Category: Daily News

Back in 2019, Governor Gavin Newsom signed Assembly Bill 51 (Cal. Lab. Code §§ 432.6(a)–(c), 433; Cal. Gov’t Code § 12953), which effectively outlawed mandatory arbitration agreements with employees – a new version of a bill that prior Governor Jerry Brown had vetoed repeatedly while he was in office.

The law allows workers to pursue damages and attorneys’ fees and open criminal cases against employers who discriminate and retaliate against them for declining arbitration contracts.

The contentious bill bars employers from requiring applicants to waive their right to sue under state labor laws as a condition of employment. Going a step further, the bill sponsored by the California Labor Federation and Consumer Attorneys of California opened employers up to civil and criminal penalties for extreme violations.

A federal judge enjoined the state from enforcing Assembly Bill 51 last year, agreeing with the Chamber of Commerce and other employers that it was pre-empted by the Federal Arbitration Act. The decision was hailed by the coalition of business groups who accused California lawmakers of trying to weaken the common tool used to keep employment disputes out of the courts.

In the case of Chamber of Commerce v Rob Bonta, the Attorney General of the State of California, the Ninth Circuit panel ruled in a 2-1 decision, that the state can require all employment arbitration agreements be consensual and reversed the preliminary injunction. It found AB 51 doesn’t discriminate against arbitration agreements or nix their enforcement.

“In light of Congress’ clear purpose to ensure the validity and enforcement of consensual arbitration agreements according to their terms, it is difficult to see how [AB 51], which in no way affects the validity and enforceability of such agreements, could stand as an obstacle to the FAA,” U.S. Circuit Judge Carlos Lucero, a Bill Clinton appointee sitting by designation from the 10th Circuit, wrote for the majority.

U.S. Circuit Judge Sandra Segal Ikuta, a George W. Bush appointee, wrote a dissenting opinion. She commenced her dissent by claiming “Like a classic clown bop bag, no matter how many times California is smacked down for violating the Federal Arbitration Act (FAA), the state bounces back with even more creative methods to sidestep the FAA”.

“And today the majority abets California’s attempt to evade the FAA and the Supreme Court’s caselaw by upholding this anti-arbitration law on the pretext that it bars only nonconsensual agreements. The majority’s ruling conflicts with the Supreme Court’s clear guidance in Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421, 1428–29 (2017), and creates a circuit split with the First and Fourth Circuits. Because AB 51 is a blatant attack on arbitration agreements, contrary to both the FAA and longstanding Supreme Court precedent, I dissent. “

According to a report in Courthouse News, the Chamber of Commerce signaled it could appeal.

“The majority decision is clearly wrong, violates U.S. Supreme Court precedent and runs contrary to decisions of many other courts,” said Daryl Joseffer, chief counsel for the chamber, in an email. “The U.S. Chamber will pursue further review of this flawed decision.”

Earlier this summer, the California Supreme Court declined to add a third exception to the Privette rule, and thus reversed the Court of Appeal n the case of Gonzalez v Mathis. A month later, it reviewed the rule once again, and reversed a multi-million dollar jury verdict against Qualcomm.

In this new case, Qualcomm planned to upgrade its onsite turbine generators at its San Diego campus in 2013. In order to accommodate this upgrade, Qualcomm hired TransPower Testing, Inc., an electrical engineering service company, to inspect and verify the amperage capacity of Qualcomm’s existing switchgear equipment.

Frank Sharghi, TransPower’s president, is a licensed electrical engineer and had worked on that switchgear at least monthly for nearly 20 years, since before Qualcomm acquired the campus.

After Sharghi was unable to locate some of the busbars in the “main cogen: circuit during one inspection, Sharghi hired Jose M Sandoval – an electrical parts supply and repair specialist with ROS Electrical Supply & Equipment – to accompany him at a second inspection.

For this second inspection, Qualcomm approved a scope of work authorizing TransPower to inspect the main cogen circuit from the front and back.On the morning of the second inspection, the team attended a safety briefing led by Qualcomm plant operator, and the team was reminded that some circuits in the switchgear would remain live.

At some point during this inspection, Sandoval walked away from the rest of the TransPower team. Sandoval would later recall that he was having trouble judging the size of some of the main cogen busbars from the front side of the cabinet, and he thought he might be able to get a better view from the back.

Sandoval asked a fellow worker to hold a flashlight as they both approached the back side of the cabinets. Sandoval was holding a metal tape measure which triggered an arc flash from the live, exposed circuit. The 4,160-volt arc flash – thousands of degrees in temperature – had set him aflame, and he suffered serious injury.

