Aaron Brown became an inmate at Los Angeles County jail on approximately February 16, 2018. On March 8, 2018 he transferred to “wayside” facility. One week later, he signed an agreement to participate in the conservation work program, which provided “work time” credits of 1 ½ days for every one day of work in the program.

On March 22, 2018, Brown slipped and fell while walking to the coffee pot at the print shop where he participated in the conservation work program. He reported the injury immediately and was examined at urgent care. He returned to urgent care the next evening due to hip pain. Hours later, he was released on the early release program.

Los Angeles County denied his claim for workers’ compensation benefits claiming there was a lack of and employment relationship.

After conclusion of a trial, the WCJ found that Brown was not an employee for purposes of workers’ compensation benefits. The WCJ relied upon an ordinance passed in 1970 that states that county inmates may be forced to labor and that such county inmates shall not be considered an employee for the purposes of workmen’s compensation insurance. Also submitted into the record is the Inmate Worker Agreement.

Brown’s petition for reconsideration was granted, and the WCAB panel concluded that he was an employee at the time in the case of Brown v County of Los Angeles/Sheriff’s Department – ADJ11278318 (December 2022).

Labor Code section 3351 defines “employee,” and section 3357 provides that “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” This is a rebuttable presumption.

Penal Code section 4017 provides that county inmates working in the suppression of fire are considered employees of the county. It does not speak as to the employee status of county inmates who do not work in fire suppression. The employee status of county inmates are thus left to the courts to decide.

In making this determination, courts have looked at whether the work that the inmate performed was “voluntary” or “compulsory” as an incident to incarceration and whether there was consideration for the work performed. If an inmate was performing compulsory work as an incident to penal servitude, he is not an employee and has no rights to workers’ compensation benefits. (Parsons v. Workers’ Comp. Appeals Bd. (1981) 126 Cal.App.3d 629 [46 Cal.Comp.Cases 1304].)

In deciding whether an inmate was performing compulsory or voluntary work, trial courts may ask the following questions (the Rowland factors): (1) Did the county require the worker to work as a condition of incarceration? (2) Did the inmate worker volunteer for the assignment? and (3) What consideration were received, if any; for example, monetary compensation, work-time credits, freedom from incarceration, etc. (Rowland v. County of Sonoma (1990) 220 Cal.App.3d 331, 333-334.).

There is a difference in determining employee status between persons incarcerated in state prison and person incarcerated in county jail. State inmates are statutorily included in the definition of “employee” while county inmates are subjected to a compulsory test to determine their employee status.

In more recent laws, employer control is a major factor in determining employment status (the more employer control, the more likely employment status is found, whereas here, the opposite effect results when applying the compulsory test, in that the more control the county exercises, the more likely the inmate’s work is found to be compulsory without the protections of an employment relationship.

The language in a local ordinance with respect to assigning work to inmates is not determinative, although it may be considered in determining whether the inmate’s work is compulsory or voluntary.

In applying the compulsory test above using the Rowland factors, the WCAB panel concluded that applicant’s work at the time was voluntary. Accordingly, it concluded that applicant is an employee of the county and entitled to workers’ compensation benefits.

Hospital overcrowding and healthcare access challenges have prompted two counties in Central California to issue emergency declarations in less than a week. Meanwhile, the largest health system in the region has gone out of network with several commercial insurance plans.

According to the story in Becker’s Hospital Review. the emergency declarations over healthcare access largely stem from the recent closure of Madera (Calif.) Community Hospital, the city’s only hospital for about 150,000 residents. It officially shut its doors at midnight on Dec. 30, after Trinity Health’s plan to buy the hospital fell through because the health system didn’t accept the conditions set forth by California Attorney General Rob Bonta, The Fresno Bee reported Jan. 3. The Madera County Sheriff’s Office declared a local state of emergency on Dec. 29, citing the “significant impact” the closure will have on the community.

“The lack of hospital services in Madera County is expected to strain local resources deployed within Madera County, thereby depleting ambulance and response resources such as law enforcement and fire,” the sheriff’s office wrote in a Facebook post. “By proclaiming a local state of emergency we are formally requesting help from state and federal officials.”

