Employers: Requiring COVID-19 Vaccination

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

This week’s question comes from Giuseppe J. in Orinda: I run a small business. Having survived the worst of this pandemic, I am reopening my store soon. Some of my staff have received the COVID-19 vaccination, but not all of them. For the safety of all of the employees, and to protect the public and selfishly, my own potential liability and health, I would like to require all of my employees to be vaccinated in order to return to the worksite. Is that something that I can do without breaking the law? 

Dear Giuseppe: Thank you for this important question. As vaccines become widely available and more businesses are reopening, this question will affect employees and business owners throughout California. Generally, pursuant to both federal Equal Employment Opportunity Commission (EEOC) guidance, as well as the California Department of Fair Employment and Housing (DFEH), an employer may require an FDA approved COVID-19 vaccine as a condition of employment or return to the workplace. However, there are several areas to pay special attention to and/or which may allow an exemption to individual employees.

Disability Accommodation

A qualified individual with a disability may be entitled to an exemption from an employer required vaccine policy. The FEHA requires employers to make reasonable accommodations to an employees’ known disabilities. If an employee objects to vaccination on a disability related basis, the employer must engage in an interactive process to reasonably accommodate the employee. If an accommodation is available that does not create an undue hardship on the employer, it must be provided to the disabled employee. However, if the employee cannot perform the essential functions of their position in a manner that doesn’t endanger the health or safety of others, even with reasonable accommodations, the employer may exclude the employee from the workplace. 

Religious Accommodation

If an employee objects to vaccination on the basis of a sincerely held religious belief or practice, the employer must reasonably accommodate the employee. The accommodation analysis is not as stringent as with disability. Unless specifically requested by the employee, a religious based accommodation is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public. If the employer shows that an accommodation imposes an undue hardship, the employer may exclude the employee from the workplace. 

But I Don’t Trust the Vaccine — Employee Refusal 

Some people are afraid of, or uncomfortable getting the vaccine. If an employee refuses to be vaccinated with an FDA-approved COVID-19 vaccine but does not have a disability reason or sincerely held religious reason for not being vaccinated, the employer does not have to accommodate that employee. The employee may be refused access to the worksite. 

Employer Inquiry

As part of returning to work, employers may seek limited medical information. Employers may generally ask their employees entering a workplace whether they are experiencing COVID-19 symptoms and/or require proof of vaccination.

Requesting proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination since there are other unprotected reasons a person may not be vaccinated.  However, because such documentation could potentially include disability related medical information, an employer should specifically omit any other medical information from that documentation.  Importantly, if a mandatory vaccine policy is enacted at a workplace, information obtained would be considered a confidential medical record and that information must be kept private and maintained separately from regular personnel files.

The scope of permissible inquiry may change over time.  As cases decrease or increase, these standards could change — employers should rely on the CDC and other public health authorities for guidance.

If you would like further guidance as to the DFEH or EEOC, the following links may be helpful.

Thank you, Giuseppe, for the opportunity to discuss this important and emerging legal issue.

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How to Safely Reopen Schools During COVID-19

Written By Christopher B. Dolan and Allison L. Stone

Most of California’s approximately 6 million students, grades K-12, have not been in the classroom since March of 2020 due to COVID-19.  Indeed, Governor Newsom has come under significant pressure to get California’s public schools open. Everyone – teachers, parents, and students alike – are eager to get students back to in-person school as soon as possible. There is little dispute about that. The question is: How do we do this safely? 

Many teachers are still not vaccinated. The strong California teachers’ unions have maintained that teachers getting vaccinated is necessary to reopen schools. However, Governor Newsom and other lawmakers disagree.

Similarly, guidance from the Centers for Disease Control and Prevention (CDC), does not require that all teachers be vaccinated to reopen schools. Rather, the CDC advises that schools can safely open for some in-person learning, even with moderate levels of virus transmission in the community, by following other safety measures including wearing masks, maintaining physical distance, keeping smaller class sizes, providing personal protective equipment to schools, and increasing availability of testing facilities.

With that said, the CDC has asserted that teachers and school staff should be included in phase 1b of vaccination programs along with frontline workers and those age 75 or older. Likewise, on March 2nd President Biden announced that he was directing all states to prioritize teachers, staff and childcare workers for the COVID-19 vaccination, with the goal of them obtaining their first shots by the end of March. 

However, states ultimately make the decision on what groups are prioritized for receiving the COVID-19 vaccine, and every state is handling this CDC guidance differently. Teachers and other school staff members are on many state priority lists, but certainly not all of them. As of the beginning of March 2021, the available data suggests that some or all teachers are eligible to receive the vaccine in only 34 states, the District of Columbia, and Puerto Rico. This has left many teachers across the country feeling abandoned, undervalued, and demoralized by the vaccine rollout. 

