Volume 31, Number 9
Member of California Alliance of Paralegal Associations (CAPA) Member of National Association of Legal Assistants (NALA)
Inside this issue: President’s Message ........................................................ 1-2 Court News ....................................................................... 2 OCPA September-December Calendar ............................ 3 OCPA Net Worth............................................................... 4 OCPA Call for 2011 Directors ........................................... 5 OCPA General Meeting .................................................... 6 Article: How to Deal with the Stresses and Anxieties Of Being a Legal Assistant ................................................ 7 Article: Email: What You Need to Know Before Hit ‘Send’ .......................................................................... 8 OCPA Student Conference 2010 ...................................... 9 Article: Paralegals and Overtime....................................... 10-12 OCPA Education Conference ........................................... 13 Article: How to Form a Bond Between IT and Legal ......... 14-15 Article: So They Call You An Independent Contractor... ... 16-17 Article: Coming Soon: Certainty in Calculating California Hearing Deadlines... ......................................................... 19-20 CAPA News... ................................................................... 21-22 NALA News ...................................................................... 23 OCPA Board of Directors, New Member Statistics .......... 24 OCPA Corporate Sponsors, Sustaining Members ............ 25
PRESIDENT’S MESSAGE OCPA had a busy summer, which ended with our Summer Party and Silent Auction on August 11, 2010. If you didn’t attend the party, you missed a really great time! The party was held poolside at the Radisson Newport Beach Hotel, a perfect setting for just relaxing and reconnecting with friends and colleagues. Several members, including me delighted the audience with Karaoke. The Wii Tournament and Wine Tasting were more successful than we hoped, and we are very grateful to the vendors that donated wine and sponsored the event. September brings us all a much needed three-day weekend. It also symbolizes back to school and end of summer. For me, September brings excitement
and fear. I’m excited because my 18 year-old twins will be beginning their new lives with one entering college and one going into the Air Force. I’m frightened because this will bring about many changes in my life including dealing with—empty nest syndrome. September is also that time of year when OCPA recruits candidates for the 2011 Board of Directors and Committee/Section Chairs. If you in any way are interested, please self nominate yourself and sign up by the deadline for nominations: October 20, 2010. If you are hesitant to commit, contact a board member or committee/section chair to find out what is entailed in being on the board or chairing a committee or section. This is a terrific way to become involved in OCPA and we are always looking for new and enthusiastic members willing to share their ideas and talents. Several positions are available including Database Manager (must be proficient with Microsoft Access), and Hospitality Coordinator (responsible for coordinating meetings and conferences at hotel). If you might be interested in either of these positions please send me an email at firstname.lastname@example.org OCPA will have a Student Section Meeting on Saturday, September 18, 2010. The meeting will be held at Western State University College of Law in Fullerton. The keynote speaker will be Mary Rose Bordwell of Bordwell & Associates, and she will offer students a forecast of the job market for 2011. In addition, she’ll provide resume tips for students to use when sending resumes to potential employers. Please see flyer in this Compendium issue for
Disclaimer: The articles contained in this publication have been prepared for and are intended to provide information useful to members of the Orange County Paralegal Association (OCPA) and the legal professional community, at-large. The information presented is not to be taken as legal advice nor do the views represent a statement of OCPA policy. Cover Art: Courtesy of www.FreeDigitalPhotos.net
registration form. Of course, the real OCPA biggie is our Annual Educational Conference that will be held on Saturday, September 25th. Hopefully, by now you have read the email blast about this awesome, all-day conference at the Newport Beach Radisson Hotel. As a bonus, we will be treated to a presentation by two former FBI Agents that will share their experience on white collar crime through audience participation and video clips. The session will be worth 1 hour of ethics credit! In addition to great speakers there are door prizes, vendor bingo, 50/50 raffle and chances to network. The Educational Conference Committee has been working very hard to ensure that this yearâ€™s conference is the best ever. Please see flyer in this Compendium issue for registration form. Finally, I hope you are regularly checking OCPAâ€™s website (www.ocparalegal.org) for a complete listing of section meetings. The calendar is ever-changing, so log on frequently for updates. Kai Williamson
COURT NEWS Effective July 26, 2010, the fee to be admitted to the California Central District Court will be increased, as follows: Lawyers admitted to the California Bar less than 3 years- $200 Lawyers admitted to the California Bar 3 or more years- $250 All Pro Hac Vice Applications-
SEPTEMBER - DECEMBER 2010 CALENDAR September 18
Topic: So They Call You Independent Contractorsâ€Ś.Oh Really? Time: 6:00pm Location: IKON
October 11 Technology Section Meeting TBD
October 20 General Meeting Topic: What you should know about Maritime Law. Time: 6:00pm-8:00 pm Location: Radisson Hotel Newport Beach
Student Section Meeting
Ethics Section Meeting
September 25 OCPA Education Conference Time: 8:00am-4:00pm Location: Radisson Hotel Newport Beach
October 28 Family Law Meeting Topic: An Evening with the Dissomaster Time: 6:00pm Location: Hughes & Sullivan
December 8 Holiday Party/Elections Time: 6:00-8:00pm Location: Radison Hotel Newport Beach
How to Deal with the Stresses and Anxieties of Being a Legal Assistant Contributed by Stanley Popovich
Stress and anxiety are very common in today’s legal environment. As a result, here is a list of techniques that a legal assistant can use to help manage their daily stresses and anxieties at their job. Sometimes, we get stressed when everything happens all at once. When this happens, a person should take a deep breath and try to find something to do for a few minutes to get their mind off of the problem. A person could take a walk, listen to some music, read the newspaper or do an activity that will give them a fresh perspective on things. When facing a current or upcoming task at your job that overwhelms you with a lot of anxiety, divide the task into a series of smaller steps and then complete each of the smaller tasks one at a time. Completing these smaller tasks will make the stress more manageable and increases your chances of success.
