Your Rights When You Are Detained: Do You Really Get A Phone Call?

Detained? No. Arrested and booked? Yes.

If a person is “detained,” the police officer is holding a person for a short amount of time. If a reasonable person would not feel free to leave, or police prevent a person they are questioning from leaving, that detention turns into an arrest. Police take arrestees to a local jail precinct, where they are then booked. In either scenario, the Fifth Amendment right to remain silent applies and should be invoked.

After a person is arrested and booked, they are entitled to phone calls. California Penal Code Section 851.5 provides that arrestees are entitled to three phone calls immediately upon booking except where physically impossible, and no later than three hours after arrest. Arrestees are entitled to make at least three phone calls at no expense if they are within the local calling area and at the arrested person’s own expense (if outside the local calling area). Local calling areas do not necessarily refer to anything within the same area code as the jail. A sign posted near the telephone booth will provide information about what phone numbers are considered local. Collect calling is also an option for making phone calls to a number outside of the local area. Arrestees may call an attorney, a bail bondsman, or any friend or relative.

If the arrestee is a parent with custodial responsibility for a child, then the arrestee has the right to two additional phone calls for the purpose of arranging for the care of a minor child or children during the arrested person’s absence. These phone calls must also be given immediately upon request, or as soon as practicable.

The right to post-booking phone calls is protected by the Fourteenth Amendment of the U.S. Constitution because California Penal Code Section 851.5 creates a liberty interest. Denying arrestees the opportunity to make a telephone call is a civil rights violation. The Fourteenth Amendment guarantees the right to due process, and is particularly protective of the minimal liberty interests granted to prisoners, such as the ability to make a phone call when arrested and booked.

However, this right to phone calls is not without complications.

First, assume that the police will record any phone call made from jail. These phone calls are not private and may be used against you. Police routinely record the outgoing portion of the phone call, so long as that phone call is not with an attorney.

Additionally, know that in practice, police officers have ways to deny phone calls. Here is one trick: A police officer denies an arrestee their constitutional right to a phone call, then entice with the opportunity to sit the arrested person in a waiting room with a television, instead of a holding cell with concrete and metal benches. The catch to get in the waiting room, which has cushioned chairs and a television, instead of the holding cell?: Sign a statement that says the police provided the opportunity to make three phone calls within three hours of booking. If an arrested person asks for clarification since the police did not, in fact, provide the opportunity to make three phone calls, the arrestees returns to the holding cell instead of the waiting room. After several hours, a cushioned chair and a television look better than a metal bench, concrete floor and a toilet within public view of anyone walking through the area.

If the police denies arrestees their constitutionally protected right to phone calls from jail, then there may be a civil cause of action against the police officers. Police officers are not entitled to qualified immunity for this civil rights violation. Qualified immunity purportedly balances the interests in the vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties. The goal is to make it possible for officials to reasonably anticipate when their conduct may give rise to liability for damages.

But qualified immunity does not immunize police officers where the civil right is so clearly established under law that no reasonable officer could have believed that they were not violating a constitutional right.

The right to phone calls after booking is such a right because the statute establishes that police officers do not have discretion to decline phone calls to arrestees, and the consequences for not allowing someone the ability to call family members or an attorney and let them know where they are can be dire.

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What the impact of the Supreme Court’s decision will mean for LGBTQ employees

Written by: Matt Gramly 

On Monday June 15, 2020, the United States Supreme Court handed down a decision stating with firmness and clarity that any employer who fires an employee for being gay or transgendered is in violation of the law. The law being violated in that instance would be the Title VII of the 1964 Civil Rights Act. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” The basic argument is that if an employer has two employees, one male and one female, but only fires the male employee because he dates men, but doesn’t fire the female employee because she dates men, the employer has discriminated against the male employee on the basis of his gender. The employer accepts behavior from the female employee that he does not accept from the male employee and the only difference between the two employees is their gender.

This ruling is monumental for LGBTQ rights. The full complement of anti-discrimination employment protections found within the Civil Rights Act have now been extended to the LGBTQ community across the country. It is now illegal in the United States for any employer to fire an employee on the basis of their sexual orientation or gender identity. Prior to Monday’s decision it was still legal for an employer to do so in 26 states. With Pride celebrations and parades being canceled across the country because of the coronavirus pandemic, it is also fitting that this decision was handed down by the Court during Pride month.

