The Division of Workers’ Compensation (DWC) announced its Stockton office will move to Lodi on December 12, 2023. The new office will be known as the Lodi district office, and will be located at: 3021 Reynolds Ranch Parkway, Suite 130 Lodi, CA 95240 The main office phone number, (209) 948-7759 will remain the same. To accommodate the move, the Stockton district office will operate on a virtual basis on Thursday, December 7, Friday, December 8, and Monday, December 11, 2023. All in-person trials and expedited trials have been rescheduled. All conferences will proceed as scheduled on the AT&T Teleconference lines. Parties may reach the Stockton district office on December 7, December 8 and December 11 by calling the main office phone number, (209) 948-7759. All parties are encouraged to file documents electronically. Parties may also file documents through the US Mail. If parties need to file a document in person on December 7, December 8, or December 11, they may do so at the Sacramento district office, located at 160 Promenade Circle, Suite 300, Sacramento, CA 95834-2962; phone number (916) 928-3101. The Lodi district office will commence in-person operations on Tuesday, December 12, 2023 ...

Eunices Argueta began working at Menzies Aviation, a freight operations company in El Segundo, California, in 2008 when she was 18 years old. From about 2008 to 2014, Argueta and Dzung Nguyen worked for Menzies at a location near Los Angeles International Airport. In October 2014, Worldwide acquired Menzies; Argueta and Nguyen continued to work for Worldwide. Argueta was a lead agent in the import department; her supervisor was Sonia Flores. Nguyen worked as their manager. When Flores was not present, Argueta worked as the acting supervisor and oversaw the work of other agents. In November 2016, Worldwide hired Maria Diaz as its Director of Human Resources for its western region. Before Diaz, there was no human resources director at Worldwide’s Los Angeles Airport location. In November 2016 and January 2017, several employees whom Argueta supervised submitted written complaints to Worldwide about Argueta, accusing her of bullying, harassment, retaliation, yelling, making threats and other bad behavior, including discriminating against a pregnant subordinate. Although Argueta moved in limine to preclude admission of the substance of the complaints, the trial court not only allowed their admission but ruled that the entire text of the complaints could be admitted. So Argueta’s attorneys preemptively asked Worldwide’s Diaz to read the written complaints aloud to the jury. In January 2017, Diaz met with Argueta to discuss these complaints. Diaz testified she told Argueta that if her behavior did not improve, she would be terminated. Argueta gave a different account of the meeting, testifying she was not expressly threatened with termination. In early May 2017, Urania Chavarria, one of the authors of a complaint that has been admitted into evidence, became upset because she believed that Argueta picked up and ate almost all of the chocolate bar Chavarria had left on her desk, leaving only a tiny piece. Argueta claimed she broke off only a small piece. When her supervisor Flores questioned her about the chocolate, Argueta said she only took a little piece. Flores reviewed a surveillance video and accused Argueta of lying. In her complaint, Argueta alleged Nguyen began sexually harassing her in 2016. On May 11, 2017, Nguyen placed Argueta "out of service" while the matter was investigated; this essentially meant she was placed on paid leave. Argueta subsequently claimed many more acts of harassment. Worldwide conducted an investigation of Argueta’s complaint, although Argueta contends it was not thorough. Diaz, facility assistant general manager Javier Trujillo, and facility general manager John Oh then met with Nguyen. Nguyen admitted some but not all the acts Argueta alleged.As a result of the investigation, Worldwide issued a "Letter of Concern" to Nguyen stating that Nguyen had admitted to some actions "that can easily be construed as sexual harassment" and "[t]his is a violation of our policy." Worldwide imposed a number of conditions on Nguyen’s continued employment: undergo additional sexual harassment training; cease sending emojis to subordinates; use “appropriate language”; keep a minimum of three feet from employees; and not make any physical contact with an employee without their express permission. When Argueta returned from leave in June 2017, she was transferred to a different floor and assigned to a different client; she worked for the client’s manager and was supervised only by Trujillo. Her pay remained the same. In February 2018, Argueta resigned from Worldwide. She stated she resigned because her new schedule was not compatible with her family responsibilities and her new position offered diminished potential to advance. In 2019, three female Worldwide employees made written complaints that Nguyen was sexually harassing them. Some of the actions occurred as far back as 2017. Worldwide’s (new) local human resources manager for the Los Angeles Airport facility investigated the complaints and found Nguyen had violated Worldwide’s sexual harassment policy and the conditions in the Letter of Concern. Worldwide terminated Nguyen in March 2019. Argueta filed this action against Worldwide, alleging sexual harassment and retaliation in violation of the Fair Employment and Housing Act (FEHA), and failure to prevent both. After the jury returned a defense verdict she filed a motion for a new trial and a motion for judgment notwithstanding the verdict. The trial court denied both motions. Argueta appealed, contending the trial court’s admission of evidence of the substance of other employees’ complaints about her to Worldwide was erroneous and warrants a new trial. The Court of Appeal agreed in the published case of Argueta v. Worldwide Flight Services, Inc -B306910 (November 2023). It agreed that admission of the substance of the complaints against Argueta was prejudicial error and reverse the trial court’s denial of her motion for a new trial. The judgment was reversed and the matter is remanded for a new trial. A party is entitled to a new trial when an irregularity in the proceedings, or any order of the court or abuse of discretion, "materially affect[s] the substantial rights of such party" and prevents them from having a fair trial. (Code Civ. Proc., § 657(1).) As a general matter, the denial of a motion for new trial is reviewed for abuse of discretion, with the appellate court making an independent determination as to whether any error was prejudicial. The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and it is the appellant’s burden to affirmatively demonstrate error. "Here, the employee complaints about appellant fit the quintessential definition of prejudice. The trial court failed to recognize that the evidence had a high potential for undue prejudice. It is, as Argueta contends, character evidence. The complaints show her as mean, rude, lazy, and dishonest. " "The trial court gave a limiting instruction on this evidence, and such instructions can ameliorate section 352 prejudice. Indeed, they are generally considered effective. Limiting instructions are less effective, however, when there is little or no probative value to the evidence and it has a high potential for prejudice." ... "It simply and vaguely told the jury that “the complaints of other employees about Ms. Argueta are not being received for the truth of those complaints; rather, they are being received for the effect on Ms. Argueta when she was told about those complaints." "We find her arguments on appeal sufficient. We agree with Argueta that the high potential for undue prejudice from admission of the substance of the complaints far outweighed the very minimal probative value of that evidence, and a limiting instruction would not be effective under the circumstances of this case." ...

