The Legal Pitfalls Inherent in Using “Works Made for Hire” in California

Labor and employment issues are frequently triggered in the entertainment space, particularly in California.  Some of these issues are well-known by practitioners in both areas of practice, while others can be a bit more obscure.  This article addresses one important area of overlap that is often the source of confusion for practitioners and their clients alike who, unbeknownst to them, have created employment relationships with their commissioned independent contractors, simply by including standard, boilerplate copyright language in their contracts.

Under U.S. Copyright Law, only the author of a work can rightfully claim the copyright in that work. Obviously, when you have a number of “authors” contributing to a creative work – which happens frequently in music, film, television, etc. – joint authorship in that work can become problematic if not impossible to manage.

As a result, the Copyright Act created what is known as a “work made for hire,” i.e., a work prepared by an employee within the scope of his or her employment, OR a particular type of work specially ordered or commissioned for use, where expressly agreed upon in writing.  In such instances, the employer or person commissioning the work is considered the “author” of the work.


What Does HR Have to Do with a Med Mal Case for Long Term Care Providers?

It is no secret that HR professionals and executives are the gatekeepers for so many workplace legal concerns. With long term care providers, the focus on patient care is always paramount; but mitigating risk goes hand in hand with your day-to-day staff operations. This patient care and employee/employer behavior reaches an immediate, pivotal crossroads when a medical malpractice claim is filed. Now, the facility’s HR practices are heavily scrutinized to determine if and what was known about the offending employee from the time of hire to the reported incident and steps taken by the employer to correct and more.  Brian Inamine and Nancy Reynolds explored the interplay of employment issues for long term care facilities in a recent webinar – including abuse, medical diversion, med mal and more.  Click here to view the recording of the complimentary one-hour webinar on key issues and reminders on best practices and more.

Employer ADA Test Conundrum? Seventh Circuit Flip Flops on ADA Accommodation Ruling

The Seventh Circuit ruled that an employee’s extended medical leave request was “categorically unreasonable” under the ADA. However, what should an employer do when one of the Seventh circuit judges writes that prior decision is wrong and violates the ADA?

On September 20, 2017, in Severson v. Heartland Woodcraft, the Seventh Circuit affirmed summary judgment in favor of an employer that terminated an employee who requested a two to three month extended medical leave in addition to his 12 week FMLA leave. The Court applied a per se rule that an extended medical leave is categorically unreasonable as a matter of law and held that the employee is not a qualified individual under the ADA.

On October 17, 2017, the Seventh Circuit issued a per curiam, non-precedential, disposition order in Golden v. Indianapolis Housing Agency, (7th Circuit 2017, pursuant to Circuit Rules of the U.S. Court of Appeals for the seventh Circuit Rule 32.1, affirming summary judgment in favor of an employer on the basis of its decision in Severson. In an extremely detailed, concurring opinion, Judge Ilana Rovner stated that, while the Court is bound to follow Severson because it is the law of the Circuit, Judge Rovner believes that the Severson decision is wrong; is without any support from the text of the ADA; and violates the express language of the ADA which requires that an individualized assessment be conducted before a decision is made as to whether an accommodation is reasonable.

Here, we answer the question: what should an employer do in light of this recent Seventh Circuit case law?


Social Media – “Exhibit A” in Litigation

A recent case from the Commonwealth Court of Pennsylvania illustrates in vivid detail the potentially disastrous litigation consequences for employees of making ill-advised postings on social media, including Facebook.  It also illustrates the utility for employers of monitoring such postings for use in litigation, within appropriate legal boundaries.

In Gumpher v. Unemployment Bd. of Review, No. 1735 C.D. 2016 (Pa. Cmwlth. Ct. Aug. 30, 2017), the Plaintiff had worked as a painter for Epic Metals Corporation for just under two years.  At the commencement of his employment, the Plaintiff, who was married and had numerous children, including one with special needs, was informed that he may be required to work occasional evenings.  While the Plaintiff’s wife was not working at the time, she later secured employment that required her to work evenings.  The Plaintiff’s wife would watch the children during the day, and the Plaintiff would watch the children in the evening. 


California Implements Statewide “Ban the Box” Law Effective January 1, 2018


California has become the tenth state to pass the “ban-the-box” law which removes the conviction history question on job applications for private employers with five or more employees.   Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont have already passed ban-the-box laws statewide.

Assembly Bill 1008 signed by Governor Jerry Brown will become effective January 1, 2018.  AB 1008 adds a section to the California Fair Employment and Housing Act (FEHA) which prohibits an employer from engaging in various defined forms of discriminatory employment practices.

Employment Application.  AB 1008 makes it an unlawful employment practice under FEHA for any employer with 5 or more employees to include on an employment application any question that seeks the disclosure of an applicant’s conviction history.


National Origin Discrimination: California to up the Ante

Remember the travel ban? The Wall? Ramped up deportations? California is moving to counter and guard against potential negative employment consequences for foreign-born workers and more.  The California Department of Fair Employment and Housing (DFEH), the agency charged with enforcing the state’s civil rights laws, is considering new regulations to implement or enhance California’s national-original discrimination statute.

