Category: Daily News

Inheriting a mounting bureaucratic disaster that has floated lifelines to inmates but left newly jobless Californians broke, lawmakers are calling for a reboot of the state’s Employment Development Department.

Pressed to act after a series of criminal investigations and audits revealed inmates and fraudsters took the department for at least $10 billion during the pandemic, a group of Assembly members say sweeping changes are needed to make the troubled department functional once again.

Assemblyman Rudy Salas, said “We want to fix it. EDD needs to be reformed, it needs to more responsive to Californians especially during a time of need.”

The bills call for improvements to the department’s identity verification process, an oversight board to monitor unemployment claims, a task force to further investigate fraud, simplified application processes and direct deposit options for claimants.

Courthouse News reported that the reform package comes one day after the department’s leadership received a lashing from an Assembly committee.

During a marathon oversight hearing, flummoxed and angry lawmakers on both sides of the aisle spent five hours recounting stories of people forced to live in their cars while waiting for unemployment benefits that never came.

One of the proposals, Assembly Bill 110, attempts to prevent benefits from going to inmates by requiring EDD to cross-check all claims against state and local incarceration records. Lawmakers also want to spend $55 million on a task force to aid ongoing fraud investigations as well as a new oversight board to ensure unemployment benefits are being distributed swiftly and accurately.

Assemblywoman Cottie Petrie-Norris said many of the EDD’s troubles are systemic and far from new.

“The truth is this department has been failing for years and this pandemic really has brought those failures into sharp focus. It has become a crisis for our state.”

In addition to cracking down on past and future fraud, the lawmakers want to make the system easier to use and more accessible.

As highlighted in the recent state audits, while unemployment skyrocketed last year EDD answered fewer than 1% of phone calls made by confused residents. Unable to get through to the department, residents have instead flooded their local elected officials with requests to help with unemployment applications.

Assembly Bill 402 would give people an official avenue for help by creating a sort of consumer advocate arm to sift through application issues. Related proposals would allow claimants to receive benefits via direct deposit, require EDD to offer more options for non-English speakers and a streamlined application process.

San Diego Assemblywoman Lorena Gonzalez said her direct deposit bill is a common-sense proposal born from an incident last summer when Bank of America froze benefit cards amid the spike in fraud. She noted California is just one of three states that doesn’t let people get benefits via direct deposit and that her bill would “cut out the middleman” in reference to the state’s contract with Bank of America.

The California Supreme Court rejected a major labor union and several ride-hailing drivers attempt to overturn a newly passed ballot measure classifying gig workers as independent contractors in California.

The groups filed suit in the Supreme Court, alleging Proposition 22 violated the state constitution and limits the power of state legislators to implement certain worker protections they are authorized to grant.

The Service Employees International Union and group of ride-hailing drivers, asked the state Supreme Court to invalidate Prop 22, which classified gig driver’s status as independent contractors after more than 58 percent of voters supported it in November.

They argued the measure limits state legislators’ ability to implement a system of workers’ compensation in defiance of their constitutional authority to do so. It also argues that the proposition unconstitutionally defines what comprises an amendment to the measure, as well as violating a rule limiting ballot measures to a single subject to prevent voter confusion.

The Protect App-Based Drivers and Services coalition, which represents gig companies such as Uber, Lyft and Doordash, criticized the lawsuit in a statement attributed to Uber driver Jim Pyatt, an activist who has worked in favor of Prop 22.

The groups that filed the suit, which also include SEIU California State Council, took particular issue with the measure’s inclusion of a provision requiring a seven-eighths legislative supermajority to amend and even define what constitutes an amendment.

They said they were suing in the state Supreme Court rather than a lower court because the issues were of broad public importance and required a speedy resolution to minimize harm to gig workers.

However the Supreme Court refused to hear the case, and did not write a formal opinion. The docket entry simply stated “The petition for writ of mandate is denied without prejudice to refiling in an appropriate court.”

