Hot Yoga and Cold Law: Employment Retaliation Claims Can Arise Anywhere

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Most people would agree that working in a government office that supervises lawyers is quite different than working in a 104 degree “hot yoga” studio. But recent matters involving these two very different work environments show that employment retaliation claims can be asserted against any employer – whether you’re a yoga master or the master of all lawyers in California.

The California State Bar has the staid mission of regulating the admission of attorneys and investigating assertions of attorney misconduct. Yet in November 2015, the State Bar found itself charged with wrongful employment retaliation after it fired one of its top managers, John Noonen. Noonen asserted that the termination was retaliatory because, just a few weeks earlier, he submitted a 40-page internal complaint against the State Bar’s top attorney for allegedly failing to properly investigate complaints against the president of the State Bar. The State Bar has denied Noonen’s retaliation allegations and has said that Noonen’s position was eliminated as part of a cost-saving effort.

Less than two months later, the same types of claims led to a sizeable jury verdict against a completely different business run by famed yoga guru Bikram Choudhury. Choudhury made his fortune teaching yoga instructors his techniques and allowing graduates to operate yoga studios that feature a specific yoga sequence performed in a 104-degree room. In January 2016, a Los Angeles jury found that Choudhury sexually harassed his former legal advisor and wrongfully fired her for investigating others’ claims of sexual discrimination and assault against him. Choudhury asserted he had good cause to fire his legal advisor because she was not licensed to practice law in California. The jury first ordered Choudhury and his yoga business to pay $924,000 in compensatory damages, and the next day the jury upped the ante with a further award of $6.4 million in punitive damages.

In each of these recent cases, employees alleged that their bosses improperly “retaliated” against them for investigating workplace misconduct. Most employers and employees know that laws exist to protect employees from wrongful discrimination and harassment. The same laws also provide that employers cannot punish or “retaliate” against employees for making complaints about other potentially wrongful employment conduct, such as discrimination or harassment, or for participating in workplace investigations about such potential wrongful employment conduct.

“Retaliation” is prohibited by the same federal laws that prohibit employment discrimination based on race, color, sex, religion, national origin, age, disability and gender. “Retaliation” can take many forms, including termination, demotion, suspension or other employment discipline against the employee for engaging in protected activity, such as reporting perceived employer discrimination or other misconduct. Owing to its broad scope, retaliation is a claim commonly raised by disgruntled or terminated employees. In fact, according to the federal Equal Employment Opportunity Commission (“EEOC”), retaliation is the most common basis of discrimination claims in EEOC cases.

These cases illustrate some of the many circumstances in which employment issues can lead to litigation against a wide variety of employers. Conkle, Kremer & Engel regularly advises employer and individuals on workplace issues and the ramifications of retaliation and harassment claims so that all involved can take steps to resolve conflicts in a meaningful, efficient way. When circumstances do not do not allow a non-litigated solution, CK&E attorneys litigate and arbitrate employment disputes including retaliation claims, whether the claims are asserted individually or as a class action.

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Conkle Firm Article Explains Special Protections for Sales Representatives

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The Conkle firm published an article in the June 30, 2015 edition of the Electronics Representatives Association Southern California’s member newsletter to explain to ERASoCal members the special protections that California law provides for independent wholesale sales representatives.  Among other points, the article describes the requirements for a signed written contract, the types of information that manufacturers and distributors are required to provide to their independent sales reps, and the potential for treble damages (three times the actual damages) plus attorney’s fees for violations.

