- Tustin Man to Serve 15 Months in Prison for Patient Brokeringon April 26, 2024 at 12:07 PM
A Tustin California man was sentenced to 15 months in prison for his role in a conspiracy to broker patients as part of a multistate patient scheme in which he directed recruiters to bribe drug-addicted individuals to enroll in drug rehabilitation and received referral fees from the rehabilitation centers.
35 year old Kevin M. Dickau pleaded guilty by videoconference before U.S. District Judge Peter G. Sheridan to an information charging him with one count of conspiracy to commit health care fraud. Judge Sheridan imposed the sentence on April 23, 2024.
Six other individuals have previously pleaded guilty for their roles in the scheme: Peter Costas; Seth Logan Welsh; John C. Devlin; Akikur Mohammad; Lauren Philhower; and Anastasia Passas.
According to documents filed in the case and statements made in court:, Dickau, Welsh, Devlin, and their conspirators owned and operated a marketing company in California. Dickau, Welsh, and Devlin used the marketing company to help orchestrate a scheme in New Jersey, Maryland, California, and other states that involved bribing individuals addicted to heroin and other drugs to enter into drug rehabilitation centers so Dickau, Welsh, Devlin, and their conspirators could generate referral fees from those facilities.
Two facilities in California that paid such referral fees were owned or operated by Mohammad, Philhower, and Passas. One located in Los Angeles, the other in Santa Ana. California Insurance code section 750 criminalizes receiving or paying remuneration for referrals to any person or entity that bills claims under insurance policies, which includes recovery homes, clinical treatment facilities, and laboratories.
The marketing company run by Dickau, Welsh, and Devlin maintained contractual relationships with drug treatment facilities around the country, including the ones run by Mohammad, Philhower, and Passas. The marketing company also engaged a nationwide network of recruiters - including Costas in New Jersey - to identify and recruit potential patients, from New Jersey and other states, who were addicted to heroin or other drugs and who had robust private health insurance.
To convince drug-addicted individuals to travel to and enroll in rehabilitation when they otherwise would not have, Costas and other recruiters offered to bribe them - often as much as several thousand dollars - with the approval of Dickau, Welsh, and Devlin.
Once the patients agreed to enroll in drug rehabilitation in exchange for the offered bribe, Dickau, Welsh, Devlin, and Costas would arrange and pay for cross-country travel to the drug treatment centers in California and other states, in concert with the owners of the facilities themselves, including Mohammad, Philhower, and Passas. Costas would stay in touch with the New Jersey patients at the facilities and specifically instruct them to stay at the facilities long enough to generate referral payments, and he would pass along information to Dickau, Welsh, and Devlin about the patients’ status at the facilities.
Dickau, Welsh, and Devlin would monitor the other patients they brokered by speaking to other recruiters or to the owners and employees of the drug treatment facilities themselves.
The drug treatment facilities run by Mohammad, Philhower, and Passas had contracts with the marketing company. Those facilities typically paid the marketing company a fee of $5,000 to $10,000 per patient referral. Dickau, Welsh, Devlin, and their conspirators shared that money among themselves. Costas and other recruiters received approximately half that amount for each patient they brokered. Dickau, Welsh, Devlin, and their conspirators brokered scores of patients to drug treatment facilities around the country, including the ones run by Mohammad, Philhower, and Passas, and the conspiracy caused millions of dollars of losses for health insurers.
In addition to the prison term, Judge Sheridan sentenced Dickau to three years of supervised release.
- UFW Announces a Mini-Series Documentary on Farmworker Risks & Dangerson April 26, 2024 at 12:07 PM
Founded in 2006, the UFW Foundation is a nonprofit organization that advocates for workers’ rights and protections for farm workers across the United States and provides educational outreach and critical services such as immigration legal services to low-income rural communities.
KVPR announced a new documentary series released this week by the United Farm Worker Foundation highlights how farm laborers face a wide range of risks and dangers while harvesting the nation’s crops, from sweltering temperatures to more frequent natural disasters
The five-part mini-series, called Farm Worker Voices, aims to show how climate change affects the everyday lives of agricultural laborers, and spotlights the stories of farmworkers across the country who are directly affected. The UFW Foundation is releasing a video every week until May 20.
"They’re extremely vulnerable to heat, illness and death. They’re vastly affected by climate change," says Daniel Larios, a spokesperson for the foundation.
Two farmworkers from the San Joaquin Valley are featured in the series.
Elizabeth Ramirez, 44, from Bakersfield, talks in one video about the impacts brought on by last year’s record-breaking floods. Heavy rainfall from a series of record atmospheric rivers drenched the state and flooded farms.
"Before the floods, I’d never seen such a widespread loss of work," Ramirez says in Spanish. "We couldn’t pay our bills or provide for our kids."
Adela Leon, a 43-year-old farmworker from Fowler, speaks about another challenge for farmworkers - pesticides - and how a lack of protections from pesticide drift affected her while she was pregnant. "Sometimes [our bosses] don’t tell us what kind of chemical is being sprayed," Leon says in Spanish. "I started having heart problems. My son was born with asthma and other health issues."
Last year Regulators with the California Department of Pesticide Regulation filed suit in Kern County Superior Court against a company, known as Agra Fly, which drops pesticides onto agricultural fields using planes and helicopters. A judge temporarily ordered the company to stop aerially applying pesticides. Regulators say its operations resulted in at least six incidents of illegal drift, which is when a pesticide travels from its target area onto an unintended one.
"Defendants’ activities are a public nuisance that endanger the life, wellbeing, and property of the community. Each day that [Agra Fly] conduct aerial pesticide applications, the significant threat to the community exists," reads the complaint.
In the last year, DPR took disciplinary action and then entered into a legal settlement with another company, Hollister-based TriCal Inc., following nine incidents and 61 violations in multiple Central California counties.
The documentary also calls attention to workers who have labored under scorching temperatures - an issue the Valley is familiar with. A farmworker reportedly died last August of heat exhaustion.
The UFW Foundation, through the series, is calling on state and federal agencies to implement stronger regulations to protect workers such as a national heat standard, pesticide bans, and more widely available relief programs. While there are some protections for outdoor workers in California, there is no federal heat standard.
"Climate change is real," Larios of the foundation says. "We need to do more to support our farmworkers."
- Court of Appeal Affirms WCAB Application of Commercial Traveler Ruleon April 25, 2024 at 2:54 PM
3 Stonedeggs, Inc. - (DBA California Sandwich Company) business was to provide food service to firefighters and forestry workers at various locations. The employer won a contract to provide food service at a remote location near Happy Camp, California, and it was expected that the job would last 3 to 6 months.
The employer asked employees assigned to its Brownsville camp to volunteer to work at Happy Camp, a remote location without cellular telephone services where it was to serve meals for the three-to-six month period.
Braden Nanez and two other employees from the Brownsville camp agreed to travel to work providing food service at Happy Camp, and the employer authorized Nanez to drive his own car from Brownsville to his residence and then to Happy Camp.
