With the recent news regarding ICE raids on 7-11’s across the country, rumors of raids targeted at Northern California businesses and California’s Attorney General announcing plans to prosecute employers for violation of new laws passed through AB 450, employers should have a plan in place in the event of a raid. As January 1 AB 450 created new laws governing employers’ obligations related to immigration enforcement efforts. Below is some guidance for employers to use in navigating these tricky situations as well as an overview of the new laws stemming from AB 450.

Tips for Handling Immigration Agency Inspections:

• Do not allow agents to enter any non-public area, or provide access to records, without a valid warrant, or for records a valid “Notice of Inspection.”

Public areas: generally parking lots, lobbies, waiting areas, or other places the public enters or is permitted to enter.

Non-public areas: offices, back of house areas, areas marked “private” or “no trespassing,” and areas where the public is not permitted to enter due to company policy.

• When requesting a warrant, communicate with the agent in a public area and away from employees.

(Make sure the warrant is valid and signed by a Judge. Warrants from the Department of Homeland Security are not valid.)

• If you receive a “Notice of Inspection,” notify employees promptly (within 72 hours).
• Do not unnecessarily re-verify employment.
• Consider implementing a plan with the procedure to follow in the event of an inspection.
• Train employees – especially front-of-house workers, or those that greet visitors – on the new law and what to do in the event of an inspection. Employees should be advised to tell inspection agents that they are not authorized to allow entry and the name of the person who is.

Tips for Communicating with Employees about Inspections:

• Ensure you are abiding by the required notice procedure and content of Labor Code §90.2, described below.
• You may advise employees that they do not have to talk to immigration enforcement agents, and they do not have to provide any documents.
• Advise employees to call an immigration attorney, Legal Aid, or another resource.
• Avoid getting admissions from employees regarding whether they are legally authorized to work unless you are required by law to re-verify their status.

AB 450 created obligations of an employer as it relates to (1) an immigration agency inspection, (2) notice to employees regarding an inspection, and (3) re-verifying employment. Violation of these new laws carries fines for employers that vary from $2,000-$10,000.

Obligations Upon Immigration Agency Inspection:

(Gov. Code §§7285.1, 7285.2, 7285.3)

• Employers cannot provide voluntary consent to ICE agents to enter non-public areas without a warrant.
• Employers can and should take an ICE agent to a non-public area where employees are not present in order to verify if there is a warrant.
• Employers cannot provide voluntary consent to an ICE agent to access, review or obtain employee records without a subpoena or warrant.

Employers may challenge the validity of the warrant or subpoena.

• Employers may provide I-9’s or other forms if a Notice of Inspection has been provided to the employer, without requiring a subpoena or warrant.

Employee Notice Regarding Inspection:

(Labor Code §90.2)

• Provide notice within 72 hours of receipt of any Notice of Inspection. The notice must contain (1) the name of the agency conducting the inspection, (2) the date the notice was received, (3) the nature of the inspection (to the extent known), and (4) a copy of the Notice of Inspection. The Labor Commissioner will have a template available by July 1.
• Provide a copy of the Notice of Inspection to employees that request it.
• Provide a notice of the results of the inspection to all affected employees within 72 hours of receipt of the results, along with written notice of the obligations of both the employer and employee. This notice must contain (1) description of the identified deficiencies as stated in the inspection results, (2) the time period to correct the deficiencies, (3) the time and date of any meeting with the employer to correct the deficiencies, and (4) notice that the employee has a right to representation during any meeting scheduled.

“Affected employee” is one that is identified in the results from the immigration agency who may lack work authorization, or whose work authorization contains deficiencies.

Verifying Employment:

(Labor Code §1019.2)

• Employer is not permitted to re-verify the employment eligibility of a current employee at a time or manner not required by Section 1324a(b) of Title 8 of the US Code. Essentially, this means that employers can only re-verify employment for current employees at the time the work authorization expires.

For assistance with this and other employment related issues, please contact Jennifer Douglas or Valerie Perdue. To reach us by phone call our offices at 707-261-7000 or 707-524-7000.

A recent $5.5 million settlement payment from one of the country’s largest alcoholic beverage wholesalers serves as a good reminder that California law restricts the amount of late fees and interest that can be charged in connection with the purchase and sale of alcoholic beverages to retailers.

Cal. Bus. & Prof. Code § 25509 provides that various alcoholic beverage manufacturers and wholesalers who sell and deliver alcoholic beverages to a retailer and who did not receive payment for such alcoholic beverages within 42 days of delivery shall charge the retailer 1% of the unpaid balance on the 43rd day and an additional 1% for each 30 days thereafter.

In 2014, a Los Angeles-based retailer, Wiseman Park, LLC (“Wiseman”), brought an action against Southern Glazer’s Wine and Spirits, LLC (“Southern”) in connection with Southern’s attempt to collect not only the Section 25509 statutory late payment penalty, but also a 1% per month “carrying charge” included in the parties’ written agreement. Wiseman alleged that Southern’s imposition of the separate carrying charge violated Cal. Bus. & Prof. Code § 17200.

In 2021, the action was changed to a class action lawsuit so that other retailers subject to Southern’s carrying charge could join the lawsuit.  In early 2024, the court preliminarily approved the parties’ proposed settlement agreement whereby Southern would make a $5.5 million payment to resolve the class action lawsuit, write off $44.1 million carrying charges yet to be paid by the retailers, and agree not to impose the carrying charge going forward. The deadline for retailers to opt out of, or object to, the class action was March 1, 2024. The final approval hearing for the settlement is scheduled for April 16, 2024.

Industry members should take this opportunity to review their agreements with retailers, and ensure any interest or penalties imposed on retailers do not exceed the statutory limits imposed by the ABC Act.

For assistance with this or any other Alcohol Beverage Law & Compliance or Wine Law matters, email Bahaneh Hobel, John Trinidad, or Alexander Mau.

The terms of the usage of PPP loans were just substantially relaxed by the Paycheck Protection Program Flexibility Act of 2020 – H.R. 7010.  PPP recipients now have 24 weeks (the “covered period”), to use the loan proceeds instead of the original eight weeks and still receive forgiveness of the loan amounts.  However, recipients of already issued loans can elect to still use the original 8 week period for purposes of their forgiveness application calculations if that is more favorable.

The PPP Flexibility Act also provides significant relief involving the provisions that reduce loan forgiveness amounts where staffing levels have declined.  It adds additional time to cure cuts in staffing or compensation levels that reduce forgiveness amounts, extending the deadline from June 30 to December 31, 2020. It also adds a provision that allows two exceptions to the forgiveness penalties for staffing reduction.  Where the loan recipient can document that it was unable to rehire staff because their prior employees, and similarly qualified employees, were not available, the forgiveness reduction will not apply.  It also will not apply where the recipient is unable to return to the same level of business activity as before February 15, 2020 due to sanitation, social distancing or any other customer or worker safety requirements related to federal COVID-19 requirements or guidance.

It also eases the prior restriction developed through the regulatory process that 75% of PPP loan funds were required to be spent on payroll costs.  The new PPP Flexibility Act provision requires only 60% of funds be used on payroll costs, allowing 40% to be spent on other specifically allowed costs of mortgage interest, rent and utility payments.

Further, it substantially extends the original PPP loan payment deferral terms. Originally, no payments of principal, interest or fees were required for six months. Now, no payments are required at all until a forgiveness determination is made, so long as the forgiveness application is filed within 10 months of the end of the “covered period.” That works out to a total of more than 15 months from when the loan is originated without any payments – the 10 months begin to run after the end of the extended 24 week period for using the funds. If the forgiveness application is not filed by the 10 month deadline, payments on the loans begin.

