January 13, 2022:
Published in full – “Re: Public comment on the 2021 State Bar of California’s Paraprofessional Working Group Final Report” (published by Consumer Attorneys Association of Los Angeles – CAALA).
On behalf of the Consumer Attorneys Association of Los Angeles, we appreciate the opportunity to provide public comment in strong opposition to the California Paraprofessionals Working Group’s (CPPWG) September 2021 Final Report and Recommendations. The Consumer Attorneys Association of Los Angeles’ (CAALA) is largest local plaintiffs trial bar in the country. CAALA’s membership includes over 3,100 plaintiff attorneys who practice in the areas of personal injury, civil litigation, premises liability, wrongful death, auto, employment, and product liability matters throughout the State of California. CAALA’s members represent consumers on a contingency basis, meaning that consumers pay nothing out of their pockets to hire skilled lawyers who can take their cases all the way through trial and appeal. Since before March 2020, our members have closely followed the proposals of the Access Through Innovation of Legal Services (ATILS) and California Paraprofessional Working Group (CPPWG). We have monitored and presented public comment at those groups’ many meetings, explored the proposed programs’ benefits and dangers, researched similar programs in other jurisdictions, and suggested alternative solutions that present less risk.
While we do not deny that there are issues arising from unrepresented litigants in certain practice areas – particularly in family law, unlawful detainer, some consumer debt cases, and collateral criminal matters – the Working Group’s proposed solution will create many more problems than it could possibly solve. There is already evidence of the devastating harm caused by the impacts in other jurisdictions of programs similar to those proposed by the Working Group. Rather than adopt a program with the same pitfalls, we believe that there is an opportunity to conduct further research and evaluation to determine the solutions that best address the legal needs of low- and moderate-income Californians while also protecting vulnerable communities from harm.
Although CPPWG has undertaken limited research to create its proposed program and report, it disregarded research of the State Bar’s other working group on the subject: the Closing the Justice Gap Working Group. For instance, that group gave a presentation in Spring 2021 with a PowerPoint slide identifying the riskiest proposals when looking at ways in which to lessen the justice gap. According to the presentation, the two riskiest proposals were (1) nonlawyer providers without lawyer involvement, and (2) software providers without lawyer involvement. For purposes of this comment and because the 1CPPWG refused to consider attorney oversight of the proposed new licensee, CPPWG’s current proposal is one of the two riskiest possibilities that exist in terms of addressing the justice gap. This begs the question: Why not consider any other alternatives, including the ones set forth below, and why not recognize that attorney involvement does not discredit the proposal, but rather bolsters it and could even convince some of the opposition to consider the proposal more seriously?
Rather than present the promised solution of low-income access to legal services, the final California Paraprofessional Working Group Report is a brutal one-two punch aimed at the wholesale elimination of protections for the very people it seeks to protect. The Program overreaches to the point of failing at its objective to offer needed services and guaranteed protections that the Group attempted to provide. The Report’s assault on the legal practice is clear from its flawed proposals, including permitting “default” in-court representation by paraprofessionals outside of the scope identified by the Group, nonattorney ownership of law firms with internal referrals and a lack of ownership control, permission of uninformed waivers of consumer protections, and a lack of sufficient educational or practice oversight. When taken as a whole, it is clear that the Group’s Report and the intended deregulation will result in providing low-cost, second-tier legal services through internet start-ups.
However, the remedy to the problem is not new licensing, regulation, or deregulation. Nor is it the corporatization of the practice of law. “Uberizing” legal services will further erode access to justice for the indigent and other vulnerable populations by consolidating firm ownership and driving up legal fees, as has occurred in England and Wales. When hedge funds and insurance carriers have a piece of the market, legal services will change to maximize profits, with an increase in costs and a focus on the bottom line. One easily foreseeable looming conflict is the fiduciary duty to maximize shareholder profits versus victims’ rights to pursue systemic change and modest compensation. The State Bar should focus instead on educating and regulating attorneys, ending discrimination in its own prosecutorial conduct, reducing the backlog of pending client complaints, operating fair and flawless bar examinations, and working together with the Bar itself towards these goals.
Numerous public commentators and stakeholders have closely followed the Group’s work. The Group has rejected and ignored many of these comments throughout its process. Alternative solutions were not considered or were outright rejected. After months of discussion, the Group was led into preparing a “thumbs up, thumbs down” report without alternatives. We urge the State Bar Trustees to reject the Final Report and its proposals completely.
A. The Flawed Foundation of the Program: The 2019 Justice Gap Study The Report is largely driven by the deeply flawed bar-funded “California Justice Gap Study” completed in 2019. This Study concluded that the main reason Californians do not seek or receive legal assistance is that they do not know when a problem is a legal problem: a knowledge gap. The Study failed to consider whether the State Bar’s 2extensive financial resources 1could be used to educate the public to address this knowledge gap. In addition, State Bar staff repeatedly refused to allow members to challenge the basis for the Study’s results and directed them to assume the results were true as presented.
B. Default “In-Court Representation” Would Exacerbate the Very Problems It Aims To Fix One of the more contentious decisions by the Group was to allow for in-court representation other than in jury trials. The adoption of “full in-court representation” has no supporting data or comparison in other systems of law. No other state has allowed unsupervised paraprofessional licensees to practice law in court, yet the State Bar seeks to allow people who could not pass the Bar Exam, and whom it would not license as lawyers, to represent consumers in court as paraprofessionals. This preposterous and illogical proposal was opposed by all stakeholders in the CPPWG meetings, including by legal services organizations. The Report’s in-court representation proposal compromises the efficacy of legal services by dividing in-court representation between attorneys and paraprofessionals. This is a doubling-down on a haves v. have-nots civil justice system structure where those with means, i.e., businesses, corporations, and wealthy individuals, would hire lawyers and those without would be enticed to hire paraprofessionals. And that would be the actual business model set up by the State Bar – a two-tiered justice system that incentivizes limited scope paraprofessionals to carve out market share in representing the poor or middle class all in the name of profit. This proposal would exacerbate communication problems with clients, opposing counsel, and courts. Miscommunication would invariably lead to reduced success and effectiveness. The so called solution to the justice gap would, in fact, give rise to an even greater gap.
