People boating under the influence may be held responsible

Written by: Christopher B. Dolan

Today’s question comes from Terry M. from the East Bay: 

Terry M.: “My son was out on a lake boating with some of his friends on Labor Day. Aside from the fact that I am not happy about the fact that there were a bunch of kids hanging around when they should be social distancing, there was alcohol involved. He is over 21 so that’s not the problem.  A number of people were on jet skis. To make matters worse, some of them didn’t have any experience. One of the jet ski owners let an inexperienced friend use his jet ski. As this person was showing off, the kid came in too fast and crashed into my son severely injuring his leg.  He had to go to the hospital and have screws put in place. The police were not called but my son said the kid who hit him had been drinking heavily. What can we do now without there being a police report? We have thousands in bills and my son can’t work.”

Dear Terry: Terry, unfortunately each year we receive numerous calls from people who are injured in boating accidents. These crashes often lead to serious injuries, drownings, mutilation by propellers and in too many cases, death. According to the U.S. Coast Guard, in its 2018 Recreational Boating Statistics Report, there were 633 fatalities nationwide in 2018. In that same period, there were 2,511 recreational boating injuries and 4,291 accidents. Alcohol is the leading contributing factor in fatal boating accidents accounting for 100 deaths or 19% of the total fatalities. 

Several issues arise from your question: drinking, experience and also lending a watercraft to an intoxicated person.

First, the law examines facts and events to see if there was “negligence.” Put simply, negligence is the failure to control yourself, your actions and property, as  a “reasonable person would.”  Often, what is “reasonable” is codified in a local, state or federal law.

Starting in January of 2018, the State of California began phasing in a boater education requirement and California Boater Card (CBC- often referred to as a boating license) requirement. As of January 1, 2020, California Harbors and Navigations Code Section 678.11, requires a boater to be 16 years or older. Any boater 35 years or younger (16-35) must be in possession of his/her CBC to operate any vessel powered by 15 horsepower or more, including personal watercraft (jet skis). From what I gather, the operator didn’t have a license.

Harbors and Navigations Code Section 655 (a) provides that, “No person shall use any vessel or manipulate water skis, an aquaplane, or a similar device in a reckless or negligent manner so as to endanger the life, limb, or property of any person.”  Section (b) states: “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.”

Section (c) states: “No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.” Also, Section (f) states: “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.”

Here it appears that the operator violated Harbors and Navigations Code Sections 655 and 678.11. Note that Section 655, subsections (b) and (f), do not require a determination of a blood alcohol limit, only a showing of being under the influence which can be demonstrated by testimony of witnesses. Therefore, while a police report would have been helpful, it is not necessary. The driver is, therefore, negligent.

Although the driver is negligent, he may not have any insurance. If he has personal assets they may be attached, following a trial, to satisfy any monetary award. Here, however, it appears that the owner of the jet ski, knowing the operator’s inexperience and that he had been drinking, is potentially liable for, “negligent entrustment,” of his jet ski, and, if he has insurance on the jet ski, it may pay for your son’s medical bills, lost wages, and the pain and/or disfigurement he has suffered. 

Have your son contact a trial lawyer, with experience in boating accidents, to get a consultation.

 

Christopher B. Dolan is the owner of the Dolan Law Firm. Email questions and topics for future articles to: help@dolanlawfirm.com.

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With Election Day coming, here’s how to vote in California

Written by: Mari Bandoma Callado and Christopher B. Dolan

Billy S. asks:

Q: “I have seen many terms like provisional, mail-in and in-person voting. It’s all very confusing. Can you explain what this all means?”

A: Thank you for your question Billy. In order to fully participate in our democracy, we encourage all eligible voters to exercise the right to vote in local, state and national elections.

Election day is Tuesday, Nov. 3, 2020. This year, all of California’s registered voters will be mailed a ballot no later than 29 days prior to Election Day per Gov. Gavin Newsom’s Executive Order N-64-20. Due to the COVID-19 pandemic, this is an unprecedented election and new voting location rules are in place should some voters still choose to participate in-person.

This article will discuss how to register to vote in the Nov. 3, 2020 General Election, explain what a provisional ballot is, how to vote by mail, where to find information on how to vote early and in-person.

Eligibility
To register to vote in California, you must be a U.S. citizen and a resident of California. You must be 18 years or older on Election Day. For information on eligibility if an individual has a criminal history or subject to conservatorship, click here.

How to register
To check if you’re registered to vote, click here. To register online, you can fill out this online application. The application is available in several languages including English, Spanish, Chinese, Hindi, Japanese, Khmer, Korean, Tagalog, Thai and Vietnamese. You can also register to vote using the California voter registration form or obtain a form at your local library, U.S. Post Office, or Department of Motor Vehicles offices. Note that your registration must be postmarked or submitted electronically no later than Oct. 19, 2020 to participate in the Nov. 3, 2020 election.

What is a provisional ballot?
If you miss this deadline to register, you may conditionally register to vote and cast a provisional ballot by visiting your county elections office, a vote center, or a designated satellite location during the 14 days prior to, and including Election Day. For more information, click here.

A provisional ballot is a regular ballot that is placed in a special envelope prior to being put in the ballot box. Your provisional ballot will be counted after election officials have confirmed that you are registered to vote in that county and you did not already vote in that election. To check the status of your provisional ballot, click here for a list of county contacts and information on how to check the status of your provisional ballot.