The closure means residents in Madera will have to travel at least a half hour to other hospitals, many of which are in neighboring Fresno County and already overcrowded, Madera County officials said during their Dec. 29 meeting.

In response, Fresno County proclaimed its own emergency declaration on Jan. 3, citing the additional strain the Madera hospital’s closure has put on other area hospitals amid a surge in respiratory viruses. The Fresno County Board of Supervisors also said local emergency services were operating under an “assess and refer” policy, which diverts non-emergency patients from hospitals to other sources of care, and that it adopted the emergency resolution to emphasize the need for assistance at the state and federal level, according to the Fresno Bee.

Fresno County’s largest health system, Clovis, Calif.-based Community Health System, operates four hospitals, a cancer institute and other outpatient facilities in the area.

On Dec. 31, in-network contracts expired between Community and several commercial payers, including UnitedHealthcare, Cigna and Anthem Blue Cross. A system spokesperson told Becker’s Jan. 4 the involved parties are still actively negotiating to reach agreements.

“As Community negotiates in good faith we must ask commercial health plans to acknowledge the unprecedented cost challenges of delivering care to the residents of the Central Valley and join us in reaching a fair and reasonable agreement,” the system wrote on its website.

A spokesperson for UnitedHealthcare told The Fresno Bee Dec. 19 that the system asked for an “egregious and unreasonable” rate increase.

“This is not affordable or sustainable,” the spokesperson said. “We’ve offered [Community Health System] market-competitive rate increases that will ensure its hospitals and facilities continue to be fairly compensated for the care they provide to our members.”

The affected facilities include Community Regional Medical Center, Fresno Heart & Surgical Hospital, Community Behavioral Health Center, Community Subacute & Transitional Care Center, Community Home Health and Community Health Partners, and Clovis Community Medical Center.

On Jan. 2, Centene’s Health Net and Community signed an in-network agreement covering commercial, Medicare and Medi-Cal plans.

Employers – and their vendors – need to be aware of the significant changes that are now in effect as the California Privacy Rights Act (CPRA) became operative on January 1, 2023.

The implementation of privacy rights in California began In 1972, when California voters amended the California Constitution to include the right of privacy among the “inalienable” rights of all people.

Since California voters approved the constitutional right of privacy, the California Legislature has adopted specific mechanisms to safeguard Californians’ privacy, including the Online Privacy Protection Act, the Privacy Rights for California Minors in the Digital World Act, and Shine the Light, but consumers had no right to learn what personal information a business had collected about them and how they used it or to direct businesses not to sell the consumer’s personal information.

San Francisco real estate developer Alastair Mactaggart began advocating for consumer privacy a few years ago, after a Google engineer he met at a dinner party told him Americans would be shocked by how much the company knows about us. Mactaggart successfully pushed the Legislature to pass a landmark data privacy law in 2018, the California Consumer Privacy Act of 2018 (CCPA). into law.

The CCPA gave California consumers the right to learn what information a business has collected about them, to delete their personal information, to stop businesses from selling their personal information, including using it to target them with ads that follow them as they browse the internet from one website to another, and to hold businesses accountable if they do not take reasonable steps to safeguard their personal information.

Mactaggart soon discovered that this law passed by the California legislature needed some changes, so he drove the effort to put Prop. 24 on the 2020 ballot. And voters seemed to have agreed with him.

The California Privacy Rights Act of 2020 (CPRA), also known as Proposition 24, was a California ballot proposition that was approved by a majority of voters after appearing on the ballot for the general election on November 3, 2020. This proposition expands California’s consumer privacy law and builds upon the California Consumer Privacy Act (CCPA) of 2018, which established a foundation for consumer privacy regulations, with an array of consumer privacy rights and business obligations with regard to the collection and sale of personal information.

The new CPRA took effect on Dec. 16, 2020, but most of the provisions revising the CCPA did not become “operative” until Jan. 1, 2023, applying to personal data collected on or after January 1, 2022. The CCPA is codified at Cal. Civ. Code § 1798.100 et seq., and the regulations are found at 11 CCR §§ 999.300 et seq.

