Clearing up the Misconceptions About Holiday Pay

In California, there seems to be a lot of confusion about requirements for holiday pay for employees. Our office routinely fields questions from employers and employees on this topic during the holidays. This blog post is intended to clear up some of the common misconceptions about holiday pay.

In California, hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays. The law also does not require that the employer close its business on any holiday or that any employee be given the day off for any particular holiday. If an employer elects to close its business on a holiday and give its employees time off from work with pay, then such a circumstance exists pursuant to an internal policy or practice adopted by the employer. There is nothing in the law that requires such a practice. Additionally, there is nothing in the law that mandates that an employer pay an employee a special premium for work performed on a holiday, Saturday, or Sunday, other than the overtime premium for work performed in excess of eight hours in a workday or 40 hours in a workweek.

Consider the following questions/scenarios that have been posed by employees on this topic:

Q: We get 11 holidays off each year without pay. My sister gets the same 11 holidays off, and she gets paid for all of them. Is my employer breaking the law because he is not paying us for these holidays when he is required to, even though we don't work on any of them? 

Answer: No, your employer is not breaking the law. There is nothing in state law that mandates that employees be paid for holidays that are not worked.

Q: Last week we were closed for business on Monday to celebrate a holiday. Consequently, I worked Tuesday through Saturday that week, eight hours a day. When I got my paycheck this week, I was paid for 48 hours last week at my straight time rate. Shouldn't eight of those hours be paid at time and one-half, the overtime rate, since I was paid for more than 40 hours in the workweek? 

Answer: No, you were paid correctly. In this situation, even though you did not work on the holiday your employer chose to pay you for it, which it has the absolute right and discretion to do. However, the determination of whether overtime pay is due is based on hours worked, and not upon pay received. Thus, since you did not work more than eight hours in any one workday, or more than 40 hours in the workweek, you are not entitled to any overtime pay for the workweek.

Q: My employer is open for business on every holiday, some of which I have to work. Isn't this against the law? 

Answer: No. There is nothing in state law that mandates that an employer must close its business on any particular day, if at all. It is up to your employer to select which days, if any, it chooses to be open and closed for business. If your employer is open on a holiday and schedules you to work on that day, then there is nothing in the law that obligates your employer to pay you anything but your regular pay and any overtime premium for all overtime hours worked.

Should you have continuing questions or concerns about holiday and overtime pay or questions about employment law, then contact Ronnie Gipson at (415) 692-6523 or by email at gipson@higagipsonllp.com.

Closer Scrutiny of Online Content Sharing by ISPs

In the face of widespread online file sharing, Internet Service Providers (ISPs), such as AT&T, Cablevision Systems, Comcast, Time Warner Cable, and Verizon are implementing a "six-strike" plan to educate and prevent pirates from downloading unauthorized material. You read that right- there are six strikes. The system is intended to target peer-to-peer file sharing websites, and not online lockers, such as Dropbox, or email attachments.

After the first offense is detected, the Internet subscriber will receive an email alert from their ISP saying that the subscriber account may have been used for “online content theft.” After the second offense, the Internet subscriber will receive another email alert, but possibly with an additional educational message about the legal consequences of online content theft. Third and fourth offenses will also result in email notifications, along with the addition of a pop-up or landing page that the Internet subscriber must click on to acknowledge receipt. Beginning at the fifth offense, “Mitigation Measures” may be taken against the subscriber. These measures may include, for example: “temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures (as specified in published policies) that the ISP may deem necessary to help resolve the matter.” ISPs probably will not disable the subscriber’s voice telephone, e-mail account, or any security or health service. There will be no blacklist of subscribers shared amongst ISPs. The ISPs also have the option to waive the Mitigation Measure. After a sixth offense, Mitigation Measures will be implemented against the subscriber again. Under this system, a subscriber’s account will not be terminated.

If an Internet subscriber believes s/he has been wrongfully targeted, the subscriber may request an investigation for a $35 filing fee. There is considerable interest to see if this system will really be effective. There is a time frame after which the calendar to measure strikes resets, but when the calendar resets is not clear. In practice, a person may actually have more than four strikes before Mitigation Measures are implemented by the ISPs. As the system is more widely implemented, it will be interesting to see how the specific mechanics change for practical application.

To obtain more information about the system, contact Veronique Kherian at vkherian@higagipsonllp.com or (415) 692-6520 Ext. 109.