Jose Velasquez pleaded guilty in Santa Barbara County Superior Court to a felony count of forgery. (Pen. Code, § 476.) The court suspended pronouncement of judgment, placed Velasquez on supervised probation for three years with terms, including that he "[e]nter and complete a residential treatment program as directed by Probation." Velasquez entered The Salvation Army’s residential adult rehabilitation center in Santa Monica for substance abuse treatment. The Salvation Army is a private, nonprofit organization. Its residential treatment program is a six-month program provided at no cost to the beneficiaries. The program includes 12 hours per week of counseling, attendance at weekly religious services, meditation, and a work therapy component during which participants work in The Salvation Army’s warehouse. The work therapy component is designed to help individuals become productive members of society. Velasquez was injured while moving furniture at The Salvation Army’s warehouse and sought workers’ compensation for his injuries. Both The Salvation Army and the County denied his claim for benefits. At the administrative hearing, the workers’ compensation judge (WCJ) identified the issue as: "Employment and whether the applicant was an employee of Defendant The Salvation Army when he was the beneficiary of a Court-mandated drug diversion program per Labor Code Section 3352. [¶] The parties further raise the applicability of Labor Code Section[s] 3351 and 3301." During the program, Velasquez had no contact with the County. But The Salvation Army contacted his probation officer and reported everything he was doing and how he behaved. Velasquez was required to show his probation officer his program graduation certificate. The WCJ concluded Velasquez was not an employee of either The Salvation Army or the County, and ordered he "take nothing" against either. The WCJ acknowledged that Velasquez’s work "conferred a benefit upon the Salvation Army." But he reasoned The Salvation Army was not an employer because it was "sponsoring" Velasquez pursuant to section 3301, subdivision (b), "as a condition of his probation to get him clean and sober." The WCJ concluded: "Based upon this statutory scheme and the societal interest in having private, non-profit organizations working with County and State prosecutors and government in terms of probation and drug and alcohol intervention, that societal interest outweighs the workers’ compensation general interest of finding persons to be employees whenever possible." On May 31, 2022, the Board issued its opinion and decision after reconsideration, affirming the WCJ’s order. The Board concluded The Salvation Army was exempt from providing workers’ compensation as a nonprofit sponsor (§ 3301, subd. (b)), and the County did not employ Velasquez because it did not exercise control over his working conditions. (Velasquez v. Salvation Army (May 31, 2022, ADJ 11436476) 2022 Cal.Wrk.Comp. P.D. LEXIS 162.) In briefing filed in the Court of Appeal in this case, the Board requested “the Decision be annulled and this matter remanded to the Appeals Board for further consideration" whether Velasquez was an employee of the County, and whether The Salvation Army was his employer. Velasquez and the County oppose the request. Employee excludes "a person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization." (§ 3352, subd. (a)(2) (former subd. (b).) "Employee" also excludes "[a] person performing voluntary service for a public agency or a private, nonprofit organization who does not receive remuneration for the services, other than meals, transportation, lodging, or reimbursement for incidental expenses." (§ 3352, subd. (a)(9) (former subd. (i).) Velasquez also contends he was an employee of the County. He relies on the probation department’s role in his enrollment in The Salvation Army program. The County denies it had an employment relationship with Velasquez. The Board concedes its decision on reconsideration relied upon erroneous legal analysis and that there has been no evidentiary review or factual findings in this case with respect to whether the County was Velasquez’s employer. Section 5908.5 mandates that "[a]ny decision of the appeals board granting or denying a petition for reconsideration or affirming, rescinding, altering, or amending the original findings, order, decision, or award following reconsideration . . . shall state the evidence relied upon and specify in detail the reasons for the decision." "This procedural demand aims at revealing the basis of the Board’s action, at avoidance of careless or arbitrary action, and at assisting meaningful judicial review." (Patterson v. Workers’ Comp. Appeals Bd. (1975) 53 Cal.App.3d 916, 924.) "As the Board concedes, the record contains insufficient factual findings and legal analysis from the Board so this court can conduct a meaningful judicial review of the question whether Velasquez was an employee of the County. The Board’s failure to comply with section 5908.5 constitutes a sufficient basis to annul the Board’s decision and remand for further proceedings." The Court of Appeal concluded: 1) The Salvation Army is statutorily excluded from being an employer for workers’ compensation purposes under section 3301; and 2) the record was inadequately developed during the administrative proceedings to determine whether the County was Velasquez’s employer. The latter issue must be remanded to the Board for further consideration. Accordingly, it affirmed in part, annulled in part, and remanded the matter for further proceedings in the published case of Velasquez v WCAB -B321638 (December 2023) ...

Last July, according to a report by HealthAffairs.org. the Chair of the House Energy and Commerce Committee, Cathy McMorris Rodgers (R-WA) and two colleagues on the Health and Oversight Subcommittee sent a forceful letter to Food and Drug Administration (FDA) Commissioner Robert Califf regarding FDA’s inadequate inspections of drug manufacturing plants in India and China: "The FDA’s recent decision to address shortages of critical drugs by allowing the temporary import of otherwise unapproved drugs from India and China makes having effective foreign inspection programs in those countries critical ... we are worried that the United States is overly reliant on sourcing from foreign manufacturers with a demonstrated pattern of repeatedly violating FDA safety regulations." Bloomberg News reports that the Department of Defense recently announced that it will begin independently testing the quality and safety of imported generic drugs. Defense officials are in talks with Valisure, an independent lab, to test the quality and safety of generic drugs it purchases for millions of military members and their families, according to several people familiar with the matter who asked not to be named as the details aren’t public.. Generic drugs account for 90 percent of prescriptions dispensed in the United States. They also represent a sizeable share of the drugs used by hospitals to treat patients in ICUs, oncology units, transplant centers and emergency departments. Because generic drugs sold in the U.S. must be FDA-approved, health care providers and patients assume that they are safe and effective. There is growing evidence that this confidence may be misplaced. In fact, quality issues are the precipitating factor in more than 60 percent of generic drug shortages. The Hatch-Waxman Act of 1984 created a streamlined pathway for generic drugs. All a manufacturer must do is demonstrate that the generic version it proposes to sell is "bioequivalent" - meaning it delivers roughly the same amount of active pharmaceutical ingredient (API) into a person’s bloodstream, at roughly the same rate and duration, as the brand-name drug on which it is based. To demonstrate bioequivalence, a manufacturer typically hires a contract research organization (CRO) to perform the necessary testing with 24 to 36 healthy volunteers. Once a drug is approved for sale in the U.S., FDA relies on periodic inspections of pharmaceutical plants and record reviews to ensure that a company complies with “Good Manufacturing Practices,” (GMP). FDA does not routinely test the medicines themselves. Instead, it asserts that manufacturers are responsible for the quality and safety of their products. In the early years of Hatch-Waxman, this honor system worked reasonably well. It does not today. Recent FDA actions and published research indicate that generic medicines are not always bioequivalent or safe. For example: - - In 2009, researchers published a study in Neurology titled "The risks and costs of multiple-generic substitution of topiramate," a drug that treats epilepsy. They found that switching generics was associated with significantly higher rates of hospitalizations, head injury or fracture and longer hospital stays. - - In 2012, an FDA-sponsored a study of Budeprion XL, an extended-release antidepressant, revealed that a manufacturer’s generic did not perform as well as the brand-name drug. Years after hundreds of consumers first raised concerns, the product was withdrawn from the market. - - Although generic manufacturers may contain different "inactive" ingredients, such as fillers and binders, than the brand-name drug, few of these ingredients have been tested to determine if they can affect bioequivalence. In 2015, FDA reported that in some instances, they do. - - In 2017, Circulation published a study titled "Impact of the Commercialization of Three Generic Angiotensin II Receptor Blockers on Adverse Events in Quebec, Canada." The researchers found that shortly after the generic versions came on the market, reports of adverse events significantly increased. - - In 2018, after being alerted by independent industry testing, FDA determined that some generic ARB medicines, including versions of valsartan, losartan, and irbesartan, contained nitrosamines - a probable carcinogen. - - In 2020, an independent laboratory found "unacceptable levels" of NDMA, a known carcinogen, in samples of metformin, a diabetes medication taken by 20 million The finding was reported to FDA and led to broad recalls. - - In 2021, a study of generic versions of tacrolimus, an immunosuppressant, found that some dissolve too rapidly. This might affect therapeutic duration and increase the risk of organ rejection. - - Also in 2021, FDA raised integrity concerns with the bioequivalence studies of approximately 100 drugs conducted by two Indian CROs. The agency rejected the studies and required manufacturers to repeat them. Unlike its European counterpart, which suspended marketing of the products, the FDA allowed the drugs to continue to be sold with a special code to alert pharmacists that they should not be considered "automatically substitutable" for their brand-name counterparts. Because FDA approval is considered the benchmark for drug quality, the US companies that supply most generic drugs to America’s pharmacies, clinics, and hospitals search the globe for the least expensive generic versions of brand-name drugs. The "race to the bottom" this engendered drove most generic drug production offshore. As a result, America is highly reliant on other countries for its generic drugs and the ingredients and raw materials required to make them ...

CVS Pharmacy announced CVS CostVantage, a new approach that evolves the traditional pharmacy reimbursement model and brings greater transparency and simplicity to the system. CVS CostVantage will define the drug cost and related reimbursement with contracted pharmacy benefit managers (PBMs) and payors, using a transparent formula built on the cost of the drug, a set markup, and a fee that reflects the care and value of pharmacy services. These changes will also help ensure that CVS Pharmacy locations will continue to be a critical touchpoint for consumers to access affordable health care in their communities. CVS Pharmacy plans to launch CVS CostVantage with PBMs for their commercial payors in 2025, working together to ensure a smooth transition. Following on from the launch of its Choice Formulary program earlier this year, CVS Caremark also introduced TrueCost, a model innovation that offers client pricing reflecting the true net cost of prescription drugs, with visibility into administrative fees. Simplified pricing will help consumers be confident that their pharmacy benefit is providing the best possible price and will allow members to have stable access to our national pharmacy network. Through this approach, the company said that clients will have the flexibility to choose a pharmacy benefit model that works best for the unique needs of their members and plan, and CVS Caremark TrueCost provides another valuable option for them. CVS Caremark plans to launch CVS Caremark TrueCost in 2025. CVS is shifting course amid a changing commercial and regulatory landscape for drug pricing. Blue Shield of California announced in August it would revamp how it pays for medicine by enlisting five companies to handle the chain of getting drugs from manufacturer to consumer - instead of a single entity known as a pharmacy-benefit manager. "The current pharmacy system is extremely expensive, enormously complex, completely opaque, and designed to maximize the profit of participants instead of the quality, convenience and cost-effectiveness for consumers," Paul Markovich, chief executive of Blue Shield of California, said at the time. To help demonstrate the connection and convenience CVS Health uniquely delivers, CVS Healthspire will be the new branded name for the company’s Health Services segment, including Caremark, Cordavis TM, Oak Street Health®, Signify Health®, and MinuteClinic®. The groups within CVS Healthspire will continue to focus on integration across the company’s assets to deliver connected patient care, pharmacy benefits, and innovative provider support solutions in communities across the country, making expert care simple, more accessible, and more affordable. The CVS Healthspire brand will begin to roll out publicly this month and advance throughout 2024. Consumers will initially see "Part of CVS Healthspire" appear on select CVS Health care delivery offerings across digital and physical assets as the company continues to create an integrated ecosystem for patients. While CVS Health’s business segments continue to be successful and profitable on their own, there is a sizable opportunity to continue strengthening these connections and create incremental value for the overall company. A notable example was the recent improvement of Aetna’s Medicare Advantage Star Ratings. In just a year, by leveraging the power of the company’s cross-enterprise assets and executional excellence, Aetna was able to achieve 87% of their members in four star plans or better for the 2025 plan year, a recovery from 21% in the previous year. "This achievement was due to the work across our Aetna, CVS Pharmacy, and CVS Caremark colleagues. Even more important than our ratings, these teams worked together to help members improve medication adherence and overcome barriers such as costs and transportation," said Lynch. "Our strong performance in this area shows how we can quickly unite our businesses to achieve important common goals." ...