How to vote by mail
All registered voters will be sent a vote-by-mail ballot for the Nov. 3, 2020, General Election and registered voters do not have to apply for a vote-by-mail ballot for this election. Instead of going to the polls on Election Day, you may vote using the vote-by-mail ballot that will be sent to you. After you vote, insert your ballot in the envelope provided and you have several options to return your voted ballot:

  1. Mail it to your county elections official (must be postmarked on or before Election Day and received by your county elections office no later than Nov. 20, 2020);
  2. Return it in person to a polling place or the office of your county election officials (note that vote-by-mail ballots that are personally delivered must be delivered no later than 8 p.m. on Nov. 3, 2020;
  3. Drop off your ballot in one of your county’s ballot drop boxes (no later than 8 p.m. on Nov. 3, 2020);
  4. Authorize someone to return the ballot on your behalf (must fill out the authorization section found on the outside of your ballot envelope).

For a list of county elections offices, visit: https://www.sos.ca.gov/elections/voting-resources/county-elections-offices/

Can I vote early?
California voters can also vote before Election Day, from Monday, Oct. 5, 2020 to Monday, Nov. 2, 2020. However, dates and hours vary depending on where you live. Early voting and vote-by-mail ballot drop off locations may be found on the Secretary of State’s early voting website.

Can I still vote in person?
In-person voting locations will also be available to voters. Gov. Newsom’s executive order gave California counties permission to limit in-person voting operations as protection against the spread of COVID-19 but only if they also offer three days of early voting. If you are choosing to vote in person, make sure to confirm your polling location by visiting the Secretary of State’s website.

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Resources for Those Affected by California’s Wildfires

Written By: Megan Irish and Christopher B. Dolan

Sarah from the North Bay writes:

Q: “I just heard on the news that my friend’s neighborhood was evacuated for the fires, what can I do to help her, what are the resources available?”

A: Dear Sarah,
I’m so sorry to hear your friend was evacuated. There are a lot of resources; let me point out a few to get your friend started:

California Department of Social Services
California maintains a Disaster Help Center online.  This site has resource guides, both in English and Spanish. They have links for CalWORKS, which is an assistance program for families with children in the home, and CalFresh, which helps with funds for food. If your friend was already receiving these benefits and had to abandon their home (and their pantry), there are resources for, “replacement,” benefits, too. If your friend doesn’t think she normally would qualify for the benefits, she should still check it out. There are special circumstances when disasters happen, and families who may not typically receive benefits could qualify for assistance for a short time during the disaster period. There are also resources for housing administered by the local county if your friend needs a place to stay. Additionally, you can find a link to unemployment services there. Since many folks are displaced from their work in these fires, or perhaps their employer has themselves displaced or the business is closed, your friend may need financial assistance for a time. Your friend also could look into California’s State Supplemental Program (SSGP), which may be able to provide assistance.

California Department of Motor Vehicles
The DMV is assisting fire victims who need replacement documents from the DMV free of charge. If your friend needs DMV documents, they should reach out to the local field office, call 1-800-777-0133, or online. Being evacuated can be a really stressful time. If your friend is experiencing any emotional distress, and needs to talk to a professional, there are counseling services available. The Substance Abuse and Mental Health Services Administration (SAMHSA) has a Disaster Distress Helpline that provides 24/7,365 resource available for any human caused or natural disaster. The helpline can be reached at 1-800-985-5990 or text TALKWITHUS to the number 66746. 

California Department of Insurance
Your friend will also likely need to reach out to his or her insurance providers. A good resource is the California Department of Insurance; it has a guide to expedite the recovery process. It can be found here. The website has “evacuation checklists” for policyholders, as well as top ten tips for claimants, and insurance company contact lists. There are also links for in-person help centers, called “Local Assistance Centers” which are typically located in the heavily affected counties. Right now, there are centers in Santa Cruz, Monterey and Solano. There is also a link to success stories. In your friend’s time of turmoil seeing that there are so many resources available may be reassuring. 

Red Rover
If your friend has pets, there are other resources available throughout the State, too. A good resource with numerous links is Red Rover. It groups resources geographically throughout the state. This site also has resources for first responders who may need help caring for their pets while they are working, plus, it even has a financial assistance link for families who need help getting their pets veterinary care. 

CalFire
Most counties’ websites will be a primary resource for people evacuated like your friend. For example, Napa County has an assessment map, evacuation map and live cameras (showing vistas all over the state) on their website. People affected by the wildfires should check out their county resources. 

Cal Fire has a site with information about both federal agencies and local counties. The California Community Foundation also has a website dedicated to the Northern California Wildfire Relief. The federal government also has a website with a lot of links.  Your friend can find it here. The federal site has links for mortgage and rental relief as well as help with food and bills.

Red Cross
Finally, there is the National Red Cross. The Red Cross has hundreds of resources and links for people affected by the wildfires, and an app that can be downloaded for smartphones. The Red Cross also has resources on how to prevent fires.  When your friend gets home, they can reassess their property and decide if they have a good defensible space surrounding their home, and they can evaluate whether their plant choices are fire resistant. The site includes suggestions on spacing out plants so fire won’t jump between them, as well pruning trees, mowing grass and removing any dead vegetation to remove fuel. 

I hope your friend gets home soon, and that their home is in good condition. I hope these resources are helpful in the meantime. 