Finally, the PPP Flexibility Act removes a restriction on those that receive PPP loan forgiveness from also taking advantage of a delayed payment of employer payroll taxes.  Now, PPP loan recipients who seek loan forgiveness will also be able to use the deferred payroll tax payment provisions of Section 2302 of the CARES Act.  Those provisions allow for payment of 50 percent of specifically defined applicable employment taxes for 2020 to be paid by December 31, 2021, and the remainder by December 31, 2022.

In light of the wide-spread shut-downs and disruptions resulting from the Covid-19 pandemic, both the California Department of Alcoholic Beverage Control and the Alcohol and Tobacco Tax and Trade Bureau have recently provided guidance to wineries that are now venturing into the new world of “virtual” wine tastings that occur online.

ABC’s latest Notice of Regulatory Relief on Virtual Wine Tastings, issued on Friday April 24, provided certain guidelines for wineries conducting such virtual tastings while their licensed wine premises or tasting rooms are closed:

• Samples or tastes for wine tastings cannot be given for free to consumers.  Such samples or tastes must either be sold to the consumer, or included as part of a sale of wine or other products to the consumer.
• Any wine shipped to consumers, including small tasting samples, must be sent in a manufacturer sealed container.
• While there are no limits on the size of the tasting sample, any containers in which the tasting samples are sent must meet the federal regulatory guidelines for both labeling and standards of fill and any applicable state labeling regulations.
  • Acceptable standards for fill for wine under federal law include the following: 3 Liters, 1.5 Liters, 1 Liter, 750ml, 50ml, 375ml, 187ml, 100ml (3.4 fl. oz.) and 50ml (1.7 fl. oz).
  • Importantly, this means that shipping “tastes” to consumers in small vials that do not meet the above criteria would not be legal under federal or state law.

• Such shipments are subject to sales and/or other applicable taxes, just as typical direct to consumer sales would be.
• In accordance with ABC’s previous regulatory guidance, ABC is temporarily allowing the free shipment of wine to consumers, including samples for virtual wine tastings, during the Covid-19 emergency.
• Finally, it should be noted that the ABC’s latest Notice of Regulatory Relief specifically applies to the sale and shipping of wine and tasting samples within California.  Any sales and shipments of wines, including tasting samples, to consumers outside of California will need to comply with the laws of the applicable state to which the wines will be shipped.

The full text of the Third Notice of Regulatory Relief can be found here.

In response to an inquiry by Wine Institute, TTB provided guidance regarding virtual tasting samples being provided by wineries to consumers.   (see – https://wineinstitute.org/news-alerts/tasting-samples-for-virtual-winery-experiences-approved-by-ttb/ )

Per Wine Institute, TTB has stated that it will treat these wines just like any other taxable removals, subject to standard production and labeling requirements, payment of excise tax and applicable reporting. TTB’s guidance included the following:

• As noted above, samples must be provided in an approved standard of fill.
• Wine tasting containers must be properly labeled.

1. If the tasting sample is a wine that already has an approved Certificate of Label Approval (“COLA”), the winery is permitted to change the net contents on the wine as an allowable revision without having to submit a new COLA. If no COLA was previously obtained, the winery must apply for and obtain COLA approval prior to labeling of the wine tasting sample.
2. As a reminder, domestic wines must include the following information on the brand or back label as required under the regulations:  Brand name, Class and type designation, Appellation of origin (if required), Alcohol content, Bottler’s name and address statement, Government health warning statement, Net contents and Sulfite declaration. Assuming that the tasting samples being sent to consumers are in containers smaller than 187ml, please note that the minimum type size for all of the foregoing under federal regulations is 1mm.

• As noted above, wines use for tasting samples are treated just like any other removals for sales or consumption – the wines must be tax paid, all required records must be kept and all required reports must be filed.  Shipments of these containers must be treated the same as other types of removals from bond – for example, the wine must be tax-determined, and wineries must maintain the required removal from bond records.

For additional information on conducting virtual wine tastings, please contact Bahaneh Hobel or John Trinidad.

On April 24, H.R. 266, the Paycheck Protection Program and Health Care Enhancement Act, was signed into law. In addition to providing significant funding for health care providers ($75 billion) and testing ($25 billion), the stimulus package revives the CARES Act’s Paycheck Protection Program (PPP) with an additional $310 billion in funding for forgivable loans.  This expanded stimulus and relief package sets aside a portion of that funding for smaller lenders.  The additional funding does not change the limits on the availability of the PPP’s forgivable loans, nor change the priority of borrowers in obtaining those loans.

However, in reaction to various reports on public companies obtaining PPP loans, the Treasury Department updated its PPP FAQs and this morning, April 24, issued additional proposed rules regarding the required certification that the “current economic uncertainty makes this loan request necessary,” and provided a safe harbor for entities that may have certified this under a misapprehension of the standard to return funds that were obtained previously.  Borrowers must “certify in good faith that their PPP loan request is necessary.”

The legislation also makes one significant change to the CARES Act, by now allowing agricultural enterprises (i.e., farmers) to seek Economic Injury Disaster Loans.  The SBA’s EIDL Program is typically not available to agricultural enterprises, which would normally turn to the USDA’s FSA Emergency Farm Loan program in a natural disaster.  However, that program covers actual damages to crops.  With the change to the provision made in H.R. 266, agricultural enterprises can now seek EIDLs from the SBA for economic losses, including a $10,000 advance that does not need to be repaid.  However, even with the additional funding whether new applicants will be able to obtain EIDLs is unclear.  Applications are processed on a “first come, first served” basis, and reports indicate a very large volume of applications that have not been funded already.  The SBA had paused accepting applications for EIDLs pending additional funding.  Details on the EIDL program are available on the SBA’s website here.

Over the past forty-eight hours, the California Department of Alcoholic Beverage Control (“CA ABC”) has provided additional regulatory relief to licensees, including information relevant to industry members engaged in fundraising in connection with Coronavirus-related charities.  In addition, CA ABC and the Alcohol Tobacco Tax and Trade Bureau (”TTB”) announced that industry members will be permitted to delay certain payments and filings.  We have summarized each of these notices below, but the full text of these notices can be accessed through the links below:

1. CA ABC Second Notice of Regulatory Relief
2. CA ABC Notice re Renewal Fees
3. TTB Industry Circular re Postponement of Payments and Filings 

1. CA ABC Second Notice of Regulatory Relief

CA ABC issued a Second Notice of Regulatory Relief on April 1, 2020 (the “Second Notice”) temporarily loosening  it’s enforcement of certain regulations during the period that shelter-in-place restrictions are in place..  CA ABC had previously announced certain regulatory relief measures in its first Notice of Regulatory Relief (“First Notice”) on March 19, 2020 and we summarized that notice in this blog post.

Below is a summary of ABC’s Second April Notice.

FREE DELIVERY OF ALCOHOLIC BEVERAGES TEMPORARILY ALLOWED: ABC has temporarily provided licensees that can ship or deliver alcoholic beverages, whether pursuant to  the ABC Act or pursuant to the First Notice, the right to deliver or ship to consumers for free, without violating  Business and Professions Code Section 25600, which prohibits licensees from providing any “premium, gift, or free goods” in connection with the sale or marketing of alcoholic beverages.

DELIVERY HOURS OF ALCOHOL TO RETAILERS EXTENDED TO MIDNIGHT: Licensees (including manufacturers, winegrowers, and wholesalers) may now deliver alcoholic beverages to retailers between 12 AM and 8 PM (rather than starting at 3AM). The prohibition against Sunday deliveries remains in effect.  Note that if a retail licensee has a condition on its license limiting the hours during which it may allow deliveries, such condition shall remain in full effect.

CERTAIN CHARITABLE PROMOTIONS RELATED TO SALES OF ALCOHOL:  The CA ABC is relaxing its enforcement of restrictions on charitable promotions during this challenging time. Manufacturers, wholesalers, or other supplier-type licensees may advertise that a portion of the purchase price of the alcoholic beverages will be donated to a specified charitable organization related to Coronavirus-related relief, subject to the following limitations:

1. The donation and promotion involve a bona fide charitable organization providing relief related to the COVID-19 pandemic;
2. The promotion is in connection with the sale of sealed containers and does not encourage or promote the consumption of alcoholic beverages; and
3. The donation and promotion do not identify, advertise, or otherwise promote or involve any retail licensee.