tell you the day before. This unknown factor changes everything. Remember: We may be ninety-nine percent correct in predicting the future, but all it takes is for that one percent to make a world of difference. In dealing with your anxieties at your legal job, learn to take it one day at a time. While the consequences of a particular fear may seem real, there are usually other factors that cannot be anticipated and can affect the results of any situation. Get all of the facts of the situation and use them to your advantage. Stan Popovich is the author of "A Layman's Guide to Managing Fear Using Psychology, Christianity and Non Resistant Methods" - an easy to read book that presents a general overview of techniques that are effective in managing persistent fears and anxieties. For additional information go to: http:// www.managingfear.com/
Challenge your negative thinking with positive statements and realistic thinking. When encountering thoughts that make you fearful or depressed, challenge those thoughts by asking yourself questions that will maintain objectivity and common sense. For example, you are afraid that if you do not get that job promotion then you will be stuck at your job forever. This depresses you, however your thinking in this situation is unrealistic. The fact of the matter is that there all are kinds of legal jobs available and just because you don’t get this job promotion doesn’t mean that you will never get one. Remember that no one can predict the future with one hundred percent certainty. Even if the thing that you feared does happen there are circumstances and factors that you can’t predict which can be used to your advantage. For instance, you are at your place of work and you miss the deadline for a project you have been working on for the last few months. Everything you feared is coming true. Suddenly, your boss comes to your office and tells you that the deadline is extended and that he forgot to
E-Mail: What You Need To Know Before You Hit 'Send' Contributed by Vicki Voisin, ACP
It's no secret that law firms are communicating more and more by e-mail. E-mail is fast, easy and spontaneous. In 1999 the American Bar Association Issued Opinion 99-413 stating that confidential communication by means of unencrypted e-mail aren't a breach of the duty of confidentiality because the mode of transmission affords a reasonable expectation of privacy. This opinion does not relieve attorneys and staff from their ethical obligations. Here are a few things you should give some thought to before you send your e-mail: Do you have your client's permission to communicate by e-mail? Always be sure your client wants to receive e-mail from you. Some people check their mail so infrequently that sending a letter by US mail would be best. Others won't know how to download and review documents. It's best to have your client's permission in writing before you communicating by e-mail. Does someone other than your client have access to their e-mail? Perhaps your client shares the email address with a co-worker or family member. If the family or co-worker receives the communication, confidential information may be disclosed. Will a third party see the e-mail? E-mail containing privileged information between your firm and the client is fine so long as a third party does not receive the e-mail. The disclosure of privileged information to a third party waives the privilege. This is also a concern if your client is copying third parties with e-mail to your firm. Does your e-mail include a statement that it's privileged? Every e-mail message, whether it's routine or contains privileged information, should include a statement that it is privileged and if the recipient receives it in error, her or she shouldn't read it and should inform the sender immediately. While this disclaimer can't prevent someone else from reading the message, it can help your firm make the case that the disclosure was inadvertent and that the communication should retain the privileged status.
Are you using your personal e-mail account or your firm's account? The line between professional and private e-mail accounts is blurred. The Federal Rules of Civil Procedure allow the discovery of any material relevant to the claims of a party so long as the discovery appears to lead to the discovery of admissible evidence. It would be best if you didn't use your personal e-mail account to send business communications and vice versa. You do not want your personal e-mail account to be subject to discovery. Are you using 'reply to all'? Be careful! It is unethical to communicate with a person who is represented by an attorney. You often receive e-mail from attorneys who have also copied their client with the message. If you respond with 'reply to all' your message will go to the client and you are technically communicating with the represented person. Are you responding to every e-mail on demand? E-mail's extreme emphasis on responsiveness may jeopardize a very important attribute of professional excellence: judgment. Good judgment implies informed and critical thinking that leads to the optimal resolution of difficult and complex problems. This can't be rushed...but this is exactly what e-mail causes us to do. A snap answer may not be the best answer. Instead of shooting back an immediate reply, it might be best to respond that you understand the importance of the problem and will give it the time and attention it requires. If you do this, the client is getting a response but not an immediate answer. Your challenge: Use e-mail with the same caution you would use with any communication. E-mail may seem impersonal and be more spontaneous. However, this doesn't relieve you and your firm of the ethical responsibilities of confidentiality, privilege, and good judgment. Get your client's permission to correspond by e-mail. Be sure your client understands the ramifications of copying a third party with his or her messages. Be cautions when you choose the 'reply to all' function so that you do not communicate directly with a represented person. Resist the urge to shoot off quick responses to e-mail messages. Instead, take the time to use the good judgment the response deserves.
