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100 B Street, Suite 400
Santa Rosa
CA, 95401
United States
(707) 526-4200
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About Us

The creation of fine wine is no mere accident of nature. Excellence demands vision and passionate adherence to standards of the highest quality. So it is with building a successful business within the wine industry. The stakes are high. To ensure success, you must avoid pitfalls with prudent decision-making, every step of the way.

Providing solutions to your most critical wine industry challenges is the power of CMPR:WINE. With a unique depth and breadth of wine industry experience and expertise, our seasoned team of legal advisors guides you through the full range of strategic and day-to-day business and regulatory issues.

CMPR:WINE is a practice group within Carle Mackie Power & Ross LLP, one of Northern California's most respected full service business law firms.


The combination of the expertise and experience of the CMPR:WINE team represents a unique resource able to quickly and efficiently respond to any situation.

JOHN MACKIE, a founding CMPR partner and leader of the CMPR:WINE team, has focused his practice on the wine industry since 1993 advising on a wide range of strategic corporate and real estate transactions as well as land use, and environmental compliance issues. He is also actively involved with WineVision, Sonoma County Food & Wine Center, Sonoma State University Wine Business Program, Sonoma Valley Vintners & Growers Alliance and Alexander Valley Wine Growers Association.

PHILLIP KALSCHED regularly advises businesses in the wine industry particularly in the area of real estate matters, including acquisitions and sales of vineyards and winery facilities, vineyard leases, and land use and planning matters. His expertise also extends to business formations, grape contracts, secured lending, and partnership transactions.

SIMON INMAN has handled a wide range of business transactions including merger and acquisition transactions, start-up and venture capital financings, stock options and other equity incentive plans, public and private securities matters, real estate, tax-exempt bond transactions and other bank financings.

JOHN DAWSON is head of the firm's Intellectual Property practice and a member of the firm's Wine Group. His practice is focused in the areas of intellectual property, business transactions, alcoholic beverage law and litigation.

JEREMY LITTLEpractices in the firm’s Food and Alcoholic Beverage Group with an emphasis on business formation, raising capital, alcoholic beverage compliance, contracts, trademarks, and the purchase and sale of related companies.



Vintners, growers, lenders, investors, distributors, retailers, and other wine intermediaries benefit from the legal services of CMPR:WINE. our capabilities include:

Strategic and Financial Transactions:

  • Mergers and acquisitions
  • Joint Ventures
  • Entity structures
  • Secured lending
  • Corporate finance transactions

Respected for a pragmatic, quality-driven approach, CMPR:WINE focues on key issues of each transaction to promote a speedy and satisfactory conclusion.

Real Estate:

  • Acquisitions and sales
  • Vineyard leases
  • Water agreements
  • Environmental and land use compliance

By tailoring real estate law to a wine industry specific context, CMPR:WINE helps you achieve your commercial objectives.

Business and Regulatory:

  • Grape purchase contracts
  • Growers liens
  • Federal and State alcoholic beverage regulations
  • Trademarks
  • Employment

CMPR:WINE is dedicated to providing practical solutions for all the legal needs of our wine industry clients. Our knowledge and insights, honed over years of experience with day-to-day legal issues, offer you a competitive edge.

News Archive

Mid-Year Employment Law Update
25 June, 2020

1. Minimum Wage Increases

Just a reminder that on July 1, 2020, minimum wage increases take effect in 13 California cities.  Employers must comply with the highest applicable minimum wage rate in the location where employees are working.  It is critical for employers to stay compliant with minimum wage laws as they change because violations can result in significant liability.

The following cities and counties have a minimum wage increase scheduled for July 1, 2020: Alameda, Berkeley, Emeryville, Fremont, Los Angeles, Malibu, Milpitas, Novato, Pasadena, San Francisco, San Leandro, Santa Monica, and Santa Rosa.

Santa Rosa’s minimum wage will be $15.00 for employers with 26 or more employees and $14.00 for employers with 25 or fewer employees. Novato’s minimum wage will be $15.00 for employers with 100+ employees, $14.00 for employers with 26 or more employees, and $13.00 for employers with 25 or fewer employees.

To Do:

Employers with employees working in any of the cities listed above should check the specific minimum wage for that city to make sure your payroll policies are compliant. Employers are also reminded to post the current minimum wage rate in a common area where employees can easily view it.

2. New Restrictions on Pre-Employment Recruiting and Advertising

Effective July 1, 2020, updated regulations go into effect under the California Fair Employment Housing Act (FEHA) regarding disclosure (accidentally or otherwise) of a potential employee’s religious creed or age during the application and recruitment process. The following topics are covered by the new regulations:

  • Pre-employment inquiries on availability for scheduling.  New regulations prohibit employers from using pre-employment inquiries regarding an applicant’s availability for work on certain days and times to ascertain the applicant’s religious creed, disability, or medical condition. Such inquiries must include a statement that the applicant need not disclose any scheduling restrictions based on legally protected grounds.
  • Using technology to limit applicants based on availability.  Employers are prohibited from using online application technology that limits or screens out applicants based on their schedule unless the employer can demonstrate a business necessity and the online application technology includes a mechanism for the applicant to request an accommodation.
  • Using descriptors that may suggest age preference.  During the advertisement and recruitment process, employers are prohibited from using language that would directly state a preference or cause a reasonable person to interpret the language as deterring or limiting employment of people age 40 and older.

Some examples the Fair Employment Housing Council provides of impermissible qualifications:

  • a maximum experience limitation;
  • designating a preferred age range or using terms such as young, recent college graduate, boy, girl, or other terms that imply a preference for employees under the age of 40.

New regulations also clarify that age discrimination does not have to be intentional and that it may be established if a neutral practice has an adverse impact on applicants or employees age 40 and older.  The employer may use the affirmative defense of business necessity, but an aggrieved worker will now be able to show that “an alternative practice could accomplish the business purpose equally well with a lesser discriminatory impact.”

To Do:

Employers should revisit their job ads and recruitment procedures whether in-house or through an outside agency to ensure they comply with these new regulations, including pre-printed applications if they include questions about weekly availability.

3. COVID-19 Changes to Injury and Illness Prevention Program (“IIPP”)

All California employers are required to have an Injury and Illness Prevention Program (“IIPP”).  Your IIPP must be in writing, be accessible to employees, and contain certain specified provisions.  Cal/OSHA has now issued guidance requiring employers to include COVID-19 prevention measures in their IIPPs.  The guidance can be found here.

To Do:

All employers should take steps to amend their IIPP immediately because IIPP violations are the cause of a high percentage of Cal/OSHA citations every year.  The guidance is also helpful for crafting stand-alone notices to employees to ensure employees are following the most recent CDC guidelines to stay safe in the workplace.

4. Extended Paid Family Leave

Paid Family Leave (“PFL”) wage replacement benefits are available to certain qualified employees to obtain pay when they are out of work.  The benefit is paid from the state.  Effective July 1, 2020, workers paying into the State Disability Insurance program can claim up to eight weeks in Paid Family Leave, an increase of two weeks.  Leave may be taken for the care of a family member which includes the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, or sibling.  PFL benefits are also available for bonding with a new child within one year of birth or placement (i.e., adoption).

To Do:

Update your policies and notices to employees so as to provide employees with the most up to date and accurate information about their right to claim this benefit.

5.  FFCRA (Families First Coronavirus Response Act) Leave

The benefits under this new law went into effect April 1st and will be available to employees through the end of the year. As a reminder, the law provides paid time off to employees who cannot work due to their own Coronavirus illness, caring for a family member with Coronavirus, or who are unable to work because a child’s school or daycare is closed due to the Coronavirus.  More information can be found in our earlier email blast. In addition, the Department of Labor has issued extensive guidance on the legal requirements, found here. The DOL’s guidance is extremely helpful to interpret all of the different questions on how this leave should be applied.

To Do:

Provide your employees with notice of the FFCRA benefits available and have a Leave Request Form ready.  If you have questions or need forms, check out the DOL page or ask us for guidance.

6. Updated Posters – Pregnancy Rights, Transgender Rights

The Department of Fair Employment and Housing recently issued new transgender rights and pregnant employee rights posters which must be posted in a prominent and accessible location in the workplace. You can find the posters here.

To Do:

Make sure your posters are up to date. They are available for free at the link above, so you can easily print and post them if necessary. Also, update your employee handbook if you feel it is not up to date on employee rights.

We sincerely hope that you are in good health and have peace of mind during these unusual times.  If you have any legal questions or concerns, please call Dawn Ross or Samantha Pungprakearti at Carle, Mackie, Power & Ross LLP at (707) 526-4200.

Find more resources at CMPRLAW.COM

Getting Back to Work: Guidelines in the Time of COVID-19
10 June, 2020

As restrictions continue to ease, it is important for employers to be aware of the ever changing and evolving requirements and expectations to keep your staff and the public safe.

Guidelines for Keeping Staff and the Public Safe

1.Health Check App. The CDC and OSHA recommend that all employers consider some kind of health check for employees coming into the workplace (other than home). The Sonoma County Health Orders instruct all employers to create policies that require employees to complete a health check when they come to work.

Sonoma County has paid to develop this health check app that is easy to use and involves a very minimal invasion of privacy. The app is available on the Apple App Store and Google Play store. Here is more information. According to the Sonoma Business Resources Guide, use of the app is required by all businesses in Sonoma County. If employees object to using the app, there are alternatives available.

2. Protocols: Best Management Practices Per Industry. The Sonoma County Economic Development Board, Business Resources website has created helpful guidance to mitigate COVID-19 infection and spread which is tailored by industry. Please see this link for a list of the industries and the associated protocol. The Best Management Practices were created with help from local leaders in each relevant industry.

Sonoma County requires any business that is re-opening to self-certify that they are implementing these practices. The self-certification is found here.

3. Consider an Assumption of the Risk Notice for Customers. Many companies are adopting an Assumption of the Risk policy for customers who visit their property. The state has not weighed in on whether such an agreement would be enforceable. It is possible that the state could declare such agreements entirely unenforceable or partially unenforceable depending on the circumstances.

In the meantime, while we wait for a specific directive, some companies feel more at ease by getting customers to sign the waivers when they visit the company property. Obviously, this is more user friendly for companies that do not rely on foot traffic. However, even retail companies could post a sign that simply states that by entering the location, the customer is assuming the risk of contracting COVID-19. While unclear, such a sign could possibly work to reduce or eliminate liability.

B. Keeping Order in a Time of Change

1.Work from Home Expectations. The CDC and local guidance still state that employers should continue to have as many employees work from home as possible, especially those over 65 or in medical high-risk groups. We expect these directives to work from home will continue for months into the future. We recommend creating a work from home policy that clearly states your expectations and requires your employees to commit to those expectations. Please let us know if you need help with this.

2.Changing Employees from Salaried Exempt to Non-Exempt. Many businesses have had to re-structure which may have left managers not managing anyone or, at least, not working full time any longer. If you have an employee who is not performing sufficient exempt work, you must reclassify them to non-exempt/hourly status to avoid potential legal exposure for wage claims. The best way to reclassify an employee is to explain the reasoning, and then make sure they are fully prepared to track their hours and take their legally mandated meal and rest periods.

3.Make Employment Decisions in a Methodical and Documented Manner. When you are downsizing and making other decisions that affect your workforce (e.g., deciding who is permitted to work from home and who is required to come to work, or whether tasks and opportunities are being spread evenly, etc.) be careful that your decisions are not discriminatory or appear to be discriminatory. One way to ensure your decisions do not have an adverse impact and to create a record of your non-discriminatory process is to document the process by:

  • First, determine the needs of the business and make some assumptions as business ramps back up;
  • Second, design a fair, consistent and nondiscriminatory selection process based on as many objective criteria as possible; and
  • Third, document conversations with employees to track who is willing to make changes and who is not, so that it is clear what decisions were made by the employee and which were made by the employer.

