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 San Jose Business & Commercial Law Blog

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Paul Johnson is an associate with Diemer & Wei specializing in civil litigation, bankruptcy, and real estate litigation.

Prior to joining Diemer & Wei, Paul practiced at a litigation boutique firm in Los Angeles working on business litigation, contract disputes, and personal injury cases.

Paul received his J.D., with a Specialization in...

Paul Johnson is an associate with Diemer & Wei specializing in civil litigation, bankruptcy, and real estate litigation.

Prior to joining Diemer & Wei, Paul practiced at a litigation boutique firm in Los Angeles working on business litigation, contract disputes, and personal injury cases.

Paul received his J.D., with a Specialization in Business Law from the University of California, Los Angeles School of Law, where he served as Co-Chief Managing Editor of the Pacific Basin Law Journal. While in law school he interned at the California Attorney General’s Office, the San Francisco District Attorney’s Office, and for Associate Justice John L. Segal of the California Court of Appeals.

Learn more about Paul J. Johnson, Esq. here.

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Families First Coronavirus Response Act (FFRCA): What Employers Need to Know

COVID Employment Law Update

Families First Coronavirus Response Act FFRCA What Employers Need to KnowOn March 18, 2020, the Families First Coronavirus Response Act was signed into law.  This new law expands many employers’ obligations to provide sick leave to employees impacted by COVID-19.

Generally, the Act provides that all covered employers must provide all employees with up two weeks of paid sick leave at the regular rate of pay for up to two weeks if the employee is:

  • personally experiencing symptoms of COVID-19 and seeking a medical diagnosis; or
  • is personally subject to a quarantine instruction from a Federal, State, or local government or a medical professional.
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Insurance for Small Businesses During the COVID-19 Crisis and Government Shutdowns

Insurance for Small Businesses During the COVID 19 Crisis and Government ShutdownsBusinesses of all kinds will be forced to keep their doors closed in the coming weeks in the face of COVID-19 and the orders from Governor Newsom [1] and the Santa Clara County Health Officer. [2] Business owners should be turning to their insurance policies to consider what help they will be able to obtain. Each business will have different results depending on the kind of coverage they have. This article outlines a few of the common insurance issues that will be relevant in the current crisis.

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What Can Employers Learn from Uber’s Challenge of California’s New Employment Law AB-5?

What Can Employers Learn from Ubers Challenge of Californias New Employment Law AB 5            On December 30, 2019, Uber and Postmates filed a lawsuit to stop enforcement of AB-5, California’s new legislation that makes it more difficult to classify workers as independent contractors.

            Obviously Uber and Postmates’ entire business model relies on having “gig” workers who drive for them. Other industries, such as trucking, have also filed suit to enjoin the enforcement of AB5.

            Prior to California enacting AB5 to expand the definition of employee, California businesses needed to meet the ABC test laid out in the Dynamex case in order to classify an worker as an independent contractor. Those factors were:

  1. Worker is not controlled by the company in performing work; and
  2. Worker has work outside the company’s usual course of business; and
  3. Worker is engaged in an independently established trade, occupation, or business of the same type of work performed for the company (perhaps certified or licensed).
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Self-Insured Employer Cannot Direct Which Excess Insurer Will Bear Responsibility Even With Claimant’s Consent

Self Insured Employer Cannot Direct Which Excess Insurer Will Bear Responsibility Even With ClaimantEmployees in California are protected by the Workers’ Compensation Act (WCA) which governs “compensation given to California employees for injuries incurred in the course and scope of their employment.” Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 810. All employers except the state must secure the payments of compensation by either carrying workers’ compensation insurance or self-insuring. In a recent case, the San Mountain Empire School District was self-insured, but had also contracted for excess policy insurance. In the case of the Mountain Empire School District, its excess insurer ran out of money.

California law also provides for protection to both “insured and the public” through a system called the California Insurance Guarantee Association (CIGA). Fireman’s Fund Ins. Co. v. Workers Comp. Appeals Bd. (2010) 189 Cal.App.4th 101, 111-112. CIGA pays only: 1) covered claims and 2) claims for which neither a solvent insurer or self-insured employer is jointly and severally liable.

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Ninth Circuit Rules that Arbitration Clauses Can Cover Racial Discrimination Claims

Ninth Circuit Rules that Arbitration Clauses Can Cover Racial Discrimination ClaimsThe Ninth Circuit has expanded the scope of claims that are subject to arbitration clauses to include racial discrimination claims under 42 U.S.C. Section 1981. Lambert v. Tesla, 2019 U.S. App. LEXIS 14591.

In 2015, DeWitt Lambert, who is African American, began working as a production associate in Tesla’s Fremont, California factory. He claimed that during his employment other employees consistently harassed him and that he was not promoted because of his race. Lambert alleged that his complaints to human resources went nowhere.

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How Small Partnerships End in California

How Small Partnerships End in CaliforniaThe California Corporations Code requires founders to follow specific procedures and file specific forms before the entity comes into existence. For example, articles of incorporation must be filed with the Secretary of State in order to create a corporation. In contrast, a general partnership can be formed without any document at all.

A partnership is formed when two or more individuals co-own a business for profit. Cal. Corp. § 16101 (9). No writing at all is required to form a partnership. However, written partnership agreements are often created by the partners and this article discusses one reason why a partnership agreement is important.

For example, Sallie and Juan open a bakery shop together in downtown San Jose. Sallie buys all the groceries, pays for them and hires the staff. Juan gets up early, bakes everything and stocks the display windows. Together Sallie and Juan help customers and man the cash register. At the end of each day, they split the proceeds after costs are paid. They are clearly doing business together in their San Jose bakery. Even without a written partnership agreement or the intent to form a partnership, they have.

However, one day Sallie tells Juan that she has to move out of state to care for an elderly relative. Sallie leaves San Jose for Reno the next day. Juan no longer has a partner.

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