Any promotions under this provision must conclude no later than June 30, 2020. ABC has stated it will reassess this measure at that time and determine if it should be extended further.

ABC previously stated in its FAQs that donations to nonprofits benefiting restaurant and hospitality workers in general are permissible, so long as it is just a donation to an organization and does not identify or involve any quid pro quo with specific retailers. In addition, gifts or donations (such as meals or gift cards) may not be made directly to retailer employees.

DISTILLED SPIRITS MANUFACTURERS PROVIDING HIGH-PROOF SPIRITS FOR DISINFECTION PURPOSES: Licensed distilled spirits manufacturers (Type 04) and craft distillers (Type 74) may produce denatured high proof spirits if such distilled spirits are produced for use in accordance with guidance from the Food and Drug Administration, which may be found in the FDA’s Policy (PDF). Undenatured distilled spirits are not included in this relief as they are considered alcoholic beverages. Licensees may provide such distilled spirits for free to any person, including retail licensees, if they are not used to promote the manufacturer’s alcoholic beverage products and are not provided in exchange for an agreement to purchase anything produced or distributed by the manufacturer.

***

Licensees should note that all of the above changes are only temporary and ABC will provide the industry 10 days’ notice before these guidelines terminate.  And although these provisions relax ABC’s enforcement of certain provisions of the ABC Act, the ABC did remind industry members that “[a]ll provisions of the Alcoholic Beverage Control Act, including …tied-house and trade practice restrictions, remain in effect and subject to enforcement unless the Department has provided express notice that specific provisions will not be enforced.”

As we noted in our earlier post, local regulations and restrictions may restrict the ability of licensees to engage in these activities, so you should always confirm that any activity in which you engage is permitted by local zoning or use permits.

2. CA ABC Grants 30 Day Grace Period for License Renewal Fees and Penalties

The CA ABC is providing licensees a 30 day grace-period for paying their annual renewal fees.

For Licensees who have previously missed their license renewal deadline and owe penalties as a result of failing to pay their renewal fee in a timely manner, the ABC is also granting a 30 day grace period.

The ABC has provided helpful tables in its notice that lay out the exact deadlines that have been extended and new due dates for license renewals.

3. TTB Postpones Tax Payment and Filing Deadlines

To help ease the burden on the alcohol beverage industry dealing with the impact of COVID-19 the TTB is postponing several filing and payment due dates for 90days where the original due date falls on or after March 1, 2020, through July 1, 2020. The TTB’s relief actions include:

1. Postponing tax payment due dates for wine, beer, distilled spirits, tobacco products, cigarette papers and tubes, firearms, and ammunition excise taxes.
2. Postponing filing due dates for excise tax returns.
3. Postponing filing due dates for submission of operational reports.
4. Postponing filing due dates for claims for credit or refund by producers.
5. Postponing filing due dates for claims by manufacturers of non-beverage products.
6. Postponing due dates for submission of export documentation.
7. Considering emergency variations from regulatory requirements for affected businesses on a case-by-case basis.
8. Reviewing requests for relief from penalties based on reasonable cause.

For a list of Coronavirus related resources, please see our Resources Page.  

If you have any questions regarding alcohol beverage licensing, please contact John Trinidad or Bahaneh Hobel.

The U.S. Department of the Treasury announced today, March 31, that the SBA and the Treasury expect the CARES Act programs to be up and running by this Friday, April 3, 2020. You can find resources related to the CARES Act programs on Treasury’s website here, which is updated often and currently includes an application for borrowers for the Paycheck Protection Program (PPP). Additionally, the SBA has a resource page for small business that can be accessed here.

Significantly, the SBA is now indicating that 75% of PPP loan amounts will need to be spent on payroll as opposed to other allowed uses in order to qualify for loan forgiveness.  It has also provided details on the loans, which will have relatively short, two year terms for the balance that is not forgiven, but with very low interest rates of 1%.

The Treasury and the IRS also have posted resources regarding the Employee Retention Tax Credit.  But note that you cannot receive the payroll tax credit if you receive a PPP loan.  Additional information on the tax credit is now on Treasury’s Frequently Asked Questions page here, and on the IRS FAQ page here. The IRS has created a new tax form for advance credits and is currently in the process of finalizing the instructions for the form.

Here are some additional details on the available loan programs:

The Paycheck Protection Program (PPP) in the CARES Act will be administered under the U.S. Small Business Administration’s loan provisions.  The SBA and Treasury Department will be releasing additional regulations and guidance to lenders on the program.  The loans will be obtained directly from banks, so you should contact your bank to learn if and how it plans to participate in the program.

Eligible employers can borrow 2.5 times their monthly payroll costs  and other specific costs as described below.  Loan amounts can be up to $10 million.  An employer must either already meet the list of eligibility by number of employees maintained by the SBA, or have up to 500 employees, whichever is greater.  Wineries can have up to 1,000 employees; other employers can check their industry size limit at https://www.sba.gov/size-standards/.

The PPP loans have significant benefits, most notably that 8 weeks of payroll costs and other specific expenses will be forgiven as long as the employer maintains its prior headcount, with some ability to reduce salary levels (discussed below).  Employers that have already reduced headcount can rehire employees and still obtain the full forgiveness amount.  The loans are capped at 4% interest, and have deferred payments for at least six months, and up to one year.  The interest on the loans will not be forgiven, so some payments on the loans need to be made.  The loans can have up to 10 year terms; have no recourse to a businesses’ shareholders, partners or members; and require no collateral or personal guarantee.

The PPP is a separate program from the SBA’s existing Economic Injury Disaster Loan (EIDL) program.  Businesses apply directly to the SBA for these loans, at https://covid19relief.sba.gov.  The EIDL program provides loans of up to $2 million to cover economic injuries incurred in a disaster.  The CARES Act has broadened the eligibility for those loans as well, similar to the Paycheck Protection Program.  For now, a borrower can apply for an EIDL loan and also be eligible for a Paycheck Protection Loan, and can refinance the EIDL loan into a future paycheck protection loan.  However, the EIDL loan is still a loan, and needs to be paid back.  It will not be forgiven, and the proceeds of an EIDL cannot go to cover payroll or other costs that a business would seek to borrow and have forgiven under the PPP.  Note that once the PPP loans become available, business will no longer be eligible for both programs, and there is thus a narrow window to obtain an EIDL and still participate in the PPP.  Also, participants in the PPP loan forgiveness will not be able to use the employment tax credit or payroll tax deferrals in section 2301 and 2302 of the CARES Act.

As for the PPP loans, the loan amount can include 2.5 times the prior year’s average total monthly payroll costs (modified for seasonal employers or new businesses), subject to important limits below.  Payroll costs include:

(aa) the sum of payments of any compensation with respect to employees that is a—

(AA) salary, wage, commission, or similar compensation;

(BB) payment of cash tip or equivalent;

(CC) payment for vacation, parental, family, medical, or sick leave;

(DD) allowance for dismissal or separation;

(EE) payment required for the provisions of group health care benefits, including insurance premiums;

(FF) payment of any retirement benefit; or

(GG) payment of State or local tax assessed on the compensation of employees; and

(bb) the sum of payments of any compensation to or income of a sole proprietor or independent contractor that is a wage, commission, income, net earnings from self-employment, or similar compensation and that is in an amount that is not more than $100,000 in 1 year, as prorated for the covered period…

Importantly, in calculating the payroll costs, the total does not include:

(aa) the compensation of an individual employee in excess of an annual salary of $100,000, as prorated for the covered period;

(bb) taxes imposed or withheld under chapters 21, 22, or 24 of the Internal Revenue Code of 1986 during the covered period;

(cc) any compensation of an employee whose principal place of residence is outside of the United States;

(dd) qualified sick leave wages for which a credit is allowed under section 7001 of the Families First Coronavirus Response Act (Public Law 116–127); or

(ee) qualified family leave wages for which a credit is allowed under section 7003 of the Families First Coronavirus Response Act (Public Law 116–127)….

