Category: Daily News

Nicholas Casson was a firefighter for the City of Santa Ana for 27 years. He took a service retirement in 2012 and immediately began receiving pension payments through California Public Employees Retirement System (CalPERS) of approximately $7,200 per month.

He immediately started a second career with the Orange County Fire Authority (OCFA) where he was eligible for a pension under respondent Orange County Employees Retirement System (OCERS). Importantly, he did not elect reciprocity between the two pensions, which would have allowed him to import his years of service under CalPERS to the OCERS pension. He started as a first-year firefighter for purposes of the OCERS pension and immediately began collecting pension payments from CalPERS.

Five years into the new job, he suffered an on-the-job injury that permanently disabled him. He applied for and received a disability pension from OCERS, which, normally, would have paid out 50 percent of his salary for the remainder of his life.

However, because he was receiving a CalPERS retirement, OCERS imposed a “disability offset” pursuant to Government Code section 31838.5, which is the statute at the center of this appeal. This resulted in a monthly benefit reduction from $4,222.81 to $1,123.87.

After exhausting his administrative remedies, Casson filed a petition for a writ of mandate in the trial court. The court denied the petition, finding that the plain language of section 31838.5 required a disability offset. Casson appealed. The Court of Appeal reversed in the published case of Casson v. Orange County Employees Retirement System – G060950 (January 2023).

This appeal arises from a claim for a service-connected disability retirement (i.e., retirement arising from an on-the-job injury) under a pension governed by the County Employees Retirement Law of 1937, Government Code section 31450 et seq. (CERL).

The parties have presented a single issue on appeal: Does the term “disability allowance” in section 31838.5 include payments under a prior service pension in the absence of reciprocity? This is a pure statutory interpretation issue.

The opinion first answered the question “what is reciprocity?” At the time of retiring from a qualifying job, the employee may elect to defer pension benefits and leave his or her contributions on deposit with the pension plan. (§ 31700.) If, within the applicable timeframes, the employee is employed in another government position with a qualifying pension plan, the employee may elect to link the two pensions in a system of reciprocity. (§ 31831.) The effect of that election is the employee does not receive pension benefits under the first plan until he or he or she retires from the second plan. The advantage to the employee is that he or she enters the second pension plan with the same amount of service credit as the first plan.

Reciprocity is not automatic. An employee must affirmatively elect reciprocity. (§ 31831.) In this case Casson did not.

Government Code section 31838.5 places certain limits on the amount of disability pay a person may receive if he or she has been the beneficiary of multiple CERL retirement plans. OCERS’ argument, which the trial court adopted, is relatively straightforward: section 31838.5, on its face, does not limit its application to reciprocal pensions. Indeed, the word reciprocal is nowhere mentioned in the statute.

Casson takes the view that section 31838.5 only applies to reciprocal pensions.

The court of appeal agreed with Casson and said “Casson did not elect reciprocity. He chose to treat the two pensions as separate. He forwent valuable benefits to do so. The compelling logic of treating the two pensions as one for disability purposes, therefore, simply does not apply. On the contrary, it would be fundamentally unfair to Casson to limit his disability allowance to the equivalent of a single pension when he did not elect the benefits of treating the two pensions as one.”

The current Wheeler v Safeway Stores case has a lengthy history involving the settlement of two related wage and hour lawsuits following years of litigation, which began in 2001 and includes two prior appeals.

Safeway has managed the operations of a distribution center in Tracy California. Prior to 2003, the distribution center was operated by a third party, Summit Logistics, Inc, for Safeway’s benefit. The plaintiffs in this and related cases are truck drivers who worked out of that distribution center, delivering goods to Safeway stores in Northern California and Nevada.

The terms of the drivers’ employment were governed by successive collective bargaining agreements, which provided for meal periods and rest breaks and specified the manner in which wages were calculated.

Safeway provided its drivers with a “driver trip summary – report of earnings” (ROE) and an “earnings statement” with each paycheck. Safeway instructed the drivers to compare their earning statement and ROE with their trip sheets to ensure that they were paid the correct amount, and to speak with the transportation manager or a payroll clerk if they believed their pay was incorrect.

In two related cases, the plaintiffs in Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 and the plaintiff in Bluford v. Safeway Inc. (2013) 216 Cal.App.4th 864, brought suit against their former/current employer (Summit/Safeway), alleging violations of statutory and regulatory laws related to meal and rest periods and itemized wage statements. In Cicairos the court of appeal reversed the trial court’s grant of summary judgment in favor of Summit. In May 2013, the court of appeal reversed the trial court’s order denying plaintiff’s motion for class certification in Bluford.

