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Court Declines to Restrain “Rude and Aggressive” Workplace Customer

Matthew Mehdi Rafat was a Technology Credit Union (TCU) customer. He had had an interaction with a TCU employee M.L. on March 24 2021 and had made a video recording of the interaction, which he posted on his YouTube channel. A Technology Credit Union employee identified in this case by the initials “M.L” . believed that, due to Rafat’s “aggression” and “later efforts to cause [her] harm by posting videos of the incident on the internet,” Rafat “will come back and seek [her] out at the branch.”

California’s Code of Civil Procedure section 527.8 allows an employer to obtain a workplace violence restraining order (WVRO) on behalf of an employee who has been subjected to a credible threat of violence at the workplace.

On April 5, 2021, TCU filed a petition for a WVRO restraining Rafat and protecting TCU’s employee, M.L.. TCU claimed that Rafat had made a credible threat of violence against M.L.

M.L.’s declaration, which was attached to the petition, described a single March 24 encounter between her and Rafat at a TCU branch. M.L. declared that Rafat “became visibly angry and became aggressive towards” her while she was assisting him, made a video recording of her “without her consent,” “made several rude and inappropriate statements questioning [her] mental competency,” repeatedly refused her request to stop video recording her, and “assaulted [her] when he forced a pen and paper back towards [her] and demanded that [she] write down his number.”

On April 7, the trial court issued a temporary WVRO and set a hearing. The court’s temporary WVRO included personal conduct and stay away orders barring Rafat from contacting or harassing M.L. or visiting her workplace except for legitimate business.

On April 13, Rafat filed a response to the petition.and denied that he had made a credible threat of violence. At subsequent hearings the video was received into evidence, and several witnesses including M.L. provided details of the encounters with Rafat. The court issued a WVRO that, like the temporary WVRO, included both a personal conduct order and a stay away order, and the court ordered the WVRO to remain in effect until December 31, 2022. Rafat timely filed a notice of appeal from the order.

The Court of Appeal reversed in the published case of Technology Credit Union v Rafat H049471 (August 2022).

CCP 527.8 provides that a “Credible threat of violence’ is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.”

Our careful review of the record discloses insufficient evidence that could support such a finding. Rafat’s conduct on March 24 was indisputably rude, impatient, aggressive, and derogatory. Further, he had a history of using aggressive language, including making offensive remarks.”

However, while he appeared angry and frustrated during the March 24 incident and its aftermath, there was not sufficient evidence produced by TCU linking any of Rafat’s statements or conduct to any implied threat of violence. The only threats he made were of litigation and complaints to a federal agency.”

Employer Cannot Discover Immigration Status in Wrongful Termination Case

Rigoberto Jose Manuel was employed by BrightView Landscape Services, Inc.as an irrigation technician from 2007 to 2018. In January 2018 Manuel injured his back while on the job.

Manuel alleges that BrightView initially refused to take him to the company medical clinic and then had him sign a waiver for medical treatment. However, after several days of back pain Manuel went to an occupational medicine clinic accompanied by another BrightView employee. A physician examined Manuel, determined that he had sustained a back injury, and returned him to work with certain restrictions.

After Manuel returned to work and completed a full shift on January 22, 2018, Manuel’s immediate supervisor told him not to return to work and BrightView terminated his employment. Manuel filed a civil lawsuit against his employer for wrongful termination.

After Manuel objected to BrightView’s written discovery requests inquiring into his immigration status, BrightView brought a motion for an order compelling Manuel to provide further responses, which the trial court granted in its November 16, 2020 order.

Manuel challenged the order by filing a petition for writ of mandate. In the published case of Manuel v Superior Court H048665 (August 2022) the Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate its order and to enter a new order denying BrightView’s motion for an order compelling Manuel to provide further responses to written discovery inquiring into his immigration status.

BrightView argued that its written discovery requests properly sought evidence from Manuel “establishing he was legally authorized to work in the United States.”

Manuel relied on the statutory provisions of Government Code section 7285, Labor Code section 1171.5, Civil Code section 3339, and Health and Safety Code section 2400, which he argued prohibited inquiry into a person’s immigration status unless the person seeking to make the inquiry has shown by clear and convincing evidence that the inquiry is necessary to comply with federal immigration law.