Sandoval filed suit against Qualcomm, TransPower, and ROS Electrical Supply, asserting claims for negligence and premises liability. Qualcomm moved for summary judgment on the basis that the presumption of delegation should shield it from liability here. Denying the motion, the trial court proceeded to trial, and a jury awarded Sandoval over $1 million in past and future medical expenses and $6 million in noneconomic damages. It apportioned the fault 46 percent to Qualcomm, 45 percent to TransPower, and 9 percent to Sandoval.

The Court of Appeal affirmed. However the California Supreme Court reversed in the case of Sandoval v Qualcomm.

“Strong public policy considerations readily acknowledged in our past decisions generally support a straightforward presumption about the responsibilities of hirers and contractors for worker injuries in situations like this: A person or entity hiring an independent contractor (a “hirer”) ordinarily delegates to that independent contractor all responsibility for the safety of the contractor’s workers.”

“This presumption is rooted in hirers’ reasons for employing contractors in the first place, and society’s need for clear rules about who’s responsible for avoiding harms to workers when contractors are hired.”

Thus the Supreme Court concluded “that defendant Qualcomm Incorporated, the hirer in this case, owed no tort duty to plaintiff Martin Sandoval, the parts specialist working for Qualcomm’s contractor, at the time of Sandoval’s injuries.”

The U.S. Food and Drug Administration’s announced that it had granted “full approval” to the Covid shots being offered by Pfizer.  But to be clear, what was actually given full approval was a separate Pfizer-BioNtech vaccine product which goes by the name Comirnaty. But Comirnaty is not currently available in the U.S.

The 13-page “approval letter” is addressed to BioNTech Manufacturing GmbH and Pfizer Inc. in New York City, and approves a biologics license application (BLA) for BioNTech Manufacturing GmbH in Mainz, Germany, for COMIRNATY.

Then a letter to Pfizer Inc. on the same date states: “FDA is reissuing the August 12, 2021 letter of authorization in its entirety with revisions incorporated to clarify that the EUA will remain in place for the Pfizer-BioNTech COVID-19 vaccine for the previously-authorized indication and uses, and to authorize use of COMIRNATY (COVID-19 Vaccine, mRNA) under this EUA for certain uses that are not included in the approved BLA.”

Footnote 8 reads: “The licensed vaccine has the same formulation as the EUA-authorized vaccine and the products can be used interchangeably to provide the vaccination series without presenting any safety or effectiveness concerns. The products are legally distinct with certain differences that do not impact safety or effectiveness.”

The “certain differences”are not specified, but it is perfectly clear that the two products are legally distinct.  An analysis by the Association of American Physicians and Surgeons notes these differences and concludes that “It appears that there are two legally distinct if otherwise mostly identical products. The remaining doses of the ‘Pfizer-BioNTech COVID-19 vaccine’ are still under an EUA and are not fully licensed.“

As of this date, the FDA has not approved the non Cominaty branded vaccine such as the Pfizer BioNTech vaccines, nor any COVID vaccines for the 12- to 15-year age group, nor any booster doses for anyone.

The FDA acknowledges that while Pfizer has insufficient supplies of the newly licensed Comirnaty vaccine actually available, there is “a significant amount” of the Pfizer-BioNTech COVID vaccine – which has been produced under Emergency Use Authorization (EUA) and will continue to be offered under the same EUA status.

EUA-licensed vaccines have an extraordinary liability shield under the 2005 Public Readiness and Preparedness Act. Vaccine manufacturers, distributors, providers and government planners are immune from liability. The only way an injured party can sue is if he or she can prove willful misconduct, and if the U.S. government has also brought an enforcement action against the party for willful misconduct. No such lawsuit has ever succeeded.

Phizer’s Cominaty vaccine likely does not have that liability protection for Pfizer. The abundant U.S. supply of EUA authorized Pfizer-BioNtech vaccine product does protect Pfizer. Instead, the government has created a comparatively stingy compensation program, the Countermeasures Injury Compensation Program, – compared to tort law – to redress injuries from all EUA products.

For purposes of an informed consent, those choosing to take either vaccine should be advised that an unprecedented number of lethal or serious adverse effects have been reported to the Vaccine Adverse Events Reporting System (VAERS).

The FDA-approved package insert for Comirnaty reads: “13.1 Carcinogenesis, Mutagenesis, Impairment of Fertility. COMIRNATY has not been evaluated for the potential to cause carcinogenicity, genotoxicity, or impairment of male fertility.” It mentions one study in female rats. The package inserts warns of myocarditis, but omits mention of Guillain-Barré syndrome, thrombotic complications, and other serious events.

Now the thorny issues. Can an employer mandate that employee’s take a vaccine that is “legally distinct” from the approved Cominaty product made by Pfizer? And if they do, does that bring any potential side-effect related problem within the workers’ compensation system?