4.Handling Employees Who Do Not Want to Return to Work. When you contact employees to return to work, it is possible they will not want to return for various reasons. Being told “no” is always an uncomfortable position to be in, but employers must take a measured approach to make sure the employee does not have a legally protected reason to say “no.” For example, employees who band together to refuse to work because they feel the employer has not taken sufficient steps to minimize COVID-19 exposure may be protected under the NLRA for union concerted activity.

Employers should be reasonable when discussing concerns held by employees to come back to work and approach it in the same manner as the “good faith interactive process.” This is not legally required but is a good way to ensure that you have done enough to feel confident that the employee does not have reasonable grounds to refuse to return to work. Also, the conversation may unearth other rights the employee may have such as the right to take FFCRA protected leave (see below) or FMLA leave.

If employees do not want to return because they are making more on unemployment, you can advise them that they will not qualify for unemployment if they refuse to return to work. You can then decide whether to put them on an unpaid leave of absence or consider them to have voluntarily resigned.

5.Need for FFCRA Leave. The FFCRA will continue in place through the end of the year. It provides flexibility for employees who cannot work due to COVID-19 related illness or a lack of childcare. The childcare component should ease up as daycares begin to re-open but will very likely be a problem again in August when school is supposed to resume.

As a reminder, the FFCRA provides paid leave (that involves a tax credit for the employer) for the following reasons:

  • (i) The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • (ii) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • (iii) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • (iv) The employee is caring for an individual who is subject to either (i) or (ii) above;
  • (v) The employee is caring for his or her child if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions; or
  • (vi) The employee is experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.

Amount of Paid Sick Leave. All eligible full-time employees will have up to 80 hours of paid sick leave available to use for the qualifying reasons above. Eligible part-time employees are entitled to the number of hours worked, on average, over a two-week period.

For employees with varying hours, one of two methods for computing the number of hours paid will be used:

  • The average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type. Or,
  • If the employee has worked less than 6 months, the expected number of hours to be scheduled per day at the time of hire.

Rate of Pay. Paid emergency sick leave will be paid at the employee’s regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons (i) – (iii) above. Employees taking leave for reasons (iv) – (vi) above will be compensated at two-thirds their regular rate of pay, or minimum wage, whichever is greater. Pay is capped at:

  • $511 per day and $5,110 in total for leave taken for reasons (i) – (iii) above;
  • $200 per day and $2,000 in total for leave taken for reasons (iv) – (vi) above.

Interaction with Other Paid Leave. The employee may use emergency paid sick leave under this policy before using any other accrued paid time off for the qualifying reasons stated above. Employees on expanded FMLA leave under this policy may use emergency paid sick leave during the first 10 days of normally unpaid FMLA leave.

Expanded FMLA. In addition to the extra sick leave, expanded FMLA leave is available to eligible employees who are unable to work (or telework) due to a need to care for their child when their school or place of care has been closed, or the regular childcare provider is unavailable due to a public health emergency with respect to COVID-19. The FMLA leave is 12 weeks and provides pay at the same rate as described above for this type of leave.

The new “normal” has an enormous number of moving parts for employers. We are here to help! Feel free to call Dawn Ross or Samantha Pungprakearti at Carle, Mackie, Power & Ross LLP with any questions or concerns at (707) 526-4200.

SBRA Provides Significant Changes for Small Businesses
07 May, 2020

With uncharacteristic prescience, last year Congress amended the U.S. Bankruptcy Code by enacting the Small Business Reorganization Act of 2019 (SBRA). Going into effect in February 2020, just in time to address the economic disaster caused by COVID-19, the SBRA is the federal government's newest effort to make bankruptcy reorganization a more attractive option for small businesses.

A customary Chapter 11 bankruptcy was designed to allow a debtor to reorganize its debt structure in order to keep its business alive and pay creditors over time. SBRA has important implications for businesses. It is aimed at simplifying the Chapter 11 process for small businesses by lowering costs and relaxing the stringent requirements of the plan confirmation process. It could mean the difference between a business being able to weather the current storm or having to permanently close its doors and liquidate assets.

Before SBRA, financially impaired businesses contemplating bankruptcy had two choices: Chapter 7 or Chapter 11. Under Chapter 7, a trustee is appointed, and the debtor automatically loses control over its business and assets. The debtor's nonexempt assets are sold (liquidated), and the proceeds are paid to creditors. Since a debtor automatically loses control over its assets, Chapter 7 is not an option for a business wanting to remain open.

Under Chapter 11, a debtor ordinarily continues business operations while reorganizing its financial affairs. Reorganization is achieved by way of a written plan of reorganization approved by the Court. Through a confirmed reorganization plan, the debtor can restructure its obligations to creditors and pay those obligations over time. A successful reorganization maintains a business's "going concern value" and get the most out of the value of the debtor's estate. The debtor remains in possession and control of its business and is authorized to continue business operations pending reorganization. However, transactions not in the ordinary course of business require court approval. The Court performs oversite functions through the entire process and may appoint a U.S. trustee "for cause." The debtor must prepare and submit monthly financial and operating reports, which can be costly. Accordingly, a lot of small businesses are unable to afford the considerable costs associated with attorneys, accountants, and other professionals essential to navigate the procedural and statutory requirements of Chapter 11 bankruptcy.

The SBRA creates a hybrid of Chapter 11 and Chapter 13. Under the SBRA, qualified debtors can retain control over their business operations (similar to a Chapter 11). However, the debtor will no longer be subject to the more costly requirements of Chapter 11, and like Chapter 13, a trustee will be appointed to each case. However, the debtor will no longer be subject to the more costly requirements of Chapter 11.

In addition, the SBRA provides that a committee of unsecured creditors will not be appointed unless ordered by the Bankruptcy Court for cause. This will also decrease the costs of Chapter 11.

Here are some highlights of the SBRA:

  1. Only the debtor may elect to have the subchapter apply.
  2. Debt limitation: To qualify, debts must total less than $2,725,625 (secured and unsecured). This has been temporarily increased to $7.5 million. This increase is set to sunset on December 31, 2020, unless extended.
  3. The contents of the plan need to include a brief history of business operations, a liquidation analysis, and projections of payments by the debtor.
  4. The proposed plan may modify a mortgage that is encumbered by the principal residence of the debtor, "if the value received in connection with the granting of the security interest was (a) not used primarily to acquire the real property; and (b) used primarily in connection with the small business of the debtor."
  5. It eliminates the absolute-priority rule which allows for more flexibility with creditors.
  6. There is no disclosure statement required to accompany the plan.
  7. A plan must be filed within 90 days of the petition filing date.
  8. The Court may confirm a plan over the objection of the debtor's creditors, provided that such plan does not discriminate and is fair and equitable for each class of claims or interests that is impacted by the plan.

As we continue to monitor the novel coronavirus (COVID-19), CMPR lawyers are working collaboratively to stay current on developments and counsel clients through the various legal and business issues that may arise across a variety of sectors.

Knowledge is power. It is not too soon to review all options for your business during this challenging economic time. If you have questions or would like additional information, please contact James Sansone (; (707) 526-4200, ext. 186).

The CARES Act Provides Businesses with Relief
08 April, 2020

Last week Congress passed the Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act, which was signed into law Friday, March 27, 2020.

Among the extensive programs and economic incentives included in the legislation is the Paycheck Protection Program, which may benefit your business. The Paycheck Protection Program is an emergency loan program providing funding to cover your business’ payroll, debt service, utility, and rent costs incurred from February 15, 2020 through June 30, 2020 (the “covered period”).


While administered through the Small Business Administration, businesses eligible for the Paycheck Protection Program have been expanded to include any business concern with no more than 500 employees and includes, among others, sole proprietors, non-profits, independent contractors, and certain self-employed individuals. Full and part-time employees are counted toward the employee total. However, if your business is classified under NAICS in Sector 72 “Accommodation and Food Services,” the 500 employee maximum is applied per location.

Typical SBA rules do not apply: No personal or business collateral is required. Loans are non-recourse. Franchise and affiliate rules do not apply. SBA loan fees are waived.

Costs covered

Generally, this program will fund emergency loans of up 2.5 times average monthly eligible payroll, rent, utilities, and mortgage and other debt interest payments to a loan maximum of $10 million. The maximum rate of interest charged is 4%. Repayment can be deferred for at least six months and, under certain circumstances, up to a year.

Loan forgiveness

So long as the funds are used for the restricted purposes, the emergency loans may be forgiven with no tax consequences to the business. The amounts forgiven will be reduced, however, by reductions in its employees or salary/wage decreases during the covered period.

For more information contact Linda Balok at or call (707) 526-4200 x.125.

Coronavirus - What Employers Need to Know
30 March, 2020

What a week! Last week was really tough as we all struggled to navigate the quickly changing legal landscape, while working from home, often with kids in the background. We have heard from several HR Directors that it feels like they are trying to drink from a fire hose. We are hoping to help by providing a brief summary of what's been going on and how to find the critical information you need.

FFCRA- Sick Leave: The Families First Coronavirus Response Act ("FFCRA") caused lots of headaches last week. Initially, it looked like all California non-essential employees still employed as of April 1, 2020, working for employers with fewer than 500 employees, would be eligible for two weeks of emergency paid sick leave ("EPSL"), because the order applied to all employees "subject to a federal, state, or local quarantine or isolation order related to COVID-19." As the Department of Labor ("DOL") issued further guidance on a daily basis, it became evident that an "isolation" order is not the same as a "shelter-in-place" or "stay at home" order even though they largely have the same impact. DOL's Q&A section is quite helpful and can be found HERE. So the bad news is that the two weeks EPSL will only apply to those who have available work, but are sick, exposed, quarantined, or with a family member who is, or who are caring for a minor child due to school closure or lack of childcare (contact us for a good summary chart), and all of our employees without work will need to go directly to filing for unemployment. The good news is that unemployment benefits are being enhanced by up to $600/week, with no waiting period and extended benefits for up to nine months under the just passed CARES Act, below.

FFCRA- Expanded FMLA: The FFCRA's second component provides what is being referred to as "Expanded" FMLA leave for employees who have available work, but are unable to work (or telework) due to the need to care for a minor child if their school is closed or their childcare provider is unavailable. Expanded FMLA lasts for up to 12 weeks and provides employees with partial wage replacement (up to two weeks EPSL plus $200/day for 10 weeks). It applies to all employers with fewer than 500 employees, even those with under 50 who are usually excluded from FMLA mandates.

The Poster: Please post the FFCRA poster in your workplace next week and if you have employees working remotely, email it to them. It can be found in both English and Spanish HERE.

Severance: We have received several questions about whether employers should offer their standard severance package to those employees being laid off. Severance is not required by law, so unless you have contractually promised it to employees, it is optional. In addition, severance is usually used in exchange for a release of all claims when you are parting with employees permanently. It is not generally used for temporary layoffs. At this point, we are all hoping these layoffs are temporary. As things start getting back to normal, it may become clear that you will not have positions for all of your employees to return to. At that point, it would probably make more sense to address severance.

OSHA: For those companies still working, the Occupational Safety and Health Administration ("OSHA") has provided a wealth of information on the workplace safety aspects of the COVID-19 pandemic, including on preparing your workplace for COVID-19. For more information see HERE.

ADA/ADEA: When this all started (was it really less than two weeks ago?!?), the Governor first asked all employees over the age of 65, and those with preexisting medical conditions that make them more vulnerable to COVID-19 to stay at home. The stay at home order was later expanded to apply to all non-essential workers. Most of us have asked our employees to comply with these directives. As new information seems to indicate that younger people are just as susceptible to the virus as older people (although maybe better able to survive it), the question remains about what employers can require. The EEOC has supplied some guidance on this HERE. Essentially, we can ask employees whether they are experiencing symptoms related to COVID-19, we can check their temperatures, we can send them home if they display flu-like symptoms or are exposed, we can encourage them to telework, and otherwise engage in the good faith interactive process; but we cannot exclude older or more susceptible employees from the workplace for health or safety reasons unless they pose a significant risk of substantial harm even with reasonable accommodation. This is a tough balance, and one we need to navigate on a case-by-case basis. Remember to also keep medical information confidential, including the identities of those who may test positive for COVID-19.

