Author: WorkCompAcademy

The U.S. Supreme Court said California was violating the Constitution with a decades-old regulation that gives union organizers access to agricultural company land for part of the year to talk to workers.

Voting 6-3 along ideological lines, the justices said the 1975 provision, which grew out of the efforts of Cesar Chavez to give farm workers collective bargaining rights, infringed the rights of landowners.

The California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Cal. Code Regs., tit. 8, §20900(e)(1)(C). The regulation mandates that agricultural employers allow union organizers onto their property for up to three hours per day, 120 days per year.

Organizers from the United Farm Workers sought to take access to property owned by two California growers “Cedar Point Nursery and Fowler Packing Company.

The growers filed suit in Federal District Court seeking to enjoin enforcement of the access regulation on the grounds that it appropriated without compensation an easement for union organizers to enter their property and therefore constituted an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments.

The District Court denied the growers’ motion for a preliminary injunction and dismissed the complaint, holding that the access regulation did not constitute a per se physical taking because it did not allow the public to access the growers’ property in a permanent and continuous manner.

A divided panel of the Court of Appeals for the Ninth Circuit affirmed, and rehearing en banc was denied over dissent.

The U.S. Supreme Court reversed and ruled in favor of the landowners in the case of Cedar Point Nursery v Hassid.

The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.”

When the government physically acquires private property for a public use, the Takings Clause obligates the government to provide the owner with just compensation.

California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties (here union organizers) the owners’ right to exclude. The right to exclude is “a fundamental element of the property right.”

Robert Joseph Maher, 42, formerly of Stockton, was sentenced by U.S. District Judge John A. Mendez to six years and three months in prison for mail fraud and aggravated identity theft.

According to court documents, between November 2010 and February 2018, Maher participated in a scheme to defraud the State of California Employment Development Department (EDD) by filing fraudulent claims for unemployment insurance benefits.

In furtherance of this scheme, Maher and his co-defendant, Michael Herron II, also of Stockton, created fictitious companies and fictitious employees by using the real identities of persons with and without their knowledge. They then filed claims with EDD, falsely stating that the employees had been laid-off or fired. The unemployment benefits were deposited onto debit cards that were mailed to addresses controlled by Maher, Herron, or their associates.

In one instance, Maher and Herron electronically filed an unemployment insurance claim in the name of an identity-theft victim. Maher knew that the victim was a real person because the claim listed the victim’s correct date of birth and social security number. The claim also listed Maher’s address in Stockton as the claimant’s address, which caused a bank to mail an EDD debit card in the victim’s name to Maher’s address.

Maher and Herron then transferred the card’s benefits to Maher’s personal bank account. Maher and Herron also used the victim’s name to register another fictitious business entity that was used in the fraud scheme.

In all, Maher and Herron filed at least 72 fraudulent claims for unemployment insurance benefits, seeking a total of $739,535, of which EDD paid out approximately $609,335. Judge Mendez ordered Maher to pay restitution to EDD in the amount of $609,335.

This case is the product of an investigation by the U.S. Department of Labor – Office of Inspector General, the Federal Bureau of Investigation, and the California Employment Development Department’s Investigation Division. Special Assistant U.S. Attorney Robert J. Artuz is prosecuting the case.

On March 26, 2019, Herron pleaded guilty to similar counts of mail fraud and aggravated identity theft and, on June 25, 2019, was sentenced to six years and three months in prison.

Employment lawyers say companies are watching closely how pandemic return-to-work rules play out nationally, as they look to bring workers back safely and to dispense with mask protocols. “It’s a hairball,” said Eric Hobbs, an employment attorney with Ogletree Deakins in Milwaukee. “It’s all very confusing.”

The report published by Reuters claims that in some states, return to work rules may require identifying those who got a COVID-19 shot with badges or bracelets, raising discrimination issues and complicating hiring in a tightening labor market as the pandemic eases.

The U.S. workplace safety regulator, the Occupational Safety and Health Administration, or OSHA, has not provided clear guidance on the issue. “We continue to let the employer make the determination how to properly do this for their workplace,” OSHA’s acting director, Jim Frederick, told Reuters.

The U.S. Centers for Disease Control and Prevention, which said last month that inoculated people can go without face coverings indoors in most places, has not addressed the thorny issue of how to establish whether someone has been vaccinated.

“What companies are debating right now, and we are too, is: is it necessary to specify on someone’s badge or wear something around their neck that, yes, they are vaccinated and therefore if they don’t have a mask on there’s nothing to worry about?” said Peter Hunt, vice president of brand protection and security at Flex Ltd, a product design and manufacturing company.

However, employers in California’s Santa Clara County, including Christopher Ranch, are required as of June 1 to ascertain if their workers have been vaccinated and check in every 14 days on those who say they have not or who decline to answer.

America’s largest garlic farm needs 1,000 workers to harvest its annual crop, but faces an unexpected hurdle in this year’s recruitment drive: it now must document and track the COVID-19 vaccine status of these seasonal laborers. The timing of the order, in the middle of the busy harvest season, couldn’t be worse.

Ken Christopher, the farm’s executive vice president, said the company has to develop a system to check who has been vaccinated while observing privacy laws and monitoring workers’ adherence to safety protocols and testing. “If the government wants to mandate (a vaccine), that’s one thing,” Christopher said. “But then requiring us to police it, that feels very unconventional.”