Recently, groups of parents in California have been demanding that schools reopen without delay. Based on the CDC’s guidance, various school districts throughout California are eagerly working on plans to bring students back into classrooms. 

However, teachers’ unions have said that teachers are simply not comfortable returning to school buildings until they are fully vaccinated. Furthermore, continued research on how children respond to the vaccine is needed and it will still be quite some time before many students can get vaccinated. The risk to teachers may be even greater for teachers of younger students that neither understand social distancing nor understand the need to keep masks on. The lack of vaccines for younger children is therefore a serious consideration for many teachers faced with the question of when it will be safe to return to in person learning. Teachers are dying from COVID-19 in states that have hastily reopened.  Thus, some unions—including in California—contend that even after teachers and staff are vaccinated, virus transmission must decrease to ensure a safe return to in-person teaching.  Importantly, no matter how much we all want to reopen schools, California has limited power to do so unless unions agree. 

Research shows that not just teachers, but also many parents in California are extremely concerned about a hasty reopening. To date, Governor Newsom has not stated whether he would consider forcing schools to reopen or using his emergency powers to suspend local bargaining. 

As of March 8th, San Francisco officials plan to reopen classrooms for younger students starting April 12, under a tentative agreement reached with the teacher’s union. The agreement was announced after months of debating how and when children and teachers could safely return to in-person school. It is still unclear how many of the district’s students will be able to return to in-person school before the end of the school year in June. 

As of March 9th, after eight months of negotiation, Los Angeles Unified School District and its teachers’ union reached a tentative deal to reopen in-person instruction starting in mid-April. This agreement is subject to approval by the LAUSD school board and ratification of the membership of the union, United Teachers Los Angeles. 

Unfortunately, there is simply no quick fix as to when and how to safely reopen schools. While the path to reopening schools continues to be anything but clear, the good news is that on March 11th, President Biden promised rapid vaccination progress, stating that all adult Americans will be eligible for the vaccine by May 1st and announced the launch of a national website to facilitate those vaccinations.

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Can You Post Pictures of Someone on Social Media Without Their Consent?

Written By: Christopher B. Dolan and Matthew D. Gramly

Tony from Belvedere asks: Do I have any right to privacy if others use photos of me that I posted online to social media or for other purposes since it’s without my permission?

Dear Tony: This is an interesting question, and one that evolves in the age of Facebook, Twitter, Tik Tok and other social media sites that people use to post photos and videos of themselves, their families and friends. Once you post a photo or video of yourself online, do you still own it? Do you still have any control over it? Can you stop others from using your photos and videos if they don’t have your permission to use them?  

There is a case out of San Diego, a lawsuit that was filed last month, which can provide some real-time insight into these issues. In June 2020 a woman named Amber Lynn Gilles went into a Starbucks location to get some coffee. She was not wearing a mask and refused to put one on while inside the store. The barista who was serving her, Lenin Gutierrez, explained the store’s mask policy to her and politely told her that he could not serve her unless she put on a mask. She again refused, threw a fit, called the employees and other customers, “Sheep!” and other derogatory names and then left the store in a huff without a coffee.

Later, Ms. Gilles put up a post on her public Facebook page which included a photo of Mr. Gutierrez with a caption that misspells the barista’s name, “Meet lenen [sic] from Starbucks who refused to serve me cause I’m not wearing a mask. Next time I will wait for cops and bring medical exemption.” She attempted to publicly shame the Starbucks employee with her Facebook post. That plan backfired spectacularly.

While Ms. Gilles’ Facebook post did go viral, it inspired a man named Matt Cowan, who had never met Mr. Gutierrez, to start a GoFundMe page for Mr. Gutierrez’s benefit. Mr. Cowan wrote on the Go Fund Me page that it was for the benefit of a local barista’s, “honorable effort standing his ground when faced with a Karen in the wild.” The name “Karen” has morphed into pejorative vernacular denoting a typically white, suburban, entitled female who throws a very public and energetic tantrum beyond the scope of what might be construed as normal. Mr. Cowan’s Go Fund Me page also went viral and it eventually raised over $100,000 for the Starbucks barista, who received all of the money minus taxes owed.

Ms. Gilles was upset that so much money was raised for the Starbucks’ barista. She demanded half of the money because, after all, there would not have been a Go Fund Me for the benefit of Mr. Gutierrez without her. Her demand for money was refused, so she filed a lawsuit against Mr. Cowan, the person who started the Go Fund Me page. Part of her lawsuit stems from the fact that Mr. Cowan had included a screenshot of Ms. Gilles’ Facebook post in the Go Fund Me page.