CARES: The Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") just passed providing at least $2 trillion in direct aid to states, municipalities, individuals and businesses. Many companies will qualify for a combination of loans, tax breaks and grace periods, including a small business paycheck protection program, an employee retention tax credit, deferral of payroll taxes, expanded net interest deductions, and expanded net operating loss provisions. You can find a good summary of the CARES Act HERE. Much more will follow in the coming weeks.

Contact: Keeping in contact with employees is critical during this time. Our employees are our number one asset, and we need them to return to work when this is over. They are feeling vulnerable, isolated, and concerned about their finances. Keeping in touch will help. Get everyone's email addresses, share a favorite meme of the week, organize a Zoom happy hour (we had our first one on Friday and it was fun!), ask employees to share funny stories of how they are passing the time, provide updates as they become available. It will be appreciated.

Financial Hardship: In case your business is still reeling from the economic impact of the times and you are not sure whether you need to make your first or additional layoffs, you still have options. Under the new EPSL leave and FMLA expansion, there is an exception to the requirement to provide the paid leave if you have less than 50 employees and have decided that providing the leave would jeopardize the viability of the business as a going concern. The DOL has released further guidance on this HERE. Also, the CARES Act can provide forgivable loan options which may be what you need to bridge the gap. The U.S. Chamber of Commerce is compiling information HERE.

A Final Thought: As I found myself fuming at the federal government this week for not giving us better guidance on how to interpret all of these new laws that are changing by the moment, and at myself for not immediately knowing how to answer the rapid-fire questions coming my way, I took a deep breath and decided to give both the government and myself a little bit of grace. Easier said than done, but I hope you are all able to do the same for yourself and those around you. We are all doing the best we can under daunting circumstances.

Questions/comments? Contact Dawn Ross at or call (707)526-4200 x.124.

COVID-19 Response: CMPR Attorneys Remains Fully Engaged
30 March, 2020

Due to the shelter in place public health order in Sonoma County and other Bay Area counties, CMPR attorneys and professional staff are working remotely until the order is lifted, currently set for April 8, 2020. We are taking active steps to responsibly comply with public health orders to ensure our employees and their families, our clients, and our friends are safe and remain healthy during this difficult moment.

Although working remotely, CMPR attorneys are available by phone and email. We remain fully engaged and ready to provide support and excellent service without interruption.

For our business clients, we are following very closely Federal, State and local directives concerning COVID-19 and their effects on business operations or pending transactions. We also recognize that there is uncertainty for many employers about how to approach furloughs, layoffs and other employment issues arising from the current situation. We are here to help you with these challenges.

For our clients involved in active litigation, many local courts have recently issued orders that affect their civil calendars. The situation is fluid and court schedules may potentially change again as the COVID-19 situation unfolds. Rest assured we will keep you informed of any changes affecting important upcoming dates for your litigation matter.

We encourage you to contact us if we can be of any assistance to you.

Find more resources at CMPRLAW.COM

CMPR Is Pleased to Announce the Addition of Three New Attorneys
16 March, 2020

Andrew Grossman

Mr. Grossman is an associate practicing in the firm’s transactional group, where he focuses on a broad array of corporate matters, including mergers and acquisitions, commercial agreements, financings, and corporate formation. He provides counsel to clients from a variety of industries, such as food and beverage, technology, and real estate.

Prior to joining CMPR, he was an associate corporate counsel at a cybersecurity company, where he advised international cross-functional departments on corporate and technology matters, and at a national managed healthcare company, where he advised on HIPPA and partnership agreements and handled strategic acquisitions.

Andrew graduated from UCLA School of Law. He received his B.A. from UC San Diego in three years, graduating summa cum laude and winning best honors thesis. He is admitted to practice in the State of California.

Read More about Andrew Grossman 

Joy Holloway

Ms. Holloway is a transactional attorney and a member of our food and beverage group. Prior to joining CMPR, she was in-house counsel at Samsung where she negotiated and drafted contracts governing the movement of products worldwide. In that role, Joy also bought and sold companies gaining invaluable experience with mergers and acquisitions and securities work, including venture capital and private equity.

She has also worked with B corps or benefit corporations. She has assisted a number of corporations seamlessly transition to B-corp status by working with directors, officers, shareholders, and the company’s vision.

Joy’s practice began in Washington DC at Eversheds Sutherland in the financial services and energy industries. In that position, she advised companies on a variety of issues ranging from intellectual property matters, California employment-related compliance, and international and domestic commercial contracts for transport.

Read More about Joy Holloway

James Sansone

James (Jim) V. Sansone is a litigation and trial associate with CMPR. Jim has been practicing in Northern California since 2006 and holds an AVVO rating of 9.3 (10.0 is the highest). Jim has successfully tried a wide variety of civil and bankruptcy legal disputes over his legal career in both State and Federal Court.

Jim also holds a position as an adjunct professor at Santa Rosa Junior College teaching Business Law and Introduction to Law for Paralegals in their Business Administration Department.

Prior to joining CMPR, Jim owned, operated, and managed a robust general civil litigation law firm (2009-2019). Litigating approximately 1,000 trials over this period, Jim was able to showcase his gift for being a tenacious, no nonsense, and straight forward attorney.

Read More about James Sansone 

Create New Connections with a CMPR Attorney
21 November, 2019

We will have a few of our best attorneys here at CMPR at the WIN Expo to chat with some of the guests and to create new connections. CMPR was build in Santa Rosa and always enjoys the chance to interact with the community. Our booth number is 216 and we encourage anyone and everyone to stop by and say hi. After these fires, it is great to have such a strong community throughout Northern California.

Carle, Mackie, Power & Ross LLP (CMPR) provides legal services to a wide variety of businesses, individuals, non-profits, and public agencies in the California Bay Area and beyond.

We continually invest in our core practice areas of corporate and commercial, real estate, tax, litigation, and employment. Remaining at the cutting edge of these competencies is an integral part of our commitment to our clients and their business interests. Our attorneys and staff work together seamlessly across disciplines to provide high quality, creative, and practical solutions to meet the needs and objectives of our clients.

We believe in the value of long term relationships built on mutual respect, trust, and loyalty. CMPR is committed to putting our clients and their interests first; to understanding and responding to their needs; and to adding value, not cost.

Smart Growth: Limiting Liability and Expanding Options - Breakfast Event on May 9
02 May, 2019

Smart Growth: a FIG Presentation

A Breakfast Event on May 9, 2019 from 8:30 - 10:00 a.m.

As your business grows, how do you avoid hotspots or navigate obstacles without making costly mistakes? The risks that come from growth can be upon you before you know it. From a legal perspective, what can you do to minimize these risks? How do you manage incoming business partners, exiting founders and potential investors successfully during this period?

Other topics to be covered here:

  • Cyber Insurance
  • Safety Compliance
  • Changes in policy as business grows
  • D&O Exposure
  • Buy Outs
  • Transfers of Interests
  • Bylaws and Operating Agreements
  • Brands and Marks
  • Contracts
  • Social Media
  • Food Regulations

Special Offer! This is a $10 breakfast! CMPR and George Petersen Insurance contributed to the breakfast costs so the cost to attend is now only $10!


Click Here to Register for the May 9 FIG Talks Breakfast

Find more resources at CMPRLAW.COM

Notification of Widespread TTB Audits
17 April, 2019

Article by: Jeremy Little and Kim Corcoran

For our winery, distributor, and retailer clients, please note that the TTB has increased its auditing of sales records and has also changed its approach to such audits.  The TTB is auditing for compliance with federal limitations on the sale of wine, focusing on conduct such as consignment sales, heavy pallets, and “distributor banks.”  The TTB has received special funding for these enforcement efforts and has hired additional investigators to focus on these issues.

In addition, we have heard that the TTB’s decision to take an aggressive stance on these audits is coming from TTB headquarters.  Therefore, these actions do not appear to be the result of one or two TTB agents acting outside the TTB mandate.  CMPR has been in contact with Congressman Mike Thompson’s office to let him know of the aggressive enforcement efforts we have seen to date, and we understand that he will be meeting with TTB officials to discuss the enforcement process.

While you have a legal duty to cooperate with TTB investigators, we encourage you to keep control over your business records.  If the TTB comes to your premises and seeks to remove documents, ask for or prepare a receipt so you know what documents they took, or offer to make them copies yourself.  It is also our experience that the TTB investigators will contact your employees and independent salespeople, so you may want to alert them to the possibility of a “cold call” interview from a TTB official.

There is much going on, and it is all happening so quickly that it cannot be completely covered in this short email blast.  If you have any questions at all, or if you’ve been contacted by a TTB investigator and would like representation, please contact Jeremy Little or Kim Corcoran.

Harassment Training Is Mandatory - Are You Ready?
18 March, 2019

Article by employment law attorney Samantha Pungprakearti

This year, all employers with five or more employees must provide at least 1 hour of harassment training to all employees, and 2 hours to supervisors.

CMPR is happy to announce that it offers this required training and is here to help you comply with the new law.

Our experienced employment law attorney, Samantha Pungprakearti, can provide your company with affordable harassment training.

  • More effective than online “mindless clicking”;
  • Tailored to your business history and needs;
  • Providing the necessary record keeping;
  • Opportunities for additional training and HR assistance as requested.

Call for more information or to set up an appointment for on-site training today!

Call our office at (707) 526-4200, or email

Find more resources at CMPRLAW.COM

2019 Employment Law Update - Top Ten Changes
09 January, 2019


Article by partner  DAWN ROSS 

Happy New Year! Now that we are back from the holidays, it's time to dust off the employee handbook, review your policies and procedures, and make sure they are compliant with the new employment laws taking effect in 2019. Click the link below to see the top ten changes.


Happy Holidays from CMPR
18 December, 2018




Balancing Business: Artistic and Legal Considerations in the Creation of a Great Brand - 2018 WIN Expo
30 November, 2018








DECEMBER 6, 2018



Get into the Trade Show for FREE!

Click the link below, and use CMPR's code:



Read the full article here

Off the Clock Work: Starbucks Case Indicates More Time Has To Be Paid
24 August, 2018

Thu, 8/16/18

Samantha Pungprakearti

The California Supreme Court decision in Troester v. Starbucks is a new case that may change the way you keep track of employee time.


Most employers know they need to keep track (and pay!) non-exempt employees for every hour they work. Non-exempt employees are those who are paid by the hour because they are not a Professional, Executive or Administrative employee.  Employers have recordkeeping, minimum wage, overtime pay and other obligations that are based on how many hours each employee works.  So it is essential that employees’ time be accurately recorded.


In the Starbucks case, the California Supreme Court ruled that work done off the clock, even a few minutes a day, must be recorded and paid – rejecting the “de minimus” defense for most routine off the clock work situations.  The de minimus defense is codified under federal law and permits employers to ignore very small amounts of time worked off the clock, so long as it is: a) uncertain or indefinite periods of time of a few seconds or minutes, and b) cannot, as a practical administrative matter, be recorded.


Troester, a Starbucks manager, was required to clock out before he was able to run the daily sales reports, lock the front door, walk his employees to their cars (a job requirement) and take in any outside furniture that may have been accidently left out.  This amounted to between 4 and 10 minutes a shift.  Although the time varied, the Court found that because Starbucks knew its managers were required to clock out before completing these tasks it was required to pay for this time. 


The Court did not kill the de minimusdefense in California entirely.  It concluded that de minimus may be applicable when the amount of off the clock work was very small, very difficult to track, and not routine unlike what occurred at Starbucks.  The Court will also consider the size of the aggregate amount of off the clock work, what technologies are available to track the work and what the employer has done to try and minimize the off the clock time worked. 


