Do You Have Any Privacy Rights at Work?

Written By: Chris Dolan and Vanessa Deniston

This week’s question comes from Justin in San Leandro, CA, who asks: I work at a high-security facility monitored in various locations by video cameras. As a requirement part of the hiring process, I was required to undergo a background check and provide personal information I felt was overly invasive and not pertinent to my position. I also received a notice shortly after I began work that, as a matter of policy, my employer had the right to examine all communications sent to or from my email account and personal phone during work hours. Do you have any privacy rights at work?

Dear Justin,

We have all felt that unsettling feeling of being overly observed. While an employee relinquishes several privacy rights during the employment hiring process and upon entering a workplace environment, accepting a job does not equate to a wholesale forfeiture of your privacy rights, far from it.

Common Privacy Issues Arising in the Hiring Process

Background Checks

Many California employers utilize background checks in their hiring process. These background checks are typically customized depending on the information sought. Still, most employers seek to discover any concerning criminal history, past employment verification, and confirmation of education and/or credentials. However, some important limitations exist on how and when employers can run background checks on applicants. 

California’s Fair Chance Act was passed into law in 2018 and codified in Cal. Gov. Code §12952 represents the country’s most restrictive criminal background check law. Under the Fair Chance Act, California employers can engage in a criminal background check for most positions only after the employer makes an initial offer of employment to the employee. Once an offer has been made, an employer cannot withdraw the offer due to information gleaned in a criminal background check until the employer conducts an individualized assessment, considering the nature of the offense and duties of the job applied for. Should an employer still decide to withdraw the offer, the employer must explain in writing the reason for rescinding, provide a copy of the background check, and give the potential employee five days to respond. 

Collection of Personal Information in an Interview or Application

During the interview, an applicant can learn much about how a potential employer will treat their privacy through the employment relationship. Non-job-related questions seeking personal details about a candidate’s personal life are typically forbidden, for instance, inquiring about someone’s citizenship or immigration status, marital status, physical or mental health, religious affiliation, or when a candidate graduated from high school or college. While questions like, “So, where are you originally from?” or “We have a big work Christmas party every December. What holidays do you celebrate?” may appear at first blush harmless small talk, California prohibits questions seeking to learn information that can lead to discriminatory hiring practices, based on a candidate’s protected class set out in the California Fair Employment and Housing Act.

Common Privacy Issues Within the Work Environment

Privacy Around the Office

Once an employee enters the work environment, the key inquiry is where, when, and in what context does an employee have a reasonable expectation of privacy? Generally, California courts have held employees do not have a reasonable expectation of privacy in common areas or walkways in the workplace. But what about taking a non-work phone call behind a closed office door or sending a personal email from a work computer? While many factors go into determining whether an employee has a reasonable expectation of privacy, generally, an employer can monitor workplace communications, including business phone calls, emails, voicemail, and instant message chats on a company computer.

Audio Recordings and Personal Phone Calls

California is a two-party state with respect to audio recordings of confidential conversations. In effect, this means employers cannot record confidential conversations without the express consent of all parties to the conversation. Indeed, California Penal Code 632 makes such unauthorized recordings a criminal offense. Employers can and often do navigate these restrictions by obtaining their employees’ written or verbal consent. Often, this comes in the form of written “acknowledgment” by the employee during their onboarding process of the employee’s agreement to a company HR policy permitting the employer to audio record conversations. When it comes to personal calls, employers are prohibited from monitoring them unless employees make them from business phones after being told not to.

Video Surveillance 

Video recordings of workers in California are generally allowed if they occur in a “public” area and if all video monitoring is disclosed to employees. According to the California Labor Code § 435, an employer cannot audio or video record any employee in a restroom, locker room, or room designated for changing clothes. Again, each circumstance is unique, and many factors are considered with respect to areas and conditions under which an employee has a reasonable expectation of privacy.

Monitoring Activity on Company Computers

According to the Electronic Communications Privacy Act (ECPA), a federal law passed in 1986, an employer-provided computer system is the employer’s property. This means an employee waives their reasonable expectation of privacy when using a work computer. Thus, an employer can monitor everything on that computer, including emails, downloads, internet browsing, etc. This is especially true if an employer states in their policies that electronic communications are to be used strictly for work-related matters and that the employer reserves the right to monitor or access all employee Internet or e-mail usage. Most employers provide a similar version of this policy in their employee handbook, which requires the employee to sign. Most Courts have found that just by providing this signature, an employee waives their expectation of workplace privacy. 

Common Privacy Issues in the Virtual Space

Social Media 

A word to the wise: social media accounts that are publicly available are available for your employer or potential employer to comb through. Employers can and often do look up prospective and current employees’ social media accounts. Publicly posting any content to your page or your account is discoverable information. While an employer cannot discriminate or retaliate against you for posting about issues protected by law, for instance, workplace conditions or pay, you should always consider how an employer or prospective employer may view the information. 

