CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

READY TO RE-OPEN? Be Aware of California’s New Right-of-Recall Law and Implications for Employers in the Hospitality, Event Center, Airport, Private Club, and Commercial Property Service Industries

Posted on: June 22nd, 2021

By: Mandy Hexom

On April 16, 2021, Governor Newson signed into law a right to notice and recall of certain employees in the hospitality, event center, airport, private club, and commercial property service industries who were laid off due to the effects of the COVID-19 pandemic. This new law is set forth in California Labor Code Section 2810.8, which became effective immediately and does not expire until December 31, 2024.

What businesses or employers must comply?

  1. Hotel Employers
  2. Event Center Employers
  3. Airport Service Providers
  4. Airport Hospitality Employers
  5. Private Club Employers
  6. Commercial Property Service Providers

What if the ownership, organization, or location of the business changed?

Even if the ownership or organization of the business changed, if the business still operates the same or similar operations as before the COVID-19 state of emergency, the business must comply with this new law. The same is true if the business moved offices or locations.

Requirements of the Right-to-Recall Law

  1. Covered Employees: This law applies to laid-off workers that performed at least two hours of work during a six month period (including leave and vacation time), in the 12 months preceding January 1, 2020, that were terminated or separated due to a reason related to the COVID-19 pandemic and not due to a disciplinary reason. The employee is qualified if the employee held the same or similar position at the time of the COVID-19 lay-off.
  2. Opening a Position and Notice: Within five business days of establishing a position, an employer shall offer its laid-off employees in writing (by personal service or by mail to last known address and by email and text message, if possible), all job positions that become available for which the employee is qualified. The employer must provide at least five business days’ notice to the employee to accept or reject the position.
  3. Multiple Employees for One Position: If more than one laid-off employee qualifies for an open position, the position should be simultaneously and conditionally offered to each qualified employee. The conditional offers should indicate that the employee with the longest length of service gets priority, if accepted.
  4. Written Notice When Laid-Off Employee Not Hired: An employer that does not recall a laid-off employee on the grounds of lack of qualifications and instead hires a non-laid-off employee, written notice must be provided within 30 days including the length of service of the employee hired and all reasons for the decision.
  5. Recordkeeping: Employers must retain records for at least three years of the employees (i) full legal name; (ii) job classification at time of lay-off; (iii) date of hire; (iv) last known residential address, email, and telephone number; and (v) copies of written notices and communications regarding the lay-off and offers of employment.

How is the Right-to-Recall Law Enforced?

Non-compliance with Labor Code Section 2810.8 will give the former employee a right to file a complaint with the Division of Labor Standards Enforcement. A private right of action to file a lawsuit in court is not permitted. An aggrieved employee can recover front pay, back pay, lost benefits, and/or reinstatement if the employee prevails.

Depending on how many employees are covered within the business, civil monetary penalties ($100) and liquidated damages ($500) per employee for each day the law is violated until the violation is cured can be enormous.

However, there may still be a right to file a lawsuit for certain aggrieved employees. Check your local ordinances as cities or counties in San Diego, Carlsbad, Los Angeles, Pasadena, Oakland, Santa Clara, and San Francisco have also passed similar local laws. These local versions of the Right-to-Recall may permit an aggrieved employee to file a lawsuit in court.

For covered employers, carefully read and follow the requirements of Labor Code Section 2810.8. Click the following link for the full text of Labor Code Section 2810.8: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2810.8.&nodeTreePath=4.2.3&lawCode=LAB

If you have any questions, please contact Mandy Hexom at [email protected] or 619-515-5403.

Certiorari in the Georgia Supreme Court by the Numbers

Posted on: June 22nd, 2021

By: Jacob Daly

The Georgia Court of Appeals has just ruled against your client, and so you’re considering whether you should file a petition for a writ of certiorari in the Georgia Supreme Court. Your client wants to know the likelihood of your petition being granted and, if it is granted, what the possible outcomes are likely to be. You have a vague understanding that most petitions are denied and that the odds of reversal are good when a petition is granted, but you do not know the exact numbers to tell your client. Now you do.