Roosevelt Luckett worked for a McDonald’s restaurant located on Venice Boulevard in Los Angeles.From time to time, Luckett worked in the drive-thru cash booth. Luckett asked whether he could use a seat in the drive-thru cash booth, and McDonald’s denied his request. His employer operated approximately 78 corporate McDonald’s restaurants in California with drive-thru cash booths. Luckett sued his former employer, McDonald’s Restaurants of California, Inc. under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). Luckett alleged McDonald’s violated Industrial Welfare Commission Wage Order No. 5-2001, section 14(A), which requires employers to provide suitable seats to their employees "when the nature of the work reasonably permits the use of seats," and section 14(B), which requires an employer to provide suitable seats in reasonable proximity of the work area for employees to use during lulls in operation. (Cal. Code Regs., tit. 8, § 11050, subd. 14(A) &(B) [Wage Order No. 5-2001]; McDonald’s moved for summary judgment. McDonald’s argued (among other issues) that there was no factual dispute that the nature of the work did not reasonably permit the use of a seat at its drive-thru cash booths. It argued the booths were a tight workspace, designed for standing, and the fluidity of movement required to service customers (including frequent foot movements, reaching, bending, shifting, and twisting) could not be reasonably performed from a seated position. Additionally, placing a seat in the booth would create a tripping hazard. McDonald’s also argued that Luckett failed to exhaust administrative remedies as required under PAGA with respect to his section 14(B) claim and thus, the claim was procedurally barred. Defendant’s evidentiary submission in support of its motion included among other things the declaration of its operations manager in California since January 2013, Saad Sabbagh, the declaration of McDonald’s then-director of customer experience, Michael Cramer, and the report of a retained ergonomics expert, Jeffrey Fernandez, PhD. The trial court granted the motion, finding there was no factual dispute that the nature of the work did not reasonably permit use of a seat in McDonald’s California drive-thru booths. The Court of Appeal affirmed the summary judgment In the unpublished case of Luckett v. McDonald's Restaurants of California -B317481 (November 2023). In Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1,the California Supreme Court explained, "Whether an employee is entitled to a seat under section 14(A) depends on the totality of the circumstances. Analysis begins with an examination of the relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing. This task-based assessment is also balanced against considerations of feasibility. Feasibility may include, for example, an assessment of whether providing a seat would unduly interfere with other standing tasks, whether the frequency of transition from sitting to standing may interfere with the work, or whether seated work would impact the quality and effectiveness of overall job performance. This inquiry is not a rigid quantitative analysis based merely upon the counting of tasks or amount of time spent performing them. Instead, it involves a qualitative assessment of all relevant factors." (Id. at pp. 19-20.).) Drive-thru cash booth employees have primary and secondary duties. Their primary duties include taking orders and completing payment transactions for drive-thru customers, and providing "excellent customer service" while doing so. For example, Sabbagh observed, "It is McDonald’s expectation that employees in the cash booth reach out to customers who are sitting in their vehicles, rather than make our guests take off their seat belts, stretch, or open their vehicle doors to reach in toward the employee during a payment transaction." Sabbagh also declared that McDonald’s places great emphasis on the guest experience and speed of service. Therefore, McDonald’s tracks the speed of service for each restaurant and provides training regarding how to diagnose and fix slowdowns." "There is seating in the crew break room to ensure that employees are able to sit and rest during their formal breaks. However, generally speaking, outside of these breaks, it is not acceptable to McDonald’s for an employee to be sitting down and doing nothing while on duty - except, perhaps, as an accommodation for a medical issue." Thus, to provide the requisite level of service, McDonald’s expects its employees to remain busy between customer transactions by performing secondary duties. Because the work in the cash booth is most appropriately done from a standing position, McDonald’s generally only allows employees to sit as an accommodation for medical reasons. In assessing feasibility, the employer’s business judgment and the physical layout of the workspace may be relevant considerations. (Kilby, supra, 63 Cal.4th at pp. 21-22.) However, physical differences among employees are not relevant to the section 14(A) inquiry. "That provision requires a seat when the nature of the work reasonably permits it, not when the nature of the worker does." (Kilby, supra, at p. 23.) The Court of Appeal Concluded by noting "Luckett has not demonstrated a genuine issue of material fact as to whether it is feasible to place a seat in the drive-thru cash booths." ...

A California man pleaded guilty in U.S. District Court to embezzling more than $10.2 from his employer and violating orders of the Court in a lawsuit against him. Brinson Caleb "BC" Silver, 43, of Culver City, California, pleaded guilty to one count each of wire fraud and contempt of court. As part of his guilty plea, Silver agrees to pay more than $10.2 million in restitution. According to court documents, Silver was the Chief Marketing Officer of Root, Inc., an online car insurance company. From November 2021 through November 2022, Silver entered into contracts with four vendors for marketing services. Silver directed the vendors to send a portion of their contract proceeds to bank accounts in the names of businesses that Silver owned and controlled. Those diverted payments totaled more than $10.2 million. Silver used the millions he embezzled to buy a $1.4 million dollar yacht, a Mercedes-Benz G550 for nearly $165,000, an amphibious plane, luxury watches and other items. As a result of his fraud scheme, in February 2023, Root sued Silver. The Court granted a motion in his civil suit that limited him to financial transactions no greater than $5,000. Silver failed to appear in court for a hearing related to his civil suit and instead spent lavishly while traveling the globe. His expenditures in February and March 2023 violated the Court’s orders and include $20,000 on plastic surgery, more than $25,000 at Indonesian businesses (including $8,000 at a luxury resort in Bali) and in withdrawals made in Indonesia, and more than $88,000 through PayPal to individuals. Silver also withheld from the Court information about a $1.8 million house he owned in California. During this time, Silver also made two phone calls to an "international relocation" company and asked for citizenship within a country that would not extradite him to the United States, and a foreign bank account that the United States could not freeze. Silver was charged criminally and arrested in June 2023. Parties involved in his case have recommended a sentence range of 24 to 51 months in prison in addition to the $10.2 million in restitution. Silver served as the company's chief marketing officer for a year. He was let go last November when the insurer laid off 20% of its staff as part of a cost-cutting move for a company that has struggled to turn a profit since going public in October 2020. Root said the fraud was discovered after Silver left the company. According to a report by the Columbus Dispatch, "Root hired Silver believing he was an experienced leader and would be skilled at getting maximum value for Root’s modest marketing budget for the year 2022," the lawsuit said. Instead within days of starting his job, Silver contacted William Campbell about using Campbell's company, Quantasy & Associates, to perform marketing services. Root paid Quantasy more than $13 million, the company said, with the money spent on marketing at Barstool Sports, ESPN and iHeart.. There's no indication any of the money was spent with those companies on Root's behalf. Silver then told Campbell to transfer more than $9.4 million of that money to another company called Collateral Damage, which is owned and operated by Silver, the insurer said. Silver never told Root of the existence of Collateral, the company said. Once the money was transferred to Collateral Damage, Silver used the funds to buy high-end homes in Miami, Florida and Venice, California in the name of another of his companies, called Eclipse Home Design, between April and August 2022 for more than $10 million, according to the lawsuit. Those purchases were funded, at least in part, by the money Quantasy sent to Collateral Damage. Other defendants in the lawsuit include Campbell, Paige Lynette McDaniel, Silver's sister, along with Collateral Damage, Eclipse and Quantasy. Quantasy and Campell denied any wrongdoing. "The lawsuit alleges that Root was swindled by its own chief marketing officer, B.C. Silver, who orchestrated and controlled the alleged fraud scheme. Quantasy and Will Campbell reasonably relied on Silver’s authority as a senior officer of Root, and they were unaware that Silver was engaged in alleged deceit and self-dealing," they said in a statement. "Quantasy and Mr. Campbell deny any complicity in Silver’s alleged scheme and will vigorously defend and prevail on the meritless claims filed against them." ...