AirVenture 2012 & The Pilots Bill of Rights

I just returned from my very first Air Venture fly-in at Osh Kosh, WI. I could spend pages discussing my impressions of the wonderful folks I met in the North 40, the Warbird area, or while watching the night airshow. Instead, I will discuss the passage of the Pilots Bill of Rights announced during the event.

Let's start with some background. In October 2010, Senator Jim Inhofe was flying his twin engine plane into an uncontrolled field in Texas. While in flight Sen. Inhofe was under the control of ATC. However, during the transition phase from cruise to descent and landing, the controller made a mistake and cleared Sen. Inhofe to land at the airport instead of terminating radar services. When Sen. Inhofe was on short final he observed a maintenance crew with equipment on the first 1/3 of the runway. He was not advised of the maintenance crew's presence by either the controller or the NOTAMs he obtained for his preflight. Sen. Inhofe was able to safely land the aircraft on the remaining 2/3 of the runway avoiding any contact with the maintenance crew or equipment.

Unfortunately, the story does not end there. The FAA initiated an investigation into the incident and then proceeded to pursue an enforcement action against Sen. Inhofe's license. To defend himself, Sen. Inhofe requested copies of the ATC tapes. Under the current system, the facility responsible for the tapes was not required to turn them over to Sen. Inhofe as he prepared to mount his defense to the allegations raised by the FAA, even though they conclusively proved that he was not at fault for any wrongdoing. It took Sen. Inhofe four (4) months to obtain the tapes. In the end, an informal agreement was reached and the enforcement action was resolved without either a suspension or revocation of Sen. Inhofe's license.

The event clearly exemplified to Sen. Inhofe all of the injustices in the enforcement process that certificate holders face. As a result, with the help of AOPA and the EAA, Sen. Inhofe presented legislation to the Senate titled the Pilots Bill of Rights. Essentially, the Pilots Bill of Rights is designed to eliminate the current elements of unfairness and justice to certificate holders subjected to the enforcement process.

Specifically, the Pilots Bill of Rights requires National Transportation Safety Board (NTSB) proceedings for the review of decisions of the Administrator of the Federal Aviation Administration (FAA) to deny, amend, modify, suspend, or revoke an airman's certificate to be conducted, to the extent practicable, in accordance with the Federal Rules of Civil Procedure and Federal Rules of Evidence. The Bill requires the Administrator to:

(1) advise the subject of an investigation involving the approval, denial, suspension, modification, or revocation of an airman certificate of specified information pertinent to the investigation; and

(2) provide him or her with access to relevant air traffic data.

Next, the bill allows an individual to elect to file an appeal of a certificate denial, a punitive civil action, or an emergency order of revocation in the U.S. District Court in which the individual resides, in which the action in question occurred, or the district court for the District of Columbia. The bill allows an adversely affected individual who elects not to file an appeal in a federal district court to file such appeal with the NTSB. The bill directs the Administrator to begin a Notice to Airmen (NOTAM) Improvement Program to improve the system of providing airmen with pertinent and timely information before a flight in the national airspace system.

The bill also makes Flight Service Station briefings and other air traffic services performed by Lockheed Martin or any other government contractor available to airmen under the Freedom of Information Act (FOIA).

Finally, the bill requires the Administrator to review the FAA system for the medical certification of airmen in order to:

(1) revise the medical application form,

(2) align medical qualification policies with present-day qualified medical judgment and practices, and

(3) publish objective medical standards to advise the public of the criteria determining an airman's medical certificate eligibility.

At Oshkosh, Sen. Jim Inhofe along with Congressman Samuel Graves, the bill's sponsor in the House of Representatives, were on hand to announce that the Pilots Bill of Rights had passed both the Senate and House without objection. The legislation now moves on to the President for signature. Under Article I, Section 7 of the United States Constitution, the President has 10 days to sign the legislation into law. Since Congress is in session if the President fails to take any action, then the bill automatically becomes law. The aviation community and especially aviation attorneys like me who work to defend Airmen and certificate holders in enforcement proceedings thank Sen. Inhofe, Congressman Graves, AOPA, and EAA for their support in passing essential legislation that returns the enforcement process to a system that is fair.

My purpose for going to AirVenture is that I was invited to join the EAA's Legal Advisory Council. I am humbled and honored to join this prestigious group of aviation attorneys. The Council consists of nine (9) attorney members who provide advocacy support to EAA. More importantly the Council members mainly serve as a resource to the EAA members who have legal questions. Now that I am a member of both the AOPA Legal Panel and the EAA Advisory Council, I am excited at the prospect of being able to reach Airmen and Certificate holders and assist them regardless of their specific flying interest. 