Thus, their arguments were not heard on the merits. They were redirected to the jurisdiction of lower courts. However, as they pointed out, this would now require years of costly litigation, first in lower courts, then intermediate appellate courts, and finally back to the Supreme Court.

It would not be unusual for this to be a ten year journey.

A year after the first COVID-19 case hit California, Cal/OSHA – the state agency in charge of policing warehouses, offices, factories and other workplaces – is woefully understaffed and significantly undercounting the number of employees who have fallen seriously ill or died as a result of the coronavirus.

California employers reported only 1,600 serious worker illnesses or deaths to the Division of Occupational Safety and Health, known as Cal/ OSHA, from the start of the pandemic through mid-December, according to data obtained by The Sacramento Bee through a Public Records Act request.

The agency’s inspectors determined that only 779 of those serious or deadly infections were actually contracted in the workplace. That represents a tiny fraction of the 3.2 million people who have tested positive for the disease in California, and less than 2 percent of the more than 41,000 who have died from it.

“It’s troubling; it absolutely is troubling,” said state Sen. Jerry Hill, D- San Mateo, who co-authored legislation last year strengthening workers’ compensation protections for employees who contract COVID-19 on the job.

Cal/ OSHA officials “have a responsibility to make sure … those employee environments are safe,” Hill said. “We want to guarantee the employer is doing everything possible. … That’s where Cal/ OSHA has to have accurate data.”

While state inspectors have responded to thousands of complaints and levied fines against some workplaces that failed to report serious cases, a long-existing staffing shortage has hindered that process. There were 107 job openings posted for the department as of Friday.

Asked about overlooked infections, Cal/ OSHA spokesman Luke Brown said: “We cannot speculate about the number of cases that have not been reported to Cal/ OSHA.”

The agency’s database includes employer names, inspection numbers and dates that the businesses reported to the state serious illnesses – defined by Cal/ OSHA as cases that resulted in deaths or hospitalization. It is the most detailed official glimpse into how the coronavirus has seriously harmed employees in California.

But it’s far from a complete portrait. The database identifies only businesses that have volunteered information to the state. Workplace researchers, health experts and lawmakers all agree the data is likely missing swaths of essential workers who were seriously sickened at work.

“Obviously, that is way under the experience that has been reported daily about the huge numbers of serious illnesses and deaths among vulnerable communities who are people who have not been able to shelter at home,” said Laura Stock, director of UC Berkeley’s Labor Occupational Health Program.

Taken as a whole, the Cal/ OSHA database creates an improbable portrait of significant COVID-19 cases in the workplace. Only four serious, confirmed illnesses have been recorded at poultry processing plants – an industry that, in reality, has been a well-known hot spot for COVID-19. Just 77 serious cases have been tallied across all of California’s agriculture, meat and poultry sectors.

According to Cal/ OSHA’s data, Sacramento County had 51 confirmed workplace infections. That’s second only to the 220 cases reported in Los Angeles County – one of the nationwide epicenters for COVID-19. More than 16,000 Angelenos have died and more than 1 million have contracted the diseases, according to Los Angeles County health officials.

“If you’re not paying attention, and documenting where and why people are getting sick and dying, (the virus) doesn’t just stay in the workplace,” said Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health. “It goes back to families. It goes back to whole communities.”

The lopsided reporting of the most serious suspected cases, deaths and major illnesses, and a de facto honor system for companies to report problems, are the latest in a line of failures at the state’s long-struggling worker safety department, critics said.

Reuters reports that a U.S. congressional panel is investigating three large meatpacking companies for possible worker-safety violations following reports that hundreds of industry workers have died of COVID-19. The House of Representatives’ coronavirus subcommittee asked JBS USA, Tyson Foods Inc and Smithfield Foods Inc to provide records of inspections, complaints and other internal documents.

The panel also asked the Occupational Safety and Health Administration (OSHA), the nation’s workplace safety watchdog, to provide records of its efforts to enforce worker safety rules.

