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Are Franchisors 'Employers'?
Part One of this article, which appeared in last month's issue, analyzed what recent court and NLRB decisions are saying about the franchisor/franchisee employment question. The discussion continues herein.
Dynamex Operations West Inc. v. Superior Court
In another delivery driver case, which followed the California Supreme Court's decision in Ayala v. Antelope Valley, 59 Cal.4th 522 (2014) (discussed in Part One), the court of appeal was again asked to review a class certification ruling. The plaintiffs in Dynamex Operations West Inc. v. Superior Court, 230 Cal.App.4th 718 (2014), were originally hired as employees, but were later converted into independent contractors, allegedly performing all of the same tasks. The court in Dynamex held that a potentially broader California Industrial Welfare Commission Wage Order test for employment governed the wage claims (unpaid overtime, failure to pay minimum wage) being raised by the plaintiffs, whereas the Ayala “right to control” test governed the non-wage claims being asserted. Dynamex, 230 Cal.App.4th at 733. The Industrial Welfare Commission Wage Order test had been previously discussed by the California Supreme Court in a joint employer setting in Martinez v. Combs , 49 Cal.4th 35 (2010). Specifically, the Martinez court held that “employ” means: “(a) to exercise control over the wages, hours, or working conditions, or (b) to suffer to permit to work, or (c) to engage, thereby creating a common law employment relationship.” Id. at 65. The Dynamex court rejected the argument that the holding in Martinez “should be limited to determining whether an entity is a joint employer.” Dynamex, 230 Cal.App.4th at 733 n. 14.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.