Connexx, a wholly owned subsidiary of JanOne Inc., operates a call center in Las Vegas, Nevada that provides customer service and scheduling for an appliance recycling business. Cariene Cadena and similarly situated employees work in-person at the call center in a variety of hourly-paid, non-exempt positions, including as call center agents whose primary responsibilities are to provide customer service and scheduling functions over a "soft phone," operated only through their employer-provided computers. Employees clock in and out using a computer based timekeeping program, which they must do before accessing other job relevant programs. To reach the timekeeping program, employees must awaken or turn on their computers, log in using a username and password, and open up the timekeeping system. Depending on the age of the computer and whether the computer was off or in sleep mode, it would take anywhere from a minute to twenty minutes for the computer to boot-up so they could clock in. Once clocked in, employees load various programs and scripts and confirm that their phone is connected and ready to accept calls. At the end of their shift, employees wrap up any calls they are on, close out of job-relevant programs, clock out, and then log off or shut down their computers. Connexx employees gave varied accounts of how long it took to log off of their computers, ranging from less than a minute to fifteen minutes, and Connexx estimate it took an average of 4.75 to 7.75 minutes to log off and boot down the computers. The plaintiffs filed suit in Nevada state court alleging violations of the overtime provisions of the FLSA and Nevada law. They contend that they were not paid for the time spent booting up their computers prior to clocking in to the electronic timekeeping system or closing down their computers after clocking out of the timekeeping program. Connexx removed the case to federal court. The district court granted summary judgment to Defendants, holding that "[s]tarting and turning off computers and clocking in and out of a timekeeping system are not principal activities" because Connexx did not hire employees for that purpose, but "to answer customer phone calls and perform scheduling tasks." The trial court compared booting up to "the electronic equivalent of waiting in line to clock in or out of a physical timeclock, which is non-compensable." Plaintiffs appeal. The United States Department of Labor (DOL) filed an amicus brief in support of Appellants. The 9th Circuit Court of Appeals reversed and remanded in the published case of Cadena v Connexx LLC - 21-16522 (October 2022). Appellants have raised a single issue for review: Whether Appellants’ time spent booting up and shutting down their computers, through which they access their phone and customer service programs, is an integral and indispensable part of their duties and thus compensable under the Fair Labor Standards Act ." The Fair Labor Standards Act of 1938 29 U.S.C. § 203 (FLSA) is a United States labor law that creates the right to a minimum wage, and "time-and-a-half" overtime pay when people work over forty hours a week. Clocking in may not be integral to the tasks for which the employees were hired and could be accomplished by other means, such as the traditional time clock or a time sheet. But the court went on to say that we "think the correct inquiry is whether engaging the computer, which contains the phone program, scripts, customer information, and email programs, is integral to the employees’ duties. That is, we should evaluate the importance of booting up the computer to the employees’ primary duties of answering calls and scheduling rather than to their need to clock in using the electronic timekeeping system. When the employees’ duties are understood in this way, the electronic timekeeping system becomes a red herring." "When framed correctly, the answer to the question 'whether booting up the computers is integral and indispensable to the employees’ customer service duties' is clear. All of the employees’ principal duties require the use of a functional computer, so turning on or waking up their computers at the beginning of their shifts is integral and indispensable to their principal activities. Because clocking in to the timekeeping program occurs after booting up the computer 'the first principal activity of the day' it is compensable." The Tenth Circuit recently reached the same conclusion when faced with a similar claim from call center representatives. In Peterson v. Nelnet Diversified Solutions, LLC, 15 F.4th 1033 (10th Cir. 2021), the employees’ principal responsibilities were to "service student loans and interact with debtors over the phone and through email." Before clocking in to an electronic timekeeping system, each employee had to wake up her work computer, enter her credentials, and load the desktop and the company’s intranet system, which contained the link to clock in. The case was remanded to the district court for consideration of whether time spent shutting down computers was compensable, and whether the time spent booting up and down the computers was not compensable under the de minimis doctrine ...

A workers’ compensation applicant attorney was sentenced to four years in state prison and ordered to pay over $700,000 in restitution to seventeen different insurance carriers for participating in two separate insurance fraud referral schemes. Jon Woods, 61, of Cypress, was convicted in August of 37 felony counts of insurance fraud along with an aggravated white-collar crime sentencing enhancement. Woods was one of ten workers’ compensation applicant attorneys charged by the Orange County District Attorney’s Office in June 2017 as a result of a complex insurance fraud investigation. Charges were also filed against Carlos Arguello, Fermin Iglesias, and Edgar Gonzalez, along with four chiropractors, and several employees working for Carlos Arguello. Carlos Arguello, his employees, and Fermin Iglesias have all pleaded guilty in their Orange County Superior Court cases. Arguello and Iglesias were also charged in federal court for violating federal laws related to their scheme with medical providers, resulting in a four-year federal sentence for Arguello and a five-year federal prison sentence for Iglesias. Woods was found guilty of participating in two different insurance fraud schemes - one with a "marketer" named Carlos Arguello, and the other with a subpoena company owner named Edgar Gonzalez. From 2011 to 2016, Woods paid Carlos Arguello for workers’ compensation clients procured through Arguello’s attorney marketing business, Centro Legal International, and later Tu Justicia Legal, as well as Centro de Abogados. Targeting mainly Hispanic neighborhoods across the State, Arguello’s business handed out more than four million business-card-sized flyers per month to attract prospective workers’ compensation clients for Arguello’s "marketing" scheme. The flyers contained different toll-free numbers that all rang to a call center located in Tijuana, Mexico. The call center operators served as a sales force, responsible for securing clients for Arguello’s attorneys by conferring with staff of various law firms about the callers’ cases, and then dispatching a "sign-up" representative from Arguello’s network to the caller’s home within 24-48 hours to sign legal paperwork to hire the law firm and start the injury claim. Arguello distributed clients to law firms based on the amount each law firm paid Arguello for clients that month. In addition to paying a monthly fee for obtaining clients, Woods also sent records subpoena work to companies controlled and operated by Carlos Arguello, in an amount equal to the number of clients he received from Arguello. These companies billed the workers’ compensation insurance policy of the injured worker’s employer for all the records subpoena services they provided for Woods, because the law requires that cost of an injured worker proving his/her workers’ compensation claim must be paid by the employer’s workers’ compensation insurance. This includes expense for obtaining records through subpoenas ordered by the injured worker’s lawyer. Arguello’s scheme required that all clients procured through Arguello’s "marketing" would be sent to clinics chosen by Arguello’s organization. Like the lawyers participating in his scheme, a group of doctors or chiropractors were also paying Arguello for workers’ compensation patients. Fermin Iglesias, an associate of Carlos Arguello, oversaw the medical side of the scheme, in which medical service providers issued prescriptions for medical products to businesses owned by Iglesias in exchange for referral of patients to their clinics. California’s workers’ compensation laws prohibit any person from paying for referral of business that would be billed through workers’ compensation insurance, and prohibit acceptance of such business in exchange for any kind of payment, benefit or compensation. At trial, representatives of seventeen different workers’ compensation insurance companies testified that their companies would not have paid any of the bills received from a records subpoena company if they knew that the services rendered were a result of an unlawful referral scheme. Woods was also found guilty of participating in a second fraud scheme in which he referred additional records subpoena work to USA Photocopy, a subpoena company owned by Edgar Gonzalez. Gonzalez paid various business expenses for Woods’ law firm as a bribe to receive the firm’s records subpoena work, including paying salaries for several entry-level employees who worked at Woods’ law firm, and paying bills for shredding costs, copier maintenance, new scanners, as well as an overseas back-office assistant. Arguello and Gonzalez’s records subpoena companies had offshore offices in El Salvador, where employees reviewed subpoenaed records to identify more businesses that they can serve with more records subpoenas on Woods’ behalf. These companies billed workers’ compensation insurance companies for each individual subpoena. Senior Deputy District Attorney Noor Hasan of Insurance Fraud prosecuted this case ...

