by Mike McCluskey, Senior Technical Editor, CalChamber

During the spring and early summer months, many employers add to their staff by bringing on students who are on break from their studies. This can provide great opportunities for both the employer and students — but employers should be aware of the many requirements they must meet, which differ depending on whether they’re bringing on unpaid interns or hiring minors (individuals under the age of 18).

The Ins and Outs of Internships

Internships can be a win-win for employers and learners alike. Students can gain valuable knowledge in their chosen profession, and employers can invest in the student’s future success while simultaneously providing mentoring opportunities for current employees. Students can be an enthusiastic addition to your workplace, and providing them with real-world experience can be rewarding. Employers may even spot their next great talent to bring aboard when the student graduates, and the fact that the former intern will more easily assimilate is an added bonus.

Many employers ask if they can use unpaid internships, and the answer is that it’s complicated.

For starters, employers should never try to fill a position with an unpaid intern simply because it’s cost effective. Some employers have used interns as a source of “free” labor, and the law doesn’t look kindly upon such practices: Interns who do the same work as regular employees without pay or benefits have successfully sued employers for unpaid wages and other violations.

Both state and federal law emphasize that for an intern to be unpaid, the student must gain the most benefit from the arrangement, and both the U.S. Department of Labor and the California Division of Labor Standards Enforcement use the “primary beneficiary” test to determine this. In determining whether an individual is an intern or an employee, courts have identified seven factors, which include the extent to which:

• The intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee — and vice versa.
• The internship provides training similar to that given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
• The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
• The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
• The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
• The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
• The intern and the employer understand that the internship is conducted without entitlement to a paid job at the internship’s conclusion.

No single factor is determinative, and the question of whether an intern is actually an employee for purposes of receiving state and federal wage and hour protections will depend on the unique circumstances of each case.

Even if an individual is correctly classified as an unpaid intern, California’s Fair Employment and Housing Act (FEHA) provides the intern protections against harassment and discrimination, and it extends protections and accommodation requirements around religion.

Given the fact-specific analysis that is involved in applying the “primary beneficiary” test, it is highly recommended that employers who are considering bringing on “unpaid” interns consult with legal counsel before doing so.

Hiring Minors

Some employers might not be looking for unpaid interns, but may still wish to bring aboard student workers — and they can do so by directly hiring them and following California’s various wage and hour laws, including paying at least the minimum wage, paying overtime when required, and ensuring compliant meal and rest breaks, to name just a few.

When hiring minors under the age of 18, however, some additional requirements and limitations exist. Employers must ensure that:

• They have a valid Form B1-1 (Statement of Intent to Employ a Minor and Request for a Work Permit) for the current school year and it is on file with the school district.
• The school district has issued a work permit, Form B1-4 (Permit to Employ and Work) for the current school year and the employer has it on file in the workplace.
• The minor’s work schedule complies with the legal number of hours allowed.

Employers also should keep in mind that state and federal laws place significant restrictions on employing minors:
Who are under the age of 14 (with very limited exceptions);

• Working in hazardous occupations (explained in the Department of Industrial Relation’s Child Labor Laws Summary Chart);
• Driving on public highways and streets; and
• Who are in the entertainment industry.

There are also limits on working hours for minors. With limited exceptions, such as minors working at professional baseball games and in specific agricultural packing plants, a minor cannot work more than eight hours in a day. An employer can be charged with a misdemeanor if they fail to abide by this law.

Employers with five or more employees that hire minors also have mandated reporter training requirements. Under the law, two categories of employees within such organizations are labeled “mandated reporters,” which are defined as individuals who must make formal reports of suspected child abuse and neglect to law enforcement authorities. These two categories of employees are:

• “Human resource employees,” defined as any employee designated by the employer to accept any complaints of misconduct (i.e., discrimination, harassment, retaliation, etc.) made under the FEHA; and
• A person whose duties require direct contact with and supervision of minors’ duties in the workplace.

Covered supervisors’ reporting obligations are limited to instances of sexual abuse; however, HR employees are not subject to this limitation and must report all types of child abuse and neglect.

Covered employers must provide these employees with training in both identifying and reporting child abuse and neglect, and the training requirement may be met by completing the Child Abuse Mandated Reporter Training offered by California Department of Social Services’ Office of Child Abuse Prevention.

Employer Takeaways

Bringing on interns and hiring minors can be a win-win for employers and learners alike — but there are key things to remember when doing so.

When considering bringing an unpaid intern on board, start by using the “primary beneficiary” test to determine whether the individual would truly be an intern or should be an employee, and consider consulting legal counsel to help with the analysis.

Interns have the same protections against harassment and discrimination as your regular employees.

When hiring minors, ensure that they have a valid work permit and that the hours worked account for the minor’s school schedule.

Know and abide by restrictions for the type of work minors can perform.

By Adam Beam

California Gov. Gavin Newsom ended some of the state’s water restrictions on Friday because a winter of relentless rain and snow has replenished the state’s reservoirs and eased fears of a shortage after three years of severe drought.