Paralegals and Overtime: What Your Boss Doesn’t Know May Hurt You Contributed by C. Andrew Head
Whether it’s preparing for trial or working on a closing, if there is midnight oil to be burned, paralegals are there. More often than not, they do the work that attorneys sign off on as their own, and like the attorneys that rely so heavily on their expertise and problem-solving abilities, they are trusted professionals who shoulder major responsibilities without needing daily supervision. They work hard, they know their stuff, and they often command higher salaries as a result. So how can it be that the law generally treats them no differently than an hourly-paid cashier when it comes to overtime pay? First, the basics. Under the Fair Labor Standards Act (“FLSA”), (1) employees are generally “nonexempt” and therefore entitled to overtime pay at a rate of time and a half for all time worked over 40 hours in a given work week, unless the employee falls within one or more exemptions under the Act. It is the employer’s burden to prove that an employee is exempt, and the exemptions are to be construed narrowly in order to give broad protection to the workers covered by the Act. If an employee brings a civil action and proves that his or her employer failed to pay overtime compensation as required by the FLSA, the employee is entitled to recover the amount of his or her unpaid overtime compensation for two years prior to the filing date (three years if the employee proves that the employer’s violation was willful), in addition to an equivalent amount as liquidated damages (unless the employer can prove the objective and subjective elements of its good faith defense), plus a mandatory award of the amount of attorneys’ fees and costs that the court deems reasonable. Moreover, employees can proceed as a collective action with others similarly situated rather than going it alone, resulting in shared costs and other benefits to the employee litigant. (2) Next, a little common sense. Not all law firms and corporations are knowingly trying to short-change their paralegals. Some pay generous bonuses in recognition for hard work throughout the year;
others have no idea that their trusted, experienced paralegals could possibly be “non-exempt.” Many understand that salaried employees are expected to work the number of hours necessary to do the job in exchange for that salary, and erroneously believe that therefore only hourly employees can be “non-exempt.” Regardless of what your boss may be telling you, paralegals generally do not fall within any of the exemptions to the overtime laws contained in the FLSA, the federal law applicable to most employers. In a series of opinion letters beginning in 1979 and continuing through 2005, despite various amendments to the FLSA regulations along the way, the Department of Labor (“DOL”) has uniformly taken the position that paralegals failed to satisfy the FLSA’s “administrative” exemption— the exemption most likely to be applicable to the majority of paralegals—because their primary duties involve producing the work product of their employer, rather than performing activities supporting their employer’s administrative operations, and because their primary duties do not involve the exercise of discretion and independent judgment required by the regulations, because such discretion and judgment must be exercised by the supervising attorney in order to avoid the unauthorized practice of law by a non-lawyer. (3) Although the DOL’s opinion letters generally focused on the production work performed by paralegals employed by outside law firms rather than paralegals providing in-house administrative support to a corporate legal department, a 2006 opinion letter similarly found that a Senior Legal Analyst for a corporation was non-exempt and therefore entitled to overtime because 90% of his or her responsibilities included “analyzing facts, identifying the legal issues involved, and then providing [his or her] interpretation of the law in a memorandum format for an attorney’s review,” and only 10% of his or her responsibilities included administrative support such as reviewing new materials, cost analysis and formulating costsavings plans, and training personnel. (4) Thus, although certain in-house paralegals may be more involved in duties supporting the administrative operations of the company itself rather than producing the work of the legal department, it is not
clear from the DOL’s opinion letters whether even those in-house paralegals would satisfy the “administrative” exemption under the FLSA. The result is no different under the FLSA’s “professional” exemption even for those paralegals who engaged in a particularized course of study to obtain paralegal certification in addition to receiving a four-year baccalaureate degree, because the DOL has concluded that the actual duties of paralegals, while requiring specialized legal training, typically do not require the type of advanced specialized degrees contemplated by the regulations necessary to satisfy the requirements of the “professional” exemption. Unlike attorneys who must have a law degree as required by state law in order to obtain a license to practice law, there is no similar requirement that a paralegal must have engaged in an extensive and specialized degree of study in order to perform the duties of a conventional paralegal (regardless of whether a particular employer indicates a preference for such advanced paralegal degrees during the hiring process), and an advanced specialized academic degree is not a standard prerequisite for entry into the field. The DOL expressly addressed the paralegal position under the “professional” exemption in 29 C.F.R. § 541.301(e), stating: (7) Paralegals. Paralegals and legal assistants generally do not qualify as exempt learned professionals because an advanced specialized academic degree is not a standard prerequisite for entry into the field. Although many paralegals possess general four-year advanced degrees, most specialized paralegal programs are two-year associate degree programs from a community college or equivalent institution. However, the learned professional exemption is available for paralegals who possess advanced specialized degrees in other professional fields and apply advanced knowledge in that field in the performance of their duties. For example, if a law firm hires an engineer as a paralegal to provide expert advice on product liability cases or to assist on patent matters, that engineer would qualify for exemption. Thus, the DOL has found that even those paralegals having a four-year college degree and a para-
legal certificate do not satisfy the “professional” exemption if their job duties are that of a “conventional” paralegal. (5) If, however, the paralegal possesses an advanced specialized degree in another professional field and is required to apply the advanced knowledge in that field as an expert in performing his or her paralegal duties (i.e., a CPA with an MBA performing expert forensic accounting work), then that particular paralegal may be exempt from the FLSA’s overtime compensation requirements.(6) Some employers may look to the new “highlycompensated employee” exemption under the 2004 regulations in the hopes of not having to pay an overtime premium to paralegals who are already highly compensated. The “highlycompensated employee” exemption applies only to those employees: (a) who earn a total annual compensation of $100,000 or more (which may include commissions and non-discretionary bonuses or other non-discretionary compensation), including a salary of at least $455 per week; (b) whose primary duty includes performing office or nonmanual work; and (c) who performs at least one of the exempt responsibilities of an exempt executive, administrative or professional employee. Thus, even if the paralegal is earning over $100,000.00 per year, this last provision makes it difficult to satisfy this exemption. Taking these in order, in order to satisfy the executive exemption, a highly-compensated paralegal would still have to either (i) supervise two or more other employees, (ii) have the authority to hire or fire other employees, or (ii) effectively manage the company/ firm or a customarily recognized department within the company/firm (e.g., the company’s legal department). To satisfy the administrative exemption, the highly-compensated paralegal would still either have to (i) perform work directly related to the management or general business operations of the company/firm or of its clients, or (ii) exercise independent judgment and discretion with respect to matters of significance to the company/ firm – both of which requirements the DOL has previously found that paralegals generally do not satisfy. Finally, with regard to the professional exemption, without an advanced degree in a specialized field that is required for expert work in
that field as a specialized paralegal, even a highlycompensated paralegal would not satisfy the professional exemption. In summary, law firms have objected to the treatment of paralegals as “non-exempt” under the FLSA for decades. The DOL has consistently overruled their objections, and the recent amendments to the FLSA regulations in 2004 did nothing to change the “non-exempt” status of most paralegals. So no matter how convincing your boss may sound when he or she explains that paralegals are exempt administrative or professional employees, better to get a second opinion from an attorney with experience in this area of the applicable wage and hour laws. What your boss doesn’t know might hurt you, and every week that slips by without filing an action to assert your overtime rights is another week of overtime pay that is lost forever from that trial or closing two or three years ago.