Annual underwriting profit in the U.S. workers’ compensation line of business has averaged $4.8 billion in the last five years and totaled almost $24 billion during the period - a level of profitability unmatched by any of the other major property/casualty lines of business, according to a new AM Best report. In its Best’s Market Segment Report, "Workers Compensation Generates Solid Profits but the Future Remains Uncertain," AM Best states that direct premium volume also rebounded in 2021 to $52.2 billion, following a sharp drop in 2020. Reflecting the benefits of workplace safety and legislative changes that have reined in workers’ compensation claims costs as the frequency of claims continues to decline, the segment’s net loss ratio has ranged from 45.4 to 49.0 in the most recent five-year period. The combined ratio remained within the range of 86.2 and 92.2 during the period, and was 87.9 in 2021. Strong favorable loss reserve development for workers’ compensation drove the positive calendar-year results and was the primary reason for the entire property/casualty industry’s favorable reserve development. According to the report, what appears to be redundant reserves sets the stage for more favorable development in 2022. In addition, unemployment was at 3.5% in September 2022, down significantly from 5.4% for 2021, and these indicators suggest a continued rise in workers’ compensation premiums through the end of 2022, but that will depend on other economic factors. "Inflation could disrupt this stable environment. If inflation causes loss costs to increase, particularly on the medical side, without a commensurate increase in employee wages, rate increases may be necessary to cover the gap," said Christopher Graham., senior industry analyst, AM Best. "Inflation could also necessitate companies further sharpening their risk management and loss control efforts to limit claims frequency." AM Best also analyzes the overall health of the workers’ compensation line of business through its Workers’ Compensation Composite, which is composed of U.S. companies, including state funds, whose workers’ compensation and excess workers’ compensation net premiums constitute 50% or more of their total net premiums. As of the end of 2021, these specialists accounted for almost 35% of overall industry’s workers’ compensation net premium volume, up notably from just under 30% in 2011. Net income for this population has been consistently solid, at more than $3 billion each the past six years. "Although net income remains strong, it has not been growing, even as policyholders’ surplus has," said David Blades, associate director, AM Best. "This has led to a drop in after-tax return on equity the past two years. Calendar-year 2022 will provide more guidance on the ROE: Will the current, lower return level persist or will the composite’s ROE strengthen and meet or exceed pre-pandemic levels?" AM Best is hosting a briefing on the workers’ compensation market on Monday, Nov. 7, 2022, at 1:00 p.m.( EST). Senior AM Best analytical staff and leading industry experts will the state of the workers’ compensation market and emerging trends in underwriting, reserving and claims. To register, please visit AM Best’s Briefing - The Workers’ Comp Market: What to Expect in the Year Ahead ...

Wage theft has been a federal crime for decades but in California, where felony cases are punishable by up to three years in jail, prosecutors across the state rarely filed criminal charges based solely on wage theft. But according to a report by CalMatters, some prosecutors say that is beginning to change. Since 2015, the state’s Labor Commissioner’s Office has investigated 16 labor violation cases that resulted in criminal charges, spokesperson Paola Laverde said in an email; 11 of those cases involved wage theft. Five years ago, the criminal investigation unit in the Labor Commissioner’s office forwarded three cases to prosecutors. So far this year, it has referred more than a dozen, Laverde said. Few local prosecutors contacted across the state could tell CalMatters how many wage theft cases they’ve brought charges for since 2015. By contrast, the Labor Commissioner’s office conducted investigations of worksites and issued 141 minimum wage violation citations and 102 overtime violation citations in the 2019-2020 fiscal year. Those wage theft citations were handled administratively or in civil court. Also workers who think their wages were stolen usually file claims with the Labor Commissioner’s office, rather than reporting it to law enforcement. Last year California employees filed 19,000 unpaid wage claims for a total of $320 million, which also are usually handled administratively. As California continues to grapple with the scope of wage theft, prosecutors say criminal charges could become more common. Several prosecutors’ offices in recent years have announced units that will focus on labor violations such as wage theft. "The goal here is to increase our prosecutorial attention to wage theft," said George Gascón, LA’s district attorney who last year agreed to take referrals and investigate wage theft alongside the Labor Commissioner’s Office. "This (wage theft) is bad for the entire community." The initiatives coincide with an increase in what some call "progressive prosecutors," who seek to refocus their offices’ attention on issues that disproportionately affect low-income and minority residents, such as labor violations and human trafficking. Studies show wage theft primarily affects the most vulnerable workers - those who make low wages, often people of color or immigrants. These efforts often draw on law enforcement that already is targeting related forms of white-collar crime, such as workers compensation fraud or tax evasion - where victims are other businesses or the government, rather than workers. Last year California lawmakers gave law enforcement additional flexibility when charging wage theft as a felony. While the state’s felony grand theft statute already includes stolen wages of at least $950 from a single worker in a one-year period, the new statute allows charges if multiple workers lose at least $2,350 in unpaid wages combined. Nationally there is a rise in criminal prosecutions of labor abuses, according to a report released last year by the Economic Policy Institute. The study noted that since 2017 prosecutors in 15 states have brought new criminal cases against employers. "My strong sense was that the employer community really responded differently to criminal versus civil cases," said Terri Gerstein, the report’s author and a former labor bureau chief in New York’s Attorney General’s office. "It felt different when there was a criminal case. It was much more scary." Some labor experts question whether criminal prosecution is an effective tool for recovering money. After all, many workers who win civil wage judgments against their bosses still end up collecting nothing, and some businesses operating in the so-called underground economy don’t even have liquid assets, workers’ attorneys say. When a business owner gets convicted, "if they’re behind bars, they’re definitely not paying their workers," said Tia Koonse, legal and policy research manager at the UCLA Labor Center. Others say the threat of jail time and the negative press associated with criminal charges are stronger deterrents than other labor enforcement methods. The prospect of jail also can force a business owner to pay restitution, said Joel McComb, a deputy district attorney in San Mateo County ...