Newsom was careful not to declare the drought to be over, noting water shortages remain in the Klamath River basin along the California-Oregon line and in densely populated Southern California, which relies heavily on the struggling Colorado River system to supply millions of people.

But Newsom did say he would stop asking people to voluntarily cut their water use by 15%, a request he first made nearly two years ago while standing at the edge of a nearly dry Lopez Lake in the state’s Central Coast region — a lake that today is so full from recent storms it is almost spilling over.

“None of us could have imagined … a few months ago that we’d be where we are today,” Newsom said Friday from a farm northwest of Sacramento that has flooded some of its fields with excess water so it will seep underground and refill groundwater basins. “Are we out of the drought? Mostly — but not completely.”

Newsom’s call for voluntary conservation had mixed results. Californians did reduce their water use, but only by 6.2% overall, according to data from the State Water Resources Control Board. Newsom never ordered statewide, mandatory water restrictions — but he did require water agencies to impose some limits on their customers.

Friday, Newsom said he was easing those rules. That change will impact people in different ways depending on where they live. For most people, it means they won’t be limited to watering their lawns on only certain days of the week or at certain times of the day. Other restrictions will remain in place indefinitely, including a ban on watering decorative grass for businesses.

“We’ve got to conserve as a way of life,” Newsom said.

Newsom could ease some restrictions in part because California’s reservoirs are now so full that cities will get more than double the amount of drinking water this year compared to a previous allocation announced last month. Now, water districts that serve 27 million people will get at least 75% of the water they requested from state supplies. Last year, they only got 5% as California endured three of the driest years ever since modern record keeping began in 1896.

“This wet winter, which has led to a large increase in our (water) allocation, is not a signal that we can relax,” said Adel Hagekhalil, general manager of the Metropolitan Water District of Southern California that supplies water to 19 million people. “It is an alarm to act and accelerate our efforts to respond to rapidly changing conditions, including conservation, storage, recycling and reuse.”

Last week the district ended mandatory drought restrictions for about 7 million people who rely almost exclusively on state supplies for their water.

California and the western United States have been in an extended drought for about two decades, a period of abnormal dryness punctuated by occasional intense seasons of storms. It would be tough for a governor “of a large, diverse state that has very diverse water supplies and water demands” to say when a drought has started or ended, said Jay Lund, vice director for the Center for Watershed Sciences at the University of California, Davis.

Lund said the drought is over from many perspectives in California, including urban water supply and reservoirs. But it’s not over for the state’s fragile ecosystems and the groundwater aquifers that were depleted during recent drought years.

“We might never recover them completely,” he said.

Three years of little rain or snow in California had depleted reservoirs to the point the state couldn’t generate electricity from hydroelectric power plants. It dried up wells in rural areas and state officials had to truck in water supplies for some communities. And it reduced the flow of the state’s major rivers and streams, killing off endangered fish and other species.

But since December, no less than 12 powerful storms have hit California, packing so much rain and snow that meteorologists call them “atmospheric rivers.” These storms have flooded homes, closed ski resorts and trapped people in mountain communities for days with no electricity, prompting emergency declarations from President Joe Biden.

“That kind of whiplash is something that we’ve experienced in a very intense way in California that I think is unique across the western U.S.,” said Karla Nemeth, director of the California Department of Water Resources.

Water has been steadily pouring into the state’s reservoirs since December. Of California’s 17 major reservoirs, 12 of them are either at or above their historical averages for this time of year.

And more water is coming. Statewide, the amount of snow piled up in the mountains is already 223% above the April 1 average — the date when the snowpack is typically at its peak. Most of that snow will melt in the coming months, flowing into reservoirs and posing more flooding threats downstream.

WomensNet founded the “Amber Grant” in 1998. The grant was set up with one goal in mind: to honor the memory of a very special young woman, Amber Wigdahl, who died at just 19 years old — before realizing her business dreams.

Today, WomensNet carries on that tradition, proudly giving away at least $30,000 every month in Amber Grant money. In recognition of the diversity of businesses owned by women, WomensNet has also expanded its grant-giving to include “Marketing Grants,” “Business Category Grants,” as well as two “$25,000 Year End Grants.”

Click here to view grant requirements and to apply.

What you should know about current gas rates

Small and medium-sized business customers on the GNR1 rate plan can expect, on average, a 25% decrease* in their March natural gas bills compared to February 2023 bills.

Gas bill decreases are due to:

• Market prices for natural gas are dropping significantly.
• Customers using less gas as colder temperatures start to moderate.

Small business customers will receive the annual April Climate Credit** one billing cycle early to help with higher winter bills.

PG&E does not control the market prices for gas and electricity and does not mark up the cost of gas and electricity that it purchases on behalf of its customers. We’re working to keep bills as low as possible today, and to stabilize them for the long term.

Learn more » 

* The actual decrease may vary depending on billing cycle, location, the amount of energy used, specific rate plans, enrollment in PG&E programs, the weather and other factors.

** California Climate Credit applied in March at the direction of the California Public Utilities Commission.

What you should know about electric rate increases

Starting March 1, 2023, an electric rate increase went into effect for all business customers. This rate increase is largely driven by the cost of storm and wildfire restoration, as well as insurance costs.

