- County of Ventura Prevails in Employee Overtime Pay Class Actionon December 1, 2023 at 12:50 PM
In this case, plaintiffs are Ventura County, California firefighters and law enforcement officers who (except for one plaintiff) are members of two unions, the Ventura County Professional Firefighters’ Association (PFA) and the Ventura County Deputy Sheriffs’ Association (DSA). The County sponsors various health insurance plans for its eligible employees and their dependents. Under agreements between the unions and the County, plaintiffs were eligible to enroll in union-sponsored health insurance plans instead of the County’s plans.
The County manages health benefits for union and non-union employees alike through its Flexible Benefits Program. As part of this "cafeteria plan," the County provides its employees every pay period with a Flexible Benefit Allowance, also known as the "Flex Credit," which employees may use to purchase health benefits on a pre-tax basis.
The amount of the Flex Credit for union members is set through negotiation between the County and the unions. If the premium for an employee’s chosen health insurance is more than the Flex Credit, the balance of the premium owed is deducted from the employee’s pre-tax earnings. If the premium is less than the Flex Credit, the remainder is paid to the employee in cash as taxable earnings.
Employees can also waive participation in the Flexible Benefits Program altogether, in which case they do not receive the Flex Credit.
In the early 1990s, the County, in consultation with union representatives, developed another option for employees who did not wish to purchase a sponsored benefits plan yet wanted to retain their Flex Credit. Specifically, an employee who already has medical insurance from another source, such as a spouse’s plan, may choose to "opt out" of the Flexible Benefits Program. Employees who opt out are allotted the same Flex Credit but must pay an opt-out fee.
Both the Flex Credit and opt-out fee appear on employees’ paystubs: the Flex Credit is listed under "Earnings" and the "opt-out fee" appears as a "before tax deduction." The County subtracts the opt-out fee from the Flex Credit and then pays the balance to the employee in cash. Union members pay the same opt-out fee as all other County employees who opt out of the Flexible Benefits Program. The amount of the opt-out fee varies from year to year, but it generally comprises most of the Flex Credit.
Plaintiffs opted out of the Flexible Benefits Program and were paid in cash the balance of the Flex Credit less the opt-out fee. The County treated this residual cash payment as part of plaintiffs’ regular rate of pay when calculating their overtime compensation. But the County did not include in that calculation the value of the opt-out fee.
Plaintiffs filed this putative class action under the FLSA challenging that determination. See 29 U.S.C. § 216(b). They argued that the exclusion of the opt-out fee from their "regular rate" of pay resulted in the County underpaying plaintiffs for overtime work, in violation of the FLSA.
The district court granted summary judgment to the County, concluding that the opt-out fee was properly excluded from plaintiffs’ regular rate of pay under a statutory exception for health plan contributions. The 9th Circuit Court of Appeals affirmed in the published case of Anthony Sanders et. al. v The County of Ventura 22-55663 (November 2023).
Plaintiffs maintain that the FLSA requires the whole Flex Credit, including the opt-out fee, to be included in their regular rate of pay citing Flores v. City of San Gabriel, 824 F.3d 890 (9th Cir. 2016).
However in Flores, the City of San Gabriel provided its employees with a designated sum that they could use to purchase medical benefits, but any employee who supplied proof of alternate coverage could forgo the benefits and instead directly receive that sum in cash. The 9th Circuit cconcluded that these "cash-in-lieu of benefits payments" were not excluded under § 207(e)(4) because they were not paid "to a trustee or third person," as that statutory exception requires.
The County here complied with this aspect of Flores: it treated the cash it paid to plaintiffs - the difference between the Flex Credit and the opt-out fee - as part of plaintiffs’ regular rate of pay when calculating overtime compensation.
But Flores did not consider opt-out fees like the ones at issue here, and nothing in Flores supports plaintiffs’ theory that the opt-out fee is itself part of plaintiffs’ regular rate of pay. In this case, the opt-out fee does not function like the cash payment in Flores. Indeed, the opt-out fee is not provided to the plaintiffs in cash at all, and employees have no right under the program to access that amount as cash-in-lieu.
For various reasons pointed out in the opinion, the 9th Circuit held that the County properly excluded the Flex Credit opt-out fee from plaintiffs’ regular rate of pay under 29 U.S.C. § 207(e)(4).
- Researchers Report on Healing Potential of Living Biobots and Anthrobotson December 1, 2023 at 12:50 PM
Biobots, also known as biological robots, are a type of robotics that utilizes living cells or their components to create machines that can perform various tasks. These devices are still in their early stages of development, but they hold immense potential for various applications, including medicine, environmental monitoring, and even space exploration.
Anthrobots are a type of biobot specifically created using human cells. These microscopic robots, ranging from the width of a human hair to the point of a sharpened pencil, are designed to carry out tasks depending on the functions of their individual cells and how they work together. They are self-assembled in a lab dish and show remarkable healing effects, particularly in neuron growth across damaged areas in lab conditions.
In a study published in Advanced Science this week, scientists investigated the behavior of Anthrobots that are capable of regenerating damaged neurons in a lab.
The heart of fundamental issues in evolutionary, developmental, cell, and synthetic biology, and has been taken up by a rapidly growing field focusing on building new kinds of active living structures: biobots.
This emerging multidisciplinary effort to control the behavior of cellular collectives has garnered much excitement for two main reasons. First, it offers the possibility of using engineering to reach outcomes that are too complex to micromanage directly, and hence promises to revolutionize efforts to produce complex tissues for clinical applications in regenerative medicine and beyond.
Second, increased control over the morphology and behavior of cellular collectives by leveraging morphogenetic tissue plasticity could enable the development of self-constructing living structures by design with predictable and programmable functional properties and numerous practical uses, greatly extending the current abilities of traditional fabrication practices in diverse fields as robotics,architecture, sustainable construction, and even space exploration.
In the last decade, interest in developing biological structures de novo has seen a rapid surge.Among these efforts, a subset of functional biogenic assemblies gave rise to a special class of motile synthetic structures dubbed biobots.
Early examples of biobots are hybrids between biological cells and inert chemical substances supporting them, such as gels or 3D-printed scaffolds. These assemblies incorporated living cells ranging from bacteria to diverse mammalian tissues such as nerve, muscle, and neuromuscular junctions (NMJs), as well as engineered cell lines with programmable features, all carefully crafted into diverse 3D scaffolds designed to harness and amplify the innate functionality of biological cells.
A different approach resulted in Xenobots, the first fully-biological biobots created by sculpting or molding amphibian embryonic cells into multicellular structures that can spontaneously locomote without external pacing.
But it was not known how general these phenomena are, whether this kind of plasticity extended to mammals, or what the throughput of this technology can be. Thus, researcher sought to address whether the capacity of genetically unaltered cells to generate a self-propelled, multicellular living structure in this way is unique to amphibian embryonic cells, and whether such a living structure can be built without needing to be individually sculpted or molded, but instead coaxed to self-construct from an initial seed cell, resulting in a high-throughput process wherein large numbers of biobots can be grown in parallel.
Their research found that Anthrobots induce efficient healing of defects in live human neural monolayers in vitro, causing neurites to grow into the gap and join the opposite sides of the injury. Passive materials did not recapitulate this effect, but it is not yet known which of the many possible biochemical and biophysical aspects of Anthrobot presence are required for this.
Biobots represent a promising area of research with the potential to revolutionize various fields. As scientists continue to develop and refine these technologies, we can expect to see even more innovative and impactful applications in the years to come. With enough development, the researchers believe Anthrobots may eventually acquire other applications, such as clearing plaque buildup for atherosclerosis patients, repairing damaged spinal cords or retinal nerves, detecting bacteria and cancer cells or even delivering drugs to specific body tissues.
- Exclusive Remedy Bars Suit for Worker's Fatal Injuries on Business Tripon November 30, 2023 at 2:02 PM
Deniece Abraham worked for Wells Fargo at its business support call center in Sacramento. She was part of a team of traveling bankers that went to Virginia to train new call center employees who had been hired to staff a business support call center in that state.
As part of the traveling banker training, Wells Fargo promoted the traveling banker position as an opportunity to network with colleagues from other branches and pursue leadership roles. A trip to Virginia was scheduled to occur between November 24, 2019, and November 27, 2019, with each day’s training sessions lasting from 7:00 a.m. until 3:00 p.m. After 3:00 p.m., the traveling bankers were considered to be on their own time and free to do whatever they wanted.
The trip was organized by a manager with Wells Fargo who arranged air travel, lodging, and rental car reservations. All of the traveling bankers from Sacramento were permitted to drive the rental cars reserved for the trip. Further, all the traveling bankers from Sacramento were included in a group text messaging conversation to communicate about the shared use of the rental cars so that everyone could efficiently travel to the training sessions, obtain dinner, or run errands. For the trip, Wells Fargo issued each traveling banker a "purchasing card" to pay for travel expenses and meals. The traveling bankers were prohibited from using the purchasing card to buy alcohol.