The Labor Commissioner’s Office has reached a $2.2 million settlement with the owners of three Saravanaa Bhavan restaurant franchises in Fremont, Milpitas and Sunnyvale. The settlement secures compensation to 317 employees at the three restaurant locations for unpaid minimum wage, overtime, meal premiums, split shift premiums, and inaccurate wage statements. The settlement also covers an allegation that the employers kept tips that had been left for employees by their customers. Each worker will receive, on average, approximately $7,000. As part of the settlement, the employers must make a personal apology to the employees. The settlement follows an investigation by the Labor Commissioner’s Private Attorneys General Act (PAGA) Unit, which found Labor Code violations that affected the 317 employees including servers, bussers, hosts, kitchen staff and cooks who worked at the three restaurants between February 23, 2016 and September 8, 2019. Based on its investigation, the PAGA Unit issued a citation for wages and penalties on October 18, 2019, for a total of $6,108,099. The citation was issued to Spice Route, LLC, Southern Spice, LLC and Supreme Cuisine, LLC and managing partners Asker Junaid and P.K. Perumal. The settlement was finalized on September 21, 2022, and in addition to the monetary settlement, it requires that the restaurants’ owners personally apologize to workers for the violations, allow a one-hour training about labor laws on paid time, and post a notice about employees’ rights regarding tips. The trainings will be interpreted into Tamil, Spanish and Nepali at the employer’s expense. Because the Labor Commissioner does not have contact information for all workers owed money, it requests help in locating individuals who worked at the Saravanaa Bhavan locations at 3720 Mowry Ave., Fremont; 438 Barber Lane, Milpitas; or 1305 S Mary Ave., Sunnyvale between February 23, 2016 and September 8, 2019. Employees who worked at these restaurants during this time are asked to call Deputy John McDonald with the PAGA Unit at (510) 882-5214. Under California law, tips are the sole property of those employees to or for whom they were paid, given, or left. Workers who believe they have not been paid properly, or who have questions about other labor laws, such as those that prohibit retaliation for making a wage claim, can call the Labor Commissioner’s Office at 833-LCO-INFO (833-526-4636). When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest. Waiting time penalties are imposed when the employer intentionally fails to pay all wages due to the employee at the time of separation. This penalty is calculated by taking the employee’s daily rate of pay and multiplying it by the number of days the employee was not paid, up to a maximum of 30 days. Enforcement investigations typically include a payroll audit of the previous three years to determine minimum wage, overtime, and other labor law violations and calculate payments owed and penalties due. When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid wages plus interest ...

Albert Villareal began working for Toyota of Downtown Los Angeles as a car salesman in 2015, and his job performance was satisfactory or better. The parent company of the dealership was Lithia Motors Inc. On February 1, 2018 Villareal injured his knee and back and was unable to walk without difficulty. He returned to work on March 1, and worked up until June 4, 2018, when he took leave due to recurring pain. He underwent knee surgery in August 2018. Following the surgery, Villareal was placed on medical leave. When he informed the employer that his medical leave was extended for another three months, his employment was terminated the following day. Villareal filed this action on August 24, 2020, asserting claims under FEHA for discrimination, retaliation, failure to prevent discrimination, failure to provide reasonable accommodation, and failure to engage in a good faith interactive process and other theories.of violation of the Labor Code. When his employment began, he signed an agreement to resolve employment disputes through binding arbitration. Thus the defendants filed a motion to compel arbitration, A header on the first page of the agreement stated it was "[b]etween DT Los Angeles Toyota and Albert Villareal." Villareal argued there was no valid arbitration agreement because DT Los Angeles Toyota was neither a legal entity nor a fictitious business name. Thus the dealership lacked the capacity to contract or consent to the agreement. And they could not maintain an action because they had not filed a fictitious business name statement.. The trial court found no merit in any of Villareal's arguments except for the fictitious business statement problem. Business and Professions Code 17918 provides that a party who fails to file a valid statement cannot "maintain any action upon or on account of any contract made . . . in the fictitious business name in any court of this state until the fictitious business name statement" has been filed. The motion to compel arbitration was denied on that basis. The employer appealed, and the Court of Appeal vacated the order and remanded in the published case of Published case of Villareal v LAD-T, LLC B313681 (October 2022). Failure to comply with the fictitious-name statutes does not make the parties’ promises, agreements, and transactions invalid as such. Noncompliance merely prevents a fictitiously named business from enforcing obligations owed to it until it places on record its true nature and ownership.(Hand Rehabilitation Center v. Workers’ Comp. Appeals Bd. (1995) 34 Cal.App.4th 1204, 1214). The requirement similarly applies to motions to compel arbitration. On May 17, 2022, after the appeal was in progress for many months, LAD-T filed a fictitious business name statement registering the names "DT Los Angeles Toyota" and "Toyota Downtown LA., Thus the employer contend that LAD-T’s recent filing of a fictitious business name statement for DT Los Angeles Toyota "resolves any grounds for abatement of [defendants’] petition to compel arbitration under . . . section 17918," rendering the trial court’s order denying defendants’ motion to compel arbitration moot, and the trial order should be reversed on that basis. Ultimately the Court of Appeal concluded the trial court did not err in denying defendants’ motion to compel arbitration, but it "must address the appropriate disposition in light of the unusual facts before us." It "agree with Villareal that defendants failed to act diligently in filing their fictitious business name statement." After the June 1, 2021 Order denying the motion to compel arbitration, defendants then filed their notice of appeal on June 18 2021. But it was not until May 17, 2022 that it filed the Fictitious Business Name Statement. "Defendants provide no explanation for why they would vigorously defend their position that no fictitious business name statement was required, including appealing the trial court’s order, then abandon this position at the eleventh hour by filing the very statement that could have enabled the case to proceed to arbitration a year earlier." The trial court will need to determine in the first instance whether defendants have by their conduct waived their right to arbitration. The order denying defendants’ motion to compel arbitration was vacated and the matter remanded for the trial court to address whether defendants have waived their right to compel arbitration. If the court finds waiver, it should again deny the motion to compel arbitration; if it finds no waiver, it should grant the motion ...