Thus, in determining eligible loan amounts, the pro rata monthly portion of salary for an employee earning over $100,000 per year is not included (but the amount under $100K annualized is included.)

The loan proceeds can be spent on a variety of business costs and expenses set out in the SBA Act; however only a narrow category of costs can be forgiven under the CARES Act.  These are the amounts incurred and payments made over the 8 weeks after the loan is obtained (not to exceed the principal amount of the loan) for:

(1) Payroll costs.

(2) Any payment of interest on any covered mortgage obligation (which shall not include any prepayment of or payment of principal on a covered mortgage obligation).

(3) Any payment on any covered rent obligation.

(4) Any covered utility payment.

PPP loan proceeds used for any other purpose will not be forgiven.  The lender will require documentation to prove that the funds to be forgiven were spent on allowed items.  The Treasury Department will be providing regulations as to how the loan forgiveness program is to be implemented.

The amount of forgiveness will be reduced if the business reduces its employee headcount below its previous average full-time employee level, based on the average number of full-time equivalent employees for each pay period within a month, either during the period from February 15, 2019 to June 30, 2019; or from January 1, 2020 to February 29, 2020, at the business’s election.  Seasonal employers are required to use the February to June period.  Employers have the opportunity to re-hire employees that have been released as a result of the current crisis and still take advantage of the full loan forgiveness amount, as long as employee full-time equivalent returns to their prior levels by June 30, 2020.

There is more flexibility as regards to salary reductions without losing the full forgiveness amount.  The amount of forgiveness will be reduced by the amount of any reduction in salary that exceeds 25%, but only for each employee that did not make more than $100,000 on an annualized basis during any single pay period in 2019.  In other words, salaries for those making less than $100,000 per year can be reduced by up to 25% without impacting the loan forgiveness amount.  This also means employees who earned more than $100,000 on an annualized basis in any pay period in 2019 (even those that received a raise to $100,000 annualized only in the last pay period of 2019) could have their salaries reduced by more than 25% without decreasing the available loan forgiveness.  Employers also have the opportunity to remedy any reductions in salary by June 30, 2020 as well.

For a list of Coronavirus related resources, please see our Resources Page.  

While numerous summaries and reports on the stimulus bill enacted on Friday are circulating, the following are the key provisions in the CARES Act that will impact employers, and small employers in particular.  “Small” under the CARES Act includes all business of up to 500 employees in addition to the existing definition of small business maintained by the U.S. Small Business Administration.  For wineries, that limit is 1,000 employees.  Other employers can check their industry limits at https://www.sba.gov/size-standards/.

Important Changes to Families First Coronavirus Response Act (“FFCRA”):

• Allows an employee who was laid off by an employer on March 1, 2020 or later to have access to paid leave under the EFMLA if they are rehired by the employer and they worked for the employer for at least 30 of the last 60 calendar days prior to being laid off.
• Allows employers to receive an advance of the payroll tax credit provided under the FFCRA for qualified wages paid for EMLA and EPS leave. Forms and instructions for this process are to be provided by the Secretary of the Treasury.

Unemployment Benefits:

• Emergency increase in unemployment compensation benefits:
  • Provides an additional $600/week recipients of UI benefits or Pandemic Unemployment Assistance from the date the State enters into the agreement with the Secretary of Labor through July 31, 2020.
  • Payments will be processed through each State along with regular state UI benefits and can be provided in the same check or a separate check, but must be provided on a weekly basis.
• Federal Funding For First Week of Unemployment Period with No Waiting Period:
  • Provides 100% reimbursement to States for benefits paid during the first week of unemployment if States waive the one week waiting period for UI benefits. California has already waived the 1 week waiting period.
• Pandemic Unemployment Assistance Program:
  • Creates a new Pandemic Unemployment Assistance program (through December 31, 2020) to help those not traditionally eligible for unemployment insurance (UI) benefits, including self-employed individuals, independent contractors, those with limited work history and those who are unable to work as a result of the coronavirus public health emergency.
• Pandemic Emergency Unemployment Compensation:
  • Provides an additional 13 weeks of UI benefits to those who remain unemployed after all weeks of state unemployment are no longer available.
  • The amount provided is the same as above – the regular amount provided by the State plus an additional $600/week.

SBA Loan and Loan Forgiveness Provisions

• Creates a loan program for employers with fewer than 500 employees and other SBA defined small businesses to borrow up to 2.5x their monthly payroll (with a maximum loan amount of $10 million).  Sole proprietors and independent contractors are also eligible.
• Loans can be used to cover payroll and other specified compensation including: healthcare costs, mortgage interest (but not principal), rent, utilities, and interest (but not principal) on other preexisting debt obligations.
  • Payroll costs means any compensation given to employees that is a salary, wage, commission, payment of cash tip or equivalent, payment for vacation, family, medical, or sick leave (but not wages paid under the FFCRA), allowance for dismissal or separation, health care benefits including premiums, retirement benefits, and state or local tax assessed on compensation.
  • Payroll costs cannot exceed $100,000 annually for an individual employee (prorated).
  • Payroll costs do not include qualified sick and family leave wages under the FFCRA for which a credit is already allowed, among other specified exclusions.
• Interest rates cannot exceed 4%, and all payments must be deferred for at least 6 months and up to 1 year. Note that interest on the loans will not be forgiven.
• Loans do not require a personal guarantee or collateral, and are nonrecourse to businesses’ shareholders, partners and members. Employers are also not required to show that they were unable to obtain credit elsewhere.
• The principal amount that is used to cover payroll, mortgage interest, rent and utilities (but not the other allowed uses) for the 8 weeks following the loan approval will be forgiven as long as employee numbers and payrolls are maintained
  • Allows forgiveness for extra wages provided to tipped employees.
• The forgiveness amount is reduced proportionately by any decrease in the number of employees as compared to the prior year. Forgiveness is also reduced if any employee who earns under $100K on an annualized basis has their wages reduced by more than 25%. There may be de minimis exceptions to these restrictions described in forthcoming regulations.
  • Exemption for Re-Hires: To encourage employers to rehire any employees who have already been laid off due to the COVID-19 crisis, borrowers that re-hire workers previously laid off will not be penalized for having a reduced payroll at the beginning of the period. This applies to a reduction in force or reduction in salary for 1 or more employees during the period beginning on February 15, 2020 and ending 30 days after the enactment of the Act. Employers must re-hire employees (or eliminate the reduction in wages) no later than June 30, 2020.
• The remaining balance after forgiveness can have a maturity up to 10 years.  Prepayment penalties are not allowed.