C. A For-Profit Model Dooms Free- or Low-Cost Help for Low-Income Consumers The Group was given little evidence as to the ability of its intended clients to afford the costs of services. Indeed, testimony of State Bar-selected paraprofessionals suggested that rates currently being charged are up to $120.00 per hour – a rate charged by many young attorneys starting small legal practices in rural areas. The for-profit model is one key example of how the Group was not given proper direction as to the real needs of the low-income stakeholders. The CPPWG did not credit the testimony of pro-bono and low-bono legal services providers when they articulated repeated and grave concerns about the impacts of the CPPWG’s proposals on the clients 1The State Bar’s 2021 Adopted Budget projects revenues of $207,156,316 dollars based mainly on the collection of $463 dollars annually from attorney license renewal. Notably, this budget is vastly increased from the budget in 2016 of roughly $146,000,000, despite the fact that the State Bar no longer has responsibility for any attorney education, elections for Trustees, seminars, etc. which are now split off into the California Lawyers Association. 3those organizations serve, all of whom are most at risk of harm, including vulnerable groups such as seniors, non-native English speakers, low-income, and BIPOC Californians. The CPPWG did not take those concerns seriously, reducing them to a retort that there is not enough money available to make pro-bono and low-bono services robust enough to meet the alleged needs of many (based on the flawed and resultsoriented Justice Gap Report). In response to testimony and opposition by legal services providers who have been meeting the legal needs of vulnerable populations going back to the 1970’s – over 50 years of experience – the CPPWG, especially Executive Director Leah Wilson, scoffed and flat-out ignored the alternatives suggested by such providers. Frankly, it was a sad and pathetic display of disregard by the Executive Director of the State Bar and the CPPWG of the testimony and advice from true public servants, the result of which was to telegraph the State Bar’s essential message—“don’t confuse us with the facts, the State Bar’s mind is made up.”
D. Amending Rule 5.4 On Non-Attorney Ownership Puts Profits Over People The Proposed Revision to Rule 5.4 is the most controversial change in the entire report. There is simply no reason why a paraprofessional should be allowed to own up to 49.9999% of a law firm. Anyone familiar with corporate law or managing a business knows that 49% ownership – or even a substantially smaller percentage than that – can amount to de facto control of an entity because it is unlikely that the other 51% will be controlled by a single person or interest group. When the remaining 51% is shared by many owners with different interests, it is unlikely that the owners will vote uniformly. Therefore, the majority owner’s control would be even more pronounced. When the majority owner is not a licensed attorney with particular fiduciary duties, it reduces the likelihood that business decisions will be based on fiduciary duties. This one change constitutes the first step in an erosion of significant client protections against conflicts, i.e., making decisions based on profit rather than the client’s best interests. Why is this significant? Recently, Utah and Arizona established “Alternative Legal Structures,” the profit-seeking motive of which is clear. In Utah, over 20 corporate entities have been approved for non-lawyer ownership. In Arizona, a large publicly traded corporation has filed for the creation of an ALS. Such massive corporate “disruption” with businesses whose fiduciary duty is to put profits over people is not what was ostensibly the basis of the State Bar’s alleged purpose behind the CPPWG program. The impact of these entities – who have large internet presences – should be watched before California experiments on consumers. Proponents of the paraprofessional licensure and of allowing corporations to practice law routinely point to England and Wales as alleged shining examples of what deregulation can provide to consumers. In fact, the Closing the Justice Gap Working Group even 4includes one member, Crispin Passmore, from the United Kingdom. 2 However, the CPPWG and its Report fail to disclose that the Boston Consulting Group recently studied the effects of deregulation on the law in England and Wales, concluding that deregulation has not helped the consumer. The Boston Consulting Group Report states: • “Increased competition … is typically measured by lower profitability for the providers. However, profitability does not seem to have decreased in the legal services market …” • “Consumers do not seem to have benefited from increased competition, when looking at price, service quality, and transparency. … The Legal Services Board reports more price increases than decreases across 13 different legal services relative to inflation.” • After deregulation, Wales and England’s position in world access to justice rankings fell from 31st out of 102 to 79th out of 128 countries. The results are in based on over 10 years of deregulation in England and Wales— deregulation put profits over people and does not increase access to justice.
E. Possible Alternatives We believe that alternative solutions were not adequately considered by the Group despite a number of other safe and cost-effective options that would have a more direct and immediate impact on access to justice. For example, in addition to law school clinical programs, we should study the New York Court Navigator Program, the Minnesota Legal Paraprofessional Pilot Program and the Oakland California Community Navigators. Instead, the State Bar staff dismissed these suggestions out of hand and repeatedly asserted that all other options would not provide sufficient numbers to meet the Justice Gap Study reports.. Indeed, while called a “pilot,” the Report contains no sunset provision at all on the Paraprofessional program.
F. Numerous Amendments to California Law Will Be Required The Program’s expansive nature creates numerous problems with its enactment. As the Working Group’s progress proceeded, it became clear that dozens of California statutes 2It is shocking that the State Bar stacked the euphemistically named Closing the Justice Gap Working Group with members who favor the deregulation of the practice of law and especially with four members who do not even live or practice in California. Though they are not practitioners in California, the State Bar vested non-California residents with voting rights over the practice of law in California. Moreover, quite a few of those who serve on the Closing the Justice Gap Working Group clearly stand to profit off of the drastic changes they seek to have California implement. These conflicts have not been fully disclosed and are of particular concern. 5would need to be amended, and new statutes would need to be written. The Report contains no proposed language, which we were told that “others” would write. Multiple State Bar employees and committee liaisons were asked to prepare a list of statutes needing amendment because the task was so massive. In addition, numerous court decisions will be impacted by the program. For example, the Report for the first time in California law defines the “unlawful practice of law.” Historically, the “unlawful practice of law” was defined only by case law on a case-by-case basis. The Report provides no insight into how its definition squares with binding precedent, or how its definition is to be interpreted moving forward.