Also of great importance is which Court Justice wrote this opinion. The decision itself was a 6-3 majority with conservatives Chief Justice John Roberts and Trump-appointed Justice Neil Gorsuch joining the Court’s four more liberal members.  The forceful, no-nonsense opinion was written by Justice Gorsuch in very clear language leaving no ambiguity to the Court’s decision.

An immediate backlash formed on the right in this country. Many religious conservatives decried the ruling as an attack on religious freedom. Evangelical leader Franklin Graham issued a fiery response to the ruling on Facebook, stating, “I believe this decision erodes religious freedoms across this country. People of sincere faith who stand on God’s Word as their foundation for life should never be forced by the government to compromise their religious beliefs. These are the freedoms our nation was founded on.”  He is arguing that his religious freedom is negatively impacted and should be prevented from firing someone from his church for being gay or transgender. The law now disagrees with him.

His argument strikes at a fundamental misunderstanding of the term “religious freedom” specifically as used by someone like Mr. Graham. Religious freedom means the freedom to practice whatever religion you choose. It also means, as stated in the First Amendment, that the government cannot force you to practice any particular religion against your will. For example, “I cannot do something because it goes against my religious beliefs,” is a perfectly distilled illustration of this. However, “YOU cannot do something because it goes against MY religious beliefs,” the position taken by Mr. Graham, is twisting the concept of religious freedom to a degree that is both unacceptable in this country and is in violation of the ideals of individual freedom embodied by our Constitution and Bill of Rights, as affirmed Monday by the Supreme Court. Very often, those who use the term “religious freedom” the loudest and most frequently leave off the two words that actually define this idea for them, “religious freedom to discriminate.”

Many take the position that their religious freedom, their freedom to BE a religious person and to practice their religion in the United States, is being destroyed because they will no longer be permitted to discriminate against members of the LGBTQ community in their hiring practices. Understand that no rights have been taken from Mr. Graham’s evangelicals or any other religious group in this Court ruling. Justice Gorsuch, as he wrote in his opinion, simply read the plain text of the 1964 Civil Rights Act and said, “it is a violation of the law for any employer to discriminate against an employee because of their gender,” which is exactly what the Act says. One astute observer put it this way; Equal rights for others does not mean fewer rights for you – it’s not pie. Another observer, Jesus Christ, put it this way, “You must love your neighbor as yourself.”

The Dolan Law Firm has fought tooth and nail for the rights of the LGBTQ community for decades and will continue to do so. We celebrate the Supreme Court’s ruling as we celebrate Pride month with our families, friends, co-workers, and community. Happy Pride everyone!

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Is it legal to shoot video of police?

This week’s question comes from Kimmy who writes:

Q: “I have attended recent Black Lives Matter protests to bring awareness to excessive force by Police against African Americans. At the last protest I attended, a police officer blocking an intersection told me to put my phone down and said I couldn’t film him. I have seen many videos from these protests and I wanted to document the protest myself. Am I allowed to film police officers?”

A: Kimmy, you raise a very important question. Many have seen the sickening cell phone footage of George Floyd with a police officer’s knee on his neck. We have seen even more cell phone video images of police abuse during some recent protests. These recordings have made a significant impact in the public perception of systemic racism within police forces and are acting as an import catalyst for change. This makes the conditions under which citizens may rightfully document the activities of law enforcement officers increasingly important to understand. Especially when, as happened to you, the police ask you to stop filming. The right to film police officers raises a number of legal questions including Constitutional First Amendment issues as well as California state laws.

The First Amendment of the United States Constitution prohibits the Government from passing laws that would infringe upon, among other things, free speech, and the freedom of the press.

Most courts have held that the First Amendment gives individuals the right to document police officers in public while they are performing their duties.

Inherent in the First Amendment is the right to freely discuss our government, as well as the freedom of the press and right to public access to information. Now that cell phones and other compact filming devices are ubiquitous and social media has become a primary source for people to receive their information, “news” is increasingly gathered and disseminated by members of the public. Fittingly, courts have recognized this change and held that the freedom of the press also applies to citizen journalists and documentarians just as it does to formal members of the press. (Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).)