In her lawsuit Ms. Gilles claims that Mr. Cowan had misappropriated the screenshot of her Facebook page and that he then used the image without permission and for the purpose of publicly painting her in a negative light, which she alleges is an invasion of her right to privacy. Amusingly, both parties to the lawsuit turned to Go Fund Me to crowd source their legal fees. Ms. Gilles has raised $6,000 while Mr. Cowan has raised $14,000 using the headline, “Help, I’m being sued by a Karen.”  

These facts raise several issues ranging from Ms. Gilles’ purported right to privacy in a public Facebook post to Mr. Cowan’s First Amendment right to freedom of speech in posting to a Go Fund Me page about Mr. Gutierrez’s plight. Noting that Ms. Gilles’ lawsuit is subject to being dismissed pursuant to an Anti-SLAPP motion (a mechanism in the law designed to prevent people from being sued for speaking out on issues of public concern or significance), Eric Goldman, a professor at Santa Clara University School of Law, balances the rights of each party to this lawsuit: “The publicity rights are limited by the First Amendment and I think that the First Amendment ought to apply here.” Goldman goes on to suggest that Ms. Gilles will lose her lawsuit: “I really think it will be an easy case. That there was no way to tell the barista’s story without talking about what happened.”  So it seems clear that in this case, Ms. Gilles will not be successful in claiming a right to privacy in a public Facebook post about the same issues that Mr. Cowan posted about on his Go Fund Me page.

As an aside, Ms. Gilles also recently sued San Diego grocery store Sprouts for refusing service to her while she refused to wear a mask, claiming a mask exemption through the Americans with Disabilities Act. Dismissal of that case for failure to serve the Defendant is imminent.

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California Court of Appeals Finds Amazon May Be Held Liable for Injuries Caused by Dangerous Products Sold on Amazon

CHIEF LEGAL COUNSEL CHRISTOPHER DOLAN, ATTORNEY FOR THE PLAINTIFF, CALLED THE DECISION “A MAJOR VICTORY FOR CONSUMERS THROUGHOUT THE STATE.

In a landmark decision affecting hundreds of millions of Amazon customers, on April 26, 2021, the California Appellate Court ruled that Amazon can be held liable for injuries caused by defective products sold through Amazon.com.

In the case of Loomis v. Amazon.com LLC, The California Court of Appeals, Second Appellate Division ruled that Amazon can be held liable for injuries caused by an exploding hoverboard, manufactured in China, which was purchased on Amazon.com and shipped directly from the manufacturer to the Amazon shopper. San Francisco attorney Christopher Dolan, who represents the plaintiff and argued the appeal, called the ruling “a major victory” for consumers throughout the state.

“Amazon can’t escape liability for defective products it sells to its customers by claiming it is not involved in the marketing, sale and distribution of goods and is just an ‘advertiser,’” he said. “To claim otherwise is just a plain lie.”

In his successful appeal, Dolan argued that Amazon, just like the brick and mortar stores it has put out of business, gets paid a percentage of the sales price on every product sold along with listing fees, handling fees, return fees, etc. “If this hoverboard had been sold at a local mom-and-pop sporting goods store, they could be held liable for the injuries caused by its defects,” he said. “Amazon shouldn’t’get a pass by claiming that they are just a ‘digital matchmaker.’”

The case originated after a consumer purchased a hoverboard that exploded in her home, causing her severe injuries and extensive damage to her home. Kisha Loomis, a resident of Oroville, California, bought her son the hot toy of the season on Amazon in December of 2015. The hoverboard was manufactured by the SmileTo Company in China and sold under the pseudonym TurnUpUp, through Amazon. Before purchas-ing the item, Ms. Loomis had searched Amazon.com for hoverboards, reviewed the selections displayed by its algorithms, and read the ratings and reviews.

