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Chip seal projects slated throughout county this year Ontario Argus Observer
California Labor Code Section 925 prohibits employers from requiring employees who reside and work primarily in California, as a condition of employment, to agree to any provision that would require the employee to litigate outside California any claim arising in California, or that would deprive the employee of the benefit of California law with respect to any claim arising in California. Under Section 925, any such provision is voidable by the employee and if the employee exercises her right to void the provision, then any such claim shall be adjudicated in California under California law.1
The issue of whether Section 925 does or does not apply can be significant because employers often include non-California choice of law and/or venue provisions in employment agreements that may be more favorable to employers than California law and courts. For example, non-compete agreements are enforceable in Delaware provided their duration is reasonably limited in time and geographic scope, their purpose is to protect a legitimate economic interest of the employer, and their operation reasonably protects that interest.2 By contrast, non-compete covenants are generally unenforceable in California unless necessary to protect the misappropriation of an employer's trade secrets or in connection with the sale of the goodwill of a business or substantially all the assets of a business to a buyer who will carry on the business.3
Employers and employees have advanced multiple arguments for why Section 925 should or should not apply and that the choi ce of law and/or venue provisions in their employment agreements should or should not be enforced, with mixed results.
Employees Who Do Not Reside and Work Primarily In California. To start, Section 925 does not apply to claims arising outside California or to claims by plaintiffs who do not primarily reside and work in California.4 In one case, for example, the Court refused to void a Michigan forum selection clause under Section 925 because only 20% of the plaintiff-employee's work for the defendant occurred in California.5
Prior to January 1, 2017. Additionally, Section 925 only applies to employment agreements "entered into, modified, or extended on or after January 1, 2017."6 Seizing on this language, the employee-plaintiffs in one case argued that, even though their original employment agreements were entered into prior to January 1, 2017, they had been modified or extended beyond January 1, 2017 via pay raises.7 However, the Court in Rafeh observed that the employment agreement "did not address the issue of pay, so it is a stretch to argue that pay-raises resulted in its modification or extension."8 Instead, both plaintiffs' agreements had been executed prior to the effective date of Section 925, and there was "no evidence of subsequent modification." Accordingly, the Court held that Section 925 did not apply and enforced the parties' Michigan forum selection clause.9
Was The Employee Represented by Counsel? Section 925 also does not apply "to a contract with an employee who is in fact individually represented by legal counsel in negotiating the terms of an agreement to designate either the venue or forum" of a controversy arising under the agreement "or the choice of law to be applied."10 In NuVasive v. Miles, for example, the Delaware Court of Chancery ruled in an unpublished opinion that despite California's strong public policy against non-competition agreements, Section 925 could be invoked to enforce a non-competition clause in an employment agreement governed by Delaware law because the employee was represented by counsel in the negotiation of the agreement.11 Conversely, in DePuy Synthes Sales, Inc. v. Stryker Corp, the employee had signed an agreement containing non-competition and New Jersey choice of law provisions as a condition of his employment with his former employer.12 But the employee was not represented by counsel in connection with the negotiation of his employment agreement. Accordingly, Section 925 applied and the New Jersey choice of law provision was void and unenforceable.13
Independent Contractors vs. Employees. Employers have also argued that Section 925 does not apply when the plaintiffs are independent contractors, as opposed to employees. Under the so-called ABC or Dynamex test, however, a worker is presumptively considered an employee for purposes of Section 925. In order to conclusively establish independent contractor status, the employer must show that (1) the worker is free from the control and direction of the hiring entity in connection with the work; (2) the worker performs work outside the usual course of the hiring entity's business; and (3) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.14
Condition of Employment. Some employers have also attempted to avoid application of Section 925 by arguing that the employee's agreement to the non-California choice of law or forum provision was not required as a "condition of employment." In Focus Financial Partners, LLC v. Holsopple, for example, the employer argued that the long-term agreement containing the Delaware choice of law and forum provision was not required as "a condition of plaintiff's employment because the employee had already been hired when the long-term agreement was signed, and there was no evidence that the employee was threatened with termination if he did not sign it.15 While that may have been "narrowly true," the Court observed that when the employee (Holsopple) joined Focus in 2015, his compensation consisted of a base salary of $220,000 plus a "Potential Annual Bonus" of between $100,000 and $200,000 that would be "Paid in a Combination of Cash and Focus Incentive Units."16 Additionally, Holsopple's offer letter included a "Sign On Bonus" consisting of 40,000 units and $75,000 cash. Because "major portions" of Holsopple's compensation were contingent upon his signing a Unit Agreement, the Court concluded that Holsopple's agreement to the Unit Agreement was effectively required as a condition of employment and that Section 925 thus applied.17
Conversely, in another case, the plaintiff's employment agreement required the plaintiff-employee's signature as a condition of employment. However, the employment agreement did not contain any forum selection clause; instead, the Ohio choice of law and venue provision was contained in a shareholder agreement to which the plaintiff was not a signatory and to which the plaintiff's agreement was not required as a condition of employment. Accordingly, the Court found that Section 925 did not apply.18
Use of Affiliates. Additionally, it does not appear that employers can avoid Section 925 by restructuring employment agreements among one or more affiliates or subsidiaries. In Focus, for example, the employer argued that the Long-Term Agreement and Omnibus Agreement were not conditions of Holsopple's employment because Focus Sub was Holsopple's employer, whereas the Long-Term and Omnibus Agreements containing the forum selection clauses were with Focus Parent, a non-party to Holsopple's employment agreement. The Court, however, rejected this argument and reasoned that Section 925 "encompasses a provision in any agreement that is presented as a condition of employment," a reading that fulfills the public policy underlying Section 925 and protects the statute from being easily circumvented.