The Los Angeles County District Attorney announced that jurors convicted James Mason Heaps M.D., who is now 65, and an obstetrician-gynecologist formerly employed by the University of California, Los Angeles, on five counts in connection with the sexual assaults of some of his patients. The charges he faced stem from alleged crimes between 2009 and 2018 involving seven of Heaps' former patients. Jurors found Heaps guilty of three counts of sexual battery by fraud and two counts of sexual penetration of an unconscious person. He was acquitted on three counts of sexual battery by fraud, three counts of sexual penetration of an unconscious person and one count of sexual exploitation of a patient. Jurors could not reach a unanimous verdict on three counts of sexual battery by fraud, four counts of sexual penetration of an unconscious person and two counts of sexual exploitation of a patient. At this time, no decision has been made on whether or not to retry the hung counts. A sentencing hearing was set for November 17 in Department 108 of the Clara Shortridge Foltz Criminal Justice Center. Heaps served as a gynecologist/oncologist, affiliated with UCLA, for nearly 35 years. At various times, he saw patients at the Ronald Reagan UCLA Medical Center and at his office at 100 Medical Plaza. At one time, Heaps was reportedly the highest paid physician in the UC system and had treated about 6,000 patients, attorneys said. More than 500 lawsuits were filed against Heaps and UCLA, accusing the school of failing to protect patients after becoming aware of the misconduct. In May, attorneys for 312 former patients of Heaps announced a $374 million settlement of abuse lawsuits against the University of California. The settlement came on top of a $243.6 million resolution of lawsuits involving about 200 patients announced in February, and a $73 million settlement of federal lawsuits reached last year involving roughly 5,500 plaintiffs. The lawsuits alleged that UCLA actively and deliberately concealed Heaps' sexual abuse of patients. UCLA continued to allow Heaps to have unfettered sexual access to female patients - many of whom were cancer patients - at the university, plaintiffs' attorneys alleged in the suits. UCLA issued a statement in May saying, "This agreement, combined with earlier settlements involving other plaintiffs, resolves the vast majority of the claims alleging sexual misconduct by James Heaps, a former UCLA Health physician. The conduct alleged to have been committed by Heaps is reprehensible and contrary to our values. We are grateful to all those who came forward, and hope this settlement is one step toward providing some level of healing for the plaintiffs involved. Settlement of the federal case last year required UCLA to ensure stronger oversight procedures for identification, prevention and reporting of sexual misconduct. In March 2021 in a similar case, USC agreed to pay more than $1.1 billion to about 17,000 former patients of ex-campus gynecologist George Tyndall, the largest sex abuse payout in higher education history. 74 year old Tyndall - the only full-time gynecologist at the student health clinic from 1989 until 2016 - has pleaded not guilty to 35 criminal counts of alleged sexual misconduct between 2009 and 2016 at the university’s student health center. He has pleaded not guilty and is free on bond. Hundreds of women came forward to report their allegations to police but some of the cases fell outside the 10-year statute of limitations, while others did not rise to the level of criminal charges or lacked sufficient evidence to prosecute. Still, he faces up to 64 years in prison if convicted. Several victims called for criminal charges to be filed against USC administrators who knew of the allegations against Tyndall for decades and did not fire him ...

California’s Division of Occupational Safety and Health (Cal/OSHA) Standards Board met on April 21, 2022, and formally approved the third readoption of its COVID-19 Emergency Temporary Standard ("3rd Revised ETS"), by a 6-1 vote. The ETS has no set rules for close contact exclusion from the workplace. Instead, it requires that employers "review current [California Department of Public Health] guidance" regarding "quarantine or other measures to reduce transmission," to "develop, implement, and maintain effective policies" to prevent COVID-19 transmission from close contacts. On October 14, 2022, the California Department of Public Health published an Order which updated the definitions of Close Contact and Infectious Period to provide entities strategies to prioritize response to potential exposures. "Close Contact" means the following: - - In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person's (confirmed by COVID-19 test or clinical diagnosis ) infectious period. - - In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person's infectious period. Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces. Infectious Period is defined as: - - For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5–10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR - - For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after positive specimen collection date (or through Days 5–10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test. For the purposes of identifying close contacts and exposures, infected persons who test negative on or after Day 5 and end isolation are no longer considered to be within their infectious period. Such persons should continue to follow CDPH isolation recommendations, including wearing a well-fitting face mask through Day 10. This Order went into effect on October 14, 2022, at 12:01 a.m. Following the new CDPH order defining Close Contact and Infectious Period the Cal/OSHA issued a fifteen-day notice with requests for written comments on proposed updated COVID-19 regulations to Title 8 of the General Industry Safety Orders. Modifications are now proposed by Cal/OSHA for subsection 3205(a)(1) (scope); subsection 3205(b)(1) (definition of "close contact"); subsection 3205(b)(7)(A) (exception to the definition of "exposed group"); subsection 3205(b)(11) (definition of "returned case"); subsection 3205(c)(1) (universal precaution); subsections 3205(e)(1), (e)(2), and (e)(3) (notice of COVID-19 cases); subsection 3205(h)(1) (ventilation); subsection 3205(j) (reporting and recordkeeping requirements); subsection 3205.1(a)(2) (scope); subsection 3205.1(e) (COVID-19 investigation, review, and hazard correction); and subsection 3205.2(g)(2) (COVID-19 cases and close contacts). Written comments on the Cal/OSHA proposal are invited, but must be received by 5:00 p.m. on October 31, 2022 at the Occupational Safety and Health Standards Board, ...

In 2020, the U.S. Supreme Court unanimously agreed with the arguments in a California-led, bipartisan amicus brief filed by 46 attorneys general, which supported the state of Arkansas’ position that federal law does not prevent states from regulating Pharmacy Benefit Managers PBMs. Last year California joined a coalition of 34 attorneys general in filing an amicus brief in the U.S. Court of Appeals for the Eighth Circuit supporting North Dakota’s regulation of PBMs. And on October 18, 2022 the California Attorney General announced joining a coalition of 35 attorneys general in filing an amicus brief in the U.S. Court of Appeals for the Tenth Circuit in support of Oklahoma’s authority to regulate Pharmacy Benefit Managers. PBMs act as a middleman between pharmacies, drug manufacturers, health insurance plans, and consumers. This position allows them to have a significant impact on consumers’ access to affordable prescription drugs.Over the years, PBMs have expanded into a multi-billion dollar industry. The California Attorney General claims they have done "nothing to lower the prescription drug prices paid by health plans to drug manufacturers. In response, states like California have increased their regulation of PBMs to protect residents from the rising cost of prescription medications. This regulation is essential because the price consumers pay for pharmaceuticals has continually risen under the oversight of PBMs." "Prescription drug spending in the United States has increased year after year. In 2021, the U.S.’s total drug spending grew by 7.7% to $576.9 billion, and it is projected to continue increasing and comprising more of the country’s gross domestic product. Running parallel to this massive increase, the role of PBMs in the industry has expanded over the past 50 years, and PBMs now control nearly every aspect of a health plan’s pharmacy benefits" The Coalition of 35 attorneys general have filed their amicus brief in the Oklahoma case of Pharmaceutical Care Management Association v Glen Mulready et al., pending in the United States Court of Appeals for the 10th Circuit. In 2019, the Oklahoma Legislature passed the Patient’s Right to Pharmacy Choice Act to protect Oklahomans’ access to pharmacy providers and protect pharmacies from self-serving practices of PBMs. The new law was soon challenged in court by the Pharmaceutical Care Management Association (PCMA, the PBMs’ trade lobby). In early April, the U.S. District Court for the Western District of Oklahoma ruled largely in favor of the State of Oklahoma and Insurance Commissioner Glen Mulready in PCMA v. Mulready, upholding most of the Oklahoma statute against a federal preemption challenge. PCMA appealed that decision to the U.S. Court of Appeals for the Tenth Circuit, asserting that only four of the provisions are preempted by ERISA and Medicare Part D, retreating from the 14 it originally had challenged. The National Community Pharmacists Association (NCPA), the American Pharmacists Association (APhA) and the National Association of Chain Drug Stores (NACDS), along with American Pharmacies (APRx) and the Oklahoma Pharmacists Association (OPhA), also filed an amicus curiae brief defending states’ rights of Oklahoma to pass and enforce laws protecting patients and community pharmacies from predatory pharmacy benefit manager (PBM) practices ...

