Author: WorkCompAcademy

On October 19, 2023, Marko Lukic plead no contest to felony insurance fraud and tax evasion. The Honorable Deborah Lobre sentenced Lukic to 210 days county jail and 2 years formal probation for each violation.

He was also ordered to pay $176,297.86 in restitution to the State Compensation Insurance Fund (SCIF) and $39,631.16 in restitution to the Employment Development Department (EDD).

Lukic is also liable for an additional $200,000 in penalties and interest to EDD.

In 2019, the California Department of Insurance (CDI) received information that Lukic, owner of Lukic Construction, was committing insurance fraud. An investigation led by CDI, and assisted by SCIF, determined that Lukic misrepresented the number of employees working for Lukic Construction between 2015 and 2018.

This resulted in more than $170,000 in losses to SCIF for coverage of workers’ compensation insurance.

Also in 2019, the EDD opened an investigation into Lukic and Lukic Construction Company as part of a joint investigation with CDI. The investigation found that Lukic under-reported wages paid to employees by more than $800,000 between 2015 and

2018. This resulted in Lukic evading almost $40,000 in taxes.

A traditional Chinese medicine compound used for cardiac benefits might help reduce the incidence of major adverse cardiac and cerebrovascular events and even cardiac death rates, according to a new study published in the Journal of the American Medical Association.

Tongxinluo, a traditional Chinese medicine compound, has shown promise in in vitro, animal, and small human studies for myocardial infarction, but has not been rigorously evaluated in large randomized clinical trials. So a group of researchers set out to investigate whether Tongxinluo could improve clinical outcomes in patients with ST-segment elevation myocardial infarction (STEMI).

Tongxinluo in Chinese means “to open (tong) the network (luo) of the heart (xin),” The compound, consists of a mixture of powders and extracts derived from plants, centipedes, cicada, and other sources. It has been approved in China for the treatment of angina and stroke since 1996. The product may be purchased online as a dietary supplement.

A randomized, double-blind, placebo-controlled clinical trial was conducted among patients with STEMI within 24 hours of symptom onset from 124 hospitals in China. Patients were enrolled from May 2019 to December 2020; the last date of follow-up was December 15, 2021.

Patients were randomized 1:1 to receive either Tongxinluo or placebo orally for 12 months (a loading dose of 2.08 g after randomization, followed by the maintenance dose of 1.04 g, 3 times a day), in addition to STEMI guideline-directed treatments. Among 3797 patients who were randomized, 3777 (Tongxinluo: 1889 and placebo: 1888; mean age, 61 years; 76.9% male) were included in the primary analysis.

In patients with STEMI, the Chinese patent medicine Tongxinluo, as an adjunctive therapy in addition to STEMI guideline-directed treatments, significantly improved both 30-day and 1-year clinical outcomes. But the authors caution that further research is needed to determine the mechanism of action of Tongxinluo in STEMI.

This current study is consistent with smaller studies that essentially came to the same conclusion. In a 2006 published study, authors systematically reviewed evidence from 18 randomised controlled trials for the benefit of tongxinluo with or without other treatments, including routine care or placebo, for patients with unstable angina.

All the trials were conducted in China. The total number of participants was 1413, ranging in age from 25 to 88 years. Most studies randomized patients to receive tongxinluo with conventional medication or conventional medications alone.

The evidence suggested possible benefits relating to a range of outcomes among patients with unstable angina but all the studies were of poor quality and neither blinding nor allocation concealment were used. This makes it impossible to reach firm conclusions about the benefit of this treatment. Thus, in 2006 the authors concluded “Large, high quality, randomized controlled trials are needed to confirm the possible benefit of tongxinluo for unstable angina and to suggest appropriate future use of this herbal medicine.

The editorialist, Richard Bach evaluated the work with a note of skepticism. In his Editorial, Bach raises questions that “underscore lingering uncertainties about the trial results and the use of Tongxinluo outside of China.” But he also notes that the malaria drug artemisinin was isolated from a traditional Chinese medicine, and this research was later awarded the Nobel Prize in Physiology or Medicine.