G. Waiver of Federal Law Claims From the outset, members of the Group did recognize that the new licensees would not be capable of appearing in federal court. As such, areas including Immigration, Tax, Bankruptcy and federal Criminal Law were quickly eliminated. However, months of discussion were had regarding employment and consumer law—many members of the group were unfamiliar with the important federal protections and components of this law, including the Americans with Disabilities Act, the Fair Housing Act, federal civil rights laws, federal employment protections, the Fair Debt Collections Act, and others. If a client approaches one of these new licensees and has both state and federal claims, they will have to make decisions that could have a substantial impact on their case: (1) move forward with state law claims only, in state court, thereby waiving any right to bring federal claims based on the same set of facts, or (2) file in state court and include both state and federal claims, but run the risk of removal to federal court, at which point the litigant would be forced to go unrepresented and/or find a lawyer since the new licensee would be unable to practice in federal court. These decisions are not simple, and clients are not always best suited to make them. A client may not understand the ramifications of choosing a venue or whether to waive claims. The new licensees who are unable to practice in federal court may be unable to articulate the benefits of being in federal court or of raising federal claims. Additionally, the new licensee will have a financial incentive to encourage the client to file in state court and waive the federal law claims so that the licensee can continue collecting fees. Therefore, new licensees may not provide full and complete information to clients, hindering clients’ abilities to make intelligent, informed decisions.
H. Prosecutors and the CPPWG Agree—the Paraprofessional Licensure Will Cause Harm to Consumers and Should Not Even Be Attempted Without Robust Additional Policing and Prosecutorial Resources The CPPWG heard from numerous District Attorneys and prosecutors during its hearings who all said that they cannot adequately police the paralegals, notarios, and lawyers who already are licensed, and neither can they adequately police the nonlicensed who prey upon the vulnerable. They said that the low-income communities are preyed upon by 6serial criminals and fraudsters, and that only the worst-of-the-worst get prosecuted. The prosecutors said this paraprofessional program should not be implemented unless adequate funding and policing and prosecutorial resources are added to the already seriously overburdened systems. At p. 73 of the CPPWG Report, even the Paraprofessional Report acknowledges the “…concerns raised by law enforcement, State Bar staff, legal services providers, and other consumer advocates, that nonlicensed individuals may represent themselves as licensed under the new program, creating a new method to defraud the public” and the problems of enforcement, including:
• Lack of law enforcement resources to investigate and prosecute all cases;
• Lack of State Bar jurisdiction and resources to prosecute cases;
• Prosecution limited to misdemeanor in most cases; and
• Potential client confusion regarding licensure of service providers. Even the CPPWG Report recommends that any paraprofessional program include extraordinary additional policing and prosecutorial safeguards as part of the program, including:
• Harsher criminal penalties for UPL; • Allow felony prosecution, even absent prior conviction; • Expand State Bar authority to investigate and address UPL and fraud by nonlicensees; • Allow for State Bar imposition of citation and fines for UPL;
• Extend statute of limitations for UPL prosecution;
• Additional funding and resources for law enforcement to investigate and prosecute UPL and fraud by nonlicensees;
• Additional funding and resources for State Bar investigation and prosecution of UPL and fraud by nonlicensees; and
• Creation of a victim fund for UPL victims. But we also know from the prosecutors who testified that the threat to vulnerable consumers from this program exists from both licensed and unlicensed paraprofessionals. Approving the paraprofessional program before obtaining the money and other resources to protect the public is irresponsible. Yet, there is zero indication that the money or resources to protect the public will be provided by the legislature. The Board of Trustees’ fiduciary duty to the public interest means it should not let this admittedly harmful program advance. In conclusion, the Consumer Attorneys Association of Los Angeles recommends that the State Bar Trustees reject the California Paraprofessional Working Group’s Report in its entirety. The State Bar has spent untold sums of money and time on the creation of a Report that would require creating a completely new agency. At the same time, the 7State Bar seeks to offer corporate entities complete elimination of ethical protections for consumers (through the parallel Sandbox committee). These proposals to eliminate much of the legal system in California are not merely radical, they are disastrous. Thank you for your time and consideration, and we look forward to written responses to our public comments.
Sincerely, CONSUMER ATTORNEYS ASSOCATION OF LOS ANGELES Genie Harrison, Esq. 2021 CAALA President Doug Silverstein Douglas N. Silverstein, Esq. 2022 CAALA President
January 11, 2022:
Beginning January 1, 2022, a new law known as SB 447 took effect in California that allows plaintiffs in survival actions in the state to obtain damages for pain, suffering, or disfigurement suffered while the decedent was still alive. This major change will likely impact the value of litigated cases as well as the costs of defending these matters.
Survival actions are brought by a decedent’s successors or heirs to recover damages that the deceased would have been entitled to from the time of their injury up until the time of their death. Survival actions in California are governed by § 377.34 of the California Code of Civil Procedure (CCP).
Before 2022, if an injured party deceased before their case was resolved, recovery in that lawsuit was restricted to economic monetary losses and possible punitive damages under other statutes and could not include pre-death pain, suffering, or disfigurement. This restriction was uncommon, as only four other states (Arizona, Colorado, Florida, and Idaho) prohibited non-economic damages in these types of cases.
Negligence actions and medical malpractice actions will be impacted, though the $250,000 Medical Insurance Compensation Reform Act (MICRA) cap still applies to non-economic damages for pain and suffering. The bill also applies to all other personal injury and employment cases.
Prior to this new law being passed, defendants in survival actions were able to argue that any evidence of pre-death pain and suffering was immaterial, and there should be no discovery or evidence at trial on that issue. Under the new law, however, plaintiffs in survival actions will be entitled to introduce evidence regarding the suffering a decedent experienced before death. This evidence has the potential to increase the jury’s sympathy for the plaintiff, as well as increase defense fees due to the new area of discovery it introduces to this type of case.