Additional Business Provisions

• Payroll Tax Credit for Employee Retention:
  • The provision provides a refundable payroll tax credit for 50 percent of wages paid by employers to employees during the COVID-19 crisis. The credit is available to employers whose: (1) operations were fully or partially suspended, due to a COVID-19-related shutdown order, or (2) gross receipts declined by more than 50 percent when compared to the same quarter in the prior year.
  • The credit is based on qualified wages paid to the employee.
    • For employers with greater than 100 full-time employees, qualified wages are wages paid to employees when they are not providing services due to the COVID-19-related shutdown order.
    • For eligible employers with 100 or fewer full-time employees, all employee wages qualify for the credit, whether the employer is open for business or subject to a shutdown order.
  • The credit is provided for the first $10,000 of compensation, including health benefits, paid to an eligible employee. This does not include any wages paid to employees under the FFCRA for EFMLA or EPS leave.
  • The credit applies to wages paid after March 12, 2020, and before January 1, 2021.
  • The credit is reduced by any amounts credited under the FFCRA for wages paid under EMFLA or EPS leave.
  • Employers who receive a covered loan from the SBA (see above) are not eligible for the credit under this section.
• Delay of payment of payroll taxes:
  • Allows employers to defer payment of the employer share of the Social Security tax they otherwise are responsible for paying to the federal government with respect to their employees.
  • The deferred employment tax is required to be paid over the following two years, with half of the amount required to be paid by December 31, 2021 and the other half by December 31, 2022.
  • The payroll tax deferral period runs from the date of enactment of the Act until December 31, 2020.
  • This section does not apply if an employer had their indebtedness forgiven under the provisions of this Act for a covered SBA loan.
• Modification of Net Operating Losses (“NOL”):
  • An NOL arising in a tax year beginning in 2018, 2019, or 2020 can be carried back five years. It also temporarily removes the taxable income limitation to allow an NOL to fully offset income.
• Modification of Limitation on Business Interest:
  • Temporarily increases the amount of interest expense businesses are allowed to deduct on their tax returns, by increasing the 30-percent limitation to 50 percent of taxable income (with adjustments) for 2019 and 2020.
• Amendment Regarding Qualified Improvement Property:

Enables businesses, especially in the hospitality industry, to write off costs associated with improving facilities immediately, instead of having to depreciate those improvements over the 39-year life of the building.

For a list of Coronavirus related resources, please see our Resources Page.  

It is important that employers stay on top of their employees’ workplace safety.  We recommend disseminating information to your employees about the COVID 19 outbreak and staying on top of developments. Below is a sample communication, but, of course, you should make sure it accurately reflects your workplace and the steps you are taking.  One of the biggest issues will be how to handle pay if extended absences become necessary. There is no one size fits all answer.  It should be handled consistently within your company and will depend on your current policies, any government assistance that may become available and the extent to which your employees may be out of work.

SAMPLE NOTICE:

Given the spread of coronavirus disease 2019 (COVID-19) in the U.S. in recent weeks, we ask that you please follow these simple guidelines in an effort to keep all employees healthy and safe. While vigilance is asked of all of you, we do not believe there is cause for panic. If you have any questions or concerns, please contact [insert name].

• Wash your hands often – Use soap and water and wash for at least 30 seconds, or if soap and water are not available use hand sanitizer that is at least 60% alcohol.
• Do not touch your face.
• Clean and disinfect surfaces often.
• Cover your cough or sneeze with a tissue and then throw it in the trash. If a tissue is not available, use your elbow (not your hands) and turn away from any people nearby.  The CDC does not recommend wearing masks.
• Avoid shaking hands with people if possible, including clients, customers and guests – this is for your own protection and theirs.
• Health care providers are requesting that anyone with fever, cough, or shortness of breath contact the doctor or hospital in advance of going and follow any procedures they have in place.
• We are monitoring our workplace safety, and in order to do that it is important that you notify [Human Resources/person’s name] if you will be out of the office due to any illness. If you are feeling sick, stay home from work. Any specific medical information will be kept confidential.
• Immediately notify [Human Resources/person’s name] if you were exposed to someone who has tested positive for COVID-19, or if you were exposed to someone who has been put in quarantine due to possible contact with someone with COVID-19.

Information is evolving daily and we encourage you to designate a point person to stay on top of the situation so that you can effectively respond to the needs of your workforce.  For further questions contact Jennifer Douglas.

As suspected, legal challenges have been made to both AB-51, which prohibits mandatory arbitration in employment, and AB-5, the new independent contractor test.  Below is a brief summary of the challenges and what it may mean for your business.

Arbitration

As of December 30, 2019,  California is prohibited from enforcing AB-51.  Mandatory arbitration is currently still binding.

The United States and California Chambers of Commerce along with other interested parties filed an action to enjoin California’s implementation of AB-51 and sought a temporary restraining order to halt the January 1, 2020 effective date.  The Court determined that it was more likely than not that the moving party (Chamber of Commerce) would prevail at the January 10, 2020 hearing barring implementation of the law.  The primary argument for barring the implementation is that it is preempted by the Federal Arbitration Act (“FAA”).  A link to the Court’s ruling can be found here. At the January 10 hearing, the Court requested supplemental briefing from the parties regarding jurisdictional issues and extended the temporary restraining order until January 31, 2020. The temporary restraining order has been modified to limit its application and protection to arbitration agreements covered by the FAA.  The FAA is applicable to an employment relationship involving interstate commerce, which is interpreted broadly.

We anticipate that the Court will find that AB-51 is preempted and that mandatory arbitration agreements, if lawfully drafted, will continue to be enforceable.

Independent Contractors

AB-5 has faced similar legal challenges, however, there has not been an order providing a blanket prohibition of its enforcement.  As a reminder AB-5 codified a three-part test called the ABC test to determine whether someone providing services to a company is an employee or independent contractor.  All three parts must be shown, which has led many industries vulnerable to claims that contractors are in fact employees.  The law provided numerous exemptions from the ABC test, but not all industries were granted such exemptions.  Independent truck drivers, freelance journalists, and ride-share and delivery drivers (Uber and Postmates) all filed suit against the state of California concerning the enforcement of the law. So far, only truck drivers have obtained a temporary restraining order as to its enforcement. On January 16, 2020, the Court granted a preliminary injunction prohibiting California from enforcing AB-5 against truck drivers during the lawsuit. The state is expected to appeal the decision to the Ninth Circuit. You can read the Court’s decision here.

For now, the law is in effect for everything and everyone else.

If you have any questions about this please contact Jennifer Douglas or Marissa Buck to discuss.

Ongoing Revisions to County Permitting Policies Require Winery Attention

The Napa County Board of Supervisors has undertaken a series of major regulatory moves involving winery and vineyard permitting over the course of the past year. Critics of the various regulatory changes abound on all sides of the issues, with the board navigating a difficult path between wine industry, agricultural, environmental and anti-growth interests.

First, on Dec. 4, 2018, the board adopted Resolution No. 2018-164, generally referred to as the “Compliance Policy.” Among other items, the resolution created a March 29, 2018 deadline for applications to cure existing permitting nonconformance; a process to request a “status determination” of existing rights; and a mandatory winery production volume and grape source reporting program. As expected, this Compliance Policy has generated a greater than normal workload for the county, slowing the processing times for most use permit related applications. The Compliance Policy dictates that future applicants with operations exceeding their use permit limits will need to document compliance with existing use permit limitations for one year before any modification to their permit can be considered.

Second, the board passed the Water Quality and Tree Protection Ordinance (No. 1438) on April 9, 2019. A reaction to the narrow defeat of “Measure C” on the June 2018 ballot, the ordinance increased tree and vegetation retention and preservation requirements, tree mitigation ratios, established setbacks from municipal water supply reservoirs and wetlands, and provides for new stream setbacks for smaller order streams. New projects will need to address the additional limitations created by those rules. It remains to be seen how much impact the new rules will have on prospective development.

Third, with the pendulum swinging back towards permit holders and future applicants, the board at its April 23, 2019, meeting adopted Resolution No. 2019-53 to clarify the applicability of the county’s road and street standards. While in the past all use permit modifications triggered the need to comply with the most current driveway fire safe access standards, those standards have seen multiple updates making even relatively new wineries seeking a minor permit modification incur significant costs to upgrade access to the latest 22-foot width requirements. The policy change clarified that only a major modification to a use permit triggered the need for such roadway updates. This small but significant change makes requesting a minor modification to a use permit much more palatable to many applicants, since it avoids the sometime significant costs of constructing driveway improvements that were previously required for even minor operational changes or small remodeling projects.