On October 5, 2020, the day of the vehicular accident at State Highway 263/Shasta River Bridge, Nanez worked the breakfast shift and, afterwards, at about 9:00 a.m., commenced a seventy-mile drive to Yreka in his own car. He texted manager Brossard later that he would return for his next shift at about 4:00 p.m., a timeframe permitting daytime travel in his off hours.
The employer was not informed of his reasons for traveling to Yreka, but manager Todd surmised that it was to use his cellular telephone.
On April 26, 2022, the matter proceeded to trial as to the following issues: "Injury arising out of and in the course of employment per Labor Code section 3600(a), (the going and coming rule); and intoxication."
The WCJ found that applicant (1) did not sustain injury arising out of and in the course of employment (AOE/COE); (2) violated company policy when he left the worksite without permission on the date of his injury; and (3) was engaged in a material deviation and complete departure from his employment at the time of injury. The WCJ ordered that Nanez take nothing on his workers’ compensation claim.
On reconsideration, Nanez contended that the evidence established that he was engaged in an activity reasonably expected to be incident to his employment at the time of his injury, and, therefore, that the commercial traveler rule applies to his accident.
The WCAB agreed, and rescinded the F&O, and substituted findings that the commercial traveler rule applies to his accident, that his claim is not barred by the going and coming rule and intoxication, and that he sustained injury AOE/COE in the form of a fracture to the right femur, and deferred his claim of injury to other body parts in the panel decision of Nanez v 3 Stonedeggs, Inc. -ADJ14015513 (February 2023)
The employer filed a timely Petition for Writ of Review, and the Court of Appeal reviewed the case, and affirmed the WCAB in the unpublished case of 3 Stonedeggs v. Workers' Compensation Appeals Board et al -C098711 (April 2024).
On appeal, the employer contends in part that any activity that involved leaving the camp without approval and for comfort and safety when the employer provided all items the employees would need was not a personal activity reasonably contemplated by the employer under the circumstances of this case.
The Court of Appeal reviewed the great body of decisions, including WCAB panel decision on the application of the commercial traveler rule and concluded as follows:
"Synthesizing these decisions and looking at the nature of Nanez’s activity and his employment, we conclude substantial evidence supports the Board’s decision. We disagree with the employer’s argument that any departure from the camp without authorization was outside the course of employment. Substantial evidence establishes that the employer could reasonably expect that Nanez, incident to the employer’s requirement that he spend time away from home, would leave camp in his personal automobile and drive 'to town' during his off hours. The employer made clear to employees its 'expectation' that employees not leave camp. It told employees it did not want them leaving camp 'if they don’t have to' due to safety reasons, and it 'really encouraged' the employees not to drive on the roads. But in none of these explanations did the employer actually prohibit the employees from leaving camp."
"Substantial evidence thus supports the Board’s determination that Nanez’s departure from camp was a leisure activity that the employer may reasonably have expected to be incident to its requirement that Nanez spend time away from home."
- Appellate Court Reduces Interest on Workers Attorney Fee Awardon April 25, 2024 at 2:54 PM
Renee Vines sued his former employer, O’Reilly Auto Enterprises, LLC, for violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), alleging causes of action for race- and age- based discrimination, harassment, and retaliation.
A jury found in his favor on his causes of action for retaliation and failure to prevent retaliation, but against him on his other causes of action. Although Vines asked for $253,417 in economic damages and 3 $1.3 million to $2.3 million in non-economic damages, the jury awarded him only $70,200.
Vines moved for $809,681.25 in statutory attorneys’ fees. On September 9, 2019 the trial court granted the motion, but awarded only $129,540.44 in fees, based in part on the court’s determination Vines’s unsuccessful discrimination and harassment causes of action were not closely related to or factually intertwined with his successful retaliation causes of action.
Vines appealed, and the Court of Appeal reversed. It held the trial court erred in finding that, because the facts related to Vines’s (successful) retaliation causes of action arose after he complained about the discriminatory and harassing conduct, the (unsuccessful) discrimination and harassment causes of action were not related to the (successful) retaliation causes of action. Therefore, it concluded, the trial court erred in ruling Vines was not entitled to recover any fees he incurred pursuing his discrimination and harassment causes of action. (Vines v. O’Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 185 (Vines I).)
On remand the trial court on June 29, 2022 awarded Vines $518,161.77 in fees. O’Reilly paid the fee award, including post judgment interest from June 29, 2022. Vines’s attorneys, however, wanted more; specifically, they wanted interest on the attorneys’ fees award from September 9, 2019, not June 29, 2022, which amounted to an additional $138,454.44 in interest.
Rather than asking the court to enter an amended judgment that included the award of attorneys’ fees plus additional interest or seeking an order for additional interest, Vines applied for and obtained a renewal of the judgment in the amount of $138,454.44 (i.e., the additional interest). O’Reilly filed a motion to vacate the renewal of judgment, which the trial court denied.
O’Reilly appeals from the order denying its motion to vacate the renewal of judgment, challenging only the amount of interest on the award of attorneys’ fees. O’Reilly argues that, because our decision in Vines I was a reversal, not a modification, of the trial court’s September 9, 2019 order, interest on the amount of attorneys’ fees awarded should run from June 29, 2022, not September 9, 2019.
The Court of Appeal agreed with O’Reilly, reversed the order denying O’Reilly’s motion to vacate the renewed judgment, and direct the trial court to grant the motion in the published case of Vines v. O'Reilly Auto Enterprises (Vines II) - B327821 (April 2024).
"The line between modification and reversal, however, like that (for example) between a mandatory and prohibitory injunction, can be a little blurry. Here, however, we can safely draw that line. Our directions in the prior appeal required the trial court to do more than perform a pure mathematical computation or add or delete a category of fees; the trial court had to exercise its discretion to determine an appropriate award of attorneys’ fees. Therefore, our prior opinion was a reversal, not a modification, which means interest runs from the second attorneys’ fees award."
- Cal Hospital Association Sues Anthem Blue Cross for Authorization Delayson April 24, 2024 at 11:37 AM
According to the California Hospital association Anthem Blue Cross, one of California’s largest health insurance companies, consistently leaves thousands of its patients stranded in hospital beds long after they have been medically cleared for discharge, a violation of California law. These victims of discharge delays are forced to stay in hospitals longer, are deprived of timely post-hospital health care services, and cause backlogs for other patients who have to wait longer for hospital beds.
These failures, along with Anthem’s disregard of state requirements to maintain an adequate network of care providers and not paying for the additional hospital care it forces to be provided to patients, are the basis of a new lawsuit filed in Los Angeles County Superior Court against the insurance giant by the California Hospital Association (CHA) on behalf of the state’s more than 400 hospitals and health systems and the patients they serve.
"California has some of the strongest laws in the nation governing insurance company practices," said CHA President & CEO Carmela Coyle. "Regrettably, far too many insurance companies that put their bottom lines over patient care are violating these essential patient protection laws every day, hurting patients, hospitals, and the public good. By filing this lawsuit, we are asking the court to put a stop to these illegal practices and force insurers to do what is best for patients."