The rate increase for businesses receiving both electricity supply and delivery from PG&E is as follows:

• 4.5% for small-sized commercial customers (non-Community Choice Aggregator or Direct Access)
• 4.4% for agriculture customers

Come Out and View Over 200 Short & Feature Films

If you love film, then come out and support the Poppy Jasper International Film Festival this April 12th through 19th. The Poppy Jasper team has worked hard for the past ten months to put together a terrific film festival that will bring over 250 filmmakers to the area, and screen over 200 short and feature films. Screenings will take place in Morgan Hill, Gilroy, Hollister and San Juan Bautista, and there will be several fun events you won’t want to miss including:

• The Poppy Bash at the Capos Event Center in Gilroy on Friday, April 14th which will feature live music, food, and an opportunity to meet filmmakers and industry professionals (tickets start at $35 and private tables are available to support the festival)
• An awards ceremony at the Champagne Room at MOHI Social in Morgan Hill, Sunday, April 16th.
• A beer release for PJIFF, called POP, a hazy IPA beer made by five of our local breweries especially for the festival.

There will also be a performance by the Gilroy Chamber Choir, a brunch at Besson Family Vineyards, after-parties, and much, much more. Volunteers are still needed. To learn more and purchase tickets, visit http://www.pjiff.org.

 

Seeking Volunteers: Mount Madonna School Fifth Graders to Lead March 25 Beach Cleanup

On Saturday, March 25 from 2:00 to 4:00pm, the Mount Madonna School (MMS) fifth grade class is organizing a community beach cleanup of Platforms Beach in Aptos. Volunteers of all ages are invited to join in the effort; the students will supply trash bags and buckets; each volunteer should bring their own gloves. Platforms Beach is located at 439 Beach Drive in Aptos. JUST SHOW UP 🙂

“My fifth grade class is doing an environmental project focused on pelicans,” shared student Marc Monclus in a letter, on behalf of his class, to the school administration. “We are working to do many things to protect these birds and the ocean. We are making a movie to educate others, and are also working to raise money to adopt a pelican.

“As part of our project to help pelicans, we are planning this community beach cleanup,” he continued. “We will gather at Platforms Beach at 2:00pm on Saturday, March 25. We will also be hosting a sustainable bake sale to raise funds for our adopted pelican. We would be ecstatic if you came and supported our efforts and the ocean!”

Among those joining in this effort, will be some of Mount Madonna’s middle and high school students.

“The Environmental Justice Club is participating and we’ll be working with the fifth grade on March 25 to clean up Platforms beach,” said senior student and club leader Mariah Cohen. “Our members are choosing to help with this beach cleanup particularly now because of all the rains we’ve been having. We have learned that the watersheds all lead to the oceans, so trash thrown on the ground gets carried away by rains into the ocean, where plants and animals can get hurt.”

MMS fifth grade students said the cleanup effort is part of a broader community service project that seeks to educate the public and remove trash and debris from beaches to help benefit the ecosystem and reduce the threat to marine animals and sea birds. Earlier this month, the students visited the Elkhorn Slough National Estuarine Reserve in Moss Landing, where they participated in an educational program to learn more about the important role that Elkhorn Slough plays in the health of Monterey Bay and the survival of pelicans and other seabirds.

“Plastic on the beach can affect pelicans and other birds because they eat it and it makes them think they are full,” commented Monclus. “In fact, an estimated one million seabirds die each year from eating plastic. Through efforts such as the beach cleanup, we hope to help reduce the 5.25 trillion pieces of plastic in the ocean and keep the 380 million metric tons of plastic created every year from entering the ocean.”

The spirit of student empowerment and a shared commitment to service runs deep at Mount Madonna School.

“We want to do our part as environmental stewards and representatives to keep our oceans clean and our animals safe,” added Cohen “Many of us have gone through fifth grade at Mount Madonna, so we know how important the annual environmental project is to each class, and we want to help the fifth graders out by joining them and keeping them inspired to help the world.”

Nestled among the redwoods on 375 acres, Mount Madonna School (MMS) is a diverse learning community dedicated to creative, intellectual, and ethical growth. MMS supports its students in becoming caring, self-aware, discerning and articulate individuals; and believes a fulfilling life includes personal accomplishments, meaningful relationships and service to society. The CAIS and WASC accredited program emphasizes academic excellence, creative self-expression and positive character development. Located on Summit Road between Gilroy and Watsonville. Founded in 1979.

Join the City of Gilroy on March 25, 2023, as we work to clean up Gilroy’s Downtown.

Littering and illegal dumping have been a real problem in our town in recent years, and it will take all of us working together to help solve this problem.

On March 25, we will hold the first of many cleanup efforts that will be targeted toward helping to keep our community beautiful.

✅ What: Downtown Clean Up

✅ When: March 25, 2023, at 9 AM

✅ Where: Meet on the grassy lot next to the Gilroy Arts Center located at 7341 Monterey Road

✅ Details: All volunteers will be required to sign a waiver. Students can receive volunteer hours for participating; please bring your paperwork to the event. The City will provide trash bags and grabbers.