In December 2014, the parties agreed to settle all of the claims alleged in both Cicairos and Bluford. In February 2015, the parties executed a written settlement agreement memorializing the terms of the settlement.

Beginning on June 14, 2015, Safeway implemented certain changes to its rest break practices and wage statements.

Nonetheless, in January 2016, Wheeler and others filed this current wage and hour class action complaint against Safeway, alleging violations of statutory and regulatory laws related to rest periods and itemized wage statements as well as a derivative claim under the unfair competition law. The allegations supporting these claims were similar to the allegations supporting the claims alleged in Cicairos and Bluford.

In this action, the rest period claim is limited to Safeway’s conduct from March 10, 2015, to June 13, 2015–the three-month period from the preliminary approval of the Cicairos/Bluford settlement to the day before Safeway implemented changes to its rest break practices. The wage statement claim is limited to Safeway’s conduct after the preliminary approval of the settlement- – March 10, 2015, to the present. According to plaintiffs, Safeway’s wage statements continued to be inadequate after the settlement was approved. Specifically, plaintiffs allege that the wage statements were deficient because they failed to indicate the rate of pay associated with each task performed.

In December 2018, the trial court granted plaintiffs’ motion for class certification, which, as relevant here, included certification of a subclass of “all current and former Safeway drivers not provided accurate itemized wage statements from March 10, 2015 to the present.”

In October 2020, the trial court granted summary adjudication in favor of Safeway on plaintiffs’ rest period claim. The court explained that, in December 2018, the Federal Motor Carrier Safety Administration determined that California’s meal and rest break rules were preempted under federal law and could not be applied to truck drivers.

In mid-April 2021, in anticipation of trial in early May 2021, Safeway filed two motions in limine. Motion in Limine No. 1 sought to prevent plaintiffs from presenting any evidence or argument regarding wage statements issued to members of the Cicairos/Bluford settlement class on or before October 8, 2015 – the date the judgment incorporating the settlement agreement became final.

Motion in Limine No. 2 sought to prevent plaintiffs from presenting any evidence or argument regarding wage statements issued on or after June 14, 2015. In support of this motion, Safeway argued that such evidence was irrelevant because the wage statements issued during this time period did not violate Labor Code section 226 as a matter of law, and that, in any event, plaintiffs could not establish injury as a matter of law.

Rulings on these motions rulings effectively limited relief on the wage statement claim to current class members who were not members of the Cicairos/Bluford settlement class and were employed by Safeway during the three-month period from March 10, 2015, to June 14, 2015.

Following the trial court’s in limine rulings, the parties agreed to settle the remaining claims. Thereafter, the matter was dismissed pursuant to stipulation. Judgment was entered in December 2021.

Plaintiffs timely appealed challenging the in limine rulings. The court of appeal concluded that the trial court erred and therefore reversed in the unpublished case of Wheeler v Safeway Stores -C095601 (January 2023).

Safeway argued, and the trial court apparently agreed, that section 226, subdivision (a) does not require an employer to explain the basis for how each piece-rate was determined. Rather, it only requires that wage statements include the applicable piece-rate and the number of piece-rate units earned. The court of appeal disagreed with this construction of the statute.

It concluded “that when, as here, an employee is subject to a piece-rate compensation system, the employer must provide the employee a wage statement that clearly explains how their compensation was calculated, including the applicable piece-rate formula for each specific task performed and any other information necessary to calculate the employee’s compensation for that task. Without such information, the core purpose of section 226 – to assist an employee in determining whether he or she has been properly compensated – would not be served.”

Jennifer Bitner and Evelina Herrera were employed as licensed vocational nurses by defendant and respondent California Department of Corrections and Rehabilitation (CDCR).

They filed a class action suit against CDCR alleging that (1) while assigned to duties that included one-on-one suicide monitoring, they were subjected to acts of sexual harassment by prison inmates and, (2) CDCR failed to prevent or remedy the situation in violation of the California Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq.

The trial court granted summary judgment in favor of CDCR on the ground that it was entitled to statutory immunity under Government Code section 844.6, which generally provides that “a public entity is not liable for . . . [a]n injury proximately caused by any prisoner.” (§ 844.6, subd. (a).)

