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Keeping on top of the Insurance
Industry Legislation and Political Happenings
Note: NAIW International
is a 501(c)(6) organization and as such it may engage in limited political activities that, inform, educate, and promote their
given interest. They may not engage in direct expenditures advocating a vote for a political candidate or cause.
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| Stacy Colledge, Legislation Liaison |
Gun Related Entry Protected by Qualified Immunity
By
Kevin P. Allen
(Posted February 2012)
Darin Ryburn, et al. v. George R. Huff,
et al.
United States Supreme Court (January 23, 2012)
This case examines the lawfulness of warrantless home entry and qualified immunity.
Four officers
from the Burbank Police Department responded to a call from a local high school. Upon arriving, the school principal told
them of a rumor that Vincent Huff, a student, wrote a letter threatening to shoot up the school. The officers’ investigation
revealed that Vincent had been absent from school for two days and that he was frequently subjected to bullying. This information
coincided with the officers’ training that such characteristics are common among school shooters.
The
officers proceeded to Vincent’s home in order to interview him. Upon arriving, Officer Zepeda knocked on the door, announcing
the officers’ presence several times. No one answered the door or responded to Zepeda’s knocks. Sgt. Ryburn then
called the home telephone: no response. He next called the cell phone of Vincent’s mother, Mrs. Huff. She answered,
informing the sergeant she was inside the home. In response to Sgt. Ryburn’s request to speak with her, Mrs. Huff hung
up the phone.
One to two minutes later, Vincent and his mother came outside. During the ensuing conversation,
Vincent denied the threats and Mrs. Huff refused Ryburn’s request to continue the discussion inside the home. After
that refusal, Sgt. Ryburn asked Mrs. Huff if there were any guns in the home. Without responding, she immediately turned around
and ran inside. Sgt. Ryburn followed, Vincent followed him, and Officer Zepeda followed Vincent. The two other officers on-scene,
who were out of earshot, also entered the home upon the assumption Mrs. Huff had given the officers permission to enter.
The officers remained in the home for 5-10 minutes. The officers spoke to Vincent and his mother, ultimately
concluding the rumor was false. They did not search the Huffs or their property. The officers left after Mr. Huff (Vincent’s
father) challenged their authority to be there.
The Huffs filed a civil rights action in federal court, alleging
a Fourth Amendment violation: specifically, home entry without a warrant. After a bench trial, the District Court entered
judgment in favor of the officers on the basis of qualified immunity. The Court found that Mrs. Huff’s behavior, combined
with the information learned at the school, could reasonably lead officers to believe the house contained weapons, and that
family members or the officers themselves were in danger.
A divided panel of the Ninth Circuit Court of Appeals
disagreed, finding no qualified immunity existed. The Ninth Circuit found that no reasonable belief of harm existed, because
Mrs. Huff only asserted her right to end her conversation with the officers and re-enter her home.
The U.S.
Supreme Court reversed the Ninth Circuit, finding qualified immunity existed. Noting that none of its decisions had ever found
a Fourth Amendment violation on even roughly comparable facts, the Court concluded that a reasonable officer could believe
home entry is lawful in those situations where there’s a reasonable basis to believe the threat of violence is imminent.
The Court strongly disagreed with the Ninth Circuit’s opinion, finding the lower court’s analysis
flawed for multiple reasons. First, the appellate panel did not accept the factual findings of the District court. Second,
the panel found that lawful conduct may never be a matter of concern to officers. Third, the panel looked at case events in
isolated, discrete parts, rather than as a whole. Fourth, the panel improperly second-guessed the officers’ decision
by using 20-20 hindsight.
COMMENT
Ryburn
does not break new legal ground. On the contrary, it affirms precedent, including that: (1) qualified immunity applies to
a warrantless home entry where officer(s) reasonably believe there is imminent harm; and (2) officers' judgments are not
to be judged with 20-20 hindsight. By issuing a brief, per curiam opinion, the Court may have intended to emphasize
the ordinary nature of its decision, with an eye towards nudging some lower courts (like the Ninth Circuit) "back in
line," so to speak.
One particular paragraph from Ryburn merits mention. It reads: "the
panel majority’s method of analyzing the string of events that unfolded at the Huff residence was entirely unrealistic.
The majority looked at each separate event in isolation and concluded that each, in itself, did not give cause for concern.
But it is a matter of common sense that a combination of events each of which is mundane when viewed in isolation may paint
an alarming picture." With these three sentences, the Court emphatically reaffirmed that Fourth Amendment claims should
be examined by looking at the totality of the circumstances.