There are limits, however. In California, an individual may record an on-duty police officer, but may not do so surreptitiously (the camera must not be concealed or hidden). Under California Penal Code Section 647, audio recording, and potentially videotaping, a police officer with a concealed camera may constitute a misdemeanor. While openly recording an officer is legal, the conduct of others included in the audio and video may be protected. California Penal Code 632 makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the participants’ consent.

When filming the police, one must not interfere with the duties the officer is performing. It is not legal to interfere with those duties simply because one is recording. For example, an officer may need a reasonable amount of space to effectively detain a person. Even if one disagrees with the right of an officer to detain a person, it is not lawful to interfere with an arrest. If the officer is not impeded, it is entirely legal to record the officer.

Another important limitation to the right to film police is that it is lawful only on public areas such as streets, sidewalks, or other public lands. California has anti-stalking and “anti-paparazzi” laws which make it unlawful to record anyone on private property without consent. These laws also apply to off duty officers. To lawfully document a police officer, the officer must be in the performance of their duties and on public land.

While it is entirely legal for a person to film a police officer in California within these restrictions, it is important to use common sense. As you discovered, the right to film does not mean that the police will not confront a person who is filming them and ask them to stop. If this happens, it is best to remain calm and polite, and simply explain that you are exercising your First Amendment rights. It is always important to make sure the officer does not perceive a physical threat. If using a phone or small recording device such as a GoPro, have a colorful case or cover and never hold it in a manner that may allow it to be confused by an officer as a weapon. It is not advisable or legal to threaten an officer’s safety.

Finally, even though filming is lawful, a citizen journalist may still lawfully be questioned by a law enforcement officer, though there is no requirement to respond or answer any questions. And, unless a person is driving, there is no California law that requires a person to provide an officer with identification. If questioned or asked for ID, simply ask “am I being detained, or am I free to go.”

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Constitutional rights must balance with need to protect public health

Written by Matt Gramly and Christopher B. Dolan:

Does the First Amendment’s “right of the people to peaceably assemble” still apply during a pandemic or to protest marches during a pandemic?

The First Amendment to the Bill of Rights as attached to the Constitution of the United States of America reads as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

However, as with any right also comes responsibility. Rights may be regulated by the state. The First Amendment also guarantees freedom of speech, but it is illegal to yell “Fire!” in a crowded movie theater if there is no fire. The Second Amendment guarantees the right to bear arms, but private ownership of military style assault rifles or machine guns in California is heavily regulated if not outright banned. Such is the case with the right to assemble. The right is guaranteed under the Constitution, but it can be regulated by the state, especially if the public health is at issue.

The First Amendment right to assemble is as important today as it was when it was written in 1791. The state’s right to regulate this right is particularly important today as we confront a global pandemic and nationwide protests in response to the murder of George Floyd by police in Minneapolis, Minnesota. This issue was addressed directly by the U.S. Supreme Court in the 1905 case of Jacobson v. Massachusetts. The question before the court was whether or not the state could force people to get the measles vaccine during a measles epidemic even if they did not want the vaccine.

Justice John Marshall Harlan wrote the following in the decision to allow states to require measles vaccinations: “The Constitution does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. A community has the right to protect itself against an epidemic and may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” The Court ruled that the state may regulate or curtail an individual’s freedom, even though it is guaranteed within the Constitution, in the context of preventing the spread of disease during an epidemic.

The same principle has been applied to the coronavirus pandemic with states issuing shelter in place orders. One type of gathering of particular significance is church gatherings. The First Amendment guarantees the right to free expression of religion, along with the right to peaceably assemble, such as in a church. Shutting down religious services is a very important issue for millions of Americans who argue that nothing is more individual or important than religious faith. Many argue that church services are essential and must remain open to worshippers. How can a Safeway or a Home Depot or a marijuana dispensary be deemed essential, but not a church? It’s a valid question but the courts have mostly sided with the states’ right to regulate.

Churches involve gatherings of large numbers of people in confined spaces indoors and frequently involve singing. Since the coronavirus can spread easily through respiratory system activities such as talking or coughing, singing is an ideal way to spread it, especially indoors. Churches that continued to meet in violation of state orders have become virus transmission “hot spots” as a result.