This case is a good reminder for employers to:


            1.         Review The Workplace.  Evaluate whether you routinely require non-exempt employees to work off the clock.  If so, then:


  • ·         make changes to policies/procedures so that work is done while employees are still clocked in, and/or


  • ·         investigate and employ technologies that will allow employees to record their time in a more flexible manner, and/or


  • ·        pay wages based on reasonable estimates for the off the clock work.


            2.         Evaluate Time Keeping Practices.  Relying on hand-written timesheets are the least accurate and efficient option.  An employer could be held responsible for not utilizing the best procedure, in light of the cost or availability to the company.


            3.         Make It Right.  If non-exempt employees have been working off the clock, consider offering to pay a reasonable estimate for that work, in exchange for a full release to avoid legal liability down the road.


            If you have a question or want to discuss any employment law issues, please feel free to give us a call.  



Samantha Pungprakearti is an Attorney at Carle, Mackie, Power & Ross LLP and part of its Employment Law Group. Phone: (707) 526-4200. Email:


12 December, 2017

A number of key employment bills were signed into law by Governor Jerry Brown at the close of the 2016-2017 legislative session. The bills take effect January 1, 2018, unless noted otherwise. In addition, some prior legislation takes effect this year.  Here’s what you need to know about the top ten:

 1. Minimum WageWhile not a new law, this year brings the next step from the 2013 law that increased minimum wage over a period of years.  Beginning January 1, 2018, all hourly employees need to be paid at least $11.00/hr. ($10.50 for employers with 25 employees or less), and all salaried exempt employees need to be paid at least 2x minimum wage ($45,760/year for full time employees).  In addition, a number of California cities have their own, higher, minimum wage.  TO DO: Review and update your hourly rate, and check to make sure all your salaried employees are making at least 2x the new minimum hourly rate.

2. Ban the Box (Gov. Code §12952):  Section 12952 amends the California Fair Employment and Housing Act (FEHA), which prohibits an employer from engaging in various forms of discriminatory employment practices.  The amendment creates new state-wide restrictions on the use of criminal history in making hiring decisions.  It restricts public and private employers' ability to make pre-hire and other employment decisions based on an applicant's or employee's criminal history, including a "ban the box" element. The new law makes it unlawful for an employer with 5 or more employees:

  • to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
  • to inquire into or consider the conviction history of an applicant, including any inquiry about conviction history on an employment application, until after the employer has made a conditional offer of employment; and
  • to consider, distribute, or disseminate information related to specified prior arrests not followed by conviction, referral to or participation in a diversion program, and convictions that are sealed, dismissed, expunged or statutorily eradicated .

Employers who intend to deny a position of employment solely or in part because of an applicant’s conviction history must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position, including: i) the nature and gravity of the offense or conduct; ii) the time that has passed since the offense or conduct and completion of the sentence; and iii) the nature of the job held or sought.  The employer must then provide the applicant with written notification of the decision under a specified procedure, including a right to respond.  TO DO: Delete questions about “have you ever been convicted of a felony” from your job applications and interview outlines.

 3. Salary History Inquiries are Prohibited (Labor Code §432.3): Newly enacted Section 432.3 prohibits employers, including state and local governments, from seeking an applicant's salary history information and/or relying on salary history in deciding whether to offer employment, or what salary to offer an applicant. The bill does not prohibit an applicant from voluntarily, and without prompting, disclosing salary history information, or prohibit an employer from considering or relying on voluntarily disclosed salary information (which seems contradictory).  But remember that Labor Code §1197.5 already prohibits an employer from using an applicant’s salary history, by itself, to justify a pay disparity.  The new statute is intended to narrow the gender (and race) wage gap by preventing employers from relying on an applicant's prior salary, compensation, and benefits as factors in determining whether to offer employment or what salary to offer. This new law also requires employers to provide the position's pay scale to applicants upon reasonable request.  TO DO: Delete questions regarding salary history from your job applications and interview outlines.

4. Recreational Marijuana is Here:  Proposition 64 legalized adult-use of recreational marijuana in California effective January 1, 2018.  That does not mean employers have to condone use in the workplace.  Proposition 64 expressly provides that employers may prohibit marijuana in the workplace, and will not be required to accommodate an employee’s use of marijuana.  This is consistent with the Supreme Court’s holding in Ross v. RagingwireTelecommunications, Inc., in 2008, which addressed the use of medical marijuana under California’s Compassionate Use Act, which conflicts with federal law.  Stay tuned, as this is likely not the last of this discussion.  TO DO: Review and update your drug and alcohol policy.

5. Protecting Employees From Immigration Enforcement In the Workplace: AB 450 adds three new sections to the Government Code and two new sections to the Labor Code.  It is designed to protect immigrant employees from workplace immigration raids, but could also put employers in the uncomfortable position of choosing between complying with federal law or state law. Subject to exceptions required by federal law, AB 450 prohibits employers from granting voluntary consent to immigration enforcement agents to:

  • Enter any non-public areas at a place of labor, except with a warrant; or
  • Access, review, or obtain employee records, without a subpoena or court order.

The law also requires employers to notify current employees in a posted notice in the language they speak, within 72 hours of receiving a Notice of Inspection of I-9 Employment Eligibility Verification forms or other employment records (using a Labor Commissioner template).  Employers must also provide the results of such an inspection to current affected employees and any affected employee's authorized representative. The law further prohibits employers from re-verifying the employment eligibility of a current employee at a time, or in a manner, not required by federal law. Penalties for violation of this law range from $2,000 to $5,000 for a first violation and from $5,000 to $10,000 for subsequent violations.  (See, Government Code sections 7285.1, 7285.2, 7285.3; Labor Code sections 90.2, 1019.2.)  TO DO: Call your legal counsel if you are contacted by immigration enforcement agencies.

6. Parental Leave for Small(er) Employers (Gov’t Code §12945.6): SB 63 amends the FEHA to expand the California Family Rights Act (CFRA) protections for baby bonding leave to smaller employers. The law requires employers with 20-49 employees to provide 12 weeks of baby bonding leave to eligible employees. The law applies to employees with more than 12 months of service with the employer, who have at least 1,250 hours of service with the employer during the previous 12-month period, and who work at a worksite in which the employer employs at least 20 employees within a 75 mile radius.  Employers must maintain and pay for coverage under a group health plan for employees who take this leave, but can recoup it if the employee does not return to work.

The law also authorizes the California Department of Fair Employment and Housing (DFEH) to create a parental leave mediation pilot program. Under the pilot program, within 60 days of receipt of a right-to-sue notice, an employer may request all parties to participate in the department’s Mediation Division Program. If the employer makes such a request, an employee is prohibited from pursuing a civil action until mediation is complete, which would include an employee’s election not to participate in mediation. The employee’s statute of limitations would be tolled during the course of the mediation. (See Government Code section 12945.6.)  
TO DO: Update your employee handbook if you have 20-49 employees.

7. Harassment Training Expanded to Cover Gender Identity, Gender Expression, and Sexual Orientation (SB 396): The California Fair Employment and Housing Act (FEHA) requires employers with 50 or more employees to provide training and education regarding sexual harassment to all supervisory employees every two years. Under SB 396, this prescribed training must now include content addressing harassment based on gender identity, gender expression, and sexual orientation. Employers must also display a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace. (See Government Code sections 12950, 12950.1; Unemployment Insurance Code sections 14005, 14012.)  TO DO: Update your training outline.

8. Additional "Whistleblower" Retaliation Protections (SB 306): SB 306 amends Labor Code §98.7, and adds three Labor Code sections authorizing the Labor Commissioner's office to investigate an employer, with or without receiving a complaint, when during a wage claim or other investigation, it suspects retaliation or discrimination.   

It also authorizes the Labor Commissioner or an employee to seek immediate injunctive relief from a court allowing the employee to be reinstated pending resolution of the claim, upon a finding of "reasonable cause" that the law has been violated. The Labor Commissioner may also issue citations directing specific relief. (See Labor Code sections 98.7, 98.74, 1102.61, 1102.62.)

 9. Employee Assistance After Terrorist Attacks Expanded (Labor Code §4600.05):  Newly enacted Labor Code section 4600.05, provides new Workers’ Compensation protections to employees who are injured in the course of employment by an act of domestic terrorism.  In the event the Governor declares a state of emergency, it requires employers to provide injured employees with immediately accessible advocacy services to:

  • assist injured employees in obtaining medically necessary medical treatment; and
  • assist providers of medical services in seeking authorization of medical treatment.

These advocacy services may be provided by the employer, the employer’s insurer, or the employer’s claims administrator.  This Legislation arose out of the struggle for treatment experienced by victims of the San Bernardino terrorist attack of 2015.  TO DO: Contact your insurance provider should these circumstances arise.

10. Human Trafficking Notice (Civil Code §52.6):  Section 52.6 requires certain types of businesses to post a notice regarding human trafficking and assistance hotlines. It has been amended to extend the posting requirement to hotels, motels, and bed and breakfast inns.  Separate legislation requires new language in the notice to state that a person can text a specified number for services and support.  TO DO:  Post this notice if you operate a hotel, motel or inn.


  1. Augustus v. ABM Security Services, Inc. & Vaquero v. Stoneledge Furniture – If you have employees who work alone, or work on commission, make sure they are compensated separately for rest periods and relieved of all responsibilities, or pay a one hour penalty for each violation at the time it occurs.  
  2. Lopez v. Friant & Associates, LLC – Make sure your paystubs have all nine pieces of information required by Labor Code 226(a), as even inadvertent mistakes, with no damage to the employees, will subject an employer to costly PAGA penalties.
  3. Mendoza vNordstrom, Inc. – While employees can volunteer to work on the seventh day of rest, employers must “maintain neutrality,” and not do anything to encourage it. 

Have a great 2018, and please contact Dawn Ross or Samantha Pungprakearti for help with your labor and employment law needs - (707) 526-4200 or or

Trump Administration Releases Initial Tax Reform Proposal
28 April, 2017

The Trump administration released its initial tax reform proposal on April 26 in the form of a one-page outline accompanied by a briefing from Treasury Secretary Steven Mnuchin and National Economic Council Director Gary Cohn. 

According to Cohn, the Trump administration’s plan represents the “most significant tax reform legislation since 1986, and one of the biggest tax cuts in American history.” 

The one page summary is excerpted below. While light on detail, the proposal nonetheless reflects considerable changes to the existing federal income tax system. 

The 15 percent “business tax rate” would apply to corporations as well as small and medium-sized businesses taxed as pass-through entities (e.g., limited liability companies, partnerships, and S corporations). To the extent such pass-through income would have otherwise been taxed at personal income tax rates, this change would lead to significant tax savings (as well as tax-planning opportunities) unless other provisions are put in place to avoid abuse. Mnuchin did indicate that the plan will ultimately “make sure that there are rules in place so that wealthy people can’t create pass-throughs and use that as a mechanism to avoid paying the tax rate they should be paying on the personal side.”  While the Trump administration appears cognizant of the issue, the drafting and subsequent enforcement of such anti-abuse rules represents a significant and difficult undertaking. 

Significant reforms have also been proposed on the individual side, including changes to the brackets and a doubling of the standard deduction. While many deductions would be taken away (including the deduction for state and local taxes paid), the mortgage interest deduction and charitable giving deduction are expected to remain. The estate tax and alternative minimum tax are slated for repeal. 

The Trump administration’s plan is in its early stages and has been met with mixed reactions. CMPR will continue to monitor developments and provide updates as appropriate.  Please contact Daren Shaver at Carle, Mackie, Power & Ross LLP (tel: 707-526-4200; e-mail: with any questions or for more information.