The State of California employs attorneys, judges, and other legal professionals in more than 100 state departments, agencies, boards and commissions. The union representing legal professionals employed by California sued the state because too many legal jobs at state departments, agencies, boards, and commissions are allegedly given to retirees rather than to rank-and-file state employees. Courthouse News reports that California Attorneys, Administrative Law Judges and Hearing Officers in State Employment, or CASE, filed a lawsuit Tuesday in Fresno against the California Department of Human Resources, seeking a ruling that the the state is skirting its own rules when it comes to hiring retirees for positions that statutorily should go to rank-and-file employees. CASE argues that CalHR enjoys broad statutory authority over the employment practices of all state departments, agencies, boards, and commissions. CASE, which represents about 4,500 legal professionals employed by the state, claims that California relies on so-called retired annuitants to fill jobs because they are cheaper, in so far as the state doesn't have to pay pension contributions and many employee benefits that can add as much as 64% to the costs of hiring rank-and-file employees, and because they don't require as much training. "RAs almost invariably are employed to work at the department from which they retired, and typically served at that department as a rank-and-file employee for many years." according to CASE. "As a result, RAs do not require any training, any orientation or onboarding, and are generally able to be productive workers from the first day of employment as an RA. As such, departments perceive the use of RAs as more attractive in the short term than hiring and training new employees." California currently employs at least 173 persons as retired annuitants in legal positions, distributed amongst at least 50 state departments, the union said. There are state laws, however, that limit the hiring and reliance on retirees, according to the union. Retired annuitants are supposed to be temporary positions, but the Department of Human Resources has allowed departments to employ them indefinitely, according to the complaint. Departments also can't hire a retired annuitant until at least 180 days after their retirement, but the department hasn't enforced this condition either, the union said In addition, the retiree must have specialized skills needed to perform the jobs for a limited period, according to the union. "CalHR has refused to enforce the requirement that departments show that their RAs have any specialized skills that do not exist among rank-and-file state employees and has refused to enforce the requirement that RAs be employed for only a limited duration," the union claimed. "CASE seeks to end the unlawful employment of RAs — at least as to attorneys and judges — and obtain from this court an interpretation of state law regarding the proper employment of RAs." The union is asking for the court to find that the Department of Human Resources' interpretation of the meaning of "limited duration" and "specialized skills" is contrary to state law. A spokeswoman for the Department of Human Resources said she's unable to comment on pending litigation.The union is represented by Patrick Whalen in Sacramento ...

This week Governor Gavin Newsom announced that the COVID-19 State of Emergency will end on February 28, 2023, charting the path to phasing out one of the tools that California has used to combat COVID-19. This timeline gives the health care system needed flexibility to handle any potential surge that may occur after the holidays in January and February, in addition to providing state and local partners the time needed to prepare for this phaseout and set themselves up for success afterwards. With hospitalizations and deaths dramatically reduced, California has the tools needed to continue fighting COVID-19 when the State of Emergency terminates at the end of February, including vaccines and boosters, testing, treatments and other mitigation measures like masking and indoor ventilation. As the State of Emergency is phased out, the SMARTER Plan continues to guide California’s strategy to best protect people from COVID-19. To maintain California’s COVID-19 laboratory testing and therapeutics treatment capacity, the Newsom Administration will be seeking two statutory changes immediately upon the Legislature’s return: 1) The continued ability of nurses to dispense COVID-19 therapeutics; and 2) The continued ability of laboratory workers to solely process COVID-19 tests. "California’s response to the COVID-19 pandemic has prepared us for whatever comes next. As we move into this next phase, the infrastructure and processes we’ve invested in and built up will provide us the tools to manage any ups and downs in the future," said Secretary of the California Health & Human Services Agency, Dr. Mark Ghaly. "While the threat of this virus is still real, our preparedness and collective work have helped turn this once crisis emergency into a manageable situation." In February the California Department of Public Health (CDPH) released the California SMARTER Plan: The Next Phase of California’s COVID-19 Response to guide the state’s work on the next phase of the COVID-19 pandemic. The SMARTER Plan looks at where the state has been, draws on lessons learned from our collective experiences, and lays out a clear path for how California will remain prepared for what COVID-19 might bring next. The essential elements of this plan are: - - Shots - Vaccines are the most powerful weapon against hospitalization and serious illness. - - Masks - Properly worn masks with good filtration help slow the spread of COVID-19 or other respiratory viruses. - - Awareness - We will continue to stay aware of how COVID-19 is spreading, closely track evolving variants, communicate clearly how people should protect themselves, and coordinate our state and local government response. - - Readiness - COVID-19 isn't going away, and we need to be ready with the tools, resources and supplies we will need to quickly respond and keep the health care system well prepared. - - Testing - Getting the right type of tests - PCR or antigen - to where they are needed most. Testing will help California minimize the spread of COVID-19. - - Education - California will continue to work to keep schools open and children safely in classrooms for in-person instruction. - - Rx - Evolving and improving treatments will become increasingly available and critical as a tool to save lives. The latest progress update on the implementation of the California SMARTER Plan was just published this October ...

