1ST Amendment Right To Peacefully Protest

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

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

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

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

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

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

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

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

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

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

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

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

We will gladly represent anyone whose rights have been infringed.

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Can Employers be sued for Workplace Injuries?

Written By: Christopher Dolan and Aimee Kirby

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

Hi Victoria,

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

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

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

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

The “Privette Doctrine” has governed the extent of liability that general contractors and property owners have for worksite injuries suffered by a subcontractor’s employees. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.” 

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

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

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California Paternity Leave: What You Need to Know

Written By Christopher Dolan and Mari Bandoma Callado 

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

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

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

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

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

Benefits and Payment During Paternity Leave

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

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

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

Retaliation/Returning to Work

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

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

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

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

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

Dear Laird,

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

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

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

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

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

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Injured at a Baseball Game: Who is at fault?

Written By: Christopher B. Dolan

If You’re in the Stands, Keep Your Eye on the Ball: Over the past decade, at the beginning of baseball season, I have published a column concerning who is responsible if someone gets hit with a line drive, foul ball and/or broken bat while watching a game. As a lawyer, and a big Giants fan, I like to start off the season by saying, put down your cell phone and keep your eye on the ball during play. A distraction can lead to serious and even life threatening injury.

Balls and bats leaving the playing field and entering the stands are not uncommon. In a 2014 Bloomberg News analysis of ballpark injuries, it was reported that each year in the United States roughly 1,750 spectators are injured by batted balls at major league ballparks. The study showed spectators were much more likely to be hit with an errant ball than a player was to be hit with a pitch. While most injuries are thankfully minor, there are reports of severe injuries, and even death, due the sport’s use of wooden bats and 90 mph plus fastballs.

In an article published in the Boston Globe by Catherine Cloutier on June 09, 2015, Edwin Comber, a baseball statistician, is quoted as saying that about 73% of foul balls go into the stands. A 2000 lawsuit against the Red Sox revealed that during a five-year period in the 90’s, 36 to 53 fans per year were hit by balls outside the field of play. Furthermore, there have been reports of skull fractures and even brain injuries, as a result of bats and balls entering the stands. As the fans demand to be ever closer to the action, and the field is filled with high-priced seats closer and closer to the plate and baselines, the risk of injury goes up just as fast as the price.

The issue of liability for fans’ injuries was addressed by the California Supreme Court in 1935 in the case of Quinn v. Recreation Park Ass’n, 3 Cal.2d 725, where the court held that one of the natural risks assumed by fans attending major league games is that of being struck by batted or thrown balls. The Court ruled that the franchise and/or park owner/operator is not required, nor does it undertake, to insure patrons against injury from such source. All that is required is the exercise of ordinary care to protect patrons against such injuries. Management is not obliged to make each seat safe from flying balls. The court pointed out that many patrons prefer to sit where their view is not obscured by a screen.

The duty imposed by law is performed when screened seats are provided for as many as may be reasonably expected to call for them on any ordinary occasion and if a spectator chooses to occupy an unscreened seat or is unable to buy a screened seat and chooses to occupy one that is not protected, they, “assume the risk of being struck by thrown or batted balls; and, if injured thereby, is precluded from recovering damages therefor,” as stated in Brown v. San Francisco Ball Club.

In Neinstein v Los Angeles Dodgers Inc. (1985) 185 Cal.App.3d 176, the Court of Appeals held that:

…The quality of a spectator’s experience in witnessing a baseball game depends on his or her proximity to the field of play and the clarity of the view, not to mention the price of the ticket. As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyone’s view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be priced out of enjoying the great American pastime. To us, neither alternative is acceptable…

Despite the Court’s unwillingness to intervene to reshape baseball through tort law, I am happy to report that all thirty teams in the MLB have decided to extend safety netting and screening all the way down the first and third baselines to the foul pole. So, if you are in the lower section, you should be better protected from line drives and broken batts. If you are in the upper decks, keep your eye on the ball because, if you are in an unprotected seat, you are legally assuming the risk of injury.

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Masks Mandates and Public Transportation: How Does One Judge Have The Power to End The Mask Mandate? 