On the third day of the trip, November 26, 2019, the traveling bankers discussed plans for dinner that evening, including meeting with trainees and a supervisor from the Virginia office. After training ended for the day, the traveling bankers drank alcohol in the lobby of their hotel. Deniece Abraham and two of her colleagues went to dinner at a karaoke bar using one of the rental cars provided by Wells Fargo. They arrived at the karaoke bar around 8:00 p.m. There, they danced, drank alcohol, and ate chicken wings. Employees from the Virginia Wells Fargo branch arrived at the karaoke bar at approximately 10:00 p.m. and the group continued to dance, drink alcohol, and eat chicken wings.
Shortly after 1:30 a.m., Abraham and her two colleagues left the karaoke bar and used the rental car provided by Wells Fargo to drive back to their hotel room. Abraham was a passenger in the car. At approximately 2:00 a.m., the driver of the rental car crashed into a tree while exiting the freeway. Abraham died from her injuries.
Plaintiffs Diane and John Abraham sued Wells Fargo Bank, N.A. and Sheonta Malbrough for the wrongful death of their daughter Deniece Abraham. Wells Fargo moved for summary judgment, asserting plaintiff’s suit was barred by the exclusive remedy provisions of the Workers’ Compensation Act. Specifically, Wells Fargo argued that, because Abraham was considered a commercial traveler at the time of her deat,her death was caused by a workplace injury that was exclusively compensable with workers’ compensation benefits.
The trial court agreed with Wells Fargo and granted the motion for summary judgment, ultimately leading to dismissal of the case. The Court of Appeal affirmed the dismissal in the unpublished case of Abraham v. Wells Fargo Bank -C098233 (November 2023).
Under the "commercial traveler" rule, an employee traveling on the employer’s business is regarded as acting within the course of employment during the entire period of his, her, or their travel. (Wiseman v. Industrial Acc. Com. (1956) 46 Cal.2d 570, 572.) His or her acts in traveling, procuring food and shelter are all incidents of the employment, and where injuries are sustained during the course of such activities, the Workers' Compensation Act applies.
The Court of Appeal concluded that "Here, Abraham was an employee of Wells Fargo traveling for the purpose of Wells Fargo’s business. During the business trip, Abraham went out for dinner and drinks with colleagues and then died on the way back to the hotel. These undisputed facts establish that Abraham was a commercial traveler at the time of her death, and thus her conduct of traveling and procuring food fell within the conditions of her employment."
- Pervasive Bullying by U.C. Berkeley Women's Soccer Coach Violates Unruh Acton November 30, 2023 at 2:02 PM
Renee Thomas is a "well-regarded soccer player" who was recruited by University of California, Berkeley (UCB) head coach Neil McGuire to play in the 2018-2019 season. McGuire knew at the time that Thomas had already committed to play for the University of Colorado, which had offered her a scholarship. At a meeting with Thomas and her mother in February 2018, McGuire "assured" Thomas that she would be on UCB’s women’s soccer team for four years.
Thomas turned down her scholarship to the University of Colorado to accept a non-scholarship spot on UCB’s team based on McGuire’s "assurances that she was joining a four-year soccer program, that she would play on the team as long as she met the reasonable performance expectations of the program, and that she would be coached in a caring and encouraging manner."
Thomas joined the team as one of six non-scholarship players, performed well, complied with the expectations McGuire laid out for her and "participated in every opportunity available to her to improve her performance." McGuire told her she was "promising enough to rival the best-performing forward on the team" and she was honored at the team’s annual banquet as the most improved player.
During the 2018-2019 season, Thomas "experienced and witnessed" abusive behavior by McGuire. McGuire lost his temper at the athletes "on many occasions," "[i]n fits of rage, he singled out athletes and berated them in front of the team, sometimes nonsensically, to make an example of them and strike fear in the witnessing athletes," he "called young female athletes names, cursed at them, and degraded them with personal insults both related and unrelated to athletic performance," and he "tormented them psychologically and punished them with grueling workouts."
On April 29, 2019, "without warning or explanation," McGuire released Thomas and four others from the team. It was "rare" for McGuire to release players from the team and "quite unusual that he released five players at once."
Thomas initially filed a complaint in federal court alleging disparate treatment of the UCB men’s and women’s soccer teams in violation of United States Code title IX (20 U.S.C. § 1681 et seq.) (Title IX) and California Education Code section 66271.8, gender discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51) (Unruh Act), and negligence and negligent infliction of emotional distress, all based on her unjustifiable release from the team. The federal district court dismissed the first amended complaint without leave to amend, finding Thomas failed to state any of her claims and leave to amend would be futile.
Thomas then filed her complaint in California Superior Court on September 11, 2020, alleging claims against McGuire and Jim Knowlton, UCB’s Athletic Director, for violation of the Unruh Act and negligence, and against McGuire for breach of fiduciary duty and fraud. She subsequently filed a first amended complaint adding that UCB was liable pursuant to Government Code section 815.2. The defendants demurred.
The trial court sustained the demurrer with leave to amend only the fraud claim against McGuire. The court held that Thomas failed to state causes of action for violation of the Unruh Act or Civil Code section 51.9 (which Thomas argued was actually the basis for her Unruh Act claim), negligence or breach of fiduciary duty, and that the fraud claim against UCB was barred by governmental immunity (Gov. Code, § 818.8 [public entity not liable for employee’s misrepresentation]).
Thomas’s second amended complaint, was filed on July 6, 2021. The trial court adopted its tentative ruling sustaining another demurrer without leave to amend, finding that Thomas failed to allege all the required elements of a cause of action for fraud and McGuire was entitled to public employee misrepresentation immunity (Gov. Code, § 822.2).
Thomas appealed the dismissal. The Court of Appeal concluded Thomas sufficiently pleaded a cause of action for sexual harassment in violation of Civil Code section 51.9 against the head coach and UCB and should have been granted leave to amend her complaint to clarify the statutory basis of this claim. In all other respects it affirmed the trial court’s decision in the published case of Thomas v. The Regents of the University of Cal -A164550 (November 2023).
The first cause of action in Thomas’s first amended complaint alleged violation of the Unruh Act. Civil Code section 51, provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).)
Thomas alleged that McGuire and Knowlton "engaged in unreasonable, arbitrary, and invidious discrimination" against her and "denied her full and equal privileges as compared with male athletes"; her gender was a "substantial motivating reason" for McGuire’s and Knowlton’s conduct; and UCB was liable for unlawful actions of its employees under Government Code section 815.2.
As developed in the employment context, federal and state law generally recognizes two theories of liability for sexual harassment claims, quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Hughes v. Pair (2009) 46 Cal.4th 1035 at p. 1043.) The present case involves the "hostile environment form of sexual harassment."
In the employment context, the plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557)
Harassment "because of sex" may be shown where "an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men." (E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir. 2005) 422 F.3d 840, 845 (E.E.O.C.).)
To plead a cause of action for sexual harassment in the form of a hostile environment, "it is ‘only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner."
The Court of Appeal concluded that Plaintiff's "allegations unquestionably describe pervasive bullying behavior toward the young women on the soccer team that created a hostile environment."
"The defendants argue (and the trial court concluded) that they do not allege pervasive sexual harassment because the alleged conduct and comments were not of a sexual or hostile gender-based nature. We disagree. As we have explained, 'there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.' "
- Cal//OSHA May Obtain Search Warrant but Must Show Probable Causeon November 29, 2023 at 2:17 PM
On November 18, 2021, two inspectors from the Division of Occupational Safety and Health were denied consent to inspect the premises of Calvary Chapel of San Jose (Employer), a private school located on church grounds.
On November 29, 2021, the Division sought an "inspection warrant" from the Santa Clara County Superior Court. The Division supported their request for a warrant with two declarations: one from Richard Haskell (Haskell), Associate Safety Engineer, and another from Lisa Brokaw (Brokaw), Staff Attorney. Haskell’s declaration stated, "We were directed to open this inspection in response to a complaint made to the Division’s Fremont District Office on November 16, 2021 that Calvary Christian Academy was not complying with Title 8, section 3205, COVID-19 Prevention, face covering and outbreak reporting requirements."
On November 29, 2021, a Judge of the Santa Clara County Superior Court granted the Division’s request for an inspection warrant. The Division subsequently conducted a site inspection, commencing on November 30, 2021.
On March 10, 2022, the Division issued five citations to Employer, alleging twelve violations of safety orders contained in title 8 of the California Code of Regulations,1 and totaling $67,330 dollars in penalties. Employer filed timely appeals of all the citations on March 21, 2022.
