The California Labor Commissioners’ Office announced a settlement in the amount of $1.7 million in a wage theft case that impacts over 550 Wingstop employees in Kern County. This announcement follows a state investigation that uncovered a scheme in which a franchisee disguised the ownership of five Wingstop locations to deprive employees of wages, overtime, and meal breaks.

The LCO began its investigation in November 2020 after receiving a Report of Labor Law Violation for one of the locations.

The investigation revealed that, between 2019 and 2022, five Wingstop businesses were each operating as separate corporate entities, although one owner, Clinton Lewis, operated each site and shared employees between the multiple locations.

By treating each location as a separate employer, Lewis was able to pay workers the lower minimum wage rate designated for smaller employers with 25 or fewer employees.

Employees scheduled to work at more than one Wingstop in one day were denied overtime pay when they worked more than eight hours in a workday or 40 hours in a workweek. Lewis avoided paying missed meal break premiums to staff when scheduling them at more than one location. Additionally, employees were not compensated for off-the-clock work during their time traveling from one location to another.  

This settlement resolves the citations that covered minimum wage violations, contract wage violations, meal period premiums, liquidated damages, and waiting time penalties. Today’s settlement is an update from an earlier announcement.  

Employees who worked at the following Wingstop restaurant locations from June 9, 2019, and April 30, 2022, should contact LCO at (661) 587-3070 as they may be entitled to owed wages and damages under the settlement agreement:

– – 5628 Stockdale HWY, Bakersfield, CA 93309
– – 4580 Coffee Rd B, Bakersfield, CA 93308
– – 2600 Oswell St E, Bakersfield, CA 93306
– – 1523 Panama Ln, Bakersfield, CA 93307  
– – 3800 Gosford 100, Bakersfield, CA 93309  

The Labor Commissioner’s Office in 2020 launched an interdisciplinary outreach campaign, “Reaching Every Californian.” The campaign amplifies basic protections and builds pathways to vulnerable populations, providing critical information to workers and employers on legal protections and obligations, as well as the Labor Commissioner’s enforcement procedures. Californians can follow the Labor Commissioner on Facebook and Twitter.

Appellants Sarah Anoke and other current or former employees initiated arbitration proceedings with Judicial Arbitration and Mediation Services to resolve employment-related disputes with X. Anoke’s employment contract with X provides for arbitration of such disputes.

On March 7, 2023, the arbitrator emailed an invoice for $27,200, X’s share of the initial fees for the 15 individual arbitrations here, to all counsel. The invoice stated that “[p]ayment is due upon receipt.” Anoke’s counsel mistakenly paid the invoice the same day. As a result, when X’s counsel accessed the arbitrator’s online portal on March 8, the system listed the status of the invoice as “[c]losed” and indicated that $27,200 had been “[p]aid” on the invoice.

Anoke’s counsel notified the arbitrator of the error on March 8, and the arbitrator issued a refund check on March 21. Anoke’s counsel apparently did not notify X that it had paid the fees or requested a refund. Notwithstanding the refund, when the arbitrator emailed counsel for both parties near the end of March to schedule an initial administrative call, the arbitrator represented that – ‘[t]he initial filing fees . . . have now been paid.”

On April 11, the arbitrator emailed counsel for both parties, stating that “[i]t appears [the] billing department may have nulled the original invoice” for the case-opening fees. The email included, as an attachment, a second invoice for X’s share of the case initiation fees, $27,200. The new invoice, dated April 7, indicated that “[p]ayment is due upon receipt.” The arbitrator’s online portal continued to list the earlier invoice as “[c]losed” and “[p]aid.”

On May 5, X remitted payment on the April 7 invoice.

In the superior court, Anoke filed a motion to compel an arbitration in which X is liable for her reasonable attorney fees and costs, a remedy for untimely payment under CCP section 1281.97, subdivision (b)(2).

After a hearing, the court denied relief. The court reasoned that, because the arbitrator nullified the first invoice after Anoke’s attorney mistakenly paid it, and X timely paid the second invoice, X met the statutory deadline. The plaintiffs appealed the denial.

The court of appeal affirmed in the published case of Anoke v. Twitter -A168675 (September 2024).

The purpose of section 1281.97 is “[t]o avoid delay” from nonpayment of the fees needed at the outset of an arbitration, encouraging efficient and prompt resolution of disputes subject to arbitration.

Our Legislature recognized that “[a] company’s strategic non-payment of [arbitration] fees and costs severely prejudices the ability of employees or consumers to vindicate their rights,” particularly when the company refusing to pay the fees is the party who insisted on arbitration in the first place.

By “provid[ing] employees and consumers remedies if a drafting party refuses to pay,” the statute seeks “[t]o ensure that a drafting party cannot unilaterally prevent a party from adjudicating their claims” in arbitration.