And fourth, on May 21, 2019, as a continuation of the swing towards addressing project applicant concerns, the board debated and then directed the planning director to study changes to the use permit application and modification process, with an eye towards making permitting for small wineries easier, as well as clarifying what types of permit modifications fall within the minor and major modification categories. The development of new or revised rules in that regard is ongoing, and will continue to be evaluated by the board throughout the remainder of the year.

The true impact or benefit of these rule changes is not entirely clear at this point. But we can see the beginnings of the impacts of the Compliance Policy. Initial reporting in the North Bay Business Journal indicated that the Compliance Policy had generated significantly fewer applications than anticipated – 54 applications, including 33 for use permits and 21 for status determinations. The first key piece of the Compliance Policy – applications to update or conform activities to permit limits – are slowly working through the county’s planning process. The Compliance Policy provided an incentive that those that applied prior to the deadline could continue with their current operations while their applications are processed.

The second key Compliance Policy option – status determinations – have also been working their way through the County’s review process. Modern Napa county Use Permits are lengthy documents, containing a litany of generally-boilerplate standard conditions of approval, which are tailored to each permit as appropriate. Historic permits vary significantly however, with lesser detail than their modern brethren. This variation between older and newer use permits was one of the policy rationales for including this option as part of the Compliance Policy, as a winery owner may not be fully aware of how the county currently interprets its use permit. To allow for wineries to take advantage of this process, the Compliance Policy provided a tolling of the deadline to submit an application for winery owners who applied for a status determination prior to the March 29, 2018 application deadline.

This resulted in an extension of time to file a use permit modification, with the Compliance Policy’s benefits of continuing current operations. Once the owner receives the county’s interpretation of its permit, it can then determine what if any use permit modification for which it might want to apply. As those status determinations are issued, additional applications for modifications of use permits are certain to be submitted. While the status determinations have not been released publicly, we have seen the county consistently opine that the operations approved by a use permit include only those anticipated in the applications for those permits, and additionally limited by the specific conditions in the permit approval documentations.

The last component of the Compliance Policy is the mandatory wine volume and grape source reporting requirement, which as with the other deadlines has seen its stated beginning date of July 1, 2019 come and go with no such program being actually implemented. However, this mandatory reporting program is being developed by the county and when ultimately adopted will require submission of documentation setting forth the volume of wine produced and the source of grapes used in that production at each Napa winery. The mandatory volume and grape source reporting policy is slated to trigger an inspection and full evaluation of all permit compliance if that reporting shows a violation of either limit. The promise of such an inspection may have encouraged voluntary applications to cure existing issues, especially if the recent larger than average harvests caused a production limit exceedance. However, that policy has yet to actually be implemented, and it remains to be seen when it will be put into practice.

In sum, there have been a number of developments that have put the focus on winery permitting in Napa county over the last year. The landscape is likely to change further as additional permitting process changes are evaluated and debated, and the mandatory reporting process goes into eï¬Â€ect. Napa county wineries need to stay alert: operating conditions are subject to sudden change.

1 https://www.northbaybusinessjournal.com/northbay/napacounty/9464823-181/napa-wine-vineyard-regulation 

2  With  some  limited  exceptions  for  wineries  not  in  Agricultural  Preserve  or  Agricultural  Watershed  zoning  districts,  or  not subject to the 75% Napa County grape source rule,  which  do  not  need  to  provide  grape source data.  Volume reporting requirements still apply to all wineries however.

Joshua S. Devore
Of Counsel
Josh has extensive experience solving complex problems.  His work spans securities oï¬Â€erings, land use and environmental permitting; technical issues from internet privacy and website policies to smoke taint in wine grapes. From ordinary to complex litigation, his experience has crossed multiple industries from finance to technology to wine and has included enforcement actions and class actions. Today, much of his work is focused on the wine industry, but it still spans a wide range of litigation issues from CEQA petitions, winery use permits, cannabis, securities and compliance.

Since the 2016 election there has been speculation of wide-spread immigration actions by the United States Immigration and Customs Enforcement (“ICE”).  Repeated announcements from the President for “round-ups”, recent mis-match letters from the Social Security Administration (“SSA”) and court action concerning the census citizenship have many in the community on edge.

While it is difficult to predict what will happen, employers should be prepared in the event ICE raids or audits their workforce.  Employers are in a difficult spot – caught between federal and state law.  They must not knowingly employ an individual who is not authorized to work in the United States, but they also must not discriminate against an individual because of the individual’s immigration status, citizenship or national origin.  And for many, the legal reality is overshadowed by the human reality that many long term employees with family and ties to the community may be undocumented and at risk.

In light of announced raids, employers should review current legal authority concerning what they can and cannot do should ICE arrive at the worksite.  A Federal Court temporarily blocked as unconstitutional portions of AB 450, California’s 2017 expansive immigration law.  Most relevant for employers is that California cannot penalize them if they refuse to allow ICE or other enforcement agencies access to employee records or into nonpublic areas without a judicial warrant or subpoena.  Employers may choose to voluntarily allow such access, but they are also not required to provide it.

Employers should communicate to their public facing staff what they want to happen should a federal agency, such as ICE arrive on the premises.  At the very least personnel should know who to contact and should be instructed to ask the agency personnel to wait in a particular area until the designated individual can be reached.

In preparation for any request to see employee records, either with notice or without, employers should conduct an audit of their Form I-9 records.  A Form I-9 (Employment Eligibility Verification form) must be completed for all employees upon hire.  The form is very specific. An audit by ICE will involve whether the form was completed properly by the employer and employee.  ICE may fine employers for technical violations and if it appears that wide spread fraud surrounds the forms the employer can be subject to more substantial penalties and criminal charges. For detailed information about how to properly compete an I-9, the United States Citizenship and Immigration Services has a helpful manual, which you can find here.

While SSA Acting Commissioner Nancy Berryhill recently announced to Congress that no action will be taken against employers who did nothing in response to SSA’s March 2019 no-match letters, the President’s recent statements that he will direct federal agencies to work together to share information about the location of individuals who may be in the United States unlawfully, raises serious concerns that there may be additional scrutiny of employer records.  For employers it is time to make sure your records are in order.

If you have any questions about your specific situation, contact Jennifer Douglas or Lisa Sennott.

The U.S. Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau (“TTB”) recently announced upcoming changes to the Certificate of Label Approval (“COLA”) application review process.  Specifically, TTB will be adding a new “Conditionally Approved” status allowing applicants to fix minor errors in their COLA applications without having to go to the back of the line.

Currently, when a TTB specialist believes a COLA application requires changes (even a minor change such as the application containing a spelling of the brand name that is slightly different from the actual label), the application goes back into the queue and needs to wait for further review and approval.

In an effort to streamline the label approval process, TTB specialists will soon be able to propose changes to the brand name, fanciful name, appellation, or grape varietal fields of COLA applications, and designate the application as “Conditionally Approved.”  Applicants will be notified by email of the change in status and have 7 days to review the proposed changes.  If the applicant agrees with the proposed changes, it can accept those changes through COLAs Online, at which point the application’s status will automatically change to “Approved.”  Alternatively, if the applicant disagrees with the proposed changes, it can decline those changes, at which point the application’s status will automatically change to “Needs Correction.”  If the applicant declines the corrections because it believes the original entries were correct or otherwise wishes to provide the specialist with additional information, the applicant may provide an explanation in the “Notes to Specialist” field on COLAs Online.  Failure by the applicant to accept or decline the proposed changes will result in the application being designated as “Needs Correction,” and the any revised applications will go to the back of the queue.

This new status is only intended for situations where the application would have been approved, but for the fact that the information in one or more of the above referenced fields is inconsistent with the submitted label.  Where there is some other additional deficiency in the application, such as a lack of a Health Warning Statement, the specialist will return the application for correction without making any proposed changes, and the application goes back into the queue.

TTB’ has not stated when this change to COLAs Online will be implemented, but is holding a TTB webinar on Tuesday, June 25 from 2-3pm Eastern to discuss the new Conditionally Approved status and other recent COLAs Online enhancements.