On July 18, 2022, the Employer filed a motion to suppress evidence, arguing all evidence from the inspection should be suppressed because the warrant had been issued without probable cause. The Division filed an opposition on July 28, 2022. Employer filed a reply on August 16, 2022.
On September 1, 2022, Administrative Law Judge (ALJ) Kerry Lewis issued an Order on Motion to Suppress Evidence, which granted Employer’s motion. The ALJ, relying on the Board’s prior jurisprudence, concluded she had jurisdiction to rule on the motion to suppress evidence, and granted the motion after determining the warrant had been issued without probable cause. The ALJ’s Order also excluded any evidence arising from the Division’s inspection of the site.
The Division filed a Petition for Reconsideration with the Occupational Safety and Health Appeals Board (OSHAB) in the case of In Re Calvary Chapel San Jose -1564732 (November 2023). In this case OSHAB affirmed the ALJ’s ruling that Cal/OSHA’s warrant application lacked the requisite probable cause. However the case was remanded for a ruling, on the application of the good faith exception to suppression of the evidence.
Labor Code section 6314, subdivision (b), states that if permission to investigate a place of employment is refused, the Division may seek an inspection warrant pursuant to Code of Civil Procedure section 1822.50 et seq. "An inspection warrant is an order . . . signed by a judge of a court of record, directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning."
The Division’s petition for reconsideration argues, at length, that the Board and its ALJ lack authority to evaluate the validity of the inspection warrant issued by the Santa Clara County Superior Court, and lack authority to grant Employer’s motion to suppress evidence. The Division argues that the California Constitution solely vests courts with original jurisdiction to review such warrants for errors. The Division contends the Legislature can only divest the courts of such jurisdiction if they enact a law pursuant to express or implied constitutional authority, which the Division argues did not happen here.
Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority.
Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority.
Once an appeal has been initiated before the Board, the Board’s operative statutes require parties to contest the citations, and all related issues, to a final decision before the Board prior to seeking judicial review. (Lab. Code, § 6600-6633.) The statutes permit a party aggrieved by a final order or decision of a hearing officer to file a petition for reconsideration before the Board. (Lab. Code, § 6614.) The filing of such a petition for reconsideration is a prerequisite to judicial review, and all issues not in that petition are waived. (Lab. Code, §§ 6615, 6618.) Labor Code section 6615 states,
OSHAB then noted "Taken together, Labor Code sections 6615 and 6618 set forth an exhaustion requirement, providing that all objections, irregularities, and illegalities arising from a final order or decision are waived, and not subject to court review, unless first presented to the Board via a petition for reconsideration. As relevant here, these statutes demonstrate that the adequacy of the warrant must first be presented to the Board, and such remedies exhausted, to prevent waiver." Thus the Board ruled that it had jurisdiction to entertain a motion to suppress.
Cases discussing the constitutionality of inspection warrants in Cal/OSHA proceedings have stated that the search and seizure requirements of the Fourth Amendment and Article I, section 13, of the California Constitution mandate a probable cause requirement for Cal/OSHA inspection warrants. (Salwasser Mfg. Co. v. Mun. Court (1979) 94 Cal.App.3d 223, 231-232 (Salwasser I).)
The standard of probable cause, i.e., the level of scrutiny required for a Cal/OSHA inspection warrant, is detailed in Salwasser Mfg. Co. v. Occupational Safety & Health Appeals Bd. (1989) 214 Cal.App.3d 625 (Salwasser II). Salwasser II found that the criminal probable cause standard is not applicable when the warrant application is based on employee complaints, and instead called for a "lesser standard of administrative probable cause." (Salwasser II, supra, 214 Cal.App.3d at 630.) Salwasser II relied on federal circuit court decisions when discussing and defining this lesser standard of administrative probable cause.
"The Board follows the good faith exception to the exclusionary rule. (Southwest Marine, Inc., supra, Cal/OSHA App. 96-1902.) The Board has previously noted that it will only exclude evidence pursuant to the exclusionary rule when it can be established that the warrant was not obtained in good faith.
The Occupational Safety and Health Appeals Board concluded that the "ALJ has not yet ruled on application of the good faith exception in this particular case. Therefore, it remanded this matter back to hearing operations for consideration, and a ruling, on the application of the good faith exception in this case.
- Cal AG Files Amicus on SCOTUS Transportation Workers' Arbitration Caseon November 29, 2023 at 2:17 PM
The California Attorney General joined a multistate coalition in filing an amicus brief urging the U.S. Supreme Court to reverse a lower court decision holding that only workers employed in the transportation industry can be exempt under the transportation-worker exemption to the Federal Arbitration Act (FAA).
The multistate amicus brief supports the petitioners in Bissonnette v. LePage Bakeries Park St., LLC, et al 59 F. 4th 594 - Court of Appeals, 2nd Circuit 2023, who are truck drivers delivering baked goods to restaurants and stores for baking conglomerate Flowers Foods.
The Bissonnette case involved a dispute between two commercial truck drivers, Neal Bissonnette and Tyler Wojnarowski, and their employer, LePage Bakeries Park St., LLC. The drivers claimed that they were not subject to the Federal Arbitration Act (FAA) because they were "transportation workers" within the meaning of the statute. The FAA excludes from its scope contracts with "seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce."
The United States Court of Appeals for the Second Circuit affirmed the district court's decision that the drivers were not "transportation workers" under the FAA. The court reasoned that the drivers were not employed by a company in the transportation industry, but rather by a bakery that simply used transportation services to distribute its products. The court also noted that the drivers' primary duties did not involve transportation, but rather the sale and merchandising of bakery products.
In their brief, the attorneys general ask the U.S. Supreme Court to reverse that ruling because it is inconsistent with precedent that has rejected defining the exemption by industry, would be unworkable as a practical matter, and prevents states from effectively monitoring commerce and ensuring lawful workplace conditions.
California is home to over 1.5 million transportation workers. Of these workers, about 312,080 are truck drivers in a variety of industries, and many of these workers are directly related to the movement of goods, even if they do not directly work for a trucking company. For the many California workers in the sector, workable standards safeguard their access to the courts, lessening the probability they will be erroneously diverted to arbitration and abandon their claims.
The California Attorney General joins the attorneys general of Illinois, Colorado, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.
The decision in Bissonnette has important implications for employers and employees in the transportation industry. The decision clarifies that the FAA does not apply to all workers who are engaged in interstate commerce, but only to those who are employed by companies that are primarily engaged in the transportation industry. This distinction could have a significant impact on the enforceability of arbitration agreements in the transportation sector.
The U.S. Supreme Court granted certiorari in Bissonnette on September 29, 2023. Thus the case is currently pending before the Supreme Court. The petitioners' brief was filed on November 13, 2023. The respondents' brief is due on December 15, 2023. The case is likely to be argued before the Supreme Court in early 2024.
- Decline in SAWW Means No TD/PD Rate Increases for 2024on November 28, 2023 at 12:07 PM
The U.S. Department of Labor has issued new data showing California's State Average Weekly Wage (SAWW) edged down 0.48 percent from $1,650 to $1,642 in the 12 months ending March 31, 2023.
As a result, the California Workers’ Compensation Institute (CWCI) notes there will be no change in California’s minimum and maximum temporary total disability (TTD) and permanent total disability (PTD) rates for 2024 work injuries, or in other benefits that are tied to increases in the SAWW.
Under California law, minimum and maximum TTD and PTD rates are subject to annual changes, effective January 1 of each year, based on the percentage increase in the SAWW After increasing steadily for more than a decade, including a 5.159 percent increase last January on top of a record 13.521 percent increase in 2022, the maximum TTD/PTD rate for 2023 job injuries is now $1,619.15 per week, and the minimum is $242.86 per week.
But, with the decline in the SAWW last year, those rates will not need to be adjusted for claims with injury dates on or after January 1, 2024.
The 2022-2023 decline in the SAWW also means that annual cost of living adjustments to life pension and PTD payments on existing claims with injury dates on or after January 1, 2003 will not apply next January, and the maximum rate for death benefit installment payments, which are paid in the same manner and amount as TTD, will remain unchanged.
However, depending on the rate now being paid, some existing older claims that are eligible for more than 104 weeks of TD [e.g., claims involving amputations, hepatitis or any of 9 long-term injuries noted in LC §4656(c)(3)] will qualify for an increase in 2024 as LC §4661.5 requires that any TTD payment made two or more years after the injury date be based on the TTD rate in effect on the date of the payment, unless that would reduce the amount paid.
Thus, a worker who suffered an amputation on April 1, 2022, and who is still receiving TD at the 2022 maximum of $1,539.71, should see that payment increase to the current maximum of $1,619.15 on April 1, 2024 (assuming that rate is justified by their at-injury earnings).