In 2002 Senate Bill 1818 added four nearly identical provisions to California’s statutory scheme, including Civil Code section 3339, Government Code section 7285, Health and Safety Code section 24000, and Labor Code section 1171.5. SB 1818 was in response to the United States Supreme Court’s decision earlier the same year in Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 122 S.Ct. 1275.

In Hoffman, the United States Supreme Court ruled that the NLRB could not “award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud.”

Subsequently however, the California Supreme Court ruled in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407 that Senate Bill 1818 was not preempted by federal law to the extent it makes the remedy of lost wages for unlawful termination available for the “prediscovery period,” when the “employer remains unaware of the employee’s unauthorized status.”

In Salas, the California Supreme Court reasoned that “not allowing unauthorized workers to obtain state remedies for unlawful discharge, including prediscovery period lost wages, would effectively immunize employers that, in violation of fundamental state policy, discriminate against their workers on grounds such as disability or race, retaliate against workers who seek compensation for disabling workplace injuries, or fail to pay the wages that state law requires.”

Thus in this case the Court of Appeal agreed with Mr. Manuel and concluded that “under Senate Bill 1818 and its statutory enactments the trial court acted outside the scope of the court’s discretion when the court granted BrightView’s motion to compel further responses to written discovery inquiring into Manuel’s immigration status.”

Re-Hearing Revives Legality of Employer Arbitration Agreements

Congress, facing business-community pressure, passed the Federal Arbitration Act (FAA) in 1925. Section 2 of the FAA states that an agreement to resolve disputes via arbitration “shall be valid, irrevocable, and enforceable.” The U.S. Supreme Court has interpreted the FAA expansively, and has applied the FAA to employment contracts, upheld waivers of the right to class actions, and sanctioned arbitration of civil rights disputes.

Some state courts have responded to the Court’s interpretations with outright hostility by undermining the FAA. However, SCOTUS has broadly rejected their attempts at workarounds

In a recent battle in this arena, the California legislature passed AB 51 in 2019 which added Section 432.6 to the Labor Code which prohibits California employers from requiring employees to sign an arbitration agreement regarding FEHA claims as a condition of employment.

Shortly after its passage, the Chamber of Commerce of the United States of America, California Chamber of Commerce and other business groups filed suit in the United States District Court for the Eastern District of California, arguing that A.B. 51 was preempted by the FAA. The district court granted a temporary restraining order against A.B. 51 three days before it was to take effect.

In February 2020, the same court issued a preliminary injunction, finding A.B. 51 was preempted by the FAA. The district court noted the California legislature’s history of circumventing the Supreme Court’s interpretations of the FAA: the Governor has twice vetoed similar bills as preempted, with a third rejected by a California appellate court. A.B. 51 fared no better.

The Ninth Circuit reversed in part. as it held that A.B. 51 was not in conflict with, and therefore not preempted by, the FAA. Relying on FAA text and precedent, the court held that the FAA does not govern behavior in the absence of an executed arbitration agreement; accordingly, the provisions in A.B. 51 regulate employer conduct only before an arbitration agreement exists. Thus it essentially upheld California’s law banning mandatory arbitration agreements in the workplace.

The U.S. Chamber of Commerce filed a petition for rehearing en banc, which the Ninth Circuit deferred pending the U.S. Supreme Court’s decision in Viking River Cruises v. Moriana. The U.S. Supreme Court issued its decision in Viking River Cruises on June 15, 2022. In essence SCOTUS held in an 8-1 ruling that the Federal Arbitration Act allows employers to enforce arbitration agreements as to individual claims asserted under the California Private Attorneys General Act.

Following the closely watched Viking decision,instead of granting or denying the petition, on August 22, 2022 the Ninth Circuit withdrew its prior opinion and granted a panel rehearing in the U.S. Chamber of Commerce v Bonta case . No date has yet been set for this hearing.

The U.S. Supreme Court decision in Viking has now – at least temporarily – disrupted the PAGA process against employer’s who have arbitration agreements in California Hence, on July 22, 2022 the California Supreme Court granted a Petition for Review in the Adolph v Uber Technologies Inc. case. The Uber case was chosen to decide how Viking will be integrated into California employment law with respect to employer mandated arbitration agreements with employees..

And at least some California employment law attorneys are speculating that in the Chamber of Commerce v Bonta case, the Ninth Circuit three-judge panel might conclude the FAA preempts AB 51 in its entirety And a recent article on the case by the Harvard Law Review before the decision was withdrawn said “Bonta is a remarkably prolabor decision, but it is susceptible to reversal by the Supreme Court given its shaky doctrinal grounds.”