Should the need arise for representation in the enforcement process or any other aviation legal question occur, then feel free to contact me at (415) 692-6520. I can also be reached by email at gipson@higagipsonllp.com.

Is This Considered Fair Use?

I am regularly asked to answer questions of whether or not some activity--artistic or commercial--involving the use of previously-created material is considered "fair use" of that material. The inquirers are usually engaged in any number of various activities, such as projecting photos onstage during the performance of play, creating photorealistic renditions of film, album covers, and posters, or incorporating photos into an academic article.

Folks ask me about these types of use because fair use is indeed supposed to encourage discussion of copyrighted works. Fair use (refers to Section 107 of the Copyright Act) encourages commentary, criticism, news reporting, teaching, and archiving of original works. That’s why a scholar hoping to include some movie stills in her doctoral dissertation may have a strong fair use defense to a copyright infringement claim. However, if she decides to begin selling this dissertation on Amazon.com as a book, the copyright owners of those movie stills may begin taking notice.

In a separate blog post I discussed the four factors that courts will examine when determining if an activity constitutes fair use. The factors provide a complex framework for many different aspects of all parties and all works involved and are not pertinent for this blog post. Understandably, the court decisions that apply the factors span the gamut with respect to their emphasis and outcome. Fair use is determined on a case-by-case basis, making a quick answer to a seemingly innocuous question practically impossible.

Another point that must be made is that claiming fair use is an affirmative defense in a copyright infringement case. Fair use is brought up after the opposing party has already initiated a lawsuit. The Fair Use defense will not prevent a copyright holder from initiating litigation against you. To get the benefit of the Fair Use defense, you can expect to spend a significant sum of money defending your interests in a copyright litigation case before gaining the benefit of the defense, assuming that you are successful with a dispositive motion.

Therefore, whether you are a musician sampling some riff in your own work, an academic about to publish her dissertation, or a business owner who wants to jazz up your website with the CEO's favorite music recording, I strongly recommend to my clients that they obtain licenses of the works they are incorporating into their activities. The license removes the risk of copyright-related litigation, and allows you to work with the copyright owner to achieve the best result for all parties.

If you have questions about fair use, copyright, or licensing, then please contact Veronique Kherian at vkherian@higagipsonllp.com. You can also reach Ms. Kherian by telephone at (415) 692-6520 Ext 109.

Baseball & Turns Around A Point

Baseball season is in full swing. Locally, the San Francisco Giants are off to a good start to the season. In my hometown (Dallas, TX), the Texas Rangers (2-time World Series Contenders) are also off to a strong start leading their division. With respect to aviation law, why should you care? There are some peculiar similarities between the two teams that could give rise to an identical infraction by Airmen who happen to be baseball fans.

Both the Texas Rangers and SF Giants baseball stadiums sit beneath the Class B Airspace of DFW & SFO respectively. Each stadium is far enough away from the primary airport, such that a pilot flying VFR could fly below the Class B Airspace and get close enough to observe a game in progress. (Technically, to fly over the SF Giant’s stadium, a pilot would need permission to transit Oakland’s Class C Airspace). In any event, the possibility exists to view a game in progress from the air.

Before you fuel the plane and embark on an afternoon of turns around a point, consider the applicable Federal Aviation Regulations (FARs). Specifically, FAR section 91.119 provides in pertinent part, “Except when necessary for takeoff and landing, no person may operate an aircraft below the following altitudes:…(b) Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft….”

A Major League Baseball game in progress constitutes an open air assembly of persons as does similar sporting events such as a NASCAR race, an outdoor ATP/WTA tennis event; and arguably a kid’s weekend soccer game or a company softball game. If you fly your aircraft over one of these events to enjoy a bird’s eye view, then take every precaution for the safety of the spectators below to remain 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet. When flying over Texas stadium, the area surrounding the stadium is relatively flat there don’t appear to be structures close by within 2,000 feet that are taller than the lights of the stadium. Prudence would dictate that you fly 1,000 feet above the tallest point at the stadium. If flying over the SF Giants stadium, then take into account that there are buildings taller than the stadium adjacent or close by to the stadium which would necessitate a higher altitude to comply with the FAR.