California Labor Code §925 presents a major but not insurmountable hurdle to the enforcement of non-California choice of law and venue provisions in employment contracts. Experienced counsel should be consulted in connection with any potential implementation of foreign choice-of-law and venue provisions as to California employees.
Footnotes
2 Cal. Labor Code §925(b).
2 See, e.g., Tristate Courier & Carriage, Inc. v. Berryman, No. 20574-NC, 2004 WL 835886, at *10 (Del. Ch. Apr. 15, 2004).
3 Cal. Bus. & Prof. Code §16601; D'Sa v. Playhut, 85 Cal. App. 4th 927, 934 (2000).
4 See, e.g., Mechanix Wear, Inc. v. Performance Fabrics, Inc., No. 16-cv-09152-ODW, 2017 WL 417193, at *7 (C.D. Cal. Jan. 31, 2017) (enforcing the employer's forum selection clause despite Section 925 because the plaintiff "never worked for Defendant in California."); Felley v. America Fujikura Ltd., No. 17-cv-02204-MCE, 2018 WL 3861574, at *2 (E.D. Cal. Aug. 14, 2018) (transferring case to South Carolina and giving plaintiff's choice of forum minimal weight because the alleged sexual harassment occurred when plaintiff was stationed in South Carolina).
5 Bromlow v. D & M Carriers, LLC, 438 F. Supp. 3d 1021, 1029 (N.D. Cal. 2020).
6 Cal. Labor Code §925(f)).
7 Rafeh v. Gold Star Mortgage Fin. Group, Corp., No. 19-cv-00157-ODW, 2019 WL 3067199, at *5 (C.D. Cal. Jul. 12, 2019).
8 Id.
9 Id.
10 Cal. Labor Code §925(e).
11 NuVasive, Inc. v. Miles, No. 17-cv-720-SG, 2018 WL 4677607, at *6 (De. Ch. 2018).
12 DePuy Synthes Sales, Inc. v. Stryker Corp., No. 18-cv-1557-FMO, 2020 WL 6205702, at *8 (C.D. Cal. Sep. 29, 2020).
13 Id. at *8.
14 Dynamex Operations W. v. Superior Ct., 4 Cal. 5th 903, 955 (2018).
15 Focus Financial Partners, LLC v. Holsopple, 241 A.3d 784, 816 (Del. Ch. Ct. 2020).
16 Id. at 817.
17 Id.
18 Down-Lite Intl v. Altbaier, No. 19-cv-627, 2019 WL 3562068, at *3 (S.D. Ohio Aug. 6, 2019).
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The public is being urged to give seals space to protect them. after a much-reported death of a seal in London.
The Seal Alliance is warning that getting too close to seals can lead to their injury and death, even up to several months later.
Seals have ventured further inshore on beaches and coastlines that were quieter during lockdown, it says.
Last month a popular seal known as "Freddie" was put down after he was attacked by a dog in Barnes, London.
The animal, named after singer Freddie Mercury because of his crowd-pleasing antics, had been entertaining people near Hammersmith Bridge.
The Seal Alliance, a coalition of regional marine wildlife groups, is launching its campaign over the Easter weekend because people are expected to take advantage of lockdown relaxation to go for walks on coasts and estuaries, take part in water activities or fly drones.
The government-backed campaign urges people to keep dogs on a lead when seals might be present, never to feed the marine mammals and take all litter home.
Female seals are heavily pregnant during the summer, the Sea Alliance says, and getting too close or disturbing them could lead to seals stampeding on rocks, which can prove fatal to both mother and pup.
Environment Secretary George Eustice said: "Seals are one of our most iconic marine mammals. They can be found along our coastline around the UK and we must do all that we can to protect them.
"Disturbance by members of the public can be detrimental to seals but this is entirely preventable."