With that said, an employer cannot demand that you accept a friend request or hand over your private username and password unless a case of harassment, misconduct, or a violation of company policy or applicable law arises. If you have marked your account “private,” this affords at least some privacy, but understand an employer can always attempt to view the information through one of your followers. As California is an at-will state, we cannot understate the importance of exercising caution in posting online content.

If you believe your employer is unreasonably interfering with your right to privacy or is retaliating against you in connection with an invasion of privacy, contact an attorney like the Dolan Law Firm to discuss the circumstances and better understand your rights.  

***

Christopher B. Dolan is the owner of the Dolan Law Firm. Vanessa Deniston is a senior associate attorney in our Oakland, CA, office. We serve San Francisco Bay Area and California clients from our San Francisco, Oakland, and Los Angeles offices. Email any questions and topics for future articles to help@dolanlawfirm.com. Each situation is different, and this column does not constitute legal advice. We recommend consulting with an experienced trial attorney to understand your rights fully.

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Is an Amazon Truck Driver Responsible for a Crash or Is Amazon Responsible?

Written By Chris Dolan and Anna Pantsulaya

This week’s question comes from George from San Francisco, CA, who asks: I see many Amazon truck drivers zipping by and rushing through neighborhoods. They all look like they are in a rush, and some appear to be speeding. In my neighborhood, it’s not rare to see two deliveries made in one day. What do I do if an Amazon truck crashes into me? Who is responsible, the driver or Amazon?

Dear George,

Amazon is one of the United States’ largest delivery service providers, with its delivery personnel distributing billions of packages annually. Regrettably, the heightened pressure to meet delivery targets and long hours to ensure timely package delivery elevates the potential for accidents involving Amazon drivers.

Various Amazon businesses make up Amazon’s transportation network. Amazon Logistics, Amazon “Delivery Service Partners” (DSP), Amazon Freight Partners (AFP), Amazon Flex, and Amazon Prime.

Most of Amazon’s delivery drivers can be classified into two categories: those who operate within the Amazon Flex system and those who serve as DSP drivers. Amazon provides commercial auto insurance exclusively to individuals using the Amazon Flex platform. It’s vital to underscore that Amazon considers Amazon Flex drivers as independent contractors, not employees of Amazon.

Amazon Flex v. Amazon DSP

Amazon considers DSP drivers as neither Amazon employees nor independent contractors. Instead, they think they are employees of separate independent delivery service partners, although they will often drive Amazon-branded vehicles. In comparison, Amazon Flex delivery drivers use their own vehicles to deliver packages for Amazon, similar to DoorDash/UberEats. 

Amazon does not provide any auto insurance coverage to delivery drivers of a DSP. DSP drivers should have commercial auto insurance coverage through their employer. Their employer is considered a separate entity contracting with Amazon to perform delivery services for them.

Conversely, Amazon Flex delivery drivers qualify for Amazon Flex insurance provided they possess a valid personal auto insurance policy. This coverage applies if the accident occurred while the driver was actively engaged in a delivery assignment within their designated delivery block.

Amazon Flex insurance coverage includes:

  • $1,000,000 in liability for bodily injury and damages to any third party;
  • $50,000 in comprehensive and collision coverage for property damage to Amazon Flex delivery drivers’ vehicles, contingent upon whether they have comprehensive coverage on their personal policy;
  • $1,000,000 in uninsured or underinsured motorist coverage for bodily injury and damages to the driver.

What happens when you’ve been injured in an accident involving an Amazon delivery driver?

Amazon consistently maintains that it should bear no responsibility for its independent contractors. The company asserts that if the drivers are not classified as actual employees, they cannot be held accountable for the errors made by partner drivers. This argument is made even when Amazon’s regulations govern various aspects, ranging from the drivers’ presence on social media to the specifics of package delivery, including order and quantity. Despite drivers often operating vans adorned with the Amazon logo, donning Amazon uniforms, utilizing in-vehicle cameras for monitoring driving behavior with audible corrective feedback via companies like Netradyne, and following route guidance from Amazon’s proprietary mapping software, Amazon still contends it bears no responsibility.

Amazon uses various programs, including ASP, DFP, and the “Flex” driver programs, to avoid liability and paying in situations where their delivery drivers cause accidents. Although Amazon often controls delivery drivers’ routes, schedules, and safety rules, they do everything they can to characterize these drivers and operators as non-employees. 

Consequently, if an Amazon delivery driver’s negligence has injured you, you must contact an attorney experienced in taking on cases against Amazon. 

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Football Players Are Not the Only Ones That Can Get Hurt

Written By Chris Dolan and Megan Irish

This week’s question comes from a Football fan Trace from Marin County, CA, who asks: My husband and I are ready to watch football. During this season we spend time with family and friends rooting for our NFL teams, our grandkids flag teams and our local high school football team.  Yes, we like football. We’ve got tickets for a game at Levi Stadium ( Seahawks v. 49ers ) and cannot wait for November. We are really looking forward to the game at Levi! With all the excitement in the stands and crowds, what happens if one of us gets hurt at a game? I know I get excited, but I have seen people really get into it and maybe over do it. 