For a copy of the complete decision see:
http://www.supremecourt.gov/opinions/11pdf/11-208.pdf
The Weekly Law Resume TM is published fifty-two times a year, and
is a complimentary publication of Low, Ball & Lynch, Attorneys at Law, a Professional Corporation, with offices in San
Francisco and Monterey, California. Information regarding this and other Weekly Law Resume TM articles is
available from Linda Meyer at (415) 981-6630, LMeyer@lowball.com or at www.lowball.com.
New California Employment Laws: Many Changes for 2012 (Posted January 2012)
by Christine Balbo Reed
The recent session of the California Legislature produced a series of new laws that will impact the state’s private
sector employers in 2012. While few labor and employment bills escaped the veto pen of former Governor Schwarzenegger, Governor
Jerry Brown has opened the legislative floodgates during his first year in office. The laws summarized below take effect on
January 1, 2012, unless noted otherwise. These laws add substantial new workplace rights and obligations in areas such as
background checks, leaves of absence, payment of wages, and discrimination.
AB 22 - Limitations on Use
of Credit Reports. Under new Labor Code § 1024.5, employers may no longer obtain credit reports for employees
or applicants unless the person falls within a limited exception and the employer provides written notice informing the person
for whom the report is sought and the specific reason for requesting the report. The positions or circumstances for
which exceptions apply include: (1) managerial; (2) law enforcement; (3) report required by law; (4) access to bank or personal
account information; (5) signatory on an employer bank or credit card account, or authorized to transfer money or to enter
into financial contracts on behalf of the employer; (6) access to confidential or proprietary information; and (7) a position
that involves regular access to cash totaling $10,000 or more. Employers should no longer perform credit checks on
applicants or employees unless the position of the person meets one of these exceptions. Employers who perform credit checks
should revise their notice and disclosure forms to comply with the notice requirements of AB 22. SB 459 - Independent
Contractors. This bill adds new Labor Code §§ 226.8 and 2753 to impose new penalties on companies who engage
in “willful” (i.e., knowing and voluntary) misclassification of workers as independent contractors. The law also
imposes penalties on companies if they charge a misclassified worker a fee, or make deductions from the worker’s compensation
for any purpose. The penalties range from $5,000 to $15,000 per violation and more if a pattern and practice is established.
In addition, a violating employer will be required to display prominently on its website a notice stating, among other things,
that it has committed a serious violation of the law by engaging in the willful misclassification of employees and that it
has changed its business practices to avoid committing further violations. Employers who use independent contractors
should carefully evaluate whether such workers are properly classified and, if not, modify their work terms and conditions
or convert them to employees. AB 1396 - Commission Agreements Must Be Written. This bill amends Labor
Code § 2751. Whenever an employer enters into an employment contract with an employee for services to be performed in
California, and the employee is to be paid commissions, the contract must be in writing and must set forth the method by which
the commissions are to be computed and paid. Every employee is entitled to a signed copy of the contract and must provide
a signed receipt to the employer. This law will take effect on January 1, 2013. Employers should put all commission
agreements in writing and sign them. Employers also should have employees sign and return an acknowledgement of receipt, which
should be maintained in the employee’s file. AB 240 - Liquidated Damages for Minimum Wage Violations.
This bill amends Labor Code § 98 and 1194.2. In any action to recover wages because of payment of less than
the state minimum wage, an employee is now entitled to recover (in a claim before the Labor Commissioner as well as in a civil
suit) liquidated damages equal to twice the wages unlawfully unpaid plus interest. AB 469 - Wage Information.
This bill, known as the Wage Theft Prevention Act of 2011 and modeled after a similar New York law, adds a variety
of new rules, procedures, and remedies to strengthen enforcement of the Labor Code’s wage and hour requirements. Perhaps
most significantly, the law adds Labor Code § 2810.5, which requires an employer to provide each non-exempt employee,
at the time of hiring, a notice containing extensive and specific information about the employer and its worker’s compensation
insurance carrier. The Labor Commissioner is directed to prepare a template notice that complies with these requirements.
Employers should monitor the Department of Industrial Relations website for the template at www.dir.ca.gov. AB
887 - Gender Identity and Gender Expression Protected. This bill expands the protections afforded employees and applicants
under the Fair Employment and Housing Act (FEHA) and Unruh Civil Rights Act by adding “gender expression” and
“gender identity” as protected classifications. Employers should revise their EEO policies and training
materials to include these new protected categories. SB 559 – Prohibition on Genetic Information Discrimination.
This bill expands the FEHA and Unruh Civil Rights Act to expressly prohibit discrimination based on genetic information.