CPRA did not replace the CCPA. The CPRA is more accurately described as an amendment of the CCPA. The California Privacy Protection Agency is a new agency, created by the CPRA, which is vested with “full administrative power, authority, and jurisdiction to implement and enforce” the CCPA.

CPRA eliminated the California Consumer Privacy Act’s (CCPA) exemption for employee personal information. Workers now have the same rights as any consumer. This includes requirements that are currently in effect under the CCPA as well as the new requirements added under the CPRA.

CPRA applies only to employees that are California residents, based on the definition of consumer. Businesses with a presence in multiple jurisdictions in the United States can consider applying a uniform approach, but should keep in mind employment laws in those other jurisdictions and any applicable data privacy laws in other jurisdictions. Notably, recent comprehensive data privacy laws passed in Virginia, Colorado, Utah and Connecticut exempt personal data collected in the context of employment.

Employers must provide notice of employees’ rights under the CPRA and give employees a way to tell the employer about their exercise of these rights. The employer has limited time to respond to a request and must properly document all responses.

Business-to-business transactions are now subject to the CPRA. It is not clear how this will apply to worker’s compensation claims administrators who receive information from an employer.

In actions by the California Attorney General, businesses can face penalties of up to $7,500 per intentional violation or $2,500 per unintentional violation (but there is an opportunity to cure any alleged violation within 30 days after receiving notice of the alleged violation). In actions brought by consumers for security breach violations, consumers may recover statutory damages not less than $100 and not greater than $750 per consumer per incident or actual damages, whichever is greater. In actions for statutory damages, consumers must first provide businesses with written notice and an opportunity to cure.

Consumers may also seek injunctive or declaratory relief, as well as any other relief the court deems proper. Businesses may also be subject to an injunction in actions brought by the Attorney General.

The University College Hospital in London researchers were trying to reel in some of the surgical trauma inherent in all surgery. That trauma, better known as local inflammatory response, could be, they hypothesized, a cause of sub-optimal TKA patient outcomes.

A team from University College Hospital in London, United Kingdom designed a study to check that hypothesis and the results, “Inflammatory Response in Robotic-Arm-Assisted Versus Conventional Jig-Based TKA and the Correlation with Early Functional Outcomes.” was published in the November 2, 2022, edition of The Journal of Bone and Joint Surgery. And the study was reviewed in an article just published in Orthopedics This Week (OTW).

Andreas Fontalis, M.D., M.Sc., M.R.C.S. co-author on the research explained to OTW, “There is high incidence of patient dissatisfaction following total knee arthroplasty (TKA), with up to 20% of patients reporting dissatisfaction in an otherwise uncomplicated TKA. The exact etiology is unclear; however, it has been speculated that the local inflammatory response precipitated by surgery may be implicated.”

“Our group recently conducted and disseminated the results of a randomized controlled trial studying the systemic inflammatory response in robotic-arm-assisted versus conventional TKA. We found that robotic-arm-assisted TKA was associated with a transient reduction on the 7th postoperative day and with less iatrogenic soft tissue injury and bone trauma. Conceptually, we hypothesized that it could also be associated with a reduction in local inflammation.”

“Furthermore, robotic-arm assistance has features that could translate to a reduced local inflammatory response such as the haptically controlled saw blade and stereotactic boundaries.”

“The surgical workflow during the conventional technique also involves the use of intramedullary femoral referencing and cutting blocks associated with production of substantial metal debris; all of which could be responsible for a more pronounced inflammatory response.”

“We therefore thought it important to objectively study the local inflammation incited by the two procedures and investigate whether any correlation was evident with functional outcomes.“

The researchers looked at 30 patients who had TKA for knee osteoarthritis – 15 of whom had traditional TKA and 15 who had robotic-arm-assisted TKA. They obtained data on the inflammatory markers IL-6, IL-8, and tumor necrosis factor (TNF)-alpha.