According to a statewide survey of hospitals conducted last year by CHA, an estimated 4,500 Californians are stuck every day in hospital beds and emergency departments waiting for their insurers to approve and arrange for their discharge to care settings such as skilled-nursing facilities, home health services, rehabilitation facilities, or behavioral health services. According to the survey, patients whose discharge is delayed by at least three days (~300,000 patients annually) spend, on average, an additional 14 days in the hospital after being medically cleared for post-acute care.
Other findings from the survey include:
- - California hospitals provide an estimated 1 million days of unnecessary inpatient care and 7.5 million hours of wasted emergency department care annually due to discharge delays.
- - In some extreme cases, patients - especially those experiencing behavioral health issues - have languished in hospital beds for as long as a year.
- - These delays result in at least $3.25 billion in avoidable hospital costs every year.
- - Patients enrolled in managed care plans - especially those covered by Medi-Cal - are more likely to experience delays than those who have fee-for-service coverage.
The lawsuit alleges that Anthem fails to meet its legal obligations to arrange for timely access to care for its members as required under California law. Anthem is also accused of not responding in a timely manner - or at all - "to requests for authorization" for post-acute care for its members.
Additionally, the complaint charges Anthem with "unilaterally discontinuing authorization" for hospitals to continue caring for patients while they need to remain in hospital beds longer as a result of the insurance company’s failure to arrange for timely post-acute discharge.
In the lawsuit, CHA is seeking an injunction against Anthem that would bar the insurer from engaging in these illegal and harmful business practices.
"It is time for the courts to hold insurers accountable by enforcing the law. Care that is delayed is care that is denied," Coyle said. Coyle also said the association has raised the issue with the Department of Managed Health Care, which oversees most health insurers.
In a statement, department spokesperson Kevin Durwara said the agency has been meeting with the hospital association to address hospitals’ "concerns and challenges" with insurance delays since 2021. The meetings resulted in a letter issued to insurers in Fresno County, where hospital capacity was particularly limited, instructing them to make it easier for hospitals to discharge patients.
According to CalMatters a spokesperson for Anthem said the company did not have an immediate response and would be investigating the allegations.
- Accreditation Agencies Launch New Telehealth Care Standardson April 24, 2024 at 11:37 AM
The National Committee for Quality Assurance (NCQA) has just announced the launch of its Virtual Care Accreditation Pilot program, a key step in NCQA’s development of a quality improvement framework for organizations that provide care via telehealth or other digital platforms.
NCQA selected as pilot organizations a diverse set of 18 organized and engaged entities from the more than 100 that applied. Based in 12 states and Puerto Rico, pilot organizations include health plans, health systems, Federally Qualified Health Centers, patient-centered medical homes and virtual first/virtual only organizations.
The pilot organizations will provide valuable input to the development of NCQA’s Virtual Care Accreditation, a first-of-its-kind program highlighting the quality of care patients receive through virtual or hybrid modalities from many kinds of health care organizations.
Virtual Care Accreditation will highlight and distinguish organizations using virtual modalities to identify gaps in care, provide high-quality care and report and track outcomes.
Early versions of the program will focus on primary care and urgent care. Later versions will provide opportunities for organizations to distinguish themselves for other kinds of care they deliver virtually. Likely options include behavioral healthcare and acute, post-acute or specialty care.
"Care delivery has evolved, and virtual care is a new normal in desperate need of standardization and reliable quality assessment," said NCQA President Margaret E. O’Kane. "Virtual Care Accreditation will be a roadmap and the foundation of the safe, effective and equitable virtual care people need."
Four phases compose the roughly 10-month pilot program: learning, testing, preparation and evaluation. An early adopter program and launch of Virtual Care Accreditation will follow the pilot program in mid- to late-2024.
The Joint Commission also just announced it is launching a new Telehealth Accreditation Program for eligible hospitals, ambulatory and behavioral healthcare organizations, effective July 1, 2024. This accreditation program provides updated, streamlined standards to provide organizations offering telehealth services with the structures and processes necessary to help deliver safe, high-quality care using a telehealth platform.
The Telehealth Accreditation Program was developed for healthcare organizations that exclusively provide care, treatment and services via telehealth. Hospitals and other healthcare organizations that have written agreements in place to provide care, treatment and services via telehealth to another organization’s patients have the option to apply for the new accreditation.
The Telehealth Accreditation Program’s requirements contain many of the standards similar to other Joint Commission accreditation programs, such as requirements for information management, leadership, medication management, patient identification, documentation, and credentialing and privileging. Requirements specific to the new accreditation program include:
- - Streamlined emergency management requirements to address providing care and clinical support remotely rather than in a physical building.
- - New standards for telehealth provider education and patient education about the use of telehealth platforms and devices.
- - New standards chapter focused on telehealth equipment, devices and connectivity.
- April 28 Workers Memorial Day Eventson April 23, 2024 at 2:18 PM
When the nation first observed Workers Memorial Day on April 28, 1970, an estimated 38 U.S. workers suffered fatal on-the-job injuries each day and many more endured debilitating respiratory diseases and other life-altering illnesses related to workplace exposures.
Today, work-related injuries in the U.S. claim about 15 people’s lives a day. In 2022, a reported 5,486 workers suffered fatal injuries, an increase of 296 worker deaths from 2021.
This year, the Department of Labor’s Occupational Safety and Health Administration and Mine Safety and Health Administration will remind the nation of the importance of protecting workers as families, friends, co-workers and the community at-large gather across the country for Workers Memorial Day events on Sunday, April 28 to honor people who didn’t come home at the end of their shift.
"As we honor our fallen workers on Workers Memorial Day, we must remember that behind each workplace fatality there are loved ones enduring unimaginable grief," said Assistant Secretary for Occupational Safety and Health Doug Parker. "It is for the lost workers and those left behind that we continue to fight for every worker’s right to a safe working environment. Our mission at OSHA is to ensure that when someone leaves for work, they know they’ll come home safe at the end of the day to the arms of their families and loved ones."
To commemorate Workers Memorial Day, the department will host a week-long series of events from April 22-25 to educate employers on the importance of safe and healthy workplaces. The series will culminate at an in-person and nationally livestreamed event at 1 p.m. EDT at its Washington headquarters where OSHA and MSHA leaders will join AFL-CIO President Liz Shuler and United Support & Memorial for Workplace Fatalities Board Member Stacy Sebald, whose 19-year-old son Mitchell McDaniel suffered fatally injuries in an agriculture incident in 2019.
"We come together on Workers Memorial Day to remember those we have lost in workplace accidents and to prevent work-related illnesses," said Assistant Secretary for Mine Safety and Health Chris Williamson. "At MSHA, we know a safe workplace isn’t a privilege - it’s every miner’s right. It is in the memory of fallen workers that we continue to advocate for each miner’s safety, health and dignity."
Join OSHA and MSHA representatives, families, workers, labor unions, advocates and others to remember the lives lost and raise awareness of workplace safety to help prevent future tragedies. Find a local Workers Memorial Day event.
Learn more about Workers Memorial Day events nationwide and view the April 25 livestream.
- DWC Updates and Posts Time of Hire Noticeon April 23, 2024 at 2:18 PM
The Division of Workers’ Compensation (DWC) has posted an updated time of hire notice on its website. The time of hire notice was previously referred to as the time of hire pamphlet.