6 See DOL Wage and Hour Ruling, FLSA 2005-54, December 16, 2005 (stating that Paralegal C who possessed an MBA and an accounting degree and passed the uniform CPA exam might have qualified for exemption if she performed primarily expert work in her advanced field of study, but because her duties “appear [ed] to be those of a conventional paralegal,” there was insufficient evidence to conclude that Paralegal C satisfied the exemption.”)
_______________________________ 1 Note that many states have enacted their own wage and hour laws that may also apply in addition to the FLSA, and which provide even broader coverage than the FLSA. In the interest of brevity, this article will limit its focus to the federal overtime laws rather than attempting to present a state-by-state analysis. 2 See, e.g., Alba v. Brian Loncar, P.C., No. 03-CV1295-M, 2004 U.S. Dist. LEXIS 20477 (N.D. Tex., May 19, 2004) (collective action under FLSA involving putative class of all current or former legal assistants and paralegals of various law firm employers). 3 See DOL Wage and Hour Op. Ltrs., August 17, 1979; September 27, 1979; June 12, 1984; April 13, 1995; February 19, 1998; January 7, 2005; see also DOL Wage and Hour Ruling December 16, 2005, FLSA 2005-54, 2005 DOLWH LEXIS 68. Under the American Bar Association’s Code of Professional Responsibility, a delegation of legal tasks to a lay person is proper only if the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work produced. 4 See DOL Wage and Hour Op. Ltr., July 24, 2006, FLSA 2006-27, 2006 DOLWH LEXIS 37. 5 See DOL Wage and Hour Op. Ltr., January 7, 2005; DOL Wage and Hour Ruling, FLSA 2005-54, December 16, 2005.
How to Grow a Bond Between IT and Legal Contributed by Dean Kuhlmann
In this recent article from CIO Update, Dean Kuhlmann offers great insight into the importance of Paralegals learning as much as possible about eDiscovery and deduplication programs. Going the extra mile when executing and learning these programs could be a great way to set yourself apart from others who may be in the running for a potential position. Corporate litigation is often inevitable but preparation for that inevitability is controllable. So why so often during corporate litigation have I attended a meeting where legal and IT teams are introducing themselves across the table? The truth is that successful companies have embraced the brotherly bond that IT and legal departments share in this age of technology. Your IT and legal teams should be talking every day. It’s crucial to avoiding document retention issues, e-mail archiving and a whole host of complex issues that are crucial to managing discovery. And successful companies don’t simply embrace this bond they create a plan, put processes in place, and stick to the strategies they lay out. In the traditional corporate environment, the accepted policy has followed the mantra “legal is legal’s problem.” But companies today have recognized that any legal issue isn’t just the legal department’s problem anymore, especially when a lawsuit is filed. The amount of electronic processing that comes into play across the entire company builds an even larger role for the IT team in preserving and collecting documents relevant to the litigation. Paralegals aren’t specialized in stopping staff members from deleting email; the nature of email correspondence and like forms of electronic documentation requires the delicate touch of IT personnel. The closer the IT person is knitted into that environment, the better. What feeds this disconnect between departments? Well, for one, it’s easy to cut costs early on, but it can put you in a bad position later. The emergence of comprehensive e-discovery technology has pushed more services in-house. Many companies load up legal and allow them to purchase the software they need. Then, paralegals and non-qualified personnel end up trying to de-duplicate, search and
filter electronic data, and many of them aren’t trained well enough to do this effectively. What about defensibility, chain of custody and other critical procedures required to defend the relevance of the data used during litigation and in court? In contrast, the companies that do it right integrate legal and IT so IT staff can step in and take care of the technical aspects. Why? Because search technology is complex, and it takes someone knowledgeable in IT to manage it. Transversely, IT personnel aren’t versed in law. Data shouldn’t be handled as data, but as “evidence”, a very distinct difference when dealing with critical information that requires special handling, documentation and procedures at every juncture. Some legal departments even employ their own IT staffer within the group to manage the technical end and communicate with the IT group. This is a great way to let your IT group focus on typical IT help desk issues while one or more professionals dedicate themselves solely to the needs of the legal department. The IT team must be involved from the very beginning. After all, who knows software and the many places that data can hide throughout an organization better than IT? You want to choose the right ediscovery solution, so you need the right professionals to be involved. Let’s look at a scenario. Pretend an employee has an attachment and sends it out to 20 people. A lawsuit is filed, and the company in question has to provide documents relevant to the case. Because that attachment is the same for all 20 people, there is no reason to read it 20 times when you’re collecting the facts for the case. This holds true for a large minority of duplicate and potentially non-responsive records. A paralegal runs a deduplication program reducing the total number of records from one million to 800,000. That same paralegal is called up on the witness stand nine months later, and the judge questions him/her on the relevance of removing some 200,000 records. You must have a defensible position. If the paralegal only knows how to run the initial deduplication (which is often the case), he/she probably won’t know how to run a report on what was accomplished during the deduplication process. How does the judge know he/she didn’t remove documents that ultimately could have taken the case in a different direction? Were the processes documented? Can the procedure be reproduced? Does anyone even remember what happened nine months