Ms. Loomis’ purchase was one of over 380,000 such hoverboards sold by Amazon in Q4 of 2015. Before the product had shipped, and unbeknownst to Ms. Loomis, Amazon had been tracking the growing incidence of hoverboard battery fires and had taken down all hoverboard listings because of concerns for fire danger in the USA and UK. Despite this knowledge, the company allowed the product to be shipped from China to Ms. Loomis and failed to warn her of the danger. It was opened by her son on Christmas and, after less than a week of use, it exploded while charging in a bedroom. Ms. Loomis was severely burned by the rocket-like battery explosion as she attempted to throw the burning toy from her home. The Chinese manufacturer, SmileTo, as well as its U.S. Distributor, Forrnix Technologies, had gone out of business, leaving only Amazon to be held accountable for the injuries to Ms. Loomis and the damages to her home. Amazon persuaded a Los Angeles judge that it was not a seller of products and that it was merely an “online advertiser” and had the case dismissed. Dolan filed an appeal, arguing that the law needed to keep up with the changing digital marketplace and that online retailers, just like brick-and-mortar stores, were an integral part of the marketing, distribution and sales of products and should be held to the same legal standards. The Court of Appeals agreed, stating,

“Amazon thus must face strict liability for Loomis’s fiery encounter with the hoverboard she bought from Amazon’s site. Imposing this duty on Amazon creates financial incentives that back up Amazon’s good words about its concern for customer safety.”

Ms. Loomis, upon hearing the decision stated:

“This restores my faith in the belief that even a single person like myself, through the courts, can get justice and make a difference in this world where we feel overwhelmed by the thought of fighting a Giant like Amazon. I hope this makes the world a safer place so no one else has to go through what my family went through.”

Dolan heralded the decision. “This case will set precedent not only in California but, hopefully, throughout the nation, and it forces Amazon to make sure the products it sells are safe, something it should be doing already,” he said. The case will now be sent back to the LA Superior Court where discovery will continue; a trial date is expected to be set in 2022. Christopher Dolan is available for immediate interviews about the case.
You may reach him at 415-421-2800 or chris@dolanlawfirm.com

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Mass Shootings and the Impact of Biden’s Executive Actions on California

Written By: Christopher B. Dolan and Katelyn P. Dembowski 

Tess from San Francisco asks: President Biden just announced new executive actions on gun control. What do these actions mean? Isn’t Congress supposed to make these laws? How will this impact gun laws in California? 

Dear Tess: These are really pressing questions. As the number of distributed COVID-19 vaccines has surpassed 183 million, we have seen many parts of the country, and California, return to normalcy. Yet with guidelines softening and the pandemic coming to a close, we have found ourselves facing another epidemic: a resurgence of mass shootings and gun violence. 

President Biden’s Executive Actions

On April 8, 2021, President Biden announced a series of executive actions he would be taking to curb gun violence after two mass shootings in Georgia and Colorado left 18 people dead. The executive actions are only small steps towards a bigger goal for the Biden Administration. Aggressive and comprehensive federal regulations, like an assault weapons ban, strengthening background checks, and removing liability immunity from gun manufacturers are still in the hands of Congress. For now, President Biden has laid out the following actions, among others, that his administration will be taking:

  1. The Justice Department will issue a proposed rule to help stop the proliferation of “ghost guns.” 

Ghost guns are firearms that are assembled from kits, usually without any serial numbers, that cannot be traced. According to Everytown for Gun Safety, such firearms are easy to assemble and comparatively inexpensive: an AR-15 build kit costs as little as $345. The use of ghost guns has increased exponentially in places with strict gun laws like California. The Justice Department will issue a proposed rule within the next month that subjects buyers to background checks and requires the components to have serial numbers that allow them to be traced.

  1. The Justice Department will issue a proposed rule to make clear when a device marketed as a stabilizing brace will be subject to the requirements of the National Firearms Act. 

On March 22, 2021, an armed assailant walked into a King Soopers supermarket in Boulder, Colorado and killed ten people. The shooter was using an AR-556 semi-automatic pistol with a stabilizing brace, making the gun more stable, accurate, and more like a rifle. President Biden’s order will make these stabilizing braces subject to the National Firearms Act, requiring registration with the federal government and a $200 fee. 

  1. The Justice Department will publish model “red flag” legislation for states. 

“Red flag” laws permit police officers and family members to petition a state court to order the temporary removal of firearms from a person who they believe may present a danger to others or themselves. A 2016 study by Law and Contemporary Problems analyzed data from 762 guns removed under Connecticut’s “red flag” law, finding that for every ten to eleven guns seized, there was one averted suicide. “Red flag” laws used in other states could potentially mitigate some gun violence. 

For a comprehensive list of President Biden’s actions, please see the White House Fact Sheet. 

Congress’s Role 

While President Biden’s executive actions will offer federal rules and guidelines for the states to follow, Congress will have to pass any meaningful gun control legislation. In 1994, Congress enacted the U.S. Assault Weapons Ban of 1994. The law put a ten year ban on the manufacture of semi-automatic firearms for civilian use as well as “large capacity” ammunition magazines. The ban expired in 2004 under President Bush. 