For questions regarding the event, please contact Bryce Atkins at bryce.atkins@cityofgilroy.org or 408-846-0219.

The City will announce additional opportunities for the community to get involved in helping to keep our community beautiful in the next few months. We look forward to working with businesses, community groups, and residents as we “Fight Dirty” together.

On March 14, the Santa Clara County Board of Supervisors unanimously approved the Microenterprise Home Kitchen Operation ordinance. This allows small business owners to apply for a permit that allows them to legally prepare, cook, and sell food out of a private home kitchen.

I first proposed allowing these micro businesses during the pandemic as a way to help displaced workers become legal small business owners.

These businesses will be exempt from many standard food facility requirements but still must obtain a health permit and be subject to inspections by the County of Santa Clara Department of Environmental Health. In addition, participants will be required to complete a food safety certification course.

Each home kitchen business is limited to serving 30 meals per day or 60 meals per week and all food is required to be prepared, cooked, and served on the same day. Each business may not exceed $58,275 in verifiable gross annual sales.

The proposed fee to operate a MEHKO is $635, with an additional one-time $340 application fee. However, these fees may be waived for the first year of operation under a County program designed to assist small businesses in the wake of the COVID-19 pandemic.

You can find more information and apply for a MEHKO permit here. Applications are being accepted now and businesses can begin operating on April 14.

The California Department of Industrial Relations (DIR) regulation now requires employers to address COVID-19 workplace safety measures either in their existing written Injury and Illness Prevention Program (IIPP) or in a separate document. California employers are required to maintain an effective general workplace safety and health program per Title 8 of the California Code of Regulations, Section 3203, but now must also address COVID-19 as a workplace hazard and include measures to prevent workplace transmission, employee training, and methods for responding to COVID-19 cases at the workplace per Title 8 of the California Code of Regulations, Section 3205–3205.3. Additionally, the regulations also define “close contact” and “infectious period” along with a review of applicable guidance regarding ventilation of indoor workplaces. Furthermore, the regulations require employers to make COVID-19 testing available at no cost and during employees’ paid time regardless of vaccination status for all workers who had a close contact in the workplace. These regulations will be in effect through February 3, 2025, including a record-keeping requirement in the regulation that will be in effect through February 3, 2026.

Frequently Asked Questions

By Brady Van Engelen, CalChamber

Legislation establishing an arbitrary greenhouse gas target and identified by the California Chamber of Commerce as a 2023 Job Killer passed a Senate policy committee this week. SB 12 (Stern; D-Canoga Park) would require statewide greenhouse gas emissions to be reduced to at least 55% below the 1990 level by December 31, 2030. This would be a dramatic increase from the state’s current goal of 40% during the same time frame.

The bill passed the Senate Environmental Quality Committee with opponents and even one supporter acknowledging the bill could hurt Californians by increasing costs.

“California businesses and residents suffer from an affordability crisis, created in large part by the state’s escalating energy costs,” said CalChamber Policy Advocate Brady Van Engelen. “At a time when Californians are suffering from nearly record high prices on many essential goods from groceries to gas, increasing costs is the wrong approach to take. We support climate change laws and regulations that are cost-effective, technology-neutral and promote the use of market-based strategies. SB 12 does not take any of these into account and will lead to excessive costs, hurt California residents and businesses, and severely damage the state’s economy.”

California has some of the highest commercial and industrial electricity rates and highest gasoline and diesel prices in the country.

In addition to CalChamber, to date, 20 other organizations are voicing strong opposition to the measure. In a coalition letter sent to Senator Stern on March 13, the groups argue that SB 12 undermines the existing public and transparent process that the California Air Resources Board (CARB) recently adopted, where hundreds of stakeholders engaged in a months-long inclusive Scoping Plan review.

During that process, stakeholders made clear that the transition to a clean energy future will require a deliberate and thoughtful approach to ensure the state is appropriately balancing affordability with reliability.

According to data released by CARB, increasing the greenhouse gas 2030 emissions target from 40% to 55% below the 1990 level would require the state to remove an additional 17 million gasoline-powered vehicles from the road by 2030. CARB’s own modeling of scenarios that mirror what is proposed in SB 12 have shown the bill will be “economically and technically infeasible due to the current lack of low-carbon energy infrastructure, unavailability of technology, large job loss and high implementation costs.”

WASHINGTON – Silicon Valley Bank, Santa Clara, California, was closed today by the California Department of Financial Protection and Innovation, which appointed the Federal Deposit Insurance Corporation (FDIC) as receiver. To protect insured depositors, the FDIC created the Deposit Insurance National Bank of Santa Clara (DINB). At the time of closing, the FDIC as receiver immediately transferred to the DINB all insured deposits of Silicon Valley Bank.

All insured depositors will have full access to their insured deposits no later than Monday morning, March 13, 2023. The FDIC will pay uninsured depositors an advance dividend within the next week. Uninsured depositors will receive a receivership certificate for the remaining amount of their uninsured funds. As the FDIC sells the assets of Silicon Valley Bank, future dividend payments may be made to uninsured depositors.