ago? If you can’t prove why you’ve done what you’ve done, you leave yourself in a tough position. The same applies for search terms. Searching through one million records for the relevant ones based upon key terms, concepts, dates, etc., is painstaking, time-consuming and extraordinarily complex. If you don’t have the IT expertise to explain how you narrowed down your search, you don’t have the defensibility you need to hold up in court. The organization that embraces the disconnect between IT and legal as a business problem is the organization that does it right. Create a planning statement and define the roles IT and legal departments will play together. If you do it early enough and adhere to the plan, you don’t run the potentially costly risks of finding yourself indefensible in court. Dean Kuhlmann is responsible for sales, client and partner relationships as well as product positioning with the Viewpoint product line for Lateral Data, a provider of eDiscovery solutions. Drawing from his technical expertise as a hardware engineer, Dean brings more than 24 years of sales, consulting, and executive management experience in the eDiscovery, legal, and technology industries to Lateral Data.
So They Call You An Independent Contractor...Oh Really? Contributed by Gene Moran, C.P., C.L.A.S., C.A.S. One of the ramifications of the economic crisis has been that employers who want to save money have assigned certain positions the designation of ‘independent contractor.’ This practice may affect not only the resulting amount of compensation, but it also relieves the employer of all legal obligations under the California Labor Code and other operative federal statutes. This could mean that the employer would not have responsibility to provide for any of the following: overtime pay for those in previously non-exempt positions; meal or rest periods; sick time; workers’ compensation; and deductions made on the paycheck. It also means no employer liability for the employer for any of these issues, which would potentially be the case for employees. If an independent contractor pursues an issue, and a trial or appellate court finds that the worker was not an independent contractor, but was instead an employee, this could mean substantial liability for the employer on the foregoing issues. This employer liability includes, but is not limited to: Liability
Unpaid minimum wage or overtime compensation Missed meal and rest periods Penalties for failure to keep pay period records Unpaid expenses State and federal civil and criminal penalties for not withholding taxes Potential penalties if withholding taxes are not paid within 30 days of the date that the amount is owed Interest and attorneys’ fees for enforcing all of the above Possible judgment entered against employer for lack of workers’ compensation insurance coverage and fines paid to the State of California of up to $100,000
Lab. Code § 1194 Lab. Code § 226.7 Lab. Code § 226.3 Lab. Code § 2802 Unemp. Ins. Code § 2118
Robert Coviello, plaintiff's employment/labor attorney and mediator, discussed the new areas of ‘hot’ employment cases for the plaintiff and what areas are cooling off. Coviello identified cases of misclassification for exempt/non-exempt as diminishing in number because employers have gotten increasingly better at such overtime exemption designations. However, he also pointed out that the economy has driven some employers to misclassify workers as independent contractors in order to save money, and that this area is ripe for testing with the courts. An independent contractor is defined by Lab. Code § 3353 as, "any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished." Lab. Code § 3352 lists those areas of work that are outside of the scope of consideration of being an "employee." According to the California Supreme Court, the party seeking to avoid liability has the burden of proving that persons whose services s/he has retained are independent contractors rather than employees. Thus, there is a presumption of the person being an employee. S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations, 48 Cal.3d 341, 349, 354 (1989), quoting Lab. Code § 3357. See also Robinson v. George, 16 Cal.2d 238, 242 (1940), “[t]he rule . . . is that the fact that one is performing work and labor for another is prima facie evidence of employment, and such person is presumed to be a servant in the absence of evidence to the contrary.” Under the seminal Borello case, determining whether an individual providing service to another is an independent contractor or an employee does not involve a single determinative factor. However, this instead requires close examination of the facts of each service relationship and application of the ‘multi-factor’ or ‘economic realities’ test. Id. at 341. The most important factor to be considered is the ‘control’ that the employer has over the worker. However, “the ‘control’ test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements.” Id. at 350. While the right to control the work remains a significant factor, the Borello court identified the following additional factors that must be considered:
Lab. Code § 203
Lab. Code § 4554
At the Employment/Labor Section Meeting last month,
Whether the person performing services is engaged in an occupation or business distinct from that of the principal; Whether the work is a part of the regular business of the principal;
OCPA Compendium •
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Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work; The alleged employee’s investment in the equipment or materials required by his task; The skill required in the particular occupation; The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; The alleged employee’s opportunity for profit or loss depending on his managerial skill; The length of time for which the services are to be performed; The degree of permanence of the working relationship; The method of payment, whether by time or by the job; Whether the parties believe they are creating an employer-employee relationship. Id. at 350-351.