In this case, plaintiffs are Ventura County, California firefighters and law enforcement officers who (except for one plaintiff) are members of two unions, the Ventura County Professional Firefighters’ Association (PFA) and the Ventura County Deputy Sheriffs’ Association (DSA). The County sponsors various health insurance plans for its eligible employees and their dependents. Under agreements between the unions and the County, plaintiffs were eligible to enroll in union-sponsored health insurance plans instead of the County’s plans. The County manages health benefits for union and non-union employees alike through its Flexible Benefits Program. As part of this "cafeteria plan," the County provides its employees every pay period with a Flexible Benefit Allowance, also known as the "Flex Credit," which employees may use to purchase health benefits on a pre-tax basis. The amount of the Flex Credit for union members is set through negotiation between the County and the unions. If the premium for an employee’s chosen health insurance is more than the Flex Credit, the balance of the premium owed is deducted from the employee’s pre-tax earnings. If the premium is less than the Flex Credit, the remainder is paid to the employee in cash as taxable earnings. Employees can also waive participation in the Flexible Benefits Program altogether, in which case they do not receive the Flex Credit. In the early 1990s, the County, in consultation with union representatives, developed another option for employees who did not wish to purchase a sponsored benefits plan yet wanted to retain their Flex Credit. Specifically, an employee who already has medical insurance from another source, such as a spouse’s plan, may choose to "opt out" of the Flexible Benefits Program. Employees who opt out are allotted the same Flex Credit but must pay an opt-out fee. Both the Flex Credit and opt-out fee appear on employees’ paystubs: the Flex Credit is listed under "Earnings" and the "opt-out fee" appears as a "before tax deduction." The County subtracts the opt-out fee from the Flex Credit and then pays the balance to the employee in cash. Union members pay the same opt-out fee as all other County employees who opt out of the Flexible Benefits Program. The amount of the opt-out fee varies from year to year, but it generally comprises most of the Flex Credit. Plaintiffs opted out of the Flexible Benefits Program and were paid in cash the balance of the Flex Credit less the opt-out fee. The County treated this residual cash payment as part of plaintiffs’ regular rate of pay when calculating their overtime compensation. But the County did not include in that calculation the value of the opt-out fee. Plaintiffs filed this putative class action under the FLSA challenging that determination. See 29 U.S.C. § 216(b). They argued that the exclusion of the opt-out fee from their "regular rate" of pay resulted in the County underpaying plaintiffs for overtime work, in violation of the FLSA. The district court granted summary judgment to the County, concluding that the opt-out fee was properly excluded from plaintiffs’ regular rate of pay under a statutory exception for health plan contributions. The 9th Circuit Court of Appeals affirmed in the published case of Anthony Sanders et. al. v The County of Ventura 22-55663 (November 2023). Plaintiffs maintain that the FLSA requires the whole Flex Credit, including the opt-out fee, to be included in their regular rate of pay citing Flores v. City of San Gabriel, 824 F.3d 890 (9th Cir. 2016). However in Flores, the City of San Gabriel provided its employees with a designated sum that they could use to purchase medical benefits, but any employee who supplied proof of alternate coverage could forgo the benefits and instead directly receive that sum in cash. The 9th Circuit cconcluded that these "cash-in-lieu of benefits payments" were not excluded under § 207(e)(4) because they were not paid "to a trustee or third person," as that statutory exception requires. The County here complied with this aspect of Flores: it treated the cash it paid to plaintiffs - the difference between the Flex Credit and the opt-out fee - as part of plaintiffs’ regular rate of pay when calculating overtime compensation. But Flores did not consider opt-out fees like the ones at issue here, and nothing in Flores supports plaintiffs’ theory that the opt-out fee is itself part of plaintiffs’ regular rate of pay. In this case, the opt-out fee does not function like the cash payment in Flores. Indeed, the opt-out fee is not provided to the plaintiffs in cash at all, and employees have no right under the program to access that amount as cash-in-lieu. For various reasons pointed out in the opinion, the 9th Circuit held that the County properly excluded the Flex Credit opt-out fee from plaintiffs’ regular rate of pay under 29 U.S.C. § 207(e)(4) ...

Biobots, also known as biological robots, are a type of robotics that utilizes living cells or their components to create machines that can perform various tasks. These devices are still in their early stages of development, but they hold immense potential for various applications, including medicine, environmental monitoring, and even space exploration. Anthrobots are a type of biobot specifically created using human cells. These microscopic robots, ranging from the width of a human hair to the point of a sharpened pencil, are designed to carry out tasks depending on the functions of their individual cells and how they work together. They are self-assembled in a lab dish and show remarkable healing effects, particularly in neuron growth across damaged areas in lab conditions. In a study published in Advanced Science this week, scientists investigated the behavior of Anthrobots that are capable of regenerating damaged neurons in a lab. The heart of fundamental issues in evolutionary, developmental, cell, and synthetic biology, and has been taken up by a rapidly growing field focusing on building new kinds of active living structures: biobots. This emerging multidisciplinary effort to control the behavior of cellular collectives has garnered much excitement for two main reasons. First, it offers the possibility of using engineering to reach outcomes that are too complex to micromanage directly, and hence promises to revolutionize efforts to produce complex tissues for clinical applications in regenerative medicine and beyond. Second, increased control over the morphology and behavior of cellular collectives by leveraging morphogenetic tissue plasticity could enable the development of self-constructing living structures by design with predictable and programmable functional properties and numerous practical uses, greatly extending the current abilities of traditional fabrication practices in diverse fields as robotics,architecture, sustainable construction, and even space exploration. In the last decade, interest in developing biological structures de novo has seen a rapid surge.Among these efforts, a subset of functional biogenic assemblies gave rise to a special class of motile synthetic structures dubbed biobots. Early examples of biobots are hybrids between biological cells and inert chemical substances supporting them, such as gels or 3D-printed scaffolds. These assemblies incorporated living cells ranging from bacteria to diverse mammalian tissues such as nerve, muscle, and neuromuscular junctions (NMJs), as well as engineered cell lines with programmable features, all carefully crafted into diverse 3D scaffolds designed to harness and amplify the innate functionality of biological cells. A different approach resulted in Xenobots, the first fully-biological biobots created by sculpting or molding amphibian embryonic cells into multicellular structures that can spontaneously locomote without external pacing. But it was not known how general these phenomena are, whether this kind of plasticity extended to mammals, or what the throughput of this technology can be. Thus, researcher sought to address whether the capacity of genetically unaltered cells to generate a self-propelled, multicellular living structure in this way is unique to amphibian embryonic cells, and whether such a living structure can be built without needing to be individually sculpted or molded, but instead coaxed to self-construct from an initial seed cell, resulting in a high-throughput process wherein large numbers of biobots can be grown in parallel. Their research found that Anthrobots induce efficient healing of defects in live human neural monolayers in vitro, causing neurites to grow into the gap and join the opposite sides of the injury. Passive materials did not recapitulate this effect, but it is not yet known which of the many possible biochemical and biophysical aspects of Anthrobot presence are required for this. Biobots represent a promising area of research with the potential to revolutionize various fields. As scientists continue to develop and refine these technologies, we can expect to see even more innovative and impactful applications in the years to come. With enough development, the researchers believe Anthrobots may eventually acquire other applications, such as clearing plaque buildup for atherosclerosis patients, repairing damaged spinal cords or retinal nerves, detecting bacteria and cancer cells or even delivering drugs to specific body tissues ...