The notice, which is posted in English and Spanish versions, meets the requirements under Labor Code section 3551 to notify new employees about California workers’ compensation rights and benefits either at the time of hire or by the end of the first pay period.
The time of hire notice was created in 2011 to help employers and claims administrators ensure that employees know what to do in case of workplace injury.
This notice can be customized as long as the text meets the "time of hire" legal requirements. Title 8, California Code of Regulations section 9883 allows insurers, employers or private enterprises to prepare and publish the notice upon prior approval of the form and content of the notice by the Administrative Director. A revised time of hire notice should be submitted via email to DWC for review, using the subject line “Time of Hire Notice Approval Request.”
- PAGA Plaintiff No Longer Required to Have an Individual Claimon April 22, 2024 at 3:18 PM
Lizbeth Balderas was a Fresh Start Harvesting, Inc employee. In June 2022, she filed a complaint for civil penalties for violations of the California Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) on behalf of herself and 500 other current and former employees of defendant Fresh Start Harvesting, Inc
In her lawsuit she alleged, "Ms. Balderas is not suing in her individual capacity; she is proceeding herein solely under the PAGA, on behalf of the State of California for all aggrieved employees, including herself and other aggrieved employees."
Balderas claimed that Fresh Start did not provide employees with required meal break periods and rest periods, and that Fresh Start provided inaccurate wage statements, made untimely wage payments, and failed to pay wages at termination. Fresh Start filed a motion to compel arbitration.
Fresh Start filed a motion to compel arbitration.
On its own motion, the trial court gave notice of its intent to strike Balderas’s complaint. It said because she had not filed an individual action seeking PAGA relief for herself, she lacked standing to pursue a "non-individual" or representative PAGA action on behalf of other employees.
The trial court ruled Balderas lacked standing to bring a representative PAGA action on behalf of other employees because she did not allege "an individual claim" in the action. The Court of Appeal reversed in the published case of Balderas v. Fresh Start Harvesting, Inc. -B326759 (April 2024).
The Court of Appeal said that PAGA is a remedial statute intended to protect employees from employer misconduct. Remedial statutes must be broadly interpreted to achieve the legislative goals. (In re Delila D. (2023) 93 Cal.App.5th 953, 974.) PAGA provisions must be interpreted broadly to protect employees. (Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th at p. 1122.)
Class or representative PAGA actions play an important function in enforcing [the Labor Code] by permitting employees . . . a relatively inexpensive way to resolve their disputes about unlawful employer conduct. (Piplack v. In-N-Out Burgers (2023) 88 Cal.App.5th 1281- 1286.)
The statutory goal is furthered by extending broad standing to aggrieved employees that does not depend on the viability or strength of a plaintiff’s individual PAGA claim. In fact, the inability for an employee to pursue an individual PAGA claim does not prevent that employee from filing a representative PAGA action. California courts have consistently held that " ' [p]aring away the plaintiff’s individual claims' " for one reason or another, " 'does not deprive the plaintiff of standing to pursue representative claims under PAGA.' " (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 - 1122.)
These broad-standing policies that allow employees the freedom to bring representative PAGA actions to challenge unfair employer policies had not been questioned until 2022 when the United State Supreme Court made some observations about PAGA standing that conflicted with what the California Legislature intended.
In Viking River Cruises v. Moriana (2022) _ U.S. _ [213 L.Ed.2d 179, 200-201] (Viking River), the United States Supreme Court wrote, "Under PAGA’s standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action." (Italics added.) "When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit." (Ibid., italics added.)
In reliance on this language, the trial court struck Balderas’s "non-individual" representative PAGA action. It noted that in her complaint Balderas alleged, "Ms. Balderas is not suing in her individual capacity; she is proceeding herein solely under the PAGA, on behalf of the State of California for all aggrieved employees, including herself and other aggrieved employees" of Fresh Start. Noting that she did not file her own individual PAGA claim, the court found under Viking River she could not bring this representative PAGA action for penalties.
In Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th at page 1119, our Supreme Court held Viking River was incorrect on PAGA standing and its decision on that issue may not be followed by California courts. The court wrote, "Because ‘[t]he highest court of each State . . . remains "the final arbiter of what is state law" (Montana v. Wyoming (2011) 563 U.S. 368, 378, fn. 5 [179 L.Ed.2d 799]), we are not bound by the high court’s interpretation of California law."
The Adolph court concluded that the Viking River requirement of having to file an individual PAGA cause of action to have standing to file a representative PAGA suit was incorrect. There are only two requirements for PAGA standing. "The plaintiff must allege that he or she is (1) ‘someone "who was employed by the alleged violator" and (2) someone "against whom one or more of the alleged violations was committed." (Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th at p. 1120.)
Balderas met the standing requirements.The order striking the pleading is reversed. Costs on appeal are awarded to appellant.
- Cal/OSHA Cites Construction Company $371K for Fatal Trench Collapseon April 22, 2024 at 3:18 PM
Cal/OSHA has cited D’Arcy & Harty Construction, Inc. $371,100 for failing to protect employees working in a trench excavation at a construction site in San Francisco. On September 28, 2023, an employee was replacing sewer parts inside the eight-foot-deep trench at 1101 Oak Street when the excavation collapsed, fatally burying the 24-year-old worker.
The 25-year-old man who died was identified as Javier Romero from Alameda County. Romero became trapped under 8 feet of dirt when the trench collapsed in the area of Oak and Divisadero streets.
He was working on part of the San Francisco Public Utilities Commission's Panhandle and Inner Sunset Large Sewer Rehabilitation Project to upgrade existing sewer mains and sewer laterals in the area, SFPUC officials said at the time.
Cal/OSHA investigators determined D’Arcy & Harty Construction, Inc. committed willful-serious safety violations by failing to provide a protective system for employees working in the trench and for failing to provide a means of escape such as a ladder in case of collapse - hazards the employer had been warned about weeks before.
In that earlier inspection, a Cal/OSHA investigator had told D’Arcy & Harty Construction Inc. that a trench excavation at 3475 22nd Street did not have adequate shoring and did not have a ladder or other means for workers to escape in case of collapse. The hazards at that San Francisco site were abated before work was able to continue.
Cal/OSHA cited D’Arcy & Harty Construction, Inc., for eight violations total in the fatal September 28 incident, including three categorized as serious accident-related for failure to conduct daily safety inspections of the trench for evidence of possible cave-ins before an employee is allowed to work inside the trench, and failure to properly use equipment and materials to prevent employee exposure to excavation and trenching hazards.
Cal/OSHA offers extensive information and resources on working safely in the construction industry, including how to safely perform trench and excavation operations. Before starting excavation work, the approximate locations of all underground installations that may be encountered during excavation operations must be determined and the proper notification must be made to the appropriate agency in either Northern or Southern California. A permit from the local Cal/OSHA district office must be obtained before the construction of excavations five feet or deeper into which any person is required to descend.
Acting Cal/OSHA Chief Debra Lee said: "Excavations are known hazards and trenches must be evaluated, shored or shielded before workers enter to protect them. This worker’s death is tragic because it was avoidable."