CSV Hospitality Management LLC (CSV) filed a petition for a workplace violence restraining order against Jermorio Lucas. At the time of the hearing on CSV’s restraining order request, Lucas was living at the Aranda Residence, a residential hotel that provides supportive housing to formerly homeless individuals. CSV submitted affidavits from four of its employees in support of the petition. The employees alleged that Lucas had been very aggressive and confrontational towards other tenants and Aranda Residence employees. For example, janitors Nelson Yee and Pedro Caamal stated that Lucas frequently subjected them to verbal abuse while they were working. He would also stalk them and take photos and videos of them without their consent. Caamal stated that during one such incident, Lucas forcefully pushed him into a window. Yee reported that Lucas had also confronted him at two local businesses when Yee was off duty. Lucas filed a response to the petition. He denied all of the allegations against him. He stated that he recalled only one disagreement with Caamal, which involved a dispute over coronavirus social distancing protocols. He complained that Yee had addressed him with a racial slur and had harassed him, frequently watching him when he left the bathroom after showering. He indicated that he took Yee’s photograph in order to complain about him to the property manager. The trial court granted a temporary restraining order and set the matter for an evidentiary hearing. Both parties were represented by counsel. At the hearing, only Yee and Lucas provided testimony consistent with their affidavits. Lucas then testified, answering questions posed by his attorney. He denied the allegations that Yee had leveled against him, asserting that Yee was harassing him and that he had repeatedly asked Yee to leave him alone. Lucas’ counsel requested an opportunity to cross-examine Yee and any of the other witnesses. The trial court refused to allow Lucas’s counsel to cross-examine Yee concluding that the hearing was not a court trial, and there was no authority to allow cross-examination at such a hearing. The trial court then granted a three-year workplace violence restraining order. Lucas appealed, and the Court of Appeal reversed and remanded in the published case of CSV Hospitality Management v. Lucas - A163345 (October, 2022). Code of Civil Procedure Section 527.6 authorizes a person who has suffered harassment to obtain an injunction to prevent further harassment. Section 527.8, subdivision (a) provides the same right to an employer for any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace. Injunctive proceedings under section 527.8 are intended to parallel those under section 527.6, which are procedurally truncated, expedited, and intended to provide quick relief to victims of civil harassment. However, the Court of Appeal went on to say that although "injunctive proceedings under section 527.8 are truncated, respondents are still afforded the right to present their case." In the context of civil harassment orders, our courts have observed that "the procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by Code of Civil Procedure section 527.6, subdivision (d). That hearing therefore provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendant’s right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendant’s due process rights, and would open the entire harassment procedure to the possibility of successful constitutional challenge on such grounds." The workplace violence restraining order was reversed. The trial court was directed to issue an order terminating the restraining order, reinstating the prior temporary restraining order and setting the matter for a new hearing within the time period proscribed under section 527.8 ...

Sutter Health, a Sacramento-based health care services provider, and its affiliate Sutter Bay Hospitals, agreed to pay more than $13 million to settle allegations that it violated the False Claims Act by billing the United States for toxicology screening tests performed by outside labs. The United States contends in the civil settlement agreement signed by Sutter Health that under the terms of a contract which the Sutter Health hospital Alta Bates Summit Medical Center entered into with Navigant Network Alliance, LLC, Navigant referred urine toxicology specimens obtained from physicians and laboratories across the country to Sutter. Sutter submitted bills, or caused bills to be submitted, for reimbursement of the qualitative and quantitative testing it performed on the specimens. The United States asserts that Sutter did not perform the quantitative testing on thousands of specimens referred under the agreement and that these quantitative tests were instead performed by third-party labs. The United States alleges that Sutter nevertheless sought reimbursement for the tests. In the settlement agreement, the United States contends that between August 1, 2016, and June 30, 2017, Sutter billed for urine toxicology tests it did not perform and was paid for the testing by the Federal Employees Health Benefits Program, Medicare, Medicaid, and Tricare. Sutter agrees in the settlement agreement to pay $13,091,452 to settle the false claims allegations. Of that amount, Sutter has already paid more than $6.5 million to the United States. Sutter agrees to pay the remaining amount of approximately $6.5 million to the United States within 30 days. The settlement agreement resolves the civil law claims that the United States might have brought based upon these allegations. The matter is the result of a coordinated investigation between the U.S. Attorney’s Office for the Northern District of California and the FBI, OPM OIG, HHS-OIG, DCIS, and the DHA. The investigation and resolution of this matter illustrate the government’s emphasis on combating health care fraud. One of the most powerful tools in this effort is the False Claims Act. Tips and complaints from all sources about potential fraud, waste, abuse, and mismanagement, can be reported to the Department of Health and Human Services at 800-HHS-TIPS (800-447-8477). The civil settlement agreement is neither an admission of liability by Sutter Health nor a concession by the United States that its claims are not well founded ...

The National Council on Compensation Insurance (NCCI) published the first of four installments in its series on inflation and workers compensation medical costs. It explores price and utilization trends in medical services, and how each contributes to workers compensation costs in the four US geographical regions. This article also provides state-specific results. An updated Consumer Price Index (CPI) for All Urban Consumers in August 2022 increased by 8.3 percent over the previous 12 months. This raises the key question "How is the current inflationary environment affecting WC medical costs? In short, "it’s complicated." The NCCI article explores this question by showing how different types of medical services contribute to countrywide (CW)1 and regional WC medical cost trends. Its key observations include: - - Medical inflation in WC has been moderate for the past decade. But with the recent dramatic rise in consumer prices, concerns have emerged about medical inflation rising at similar levels. - - Two factors drive changes in medical claims costs: the price of medical services and utilization, which measures the mix and number of services provided to an injured worker. - - NCCI’s most recent medical data shows that drug costs are declining, physician costs are up slightly, and facility costs are rising in the WC system. - - In recent years, facility services are the dominant contributor to changes in WC medical costs across regions - most prominently in the Southeastern region. Between 2012 and 2021, countrywide WC medical costs increased at 2% per year. The Southeastern and Midwestern regions grew the fastest at 2.3% and 2.0%, respectively. The other regions, Northeastern and Western, saw overall medical costs per claim growing at a slower average annual rate of 1.5% and 1.4%, respectively. The regional comparison charts indicate that, in all four regions, the WC paid medical trends have been increasing at a slower pace than the corresponding regional CPI-M indexes. This is particularly the case in the Northeastern and Western regions. WC medical costs in the Northeastern and the Southeastern regions each increased by an estimated 3%, while the Western and Midwestern regions increased by 2% and 1%, respectively. Every region except the Midwestern region had a slightly larger increase in 2021 WC medical costs relative to those observed between 2012 and 2019. Future installments will expand on each of the different types of medical services discussed here - physicians, facilities, and prescription drugs. Subsequent articles in the series will include more in-depth regional differences in cost changes, and details about the make-up of the underlying services ...

California’s laws targeting wage theft - which is the failure by bosses to pay workers what they are owed - make it a leader among states, according to national labor experts. But in practice, enforcing those laws has not been easy. Just last year, legislators made certain instances of wage theft a felony. They also fixed their sights on wage theft in the garment industry, eliminating some longstanding pay practices that often resulted in workers being paid below the minimum wage. But State officials and lawmakers say the Labor Commissioner’s office, the California agency overseeing wage and hour violations, has been too short-staffed to do its job, a problem that worsened during the pandemic and subsequent labor shortage. Last year alone California workers filed nearly 19,000 individual claims totaling more than $338 million in stolen wages. Many claims take three times longer than the legal minimum of 135 days to resolve, data provided by the Labor Commissioner’s office show. According to the report by CalMatters, nearly a third of the Labor Commissioner’s positions were vacant in May, officials told a state Senate budget committee. In August, a spokeswoman for the Labor Commissioner’s office told CalMatters the office had hired 288 people since January 2021, but not how many people had left the office during that period. The Labor Commissioner’s budget this year is $166 million, enough funding for nearly 840 positions. Experts and legislators say California’s bureaucratic hiring processes and below-market salaries are complicating its hiring efforts. When it comes to recruiting workers "it’s three strikes against them right now, just the government in general," said Patrick Murphy, director of resource equity and public finance at The Opportunity Institute, a nonprofit that studies poverty and racial inequality in California. "It’s the nature of government, the tight labor market, and then the specialization that goes with these jobs." The state’s hiring and retention issues at agencies enforcing labor laws have existed for years. The Little Hoover Commission, California’s bipartisan oversight agency, studied wage theft in 2015 as part of an investigation of California’s underground economy. The study found that state investigators across agencies are paid less than those in police forces and often require more training and education. The state’s hiring process for such jobs can take up to a year, the report found, making hiring frustrating for all parties. "We’re just not a competitive employer," said Krystal Beckham, a project manager with the commission who led the study. "You can see that when it comes to enforcement in the underground economy." ...

