Based on testing commissioned by Consumer Products Association, Inc., a nonprofit organization that was founded to educate consumers on the accuracy of nutritional label and marketing claims of consumer products, many of the Bowmar Nutrition products contain less than the represented amount of protein.

Some of the high-protein nut butters are as much as 50% short on the stated amount of protein per serving with some of the protein powders having far less than half of the represented protein content.

These variances from stated nutritional claims are unlawful under Federal law which require that fortified protein products must contain protein in amounts “at least equal to the value for that nutrient declared on the label.” 21 C.F.R. § 101.9(g)(4)(i).

In addition, the variances tend to move in one direction, i.e., the Products consistently overstate their actual protein content. In addition, testing also reveals gross inaccuracies in other claims made on the nutritional labels of the Products with more calories and saturated fat than what is represented.

You can read the lawsuit here: Amended Complaint – Bowmar Nutrition

For more information, please contact Charles C. Weller by clicking HERE.

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Through AB 5, the California legislature codified and expanded the reach of the so-called “ABC Test” for determining whether a worker should be classified as an independent contractor. This new law expands the reach of the California Supreme Court’s Dynamex decision which applied to coverage under the California Industrial Welfare Commission’s Wage Orders. AB 5 applies this new test to businesses under the California Labor Code and the California Unemployment Insurance Code.

Currently, California businesses are subject to a variety of tests of employee status, depending upon the law in question. Under most federal and California laws, the common law agency test applies. For workers’ compensation laws, the California Supreme Court adopted an “economic realities” test 30 years ago in S.G. Borello & Sons v. Department of Industrial Relations.

However, as of Jan. 1, 2020, the default standard for independent contractor treatment will be the ABC Test.

The ABC Test significantly narrows the scope of work for which businesses may classify workers as independent contractors, rather than employees, and expands the application of this new standard to nearly all employers doing business in California.

Businesses that do not adapt to the ABC Test may face an increased risk of claims from workers asserting that they were misclassified as independent contractors, on an individual and class or collective basis.

ABC Test Explained

Under the ABC Test, a worker is assumed to be an employee unless the business demonstrates:

A. That the worker is free from the control and direction of the hiring entity in performing the work, both in the contract for performance and in fact

B. That the worker performs work that is outside of the usual course of the hiring entity’s business

C. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity

It is Prong B of the test that will likely cause the most difficulty for companies that regularly engage independent contractors.

Prong B excludes from the assumption of employee status workers who perform duties outside the “usual course of the hiring entity’s business.” While AB 5 does not specifically define the phrase, many businesses use contractors to help them perform their regular business. California courts are expected to be tasked with interpreting the scope of this requirement.

Many industries lobbied hard to obtain exemptions from the ABC Test. The new statute excludes seven different categories of occupations or business, each with its own separate test for qualifying for the exclusion. These exclusions cover diverse occupations ranging from professionals such as architects and lawyers to non-professionals such as grant writers, tutors, truck drivers, and manicurists. Each category has a slightly different requirement to qualify for the exclusion from the ABC Test. However, qualifying for the exclusion from the ABC Test merely defaults the workers to a determination under the Borello test. Complicating matters further is that for all these occupations, a determination of employee status under federal law, such as under the National Labor Relations Act, likely remains under the common law agency test.

Application and Enforcement

While the California Labor Commissioner is officially tasked with enforcing many of the provisions of AB 5, claims of worker misclassification will more commonly be asserted in private civil actions either individually or on a class basis. In other words, companies will increasingly see independent contractors bring claims for wage and hour law lawsuits or class actions (i.e. overtime claims, meal and rest break claims, wage statement claims, etc.).

Employer Takeaways

Although several industry groups are expected to challenge the new law, businesses operating in California should review and update their practices relative to independent contractors before Jan. 1, 2020 – whether through potentially reclassifying independent contractors as employees or revising independent contractor agreements.

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General Application Employment Statutes

Social Media Access Limitations (AB 1844). “Social media” is broadly defined in the statute to include a wide variety of electronic content, including emails and text messages. Employers are prohibited from requiring or requesting that employees or applicants: (i) disclose user names or passwords to access personal social media;(ii) access personal social media in the presence of an employer or an employer representative; or (iii) produce any social media postings. However, employers are permitted to require current employees to reveal their passwords and usernames if needed to investigate misconduct or legal violations.

Inspection and Copying of Personnel Records (AB 2674). Alters current law by requiring employers to maintain personnel records for at least three years after an employee’s termination and clarifies that both current and former employees have a right to inspect and receive copies of their records. Also sets a new 30-day time limit for compliance with a request, unless there is a pending lawsuit relating to a personnel matter, with a new penalty of $750 for not providing records within the 30-day time limit. An aggrieved employee may also be entitled to costs and attorneys’ fees, as well as injunctive relief.