The Court of Appeal affirmed the dismissal in the published case of Bitner v Dept of Corrections – E078038 (January 2023).

Plaintiffs appeal, arguing that, as a matter of first impression, the court should interpret section 844.6 to include an exception for claims brought pursuant to FEHA. Plaintiffs also argue that, even if claims under FEHA are not exempt from the immunity granted in section 844.6, the evidence presented on summary judgment did not establish that their injuries were proximately caused’ by prisoners. The Court of Appeal disagreed with both of these arguments.

To the extent plaintiffs argue that section 844.6 is ambiguous because FEHA contains express statutory provision imposing liability on public entities, any ambiguity is easily resolved in light of well-established cannons of construction.

When the language of a statute is clear, courts need go no further. In this case the opinion concluded that “the plain meaning of the statute’s words is clear and unambiguous.”

When faced with conflicting statutes providing for governmental immunity and liability, the statute providing immunity will prevail in the absence of any clear indication of a contrary legislative intent.

To the extent there is any doubt on this point, the California Supreme Court’s decision in Caldwell v. Montoya (1995) 10 Cal.4th 972 (Caldwell) is dispositive. In Caldwell, our Supreme Court considered and rejected the argument that FEHA claims should be exempt from the statutory immunity set forth in section 820.2, which provides public employees immunity for discretionary acts.

Plaintiffs attempt to factually distinguish Caldwell by arguing that the case addresses immunity of public employees under a different statute. However, a similar argument was considered and rejected in Towery v. State of California (2017) 14 Cal.App.5th 226, 231-232

Senior United States district judge of the United States District Court for the Eastern District of California, William B. Shubb, granted a request for a preliminary injunction, made by a group of California physicians, against enforcement of AB 2098 – a controversial law that placed the severe restrictions on physicians against providing “misinformation” about COVID-19 to their patients.

It was signed into law on September 30, 2022, and codified at Cal. Bus. & Prof. Code § 2270 and was effective January 1, 2023. This law empowers the Medical Board of California and the Osteopathic Medical Board of California to discipline physicians who “disseminate” information about Covid-19 that departs from the “contemporary scientific consensus.”

The statute provides that “[i]t shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”

Plaintiffs are five physicians, licensed to treat patients in the state of California. Last November they filed a lawsuit in the Federal District Court in the Eastern District of California alleging that AB 2098 violates their First Amendment rights to free speech and expression, their patients’ First Amendment rights to receive information from them, and their Fourteenth Amendment rights to due process of law.

Section 1 of AB 2098 lays out the ostensible justification for the bill including that the spread of misinformation and disinformation about Covid-19 vaccines has weakened public confidence4 and placed lives at serious risk; and that “major news outlets” have reported that health care professionals are “some of the most dangerous propagators of inaccurate information regarding the COVID-19 vaccines.”

Section 2 deems it “unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines”

“Misinformation”is defined as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care. ” However Judge Shubb pointed out that the “Act neither defines nor provides guidance for determining the meaning of ‘contemporary scientific consensus.’ “

AB 2098’s sponsor, the California Medical Association, argued that this law is needed because of physicians who “call into question public health efforts such as masking and vaccinations.”

In his Order Granting a Preliminary Injunction Judge Shubb pointed out that the Supreme Court of the United States has stated that “the Constitution protects the right to receive information and ideas,” which “is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution.”

Having determined that plaintiffs have standing to bring this action, the court considered whether they have demonstrated a likelihood of success on the merits, a requirement for issuing a preliminary injunction.

Plaintiffs contend that the law’s definition of “misinformation” is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. A statute is unconstitutionally vague when it either “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

The operative question under the fair notice theory is whether a reasonable person would know what is prohibited by the law. Vague statutes are particularly objectionable when they “involve sensitive areas of First Amendment freedoms” because “they operate to inhibit the exercise of those freedoms.”

Judge Shubb pointed out that the “Defendants provide no evidence that “scientific consensus” has any established technical meaning; the expert declarations they offer are notably silent on the topic.”

In Forbes v. Napolitano, 236 F.3d 1009, 1010 (9th Cir. 2000), amended, 260 F.3d 1159 (9th Cir. 2001) the Ninth Circuit considered a vagueness challenge to a law prohibiting medical “experimentation” or “investigation” involving fetal tissue from abortions unless necessary to perform a “routine” pathological examination.