- Tustin Man to Serve 15 Months in Prison for Patient Brokeringon April 26, 2024 at 12:07 PM
A Tustin California man was sentenced to 15 months in prison for his role in a conspiracy to broker patients as part of a multistate patient scheme in which he directed recruiters to bribe drug-addicted individuals to enroll in drug rehabilitation and received referral fees from the rehabilitation centers.
35 year old Kevin M. Dickau pleaded guilty by videoconference before U.S. District Judge Peter G. Sheridan to an information charging him with one count of conspiracy to commit health care fraud. Judge Sheridan imposed the sentence on April 23, 2024.
Six other individuals have previously pleaded guilty for their roles in the scheme: Peter Costas; Seth Logan Welsh; John C. Devlin; Akikur Mohammad; Lauren Philhower; and Anastasia Passas.
According to documents filed in the case and statements made in court:, Dickau, Welsh, Devlin, and their conspirators owned and operated a marketing company in California. Dickau, Welsh, and Devlin used the marketing company to help orchestrate a scheme in New Jersey, Maryland, California, and other states that involved bribing individuals addicted to heroin and other drugs to enter into drug rehabilitation centers so Dickau, Welsh, Devlin, and their conspirators could generate referral fees from those facilities.
Two facilities in California that paid such referral fees were owned or operated by Mohammad, Philhower, and Passas. One located in Los Angeles, the other in Santa Ana. California Insurance code section 750 criminalizes receiving or paying remuneration for referrals to any person or entity that bills claims under insurance policies, which includes recovery homes, clinical treatment facilities, and laboratories.
The marketing company run by Dickau, Welsh, and Devlin maintained contractual relationships with drug treatment facilities around the country, including the ones run by Mohammad, Philhower, and Passas. The marketing company also engaged a nationwide network of recruiters - including Costas in New Jersey - to identify and recruit potential patients, from New Jersey and other states, who were addicted to heroin or other drugs and who had robust private health insurance.
To convince drug-addicted individuals to travel to and enroll in rehabilitation when they otherwise would not have, Costas and other recruiters offered to bribe them - often as much as several thousand dollars - with the approval of Dickau, Welsh, and Devlin.
Once the patients agreed to enroll in drug rehabilitation in exchange for the offered bribe, Dickau, Welsh, Devlin, and Costas would arrange and pay for cross-country travel to the drug treatment centers in California and other states, in concert with the owners of the facilities themselves, including Mohammad, Philhower, and Passas. Costas would stay in touch with the New Jersey patients at the facilities and specifically instruct them to stay at the facilities long enough to generate referral payments, and he would pass along information to Dickau, Welsh, and Devlin about the patients’ status at the facilities.
Dickau, Welsh, and Devlin would monitor the other patients they brokered by speaking to other recruiters or to the owners and employees of the drug treatment facilities themselves.
The drug treatment facilities run by Mohammad, Philhower, and Passas had contracts with the marketing company. Those facilities typically paid the marketing company a fee of $5,000 to $10,000 per patient referral. Dickau, Welsh, Devlin, and their conspirators shared that money among themselves. Costas and other recruiters received approximately half that amount for each patient they brokered. Dickau, Welsh, Devlin, and their conspirators brokered scores of patients to drug treatment facilities around the country, including the ones run by Mohammad, Philhower, and Passas, and the conspiracy caused millions of dollars of losses for health insurers.
In addition to the prison term, Judge Sheridan sentenced Dickau to three years of supervised release. - UFW Announces a Mini-Series Documentary on Farmworker Risks & Dangerson April 26, 2024 at 12:07 PM
Founded in 2006, the UFW Foundation is a nonprofit organization that advocates for workers’ rights and protections for farm workers across the United States and provides educational outreach and critical services such as immigration legal services to low-income rural communities.
KVPR announced a new documentary series released this week by the United Farm Worker Foundation highlights how farm laborers face a wide range of risks and dangers while harvesting the nation’s crops, from sweltering temperatures to more frequent natural disasters
The five-part mini-series, called Farm Worker Voices, aims to show how climate change affects the everyday lives of agricultural laborers, and spotlights the stories of farmworkers across the country who are directly affected. The UFW Foundation is releasing a video every week until May 20.
"They’re extremely vulnerable to heat, illness and death. They’re vastly affected by climate change," says Daniel Larios, a spokesperson for the foundation.
Two farmworkers from the San Joaquin Valley are featured in the series.
Elizabeth Ramirez, 44, from Bakersfield, talks in one video about the impacts brought on by last year’s record-breaking floods. Heavy rainfall from a series of record atmospheric rivers drenched the state and flooded farms.
"Before the floods, I’d never seen such a widespread loss of work," Ramirez says in Spanish. "We couldn’t pay our bills or provide for our kids."
Adela Leon, a 43-year-old farmworker from Fowler, speaks about another challenge for farmworkers - pesticides - and how a lack of protections from pesticide drift affected her while she was pregnant. "Sometimes [our bosses] don’t tell us what kind of chemical is being sprayed," Leon says in Spanish. "I started having heart problems. My son was born with asthma and other health issues."
Last year Regulators with the California Department of Pesticide Regulation filed suit in Kern County Superior Court against a company, known as Agra Fly, which drops pesticides onto agricultural fields using planes and helicopters. A judge temporarily ordered the company to stop aerially applying pesticides. Regulators say its operations resulted in at least six incidents of illegal drift, which is when a pesticide travels from its target area onto an unintended one.
"Defendants’ activities are a public nuisance that endanger the life, wellbeing, and property of the community. Each day that [Agra Fly] conduct aerial pesticide applications, the significant threat to the community exists," reads the complaint.
In the last year, DPR took disciplinary action and then entered into a legal settlement with another company, Hollister-based TriCal Inc., following nine incidents and 61 violations in multiple Central California counties.
The documentary also calls attention to workers who have labored under scorching temperatures - an issue the Valley is familiar with. A farmworker reportedly died last August of heat exhaustion.
The UFW Foundation, through the series, is calling on state and federal agencies to implement stronger regulations to protect workers such as a national heat standard, pesticide bans, and more widely available relief programs. While there are some protections for outdoor workers in California, there is no federal heat standard.
"Climate change is real," Larios of the foundation says. "We need to do more to support our farmworkers." - Court of Appeal Affirms WCAB Application of Commercial Traveler Ruleon April 25, 2024 at 2:54 PM
3 Stonedeggs, Inc. - (DBA California Sandwich Company) business was to provide food service to firefighters and forestry workers at various locations. The employer won a contract to provide food service at a remote location near Happy Camp, California, and it was expected that the job would last 3 to 6 months.
The employer asked employees assigned to its Brownsville camp to volunteer to work at Happy Camp, a remote location without cellular telephone services where it was to serve meals for the three-to-six month period.
Braden Nanez and two other employees from the Brownsville camp agreed to travel to work providing food service at Happy Camp, and the employer authorized Nanez to drive his own car from Brownsville to his residence and then to Happy Camp.