On May 25, George Floyd, an African American man, died in police custody. Following soon after the killing of Breonna Taylor by Louisville, Kentucky police as she lay sleeping in her bed, and the murder of Ahmaud Arbery by three white men in Georgia, we have seen many protests against police brutality and the killings of African Americans by police. Large protests, like church gatherings, seem like the perfect environment for spreading the coronavirus, except for the fact that they take place outside instead of indoors.

Protest marches with people assembling peacefully petitioning the government for redress of grievances are a clear example of our First Amendment rights; but, we are still in the midst of a dangerous global pandemic. Thousands of people marching in very crowded settings are a big concern for medical professionals and many believe the marches will become hot spots of disease transmission.

Why can the government shut down churches and businesses, but not protest marches? One major distinction is that protests occur outdoors unlike churches and church services, which are generally indoors. Ultimately, local governments struggling to protect their citizens’ First Amendment rights to protest or worship must balance those rights with the important need to protect public health.

Massachusetts Gov. Charlie Baker said on June 1: “As we combat the pandemic, we remain in a real struggle with how to carry out the bedrock principles of democracy with the best medical guidance available to fight an infectious, contagious disease.”

The bottom line is that the First Amendment’s right to assemble can be regulated or curtailed by the state, especially during a pandemic. As of the writing of this article, the U.S. has more than 2 million confirmed coronavirus cases and 112,000 deaths from the disease.

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Our first amendment right to peacefully protest is sacrosanct

By: Lourdes DeArmas and Christopher Dolan

For the past 9 days, in response to the death of George Floyd at the hands of Minneapolis police, people across the US and throughout the world have taken to the streets to demand racial justice and an end to police brutality and systematic racism against Black people. Some of the responses of our Federal, State, and Local governments in the past 72 hours are raising red flags and calling into question the police response to the protests and the curfews that have been imposed.

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

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

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

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

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

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

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

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

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

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

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

We will gladly represent anyone whose rights have been infringed.

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Aid is available for unemployed immigrants during the pandemic

Today’s question comes from Arturo R. in the Mission who asks:

Q: “I have lost my job because of the virus. I am not permitted for work even though I have lived here 10 years. My wife lost her job because she has to care for the kids. They tell me that I can’t get unemployment but I read that I can get a check from California. Can I? Can my wife? Thanks.”

A: Dear Arturo, this virus has harmed so many people and its impact seems to fall hardest on one of the hardest working populations, immigrants. As California Governor Gavin Newsom recently stated, “California is the most diverse state in the nation. Our diversity makes us stronger and more resilient … Every Californian, including our undocumented neighbors and friends, should know that California is here to support them during this crisis. We are all in this together.”

The Federal Government, through legislation, created a “stimulus program” under the CARES act which gave one-time payments of up to $1,200 per person, $2,400 per household, and up to $500 per qualifying child. This relief is only available to people with permission to work in the U.S.

Governor Newsom, through an executive order, created the Disaster Relief Assistance for Immigrants (DRAI) project which has authorized up to $75,000,000 in state funding to go to undocumented Californians affected by the coronavirus. An additional $50,000,000 is being raised through private contributions. Eligible applicants can receive up to $500 per adult, with a maximum of $1,000 per household.

A person is eligible if they can provide information demonstrating that they (1) are an undocumented adult (person over the age of 18); (2) are not eligible for federal COVID-19 related assistance, like the CARES Act tax stimulus payments or pandemic unemployment benefits; and, (3) have experienced a hardship as a result of COVID-19.

To be eligible you must provide information and documentation to verify your identity, home or mailing address, and to demonstrate that you have been impacted by COVID-19 (showing you lost your job, couldn’t work because of caring for an sick relative or a child who couldn’t go to school, a member of your household lost their job affecting the ability to pay for the rent, food, etc.).

The program and funds are being administered by 12 non-profits throughout the state. In the Bay Area (Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara) the program is being administered by Catholic Charities of California which can be reached at (866) 490-3899 and by internet at www.cceb.org (Alameda and Contra Costa) , www.catholiccharitiessf.org (Marin, San Francisco & San Mateo and www.catholiccharitiesscc.org (Santa Clara). They can provide additional information on eligibility and help you make an application.

People are often afraid that receiving public funds may make them a “public charge” and affect their ability to gain legal status and/or subject them to deportation. According to the State of California’s website, “This disaster relief assistance is not means-tested and is one-time assistance. The Federal Government does not list this assistance as a public benefit for a public charge consideration.”