Dear Trace,

It’s that time of year again when we all break out the chips and dip and coolers with all the great snacks, don the jerseys of our favorite players, and tune in for some football. It’s great that you two will go out to support your grandkids with their sports teams! Be sure to put on those school colors. Whether watching live at a stadium after a tailgate lunch, at a sports bar, or from your friend’s couch, it’s a time to cheer for your team! Regardless of where you guys are watching, fans can suffer personal injuries at a game. So, if one of you gets hurt, consider the following:

  • Were you watching the game at a stadium?  If so, who owns the stadium and surrounding land? Sometimes, a governmental entity owns, manages, or controls the local stadium.  If so, you may have a short statute of limitations to bring a claim since it is only six months. 
  • Also, if your stadium or field belonged to the government, did the injury occur because of a dangerous condition on the public property, or did some third party’s actions cause the injury?

To succeed against the government in a personal injury claim from a game time event, you must show a dangerous condition on public property. To prove a dangerous condition, you must show that: 

  • The governmental entity owned and/or controlled the property, 
  • That the property was dangerous at the time of the injury, 
  • That the dangerous condition created a foreseeable risk of the kind of injury that occurred,
  • Either an employee’s conduct created the condition, or the entity knew or should have known about the dangerous conditions and had the opportunity to correct them but failed to do so. You were harmed, and the condition was a substantial factor in causing your harm.  

If you witness an injury, snap some photos of the area where it occurred, as it may be important evidence of the condition of the area. If you are the injured party, ask a friend, family member, or witness to take photographs and share them with you.   

If you were at a sports bar or a friend’s house, you likely have a longer statute of limitations of two years, but you will still need to submit a claim with the proper insurance company promptly. To bring a claim against a sports bar and/or a friend’s homeowners’ policy, it is called a premises liability claim and would require you to show that: 

  • The defendant owned, leased, occupied, or controlled the property, 
  • That the defendant was negligent in the use of the property or its maintenance, 
  • That you were harmed and 
  • That the defendant’s negligence was a substantial factor in causing your harm.  

Regardless, if you or someone you know is injured at a game, seek the appropriate medical care to get better.  

Another concern with the return of football is the increase of people who will drink and drive. According to the statistics the California Department of Motor Vehicles kept, there are over 1,000 DUI-involved fatalities each year in California. There are over 100,000 arrests each year for driving under the influence. With football games being a natural and regular place to partake in alcohol, have a designated driver or alternative way to get home instead of drinking and driving.  

Nonetheless, sharing the fall season with family and friends and a camaraderie for the game is great. Chips, dips, chicken wings, and sweets, and whether you put on red, gold, silver, black, or local high school colors, be safe, cheer loudly, and enjoy the game. 

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Working Outside in High Heat

Written By Chris Dolan and Emile Davis

Today’s question come from Gabriel in Oakland: I work as the only parking lot attendant in the East Bay. This year, it has been over 100 degrees many times and I don’t see signs of it cooling any time soon. There used to be a booth where I could get out of the sun, but they took it down to make more spaces for cars. Now I work outside without any shade. There isn’t any water either. I told my manager, but he told me if I can’t handle it, he will find someone who will. Now, I don’t say anything, but it doesn’t seem right. Can they do that?

Hi Gabriel,

I am sorry to hear about your working conditions. As you have experienced, working outside, particularly in the heat, is difficult and can affect your health. In California, there are regulations administered by the California Occupational Safety and Health Administration (Cal/OSHA) which lay out the requirements which employers must maintain for the health of their workers who, like you, work outside. In particular, as it relates to working outside in the heat, California adopted the Maria Isabel Vasquez Jimenez heat illness standard-California Code of Regulations, Title 8, Section 3395. 

The first thing you asked about was shade. Section 3395 requires the employer provide access to shade when the temperature exceeds 80 degrees Fahrenheit. The employer is required to maintain one or more areas with shade while employees are present.  The shade can either be open to the air or an inside area with ventilation or cooling. There needs to be enough shade to accommodate all the employees on break at the same time. They also have to be able to sit normally, without having to be in physical contact with each other. The shady area needs to be located as close as possible to where the employees are working.  Importantly, employees are allowed and encouraged to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating.

In your case, since you work alone, the old booth seems as though it would have been sufficient. However, since they took it down, it appears your employer is not in compliance with the regulation. 

Since you are working in heat over 100 degrees, it is worth noting that in certain specific industries, there are additional High-heat procedures where the temperature reaches 95 degrees Fahrenheit. Those high heat procedures ensure there is effective communications with supervisors, observation of employees, pre-shift meetings to encourage hydration and inform employees of their rights to take a cool-down rest when necessary. There are even more procedures within the agricultural industry, but these high-heat procedures are required in the construction, landscaping and oil/gas extraction industries, as well as certain delivery drivers.  