Andy Ottaway, of the Seal Protection Action Group, added: "Our precious coastal wildlife is coming under increasing human pressure.
"We need to be aware of the harm we can cause by getting too close to our seals and the often tragic consequences when we do."
Sue Sayer, of the Seal Research Trust, said: "If a seal is looking at you, it has been disturbed, so please move further away. Use your camera and binoculars, stay quiet and out of sight."
The UK is home to about 153,000 grey seals, an estimated 38% of the world's population, and 88% of these are in Scotland.
The coastline is also home to about 30% of the European subspecies of common or harbour seals, about 46,000 seals.
The Seal Beach Chamber of Commerce is preparing for its inaugural Vintage Car Cruise. Organizers hope to make this an annual event in addition to the classic (and iconic) car show. For its inaugural Seal Beach Vintage Car Cruise logo, the Chamber selected a 1962 Plymouth Valiant to represent the courage and determination of local businesses over the past year.
The car cruise will be a safe, socially distanced event, free to Seal Beach residents and their guests. The cruise will take place Saturday, April 24, from 10 a.m. to 12:30 p.m., the original date for the Seal Beach Classic Car Show. Due to COVID-19, the Car Show has been moved to Oct. 9. The Car Cruise will begin on Seal Beach Blvd. and will make its way through the Hill and Old Town in Seal Beach.
Seal Beach residents and friends will be able to watch, socially distanced, from their yards, balconies, green belts and businesses along the 3 and one half (½) mile route.
The cruise will feature approximately 200 vintage cars from 1980 or earlier. Producers of the event are still accepting applications from owners of vintage cars, who would like to join the inaugural cruise. For more information on how to join the car cruise, visit https://ift.tt/1W7i5s5.
The event will be recorded and televised on local SBTV-3 and live streamed by the Seal Beach Chamber of Commerce, for those without a front row view.
Trophies will be awarded in eight classes, as follows: 1. Best Truck, 2. Best Convertible, 3. Best Coupe/Sedan, 4. Most Unique, 5. Best for Mom, 6. Best for Dad, 7. Best Paint Color and 8. Seal Beach Chamber of Commerce Choice. The first 7 classes will be judged via online voting, by spectators. To cast your votes, visit https://ift.tt/1W7i5s5 and click on the “Vote Seal Beach” button or text “votesealbeach” to “646-00” and a link to the voting app will be sent to your phone. This is live now, should you want to set it up in advance of the Car Cruise. Each person will be able to vote for the cars of their choice during the cruise, and the results (winners) of each category will be sent to all voters at the end of the Car Cruise.
“As we get closer to the car cruise, we are seeing so much excitement from participants and residents alike.” said Tim Way, chair of the Seal Beach Vintage Car Cruise.
“I think our town, already famous for its seaside car show, is ready to take its’ love of vintage cars on the road,” he said.
To commemorate the first annual Seal Beach Vintage Car Cruise, special edition t-shirts and posters will be available for sale at select Main Street businesses on and before the day of the event.
The inaugural Vintage Car Cruise is an official event of the Seal Beach Chamber of Commerce and could not be produced without the support of event partner, city officials, the Seal Beach Lion’s Club, Boeing, Seal Beach and event sponsors, G & M Oil, Republic Services, Baytown Realty, The Sun Newspapers, Original Parts Group and Ferguson Realty.
The Seal Beach Chamber of Commerce provides a healthy environment to sustain, promote and grow businesses, civic and community organizations in the area, while providing opportunity to enhance the quality of life of the greater Seal Beach community through local events. For information about the Chamber, call 562-799-0179 or visit sealbeachchamber.org.
Deb Machen is a member of the Board of Directors of the Seal Beach Chamber of Commerce.
Motivation and support comes in many forms, including a cold nose and a warm heart. The Seal Beach Police Department welcomed its newest staff member, Yosa, a facility dog provided by Canine Companions for Independence. Police facility dog Yosa will assist her handler, Lt Nick Nicholas, during his work with victims, witnesses, and community members exposed to traumatic events.
“A police facility dog is not the same as a patrol apprehension/detection dog,” wrote Lt. Nicholas in an email. Lt. Nicholas is the public information officer and operations lieutenant for the SBPD, in addition to being Yosa’s handler.
“We are in the process of acquiring and training the patrol dog,” Lt. Nicholas wrote.
Since 1975, Canine Companions® has bred, raised, and expertly trained service dogs in over 40 commands designed to assist and motivate clients with special needs. Yosa, a 2-year-old Labrador / golden retriever mix, has been selected to work for the Seal Beach Police Department because of her unobtrusive and calm demeanor necessary in a criminal justice setting.