Between 2017 and 2020, the Georgia Supreme Court ruled on 1,883 petitions, 1,166 of which were filed in civil cases. It granted only 174 of all petitions and only 119 that were filed in civil cases.[1] In 2017, the Court ruled on 516 petitions (289 in civil cases) and granted 52 (35 in civil cases). In 2018, the Court ruled on 407 petitions (251 in civil cases) and granted 47 (33 in civil cases). In 2019, the Court ruled on 464 petitions (300 in civil cases) and granted 43 (31 in civil cases). In 2020, the Court ruled on 496 petitions (326 in civil cases) and granted 32 (20 in civil cases). Thus, the overall odds of a petition being granted were 10.08% in 2017, 11.55% in 2018, 9.27% in 2019, and 6.45% in 2020, for a 4-year rate of 9.24%. In civil cases, the odds of a petition being granted were 12.11% in 2017, 13.15% in 2018, 10.33% in 2019, and 6.13% in 2020, for a 4-year rate of 10.21%. Until the numbers for future years are available, it is impossible to know whether the down numbers for 2020 represent a shift in the Court’s (un) willingness to grant petitions or just an anomaly related to COVID-19.

Once you tell your client the odds of a petition being granted are only about 10%, the next question is likely to be about the expected outcome if your petition happens to be among the lucky few that are granted. In the 174 total cases in which the Court granted a petition between 2017 and 2020, there were 12 different outcomes.  And in the 119 civil cases in which the Court granted a petition between 2017 and 2020, there were 10 different outcomes. These various outcomes are reflected in the chart below.

From the standpoint of the petitioner, the goal is to obtain a change to the ruling of the lower court. An outright reversal is the best possible outcome for the petitioner, and it is also the most frequent outcome (this is not surprising because the Court can “affirm” the lower court’s decision by denying the petition. If the Court wants to reverse the lower court’s decision, it must first grant the petition). An outright reversal was the outcome in 65 of 174 cases (37.36%) in which the Court granted a petition, including 50 of 119 civil cases (42.02%). But an outright reversal is not the only favorable outcome for the petitioner. The outcomes listed in the chart above that would be at least partially favorable for the petitioner are reversed, vacated, vacated and reversed, affirmed in part and reversed in part, reversed in part and vacated in part, affirmed in part and vacated in part, reversed summarily, and vacated summarily. Including all of these outcomes together yields a favorable outcome rate for the petitioner of 64.37% in all cases (112 of 174 cases decided wholly or partially in favor of the petitioner) and 66.39% in civil cases (79 of 119 cases decided wholly or partially in favor of the petitioner).

In contrast, the outcomes that would be completely negative for the petitioner are affirmed and dismissed as improvidently granted. Combining these outcomes yields a completely negative outcome rate for the petitioner of 29.89% in all cases (52 of 174) and 29.41% in civil cases (35 of 119). The only other outcomes are cert dismissed on motion and no decision yet, which represent only 5.75% of all cases (10 of 174) and 4.20% of civil cases (5 of 119). These outcomes cannot be characterized as favorable or unfavorable for the petitioner because (1) a petition that is dismissed pursuant to a motion probably means that the case settled, and (2) a case that has not yet been decided can still be decided either way. When the Court decides the 5 undecided cases (4 criminal and 1 civil), these numbers will change slightly, but not enough to alter any conclusions that may be drawn from them.

In conclusion, an analysis of the petitions decided by the Court between 2017 and 2020 and the outcomes in the cases in which the petition was granted confirms what most attorneys probably assume. That is, there is a very low chance of the Court granting a petition and a very good chance of at least a partially favorable outcome for the petitioner in those few cases. For attorneys handling civil cases, the odds of the Court granting your petition are only 10.21%, but once your petition has been granted, the odds of success greatly increase, depending on how you define success. If you define success as nothing less than an outright reversal, you have a 42.02% chance of achieving that goal. However, if you define success as any outcome that has some negative impact on the lower court’s decision, then you have a 66.39% chance of success.

For questions, please contact Jake Daly at [email protected] or (770) 818-1431.


[1] There was one civil case in 2018 and one civil case in 2019 in which a petition was filed and granted with a note indicating that the case would be treated as a direct appeal rather than as a cert case. Those two cases are not included in this analysis.