Federal Regulations provide that no one can force a human being to take an EUA drug. Under 21 U.S. Code Sec.360bbb-3(e)(1)(A)(ii)(III), “authorization for medical products for use in emergencies,” parties need to be informed of their “option to accept or refuse administration of the product.”  What is also not clear is if the employer’s vaccine mandate under threat of termination interferes with this right.

The share of Americans who are required by their employer to get vaccinated against COVID-19 took a jump up in August to 19 percent, according to a Gallup poll reported on September 8. The percentage doubled in the last month. But not all employees are happy with this development.

A lawsuit, that was filed by LAPD Officers Saturday in U.S. District Court in Los Angeles, claims the mandate violates the employees’ constitutional rights to privacy and due process, and asks the court to provide immediate and permanent relief from the requirement.

The six LAPD employees suing include individuals “who could not assert a medical or religious exemption” to the vaccine requirement, as well as individuals who have “experienced and recovered from COVID-19” and have natural antibodies to fight the virus, the complaint states.

The lawsuit alleges the city’s mandate ignores the natural protections provided by such antibodies and claims the suing employees “can safely perform their job duties protecting themselves, fellow employees and the community they serve through non-pharmaceutical interventions such as daily health screenings, wearing masks, and quarantine.”

The suit also claims the employees have been subjected to harassment and undue pressure to get vaccinated by LAPD leaders, including a captain who said during a roll call meeting that the city was willing to fire thousands of officers if they don’t get vaccinated.

It alleges that commanders have called unvaccinated officers “unfit for duty” and told them that they would be denied promotions and special assignments based on their unvaccinated status.

First responders nationwide have been among the more vociferous opponents of mandatory vaccination, though they are often exposed to more risks of infection. Los Angeles firefighter John Knox, who leads a group called Firefighters for Freedom, claims that the vaccine mandate violated members’ constitutional rights.

A coalition of Oregon police officers and firefighters have sued Gov. Kate Brown over a COVID-19 vaccine mandate for state employees.

The plaintiffs – including the Oregon Fraternal Order of Police and the Kingsley Firefighters Association – argued in a lawsuit filed this September in a Jefferson County court that Brown’s executive order violates a number of laws and want it blocked.

A former California Employment Development Department employee has agreed to plead guilty to a federal criminal charge for causing nearly 200 fraudulent COVID-related unemployment relief claims to be filed in other people’s names, resulting in more than $1.6 million in ill-gotten gains.

Gabriela Llerenas, a.k.a. “Maria G. Sandoval,” 49, of Perris, signed a plea agreement in which she has agreed to plead guilty to a single-count information charging her with mail fraud.

Court records show that Llerenas previously worked at EDD as a disability insurance program representative. She resigned in March 2002 after admitting to fraudulently authorizing and paying disability benefits administered by EDD. She was sentenced to 37 months in federal prison in connection with that scheme.

The new scheme that Llerenas has admitted running took advantage of the expanded eligibility for unemployment insurance benefits made possible by the Coronavirus Aid, Relief, and Economic Security (CARES) Act passed by Congress and signed into law in March 2020.

From April to October 2020, Llerenas filed and caused the filing with EDD that falsely asserted the named claimants were self-employed independent contractors – often identifying them as cake decorators or event attendants – who were negatively affected by the COVID-19 pandemic. Llerenas obtained some of the names, Social Security numbers and other identifying information she used to submit the fraudulent claims through her prior work as a tax preparer.

In her plea agreement, Llerenas also admitted to falsely stating on some of the applications that the claimants were residents of California entitled to unemployment insurance benefits administered by EDD when in fact they lived elsewhere. She also admitted that, on some applications, she inflated the amounts of income she reported for the claimant to maximize the benefit amount. She also admitted to sometimes filing a dozen or more fraudulent EDD claims in a day.

As a result of the fraudulent unemployment benefits applications that Llerenas filed and caused to be filed, EDD authorized Bank of America to mail debit cards in the names of the claimants to addresses she provided, including her residence, her husband’s business location, her mother’s apartment and the addresses of friends and other family members.

Llerenas admitted that she charged the named claimants a fee for filling the applications, which was often paid out of the fraudulently obtained benefits. In at least one case, she told the named claimant that she was still employed at EDD and could control the distribution of the unemployment insurance benefits, and then demanded an additional payment for “releasing” the benefits.

In total, 197 debit cards were fraudulently issued because of this scheme, resulting in losses to EDD and the United States Treasury that Llerenas has admitted were at least $1,633,487.

Llerenas is scheduled to make her initial appearance on September 22. The criminal offense to which Llerenas has agreed to plead guilty carries a statutory maximum sentence of 20 years in federal prison.