Although only taking effect now, Governor Gavin Newsom signed the bill into law in October of last year. The law does contain a sunset provision, which will allow it to expire in 2026 without further action from the governor and legislature.
*Article published and distributed by Powerliens.com
November 5, 2021:
Orange County Korean American Bar Association (OCKABA) was founded on the idea to increase access to justice to those who were in the margins, especially those of Asian / Korean descent with language barriers and fears. Serving on the Board of Directors has been a privilege. Last night we had our 16th annual installation dinner and it was great. From time to time I’m reminded about the good we do as lawyers. Along with last nights keynote speaker and the occasional “Thank You” we get from clients, it’s a humbling experience and an honor to be in this position. Recognition is not at all what this is about but it’s nice when it happens.
June 2, 2021:
Our firm is grateful to our clients who entrusted us with all matters during the 2020 pandemic. We received many calls about COVID-19 pandemic leave, the CARES ACT, PPP loans, and sick leave and rights. Although we are not out of the woods yet, things are getting “better”. Business are opening, people are out meeting friends and family, and the rules and regulations are loosening. As we get back to “normal” lets remember to be respectful and also continue to be safe for both our sake and for the safety of others around us. From our office to all of you, may you enjoy prosperity, wealth, and above all else, peace and good health!
February 3, 2021:
This is not “new” per se but I thought worth posting about. FRAUD. Two main types I want to post because it impacts every day people all the time.
- Email Fraud. You should know by now anytime you get an email from someone you don’t know (especially someone who needs money, someone who claims to be someone important, someone who claims to be fleeing some country, someone claiming to be an official or a representative of an official) telling you he wants to deposit $$$ money into your account for you to hold and then for you to send them a check and you can keep $$ amount / percentage as a fee is ALWAYS a fraud. I have told my clients in the past “just delete the email. Ban the sender. It doesn’t matter how official it sounds nor the attached documents.” I have told my clients in the past “Do not open any attachments”.
- Mail Fraud. Ever buy a new home, do a refinance or file for a new LLC / Corporation and then get this very official looking document in the mail telling you that you need to register for a small fee? Usually the fee can be as little as $35 to $70 or maybe as much as $230 or within that ballpark. The envelop, the address of the sender (San Francisco, Sacramento, Los Angeles or other major official sounding city where we have government buildings in California) and the paper, the font, the logos used all look serious. However, if you look closely you will find very small fine print that says something like “this is not a government agency” or “this is not an official government document” or something to that effect. No matter the emotional impulse, remember, you were told in black and white English print that this is NOT OFFICIAL. I have told my clients in the past “Throw this away/shred it/burn it. It’s garbage. DO NOT pay the fee. DO NOT respond.”
None of this is legal advice. This is just information that I have shared regarding past dealings. This post reflects an attempt to educate and not solicit.
February 2, 2021:
We are starting the new year off with a bang! Law Office of Joshua Y. Lee is happy to have recovered over $130,000 for our clients in the month of January and February is already starting off on the right track as well. It is unlawful to discriminate against someone based on race. We also have saved tens of thousands on behalf of small businesses who were being unjustly accused of wrong doing by unscrupulous plaintiffs. We are on YOUR side.
January 26, 2021:
Covid-19 Updates for 2021 in California:
- The FFCRA expired as of December 31, 2020. Any benefits previously required are no longer required.
- However, the Consolidated Appropriations Act (CAA), 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. Again, the CAA no longer require employers to provide these leave benefits beyond Dec. 31, 2020.
- The FFCRA gives tax credits to American businesses with fewer than 500 employees to provide employees with paid leave, either for certain of the employee’s own health needs or to care for family members, for certain reasons related to COVID-19. Go to “Quick Benefits Tips” .
- For further information about the coronavirus, please visit the Centers for Disease Control and Prevention.
December 23, 2020:
Our office is grateful for all of our clients. We are grateful for each and every one who entrusts us with their wants, hopes, fears, concerns, stresses, anxieties, frustrations, and confusion. We do our best to advocate for the oppressed and relieve the pain of those who suffer. It’s gratifying work and rewarding. Not all results are the same and no cases are alike but when we see a positive result and the smiles on our clients’ faces and in some cases, we know how much of an impact we’ve made on their lives, there is no comparison. We take this trust seriously and will always do our best for you.
2020 was a year like no other any of us have experienced. It was filled with every emotion you could feel. It was filled with every end of the world problem you could have imagined. It was filled with changes in relationships, some permanent. However, life moves onto 2021. We look forward to making a positive impact on the lives of those around us so that those who were impacted might go out and continue to pay it forward. Bless you and your family. We hope, pray, and wish for all the best for you.
June 18, 2020:
The new EZ and Revised PPP Loan Forgiveness Application.
WASHINGTON—Today, the U.S. Small Business Administration, in consultation with the Department of the Treasury, posted a revised, borrower-friendly Paycheck Protection Program (PPP) loan forgiveness application implementing the PPP Flexibility Act of 2020, signed into law by President Trump on June 5, 2020. In addition to revising the full forgiveness application, SBA also published a new EZ version of the forgiveness application that applies to borrowers that:
- Are self-employed and have no employees; OR
- Did not reduce the salaries or wages of their employees by more than 25%, and did not reduce the number or hours of their employees; OR
- Experienced reductions in business activity as a result of health directives related to COVID-19, and did not reduce the salaries or wages of their employees by more than 25%.
The EZ application requires fewer calculations and less documentation for eligible borrowers. Details regarding the applicability of these provisions are available in the instructions to the new EZ application form.
Both applications give borrowers the option of using the original 8-week covered period (if their loan was made before June 5, 2020) or an extended 24-week covered period. These changes will result in a more efficient process and make it easier for businesses to realize full forgiveness of their PPP loan.
Click here to view the EZ Forgiveness Application.
Click here to view the Full Forgiveness Application.