You also mentioned the lack of water at your worksite. The same regulations address the water issue. It is required that employees have access to fresh, pure, cool drinking water. It must be provided free of charge by the employer. It should be located close to where the employees work. However, if there is not suitable plumbing, the employer can provide the water, at the beginning of the shift, or incrementally throughout the day.  But, they need to provide enough for each worker to have one quart of water each hour of their shift.  It seems they are not doing that for your worksite. 

You asked if they can get away with their failure to provide shade or water.  That is an excellent question. You opposed the conduct and were seemingly told that if you didn’t like it, they would find a different employee instead.  If your employer terminated you because you asked for shade and water as they are required to provide, that would be a form of retaliation.  Section 3395 also requires the company to train employees of the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid as well as the employees’ right to exercise their rights under this standard without retaliation.

It is generally a good idea to make any requests to your employer in writing. If you find that you are retaliated against for making a complaint regarding workplace safety, whether under this section, or any other, that you contact an experienced employment lawyer such as the Dolan Law Firm. 

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Ridesharing Safety Tips

This week’s question comes from Helen from San Jose, CA, who asks: I sometimes take an Uber or Lyft to sporting events and concerts because it is very convenient. Sometimes the rides feel awkward because I’m getting into a stranger’s personally owned vehicle. On one occasion, the driver ran a red light. It bothered me, but I did not say anything. I should have. Do you have safety tips while being a passenger in an Uber or Lyft? 

Hi Helen, 

Yes. There are things you can do to ensure your safety. Here are Dolan Law Firm’s Top Tips for Safety when using any rideshare service like Uber or Lyft.   

  • Utilize the ratings. Always look at a driver’s ratings once the app connects you with a driver. Once matched, you will have the driver’s name, photo, and ratings. Do not accept rides from a driver with low ratings.
  • Request your ride from a safe location. You should always request the ride from inside and from somewhere safe. Especially when alone, you should remain inside until your driver arrives.
  • Always keep your phone with you. Do not request the ride from a phone (yours or someone else’s) and then get into the Uber or Lyft vehicle without a phone on your person.
  • Make sure to get into the car in a safe location that you set. Never run across the roadway, jaywalk, or otherwise cross traffic or endanger yourself by getting into an Uber or Lyft vehicle. Always set the pickup location in an area that allows for your safe loading and ensure the driver picks you up in that location. This guideline ensures your safety and makes sure your driver has the correct information.
  • Uber and Lyft show you the driver’s name, vehicle model and color, and license plate number. Ensure the driver’s license plate matches the driver you are connected to on the app. If the car matches but not the driver, you should cancel. Likewise, if the driver matches the photo, but the vehicle is different, you should cancel the ride.  
  • Always ensure you are getting in the correct vehicle with the correct driver. As the vehicle is approaching the customized pick-up location, always compare the approaching vehicle with the vehicle information provided in your Uber or Lyft App.  Be sure that all the vehicle’s information (make, model, color, and license plate number) match exactly the vehicle picking you up according to what is on your app. Also, when the driver pulls up, asking the driver to state who they are picking up is best. So, you should always ask, “Who are you picking up?” Don’t offer your name. Likewise, always ask the driver to tell you his or her name and ensure it matches the name of the driver you were matched to per the App. 
  • Sit in the backseat and on the passenger side.  his gives you space from the driver and the ability to exit the vehicle if needed. Also, confirm before the ride starts that child safety locks are not engaged and that you can open the rear passenger doors.  
  • Always be aware of your surroundings. You should use your own GPS to monitor and follow along during your ride to make sure your driver is traveling in the right direction, especially if you are somewhere you are not familiar with.
  • Share your location with friends and/or family. There are multiple ways you can do this. First, Uber allows you to share your trip status with others in the app, and the contacts you select will receive a text or push notification that tracks your trip and the estimated arrival time. For Lyft, you can add your trusted contacts to your safety settings. This allows others to see where you are located. Even if you don’t use these features through the Uber and/or Lyft Apps on an iPhone, you can also share your location with others. Alternatively, you can text or call a loved one to notify them of where you are getting in the vehicle, the driver’s information, the vehicle information, your ETA, and your destination. Sending a screenshot of the app can be an easy way to send the information with minimal typing or switching between apps. It does not matter how you do it, but advising others of your whereabouts is important to ensure you arrive at your destination safely.  
  • Never share your information with the driver.  You should keep communications through the App. Do not call or text outside of the App. This keeps your information anonymous. Also, you should not give any personal information to a driver, even if they seem friendly or nice.  
  • If you are intoxicated or unable to care for yourself, do not ride alone.  
  • If you feel unsafe, call for help by calling 911. Lyft has a critical response team that is always available. Uber also has a 24/7 response team. 
  • Rate drivers, write reports, and submit complaints if you have a bad experience with a driver. This is necessary for everyone utilizing rideshare companies to remain safe, so Uber and Lyft are notified of dangerous and unsafe drivers.
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Who is responsible for damage caused by a stolen vehicle?