Trump Administration Tax Reform Proposal (released April 26, 2017): 

2017 Tax Reform for Economic Growth and American Jobs 

The Biggest Individual And Business Tax Cut In American History

Goals For Tax Reform

  • Grow the economy and create millions of jobs
  • Simplify our burdensome tax code
  • Provide tax relief to American families — especially middle-income families
  • Lower the business tax rate from one of the highest in the world to one of the lowest

Individual Reform

  • Tax relief for American families, especially middle-income families:
    • Reducing the 7 tax brackets to 3 tax brackets of 10%, 25% and 35%
    • Doubling the standard deduction
    • Providing tax relief for families with child and dependent care expenses
  • Simplification:
    • Eliminate targeted tax breaks that mainly benefit the wealthiest taxpayers
    • Protect the home ownership and charitable gift tax deductions
    • Repeal the Alternative Minimum Tax
    • Repeal the death tax
  • Repeal the 3.8% Obamacare tax that hits small businesses and investment income

Business Reform

  • 15% business tax rate
  • Territorial tax system to level the playing field for American companies
  • One-time tax on trillions of dollars held overseas
  • Eliminate tax breaks for special interests


  • Throughout the month of May, the Trump Administration will hold listening sessions with stakeholders to receive their input and will continue working with the House and Senate to develop the details of a plan that provides massive tax relief, creates jobs, and makes America more competitive — and can pass both chambers.



Private Devices & Email Accounts
03 March, 2017

In a long-watched case, the California Supreme Court issued an opinion this week addressing how the use of private electronic devices intersects with the Public Records Act. In this case, San Jose v. Superior Court, a resident objected to a redevelopment project and submitted a request for public records under the Public Records Act to the City of San Jose.  The request included all emails and text messages sent or received by city employees or officials on private devices. The trial court ruled that communications about public business, sent on private devices, were subject to disclosure.  The Court of Appeal disagreed and said they are not.  The California Supreme Court reversed, holding that substantive communications about public business are subject to disclosure under the California Public Records Act, even if the communication is sent or stored on a private device. 

The California Constitution gives citizens a right to access information concerning the conduct of the public’s business by mandating that public officials’ writings “shall be open to public scrutiny.”  The Public Records Act, a state statute, declares that access to information concerning the public’s business is a fundamental and necessary right belonging to every person in California.  This statute must be broadly construed to provide access to the public and narrowly construed when limiting the public’s access to records.  Essentially, all public records are subject to disclosure unless there is a stated, or express, exemption from disclosure. 

As the Supreme Court observed, in these modern times with multiple devices, email accounts, text messages, and other electronic platforms, the lines between an official communication and an electronic aside can be blurry.  The sometimes difficult job of distinguishing between an official communication and an aside requires looking at the content, context, purpose, intended audience, and author of the communication; as opposed to where the communication was stored or on whose device it was sent.  Communications that substantively relate to the conduct of the public’s business must be disclosed under the Public Records Act, unless an exemption to disclosure applies.  Conversely, primarily personal communications that only incidentally mention agency business do not need to be disclosed.  Thus, a writing – which includes text messages and emails sent or stored on personal devices or email accounts – substantively related to the conduct of the public’s business, is subject to disclosure under the Public Records Act.   

The Court stated this result is necessary in order to ensure open access to government communications so that the public can verify that public officials are acting responsibly and are accountable to the public.  This result also prevents public officials from evading the Public Records Act by simply switching devices or email accounts. 

The Supreme Court considered employee privacy issues and provided guidance on how public agencies can comply with the Public Records Act when records are on a public employee’s or official’s private device or email account.  When this occurs, the focus should be on the content of the communication, not its location.  Agencies can adopt policies addressing how to handle these situations and they can require employees or officials to copy their government accounts for all communications involving the public’s business.  When responding to a request for public records, the agency may rely on the employee or official to search their personal files for responsive materials.  This respects an individual’s privacy rights while responding to the request for public records. For materials and communications stored on private devices or accounts that are not disclosed, the official or employee may provide an affidavit, containing sufficient facts to show that the materials being withheld are not public records.  The Court was careful to explain that it was not endorsing any particular search method, but was merely providing guidance to agencies struggling with this issue. 

We now have clarity - anyone substantively interacting with a state or local agency in California about the conduct of the public’s business should assume that the communication is a disclosable public record, irrespective of how the communication occurs or where it is stored. 

Please do not hesitate to contact Tina Wallis at or (707) 526-4200 if you have questions or concerns regarding this article.

12 January, 2017

Now that we are back from the holidays, it's time to dust off the employee handbook, review your policies and procedures, and make sure they are compliant with the new employment laws taking effect in 2017.  This year, we have a combination of new laws, and existing laws that have been updated with additional protections.

1. California Minimum Wage Raised – On January 1, 2017, employers of 26 or more employees must pay $10.50 per hour as the minimum wage.  Employers of less than 26 employees will not be required to raise the minimum wage to $10.50 until beginning January 1, 2018.  Action: Review your pay policies to ensure they meet the minimum wage requirements.  Please note that many cities and counties in California have passed higher minimum wage requirements (Berkeley, Cupertino, El Cerrito, Emeryville, Los Altos, Los Angeles City and County, Malibu, Mountain View, Oakland, Palo Alto, Pasadena, Richmond, San Diego, San Francisco, San Jose, San Leandro, San Mateo, Santa Clara, Santa Monica and Sunnyvale). 

2.  Federal Salary Basis Adjustment – Under state and federal law, employees may be deemed exempt from overtime if their positions meet certain criteria, including salary paid above a set rate.  In May of 2016, the DOL amended the federal rule to increase the minimum salary requirement from $455 per week to $913 per week ($47,476/year) exceeding the minimum salary set by California.  This new salary minimum was scheduled to go into effect on December 1, 2016.  However, the rule change was put on hold while the question of whether the DOL exceeded its authority in making this new rule is litigated.  The DOL may end up withdrawing the rule when the new administration takes over.  Thus, the California minimum salary requirement of two times the minimum wage (now $41,600 for employers under 26 people and $43,680 for larger employers) remains in effect.  Action: Ensure your pay policy meets the minimum salary requirement for all exempt employees as the minimum wage increases.  Also, keep an ear out for any policy shifts from the DOL as the administration changes. 

3. Change to the I-9 Form – The government has issued a new I-9 form that must be used beginning January 1, 2017 for all new employees.  The form is available online at the USCIS website: 

4. California’s Legalization of Recreational Marijuana Use – With the passage of Proposition 64, California now allows people over the age of 21 to smoke or ingest marijuana, grow up to 6 plants and transfer up to 28.5 grams of marijuana without compensation.  Employers may implement policies limiting the use of marijuana by their employees, up to and including total prohibition.  Action: (i) Confirm your company’s stance on employee marijuana use (both on and off the clock); (ii) review your employee handbook to make sure it is consistent with your position; (iii) make necessary changes to the handbook; and (iv) communicate those changes to employees. 

5. Trade Secrets [Handbook Edits Suggested] – In May of 2016, a federal law was created governing trade secrets, which supplements existing California law.  The federal law is substantially similar to the laws in California, but provides a better mechanism for immediate relief from trade secret misappropriation, along with the ability to seek punitive damages and reasonable attorney’s fees and costs.  Action: To take advantage of the new federal law, employers must notify their employees that whistleblowers of trade secret violations will receive criminal and civil immunity against claims of trade secret misappropriation so long as the report was made confidentially to a federal, state or local government official, an attorney or under seal in a lawsuit.  The inclusion of this notice into new agreements governing confidential information or trade secrets and in handbooks is voluntary, but makes these significant additional remedies available to the employer. 

6.  Notice Required of Leave Available for Victims of Domestic Violence, Sexual Assault or Stalking [Handbook Edits  Required] – Several years ago, Labor Code 230.1 was enacted, requiring employers of 25 or more employees to provide time off to victims of domestic violence, sexual assault or stalking to obtain medical attention, obtain services from a shelter or program, counseling or to plan for their safety.  Beginning in 2017, employers are required to notify new employees of certain rights under this law.  Current employees need only be notified of their rights upon request. Action: Employers must notify new employees of several rights under the law: (1) that the employer prohibits retaliation against employees who use this leave, (2) that employees can use vacation, sick or any other time off they are already entitled to, and (3) that the right does not extend the amount of time off they are entitled to under the FMLA.  The Labor Commissioner will be creating a form for employers to use for this purpose.  In lieu of the form, handbooks can include the required language. 

7.  Single-Occupant Restrooms Must Be Identified as “All-Gender” – By March 1, 2017, all business establishments that have single-user toilet facilities are required to change the sign to identify the restroom as “all-gender” and conform generally with normal signage requirements.  

8.  Venue and Choice of Law – Labor Code section 925 now prohibits employers from obligating California-based employees to sign agreements that require lawsuits to be brought outside of California or under other states’ laws, if the employee “primarily” works in California.  This new law expands California’s right to adjudicate disputes between employers and employees.  Previously, out of state employers could insert terms into their employment contracts applying their home state’s law and forums, making it difficult for California employees to sue their employer.  Action: Review your employment contracts for any offending language and amend them to identify California as the choice of venue and law for California employees. 

9.  EEOC Defines Rules Regarding National Origin Discrimination – The federal EEOC implemented new guidelines that are similar to California law.  The EEOC prohibits discrimination based on “national origin.”  The guidelines state that the place of origin can be a country, former country, or geographic region closely associated with a particular national origin group. National origin discrimination includes discrimination based on:

  • Ethnicity: A person can not be discriminated against because he or she either belongs, or doesn't belong, to a particular ethnic group;

  • Physical, linguistic, or cultural traits: Subjecting a person to adverse employment action due to his or her accent, style of dress, or other traits associated with a certain origin may constitute discrimination;

  • Perception: Regardless of a person's actual origin, if he or she is discriminated against due to the belief that he or she is of that origin;

  • Association: A person's association with someone of a particular national origin (for example, his or her spouse or child);

  • Citizenship: Employers may not make hiring decisions based on an applicant’s status as a citizen or permanent resident (other than the fact that the applicant must be legally able to work in the U.S.). 

Employers must have a legitimate business reason for making employment decisions based on accents, such as: (1) the ability to communicate in spoken English is required to perform job duties effectively; and (2) the individual's accent materially interferes with job performance.  There must be a legitimate business reason to make decisions based on fluency, if it is necessary for the effective performance of the position.  Finally, “English-only policies” are only legal if they are required to promote safe and efficient job performance or business operations, and are only enforced for those purposes.  Action: Review handbook language and other management training documents to ensure they are compliant with the law. 

10.  Workers’ Compensation Coverage Exclusions Narrow for Business Owners – Previously, officers, directors and working partners were not required to be covered by a company’s Workers’ Compensation (WC) policy unless they opted in for coverage.  Beginning January 1, 2017 (and including in-force policies), officers, directors and partners are required to be covered unless they meet the narrow exception to allow them to opt out. For corporations, only corporate officers and members of the Boards of Directors who own 15% or more of the issued and outstanding stock of a corporation may opt out of WC. General partners of partnerships and managing members of limited liability companies can also opt out of coverage.  This law is intended to prevent employers (usually in high risk industries) from giving employees a small (e.g., 1%) ownership interest to avoid paying Workers’ Compensation insurance premiums. Action: contact your WC insurance carrier to ask for details on the new rules and for an opt in/opt out form.  

Change on the Horizon:  Agricultural Workers Right to Overtime Phase In Beginning 2019-AB 1066.  The overtime rules for agricultural employees working for employers with 25 or more employees are changing beginning January 1, 2019.  Agricultural workers who work more than 9.5 hours per day and/or 55 hours per week will be entitled to 1.5 times their regular hourly rate.  The law will continue to roll-out between 2020 and 2025 until the overtime rules are in alignment with those for non-agricultural employees.  Action: No action is required this year.  However, we encourage agricultural employers to review their policies and increase their staffing if necessary to ensure they will be ready when the law goes into effect on January 1, 2019. 