The article was written by Conkle, Kremer & Engel attorney Eric S. Engel and CK&E’s summer law clerk Ryan Fisher, a student at University of California, Irvine Law School.  CK&E is proud to be a member of ERASoCal, which is a trade association of independent manufacturers sales representative firms in Southern California’s vibrant electronics industry.  Eric has significant experience in sales commission claims, and he was lead trial counsel in the case that resulted in the first published decision in California applying the special protections of Civil Code Section 1738.10 et seq., including treble damages and attorney fees for unpaid sales commissions: Reilly v Inquest Court of Appeal Decision, Case No. G046291 (July 31, 2013)

 

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Last Call for 2013 CARB Survey Submissions; Deadline for 2014 Survey Coming Soon

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The limited reprieve granted to small businesses for complying with the 2013 Consumer and Commercial Products Survey is coming to an end: Small businesses – defined as companies with 25 or fewer employees – must report 2013 sales and formulation data to the California Air Resources Board (CARB) by no later than July 1, 2015.

For other businesses, the deadline to report 2013 data has passed. Unless they have been granted an extension from CARB, formulators were required to comply by April 1, 2015 and all other businesses, by March 1, 2015.

The 2013 Consumer and Commercial Products Survey is part of a comprehensive three-year data collection effort by CARB, which is authorized by law to collect data about chemically formulated products. The Survey collects formulation data and sales information for chemically formulated consumer and commercial products sold or supplied for use in California during the 2013 calendar year. Compliance with the Survey is mandatory.

The Survey is remarkable in its breadth, targeting virtually all consumer and commercial products. The Survey requires that each “responsible party” listed on the label of a consumer or commercial product that was sold or supplied for use in California during the calendar year, and falls into a category listed on that year’s Survey Category List, is required to report detailed product ingredient information, as well as annual sales on a per-product basis, to CARB through the online Consumer Products Reporting Tool.

The general categories of consumer products that are subject to reporting in 2013 are personal care products, adhesives, sealants and related products, household and institutional products, pesticide products, solvent and thinning-related products, vehicle and marine vessel aftermarket products, and aerosol coating products.

In addition, updated data for the 2014 and 2015 calendar years must also be reported to CARB. Businesses who are required to report should plan for timely compliance with the 2014 Survey, which opens on July 1, 2015. The deadline for reporting 2014 Survey data – including 2014 sales – is November 1, 2015. In addition, CARB expects to begin collecting 2015 data on July 1, 2016 with all 2015 data due by November 1, 2016.

Conkle, Kremer & Engel provides expert guidance to clients as they navigate compliance with California’s complex and ever-changing regulatory requirements, including the Consumer and Commercial Products Survey.

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California ARB Announces Extensions to Respond to 2013 Survey

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On February 19, 2015, California Air Resources Board extended the response time to the 2013 Consumer and Commercial Products Survey (2013 Survey).  But be careful – there are different extensions for different groups, and if businesses do not fall into the “Formulators” or “Small Business” groups, then they can only receive an extension if they apply by submitting the required email request by February 27, 2015.

Additional Extension Requests

The California Air Resources Board (ARB) recognized the substantial resources required to complete the 2013 Consumer and Commercial Products Survey (2013 Survey). In some cases, ARB announced, companies may need extra time to complete reporting of 2013 data beyond the 90 statutorily required days and the additional 90-days ARB staff already issued due to the 2013 Survey scope. Below is a summary of the additional extension request process announced by ARB.

1.   Formulators: All formulators will receive a 30-day extension to submit formulation data to ARB. The due date for formulators is extended to April 1, 2015.  Formulators automatically receive the extension and do not need to send an email to request one.

2.   Small Businesses: Responsible parties who are also a small business have an additional extension until July 1, 2015 for reporting 2013 data. For purposes of the 2013 Survey, a small business is defined as a company or entity with 25 or less full-time, part-time and contract employees combined. The 25 employee count must also include seasonal workers. For example, a salon with their own product line of hair care products with a 12 part-time employees would quality for this extension. Small businesses automatically receive the extension and do not need to send an email to request one.