Needless to say, the Chamber of Commerce v Bonta, and Adolph v Uber Technologies cases will be closely followed by employers in the months to come.

How the Great Resignation Impacts Workers’ Compensation

The workforce is transforming with millions leaving their jobs in the Great Resignation (also known as the Big Quit or the Great Reshuffle). And according to a report by Healthesystems.com, this has created a cascade of ripple effects, some of which bear considerations for the workers’ compensation industry.

The term “Great Resignation” was coined by Anthony Klotz, a professor of management at University College London’s School of Management, in May 2021, when he predicted a sustained mass exodus.

It is an ongoing economic trend in which employees have voluntarily resigned from their jobs en masse, beginning in early 2021. Possible causes include wage stagnation amid rising cost of living, long-lasting job dissatisfaction, safety concerns of the COVID-19 pandemic, and the desire to work for companies with better remote-working policies. Some economists have described the Great Resignation as akin to a general strike.

According to a PricewaterhouseCoopers survey conducted in early August 2021, 65% of employees said they were looking for a new job and 88% of executives said their company was experiencing higher turnover than normal. A Deloitte study published in Fortune magazine in October 2021 found that among Fortune 1000 companies, 73% of CEOs anticipated the work shortage would disrupt their businesses over the next 12 months, 57% believed attracting talent is among their company’s biggest challenges, and 35% already expanded benefits to bolster employee retention.

Even before the pandemic, the workers’ comp industry faced an impending talent shortage and now that problem has grown worse. Two of the hardest-hit roles happen to be two of the most crucial roles at claims organizations: claims adjusters and IT specialists.

Based on results from Healthesystems’ 2022 Workers’ Compensation Industry Insights Report, workers’ comp professionals now view the changing workforce/workplace as the number one factor impacting resiliency in workers’ comp, with 71% of workers’ comp professionals ranking the changing workforce as their top industry concern.

While there are some universal solutions a workplace can offer to attract and maintain employees – such as competitive compensation and benefits – there are industry-specific matters that workers’ comp must address.

According to the Report, many adjusters are reaching retirement age and there is a shortage of new talent entering the industry. The high level of stress associated with the role, outdated claims technology, and a lack of overall industry appeal to young professionals are all contributors.

Creating a clear career path and a picture of the unique expertise that can be gained from the workers’ comp industry – expertise that can be leveraged later in either a different industry or in a higher position – could be beneficial for attracting new talent to an industry that is not necessarily an obvious or sought-after career option for college graduates.

Additionally, younger workers have high expectations for the user experience of technology, and workers’ comp has historically lagged behind the consumer experience. Technology should be intuitive, easy to use, and should empower day-to-day decisions to reduce burden and the perceived complexity that comes with the insurance industry.

There is a larger lack of IT talent that is holding back overall technological growth across all industries – and workers’ comp is no exception. The current shortage of IT talent is the main factor holding back IT automation and half of digital workplace technologies in the works. With more and more companies offering remote work for technology positions, competition is fierce for these talented individuals.

Claims organizations can prioritize cloud and security technologies to allow for remote work when possible to entice IT workers. Claims organizations can also leverage partners and/or programs that already have the technological infrastructure in place to help them achieve connectivity goals within their workers’ comp medical management programs.

So Cal Chiropractor Sentenced to 14 Months for Kickback Scheme

A South Bay chiropractor was sentenced to 14 months in federal prison for taking kickbacks from Pacific Hospital – a corrupt medical center in Long Beach whose owner, Michael D. Drobot, was later imprisoned – and for soliciting kickbacks from another Southern California hospital.

68 year old Brian Carrico, who lives in Redondo Beach, was sentenced by United States District Judge Josephine L. Staton, who also ordered him to pay a fine of $25,000.

Carrico pleaded guilty on February 24 to one count of soliciting kickbacks – the same day his two Redondo Beach-based companies, Performance Medical & Rehab Center Inc., and One Accord Management Inc., each pleaded guilty to one count of conspiracy to solicit kickbacks.

Judge Staton also sentenced Carrico’s companies to one year of probation and fined them each $250,000.