Deniece Abraham worked for Wells Fargo at its business support call center in Sacramento. She was part of a team of traveling bankers that went to Virginia to train new call center employees who had been hired to staff a business support call center in that state. As part of the traveling banker training, Wells Fargo promoted the traveling banker position as an opportunity to network with colleagues from other branches and pursue leadership roles. A trip to Virginia was scheduled to occur between November 24, 2019, and November 27, 2019, with each day’s training sessions lasting from 7:00 a.m. until 3:00 p.m. After 3:00 p.m., the traveling bankers were considered to be on their own time and free to do whatever they wanted. The trip was organized by a manager with Wells Fargo who arranged air travel, lodging, and rental car reservations. All of the traveling bankers from Sacramento were permitted to drive the rental cars reserved for the trip. Further, all the traveling bankers from Sacramento were included in a group text messaging conversation to communicate about the shared use of the rental cars so that everyone could efficiently travel to the training sessions, obtain dinner, or run errands. For the trip, Wells Fargo issued each traveling banker a "purchasing card" to pay for travel expenses and meals. The traveling bankers were prohibited from using the purchasing card to buy alcohol. On the third day of the trip, November 26, 2019, the traveling bankers discussed plans for dinner that evening, including meeting with trainees and a supervisor from the Virginia office. After training ended for the day, the traveling bankers drank alcohol in the lobby of their hotel. Deniece Abraham and two of her colleagues went to dinner at a karaoke bar using one of the rental cars provided by Wells Fargo. They arrived at the karaoke bar around 8:00 p.m. There, they danced, drank alcohol, and ate chicken wings. Employees from the Virginia Wells Fargo branch arrived at the karaoke bar at approximately 10:00 p.m. and the group continued to dance, drink alcohol, and eat chicken wings. Shortly after 1:30 a.m., Abraham and her two colleagues left the karaoke bar and used the rental car provided by Wells Fargo to drive back to their hotel room. Abraham was a passenger in the car. At approximately 2:00 a.m., the driver of the rental car crashed into a tree while exiting the freeway. Abraham died from her injuries. Plaintiffs Diane and John Abraham sued Wells Fargo Bank, N.A. and Sheonta Malbrough for the wrongful death of their daughter Deniece Abraham. Wells Fargo moved for summary judgment, asserting plaintiff’s suit was barred by the exclusive remedy provisions of the Workers’ Compensation Act. Specifically, Wells Fargo argued that, because Abraham was considered a commercial traveler at the time of her deat,her death was caused by a workplace injury that was exclusively compensable with workers’ compensation benefits. The trial court agreed with Wells Fargo and granted the motion for summary judgment, ultimately leading to dismissal of the case. The Court of Appeal affirmed the dismissal in the unpublished case of Abraham v. Wells Fargo Bank -C098233 (November 2023). Under the "commercial traveler" rule, an employee traveling on the employer’s business is regarded as acting within the course of employment during the entire period of his, her, or their travel. (Wiseman v. Industrial Acc. Com. (1956) 46 Cal.2d 570, 572.) His or her acts in traveling, procuring food and shelter are all incidents of the employment, and where injuries are sustained during the course of such activities, the Workers' Compensation Act applies. The Court of Appeal concluded that "Here, Abraham was an employee of Wells Fargo traveling for the purpose of Wells Fargo’s business. During the business trip, Abraham went out for dinner and drinks with colleagues and then died on the way back to the hotel. These undisputed facts establish that Abraham was a commercial traveler at the time of her death, and thus her conduct of traveling and procuring food fell within the conditions of her employment." ...

Renee Thomas is a "well-regarded soccer player" who was recruited by University of California, Berkeley (UCB) head coach Neil McGuire to play in the 2018-2019 season. McGuire knew at the time that Thomas had already committed to play for the University of Colorado, which had offered her a scholarship. At a meeting with Thomas and her mother in February 2018, McGuire "assured" Thomas that she would be on UCB’s women’s soccer team for four years. Thomas turned down her scholarship to the University of Colorado to accept a non-scholarship spot on UCB’s team based on McGuire’s "assurances that she was joining a four-year soccer program, that she would play on the team as long as she met the reasonable performance expectations of the program, and that she would be coached in a caring and encouraging manner." Thomas joined the team as one of six non-scholarship players, performed well, complied with the expectations McGuire laid out for her and "participated in every opportunity available to her to improve her performance." McGuire told her she was "promising enough to rival the best-performing forward on the team" and she was honored at the team’s annual banquet as the most improved player. During the 2018-2019 season, Thomas "experienced and witnessed" abusive behavior by McGuire. McGuire lost his temper at the athletes "on many occasions," "[i]n fits of rage, he singled out athletes and berated them in front of the team, sometimes nonsensically, to make an example of them and strike fear in the witnessing athletes," he "called young female athletes names, cursed at them, and degraded them with personal insults both related and unrelated to athletic performance," and he "tormented them psychologically and punished them with grueling workouts." On April 29, 2019, "without warning or explanation," McGuire released Thomas and four others from the team. It was "rare" for McGuire to release players from the team and "quite unusual that he released five players at once." Thomas initially filed a complaint in federal court alleging disparate treatment of the UCB men’s and women’s soccer teams in violation of United States Code title IX (20 U.S.C. § 1681 et seq.) (Title IX) and California Education Code section 66271.8, gender discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51) (Unruh Act), and negligence and negligent infliction of emotional distress, all based on her unjustifiable release from the team. The federal district court dismissed the first amended complaint without leave to amend, finding Thomas failed to state any of her claims and leave to amend would be futile. Thomas then filed her complaint in California Superior Court on September 11, 2020, alleging claims against McGuire and Jim Knowlton, UCB’s Athletic Director, for violation of the Unruh Act and negligence, and against McGuire for breach of fiduciary duty and fraud. She subsequently filed a first amended complaint adding that UCB was liable pursuant to Government Code section 815.2. The defendants demurred. The trial court sustained the demurrer with leave to amend only the fraud claim against McGuire. The court held that Thomas failed to state causes of action for violation of the Unruh Act or Civil Code section 51.9 (which Thomas argued was actually the basis for her Unruh Act claim), negligence or breach of fiduciary duty, and that the fraud claim against UCB was barred by governmental immunity (Gov. Code, § 818.8 [public entity not liable for employee’s misrepresentation]). Thomas’s second amended complaint, was filed on July 6, 2021. The trial court adopted its tentative ruling sustaining another demurrer without leave to amend, finding that Thomas failed to allege all the required elements of a cause of action for fraud and McGuire was entitled to public employee misrepresentation immunity (Gov. Code, § 822.2). Thomas appealed the dismissal. The Court of Appeal concluded Thomas sufficiently pleaded a cause of action for sexual harassment in violation of Civil Code section 51.9 against the head coach and UCB and should have been granted leave to amend her complaint to clarify the statutory basis of this claim. In all other respects it affirmed the trial court’s decision in the published case of Thomas v. The Regents of the University of Cal -A164550 (November 2023). The first cause of action in Thomas’s first amended complaint alleged violation of the Unruh Act. Civil Code section 51, provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) Thomas alleged that McGuire and Knowlton "engaged in unreasonable, arbitrary, and invidious discrimination" against her and "denied her full and equal privileges as compared with male athletes"; her gender was a "substantial motivating reason" for McGuire’s and Knowlton’s conduct; and UCB was liable for unlawful actions of its employees under Government Code section 815.2. As developed in the employment context, federal and state law generally recognizes two theories of liability for sexual harassment claims, quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Hughes v. Pair (2009) 46 Cal.4th 1035 at p. 1043.) The present case involves the "hostile environment form of sexual harassment." In the employment context, the plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557) Harassment "because of sex" may be shown where "an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men." (E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir. 2005) 422 F.3d 840, 845 (E.E.O.C.).) To plead a cause of action for sexual harassment in the form of a hostile environment, "it is ‘only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner." The Court of Appeal concluded that Plaintiff's "allegations unquestionably describe pervasive bullying behavior toward the young women on the soccer team that created a hostile environment." "The defendants argue (and the trial court concluded) that they do not allege pervasive sexual harassment because the alleged conduct and comments were not of a sexual or hostile gender-based nature. We disagree. As we have explained, 'there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.' " ...

