Reminder of New Commission Law in California

Any employee hired to perform commission work in California, whether hired by a California company or not, must receive a written contract that includes the method for calculating and paying commissions.  Previously, this applied only to employers outside of California. 

Whether you are a California employer of California residents or not, there is the potential for wage and hour and independent contractor claims, and you might consult an attorney to get your standard commission contracts in proper order.

Employers May Not Sleuth Employees Personal Social Media in California

Under new California law, employers may no longer require or request employees or applicants to: (1) disclose a username or password to access their personal social media; (2) access their personal social media in an employer’s presence; or (3) divulge any personal social media. 

Employers now may not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with an employer’s request or demand that violates the above law.

New Regulations under Children's Online Privacy Protection Act

The Children's Online Privacy Protection Act (COPPA) became effective April 21, 2000 and applies to the online collection of personal information from children under 13. The law demands that sites aimed at children require parental approval in order for minors under the age of 13 to use them.

Sites can choose to ban minors altogether in order to avoid having to comply with the law, as does Facebook. The COPPA rules spell out what a commercial website operator must include in a privacy policy, when and how to seek verifiable consent from a parent and what responsibilities an operator has to protect children's privacy and safety online.

Mobile data, now included under the COPPA rule, was not commonly used or collected when COPPA was instituted. Starting July 1, 2013, the list of “personal information” that cannot be captured without parental consent will include geo-location information, photographs, audio files, and videos that contain a child’s image or voice, along with IP addresses and mobile device IDs.

Potential Liaility of Linking to other Websites

Linking, in and of itself, is not a copyright infringement since there is no actual copying involved.

However, linking can create potential liability, if the linking site creates a false impression about its relationship to the site linked, or if the link misrepresents the nature of the linked site or casts it in an unfavorable way.

Also, linking to the content from another site within a frame that contains banner ads as well as site specific content belonging to the linking site could lead to liability for selling advertising on the linking site when viewers were actually viewing the content of the linked site instead.

The New Trademark Clearinghouse

With the huge increase in number of generic Top-Level Domain Names, trademark owners should consider recording their registered trademarks with the new Trademark Clearinghouse to be launched by The Internet Corporation for Assigned Names and Numbers (ICANN). Beginning March 26, 2013, trademark owners may submit trademark information to the Trademark Clearinghouse to protect their online brands. Otherwise, brand owners may have to force transfer of domain names that incorporate the owners' trademarks.


As additional services, the Trademark Clearinghouse will notify trademark owners when someone else seeks to secure a domain name that matches their registered trademark, plus trademark owners may also secure second level domain names that correspond with their registered trademarks before the general public can do so.

Whistle Blower Protections "Expanded"

California employees who "blow the whistle" are protected from retaliation by Labor Code § 1102.5(b) which provides that "an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”  The California Court of Appeal just held that this section “protects employee reports of unlawful activity by third parties such as contractors and employees, as well [as] unlawful activity by an employer.”

When to Call A Lawyer

One lawyer's opinion on when to hire a lawyer.