The 2015 Nobel Prize in Physiology or Medicine was awarded to Professor Youyou Tu for her key contributions to the discovery of artemisinin. Artemisinin has saved millions of lives and represents one of the significant contributions of China to global health. Many scientists were involved in the previously unknown 523 Project, and the Nobel Prize given to a single person has not been without controversy.

California Labor Code 510 requires that “any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.”

And that “any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee.”

California Labor Code Section 515.5 provides that certain computer software employees are exempt from the overtime requirements stipulated in Labor Code Section 510 if certain criteria are met.

One of the criteria is that the employee’s hourly rate of pay is not less than the statutorily specified rate, which the Department of Industrial Relations is responsible for adjusting on October 1st of each year to be effective on January 1st of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

Assembly Bill 10 (Committee on Budget, Chapter 753, Statutes of 2008) amended Labor Code Section 515.5 effective on September 30, 2008, to extend the exemptions to salaried employees whose annual and monthly salaries are not less than the statutorily specified rates, which the department is responsible for adjusting every October 1st of each year to be effective on January 1st of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

The State of California Department of Industrial Relations (DIR) just issued new annual adjusted minimum thresholds for computer software employees who are considered exempt from the state’s overtime requirements under California Labor Code Section 515.5.

The department has adjusted the computer software employee’s minimum hourly rate of pay exemption from $53.80 to $55.58, the minimum monthly salary exemption from $9,338.78 to $9,646.96, and the minimum annual salary exemption from $112,065.20 to $115,763.35 effective January 1, 2024.

This increase reflects the 3.3% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

The computer software employee exemption in Section 515.5 generally applies to employees who are “primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment,” are “highly skilled,” and have job duties such as computer programming, systems analysis, or software design and testing.

There are several provisions where the exemption does not apply. For example, if the employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. Or if the employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not engaged in computer systems analysis, programming, or any other similarly skilled computer-related occupation.

Natalie Operstein was employed as a professor of linguistics at California State University, Fullerton (CSUF). In the course of her employment, she experienced conflict with her colleagues in the linguistics department for which she made various written complaints. By May 2014, the matter had escalated to human resources.

In November 2014, CSUF engaged Seyfarth Shaw LL, a law firm, to investigate Operstein’s accusations against three of her colleagues. Colleen Regan, at the time a partner at Seyfarth, had primary responsibility for the investigation. Regan interviewed Operstein’s three colleagues she accused of misconduct and another individual, but Operstein agreed only to respond to written questions.Regan provided a summary of her investigation and findings in an eight-page report dated December 18, 2014.

The report concluded that none of Operstein’s allegations was well founded and that much of Dr. Operstein’s conduct and email communication was the opposite of collegial. She regularly accused her coworkers of violations and infractions of policy, and of defaming her and violating her rights, all with no apparent basis. Regan also wrote: “Every witness interviewed stated that Dr. Operstein is well regarded as a scholar and researcher, and appears to be a fine teacher. However, since the beginning of her employment at CSUF, she has been difficult for virtually everyone to work with. At least one administrative support employee has requested never to work with her again, and many others find her behavior odd, and even threatening.”

Operstein’s relationship with CSUF further soured shortly after Seyfarth completed its report. She filed a number of lawsuits related to her complaints, including in April 2020, she filed the lawsuit underlying this appeal. In a complaint solely against Seyfarth and Regan, plaintiffs asserted 11 causes of action based on Seyfarth’s work for CSUF in connection with Operstein’s internal complaints of workplace harassment and related mistreatment. In sum, the Seyfarth complaint alleges that, with improper motive, defendants (1) conducted a biased and otherwise flawed investigation of Operstein’s complaints; and (2) prepared and submitted a report that was defamatory of Operstein.

Defendants responded with a motion to strike plaintiffs’ complaint under the anti SLAPP statute (C.C.P § 425.16 strategic lawsuit against public participation), and supported their motion with declarations and extensive documentary evidence, including documents they reviewed in the course of their investigation and the resulting report. Plaintiffs opposed the motion and submitted declarations and evidence of their own totaling nearly 3,000 pages. Defendants filed a reply and plaintiffs filed a 70 page surreply.