On November 18, 2021, two inspectors from the Division of Occupational Safety and Health were denied consent to inspect the premises of Calvary Chapel of San Jose (Employer), a private school located on church grounds. On November 29, 2021, the Division sought an "inspection warrant" from the Santa Clara County Superior Court. The Division supported their request for a warrant with two declarations: one from Richard Haskell (Haskell), Associate Safety Engineer, and another from Lisa Brokaw (Brokaw), Staff Attorney. Haskell’s declaration stated, "We were directed to open this inspection in response to a complaint made to the Division’s Fremont District Office on November 16, 2021 that Calvary Christian Academy was not complying with Title 8, section 3205, COVID-19 Prevention, face covering and outbreak reporting requirements." On November 29, 2021, a Judge of the Santa Clara County Superior Court granted the Division’s request for an inspection warrant. The Division subsequently conducted a site inspection, commencing on November 30, 2021. On March 10, 2022, the Division issued five citations to Employer, alleging twelve violations of safety orders contained in title 8 of the California Code of Regulations,1 and totaling $67,330 dollars in penalties. Employer filed timely appeals of all the citations on March 21, 2022. On July 18, 2022, the Employer filed a motion to suppress evidence, arguing all evidence from the inspection should be suppressed because the warrant had been issued without probable cause. The Division filed an opposition on July 28, 2022. Employer filed a reply on August 16, 2022. On September 1, 2022, Administrative Law Judge (ALJ) Kerry Lewis issued an Order on Motion to Suppress Evidence, which granted Employer’s motion. The ALJ, relying on the Board’s prior jurisprudence, concluded she had jurisdiction to rule on the motion to suppress evidence, and granted the motion after determining the warrant had been issued without probable cause. The ALJ’s Order also excluded any evidence arising from the Division’s inspection of the site. The Division filed a Petition for Reconsideration with the Occupational Safety and Health Appeals Board (OSHAB) in the case of In Re Calvary Chapel San Jose -1564732 (November 2023). In this case OSHAB affirmed the ALJ’s ruling that Cal/OSHA’s warrant application lacked the requisite probable cause. However the case was remanded for a ruling, on the application of the good faith exception to suppression of the evidence. Labor Code section 6314, subdivision (b), states that if permission to investigate a place of employment is refused, the Division may seek an inspection warrant pursuant to Code of Civil Procedure section 1822.50 et seq. "An inspection warrant is an order . . . signed by a judge of a court of record, directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning." The Division’s petition for reconsideration argues, at length, that the Board and its ALJ lack authority to evaluate the validity of the inspection warrant issued by the Santa Clara County Superior Court, and lack authority to grant Employer’s motion to suppress evidence. The Division argues that the California Constitution solely vests courts with original jurisdiction to review such warrants for errors. The Division contends the Legislature can only divest the courts of such jurisdiction if they enact a law pursuant to express or implied constitutional authority, which the Division argues did not happen here. Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority. Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority. Once an appeal has been initiated before the Board, the Board’s operative statutes require parties to contest the citations, and all related issues, to a final decision before the Board prior to seeking judicial review. (Lab. Code, § 6600-6633.) The statutes permit a party aggrieved by a final order or decision of a hearing officer to file a petition for reconsideration before the Board. (Lab. Code, § 6614.) The filing of such a petition for reconsideration is a prerequisite to judicial review, and all issues not in that petition are waived. (Lab. Code, §§ 6615, 6618.) Labor Code section 6615 states, OSHAB then noted "Taken together, Labor Code sections 6615 and 6618 set forth an exhaustion requirement, providing that all objections, irregularities, and illegalities arising from a final order or decision are waived, and not subject to court review, unless first presented to the Board via a petition for reconsideration. As relevant here, these statutes demonstrate that the adequacy of the warrant must first be presented to the Board, and such remedies exhausted, to prevent waiver." Thus the Board ruled that it had jurisdiction to entertain a motion to suppress. Cases discussing the constitutionality of inspection warrants in Cal/OSHA proceedings have stated that the search and seizure requirements of the Fourth Amendment and Article I, section 13, of the California Constitution mandate a probable cause requirement for Cal/OSHA inspection warrants. (Salwasser Mfg. Co. v. Mun. Court (1979) 94 Cal.App.3d 223, 231-232 (Salwasser I).) The standard of probable cause, i.e., the level of scrutiny required for a Cal/OSHA inspection warrant, is detailed in Salwasser Mfg. Co. v. Occupational Safety & Health Appeals Bd. (1989) 214 Cal.App.3d 625 (Salwasser II). Salwasser II found that the criminal probable cause standard is not applicable when the warrant application is based on employee complaints, and instead called for a "lesser standard of administrative probable cause." (Salwasser II, supra, 214 Cal.App.3d at 630.) Salwasser II relied on federal circuit court decisions when discussing and defining this lesser standard of administrative probable cause. "The Board follows the good faith exception to the exclusionary rule. (Southwest Marine, Inc., supra, Cal/OSHA App. 96-1902.) The Board has previously noted that it will only exclude evidence pursuant to the exclusionary rule when it can be established that the warrant was not obtained in good faith. The Occupational Safety and Health Appeals Board concluded that the "ALJ has not yet ruled on application of the good faith exception in this particular case. Therefore, it remanded this matter back to hearing operations for consideration, and a ruling, on the application of the good faith exception in this case ...

The California Attorney General joined a multistate coalition in filing an amicus brief urging the U.S. Supreme Court to reverse a lower court decision holding that only workers employed in the transportation industry can be exempt under the transportation-worker exemption to the Federal Arbitration Act (FAA). The multistate amicus brief supports the petitioners in Bissonnette v. LePage Bakeries Park St., LLC, et al 59 F. 4th 594 - Court of Appeals, 2nd Circuit 2023, who are truck drivers delivering baked goods to restaurants and stores for baking conglomerate Flowers Foods. The Bissonnette case involved a dispute between two commercial truck drivers, Neal Bissonnette and Tyler Wojnarowski, and their employer, LePage Bakeries Park St., LLC. The drivers claimed that they were not subject to the Federal Arbitration Act (FAA) because they were "transportation workers" within the meaning of the statute. The FAA excludes from its scope contracts with "seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce." The United States Court of Appeals for the Second Circuit affirmed the district court's decision that the drivers were not "transportation workers" under the FAA. The court reasoned that the drivers were not employed by a company in the transportation industry, but rather by a bakery that simply used transportation services to distribute its products. The court also noted that the drivers' primary duties did not involve transportation, but rather the sale and merchandising of bakery products. In their brief, the attorneys general ask the U.S. Supreme Court to reverse that ruling because it is inconsistent with precedent that has rejected defining the exemption by industry, would be unworkable as a practical matter, and prevents states from effectively monitoring commerce and ensuring lawful workplace conditions. California is home to over 1.5 million transportation workers. Of these workers, about 312,080 are truck drivers in a variety of industries, and many of these workers are directly related to the movement of goods, even if they do not directly work for a trucking company. For the many California workers in the sector, workable standards safeguard their access to the courts, lessening the probability they will be erroneously diverted to arbitration and abandon their claims. The California Attorney General joins the attorneys general of Illinois, Colorado, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia. The decision in Bissonnette has important implications for employers and employees in the transportation industry. The decision clarifies that the FAA does not apply to all workers who are engaged in interstate commerce, but only to those who are employed by companies that are primarily engaged in the transportation industry. This distinction could have a significant impact on the enforceability of arbitration agreements in the transportation sector. The U.S. Supreme Court granted certiorari in Bissonnette on September 29, 2023. Thus the case is currently pending before the Supreme Court. The petitioners' brief was filed on November 13, 2023. The respondents' brief is due on December 15, 2023. The case is likely to be argued before the Supreme Court in early 2024 ...

The U.S. Department of Labor has issued new data showing California's State Average Weekly Wage (SAWW) edged down 0.48 percent from $1,650 to $1,642 in the 12 months ending March 31, 2023. As a result, the California Workers’ Compensation Institute (CWCI) notes there will be no change in California’s minimum and maximum temporary total disability (TTD) and permanent total disability (PTD) rates for 2024 work injuries, or in other benefits that are tied to increases in the SAWW. Under California law, minimum and maximum TTD and PTD rates are subject to annual changes, effective January 1 of each year, based on the percentage increase in the SAWW After increasing steadily for more than a decade, including a 5.159 percent increase last January on top of a record 13.521 percent increase in 2022, the maximum TTD/PTD rate for 2023 job injuries is now $1,619.15 per week, and the minimum is $242.86 per week. But, with the decline in the SAWW last year, those rates will not need to be adjusted for claims with injury dates on or after January 1, 2024. The 2022-2023 decline in the SAWW also means that annual cost of living adjustments to life pension and PTD payments on existing claims with injury dates on or after January 1, 2003 will not apply next January, and the maximum rate for death benefit installment payments, which are paid in the same manner and amount as TTD, will remain unchanged. However, depending on the rate now being paid, some existing older claims that are eligible for more than 104 weeks of TD [e.g., claims involving amputations, hepatitis or any of 9 long-term injuries noted in LC §4656(c)(3)] will qualify for an increase in 2024 as LC §4661.5 requires that any TTD payment made two or more years after the injury date be based on the TTD rate in effect on the date of the payment, unless that would reduce the amount paid. Thus, a worker who suffered an amputation on April 1, 2022, and who is still receiving TD at the 2022 maximum of $1,539.71, should see that payment increase to the current maximum of $1,619.15 on April 1, 2024 (assuming that rate is justified by their at-injury earnings). Claims administrators are encouraged to review the latest SAWW figures with legal counsel to confirm that benefit payments are appropriate and accurate. For reference, California’s SAWW data can be found in the U.S. Department of Labor Unemployment Insurance database ...