Supreme Court of Kentucky Defines Scope of Amended Peer Review Statute for Many Healthcare Entities

Posted on: June 22nd, 2021

By: Kyle Virgin

The discoverability of peer review information in healthcare litigation is a hot-button issue across the country and Kentucky is no different. In 2018, the Kentucky General Assembly amended KRS 311.377 to state that peer review information “shall not be subject to discovery, subpoena, or introduction into evidence, in any civil action in any court, including but not limited to medical malpractice actions…” Last Thursday, the Supreme Court of Kentucky provided some much-needed clarity regarding the scope of the protections afforded by KRS 311.377 as amended. 

In Jewish Hospital v. Honorable Mitch Perry, Jefferson Circuit Court Judge, et al., the Court granted a writ of prohibition filed by the hospital aimed at prohibiting the use of a root-cause analysis at trial. Importantly, the opinion addresses whether KRS 311.377 should be applied retroactively to cases pending when the amendment was passed and, also, if the specific root-cause analysis at issue is privileged under the statute.

As for retroactivity, the Court focused on the effect of the amendment on the pending litigation and held that KRS 311.377 is procedural in nature thus allowing it to be applied retroactively to previously pending litigation and/or peer review actions that occurred prior to the amendment of the statute.

After concluding that the statute could be applied retroactively, the Court provided guidance regarding the scope of the protections afforded. Ultimately, the Court held that KRS 311.377 offers broader protections than the federal protections provided by the Patient Safety and Quality Improvement Act of 2005. The important point here being that the statute privileges materials even if they are not submitted to another body as is required by the Patient Safety and Quality Improvement Act of 2005.

Healthcare entities who routinely participate in peer review processes should take note of this decision and take the necessary steps to ensure that any such reviews are protected as applicable.

For more information, please contact Kyle Virgin at [email protected]

Massachusetts Appeals Court Holds a Claim for Violation of the Statute Prohibiting the Unauthorized Use of One’s Name, Portrait or Picture Does Not Require Quantifiable Damages to Survive Summary Judgment

Posted on: June 21st, 2021

By: Nancy Reimer, Victoria Fuller and Lori Eller

In Tedeschi-Freij vs. Percy Law Group, P.C., et al., the Massachusetts Appeals Court held a plaintiff need not show evidence of quantifiable damages to survive a motion for summary judgment on a claim for the unauthorized use of her name in violation of (1) M.G.L. c. 214, § 3A (Unauthorized Use of Name, Portrait or Picture of Person); and (2) the Massachusetts Consumer Protection Statute, M.G.L. c. 93A.

There, the plaintiff-attorney, Suzanne G. Tedeschi-Freij (“Tedeschi”) joined Percy & Teixeira, P.C., in 2000. While Tedeschi was advertised as a partner at the firm, and the firm’s name was changed to Percy, Tedeschi, & Associates, P.C., her equity position was never formalized. In 2012, Tedeschi left the firm and requested her name be removed from the firm name. Despite Tedeschi’s repeated requests, Percy changed the firm name with the Secretary of State’s office but continued to advertise the firm as “Percy, Tedeschi, & Associates, P.C.” until 2018. Perry stopped using Tedeschi’s name only after receiving a bar complaint concerning the unauthorized use of Tedeschi’s name, but even then failed to fully remove it from all advertisements.

The Appeals Court held Tedeschi did not need to establish quantifiable damages to avoid summary judgment on her claim for violation of M.G.L. c. 214, § 3A. The Appeals Court followed other jurisdictions in holding nominal damages were presumed in cases involving the infringement on the right to control the use of one’s identity.

In addition, the Appeals Court held Tedeschi’s claim fell outside the intra-enterprise exception to c. 93A, because no joint venture between Tedeschi and Percy ever formalized. The Appeals Court further noted it was unclear whether Tedeschi was asserting a claim for violation of c. 93A § 9 or § 11, but that if it were under § 11, she would be obligated to prove that she suffered or will suffer “loss of money or property,” which would be fatal to the claim. The Court further held if the claim was asserted pursuant to § 9, her claim would not be fatal as that section provides nominal damages.

Lawyers, particularly those in smaller firms, should take care to remove an attorney’s name from the firm name and all associated advertising when that attorney has left the firm. Failure to do so may result in legal action or a bar complaint against the remaining partners.

For more information, please contact Nancy Reimer at [email protected], Victoria Fuller at [email protected], or Lori Eller at [email protected].

Another Hit to Short-Term Rentals: Styller v. Zoning Board of Appeals of Lynnfield

Posted on: June 11th, 2021

By: Jessica Gray Kelly, Esq. & Matthew L. Schwartz, Esq.

