Author: WorkCompAcademy

The U.S. Supreme Court will hear a case involving a San Fernando Valley business that could impact the Private Attorney General Act, a law that went into effect in 2004 and which allows employees of a business to sue over labor law violations even if they were not impacted by the violations. At issue in the case is the validity in California of employer-employee arbitration agreements.

In the underlying case of Moriana v Viking River Cruises Inc. a company in Woodland Hills, Angie Moriana sued her former employer Viking River Cruises, Inc. seeking recovery of civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).

Viking moved to compel Moriana’s claims into arbitration. The trial court denied Viking’s motion and the 2nd district Court of Appeal affirmed in the unpublished opinion which will now be reviewed by the U.S. Supreme Court.

Viking argued that the United States Supreme Court’s decision in Epic Systems Corp. v. Lewis (2018) overruled the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, in which the California Supreme Court held “that an employee’s right to bring a PAGA action is unwaivable,” and that “where . . . an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law.”

Epic Systems Corp. v. Lewis was one of three cases consolidated by the United States Supreme Court in 2017 that raised the issue of the Federal Arbitration Act’s preemptive effect over private employment arbitration agreements prohibiting class and collective actions.

Numerous California Courts of Appeal have rejected the contention that Iskanian is no longer good law in the wake of Epic. On federal questions, intermediate appellate courts in California must follow the decisions of the California Supreme Court, unless the United States Supreme Court has decided the same question differently. Thus the 2nd District Court of Appeal rejected Viking’s arguments on forcing the case to arbitration, and followed Iskanian instead of Epic Systems.

The cruise line argued in its petition to the U.S. Supreme Court “whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.” And that the California Supreme Court was wrong in the 2014 Iskanian case.

In an email to the members of the California Business and Industrial Alliance, the group’s founder and president, Tom Manzo, said that the implications of a Supreme Court decision in Viking’s favor cannot be understated.

“If PAGA cases are subject to arbitration, it offers a clear pathway for employers to obtain relief from frivolous PAGA lawsuits,” wrote Manzo, who started the group, based in Sunland, in 2017 to specifically oppose the state law.

“In advance of the Supreme Court’s oral arguments next spring, we plan to submit a comprehensive amicus brief marshaling all of the data, stories and arguments that you – our members – have helped support these past few years,” Manzo wrote in the email.

According to its website “The California Business and Industrial Alliance (CABIA) is the only trade group exclusively focused on fixing the Private Attorneys General Act (PAGA).” Now that the U.S. Supreme Court has agreed to resolve the dispute between state and federal law, it is likely that CIABA will indeed achieve its mission.

The California Department of Industrial Relations maintains an online database on PAGA notices filed.

Voice of OC is a 501(c)(3) nonprofit news source that has a focus on life in Orange County. One of its current projects is requesting information from the county regarding the worker’s compensation claim costs for COVID claims filed by county employees. They just published an update summarizing current workers’ compensation COVID claims frequency and costs.

Orange County sheriff staff are getting hit with COVID-19 illnesses at a much higher rate than other large county departments, and are by far the largest share of pandemic-related worker’s compensation costs the county has paid so far, according to county data obtained through a records request by Voice of OC.

Sheriff staff, who had the lowest self-reported vaccination rate – at 16% – among county employees as of the latest available data from August, are around 20% of the county government workforce. Yet they account for nearly half of the county worker’s compensation claims for COVID illnesses – $1.4 million of the $3 million total, and about 950 of the roughly 2,000 claims so far – according to county data provided this week.

Voice of OC followed up two weeks ago to request updated vaccination rate data, but the county has not provided it yet.

The next biggest department for COVID worker’s comp costs is the Social Services Agency, which has more employees than the Sheriff’s Department, but half as many Covid-related claims and costs. Many Social Services Agency employees work directly with the public and some visit houses to conduct wellness checks on children and seniors.

The high sheriff’s figures, which have privately drawn concern from county leaders, have prompted questions about what’s driving the department’s higher COVID rates and what can be done to better protect workers.

Sheriff officials didn’t have answers to questions Wednesday about whether it’s related to lower vaccination rates, the indoor work environment at jails – or both – and whether managers have analyzed the data to better protect workers’ health. Department spokeswoman Carrie Braun said she’d have a response after getting further clarification from county officials about the worker’s compensation data.

In a statement, she noted that both sworn and non-sworn sheriff staff have been serving in-person throughout the COVID-19 pandemic. “They have worked tirelessly to provide for the safety of Orange County residents both in the jail and on the streets. Unlike other types of jobs, law enforcement is not a public service that can be provided remotely,” Braun wrote.

“The Department has implemented COVID-19 safety measures consistent with guidelines provided by public health officials for the health and safety of our 3,800 employees.”

The sheriff’s deputies’ union’s president didn’t respond to a phone message for comment. The union previously pushed back against a state mandate requiring jailhouse deputies to be vaccinated.

No OC sheriff staff are reported to have died from COVID-19, though law enforcement officers in neighboring counties have died from the virus.