The Workers’ Compensation Insurance Rating Bureau of California has released its COVID-19 in California Workers' Compensation - 2022 Update. This report details the characteristics of COVID-19 workers’ compensation claims in California and their impact on the state’s workers’ comp system. As the economy has reopened and following the Omicron surge, COVID-19 claims continue to be a modest share of all indemnity claims.The winter surge from the Omicron variant peaked in January 2022 with almost 40% of reported indemnity claims from COVID-19. Beginning in February, COVID-19 claims dropped significantly but in recent months COVID-19 claims have been about 5% of reported indemnity claims. Throughout the pandemic, the Health Care sector has had by far the highest proportion of indemnity claims involving COVID-19. Public administration, which includes some first responders, also had a high proportion of COVID-19 claims. Manufacturing had the second highest share of COVID-19 claims until late 2021. With the economy growing at the end of 2021 and into 2022, more COVID-19 claims were reported in the Accommodation & Food Services and Retail sectors than in Manufacturing. More than one-half of COVID-19 claims were incurred by workers aged between 16-39, which is somewhat higher than the proportion of all indemnity claims incurred by younger workers. Almost 80% of COVID-19 death claims were incurred by workers aged 50 years or older compared to about one-third of all indemnity claims. Far fewer COVID-19 claims are classified as medical-only claims than non-COVID-19 claims. More than 40% of COVID-19claims are indemnity claims with no medical losses incurred compared to less than 1% of non-COVID-19 claims. Most indemnity-only COVID-19 claims are relatively small and close quickly. The vast majority of AY 2020 COVID-19 indemnity-only claims are small but there are a few large claims, mostly arising from fatalities, which are driving open COVID-19 indemnity-only claims to be costlier than non-COVID-19 claims. Almost all AY 2021 indemnity-only claims have an incurred valueless than $5,000. A typical AY 2021 non-COVID-19 indemnity claim has incurred costs between $10,000 and $50,000 while a typical COVID-19 indemnity/medical claim has incurred costs less than $5,000. The share of COVID-19 claims over $500,000 is almost 5 times as high as for non-COVID-19indemnity claims. Denial rates on COVID-19 claims have been higher than on non-COVID-19 claims as on average only about 8% of non-COVID-19claims are denied. Many COVID-19 claims are denied due to the lack of a positive test result for a COVID-19 infection. Generally, denial rates have been higher during the period Senate Bill No. 1159 has been in effect with its less expansive presumption of compensability than during the period the Governor’s Executive Order was in effect early in the pandemic. For AY 2021 COVID-19 claims with indemnity and medical benefits typically have a shorter TD duration than do non-COVID-19 indemnity claims. Almost 90% of closed indemnity-only claims have a TD duration less than 2 weeks compared to 65% of AY 2020 claims at the same age. Virtually all COVID-19 indemnity-only claims close quickly as they typically involve only short durations of TD with nearly all claims closed by 18 months. COVID-19 claims with both indemnity and medical on average close more quickly than non-COVID indemnity claims as more have relatively small incurred values. Both indemnity and medical COVID-19 incurred losses have developed less since year-end 2021 than incurred losses on non-COVID-19 claims. This lower incurred loss development of COVID-19 claims has occurred because many COVID-19 claims close quickly and with only indemnity payments ...

E-form Filing is offered by the California Division of Worker's Compensation as a means to accelerate the process of filing by submitting certain court forms and attachments online. EAMS is a computer-based case management system that simplified and improved the Division of Workers' Compensation case management process. The Division of Workers’ Compensation has just advised users of its Electronic Adjudication Management System (EAMS) that as of October 31, 2022, any e-filer account that has been inactive for six months or longer will be deactivated as part of an ongoing review and reconciliation of existing accounts. An account is considered inactive if no one has used the assigned login to access EAMS for a minimum of six months. If the assigned login has been used at least once to access EAMS within a six-month period, the account is considered active. This means: - - If you haven’t logged into your EAMS account since April 30, 2022, and you don’t do so prior to 5:00 p.m. on October 31, 2022, your account will be deactivated and disabled. You will not be able to log into EAMS unless the account is reactivated. - - If you have logged into your EAMS account at any time between April 30, 2022, and 5:00 p.m. on October 31, 2022, your account is considered active. You don’t have to do anything. To reactivate a deactivated account, the Primary Administrator on the account must review the latest version of the E-Form Agreement on the E-Form filers webpage, then submit a completed copy of the EAMS E-Form Agreement spreadsheet to EFORMS@dir.ca.gov with Account Reactivation in the subject line. You will be notified when the account is ready for use. The reconciliation of e-filer accounts will be ongoing and will take place approximately every six months ...

Following the passage of AB 5, California adopted the liberal ABC test to determine if a worker is an independent contractor or an employee. Companies must use a three-pronged test to prove workers are independent contractors, not employees. For companies with workers outside of California, (perhaps remote workers), those employers need to review the law of the state where the employee works, or in some cases federal law. The analysis might now become more complex under proposed rulemaking just announced by the DOL. The U.S. Department of Labor published a Notice of Proposed Rulemaking on Oct. 13 to help employers and workers determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act. The proposed rule would provide guidance on classifying workers and seeks to combat employee misclassification. Misclassification is a serious issue that denies workers’ rights and protections under federal labor standards, promotes wage theft, allows certain employers to gain an unfair advantage over law-abiding businesses, and hurts the economy at-large. The NPRM proposes a framework more consistent with longstanding judicial precedent on which employers have relied to classify workers as employees or independent contractors under the FLSA. The department believes the new rule would preserve essential worker rights and provide consistency for regulated entities. "While independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nation’s most vulnerable workers," said Secretary of Labor Marty Walsh. "Misclassification deprives workers of their federal labor protections, including their right to be paid their full, legally earned wages. The Department of Labor remains committed to addressing the issue of misclassification." Specifically, the proposed rule would do the following: - - Align the department’s approach with courts’ FLSA interpretation and the economic reality test. - - Restore the multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA. - - Ensure that all factors are analyzed without assigning a predetermined weight to a particular factor or set of factors. - - Revert to the longstanding interpretation of the economic reality factors. These factors include the investment, control and opportunity for profit or loss factors. The integral factor, which considers whether the work is integral to the employer’s business, is also included. - - Assist with the proper classification of employees and independent contractors under the FLSA. - - Rescind the 2021 Independent Contractor Rule. The department is responsible for ensuring that employers do not misclassify FLSA-covered workers as independent contractors and deprive them of their legal wage and hour protections. Misclassification denies basic worker protections such as minimum wage and overtime pay and affects a wide range of workers in the home care, janitorial services, trucking, delivery, construction, personal services, and hospitality and restaurant industries, among others. Before publication of today’s proposed rulemaking, the department’s Wage and Hour Division considered feedback shared by stakeholders in forums during the summer of 2022 and will now solicit comments on the proposed rule from interested parties. The division encourages all stakeholders to participate in the regulatory process. Comments, which must be submitted from Oct. 13 to Nov. 28, 2022, should be submitted online or in writing to the Division of Regulations, Legislation and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Ave. NW, Washington, DC 20210 ...