On the same day plaintiffs filed their surreply, the trial court issued a tentative ruling. and was inclined to strike three of the 11 causes of action (“negligent misrepresentation and constructive fraud,” “defamation,” and “fraud and deceit”) because those causes of action “arise solely from protected activity under . . . subdivisions (e)(1) and (e)(2),” but was inclined to request further briefing as to whether defendants’ alleged investigative conduct was protected under the anti SLAPP statute.

Later, on the same day the trial court issued its tentative ruling, plaintiffs voluntarily requested dismissal of their entire lawsuit. The court granted their request.

Shortly thereafter, defendants filed their motion for attorney fees and costs pursuant to subdivision (c). Their ultimate total request was $79,889. The trial court granted this only in part, finding defendants would have only partially prevailed on their special motion to strike. It adopted its tentative ruling, and awarded defendants $63,911- 80 percent of the fees they requested.

The trial court awarded the fees without finally ruling on defendants’ anti SLAPP motion to strike – it issued a tentative ruling granting in part and denying in part the motion, and plaintiffs immediately thereafter dismissed their complaint.

Plaintiffs Craig Ross and Natalie Operstein appeal the fee award on three general theories. First, the anti SLAPP statute did not apply to their claims, and, in any event, their claims were meritorious. Second, the fees should not have been awarded because defendants did not meet the fee award requirements of subdivision (c)(1) or because judicially created exceptions to their right to seek a fee award applied. Third, even if fees were awardable, the amount awarded was unreasonable.

Defendants cross appealed and argued that the trial court should have awarded all the fees they requested, not just a portion of those fees, because all of plaintiffs’ claims were based on conduct protected by the anti SLAPP statute, no exceptions applied, and their request was reasonable.

The Court of Appeal agreed with defendants that their motion to strike was wholly meritorious and their fee request therefore should not have been reduced on the grounds that they would have prevailed only partially on their motion. And it disagreed with plaintiffs that the trial court erred in the ways they claim. It therefore affirmed in part and reverse in part and remand for further proceedings consistent with its opinion in the published case of Ross v. Seyfarth Shaw LLP (October 2023).

The anti SLAPP statute provides a procedure for courts to dismiss at an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue. Courts must “broadly” construe the anti-SLAPP statute to further the legislative goals of encouraging participation in matters of public significance and discouraging abuse of the judicial process. (§ 425.16, subd. (a).)

Defendants argued that Seyfarth’s investigation was not an official proceeding authorized by law, and in support cite Vergos v. McNeal (2007) 146 Cal.App.4th 1387 (Vergos), which treated all investigative conduct as communicative.

However, since the Vergos decision issued, our Supreme Court in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1015, has mandated a more granular evaluation of the allegations underlying a cause of action and its subsidiary claims, and disapproved of the gravamen analysis that appears to have been employed in Vergos, so it said “so we will not rely on Vergos. The Court of Appeal agreed with defendants and concluded “that all conduct by defendants alleged in the complaint is protected under the anti SLAPP statute.”

A “prevailing defendant” on a special motion to strike is “entitled to recover that defendant’s attorney’s fees and costs.” (§ 425.16, subd. (c)(1).) The purpose of this provision is to provide the SLAPP defendant financial relief from the plaintiff’s meritless lawsuit. (Liu v. Moore (1999) 69 Cal.App.4th 745, 750 (Liu).) The trial court’s fee award pursuant to this authority is the subject of this appeal.

When a plaintiff dismisses his or her complaint while the defendant’s special motion to strike is pending, courts agree they retain jurisdiction to award fees and costs. (See, e.g., Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107 (Coltrain); Liu, supra, 69 Cal.App.4th at p. 752; Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456 (Tourgeman).) This is because permitting an eleventh-hour dismissal to eliminate financial liability would undermine the deterrent purpose of the anti SLAPP statute. (See Liu, at pp. 750-751.)