The law prohibits employers from taking adverse employment action against an applicant or employee based on genetic test results
(of the individual or family member), manifestation of a disease or disorder in a family member, or a request for or receipt
of genetic services (e.g., cancer screening). Employers should: (1) update their EEO policies to include genetic information
as a protected category; (2) review and edit job applications, medical leave forms, pre-employment physical forms, wellness
program forms, and related documents to omit any requests for genetic information. AB 592 - Adds Interference
Claims to Leave Laws. This bill amends the California Family Rights Act and the California Pregnancy Disability Leave
Act to expressly prohibit an employer from taking any action to “interfere with, restrain, or deny the exercise of”
rights provided under these laws. The existing federal Family and Medical Leave Act contains similar language authorizing
an interference claim. SB 272 - Organ/Bone Marrow Donor Leave Clarified. A recently enacted law, the
Michelle Maykin Memorial Donation Protection Act, grants employees leave of up to five days for a bone marrow donation, and
up to 30 days for an organ donation, within a one-year period. Lab. Code § 1510. SB 272 clarifies the statute in several
respects. First, the leave periods are “business days.” Second, the one-year period is 12 consecutive months
measured from the leave start date (i.e., a rolling 12-month period). Third, this leave does not amount to a break in service
for purposes of any paid time off accrual. Finally, an employer can require the employee to use earned sick leave, vacation,
or other paid time off during the leave in specified amounts: up to five days for bone marrow donor leave, and up to two weeks
for organ donor leave. Employers should revise their leave policies to incorporate these changes. SB
299 - Paid Medical Benefits for Pregnancy Disability Leave. This bill requires the employer to maintain, and pay
for, group health insurance coverage for an employee on pregnancy disability leave for the full duration of that leave (up
to four months) on the same terms as existed before the leave. SB 299 authorizes an employer to recover the premium costs
it paid from the employee if the employee fails to return to work after her leave expires and the failure to return
is not due to: (1) the employee taking another leave under the California Family Rights Act (e.g., bonding leave), or (2)
the continuation, recurrence, or onset of a health condition that entitles the employee to another pregnancy leave or other
circumstances beyond the employee’s control.
Employers should revise their pregnancy disability leave policies
and related benefits procedures to comply with this new requirement.
Now is a good time to review policies, procedures,
posters and manuals to ensure compliance with these laws and be ready for 2012!
This Employment Law Newsletter is published by the Low, Ball & Lynch Employment
Law Group. © Copyright 2011 by Low, Ball & Lynch, LLC. Photocopying or reproducing this newsletter in any form in
whole or in part for other than internal use is a violation of copyright law and is strictly prohibited without the express
written consent of Low, Ball & Lynch, LLC. The information contained in this newsletter is intended for information purposes
only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. Readers should not
act upon any information contained herein without seeking professional counsel.
Sporadic Incidents
of Alleged Sexual Conduct Insufficient to Create a Hostile Work Environment (posted December 2011)
Stephanie Brennan v. Townsend & O’Leary Enterprises,
Inc/, et al
Court of Appeal, Fourth District (October
18, 2011)
In this case, the Court of Appeal
held that judgment for an employer was proper where the plaintiff failed to present sufficient evidence that she was subjected
to severe or pervasive workplace harassment based on her gender.
Stephanie Brennan worked at an advertising
agency from 1991 to 2005. In 2004, she inadvertently received an e-mail intended for another person that referred to
her as “big-titted” and “mindless.” Between 2000 and 2003, she witnessed an employee wearing
a veil with a plastic penis during a staff meeting, an employee dressed as Santa Claus who asked three females personal questions,
and the owner wearing a Santa hat with the word “Bitch” across the brow. Brennan sued the agency for sexual
harassment, and the jury found in her favor. The agency moved for a judgment notwithstanding the verdict. The
trial court found that there was insufficient evidence to support the jury’s finding that Brennan was subjected to severe
or pervasive sexual harassment and granted the motion.
The Court of Appeal affirmed the decision of
the trial court. To prevail on a hostile work environment claim, an employee must show that the harassment was severe
enough or sufficiently pervasive to alter the conditions of employment and create a hostile or abusive work environment because
of their sex. Here, Brennan’s sole claim for harassment directed at her based on her gender was the 2004
e-mail. The Court found that this incident and the other three incidents of alleged sexual harassment within a span
of three years did not amount to the kind of pervasive harassment that created a hostile work environment. Rather, they
were sporadic and isolated, and thus did not show pervasiveness.
COMMENT
This case stands for the proposition that occasional incidents of boorish behavior in the workplace do not necessarily
create a hostile work environment for its employees. To be actionable, alleged sexual harassment cannot be occasional,
isolated, sporadic or trivial. Rather, a plaintiff must show a concerted pattern of harassment of a repeated, routine
or generalized nature.