The Borello court stressed that these individual factors cannot be applied mechanically as separate tests because: a) they are intertwined, b) their weight afforded to each factor depends often on particular combinations; c) they must be applied with deference to the protective legislation; and d) they must be applied in a manner that will effectuate the provisions of the California Labor Code in view of the history and fundamental purposes of the legislation. Id. at pp. 351, 353. Recently, the 9th Circuit interpreted Borello and held that even with a worker signing a contract agreeing to be an independent contractor, that was not dispositive to the issue as other factors could be interpreted by a jury to conclude otherwise, especially the control that the employer had over the worker's performing the work. Narayan v. EGL, Inc., No. 07-16487, Slip Op. at 10081-10085 (9th Cir., July 13, 2010).
tractor pursuant to Lab. Code § 3353, it would likely be an uphill battle for any legal employer to make a successful argument that their paralegal was an independent contractor. However, recent review of Craig’s List paralegal ads has occasionally shown “independent contractor” listed in the job description. So, your employer calls you an independent contractor? Perhaps you are not. To learn more about the classification, join us on September 21, 2010, for the Employment/Labor Section Meeting when Leigh Ann White, Esq., of the employment/labor defense firm Carlton, Disante & Freudenberger LLP, will discuss and fully detail the history and status of California independent contractor law. White will also discuss real client case experiences and indicate what the future may hold on this issue. This Employment/Labor Law Section Meeting, which offers one MCLE credit, will be held at 6 p.m. at the new location of IKON Legal Solutions, 16715 Von Karman Avenue in Irvine. The cost is free to OCPA members and is $10 for nonmembers. Nonmembers may pay at the door that evening. Attendees are asked to arrive by 5:45 p.m. Please RSVP by Thursday, September 16 to Section Meeting co-chairs Gene Moran, Genemoran1@earthlink.net, or Cassandra Tran, email@example.com, or call 714-840-9437
The question of independent contractor status has recently become an issue in recruiting for paralegals. As all paralegals should know, Bus. & Prof. Code § 6450 proscribes them from unilaterally performing legal work to a consumer without the direction and supervision of an attorney. Bus. & Prof. Code § 6452(b) imputes all negligent malpractice liability arising from work performed by a paralegal to the delegating attorney. Bus. & Prof. Code § 6454 codifies the alternate term “independent paralegal" as being indistinguishable from paralegal, with the word "contractor" conspicuously missing from its language. Because of this apparent complete control and responsibility that an attorney has over work delegated to the paralegal, and because of the statutory definition of independent con-
Fridays will vary depending on the counting method.
Coming Soon: Certainty in Calculating California Hearing-Related Deadlines Contributed by Julia A. Goren
Effective January 1, 2011, Section 12c will be added to the California Code of Civil Procedure. A result of State Bar-sponsored legislation (AB 2119 (Tran)), Section 12c finally eliminates an ambiguity which has long-plagued those charged with calculating the last day to serve hearing-related documents. All practitioners will need to calendar in accordance with the new section. In jurisdictions where hearing dates are available on short notice, however, practitioners must be particularly careful to avoid a rather dangerous pitfall which could lead to malpractice. This article explains the ambiguity and the Section 12c solution, warns about the pitfall, and suggests ways to avoid its consequences. The Ambiguity Calculating the last day to serve notice of motion and supporting papers often requires counting a combination of calendar days and court days. For example, under Section 1005(b) (all references are to the Code of Civil Procedure), if served by hand, notice of motion and supporting papers must be served at least 16 court days before the hearing. That period is extended if service is by any other means -- another five calendar days for mail service within California, or two calendar days for fax service or overnight delivery. Thus, service by mail requires counting a combination of 16 court days and five calendar days. Section 437c, governing deadlines for motions for summary judgment and summary adjudication, requires 75 calendar daysâ€™ notice, adding two court days for fax service and overnight delivery. Quite often, the result of a deadline calculation will be affected by: (1) the direction in which the days are counted (forward from the service date versus backward from the hearing date), and/or (2) the order in which the two distinct sets of days are counted (first calendar days, then court days versus first court days, then calendar days). Generally, the calculations will differ when a weekend (consisting of non-court days) immediately precedes the hearing date or immediately follows the service date. Thus, calculations relating to hearings scheduled on Mondays, Tuesdays following Monday holidays, or
This is best explained by example. Assume you have a September 7, 2010, hearing date (a Tuesday following the Labor Day holiday) for a motion to compel discovery responses, which you intend to serve by mail. If you calculate the last day to serve notice by counting backward from the hearing date 16 court days plus five calendar days, you will land on August 6. If you switch the order, and instead count backward from the hearing date five calendar days plus 16 court days, you will land on August 11 -- a five-day difference. If you were to count forward from August 11, 16 court days, and then five calendar days, you would land right on the hearing date; if you counted forward from August 6, 16 court days, and then five calendar days, you would land on the Saturday preceding the hearing. Here lies the ambiguity -- which method of counting is correct, or put another way, what is the last day to serve the notice? The Section 12c Solution As of January 1, 2011, the correct method will be to count backward from the hearing date the number of days specified in the applicable code, e.g., 16 court days or 75 calendar days, and then to continue counting backward to add the extra days. Section 12c provides: (a) Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the day of the hearing as provided by Section 12. (b) Any additional days added to the specified number of days because of a particular method of service shall be computed by counting backward from the day determined in accordance with subdivision (a). Section 12c unquestionably brings much-needed certainty to this particular issue. Once a hearing date is set, and the moving papers are served by a particular method, it will be easy for the parties and the court to determine whether notice was timely. This method of counting makes sense -once a hearing date is set, it is logical to count backward from the hearing date and to add the extra days at the end. But, what about selecting the hearing date in the first place?