Criminal History Information Requirements (AB 2343). Agencies, organizations and individuals that receive criminal history information from the California Department of Justice are now required to provide notice to an employee or applicant who is the subject of an adverse employment, licensing or certification decision based on that information.

Changes to Workers’ Compensation (SB 863). Increases permanent disability benefits by approximately 30 percent, phased in over a two-year period, and changes the benefit delivery system to reduce inefficiencies and loopholes. In addition, independent medical review (IMR) is mandatory when there are disputes about medical treatment, and the Workers’ Compensation Appeals Board is not permitted to make a determination of medical necessity that contradicts the determination of the IMR organization. Parts of the legislation will become effective January 1, 2013, while other parts require further administrative or regulatory action first.

Wage and Hour Statutes

New Requirements for Employees’ Paid Commissions (AB 1396). All employers that pay “commissions” to employees working in California will be required to supply their employees with written contracts setting forth the formula for determining the commission as well as the method of payment. Employers must also keep a signed receipt of the contract for each employee. Under California’s Labor Code Private Attorneys General Act, employers that violate the law may be fined $100 per employee per pay period for the first violation and $200 per employee per pay period for subsequent violations.

Overtime for Nonexempt Employees (AB 2103). A non-exempt employee’s fixed salary only covers the employee’s non-overtime hours, regardless of any agreement to the contrary. This new statute is designed to address situations where non-exempt employees are told that their salaries already include overtime.

Penalties for Failure to Provide Itemized Wage Statements (SB 1255). Effective July 1, 2013, an employee is “injured” and entitled to a statutorily specified penalty when an employer does not supply a complete and accurate wage statement. An employee need not show actual injury, but can establish injury by demonstrating that any of the nine categories of wage information was not included. The new law further specifies that a “knowing and intentional failure” does not include an isolated and unintentional error due to a clerical or inadvertent mistake. Penalties are $50 for the first violation and $100 for each subsequent pay period in which the law is violated, up to $4,000, plus costs and attorneys’ fees.

Wage Garnishment Changes (AB 1775). Effective July 1, 2013, the amount of an employee’s wages exempt from garnishment is increased to the lesser of 25 percent of the individual’s weekly disposable earnings or the amount by which the individual’s disposable earnings for the week exceed 40 times the state minimum hourly wage (currently $8 per hour). Disposable earnings are defined as the portion of an individual’s earnings that remains after deducting all amounts required to be withheld by law.

San Jose Sets City Minimum Wage. Effective in the first quarter of 2013, employers who maintain a facility in San Jose or who possess a business license from the city must pay employees working in San Jose at least $10 per hour.

Discrimination Statutes

Restructuring in the Department of Fair Employment and Housing (DFEH) (SB 1038). Eliminates the Fair Employment and Housing Commission and creates a new Fair Employment and Housing Council within the California Department of Fair Employment and Housing.The new council will have seven appointed members who will promulgate regulations under the Fair Employment and Housing Act (FEHA). Also under the new law, there is no administrative adjudication of FEHA claims. DFEH can file cases directly in court (but prior to bringing a civil action DFEH will require all parties to the case to undergo free mandatory dispute resolution), and DFEH will be entitled to recover reasonable attorneys’ fees and costs when successful.

Prohibition of Discrimination Based on Religious Dress and Grooming (AB 1964). FEHA now explicitly protects employees’ religious dress and grooming practices as covered religious beliefs and observances. Religious dress includes the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts and any other item that is part of religious observance; religious grooming includes all forms of head, facial or body hair related to a religious observance or creed. The law further provides that an accommodation that segregates an employee from the public or from other employees is not a reasonable accommodation.

Breastfeeding Now Covered under the Fair Employment and Housing Act (FEHA) (AB 2386). FEHA’s definition of discrimination-based on “sex” is expanded to include “breastfeeding and conditions related to breastfeeding.”

New Pregnancy-Related Regulations. New forms must be posted and given to employees affected by pregnancy. In addition, the new regulations clarify the term “four months” of leave, defining it as the number of days the employee would normally work during four calendar months (i.e., four months equal 17-1/3 weeks).

Employment-Related Statutes

The Shriver R-Word Act (AB 2370, SB 1381). The Shriver R-Word Act revises the language in a number of statutes to replace “mentally retarded” with “intellectually disabled” and”mental retardation” with “intellectual disability.” However, these wording changes do not affect the coverage, eligibility, rights, responsibilities or substantive definitions in those statutes and, thus, do not change an employer’s statutory obligations or rights.

Slavery and Human Trafficking Notices Requirements (SB 1193). Under this law, by April 1, 2013, a notice that contains information related to slavery and human trafficking will have to be posted by certain employers in an area easily visible to employees and the public.