Silicon Valley Bank had 17 branches in California and Massachusetts. The main office and all branches of Silicon Valley Bank will reopen on Monday, March 13, 2023. The DINB will maintain Silicon Valley Bank’s normal business hours. Banking activities will resume no later than Monday, March 13, including on-line banking and other services. Silicon Valley Bank’s official checks will continue to clear. Under the Federal Deposit Insurance Act, the FDIC may create a DINB to ensure that customers have continued access to their insured funds.

As of December 31, 2022, Silicon Valley Bank had approximately $209.0 billion in total assets and about $175.4 billion in total deposits. At the time of closing, the amount of deposits in excess of the insurance limits was undetermined. The amount of uninsured deposits will be determined once the FDIC obtains additional information from the bank and customers.

Customers with accounts in excess of $250,000 should contact the FDIC toll–free at 1-866-799-0959.

The FDIC as receiver will retain all the assets from Silicon Valley Bank for later disposition. Loan customers should continue to make their payments as usual.

Silicon Valley Bank is the first FDIC–insured institution to fail this year. The last FDIC–insured institution to close was Almena State Bank, Almena, Kansas, on October 23, 2020.

FDIC: PR-16-2023

Frequently Asked Questions

Failed Bank Information for Silicon Valley Bank, Santa Clara, CA

By Nigel Duara, CalMatters

Lea este artículo en español.

 

It all started with a parking spot.

On a breezy afternoon in September 2017, Chris Langer couldn’t find one that would accommodate his van and the ramp he uses for his wheelchair behind a San Diego lobster shop.

What transpired next has been the subject of arguments before two federal courts and opened a wide door to more federal disability lawsuits in California, home to more of these lawsuits in the last litigious decade than any other state.

Four months after that fall day, Langer filed a disability access lawsuit in federal court against the lobster shop, a smoke shop in the same building and the building’s owners, Milan and Diana Kiser, claiming a violation of his rights. 

Langer has filed more than 2,000 claims like those over the past decade or so. For the last two years, his case against the Kisers was headed to defeat, with a federal judge ruling against him and questioning his motivation.

But last month, Langer prevailed before a three-judge panel on the 9th U.S. Circuit Court of Appeals. Attorneys who argue federal disability cases say that victory, which itself is being appealed, could open the floodgates to more federal disability rights lawsuits after a brief slowdown last year. 

If Langer wins the next round, attorneys who represent businesses sued in disability cases worry that the case would set a precedent for a broader claim of standing to sue among plaintiffs in California disabled access lawsuits.

Typically, these cases are settled — out of tens of thousands of federal disability rights lawsuits filed nationally, only a couple dozen have ever gone to trial, according to a review of federal appellate court decisions by Texas attorney Richard Hunt, who defends businesses sued for disability rights claims. 

In most other states, any awards won in federal disability rights cases can only be used to pay legal fees.

California law allows for extra compensation that can benefit plaintiffs in those cases. The Unruh Civil Rights Act provides an additional award to plaintiffs themselves, which begin at a minimum of $4,000. 

And that’s a major reason why California has had more than 30,000 federal disability rights lawsuits in the last decade, far outpacing the rest of the country. 

Langer declined to be interviewed, according to his attorney, who said people like Langer are forcing businesses to comply with a law they should already be following. 

“There’s no three-letter agency that’s going around and enforcing these laws,” said Langer’s attorney, Dennis Price. “What my clients are doing is basic code enforcement, and that’s what California law specifically encourages.” 

The Americans with Disabilities Act is one of a few federal laws that operate by turning their  enforcement over to the people, with occasional interventions by the U.S. Department of Justice.

Among the courts, the academics who study this issue and the lawyers who argue the cases, there are three interpretations of the actions of Langer, who has acknowledged in court proceedings that he is a “serial litigator.”

In one, serial litigants are warriors for disability access, literally opening doors for other people by identifying obstacles and suing to fix them.

In the second, they are simply pawns of avaricious law firms who have created a cottage industry out of disability rights lawsuits. According to filings in a tax case, one serial litigant in Sacramento accumulated more than $1 million in settlements in 2014 alone. The firm representing him kept more than half of the money and he kept the rest. 

The third perspective, and one evidently held by the original judge deciding Langer’s case, is the least generous, handed down when Langer attempted to exclude his history as a serial litigator from trial. Several times in his April 5, 2021, opinion, U.S. District Court Judge Robert Benitez questioned Langer’s credibility. 

“The court finds it doubtful that (Langer) would frequently travel to the property to purchase lobster, as he testified,” Benitez wrote. “This is bolstered by the fact (Langer) has filed previous lawsuits in which he admits he never intended to return to the premises.

“On the day he filed this lawsuit, he also filed six other lawsuits. Yet, (Langer) was unfamiliar with those suits as well as the businesses involved.”

Thousands of disability claims every year

The Americans with Disabilities Act was signed into law in 1990, but the volume of lawsuits picked up in 2013, according to Seyfarth Shaw, the law firm that tracks federal disability lawsuits. Since then, 33,100 claims were filed in federal courts in California. New York had 15,427 and Florida had 14,296 in the last decade. The next seven states barely topped 1,000 cases combined.   