Carrico is a licensed chiropractor and owned Performance Medical & Rehab Center, which treated injured workers. Surgeons saw patients at Performance Medical’s offices. Carrico also owned One Accord Management, which provided billing, collection and other support services for Performance Medical.

His criminal partner, 68 year old William Parker, who also lives in Redondo Beach, owned Union Choice Therapy Network, which had a contract with Pacific Hospital and paid One Accord money from that contract. Last month, Parker was sentenced to one year and one day in federal prison and was fined $5,500. He pleaded guilty on February 24 to one count of soliciting kickbacks.

From June 2004 to December 2013, Carrico and Parker participated in a kickback scheme in which Pacific Hospital overpaid for the value of services performed under its Union Choice contract to induce Carrico and Parker to refer patients to Pacific Hospital for surgeries and other treatment.

Pacific Hospital specialized in surgeries, especially spinal and orthopedic procedures. The owner of Pacific Hospital, Michael D. Drobot, conspired with doctors, chiropractors and marketers to pay kickbacks in return for the referral of thousands of patients to Pacific Hospital for spinal surgeries and other medical services paid for primarily through the California workers’ compensation system.

During its final five years, the scheme resulted in the submission of more than $500 million in medical bills for spine surgeries involving kickbacks. To date, 22 defendants have been convicted for participating in the kickback scheme.

In April 2013, law enforcement searched Pacific Hospital. Later that year, Carrico learned Pacific Hospital was going to be sold and the kickback scheme would end. Rather than cease their criminal conduct after the Pacific Hospital search, Carrico and Parker then approached an executive at a different hospital and solicited kickbacks from him.

Specifically, Carrico and Parker offered a quid pro quo in which the referral of patients to the hospital was contingent on that hospital entering into a management services agreement with Union Choice. Under the proposed agreement, the hospital would have paid Union Choice a total of $110,000 over the span of four months – more than the market value of the services performed.

While not written into the contract, Carrico and Parker would cause the referrals of Performance Medical patients to go to this hospital. The hospital’s executive ultimately rejected the deal.

Workers’ Comp Benchmarking Study Releases 9th Annual Report

As modern workplaces continue to evolve in light of the COVID-19 pandemic, so too must workers’ compensation claims organizations in order to achieve optimal outcomes. Yet, standing in the way are deeply entrenched challenges that more than 3,300 claims leaders and frontline professionals have brought to the forefront in previous Workers’ Compensation Benchmarking Study research.

Eight years of data shows – to succeed in the face of core claims challenges – organizations need to transform legacy processes, mindsets, semantics, and ingrained cultural practices. Specifically, our data shows that those claims organizations with superior outcomes are also those who are further along in this transformation process,” said Rachel Fikes, chief experience officer and study program director at Rising Medical Solutions. “With this in mind, our latest research brought together claims leaders from diverse organizations to dig deeper into exactly how they are evolving to outpace their peers.”

The ninth annual study draws upon first-person, focus group research for its latest report, with over 30 industry executives gathering this past December to examine real-world strategies organizations are using to overcome the foremost barriers to claims management mastery. Participant companies represented a national cross-section of self-insured employers, regional and national carriers, state funds, and third party administrators.

With claims, clinical, and medical management perspectives, the research exercise generated expert guidance payers can use to drive success by: (1) surmounting the repeatedly ranked top obstacles to achieving desired claims outcomes, (2) moving from tactical to strategic, cultural change in the execution of employee-centric claims models, and (3) operationalizing social determinants of health (SDOH) best practices.

Focus group research topics were chosen based on prior study data and the resulting report contains three (3) concise lists of potent recommendations, including key claims strategies to:

– – Improve return-to-work options, drive incentives across stakeholders, and engage injured employees
– – Equip frontline professionals with optimal interventions, while addressing the stigma of psychosocial issues and mental health conditions
– – Overhaul communication practices to increase employee trust and reduce litigation
– – Redesign claims best practices to include an end-to-end, cultural focus on the employee-centric model
– – Utilize frontline claims professionals in employee-centric model design, implementation, and training to create ownership and accountability
– – Improve outcomes based on a total worker health model, including training on SDOH risk factors that go beyond the walls of the workplace, such as housing instability or food insecurity
– – Leverage community resources and social interventions for injured employees with potential health disparities

As in prior years, the new 2021 Report is available to all industry stakeholders without cost or obligation as a contribution to the workers’ compensation industry. It may be requested here.