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Can the federal government deploy federal police to states?

Written by: Christopher B. Dolan and Allison L. Stone

As Black Lives Matter protests continue at the Mark O. Hatfield Federal Courthouse and Multnomah County Justice Center, a police headquarters in Portland, militarized federal officers are patrolling downtown Portland in unmarked vehicles and detaining people. President Trump announced that deployment of federal officers into other cities where protests continue including Chicago, Philadelphia, New York, Detroit, Baltimore, and Oakland, will follow. Therefore, it is necessary to explore the president’s power to deploy federal forces in states, and the limits on that power.

On June 26th, President Trump signed an Executive Order which directed the Departments of Justice, Homeland Security and Defense to provide, “personnel to assist with the protection of Federal monuments, memorials, statues, or property.” Federal officials state that they are in Portland protecting the Federal courthouse and justice center from vandalism. However, as federal agents with batons and combat gear patrol the streets of Portland, the legal limits of federal law enforcement must be addressed.

The Tenth Amendment of the Constitution provides that police powers are expressly reserved to the States through state and local police agencies. In other words, while the federal government has broad power to enforce the laws of the United States, the federal government generally has no role in enforcing, making arrests and/or prosecuting local crimes. This is what is commonly known as the separation of powers between the state and the federal governments. Thus, as it relates to the ongoing Black Lives Matter protests, the federal government does not have the power to police the streets or maintain order in a city if and when protests lead to violence.

With that said, a 2002 federal law that created the Department of Homeland Security says its secretary may,

“designate employees… as officers and agents for duty in connection with the protection of property owned or occupied by the federal government (…who may) carry firearms… conduct investigations on or off the property in question… and make arrests without a warrant for any offense against the United States,” with, “reasonable grounds to believe the person to be arrested has committed a felony.”

Accordingly, the federal government does have the right and authority to protect its buildings in Portland. For example, once a crime such as throwing a firebomb at federal property already has been committed, the federal authorities have probable cause to arrest them, even many blocks away from the federal property. Likewise, if a group gathering and planning to vandalize the federal property is observed, federal officers are permitted to investigate. But such power and authority is constrained.

Nevertheless, there are multiple troubling reports of federal officers arresting people who are peacefully protesting and blocks away from the federal buildings in Portland. Likewise, there is footage of officers in combat gear pulling a peaceful protester off the street into an unmarked van as well as video showing federal agents beating a non-violent Navy Veteran. Further, violent tactics by federal agents to control large crowds including use of tear gas, flash grenades and shooting nonlethal munition has left multiple people with serious, life-altering injuries. 

Federal officials are defending their conduct as legal under the aforementioned federal statutes that permit federal agents to go outside the boundaries of the federal property to, “conduct investigations,” into crimes against federal property or officers. However, patrolling the streets, beating peaceful protestors, and detaining and interrogating protesters without any information that those individuals committed a federal offense goes beyond their authority.

Such conduct is problematic and concerning for multiple reasons. First, it constitutes general policing, which is a state and local function outside of federal jurisdiction and powers. Secondly, it is interfering with protests, which violates the most basic First Amendment right to free speech and the right to protest. Additionally, arrests require probable cause, meaning that a federal officer must be able to identify facts that would cause a reasonable officer to believe that the specific person arrested has committed a specific federal crime. Grabbing protesters off the streets, taking people to federal buildings for interrogation, and detaining people that may have been involved in protests at or near federal property is not probable cause. The police do not have probable cause to arrest someone just because they are standing near someone who may have committed a crime. These tactics are believed to be an abuse of executive power, intended to scare and silence protesters and interfere with the Black Lives Matter protests. If federal officers take a protester off the street in a van without probable cause, they could be sued for damages.

On July 29th, it was announced that Oregon and the federal government have come to an agreement for the staged withdrawal of some, but not all federal agents from Portland. 

As Black Lives Matter protests continue, and because deployment of federal agents could be coming to your city next, it’s important to remain vigilant. If you are taken off the streets or injured while protesting and you feel that your rights have been violated, it is important to speak to a lawyer, as you may be entitled to sue the federal government.

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Steps to Deal with Cyberbullying in School

Written By: Christopher B. Dolan and Aimee Kirby

Ella writes:
Q: “I am a stay-at-home Mom and have two children. My son is in second grade. My daughter, Lilia, is in middle school and has just completed seventh grade. Both children went to remote learning in early March and used iPads to connect with their teachers and classmates. During this time, they used Google to do chats and Zoom for remote video instruction. Lilia has had trouble fitting in at middle school, and she has told me about a particular young boy in her class that has made fun of her throughout this school year. She wouldn’t tell me exactly what he was doing, but said that he was, “very mean.”  My husband and I decided not to talk to the school administration as it seemed like typical kid behavior, and my daughter, for the most part, seemed happy, and her grades were excellent.

Just before the school year ended, my daughter came to me in tears, holding her iPad. The boy that she had told me about (let’s call him Chad), had posted horrible things in a Google Chat. My daughter is biracial, and Chad compared her to a fat ape’s picture and commented on her hair, saying it looked, “ghetto.” Because her entire class was on this Chat session, they saw the picture Chad posted and his racist language that embarrassed and upset my daughter. I don’t know if the teacher witnessed this or if the Chat was saved. Chad is white, and both his parents are white. My daughter is one of the few biracial children in this school. I thought the environment was more evolved in Northern California. These actions go beyond childhood stuff, and I would like to press charges against the parents and the child. I want justice for my daughter. What are my options?” 