That initial ruling in the Langer case, coupled with high-profile moves by liberal district attorneys in San Francisco and Los Angeles against a firm known for representing serial filers appeared to chill the number of disability claims filed against California businesses last year, according to data collected by Seyfarth Shaw. Last year, 2,519 cases were filed in California. 

In one of the most publicized California cases, an attorney who used a wheelchair filed 67 lawsuits against businesses in 2005 in the tiny San Diego County mountain town of Julian, home of the Apple Days Festival, alleging that he could not access them. The attorney was later disbarred, in part because he pleaded no contest to filing federal disability lawsuits on behalf of a disabled client who had no idea the cases had been filed.

But businesses in the town of Julian did indeed improve their disability access. In the words of a North County Times story from 2007: “wider doors, lower counters, repaved parking lots, more disabled parking and signs, signs, signs.”

The question in many of these cases comes down to the legal concept of “standing,” which asks whether the plaintiffs have actually suffered a consequence because of their disability, and whether they ever intended to return to the place where they encountered a problem. Benitez ruled that Langer did have standing, but his rights weren’t violated, in part because the parking spot in question wasn’t supposed to be publicly accessible. 

On appeal — and this is the other big reason plaintiffs file so often in California — the standing claim was received much more warmly, as it has been in other disability cases filed in the 9th U.S. Circuit Court of Appeals. “The attempted use of past litigation to prevent a litigant from pursuing a valid claim in federal court warrants our most careful scrutiny,” the court, known as one of the country’s most liberal federal appeals courts, had written in a 2008 opinion cited in the Langer appellate decision. 

Last month, Langer’s arguments won over two judges on a three-judge panel. They reversed the Benitez decision and found that the lobster shop’s penchant for letting customers park in the tenant space made it, effectively, a public lot. 

“A business cannot offer parking to customers without disabilities while not offering that same benefit to customers with disabilities,” the two judges wrote. “That discrimination goes to the heart of the ADA.”

The Kisers have asked for a rehearing before all nine appellate court judges.

A service for disabled Californians

Serial filers are the targets of misdirected anger, said Evelyn Clark, a Washington, D.C., attorney who uses a wheelchair and authored a much-cited paper in law school on serial litigants.  

“Something that’s really small for you that just looks like, oh it’s just one little step, could be a total barrier for someone like me trying to get in,” Clark said. “But nobody’s going to be 100% compliant with every tiny regulation under the ADA. So I can understand the frustration of business owners. 

“But I’ve heard people in California talk about how they go out in a wheelchair and it’s almost kind of a reverse discrimination, where people just assume you’re there to sue them,” Clark said.

On the defense’s side, there’s another perception: that these lawsuits find the poorest store owners least able to defend themselves in a country where they may not speak the language or understand the legal system, with offers to settle that just so happen to be a little cheaper than mounting a defense.

Business owners on edge

Business owners with a direct interest in the Langer case are hoping the Kisers get a rehearing before the full appeals court. Late last month, they filed a friend-of-the-court brief arguing against the decision by the three-judge panel. 

“Make no mistake, these ADA lawsuits are not about promoting the ideals of the ADA,” they wrote, “but rather, they are about the illegitimate transfer of wealth from historically marginalized communities and into the pockets of ADA plaintiff’s lawyers.” 

It was a federal disability lawsuit that led Moji Saniefar, one of the authors of that brief, from white collar securities litigation to defending businesses from federal disability rights lawsuits. Like an action movie sequel, this time it was personal: A serial litigant sued Saniefar’s father’s restaurant. 

Reza Saniefar was the owner of Zlfred’s, a well-loved Fresno cafe that closed during the coronavirus pandemic. An Iranian fleeing the revolution in 1979, Reza Saniefar operated a small, immigrant-run family business. Locals evidently miss his restaurant enough to post and share copycat recipes.

The cafe was named Zlfred’s because its former name was shared with another restaurant, called Alfred’s. When the other Alfred’s sued, Saniefar said, the previous owner simply stuck a Z where the A was. Thus, Zlfred’s.

The Saniefar family adopted the same defiant attitude when the restaurant was sued over disability access in 2014. Moji was their attorney. They won, and then went on the offensive, taking the law firm that represented the plaintiff to court, claiming they used fraud and deception to coerce small businesses into settling the cases. 

The firm settled the case and shut down, but it wasn’t the only firm that represents serial litigants. 

A much larger one, called Potter Handy, was accused by the liberal district attorneys in Los Angeles and San Francisco counties of “bombarding California’s small businesses with abusive boilerplate lawsuits,” and instructing serial litigants to pretend to have encountered barriers at a business they never visited. They further accused Potter Handy of having its client file fake disability claims that led to settlements. 

“Each year Potter Handy uses ADA/Unruh lawsuits to shake down hundreds or even thousands of small businesses to pay it cash settlements, regardless of whether the businesses actually violate the ADA,” wrote Los Angeles County District Attorney George Gascon and former San Francisco City and County Attorney Chesa Boudin in an April 2022 state court filing. 

They said the lawsuits not only threaten small businesses, but also “unfairly taint the reputation of other innocent disabled consumers.” 