The Seal Beach Police Department will use Yosa to:
• aid in the investigation of crimes,
• provide comfort to victims and witnesses during interviews and court proceedings,
• help victims process grief and loss,
• lower tension and stress of community members and staff after traumatic events,
• work with children to build relationships,
• conduct senior citizen visits and welfare checks,
• engage with the public during community events,
For nearly 46 years, Canine Companions has been enhancing the lives of people with disabilities by training and placing more than 6,700 service dogs with program graduates, including more than 230 dogs with military veterans and more than 2,000 dogs with children. The estimated cost of a highly trained Canine Companions facility dog like Yosa, and all follow up support, is $50,000, however each facility dog is provided at no cost. Canine Companions depends on the support of tens of thousands of donors and volunteers to match facilities and people in need with a service dog like Yosa entirely free of charge.
“We are so grateful to Canine Companions for providing Yosa to the Seal Beach Police Department,” said Chief of Police Philip L. Gonshak. “Yosa is an incredible addition to our Seal Beach family. Her training and personality are perfect for providing comfort to those exposed to trauma and helping to ease the stress that victims and witnesses feel during criminal investigations.”
LIHU‘E — Endangered Hawaiian Monk Seal, RK58 is back from his second visit to Ke Kai Ola, The Marine Mammal Center monk seal hospital on Hawai‘i Island.
The juvenile male seal has been released back into the wild on Kaua‘i after spending more than two months in rehabilitative care at the seal hospital. He was rescued and admitted to Ke Kai Ola on Feb. 16 with infected puncture wounds to his head, neck and flipper from a suspected dog attack.
He was released back on Kaua‘i on March 26, flying with the U.S. Coast Guard from Hawai‘i Island. The Coast Guard also delivered a young female Hawaiian monk seal named Mele to be released on an O‘ahu beach during the same trip.
“To return two Main Hawaiian Island seals back to their ocean home is an incredible success story with the survival of each individual critical to the recovery of the population,” said Dr. Cara Field, Medical Director at The Marine Mammal Center. “This success story highlights the importance of our ongoing partnerships to help give these animals a second chance at life and save this species.”
The two seals spent more than two months in rehabilitative care for malnutrition and other ailments. During their treatment, the underweight seals greatly improved in overall body condition and stamina. Both animals experienced remarkable weight gains during their short stay, with Mele, a young female rescued on Oahu due to her poor condition, nearly doubling in weight.
“We are so grateful that The Marine Mammal Center was able to immediately activate and provide the intensive care that these two patients needed,” says Dr. Michelle Barbieri, Lead Scientist for NOAA’s Hawaiian Monk Seal Research Program. “Their return to the wild is important for the future of the species and we are glad that they are back home.”
RK58 has been in the spotlight since 2018, when he was born to the Hawaiian monk seal Rocky (RH58). She made waves the year before when she gave birth to the first pup ever recorded on a crowded Waikiki Beach in June of 2017. That pup was given the name Kaimana and was relocated to a quieter beach when she was weaned.
In July 2018 Rocky made the news again when she gave birth to RK58 and then was involved in a switch with another mom-pup pair, which experts say is a natural occurrence. After the switch-up Rocky rejected the pup. So, biologists picked up RK58 and admitted him to Ke Kai Ola, where he joined another Hawaiian monk seal pup involved in a mom-pup switch on Moloka‘i. At the time, RK58 was the youngest monk seal to ever be admitted to the center.
He was released back into the wild from his first stay at Ke Kai Ola in February 2019.
Since 2014, the Center has rehabilitated and released 35 monk seals, most of which have been rescued from and returned to the Northwestern Hawaiian Islands (NWHI) as part of the partnership with NOAA, utilizing resources in the NWHI to identify seals in need, rescue and rehabilitate them, and give them a second chance at life.
If you fancy a Jason Dohring in uniform, well, SEAL Team is about to be added to your DVR.
The Veronica Mars alum is boarding Season 4 of CBS’ military drama in the heavily recurring role of Lieutenant Commander Whitshaw, a charismatic officer who knows how to work the system to his advantage. Whitshaw has “a cunning ability to cover his own tracks, which makes him a formidable adversary,” says our sister site Deadline, which first reported on the casting.
TVLine hears that Whitshaw will figure into a storyline with, and serve as a bit of a foil for, DEVGRU Intelligence Officer Lisa Davis (played by Toni Trucks).
SEAL Team resumes its fourth season next Wednesday, April 7.
In addition to his aforementioned run as Veronica Mars‘ Logan Echolls, Dohring’s TV credits include iZombie, The Originals, Ringer and Moonlight, plus episodes of The Messengers, Bluff City Law and, most recently, All Rise.
Want scoop on SEAL Team, or for any other show? Email InsideLine@tvline.com and your question may be answered via Matt’s Inside Line.
ragamnyakabar.blogspot.com Glen Rose’s downtown — lined with boutiques, antique shops, bookstores and cafes in early 20th century building...