Written By: Chris Dolan and Eric. St. John

This week’s question comes from Trisha from San Francisco, CA, who asks: I saw a car speeding away from a police run into a fire hydrant and almost hit several people. It turns out it was a stolen car, and the thief ran away from the scene. If someone steals my car and uses it to damage private or public property, will I have to pay for that? Who pays for this type of damage? What if a driver of a stolen car injures me?

Hi Trisha, 

On average, in California, nearly 200,000 vehicles are stolen each year. Generally, a real vehicle owner would not be liable when their vehicle is stolen and used in some other negligent or intentional act that harms people or property. To be responsible for someone else’s actions with your motor vehicle, you must have caused the damage in some way, which is rare, or you entrusted (gave permission) to the thief to use your vehicle, which is highly unlikely. 

In California, vehicle owners can be held liable for the actions of a third party if they entrusted, or gave permission to use, the vehicle to a third party who is unfit to drive, and that third party then harms someone or something. Entrustment is one way you may be liable for your vehicle being stolen and causing damage. This is one of many reasons why it is recommended to file a police report as soon as you learn that your vehicle has been stolen. Then, file a claim with your insurance company, notifying them of the theft and any damages that may have been incurred to your property. You do not want people to think you gave the thief permission to use your car.

If you are not liable for your vehicle harming others, then who or what is liable? Well, typically, the first place an injured party would look is to the driver. In this case, a thief can be liable for the damage they cause, but in most scenarios, the thief is either:

  1. unable to be found,
  2. uninsured, or
  3. has no money to pay for the damage they caused. So even though they are liable for the damages, the parties involved should be looking elsewhere to get compensation for any damages they incurred.

Which leads us to a very important part of your question, who pays for this type of damage?

Who pays for damage caused by a stolen vehicle depends almost entirely on what type of insurance policies the involved parties have and what those insurance policies cover. The first option would be to seek coverage through any of the thief’s insurance policies if they have any. This is done by setting up a claim with their insurance. The victim of the theft can file a claim for property damage, and the victim of any injuries caused by the driver of the stolen vehicle can file for personal injury and property damages. If it gets complicated, you should talk to an attorney who can help you navigate the insurance world. 

In most cases, the thief either has no coverage or does not have enough coverage, so the parties involved will have to look to their insurance policies to find coverage. In some circumstances, the injured parties don’t have any recourse for the damages to be covered. If this is the case, speak to an attorney to see if anything may exist before giving up. 

Most commonly, especially in California, people carry vehicle liability insurance. Liability insurance generally covers bodily injury and property damages caused to other parties when you are at fault in a collision. This insurance type does not cover your damages when you are liable and does not typically apply to a stolen vehicle in any situation. 

Another form commonly found within liability insurance is Uninsured / Underinsured motorist coverage. This acts similarly to liability insurance but can cover you when someone else causes injury to you but does not have enough insurance to cover the costs. If a thief driving a stolen car damages someone else in an accident, the company insuring the stolen car will not compensate the injured party because the car was taken without consent. With uninsured/underinsured motorist coverage, the injured party’s insurance company may pay the costs to them if coverage applies. If you are injured by a negligent driver of a stolen vehicle, this insurance will likely cover you. But, if your vehicle is the stolen property, it is unlikely that this will cover the damage to that car. 

Collision coverage is a type of insurance that may be able to cover your property damages in the event of a stolen vehicle but is unlikely to cover others’ damages and certainly won’t cover any possible medical expenses from the incident. Comprehensive insurance offers coverage for theft and damages not caused by a collision. This would cover you, but not others, for the cost of repair or replacement if your vehicle is stolen. 

The result of a stolen vehicle causing damage is often stressful and difficult to navigate. Although insurance may cover the damage, it tends to be an uphill battle to find any coverage when the damage is caused by a criminal act. We recommend talking to an attorney who is experienced in this field if it ever occurs to you. 

For more information on insurance, click here. 

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Safety Tips for Electric Scooters

Written By Chris Dolan and Monica La

This week’s question comes from Ben from San Francisco, CA, who asks: As I walk around the city, I have to move out of the way of people riding E-scooters on the sidewalk. Why are they allowed on city sidewalks? Do we have regulations that apply to E-scooters like we have for bicycles? For everyone’s safety, it would seem reasonable for people riding E-scooters to keep to the bicycle lanes and wear helmets.  

Hi Ben, 

Thank you for your question. Micromobility has been on the rise for some time and continues to maintain its popularity as it provides an alternative way for people to achieve their transportation needs, especially in cities like San Francisco, where operating a motor vehicle may not be the most convenient. Electric scooters (“E-Scooters”) are among the many popular and ecologically friendly options contributing to micromobility. However, as its popularity surges, pedestrian safety becomes a concern due to increased pedestrian accidents involving E-Scooters.    