UCLA is offering a new Bachelor of Arts in disability studies, which aims to bridge academic theories with lived experience and encourage students to advocate for change in their communities. The program, which is the first disability studies degree at the UC, includes an internship program in a community-based agency and a capstone project, according to the UCLA Undergraduate Education Initiatives. Historically, disability has been taught in terms of clinical solutions, but UCLA’s disability studies program will connect medical education with the social construct of disability, creating a unique learning experience for all students, said Victoria Marks, the chair of the disability studies interdepartmental degree program as well as the existing minor. Marks, a professor in the Department of World Arts and Cultures/Dance, said that disability studies are critical because the field challenges what is perceived as normal and forces people to consider the stigmas that those with disabilities face. '(Disability studies) is a way of thinking about how we construct identities around health and well-being, functionality and in some degrees, citizenship itself," she said. While the major has been in discussion for many years, there were difficulties in figuring out what departments would be involved because of its interdisciplinary nature, said Brooke Wilkinson, director of academic initiatives for the Undergraduate Education Initiative. Wilkinson said the major is more organized than the already existing minor, with classes from multiple disciplines centered around disability studies. The courses cover subjects such as health humanities and bioethics, where students can view these topics through disability studies - a lens that students rarely view these disciplines through, she added. The major also allows students to blend their personal interests and experiences, Wilkinson said, adding that students are able to specialize in a topic that they select through the internship, which culminates in a senior capstone project. Augustine Udukumbura, a member of the Disabled Student Union, said they believe it is important for nondisabled students to learn about these topics so they can more effectively help advocate for disabled students. "Having it (the disability studies major) really spots disabled people, but it also puts us into everyday conversation," said Udukumbura, who is also a fourth-year gender studies and sociology transfer student. Some students have already expressed interest in the major. Elanor Armstrong, a first-year psychology student, said she plans on applying to the disability studies major, adding that she has worked and wants to work with individuals with disabilities after she graduates college. She said she believes disability studies are important to normalize disabilities, as many people are not aware of what it means to have a disability, what having a disability looks like or what it is like for a family member to have a disability. "(The creation of the major) shows that UCLA is an inclusive campus that provides the resources for people to learn and grow," Armstrong said. She added that the possibility of the major was one of the reasons why she decided to attend UCLA, as things like the internship will allow her to have real-world experience with the course content. As part of the upper-division coursework for the major, students must take four electives on interdisciplinary perspectives in disability, according to UEI. These courses are offered by a variety of departments, such as community health, English and gender studies. Udukumbura, who has bipolar disorder, said they believe such an intersectional approach allows disabled students to learn more about their conditions from different perspectives, as people with the same disability might experience their condition in different ways. "I think, in a sense, it helps me make space for my own feelings," they said. "It really helps to have almost an explanation." Armstrong said she hopes the major will help her decide how she wants disability studies to be incorporated into her career path. Students can go on to work in all kinds of fields - including law, medicine or education - once they graduate with the disability studies major, Wilkinson said. "It allows all students, whether disabled or not disabled, to have language for and think about, tangibly, how it is that we move through the world differently," Marks said. Udukumbura added that they hope the interdisciplinary approach will help validate the experiences and feelings of disabled students studying their disability or other disabilities. Marks said she hopes the major will ultimately allow students to vouch for diverse communities and advocate for change. "These students will go on to be the people who make changes in the world that affect all of our lives," she said. "A new generation will come up who can take on these complex issues of rights and justice and respect and dignity and care." ...

The Division of Workers’ Compensation has issued a second notice of public comment period beginning on November 21, 2023, for modifying the text of proposed amendments to the Qualified Medical Evaluator (QME) Regulations. The affected regulations are Title 8, California Code of Regulations Sections 1, 11, 11.5, 14, 33, 35, 35.5, 50, 51, 52, 54, 55, 55.1, 56, 57, 63, 10133.54 & 10133.55. (QME Process Regulations). The proposed changes are necessary to bring existing regulations into compliance with amendments to the Labor Code and to clarify the Administrative Director’s authority with respect to the process related to appointment and reappointment of QMEs, which is granted by relevant statutory authority. The proposed regulations are amended to provide greater clarity to the wording. Based upon issues of clarity and to provide ease of interpretation, DWC proposes to update the text of the proposed amendments of the regulations to: - - Provide a clearer definition of and the reason for encryption of Electronic Transmissions. - - Delete unnecessary phase-in periods for certain regulations as a result of the new anticipated effective date of April 1, 2024 for the proposed regulations. - - Add a new regulation that delineates the new continuing education hour and subject matter requirements that apply to applications for reappointment after April 1 2026. - - Clarify the definition "new medical legal evaluation" for purposes of satisfying criteria for QME unavailability. - - Provide criteria for the Administrative Director’s use of the exercise of discretion in the QME reappointment process. - - Provide examples of good cause, provide clarity to the regulatory language and delete confusing language where necessary in the regulations involving reappointment and denial of reappointment for QMEs. - - Add and in some cases delete language and hours of accreditation to clarify the proper interpretation of regulations related to the Continuing Education requirements. - - Define and add criteria for good cause in the exercise of discretion by the Administrative Director in granting an appeal of denial of reappointment when a hearing is anticipated. - - Correct typographical errors. DWC has also published a Supplemental Initial Statement of Reasons to provide additional information about the need for and economic impact of the proposed regulations. DWC will consider all public comments. The 15-day notice of modification to the text of the proposed regulations and the text of the regulations can be found on DWC’s rulemaking page. Written comments should be addressed to: Maureen Gray, regulations coordinator Department of Industrial Relations Division of Workers' Compensation 1515 Clay Street, 18th floor Oakland, CA 94612 The Division’s contact person must receive all written comments concerning the proposed modification to the regulations no later than December 11, 2023. Written comments may be submitted by facsimile transmission (FAX), addressed to the contact person at (510) 286-0687. Written comments may also be sent electronically (via e-mail), using the following e-mail address: dwcrules@dir.ca.gov ...

The Labor Commissioner’s Office has settled a lawsuit against Glendale-based Calcrete Construction Inc. for over $1 million for multiple wage theft violations, including overtime and paid sick leave law violations, affecting 249 construction workers. "This employer used various illegal tactics to circumvent paying owed wages," said Labor Commissioner Lilia García-Brower. "My team responded aggressively to recover stolen wages and expose systemic violations." The Labor Commissioner’s Office began investigating in October 2016 after receiving a complaint from the Carpenters / Contractors Cooperation Committee, a union-affiliated, non-profit organization that advocates for workplace compliance within the construction industry. The investigation found that Calcrete failed to pay workers for overtime hours, allocate pay for sick leave and provide proper wage statements. As one example, Calcrete employees regularly worked 45-68 hours a week but were not paid overtime during a two-year period audited from 2014-2016. The settlement will pay workers overtime wages owed with interest, with payments ranging from $344 to $20,893. The Labor Commissioner’s Office filed a lawsuit against Calcrete Construction, Inc. in August 2017, seeking $6,300,338 for multiple wage theft violations affecting a group of 249 construction workers and the willful misclassification of 175workers as independent contractors. The lawsuit claimed that beginning in August 2016, Calcrete forced its workers under threat of termination to sign contracts stating they were independent contractors.The company then used staffing agencies Dominion Staffing and Southeast Personnel Leasing to pay the workers. Calcrete employees typically worked 10-12 hours Monday through Friday and eight hours on Saturday. They were paid only their regular hourly rate and not for the 18-28 hours of overtime they regularly worked. Thisunderpayment occurred for a nearly two-year period from 2014-16, the lawsuit specifies. Enforcement investigations typically include a payroll audit of previous years to determine minimum wage, overtime, and other labor law violations, and to 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 minimum wages plus interest. The Department of Industrial Relations’ Division of Labor Standards Enforcement (California Labor Commissioner’s Office) combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices. Workers employed at Calcrete beginning August 1, 2014 to September 30, 2016 should contact the LCO at 833-LCO-INFO (833-526-4636), as they may be entitled to owed wages and damages under this settlement agreement ...

