway, etc., and operator safety apparel, e.g., helmets for riders under 18 years old.  

The main issues that riders, motorists, and pedestrians alike want to know are:

  1. Are e-scooters are allowed to ride on sidewalks (which may pose a safety risk to pedestrians)? 
  2. Are they restricted to bike lanes? Can they ride in the traffic lanes? and 
  3. Are helmets required?  

These are all similar issues that have been previously decided by the legislature in regulating bicycles. 

For bicycles, it has been well established in California that individual cities or counties control rules regarding riding bicycles on sidewalks, pursuant to CVC 21206. For example, in San Francisco, the city made it illegal to ride a bicycle on the sidewalk if you are over the age of 13. (San Francisco Transportation Code Sec. 7.2.12).  The City of Los Angeles only prohibits bike-riding on a sidewalk “in a willful or wanton disregard for the safety of persons or property.” (Los Angeles Municipal Code section 56.15). 

Cyclists may ride in the traffic lanes, and must obey the traffic laws; however, they must use the bicycle lane if they are moving at less than the normal speed of traffic in the same direction, according to section 21208 of the Vehicle Code. As for helmets, Vehicle Code section 21202 requires a helmet for any bicycle rider under the age of 18.

Instead of dropping e-scooters into these multiple vehicle code sections along with bicycles, the legislature has specified and codified rules relating to e-scooters in a separate Vehicle Code section 21235. According to the Vehicle Code, e-scooters may not be operated on the sidewalk except as is necessary to enter or leave adjacent property. As we can see, the legislators did not leave this decision up to the different counties, cities, or municipalities.  

The code becomes tricky when regulating the speed e-scooters may operate, and which types of highways or roadways e-scooters may be operated. E-scooters are limited to a maximum speed of 15mph, no matter what type of highway it is ridden on, pursuant to Vehicle Code sections 21235(b) and 22411. Regarding traffic lanes and bike lanes, e-scooters are permitted to be ridden in bike lanes and traffic lanes on roadways with a speed limit of up to 25 mile per hour. The legislator leaves it up to local authorities to authorize the operation of an e-scooter on Class II or Class IV bikeways on highways with a speed limit of up to 35 miles per hour. This means that in no circumstances are e-scooters allowed to be operated on highways with a speed limit above 35 miles per hour.  

As for helmets, riders under the age of 18 years old must wear a helmet.  Moreover, unlike bicycles, riders must have a valid driver’s license or instruction permit to operate an e-scooter. Undoubtedly, riders should familiarize themselves with California Vehicle Code and their local laws regarding riding e-scooters. Moreover, even though it may not be required by law if you are an adult, riders should always practice good safety and utilize a helmet.   

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Do I Have to Use My Vacation or Sick Time to Vote?

Written By: Christopher B. Dolan and Emile A. Davis

Laird E. in Alameda asks: “I work in construction, and I am often at the worksite for 10 – 12 hours each day and often don’t get off work until after 7:00 p.m. I am afraid that this will not give me time to vote on election day. I don’t feel comfortable mailing my ballot. I want my vote counted right there on election day. Can I use sick time to go to the polls on election day?”

Dear Laird,

Thank you for this very important question which affects many workers. I completely understand that you would prefer to place your ballot in person rather than mailing it. I have good news. The law allows workers to take time off from their position in order to vote and doing so does not require the use of accrued sick leave. 

California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. Specifically, the Elections Code states that, “the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two hours of the time taken off for voting shall be without loss of pay,” and that, “time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.” Furthermore, if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, this code states that, “the employee shall give the employer at least two working days’ notice that time off for voting is desired…”

For you, if it appears that you will be at the jobsite for 12 hours on election day, and will not be off work until 7:00, as you suggested, that may not give you the opportunity to get to the polls to vote. You should notify your employer, in writing, three days prior to election day, that you will need to take time off to vote. You can work out with your employer whether it makes more sense to go to the polls when they open and then come in to work, or to leave early with enough time to get to your polling place.

Employers also need to be aware that for at least 10 days before every statewide election, every employer must keep posted a notice setting forth the provisions of California Elections Code § 14000 so that employees like you are aware of their rights. The notice must be placed conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work. 

Another important aspect of this code is that it would likely be unlawful for an employer to retaliate against you, or any person who made use of these provisions of the Elections Code to vote. We would argue that an employer who terminates an
employee for exercising their right to vote would have engaged in, “wrongful termination in violation of public policy,” a cause of action in a lawsuit available when someone is terminated in violation of a fundamental public policy.  A wrongful termination cause of action provides for recovery of economic damages such as lost wages and benefits, non-economic losses such as anxiety, stress, emotional distress, fear and humiliation and, if the denial was the decision of an officer, director or, “managing agent,” of the employer, even punitive damages. Importantly, since you work in construction, a field with many Union employees, any collective bargaining agreement provision, which seeks to waive an employee’s right to pay for time taken off to vote, has been held by the courts to be against public policy, contrary to express provision of law and invalid.

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