“In our study,” commented Dr. Fontalis to OTW, “robotic-arm assistance was associated with lower postoperative levels of IL-6 measured in the drain fluid at 6 and 24 hours and lower levels of IL-8 in the drain fluid at 6 hours. We also noticed that pain scores in the robotic-arm-assisted group were significantly lower on days 1,2 and 7 and that both the local and the systemic responses were correlated with pain.”

“We were surprised by how pronounced the differences were with respect to IL-6 levels at the 24-hour post-operative mark, which could reflect the ability of robotic technology to reduce bone and soft-tissue injury by averting multiple cuts and by more precisely executing the preoperative plan.”

“Our study furthers evidence of the advantages of robotic arm surgery. Larger studies and clinical correlation may lead to the increased adoption of enhanced technologies such as robotic-arm-assisted surgery in order to improve patient outcomes.”

In 2020, activism among players at academic Institutions sky-rocketed. In addition to social rights issues, player groups sought open communication between players and university and NCAA leadership, and, ultimately, a “college football players’ association” to represent them.

And these players at Academic Institutions have been gaining more power as they better understand their value in generating billions of dollars in revenue for their colleges and universities, athletic conferences, and the NCAA. And their litigation is being closely followed by employment law communities.

In February 2021, General Counsel for the National Labor Relations Board, Jennifer Abruzzo, issued a memorandum (GC 21-08) on the status of college athletes as “employees” under the National Labor Relations Act. Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act,.

The student athletes also found support from the United States Supreme Court when it decided Alston v NCAA 141 S. Ct. 2141 (2021) in June of last year. SCOTUS recognized that amateurism in college sports has changed significantly in recent decades, and ruled that the NCAA can’t use the‘amateurism’ label to break antitrust laws.

Justice Kavanaugh, in his concurring opinion in Alston, went further. He strongly suggested that the NCAA’s remaining compensation rules also violate antitrust laws and questioned “whether the NCAA and its member colleges can continue to justify not paying student athletes a fair share” of the billions of dollars in revenue that they generate. Moreover, he suggested that one mechanism by which colleges and students could resolve the difficult questions regarding compensation is by “engag[ing] in collective bargaining.”

This SCOTUS decision is likely a precursor to more changes to come in college athletics. Specifically, commentators argue that, as courts “continue to chip away at NCAA restrictions on benefits to student-athletes, more compensation that is untethered to academics brings student-athletes more fully within ‘employee status’ under the law.”

After these successful legal developments, a group that advocates for college athletes in California filed unfair labor practice charges in February 2022, with the National Labor Relations Board on behalf of football players and men’s and women’s basketball players at UCLA and the University of Southern California. The charges, made by the National College Players Association, also name the NCAA and the Pac-12 Conference, essentially claiming that the association and the conference jointly employ the athletes along with the schools.

The filings follow a similar effort started by another athlete-advocacy group, the College Basketball Players Association, which filed a charge against the NCAA. Both bids come in the wake of the National Labor Relations Board’s general counsel memorandum in September.

Following this filing, on December 15, 2022, the Regional Director of the Los Angeles Region of the National Labor Relations Board the NLRB’s Division of Advice has directed the NLRB Region to pursue the NCPA’s unfair labor practice (ULP) charges against USC, the Pac-12 Conference, and the NCAA as joint, statutory employers of USC football players, men’s basketball players, and women’s basketball players.

At the request of NLRB’s Division of Advice, the NCPA agreed to withdraw its ULP charge against UCLA, a state funded school, but will continue against USC a private institution, and the NLRB’s Los Angeles Region will now take action to force a settlement with the employers to end the ULPs or prosecute the employers and go to trial.

If upheld, USC football and basketball players’ employee status under joint employers (college,conference, and NCAA) will ultimately apply to all FBS football players and Division I basketball players at private schools.

If the Pac-12 and NCAA are found to be employers, it could open the doors for athletes at other Football Bowl Subdivision schools to argue that they are employees, even if they attend public schools such as UCLA.

The NCPA’s case with the NLRB is the latest in a string of unionization efforts among college athletes and their advocates. Another recent effort came in 2014 and 2015, when Northwestern football players attempted to unionize. The NLRB declined to accept jurisdiction in the case, however, saying at the time that it did not have jurisdiction over public schools.