The DWC has posted the 2019 Ethics Advisory Committee’s annual report on its website. The Committee is independent from the DWC, and is charged with reviewing and monitoring complaints of misconduct filed against workers’ compensation administrative law judges.

The EAC is required to make a public report each year summarizing activities in the previous calendar year. Anyone may file a complaint with the EAC. Complaints may be submitted anonymously but must be in writing.

In 2019, the EAC considered and resolved 5 complaints from 2018. Of 27 new complaints received in 2019, it considered 24 and resolved 21. Of those considered, 9 resulted in investigations, 6 of which were concluded.

Two resulted in findings of judicial misconduct.

In one of those cases, a defense attorney, wrote that complainant was reluctant to file a complaint for fear of possible retaliation against the law firm and its clients. Complainant complained that, for some time now, the attorneys at the firm have been under the impression that the judge acts with bias, often prejudging claims, and has exhibited behavior that they would classify as “bullying” of defendants.

In the specific case reported by this attorney, the judge was unprofessional toward complainant. The judge was belligerent and threatening and would not allow complainant to speak, rebut, refute, or explain anything, in violation of Labor Code section 5311.

Based on its review of the investigation, the EAC found that the investigation supported a finding of ethical violations, including ex-parte communications, prejudging the case, and a violation of Canon 3B(4) for failing to be patient, dignified, and courteous. Based upon that conclusion, the EAC recommended further appropriate action by the CJ.

In another case, a lien representative, complained that over 43 lien hearings have been held without a final order on the doctor’s lien. Complainant claimed that since 2011, 30 hearings have been held before the judge, who has deliberately delayed final adjudication of the lien.

Among other claims, the lien claimant reported that rude and punitive approach to hearings is representative of the judge’s treatment of complainant in all hearings. The judge forced the parties to stay until the lunch hour or the end of the day to receive a disposition unless the disposition was settlement, an unopposed continuance, or an order taken off the calendar (OTOC).

The EAC found that the investigation supported a violation of Canon 3B(4) for failing to be patient, dignified, and courteous. Based on that conclusion, the EAC recommended further appropriate action by the CJ.

Courthouse News reports that an attorney for the California Grocers Association told a federal judge Tuesday a city of Long Beach ordinance providing a $4 an hour boost in hazard pay for grocery workers interferes with ongoing labor negotiations and should be blocked.

The Southern California city’s “Premium Pay for Grocery Workers Ordinance” provides the $4 per hour in premium pay for essential grocery workers who face higher risk during the Covid-19 pandemic.

CGA, which represents 6,000 grocery stores across California, filed a federal lawsuit against Long Beach on Jan. 21, claiming companies operate on thin profit margins and that some have already given their workers hazard pay bonuses.

In court papers, attorneys for CGA said the ordinance would result in grocery stores being more crowded and food prices more expensive for customers.

Upon filing its lawsuit in the Central District of California, CGA moved on an ex parte basis for a temporary restraining order blocking enforcement of the ordinance.

The next day, U.S. District Judge Dolly M. Gee, who had been initially assigned to the case, denied CGA’s bid, ruling that the association failed to show how it would be irreparably harmed without emergency action by the court.

Gee also called the threat of city-sanctioned lawsuits against noncomplying grocery stores “speculative,” which the ruling said cannot be the basis for granting a TRO.

The case had since been transferred to U.S. District Judge Otis D. Wright II.

In court papers opposing an injunction, attorneys for Long Beach cited reports of grocery store corporations such as Kroger earning “eye-popping” profits during the pandemic while their frontline workers continue to face potential daily exposure to the novel coronavirus.

In a virtual federal court hearing Tuesday, CGA attorney William F. Tarantino told Wright a preliminary injunction should be granted because the ordinance’s alleged effect on collective bargaining is preempted by the National Labor Relations Act.

To support CGA’s preemption claims, Tarantino cited the U.S. Supreme Court’s 1976 ruling in Machinists v. Wisconsin Employment Relations Comm, which held local governments should not interfere in business that would otherwise be determined by “the free play of economic forces.”

Wright took the matter under submission and indicated a final ruling on the preliminary injunction would be issued soon.

Tuesday’s hearing came on the same day the Los Angeles County Board of Supervisors voted 4-1 to approve an urgency ordinance requiring national grocery and drug stores chains in unincorporated LA County to pay workers an extra $5 an hour in “hero pay.”