Accordingly, section 1281.97 establishes a 30-day time frame for payment of the fees required to initiate an employment or consumer arbitration. As the party that imposed the arbitration clause, the statute refers to X as the “drafting party.” (§§ 1280, subd. (e), 1281.97, subd. (a)(1).) If the fees “are not paid within 30 days after the due date the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration[.]” (§ 1281.97, subd. (a)(1).) When the drafting party is in default, the employee or consumer may (as applicable here) compel an arbitration in which the drafting party is liable for reasonable attorney fees and costs. (§ 1281.97, subd. (b)(2).)

Importantly, the “due date” that triggers the 30-day grace period is set by an invoice from the arbitration provider. Once an employee or consumer initiates an arbitration, the arbitration provider must “immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration.” (§ 1281.97, subd. (a)(2).) “To avoid delay” the arbitration provider must issue the invoices “to the parties as due upon receipt,” unless the agreement states otherwise. (Ibid.) In sum, a default occurs when the arbitration fees go unpaid for 31 days after “the due date” (§ 1281.97, subd. (a)(1)) set by an arbitration provider’s “invoice.” (§ 1281.97, subd. (a)(2).)

“That never happened here. After the arbitrator issued the first invoice, properly marked due upon receipt, Anoke’s counsel immediately paid the invoice in full. When the arbitrator issued a new invoice, also marked due upon receipt, X paid the fees within 30 days. Neither invoice was ever past due for 31 days, as the statute requires for a default.”

“Anoke makes several arguments. None has merit.”

“In these unique circumstances, we conclude that Anoke’s counsel “paid” the first invoice. As Anoke acknowledges, the reasons for a late payment are irrelevant.“

Dignity Health dba French Hospital Medical Center filed its suit against Troy I. Mounts, M.D. and Troy I. Mounts, M.D., Inc., an orthopedic surgeon, to recover an advance paid to him under their Physician Recruitment Agreement.

Dr. Mounts filed a cross-complaint alleging Dignity retaliated against him for complaining about the quality of patient care, interfered with his prospective economic opportunities and engaged in unlawful business practices.

Dignity filed an anti-SLAPP motion to strike the cross-complaint. (Code Civ. Proc., § 425.16.) The trial court denied that motion. In an unpublished February 2022 opinion, the court of appeal reversed the trial court’s order and remanded the matter for the trial court to determine whether Mounts had demonstrated a probability of prevailing on the merits of his claim.

On remand the trial court concluded Mounts had not demonstrated a probability of prevailing because Dignity’s actions were subject to the litigation privilege, the common interest privilege, and barred by the statute of limitations. It therefore granted the motion to strike Mounts’ cross-complaint and ordered him to pay Dignity’s attorney fees and costs.

The court of appeal affirmed the cross-complaint dismissal in the published case of Dignity Health v. Mounts – A167089 (September 2024). The Opinion provides information about the internal disciplinary system within hospitals that are not well known by the workers’ compensation industry.

Dignity hired Dr. Mounts to work in a spine surgery practice at the San Luis Obispo French Hospital Center. Dignity contends that concerns regarding his clinical competence arose almost immediately. At the same time, Mounts complained that he was not getting staff support or adequate time in the operating room to perform complex surgeries. Dignity put his complex surgeries “on hold” and required him to complete a previously scheduled surgery with a second surgeon he had not worked with before.

Disputes regarding Mounts’ practice continued. In December 2015, Dignity’s Chief of the Medical Staff, Chief of Anesthesiology, Vice President of Medical Affairs and the Chair of the Surgery Department requested that Dr. Mounts refrain from operating until they completed a Focused Professional Practitioner Evaluation (FPPE) review. He agreed to this restriction.

Two days later, Dignity’s Medical Executive Committee (“MEC”) sent Mounts a letter notifying him that Dignity would be required to submit a report to the Medical Board of California under Business & Professions Code section 805 (“805 Report”) if the voluntary restriction of privileges lasted longer than 30 days. When Mounts attempted to rescind his voluntary restriction of privileges, the Chief of Staff responded that he could do so, but Dignity could respond by summarily suspending his privileges. A suspension that lasted longer than 14 days would also require an 805 Report.

By the time Mounts’ attorney notified Dignity that he wanted to lift his voluntary restriction, it had already lasted 30 days. Dignity filed an 805 Report with the Medical Board and a report with the National Practitioner Data Bank (NPDB). The NPDB report stated that the “basis for action” was “IMMEDIATE THREAT TO THE HEALTH OR SAFETY.” (Capitalization added.)

After a meeting, the hospital chief of staff called Mounts to advise him that, although nothing was final yet, the committee’s decision was probably not going to be favorable to him. He encouraged appellant to resign his position. Mounts resigned on February 10, 2016. He subsequently lost privileges at two hospitals in California. He was considered for employment at a hospital in Montana and another in Tennessee but lost both employment opportunities

In the Anti-SLAPP motion filed by Dignity in response to his cross-complaint, Mounts did not present evidence that Dignity acted with malice when it engaged in these communications. Unless they were malicious, Dignity’s communications in this category were privileged. Privileged communications cannot form the basis of a claim for retaliation. The trial court’s orders granting the motion to strike and the motion for attorney’s fees were affirmed.

