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Archive for January, 2020

California Police Deadly Force Statute: Law or Guidance?

Posted on: January 28th, 2020

By: Caleb Saggus

The California State Legislature recently enacted a criminal statute aimed at police officer use of force, which went into effect January 1, 2020  (Assembly Bill 392).  Prior California state law permitted an officer to use reasonable force to effect an arrest and deemed a homicide justifiable when necessarily committed in arresting a person who has committed a felony and the person is fleeing or resisting such arrest.  Case law deems such a homicide to be a seizure within the Fourth Amendment and, accordingly, requires the actions to be objectively reasonable.

AB 392 narrows the focus of this inquiry, at least for determining when an officer commits criminal homicide in the line of duty, and provides a reasonableness determination explicitly.  The Act provides that “a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons: (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.  (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”

Although this law provides substantive parameters on police use of deadly force and utilizes a framework that generally can aid courts in deciding whether an officer has committed criminal homicide, the law may not significantly affect civil excessive force claims in California.

Most excessive force claims are brought under 42 U.S.C. § 1983 to vindicate a constitutional violation—generally the Fourth Amendment.  A state criminal statute cannot alter the meaning of the Fourth Amendment, and thus this Act should not have any bearing on the merits of a civil § 1983 excessive force claim.  Thus, the more prominent effect this Act might have is to serve as a model for other states to utilize in molding their own criminal statutes and best practices training.  Such statutes, while not providing a viable vehicle for plaintiffs to seek civil redress, might nonetheless be seen as a State’s view on the extent to which deadly force should or should not be used by police officers.  Therefore, the reach of these types of statutes might more practically be seen in a trickle-down to police officer training than in use of force civil litigation. If nothing else, AB 392 and other statutes like it represent the public’s shifting attitude towards police use of force and what constitutes “reasonable” force.

If you have any questions or would like more information, please contact Caleb Saggus at [email protected]

Employers Watch Out: New DOL Rule May Limit Joint Employer Liability

Posted on: January 27th, 2020

By: Janet Barringer

New Rule

A new rule goes into effect March 16, 2020, per the Department of Labor (DOL), as to when a “joint employer” is equally liable under federal wage and hour laws.  This new rule is an attempt to limit “joint employer” liability.  The determination as to whether a scenario is one of joint employment turns on a new four-factor test.

The test asks DOES THE BUSINESS IN QUESTION:

  1. Hire or terminate the employee, which is not to be confused with the “power” to hire or fire the employee;
  2. Supervise and control the employee’s schedule or conditions of employment to a substantial degree;
  3. Determine the employee’s rates and methods of payment; and
  4. Maintain the employee’s personnel/employment records.

According to the DOL, no single factor is dispositive in determining joint-employer status.  Instead, the weight given to each of the four factors depends on the circumstances at hand.  Most likely, Courts will decide the balancing test among these four factors, as the DOL has provided little guidance on how to do so.

Beware of Catch-all Provision

Employers should be aware there is an alternative “catch-all” provision in the DOL rule which states factors not specifically included in the four-part test may be considered in the determination of whether a joint employment relationship exists.  However, this catch-all provision only applies if the potential joint employer exercises “significant control” over the terms and conditions of the employee’s work.  The practical application of this catch-all provision remains to be seen, and will likely depend on Courts’ interpretation.

Employers Excluded under New Rule

The DOL helpfully included in its guidance several common business arrangements not factored into its analysis of a potential joint employment relationship.  These include the following factors:

  1. Existence of a franchisee/franchisor relationship, including entering into a brand and supply agreement;
  2. An unexercised right to control the employee’s terms and conditions of employment. Standard contractual language reserving a right to act will not be enough to establish a joint employment arrangement under the four-factor test;
  3. The employee’s economic dependence on the potential joint employer, including whether the employee is in a specialized position or has the opportunity to make a profit or incur a loss based on performance;
  4. A potential joint employer’s contractual agreements requiring the employer to comply with specific legal obligations or meet certain standards to protect the health and safety of its employees, i.e., compliance with wage and hour laws or maintenance of sexual harassment policies;
  5. Management of quality control standards implemented by the potential joint employer, such as standards ensuring the consistent quality of products;
  6. Whether the potential joint employer provides standardized human resources forms, including employee handbook templates;
  7. A potential joint employer’s offer of health or retirement plans to the employer or participation in such plans with the employer; or
  8. Joint participation in an apprenticeship program with the employer.

Safeguards for Employers to Take Before March 16, 2020

Before the new rule for joint employer goes into effect on March 16, 2020, businesses should take account of their procedures to confirm they are protected under the rule’s four-factor test. Employers should also consider working with their counsel to determine, and create, if necessary, business changes to maximize their ability in taking advantage of the new joint employment standard.  The updated rule may provide more flexibility and certainty when it comes to employers’ wage and hour responsibilities.

If you have any questions or would like more information, please contact Janet Barringer in the National Labor & Employment Practice Section at [email protected].