Governor Newsom signed Senate Bill No. 497 into law, the "Equal Pay and Anti-Retaliation Protection Act." The new law amends California Labor Code sections 98.6, 1102.5, and 1197.5 to create a "rebuttable presumption of retaliation" if an employee experiences an adverse employment action within 90 days of engaging in any protected activity covered by the specified sections. This new law, which will become effective on January 1, 2024, also entitles a prevailing plaintiff civil penalties for each violation. As explained by the California Supreme Court, Section 1102.5 of the Labor Code reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation. (Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66). Under current law, penalties up to $10,000 can be assessed against an employer that is an LLC or corporation when the employer retaliates against an employee who was a whistleblower. According to the author of this new law, "the fear of retaliation is still one of the main reasons workers are afraid to report labor violations. This is especially true for Black and Latinx workers who are more likely to experience retaliation. The Department of Industrial Relation’s most recent report of retaliation complaints filed with the Labor Commissioner’s Office found that just over 90% of retaliation claims were dismissed. In large part this is because when a complaint is filed with the Labor Commissioner’s office, the worker currently has the burden of proving that they were retaliated against because they were exercising their rights under the Labor Code. This burden of proof is extremely challenging for a worker who does not have the same level of access to information as the employer." The new law amends Labor Code Section 98.6 to allow the Labor Commissioner to identify retaliation more quickly. If a worker files a retaliation complaint with the Labor Commissioner and shows that their employer took a negative action against them within 90 days after exercising rights under the Labor Code, the employer must prove a legitimate reason for taking that negative action. Similarly, this new law amends Labor Code Section 1197.5 to add a similar "rebuttable presumption" for any retaliation complaint under the Equal Pay Act. This kind of "rebuttable presumption" of retaliation already exists in other parts of the Labor Code, and is working well in protecting workers from immigration-related retaliation, such as threats of deportation, and retaliation for use of paid sick leave. This new law also strengthens Labor Code Section 1102.5, the California Whistleblower Protection Act, by providing some financial relief to whistleblowers who report retaliation. Existing law requires some employers to pay a penalty of up to $10,000 to the State. The law would make sure that money goes directly to the worker victimized by illegal retaliation. The bill would also amend the law so that employers can’t use other corporate forms, such as limited liability partnerships, to evade paying penalties. A coalition, including the California Chamber of Commerce, opposed the rebuttable presumptions in SB 497. It claimed there "is no justification for creating a presumption in these two code sections. Courts already take temporal proximity into account when evaluating retaliation claims and the courts should be allowed to consider other factors relevant to the specific case. Creating a presumption simply allows claims to proceed that should not be moving forward, which wastes valuable court and litigant resources." The California Labor Commissioner's Office reported that in 2020, the Retaliation Complaint Investigation Unit (RCI) received 6,063 complaints. Of those cases, 2,067 were accepted for investigation by the Labor Commissioner. Among the complaints filed, 1,897 of them were for alleged retaliation prohibited under Section 98.6, 1,450 were for alleged retaliation prohibited under Section 1102.5, and 127 were for alleged retaliation prohibited under Section 1197.5 ...

According to survey data collected by the American Physical Therapy Association (APTA), the job vacancy rate for physical therapists in outpatient settings last year was 17%. The "Hiring Challenges in Outpatient Physical Therapy Practice" report is based on analysis of survey responses from 133 outpatient physical therapy practices across the U.S. representing 2,615 clinics and nearly 11,000 full-time equivalent employee positions that included PTs, PTAs, and support staff. In terms of practice size, 62% of respondents were practices with between one and four sites; 4.7% reported owning more than 50 sites. The survey was conducted between May 25 and June 16 in collaboration with Vault Consulting. In broad terms, the report reveals that the coronavirus pandemic ramped up an already-existing shortage of personnel in outpatient clinics, but that relocation and pay - rather than concerns about the pandemic - are the main factors driving employees' decisions to leave a clinic. The result: vacancy rates that have reached "significant" levels, according to the report. Among the findings: - - The total vacancy rate reported by practices averaged 16%. Vacancy rates were highest for PTs, at 17%, followed by 14% for support personnel, and 13% for PTAs. Nearly 80% of respondents reported at least a 5% vacancy rate across all positions. - - When asked to compare the number of job openings they had before the pandemic with current openings, 60% of respondents said vacancies had increased, with 40% of those estimating that vacancies had grown by 50% or more since 2019. - - Nearly 41% of practices reported more turnover in the first part of 2022 compared with the same time period in 2019, with 18.5% reporting less turnover in 2022 compared with 2019. - - When asked to rank why they think employees left their clinics, 37.3% of the business owners cited relocation as the primary reason, with 67.8% placing it in the top three reasons they lost employees. Pay was also a frequently cited reason for leaving, with 25.4% of respondents saying it was the primary reason for employee loss and 63.5% placing it among the top three. - - Work-life balance figured heavily into the owners' perceptions of why they lost employees, with 77.1% of respondents placing the issue in the top three reasons, and 22.9% saying it was the primary reason for employee loss. - - Respondents believe that concerns about COVID-19 did not play a big factor in employee loss, with only 1.7% of owners saying it was the primary reason and 11.9% placing those concerns among the top three reasons for leaving. Wait times are generally long across the nation, as patients tell of waiting weeks or even months for appoint-ents while dealing with ongoing pain or post-surgical rehab. But the crunch is particularly acute in rural areas and places with a high cost of living, like California, which has a lower ratio of therapists to residents - just 57 per 100,000, compared with the national ratio of 72 per 100,000, according to the association. A follow up report by California Healthline said that the reasons are multifold. The industry hasn’t recovered from the mass defection of physical therapists who fled as practices closed during the pandemic. In 2021 alone, more than 22,000 PTs - almost a tenth of the workforce - left their jobs, according to a report by the health data analytics firm Definitive Healthcare. And just as baby boomers age into a period of heavy use of physical therapy, and covid-delayed procedures like knee and hip replacements are finally scheduled, the economics of physical therapy are shifting. Medicare, whose members make up a significant percentage of many PT practices’ clients, has cut reimbursement rates for four years straight, and the encroachment of private equity firms - with their bottom-line orientation - means many practices aren’t staffing adequately. There’s a shortage of physical therapists in all settings, including hospitals, clinics, and nursing homes, and it’s likely to continue for the foreseeable future, said Justin Moore, chief executive of the physical therapy association. "Not only do we have to catch up on those shortages, but there are great indicators of increasing demand for physical therapy," he said ...

Two married former Tustin Police Officers have been charged with numerous felonies related to false workers’ compensation claims they filed with the City of Tustin, claiming they both suffered chronic back pain due to wearing their full duty belt and vest while on duty that prevented them from working. Video surveillance, and the couple’s own photos and videos, showed the former officers engaged in an active lifestyle while being paid workers’ compensation wages for their injuries. The couple was documented vacationing in Mammoth that included mountain biking and boating, flying internationally to go on a scuba diving trip as well as working on various home improvement projects. Kendal Hurd, 40, and her husband, Kyle Hurd, 38, have both been charged with multiple felony counts of insurance fraud as well as multiple counts of perjury or attempted perjury. If convicted of any of the charged felonies, they will lose any pension benefits that accrued from the date of the commission of the crime and they will be prohibited from working as peace officers in the future. Kendal Hurd faces a maximum sentence of 11 years in state prison if convicted on all counts. Kyle Hurd faces a maximum sentence of nine years and six months in state prison if convicted on all counts. Kendal Hurd worked as a police officer for the City of Santa Barbara for 2 ½ years before joining the Tustin Police Department in April 2015. Kyle Hurd worked as a police officer for the City of Montclair for three years before joining the Tustin Police Department in June 2014. They were terminated in July 2021. Tustin Police Officer Kyle Hurd filed a workers’ compensation claim on December 7, 2018, claiming he was suffering constant back pain as a result of wearing his duty belt and gear, as well as getting in and out of his patrol car. Less than a year later, on October 16, 2019, after returning to work from the international scuba trip, Kendal Hurd filed a nearly identical workers’ compensation claim as her husband, alleging that her chronic back pain resulted from wearing her duty belt and vest as well as twisting while getting in and out of her patrol vehicle. The Hurds both told their workers’ compensation doctors that their pain increased with activity and improved with rest. They never disclosed to their doctors that they in fact were capable of doing much more than what they represented. The City of Tustin initiated the surveillance after both Kendal and Kyle Hurd had been receiving medical care for numerous months for the same condition without seeing improvement. Surveillance revealed the couple engaging in active lifestyles, including sliding down a water slide, lifting children, riding bikes, paddle boarding, and going to Pilates classes, as well as spending time playing in the water at Lake Mission Viejo. Those activities directly contradicted what the Hurds told their doctors and what they testified to at their depositions under oath. Kendal Hurd claimed she couldn’t lift more than three pounds unless supervised during physical therapy and she could not stand for longer than five minutes without experiencing severe pain. After Kyle Hurd was suspended, it was discovered that he sent a text to one of his friends that bragged about receiving unnecessary medical treatment because he was a good actor. Senior Deputy District Attorney Pam Leitao of the Insurance Fraud Unit is prosecuting this case ...