A: Dear Ella, 
I am so sorry that your daughter is going through this during an already difficult time. Thankfully, California has realized how detrimental bullying is to the development of our children and enacted several laws to help protect victims. Education Code Section 48900, subsection (R)(1) defines bullying as any severe or pervasive physical or verbal act or conduct, including communications made in writing or utilizing an electronic bill, and including one or more acts committed by a pupil which either: 

  1. places the pupil in fear of harm to that pupil’s person or property, 
  2. causes a reasonable pupil to experience substantial detrimental effect on the pupil’s physical or mental health, 
  3. creates a reasonable pupil to experience significant interference with the pupil’s academic performance, and 
  4. causes a reasonable pupil to experience substantial interference with the pupils’ ability to participate in or benefit from services or privileges provided by a school.

Your child is being bullied, and action against Chad is warranted.

The first thing that must be done is to report this act of bullying and any other act of Chad’s bullying to the School District. I would suggest that you do this in writing. You may want to sit down with your daughter so you can go over all the acts, as there may be some that she was unwilling or ashamed to tell you. Rarely does a bully strike only once; bullying is usually a systematic attack on a victim that continues for months. The school must investigate the complaint and take action. This action can result in a layered approach to discipline depending on the severity of the acts. The School District can issue a written warning, give out detention, suspend or expel the offending child. Often parents of the victim child consider a jurisdictional transfer for their child to effectively take them out of the past environment and allow them to start new at another school.

Besides making sure that your daughter’s educational needs are met, you may also consider having her talk to a school counselor or a therapist to process these feelings. In some instances, the shame and torment of bullying can lead to psychological trauma, even including self-harming. A therapist can help your daughter voice her feelings, process them and move forward from them. Often, children can find solace in a trusted therapist, and this helps them deal with the trauma that their hearts and brains can’t process yet. 

You may also consider a civil action against the School District. This requires that you take action quickly as the statute of limitations is different for government entities. Various state and federal laws would apply to racial discrimination and bullying. As you may uncover more acts of bullying after speaking to your daughter, I would urge you to consider talking to an attorney to consider civil legal remedies. Always, there is a balancing act between determining what is best for your daughter emotionally and (the level of) legal participation. 

 

 

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An Interview with FBANC’s 40th President: Mari Bandoma Callado

This morning, we had the opportunity to catch up with our senior associate attorney from our Oakland office and current president for the Filipino Bar Association of Northern California. FBANC is an organization of attorneys, judges and law students dedicated to serving the Filipino American legal community in Northern California. As a talented attorney, Mari Bandoma Callado represents employees in wrongful termination, discrimination, harassment, retaliation and human trafficking cases. She also represents injured individuals and families of loved ones who have died due to the fault of others, including in elder abuse and neglect lawsuits. From 2017 to this year, Mari is recognized as Super Lawyers’ Rising Star among Northern California attorneys.

At the Dolan Law Firm, Mari assists courageous employees in safeguarding their rights and has achieved remarkable success in cases involving:

“While important, for most employees we represent it’s not just about recovering monetary damages,” Mari explains. “They have been treated unfairly and suffered significant emotional distress. Justice demands that their rights be vindicated and wrongdoers be held accountable.”

Mari has successfully represented clients in a wide range of individual personal injury & wrongful death lawsuits including:

Mari has been an active member of several local national bar associations, including the Filipino Bar Association of Northern California where she has been a member since 2010 (as a law student) and served as a board member three years later. She now serves as FBANC’s 40th president and chairs several committees.

Interview with Mari

Hello Mari, thank you for taking the time to speak to us. How does it feel to be FBANC’s 40th president? 

It truly is an honor to serve as FBANC’s 40th President.  I have to say that this is a challenging year to be president as nothing about this time is ordinary.  We could not have anticipated how our lives, our economy, and our sense of normalcy would be severely disrupted by a public health emergency.

The pandemic also exposed pre-existing racial inequities in our health system as COVID-19 continues to disproportionately kill people of color – particularly Black Americans.  It also reminded us how quickly, and unapologetically, this nation shifts the blame on the “other” during moments of crisis. The violent deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery at the hands of police and vigilantes sparked a public outcry to eradicate an arguably deadlier disease, racism. 

These last couple of months have placed a spotlight on the horrific injustices that Black Americans suffer. As a mother to a two-year-old son, I feel sick to my stomach thinking about how Black mothers live in a constant fear of never seeing their sons again.  I refuse to imagine, it’s impossible to imagine, it’s a privilege to not be able to imagine. 

All mothers were summoned when George Floyd called for his mama.  As lawyers, we are privileged to hold this power.  We have an obligation to use our voice to speak up for those muzzled by systemic racism and to continue to serve marginalized communities.  As president, I hope to continue serving the Filipinx and Filipinx-American and marginalized communities as FBANC has done for the last four decades.

Tell us about the virtual installation ceremony. What were the major challenges about organizing such an event?