Among the County of Orange workplaces with active COVID outbreaks this summer were the Sheriff’s Department central jail and headquarters complex in Santa Ana, according to county data.

The latest-available vaccination data showed the Sheriff’s Department had the lowest self-reported vaccination rate among county departments, as outbreaks continued hitting county workplaces in August. At the time, just 16% of sheriff staff self-attested to being vaccinated, compared with 75% of Board of Supervisors staff and about 68% percent of the general population who were eligible for shots at the time, according to county data.

Since June, county data shows sheriff staff have filed an additional 264 Covid-related worker’s comp claims, totaling $367,000. In contrast, staff at the county Health Care Agency – which has about 80% as many employees as the Sheriff’s Department – filed just 15 new claims during the same period, totaling about $500 altogether, according to the county data.

In the midst of the pandemic, the total number of job injury claims reported by California public self-insured employers edged down slightly last year, but a growing number of lost-time claims and rising claim severity (average loss per claim) fueled by higher indemnity costs drove up total workers’ compensation paid and incurred losses for cities, counties and other public agencies in the state according to a California Workers’ Compensation Institute analysis of data from the state’s Office of Self-Insurance Plans (OSIP).

OSIP’s summary of public self-insured data for fiscal year (FY) 2020/21, issued late last week, provides an initial glimpse at the volume of claims, total loss payments and total incurred (paid losses plus reserves) for the 12 months ending June 30, 2021.

The state compiles the data annually from workers’ compensation reports submitted by hundreds of public self-insured entities, including cities and counties, local fire, school, transit, utility and special districts, and joint powers authorities. The latest summary shows that in FY 2020/21 these employers provided workers’ compensation coverage to nearly 2 million California public workers whose wages and salaries totaled more than $139 billion.

CWCI’s review of the data found that the number of employees covered by public self-insured employers last year declined 4.4% from the total noted in the FY 2019/20 initial report, though the total number of reported claims fell less than 1% to 107,161 cases.

Despite having fewer workers and slightly fewer claims, public self-insureds’ total claim payments at the first report increased by more than $30 million to $445 million, 7.3% more than the comparable figure for FY 2019/20, and $130.7 million (41.6%) more than the $314.3 million noted in the first report for FY 2013/14, which was the low point for the past decade and the first year following enactment of SB 863, the 2012 workers’ comp reform bill signed by Governor Brown.

Though overall public self-insured claim volume was down compared to a year earlier, CWCI noted that decline was completely due to a 19.7% drop in medical-only claims, which are relatively inexpensive, while the number of more costly lost-time claims increased by 8,957 claims (15.5%).

The average indemnity paid per FY 2020/21 lost-time claim at the first report was $4,256, so the addition of the 8,967 lost-time cases was the key factor fueling the increase in public self-insured payments last year.

According to CWCI, the recent increase in the number of indemnity claims in the public sector last year is likely due, at least in part, to the addition of COVID-19 claims to the claim mix, as the public self-insured work force includes many essential workers such as police, firefighters, prison guards, and state hospital workers who have a presumption of compensability if they contract the virus, and who were particularly hard hit by COVID last year.

The introduction of COVID claims into workers’ comp also coincided with a spike in public self-insured death claims, which according to the OSIP data more than doubled from 104 claims in FY 2019/20 to 220 claims in FY 2020/21.

The incurred data (paid losses + reserves for future payments) on public self-insured claims tell a similar story.

The U.S. Supreme Court on Monday declined to issue an injunction against New York’s COVID-19 vaccine mandate for health care workers, which doesn’t allow them to seek a religious exemption.

New York state imposed the vaccine mandate for doctors and nurses in August, which allows only for medical exemptions, not religious ones. The religious exemption policy expired in November.

The latest decision suggests the high court lacks the appetite to wade into the matter of mandates. The Supreme Court has previously rejected other challenges, including one that focused on Maine’s lack of a religious exemption to vaccine mandates for health care workers.

Petitioners, which included Christian doctors, said New York’s vaccine mandate violates the U.S. Constitution’s First Amendment prohibition on religious discrimination on behalf of the government. They also argued that it violates federal civil rights law that requires businesses to accommodate employees’ religious beliefs.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch wrote they would have supported temporarily halting enforcement of New York’s mandate.

“Sometimes dissenting religious beliefs can seem strange and bewildering. In times of crisis, this puzzlement can evolve into fear and anger,” Gorsuch wrote in his dissent.

“One can only hope today’s ruling will not be the final chapter in this grim story,” Gorsuch continued. “Cases like this one may serve as cautionary tales for those who follow.”

In October, when the Supreme Court didn’t take up the Maine vaccine case, Gorsuch wrote that “healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered,” adding that they have been terminated “for adhering to their constitutionally protected religious beliefs.”

“Their plight is worthy of our attention,” he argued.

Other than Maine and New York, Rhode Island is the only other state that doesn’t allow religious exemptions to the vaccine for health care workers.