Disability Access Litigation Protections (SB 1186). This law limits frivolous litigation premised on technical violations regarding disability access. It does so by reducing statutory damages, adding provisions to prevent “stacking”of multiple claims and imposing a ban on letters making monetary demands prior to litigation.

California False Claims Act (AB 2492). This law expands existing law by redefining the term “obligation,” increasing the civil penalty for each violation and providing specified relief to any employee, contractor or agent who is discharged, demoted, suspended or in any other manner discriminated or retaliated against for reporting a false claim. The law also modifies the statute of limitations for certain civil actions.

The law firm of Charles C. Weller, A.P.C. & Associates prosecutes and defends civil litigation, including discrimination, sexual harassment, wage and hour violations, wrongful discharge, defamation, breach of contract, intentional torts, emotional distress and other serious workplace issues in federal and state courts.  Charles C. Weller, A.P.C. & Associates also provides Human Resources consulting services including HR outsourcing, performance management, organizational development and policy and procedure development to assist clients in maintaining compliance with current federal and local employment laws such as the Fair Labor Standards Act, the Family Medical Leave Act and Anti-Discrimination Statutes.

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What Is Intellectual Property? 

To many people the term “intellectual property” remains a mystery – some obscure legal concept of little relevance to everyday life.  Lack of awareness about IP is understandable because, in the past, it was an esoteric field of law often reserved for discussions between technical specialists and corporate lawyers.  Times have changed.  The information technology revolution, and the increasing pace, impact, and importance of invention and innovation, linked to rapid globalization, have brought IP onto center stage.  As a result, IP is now a key factor in corporate strategic planning and should be an important factor in your business.

Intellectual property (IP) are legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law.  Under IP law, owners are granted certain exclusive rights to a variety of intangible assets.

The government protects these property rights because they know safeguarding these rights fosters economic growth, provides incentives for technological innovation, and attracts investment that creates new jobs and opportunities for all.  In essence, the government grants you a legal monopoly to grow your business.  Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets.[3]

How Can I Make Money With Intellectual Property?

The main purpose behind registering your intellectual property is to protect your business.  However, typically one of the benefits of being proactive with IP protection is the ability to generate additional income.  First off, your business will look more professional by owning intellectual property.  This allows the opportunity to attract investors by building a strong “brand” presence and protecting your business from competition.  The risk to the investor is lower and the overall value of the business may be increased.  If your business owns IP that it does not need to exclusively use, you have the option to license the use of the IP to others.  The licensing agreement can be constructed numerous ways depending on the use and compensation arrangement.  Another option is to sell or buy IP.  Owning IP that you do not need is sometimes a good thing as someone else may have the need for it and might be willing to pay more than you think.  And, finally, when the time comes to retire or sell your business, it will hold a higher value due to the IP and goodwill built up over prior years.

In sum, intellectual property is something that should not be an afterthought in your business.  Being proactive with IP can not only prevent pitfalls in the growth and operation of your business, but can allow you to maximize your growth potential and increase your business valuation.  Intellectual property is an asset which protects your business from competition, increases revenue and profitability, and differentiates your company from the rest of the competitive marketplace.

The law firm of Charles C. Weller, A.P.C. & Associates specializes in protecting intellectual property and resolving disputes. For more information on intellectual property or to register a trademark or copyright, please see https://cweller.com/Practice-Areas/Trademarks-Copyrights.html.

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Privacy concerns remain a significant as websites grow in complexity, and the data about individual users they possess becomes more interconnected. In August German data privacy authorities reopened [JURIST report] an investigation into facial recognition software used by Facebook that automatically recognizes facial features in pictures. In February the US District Court for the District of Columbia [official website] dismissed [JURIST] a suit brought by EPIC, asking the FTC to block Google’s [corporate website] proposed privacy policy changes [text]. Some commentators have noted that privacy regulations can be transnational [JURIST op-ed] and have effect beyond their immediate jurisdictional boundaries.

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• Compliance with FDA/DSHEA Regulations
• The Legal Status of Dietary Ingredients
• Marketing and Advertising Claims
• Current Good Manufacturing Practices (cGMPs)
• Preparing and Filing New Dietary Ingredient Notifications (NDI)
• Label Content and Label Claims
• Substantiation Requirements
• Adverse Event Reporting
• Recalls
• Seizures and Import Detentions
• Injunctions
• FDA Inspections
• FDA Warning Letters
• Federal Trade Commission (FTC) Inquires and Challenges

A dietary supplement lawyer will have the industry-specific experience to advise dietary supplement manufacturers and nutraceutical companies how to maintain compliance with a variety of statutory and regulatory requirements.