The FBANC Board transformed its annual fundraiser gala, which FBANC planned to host 300+ guests, into a virtual installation ceremony.  The ceremony featured trailblazers in the Filipino-American legal community including the induction of FBANC’s officers by California Supreme Court Chief Justice Tani Cantil-Sakauye; remarks by the Hon. Benjamin Reyes, II, the first Filipino-American superior court judge in Contra Costa County, the Hon. Audra Ibarra, the first Filipina-American superior court judge in the SF Bay Area, remarks by Rob Bonta, the first Filipino-American Assemblymember in the California Legislature.

FBANC kicked off the celebration with a virtual cocktail reception and held a virtual afterparty with a live DJ.  The ceremony was attended by almost 140 viewers and has been viewed over 500 times on YouTube, making it the most attended FBANC installation ceremony to date.  During the ceremony, the FBANC Foundation, which provides scholarships to support the educational development of Filipino and Filipino American lawyers and law students in Northern California, awarded over $40,000[1] in scholarships and stipends to aspiring attorneys.

Switching to a virtual format for our annual fundraising gala means we did not incur typical expenditures related to that event. FBANC hosted the ceremony at no cost to attendees in light of the economic downturn and to encourage donations to other causes.  In light of the financial impacts of COVID-19, FBANC leadership made a conscious decision not to seek sponsorships for the virtual gala. Therefore, one big challenge is funding our programming this year.  Fortunately, because of the Board’s financial stewardship over the past several years, FBANC still begins the year with sufficient funds to operate. In the coming year, FBANC plans to adopt a cost-saving budget to preserve its financial resources. FBANC will also solicit sponsorships for its programming and conduct membership drives to supplement its operating budget.

 What are some major goals for FBANC for the coming year?

Established in 1981, FBANC aims to continue serving our community and remains committed to diversifying the legal profession and providing a voice for, and advocating on behalf of, Filipinx and Filipinx-American interests in various forums.

The global pandemic forced FBANC to think outside the box in terms of member engagement.  FBANC’s programs will be virtual for at least the end of the year.  We are hosting a virtual conference for law students on August 9 and well as offering professional development webinars and remote social events.  FBANC is also aiming to raise $40,0000 for the FBANC Foundation’s legal scholarships and stipends to celebrate FBANC’s 40th anniversary.  To facilitate serving the community, FBANC will be relaunching our free remote legal clinics and will be providing webinars to the public on various issues. 

 I realize this may be a broad question, but how has COVID-19 affected the Filipino and Filipino American community in the Bay Area?

First respondents and healthcare workers have made sacrifices serving on the frontlines all across the country every day, but particularly during the COVID-19 pandemic, including losing their lives. Filipinx Americans make up a large portion of the nation’s health care workforce. In the Bay Area, approximately 17% of nurses are Filipinx/Americans.

Moreover, it has been reported that COVID-19-related fatalities have higher rates in the Filipinx American communities. Experts believe the higher risk factors among Filipinx and Filpinx Americans could be prevalent preexisting health conditions, poverty, undocumented status and lack of health insurance.

In the wake of the COVID-19 pandemic, FBANC recognized the widespread need in our community for support and legal assistance.  FBANC contributed to relief efforts through the following initiatives by:

  • Releasing a Resource Guide for workers, tenants, domestic violence survivors, and immigrants after California’s shelter-in-place orders took effect.
  • Presenting legal information via webinars and interviews with The Filipino Channel to provide legal resources to the Filipinx and Filipinx-American community.
  • Launching a two-month long Virtual Unemployment Form Assistance Clinic with Asian Americans Advancing Justice – Asian Law Caucus. Over 70 volunteer attorneys, law students and advocates offered 1400+ pro bono hours to the public. The virtual clinic provided services in Tagalog, Ilocano, Cebuano, Cantonese, Mandarin, Korean and Spanish to almost 500 clients.  The clinic assisted 140 clients with filling out unemployment, disability and paid family leave benefit from start to finish.  FBANC also trained two local organizations to provide a similar service.
  • Providing a wills assistance virtual clinic and legal resources to emergency responders through a partnership with Legal Access Alameda and hosting a free webinar on basic estate planning for health care professionals.
  • Providing (through the FBANC Foundation) over $10,000 in COVID-19 relief stipends to law students who have been affected financially by the pandemic.

 You were also nominated as a Super Lawyer Rising Star this year. Tell us what this means to you?

It is an honor to be included on the Super Lawyer’s Rising Star list for the fourth consecutive year because to be eligible for this recognition, you have to be nominated by your peers.  Moreover, fewer than 2.5% of eligible licensed attorneys who have either been practicing for fewer than ten years, or are under 40 years old are given this recognition.

In the age of COVID-19 and as working parent, do you have any advice to other parents? How do you maintain a work and personal life balance?

With childcare options being extremely limited, my husband and I have had to coordinate working and caring for our two-year-old.  We had to work on communicating with our work. In the first few weeks of shelter-in-place, it seemed harder to maintain a work and personal life balance.  There was something about having my workstation at home that made it difficult to step away from it, even after work hours.  I try to squeeze in play time with my toddler and stepping out for walks during the day so I can take a “real” break, which is better for my sanity and health.

 Who inspired you to go to law school? Did you have mentors that helped you along the way?

My father was injured at work in 2004.  Instead of supporting him during a vulnerable time, his former employer discriminated against him for his disability, requesting accommodations and taking job-protected leave. His former employer retaliated against him and terminated his employment. I felt the worry and anxiety my parents struggled with as they figured out how we were going to supplement my father’s lost income. I told myself that I would never let anything like this happen to my family or any of my loved ones again.