Claims administrators are encouraged to review the latest SAWW figures with legal counsel to confirm that benefit payments are appropriate and accurate. For reference, California’s SAWW data can be found in the U.S. Department of Labor Unemployment Insurance database.
- UCLA Launches New Degree in Disability Studieson November 28, 2023 at 12:07 PM
UCLA is offering a new Bachelor of Arts in disability studies, which aims to bridge academic theories with lived experience and encourage students to advocate for change in their communities.
The program, which is the first disability studies degree at the UC, includes an internship program in a community-based agency and a capstone project, according to the UCLA Undergraduate Education Initiatives. Historically, disability has been taught in terms of clinical solutions, but UCLA’s disability studies program will connect medical education with the social construct of disability, creating a unique learning experience for all students, said Victoria Marks, the chair of the disability studies interdepartmental degree program as well as the existing minor.
Marks, a professor in the Department of World Arts and Cultures/Dance, said that disability studies are critical because the field challenges what is perceived as normal and forces people to consider the stigmas that those with disabilities face.
'(Disability studies) is a way of thinking about how we construct identities around health and well-being, functionality and in some degrees, citizenship itself," she said.
While the major has been in discussion for many years, there were difficulties in figuring out what departments would be involved because of its interdisciplinary nature, said Brooke Wilkinson, director of academic initiatives for the Undergraduate Education Initiative.
Wilkinson said the major is more organized than the already existing minor, with classes from multiple disciplines centered around disability studies. The courses cover subjects such as health humanities and bioethics, where students can view these topics through disability studies - a lens that students rarely view these disciplines through, she added.
The major also allows students to blend their personal interests and experiences, Wilkinson said, adding that students are able to specialize in a topic that they select through the internship, which culminates in a senior capstone project.
Augustine Udukumbura, a member of the Disabled Student Union, said they believe it is important for nondisabled students to learn about these topics so they can more effectively help advocate for disabled students.
"Having it (the disability studies major) really spots disabled people, but it also puts us into everyday conversation," said Udukumbura, who is also a fourth-year gender studies and sociology transfer student.
Some students have already expressed interest in the major. Elanor Armstrong, a first-year psychology student, said she plans on applying to the disability studies major, adding that she has worked and wants to work with individuals with disabilities after she graduates college.
She said she believes disability studies are important to normalize disabilities, as many people are not aware of what it means to have a disability, what having a disability looks like or what it is like for a family member to have a disability.
"(The creation of the major) shows that UCLA is an inclusive campus that provides the resources for people to learn and grow," Armstrong said.
She added that the possibility of the major was one of the reasons why she decided to attend UCLA, as things like the internship will allow her to have real-world experience with the course content.
As part of the upper-division coursework for the major, students must take four electives on interdisciplinary perspectives in disability, according to UEI. These courses are offered by a variety of departments, such as community health, English and gender studies.
Udukumbura, who has bipolar disorder, said they believe such an intersectional approach allows disabled students to learn more about their conditions from different perspectives, as people with the same disability might experience their condition in different ways.
"I think, in a sense, it helps me make space for my own feelings," they said. "It really helps to have almost an explanation."
Armstrong said she hopes the major will help her decide how she wants disability studies to be incorporated into her career path. Students can go on to work in all kinds of fields - including law, medicine or education - once they graduate with the disability studies major, Wilkinson said.
"It allows all students, whether disabled or not disabled, to have language for and think about, tangibly, how it is that we move through the world differently," Marks said.
Udukumbura added that they hope the interdisciplinary approach will help validate the experiences and feelings of disabled students studying their disability or other disabilities.
Marks said she hopes the major will ultimately allow students to vouch for diverse communities and advocate for change.
"These students will go on to be the people who make changes in the world that affect all of our lives," she said. "A new generation will come up who can take on these complex issues of rights and justice and respect and dignity and care."
- DWC Proposes Changes to QME Regulationson November 27, 2023 at 10:13 AM
The Division of Workers’ Compensation has issued a second notice of public comment period beginning on November 21, 2023, for modifying the text of proposed amendments to the Qualified Medical Evaluator (QME) Regulations. The affected regulations are Title 8, California Code of Regulations Sections 1, 11, 11.5, 14, 33, 35, 35.5, 50, 51, 52, 54, 55, 55.1, 56, 57, 63, 10133.54 & 10133.55. (QME Process Regulations).
The proposed changes are necessary to bring existing regulations into compliance with amendments to the Labor Code and to clarify the Administrative Director’s authority with respect to the process related to appointment and reappointment of QMEs, which is granted by relevant statutory authority.
The proposed regulations are amended to provide greater clarity to the wording. Based upon issues of clarity and to provide ease of interpretation, DWC proposes to update the text of the proposed amendments of the regulations to:
- - Provide a clearer definition of and the reason for encryption of Electronic Transmissions.
- - Delete unnecessary phase-in periods for certain regulations as a result of the new anticipated effective date of April 1, 2024 for the proposed regulations.
- - Add a new regulation that delineates the new continuing education hour and subject matter requirements that apply to applications for reappointment after April 1 2026.
- - Clarify the definition "new medical legal evaluation" for purposes of satisfying criteria for QME unavailability.
- - Provide criteria for the Administrative Director’s use of the exercise of discretion in the QME reappointment process.
- - Provide examples of good cause, provide clarity to the regulatory language and delete confusing language where necessary in the regulations involving reappointment and denial of reappointment for QMEs.
- - Add and in some cases delete language and hours of accreditation to clarify the proper interpretation of regulations related to the Continuing Education requirements.
- - Define and add criteria for good cause in the exercise of discretion by the Administrative Director in granting an appeal of denial of reappointment when a hearing is anticipated.
- - Correct typographical errors.
DWC has also published a Supplemental Initial Statement of Reasons to provide additional information about the need for and economic impact of the proposed regulations.
DWC will consider all public comments. The 15-day notice of modification to the text of the proposed regulations and the text of the regulations can be found on DWC’s rulemaking page.
Written comments should be addressed to:
Maureen Gray, regulations coordinator
Department of Industrial Relations
Division of Workers' Compensation
1515 Clay Street, 18th floor
Oakland, CA 94612
The Division’s contact person must receive all written comments concerning the proposed modification to the regulations no later than December 11, 2023. Written comments may be submitted by facsimile transmission (FAX), addressed to the contact person at (510) 286-0687. Written comments may also be sent electronically (via e-mail), using the following e-mail address: dwcrules@dir.ca.gov.
- Labor Commissioner Reaches $1 Million Settlement in Wage Theft Caseon November 27, 2023 at 10:13 AM
The Labor Commissioner’s Office has settled a lawsuit against Glendale-based Calcrete Construction Inc. for over $1 million for multiple wage theft violations, including overtime and paid sick leave law violations, affecting 249 construction workers.
"This employer used various illegal tactics to circumvent paying owed wages," said Labor Commissioner Lilia García-Brower. "My team responded aggressively to recover stolen wages and expose systemic violations."
The Labor Commissioner’s Office began investigating in October 2016 after receiving a complaint from the Carpenters / Contractors Cooperation Committee, a union-affiliated, non-profit organization that advocates for workplace compliance within the construction industry.
The investigation found that Calcrete failed to pay workers for overtime hours, allocate pay for sick leave and provide proper wage statements. As one example, Calcrete employees regularly worked 45-68 hours a week but were not paid overtime during a two-year period audited from 2014-2016. The settlement will pay workers overtime wages owed with interest, with payments ranging from $344 to $20,893.
The Labor Commissioner’s Office filed a lawsuit against Calcrete Construction, Inc. in August 2017, seeking $6,300,338 for multiple wage theft violations affecting a group of 249 construction workers and the willful misclassification of 175workers as independent contractors.
The lawsuit claimed that beginning in August 2016, Calcrete forced its workers under threat of termination to sign contracts stating they were independent contractors.The company then used staffing agencies Dominion Staffing and Southeast Personnel Leasing to pay the workers.
Calcrete employees typically worked 10-12 hours Monday through Friday and eight hours on Saturday. They were paid only their regular hourly rate and not for the 18-28 hours of overtime they regularly worked. Thisunderpayment occurred for a nearly two-year period from 2014-16, the lawsuit specifies.
Enforcement investigations typically include a payroll audit of previous years to determine minimum wage, overtime, and other labor law violations, and to calculate payments owed and penalties due. When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest.
The Department of Industrial Relations’ Division of Labor Standards Enforcement (California Labor Commissioner’s Office) combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices.
Workers employed at Calcrete beginning August 1, 2014 to September 30, 2016 should contact the LCO at 833-LCO-INFO (833-526-4636), as they may be entitled to owed wages and damages under this settlement agreement.