Written By Christopher Dolan and Kim Levy

This week’s question comes from Bill S. from San Francisco who asks: I’m taking my family to Hawaii in a few weeks and just learned that a Florida judge struck down the mask mandate for airlines. I’m confused about how this will impact our trip. Does this mean that no one will have to wear masks on the airplane?  How can one judge in Florida end the mask mandate for the whole country? The end of the airline mask mandate is concerning since I have one child too young to be vaccinated.

Hi Bill,

I certainly appreciate your concern and will hopefully answer your question. Before I start, I would like to give you some background on the Federal Transportation Mask Mandate. In January of 2021, after being sworn in, President Biden signed an executive order making it a violation of federal law to ride public transportation without a mask.

US health officials scheduled the mask mandate to expire on April 18, 2022. However, on April 13, 2022, they extended the federal transportation mask mandate by 15 days in order to assess the recent rise in COVID-19 cases.

Why was the mask mandate struck down?

On April 18, 2022, U.S. District Judge Kathryn Kimball Mizelle, a Tampa-based federal court judge, ruled that the federal transportation mask mandate was unlawful. Judge Mizelle struck down the mandate on two grounds:

  1. she found that the CDC exceeded the authority provided by Congress; and
  2. the enactment of the mandate violated administrative law, which prescribes a process that executive branch agencies must follow to make new policies.

First, Judge Mizelle ruled that the CDC lacked the authority to require masking on public transportation. She took a very narrow view of the Public Health Service Act, a 1944 law allowing the CDC to take certain measures to fight the spread of communicable diseases; the language of the statute refers to “sanitation” as a measure that may be required to be undertaken. Judge Mizelle took this to mean that the statute permitted the establishment of rules/regulations “that clean something, not ones that keep something clean” and mandatory masking was not a “sanitation” measure. Judge Mizelle concluded that requiring masking, regardless of infection status, was an overbroad application of the “detention” and “quarantine” protocols allowed by the Act. In other words, requiring masking of travelers who had not been determined to be infected exceeded the authority that Congress intended to be provided by the Public Health Service Act.

Second, Judge Mizelle held that the CDC’s mask mandate violated the Administrative Procedure Act, which sets administrative agencies’ procedures to set policy. Judge Mizelle stated that the CDC didn’t have a valid excuse for bypassing the masking rule’s public notice and comment requirements. The CDC did not provide an adequate explanation for why they implemented the masking requirement in the first place. Judge Mizelle referred to the fact that the pandemic was already a year old when the mandate was put in place; accordingly, the mandate was not put in place under emergency circumstances.

Of note, Judge Mizelle, a President Trump appointee, was rated by the American Bar Association as “not qualified” for appointment to the Federal bench due to lack of experience.  Nonetheless, she was confirmed for life at the age of 33.

How does this ruling affect travel?

Judge Mizelle’s ruling put the authority to enact and enforce masking mandates back with individual airlines, ride-share companies, and other modes of public transportation.  

Because of the ruling, the Transportation Security Administration (TSA), a federal agency, ended its enforcement of the mask mandate.

Some jurisdictions like New York and Chicago elected to keep in place mask mandates on public transit, all major airlines, Amtrak, Caltrain, SFMTA, and ride-share companies. Others have chosen to drop their mask mandates and instead recommend the use of masks while riding public transportation.  

There are no longer any uniform rules surrounding masking on public transportation. It is best to have a mask should you be required to wear one.

How does one judge have the power to end the mandate?

Judge Mizelle struck down the mandate in a “nationwide” injunction (a national court order requiring an action or halting an action). However, she referred to her ruling as vacatur (eliminating an unlawful rule).  The judge’s reasoning for her broad elimination of the mask mandate was that it would be too difficult to apply the injunction only to those that brought the lawsuit in the first place. A nationwide injunction applies to all jurisdictions everywhere within the United States.   

The judge’s decision does not carry precedential weight. Other federal courts across the country are not obligated to follow her reasoning in handling similar future challenges to administrative regulations. However, if the ruling is appealed and upheld by the federal appellate court (which covers the Southeastern United States), it would set precedent for all other federal courts within the circuit. If the appeal reached the United States Supreme Court, a ruling upholding Judge Mizelle’s order would be binding nationwide. 