A new bill introduced last week would have a similar effect. The Assault Weapons Ban of 2021, introduced by Representative Cicilline, RI and Senator Feinstein, CA will prohibit the sale, manufacture, transfer, and importation of 205 “military-style assault weapons” and magazines that hold more than 10 rounds of ammunition. This bill does not affect guns already in possession of gun owners and it exempts more than 2,200 types of firearms for hunting, household defense and recreational purposes. Democrats in Congress are adamant about passing gun control legislation while acknowledging rights under the 2nd Amendment. “We have to respect people who are gun owners.” stated Rep. Cicilline, “We have a right, too, to ensure that people can live a life free from gun violence.” 

Should this bill pass both the House and the Senate, President Biden would sign it and it would become a national law. 

Impact on California 

California has some of the strictest gun laws in the country. California already requires universal background checks for all gun sales, limits ammunition magazines to 10 rounds, requires a 10-day waiting period before a buyer can take possession of a firearm and banned military-style weapons decades ago. California further requires gun owners to store guns unloaded and in places not accessible by children or adults prohibited from possessing a gun.  

President Biden’s executive actions will change very little about gun regulation in California. Many of the actions he announced are already law in the state, including a “red flag” law, ammunition limits, waiting periods, rifle regulations, and handgun safety training. However, ghost guns have been linked to many shootings in California because of the more stringent gun laws. There is hope that the proposed federal rule will help decrease the circulation and use of ghost guns in California. 

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Dolan Law Firm Statement on the Verdict in the Derek Chauvin Trial for the Death of George Floyd

Dolan Law Firm applauds the courage of the jury in the case of the People v. Derek Chauvin in holding former Minneapolis police officer,  Derek Chauvin guilty of second degree murder while committing a felony, third degree murder, and second degree manslaughter. Communities around the globe, and within our office, breathed a sigh of relief to see Chauvin held accountable for a crime the world watched him commit on video countless times in the last 330 days. 

We commend the witnesses who testified, particularly Darnella Frazier, who at 17-years-old,  bravely documented the horrific incident unfolding. We can only hope that people around the country will continue to have the courage as Darnella did to do something when they see something wrong. 

While this verdict is one step closer to holding Derek Chauvin accountable for the murder of George Floyd, justice has not been served. This verdict is about holding law enforcement accountable for their lethal excessive use of force.

“Yesterday’s verdict is not justice,” Dolan Law Firm Founder Chris Dolan stated, “George Floyd should be alive today.  This righteous verdict is, unfortunately, an exception, not the norm.  It shows that the only way to get justice and overcome the well polished, and often dishonest, defense strategy claiming that excessive, often deadly, force, was justified by the imminent threat of harm to officers making split-second decisions is to have nine minutes of video of a man being suffocated by an officer as he begs for his life and calls for his mother. Even then, as we saw in Chauvin’s trial, the police say that jurors should trust the officers’ lies and disregard what they see with their own eyes. This case shows the importance of bystanders becoming witnesses and preserving the truth through video. We reaffirm our commitment to end systemic racism and we will continue to fight alongside our Black brothers and sisters in the pursuit of justice every day.”

File Photo (Reuters): Protestors in Minneapolis

We stand in solidarity with George Floyd’s family, BIPOC communities around the world, and with the people of Minnesota.

 

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Reckless Driving during COVID-19

Written By: Christopher B. Dolan and Megan Irish

Kara from San Francisco writes:
I’m so frustrated by the attitudes of drivers on the road these days, what are people thinking? It seems like people are zooming past, zigzagging in and out of the lanes, and just going too fast. Don’t people know it’s dangerous to drive like that?

Dear Kara: You are right and the statistics are supporting your observations. People are driving faster and more erratically. Following several years of declining fatalities, the pandemic has killed in more ways than just the virus. When people were ordered to stay at home and shelter in place, many did.

Overall, the National Safety Council’s numbers are on target to show that 13% less miles were driven in 2020 as compared to 2019; that is clear evidence of many Californians’ abiding by the stay-at-home orders. Nonetheless, despite fewer miles driven, more people died in car crashes in 2020 than in 2019.

How is this possible? The simple answer is speeding.

Nationally there were 42,060 traffic collision deaths in 2020 as compared to 39,107 in 2019. Only nine states had fewer deaths in 2020 than in 2019. Of the over 42,000 deaths in the United States, 3,723 of these deaths occurred on California roadways. Many of these lives were lost due to reckless driving and speeding.

The National Safety Council tracks collisions on a national level and breaks down the collisions by state. The California Highway Patrol, Office of Traffic Safety, also tracks traffic collisions within California and analyzes how and why collisions occurred.