For a copy of the complete decision see:
http://www.courtinfo.ca.gov/opinions/documents/G042398.PDF
The Weekly Law Resume TM is published fifty-two times a year,
and is a complimentary publication of Low, Ball & Lynch, Attorneys at Law, a Professional Corporation, with offices in
San Francisco and Monterey, California. Information regarding this and other Weekly Law Resume TM articles
is available from Linda Meyer at (415) 981-6630, LMeyer@lowball.com or at www.lowball.com.
Dangerous
Condition of Public Property Requires that Physical Condition of the Property Contribute to the Injury (posted November 2011)
Jose Salas, et al. v. California Department
of Transportation
Court of Appeal, Third District
(August 29, 2011)
This case examines what a plaintiff must prove when alleging that an intersection or roadway constitutes a dangerous
condition.
At approximately 7:00 a.m. on October 21, 2006, pedestrian Paula Salas was hit by a car
while crossing State Route 12 at an intersection. At the moment she was hit, Salas was slightly outside the crosswalk.
She later died from her injuries.
Salas’ family and Estate subsequently filed a wrongful-death and
survivor action against the California Department of Transportation (Caltrans), alleging “dangerous condition of public
property” pursuant to Government Code Section 835. Plaintiffs premised their dangerous condition argument on improper
signage, improper crosswalk placement, lack of traffic signals or safety devices, and lack of traffic enforcement. Caltrans
moved for summary judgment on the basis that: (1) no physical aspect of the crosswalk caused the incident; and (2) there were
no prior pedestrian/vehicle incidents at the crosswalk. Each side submitted declarations and the trial court sustained most
of Caltrans’ objections to one of the declarations supporting Plaintiffs’ opposition. Ultimately, the trial court
granted the motion filed by Caltrans, finding the intersection did not constitute a dangerous condition. Plaintiffs appealed.
The Third District affirmed.
On appeal, the Third District addressed two questions: (1) whether Caltrans
met its prima facie burden to demonstrate no dangerous condition existed; and (2) whether Plaintiffs created a triable issue
of material fact. In deciding the latter issue, the Court examined the trial court’s exclusion of Plaintiffs’
evidence.
Referring to and relying upon
Cerna v. City of Oakland (2008) 161 Cal. App. 4th 1340 (Weekly Law Resume April 24, 2008), the Salas Court reaffirmed that third party conduct (like that
of a motorist) is not, in and of itself, a dangerous condition. To qualify as a “dangerous condition” as defined
by Government Code Section 830, such third party conduct must relate to a physical condition of the property and this physical
condition must have some causal relationship to the third-party conduct that injured plaintiff.
Because Caltrans
demonstrated the intersection: (1) was located on a straight and level road with no obstructions for either motorist or pedestrians;
and that (2) the road contained appropriate markings and signage, the Court found that Caltrans established that the intersection
was a non-dangerous physical condition. Coupled with the fact that Caltrans showed no pedestrian-related accidents at the
intersection in the past 10 years, the Court held Caltrans met its prima facie burden to show the intersection was not a Section
830 “dangerous condition.” In finding the intersection contained sufficient markings, the Court noted the white
parallel lines marking the crosswalk, the three signs notifying cars of the approaching intersection and crosswalk, and the
marking on the roadway itself, in large letters.
Turning to the next question--whether or not Plaintiffs
created a triable issue of material fact--the Court upheld the trial court’s exclusion of Plaintiff’s evidence
and, after reviewing the remaining evidence, found they did not create any triable issue material fact. Accordingly, the Court
affirmed the summary judgment.
COMMENT
Salas affirms a
bedrock principle of California public entity law: that public property constitutes a dangerous condition when it creates
a substantial risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably
foreseeable that it will be used. Because the Salas plaintiffs failed to make that showing, the crosswalk and intersection
here did not constitute a dangerous condition of public property.
For a copy of the complete decision
see:
http://www.courtinfo.ca.gov/opinions/documents/C063434.PDF
The Weekly Law Resume TM is published fifty-two
times a year, and is a complimentary publication of Low, Ball & Lynch, Attorneys at Law, a Professional Corporation, with
offices in San Francisco and Monterey, California. Information regarding this and other Weekly Law Resume TM
articles is available from Linda Meyer at (415) 981-6630, LMeyer@lowball.com or at www.lowball.com.
