Author: WorkCompAcademy

In November, gig companies including Uber, Lyft, DoorDash, and Instacart helped pass California’s Proposition 22, effectively writing their own labor law. Now the companies plan to bring similar legislation elsewhere.

Last month, the companies launched a group called the App-Based Work Alliance to support their agenda. Industry-supported bills in the works in New York state and Illinois would, like the California ballot measure, deny gig workers status as employees, and the workers’ compensation, paid family leave, sick pay, unemployment insurance, and minimum wage guarantees that come with it.

But the bills could give gig workers the right to form something resembling a union, allowing workers to bargain with multiple employers to create wage floors and standards. US workers in trucking, auto manufacturing, and grocery stores have participated in types of industry-wide bargaining, though the arrangement is more common in Europe.

The California Proposition 22, was written by gig companies, who then poured $205 million into supporting it, the most expensive campaign in the state’s history. Proposition 22 is near-irreversible – the law needs a “supermajority” of seven-eighths of the state’s legislature to be changed.

At the same time, gig companies invested in bringing the Proposition 22 fight elsewhere. Lyft stood up a political action committee called Illinoisans for Independent Work that spent at least $660,000 on ad buys and political contributions in local elections. In August, Uber released a white paper laying out its plans for “Independent Contractor+,” a new employment category it hopes to promote across the country.

Now New York, a less-than-traditional gig market in many ways, is set to be among the first states where a post-Proposition 22 battle might play out.

A constellation of gig companies and allies introduced the New York Coalition for Independent Work, which describes its mission as “protecting self-employed, app-based contractors’ independence and flexibility while also working to provide them with needed benefits.” But the state’s relatively labor-friendly climate means that gig companies will have to tread carefully – and that a pitched battle is likely ahead.

In statements, spokespeople for Uber, Instacart, and DoorDash said the companies would work with legislators to protect flexible work schedules for their gig workers, something they have said would be impossible if they were forced to treat the workers as employees.

DoorDash vice president of communications and policy Liz Jarvis-Shean said the company wants to work with state and federal lawmakers “to help create a new portable, proportional, and flexible framework that embraces today’s modern workforce.” Uber spokesperson Matthew Wing said the company supports state laws to require “all gig economy companies – including ours – to provide new benefits and protections to all independent workers.”

Back in California, drivers say plenty of organizing can happen without official bargaining rights or recognition from the gig companies. Moore, the Rideshare Drivers United organizer, says her organization is now focused on recouping unemployment insurance for drivers for the months before Proposition 22 went into effect, when, she says, drivers legally should have been treated as employees. “We’re not going away,” she says.

Randy Rosen M.D., an Orange County surgeon and jail inmate accused in a $29 million insurance fraud scheme who is facing decades behind bars, was temporarily set free ahead of the weekend after testing positive for coronavirus to the criticism of local officials.

Rosen, who was involved in a civil federal lawsuit involving a health care fraud scheme at a Long Beach hospital that was settled in 2017, was was indicted in this new case along with co-defendant Liza Vismanos

Vismanos owns the Wellness Wave surgical center in Beverly Hills and the Lotus Labs medical laboratory in Los Alamitos. Rosen/Vismanos entered into a fraud scheme specifically targeting patients from addiction recovery rehabs to bill their private medical insurance carriers primarily for two types of procedures; a non-FDA approved Naltrexone implant and Cortisone injections.

Rosen and Visamanos were first arrested back on June 30 on a combined 144 counts including money laundering, submitting fraudulent insurance claims and withholding material facts on insurance claims.

CBS Los Angeles reports that District Attorney Todd Spitzer called the release of 57-year-old Rosen – who is being monitored by an electronic bracelet – unfair.

Rosen’s attorney argued before a judge that Rosen “is at substantial risk of poor outcome (of the coronavirus) because of his multiple co-morbidities for his current COVID-19 infection which requires medical follow-up.”

Rosen faces a maximum sentence of 84 years in state prison if convicted as charged, while Visamanos faces 36 years.

After Rosen’s positive COVID-19 test, he has been released, and now Spitzer is calling him a flight risk and questioned whether he would leave the country.

“If I knew I had an out for 30 days and money available and the means to get the heck of out this country, quite frankly I think I’d probably take the opportunity,” Spitzer said. “Whether we see him back again is the big question.”

Governor, Gavin Newsom, declared a state of emergency in response to the spread of the novel coronavirus, and issued Executive Order N-33-20 which required all Californians to stay home with certain limited exceptions.

The DWC temporarily closed the district offices for filing to protect the health and safety of staff and the community. The district offices reopened for filing effective April 13, 2020, but limited filings to e-filing via the Electronic Adjudication Management System (EAMS), JET filing or by mail. The DWC has continued to conduct hearings via teleconference or video, but does not currently permit filing of walk-through documents.

The California Department of Public Health issued a Regional Stay At Home Order applicable based on a region’s intensive care unit (ICU) capacity on December 3.

And as a result, the WCAB in it’s December 15, en bank decision, ordered suspension of WCAB Rule 10789(c) regarding the required timeframes for assignment of walk-through cases.This suspension is applicable to all district offices in the State.

This rule states that certain documents “may be submitted on a walk-through basis” including the following: (1) Compromise and Releases; (2) Stipulations with Request for Award; (3) Petitions for attorney’s fees for representation of the applicant at a deposition; (4) Petitions to compel attendance at a medical examination or deposition; and (5) Petitions for Costs pursuant to rule 10545.