June 5, 2020:
As the “Shelter in Place” order from Governor Newsom is gradually lifted, the question is going to be asked “Can my company require me to return to work even though I can productively work from home?” Likewise, as a business owner, you want to know how to safely and legally reopen for business while this pandemic is still very much a part of our lives. The short answer is nobody really knows. However, there are some guidelines and rules that need to be followed to be on the right track.
Covid-19 Prevention Plan and Attestation
As you may know, the industry guidance requires for businesses to adopt a site-specific Covid-19 Prevention Plan and the posting of an Attestation that the business owner or operator has complied with the requirement of the “checklist” issued by the State under the Guidelines for each industry.
You can draft a “prevention plan” based on guidelines as required by federal, state, county, and city laws, guidelines, and regulations.
You can also draft an “attestation” which is a way to provide a written proof or proclamation of your adherence to the prevention plan.
Contact our office for a sample.
Note: As of the date of this posting, we are in Stage 2 of the reopening process in California, which means businesses can reopen if they follow certain guidelines: https://covid19.ca.gov/roadmap/ Essentially, if you decide to reopen your office, California requires businesses to do the following:
- Perform a detailed risk assessment and implement a site-specific protection plan;
- Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them;
- Implement individual control measures and screenings;
- Implement disinfecting protocols; and
- Implement physical distancing guidelines.
The CDC has issued its own guidelines for reopening businesses and workplaces (which are similar to the guidelines issued by other governmental agencies): https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html The CDC has also created a very useful “Workplace Decision Tool” to assist employers in making reopening decisions during the pandemic: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/workplace-decision-tool.html
OSHA has issued its own guidelines for reopening businesses and workplaces (again, which are similar to the guidelines issued by other governmental agencies: https://www.osha.gov/Publications/influenza_pandemic.html
May 2, 2020:
Two Zoom presentations to Holy Wave Sarang Community Church in Anaheim, California.
Presented April 2, 2020 – The CARES ACT / SBA Paycheck Protection Program (“PPP”) as applied through your financial institution. It may be possible that “independent contractors” can either be considered “employees” for an employer who regularly pays them, issues a 1099, and otherwise uses independent contractors as a way of doing business and it may likewise be possible that the independent contractor themselves may be able to qualify for their own PPP and likewise unemployment through the EDD. The limits and specifics are somewhat unclear.
Presented April 13, 2020 – The EDD Pandemic Unemployment Assistance Summary . Some details have changed since this was first presented. The EDD website is now tooled to accept applications from self-employed and independent contractors.
April 2, 2020:
CORONAVIRUS DISEASE INFORMATION RESOURCES:
- CDC: www.cdc.gov/coronavirus/2019-nCoV/index.html
- WHO: www.who.int/emergencies/diseases/novel-coronavirus-2019
- OSHA: www.osha.gov/SLTC/covid-19/index.html
FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA): Employee paid leave rights and Employer’s legal obligations as mandated by the U. S. Department of Labor (DOL).
FFCRA PROHIBITIONS AND PENALTIES:
- Prohibitions:Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
- Penalties and Enforcement:Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act. The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.
CALIFORNIA EMPLOYMENT DEVELOPMENT DEPARTMENT (EDD) INFORMATION FOR EMPLOYERS AND EMPLOYEES AS IT RELATES TO CORONAVIRUS BENEFITS:
- Benefits for those negatively impacted by the coronavirus
- Benefits for those who have been quarantined or sick
- Benefits for those caring for another who is sick
- Benefits for those who have children who have no school as a result of the coronavirus closure
- Benefits for self employed
- Benefits for employers who have had to reduce business hours, close their doors, or are considering laying off employees.
SMALL BUSINESS ADMINISTRATION CORONAVIRUS RELIEF AND FORGIVABLE LOAN PROGRAMS
For a powerpoint or pdf file of the breakdown of all of these and other programs, please email us and we will send it out to you. Thank you.
March 25, 2020: Again, it has been nearly a year since our last post. Coronavirus (Covid-19) has taken over the world. The global economy has stopped and people are in a panic stocking up on toilet paper, hand sanitizer, and ordered to shelter in place or stay at home. This is a troubling time for employees as many are uncertain about their future as businesses either slow or shut their doors. Many are being laid off and more is surely to come. Many businesses, small and large, don’t know how they will weather the storm. See below for the sick leave question in regards to Covid-19.
The link to the Department of Labor: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave?fbclid=IwAR2uLPHaCO9FfS6xkPmTh-KiqVRk1j4bA0sM1el_p0ItcZfrLkOParKm5kY
FAMILIES FIRST CORONAVIRUS RESPONSE ACT (EMPLOYEE PAID LEAVE RIGHTS) Coronavirus Covid-19 regulations for businesses in California. Covid-19 Regulations for Small Businesses. Below is a copy of the Notice published today by the U.S. Department of Labor.
As required by the Families First Coronavirus Response Act (“FFCRA”), employers must display this poster at work or send it to employees by electronic or U.S. mail.
The USDoL has clarified that the FFCRA will be effective April 1, 2020, and has published an informational Covid-19 and the American Workplace page on the internet.
Employers with less than 50 employees are required to provide Emergency Paid Sick Leave to employees who qualify and will be “reimbursed” by the federal government through a “tax credit” on certain payroll taxes.
An employee qualifies for Emergency Paid Sick Leave (at 100% the regular rate of pay) if the employee is unable to work (or telework) because the employee:
1. Is subject to a quarantine;
2. Has been asked by a doctor to self-quarantine;
3. Has COVID-19 or symptoms of COVID-19.
A) Full-time employees are eligible for 80 hours of leave up to $511 per day and $5,110 in the aggregate. Part-time employees are eligible for the number of hours of leave the employee works on average over a two-week period.
A1) An employee qualifies for Emergency Paid Sick Leave (at 2/3 the regular rate of pay) if the employee is unable to work (or telework) because the employee:
A1.1) Is taking care of a person who is subject to quarantine or has been asked by a doctor to self-quarantine
A1.2) Is taking care of a child whose school is closed (or childcare provider is unavailable) for reasons related to COVID-19.