Before setting off for a joyride above the ballpark, be certain that you can perform the flight safely for yourself, your occupants, and the spectators on the ground below while complying with FAR 91.119. Note that FAR section 91.13 prohibits a pilot from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another. A spectator on the ground won’t be familiar with the FARs and could place a call to the local FSDO to report an aircraft buzzing the game. When the FAA investigates, they may very well conclude that your operation of an aircraft close to the minimum altitudes constitutes a careless or reckless endeavor. Do your planning and take the proper precautions to avoid getting involved in a needless FAA enforcement action. If you have questions about FAR section 91.119 or any other FAR, then contact Ronnie Gipson for clarification. He can be reached by email at Gipson@higagipsonllp.com or by telephone at (415) 692-6520.

Licensing Agreements Simplified

I am frequently asked to provide guidance on intellectual property license agreements, and thought a short guide would be helpful to readers. If you compare intellectual property (IP) rights to a bundle of sticks, the licensee would be required to obtain a couple sticks out of that bundle to continue her project. A license is granted when one obtains a subset of the full ownership rights of intellectual property.

What can the licensor and licensee expect to see in a license agreement? These agreements vary greatly, depending on the unique circumstances of each deal, including the type of IP being licensed, the licensee’s intended use of the IP, and the size of the contracting parties. Here’s a list of some of the clauses that are common to intellectual property licenses:

Definition of the intellectual property being licensed. This can sometimes be heavily negotiated because this defines exactly what the licensee can sell by using the licensed IP.

Scope of the license. Licenses can vary greatly. Sometimes there are geographic limitations to where a licensee can exploit her license, sometimes there are temporal limitations. Channels of trade may also be restricted—for instance, a license to use some software license may be limited to software sold in retail stores, or internet stores. The licensee may also be limited in how she can use her license. Licensors may also wish to set minimum or maximum price levels a licensee can sell a product at. There are other elements that can limit the scope of use; these negotiations can become quite complex.

Royalty terms. For obvious reasons, these are some of the most heavily-negotiated terms in a license agreement. Royalties can be paid in a variety of ways—in a lump sum, or on a regular, ongoing basis. The calculation of royalties may be done using a variety of methods, including looking at net sales resulting from the license, or profits resulting from the license. The payment method, term, and regularity will need to be agreed upon by both parties.

Audits. With any calculation of royalties based on a licensee’s sales or performance, the licensor will want to conduct regular audits of the licensee’s activities. Parties will need to decide when these will take place, by whom, and who will bear the costs of such audits.

Enforcement. Parties will also need to determine whose duty it is to enforce the intellectual property associated with the license. There are several ways of organizing this duty, and the stakes can be high for all parties involved.

Modifications to Intellectual Property. Will the licensee be able to modify or improve the intellectual property in any way? Who will own the rights to such modifications?

This list represents a sample of the many considerations that may arise in a licensing transaction. If you have any further questions about licensing agreements, then please contact Veronique Kherian at vkherian@higagipsonllp.com. You can also reach Ms. Kherian by telephone at (415) 692-6520.

California Supreme Court Holds That Employers Are Not Required to Police Employee Meal Breaks

The California Supreme Court issued an opinion recently in Brinker v. Superior Court, that has a huge impact on California employers. At issue was the question of whether or not employers are required to police employees’ actions to ensure that the employees are not working during these breaks. Employees who file wage and hour claims have long alleged that employers were liable to the employee for compensation when the employer provided time for the meal breaks but failed to ensure that the employee refrained from performing any work related tasks during mandatory meal breaks. Employers in response have long argued that they have met their obligations under the Labor Code by providing the meal breaks and that they bear no liability if an employee violates the intent of the break and performs work related tasks during the meal break period.

Per the California Labor Code section 512, an employee is entitled to a 30 minute meal break after 5 hours of work. Interpreting the Labor Code, along with the Wage Orders and Opinion Letters issued that attempt to further explain this law, the Court held that the condition precedent that triggers an employer’s duty to provide a meal break is employment of the person for at least 5 hours. The resulting entitlement by the employee is a meal period of at least 30 minutes. The Court could find no statutory or public policy basis for concluding that an employer is obligated to police employee meal breaks to ensure that the employee is not working during that time. On the contrary, the Court held that it would be inconsistent with the clear plain meaning of the statute to interpret the law to mean that the employer must exert control over the employee during the meal break to confirm that no work is being done. Restated, the imposition of a policing requirement would in effect require the employer to exert control over the employee during the meal break which would run counter to the public policy behind the very purpose of the meal period….relinquishment of employer control during the meal break period.

If you have questions about how this recent ruling by the California Supreme Court could impact your company’s operations, then contact Ronnie Gipson at 415.692.6520 or by email at Gipson@higagipsonllp.com.