The Lingering Pitfall In some courts, the litigant selects the hearing date (e.g., Los Angeles, San Mateo, Sacramento); in others, the court assigns the hearing date. In either case, the moving party will select, or request that the court assign, what they believe is the earliest possible hearing date. How does the moving party determine that date? By counting forward from the service date. For example, assume it is Monday, January 10, 2011, and you have just put the finishing touches on your motion. The only tasks remaining are to select the earliest possible hearing date, add it to your moving papers, and mail them. So, you count forward from January 10, 2011, 16 court days and five calendar days, landing on February 7, 2011. If February 7 is available, you will select it as your hearing date, and mail your papers on January 10, 2011. Unfortunately, you will not have given sufficient notice. Under Section 12c, moving papers for a Monday, February 7, 2011, hearing would have had to be mailed on or before Friday, January 7, 2011 -three days before the motion was even ready! The problem is that the factors necessitating Section 12c still linger. Selecting a hearing date by counting forward from a Monday or a Tuesday service date will always result in inadequate notice under the Section 12c counting methodology when service is by mail. Other methods of service on other days of the week can also be problematic. For example, if you count forward from Thursday, September 15, 2011, to determine the first available hearing date after service by overnight delivery (16 court days plus two calendar days), you would select an October 11, 2011 hearing date. But, if you count backward from October 11, 16 court days plus two calendar days, you would find that service would have had to be made one day earlier, on Wednesday, September 14. So, how can you avoid this pitfall? Here are a few options. 1. After you count forward to pick a hearing date, always count backward to make sure you
have time to serve by the method you selected. If there is insufficient time, move the hearing date out a day or two, and then count backward again to see if that works, adjust again as necessary, etc. Unfortunately, this may be rather timeconsuming. 2. In applying the first option, as soon as you discover that you are unable to serve by the method you selected, switch to a method which takes less time, e.g., instead of serving by mail, serve by fax or electronic service (if you have the requisite agreements) or by overnight delivery. But, you still must count backward again to make sure that the alternate service method works. 3. Always build in a safety cushion by moving your hearing date out by a given number of days. But how much is enough? How much is too much? Could an unnecessary delay in obtaining the requested relief adversely affect your client’s interests? 4. Avoid the issue entirely by serving motions only by hand. But, this would not only waste money, it would often be impractical or simply impossible. The best solution does not yet exist, but is hopefully in the works -- an automated rules-based calendaring program with a “Select My Hearing Date” feature. Ideally, the end user would simply need to enter the proposed service date and the source of the deadline (e.g., Section 1005(b) or Section 437c), and the program would instantly generate an accurate list identifying the first available hearing date for each service method. The user would then select the hearing date, and serve the papers by the method which ensures adequate notice. Now that’s certainty. Julie A. Goren, a Los Angeles attorney, is the author of Litigation By The Numbers®-Fourth Edition, and the co-author of California Civil Litigation and Discovery. She frequently lectures and writes about California state court calendaring. For more information about her publications, visit www.litigationbythenumbers.com.
Committee for full voting membership of the LPMT Executive Committee and was appointed as a voting member by the State Bar Board of Governors in September 2008. In September 2009, I was elected as Treasurer and will remain in that position until September 2011.
CAPA News Contributed by Julie Thornton
Before becoming involved with the OCPA, I was unaware of CAPA. It took several years of participation in the OCPA before I became involved with CAPA and learned what CAPA has to offer for both paralegals and the OCPA. Although at times it has not been an easy road for CAPA, the association continues to work toward building a strong voice for paralegals and promoting the advancement and education of paralegals. The CAPA Board of Directors and 12 affiliate associations meet twice annually to connect and share ideas for the advancement of the paralegal profession. We research and discuss past and current legislation and case law relating to paralegals. This year, CAPA has updated the Guidebook on the Utilization of Paralegals with a section devoted to cases and codes relating to paralegal fee recovery. In addition, CAPA stays current with the profession by connecting twice yearly with the local associations to disseminate and exchange information and experiences. One key aspect is CAPA’s paralegal involvement with the State Bar of California, which is of particular importance in order to have a voice at the State Bar level. CAPA currently has two representatives, Carolyn Yellis, ACP, and Cynthia Mascio, ACP, CAS, who are involved with the Solo and Small Firm Section as well as the Law Practice Management and Technology Section of the State Bar. Mrs. Yellis is a CAPA Past President, and Mrs. Mascio is an OCPA Past President. Recently, I had an opportunity to interview Mrs. Mascio about her participation in CAPA and the State Bar of California.