Workers in the Silicon Valley county who aren’t vaccinated or refuse to reveal their status to their employer must remain masked and should follow other protocols, such as limiting long-distance work travel and submitting to regular COVID-19 testing.

Christopher said he is considering a mask-free shift for vaccinated workers and another shift for workers who haven’t gotten their shot to avoid discrimination and tension. But asking farm laborers about their vaccination status and entering their details in a database could hurt recruitment efforts, he said.

“It’s the additional information being offered to the government,” said Christopher. “The more layers added on top, the more uncomfortable they are in seeking jobs here.”

Several states, including California, Michigan and Oregon, have their own rules or guidance on documenting vaccination status for workers but they are generally less strict than in Santa Clara County.

In Montana, however, a recently enacted law discourages employers from asking about vaccination status because it could lead to discrimination claims, according to employment lawyers.

In 2018, John Chrobagian was involved in a serious automobile accident in his company-provided vehicle. He was in field performing work for Ormco Corporation in servicing orthodontist accounts.

At some point in the day he engaged in a personal errand by stopping at a car dealership. From there he headed to his child’s school for pick up. While driving between these two locations Chrobagian was involved the serious vehicle accident and was injured.

He was a senior territory manager. The job duties required that he perform sales to existing accounts with orthodontists and develop new accounts as well within his territory covering primarily California and Nevada. He was not provided a fixed office location. Instead the employer provided a vehicle, cell phone and an email account.

He was expected to respond to any texts or emails through the cell phone/email account throughout the day. If he received a text or email while driving, he was expected to pull-over the vehicle and stop before responding to the text or email, or if applicant had a blue tooth connection, applicant could continue to drive and respond to the text/email, as long was such communication while driving complied with State law.

There was no prohibition on engaging in personal errands at the same time he was in the field performing his duties for the employer and that both can occur simultaneously.

The employer denied benefits claiming it did not occur in the course of employment. After a trial, the WCJ awarded benefits and found that the company vehicle as outfitted was for all intents and purposes a mobile office provided by the employer. He was at the beck and call of the orthodontists throughout the day and was expected to be at the ready to field any/all phone calls, texts and emails, wherever the applicant might be in an immediate manner.

The award was sustained in the panel decision of Chrobagian v Ormco Corporation, ( ADJ12278544 June 2021).

The going and coming rule is not applicable here because applicant was a salaried, mobile, regional sales person who essentially worked out of an employer provided vehicle. At the time of the injury, he was not engaged in a routine commute, to a fixed place of business, at fixed hours. Instead, he worked out of his vehicle making cell phone calls, sending and receiving emails, and driving throughout a large region that included California and Nevada to meet with clients.

Moreover, even if the going and coming were applied to applicant’s travel, the facts of this case bring it within several of the rule’s many exceptions. One of those exceptions consists of instances involving employer provided transportation.

In addition, the personal comfort doctrine holds that the course of employment is not broken by certain acts relating to the personal comfort of the employee, as such acts are helpful to the employer in that they aid in efficient performance by the employee. On the other hand, acts which are found to be departures effecting a temporary abandonment of employment are not protected.

Moreover, injuries sustained while the employee is engaged in an activity that has a dual purpose, which serves the business needs of the employer and the personal needs of the employee, occur in the course of employment.

Thus the WCAB panel agreed with the WCJ that the fact that applicant was injured while traveling between two personal errands did not remove him from the course of employment where he had already begun his work day as a mobile salesperson, working out of his employer provided vehicle, while available for any employment related communications, during compensated time.

The Occupational Safety and Health Standards Board adopted revisions to the COVID-19 Prevention Emergency Temporary Standards that account for recent guidance from the California Department of Public Health based on increases in the number of people vaccinated.

Governor Gavin Newsom signed an executive order enabling the revisions to take effect without the normal 10-day review period by the Office of Administrative Law – providing clarity and consistency for employers and employees as California fully reopens its economy. The revised standards took effect today.

The revisions include the following:

– – Fully vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms.
– – Fully vaccinated employees do not need to wear face coverings except for certain situations during outbreaks and in settings where CDPH requires all persons to wear them. Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors.
– – Employees are not required to wear face coverings when outdoors regardless of vaccination status except for certain employees during outbreaks.
– – Employees are explicitly allowed to wear a face covering without fear of retaliation from employers.
– – Physical distancing requirements have been eliminated except where an employer determines there is a hazard and for certain employees during major outbreaks.
– – Employees who are not fully vaccinated may request respirators for voluntary use from their employers at no cost and without fear of retaliation from their employers.
– – Employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer.
– – Employer-provided housing and transportation are exempt from the regulations where all employees are fully vaccinated.
– – Employers must review the Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
– – Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems.

Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the revised emergency standards. The webpage contains an updated fact sheet and Frequently Asked Questions about proposed revisions to the emergency temporary standards. In addition, Cal/OSHA is currently updating its model COVID-19 Prevention Program in English and Spanish and information on planned webinars hosted by its Consultation Services Branch.

Employers with Questions on Requirements May Contact: InfoCons@dir.ca.gov, or call your local Cal/OSHA Consultation OfficeStakeholders Who Wish to Comment on the Rulemaking Process May Contact: oshsb@dir.ca.gov