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November 30, 2016

California Court of Appeal Dismisses Officer’s Administrative Appeal After He Refuses to Testify at Evidentiary Hearing

In Thaxton v. State Personnel Board, 2016 WL 6777825 (Nov. 16, 2016), a California appellate court affirmed the dismissal of a corrections officer’s administrative appeal of his termination. The court ruled that the employee’s failure to appear in person constituted a "failure to proceed" with an evidentiary hearing, thereby warranting the dismissal of his appeal.

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November 23, 2016

Federal Court in Texas Halts Implementation of New Federal Overtime Rule

On November 22, 2016, a federal court in the Eastern District of Texas halted implementation of the Department of Labor’s ("DOL") rule that amended the salary basis test for overtime exemptions in the Fair Labor Standards Act ("FLSA") that was scheduled to take effect December 1, 2016. Nevada v. DOL, E.D. Tex., No. 4:16-cv-00731 (11/22/16). The Court granted a preliminary injunction, which temporarily delays the DOL’s rule from taking effect nationwide.

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November 23, 2016

Federal Court in Texas Halts Implementation of New Federal Overtime Rule

On November 22, 2016, a federal court in the Eastern District of Texas halted implementation the Department of Labor’s ("DOL") rule that amended the salary basis test for overtime exemptions in the Fair Labor Standards Act ("FLSA") that was scheduled to take effect December 1, 2016. Nevada v. DOL, E.D. Tex., No. 4:16-cv-00731 (11/22/16). The Court granted a preliminary injunction, which temporarily delays the DOL’s rule from taking effect nationwide.

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November 23, 2016

Don’t Let New Recreational Marijuana Laws Leave You Dazed & Confused Regarding Student Discipline

On November 8, Californians passed Proposition 64, legalizing the nonmedical (recreational) use of marijuana for adults 21 years or older in California. Under California law, approved ballot measures take effect after the election unless otherwise specified. Accordingly, people over the age of 21 in California are now allowed to "possess, process, transport, purchase, obtain, or give away" not more than 28.5 grams of marijuana or not more than 8 grams of concentrated cannabis. People over age 21 in California are also allowed to "[s]moke or ingest marijuana or marijuana products." Paradoxically, the sale of nonmedical marijuana in California remains illegal for the time being, as licensing and other regulations on the recreational marijuana industry will take effect by January 1, 2018. Despite all this legislation, any use of marijuana—recreational or medical—remains illegal under the federal Controlled Substances Act. (21 U.S.C. §§ 801 et seq.) The federal Drug Enforcement Administration continues to classify marijuana as a "Schedule I" drug, meaning it finds no currently accepted medical use and a high potential for abuse. Significantly, federal law preempts state law, meaning a state and its electorate cannot make marijuana completely "legal."

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November 22, 2016

Are Your Employment Discipline Policies Up in Smoke after Proposition 64?

On November 8, Californians passed Proposition 64, legalizing the nonmedical (recreational) use of marijuana for adults 21 years or older in California. Under California law, approved ballot measures take effect after the election unless otherwise specified. Accordingly, people over the age of 21 in California are now allowed to "possess, process, transport, purchase, obtain, or give away" not more than 28.5 grams of marijuana or not more than 8 grams of concentrated cannabis. People over age 21 in California are also allowed to "[s]moke or ingest marijuana or marijuana products." (Health & Safety Code
§ 11362.1.) Paradoxically, the sale of nonmedical marijuana in California remains illegal, as licensing and other regulations on the recreational marijuana industry will take effect by January 1, 2018. Despite all this legislation, any use of marijuana—recreational or medical—remains illegal under the federal Controlled Substances Act. (21 U.S.C.
§§ 801 et seq.) The federal Drug Enforcement Administration continues to classify marijuana as a "Schedule I" drug, meaning it finds no currently accepted medical use and a high potential for abuse. Significantly, federal law preempts state law, meaning a state and its electorate cannot make marijuana completely "legal."

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November 22, 2016

An Offer to Compromise Under Cal. Civ. Proc. Code Sec. 998 Cannot Be Conditioned on an Overly Broad Release

This is the second in a series of articles addressing the importance of having clear and unambiguous settlement offers in order to take advantage of their pronounced benefits. In the early stages of a lawsuit, it is important for parties to confer with their counsel to determine whether to make a settlement offer and how much they should offer. Generally, the prevailing party in a civil lawsuit is entitled to recover only its costs. A party may not recover attorney’s fees unless a contract between the parties or a specific statute authorizes such recovery. California Civil Procedure Code section 998 is such a statute concerning fee shifting. It provides that if a plaintiff rejects a defendant’s settlement offer and subsequently fails to obtain a more favorable judgment or award, the plaintiff may not recover costs incurred after the offer was made and will be required to pay the defendant’s costs. These costs can include attorney’s fees and expert witness fees.

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November 21, 2016

The New Vaccination Law: Parents Withdraw Challenge, Now What?

On June 30, 2015, Governor Jerry Brown signed Senate Bill 277 ("SB 277"), which eliminated the exemption from mandatory vaccinations based on personal beliefs prior to enrollment in a public school. The law, which went into effect on January 1, 2016, prohibits preschools, elementary schools, and secondary schools—whether public or private—from admitting children for the first time or advancing them to seventh grade, unless they are immunized. Prior to admission, children must present documentation of immunization for diphtheria, haemophilus influenza type b, measles, mumps, pertussis (whooping cough), poliomyelitis, rubella, tetanus, hepatitis B, and varicella (chicken pox).

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November 18, 2016

Removal from SWAT Team and Honor Guard Assignments Was Not Punitive Action Under POBRA

On October 20, the California Court of Appeal issued a ruling against a police officer who was removed from assignments to the SWAT team and honor guard and was not assigned trainees. The court held that the officer did not suffer punitive action under the Public Safety Officer’s Procedural Bill of Rights Act ("POBRA"), Cal. Gov. Code §§ 3300 et seq. because the assignments were "collateral" and did not impact the officer’s compensation or full-time duties. Perez v. City of Westminster, _ Cal.App.4th _ [2016 WL 6609753].

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