The rule also provides that “Each district office shall have a designee of the presiding workers’ compensation judge available to assign walk-through cases from 8:00 a.m. to 11:00 a.m. and 1:00 p.m. to 4:00 p.m. on court days.”

The order of suspension of WCAB Rule 10789(c) will provide the district offices with the ability to schedule timeframes for walk-through of documents as appropriate for their capacity under these circumstances.

WCAB Rule 10789(a) is permissive and the documents that may be submitted on a walk-through basis may therefore be further restricted by the district offices at the discretion of the presiding workers’ compensation judges.

The presiding workers’ compensation judge has full responsibility for assignment of cases to the workers’ compensation judges in each district office. This includes the authority to decline to assign a document submitted on a walk-through basis.

The presiding workers’ compensation judges are empowered to prioritize which documents may be assigned on a walk-through basis to expedite resolution of claims and to account for limited capacity in their respective offices in determining whether to permit a document to be assigned as a walk-through.

This order will remain in effect until further notice.

The U.S. Supreme Court published its decision in Rutledge v. Pharmaceutical Care Management Association. The question presented was whether ERISA preempts Arkansas Act 900, an Arkansas law that regulates the price at which pharmacy benefit managers (PBMs) reimburse pharmacies for the cost of drugs covered by prescription drug plans.

PCMA, the Pharmaceutical Care Management Association, which represents some of the largest PBMs in the country, challenged Arkansas Act 900 by arguing that the Act is preempted by ERISA. The Supreme Court reversed the judgment of the U.S. Court of Appeals for the Eight Circuit, ruling that Act 900 was not preempted by ERISA.

The Opinion reasoned that Arkansas Act 900’s requirements were too far away from ERISA and ERISA plans to have an “impermissible connection” with ERISA plans, even though the law has an indirect effect on what ERISA plans pay for prescription drugs. “State regulations that merely increase the costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage are not preempted by ERISA,” Justice Sotomayor wrote, citing earlier Supreme Court opinions.

The Court’s Opinion is a strict preemption analysis and does not cite to, or reference, the many amicus briefs filed in the case or the political debate surrounding Arkansas Act 900, other than to reiterate the express legislative intent in enacting Arkansas Act 900.

PBMs typically use a “maximum allowable cost” list to determine how much pharmacies should be reimbursed. Trade groups for rural and independent pharmacies have argued that PBM’s strategies in reimbursement rates of maximum allowable costs are unfair and can be lower than the pharmacies’ cost to purchase the drug.

Conversely, other trade groups in support of PCMA, state that PBMs have expertise in ensuring efficiency and cost reduction, and that drug prices are largely established by drug manufacturers.

According to America’s Health Insurance Plans, Inc. (AHIP), PBMs provide incentives to pharmacies to offer low-cost generic drugs and to be more efficient with their drug purchasing. AHIP also claims that PBMs have the expertise in pharmaceutical manufacturing and distribution systems, and that the compliance costs of managing different state regulations make work in this area prohibitively expensive.

The Court’s Opinion may lead to further state regulation of PBMs.

A statement from PCMA expressed disappointment and urged states to proceed cautiously: “We are disappointed in the Court’s decision that will result in the unraveling of federal protections under . . . ERISA,” and “As states across the country consider this outcome, we would encourage they proceed with caution and avoid any regulations around prescription drug benefits that will result in higher health care cost for consumers and employers.”

Jacob Lopez, was an employee of the Los Angeles County Metropolitan Transportation Authority. In February 2014 Lopez went on medical leave and submitted a doctor’s note stating he was “to remain totally disabled from work,” because of pain in his back that could not be resolved by ergonomics at work.

When Lopez was ready to come back to work, the Authority did not allow him to return to his position as a transit security lieutenant because his doctor said Lopez had certain physical restrictions.

Lopez sought disability benefits from the California Public Employees’ Retirement System (CalPERS). In his application to CalPERS Lopez claimed that he had “cumulative trauma” to his back and hands, anxiety, and depressive symptoms; that he had lifting, sitting, and standing restrictions and that he was unable to perform his job.

He also filed a workers’ compensation claim against the Authority, claiming he suffered hand, back, and psychological injuries.

In September 2015 CalPERS approved Lopez’s application for disability retirement benefits, finding Lopez was “substantially incapacitated from the performance of [his] usual duties as a Transit Security Lieutenant . . . based upon [his] orthopedic (low back, bilateral hands) condition.” In December 2016 the Workers’ Compensation Appeals Board approved a settlement between Lopez and the Authority for $65,000.

Lopez then filed a civil action, alleging the Authority violated provisions of the Fair Employment and Housing Act (FEHA) that prohibit disability discrimination and that require employers to engage in good faith in the interactive process to find reasonable accommodations.

The trial court granted the Authority’s motion for summary judgment, ruling Lopez could not prevail on either of his two causes of action, in part because he was judicially estopped from asserting he could have performed the duties of his prior position. The court of appeal affirmed the dismissal in the unpublished case of Lopez v Los Angeles County Metropolitan etc.

The trial court ruled that, because Lopez stated in his disability application with CalPERS and in his Workers’ Compensation Appeals Board proceeding that he could not work as a transit security lieutenant, and because Lopez received benefits from CalPERS and settled his workers’ compensation claim, he was judicially estopped from contending he could perform the essential functions of the position.

Several courts have held that, to prevail on a cause of action for failure to engage in good faith in the interactive process, the plaintiff must identify a reasonable accommodation that was available at the time the interactive process (should have) occurred and that the defendant employer could have offered.

Lopez never argued he needed an accommodation, reasonable or otherwise, to return to his position as a transit security lieutenant.