Unfortunately, with fewer cars on the roadway, it seems some drivers saw the less crowded roadway as an invitation to speed. Many of those who decided to drive recklessly caused severe collisions with fatalities to themselves and/or others.

Law enforcement made efforts to ticket bad actors, and anecdotally police have related that they stopped more speeders and issued more speeding tickets in 2020 than in years past, but they were unable to stop everyone. For a “standard” speeding ticket, drivers can get a point on their driver’s license and often they can go to traffic school.

But, when a driver is more than a few miles over the speed limit, or has other aggravating factors such as alcohol and driving under the influence, a driver’s actions can be considered “reckless.” California Vehicle Code Section 23103 defines reckless driving as “a person who drives a vehicle upon a highway in a willful or wanton disregard for the safety of persons or property.”

There are severe consequences for reckless driving that will impact a person’s life and finances. For instance, a driver can be sentenced to serve between five and 90 days in county jail. The fines can be up to $1,000 (CVC 23103(c)), and a conviction would also get them two points on their DMV record.

A reckless driving conviction will also drive up drivers’ insurance premiums and their car can be impounded. Retrieving an impounded car is expensive, as some impound yards charge as much as a $125 for the tow, a hundred or more in “release fees” and daily storage fees on top of that. Additionally, a driver’s license can be revoked by the DMV for up to six months, which would interfere with a person’s commute to work, and obligations to family members. Choosing to violate the suspended license would have a whole host of other severe consequences.

The reckless driving charge can be charged as a felony if it causes bodily injury. In addition to the monetary consequence of fines, court fees and increased insurance premiums, such a conviction can lead to anywhere from 16 months to three years in prison. Even if a driver only gets set with a misdemeanor, it will show up on background checks, and can deter a future employer from selecting them for a new job. Reckless driving can have severe and lasting consequences for a driver.

Separate and apart from reckless driving, there is “excessive speeding” which is driving at over 100 mph. Excessive speed can be an infraction under CVC 22348(b) and carries fines up to up to $500. If a driver is going over 30 mph above the freeway speed, or 20 mph on a roadway it can also be a criminal offense. Excessive speeding fines range from $900 for first time offenders to $4,190 for repeat offenders.

A driver’s license can be revoked from 30 days for a first-time offense, or up to a year for repeat offenders. As well, there can be two points added to a driver’s record with the Department of Motor Vehicles and increased insurance premiums.

With all of this one would think that responsible driving should be the rule, not the exception, and yet it often is not. Be safe out there.

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Parents Rights on Children Education during COVID-19

Written by Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Sunny:

Dear Mr. Dolan: I am a mother that lives in San Francisco and I have two children. My son is in seventh grade and my daughter is in high school. Both my husband and I work full-time, and my husband is required to go into his office. My employer has allowed employees to work remotely since the pandemic began. While I appreciate the hard work teachers have put into their instruction during this pandemic, both my children are falling behind and having issues emotionally with being confined to a tiny home. Early on, my son had an IEP (Individualized Education Plan) that then became a 504. (A 504 plan provides services and changes to learning environments to let students with a disability learn alongside peers.) My son has transitioned out of the 504, but now his issues have returned, and are worse. I am exhausted trying to work, help my kids learn and maintain any sanity. I read recently that we will transition soon back to full-time instruction in California, yet I am not getting a clear picture from our school district. The possible return makes me both excited and nervous. I am rambling, but I guess my question is, what are our rights as parents to our children’s education?

Dear Sunny: I am so sorry to hear that your children are struggling. The 2020-21 school year has been a challenging time for parents and working parents. Your question, although it seems simple, is quite complicated. We found ourselves trying to juggle a pandemic and our children’s educational instruction. California has been a hotbed for COVID infections and has endured complete stay-at-home orders and modified stay-at-home orders, which frequently vary between counties. Both private and public schools have sought educational waivers to reopen under state guidelines issued by the California Department of Public Health. While private schools have been granted waivers, the public school system seems to be taking longer to be granted exemptions, and these students have primarily been remote for a year. The staff of our school systems and their unions also has to examine the fact that educators weren’t placed on the first tier of immunizations. Many classrooms did not comply with distance guidelines, and schools didn’t have a plan for outbreak tracking/containment. Getting one student through the different periods in a day became impossible without exposing everyone multiple times a day.

The California Constitution has guaranteed children a free primary and secondary education since 1879 under Article IX, Section 5. The article states:

“The Legislature shall provide for a system of typical school by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.”