By Brian Noack (Law Clerk) and John Trinidad (Attorney)

On May 2, 2019 the USPTO released its Examination Guide 1-19, Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill (here: https://www.uspto.gov/sites/default/files/documents/Exam%20Guide%201-19.pdf) , which aims to clarify the procedure for examining marks for cannabis and cannabis-derived goods and for services involving cannabis and cannabis production following the 2018 Farm Bill. The Guide discusses federal trademark office examination of applications for trademarks and services marks for which the claimed goods include cannabis or cannabis-derived goods such as cannabidiol (“CBD”).

The guide explains that CBD is a constituent of cannabis encompassed within the definition of marijuana under the Controlled Substances Act (CSA), 21 U.S.C. §802(16) and that the USPTO therefore refuses registration when an application identifies goods encompassing CBD or other extracts of marijuana, which are unlawful under federal law and do not support valid use of the applied-for mark in interstate commerce.

However the big news is that, pursuant to the terms of the 2018 Farm Bill which removes hemp (defined as cannabis containing no more than 0.3% THC on a dry-weight basis under Section 297A) from the CSA, the USPTO will no longer refuse registration for applications filed on or after December 20, 2018 for goods derived from “hemp” if the application identification of goods specified that they contain less than 0.3% THC, thus limiting the scope of the resulting registration to goods which are compliant with federal law. For applications filed before December 20, 2018, registration will be refused due to unlawful use or lack of bona fide intent to use in lawful commerce under the CSA (such applications not having valid basis to support r registration as of the filing date because the goods violated federal law). Those applications claiming lawful hemp-derived goods containing less than 0.3% THC will be given the option to amend the filing date to December 20, 2018 and filing basis to overcome a CSA refusal.

The Guide points out that CBD or hemp-derived products used in food or dietary supplements is regulated under the Federal Food Drug and Cosmetic Act (FDCA) and registration of marks for foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful under the FDCA, even if derived from hemp, as such goods may not be introduced lawfully into interstate commerce. 21 U.S.C. §331(ll). Applications covering services involving cannabis or cannabis production must likewise be compliant with the CSA and 2018 Farm Bill, i.e., the services must involve hemp containing less than 0.3% THC and the application filing date and basis must be amended accordingly. Applicants are advised that USPTO Examining Attorneys are authorized to issue informational inquiries regarding applicants’ authorization to produce hemp, and applicants may be required to provide additional statements of record regarding compliance with the 2018 Farm Bill.

For more information regarding IP protection for cannabis and alcohol beverage products, contact Chris Passarelli, cp@dpf-law.com

The current federal government shutdown has put a halt to TTB’s regular operations and that has had a ripple effect on the alcohol beverage industry.  Wine producers and importers must obtain a Certificate of Label Approval (COLA) for wines they sell in interstate commerce.  While the online system for submitting COLA applications is still operational, TTB is not reviewing or approving those submissions during the shutdown period.   This may result in a delay in the ability to introduce new wines in the market.

Thankfully, there are a number  of permissible label revisions that do not trigger a need for a new COLA.  For example, if you have a COLA for your 2017 rosé and the only change in the label for your 2018 rosé is the updated vintage date, you’re in luck:  no need for a new COLA.

We recommend that wineries and importers familiarize themselves with this list of allowable revisions.  So long as your planned label changes fall within one of those categories, the temporary pause in COLA application review will not affect your ability to bottle and release that wine.

For more information regarding federal labeling regulations and COLAs, please contact John Trinidad. 

The recent news of lawsuits filed against New York wineries has caused industry members to ask if they face any litigation risk if their websites are not accessible to people with disabilities under the Americans with Disabilities Act (“ADA”).  The answer is “maybe.”  There is considerable ambiguity in the law as to which companies are required to make their websites ADA-compliant and what actually constitutes ADA compliance.

This blog post provides a brief overview of the New York litigation and the current status of federal law governing websites and the ADA.  Wineries should check in with their information technology vendors to determine what, if any, accessibility features are currently part of their websites, not only to avoid potential claims, but also to make sure their businesses are open to all consumers.

What’s the New York case all about?

The lead plaintiff in these actions is legally blind and uses screen-reading software to access website content.  That software only functions correctly if the website incorporates certain screen-reading compatible features, such as alternatives text for images and videos.  Plaintiff claims that the ADA requires the winery to make certain information on their websites accessible to visually impaired persons, including:  e-commerce features, wine club membership instructions, ability to book or make reservations, hours of operation, and location of the winery.  Plaintiff ultimately claims that Defendant’s failure to remedy such accessibility barriers is a discriminatory practice against blind and visually impaired people, in violation of the ADA and certain New York laws.  Plaintiffs are seeking injunctive relief on their ADA claim and an order requiring the wineries to take “all the steps necessary” to make their websites compliant with the ADA.

This type of case is not unique to the wine industry.  Over the past two years, there have been a slew of cases filed against businesses for allegedly violating the ADA by not making their websites accessible to people with disabilities.

What is the ADA?

The ADA is a federal civil rights law that prohibits discrimination based on disability.  Under Title III of the ADA, any place of “public accommodation,” such as businesses generally open to the public, must provide individuals with disabilities full and equal enjoyment of goods, services, facilities, and accommodations.  Places of public accommodation include shops and facilities serving food or drink.

States have also adopted their own laws that require businesses to provide access to persons with disabilities.  For example, New York State’s Civil Rights Law and California’s Unruh Civil Rights Act set forth those states’ accessibility requirements.  Local governments may have their own regulations, too.  Plaintiffs in the New York winery lawsuits have claimed that the wineries are also in violation of the New York City Human Rights Law because they operate a physical location in the city.  Note – this blog post focuses solely on the ADA requirements, and compliance with state and local laws regarding accessibility are beyond the scope of this article.

Do winery websites need to be ADA compliant? 

Here’s where things get confusing.  Courts have been all over the board on which businesses must make their websites ADA compatible.

 In general, websites that service places of public accommodation are required to make their websites accessible to visually impaired persons.  In the wine industry context, this means that, wineries that have tasting rooms, or that allow for tours, tastings, and on-site purchases, likely need to make their website accessible to the visually impaired under the ADA.

Wineries that have no physical location of their own for customers to visit, taste, or purchase wine are less at risk from an ADA claim.  The Ninth Circuit Court of Appeals has held that a website that is not tied to a place of public accommodation or that is attached to a place that does not qualify as a public accommodation is not subject to the ADA. (eg. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9^th Cir. 2000)). That being said, there are cases in which courts have concluded that a stand-alone website service without a physical location can itself be considered a place of public accommodation, and subject to ADA requirements.  Moreover, in 2014, the DOJ entered into several settlements agreements with online-only vendors, requiring each time, compliance with the WCAG (see below).  In other words, not having a physical location may not be enough.

How do I make my website ADA-compliant? 

Ready for even more confusion?  Currently, there are no federal guidelines for how to make a website ADA compliant.  The Department of Justice (“DOJ”) had contemplated adopting a new rule to outlinehow private companies’ websites can comply with the ADA.  But in 2017, the department decided to halt its proposed rulemaking activity on this front.

Although the DOJ failed to issue guidance on website accessibility requirements, the World Wide Web Consortium, an international standards organization, has published coding standards for accessibility, the Web Content Accessibility Guidelines, often referred to as WCAG 2.0 AA.

While there is nothing in federal law that states that implementation of WCAG 2.0 AA automatically means a website is ADA compliant, the complaints filed against the New York wineries all seek relief that would require the wineries to comply with WCAG 2.0 AA.  Moreover, the DOJ has previously argued in ADA enforcement actions that companies can comply by making their websites and mobile apps conform to WCAG 2.0 AA standards.

 Action Items for Wineries

Given the fluid state of the law surrounding the application of the ADA to websites, there is no clear answer as to which businesses must make their websites ADA-compatible, or even what is required for a website to be considered ADA-compatible under federal law.