B) Full-time employees are eligible for 80 hours of leave up to $200 per day and $2,000 in the aggregate. Part-time employees are eligible for the number of hours of leave the employee works on average over a two-week period.
Employers who have between 50 and 500 employees are required to provide paid Expanded Family and Medical Leave under the FMLA along the lines of the Emergency Paid Sick Leave requirements but up to 10 weeks in certain cases. Employers who have more than 500 employees are exempt from these requirements.
Stay healthy. Be wise and practice social distancing for the sake of all. God bless us.
For additional questions, contact Joshua Lee, Esq.by going online to his website at: www.lawandevidence.com.
June 19, 2019: Unbelievably, it has been over a year since our last post on our website. A lot has occurred since June of 2018 till now. We have received substantially more phone calls, emails and potential clients filling out our online “new client” forms and have taken on a lot more cases. We do our best in this initial “intake” phase to read and listen to the details of the matter, analyze what we think are the most important legal issues, and give the potential client meaningful feedback. It takes a little extra time and effort to do it this way, rather than simply say no or not answer at all, which we would never intentionally do, but there is a purpose for it. Unfortunately, we simply cannot help everyone. Likewise, not everyone that contacts us has, what we determine, to be legitimate claims that we can ethically stand behind. However, we do what we can to always respond with courtesy and go the extra mile to give some sort of thoughtful feedback. At least they walk away somewhat better off than they came. We do that intentionally because that is what any one of us would also want in the client’s shoes. As a courtesy, we thought it might be a good idea to simply lay it out here so potential clients can get a sense of how a lawyer thinks.
Some Reasons Why the Lawyer did not take your case:
- No legitimate claim. Simple. Our firm will only represent clients with meritorious claims. There is often confusion around what is unpleasant or mean or even unfair vs. what is unlawful. The most common version of this occurs in employment law when an employer / supervisor / coworker is being a “bully” and a “jerk” but is not necessarily breaking a discrimination law under the Fair Employment and Housing Act (the FEHA) standards. Being a mere jerk is not enough. However, do not be discouraged from contacting an attorney if you feel you might have rights. Often, an experienced employment attorney will go down multiple avenues to make sure he/she has covered other issues before getting off the phone with you. There have been several occasions where the client called our office about one area of law, but through conversation, we discovered other significant violations that we could act upon.
- Claims are tenuous. Sometimes claims are “borderline” or “wobblers”. It could be unclear whether laws were being violated or not. The most common manifestation is called a “mixed-motive” claim that raises both legitimate reasons for adverse employment action as well as unlawful ones. In that case, the busier the lawyer, the less likely he/she will take on a “mixed-motive” case. You can always contact other lawyers or ask for a referral. Usually, you should be able to get a few other referrals and figure out what you want to do after getting some well rounded feedback. Just because one lawyer turns you down doesn’t mean it’s over. Go ahead and talk to a few more and get a second opinion.
- The defendant is insolvent / a small employer. What good is it to have legitimate claims if the other party has no way of paying you at the end of the day? That’s the sad reality check. If the defendant is prone to bankruptcy or have little to no assets, they might be what is known as “judgment proof”. One hint under employment law is when the employer has trouble making payroll. In a personal injury matter, sometimes it’s when they have a “vintage” automobile and a minimum policy. However, “pleading poverty” is a common defense tactic for this very purpose. Defendants like to threaten bankruptcy in hopes to scare off aggressive plaintiffs. There are times when the defendant has pled poverty and we knew they had assets and so it did not have the desired effect the defendants were hoping for and we ultimately got what our client rightfully deserved.
- Difficult Client. There might be legitimate claims, perhaps even a Fortune 500 defendant with deep pockets, and everything in the case lines up. However, if the client is difficult and the attorney foresees that it will be twice the work battling both opposing counsel and his own client, he/she may just pass. This is not to say it is all the client’s fault or that there is any fault to be had. However, sometimes personalities just don’t mesh well. It is hard enough battling with the other side who has a legitimate cause to fight you and all the stress and work that goes into pushing a case forward. Having to also fight with your own client is something no lawyer wants to do. After all we are supposed to be on the same team.
There are other reasons that could have been listed but I believe I’ve covered the most common. Hope this is helpful. Cheers!
For additional questions, contact Joshua Lee, Esq.by going online to his website at: www.lawandevidence.com.
June 12, 2018:The Court of Appeal, Second District, Division 7, California in Charles Lee v. Dynamex Operations West, Inc. reversed trial court’s decision to deny Lee’s motion to compel and motion for class certification and remanded to the trial court to issue a new order compelling Dynamex to provide the requested discovery. Furthermore, Lee is to recover his costs on appeal. In relevant part, this is a big decision regarding the independent contractor status. The court stated:
“Individual workers generally possess less bargaining power than a hiring business and may face pressure to accept work for substandard pay and working conditions,” Chief Justice Tani Cantil-Sakauye said in the unanimous decision, according to the San Francisco Chronicle.
Dynamex v. Superior Court is a landmark case that is redefining the way California businesses will differentiate employees from independent contractors through a newly adopted “ABC Test.” The three-pronged test stems from a similar test used in Massachusetts and New Jersey, and states that a worker is properly classified as an independent contractor when the employer can prove up the following:
- That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
- That the worker performs work that is outside the usual course of the hiring entity’s business; and
- That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
All three parts of the ABC Test must be met in order for independent contractor classification to be deemed accurate and lawful. Also, the key note is the employer retains the burden to prove all three elements. In Dynamex, the Supreme Court concluded that the “B” and “C” qualifications had not been met by the company because common proof existed that (“B”) the work of the drivers was part of the company’s core business and (“C”) the drivers worked only for Dynamex and did not have employees of his own.