Like bicycles, E-Scooters have their own regulations that riders must adhere to maintain safety and prevent injuries and accidents to themselves and others around them, including pedestrians like yourself. Below are some important California Vehicle Codes (“CVC”) that one must obey when operating an E-Scooter in San Francisco:

Speed limits

  • CVC § 22411 does not allow the operation of an E-Scooter at a speed in excess of 15 miles per hour on all highways, including bikeways, regardless of a higher speed limit applicable to the highway.
  • CVC § 21235(b) does not allow the operation of an E-Scooter on a highway with a speed limit in excess of 25 miles per hour unless the E-Scooter is operated within a Class II or Class IV bikeway, except that a local authority may, by ordinance or resolution, authorize the operation outside of a Class II or Class IV bikeway on a highway with a speed limit of up to 35 miles per hour.

Minors must wear helmets

  • CVC § 21235(c) prohibits the operation of an E-scooter without wearing a properly fitted and fastened helmet. Recent California legislation only requires those under 18 to comply with this subsection of the vehicle code. However, this does not endorse the operation of a motorized scooter without wearing a helmet, as using a properly fitted helmet can reduce the chances of head injuries in an accident.

License or Permit to Operate

  • CVC § 21235(d) requires a valid driver’s license or instruction permit to operate an E-Scooter.

No Tandem riding

  • CVC § 21235(e) prohibits the operation of an E-Scooter with any passengers in addition to the operator. This means that double riding is not allowed, either with another person in the back or in front of the operator while operating the E-Scooter.

Stay off the sidewalks

  • CVC § 21235(g) prohibits the operation of an E-Scooter on a sidewalk. However, exceptions apply when the operator must enter or leave adjacent property. 

Utilization of bike lanes 

  • CVC § 21229 provides the rules of the road, which require E-Scooters to be operated in a class II bicycle lane when it has been established on a roadway and available.
  • Class II Bicycle Lanes are located on the right edge of a street and have a solid white line on each side. It usually has a bicycle symbol inside the white borders and accommodates one-way riding.

However, exceptions allow an operator of an E-Scooter to move out of the lane under any of the following scenarios: 

  • When overtaking and passing another vehicle or pedestrian within the lane or when about to enter the lane if the overtaking and passing cannot be done safely within the lane.
  • When completing a left-hand turn
  • When reasonably necessary to avoid debris or other hazardous conditions.
  • When approaching a place where a right turn is authorized.

In addition, The San Francisco Municipal Transportation Agency (“SFMTA”) launched a Scooter Safety Campaign in May of 2023 to promote safe and responsible E-Scooter use within the city. SFMTA’s Scooter Safety Campaign applies to both permitted scooter share devices and privately operated scooters. Below are some key takeaways to note:

  • Sidewalk riding is illegal. 
  • Powered Scooters may not exceed 15 mph.
  • Tandem Riding is illegal.

To summarize, not only is it reasonable, but it is required by California traffic laws that E-Scooters keep within bicycle lanes where available, which means that one cannot operate their E-Scooter while on the sidewalks. With regards to wearing a helmet when operating an E-scooter, it is required by law that those under 18 years of age wear one. However, regardless of your age and whether the law requires you to, it is in everyone’s best interest to maintain safety practices when operating an E-scooter, including wearing a helmet.  

If you are an individual who sustained injuries due to an E-Scooter accident, you may be able to claim damages by seeking legal help from Dolan Law Firm. For more information, you can click here.

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Who is Responsible for collisions involving driverless vehicles using AI?

Written By Chris Dolan and Cioffi Remmer

This week’s question comes from Leo from San Francisco, who asks: Now that self-driving cars are becoming a reality, who bears the responsibility for collisions involving driverless vehicles? Are there any laws protecting citizens?

Dear Leo,

Driverless cars, indeed, are becoming a reality. Over the last few years, self-driving vehicles have surged to the forefront of technological innovation, promising to revolutionize how we commute and interact with transportation. Driverless vehicles have undergone significant advancements in testing and production using artificial intelligence (AI), sensor technologies, and cutting-edge computing power. Major automotive industry giants and startups have been competing to bring this transformative technology to the masses, with the Bay Area leading the way.

For example, when companies like Waymo and Cruise test out their driverless taxis on city streets, the question that almost always comes up is, “Who is responsible for collisions involving driverless vehicles?”

Autonomous or driverless vehicles are supposed to have the advantage of obeying all road laws, having more reaction time, and the ability to avoid collisions. However, as of July 10, 2023, the California DMV had received 623 Autonomous Vehicle Collision Reports.  

It is usually the case that technology outpaces legislation. Our legislatures have plenty of time to develop common sense rules and regulations for issues that foreseeably cause public tension. Health and safety are at the heart of most rules and regulations that govern technology and its interactions with the public. This concern would be tenfold in the case of thousand-pound motor vehicles without human control. Currently, in California, Autonomous Vehicles (driverless) are only allowed on public roads for testing purposes.  

The California legislature has attempted to codify some essential regulations for testing driverless vehicles, codified in the California Vehicle Code Section 38750. Imagine a scenario where an autonomous vehicle (AV) collides with another vehicle or pedestrian.  What would they require under California law?