I immigrated to the United States when I was twelve years old.  I was the first person in my family to go to a college in America, let alone law school. During law school, I became a law student member of FBANC where I met many of my mentors who gave me advice along the way, even today as I navigate being an immigrant, woman of color in the legal profession.

 Do you have any advice to young students exploring law school?

Students who are interested in going to law school should reach out to attorneys to learn more about their practice area and what they do on a day-to-day basis. Law school is a big investment, so it’s worthwhile to make sure that this is really something they want to do.  It might seem intimidating but most attorneys I know are willing to take time to share their journey.

[1] Almost doubling the amount awarded from the prior term.

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Are the Feds Required to ID Themselves?

Written by: Christopher Dolan and Cristina Garcia

This week’s question comes from Roger who writes,

Q: “I have been following the news about the protests in Portland, Oregon. Protesters have reported arrests by federal law enforcement officers in unmarked vehicles and without visible badges. I personally have participated in peaceful protests and find this troubling. It seems counterintuitive to allow individuals in plain clothes and in unmarked vehicles to arrest you. Further, how is one supposed to know that they are law enforcement officers or identify the agency they work for if they are not wearing badges? Are federal law enforcement officers required to identify themselves when making arrests?”

A: Dear Roger,

that is a great question. Currently there is no federal statute requiring federal officers to disclose their identity or their agencies of affiliation. For this reason, many federal law enforcement officers will simply identify themselves as “federal law enforcement.” As you mentioned, this is concerning as citizens engaged in peaceful protests would be unable to identify the officer or the agency that apprehended, detained, or arrested them.

Many legislators became alarmed as news reports poured in from Portland, Oregon reporting several arrests made by federal law enforcement officers in unmarked vehicles and without visible badges. For this reason, two new bills have been introduced to Congress in an effort to reach transparency. The new bills would require federal law enforcement officers to identify themselves and it would prohibit the use of unmarked vehicles when apprehending, detaining or arresting civilians when engaging in crowd control which includes demonstrations, protests and riots.

On June 8, 2020, the Senate introduced Senate Bill 3909 – Law Enforcement Identification Act and on June 11, 2020, the House of Representatives introduced an identical bill which reads in relevant part:

“(b) REQUIREMENT. – Each Federal law enforcement officer or member of an armed force who is engaged in any form of crowd control, riot control, or arrest or detainment of individuals engaged in an act of civil disobedience, demonstration, protest, or riot in the United States shall at all times display identifying information in a clearly visible fashion, which shall include the Federal agency, last name, and badge number of the Federal law enforcement officer or the armed force, last name, and rank of the member of an armed force, respectively.”

If the above bill is passed, it would require all on-duty federal law enforcement officers to clearly display their agency name, their own last name and their identification number. This would allow citizens to know which agency is arresting them. It would also create a sense of accountability as the citizens arrested or witnessing arrests would be able to identify the officer and agency, which would facilitate their ability to report any abuses or misconduct to the correct agency.

The Senate has also introduced Senate Bill 4220 – Preventing Authoritarian Policing Tactics on America’s Streets Act, which would also require all federal law enforcement officers to identify themselves when engaging in any form of crowd control. However, this bill takes it one step further by prohibiting federal law enforcement officers or members of an armed force from taping over or otherwise obscuring or concealing their identification information. Further, federal law enforcement officers would also be prohibited from using an unmarked vehicle for apprehension, detention or arrest of civilians while the officer or member is engaged in any form of crowd control which includes demonstrations and protests.

The purpose of this bill is to limit the use of federal law enforcement officers for crowd control. The federal government has the authority to use federal law enforcement officers to protect federal property that is owned or occupied by the federal government. However, given that in Portland many federal law enforcement officers were reported making arrests several miles away from federal property, the Senate has introduced Senate Bill 4220 to place restrictions on federal law enforcement. Senate Bill 4220 provides that,

“…a Federal law enforcement officer or member of an armed force may only be authorized to perform any form of crowd control, riot control or arrest or detainment of individuals engaged in an act of civil disobedience, demonstration, protest or riot on Federal property or in the immediate vicinity thereof, which shall include the sidewalk and the public street immediately adjacent to any Federal building or property.”

This bill would restrict federal law enforcement officers from arresting or detaining citizens who are engaged in peaceful protests who are not on federal property or in the immediate vicinity of federal property.

Although there is no federal statute requiring federal law enforcement officers to identify themselves at this time, this can change if the Law Enforcement Identification Act and the Preventing Authoritarian Policing Tactics on America’s Streets Act are enacted.

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California law addresses safety for bicyclists

Written by: Christopher Dolan and Taylor French

Drivers and bicyclists must coexist in an environment that, at times, can feel too crowded for both.

California has enacted several laws throughout the years in an effort to ensure the safety of those sharing the roads, but none is more important than the Three Feet for Safety Act. In 2013, California’s legislature passed the act, codified as California Vehicle Code section 21760, requiring drivers to give bicyclists a minimum of three feet between the motor vehicle and bicycle when passing in the same direction on a highway. This law became operative on Sept. 16, 2014.

Prior to the act, the California Department of Motor Vehicles had already provided that maintaining three feet between cars and bicycles was the best practice, but the act gave law enforcement the ability to stop a motorist and issue an infraction for failing to keep this distance. An infraction issued for a violation of California Vehicle Code section 21760 results in a minimum fine of $35. If a collision occurs between a car and bicycle causing great bodily injury to the bicyclist, the driver of the car will be issued a $220 fine. In addition to these fines, however, the motorist will also likely incur court fees and/or other administrative fees, which could significantly increase the cost of a violation.