On October 5, 2020, the day of the vehicular accident at State Highway 263/Shasta River Bridge, Nanez worked the breakfast shift and, afterwards, at about 9:00 a.m., commenced a seventy-mile drive to Yreka in his own car. He texted manager Brossard later that he would return for his next shift at about 4:00 p.m., a timeframe permitting daytime travel in his off hours.
The employer was not informed of his reasons for traveling to Yreka, but manager Todd surmised that it was to use his cellular telephone.
On April 26, 2022, the matter proceeded to trial as to the following issues: "Injury arising out of and in the course of employment per Labor Code section 3600(a), (the going and coming rule); and intoxication."
The WCJ found that applicant (1) did not sustain injury arising out of and in the course of employment (AOE/COE); (2) violated company policy when he left the worksite without permission on the date of his injury; and (3) was engaged in a material deviation and complete departure from his employment at the time of injury. The WCJ ordered that Nanez take nothing on his workers’ compensation claim.
On reconsideration, Nanez contended that the evidence established that he was engaged in an activity reasonably expected to be incident to his employment at the time of his injury, and, therefore, that the commercial traveler rule applies to his accident.
The WCAB agreed, and rescinded the F&O, and substituted findings that the commercial traveler rule applies to his accident, that his claim is not barred by the going and coming rule and intoxication, and that he sustained injury AOE/COE in the form of a fracture to the right femur, and deferred his claim of injury to other body parts in the panel decision of Nanez v 3 Stonedeggs, Inc. -ADJ14015513 (February 2023)
The employer filed a timely Petition for Writ of Review, and the Court of Appeal reviewed the case, and affirmed the WCAB in the unpublished case of 3 Stonedeggs v. Workers' Compensation Appeals Board et al -C098711 (April 2024).
On appeal, the employer contends in part that any activity that involved leaving the camp without approval and for comfort and safety when the employer provided all items the employees would need was not a personal activity reasonably contemplated by the employer under the circumstances of this case.
The Court of Appeal reviewed the great body of decisions, including WCAB panel decision on the application of the commercial traveler rule and concluded as follows:
"Synthesizing these decisions and looking at the nature of Nanez’s activity and his employment, we conclude substantial evidence supports the Board’s decision. We disagree with the employer’s argument that any departure from the camp without authorization was outside the course of employment. Substantial evidence establishes that the employer could reasonably expect that Nanez, incident to the employer’s requirement that he spend time away from home, would leave camp in his personal automobile and drive 'to town' during his off hours. The employer made clear to employees its 'expectation' that employees not leave camp. It told employees it did not want them leaving camp 'if they don’t have to' due to safety reasons, and it 'really encouraged' the employees not to drive on the roads. But in none of these explanations did the employer actually prohibit the employees from leaving camp."
"Substantial evidence thus supports the Board’s determination that Nanez’s departure from camp was a leisure activity that the employer may reasonably have expected to be incident to its requirement that Nanez spend time away from home." - Appellate Court Reduces Interest on Workers Attorney Fee Awardon April 25, 2024 at 2:54 PM
Renee Vines sued his former employer, O’Reilly Auto Enterprises, LLC, for violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), alleging causes of action for race- and age- based discrimination, harassment, and retaliation.
A jury found in his favor on his causes of action for retaliation and failure to prevent retaliation, but against him on his other causes of action. Although Vines asked for $253,417 in economic damages and 3 $1.3 million to $2.3 million in non-economic damages, the jury awarded him only $70,200.
Vines moved for $809,681.25 in statutory attorneys’ fees. On September 9, 2019 the trial court granted the motion, but awarded only $129,540.44 in fees, based in part on the court’s determination Vines’s unsuccessful discrimination and harassment causes of action were not closely related to or factually intertwined with his successful retaliation causes of action.
Vines appealed, and the Court of Appeal reversed. It held the trial court erred in finding that, because the facts related to Vines’s (successful) retaliation causes of action arose after he complained about the discriminatory and harassing conduct, the (unsuccessful) discrimination and harassment causes of action were not related to the (successful) retaliation causes of action. Therefore, it concluded, the trial court erred in ruling Vines was not entitled to recover any fees he incurred pursuing his discrimination and harassment causes of action. (Vines v. O’Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 185 (Vines I).)
On remand the trial court on June 29, 2022 awarded Vines $518,161.77 in fees. O’Reilly paid the fee award, including post judgment interest from June 29, 2022. Vines’s attorneys, however, wanted more; specifically, they wanted interest on the attorneys’ fees award from September 9, 2019, not June 29, 2022, which amounted to an additional $138,454.44 in interest.
Rather than asking the court to enter an amended judgment that included the award of attorneys’ fees plus additional interest or seeking an order for additional interest, Vines applied for and obtained a renewal of the judgment in the amount of $138,454.44 (i.e., the additional interest). O’Reilly filed a motion to vacate the renewal of judgment, which the trial court denied.
O’Reilly appeals from the order denying its motion to vacate the renewal of judgment, challenging only the amount of interest on the award of attorneys’ fees. O’Reilly argues that, because our decision in Vines I was a reversal, not a modification, of the trial court’s September 9, 2019 order, interest on the amount of attorneys’ fees awarded should run from June 29, 2022, not September 9, 2019.
The Court of Appeal agreed with O’Reilly, reversed the order denying O’Reilly’s motion to vacate the renewed judgment, and direct the trial court to grant the motion in the published case of Vines v. O'Reilly Auto Enterprises (Vines II) - B327821 (April 2024).
"The line between modification and reversal, however, like that (for example) between a mandatory and prohibitory injunction, can be a little blurry. Here, however, we can safely draw that line. Our directions in the prior appeal required the trial court to do more than perform a pure mathematical computation or add or delete a category of fees; the trial court had to exercise its discretion to determine an appropriate award of attorneys’ fees. Therefore, our prior opinion was a reversal, not a modification, which means interest runs from the second attorneys’ fees award." - Cal Hospital Association Sues Anthem Blue Cross for Authorization Delayson April 24, 2024 at 11:37 AM
According to the California Hospital association Anthem Blue Cross, one of California’s largest health insurance companies, consistently leaves thousands of its patients stranded in hospital beds long after they have been medically cleared for discharge, a violation of California law. These victims of discharge delays are forced to stay in hospitals longer, are deprived of timely post-hospital health care services, and cause backlogs for other patients who have to wait longer for hospital beds.
These failures, along with Anthem’s disregard of state requirements to maintain an adequate network of care providers and not paying for the additional hospital care it forces to be provided to patients, are the basis of a new lawsuit filed in Los Angeles County Superior Court against the insurance giant by the California Hospital Association (CHA) on behalf of the state’s more than 400 hospitals and health systems and the patients they serve.
"California has some of the strongest laws in the nation governing insurance company practices," said CHA President & CEO Carmela Coyle. "Regrettably, far too many insurance companies that put their bottom lines over patient care are violating these essential patient protection laws every day, hurting patients, hospitals, and the public good. By filing this lawsuit, we are asking the court to put a stop to these illegal practices and force insurers to do what is best for patients."