What will happen now that the decision has been appealed?

On April 21, 2022, the Biden Administration asked the Department of Justice to file an appeal in the case. The appeal, if successful, would make clear that the CDC holds the power to make broad mandates in the interest of safeguarding public health. If unsuccessful, the opposite is true—a ruling that would hamper the authority of the CDC to act to protect the people from new and/or evolving public health threats.

State and local government would still maintain authority to issue rules and regulations to protect public health. However, regulations across the country would be inconsistent and piecemeal—arguably this lack of uniformity allowed the COVID-19 pandemic to claim so many US lives in the first year of the pandemic.

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The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation, and the local, state, and federal responses are regularly changing. The Dolan Law Firm makes efforts to keep the information on this page updated. However, it is necessary to confirm with publicly available federal, state, and local health organization guidance and government mandates to guarantee up-to-date information.

 

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Our Rights to an Interpreter

Written By Christopher Dolan and Carole Okolowicz

This week’s question comes from an anonymous writer who asks: If you are charged with a crime in California and do not understand English, you have a right to an interpreter in court. (Cal Const Art 1, Sec 14.) If you have an attorney, they may provide an interpreter; the court will provide one if you do not have an attorney. But, do you have a right to an interpreter in a non-criminal situation? For example, if a car hits and injures you, or your employer wrongfully fired you, and you have to file a lawsuit, do you have a right to an interpreter?

Dear Anonymous,

Let’s start at the beginning. One of the first decisions you make when you are injured or mistreated is whether to hire an attorney and which attorney to hire. Many California lawyers and law firm staff note if they speak languages other than English on their website. If you are unsure if the attorneys speak another language other than English, when contacting an attorney, you may want to ask a family member or friend to translate for you. 

Next, during litigation, you may have to appear for a deposition as your case proceeds. A deposition is a question-and-answer session which does not happen in court but, you are still sworn in to tell the truth. You have a right to have an interpreter during your deposition, and your attorney will hire one for you. During your deposition, the lawyer for the other side asks you questions, you respond, and a court reporter types everything said, creating a record.

Last, it is very likely that you will never have to appear in court in your civil case. Most cases settle without ever going to trial. But if your case does go to trial, an interpreter must be provided for you. An interpreter must be provided for any witness “who is incapable of understanding the English language or is incapable of expressing himself or herself in the English language” in a way that can be understood by the attorneys, the court, and the jury. (Evid. Code 752(a).) This is a rule of evidence, meaning that if the witness cannot understand the questions and if the court cannot understand her answers, the witness’s testimony is not useful evidence – unless there is an interpreter. 

Unlike in criminal court, a civil court will not pay for the interpreter if one is needed. (Evid Code 752(b)(2).) The cost of the interpreter is a cost of the lawsuit, just like the cost to file papers with the court and costs associated with depositions, for example. The party that loses the trial, could be you or the other side, may pay the costs. Or, you could pay it if you decide to settle out of court. You may decide it is worth it to settle for various reasons.

It is ultimately up to the court. The court may determine whether or not an interpreter is needed. Suppose you or anyone testifying in court appears to speak and understand the English language well enough to be understood. In that case, the court may determine that no interpreter is needed. However, your lawyers may decide to hire an interpreter regardless of the court’s determination. They want you to be able to provide your best testimony and fully understand what the court asks of you.

Because California is such a diverse state, there are interpreters for many different languages and dialects, including Spanish, Mandarin, Cantonese, Tagalog, Hindi, Farsi, Portuguese, even some indigenous languages. Your inability to fully understand the English language should not be a barrier to getting legal representation when you have been wronged.

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Johnson v Cedars-Sinai Medical Center: Equal Access to Businesses and Services  

Los Angeles Hospital Sued for Racism and Wrongful Death

On May 5, 2022, Chris Dolan and legal team of lawyers filed a lawsuit against Cedars-Sinai Medical Center (Case #: 22STCV14868) for failing to provide Equal Access to businesses and services for the wrongful death of Kira Johnson. 