The current statute, Government Code §12940, identifies national origin as a prohibited basis for discrimination, but doesn’t provide details. The DFEH is empowered to promulgate regulations interpreting and implementing this statute and others. Cal. Gov’t Code §12935(a). So what enhancements are contained in the proposed regulations? Think of the Obama-era EEOC’s National Origin guidelines. See EEOC Enforcement Guidance On National Original Discrimination (2016).


USCIS Requires Interviews for Employment-Based Adjustment of Status Applications Beginning October 1

October 1, 2017 marks the start of the United States Citizenship and Immigration Services (USCIS) mandate of an in-person interview for any individual adjusting from an employment-based status to permanent residency (Form I-485 adjustment of status interviews). The requirement will also take effect for family members of refugees or asylees applying for derivative refugee or asylee status (Form I-730 refugee/asylee relative interviews).

USCIS currently requires interviews for family-based green card and naturalization adjudications, whether that potential beneficiary is applying for adjustment of status in the U.S. or undergoing consular processing abroad. However, the interview requirement is generally waived for the employment and refugee/asylee categories. This new policy prohibits any additional waivers.


Workplace Now: The “Localization” of Employment Law – What you Don’t Know Can Hurt

It is no secret these days that many workforces, particularly over the last five years, are now subject to numerous state and municipal laws that seek to shape and regulate numerous areas of the workplace (many of which are often conflicting) .  Given the gridlock that has been in place for almost a decade in Congress, state legislatures and cities have accelerated their oversight of employers and have imposed their own laws.

In fact, there are literally hundreds of examples of how the scope of local regulation has changed, but perhaps the most breath-taking took place this year in the “City of Brotherly Love” when Philadelphia created the legal authority to shutdown a business located within its confines, for an undefined period of time, if the business “severely” or “repeatedly” violates its anti-discrimination laws under a bill signed into law on June 22, 2017.  Besides the questionable constitutionality of this law, one of the major drawbacks with respect to many  “local laws” like Philadelphia, is that they often come without any clear guidance as to exactly how they will be enforced.  For example, this ordinance provides that violations which are considered serious can subject a business to closure, but is unclear exactly what is considered serious or what number of repeated violations would lead to a business shutdown.  Besides the obvious issues for employers, risk managers and insurers should be very careful when measuring whether the traditional levels of risk and exposure will have to be readjusted in today’s workplace. To be frank, it is unclear that most HR professionals even have the local resources at their disposal to stay on top of each new development absent a system designed to constantly monitor all workplace locations on an ongoing basis.


“Ceasing the CSR’s: Once a Threat, Now A Promise”

Late in the evening of October 12, 2017, word leaked that the Trump Administration planned to finally carry out its threat to stop the Cost-Sharing Reduction Payments (“CSRs”) under the Affordable Care Act (“ACA”). The Administration confirmed the decision to cease the CSRs and published a memorandum from the Office of the Attorney General to the Secretaries of Treasury and Health and Human Services setting out the legal and policy underpinnings of that decision.

Brief Background

The ACA establishes two mechanisms to help defray the costs of health insurance premiums in the Healthcare Marketplace (“Marketplace”) for lower income individuals: (1) refundable tax credits, and (2) Cost Sharing Reduction payments (“CSRs”). Section 1401 of the ACA amended certain provisions of the Internal Revenue Code (“Tax Code”) to reduce the Marketplace premiums of qualified individuals by providing these tax credits and making them a permanent part of the appropriation provisions of the Tax Code. On the other hand, Section 1402 of the ACA requires insurance companies offering health insurance plans in the Marketplace to reduce co-payments and other out-of-pocket costs to qualified policyholders and directs the federal government to make payments directly to insurance companies to offset the impact of these reduced co-payments and costs. These Section 1402 CSRs are not linked directly to the existing Tax Code appropriations, but the Obama Administration continued to make the payments out of the federal budget, arguing that Section 1402 is inextricably linked to Section 1401 and operate in tandem to help defray the costs of obtaining health insurance in the Marketplace.


“A Strong Pull on the Threads Holding Obamacare Together:” President Trump’s October 12, 2017 Affordable Care Act Executive Order

President Trump’s Executive Order titled “Promoting Healthcare Choice and Competition Across the United States” seeks to reform certain aspects of the Affordable Care Act (“ACA” or “Obamacare”) by Executive Agency action rather than Congressional legislation. It takes specific aim at three areas:

1). Expanding small employer access to association health plans;

2). Extending the availability and duration of Short-Term Limited Duration Insurance coverage; and

3). Removing the current bar on employees using employers’ Health Reimbursement Arrangements to purchase individual health insurance.

Note that any such change requires action by various federal agencies, either by rulemaking or written guidance or both. Still, the Executive Order represents the most definitive action by President Trump to date to unwind Obamacare.

Association Health Plans

The Executive Order directs the Secretary of Labor to propose new regulations or issue written guidance within 60 days that expands the conditions under which a group of employers can meet the “commonality of interest” requirements under an ERISA Multiple Employer Plan. To date, Department of Labor (“DOL”) Advisory Opinions have defined narrowly such commonality of interests. Some approaches under consideration would allow small employers to join with employer groups on the basis of common geography or industry and do so across state lines. Other approaches include exempting self-funded Association Health Plans from certain state-mandated benefit requirements while also requiring certain minimum solvency standards. Allowing self-employed individuals to also participate in such Association Health Plans is also under consideration.