Local governments seeking to curb short-term rentals by private homeowners received a win this week in the case of Styller v. Zoning Board of Appeals of Lynnfield, SJC-12901. The Massachusetts Supreme Judicial Court held the Plaintiff’s occasional, short-term rental of his private single-family home was not a permitted use under the zoning bylaws because the short-term, transient nature of the rentals did not meet the zoning purpose for single-resident zoning districts.

The Plaintiff owned a five-bedroom single-family home on three acres of land in Lynnfield (the “Town”).  Plaintiff’s family lived in the home, but beginning in July 2015, would occasionally rent it out to guests for two to five days.  Renters used the home for family and college reunions, business retreats and photoshoots.  In May 2016, an individual who rented the home hosted a large party during which a shooting occurred that left one person dead.

After this incident, the Town building inspector ordered the Plaintiff to cease and desist offering the property for short-term rentals because doing so was considered an impermissible hotel use, or in the alternative, a lodging or rooming house use, which were permissible only with prior approval of the Town.  The Plaintiff appealed the order to the Town’s board. While the appeal was pending, the Town amended its bylaws to explicitly prohibit short-term rentals, defined as periods of thirty-days or less, in single-resident zoning districts, unless specifically authorized by the Board of Appeals.  The Board relied on the amended bylaw and upheld the order based on the prohibition of short-term rentals of thirty days or less without prior authorization.  

The Plaintiff appealed to the Land Court, which after a jury-waived trial held the Plaintiff’s short-term rental of the property constituted an unauthorized additional use because it was equivalent to using the residence as a “tourist home” or “lodging house” under the bylaw existing at the time of the use, not the amended bylaw.  Because Plaintiff did not have prior authority to operate a tourist home or lodging house, the Land Court held  the short-term rental use violated the bylaw. 

The Supreme Judicial Court transferred the case on its own initiative from the Appeals Court and affirmed the Land Court’s ruling but on different grounds.  The Plaintiff argued on appeal that 1) the use of his property for occasional short-term rentals was not an unauthorized “additional use” but rather was a permissible principal use as a one family detached house and  2) prior to the amended bylaw, there was no prohibition against renting out single-family homes.  The Town countered, just because the prior bylaw did not explicitly prohibit renting of a single-family home, that did not make short-term rentals automatically permissible.   

The Supreme Judicial Court held,contrary to the Land Court’s holding, the use of the home as a short-term rental was neither a tourist home or lodging house because, among other things, the renters were given exclusive use of the entire house, without the owner or a manager remaining on the premises once renters arrived.  The Court also held short-term rental uses were not, as the Land Court held, “unauthorized additional uses.”

 Rather, the Supreme Judicial Court held short-term rental use of a single family home was inconsistent with single-resident zoning purposes – preserving the residential character of the neighborhood and developing a sense of community and a shared commitment to the common good of that community.  While long-term rentals would serve these zoning purposes, short-term rentals do not.  The Court then relied on the bylaw’s definition of “residence” and “family” to conclude the Town had “clearly and unambiguously” excluded purely transient uses of propriety in residential zoning districts.  Accordingly, the Court concluded the Plaintiff’s use of the property for short-term rentals was “not a permissible use under the town’s bylaws, as it existed prior to its amendment in 2016.” 

Interestingly, the Supreme Judicial Court did not directly answer the question of whether the Board properly affirmed the building inspector’s order based on the bylaw as amended after Plaintiff had originally appealed.  Massachusetts General Laws c. 40A, § 6 generally protects property uses that were lawfully in existence prior to newly adoptive restrictive zoning regulations.  By holding the short-term rental use was not a permissive use to begin with, however, the Court avoided having to decide the harder question of whether the Board’s reliance on the amended bylaw was permitted under c. 40A.

The Styller decision reflects a general trend in states, cities and towns towards restricting or banning transient and short-term rentals of privately-owned property.  On the local level, cities and towns have many ways they can restrict their residents from offering short-term rentals, especially in single-family residential zoning districts.  The Court cautioned that a different result could be obtained depending on the city or town’s bylaws, the types of permitted “additional” uses, and the customary “accessory” uses in a particular community.       

For more information, please contact Jessica Kelly at [email protected] or Matt Schwartz at [email protected].