- County of Ventura Prevails in Employee Overtime Pay Class Actionon December 1, 2023 at 12:50 PM
In this case, plaintiffs are Ventura County, California firefighters and law enforcement officers who (except for one plaintiff) are members of two unions, the Ventura County Professional Firefighters’ Association (PFA) and the Ventura County Deputy Sheriffs’ Association (DSA). The County sponsors various health insurance plans for its eligible employees and their dependents. Under agreements between the unions and the County, plaintiffs were eligible to enroll in union-sponsored health insurance plans instead of the County’s plans.
The County manages health benefits for union and non-union employees alike through its Flexible Benefits Program. As part of this "cafeteria plan," the County provides its employees every pay period with a Flexible Benefit Allowance, also known as the "Flex Credit," which employees may use to purchase health benefits on a pre-tax basis.
The amount of the Flex Credit for union members is set through negotiation between the County and the unions. If the premium for an employee’s chosen health insurance is more than the Flex Credit, the balance of the premium owed is deducted from the employee’s pre-tax earnings. If the premium is less than the Flex Credit, the remainder is paid to the employee in cash as taxable earnings.
Employees can also waive participation in the Flexible Benefits Program altogether, in which case they do not receive the Flex Credit.
In the early 1990s, the County, in consultation with union representatives, developed another option for employees who did not wish to purchase a sponsored benefits plan yet wanted to retain their Flex Credit. Specifically, an employee who already has medical insurance from another source, such as a spouse’s plan, may choose to "opt out" of the Flexible Benefits Program. Employees who opt out are allotted the same Flex Credit but must pay an opt-out fee.
Both the Flex Credit and opt-out fee appear on employees’ paystubs: the Flex Credit is listed under "Earnings" and the "opt-out fee" appears as a "before tax deduction." The County subtracts the opt-out fee from the Flex Credit and then pays the balance to the employee in cash. Union members pay the same opt-out fee as all other County employees who opt out of the Flexible Benefits Program. The amount of the opt-out fee varies from year to year, but it generally comprises most of the Flex Credit.
Plaintiffs opted out of the Flexible Benefits Program and were paid in cash the balance of the Flex Credit less the opt-out fee. The County treated this residual cash payment as part of plaintiffs’ regular rate of pay when calculating their overtime compensation. But the County did not include in that calculation the value of the opt-out fee.
Plaintiffs filed this putative class action under the FLSA challenging that determination. See 29 U.S.C. § 216(b). They argued that the exclusion of the opt-out fee from their "regular rate" of pay resulted in the County underpaying plaintiffs for overtime work, in violation of the FLSA.
The district court granted summary judgment to the County, concluding that the opt-out fee was properly excluded from plaintiffs’ regular rate of pay under a statutory exception for health plan contributions. The 9th Circuit Court of Appeals affirmed in the published case of Anthony Sanders et. al. v The County of Ventura 22-55663 (November 2023).
Plaintiffs maintain that the FLSA requires the whole Flex Credit, including the opt-out fee, to be included in their regular rate of pay citing Flores v. City of San Gabriel, 824 F.3d 890 (9th Cir. 2016).
However in Flores, the City of San Gabriel provided its employees with a designated sum that they could use to purchase medical benefits, but any employee who supplied proof of alternate coverage could forgo the benefits and instead directly receive that sum in cash. The 9th Circuit cconcluded that these "cash-in-lieu of benefits payments" were not excluded under § 207(e)(4) because they were not paid "to a trustee or third person," as that statutory exception requires.
The County here complied with this aspect of Flores: it treated the cash it paid to plaintiffs - the difference between the Flex Credit and the opt-out fee - as part of plaintiffs’ regular rate of pay when calculating overtime compensation.
But Flores did not consider opt-out fees like the ones at issue here, and nothing in Flores supports plaintiffs’ theory that the opt-out fee is itself part of plaintiffs’ regular rate of pay. In this case, the opt-out fee does not function like the cash payment in Flores. Indeed, the opt-out fee is not provided to the plaintiffs in cash at all, and employees have no right under the program to access that amount as cash-in-lieu.
For various reasons pointed out in the opinion, the 9th Circuit held that the County properly excluded the Flex Credit opt-out fee from plaintiffs’ regular rate of pay under 29 U.S.C. § 207(e)(4). - Researchers Report on Healing Potential of Living Biobots and Anthrobotson December 1, 2023 at 12:50 PM
Biobots, also known as biological robots, are a type of robotics that utilizes living cells or their components to create machines that can perform various tasks. These devices are still in their early stages of development, but they hold immense potential for various applications, including medicine, environmental monitoring, and even space exploration.
Anthrobots are a type of biobot specifically created using human cells. These microscopic robots, ranging from the width of a human hair to the point of a sharpened pencil, are designed to carry out tasks depending on the functions of their individual cells and how they work together. They are self-assembled in a lab dish and show remarkable healing effects, particularly in neuron growth across damaged areas in lab conditions.
In a study published in Advanced Science this week, scientists investigated the behavior of Anthrobots that are capable of regenerating damaged neurons in a lab.
The heart of fundamental issues in evolutionary, developmental, cell, and synthetic biology, and has been taken up by a rapidly growing field focusing on building new kinds of active living structures: biobots.
This emerging multidisciplinary effort to control the behavior of cellular collectives has garnered much excitement for two main reasons. First, it offers the possibility of using engineering to reach outcomes that are too complex to micromanage directly, and hence promises to revolutionize efforts to produce complex tissues for clinical applications in regenerative medicine and beyond.
Second, increased control over the morphology and behavior of cellular collectives by leveraging morphogenetic tissue plasticity could enable the development of self-constructing living structures by design with predictable and programmable functional properties and numerous practical uses, greatly extending the current abilities of traditional fabrication practices in diverse fields as robotics,architecture, sustainable construction, and even space exploration.
In the last decade, interest in developing biological structures de novo has seen a rapid surge.Among these efforts, a subset of functional biogenic assemblies gave rise to a special class of motile synthetic structures dubbed biobots.
Early examples of biobots are hybrids between biological cells and inert chemical substances supporting them, such as gels or 3D-printed scaffolds. These assemblies incorporated living cells ranging from bacteria to diverse mammalian tissues such as nerve, muscle, and neuromuscular junctions (NMJs), as well as engineered cell lines with programmable features, all carefully crafted into diverse 3D scaffolds designed to harness and amplify the innate functionality of biological cells.
A different approach resulted in Xenobots, the first fully-biological biobots created by sculpting or molding amphibian embryonic cells into multicellular structures that can spontaneously locomote without external pacing.
But it was not known how general these phenomena are, whether this kind of plasticity extended to mammals, or what the throughput of this technology can be. Thus, researcher sought to address whether the capacity of genetically unaltered cells to generate a self-propelled, multicellular living structure in this way is unique to amphibian embryonic cells, and whether such a living structure can be built without needing to be individually sculpted or molded, but instead coaxed to self-construct from an initial seed cell, resulting in a high-throughput process wherein large numbers of biobots can be grown in parallel.
Their research found that Anthrobots induce efficient healing of defects in live human neural monolayers in vitro, causing neurites to grow into the gap and join the opposite sides of the injury. Passive materials did not recapitulate this effect, but it is not yet known which of the many possible biochemical and biophysical aspects of Anthrobot presence are required for this.
Biobots represent a promising area of research with the potential to revolutionize various fields. As scientists continue to develop and refine these technologies, we can expect to see even more innovative and impactful applications in the years to come. With enough development, the researchers believe Anthrobots may eventually acquire other applications, such as clearing plaque buildup for atherosclerosis patients, repairing damaged spinal cords or retinal nerves, detecting bacteria and cancer cells or even delivering drugs to specific body tissues. - Exclusive Remedy Bars Suit for Worker's Fatal Injuries on Business Tripon November 30, 2023 at 2:02 PM
Deniece Abraham worked for Wells Fargo at its business support call center in Sacramento. She was part of a team of traveling bankers that went to Virginia to train new call center employees who had been hired to staff a business support call center in that state.
As part of the traveling banker training, Wells Fargo promoted the traveling banker position as an opportunity to network with colleagues from other branches and pursue leadership roles. A trip to Virginia was scheduled to occur between November 24, 2019, and November 27, 2019, with each day’s training sessions lasting from 7:00 a.m. until 3:00 p.m. After 3:00 p.m., the traveling bankers were considered to be on their own time and free to do whatever they wanted.
The trip was organized by a manager with Wells Fargo who arranged air travel, lodging, and rental car reservations. All of the traveling bankers from Sacramento were permitted to drive the rental cars reserved for the trip. Further, all the traveling bankers from Sacramento were included in a group text messaging conversation to communicate about the shared use of the rental cars so that everyone could efficiently travel to the training sessions, obtain dinner, or run errands. For the trip, Wells Fargo issued each traveling banker a "purchasing card" to pay for travel expenses and meals. The traveling bankers were prohibited from using the purchasing card to buy alcohol.