While the act is as straightforward as it sounds — a car may not pass a bicycle traveling in the same direction unless it provides, at a minimum, three feet between the car and the bicycle — there is another important caveat. Subsection D of California Vehicle Code section 21760 states:

(d) “If a driver is unable to pass with three feet of distance due to traffic or roadway conditions, the driver shall slow to a speed that is reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle, taking into account the size and speed of the motor vehicle and bicycle, traffic conditions, weather, visibility, and surface and width of the highway.”

The language of subsection D appears to give some discretion to officers stopping motorists for passing too closely and to drivers when deciding whether to pass a bicyclist. Ultimately, this language also gives judges discretion in issuing fines, should a driver contest the violation.

In addition to an infraction, a violation of California Vehicle Code section 21760 may carry additional ramifications that drivers may not anticipate. For example, if a driver hits and injures a bicyclist in violation of California Vehicle Code section 21760, the driver can be found to be, “negligent per se,” in a civil lawsuit.

Negligence per se is a legal doctrine establishing a presumption of negligence for a violation of a statute, ordinance or regulation. If a defendant in a civil lawsuit is found to have violated a statute, the violation caused the type of harm the statute was designed to protect, and the plaintiff is of the class of people the statute was designed to protect, then the defendant is considered negligent per se. In other words, as a matter of law and as applicable here, a defendant driver who violated California Vehicle Code section 21760 — thereby causing bodily injuries to a bicyclist — could be considered negligent and liable for those injuries and the resulting damages.

So, what can drivers do to ensure they are maintaining at least three feet from bicyclists and to avoid a violation of California Vehicle Code section 21760? Most importantly, if in doubt, drivers should assume they are too close to a bicyclist. Remember, the act provides the minimum distance from a bicyclist that a driver must maintain, but there are certainly situations where three feet is simply not enough space.

Drivers should consider the amount of time it takes to bring a car to a complete stop to avoid hitting a bicyclist. When passing, drivers should consider changing lanes rather than attempting to sneak past bicyclists. And remember, drivers can only pass a bicyclist when it is safe to do so, and risking a bicyclist’s life to save a few extra minutes during one’s commute is never a risk worth taking.

Finally, what can bicyclists do to ensure a safe distance around them? Bicyclists should always make sure they are visible and should never assume a driver will maintain a three-foot minimum distance.

While the act puts the burden on the driver to maintain the three-foot buffer, bicyclists should always make sure to monitor the distance and avoid careless, distracted or inexperienced drivers. Bicyclists can even wear a “Three Feet” bike jersey to remind drivers of the distance requirement. It just may save a life and get the bicyclist some compliments in the process!

 

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What is the Family First Coronavirus Response Act (FFCRA), Exactly?

Written By: Christopher B. Dolan and Kimberly E. Levy

Danny T. writes:

Q: “My wife and I both work. We have two young children. We just got word that our kids would be in distance learning for the beginning of the school year, maybe longer. We cannot afford to have either of us out of work while we homeschool our kids. We are worried that our kids won’t get the education they need because we have to work to make ends meet. Is there any help available?”

 A: Dear Danny T.,
During these uncertain times, many families find themselves in an incredibly difficult position without a safety net. Parents are forced to balance two critical needs:

  1. providing for their families and
  2. helping their children receive a quality education through active participation in distance learning.

Fortunately, there is some support available to help families negatively impacted by school closures and unavailability of childcare. On April 1, 2020, the Family First Coronavirus Response Act (FFCRA) took effect. The Act consists of two major components: 

  1. Expansion of the Family Medical Leave Act (FMLA) until the end of December 2020, to cover leave and loss of income when an employee needs to care for children because of school or childcare closures and other leave related to COVID-19; and,
  2. Establishment of the Emergency Paid Sick Leave Act which requires employers to pay an employee up to 80 hours (two weeks) of sick leave at a rate of two-thirds their normal rate of pay if the employee is unable to work due to COVID-19 related childcare needs.

Who is Eligible for Paid FMLA Leave?

Under the expansion, FMLA leave may be used to care for a minor child whose school or care provider is closed or unavailable due to COVID-19. In order to qualify, the employee must be the minor child’s parent (biological or adoptive), foster parent, legal guardian, or standing in loco parentis (a legal status). Additionally, the employee must have been employed for at least 30 calendar days. 

While typically paid leave is available to employees of companies with 50 or more employees, expanded FFCRA paid leave applies to all employers, unless subject to an exemption. Benefits under the expanded FMLA are available to teleworking employees as well as those working outside of the home.

What Benefits are Available under the Expanded FMLA?

The first two weeks of leave are unpaid, although the time may be covered by the Emergency Paid Sick Leave Act or other paid time off options already available through the employer. After the initial waiting period, the employer must pay the employee two-thirds of the employee’s normal rate of pay, up to a maximum of $200.00 per day for 10 weeks ($10,000). 

FMLA leave may be taken intermittently, allowing an employee to work part-time and care for their child(ren) part-time.
For example, if the employee/parent only needs to take 2-4 hours of leave per day, this arrangement is permissible under the act. 