In that case the terms “investigation” and “routine” were problematic because multiple common definitions could apply in the medical community, which “[lacked] any official standards to help” define the terms. Id. at 1012. The Ninth Circuit reasoned that because the contested terms lacked sufficiently clear, commonly understood definitions in the medical community, and the statute failed to provide narrowing definitions, the statute was unconstitutionally vague. The lack of definitional clarity failed both to give doctors fair notice of what conduct was prohibited, and to give courts and law enforcement sufficient standards by which to narrow the terms’ meanings.

Judge Shubb then wrote that like the contested terms in Forbes, “contemporary scientific consensus” lacks an established meaning within the medical community, and defendants do not propose one. At oral argument, defense counsel declined to explain what specific conduct the law may prohibit, arguing that application of the law is highly fact-specific.

He went on to say that Courts have based their understanding of scientific consensus on a wide range of sources, including U.S. professional organizations, international professional organizations, state and federal courts, U.S. scientific studies, international scientific studies, various federal agencies, and the state of California.

And because the term “scientific consensus” is so ill-defined, physician plaintiffs are unable to determine if their intended conduct contradicts the scientific consensus, and accordingly “what is prohibited by the law.”

Because plaintiffs have “established a likelihood of success on the grounds of their Fourteenth Amendment vagueness challenges,” the court did not address the merits of their First Amendment arguments.

The U.S. Occupational Safety and Health Administration (OSHA) announced another annual inflation based increase in the civil monetary penalties for violations of federal Occupational Safety and Health standards and regulations. The new penalties will be nearly 10% higher than the previous penalty amounts.

On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 was enacted, which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt Collection Improvement Act to improve the effectiveness of civil monetary penalties and maintain their deterrent effect.

The OSHA cost-of-living adjustment multiplier for 2023, based on the Consumer Price Index for All Urban Consumers for October 2022 (not seasonally adjusted), is 1.07745. To compute the 2023 annual adjustment, the Department multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.07745, and rounded to the nearest dollar. The adjustment factor of 1.07745 is consistent across the minimum and maximum penalties set forth in the Occupational Safety and Health Act and the FOM.

The Inflation Adjustment Act required agencies to: (1) adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rule and (2) make subsequent annual adjustments for inflation, no later than January 15 of each year.

Using this formula, some examples of the new current maximum penalties for this year are as follows:

– – Serious and Other-Than-Serious Posting Requirements maximum penalty is $15,625 per violation
– – Failure to Abate violation maximum is $15,625 per day beyond the abatement date
– – Willful or Repeated violation is $156,259 per violation

States that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA’s. State Plans are not required to impose monetary penalties on state and local government employers. Cal/OSHA penalties are specified in section 336 of its regulations.

And their are some costly new changes to the penalty provisions of Cal/OSHA authority.

On Sept. 28, 2021, California Gov. Gavin Newsom signed into law Senate Bill 606 (SB 606), which, among other things, created two new categories of Cal/OSHA violations: “egregious” and “enterprise-wide.

The new categories of violations carry significant monetary penalties against employers. Under this new law, Section 6317.8 of the California Labor Code provides that Cal/OSHA “shall issue a citation to that employer for each egregious violation, and each instance of an employee exposed to that violation shall be considered a separate violation for purposes of the issuance of fines and penalties.”

Employers face up to $134,334 per egregious and enterprise-wide violation. So if this maximum penalty (increased by the COLA) is issued for “each instance of an employee exposed” the total penalty could theoretically result in hundreds of millions of dollars.

In the definition of “egregious” violation in Labor Code 6317.8 lists 7 criteria for this determination, and any “one or more” of them can be grounds for a finding of an egregious violation. One example is “persistently high rates of worker injuries or illnesses.” Theoretically, industries that are dangerous by the every nature of the work will have “persistently high rates of worker injuries or illnesses.”

And a COLA is now required annually to penalties under this new Cal/OSHA law. Labor Code 6429 (a)(2) provides that “Commencing on January 1, 2018, and each January 1 thereafter, the penalty amounts specified in this section shall be increased based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U), not seasonally adjusted, for the month of October immediately preceding the date of the adjustment, as compared to the prior year’s October CPI-U.”

Thus, as employers enter 2023, OSHA penalties and Cal/OSHA penalties increase based upon CPI formulas. And then since each egregious and enterprise-wide violation in California applies the maximum penalty to “each instance of an employee exposed,” 2023 brings in higher OSHA and much higher Cal/OSHA penalties.