Therefore, your children are entitled to a free education which includes computers and materials as needed to be supplied to them under California Education Code Section 43503. But how does one provide a proper education during a worldwide pandemic?

Under the state Education Code 43500, distance learning means instruction in which the pupil and instructor are in different locations and pupils are under the general supervision of a certificated employee of the educational agency. Because of the outbreak, schools were forced to go remote entirely and then attempt a hybrid approach at times for special education.

Parents have struggled with the time dedicated to online courses. I have heard parents complain that courses have either been too much or lack proper support and understanding for complicated subjects such as math and chemistry. Sadly, just as the term “distance learning” is new to the Education Code, the mixture of remote, hybrid, and in-person instruction is something that we had lacked an outline for before this pandemic. Due to health concerns with COVID-19, in-person instruction has been limited because the state guidelines could not be followed in most middle schools and high schools. Elementary schools had more freedom due to the curriculum being primarily based on a single classroom assignment. Many elementary schools have now opened or are scheduled to open, with districts considering what to do with middle-school and high-school students.

The Education Code provides free education; however, it does not dictate how a school district administers a program (whether through remote, hybrid or in-person). In-person instruction becomes even more complicated during a pandemic when IEPs (Individualized Education Programs) and 504 plans are in effect. These students need in-person instruction, sometimes with further accommodations and often cannot progress with complete online instruction.

Sadly, besides providing free instruction, there is very little guidance about mandating in-person education instead of remote learning. We have to look to the state’s opening guidelines and the U.S. Centers for Disease Control and Prevention’s recommendations and try to do the best we can with weighing our children’s emotional and physical health with the value of being in a classroom. I am hopeful that life will return to life, albeit a different one, shortly.

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What you need to know about hate crimes in the Bay Area

Written By: Christopher B. Dolan and Mari Bandoma Callado

This week’s question comes from Lin S. in Oakland who asks: 

Q: It’s been devastating to hear about the increase in anti-Asian hate incidents and violence against the Asian American and Pacific Islander community, including attacks on the elderly and the recent mass shooting in Atlanta. It does not seem like many of these incidents are being charged as a “hate crime.”  What is a “hate crime” under the law? What should I do if I am a victim of a hate crime or if I witness a hate crime? 

A: Thank you for this important concern shared by many. Dolan Law Firm is appalled by the increasing displays of violence and hate targeting Asian Americans and Pacific Islanders (AAPI), including the shootings in Atlanta which left eight dead, six of which were AAPI women, as well as the vicious attacks on elderly AAPI in the SF Bay Area over the last few weeks. Our deepest sympathies go out to the friends and family of the victims of these horrifying acts of violence. See our statement here.

Unfortunately, discrimination and violence against AAPI communities are not new. The United States has a long and well-documented history of discrimination and hate-based incidents against AAPI communities. Since the arrival of Chinese immigrants as laborers in the 1850’s, Asian Americans have always been the subject of racist violence. For example, the Chinese Exclusion Act in 1882 was enacted as Asian immigrants were viewed as threats, Japanese Americans were incarcerated during World War II, Chinese Americans faced persecution during the Cold War McCarthyism of the 1950s, and Asian Muslims and Sikh communities were targeted post-911. At the beginning of the COVID-19 pandemic, elected officials referred to the Coronavirus as the “Chinese virus” or “Kung-Flu,” fueling anti-Asian sentiment. While hate crimes decreased generally, anti-Asian hate incidents surged by nearly 150% in 2020. The targets of violence have disproportionately been older people and women, according to a report published by Stop AAPI Hate.

To answer your question, California Penal Code section 422.55 defines a “hate crime” as “a criminal act committed because of the victim’s actual or perceived disability, gender, nationality, race, or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics.” Hate incidents, on the other hand, involve actions or behavior motivated by hate, but are legally protected by the First Amendment right to freedom of expression. This includes hate speech, which is often intended to intimidate or incite violence or discrimination against certain groups. The U.S. Constitution allows hate speech as long as it does not interfere with the civil rights of others. However, race-based or anti-LGBTQ slurs can be evidence of a hate crime when used during a commission of an underlying crime, such as threats to a person or property.

California Penal Code section 422.6 makes it a stand-alone crime to willfully interfere, by force or threat of violence, with someone else’s civil rights, or knowingly damage or destroy their property because of that person’s actual or perceived protected characteristic(s). There are also related civil remedies under the Ralph Act and Bane Act that can be enforced through the civil courts, as well as other available causes of action, theories of liability, and potential defendants to address the heinous attacks on individuals or groups based on race, national origin, and ethnic background in civil court.

