Scherer Smith & Kenny LLP serves mid-sized and fast-growing entrepreneurial companies. From complex litigation to business, real estate, intellectual property and employment law, our team brings strategic thinking, pragmatism and intense dedication to our clients’ success.
Partner Notes
By Bill Scherer
Is early March too late to wish you a Happy New Year?
True, a bit over fifteen percent of 2024 is past, but the year still feels refreshingly young to me. My year’s personal and professional goals still seem new and – perhaps most important – attainable (!), even though last month saw small reverses in my efforts. The steady rains of the last month have been soaking the soil and new green shoots are poking out. Rainy weather has a certain sense of renewal to it, especially after the long, dry Summer and Fall. I heard just last week that one of my most longstanding and dearest friends became a grandfather on … February 29th! Leap years are a true gift, a wonderful, brief step away from the lockstep of the year’s progression. That baby has a wonderful and wry future ahead celebrating his birthdays. Pirates of Penzance, anyone?
At Scherer Smith & Kenny LLP there are also “green shoots” as we move further into this new year. Last year was our 30th anniversary, but our profession and business is such that there is always change that offers new opportunities. It has been one year since two of our attorneys, Heather Sapp and Ryan Stahl, became partners here. In addition to their excellent work, it has been tremendous to have the benefit of their energy, enthusiasm, and ideas for building upon our practice. The advancement of any business, including ours, works best when there are a myriad of good ideas from which to choose.
John Lough is the incoming President this year of AABA, the Asian American Bar Association of the Greater Bay Area, our nation’s largest Asian American bar association. John attained this position through many years of dedicated involvement in the organization, and his presidency is well-deserved. Most of us here will be attending AABA’s annual gala on March 21st, which will include John’s installation and President’s Address to the membership.
Super Lawyers, a publication that recognizes attorneys who distinguish themselves in their legal practice, also named John as a 2024 Super Lawyer along with my partner, Denis Kenny, and Louis Sarmiento and our newest associate, Jackie Tran, were named 2024 California Rising Stars.
Meanwhile, my two founding partners, Brandon Smith and Denis Kenny, and I continue to focus on working in partnership with you to help you achieve success in your endeavors. I am very excited about Scherer Smith & Kenny LLP’s continuing growth, and perhaps more importantly, the ongoing professional and reputational growth of our staff.
It is also impossible to ignore the beginning of change for the better occurring in San Francisco: the number of pedestrians outside our Union Square office is increasing, buzzy restaurants and bars are opening, venues are crowded, remote workers increasingly are returning downtown, and the City’s neighborhoods are thriving. Streets are cleaner and visitors more present. The “doom loop” narrative of the past two years – in my view always simplistic, but politically appealing – finally seems to be receding. While there remains bad news and critical issues to bring under control, the City overall is rebounding, and City government finally appears to understand its role in continuing the turnaround.
So as I look at my clients, friends, and family, my firm and colleagues, and community I’m gratified that most have had a pretty good start to the year and optimism abounds. And yet, this year there are also significant and potentially world-changing challenges that tug at and concern us.
Indeed, most of those with whom I connect are working hard to avoid discussing or dwelling on the election year ahead, the ongoing world conflicts, and other major issues with no clear outcome. I don’t see people ignoring these “big” issues, and certainly everyone has an opinion about them. But they do appear to be more in the background in our daily lives.
I think, now four years from the beginning of the Covid epidemic, we’ve finally trained ourselves to focus on those things in which we feel we have more direct contact and control. At least, that is how I feel. The larger issues seem inaccessible due to the emotions they stir and the seemingly intractable problems they pose. Regardless on which side you fall, the subjects are difficult to reason out with people, and their solution appear out-of-reach; after all, you can plan to vote, but will your nominee win?
By placing focus on what you know and feel and experience it is easier to experience life’s joys that come with living in your chosen community. We put our experiences front and center and focus on what we can accomplish on a daily basis. By working on living in the present I can better put into perspective the anxieties and concerns about the unknowable future. This year it especially seems to me to be an important tool.
Of course, my intention to embody these principals is easy, but ultimately a plan is required to put what is essentially the Serenity Prayer into practice – “God grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference.”
Is divine provenance a necessary element of living presently? It sure seems so, given the difficulty of achieving it. But in case it is not (or I am actually expected to exert effort to feel it), one goal I set this year is to wake early in a quiet house and engage in ten minutes of daily meditation. With just a few missed days, I’ve generally succeeded in making this part of my daily routine. However, I confess it is surprisingly hard for me to banish passing thoughts for even ten minutes and focus on my breathing, ridding myself of stress, or acknowledging gratitude for those blessings I have. I can report that the “results” of this pursuit are somewhat opaque and intangible, but now with two months under my belt I find meditation increasingly provides a certain centering to my day, which has permitted me more joy and a foundation to better deal with the issues that daily arise.
Ultimately, the key to my enjoying this surprisingly strong start to the year, my friends’ and colleagues’ successes, and the promises held by the year is to experience those true feelings and to concentrate on the tangible ways I can improve myself and impact the world around me. This includes doing my part to impact the “big” issues to the extent I can. I can do so through donations or volunteering or outreach, but with the understanding that the joy involved in these pursuits lies nearly entirely in the small, tangible gestures I make to work towards my preferred solution. Wish me luck attaining my goals.
Happy New Year!
California Employer Alert:
Effective July 1, 2024, Senate Bill 553 (signed by Governor Newsom on September 30, 2023 and codified at California Labor Code Section 6401.9), California employers (with very few exceptions) must (1) establish, implement, and maintain an effective written workplace violence prevention policy / plan that includes specified information, training, and recordkeeping requirements and (2) provide interactive training to their California employees when their workplace violence prevention plans are first established (i.e. by July 1, 2024) and annually thereafter.
The Ups and Downs of Using AI
Everywhere you turn these days Artificial Intelligence, or AI as it is generally referred to, is in the news. Whether it is an article talking about how AI will soon take over the world, or how it will free many of us from routine tasks we don’t want to do, it’s hard to escape the discussion about the risks and opportunities with AI.
AI has actually been around for many decades but has only recently taken off with the advent of large language models (i.e. ChatGPT), enabled by the computing power currently available and access to massive amounts of data that is necessary to train the AI models.
Many of you may have tried AI through a version of ChatGPT or experimented with other programs such as Google Bard. Even if you think you have not tried AI, you probably are using software programs, such as spell and grammar checkers and Google search, which use AI to improve accuracy and results.
March 11, 2024 Final Rule: Employee or
Independent Contractor Classification Under the FLSA:
On January 9, 2024, the U.S. Department of Labor released the details of a long-awaited “final rule” addressing when employers can classify workers as independent contractors under federal labor law. Our overall assessment of the FLSA “final rule” (effective March 11, 2024) (the “2024 Rule”) is that it will not materially impact independent contractor misclassification agency enforcement actions or court litigation.
First, the 2024 Rule is limited to FLSA actions. In fact, many agency enforcement actions and lawsuits involve the interpretation and enforcement of state misclassification laws, which often have far more restrictive tests than the FLSA concerning viable independent contractor classification. This is especially true in states like California and Massachusetts which use the ABC Test which we have extensively written about in earlier Perspectives newsletters. In other words, it has been and remains very difficult under any legal standard for a hiring company to viably classify workers as independent contractors and the 2024 Rule marks another step in that direction.