3.   Responsible Parties (other than those who qualify as “Small Businesses”): Responsible party requests will be handled on a case-by-case basis, and must request an extension by email no later than February 27, 2015.  To request an extension from the original survey due date of March 2, 2015, responsible parties must email csmrprod@arb.ca.gov by February 27, 2015 to make a request, and the email must have the following title: “2013 Survey Additional Extension Request – Company Name (add your company name here)”.   In order to receive an extension, responsible parties will need to provide the following information:

a) When did you learn about the 2013 Survey?

b) When did you start working on the 2013 Survey?

c) When did you finish your data collection effort for the 2013 Survey?

d) Approximately how many products will you report? labels?

e) How far along are you in entering data into the Consumer Products Reporting Tool (CPRT)?

f) How much time are you requesting to complete the 2013 Survey?

ARB staff will notify each company the results of their request via email.

ARB also reminded survey participants to submit complete data reports, as partial data sets will not be accepted.

Conkle, Kremer & Engel attorneys keep abreast of the latest developments in California regulatory laws to guide the firm’s clients through the shifting labyrinth that they must navigate.

 

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Beware of Scam Trademark Solicitations

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Trademark applicants and registrants take notice:  There are increasing numbers of domestic and international outfits that issue trademark compliance and renewal notices that look like legitimate invoices or governmental requests.  In actuality, these notices are sent by private individuals or entities trying to make a quick buck.  Some of these notices are solicitations from companies offering to file renewals with the United States Patent & Trademark Office (USPTO) for an exorbitant fee.  Using deceptively official-sounding names such as “United States Trademark Registration Office”, “Trademark and Patent Office” and “Patent & Trademark Agency”, these companies charge excessive fees for routine or unnecessary services or worse, take your money and disappear.  Others, such as IP Data in the Czech Republic, seek to charge a “filing fee” of over $2,400 to publish your trademark in their own private Internet database – an expensive exercise that is not an application for trademark registration and confers no trademark rights.

This problem has become so widespread and severe that the World Intellectual Property Organization (WIPO) published a list of known international trademark registration scams.   The USPTO keeps a similar scammer database, identifying the following organizations that sent non-USPTO solicitations, prompting consumer complaints to the USPTO:

  • TM-DB Register of Protected Trademarks
  • Trademark and Patent Office
  • Trademark Compliance Center (See an example of a scam solicitation sent by TCC)
  • Trademark Registration and Monitoring Office
  • United States Trademark Registration Office
  • Patent & Trademark Agency
  • United States Trademark Maintenance Service
  • U.S. Trademark Compliance Service
  • WDTP
  • WIPT
  • TM Collection
  • TM Edition
  • Patent Trademark Register
  • Register of International Patents and Trademarks
  • Trademark Renewal Service
  • Trademark Safeguard – Trademark Monitoring Service
  • Intellectual Property Agency Ltd.
  • IOPR – Intellectual Property Register
  • GBO, Inc.
  • Intellectual Property Services USA Incorporated
  • USTM Information Services
  • Brand Registration Office

In October 2014, a New York firm successfully won a lawsuit against “Patent & Trademark Agency LLC” for unfair competition and deceptive marketing practices, putting the company out of business.  A Final Consent Judgment was entered against Patent & Trademark Agency LLC, by which it agreed to permanently discontinue marketing and selling trademark registration or renewal services in the United States.

If you receive any unexpected email or correspondence regarding a trademark registration, you should immediately contact the USPTO or your counsel to verify the veracity of the sender and the correspondence.  Conkle, Kremer & Engel assists individuals and companies in all aspects of intellectual property protection, including the filing and maintenance of trademark registrations – and we know how to discriminate legitimate vendors from scammers.

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Mandatory Reporting of Chemically Formulated Products Underway:  Are You Ready?

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Are you ready to comply with the California Air Resources Board’s new reporting requirements?

CARB recently issued the 2013 Consumer & Commercial Products Survey, which requires companies to report sales and formulation data for all chemically formulated consumer and commercial products that are sold or supplied for use in California.

CARB is authorized by law to collect data about chemically formulated products and from time to time gathers information through mandatory surveys.  The last such survey was in 2006.