Have a great 2017, and please contact Dawn Ross or Samantha Pungprakearti for help with your labor and employment law needs - (707)526-4200;; or 

What Brexit Means For Your EU Trademark
28 June, 2016

Britain’s decision to leave the European Union (“EU”) raises a number of issues for current and prospective owners of trademarks in the EU and the UK. 

Prior to June 23, 2016, an applicant for an EU Trademark (“EUTM,” previously known as a “Community Trademark” or “CTM”) could rely upon a single application to obtain ownership of a registered EUTM, which provides trademark protection in the UK and 27 other European countries.  By virtue of the Brexit vote, however, the UK has triggered a process by which recognition of trademark rights under the EU system may no longer extend to the UK. 

For registered EUTMs, the protections currently afforded to such marks in the UK are expected to remain intact for at least two more years, while the EU and UK negotiate the terms of the UK’s exit from the EU.  Thus, for existing EUTM owners, no immediate change in the status of your UK trademark rights is expected.    

Ultimately, and subject to the outcome of the Brexit negotiations, each registered EUTM may be divided into two trademarks: (1) a new, stand-alone trademark in the UK, and (2) the pre-existing “mother” EUTM covering the remaining EU member states.  This approach would preserve the prior rights and priority dates previously established under the pre-Brexit EUTM registrations. 

For parties filing new EUTM applications after June 23, 2016, and who also seek to obtain trademark protection in the UK, such applicants should file separate EUTM and UK trademark applications to ensure that they have adequate trademark protection.  Because the UK and EU will remain signatories to the Madrid Protocol, new applicants seeking trademark protection in the US, the UK, and the EU can continue to rely upon the Madrid Protocol’s “one application” approach to apply for and obtain trademark registrations in each of those jurisdictions. 

Please do not hesitate to contact John B. Dawson or (707) 526-4200 if you have questions or concerns regarding this historic event and the impact it may have on your international trademark rights. 


Summary Judgment On Behalf Of International Fruit Genetics, LLC In Table Grape Licensing Dispute
29 April, 2016

On April 20, 2016, CMPR obtained an across-the-board victory on behalf of International Fruit Genetics, LLC (“IFG”) in a case involving termination of licensing agreements for proprietary table grape varieties. The United States District Court, Central District of California, granted summary judgment in favor of IFG, holding that IFG validly terminated the parties’ licensing agreements based upon defendants’ contractual violations. The court also denied defendants’ separate motion for summary judgment on defendants’ counterclaims. International Fruit Genetics, LLC v. P.E.R. Asset Management Trust, et al., (Case No. 14-5273). 

IFG develops and owns proprietary hybrid table grape varieties in the United States and around the world. After developing a new grape variety, IFG applies for patents and other intellectual property registrations for the new variety in the U.S. and other countries. IFG licenses its proprietary grape varieties to authorized growers around the world under a licensing program designed to strictly control the propagation of its proprietary plant material and protect IFG’s intellectual property. 

Pursuant to three licensing agreements with IFG, defendants were permitted to test and make limited plantings of certain IFG grape plants in South Africa. However, the agreements prohibited defendants from propagating IFG grape plants. After learning that defendants had wrongfully propagated those plants, and had illegally imported other IFG plant material into South Africa, IFG gave notice terminating the parties’ agreements. In July 2014, IFG filed this lawsuit to confirm the validity of its termination based upon defendants’ contractual violations and other wrongful conduct. The CMPR team of John Dawson, Rick O’Hare, and Kim Corcoran co-authored the winning briefs. 

If you have any questions regarding intellectual property issues, please do not hesitate to contact John Dawson, head of the CMPR Intellectual Property Group (tel: 707-526-4200;

12 February, 2016

On December 18, 2015, President Obama signed into law the Consolidated Appropriations Act, 2016 (the “Appropriations Act”) and the Protecting Americans from Tax Hikes Act of 2015 (the “PATH Act” and together with the Appropriations Act, the “Tax Acts”).  Notably, the Tax Acts made significant changes to the U.S. federal income tax treatment of various entities and also extended or made permanent certain provisions of the Internal Revenue Code which had expired or were otherwise set to expire, including the following:
  • Extension of reduction in S corporation recognition period for built-in gains tax
  • Extension and modification of bonus depreciation
  • Extension and modification of increased expensing limitations and treatment of certain real property as Section 179 property
  • Extension of temporary minimum low-income housing tax credit rate for non-Federally subsidized buildings
  • 100 percent exclusion for Qualified Small Business stock made permanent
Separately, the Bipartisan Budget Act of 2015, signed by President Obama on November 2, 2015 (the “Budget Act”) introduced sweeping changes to partnership audit proceedings.  

Extension of Reduction in S Corporation Recognition Period for Built-in Gains Tax 

When a C corporation converts to an S corporation or an S corporation acquires assets from a C corporation in a tax-free transaction (e.g., a tax-free reorganization), the S corporation may eventually find itself subject to a corporate-level “built-in gains” tax in addition to the tax imposed on its shareholders upon disposition of its assets.  This rule supersedes the traditional pass-through tax treatment afforded to S corporations, otherwise, a C corporation could make an election to be taxed as an S corporation and then proceed to sell all or part of its assets with only a single level of tax applied.   

The time period during which an S corporation is required to track dispositions of assets subject to the built-in gains tax was originally ten years from conversion to an S corporation (or asset acquisition), but was then reduced to seven years for taxable years beginning in 2009-2011, and then to five years for taxable years beginning in 2012 to 2014.  Absent legislation, this time period was slated to return to the original ten-year time period in 2015.   

In a very favorable provision for small businesses, the built-in gain recognition period has been permanently reduced to a five-year period, with retroactive effect to the 2015 tax year. 

Extension and Modification of Bonus Depreciation 

The PATH Act extends and phases out the Section 168(k) bonus depreciation for qualified property placed in service over the next five years as follows:  from 2015 to 2017, bonus depreciation will remain at 50 percent, in 2018 it will be 40 percent and in 2019, 30 percent. 
Additionally, the PATH Act provides for a very beneficial election for certain plants which bear nuts and fruits (including grapes).  Under the prior law, bonus depreciation was only available in the year in which the property is placed in service, which typically means when the plant becomes income producing (in most cases, several years after planting).  If the election is made, the plants are considered to be placed in service when planted, and thus eligible for bonus depreciation in the first year (at the then current percentage).   

These provisions apply to property placed in service after December 31, 2015. 

Extension and Modification of Increased Expensing Limitations and Treatment of Certain Real Property as Section 179 Property 

A taxpayer may elect under Section 179 to deduct (or “expense”) the cost of qualifying property rather than depreciate the property.  From 2015 forward, such expensing will be allowed up to $500,000, assuming that less than $2 million worth of equipment is placed in service during the year.  Absent legislation, the $500,000 and $2 million thresholds would return to prior levels, $25,000 and $200,000, respectively. 

The Tax Acts also removed the limitation on Section 179 deductions for qualified real property (e.g., retail, restaurant, and other leasehold improvements) and made permanent the permission granted to a taxpayer to revoke without the consent of the Commissioner any election made under Section 179. 

Extension of Temporary Minimum Low-income Housing Tax Credit Rate for Non-Federally Subsidized Buildings 

In the case of newly constructed or substantially rehabilitated housing that are not federally subsidized, the calculation of the “applicable percentage” was originally designed to produce a ten-year credit equal to 70 percent of the present value of the building’s qualified basis.  However, prior legislation extending as far back as the Housing and Economic Recovery Act of 2008, had mandated, on a temporary basis only, that the applicable percentage for newly constructed or substantially rehabilitated housing which is not federally subsidized could be not less than nine percent. 

The PATH Act makes permanent the minimum applicable percentage of 9 percent and is effective January 1, 2015.   

100 Percent Exclusion for Qualified Small Business Stock Made Permanent 

The Section 1202 exclusion from gross income of gain from the sale of Qualified Small Business stock held for more than five years has been permanently extended to 100%.   

The provision is effective for stock acquired after December 31, 2014. 

Changes to Partnership Entity Audit Rules 

The Budget Act effectively repeals and replaces the current TEFRA partnership audit procedures with a significantly different procedural regime, effective for tax years beginning after December 31, 2017.  All partnerships (and LLC’s taxable as partnerships), whether or not formed prior to the effective date are impacted.  Prior to these changes, an Internal Revenue Service (“IRS”) audit would occur at the partnership level and the IRS would cause adjustments to be made to the partners directly.  Under the new audit regime, and unless otherwise elected, the IRS will assess and collect tax, penalties, and interest attributable to audit adjustments at the partnership level, leaving it up to the partnership as an entity to pay (and then pass any liability on to its partners).  Depending upon which procedure the partnership elects, and the audit year in question, it is possible that current partners could find themselves on the hook for a deficiency attributable to years in which such partner did not hold a partnership interest. 

Some partnerships (and LLC’s taxable as partnerships) may elect out of these new procedures altogether.  The ability to elect out is limited to partnerships with 100 partners or less and various ownership and look-through rules apply; most notably, tiered partnerships (i.e., partnerships with other partnerships as partners) are not eligible to elect out of the new regime. 

The new rules also substitute the concept of a “Partnership Representative” for the TEFRA-era Tax Matters Partner.  The Partnership Representative is to serve as the sole liaison between the partnership and the IRS and shall have the authority to bind the partnership in such dealings.   

In its current form, the new audit rules leave many issues and questions unanswered.   Given the delayed effective date, the IRS is entertaining comments and the expectation is that additional guidance will be provided.  In the interim, partnerships (and LLC’s taxable as partnerships) should consider the impact of these new rules on their existing and future agreements. 

If you have questions regarding any of these changes, please contact Daren Shaver( or the CMPR attorney with whom you regularly work.

24 November, 2015

Wineries and Growers were both Well-Dressed and Organized at Monday Night’s Sonoma County Public Forum.

Much has already been written about the “nuts and bolts” of the November 16th meeting, but the energy and determination that permeated the room was remarkable..  The meeting was the one and only chance for the public to finally have its say in response to the hours and hours of meetings held by the County’s Winery Working Group, prior to hearings before the Planning Commission, then the Board of Supervisors. .  The members of that Group have been working for the last six months to provide direction to the County about new winery applications.  Each of the previous meetings had been held before an audience that was required to stay silent at all times.  Monday night was the time for the County to hear from all of the interested stakeholders, large and small.

Until Monday night, the wineries and growers appeared to be in two camps:  those who were following every breath and sigh of the Winery Working Group and those who didn’t even know that the Group had been formed, or that a new County ordinance was working its way down to them.  Although the discussion of the new ordinance is cast as applying only to new wineries, there is the distinct possibility that the County would apply any new ordinance to existing wineries (whether through applications for increased production or changes to use permits).  As such, whether they knew it or not, every winery and grower will likely be affected by the new ordinance. 

From the more than 500 people who met in Santa Rosa Monday night, the news had finally been disseminated.  More than half of the audience members were there to support the wine business.  It was a refreshing sight to see growers, winery owners, winemakers, and tasting room staff energized, motivated, and wearing brilliant green t-shirts or stickers (brilliant in both their color and their use as a statement).  The anti-winery contingent was there with their plain white nametags and a few placards but Monday night’s energy belonged to the wineries and growers. 

Three central themes came from this energized group.  First, agriculture does not mean grapes growing peacefully by themselves, beyond the touch of human hands.  Instead, agriculture means feeding your family and making the mortgage.  That requires one to sell the grapes/wine, and selling necessarily requires marketing efforts.  Speakers from small wineries presented a compelling case of why they needed what the County calls “events” and what theycall distributor meetings or wine club dinners.  Without direct-to-consumer sales, only “the big guys” with their existing distributor outlets would be able to own wineries in Sonoma County.  The “big guys” had their say as well – without being able to hold distributor lunches or dinners, their business model fails as well. 

Another common theme was that the County should not regulate the type of activity going on at the winery.  Instead, the County should be regulating impacts – it shouldn’t matter whether there is a tasting menu, whether a customer sits or stands, or whether there is a fee for a wine club party.  No other business is in danger of having the County decide when, or whether, it can have business or staff meetings.  How can the County do that to wineries?