The ordinance – which takes effect immediately and is enforceable for the next 120 days – cited frontline workers’ higher risk of contracting Covid-19 and their ongoing labor contributions as justification for the wage increase.

In approximately 2002, Ruben Martinez, and his son, Alex Martinez, opened a medical clinic in Calexico.

In 2009, a chiropractor, Dr. Steven Rigler, moved his practice into the clinic and examined patients who were referred to him by Ruben and Alex and were receiving workers’ compensation benefits.

Dr. Rigler did not pay rent or utilities or contribute to the salaries of clinic staff. In exchange, Rigler permitted Ruben and Alex to determine the providers to whom Dr. Rigler’s patients would be referred for ancillary medical services. These ancillary service providers compensated Ruben and Alex for the referrals, and Ruben and Alex split the referral fees evenly.

In 2010, Gonzalo Ernesto Paredes was the office administrator for an entity called Advanced Radiology, owned by Dr. Ronald Grusd. Ruben Martinez entered into an agreement with Paredes, on behalf of Dr. Grusd, through which Advanced Radiology would pay Ruben a referral fee for patients referred to Advanced Radiology for magnetic resonance imaging (MRI) scans.

Thereafter, Paredes implemented the agreement with Ruben by, among other activities, receiving invoices from Ruben for patient referral fees and arranging payment of those fees to Ruben.

Paredes and Grusd were tried in federal court in 2017. Grusd was found guilty on all 42 counts that went to the jury. The jury hung on the counts against Paredes. The federal case against Paredes was subsequently dismissed by the government, without prejudice, pending his trial on state charges.

A jury in the state court trial found Paredes guilty of 35 counts of offering or delivering compensation for workers’ compensation patient referrals and 16 counts of concealing an event affecting an insurance claim.

The trial court sentenced Paredes to an aggregate term of five years in prison.

On appeal, Paredes claims that the prosecutor committed misconduct during his examination of one of the witnesses and during closing argument by suggesting the existence of facts not in evidence. Paredes also maintains that the trial court erred in excluding, as hearsay, an unavailable witness’s testimony from a prior federal trial. Finally, Paredes contends that there is insufficient evidence to support the verdicts.

The Court of Appeal affirmed the conviction in the unpublished case of People v. Gonzalo Ernesto Paredes.

The appellate court rejected his arguments one by one, and concluded that there was substantial evidence supporting his conviction.

A proposed class action just filed in a federal court in California, alleges Sun-Maid Growers of California has failed to pay proper wages and provide adequate meal and rest breaks to workers at its raisin and dried fruit processing plant.

The plaintiff, who worked for Sun-Maid from September 2016 to March 2020, alleges in the 55-page complaint that the company has unilaterally and unlawfully failed to accurately calculate overtime wages to avoid paying such.

Further, Sun-Maid has allegedly failed to accurately record the amount of time employees worked despite being required by law to do so, and permitted work to be done off the clock without pay, the case says.

More specifically, the lawsuit alleges Sun-Maid required the plaintiff and similarly situated employees to work while clocked out during what was supposed to be off-duty meal breaks. The plaintiff, the suit claims, was from time to time interrupted by work assignments, and there were many days where the man did not even receive a partial lunch, according to the lawsuit. Per the case, Sun-Maid workers were deprived of an off-duty meal period for every five hours worked during a shift, as well as a second off-duty meal period when they were required to work 10 hours.

Further, the lawsuit claims Sun-Maid, from time to time, failed to pay wages, including overtime, for every hour worked, such that employees were in aggregate underpaid wages due to the defendant’s “pattern and practice of unevenly rounding” their hours worked. Instead of receiving overtime at one-and-one-half times their regular rate of pay,

The case alleges Sun-Maid failed to include non-discretionary incentive pay in employees’ regular rates of pay for the purpose of calculating overtime wages. Per the suit, workers were also underpaid when it came to sick pay, as Sun-Maid allegedly failed to pay such at their regular pay rate and instead remitted the wages based on their base rates of pay sans non-discretionary incentives.

The case also alleges Sun-Maid failed to reimburse workers for business expenses, in particular for the required use of their personal cell phones for work purposes.

Sun-Maid has not yet entered an appearance in the federal case, and has not filed any responsive document.