January 31, 2018: More and more states are allowing for medicinal marijuana use. California has followed Colorado and starting January 2018 is now also allowing recreational use as well. However, the laws have not quite caught up and real life enforcement is still a possibility. Consider that Cannabis is still classified as a Schedule 1 drug (highly addictive with no medicinal value) under the Federal Controlled Substances Act (CSA) (21 U.S.C. § 811). The is the reason why even in states with medicinal marijuana laws like California, doctor’s may not “proscribe” the use of marijuana but can only “recommend” it. It is still illegal “technically”. Federal laws always supercede State. For employers, it needs to be well thought out how to address marijuana use in the workplace. For employees, you should not expect that you can assert your medicinal nor recreational use of marijuana in the workplace. After all, alcohol is legal but your employer may still terminate you for drinking on the job.
December 21, 2017: Another great year for the firm. We are blessed to have wonderful relationships with trusted, ethical, caring and experienced doctors who treat our clients like family. We have clients who appreciate the work that we do. Most of all, we have a great team. We give thanks for all that we have. We give thanks for another year of experiences from which we may learn and grow better next year. We opened our Huntington Beach location. We added an attorney to litigate some of our employment and personal injury cases. Our Office Manager took on the role of Case Manager for our personal injury clients. We look forward to an even better 2018. From everyone at our office to you, we wish you all a wonderful blessings Christmas was meant for and a joyous and happy New Year.
August 12, 2017: Every year, the Kingdom Dreamer Scholarship Foundation, founded by members of Sarang Community Church in Anaheim, California, gives away hundreds of thousands of dollars to college students who show a dire need, an authentic life purpose to serve others, and who will actually be able to fulfill their dream if awarded the scholarship. In the past, our office has actually been part of the very rigorous selection process. This year, our office is humbled by being included amongst many other generous donors and local businesses who likewise share the vision of the future and see the value in investing in those students who seek to do the most good in our world. We know our small contribution will go to a well deserved student who will help make this a better place for others.
Check out the great many local donors and businesses who contributed to the fund.
July 11, 2017: Our office is honored and proud to be featured for the 2017 Fullerton Small Business Excellence Award in the area of Business Law.
June 15, 2017: Attorney Todd Nevel won a unanimous jury trial to the tune of $17.4 million for his sanitation worker client, James Pearl who was taunted by his coworkers because of his “perceived homosexuality”. Discrimination based on sexual orientation as well as “perceived” sexual orientation, race, disability, or other protected class is nonetheless unlawful despite the person not actually belonging to the protected class if the discrimination occurred due to the perception of belonging to one.
May 16, 2017:
STATE BAR ANNOUNCES RESULTS OF FEBRUARY 2017 CALIFORNIA BAR EXAMINATION
Contact: Laura Ernde
SAN FRANCISCO, May 12, 2017 6 p.m. – Today the State Bar of California released the results of the February 2017 California Bar Exam, and announced that 1,532 people (34.5 percent of applicants) passed the General Bar Exam. If those applicants satisfy all other requirements for admission, they will be eligible to be licensed by the State Bar to practice law in California. The February bar exam generally has a lower pass rate than July.
“I’d like to congratulate the applicants who passed the Bar Exam,” said Elizabeth Rindskopf Parker, Executive Director of the State Bar of California. “Regrettably the pass rate shows a continuing decline, a trend happening nationally. The State Bar is committed to a better understanding of the problem to determine how to address it.”
The State Bar is undertaking a series of studies into the bar exam. The initial phase of the standard setting study, which examines the cut score, begins on May 15.
Preliminary statistical analyses from the February 2017 General Bar Exam:
- 4,439 applicants completed the exam
- 1,153 (26.0 percent) were first-time applicants
- The passing rate for first-time applicants was 39.0 percent overall
- 3,286 applicants were repeat applicants
- The passing rate for repeat applicants was 33.0 percent overall
Passing rate (rounded to whole numbers) by law school type:
|California Accredited (but not ABA)||18%||15%|
|Unaccredited Distance Learning||18%||7%|
The General Bar Exam is given in February and July each year. The exam consists of three sections: a multiple choice Multistate Bar Examination (MBE), six essay questions, and two performance tests that are designed to assess an applicant’s ability to apply legal knowledge to practice tests. For the February 2017 administration of the examination, the mean scaled MBE score in California was 1379; the national average is 1341.
The applicants not included in the above totals were attorneys admitted in other states who either chose or were required to take the General Bar Exam, attorneys admitted in foreign jurisdictions, law students in the Law Office / Judge’s Chambers Study Program, or law students who qualified to take the exam through four years of law study.
The Attorneys’ Examination consists of the essay and performance test sections of the General Bar Exam and is open to attorneys who have been admitted to the active practice of law and are in good standing for at least four years in another U.S. jurisdiction. Of the 375 attorneys who completed the Attorneys’ Examination, 167 (44.5 percent) passed. Twenty-two were disciplined attorneys who took the exam as a condition of reinstatement; three disciplined attorneys passed.
More detailed statistics about examination results will be available in approximately three weeks and on the State Bar website: calbar.ca.gov.
Successful applicants who satisfy all other requirements for admission may take the Attorney’s Oath individually beginning May 22, or participate in admissions ceremonies held throughout the state in June.
Once applicants have met all admission requirements and taken the Attorney’s Oath they are licensed to practice law in California and their names will appear on the State Bar website via the attorney search.
The State Bar of California is an administrative arm of the California Supreme Court, protecting the public and seeking to improve the justice system since 1927. All lawyers practicing law in California must be admitted to the State Bar.
March 10, 2017: Iceland becomes the first country in the world to make employers prove they offer equal pay for women. http://www.usatoday.com/story/news/world/2017/03/08/iceland-require-firms-prove-equal-pay/98906702/
February 17, 2017: Michele Coyle, the former chief campus counsel at University of California Riverside from 2006 to 2012, was recently awarded $2.5 million by a Riverside jury. The jury concluded that University officials fired her out of retaliation when she reported the “rampant gender discrimination” she and other females were experiencing. Instead of investigating Coyle’s claims, they fired her one week before a federal “equal opportunity” audit was scheduled. Therefore, Coyle claimed that UC officials retaliated against her because she refused to comply with their discriminatory practices or whitewash the facts.