The Court of Appeal also concluded that “Under either the Coltrain standard or the Liu standard, defendants entirely prevailed in their special motion to strike” and thus was entitled to the entire fee they requested.

Founded in 1903, the Teamsters Union represents 1.2 million workers in the U.S., Canada, and Puerto Rico. Following a legislative session where he vetoed a multitude of bills that would have improved worker’s rights, occupational safety, and financial security for the middle class, the Teamsters are condemning California Gov. Gavin Newsom saying he is making life harder for working families in the nation’s most populous state.

“The way Gavin Newsom reacted to a vast majority of the pro-labor bills that came before him this year is something that we would expect to see from a governor who got elected with support from the Koch brothers – not someone who received support from organized labor,” said Jason Rabinowitz, President of Teamsters Joint Council 7. “Being a pro-union governor doesn’t mean you stand with us when it’s convenient. It means you stand with organized labor when it counts, which is when it’s time to sign pro-union legislation.”

The worst veto for good-paying careers in transportation was AB 316 – legislation that would have required a human operator in any vehicle over 10,000 pounds. In addition to being a priority for the Teamsters, the bill was incredibly popular. Over 90 percent of the state legislature voted in favor of it, and public polling shows that nearly three-fourths of Californians across party lines, gender, geography, and all other demographics support AB 316 – unsurprising data given that collisions and accidents with self-driving vehicles continue to occur.

In addition to AB 316, other pro-worker legislation that Newsom vetoed includes:

– – AB 504 – would have banned employers from disciplining or taking any other adverse action against public employees for honoring picket lines or other strike activities;
– – SB 686 – would have required that all household domestic service employers comply with and adhere to all applicable occupational safety and health regulations by January 1, 2025, and remove the exemption of domestic workers from safety and health laws;
– – SB 799 – would have enabled union members who were either on strike or locked out by their employer to collect unemployment insurance benefits (New York and New Jersey both allow this);
– – SB 725 – would have required a successor grocery employer to provide an eligible grocery worker a dislocated allowance equal to one week of pay for each year of employment;
– – SB 627 – would have required an employer, following the shutdown of a chain or franchise location, to provide laid off workers the opportunity to transfer to another site within 25 miles of the closed business;
– – AB 575 – would have expanded eligibility for Paid Family Leave (PFL) benefits to include workers who take time off from work to bond with a child that they are acting as the legally-recognized primary caregiver for. AB 575 would have also removed a restriction that allowed only one family member at a time to access PFL, as well as a provision that allowed employers to make workers use up to two weeks of vacation time prior to accessing PFL;
– – AB 1123 – would have required the California State University (CSU) system to grant workers a leave of absence with pay for one semester of an academic year, or an equivalent duration in a one-year period, following the birth of a child or in connection with the adoption or foster care placement of a child by the CSU worker;
– – SB 751 – would have prohibited franchise agreements for solid waste services from containing provisions that excused a service provider from complying with the agreement in the event of a work stoppage associated with a labor dispute;
– – AB 699 – would have expanded occupational safety protections to lifeguards employed on a full-time basis in the Boating Safety Unit by the City of San Diego Fire–Rescue Department;
– – AB 1145 – would have expanded worker’s compensation benefits for certain nurses, psychiatric technicians, and various medical and social services specialists employed by the Department of Corrections and Rehabilitation, the State Department of Developmental Services, and the State Department of State Hospitals.
– – SB 640 – would have required any food service contract or hotel development project undertaken by the CSU Board of Trustees to be with employers signatory to labor peace agreements; and
– – SB 90 – would have prohibited health plans from imposing a copayment of more than $35 for a 30-day supply of an insulin prescription drug.

“Gavin Newsom wants to act like he’s both an ally of labor and an ally of Big Business,” said Chris Griswold, Teamsters International Vice President At-Large and President of Teamsters Joint Council 42. “The last thing America needs right now is more politicians who are friendly with Big Business. What we need is something that’s in short supply: elected officials who are going to stand up for workers.”