BOARD TOPIC SUMMARY - INTERNATIONAL ASSOCIATION OF INSURANCE PROFESSIONALS (dba) TULSA OK - August
19th and 20th 2011
Motions approved by the Board
Motion #1 Amend Policy I.A.7. to include Certified
Professional In Insurance, offered by Professional Career Institute/Central Insurance as
an approved program for CPIW/CPIM/CIIP designations. Reason: To offer additional courses as designation qualifiers
Motion #2
Amend Policy I.A 7. to include CLTC, offered by Corporation
of Long Term Care, as an approved program for CPIW/CPIM/CIIP designations. Reason:
To offer additional courses as designation qualifiers
Motion #3
Amend Paragraph 2, Policy I.C.10 to read: NAIW/IAIP reimburses only travel expenses (air, mileage, parking, tolls) for local association visits. Local Associations are responsible for any lodging or meals that may be associated with local visits. NAIW does not reimburse Council Directors for travel to Council Meeting site visits,
Council Meetings, Regional Conference or for the International Convention. Reason:
To clarify what is reimbursed by NAIW/IAIP versus what is responsibility
of local associations
(Posted October 2011)
Public Employer May Not Interfere With Employee's First Amendment
Rights Absent Evidence that Employee's Conduct Caused or May Reasonably Cause Future Workplace Disruption
Kathleen Nichols v. Laura Dancer, et al.
Ninth Circuit Court of Appeals
(September 15, 2011)
This case addresses the issue of balancing a public employee's interest in expressing his or her opinions on matters
of public concern, and the public employer's interest in promoting the efficiency of the public services it performs through
its employees.
Kathleen Nichols served as the administrative assistant to Jeffrey Blanck, the Washoe County School
District's (the "District") general counsel. Mr. Blanck was suspended for alleged misuse of the District's
funds. The District's Human Resources Director, Laura Dancer, temporarily transferred Ms. Nichols while the District decided
what to do with Mr. Blanck's employment. It was undisputed that Ms. Nichols got along with her colleagues and there were
no reports of any problems with her work.
Ms. Nichols attended a public meeting where the Board of Trustees met
to consider Mr. Blanck's employment, and she sat next to Mr. Blanck, but did not speak to him. At the meeting, the Board
announced that Mr. Blanck would not be retained as general counsel. The next day, Ms. Nichols was told that she could not
return to the general counsel's office because sitting next to Mr. Blanck raised questions about her loyalty to the District.
She was given a choice to remain in her current position or take early retirement. Ms. Nichols chose to retire and sued the
District for violating her First Amendment rights. The District moved for summary judgment, which the District Court granted.
The Ninth Circuit reversed the District Court's decision and remanded the case back to the District Court.
The
Court noted that a public employer has significant discretion to discipline employees if their conduct disrupts the workplace.
However, an employer may not interfere with an employee's First Amendment rights unless there is evidence that the employee's
actions actually disrupted the workplace or were reasonably likely to do so in the future. Here, the Court emphasized that
the District had no evidence of any disruption caused by Ms. Nichols sitting quietly next to Mr. Blanck. The District's
mere speculation as to Ms. Nichols' association with Mr. Blanck was insufficient to prove that her conduct would cause
future disruption. There was no evidence to suggest that her association actually disrupted the District's operation or
that it interfered with her job performance. Thus, the District failed to produce adequate evidence to establish that Ms.
Nichols' conduct caused, or was reasonably likely to cause, future disruption in the workplace.
COMMENT
A public employer may only take adverse action against an employee for exercising his or her First Amendment
rights if there is a reasonable basis to believe that the employee's conduct will disrupt the workplace. Although the
public agency need not wait until there is an actual disruption, speculation that disruption will occur is insufficient.
For a copy of the complete decision see:
http://www.ca9.uscourts.gov/datastore/opinions/2011/09/15/10-15359.pdf
Senate Bill 474 is scheduled for its third reading as of 07/06/2011
(Prepared by Victoria A. Chris of IPSJC) It will require construction contracts and amendments to insure
or indemnify, including the cost to defend, a general contractor, construction manager or subcontractor against liability
claims of death or bodily injury to persons, injury to property, or expense are unenforceable to the extent the claims relate
to the active negligence or willful misconduct of that general contractor, construction manager, or other subcontractor as
specified, or for defects in design furnished by those persons, or to the extent the claims do not arise out of the scope
of work of the subcontractor in the written agreement between the parties. The bill would require that California law be applied
to these contracts regardless of any choice of law rules that might otherwise apply. It also states that a waiver of these
provisions is contrary to public policy and unenforceable. The bill does not include residential construction. Learn more
by going to http://www.aroundthecapitol.com/Bills/SB_474/20112012/
(Posted 08/2011)
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- Check back here soon for the archived 2011-2012
postings
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