According to CARB, the purpose of the 2013 Survey is to gather current information on volatile organic compounds (VOC), low vapor pressure VOC (LVP-VOC), and greenhouse gas (GHG) content from consumer and commercial products sold or supplied for use in California.  The Survey will also assist CARB in determining the feasibility of further reducing consumer product emissions, updating the consumer products emissions inventory, and evaluating emissions trends for consumer products.

The Survey requirements are detailed and require reporting of a wide variety of chemically formulated consumer and commercial products, even if those products do not contain any VOCs or contain low VOCs.  CARB has hosted informational webinars regarding the Survey.  The next CARB webinar is on December 15, 2014.

The 2013 Survey officially started on September 1, 2014, and all 2013 data must be reported to CARB by March 2, 2015.  But companies can expect to devote substantial resources well into 2016 to comply with CARB’s mandatory reporting requirements.  That’s because the Survey covers a three-year period and will require further reporting of sales and product ingredient data for 2014 and 2015, in 2015 and 2016, respectively.

In particular, data from the Survey will be used to help CARB prepare for the new State Implementation Plan (SIP) which by 2016 will be required to meet more stringent standards set by the United States Environmental Protection Agency (US EPA).  CARB is collecting data in preparation for the SIP, and is updating its emission inventories by collecting sales and ingredient data for all consumer product categories.

CARB has developed a list of pre-screening questions to help companies determine if they are required to submit survey data to CARB.  In general, each responsible party listed on the label of a consumer product that was sold or supplied for use in California during the calendar year, and falls into a category listed on that year’s Survey Category List, is required to report data to CARB.

The categories of consumer products that are subject to reporting are comprehensive:  California Air Resources Board 2013 Survey – List of Survey Categories  .Highlights from this list of the 2013 Survey categories include:

  • Personal Care Products: Antiperspirants and deodorants, body, hand and face cleaners, eyeglass and contact lens care products, facial and body treatments, fragrance products, hair care products, health use products, makeup cosmetics, nail care products, oral care products, shaving products, and pet care products
  • Adhesives, Sealants and Related Products: Adhesives, sealants and caulks
  • Household and Institutional Products: Air fresheners, odor removers/eliminators, other air scented products, arts and crafts supplies, cleaners and degreasers, dishwashing products, fabric, carpet and upholstery care products, food-related sprays and aerosol products, fuels and lighter materials, garden and lawn care products, laundry products, miscellaneous household products, office supply products, pool/spa/whirlpool/Jacuzzi/pond products, shoe and leather care products, waxes and polishes
  • Pesticide Products: Anti-microbial agents, fungicides and nematicides, herbicides, insecticides and repellants
  • Solvent and Thinning-Related Products: Electronic-related and miscellaneous solvent and thinning products
  • Vehicle and Marine Vessel Aftermarket Products: Detailing products and maintenance and repair products
  • Aerosol coating products: General coatings and specialty coatings

Conkle, Kremer & Engel monitors the latest developments in legal and regulatory issues to provide the most current legal guidance and counseling to its industry clients.

 

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The Conkle Firm Will Attend Cosmoprof Asia November 12-14, 2014

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Conkle, Kremer & Engel attorneys John Conkle and Kim Sim will attend the Cosmoprof event for the Asia Pacific region in Hong Kong on Nov. 12-14, 2014.  Cosmoprof Asia will feature more than 2,350 exhibitors in the beauty industry, and expects more than 64,000 visitors from all over the world.  There will be 22 national and group pavilions.  Given the prominence of California’s personal care product industry, CK&E is proud to attend the Hong Kong event in association with the California Pavilion organized by the California Trade Alliance.  CK&E will meet with clients and correspondent counsel to facilitate business between manufacturers, distributors and vendors in the Asia Pacific region and the United States, with particular emphasis on California businesses.  Brand protection and distributor relations are always a major concern when doing business between the U.S. and Asia, and CK&E attorneys are there to help.  If you will be attending Cosmoprof Asia this year, please let us know and we will try to make arrangements for a meeting at the event.