Potter Handy, which also does business as the Center for Disability Access, did not return calls seeking comment. Neither did Gascon. Boudin and Gascon wrote in their complaint that Potter Handy was particularly active in San Francisco’s Chinatown during the pandemic. 

“Multiple Chinatown businesses were sued for allegedly having inaccessible outdoor dining tables during the early months of 2021,” they wrote, but “those businesses were open for takeout only during that time and had no dining tables at all—indoor or outdoor.”

Potter Handy responded in court that Boudin and Gascon were making the accusations for political reasons. San Francisco Superior Court Judge Curtis Karnow dismissed the case, and ruled that Potter Handy’s attorneys were covered by California’s “litigation privilege.” 

A client who wanted to fight

In the Langer case, Moji Saniefar is representing a handful of Bay Area merchant associations, including the Chinatown Merchants United Association of San Francisco, who are panicked about the appellate court ruling in Langer’s favor.

“Serial ADA plaintiff’s lawyers recognize that the justice gap makes (small businesses) far more likely to settle cases quickly and without prolonged litigation,” according to the Feb. 16 friend-of -the-court brief. 

Hunt, the Texas attorney who defends businesses in disability rights cases, said it’s unusual for his clients to take a case to court, much less all the way up to federal appeals court. 

“You have to have a particularly angry, rich, stubborn client to not settle the case,” Hunt said. “I’m looking for angry, rich, stubborn clients. I would love to have some, but so far, when I tell my clients that they can get out of it by settling it for cheaper than the cost of defense, then they’re like, you know, let’s just settle it.” 

The attorney for the Kisers, whom Langer is suing, said the Legislature needs to step in. He agrees that his clients may fit Hunt’s description. 

“Mr Kiser’s perspective is, hey, we did nothing wrong and we don’t think we should have to pay this guy,” said Sam Henein, a San Diego lawyer. “He says if the judge tells me I did something wrong, I guess then I have to pay, but I don’t think I did.”

The solution, said Clark, the D.C. attorney, is to amend the ADA’s enforcement mechanism from its current iteration to a “notice and cure” standard, which would give businesses 60 or 90 days to fix the accessibility issue without money changing hands.

By Dan Walters, CalMatters

In 2017, while running for governor, Gavin Newsom pledged in a social media post that if elected “I will lead the effort to develop the 3.5 million new housing units we need by 2025 because our solutions must be as bold as the problem is big.”

“I realize building 3.5 million new housing units is an audacious goal – but it’s achievable, Newsom continued. “There is no silver bullet to solve this crisis. We need to attack the problem on multiple fronts by generating more funding for affordable housing, implementing regulatory reform and creating new financial incentives for local jurisdictions that produce housing while penalizing those that fall short.”

Newsom deserves credit for making a greater effort on housing than any other recent governor. Dozens of new laws have been passed, and the state has leaned hard on local governments to zone more land for housing and remove bureaucratic roadblocks, even suing those that drag their feet. However, the actual impact, at least so far, has been scant.

Newsom has backed away from the unrealistic 3.5 million goal, which was generated by a consulting firm using weird methodology based on construction in New York and New Jersey. He now describes it as “aspirational” rather than a promise.

Building 3.5 million units by 2025 would have required about 500,000 a year, much more than highest rate of housing construction ever achieved in California, just over 300,000 in 1986 during a period of very high population growth. In fact, since Newsom uttered the pledge six years ago, the state has added perhaps 500,000 units in total.

The Terner Center for Housing Innovation at UC Berkeley developed a summary of the dozens of laws and administrative actions to boost housing production since 2016, and told the Legislature during a recent hearing that “housing unaffordability remains high and production relatively stagnant.”

“We’re coming up short,” Ben Metcalf, managing director of the Terner Center, told legislators. “But I think it’s important to say it’s also early,” noting that many of the pro-housing policies are new and still being implemented.

So, one might ask, if the 3.5 million figure is unrealistically high, what’s the right one?

Newsom’s newly proposed budget notes that “Between January 2000 and January 2022, the state gained 5.9 million new households, but only an additional 2.5 million housing units,” which implies a backlog of 3.4 million, roughly the number he originally cited in 2017.

The state’s Department of Housing and Community Development sets regional quotas for zoning residential land on an assumption that California needs to build 2.5 million units by 2030, but that’s probably unrealistic as well. It would mean more than 350,000 a year, still higher than the 1986 construction peak.

Despite the 2.5 million figure, California’s official housing goal is just 180,000 units a year, or 1.3 million by 2030.

That level of construction would be doable under the right circumstances of having enough land zoned for residential uses, streamlining costly regulatory processes, having attractive interest rates, and overcoming shortages of construction labor and rising materials costs. Two decades ago, California was building more than 200,000 units a year, according to data from the Terner Center.

However, Newsom’s budget projects that California builders will pull permits for about 122,000 units this year, and even were that level achieved, the net gain would be lower – perhaps 100,000 due to existing units being destroyed by fire or obsolescence.