Multiple news media sources report the death of a tree trimmer who fell into a wood chipper in the Menlo Park area on Tuesday, which caused his tragic death. Menlo Park is a city of 72,000 about 35 miles south of San Francisco. Cal/OSHA is investigating the cause of this industrial accident, but they will not immediately release their findings until the investigation is concluded. It is not known at this time if there were safety violations behind this event. According to the press report by the Menlo Park Police Department, Menlo Park Police officers responded to the 900 block of Peggy Lane in Menlo Park of the report of a tree trimmer who fell into a chipper. When police units arrived on scene, a male subject was found deceased from injuries sustained from the incident. Menlo Park Fire Protection District and the San Mateo County Coroner’s Office also responded. The identity of the worker has not been released. The identification of the worker is the jurisdiction of the coroner's office pending notification of next of kin. The man was later identified as Jesus Contreras-Benitez. He was 47 years old and resided in Redwood City, according to the San Mateo County Coroner's Office. He was an employee of the arboricultural firm S.P. McClenahan, a division of .FA Bartlett Tree Expert Company. Bartlett Tree Experts was founded in 1907 by Francis A. Bartlett and it claims on its website to be a "leading scientific tree and shrub care company." It has over 100 offices worldwide. Coworkers declined to talk about the victim. Tree care operations include the trimming, pruning, felling, and removal of trees and bushes. They involve climbing trees, using portable ladders, working at heights while using hand and portable power tools, working near energized overhead or downed power lines, feeding chippers, and other hazardous operations. Tree work accidents can result in severe traumatic injuries and deaths. The most commonly reported causes include falls, electrical shock, being struck by falling objects, and chain saw lacerations. Most are preventable through hazard recognition, hazard control, effective employee training, and the use of appropriate personal protective equipment. Chippers can be very dangerous devices that have caused serious injuries, such as cuts, amputations, crushing injuries, and death. To advance safety in the workplace, employers must ensure that employees read and understand the manufacturer’s instruction manual and must provide effective training. Employees must be made aware of the hazards involved in chipping and must always follow safe work practices and procedures. The Division of Industrial Relations Division of Occupational Health publishes a Tree Work Safety Guide which dedicates several pages to safety suggestions for the operation of a wood chipper by tree trimmers ...

AI generally refers to the development of computer systems and algorithms to perform tasks historically requiring human intelligence. One form or type of AI is machine learning, which refers to the process by which machines use large sets of data to make better and better predictions. Some forms of AI can be used to automate certain aspects of decision-making. The Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People was published by the White House Office of Science and Technology Policy in October 2022. This framework was released one year after the Office of Science and Technology Policy announced the launch of a process to develop "a bill of rights for an AI-powered world." Its release follows a year of public engagement to inform this initiative. The framework is available online. The Office of Science and Technology Policy (OSTP) was established by the National Science and Technology Policy, Organization, and Priorities Act of 1976 to provide the President and others within the Executive Office of the President with advice on the scientific, engineering, and technological aspects of the economy, national security, health, foreign relations, the environment, and the technological recovery and use of resources, among other topics. The document commences by proclaiming that "Among the great challenges posed to democracy today is the use of technology, data, and automated systems in ways that threaten the rights of the American public. Too often, these tools are used to limit our opportunities and prevent our access to critical resources or services. These problems are well documented. In America and around the world, systems supposed to help with patient care have proven unsafe, ineffective, or biased. Algorithms used in hiring and credit decisions have been found to reflect and reproduce existing unwanted inequities or embed new harmful bias and discrimination. Unchecked social media data collection has been used to threaten people’s opportunities, undermine their privacy, or pervasively track their activity - often without their knowledge or consent." Thus the White House Office of Science and Technology Policy has identified five principles that should guide the design, use, and deployment of automated systems to protect the American public in the age of artificial intelligence. - - Safe and Effective Systems: People should be protected from unsafe or ineffective systems. - - Algorithmic Discrimination Protections: People should not face discrimination by algorithms and systems should be used and designed in an equitable way. - - Data Privacy: People should be protected from abusive data practices via built-in protections and should have agency over how data about them is used. - - Notice and Explanation: People should know that an automated system is being used and understand how and why it contributes to outcomes that impact them. - - Alternative Options: People should be able to opt out, where appropriate, and have access to a person who can quickly consider and remedy problems they encounter. This framework is accompanied by a technical companion - a handbook for anyone seeking to incorporate these protections into policy and practice, including detailed steps toward actualizing these principles in the technological design process. The Blueprint for an AI Bill of Rights is non-binding and does not constitute U.S. government policy. Nonetheless the White House separately announced that several federal agencies will be taking action to advance the guidelines in the Blueprint. For example, the following is related to protecting workers. - - To protect worker’s rights, the Department of Labor has released "What the Blueprint for an AI Bill of Rights Means for Workers" and is ramping up enforcement of required surveillance reporting to protect worker organizing. - - To protect workers with disabilities, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice released antidiscrimination technical assistance and guidance on the Americans with Disabilities Act (ADA) and employment algorithms in May 2022, and the Partnership on Employment & Accessible Technology, funded by the Department of Labor, has released the AI & Disability Inclusion Toolkit and the Equitable AI Playbook. - - To promote equal employment opportunity, the EEOC and the Department of Labor have launched a multi-year collaborative effort to reimagine hiring and recruitment practices, including in the use of automated systems. In addition to the action taken for protecting workers, similar action is taken by federal agencies for Protecting consumers - Protecting students and supporting educators - Protecting patients and assisting health care providers - Ensuring fair access to housing:- Leading by example and advancing democratic values - and Guiding and supporting technologists and entrepreneurs. Links in the Fact Sheet provide comprehensive details about the action taken by federal agencies on each of these additional protected areas. Several states have also adopted similar regulations. And the California FEHC has published draft modifications to its employment anti-discrimination laws that would impose liability on companies or third-party agencies administrating artificial intelligence tools that have a discriminatory impact ...