The Workers’ Compensation Benchmarking Study is a national research program examining the complex forces impacting claims management in workers’ compensation today. The study’s mission is to advance claims management in the industry by providing both quantitative and qualitative data. Through survey research with claims leaders and practitioners nationwide, the program generates actionable intelligence for claims organizations to evaluate priorities, challenges, and strategies amongst their peers.

WCAB Says New and Further Disability Must Occur Within 5 Years of DOI

Maria Rodriguez claimed injury to her left foot, bilateral ankles, left knee, left hip, low back, psyche and sleep disorder while employed as a housekeeper by defendant Southland Lutheran Care Center on November 13, 2008.

On March 7, 2012, a Findings, Award and Order issued, sustaining injury to all claimed body parts save sleep disorder, and awarding temporary and permanent disability.

Rodriguez filed a Petition to Reopen for New and Further Disability on June 13, 2013. Following the Petition to Reopen, Daniel Capen, M.D. continued to serve as applicant’s primary treating physician, and authored multiple interim reports in 2013. On January 22, 2015, AME Dr. Craemer reevaluated applicant’s orthopedic complaints. Internal medicine QME Minal Borsada, M.D. authored a medical-legal evaluation of applicant on February 8, 2016,

The parties proceeded to trial on January 2, 2019, and framed issues of the petition for new and further disability and the substantiality of the AME reporting. The WCJ issued the F&O on June 10, 2019, finding AME Dr. Craemer’s reporting to constitute substantial medical evidence and dismissing the June 13, 2013 petition for new and further disability. The WCAB denied her Petition for Reconsideration and affirmed the F&O in the panel decision of Rodriguez v Southland Lutheran Care Center ADJ6692602 (July 2022)

On reconsideration Rodriguez argued that the reporting of AME Dr. Craemer was not substantial medical evidence for want of diagnostic testing and a correct forensic analysis. and further contends the WCJ should have relied on the reporting of panel Qualified Medical Examiner Dr. Borsada to find that applicant’s diabetes was aggravated as a result of her industrial injuries.

The WCAB panel said that to “recover additional benefits, the injured worker must not only file a timely petition to reopen but must also have suffered a “new and further disability” within that five-year period, unless there is otherwise “good cause” to reopen the prior award. (Sarabi v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 920, 925 [72 Cal.Comp.Cases 778]. at p. 926.) An injured worker cannot confer jurisdiction on the WCAB by filing a petition to reopen before the five-year period has expired for anticipated new and further disability that may occur after the five-year limitation period has run.”

Here, applicant’s date of injury is November 13, 2008, and applicant must establish a “demonstrable change in condition” prior to the expiration of the five-year statutory period on November 13, 2013.

The WCJ noted that the reporting of primary treating physician Dr. Capen in 2013 continued to find applicant Permanent & Stationary. With respect to the right knee surgery, Dr. Capen made no mention of the need for surgery prior to November 13, 2013, and his report of February 27, 2014 described the right knee as “not a part of applicant’s claim and not connected to her injury.”

With regard to the diabetes, the WCAB noted that “With respect to applicant’s assertion of aggravation of her diabetic condition, we observe that neither the reporting of Dr. Zlotolow nor that of Dr. Borsada provided an assessment of whether the alleged change in applicant’s condition transpired within five years from the original date of injury.”

Applicant has not met the burden of establishing a new and further disability, arising within five years of the date of injury.”

Study Finds U.S. Annual Insurance Fraud at Record $308.6 Billion

The Coalition Against Insurance Fraud was created in 1993 and remains the nation’s only consumer advocacy organization devoted to educating and protecting American citizens from the cost and damage of insurance fraud.

The Coalition consists of more than 260 organizations committed to the fight against insurance fraud. These organizations include federal and state agencies, insurance regulators, legislative and insurance trade associations, state attorneys general, prosecutors, law enforcement agencies, the majority of America’s leading insurance carriers across all lines of insurance, and select companies and law firms assisting in fighting insurance fraud.

In 1995, the Coalition released an estimate of the cost of insurance fraud in the United States as being $80 billion every year. The $80 billion impact has remained the most often cited insurance fraud statistic across the nation. An 81.5% inflation rate, would convert the 1995 estimate into a 2022 cost of fraud in the United States at $145 billion!

Thus the Coalition just published an updated study this month. Colorado State University Global’s White Collar Crime Task Force (WCCTF) was the research arm spearheading this new study.