  1. A properly licensed individual must operate the AV. That means there should be a person in the vehicle with a valid driver’s license or a remote operator who monitors the vehicle live if no driver is physically present. That operator must also have a proper, valid driver’s license.
  2. The manufacturer of the AV is required to have a testing permit and insurance in the amount of five million dollars ($5,000,000), of which proof thereof is to be maintained in the vehicle.
  3. A plan with law enforcement agencies and first responders on interacting with the vehicle in emergency and traffic enforcement situations, which includes, but is not limited to, instructions on:
    • How to communicate with the remote operator (who must always be available);
    • Where in the vehicle is the proof of registration and proof of insurance;
    • How to safely remove the vehicle from the roadway;
    • How to disengage autonomous mode.
  4. Once law enforcement arrives, they must follow their plan to interact with Autonomous Vehicles. For example, the San Francisco Police Department has a current directive on interacting with autonomous vehicles. SFPD is required to document both injury and non-injury crashes involving an AV, whether physically operated or remotely monitored, using the CHP555 collision report, which they forward to the Commercial Vehicle Unit. 
  5. Within ten (10) days of the collision, whether it resulted in damage of property or bodily injury or death, the manufacturer must also report the incident to the Department of Motor Vehicles after the collision.  

Ultimately, who is responsible? Like any roadway collision, this is usually determined by figuring out who is at fault. One of the advantages of AVs is that there is audio and video recording at all times, and usually electronic data or telemetry. But determining fault may or may not be as simple as reviewing video or looking at electronic data. In either case, the manufacturer would likely submit the claim to their insurance carrier. If you’re involved in a collision with a driverless vehicle, it is critical to report it to law enforcement and your vehicle insurance carrier. If you’ve been injured in the collision, contact an attorney to help determine your rights.

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Cycling Accidents Are on The Rise

Written By Chris Dolan and Anna Pantsulaya

This week’s question comes from Leo from San Francisco, CA, who asks: Since more people are cycling for health, environmental, and many other reasons, how can cyclists lessen their chances of being killed on the road? 

Hi Leo,

That’s a great observation. Each year, the world witnesses an increasing number of cyclists taking to the streets, embracing a sustainable and healthy mode of transportation. However, amidst this surge in popularity, a dark and unsettling reality looms large–the rising number of cyclist deaths. The streets we envisioned as havens for cyclists are turning into danger zones, and we can no longer ignore the devastating consequences. The urgency to address this issue has never been more pressing. Let’s dig into the alarming rise in cyclist deaths and explore the staggering statistics related to cyclist deaths on our roads.

Cycling on the streets, while promoting a healthy and eco-friendly lifestyle, is not without its hazards. Cyclists face numerous dangers that put their lives at risk every time they venture onto the roadways. The lack of designated cycling infrastructure in many cities forces cyclists to share space with motor vehicles, resulting in a constant battle for space and visibility. Inadequate or poorly maintained bike lanes and reckless driving habits increase the chances of collisions and accidents. Additionally, distracted driving, speeding, and a general lack of awareness among motorists about sharing the road with cyclists contribute to the perilous conditions. Unpredictable weather, road conditions, and limited lighting further amplify the risks. The hazards of bicycling on the street are real and demand immediate attention to ensure the safety of cyclists and create a harmonious coexistence between all road users.

According to a recent report from the National Highway Traffic Safety Administration (“NHTSA”), in 2021, a staggering 966 cyclists lost their lives in traffic accidents. This unfortunate statistic represents the highest number of cycling fatalities in a single year since 1975. Moreover, it highlights a concerning trend of yearly increases in cycling deaths nationwide. The NHTSA also reports that the number of pedal cyclists injured in traffic crashes reached 41,615 in 2021 – a 7% increase from 2020.

When analyzing data from the NHTSA and the U.S. Census Bureau, it becomes evident that there was an average of 2.7 fatal bicycle crashes for every million U.S. residents between 2017 and 2021. This figure represents a 5% increase compared to 2012-2016. In 2021 alone, cycling fatalities were reported in all 50 states, with more than half of the deaths concentrated in the top five states: Florida, California, Texas, New York, and Arizona.

Ensuring personal safety should be a top priority for cyclists when navigating the roads. By adopting a proactive approach and following essential safety measures, cyclists can greatly reduce the risk of accidents and protect themselves from harm. Firstly, wearing a properly fitted helmet is crucial to safeguarding against head injuries. Additionally, cyclists should invest in reflective clothing and accessories, making themselves more visible to motorists, especially during low-light conditions. Obeying traffic rules and signals is essential, as it helps maintain predictability and enables other road users to anticipate the cyclist’s movements. Staying vigilant and constantly scanning the surroundings for potential hazards is also vital. Regular bike maintenance, including checking brakes, tire pressure, and lights, ensures optimal performance and reduces the likelihood of mechanical failures. Lastly, cyclists should choose routes with dedicated cycling infrastructure, such as bike lanes or paths, to minimize exposure to motor vehicle traffic. By adhering to these safety guidelines, cyclists can significantly enhance their well-being and enjoy a safer riding experience.

