Author: WorkCompAcademy

The Labor Commissioner’s Office has reached a $2.2 million settlement with the owners of three Saravanaa Bhavan restaurant franchises in Fremont, Milpitas and Sunnyvale. The settlement secures compensation to 317 employees at the three restaurant locations for unpaid minimum wage, overtime, meal premiums, split shift premiums, and inaccurate wage statements. The settlement also covers an allegation that the employers kept tips that had been left for employees by their customers. Each worker will receive, on average, approximately $7,000. As part of the settlement, the employers must make a personal apology to the employees.

The settlement follows an investigation by the Labor Commissioner’s Private Attorneys General Act (PAGA) Unit, which found Labor Code violations that affected the 317 employees including servers, bussers, hosts, kitchen staff and cooks who worked at the three restaurants between February 23, 2016 and September 8, 2019.

Based on its investigation, the PAGA Unit issued a citation for wages and penalties on October 18, 2019, for a total of $6,108,099.

The citation was issued to Spice Route, LLC, Southern Spice, LLC and Supreme Cuisine, LLC and managing partners Asker Junaid and P.K. Perumal.

The settlement was finalized on September 21, 2022, and in addition to the monetary settlement, it requires that the restaurants’ owners personally apologize to workers for the violations, allow a one-hour training about labor laws on paid time, and post a notice about employees’ rights regarding tips. The trainings will be interpreted into Tamil, Spanish and Nepali at the employer’s expense.

Because the Labor Commissioner does not have contact information for all workers owed money, it requests help in locating individuals who worked at the Saravanaa Bhavan locations at 3720 Mowry Ave., Fremont; 438 Barber Lane, Milpitas; or 1305 S Mary Ave., Sunnyvale between February 23, 2016 and September 8, 2019. Employees who worked at these restaurants during this time are asked to call Deputy John McDonald with the PAGA Unit at (510) 882-5214.

Under California law, tips are the sole property of those employees to or for whom they were paid, given, or left. Workers who believe they have not been paid properly, or who have questions about other labor laws, such as those that prohibit retaliation for making a wage claim, can call the Labor Commissioner’s Office at 833-LCO-INFO (833-526-4636).

When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest. Waiting time penalties are imposed when the employer intentionally fails to pay all wages due to the employee at the time of separation. This penalty is calculated by taking the employee’s daily rate of pay and multiplying it by the number of days the employee was not paid, up to a maximum of 30 days.

Enforcement investigations typically include a payroll audit of the previous three years to determine minimum wage, overtime, and other labor law violations and 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 wages plus interest.

The Los Angeles County District Attorney announced that jurors convicted James Mason Heaps M.D., who is now 65, and an obstetrician-gynecologist formerly employed by the University of California, Los Angeles, on five counts in connection with the sexual assaults of some of his patients.

The charges he faced stem from alleged crimes between 2009 and 2018 involving seven of Heaps’ former patients.

Jurors found Heaps guilty of three counts of sexual battery by fraud and two counts of sexual penetration of an unconscious person. He was acquitted on three counts of sexual battery by fraud, three counts of sexual penetration of an unconscious person and one count of sexual exploitation of a patient. Jurors could not reach a unanimous verdict on three counts of sexual battery by fraud, four counts of sexual penetration of an unconscious person and two counts of sexual exploitation of a patient.

At this time, no decision has been made on whether or not to retry the hung counts.

A sentencing hearing was set for November 17 in Department 108 of the Clara Shortridge Foltz Criminal Justice Center.

Heaps served as a gynecologist/oncologist, affiliated with UCLA, for nearly 35 years. At various times, he saw patients at the Ronald Reagan UCLA Medical Center and at his office at 100 Medical Plaza. At one time, Heaps was reportedly the highest paid physician in the UC system and had treated about 6,000 patients, attorneys said.

More than 500 lawsuits were filed against Heaps and UCLA, accusing the school of failing to protect patients after becoming aware of the misconduct.

In May, attorneys for 312 former patients of Heaps announced a $374 million settlement of abuse lawsuits against the University of California. The settlement came on top of a $243.6 million resolution of lawsuits involving about 200 patients announced in February, and a $73 million settlement of federal lawsuits reached last year involving roughly 5,500 plaintiffs.

The lawsuits alleged that UCLA actively and deliberately concealed Heaps’ sexual abuse of patients. UCLA continued to allow Heaps to have unfettered sexual access to female patients – many of whom were cancer patients – at the university, plaintiffs’ attorneys alleged in the suits.