The 2022 Coalition research project focused on two areas of workers’ compensation fraud to determine their final figure, premium fraud and claim fraud.

Workers’ compensation claim fraud was determined by first developing a cost of fraud in the state of California and then using census data to predict the cost of fraud countrywide.

The baseline used was a $3 billion estimate that was derived by Frank Neuhauser of the University of California Berkeley who performed a study on the Underground Economy and Payroll Fraud. The Coalition’s Workers’ Compensation Task Force used the $3 billion figure and then assumed California’s population is 12% of the total United States population (based on 2019 Census Data), the formula was developed to determine the final cost. According to the United States Census data, in 2019, the U.S. population was 328 million and California was 39.5 million; thus, California occupies 12% of the total U.S. population.

$3 billion (fraud in California) x 8.3 (California is 12% of the USA population), translates into a metric of 100 divided by 12 = 8.3. Thus $3,000,000,000 x 8.3 = $24.9 billion claim fraud in the United States.

The WCCTF concluded that workers’ compensation fraud totaled $9 billion in premium fraud plus $25 billion in claim fraud, for a grand total of $34 billion in workers’ compensation fraud in the United States.

The report continued to analyze the costs of fraud in other lines of insurance in the 46 page report and arrived at the following estimates:

– – Property and Casualty Fraud. The WCCTF estimates that the current cost of Property and Casualty fraud in the United States is $45 Billion.
– – Workers’ Compensation Fraud. The WCCTF estimates that workers’ compensation fraud totals $34 billion in the United States.
– – Premium Avoidance or Misclassification. The WCCTF estimates premium fraud in the United States is $35.1 billion.
– – Healthcare Fraud. The WCCTF estimates healthcare fraud in the United States is $36.3 billion.
– – Medicaid and Medicare Fraud. The WCCTF estimates Medicaid and Medicare fraud in the United States is $68.7 billion.
– – Life Insurance Fraud. The WCCTF estimates that life insurance fraud in the United States is currently $74.7 billion.
– – Disability Fraud. The WCCTF estimates that the current cost of disability fraud in the United States is $7.4 billion.
– – Auto Theft. The WCCTF estimates auto theft in the United States is $7.4 billion.

Using these estimates, the WCCTF estimated the total annual cost of insurance fraud in the United States to be $308.6 billion annually. Comparing that to the 1995 inflated adjusted estimate of $145 billion, the new estimate is more than a 100% increase in the costs of insurance fraud in the United States.

WCAB Rejects Claim of Employment at Time of Fatal Car Crash

Alex Romero sustained fatal injuries as a result of a motor vehicle accident in which he was involved on October 26, 2016. It is alleged that, at the time, Romero’s attorneys claimed he was driving on an errand intended to benefit the alleged employer, Paul Story dba Kar Tunez.

Paul Story worked out of his home garage in Modesto. He engaged in auto stereo installation as a “side business” since he was 13 years old. Story also rented space at a warehouse on Bitritto Way in Modesto and stored tools there. He testified that Romero stored tools there as well. Prior to October, 2016, he had no employees, but that he “partnered” on projects with Romero.

When business improved, he had people helping out — which included Romero, Story’s wife, Patty, and several other individuals.Story testified that . . . when he did a job with Alex Romero, they would split the proceeds. When they worked together, it was because they wanted to “do something good for ourselves.” Alex Romero was “like family” and lived with Paul Story and his family off-and-on for “a few years.”

Text messages occurred between Romero and Story referring to Romer’s potential assistance to Story occurred two days before the accident On October 24 Story texted that he had “some pepole w anting to see some stufff” and offered to pay Romero “20 or better per person” for his help. Romero replied he was free for “about 2 hours.” Romero did not receive a reply so later he texted “Hey you want me to go or no.”
The final reply from Story on the topic was “ill take care of it thanks anyway.”

On the afternoon before the accident, Story noticed his jigsaw was missing. He assumed Romero had borrowed it. She sent Romero a text “Were the [ ] is m y jigsaw!!!!” but Romero did not reply. The jigsaw was discovered in Romero’s trunk after the accident, and Story later retrieved it at the police station.

Thereafter, none of the text messages between applicant and Story reflect any request or expectation that applicant would assist Story in any way. Story had no idea where Romero was going at the time of the accident and could not recall if they spoke before the accident.