Finally, the wineries and growers challenged the opposition’s continued mantra of “rural character”.   Without high-end agriculture, the land would be sold for housing.  Housing would not recharge the aquifer, would not maintain the job base, and would be anything but “rural”.  The wineries and growers stepped up to the microphones Monday night by the dozens noting, among other things, that the first word on the Sonoma County seal is “Agriculture” and that pioneers like Sara Lee Kunde had worked tirelessly in the past to make agriculture economically viable.  Making a good living from agriculture is what allows for rural character in the first place. 

This is not isolated to Sonoma County.  Napa is dealing with their own ordinance battles, as is Santa Barbara, Paso Robles and the other wine-growing areas of the state.  Indeed, this “not in my backyard” approach to land use is also reflected in municipal ordinances restricting restaurants, nightclubs and wine stores in major cities throughout the state.

As the meeting approached 8:30 and then 9:00, many of the opposition group trickled out.  The winery and grower contingent just filled-in their seats behind them (about 100 people had not been allowed into the meeting room due to occupancy requirements and had been relegated to the lobby to watch the proceedings on a screen.)  When the meeting finally ended shortly after 9:00, the room was abuzz with energy from the green-clad growers and winery representatives finally being able to say their piece.  Indeed, one of the anti-winery speakers said to another as he was walking out of the meeting early, “The wineries – they’re organized.”  Ah – the power of working together toward a common goal.  


By Kimberley Corcoran, Carle, Mackie, Power & Ross LLP

The California Competes Tax Credit Could Help Your Business Expand
29 June, 2015

The California Competes Tax Credit is a business income tax credit intended to incentivize economic development in the State of California.  If your business (whether organized as a corporation, limited liability company or partnership) is planning to hire and/or expand in California, please consider applying for the California Competes Tax Credit. 

The credit is awarded through a competitive application process and is individually negotiated with the Governor’s Office of Business and Economic Development (“GO-Biz”) for approval by a statutorily created California Competes Tax Credit Committee.  The credit is taken against income tax due to the California Franchise Tax Board.   

Although not yet officially announced, we anticipate that GO-Biz will open the next application period in late September (prior application periods have typically lasted around one month).  GO-Biz previously indicated that approximately $200 Million is available to be awarded in fiscal year 2015-16. 

The evaluation process consists of two phases (though it is possible to bypass Phase 1 under certain circumstances).  Phase 1 is an automated process in which the requested tax credit, aggregate employee compensation and aggregate investment are evaluated to arrive at a cost-benefit ratio.  Those applications with the “most advantageous” cost-benefit ratio proceed to Phase II. 

Phase II of the evaluation process focuses on several factors, including the number of jobs created, compensation paid to employees, amount of investment, geography and overall impact to the State of California.  
Successful applicants enter into a tax credit agreement to provide for allocations of the credit to be made upon the successful completion of established milestones (e.g., hiring, investment targets).  Awardees who fail to achieve the established milestones are at risk of having the credit recaptured.  

Online applications will likely be submitted at  If unsuccessful, applicants may reapply in subsequent application periods. 

If you have questions about the California Competes Tax Credit or for help applying, please contact Daren Shaver at Carle, Mackie, Power & Ross LLP. (tel: 707-526-4200; e-mail: 

- Daren Shaver, Associate    

New Laws For 2014 Affecting California Employers
26 February, 2014






It's that time of year again! While there are some important changes to be aware of, this year's employment related legislation was not as overwhelming as in the past few years. Below is a summary of the most significant changes.

When recruiting, hiring, and disciplining employees, please be aware of these new laws:

1. Minimum Wage Increase & Liquidated Damages: For those of you with minimum wage employees, the hourly rate is increasing from $8/hr. to $9/hr. effective July 1, 2014; and then to $10/hr. effective January 1, 2016. In addition, Labor Code sections 1194.2 and 1197.1 have been amended to allow the Labor Commissioner to award liquidated damages in an amount equal to the unpaid wages (doubling the amount due), if an employer violates California's minimum wage law. Action: (i) order and post the new Minimum Wage poster before July 2014; (ii) update payroll for minimum wage earners; and (iii) review and update other areas where minimum wage may come into play, for example, travel time policies and/or commission agreements for sales employees.

2. Driver's License for Undocumented Immigrants: A new law requires the DMV to issue a driver's license to an undocumented person who can prove identity, residence, and who passes the necessary exams. This card will not be acceptable for federal purposes, which will be noted on the driver's license. This license may not be used to verify eligibility for employment or for purposes of identification on the I-9 form.

3. Wage Withholdings: SB 390 creates a criminal penalty for employers who fail to remit withholdings from an employee's wages which were made pursuant to state, local or federal law. Action: Keep employee withholdings in a separate account and always make timely payments to federal, state and local agencies.

4. Protection Against Using Immigration Status Against an Employee: Several new laws were passed to protect employees from having their immigration status used to retaliate against them for exercising any employment related right. First, under new Labor Code §1019, if an employee complains about his/her wages or other conditions of employment, it would be unlawful for an employer, or any other person, to either directly or indirectly retaliate against the employee by engaging in an "unfair immigration related" practice. This includes: (i) requesting more or different documents than federal law requires for proof of employment; (ii) using the e-Verify system to check employment eligibility at a time not required by federal law; (iii) threatening to file, or filing, a false police report; (iv) threatening to contact, or contacting, immigration authorities; or (v) taking any adverse employment action against the employee. This new law creates a rebuttable presumption that an adverse action taken within 90 days of the employee exercising a protected right is retaliatory.

The second new statute, Labor Code 1024.6, prohibits an employer from discharging, discriminating, retaliating, or taking any other adverse action against an employee because the employee updates or tries to update his or her "personal information," unless the update is directly related to the skills, qualifications or knowledge required for the job. For example, if an employee presents a new name or social security number, this law would protect the employee from adverse action based on the change.

In addition, Labor Code §98.6 was amended to make it illegal for an employer to retaliate against an employee who has complained that he/she is owed unpaid wages, and creates a civil penalty of up to $10,000 per violation.

The last new law in this area, Labor Code §244, authorizes suspension or revocation of a business license if the licensee has reported or threatened to report the suspected citizenship or immigration status of an employee, former employee, or prospective employee, or a member of their family, because the person has exercised a right under the Labor Code or other laws. The law also makes it a cause for suspension, disbarment, or other discipline for any California licensed attorney to report, or threaten to report, the suspected immigration status of a witness or party to a civil or administrative action, if the person exercises or has exercised a right related to employment. Action: (i) be sure to only check on immigration status upon hire, or other times required by federal law; (ii) never use immigration status as a threat or reason to take action against an employee for lodging a complaint or exercising a legal right; (iii) carefully document all reasons for taking disciplinary action.


Some new leave entitlements have been added.

1. Stalking Victims: Labor Code sections 230 and 230.1 currently allow time off, and prohibit an employer from discharging, discriminating or retaliating against an employee who is a victim of domestic violence or sexual assault, for taking time off from work to attend court proceedings or to obtain medical or other services as a result of the crimes against them. These protections have been expanded to include employees who are victims of "stalking." An employer must also provide reasonable accommodations, including implementation of safety measures such as job transfer, modified schedule, installation of locks and safety procedures. Action: (i) if an employee confides that he/she is being stalked or is the victim of domestic violence or sexual assault, become familiar with these statutes to be sure you obtain the necessary documentation and are providing the required time off and accommodations; (ii) engage in the good faith interactive process; (iii) add this new leave to the next employee handbook update.

2. Crime Victims: Labor Code §230.5 has been added to provide protection for employees who are the victim of certain serious or violent crimes, or whose spouse, parent, child, sibling, or guardian is the victim of such a crime. These employees may take time off work (unpaid or using accrued time) to attend court proceedings, and cannot be punished for taking the time off. Action: the same as Section 1, above.

3. Peace Officers & Emergency Rescue Personnel: Currently, employers with 50 or more employees must allow volunteer firefighters to take up to 14 days off (either unpaid or using accrued time) per year to participate in firefighting training. Labor Code §230.4 was amended to extend this same right to peace officers and emergency rescue personnel to participate in law enforcement and emergency rescue training. All of these first responders have an unlimited right to unpaid time off as necessary to respond to emergencies. Action: add this extended leave to the next employee handbook update.

4. Paid Family Leave Benefits Extended: Currently, the Paid Family Leave Act provides employees with up to six weeks of partial pay replacement benefits when they take leave to care for a seriously ill family member or to spend time with a new baby, adopted child, or foster child. The Act has extended these benefits to employees who take time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. This does not create a leave entitlement; it just provides partial pay replacement if a leave is otherwise authorized. Action: (i) if an employee is taking a leave to care for a family member in this extended category, provide them with the information of filing for Paid Family Leave; and (ii) if your handbook leave policy addresses Paid Family Leave Act benefits, update this definition.

In addition to the new entitlements in the Leave of Absence section above, there are a couple of other handbook updates. None of these changes require an immediate update to your handbook, but put them in your "update" folder so they are accessible when it's time for your next update.

1. Protection for Military & Veterans: The Fair Employment and Housing Act was amended to add "military and veteran status" to the list of categories protected from employment discrimination. "Military or veteran status" is defined as an individual's membership in, or status as, a veteran of the U.S. Armed Forces, the Reserves, the National Guard or the Coast Guard. Action: Military and veteran status was already protected by federal law, so is probably covered by your handbook. However, check your policy and, if necessary, add this to the anti-harassment and anti-discrimination portions of your handbook during your next update.

2. Sexual Harassment Definition Clarified: The Fair Employment and Housing Act was amended to clarify that sexually harassing conduct does not need to be motivated by sexual desire, and that hostile treatment can amount to unlawful sexual harassment regardless of whether it is motivated by sexual desire. Case law was in conflict on this issue. Action: (i) treat complaints of harassment seriously, even when it's clear that sexual desire is not involved; (ii) review your anti-harassment policy to determine whether the definition of harassment needs updating.

Should you face a wage claim filed with the Labor Commissioner, you should be aware of the following changes.

1. No Exhaustion Required: Under newly added Labor Code §244, it is not necessary to exhaust administrative remedies through the Labor Commissioner in order to file a lawsuit against an employer for violation of any law over which the Labor Commissioner has jurisdiction. This may result in a lot more civil claims, which take longer and are more expensive. Action: (i) be sure your exempt employees are properly classified; and (ii) be sure you are in compliance with overtime, meal, rest period, and other wage and hour laws.

2. Attorneys' Fees: Labor Code §218.5 has been amended to provide that an employer may only recover attorneys' fees and defense costs when it prevails in an action brought by an employee for unpaid wages if the employer can prove the employee brought the action "in bad faith." This will make it more difficult for an employer to recover its attorneys' fees and costs. Action: Make sure you are complying with overtime, rest and meal period, and other wage and hours laws to avoid facing a wage claim.

3. Labor Commissioner Lien: An employer has 10 days to appeal an adverse decision on a wage claim issued by the Labor Commissioner. Under a new law, once the time to appeal expires, a lien is automatically created and the Labor Commissioner can record it in any county in which the employer holds real property.


1. Heat Illness Recovery Periods: For those of you with employees who work outdoors, Cal/OSHA's heat illness standards allow for cool-down periods in the shade of no less than five minutes at a time on an "as-needed" basis for employees to protect themselves from overheating. Labor Code 227.6, which requires employers to pay an additional hour of pay to employees who are required to work through a legally mandated meal or rest period, has been expanded to require the same extra hour of pay if an employer fails to provide required heat illness recovery periods. Action: (i) be sure you are familiar with, and complying with, Cal/OSHA laws; (ii) add a policy to your Handbook asking employees to report to Human Resources if they are not being allowed the necessary recovery time.