The law firm of Charles C. Weller A.P.C. & Associates provides cutting-edge advice and cost-effective legal solutions for clients in the nutritional supplement industry. For more information on a Dietary Supplement Lawyer, please see https://cweller.com/Practice-Areas/Dietary-Supplement-Lawyer.html.

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1. Make sure you hire someone who has a background in personal injury law.  By hiring a specialist, you will improve your chance of winning compensation substantially.
2. Hire a personal injury lawyer who is willing to accept your case on a contingency fee basis (the lawyer does not get paid unless and until you receive money) and advance all of the expenses involved in your case up front.  Depending on the seriousness of your injury, these costs can range from a few hundred dollars to ten thousand dollars or more.  The court filing fees, deposition costs, expenses for medical records, and fees for expert reports and testimony can add up quickly.  A personal injury lawyer who refuses to make such an investment in your case is either not a very good lawyer or doesn’t believe enough in your case.
3. During your initial consultation (which should be free), your personal injury attorney will listen to the facts and circumstances surrounding your accident.  Do not be afraid to ask questions.  You want to know everything there is to know about the process, including an approximate timeline, and how much the lawyer feels your case is worth.  While the lawyer will not have a crystal ball, a good personal injury lawyer will not be afraid to give you a tentative time line and ballpark figures.
4. Try and hire someone who can work with you as soon as possible.  If you want to make a personal injury claim, you’ll want to get it done quickly, especially if money is an issue. Someone who will do the job swiftly and thoroughly is ideal, especially if you have medical bills piling up and a low income on which to survive.
5. Look for the lawyer’s qualifications, and see if they’re genuine.  A good lawyer will always have the relevant qualifications and credentials, as this will distinguish them from some of the more dubious legal professionals operating.
6. Determine whether you can get along with the lawyer before hiring him or her. Trust your instincts on this one.  Only a very small percentage of cases go to court.  Most are settled through negotiations.  A friendly and good negotiator is a huge asset in a lawyer.  If you get along with the lawyer, most likely, others will too.

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You most likely learned of the lawsuit when you were handed a summons and a copy of the complaint.  The complaint explains what the person initiating the lawsuit wants from you or wants to do.  For instance, this could be for money damages, return of certain property, or other type of relief such as an injunction.

As soon as you receive a summons and complaint, you should read it, and then decide whether you need to hire a lawyer to defend you.  There are a few things to consider, all of which boil down to the seriousness of the lawsuit and the potential outcomes.  If you’re being sued in small claims court or if you’re being sued for just a couple hundred dollars, you may not need to hire a lawyer, but you may still want to consult with one.  If you’re being sued for something more substantial or if it’s something that could put you out of business if you lose, you most likely want an experienced lawyer by your side.

You have a limited number of days to file a response to the lawsuit.  In California you have thirty days to file a response or twenty-one days if the case is in federal court.  If it’s an unlawful detainer (eviction proceeding) you only have 5 days.  Make sure you hire a lawyer in time to prepare your response.

If you fail to respond to the lawsuit in time, the court will rule in favor of the plaintiff.  This could result in a default judgment against you affecting your credit rating.  You could be faced with real property liens, bank levies, or garnishment if a judgment is obtained against you.  Don’t ignore the lawsuit, it’s not going away.

The post WHAT TO DO IF YOU’VE BEEN SUED appeared first on Charles C. Weller.

The reasons for hiring an accountant are pretty obvious – you need someone to help set up your accounting, provide tax planning, and prepare all your necessary federal, state and local tax returns.  The reasons for hiring a business attorney may not be so apparent.  A good business attorney will provide vital assistance in almost every aspect of your business, from entity formation, to copyright and trademark advice, to day-to-day general advice, negotiations and contract drafting, dispute resolution, and lawsuit defense.

Remember, if you’re being sued, it’s too late.  The time to retain a lawyer for your business is before you are sued.  Once you are sued, the costly mistakes have already been made which may have been avoided.

When should you hire a business lawyer?  An experienced business lawyer can help with the following:

1)      Starting a Business – Form the appropriate legal entity for your business.  This could be an LLC, corporation, or some other type of business partnership.

2)      Filing a Trademark or Copyright – Protect your trademarks, logos, and copyrights by obtaining federal registration to protect your business against infringers.

3)      Buying or Selling a Business – Negotiate sales agreements, lease agreements, buy-outs, and offer advice in structuring deals.

4)      Contracts and other Agreements – Prepare independent contractor agreements, non-disclosure agreements, joint-venture agreements, buy-sell agreements, and others.

5)      Hiring Employees – Hire and fire employees in compliance with federal and local employment laws, such as the Fair Labor Standards Act, the Family Medical Leave Act and Anti-Discrimination Statutes.

6)      Litigation – Defend against frivolous claims and provide litigation support for prosecuting or defending lawsuits.

An experienced business lawyer will keep you and your business on the right track for future growth.

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