Two-Factor Authentication—Not Broken Yet, But the Bad Guys Are Doing Their Worst

Posted on: January 27th, 2020

By: Barry Miller

If a cybersecurity gold standard exists, it is two-factor authentication (“2FA”).

Or it was.

As the name implies, 2FA is a two-level approach. Level one usually is a password. The second level is typically a random digital code (a “token”) created by or transmitted to a separate device. After entering their password, users then have to supply the token. Because the second-factor changes with every use, the assumption was that the only way to break 2FA would be to hack both levels—password and token.

Shortly before Christmas ZDNet reported that a group sponsored by the Chinese government managed to bypass 2FA in a “wave of attacks.” Government entities and providers in the aviation, healthcare, finance, insurance, and energy were the main targets. Their method bypassed 2FA not by intercepting the token sent to the user, but by creating another valid token.

This followed a November report from gPost that a whitehat hacker showed how Gmail’s 2FA could be vulnerable; and another December story that hackers were using an Android app advertised as a battery utility app to bypass 2FA to steal money from PayPal accounts.

All of which prompted threatpost to ask several security experts whether 2FA is broken. The consensus was that, while 2FA is not perfect, using it still is better than not using it. “Any sort of 2FA is still leaps and bounds better than no 2FA at all,” Jason Kichen told threatpost. Because so many entities still do not require 2FA, using it “means you’re a harder target than the user next to you.”

A second consensus among the threatpost experts is that even the best 2FA system will not compensate for failing to set and follow policies, and failing to train users.

Freeman Mathis & Gary’s Data Privacy and Security Practice Group is here to help clients with policies and training. If you have any questions or would like more information, please contact Barry Miller at [email protected].

U.S. Supreme Court Finds General Discovery Rule Inapplicable to the SOL for FDCPA Violations

Posted on: January 16th, 2020

By: Nicole L. Graham

In Klemm v. Rotkiske, No. 18-328, 589 U.S. ____ (2019), the United State Supreme Court unanimously agreed there is no blanket discovery rule that, as a matter of statutory interpretation, applies to all cases arising under the Fair Debt Collection Practices Act (“FDCPA”).  The majority held that the plain text of 15 U.S.C. §1692k(d) unambiguously states the date of the violation starts the clock on the one-year limitations period.  The Court declined Rotkiske’s request to read into the statute a provision that limitations period begins to run on the date on which the violation occurs or the date of discovery of such violation.  Justice Thomas, writing for the majority, found it clear from the face of the text that “[t]he FDCPA limitations period begins to run from the date the alleged FDCPA violation actually happened.”  Accordingly, the limitations period for an FDCPA claim arising from the filing of a collection action complaint begins to run from the date the action is filed and not from the date the debtor is served the complaint.  Similarly, the limitations period for an FDCPA claim based on a debt collection notice begins to run from the date of the notice and not from the date the notice is received.

The Court did, however, leave the door open to the possible application of an equitable “fraud-specific discovery rule.”  The Court declined to decide whether the text of 15 U.S.C. §1692k(d) permits the application of equitable doctrines because Rotkiske failed to preserve the issue before the Third Circuit and failed to raise the issue in his petition for certiorari.

Justice Sotomayor issued a concurring opinion to note that the Court’s decision does not prevent parties from invoking an equitable “fraud-specific discovery rule.”  Justice Ginsburg, the lone dissenter, felt Rotkiske preserved the equitable “fraud-specific discovery rule” argument in his petition for certiorari, and found the allegations of the complaint should suffice under the equitable “fraud-specific discovery rule” to permit adjudication of Rotkiske’s claim on the merits.

Because the question of the applicability of equitable exceptions to the FDCPA’s statute of limitations remains unresolved, it would not be surprising to see the issue before the Supreme Court again soon.

If you have any questions or would like more information, please contact Nicole Graham at [email protected].

Tips on Dealing With Pro Per Parties In California

Posted on: January 15th, 2020

By: Greg Fayard

At some point in their career, lawyers deal with the unrepresented—or pro pers. In California, there’s now an ethical rule that governs how to fairly and properly engage with opposing parties who do not have lawyers.

Rule 4.3 of the Rules of Professional Conduct for California lawyers says a lawyer cannot tell an unrepresented party he or she is disinterested or neutral. If the lawyer reasonably believes the pro per thinks the opposing lawyer is neutral, the lawyer needs to make a reasonable effort to correct that misunderstanding.

If a lawyer knows or suspects the interests of the unrepresented person conflicts with the lawyer’s client, the lawyer cannot give legal advice to him or her, but may advise the person to get counsel. Further, lawyers shall not try to get privileged or confidential information from pro pers. Under Rule 4.3, a lawyer can negotiate with unrepresented parties, but the lawyer must disclose that he or she represents an opposing party.

The policy behind this rule is fairness to pro pers, and to not take advantage of them because they do not have counsel.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.