UCLA issued a statement in May saying, “This agreement, combined with earlier settlements involving other plaintiffs, resolves the vast majority of the claims alleging sexual misconduct by James Heaps, a former UCLA Health physician. The conduct alleged to have been committed by Heaps is reprehensible and contrary to our values. We are grateful to all those who came forward, and hope this settlement is one step toward providing some level of healing for the plaintiffs involved.

Settlement of the federal case last year required UCLA to ensure stronger oversight procedures for identification, prevention and reporting of sexual misconduct.

In March 2021 in a similar case, USC agreed to pay more than $1.1 billion to about 17,000 former patients of ex-campus gynecologist George Tyndall, the largest sex abuse payout in higher education history.  

74 year old Tyndall – the only full-time gynecologist at the student health clinic from 1989 until 2016 – has pleaded not guilty to 35 criminal counts of alleged sexual misconduct between 2009 and 2016 at the university’s student health center. He has pleaded not guilty and is free on bond.

Hundreds of women came forward to report their allegations to police but some of the cases fell outside the 10-year statute of limitations, while others did not rise to the level of criminal charges or lacked sufficient evidence to prosecute. Still, he faces up to 64 years in prison if convicted.

Several victims called for criminal charges to be filed against USC administrators who knew of the allegations against Tyndall for decades and did not fire him.

California’s Division of Occupational Safety and Health (Cal/OSHA) Standards Board met on April 21, 2022, and formally approved the third readoption of its COVID-19 Emergency Temporary Standard (“3rd Revised ETS”), by a 6-1 vote.

The ETS has no set rules for close contact exclusion from the workplace. Instead, it requires that employers “review current [California Department of Public Health] guidance” regarding “quarantine or other measures to reduce transmission,” to “develop, implement, and maintain effective policies” to prevent COVID-19 transmission from close contacts.

On October 14, 2022, the California Department of Public Health published an Order which updated the definitions of Close Contact and Infectious Period to provide entities strategies to prioritize response to potential exposures.

“Close Contact” means the following:

– – In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis ) infectious period.
– – In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.

Infectious Period is defined as:

– – For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5–10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
– – For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after positive specimen collection date (or through Days 5–10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

For the purposes of identifying close contacts and exposures, infected persons who test negative on or after Day 5 and end isolation are no longer considered to be within their infectious period. Such persons should continue to follow CDPH isolation recommendations, including wearing a well-fitting face mask through Day 10.

This Order went into effect on October 14, 2022, at 12:01 a.m.

Following the new CDPH order defining Close Contact and Infectious Period the Cal/OSHA issued a fifteen-day notice with requests for written comments on proposed updated COVID-19 regulations to Title 8 of the General Industry Safety Orders.

Modifications are now proposed by Cal/OSHA for subsection 3205(a)(1) (scope); subsection 3205(b)(1) (definition of “close contact”); subsection 3205(b)(7)(A) (exception to the definition of “exposed group”); subsection 3205(b)(11) (definition of “returned case”); subsection 3205(c)(1) (universal precaution); subsections 3205(e)(1), (e)(2), and (e)(3) (notice of COVID-19 cases); subsection 3205(h)(1) (ventilation); subsection 3205(j) (reporting and recordkeeping requirements); subsection 3205.1(a)(2) (scope); subsection 3205.1(e) (COVID-19 investigation, review, and hazard correction); and subsection 3205.2(g)(2) (COVID-19 cases and close contacts).

Written comments on the Cal/OSHA proposal are invited, but must be received by 5:00 p.m. on October 31, 2022 at the Occupational Safety and Health Standards Board,

The State of California employs attorneys, judges, and other legal professionals in more than 100 state departments, agencies, boards and commissions. The union representing legal professionals employed by California sued the state because too many legal jobs at state departments, agencies, boards, and commissions are allegedly given to retirees rather than to rank-and-file state employees.

Courthouse News reports that California Attorneys, Administrative Law Judges and Hearing Officers in State Employment, or CASE, filed a lawsuit Tuesday in Fresno against the California Department of Human Resources, seeking a ruling that the the state is skirting its own rules when it comes to hiring retirees for positions that statutorily should go to rank-and-file employees. CASE argues that CalHR enjoys broad statutory authority over the employment practices of all state departments, agencies, boards, and commissions.

CASE, which represents about 4,500 legal professionals employed by the state, claims that California relies on so-called retired annuitants to fill jobs because they are cheaper, in so far as the state doesn’t have to pay pension contributions and many employee benefits that can add as much as 64% to the costs of hiring rank-and-file employees, and because they don’t require as much training.