Christopher B. Dolan says, “to gain access equally to businesses and services despite race, national origin, and any other discriminatory characteristic… we are using a lawsuit.” 

The lawsuit describes that despite signs of Kira Johnson bleeding internally and over the desperate pleas of her husband, she languished for hours without being readmitted to the operating room.

Nick Rowley, attorney, and member of the legal team, says Kira Johnson died from internal bleeding — nearly 90% of her blood was later found in her stomach. Her bladder had been lacerated and she hadn’t been sutured properly.

Charles Johnson IV said that “there is no doubt in my mind that my wife would be here today and be here Sunday celebrating Mother’s Day with her boys if she was a Caucasian woman.” 

For more information on the lawsuit see video or stories below:

Press Release Video:

Complaint:

Johnson v. Cedars-Sinai Medical Center Complaint 

Stories: 

 

 

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Are My Therapy Records Protected in a Lawsuit?

Written By Christopher Dolan and Emile Davis

This week’s question comes from an anonymous writer who asks: I was recently in a bad car accident. I was in the hospital and required surgery to put some screws and a plate in my shin. I am in therapy for some very private and personal issues arising from an abusive relationship. I don’t want to share that information with anyone, but, I have also been talking to my therapist about the difficulties in recovering from the accident and being so limited with my leg while I heal. It wasn’t my fault, but I am scared to bring a lawsuit.

Is there anything I can do to get compensated but not let the driver who hit me or the insurance companies know my personal business from my therapist even though I talked to her about the accident?

Dear Anonymous, 

You have raised an interesting dilemma that affects many people who file a lawsuit and are in litigation. What you describe is at the heart of many privacy laws in California- the conflict between a litigant’s privacy and the need for information to get to the truth of a matter. 

We need to start at the most basic level to understand how this conflict plays. First, every person has a privacy right to their medical records. The California constitution expressly provides that all people have an “inalienable” right to privacy. This clause has created a zone of privacy that protects against unwarranted compelled disclosure of certain private information, including medical records.

However, this privacy right is not absolute. As your question understands, certain medical privacy rights are waived by bringing a lawsuit. Clearly, in evaluating a leg injury like the one you have suffered, prior injuries to that leg would help inform a clear understanding of the damage this accident caused. Defendants sometimes litigate and argue that all privacy in medical records is waived by bringing a lawsuit. Courts have held the line well, limiting physical records to the body parts in question in the litigation or if the body parts are directly implicated.

Mental health records follow a similar analysis, but there is a more transparent and absolute way to protect therapy records from being disclosed. Part of the damages a Plaintiff in a civil lawsuit arising from an auto accident generally includes what is referred to as non-economic damages: pain and suffering, emotional distress, fear, and anxiety.

Since the non-economic damages are likely discussed in therapy records, as it is in your case where you have explained the difficulties of the recovery process with your therapist, they would be directly relevant to the litigation. However, the law has developed a mechanism to allow protections and allow the maintenance a litigant’s privacy.

The Plaintiff can make an election between what is known as a “garden variety” claim for emotional distress damages or what is called a “special claim”.

When making a “garden variety” claim, the Plaintiff indicates that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.”  If the emotional distress suffered is of the type expected from the physical injuries, a Plaintiff’s therapy records would not likely be at issue and could be kept from disclosure.

A special claim is the opposite. It is where the emotional injuries exceed what would be expected from the physical injuries. An example would be when someone had a severe emotional reaction and sought psychological treatment to deal with the emotional injures from the accident. 

With the bit of information, we have from your question, it seems that a garden variety claim would accomplish your goals of moving forward with a lawsuit while, at the same time, likely keeping your therapy records private. Please understand that there is no half-measure; if some of the records from a therapist are disclosed to prove how difficult your recovery has been, that will often open up the rest of the therapy records.

If you choose to move forward with a lawsuit, make sure to find an attorney who is knowledgeable about these things and can advise you regarding these important issues. 