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The Conkle Firm Participates in MANA Attorney Forum in Chicago

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Conkle, Kremer & Engel attorney Kim Sim participated in the annual Manufacturers’ Agents National Association (MANA) Attorney Forum in Chicago in September 2014.  The MANA Attorney Forum is an annual event for “rep-savvy” attorneys from across the country to meet and discuss legal issues and developments in the law that uniquely affect independent manufacturer’s representatives.

This year’s Attorney Forum covered a wide range of topics including conflicts of interest for sales representatives who represent competing lines, aspects of international law that impact sales representative relationships, successor companies and liability, valuation of rep firms, differences in manufacturers’ representative laws among states, ownership of customer lists and the recent amendment to the Minnesota Commission Protection Act.

CK&E regularly represents manufacturers’ representatives with respect to disputes relating to commissions, including a 2011 victory on behalf of its sales representative client that resulted in the published decision Reilly v. Inquest Technology, in which the Court of Appeal affirmed a $6.2 million judgment in favor of the sales representative under special California laws protecting sales representatives.  CK&E is proud to be a member of MANA and is honored to be recognized by the leading association of manufacturers and agents as specialists in the area of rep law.

Published in MANA’s Agency Sales Magazine:
MANA Attorney Forum 2014

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The Conkle Firm Successfully Defends Employee Wage and Hour Claim

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If you’re a California employer, how well do you keep track of your employees’ meal and rest periods?  California law requires that employees be provided at least a ten-minute rest period every four hours, and a 30-minute meal period after five hours.  Non-exempt employees who work more than eight hours in a day, and more than 40 hours in a week, must be paid overtime.  Employers are required to maintain accurate records of employees’ timesheets and pay.  It sounds simple, but the devil is in the details.  If you have employees, it is important to put policies in place to ensure that all employees are taking their breaks and being paid for any overtime work.

If an employee believes he or she was deprived of meal and rest periods or not paid for overtime hours worked, the employee can file a complaint with the California Labor Commissioner.  The Labor Commissioner’s Office, also known as the Division of Labor Standards Enforcement (DLSE), is the forum for adjudication of such claims.  Often, this kind of complaint is filed after an employee is terminated.  Employers should realize that, regardless of the reasons for termination, in a wage and hour claim the deck is stacked against them from the start – it is the employer’s burden to show that the employee took breaks and was properly paid.

CK&E attorneys routinely advise clients about navigating California’s complex employer workplace requirements, and advocate for clients in disputes before the California Labor Commissioner and California state and federal courts.

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The Conkle Firm Will Sponsor and Moderate Panel at Counterfeiting & Brand Protection Summit in New York

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John Conkle of the Conkle, Kremer & Engel will moderate a panel presentation at the 13th Anti-Counterfeiting & Brand Protection Summit, on October 1, 2014 in New York City.  The title of the presentation will be Combining Forces:  Coordination of Public and Private Sectors against Pirates and Counterfeiters.  The panel will consist of preeminent experts on effective enforcement of civil and criminal anti-counterfeiting laws:  Marc Misthal (Gottlieb, Rackman & Reisman LLP), James T. Hayes Jr. (Special Agent in Charge, ICE Homeland Security Investigations, New York Field Office), and Jodie Kane (Chief of Rackets Bureau of the New York County District Attorney’s Office).

Confronting product counterfeiters can be an expensive, labor intensive and sometimes frustrating task, particularly when undertaken as a solo effort.  The panel sponsored and moderated by CK&E will highlight strategies for combining the strength of private enforcement and available public sector resources to combat counterfeiters using all available tools.  The panel will assess when and how to use civil resources in partnership with criminal enforcement for the most effective and cost-effective assault on product counterfeiters.  The panel will address practical steps to best leverage the strengths and resources of both arms against the scourge of counterfeiters, illustrating points with real world experiences.

Join us and learn how to get the most bang for your brand protection buck in the battle to defeat counterfeiters.  CK&E is proud to again sponsor this important brand protection event.

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