The expanded act also requires employers to reinstate employees to their original position upon return from leave, with some exceptions for employers with fewer than 25 employees. For those smaller employers, reinstatement is required unless the position was eliminated due to economic conditions related to COVID-19. Those employers, however, must make efforts to reinstate the employee in an equivalent position.

 When electing to use FMLA leave, employees should give their employer as much notice as possible if the need for leave is known about in advance. To learn more about your rights under the FFCRA, click here. 

In addition to the federal protections provided by FFCRA, California recently passed the Workforce Innovation and Opportunity Act which provides funds to assist workers impacted by COVID-19. Under this act, Statewide Worker Supportive Services provides funding to underserved populations to help workers to pay for childcare, housing, utilities, and transportation.
There are two tiers of eligibility:

  1. Individuals receiving at least 50 percent of their previous wages either from their employer directly or Unemployment Insurance (UI) benefit payments may receive supportive services totaling $400.
  2. Individuals who are not receiving at least 50 percent of their wages from their employer directly or through UI benefit payments may receive supportive services totaling $800.

This program is administered through the local Workforce Development Board. To search for the closest board, click here. 

If you believe you were unlawfully denied paid leave or were terminated because you requested it, an employment attorney may be able to assist you. 

 —

Christopher B. Dolan is the owner of the Dolan Law Firm. Kimberly E. Levy is a senior associate attorney in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

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New protections for S.F employees tested for COVID-19 on the job

Written By: Vanessa C. Deniston and Christopher B. Dolan

This week’s question comes from Mason H. who writes:

Q: “I am currently employed by a private company doing contracted work repairing roadways. I am considered an essential worker in California. As the sole breadwinner in my family, I am truly grateful to have steady work and I would never want to put my job in jeopardy. Lately, my manager has been encouraging everyone on my crew to get tested for COVID-19. I feel just fine, but I want to get tested as I am exposed to others on a daily basis. I am worried if I test positive for some reason that will give them cause to fire me. Should I be worried?”

A: Dear Mason, In this strange and challenging new economic reality, I completely understand your instinct to protect your job at all costs. Essential workers like you have to weigh economic survival against their own physical health and family’s safety. Given the ever-changing landscape of the virus and its effect on the economy, many employees are unclear about their rights and many employers are uncertain about their obligations. This can lead to irrational decision-making fueled by panic or fear.

Thankfully, the city of San Francisco has stepped up to address the problem and provide clarity. The City has drafted and introduced a new ordinance that offers special job protections for essential workers like you with respect to COVID-19 testing. The proposed ordinance would make it illegal for an employer to fire, threaten to fire, demote, suspend, discipline, reduce employee benefits or in any way discriminate against individuals who receive a positive COVID-19 test, show symptoms of the virus, or make a decision to quarantine after being exposed to the virus. Employers would not be able to question employees who do not appear ill about whether they have medical conditions that would make them more vulnerable to the virus. Though, employers could request medical exams for incoming employees as long as the policy is applied to all applicants.

These protections would also be extended to job seekers in San Francisco. Under the proposed new ordinance, employers could not ask applicants to be tested for the virus before extending job offers and could not rescind a job offer if the applicant test positive. Employers would be required to make reasonable accommodations for individuals who test positive for the virus or quarantine after suspected exposure.

This proposed legislation, should be signed into law, is a significant expansion of employee rights in San Francisco; previously, employees eligible for certain benefits through their employer (i.e. medical leave) could avail themselves from legal remedies. That is why this new proposed ordinance is vital for essential workers who have already used up their benefits or who never had them in the first place. It should be noted, however, the law would apply only to employers in San Francisco.

California employees outside of San Francisco must still look into the California Family Rights Act and the Americans with Disabilities Act for leave guidelines. Employees outside of San Francisco should also review their current city ordinances, as many cities across California have established their own additional protections for employees in light of COVID-19.

COVID-19 has handed employers a compelling “good faith business reason” for mass layoffs as they are struggling to stay afloat financially amid statewide closures. Many employers, however, are using the virus as an excuse to discriminate against and fire employees who test positive for the virus or elect to quarantine at home as a result of exposure. Such employers often claim they are “restructuring” or “downsizing” in light of statewide shutdowns. In such cases, the true reason, whether it be the fear of a potentially infected employee spreading the virus to others or a general unwillingness to accommodate employees that wish to err on the side of personal safety, is not always easy to establish from an evidentiary standpoint. The new ordinance, however, heightens the scrutiny on employers terminating essential workers and gives employees broader protections.

Many employees may still be skeptical about how The City actually will enforce this ordinance (if passed) and hold employers accountable. Under the law, the San Francisco Office of Labor Standards Enforcement would be tasked with investigating reported violations and would have the power to award certain remedies to affected employees, such as lost wages and job reinstatement. Civil penalties would be imposed on employers who violate the ordinance, ranging from $1,000 to $10,000+ depending on the number of violations committed, including a single violation of $1,000. Such penalties would only serve as a deterrent if employees consistently report suspected violations and the Office of Labor Standards Enforcement follows through on imposing penalties and awarding remedies.

If you believe you have been retaliated against or terminated because you tested positive for COVID-19 or because you elected to quarantine at home after suspected exposure, an employment attorney can assist you in reporting the violation to the San Francisco Office of Labor Standards and Enforcement and possibly pursue additional civil remedies on your behalf.

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