When injured in a cycling accident, contacting an attorney is crucial in protecting one’s rights and seeking appropriate compensation. The aftermath of a cycling accident can be physically and emotionally overwhelming and dealing with insurance companies and legal processes can be complex and daunting. By consulting an experienced attorney specializing in personal injury cases, cyclists can gain invaluable guidance and support. An attorney can navigate the legal complexities, investigate the accident, gather evidence, and build a strong case for the injured cyclist. They possess the knowledge and expertise to negotiate with insurance companies, ensuring that victims receive fair and just compensation for medical expenses, property damage, lost wages, and pain and suffering. Moreover, attorneys can provide invaluable advice on interacting with insurance adjusters and help protect victims from potential tactics used to minimize their claims. Ultimately, enlisting the services of an attorney empowers injured cyclists to assert their rights, level the playing field, and obtain the legal recourse they deserve for their injuries and losses. 

With a wealth of expertise in handling cases involving injured cyclists, the legal professionals at The Dolan Law Firm possess extensive experience in this field. If you or a cherished family member have suffered injuries in a cycling accident due to the negligence of another party, we encourage you to approach our skilled attorneys for assistance confidently. Rest assured that our team is well-equipped to provide you with the support and legal representation necessary to seek justice and fair compensation for your circumstances.

For more information on Dolan Law Firm, you can go to Dolanlawfirm.com. To read more articles on our blog, visit us at www.dolanlawfirm.com/blog.

Christopher B. Dolan is the owner of the Dolan Law Firm. Anna Pantsulaya is an associate attorney in our Los Angeles, CA, office. We serve San Francisco Bay Area and California clients from our San Francisco, Oakland, and Los Angeles offices. Email questions and topics for future articles to: help@dolanlawfirm.com. Each situation is different, and this column does not constitute legal advice. We recommend consulting with an experienced trial attorney to understand your rights fully.

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Crashes Caused by Police Pursuits: Who is at Fault?

Written By: Chris Dolan and Kimberly Levy

This week’s question comes from Roberto from San Francisco, who asks: Do police officers or police departments have liability for crashes or injuries caused during police pursuits?

Hi Roberto,

It depends on the specific facts involved. There are several sections of the California Government Code as well as the California Vehicle Code that address these kinds of situations. So, let’s look at some fact patterns. Suppose a police officer engages in a vehicle pursuit with a person (also in a motor vehicle) who is suspected of having just robbed a bank and, during the pursuit, the suspected bank robber crashes their car and injures another person who was not involved in the pursuit. In that case, the police officer and their department generally will not be liable for that person’s injuries. California Vehicle Code Section 17004.7(b) is clear in this regard.

But what if the officer crashes their patrol car during a vehicle pursuit and injures a bystander? Let’s say an officer is pursuing a suspected criminal, and during that pursuit, the officer engages in conduct that may be reckless or negligent. Police pursuits are fast-moving situations, requiring officers to make split-second decisions, often with limited or little information. However, the California Vehicle Code requires ALL drivers on the road to operate their vehicles in a safe and reasonable manner, obeying all rules of the road, including police and emergency vehicles. There are exceptions for police pursuits, fire engines on their way to a fire, ambulances taking a critically ill patient to the hospital, etc. But there are requirements for these exceptions, such as operating lights and sirens to warn those in the area that such circumstances are occurring.

If an officer decides to engage in a vehicle pursuit, one can look at whether that decision to pursue was made in a reasonable manner. Generally, the decision to pursue a vehicle affords the officer a certain amount of immunity as they are making that decision in the course and scope of their employment as a police officer. Things can get interesting in examining the officer’s conduct during the pursuit.  

For example, assume an officer in a patrol car is chasing a suspected criminal who is riding a motorcycle. The fleeing suspect on the motorcycle turns into a crowded farmers market with an extremely narrow path of travel down the middle, not enough room for something the size of a car or SUV.  Suppose the officer, seeing the crowded conditions of the farmers market, decides to turn into the crowded area to pursue the fleeing suspect and hits and injures bystanders not involved in the pursuit or crashes into some vendor tents. In that case, that is a decision and an act that most reasonable people would consider negligent. And, if the officer’s actions during the pursuit are considered to be negligent, then that officer and his department will likely have some liability for those injuries and damages resulting from that decision and that conduct.

By contrast, assume the same fact pattern, but the officer does NOT pursue the fleeing motorcycle into the crowded farmer’s market. He instead radios dispatch for backup and informs them of the suspect’s last known location. But then the motorcyclist crashes while speeding through the crowded marketplace and injures bystanders and causes property damage. Because the officer acted in a manner that most people would consider reasonable, it is unlikely that the officer or the department would be liable for those injuries or damages. Once again, the California Vehicle Code Section mentioned above would control.

In answering these questions regarding police pursuits, courts will generally break the pursuit into sections and examine each section and decision made. An officer can have acted reasonably in some sections of a police pursuit but negligently in others.

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