New Sexual Harassment Protection for Legislative Staff

AB403 Protects Legislative Staff from Sexual Harassment Retaliation

Employers cannot retaliate against employees for engaging in protected activity. This includes reporting or participating in an investigation regarding sexual harassment, health and safety issues, patient safety, and other violations of the law. Governor Brown signed AB403 extending similar protections to legislative employees. I suspect AB403 found so much support due to the numerous reports of inappropriate conduct in our legislature.

AB403 defines “Legislative employee” as “an individual, other than a Member of either house of the Legislature, who is, or has been, employed by either house of the Legislature. ‘Legislative employee’ includes volunteers, interns, fellows, and applicants.” Legislative employees are protected from retaliation when making a protected disclosure.

“Protected disclosure” means a “communication by a legislative employee that is made in good faith alleging that a Member of the Legislature or legislative employee engaged in, or will engage in, activity that may constitute a violation of any law, including sexual harassment, or of a legislative code of conduct.” This includes a complaint protected by California’s Fair Employment and Housing Act.

The protected disclosure can be made to a number of agencies or any “individual with authority over the legislative employee, or another legislative employee who has authority to investigate, discover, or correct the violation or noncompliance.”

So, an intern or volunteer can report concerns regarding inappropriate sexual harassment to his or her supervisor without fear of unlawful retaliation. The law is so important that it became effective when Governor Brown signed the bill on February 5, 2018.

AB403 has some unique features. Violators can be subject to $10,000 fine and imprisonment for up to a year. If the alleged victim brings a civil action and proves “by a preponderance of the evidence” t against a legislative employee,” the burden of proof then switches the allegedly offending party to demonstrate “by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the legislative employee had not made a protected disclosure.” A prevailing plaintiff can recover attorneys’ fees and punitive damages. Considering most claims against government entities and persons do not allow punitive damages, this last item is particularly significant.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Usury Claims Cannot Be Waived

This week we have a special article written by Alan Foster of the Foster Law Group regarding usury laws. As Alan explains, usury laws prohibit unreasonably high interest rates. Alan, a corporate and business transaction attorney, explains why a general release does not release a claim for usury.

I’ve referred a number of clients to Alan because he does such a great job helping business clients.

USURY CLAIMS CANNOT BE WAIVED

Even a general release does not result in a waiver of a claim of usury, according to the 2007 California Court of Appeals case Hardwick v. Wilcox. Usury is the illegal action or practice of lending money at unreasonably high rates of interest.

In this case Hardwick received several loans at an interest rate of approximately 12% from Albert Wilcox, who was not licensed as a lender and had no other exemption from usury under California law. The loans were secured by deeds of trust on Hardwick’s commercial properties. Hardwick defaulted and Wilcox commenced foreclosure proceedings. The parties entered into a forbearance agreement that included a general release of all claims and a waiver of future unknown claims under California Civil Code section 1152.

Nine months after entering into the forbearance agreement Hardwick sued Wilcox to recover the usurious interest he had already paid. The general release did not specifically mention a waiver of usury claims. Thus, the Court ruled Hardwick’s usury claim against Wilcox had not been waived, and the Court added that, even if the general release had expressly included usury claims, to do so would be against public policy and therefore invalid.

Wilcox appealed. The Court of Appeals affirmed and Hardwick was awarded over $200,000 in damages based on usuriously paid interest.

A lender is required to be licensed or must procure another type of exemption from usury to charge usurious rates of interest.

Generally, usury in California is any rate over 10% simple interest per year or, if the loan is for home improvements, a home purchase, or for other than personal, family or household purposes, the higher of 5% or 10%, respectively, over the amount charged by the Federal Reserve Bank of San Francisco on advances to member banks on the 25th day of the month before the loan.

There are many other exceptions to the usury law including, but limited to, loans by real estate brokers if the loans are secured by real estate, and loans by most lending institutions such as banks, credit unions, finance companies, and other specified lenders. State laws place interest rate limitations on some of these loans.

If you charge interest in excess of these amounts you may be inviting a legal action based on usurious interest. If you pay interest in excess of these amounts you may be able to recover all or a portion of your interest payments. Therefore, before you loan money or accept a loan, with an interest rate in excess of 10% per year, check with your business attorney to determine whether the interest rate is usurious.

Alan Foster counsels entrepreneurs and businesses of all sizes on business operations, corporate, and intellectual property

Alan Foster

Alan formed Foster Law Group in 2006. Previously, he was a principal attorney at Burriss & Monahan in Mountain View and his own firm in Palo Alto. He also served as Legal Counsel & Manager of State Government Affairs for the American Electronics Association, working with the executive management of HP, Intel, Apple, IBM and other industry leaders to promote laws that encourage the startup and growth of technology-based companies.

Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.