If you are a victim or witness of a hate crime, first and foremost, dial 911 if it is an emergency and get yourself to safety. Second, get medical help if necessary. Third, document any and all details of the crime as soon as you can after the incident. It will be important to note the physical appearance of the perpetrator (e.g., age, height, weight, clothes, gender, race, and other distinguishing characteristics) and to make notes about what happened, including the exact words that were said (e.g., any racial or anti-LGBTQ slurs). If it is safe to do so, save potential evidence by taking photos and by getting the names, phone numbers, and emails of other victims and witnesses. 

To report the incident, contact your local police department and/or the FBI to file a report. Make sure to get the responding officer’s name and badge number, as well as the case number. We also recommend urging the police officer to check the hate/bias-motivation or hate crime/incident box on the police report. It is also important to report the incident to organizations like Stop AAPI Hate, which has been tracking and responding to incidents of hate, violence, harassment, discrimination, etc. against AAPIs since March 2020.

If you feel you have been a victim of a hate crime, contact an attorney immediately to better understand your rights. Dolan Law Firm is committed to representing victims of hate crimes, harassment, and discrimination that are members of the AAPI community and other marginalized communities statewide. 

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Celebrating Cesar Chavez Day 2021

March 31st is Cesar Chavez Day, a holiday in California celebrating his birthday and contributions towards the civil rights movement he fought to benefit society’s most vulnerable populations. He was born on March 31st, 1927 and was an American farmworker, labor leader and civil rights activist who, with Dolores Huerta, co-founded the National Farm Workers Association (which later became the United Farm Workers). Many do not know that the legendary phrase of the Farmworkers’ Movement “Si, Se Puede!” wasn’t coined by Cesar Chavez, but by a woman named Dolores Huerta.

                       Dolores Huerta

Dolores Huerta, born and raised in Stockton CA, left her job as a teacher in the early 1950s and began serving on the leadership of the Stockton Community Service Organization. She founded the Agricultural Workers Association, set up voter registration drives, and pressed local governments for barrio improvements.

In 1955, she met the Executive Director of CSO, Cesar Chavez. They bonded immediately and realized they both had a passion for organizing farm workers. They resigned from CSO and founded the National Farm Workers Association in the spring of 1962.

Dolores Huerta was instrumental in securing aid for dependent families and disability insurance for California farm workers in 1963. She was a crucial advocate for the enactment of the Agricultural Labor Relations Act of 1975. She has received numerous awards for her community service and advocacy, including the Eugene V. Debs Foundation Outstanding American Award, the Presidential Eleanor Roosevelt Award for Human Rights and the Presidential Medal of Freedom, given to her by President Obama in 2012. She was the first Latina inducted into the National Women’s Hall of Fame in 1993.

Dolores Huerta is 90 years old and still advocating for migrant and farm workers’ rights. Californians celebrate Dolores Huerta Day on April 10th.

 

                      Larry Itliong (right)

Larry Itliong was a Filipino-American labor organizer whose story is not as well-known as others but is just as important to our history.

It has been said that Cesar Chavez inspired the world but that Larry Itliong inspired Cesar Chavez. In an era known for civil rights movements, Itliong fought for better working conditions in a country thousands of miles from his homeland of the Philippines.

Larry Itliong, also known as “Seven Fingers,” (the tales vary about how he lost the missing three) first came to the U.S. in 1929 when he was 15, never having slept in a bed or lived in a home with electricity. Soon, during the Great Depression, he joined striking lettuce workers in Washington State; later he would can fish in Alaska and help organize a cannery and agricultural workers’ union, leading his manong “brothers” as they followed the grapes, raisins, brussels sprouts and other crops up and down the spine of California. According to his son, Johnny Itliong, Larry was an excellent card player and avid cigar smoker, spoke numerous Filipino dialects as well as Spanish, Cantonese and Japanese, and taught himself about law by attending trials.

In 1965, Larry Itliong lead a grape strike in Delano that set the stage for the boycott that would lead Cesar Chavez, Dolores Huerta, and thousands of farmworker families to create the nation’s pioneering agricultural labor union, the United Farm Workers.

The historic Delano Grape Strike led by Itliong and the Agricultural Workers Organizing Committee took place on September 8, 1965 and was soon joined by the Chavez-led National Farm Workers Association. Five years later, in 1966, the AWOC and NFWA merged to become the United Farm Workers, forever changing the face of agricultural labor in California.

Itliong spent his life standing up for his belief that “everyone has equal rights and justice, but you have to make that come about.” He died on Feb. 8, 1977, leaving a legacy of activism that inspires us all. Californians celebrate Larry Itliong Day on October 25th.

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