Q: What does your position entail? A: My charge is threefold: to create a bridge between attorneys and paralegals within the boundaries of the LPMT; to educate attorneys regarding Bus. & Prof. Code § 6450, et seq. and the value of employing paralegals in their practices; and to report back to CAPA on the progress. As part of these efforts, I have been a speaker at the State Bar Annual Meeting for the past two years instructing attorneys on the utilization of paralegals, and I will speak again at the 2010 Annual Meeting. Q: Do paralegals need a voice at the State Bar level? If so, why? A: Paralegals absolutely need a voice if they are going to garner the respect of attorneys. While often it feels like an uphill battle, the more exposure attorneys have to paralegals, the more likely attorneys are to use paralegals in their practices. Believe it or not, there are still attorneys who have no idea what a paralegal is, let alone what a paralegal can do!
Q: What is your position with CAPA? A: I serve as CAPA Paralegal Liaison to the Law Practice Management & Technology (“LPMT”) Section of the State Bar.
Q: Why do you think it is important for CAPA to promote the paralegal profession? A: CAPA is the voice for paralegals statewide. It is the only California paralegal body with direct access, through its liaisons, to the State Bar. I firmly believe that, once attorneys recognize the value and importance of services that paralegals provide, both from an economic and professional viewpoint, paralegals will gain increasing responsibility and acknowledgement as esteemed professionals and colleagues.
Q: How long have you been involved with the State Bar? A: I’ve been involved since 2007 and was appointed to the position of Liaison by Michelle Whitaker, who was CAPA President at the time. I was recommended by the Executive
Q: Having been involved as OCPA’s Past President, CAPA Board Member and the State Bar Representative, what changes to the paralegal profession have you seen in the past few years? A: The changes I have seen are not nearly enough. It continues to be an arduous task to
convince lawyers that paralegals are a valuable and necessary asset for their practices, especially with the current economy; however, it is a journey that continues to be vital to the growth of our profession. Q: Do you have any suggestions for the further promotion of the paralegal profession? A: Stay involved, stay active, strive for excellence and never give up! Q. What are all those initials behind your name? A: I obtained the Certified Paralegal (CP) certification credential from the National Association of Legal Assistant (NALA) in 2000. I received the professional credential of California Advanced Specialist - Litigation from the Commission for Advanced California Paralegal Specialization (CACPS) in 2001, and in 2007 I completed the Advanced Paralegal Certificate (APC) program in discovery issues through NALA. Recently, I was awarded the designation of American Alliance [of Paralegals] Certified Paralegal (AACP). The ‘AACP’ signifies certification by the American Alliance based on stringent formal educational and experience criteria. I would like to thank Mrs. Mascio for volunteering her time and effort on behalf of the OCPA and CAPA. I hope that hearing from paralegals such as Mrs. Mascio will encourage you to become involved with the OCPA.
Hello from NALA! As many of you already know, beginning September 2010, the CLA exam will be administered via computer at Act centers. NALA has made available an extensive booklet to describe the changes and administration of the test. Access the booklet here: NALA Certificate Booklet NALA has announced the fall 2010 Certified Paralegal Short Course for those preparing for the Certified Paralegal Examination or those interested in brushing up on professional skills and knowledge. Offered by NALA for several years, the Certified Paralegal Exam Short Course has become one of the most popular educational events of NALA. Course description and information are available here. The 2010 National Utilization and Compensation survey of paralegals is underway! Your input is vital to the integrity of the survey. To access the survey and include your information visit http:// www.nala.org/survey.htm The control number is 729843.
ORANGE COUNTY PARALEGAL ASSOCIATION 2010 Board of Directors Executive Committee: President VP Administration VP Policy Treasurer Secretary NALA Liaison
Kai Williamson Hilary Martin Janine Fountain Kristen Martin Tanya Chopra Julianna Hallsted, ACP
firstname.lastname@example.org email@example.com firstname.lastname@example.org email@example.com firstname.lastname@example.org email@example.com
Directors at Large: Julie Thornton Marie Conzelman, CP Coreen Mueller Michele T. Pfeiffer, CLA Rafia Aleem Michelle Manu Diane Triscari Lisa Enoka
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Frances Prieto, CP
Contact information of board members and committee chairs published in the Compendium are subject to the policies of OCPA. Use of contact information of board members or committee chairs for purposes of solicitation for business, personal gain, or distribution of such information to third parties for the same is strictly prohibited.
New Members (August 2010) Randolph Rock Olga V Epelman Carrera Falk Jill McGarvey Howard Hinman AJ Narasimhan Lori Gillette Teresa Gorman Martinez Shannon Wilson Ranzy Walker Carrera Falk Wendy Swyter David Alan Vasquez
Member Statistics (August 2010) Voting: 419 Student: 194
Associate: 61 Sustaining: 33
Total: 707 Members
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COMPENDIUM - September 2010 Volume 31, Number 9
Committed to Excellence through Education, Certification and Ethical Responsibility Publisher: Orange County Paralegal Association Editorial Team: Hilary Martin, Tracy Hermans, Elizabeth Root
The Compendium is the official publication of the Orange County Paralegal Association (OCPA) P.O. Box 8512, Newport Beach, CA 92658. Postage Paid at Newport Beach, CA. A subscription to the Compendium is provided as a member benefit of OCPA. For further information about all the benefits OCPA has to offer, please visit our website at www.ocparalegal.org or contact Hilary Black-Streeter, Membership Coordinator via e-mail at MembershipMail@OCPAralegal.org. ÂŠ 2010 Orange County Paralegal Association
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