On the third day of the trip, November 26, 2019, the traveling bankers discussed plans for dinner that evening, including meeting with trainees and a supervisor from the Virginia office. After training ended for the day, the traveling bankers drank alcohol in the lobby of their hotel. Deniece Abraham and two of her colleagues went to dinner at a karaoke bar using one of the rental cars provided by Wells Fargo. They arrived at the karaoke bar around 8:00 p.m. There, they danced, drank alcohol, and ate chicken wings. Employees from the Virginia Wells Fargo branch arrived at the karaoke bar at approximately 10:00 p.m. and the group continued to dance, drink alcohol, and eat chicken wings.
Shortly after 1:30 a.m., Abraham and her two colleagues left the karaoke bar and used the rental car provided by Wells Fargo to drive back to their hotel room. Abraham was a passenger in the car. At approximately 2:00 a.m., the driver of the rental car crashed into a tree while exiting the freeway. Abraham died from her injuries.
Plaintiffs Diane and John Abraham sued Wells Fargo Bank, N.A. and Sheonta Malbrough for the wrongful death of their daughter Deniece Abraham. Wells Fargo moved for summary judgment, asserting plaintiff’s suit was barred by the exclusive remedy provisions of the Workers’ Compensation Act. Specifically, Wells Fargo argued that, because Abraham was considered a commercial traveler at the time of her deat,her death was caused by a workplace injury that was exclusively compensable with workers’ compensation benefits.
The trial court agreed with Wells Fargo and granted the motion for summary judgment, ultimately leading to dismissal of the case. The Court of Appeal affirmed the dismissal in the unpublished case of Abraham v. Wells Fargo Bank -C098233 (November 2023).
Under the "commercial traveler" rule, an employee traveling on the employer’s business is regarded as acting within the course of employment during the entire period of his, her, or their travel. (Wiseman v. Industrial Acc. Com. (1956) 46 Cal.2d 570, 572.) His or her acts in traveling, procuring food and shelter are all incidents of the employment, and where injuries are sustained during the course of such activities, the Workers' Compensation Act applies.
The Court of Appeal concluded that "Here, Abraham was an employee of Wells Fargo traveling for the purpose of Wells Fargo’s business. During the business trip, Abraham went out for dinner and drinks with colleagues and then died on the way back to the hotel. These undisputed facts establish that Abraham was a commercial traveler at the time of her death, and thus her conduct of traveling and procuring food fell within the conditions of her employment." - Pervasive Bullying by U.C. Berkeley Women's Soccer Coach Violates Unruh Acton November 30, 2023 at 2:02 PM
Renee Thomas is a "well-regarded soccer player" who was recruited by University of California, Berkeley (UCB) head coach Neil McGuire to play in the 2018-2019 season. McGuire knew at the time that Thomas had already committed to play for the University of Colorado, which had offered her a scholarship. At a meeting with Thomas and her mother in February 2018, McGuire "assured" Thomas that she would be on UCB’s women’s soccer team for four years.
Thomas turned down her scholarship to the University of Colorado to accept a non-scholarship spot on UCB’s team based on McGuire’s "assurances that she was joining a four-year soccer program, that she would play on the team as long as she met the reasonable performance expectations of the program, and that she would be coached in a caring and encouraging manner."
Thomas joined the team as one of six non-scholarship players, performed well, complied with the expectations McGuire laid out for her and "participated in every opportunity available to her to improve her performance." McGuire told her she was "promising enough to rival the best-performing forward on the team" and she was honored at the team’s annual banquet as the most improved player.
During the 2018-2019 season, Thomas "experienced and witnessed" abusive behavior by McGuire. McGuire lost his temper at the athletes "on many occasions," "[i]n fits of rage, he singled out athletes and berated them in front of the team, sometimes nonsensically, to make an example of them and strike fear in the witnessing athletes," he "called young female athletes names, cursed at them, and degraded them with personal insults both related and unrelated to athletic performance," and he "tormented them psychologically and punished them with grueling workouts."
On April 29, 2019, "without warning or explanation," McGuire released Thomas and four others from the team. It was "rare" for McGuire to release players from the team and "quite unusual that he released five players at once."
Thomas initially filed a complaint in federal court alleging disparate treatment of the UCB men’s and women’s soccer teams in violation of United States Code title IX (20 U.S.C. § 1681 et seq.) (Title IX) and California Education Code section 66271.8, gender discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51) (Unruh Act), and negligence and negligent infliction of emotional distress, all based on her unjustifiable release from the team. The federal district court dismissed the first amended complaint without leave to amend, finding Thomas failed to state any of her claims and leave to amend would be futile.
Thomas then filed her complaint in California Superior Court on September 11, 2020, alleging claims against McGuire and Jim Knowlton, UCB’s Athletic Director, for violation of the Unruh Act and negligence, and against McGuire for breach of fiduciary duty and fraud. She subsequently filed a first amended complaint adding that UCB was liable pursuant to Government Code section 815.2. The defendants demurred.
The trial court sustained the demurrer with leave to amend only the fraud claim against McGuire. The court held that Thomas failed to state causes of action for violation of the Unruh Act or Civil Code section 51.9 (which Thomas argued was actually the basis for her Unruh Act claim), negligence or breach of fiduciary duty, and that the fraud claim against UCB was barred by governmental immunity (Gov. Code, § 818.8 [public entity not liable for employee’s misrepresentation]).
Thomas’s second amended complaint, was filed on July 6, 2021. The trial court adopted its tentative ruling sustaining another demurrer without leave to amend, finding that Thomas failed to allege all the required elements of a cause of action for fraud and McGuire was entitled to public employee misrepresentation immunity (Gov. Code, § 822.2).
Thomas appealed the dismissal. The Court of Appeal concluded Thomas sufficiently pleaded a cause of action for sexual harassment in violation of Civil Code section 51.9 against the head coach and UCB and should have been granted leave to amend her complaint to clarify the statutory basis of this claim. In all other respects it affirmed the trial court’s decision in the published case of Thomas v. The Regents of the University of Cal -A164550 (November 2023).
The first cause of action in Thomas’s first amended complaint alleged violation of the Unruh Act. Civil Code section 51, provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).)
Thomas alleged that McGuire and Knowlton "engaged in unreasonable, arbitrary, and invidious discrimination" against her and "denied her full and equal privileges as compared with male athletes"; her gender was a "substantial motivating reason" for McGuire’s and Knowlton’s conduct; and UCB was liable for unlawful actions of its employees under Government Code section 815.2.
As developed in the employment context, federal and state law generally recognizes two theories of liability for sexual harassment claims, quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Hughes v. Pair (2009) 46 Cal.4th 1035 at p. 1043.) The present case involves the "hostile environment form of sexual harassment."
In the employment context, the plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557)
Harassment "because of sex" may be shown where "an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men." (E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir. 2005) 422 F.3d 840, 845 (E.E.O.C.).)
To plead a cause of action for sexual harassment in the form of a hostile environment, "it is ‘only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner."
The Court of Appeal concluded that Plaintiff's "allegations unquestionably describe pervasive bullying behavior toward the young women on the soccer team that created a hostile environment."
"The defendants argue (and the trial court concluded) that they do not allege pervasive sexual harassment because the alleged conduct and comments were not of a sexual or hostile gender-based nature. We disagree. As we have explained, 'there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.' " - Cal//OSHA May Obtain Search Warrant but Must Show Probable Causeon November 29, 2023 at 2:17 PM
On November 18, 2021, two inspectors from the Division of Occupational Safety and Health were denied consent to inspect the premises of Calvary Chapel of San Jose (Employer), a private school located on church grounds.
On November 29, 2021, the Division sought an "inspection warrant" from the Santa Clara County Superior Court. The Division supported their request for a warrant with two declarations: one from Richard Haskell (Haskell), Associate Safety Engineer, and another from Lisa Brokaw (Brokaw), Staff Attorney. Haskell’s declaration stated, "We were directed to open this inspection in response to a complaint made to the Division’s Fremont District Office on November 16, 2021 that Calvary Christian Academy was not complying with Title 8, section 3205, COVID-19 Prevention, face covering and outbreak reporting requirements."
On November 29, 2021, a Judge of the Santa Clara County Superior Court granted the Division’s request for an inspection warrant. The Division subsequently conducted a site inspection, commencing on November 30, 2021.
On March 10, 2022, the Division issued five citations to Employer, alleging twelve violations of safety orders contained in title 8 of the California Code of Regulations,1 and totaling $67,330 dollars in penalties. Employer filed timely appeals of all the citations on March 21, 2022.