The information you provide to the nonprofit organization will only be used to confirm your eligibility and provide the assistance to you. The nonprofit organizations will provide general information (e.g. age, gender, preferred language, etc.) to the State, but none of your personal information (e.g. name, address, etc.) will be given to any government agency. Money will be distributed through the non-profit agency in the form of “payment cards” which will function like debit cards.

You should apply immediately if you qualify as the money will run out fast. Arturo and everyone else, this is a time for coming together and supporting each other, we are all one family. Stay safe and be kind everybody.

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Protecting doctors who voice concerns about inadequate patient care

Last week’s question was posed by a doctor, who wanted to remain anonymous, who asked what her/his rights were in a situation where they were working around COVID-19 patients, were told to re-use their personal protection equipment (PPE) such as masks, goggles and gowns, in violation of hospital policy.

The reader indicated that they were aware that PPE had been diverted from the treatment floors for the personal use of administrators and, she/he believed, for their families. The reader stated that she/he voiced concerns for patient safety, and her/his safety, caused by the reuse of PPE. Upon expressing those concerns the reader was told that they should, in essence, “mind their own business if they know what’s good for them.” Last week, I addressed the issue of an employer’s responsibility to provide a safe workplace with the required and appropriate safety gear and equipment. This week I am addressing the issue of a physician’s rights to express concerns about patient care without fear of retaliation.

A doctor who voices her concerns about inadequate patient care and safety is supposed to be protected against retaliation by California Business and Professions Code Section 2056. It is the public policy of the State of California that a physician is to be encouraged to advocate for medically appropriate health care for his or her patients. To advocate for “medically appropriate health care” includes protesting a decision, policy, or practice that the physician reasonably believes impairs the physician’s ability to provide medically appropriate health care to his or her patients.

Any person who renders a decision to terminate or penalize a physician employee or contractor for advocating for medically appropriate health care is in violation of the law. Section 2056 states: “No person shall terminate, retaliate against, or otherwise penalize a physician and surgeon for that advocacy, nor shall any person prohibit, restrict, or in any way discourage a physician and surgeon from communicating to patient information in furtherance of medically appropriate health care.” So the law goes beyond just advocating for patient care internally, it could also protect a physician who brings those concerns to the attention of the patient, outside regulators, and even the press.

When a physician is retaliated against they can bring a civil action for retaliation and/or termination in violation of public policy, a whistleblower complaint under the Labor Code, and several other common law causes of action. A prevailing physician could receive both past and future economic losses, non-economic damages for emotional distress, shame, humiliation, etc., and, in some cases where malice, fraud or oppression can be demonstrated, punitive damages to deter the individuals or facility from repeating the behavior.

When analyzing what is “appropriate patient care” the determination must factor in the locality and other circumstances under which treatment was given. For example in San Francisco, it may be the standard of care to do an MRI with contrast (radioactive dye). In a very rural urgent care facility, with no MRI, the standard of care would be different.

The same is true with COVID-19. Care and treatment of COVID-19 patients will have to be examined under the conditions which existed at the time of the care. There are circumstances wherein there may not be enough ventilators for everyone who needs one to get one. A doctor may be forced to “triage” the patients and determine who is more likely to survive and withhold treatment from a patient who is more likely to die. In your case, had there truly been a shortage of PPE, as we see across the country, the fact that PPE would be changed between patient visits in pre-coronavirus times, does not set the standard in coronavirus-time. Your question, however, involves members of the administration taking PPE for themselves and their families thereby diverting them from both employee safety and patient care. As I said last week, California Labor Code Section 6406 makes it illegal for anyone to remove, displace, damage, destroy or carry off any safety device, safeguard, notice, or warning, furnished for use in any employment or place of employment. If they are diverting safety equipment from you and patients, for their own personal use, it should not be justified because of COVID-19. In my eyes, it makes it that conduct much more despicable.

You should document all important facts concerning the inadequate patient care, who is taking the PPE home, and any claims or complaints you make, to whom, when, and who witnessed it. You want witnesses or, preferably, a date and time stamped (e-mail) contemporaneous writing. I would suggest that you examine your personnel folder before making a complaint so that if you later see backdated documents, you can identify them. If you feel strongly enough about what’s happening and are principled enough to take action, you should file a written complaint with the Medical Board.