“RAs almost invariably are employed to work at the department from which they retired, and typically served at that department as a rank-and-file employee for many years.” according to CASE. “As a result, RAs do not require any training, any orientation or onboarding, and are generally able to be productive workers from the first day of employment as an RA. As such, departments perceive the use of RAs as more attractive in the short term than hiring and training new employees.”

California currently employs at least 173 persons as retired annuitants in legal positions, distributed amongst at least 50 state departments, the union said.

There are state laws, however, that limit the hiring and reliance on retirees, according to the union. Retired annuitants are supposed to be temporary positions, but the Department of Human Resources has allowed departments to employ them indefinitely, according to the complaint. Departments also can’t hire a retired annuitant until at least 180 days after their retirement, but the department hasn’t enforced this condition either, the union said

In addition, the retiree must have specialized skills needed to perform the jobs for a limited period, according to the union.

“CalHR has refused to enforce the requirement that departments show that their RAs have any specialized skills that do not exist among rank-and-file state employees and has refused to enforce the requirement that RAs be employed for only a limited duration,” the union claimed. “CASE seeks to end the unlawful employment of RAs — at least as to attorneys and judges — and obtain from this court an interpretation of state law regarding the proper employment of RAs.”

The union is asking for the court to find that the Department of Human Resources’ interpretation of the meaning of “limited duration” and “specialized skills” is contrary to state law.

A spokeswoman for the Department of Human Resources said she’s unable to comment on pending litigation.The union is represented by Patrick Whalen in Sacramento.

CSV Hospitality Management LLC (CSV) filed a petition for a workplace violence restraining order against Jermorio Lucas. At the time of the hearing on CSV’s restraining order request, Lucas was living at the Aranda Residence, a residential hotel that provides supportive housing to formerly homeless individuals.

CSV submitted affidavits from four of its employees in support of the petition. The employees alleged that Lucas had been very aggressive and confrontational towards other tenants and Aranda Residence employees. For example, janitors Nelson Yee and Pedro Caamal stated that Lucas frequently subjected them to verbal abuse while they were working. He would also stalk them and take photos and videos of them without their consent. Caamal stated that during one such incident, Lucas forcefully pushed him into a window. Yee reported that Lucas had also confronted him at two local businesses when Yee was off duty.

Lucas filed a response to the petition. He denied all of the allegations against him. He stated that he recalled only one disagreement with Caamal, which involved a dispute over coronavirus social distancing protocols. He complained that Yee had addressed him with a racial slur and had harassed him, frequently watching him when he left the bathroom after showering. He indicated that he took Yee’s photograph in order to complain about him to the property manager.

The trial court granted a temporary restraining order and set the matter for an evidentiary hearing. Both parties were represented by counsel. At the hearing, only Yee and Lucas provided testimony consistent with their affidavits. Lucas then testified, answering questions posed by his attorney. He denied the allegations that Yee had leveled against him, asserting that Yee was harassing him and that he had repeatedly asked Yee to leave him alone.

Lucas’ counsel requested an opportunity to cross-examine Yee and any of the other witnesses. The trial court refused to allow Lucas’s counsel to cross-examine Yee concluding that the hearing was not a court trial, and there was no authority to allow cross-examination at such a hearing. The trial court then granted a three-year workplace violence restraining order. Lucas appealed, and the Court of Appeal reversed and remanded in the published case of CSV Hospitality Management v. Lucas – A163345 (October, 2022).

Code of Civil Procedure Section 527.6 authorizes a person who has suffered harassment to obtain an injunction to prevent further harassment. Section 527.8, subdivision (a) provides the same right to an employer for any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace.

Injunctive proceedings under section 527.8 are intended to parallel those under section 527.6, which are procedurally truncated, expedited, and intended to provide quick relief to victims of civil harassment.

However, the Court of Appeal went on to say that although “injunctive proceedings under section 527.8 are truncated, respondents are still afforded the right to present their case.”

In the context of civil harassment orders, our courts have observed that “the procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by Code of Civil Procedure section 527.6, subdivision (d). That hearing therefore provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendant’s right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendant’s due process rights, and would open the entire harassment procedure to the possibility of successful constitutional challenge on such grounds.”

The workplace violence restraining order was reversed. The trial court was directed to issue an order terminating the restraining order, reinstating the prior temporary restraining order and setting the matter for a new hearing within the time period proscribed under section 527.8.