Coyle claimed that the Gender Discrimination she and other women experienced included:
- Dallas M. Rabenstein, the UC Riverside Executive Vice Chancellor, allegedly preferred hiring, promoting, and increasing the salaries of men over women.
- Rabenstein intentionally lied about the salary differences between his male and female employees in a federal audit.
- Rabenstein refused to accommodate the needs of female employees who were mothers of young children.
- Rabenstein referred to some females as “biddies”.
- Rabenstein referred to females asking for raises as being overly aggressive.
The jury ruled that university officials indeed violated the state labor code and the state Fair Employment and Housing Act. This is just the tip of the iceberg.
February 1, 2017: California Equal Pay Act / California Fair Pay Act (SB358) as established by Governor Brown, took effect January 1, 2016. Read more about it here. http://www.dir.ca.gov/dlse/California_Equal_Pay_Act.htm. There were numerous changes to the Equal Pay Act which created tremendous rights for the plaintiff. The most critical are enumerated on the Department of Industrial Relations website as follows:
- Requiring equal pay for employees who perform “substantially similar work, when viewed as a composite of skill, effort, and responsibility.
- Eliminating the requirement that the employees being compared work at the “same establishment.”
- Making it more difficult for employers to satisfy the “bona fide factor other than sex” defense.
- Ensuring that any legitimate factors relied upon by the employer are applied reasonably and account for the entire pay difference.
- Explicitly stating that retaliation against employees who seek to enforce the law is illegal, and making it illegal for employers to prohibit employees from discussing or inquiring about their co-workers’ wages.
- Extending the number of years that employers must maintain wage and other employment-related records from two years to three years.
Damages are greatly strengthened as well. The California Fair Pay Act strengthens California Labor Code 1197.5, giving it more teeth and allowing for the recovery of the difference in illegal wage disparagement between the genders, interest, and attorney’s fees, but also liquidated damages which effectively doubles the recovery. You could potentially trigger Private Attorney General’s Act (PAGA) along with the discrimination claims under the Fair Employment and Housing Act. By paying female employees less, the employer is inviting a slew of claims not typically found with any other labor code violation. See a recent case here where Farmer’s Insurance paid out $4m to it’s female attorneys who were paid less for no justifiable reason other than gender. http://www.latimes.com/local/abcarian/la-me-abcarian-discrimination-settlement-20160624-snap-story.html
January 9, 2017: Finalized are our new flyers to be seen at local retailers near you soon. Find them at “Pho House” on Beach Blvd. in Buena Park, “Flower Pig” AKA “Kote Deji” Korean bbq restaurant on Rosecrans, “Ahoy Cleaners” in the city of Bellflower, MC Art Hair Salon in La Habra and some other fine businesses. Law Office of Joshua Y. Lee flyer for 2017 and Law Office of Joshua Y. Lee flyer 2017 2.
December 22, 2016: Our office is proud to be ranked in “Three Best Rated”
December 17, 2016: Our office practices Employment Law (Wage & Hour and Discrimination and retaliation under the FEHA), Personal Injury (auto accidents) and Business formation & transactions / contract law. We do not practice bankruptcy. However, you should know that if you were involved in a lawsuit as a plaintiff for damages when you filed for bankruptcy, you MUST list the lawsuit as a “contingent and unliquidated asset/claim” in your bankruptcy filings. The nature of how to report it may be determined by the type of filings you are making and speaking with your attorney. This is best handled in collaboration with your bankruptcy attorney and the counsel of your pending lawsuit. This includes any malpractice, employment, or personal injury claims you might have. The potential for recovery makes lawsuits an itemized asset you must tell the bankruptcy courts about. Failure to disclose carries severe penalties and possible criminal prosecution. If your attorney has failed to fully disclose this requirement it might be cause for malpractice. The good news is, even if you forgot or neglected to report it and then later want to make a correction, you need only to file an amendment to your filings. If your bankruptcy attorney specifically instructed you incorrectly NOT to list your lawsuit, it would be wise to find other counsel as there is an actual conflict of interest at that point and amending the bankruptcy is probably best done with new counsel.
July 1, 2016: In the state of California, minimum wage is currently $10.00 per hour. However, for employers with more than 25 employees in Los Angeles county, including unincorporated parts of Los Angeles, parts of Pasadena, and Santa Monica, minimum wage increased to $10.50 today. Further, the state minimum of 3 days of sick leave increased to 6 days today as well. Smaller business must comply by next year. Under current laws, minimum wage is expected to rise to $15 per hour by 2020.
June 30, 2016: We launched “What’s new”, a page designed to give general updates on changes in our practice areas, relevant laws regarding the specific areas of practice that matter to our clients, and other news that might be useful.
June 29, 2016: On our Facebook page, Law Office of Joshua Y. Lee made this announcement: “Law Office of Joshua Y. Lee will no longer practice Estate Planning. After careful consideration, it just made more sense to pour our resources into our main practice area of employment Law, grow our steadily increasing personal injury, and our stable business transactions practice areas. We have two excellent referrals for any potential clients who are located in Fullerton and specialize in Elder Law as well as in Irvine who provide all sorts of complex advice for business owners. Thank you.”
January 1, 2016: Our office officially dropped the “& Associates” from our name.
All conversations are strictly confidential and we offer free consultations for some matters.
1440 N. Harbor Blvd. Suite 900 (9th floor)
Fullerton, CA 92835
Tel: (714) 616-4466
Fax: (714) 459-7037
Tel: (714) 369-7381
Fax: (714) 459-7037
- Monday: 9:00 AM to 5:00 PM
- Tuesday: 9:00 AM to 5:00 PM
- Wednesday: 9:00 AM to 5:00 PM
- Thursday: 9:00 AM to 5:00 PM
- Friday: 9:00 AM to 5:00 PM
- Saturday: 9:00 AM to 12:00 PM
- Sunday: CLOSED
*After hours and weekend appointments based on need and availability. All in-office consultations are by appointment only. No walk-ins. Please call or email to reschedule or cancel. Thank you.