Be aware, hospitals wield a lot of power. Doctors, hospitals and practice groups, will often terminate a doctor who advocates for patient care and then claim it was a result of a physician’s clinical deficiencies, or that they were psychologically unstable. I have handled three such cases. The hospitals’ conduct was despicable. Fortunately, on the whole, there are many more good doctors than that are unscrupulous ones and, if you properly document and escalate your complaint, hopefully proper action will be taken. If you are retaliated against then get yourself a good trial lawyer as the hospitals have legal specialists who do nothing but fight to cover up wrongdoing.

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Discrimination and retaliation in reducing workforce is unlawful

By Christopher Dolan and Emile Davis:

The harsh reality of the COVID-19 pandemic, and the government shutdowns, is that businesses are not bringing in income that was once regular and expected. As a result, many employers will be forced to lay off or terminate hard working employees.

Businesses do have the right to terminate or lay off employees when the needs of the business call for a reduction in force and, generally, a non-union employer may make the decision about which employees to let go on whatever basis they chose. However, an employer may not make such decisions based upon a discriminatory or retaliatory motive.

For example, an employer may not use race or national origin as a basis for the decision of which employees to terminate. As is discussed elsewhere in this series of articles, there is an increase in discrimination and hate-crimes toward Asians since the onset of COVID-19. An employer may not use the national origin or race as a basis to deny Asians the right to return to work.

Similarly, most of the protected leave laws contain anti-retaliation provisions. That means that when an employer is making the decision of which workers to let go, they are forbidden from using the fact that an employee took accrued sick-time or other eligible leave as a basis for that decision. A worker who took CFRA leave to care for a family member who contracted COVID-19, may not be treated differently from one who did not take that leave. Having taken qualified leave cannot be held against an employee.

Employers are generally aware of these laws and will not often state specifically that the employee is being terminated for having taken leave. Often though, hints as to the underlying motive will slip. Employers may make statements indicating “they need someone who is reliable” or who “will put the business first.” These may be clues that the underlying reason may be that the worker took protected leave.

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Are Uber drivers employees?

Today’s question comes from Jennifer T. in Diamond Heights who asks:

Q: “I drive for Uber, Lyft, and DoorDash. I have filed my taxes as an independent contractor as that’s what I was told to do by these companies. I heard that there is a new law which will provide me with protections that usually have only been provided to employees. What am I, an independent contractor or employee? What new protections do I have now?”

A: The new law that you have heard about, AB 5, amends Labor Code Section 3351, adds a new Labor Code Section 2750.3, and amends sections 606.5 and 621 of the Unemployment Insurance Code, to ensure the workers who are currently exploited by being misclassified as independent contractors are instead recognized as employees who have basic rights and protections. The legislative history produced during its enactment declared that when workers are unfairly misclassified as independent contractors: (1) these workers are harmed by the loss of significant workplace protections such as they deserve under the law, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave; (2) it is unfair to other employers who must compete with companies that misclassify; and (3) there is harm to the state of California in the form of lost revenue from these companies avoiding obligations such as payroll taxes and premiums required under workers’ compensation, Social Security, unemployment, and disability insurance programs.

The new Labor Code Section 2750.3(a)(1) remedies these injustices by providing that a person providing labor or services for remuneration (money) shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the terms of the contract for the performance of the work and in fact; (B) the person performs work that is outside the usual course of the hiring entity’s business; (C) the person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

The amended Labor Code Section 3351 provides that the law applies to every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and specifically includes: non-resident immigrants and those without proper documentation; minors; elected and appointed paid public officers; incarcerated persons engaged in vocational rehabilitation for pay; truck drivers; and tutors. The law also exempts a long list of occupations including, but not limited to: physicians and surgeons; dentists; podiatrists; psychologists; veterinarians; licensed lawyers, architects, engineers, private investigators, accountants, barbers, estheticians, and cosmetologists; registered security brokers and advisors; real estate salespeople; live-in nannies; direct sales people; and commercial fisherman. The law also does not apply to any workers who can negotiate for their rate of pay, control their hours, and market themselves to multiple businesses, such as: travel agents; outsourced marketing consultants; HR administrators; graphic artists; design professionals; grant writers; fine artists; tax preparers; some still photographers; photojournalists; freelance writers who only do occasional work; repossession agents; and construction trucking service providers.