Meatpacking plants emerged as early hubs of coronavirus infection last spring, forcing many of them to close temporarily and pushing up meat prices. Companies erected physical barriers and took other steps to protect workers, but they were not able to eliminate the risk of infection.

Surrounding communities also were affected. Meatpacking plants were associated with at least 236,000 coronavirus cases and up to 5,200 deaths as of July, according to the National Academy of Sciences.

Labor unions and workers have accused the companies of taking inadequate steps to protect workers.

Smithfield, Tyson and JBS said they have spent hundreds of millions of dollars on worker safety, bonuses and other measures. All three companies said they would cooperate with the investigation.

The Meat Institute trade group said case rates for industry workers were five times lower in December than they were in May, while infections rose for the U.S. population as a whole.

The coronavirus subcommittee’s chairman, U.S. Representative James Clyburn, said his panel would also examine OSHA’s enforcement efforts, which he described as ineffective. “It is imperative that the previous Administration’s shortcomings are swiftly identified and rectified to save lives in the months before coronavirus vaccinations are available for all Americans,” he said in a statement.

In response, OSHA said more stringent safety guidelines issued to employers on Friday were a “first step” in its efforts to work with Congress on worker protections.

A Reuters investigation found that workplace inspections by OSHA dropped 44% between March, when the virus began to spread widely in the United States, and December.

OSHA last year fined Smithfield, owned by Hong Kong-listed WH Group Ltd, $13,494 for a violation at its Sioux Falls, South Dakota, plant, where four workers died and nearly 1,300 were infected.

The agency fined JBS $15,615 for a violation at its Greeley, Colorado, plant, where six died and about 300 tested positive. Both companies are appealing the fines.

Edward Vaca pursued both a tort claim, and a number of workers’ compensation claims against his employer, Vons, including a 132a claim for discrimination.

A 132a was filed in each WC case, and was the subject of a Finding and Award in 2015, which stated that damages for the Section 132a claim would be informally adjusted by the parties with jurisdiction reserved. A Finding of violation of Labor Code section 132a was affirmed by Opinion on Decision After Reconsideration in 2019,

While the workers’ compensation claim was pending, Vons and Varga entered into a Confidential Settlement Agreement and General Release of Claims in the civil action in 2016.

The Settlement Agreement contained language that Vons claims provided for the disposition of the 132a claim, although the Settlement Agreement did not specifically provide for that in a clear and unambiguous way.

For example, Paragraph 5 provided that “Plaintiff shall withdraw any and all pending charges and complaints of discrimination filed against any of the defendants in the Action with any governmental agency that are open at the time of Plaintiff’s execution of this Agreement.”

Paragraph 9 provided that “The Claims released herein include . . . any Claims in any way arising out of or based upon Plaintiff’s employment with Defendant, or the termination thereof, . . . Plaintiff will not institute, . . . and/or continue any legal, administrative or grievance proceeding against the Releasees . . .”

Paragraph 13 provided that “It is expressly understood and agreed that Plaintiff is not eligible for reinstatement . . . Plaintiff will neither seek nor accept any such employment . . .”

However, In Paragraph A of Page 1, provided that the “Action’ that is the subject of the entire agreement is defined as Case BC589377.” This civil case is not the same action as the workers’ compensation claims bearing case numbers ADJ9770846 et al.

On February 11, 2020, the matter proceeded to trial in the workers’ compensation case of the issue of whether “applicant’s 132a claim and accompanying remedies are barred, estopped or precluded or otherwise invalid as a matter of law.” The WCJ concluded that it was not released. Reconsideration was denied in the panel decision of Varga v Vons. The Court of Appeal recently denied a Petition for Writ of Review, and the decision is now final.

Labor Code 5000(a) plainly prohibits contracts such as releases that purport to exempt employers from liability for workers’ compensation benefits without without WCAB approval. “We are therefore unable to discern statutory support for defendant’s position.”