On July 18, 2022, the Employer filed a motion to suppress evidence, arguing all evidence from the inspection should be suppressed because the warrant had been issued without probable cause. The Division filed an opposition on July 28, 2022. Employer filed a reply on August 16, 2022.
On September 1, 2022, Administrative Law Judge (ALJ) Kerry Lewis issued an Order on Motion to Suppress Evidence, which granted Employer’s motion. The ALJ, relying on the Board’s prior jurisprudence, concluded she had jurisdiction to rule on the motion to suppress evidence, and granted the motion after determining the warrant had been issued without probable cause. The ALJ’s Order also excluded any evidence arising from the Division’s inspection of the site.
The Division filed a Petition for Reconsideration with the Occupational Safety and Health Appeals Board (OSHAB) in the case of In Re Calvary Chapel San Jose -1564732 (November 2023). In this case OSHAB affirmed the ALJ’s ruling that Cal/OSHA’s warrant application lacked the requisite probable cause. However the case was remanded for a ruling, on the application of the good faith exception to suppression of the evidence.
Labor Code section 6314, subdivision (b), states that if permission to investigate a place of employment is refused, the Division may seek an inspection warrant pursuant to Code of Civil Procedure section 1822.50 et seq. "An inspection warrant is an order . . . signed by a judge of a court of record, directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning."
The Division’s petition for reconsideration argues, at length, that the Board and its ALJ lack authority to evaluate the validity of the inspection warrant issued by the Santa Clara County Superior Court, and lack authority to grant Employer’s motion to suppress evidence. The Division argues that the California Constitution solely vests courts with original jurisdiction to review such warrants for errors. The Division contends the Legislature can only divest the courts of such jurisdiction if they enact a law pursuant to express or implied constitutional authority, which the Division argues did not happen here.
Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority.
Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority.
Once an appeal has been initiated before the Board, the Board’s operative statutes require parties to contest the citations, and all related issues, to a final decision before the Board prior to seeking judicial review. (Lab. Code, § 6600-6633.) The statutes permit a party aggrieved by a final order or decision of a hearing officer to file a petition for reconsideration before the Board. (Lab. Code, § 6614.) The filing of such a petition for reconsideration is a prerequisite to judicial review, and all issues not in that petition are waived. (Lab. Code, §§ 6615, 6618.) Labor Code section 6615 states,
OSHAB then noted "Taken together, Labor Code sections 6615 and 6618 set forth an exhaustion requirement, providing that all objections, irregularities, and illegalities arising from a final order or decision are waived, and not subject to court review, unless first presented to the Board via a petition for reconsideration. As relevant here, these statutes demonstrate that the adequacy of the warrant must first be presented to the Board, and such remedies exhausted, to prevent waiver." Thus the Board ruled that it had jurisdiction to entertain a motion to suppress.
Cases discussing the constitutionality of inspection warrants in Cal/OSHA proceedings have stated that the search and seizure requirements of the Fourth Amendment and Article I, section 13, of the California Constitution mandate a probable cause requirement for Cal/OSHA inspection warrants. (Salwasser Mfg. Co. v. Mun. Court (1979) 94 Cal.App.3d 223, 231-232 (Salwasser I).)
The standard of probable cause, i.e., the level of scrutiny required for a Cal/OSHA inspection warrant, is detailed in Salwasser Mfg. Co. v. Occupational Safety & Health Appeals Bd. (1989) 214 Cal.App.3d 625 (Salwasser II). Salwasser II found that the criminal probable cause standard is not applicable when the warrant application is based on employee complaints, and instead called for a "lesser standard of administrative probable cause." (Salwasser II, supra, 214 Cal.App.3d at 630.) Salwasser II relied on federal circuit court decisions when discussing and defining this lesser standard of administrative probable cause.
"The Board follows the good faith exception to the exclusionary rule. (Southwest Marine, Inc., supra, Cal/OSHA App. 96-1902.) The Board has previously noted that it will only exclude evidence pursuant to the exclusionary rule when it can be established that the warrant was not obtained in good faith.
The Occupational Safety and Health Appeals Board concluded that the "ALJ has not yet ruled on application of the good faith exception in this particular case. Therefore, it remanded this matter back to hearing operations for consideration, and a ruling, on the application of the good faith exception in this case. - Cal AG Files Amicus on SCOTUS Transportation Workers' Arbitration Caseon November 29, 2023 at 2:17 PM
The California Attorney General joined a multistate coalition in filing an amicus brief urging the U.S. Supreme Court to reverse a lower court decision holding that only workers employed in the transportation industry can be exempt under the transportation-worker exemption to the Federal Arbitration Act (FAA).
The multistate amicus brief supports the petitioners in Bissonnette v. LePage Bakeries Park St., LLC, et al 59 F. 4th 594 - Court of Appeals, 2nd Circuit 2023, who are truck drivers delivering baked goods to restaurants and stores for baking conglomerate Flowers Foods.
The Bissonnette case involved a dispute between two commercial truck drivers, Neal Bissonnette and Tyler Wojnarowski, and their employer, LePage Bakeries Park St., LLC. The drivers claimed that they were not subject to the Federal Arbitration Act (FAA) because they were "transportation workers" within the meaning of the statute. The FAA excludes from its scope contracts with "seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce."
The United States Court of Appeals for the Second Circuit affirmed the district court's decision that the drivers were not "transportation workers" under the FAA. The court reasoned that the drivers were not employed by a company in the transportation industry, but rather by a bakery that simply used transportation services to distribute its products. The court also noted that the drivers' primary duties did not involve transportation, but rather the sale and merchandising of bakery products.
In their brief, the attorneys general ask the U.S. Supreme Court to reverse that ruling because it is inconsistent with precedent that has rejected defining the exemption by industry, would be unworkable as a practical matter, and prevents states from effectively monitoring commerce and ensuring lawful workplace conditions.
California is home to over 1.5 million transportation workers. Of these workers, about 312,080 are truck drivers in a variety of industries, and many of these workers are directly related to the movement of goods, even if they do not directly work for a trucking company. For the many California workers in the sector, workable standards safeguard their access to the courts, lessening the probability they will be erroneously diverted to arbitration and abandon their claims.
The California Attorney General joins the attorneys general of Illinois, Colorado, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.
The decision in Bissonnette has important implications for employers and employees in the transportation industry. The decision clarifies that the FAA does not apply to all workers who are engaged in interstate commerce, but only to those who are employed by companies that are primarily engaged in the transportation industry. This distinction could have a significant impact on the enforceability of arbitration agreements in the transportation sector.
The U.S. Supreme Court granted certiorari in Bissonnette on September 29, 2023. Thus the case is currently pending before the Supreme Court. The petitioners' brief was filed on November 13, 2023. The respondents' brief is due on December 15, 2023. The case is likely to be argued before the Supreme Court in early 2024. - Decline in SAWW Means No TD/PD Rate Increases for 2024on November 28, 2023 at 12:07 PM
The U.S. Department of Labor has issued new data showing California's State Average Weekly Wage (SAWW) edged down 0.48 percent from $1,650 to $1,642 in the 12 months ending March 31, 2023.
As a result, the California Workers’ Compensation Institute (CWCI) notes there will be no change in California’s minimum and maximum temporary total disability (TTD) and permanent total disability (PTD) rates for 2024 work injuries, or in other benefits that are tied to increases in the SAWW.
Under California law, minimum and maximum TTD and PTD rates are subject to annual changes, effective January 1 of each year, based on the percentage increase in the SAWW After increasing steadily for more than a decade, including a 5.159 percent increase last January on top of a record 13.521 percent increase in 2022, the maximum TTD/PTD rate for 2023 job injuries is now $1,619.15 per week, and the minimum is $242.86 per week.
But, with the decline in the SAWW last year, those rates will not need to be adjusted for claims with injury dates on or after January 1, 2024.
The 2022-2023 decline in the SAWW also means that annual cost of living adjustments to life pension and PTD payments on existing claims with injury dates on or after January 1, 2003 will not apply next January, and the maximum rate for death benefit installment payments, which are paid in the same manner and amount as TTD, will remain unchanged.
However, depending on the rate now being paid, some existing older claims that are eligible for more than 104 weeks of TD [e.g., claims involving amputations, hepatitis or any of 9 long-term injuries noted in LC §4656(c)(3)] will qualify for an increase in 2024 as LC §4661.5 requires that any TTD payment made two or more years after the injury date be based on the TTD rate in effect on the date of the payment, unless that would reduce the amount paid.
Thus, a worker who suffered an amputation on April 1, 2022, and who is still receiving TD at the 2022 maximum of $1,539.71, should see that payment increase to the current maximum of $1,619.15 on April 1, 2024 (assuming that rate is justified by their at-injury earnings).