You, as a Lyft, Uber, and DoorDash driver, are squarely protected under this law and must now receive the benefits other employees would receive, including earning at least the minimum wage. In its perpetual refusal to follow the law, Uber has indicated that it will not comply with AB 5 and filed a federal lawsuit at the end of last year claiming the law to be unconstitutional. Notably, it did not file in a California State Court, which it predicts would be a futile exercise because AB 5 was based on a groundbreaking California Supreme Court decision, Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (“Dynamex”), which established the new test for determining whether a particular set of job circumstances make someone an employee or independent contractor. Uber hopes the conservative U.S. Supreme Court will be more receptive to their pleas. Fortunately, this will likely be an uphill battle as the Supreme Court has routinely upheld a state’s rights to legislate its own citizens’ working conditions.

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New state laws expand workplace protections against sexual harassment

Ava G from The Haight asks: “I heard that there were some new laws on sexual harassment. As a member of a women’s empowerment group I was wondering if you could summarize them so we can discuss them at our next monthly meeting.”

Ava, the #MeToo movement started, and continues to run strong, in California. Over the next several weeks I will report on many of the new, progressive, laws extending important protections to California workers. As you have heard, the California Legislature and Governor Newsom have acted decisively in broadening California’s workplace protections in the areas of sexual harassment. As the owner of a law firm which has represented employees (only) in cases of harassment and discrimination over the last 25 years, I can say confidently that these new laws provide much needed additional protection for workers in California.

Former Gov. Jerry Brown signed two important measures into law on Sept. 30, 2018. Senate Bill 1300, propounded by Senator Jackson and codified as Government Code Section 12923, added a host of new employee protections. The law, with certain exceptions, prohibits an employer from conditioning continued employment, or incentives like raises or bonuses, on the execution of a release of a claim or right under the Fair Employment and Housing Act (FEHA), a nondisparagement agreement (an agreement that prevents the employee from disclosing truthful facts that may be negative), or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The law further provides that any such agreement or document containing such a clause is unenforceable. In addition, SB 1300 extends the previous FEHA requirement that employers protect their employees from sexual harassment by non-employees to require protection from all forms of harassment on the basis of membership in a protected class, race, age, disability, sexual orientation, gender identification, etc.

SB 820, propounded by Senator Leyva and now codified in the California Civil Code Section 1001, renders unlawful any settlement agreement including a confidentiality provision that prevents the disclosure of factual information pertaining to civil or administrative complaints of sexual assault, sexual harassment, or workplace harassment or discrimination based on sex. The law provides that any such provision in a settlement agreement entered into on or after Jan. 1, 2019 is unenforceable. The law does permit a provision, however, that would safeguard, at the claimant’s request, the claimant’s identity and any facts that could lead one to discover the claimant’s identity (except in matters involving a government agency or public official), as well as a provision that prevents the disclosure of the amount paid to settle the claim, at the request of either party.

On Oct. 10, Gov. Newsom signed into law Assembly Bill 9, propounded by Assembly Member Reyes, which extends the time for an employee to file a complaint with the Department of Fair Employment and Housing, a prerequisite for the employee to file a lawsuit or, at the employee’s request, for the Department to conduct an investigation and prosecution of the claim within the administrative system. Until now, employees have been required to file a charge of discrimination or harassment (retaliation or other unlawful conduct) with the Department of Fair Employment and Housing within one year in order to preserve their right to sue their employer for unlawful harassment or discrimination. AB 9 amends Government Code section 12960 to extend the time that an employee has to file a complaint of discrimination and harassment by two years. Now aggrieved employees have up to three years to file a claim and initiate legal action. Moreover, certain additional extensions of time may be granted if the conduct is discovered after the expiration of the three-year period or the aggrieved party finds out the true identity of the unlawful actor.

Although these periods have been extended, it is always best to act promptly when dealing with these matters as documents disappear, memories “fade,” witnesses change jobs and frequently move, making the accumulation of evidence more difficult. It is also important to note that AB 9 is a prospective law, meaning that it does not revive claims which have already expired. As always, it is advisable to consult an experienced sexual harassment attorney to ensure the best outcomes in prosecuting your claims.

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