According to a statewide survey of hospitals conducted last year by CHA, an estimated 4,500 Californians are stuck every day in hospital beds and emergency departments waiting for their insurers to approve and arrange for their discharge to care settings such as skilled-nursing facilities, home health services, rehabilitation facilities, or behavioral health services. According to the survey, patients whose discharge is delayed by at least three days (~300,000 patients annually) spend, on average, an additional 14 days in the hospital after being medically cleared for post-acute care.
Other findings from the survey include:
- - California hospitals provide an estimated 1 million days of unnecessary inpatient care and 7.5 million hours of wasted emergency department care annually due to discharge delays.
- - In some extreme cases, patients - especially those experiencing behavioral health issues - have languished in hospital beds for as long as a year.
- - These delays result in at least $3.25 billion in avoidable hospital costs every year.
- - Patients enrolled in managed care plans - especially those covered by Medi-Cal - are more likely to experience delays than those who have fee-for-service coverage.
The lawsuit alleges that Anthem fails to meet its legal obligations to arrange for timely access to care for its members as required under California law. Anthem is also accused of not responding in a timely manner - or at all - "to requests for authorization" for post-acute care for its members.
Additionally, the complaint charges Anthem with "unilaterally discontinuing authorization" for hospitals to continue caring for patients while they need to remain in hospital beds longer as a result of the insurance company’s failure to arrange for timely post-acute discharge.
In the lawsuit, CHA is seeking an injunction against Anthem that would bar the insurer from engaging in these illegal and harmful business practices.
"It is time for the courts to hold insurers accountable by enforcing the law. Care that is delayed is care that is denied," Coyle said. Coyle also said the association has raised the issue with the Department of Managed Health Care, which oversees most health insurers.
In a statement, department spokesperson Kevin Durwara said the agency has been meeting with the hospital association to address hospitals’ "concerns and challenges" with insurance delays since 2021. The meetings resulted in a letter issued to insurers in Fresno County, where hospital capacity was particularly limited, instructing them to make it easier for hospitals to discharge patients.
According to CalMatters a spokesperson for Anthem said the company did not have an immediate response and would be investigating the allegations. - Accreditation Agencies Launch New Telehealth Care Standardson April 24, 2024 at 11:37 AM
The National Committee for Quality Assurance (NCQA) has just announced the launch of its Virtual Care Accreditation Pilot program, a key step in NCQA’s development of a quality improvement framework for organizations that provide care via telehealth or other digital platforms.
NCQA selected as pilot organizations a diverse set of 18 organized and engaged entities from the more than 100 that applied. Based in 12 states and Puerto Rico, pilot organizations include health plans, health systems, Federally Qualified Health Centers, patient-centered medical homes and virtual first/virtual only organizations.
The pilot organizations will provide valuable input to the development of NCQA’s Virtual Care Accreditation, a first-of-its-kind program highlighting the quality of care patients receive through virtual or hybrid modalities from many kinds of health care organizations.
Virtual Care Accreditation will highlight and distinguish organizations using virtual modalities to identify gaps in care, provide high-quality care and report and track outcomes.
Early versions of the program will focus on primary care and urgent care. Later versions will provide opportunities for organizations to distinguish themselves for other kinds of care they deliver virtually. Likely options include behavioral healthcare and acute, post-acute or specialty care.
"Care delivery has evolved, and virtual care is a new normal in desperate need of standardization and reliable quality assessment," said NCQA President Margaret E. O’Kane. "Virtual Care Accreditation will be a roadmap and the foundation of the safe, effective and equitable virtual care people need."
Four phases compose the roughly 10-month pilot program: learning, testing, preparation and evaluation. An early adopter program and launch of Virtual Care Accreditation will follow the pilot program in mid- to late-2024.
The Joint Commission also just announced it is launching a new Telehealth Accreditation Program for eligible hospitals, ambulatory and behavioral healthcare organizations, effective July 1, 2024. This accreditation program provides updated, streamlined standards to provide organizations offering telehealth services with the structures and processes necessary to help deliver safe, high-quality care using a telehealth platform.
The Telehealth Accreditation Program was developed for healthcare organizations that exclusively provide care, treatment and services via telehealth. Hospitals and other healthcare organizations that have written agreements in place to provide care, treatment and services via telehealth to another organization’s patients have the option to apply for the new accreditation.
The Telehealth Accreditation Program’s requirements contain many of the standards similar to other Joint Commission accreditation programs, such as requirements for information management, leadership, medication management, patient identification, documentation, and credentialing and privileging. Requirements specific to the new accreditation program include:
- - Streamlined emergency management requirements to address providing care and clinical support remotely rather than in a physical building.
- - New standards for telehealth provider education and patient education about the use of telehealth platforms and devices.
- - New standards chapter focused on telehealth equipment, devices and connectivity. - April 28 Workers Memorial Day Eventson April 23, 2024 at 2:18 PM
When the nation first observed Workers Memorial Day on April 28, 1970, an estimated 38 U.S. workers suffered fatal on-the-job injuries each day and many more endured debilitating respiratory diseases and other life-altering illnesses related to workplace exposures.
Today, work-related injuries in the U.S. claim about 15 people’s lives a day. In 2022, a reported 5,486 workers suffered fatal injuries, an increase of 296 worker deaths from 2021.
This year, the Department of Labor’s Occupational Safety and Health Administration and Mine Safety and Health Administration will remind the nation of the importance of protecting workers as families, friends, co-workers and the community at-large gather across the country for Workers Memorial Day events on Sunday, April 28 to honor people who didn’t come home at the end of their shift.
"As we honor our fallen workers on Workers Memorial Day, we must remember that behind each workplace fatality there are loved ones enduring unimaginable grief," said Assistant Secretary for Occupational Safety and Health Doug Parker. "It is for the lost workers and those left behind that we continue to fight for every worker’s right to a safe working environment. Our mission at OSHA is to ensure that when someone leaves for work, they know they’ll come home safe at the end of the day to the arms of their families and loved ones."
To commemorate Workers Memorial Day, the department will host a week-long series of events from April 22-25 to educate employers on the importance of safe and healthy workplaces. The series will culminate at an in-person and nationally livestreamed event at 1 p.m. EDT at its Washington headquarters where OSHA and MSHA leaders will join AFL-CIO President Liz Shuler and United Support & Memorial for Workplace Fatalities Board Member Stacy Sebald, whose 19-year-old son Mitchell McDaniel suffered fatally injuries in an agriculture incident in 2019.
"We come together on Workers Memorial Day to remember those we have lost in workplace accidents and to prevent work-related illnesses," said Assistant Secretary for Mine Safety and Health Chris Williamson. "At MSHA, we know a safe workplace isn’t a privilege - it’s every miner’s right. It is in the memory of fallen workers that we continue to advocate for each miner’s safety, health and dignity."
Join OSHA and MSHA representatives, families, workers, labor unions, advocates and others to remember the lives lost and raise awareness of workplace safety to help prevent future tragedies. Find a local Workers Memorial Day event.
Learn more about Workers Memorial Day events nationwide and view the April 25 livestream. - DWC Updates and Posts Time of Hire Noticeon April 23, 2024 at 2:18 PM
The Division of Workers’ Compensation (DWC) has posted an updated time of hire notice on its website. The time of hire notice was previously referred to as the time of hire pamphlet.