Alex Romero’s mother, Margaret King testified that on the day he died, Romero was en route to the Kar Tunez shop, and that Romero was never self-employed. In fact, he refused to start up his own business even though she encouraged it. Romero’s older brother, Steven testified that his brother was working for Paul Story at the time he died and was not doing any work outside the work he had with Paul Story and Kar Tunez.

Anthony Miranda’s — an individual with no familial relationship with the Romero family, and at whose direction the speaker project was commenced — contradicted the testimony of Margaret King and Steven Romero that there was an employment relationship between Alex Romero and Paul Story.

The WCJ found that there is no evidence establishing that applicant’s accident occurred in the course of employment. The WCJ ordered that applicant take nothing on his claim. Reconsideration was denied in the panel decision of Romero v Story & UEBTF – ADJ10821128 (July 2022)

In his Opinion on Decision the WCJ said “No one credibly testified that Story summoned Nieves Romero to the shop. No one credibly testified that Romero was performing a special errand for Story at the time of his death on October 26, 2016. . . . Applicant, represented by Margaret King, had to make a showing of employment. No such showing was made here.”

On the credibility issue of the The WCAB panel said the WCJ determined that “Margaret King’s and Steven Romero’s testimony on that subject was not credible. We accord these determinations great weight because the WCJ had the opportunity to observe the witnesses’ testimony at trial and the record is otherwise without evidence of considerable substantiality that would warrant rejecting them.”

In terms of proof of an employment relationship the panel said “the applicant bears the burden of proving that he rendered service for the defendant, whereupon the burden shifts to the defendant to rebut the employment presumption.” In this case applicant contended the evidence raised this presumption. However the panel went on to say “we concur with the reasoning of the WCJ that the evidence fails to show that applicant was rendering service to Story when he sustained fatal injury.”

DHS Invites Comments on Employer Virtual I-9 Review Proposed Rule

In 1986, Congress reformed U.S. immigration laws by passing the Immigration Reform and Control Act of 1986 (IRCA). IRCA prompted the creation of the Form I-9, Employment Eligibility Verification, which was designated as the means of documenting that the employer verified an employee’s identity and U.S. employment authorization.

Since the Form I-9 became a requirement for all U.S. employers hiring new employees, one key rule has remained unchanged. Within three business days after the first day of employment employers must “physically examine” the documentation presented by new employees from the Lists of Acceptable Documents to ensure that the presented documentation appears to be genuine and to relate to the individual who presents them.

During the pandemic, DHS waived requirements that employers inspect documents in person in workplaces that were operating remotely, and those employers have been allowed to use alternatives like videoconferencing, fax or e-mail. That flexibility was most recently extended through the end of October.

The Department of Homeland Security (DHS) has now announced a proposed rule allowing virtual document examination options for reviewing the Form I-9 “in certain circumstances or with respect to certain employers.”

This proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures with respect to some or all employers.

Such procedures could be implemented as part of a pilot program, or upon the Secretary’s determination that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services pursuant to Section 319 of the Public Health Service Act, or a national emergency declared by the President pursuant to Sections 201 and 301 of the National Emergencies Act.

This proposed rule would allow employers (or agents acting on an employer’s behalf) optional alternatives for examining the documentation presented by individuals seeking to establish identity and employment authorization for purposes of completing the Form I-9,

Electronic comments to this proposal must be submitted on or before October 17, 2022. A number of methods of communication are provided in the announcement.

DHS encourages all interested parties to participate in this rulemaking by submitting data, views, comments, and arguments on all aspects of this proposed rule. Comments providing the most assistance to DHS will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include the data, information, or authority that supports the recommended change.

Emily Dickens, chief of staff and head of government affairs for the Society for Human Resource Management (SHRM) commented on this proposal that “Not only have the burdens and hazards of in-person I-9 preparation grown, but technology has advanced to a point where the believed benefits of in-person I-9 preparation are now equaled or exceeded by remote or virtual methods. Moreover, a remote I-9 preparation option would transform the entire onboarding process, enabling the process to be accomplished remotely.”

Scott Corley, executive director of Compete America, a coalition advocating for high-skilled immigration reform, also supports making remote document examination a permanent option for employers, in addition to an in-person review option. “Both companies and their employees would benefit from the flexibility to elect to complete the entire Form I-9 process electronically without a follow-up physical review requirement,” he said.