2. Successor Liability for Farm Labor Contractors: Newly added Labor Code §1698.9 holds a successor farm labor contractor liable for wages or penalties owed by a predecessor farm labor contractor under certain specified circumstances, including use of same facilities or workforce, or a relationship with the predecessor through shared ownership, employment or family relationship. Action: complete due diligence on this issue before taking over for a Farm Labor Contractor.

3. Good Samaritans: Health & Safety Code §1799.103 was added to prevent an employer from prohibiting an employee from providing voluntary emergency medical services, including CPR, in response to a medical emergency, unless the person in need has expressed the desire to forgo resuscitation or other medical intervention. This is most likely to come up in residential settings. Action: review your handbook to make sure you do not have such a policy.


For more information on any of these changes, please contact Dawn Ross –



100 B Street, Suite 400

Santa Rosa, CA 95401



Crowdfunding Part 4 Practical Implications
01 August, 2013




Practical Implications

Simon R. Inman, Partner


This is the last in a series of bulletins about the crowdfunding exemption from the requirement for SEC registration, as included in the JOBS Act of 2012. Links to the previous three bulletins may be found here. The purpose of this bulletin is to explore some of the practical implications for companies looking to take advantage of crowdfunding.

In the first place, crowdfunding intermediaries and funding portals will essentially act as “gatekeepers”. Although they will not be responsible for promoting the investment opportunity or if investments go bad (absent their own failure to comply with obligations imposed by the legislation or the SEC), in order to build their own brands, they will want to be associated with successful projects. Those who develop a track record of picking opportunities that turn into “winners” will attract more investor interest. This may leave a company with a more “risky” or marginal project either not finding a portal or ending up with a less well respected operation whose involvement may not enhance the prospects (or reputation) of the company.

Second, there is a definite sense that more traditional sources of early stage capital (including angel investors) may be reluctant to invest in companies that have used crowdfunding. The fear is that, if there are a large number of early stage investors, they may be difficult to manage in the later stages, particularly when the company moves on to more sophisticated financing structures or a liquidity event. For companies that are likely to need more traditional follow-on financing, crowdfunding may not be the best option.

Third, having a large number of shareholders presents a number of challenges for what will most likely be relatively small businesses with inexperienced management teams. The enhanced corporate governance responsibilities associated with a large pool of shareholders will definitely create additional significant burdens and costs, especially since many of the shareholders may themselves be inexperienced in terms of understanding what to expect from their investments, the type of information that the company will provide, and their rights as shareholders. The potential for unpredictable behavior on the part of such investors is another reason why later-stage investors may be reluctant to invest later.

To counterbalance this:

  • Companies will want to make sure they have effective Directors and Officers insurance. While this may not provide coverage for damages for actual breaches of fiduciary duties that give rise to losses, the coverage will typically cover the costs of defending any shareholder lawsuits.
  • Many companies may also opt to incorporate in Delaware which has a reputation for being more management-friendly. However, companies based in California and with a significant proportion of California shareholders will find themselves still subject to many of the provisions of California law that are considered to be more shareholder-friendly.
  • It is also to be hoped that crowdfunding intermediaries will help provide a package of services designed to help companies comply with their corporate governance responsibilities, from maintaining the stock register to handling the required annual shareholder meetings and other shareholder communications.

For the time being, we must now wait patiently for the SEC rule making process to be completed before we can fully assess the likely impact crowdfunding may have.

For more information contact Simon Inman at or at (707) 526-4200.

100 B Street, Suite 400
Santa Rosa, CA 95401


Crowdfunding Part 3 Intermediaries and Funding Portals
19 July, 2013




Crowdfunding Intermediaries and Funding Portals

Simon R. Inman, Partner


This is the third in a series of bulletins about the crowdfunding exemption from the requirements for SEC registration included in the JOBS Act of 2012. Previous bulletins were published in March 2013 and June 2013. The purpose of this bulletin is to explore in more detail the role of funding portals that will form an integral part of the crowdfunding process.

The legislation allows a crowdfunding intermediary to establish a funding portal through which investors will be able to make crowdfunding investments. The crowdfunding intermediary must be registered with the SEC and regulated by FINRA or another regulatory body.

The crowdfunding intermediary’s obligations will include:

  • Providing the disclosures about the business required by the SEC;
  • Ensuring investors review educational materials and understand the risks of investing, including the lack of any market in the securities and the risk of a total loss of the investment;
  • Protecting investor privacy;
  • Reviewing background checks on the directors, officers and significant stockholders of the companies;
  • Protecting the investor’s right to change his or her mind within the window allowed;
  • Only releasing funds once the target offering amount has been raised; and
  • Monitoring the limits on the amounts investors are allowed to invest. The maximum amount any investor can invest in any 12-month period is limited to (i) the greater of $2,000 or 5% of annual income or net worth (if either is less than $100,000), or (ii) 10% of annual income or net worth (if either is greater than $100,000), but not more than $100,000 in total. It is not clear how funding portals will be able to monitor compliance with these limits otherwise than through self-certification. However, funding portals through which investors regularly invest will at least be able to monitor the amount being invested through that funding portal by such investors.

Crowdfunding intermediaries operating funding portals may not:

  • Offer investment advice or recommendations;
  • Solicit offers, sales or offers to purchase securities offered through the portal;
  • Compensate employees, agents or others for soliciting investors or investments based on sales of securities offered through the portal;
  • Hold or handle investor funds (a separate escrow agent must be used); or
  • Allow its principals to invest in any securities offered through the portal.

Given these responsibilities and restrictions, it will be interesting to see how crowdfunding intermediaries operating funding portals will be compensated for the services they offer. All will be revealed when the SEC gets around to publishing its rules.

The final bulletin in this series will explain some of the practical implications for companies looking to take advantage of crowdfunding.

For more information contact Simon Inman at or at (707) 526-4200.

100 B Street, Suite 400
Santa Rosa, CA 95401


Crowdfunding Part 2 Responsibilities of Issuers
28 June, 2013




Responsibilities of Issuers

Simon R. Inman, Partner


This is the second in a series of bulletins about the crowdfunding exemption from the requirements for SEC registration included in the JOBS Act of 2012.  The first bulletin, published in March 2013, described the background and overall objectives of the legislation.  The purpose of this bulletin is to explore in a little more detail the obligations of businesses seeking to use crowdfunding as a source of capital.

Not surprisingly, basic information regarding the business, its actual and proposed operations, the intended use of the proceeds, and the identity of all directors, officers and holders of more than 20% of the equity must be provided.  In addition, certain financial information must be provided as follows:

  • If the offering is $100,000 or less, most recent tax returns (if any) and current financial statements certified by the CEO to be true and complete;
  • If the offering is more than $100,000 but not more than $500,000, financial statements reviewed by an independent CPA; or
  • If the offering is more than $500,000, audited financial statements.

Even though the maximum amount that can be raised through crowdfunding is limited to $1,000,000 in any 12 month period, the cost of having reviewed or audited financial statements is likely to mean that most crowdfunding offerings will be $100,000 or less.  Although the legislation gives the SEC the power to increase the offering limit for audited financial statements, it does not have power to increase the offering limit for reviewed financial statements unless the legislation is amended.

The legislation also includes a number of additional requirements that will no doubt be supplemented and expanded by the SEC rulemaking.  Issues that the rules will address will include the following:

  • A description of the type of securities to be offered;
  • The price per share, the target amount to be raised and the deadline for raising it;
  • How the offering may be advertised (companies will likely only be allowed to direct interested investors to the funding portal website);
  • Procedures for filing the offering with the SEC;
  • Requirements for providing of annual reports to investors and the SEC;
  • Limitations on the ability of the companies to pay commissions or other compensation associated with the promotion of the offering;
  • Liability for material untrue statements and omissions;
  • Restrictions on allowing investors to sell the securities for the first 12 months (except in certain limited circumstances); and
  • A prohibition on foreign entities using the crowdfunding exemption.

The next bulletin will explain in more detail the funding portals and the final bulletin will review some of the practical implications for companies wanting to take advantage of crowdfunding. 

For more information contact Simon Inman at or at (707) 526-4200.

100 B Street, Suite 400
Santa Rosa, CA 95401


Crowdfunding Part 1
14 March, 2013





Simon R. Inman, Partner


There has been a lot of buzz about crowdfunding recently.  Sadly, despite the passage of the legislation in Congress nearly 12 months ago, we are not much closer to seeing the rules that the SEC must produce before crowdfunding can begin.  Most commentators believe that we will not see crowdfunded transactions until sometime in 2014.

This bulletin is the first of a short series that is designed to explain the background to the crowdfunding legislative and regulatory framework, as well as the possible pros and cons of what many believe will be a Brave New World of funding for small businesses.

The basic regime for the protection of investors in the United States that was established by the Securities Act of 1933 was to provide that securities could not be sold to the public unless they had been registered with the SEC.  The SEC’s job was to vet the securities to ensure that they were appropriate to be offered to the public.  However, the legislation and SEC regulations created a number of exceptions to the general rule requiring registration. The most well known exception is probably that which relates to offerings to “accredited investors”, being persons who, according to the SEC definition, should be capable of making an informed investment decision and bearing the risk of a total loss of their investment.  These exemptions pre-empt state laws.

The crowdfunding legislation created a new exception to the prohibition against general solicitation of investors if the soliciting of investors is conducted through an authorized “funding portal”.  This is a website managed by an appropriately licensed party through which investors will be able to make investments. The legislation limits the amount that any one business can raise in a 12 month period to $1,000,000 and limits the amount that any individual investor can invest depending on their own income or net worth.  This excemption also pre-empts state laws.

Based in part on the success of organizations like Kickstarter and Indigogo, there has been a tremendous amount of excitement and anticipation regarding the opportunities that crowdfunding will provide once the SEC rules become law.  It is probably fair to say that the public comments posted on the SEC website fall into two categories:  those who cannot wait for the SEC to complete its rulemaking and exhort the SEC not to ruin things by being too conservative; and those who think that this is bad legislation and encourage the SEC to concentrate on ensuring that the public is protected from a potential avalanche of fraudulent investment scams.

The title of the crowdfunding legislation is “Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act of 2012”.

We shall see if the SEC can strike a right balance between these concepts.

For more information contact Simon Inman at or at (707) 526-4200.

100 B Street, Suite 400
Santa Rosa, CA 95401


28 April, 2011


SANTA ROSA, CA – April 2011  Carle, Mackie, Power & Ross, LLP (CMPR), a premier business law firm based in Santa Rosa, CA, announces the launch of their new online trademark service, CMPRmarks allows world-wide access to a full range of trademark services, from researching potential marks for use in the United States, to filing and prosecution of trademark applications at the U.S. Trademark Office, as well as maintenance of  trademark registrations once they have issued. The website also offers information on trademarks generally, from choosing a mark to the timing of U.S. Trademark Office procedures.

Jay Behmke, CMPR’s lead trademark attorney, said “More and more companies depend on services offered over the Internet. We offer complete trademark search, filing, and registration service, backed by experienced attorneys, at very competitive rates. We think a large part of the future for the legal profession lies online, and we’re very excited to be part of that.”

All work done through CMPRmarks is overseen by the firm’s team of experienced trademark attorneys, and is offered through a secure website. The service is available not only to individuals and companies, but to law firms seeking a reliable outsourcing opportunity for trademark work.

Founded in 1998, CMPR offers a wide range of legal services to individuals, businesses, non-profits and public agencies, including corporate, commercial, and financial transations as well as employment, litigation, and tax advice. In addition, CMPR is widely recognized for its particular expertise with respect to the Wine Industry and to Affordable Housing transactions. The firm is experiencing substantial growth and expects that CMPRmarks will help fuel future expansion.

If you would like more information about this topic, or to schedule an interview with Jay Behmke, please call him at 707.526.4200 or email him at

Contact: Jay Behmke
Carle, Mackie, Power & Ross, LLP
Tel: 707.526.4200
Fax: 707.526.4707

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