The notice, which is posted in English and Spanish versions, meets the requirements under Labor Code section 3551 to notify new employees about California workers’ compensation rights and benefits either at the time of hire or by the end of the first pay period.
The time of hire notice was created in 2011 to help employers and claims administrators ensure that employees know what to do in case of workplace injury.
This notice can be customized as long as the text meets the "time of hire" legal requirements. Title 8, California Code of Regulations section 9883 allows insurers, employers or private enterprises to prepare and publish the notice upon prior approval of the form and content of the notice by the Administrative Director. A revised time of hire notice should be submitted via email to DWC for review, using the subject line “Time of Hire Notice Approval Request.” - PAGA Plaintiff No Longer Required to Have an Individual Claimon April 22, 2024 at 3:18 PM
Lizbeth Balderas was a Fresh Start Harvesting, Inc employee. In June 2022, she filed a complaint for civil penalties for violations of the California Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) on behalf of herself and 500 other current and former employees of defendant Fresh Start Harvesting, Inc
In her lawsuit she alleged, "Ms. Balderas is not suing in her individual capacity; she is proceeding herein solely under the PAGA, on behalf of the State of California for all aggrieved employees, including herself and other aggrieved employees."
Balderas claimed that Fresh Start did not provide employees with required meal break periods and rest periods, and that Fresh Start provided inaccurate wage statements, made untimely wage payments, and failed to pay wages at termination. Fresh Start filed a motion to compel arbitration.
Fresh Start filed a motion to compel arbitration.
On its own motion, the trial court gave notice of its intent to strike Balderas’s complaint. It said because she had not filed an individual action seeking PAGA relief for herself, she lacked standing to pursue a "non-individual" or representative PAGA action on behalf of other employees.
The trial court ruled Balderas lacked standing to bring a representative PAGA action on behalf of other employees because she did not allege "an individual claim" in the action. The Court of Appeal reversed in the published case of Balderas v. Fresh Start Harvesting, Inc. -B326759 (April 2024).
The Court of Appeal said that PAGA is a remedial statute intended to protect employees from employer misconduct. Remedial statutes must be broadly interpreted to achieve the legislative goals. (In re Delila D. (2023) 93 Cal.App.5th 953, 974.) PAGA provisions must be interpreted broadly to protect employees. (Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th at p. 1122.)
Class or representative PAGA actions play an important function in enforcing [the Labor Code] by permitting employees . . . a relatively inexpensive way to resolve their disputes about unlawful employer conduct. (Piplack v. In-N-Out Burgers (2023) 88 Cal.App.5th 1281- 1286.)
The statutory goal is furthered by extending broad standing to aggrieved employees that does not depend on the viability or strength of a plaintiff’s individual PAGA claim. In fact, the inability for an employee to pursue an individual PAGA claim does not prevent that employee from filing a representative PAGA action. California courts have consistently held that " ' [p]aring away the plaintiff’s individual claims' " for one reason or another, " 'does not deprive the plaintiff of standing to pursue representative claims under PAGA.' " (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 - 1122.)
These broad-standing policies that allow employees the freedom to bring representative PAGA actions to challenge unfair employer policies had not been questioned until 2022 when the United State Supreme Court made some observations about PAGA standing that conflicted with what the California Legislature intended.
In Viking River Cruises v. Moriana (2022) _ U.S. _ [213 L.Ed.2d 179, 200-201] (Viking River), the United States Supreme Court wrote, "Under PAGA’s standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action." (Italics added.) "When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit." (Ibid., italics added.)
In reliance on this language, the trial court struck Balderas’s "non-individual" representative PAGA action. It noted that in her complaint Balderas alleged, "Ms. Balderas is not suing in her individual capacity; she is proceeding herein solely under the PAGA, on behalf of the State of California for all aggrieved employees, including herself and other aggrieved employees" of Fresh Start. Noting that she did not file her own individual PAGA claim, the court found under Viking River she could not bring this representative PAGA action for penalties.
In Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th at page 1119, our Supreme Court held Viking River was incorrect on PAGA standing and its decision on that issue may not be followed by California courts. The court wrote, "Because ‘[t]he highest court of each State . . . remains "the final arbiter of what is state law" (Montana v. Wyoming (2011) 563 U.S. 368, 378, fn. 5 [179 L.Ed.2d 799]), we are not bound by the high court’s interpretation of California law."
The Adolph court concluded that the Viking River requirement of having to file an individual PAGA cause of action to have standing to file a representative PAGA suit was incorrect. There are only two requirements for PAGA standing. "The plaintiff must allege that he or she is (1) ‘someone "who was employed by the alleged violator" and (2) someone "against whom one or more of the alleged violations was committed." (Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th at p. 1120.)
Balderas met the standing requirements.The order striking the pleading is reversed. Costs on appeal are awarded to appellant. - Cal/OSHA Cites Construction Company $371K for Fatal Trench Collapseon April 22, 2024 at 3:18 PM
Cal/OSHA has cited D’Arcy & Harty Construction, Inc. $371,100 for failing to protect employees working in a trench excavation at a construction site in San Francisco. On September 28, 2023, an employee was replacing sewer parts inside the eight-foot-deep trench at 1101 Oak Street when the excavation collapsed, fatally burying the 24-year-old worker.
The 25-year-old man who died was identified as Javier Romero from Alameda County. Romero became trapped under 8 feet of dirt when the trench collapsed in the area of Oak and Divisadero streets.
He was working on part of the San Francisco Public Utilities Commission's Panhandle and Inner Sunset Large Sewer Rehabilitation Project to upgrade existing sewer mains and sewer laterals in the area, SFPUC officials said at the time.
Cal/OSHA investigators determined D’Arcy & Harty Construction, Inc. committed willful-serious safety violations by failing to provide a protective system for employees working in the trench and for failing to provide a means of escape such as a ladder in case of collapse - hazards the employer had been warned about weeks before.
In that earlier inspection, a Cal/OSHA investigator had told D’Arcy & Harty Construction Inc. that a trench excavation at 3475 22nd Street did not have adequate shoring and did not have a ladder or other means for workers to escape in case of collapse. The hazards at that San Francisco site were abated before work was able to continue.
Cal/OSHA cited D’Arcy & Harty Construction, Inc., for eight violations total in the fatal September 28 incident, including three categorized as serious accident-related for failure to conduct daily safety inspections of the trench for evidence of possible cave-ins before an employee is allowed to work inside the trench, and failure to properly use equipment and materials to prevent employee exposure to excavation and trenching hazards.
Cal/OSHA offers extensive information and resources on working safely in the construction industry, including how to safely perform trench and excavation operations. Before starting excavation work, the approximate locations of all underground installations that may be encountered during excavation operations must be determined and the proper notification must be made to the appropriate agency in either Northern or Southern California. A permit from the local Cal/OSHA district office must be obtained before the construction of excavations five feet or deeper into which any person is required to descend.
Acting Cal/OSHA Chief Debra Lee said: "Excavations are known hazards and trenches must be evaluated, shored or shielded before workers enter to protect them. This worker’s death is tragic because it was avoidable."