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New Era: The End of Forced Arbitration Agreements for Sexual Harassment and Assault Victims

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jessica R., who asks: I’ve been working at a big tech company in the South Bay for about three years now as a software developer. At the outset of my employment, I signed several documents contained in a hiring packet, one of which was an arbitration agreement. I didn’t understand what it was at the time. I just signed it because I thought that’s what I had to do to start work. After some research, I now realize I gave up my right to file a civil case, and any claim arising from my employment will be handled confidentially out of court. A few weeks ago, one of the newly hired managers began making inappropriate sexual remarks to me and one of my co-workers. The behavior has only gotten worse. HR doesn’t seem to take it seriously, either. I’m starting to regret ever having signed that arbitration agreement. Do I have any options, or am I going to be stuck with it? 

Hi Jessica,

Thank you for your question. We have some excellent news for you. Last month, on March 3, 2022, President Biden signed H.R. 4445 into law, ending forced arbitration of all claims of sexual assault and sexual harassment arising under federal and state law. The law is effective immediately nationwide. It applies to all past and future agreements, including arbitration agreements signed before the new law went into effect. 

The new law applies to any “dispute or claim that accrues on or after the date of the enactment of this Act.” Does a claim “arise” or “accrue” when the actionable conduct occurs or when a case is actually filed? It is unclear. Given the law is so new, its interpretation, thus far, has been limited. There is likely to be a wave of test cases over the next six months, however, seeking to further clarify the applicability of the new law to acts of sexual harassment and assault that occurred before March 3, 2022, and how cases involving sexual harassment and sexual assault occurring before, on, and after March 3, 2022, are to be treated. 

What does this mean for you and your circumstances?

  1. First, the arbitration agreement you signed when you were hired by the company three years ago appears to be covered under this new law.
  2. Second, the new law will likely apply to your claims as the sexual harassment your supervisor subjected you to appears recent – post-dating March 3, 2022 – and ongoing, which removes some doubt regarding the Act’s applicability to your claims.

Does this Act completely prohibit the arbitration of these types of claims?

No. Depending on the circumstances, an employee that previously signed an arbitration agreement may still wish to avail themselves of the arbitration process. The confidential nature of arbitration may appeal to some employees who don’t wish to have their names publicly associated with embarrassing or explicit sexual harassment or assault details.  This law places the power in the hands of the victim to choose which forum they prefer. Thus, should you decide to pursue legal action, you may, at your election, choose which forum you prefer, whether it be arbitration or civil court. If you choose to file sexual harassment claims in civil court against your employer and your supervisor, your employer is unlikely to be successful in compelling you to arbitration, despite your former agreement with them to do so.

Now, for the curveball. As the law is brand new in its application, it is less clear at present how cases will be handled that involve a mix of different claims, one or more of which involve sexual assault or harassment. Suppose for instance, you wish to bring a sexual harassment claim and claims for wage and hour violations. The law is silent on whether the wage and hour violations will be compelled to arbitration. Forcing a victim to pursue two related claims arising out of their employment in two separate forums is neither practical nor a cost-efficient option for them. Time will bear out how such cases will be handled. 

One final note for those of you out there that don’t fall squarely within the protections offered by new law. If you do end up in arbitration, there are some further protections for you as a Californian. On January 1, 2019, Senate Bill 820 known as the Stand Together Against Non-Disclosure (STAND) Act became law, prohibiting settlement agreements designed to silence employees from sharing factual information about their experiences of sexual harassment or sexual assault in the workplace. This law also applies to settlement agreements that contain a non-disparagement provision. Thus, despite the confidential forum of arbitration, if a settlement is reached prior to the hearing, your former employer cannot prevent you from discussing about what happened to you. Since 2019, the California legislature has taken it a step further. On January 1, 2022, Senate Bill 331 known as the Silenced No More Act was signed into law, expanding the prohibition to all claims of harassment, discrimination and retaliation under the Fair Employment and Housing Act (FEHA), including claims based on race, sexual orientation, disability, and many others. 

If you or someone you know has signed an arbitration agreement and experienced harassment, discrimination, or retaliation in the workplace based on their membership in a protected class under FEHA, contact an attorney such as the Dolan Law Firm to analyze your particular circumstances. 

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