Claims administrators are encouraged to review the latest SAWW figures with legal counsel to confirm that benefit payments are appropriate and accurate. For reference, California’s SAWW data can be found in the U.S. Department of Labor Unemployment Insurance database. - UCLA Launches New Degree in Disability Studieson November 28, 2023 at 12:07 PM
UCLA is offering a new Bachelor of Arts in disability studies, which aims to bridge academic theories with lived experience and encourage students to advocate for change in their communities.
The program, which is the first disability studies degree at the UC, includes an internship program in a community-based agency and a capstone project, according to the UCLA Undergraduate Education Initiatives. Historically, disability has been taught in terms of clinical solutions, but UCLA’s disability studies program will connect medical education with the social construct of disability, creating a unique learning experience for all students, said Victoria Marks, the chair of the disability studies interdepartmental degree program as well as the existing minor.
Marks, a professor in the Department of World Arts and Cultures/Dance, said that disability studies are critical because the field challenges what is perceived as normal and forces people to consider the stigmas that those with disabilities face.
'(Disability studies) is a way of thinking about how we construct identities around health and well-being, functionality and in some degrees, citizenship itself," she said.
While the major has been in discussion for many years, there were difficulties in figuring out what departments would be involved because of its interdisciplinary nature, said Brooke Wilkinson, director of academic initiatives for the Undergraduate Education Initiative.
Wilkinson said the major is more organized than the already existing minor, with classes from multiple disciplines centered around disability studies. The courses cover subjects such as health humanities and bioethics, where students can view these topics through disability studies - a lens that students rarely view these disciplines through, she added.
The major also allows students to blend their personal interests and experiences, Wilkinson said, adding that students are able to specialize in a topic that they select through the internship, which culminates in a senior capstone project.
Augustine Udukumbura, a member of the Disabled Student Union, said they believe it is important for nondisabled students to learn about these topics so they can more effectively help advocate for disabled students.
"Having it (the disability studies major) really spots disabled people, but it also puts us into everyday conversation," said Udukumbura, who is also a fourth-year gender studies and sociology transfer student.
Some students have already expressed interest in the major. Elanor Armstrong, a first-year psychology student, said she plans on applying to the disability studies major, adding that she has worked and wants to work with individuals with disabilities after she graduates college.
She said she believes disability studies are important to normalize disabilities, as many people are not aware of what it means to have a disability, what having a disability looks like or what it is like for a family member to have a disability.
"(The creation of the major) shows that UCLA is an inclusive campus that provides the resources for people to learn and grow," Armstrong said.
She added that the possibility of the major was one of the reasons why she decided to attend UCLA, as things like the internship will allow her to have real-world experience with the course content.
As part of the upper-division coursework for the major, students must take four electives on interdisciplinary perspectives in disability, according to UEI. These courses are offered by a variety of departments, such as community health, English and gender studies.
Udukumbura, who has bipolar disorder, said they believe such an intersectional approach allows disabled students to learn more about their conditions from different perspectives, as people with the same disability might experience their condition in different ways.
"I think, in a sense, it helps me make space for my own feelings," they said. "It really helps to have almost an explanation."
Armstrong said she hopes the major will help her decide how she wants disability studies to be incorporated into her career path. Students can go on to work in all kinds of fields - including law, medicine or education - once they graduate with the disability studies major, Wilkinson said.
"It allows all students, whether disabled or not disabled, to have language for and think about, tangibly, how it is that we move through the world differently," Marks said.
Udukumbura added that they hope the interdisciplinary approach will help validate the experiences and feelings of disabled students studying their disability or other disabilities.
Marks said she hopes the major will ultimately allow students to vouch for diverse communities and advocate for change.
"These students will go on to be the people who make changes in the world that affect all of our lives," she said. "A new generation will come up who can take on these complex issues of rights and justice and respect and dignity and care." - DWC Proposes Changes to QME Regulationson November 27, 2023 at 10:13 AM
The Division of Workers’ Compensation has issued a second notice of public comment period beginning on November 21, 2023, for modifying the text of proposed amendments to the Qualified Medical Evaluator (QME) Regulations. The affected regulations are Title 8, California Code of Regulations Sections 1, 11, 11.5, 14, 33, 35, 35.5, 50, 51, 52, 54, 55, 55.1, 56, 57, 63, 10133.54 & 10133.55. (QME Process Regulations).
The proposed changes are necessary to bring existing regulations into compliance with amendments to the Labor Code and to clarify the Administrative Director’s authority with respect to the process related to appointment and reappointment of QMEs, which is granted by relevant statutory authority.
The proposed regulations are amended to provide greater clarity to the wording. Based upon issues of clarity and to provide ease of interpretation, DWC proposes to update the text of the proposed amendments of the regulations to:
- - Provide a clearer definition of and the reason for encryption of Electronic Transmissions.
- - Delete unnecessary phase-in periods for certain regulations as a result of the new anticipated effective date of April 1, 2024 for the proposed regulations.
- - Add a new regulation that delineates the new continuing education hour and subject matter requirements that apply to applications for reappointment after April 1 2026.
- - Clarify the definition "new medical legal evaluation" for purposes of satisfying criteria for QME unavailability.
- - Provide criteria for the Administrative Director’s use of the exercise of discretion in the QME reappointment process.
- - Provide examples of good cause, provide clarity to the regulatory language and delete confusing language where necessary in the regulations involving reappointment and denial of reappointment for QMEs.
- - Add and in some cases delete language and hours of accreditation to clarify the proper interpretation of regulations related to the Continuing Education requirements.
- - Define and add criteria for good cause in the exercise of discretion by the Administrative Director in granting an appeal of denial of reappointment when a hearing is anticipated.
- - Correct typographical errors.
DWC has also published a Supplemental Initial Statement of Reasons to provide additional information about the need for and economic impact of the proposed regulations.
DWC will consider all public comments. The 15-day notice of modification to the text of the proposed regulations and the text of the regulations can be found on DWC’s rulemaking page.
Written comments should be addressed to:
Maureen Gray, regulations coordinator
Department of Industrial Relations
Division of Workers' Compensation
1515 Clay Street, 18th floor
Oakland, CA 94612
The Division’s contact person must receive all written comments concerning the proposed modification to the regulations no later than December 11, 2023. Written comments may be submitted by facsimile transmission (FAX), addressed to the contact person at (510) 286-0687. Written comments may also be sent electronically (via e-mail), using the following e-mail address: dwcrules@dir.ca.gov. - Labor Commissioner Reaches $1 Million Settlement in Wage Theft Caseon November 27, 2023 at 10:13 AM
The Labor Commissioner’s Office has settled a lawsuit against Glendale-based Calcrete Construction Inc. for over $1 million for multiple wage theft violations, including overtime and paid sick leave law violations, affecting 249 construction workers.
"This employer used various illegal tactics to circumvent paying owed wages," said Labor Commissioner Lilia García-Brower. "My team responded aggressively to recover stolen wages and expose systemic violations."
The Labor Commissioner’s Office began investigating in October 2016 after receiving a complaint from the Carpenters / Contractors Cooperation Committee, a union-affiliated, non-profit organization that advocates for workplace compliance within the construction industry.
The investigation found that Calcrete failed to pay workers for overtime hours, allocate pay for sick leave and provide proper wage statements. As one example, Calcrete employees regularly worked 45-68 hours a week but were not paid overtime during a two-year period audited from 2014-2016. The settlement will pay workers overtime wages owed with interest, with payments ranging from $344 to $20,893.
The Labor Commissioner’s Office filed a lawsuit against Calcrete Construction, Inc. in August 2017, seeking $6,300,338 for multiple wage theft violations affecting a group of 249 construction workers and the willful misclassification of 175workers as independent contractors.
The lawsuit claimed that beginning in August 2016, Calcrete forced its workers under threat of termination to sign contracts stating they were independent contractors.The company then used staffing agencies Dominion Staffing and Southeast Personnel Leasing to pay the workers.
Calcrete employees typically worked 10-12 hours Monday through Friday and eight hours on Saturday. They were paid only their regular hourly rate and not for the 18-28 hours of overtime they regularly worked. Thisunderpayment occurred for a nearly two-year period from 2014-16, the lawsuit specifies.
Enforcement investigations typically include a payroll audit of previous years to determine minimum wage, overtime, and other labor law violations, and to calculate payments owed and penalties due. When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest.
The Department of Industrial Relations’ Division of Labor Standards Enforcement (California Labor Commissioner’s Office) combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices.
Workers employed at Calcrete beginning August 1, 2014 to September 30, 2016 should contact the LCO at 833-LCO-INFO (833-526-4636), as they may be entitled to owed wages and damages under this settlement agreement.