Whatever the correct “aspirational” number may be, we’re still not coming anywhere close despite spending billions of dollars and making strenuous efforts to lower hurdles. Thus the housing crisis, which includes the nation’s worst homelessness crisis, continues to worsen.

Fantastical Flowers Spring Celebration Opens March 25

March 1, 2023 (Gilroy, CA): The 2023 season at Gilroy Gardens Family Theme Park will get off to a colorful start in March with an exciting, all-new event: the Fantastical Flowers Spring Celebration. This two-month event will feature brightly colored blossoms, larger-than-life silk sculptures, and fun floral-themed food and family activities throughout the park.

From Opening Day on March 25 through May 29, the park’s majestic gardens will be transformed with blooms big and small in every color of the rainbow. As guests stroll through the park, they’ll encounter colorful beds full of spring flowers in bloom as well as larger-than-life silk flower sculptures created by master artisans. A human-size “birdhouse” will greet guests as they cross over the flower-festooned Sycamore Bridge—and provide the perfect backdrop for fun family photo ops.

In addition to enjoying the park’s 40+ rides and attractions, guests will also discover spring-themed family games and activity stations where they can create colorful art, plant flowers to take home, and learn more about the life cycles of flowers, birds, and insects. Live entertainment will be provided by “The Flower Buds” in an energetic, all-new interactive drumming and comedy performance. Restaurants and carts throughout the park will offer unique floral-themed food and beverages.

The Fantastical Flowers Spring Celebration at Gilroy Gardens will be open to the public on weekends and select weekdays from March 25 through May 29, 2023. An exclusive Preview Day will be held on Saturday, March 18, for 2023 Premium Members only.

The Fantastical Flowers Spring Celebration is included with regular park admission and is free to 2023 Premium and Value Members. Discount tickets and memberships can be purchased online at www.gilroygardens.org.

About Gilroy Gardens Family Theme Park—Where Fun Grows on Trees
Gilroy Gardens Family Theme Park is a 501(c)(3) nonprofit corporation and California’s only horticultural theme park. Founded by Michael Bonfante, the park offers a unique family experience centered around trees and plants with an emphasis on local history. The park’s mission is to offer safe, clean, family entertainment in natural landscapes while educating guests on the importance of horticulture, agriculture, and local history. The park features over 40 rides and attractions and more than 10,000 trees, including the world-famous Circus Trees. For more information, visit www.gilroygardens.org.

By Ashley Hoffman, CalChamber

The California Chamber of Commerce today announced that SB 592 (Newman; D-Fullerton) is the first job creator bill of the year. The bill is also sponsored by the California Hispanic Chamber of Commerce and the CalAsian Chamber of Commerce.

SB 592 proposes two important changes to law.

• First, the bill would require the Department of Industrial Relations (DIR) to translate its website content into the most commonly spoken languages in California. Currently, website content is primarily in English. The bill would result in the addition of content made available in Spanish, Chinese, Tagalog and Vietnamese.

• Secondly, SB 592 will shield employers who rely in good faith on the written advice of the Department of Labor Standards Enforcement (DLSE) from punishment through the assessment of civil and criminal penalties, fines and interest.

“California has complex, unique burdensome labor and employment laws,” said CalChamber Policy Advocate Ashley Hoffman. “Employers who are non-English speakers should have the benefit of access to resources that can help them be compliant with those laws. Further, small businesses who rely on DLSE’s written advice and guidance should not be punished if a court ultimately determines that advice is wrong.”

There are numerous instances where courts have interpreted statutes differently from DLSE-established guidelines, resulting in employers owing not only back wages but also penalties under the Private Attorneys General Act (PAGA) and other Labor Code provisions.

Troester v. Starbucks is one such example where the court invalidated part of DLSE’s enforcement manual regarding wage and hour law that employers had relied on.

Importantly, SB 592 does not protect bad actors. Employers must provide a defense that demonstrates they are entitled to any good faith determination.

“Uncertainty for employers regarding the correct application of California’s numerous labor and employment laws detrimentally impacts the state’s economy as well as employees,” said Hoffman. “Providing certainty through SB 592 will assist all employers in their efforts to comply with the law, thereby producing a better business environment, growth in the economy and an improved work environment for employees. Further, providing website information in the languages most commonly spoken in California will benefit both employers and employees and create higher levels of compliance.”

On National Slam the Scam Day and throughout the year, we give you the tools to recognize Social Security-related scams and stop scammers from stealing your money and personal information. Share scam information with your loved ones. Slam the Scam!

Recognize the four basic signs of a scam:

1. Scammers pretend to be from a familiar organization or agency, like the Social Security Administration. They may email attachments with official-looking logos, seals, signatures, or pictures of employee credentials.
2. Scammers mention a problem or a prize. They may say your Social Security number was involved in a crime or ask for personal information to process a benefit increase.
3. Scammers pressure you to act immediately. They may threaten you with arrest or legal action.
4. Scammers tell you to pay using a gift card, prepaid debit card, cryptocurrency, wire or money transfer, or by mailing cash. They may also tell you to transfer your money to a “safe” account.

Ignore scammers and report criminal behavior. Report Social Security-related scams to the SSA Office of the Inspector General (OIG)