Wineries should check in with their IT vendors and professionals to determine if their websites, apps, and mobile sites have implemented accessibility features per the WCAG 2.0 AA, and if not, assess if the cost of doing so would cause hardship to the company.  Implementing such features may not only help stave off legal actions, but would also signal that your winery is accessible to all consumers.

 For more information about these issues, please contact John Trinidad or Louise Mercier.

UPDATE (11/13/2018):  The Wine Institute recently circulated additional information regarding the ADA and winery websites.

Governor Brown recently signed into law AB2452, a bill that grants wineries broader privileges in the use of social media to promote certain events held at retailer premises, such as winemaker dinners.  The bill was introduced by Assembly member Cecilia Aguilar Curry, co-authored by State Senator Bill Dodd, and sponsored by the Napa Valley Vintners.

The new law amends three tied-house exceptions in the California ABC Act that govern the organization and promotion of certain events held at on- and off-premise retailers that involve supplier-side licensees (ABC Act Sections 25503.4, 25503.56, and 25503.57).   Those laws restricted how the participating supplier could advertise and promote those events.  For example, the advertisement could only list the name and address of the retailer and expressly prohibited pictures or illustrations of the retailer’s premises.

The new bill allows suppliers (including wineries) to now include the following in their advertisements of those permitted retailer-hosted events:

 ADDITIONAL RETAILER INFORMATION – The supplier’s advertisement for the event can now include an expanded range of information about the host retailer (including the retailer’s website address and “other electronic media”) so long as such information is “relatively inconspicuous in relation to the advertisement as a whole.”

 PICTURES & ILLUSTRATIONS – The new bill allows participating suppliers to include “pictures, illustrations, and depictions of the retailer’s premises, personnel, and customers” in the event advertisements.  Videos, however, are expressly prohibited.

 REPOSTING OF SOCIAL MEDIA POSTS –   Participating suppliers are now allowed to repost social media posts that advertise the event, including posts by the host retailer, provided that the reposted advertisement complies with all other content restrictions in the ABC Act.

Wineries and  other suppliers should note that these expanded advertising privileges only allows them to advertise in connection with specific events governed by ABC Act Sections 25503.4 (wine-related events, including winemaker dinners), 25503.56 (instructional tasting event at off-sale retailer premises under a Type 86 license), and 25503.57 (instructional events at on-sale retailer premises).  It is not a blanket permission to begin photographing and posting about retailers on supplier social media accounts.

The new law goes into effect on January 1, 2019.

If you have any questions about the new law, tied-house issues, or winery use of social media, please contact John Trinidad.

DISCLOSURE:  DPF represents Napa Valley Vintners on a variety of matters, and advised on the proposed legislation. 

No one expects to have to go to court when they start a business deal or venture, or when they plant a vineyard or purchase real estate, but in today’s world no industry is free from lawsuits, particularly not the wine industry. Disputes over grape purchase agreements (duration, termination, quality standards, etc.), vineyard development agreements (quality of vines, planting and maintenance, and sufficiency of site evaluation and preparation, etc.), wine storage agreements (condition of wine, losses, damage to wine, etc.), custom crush agreements (compensation, quality control, etc.), real property matters (title, ownership, boundaries, easements, etc.), and even employment relationships (statutory requirements, executive agreements, workplace safety, etc.) can rise to the level of a lawsuit involving the smallest or largest members of the wine community and costing from tens of thousands to hundreds of thousands of dollars. All too often, however, it is not until the fighting begins that the parties and their attorneys look back and see where the dispute could have been avoided or at least how the parties could have better protected themselves before the dispute arose.

Simple measures are usually the most effective. For example, many people don’t review their written agreements until a dispute arises, and then they often find that the paperwork does not read like they recalled it read, or they find that the agreement is ambiguous on a matter that was not an issue until circumstances changed. Instead of shelving your paperwork once it’s signed, there is tremendous value in periodically reviewing written agreements to confirm that they match your understanding of a deal, as well as to confirm that the agreement is being correctly followed. Such a review can, but need not, involve the assistance of counsel. At the very least, such reviews help keep everyone on track while they are still getting along, and when things are not on track, the parties can usually make mid-course corrections in the paperwork or their conduct (or both) without much debate or fanfare because there is no dispute pending. Once a dispute arises, however, such corrective measures are more difficult to achieve.

It is even more important to take such a proactive approach in cases that do not involve written agreements because differences in recollection often cloud the dispute resolution process once a legal battle has begun.

Likewise, where property issues are involved, it is better to find out about your state of title before you are in a dispute with a neighbor. Such early knowledge not only presents the opportunity to find a solution with your neighbor while everyone still gets along (or at least has not been antagonized by the existence of dispute), but it also allows you to get properly informed as to what you should or should not do to protect your property rights in the absence of a negotiated solution since many of the legal rules involved with property disputes are counter-intuitive to non attorneys.

In short, sometimes you need to look back to move forward in the safest way.

For more information or assistance on litigation matters, and how to prevent them, contact Paul Carey at pcarey@dpf-law.com

State Minimum Wage: $10.50 per hour for employers with 26 or more employees.  $10.00 per hour for those with 25 or less employees.  Cities throughout the state have higher minimum wages.  Consult local ordinances if employees regularly work in cities outside Sonoma or Napa Counties.  Note, exempt employees for employers with 26 or more employees must make at least $43,680. (For smaller employers it remains $41,600.) Exempt employees must back at least twice the minimum wage on an annualized basis based on full time employment (2080 hours).

IRS Mileage Rate: The mileage reimbursement rate for cars, vans, pickups or panel trucks is 53.5 cents per mile.  This is down from 54 cents per mile for 2016.

New I-9 Form:  As of January 22, 2017 employers must use the new I-9 form to document that employees are authorized to work in the United States. The new form can be found here.

Legalization of Marijuana:  Although California has now legalized recreational use of marijuana, employers may continue to prohibit marijuana use, possession or impairment on the job. Employers can also continue to test for marijuana in pre-employment screening tests, subject to existing privacy rights disclosures.

Gender Neutral Bathrooms:  By March 1, 2017 all business establishments, places of public accommodation or state or local government agencies must designate single-user toilet facilities as “all-gender”. A single-user toilet facility is a toilet facility with no more than one water closet or urinal with a locking mechanism controlled by the user.  There is no requirement in the law that the bathroom be available to the general public.

Piece-Rate: If you pay any workers by piece-rate make sure your payroll practices are compliant with respect to calculating and reflecting rest/recovery breaks  and other non-productive time and pay. Do not solely rely on your payroll service to do this properly. Verify that it is being done correctly.  It is extremely complicated.

Federal Exempt Salary Increase:  The new Department of Labor overtime exemption rule is on hold through court action.  It is uncertain whether it will eventually be implemented, revised or squashed.  If implemented the new minimum salary threshold for exempt employees would be $46,467 (higher than the current California requirement).

FEHA Policies: Check your discrimination, harassment and prevention policies and training practices to make sure they are compliant with new Department of Fair Employment and Housing regulations.

For more information on these or any other employment laws impacting your business contact Jennifer Douglas Phillips.

Practical Winery & Vineyard recently published an article written by Dickenson, Peatman & Fogarty attorney Katja Loeffelholz. Katja’s article “What’s trending, how to capture it” discusses how technological advancements have permitted an evolution in wine labels, bottle shapes, closures and packaging designs.

One wine bottle can contain several protectable elements. Word mark, logos/images, taglines/slogans, color, configurations, label design, trade dress, product features and design patents are all protectable elements of wine packaging. Protecting these different element can build brand equity.

PWV Feb 2014

Katja is a registered attorney with the United States Patent and Trademark Office.

To learn more about protecting all aspects of intellectual property in your wine label and packaging please contact Katja Loeffelholz at kl@dpf-law.com.