In recent years, California law has moved to increase the use of remote technology in court proceedings. While the pandemic spurred significant advancements in online teleconferencing technology, the use of remote technology in court proceedings has proved to be highly contentious in the Legislature.

As a result of compromises by all stakeholders, the use of remote technology in Superior Courts now generally requires the consent of the various parties and the court reporter’s physical presence in the courtroom to protect the accuracy of the record.

However, utilizing technology to develop court transcripts remains far less settled. Due to the potential for critical errors or failure in the technology used to develop transcripts, the Legislature must proceed with extreme caution in authorizing the use of technology for developing court records.

Indeed, the Legislature has indicated a strong preference for a person to continue to play a role in the development of a record, as utilizing recording technology without some form of human oversight may result in large segments of proceedings being omitted from the record as a result of an error by a recording system.

California courts are rarely able to provide court reporters in civil matters. To this end, starting in 2021, the Legislature allocated $30 million per year to the Judicial Council to increase the number of court reporters available in family and civil law cases. (SB 170 (Skinner), Chapter 240, Statutes of 2021.) Notwithstanding the Legislature’s infusion of funding, and although stakeholders dispute the underlying causes, the Judicial Council has been unable to hire enough court reporters to ensure the availability of accurate records for all litigants.

Recognizing that technology may exist to enable a court reporter to record the official transcript of proceedings in Superior Courts from a remote location, and a new law, AB 3013, just signed by Governor Newsom, authorizes a remote court reporting pilot program to be deployed in 11 superior courts across the state.

The new law establishes the minimum technological standards necessary for remote court reporting to ensure that any record produced by a court reporter working remotely is accurate and functional for use in potential appeals.

Given the often contentious relationship between California’s courts and court reporters, this new law clarifies that court reporters working remotely cannot be treated differently than their peers who physically are working in courtrooms.

Finally, this law requires a report to the Legislature at the conclusion of the pilot program to enable the Legislature to evaluate the program’s success and determine if remote court reporting is a viable option for assisting in the recruitment and retention of qualified court reporters.

The superior courts of the Counties of Alameda, Contra Costa, Los Angeles, Mendocino, Monterey, Orange, San Bernardino, San Diego, San Joaquin, San Mateo, Santa Clara, Tulare, and Ventura are authorized to conduct pilot projects to study the potential use of remote court reporting to make the verbatim record of certain court proceedings.

The WCAB is not part of this pilot project. Nonetheless, it can probably benefit from the results of the study sent to the legislature. There will no doubt be technologies that work better than others, and thus guide further regulation of the WCAB adjudication system.

Justin W. Webster was a San Francisco police officer who was injured in the course of his employment. After a full evidentiary hearing, the administrative law judge denied Mr. Webster’s application for Industrial Disability Retirement (IDR). The administrative law judge found the retirement system’s medical expert more persuasive than Mr. Webster’s medical expert. Specifically, the administrative law judge found Mr. Webster’s medical expert did not rely on “objective evidence.” After the decision, Mr. Webster filed a petition for writ of administrative mandate.

Additionally, Mr. Webster sought to return to work as a police officer. Before Mr. Webster could return to work, he was required to complete a medical examination. After completing this examination, the medical doctor found Mr. Webster was “not fit for duty.”

In a companion workers’ compensation case, another medical doctor found Mr. Webster was not capable of performing his job duties. Mr. Webster filed a second IDR application. The retirement system declined to process his second IDR application.

The superior court granted in part Mr. Webster’s petition for writ of mandate, setting aside the denial of his IDR application. The court rejected the retirement system’s argument that Mr. Webster had failed to exhaust all administrative remedies. The court ruled that requesting a rehearing based upon the same facts and law would have been futile. Finally, the court, relying on the two new medical reports, remanded the case for reconsideration.

The court of appeal affirmed the trial court in the unpublished case of Webster v. S.F. Employees’ Retirement System -A168995 (September 2024).

San Francisco Employees’ Retirement System appeals from the superior court order setting aside an administrative agency’s denial of respondent’s Industrial Disability Retirement (IDR) application and remanding the case to be reconsidered in light of new evidence pursuant to Code of Civil Procedure section 1094.5, subdivision (e). It argues the superior court erred in finding that respondent’s writ was not barred by failing to exhaust all administrative remedies and admitting two new medical reports.

“While it is true the superior court did not reverse or affirm the agency’s decision, the court decided all issues presented to it. The court set aside the agency’s decision denying respondent’s IDR application. Under section 1094.5, the court exercised its discretion to consider the two new medical reports and remand the case back to the agency to reconsider its decision in light of the new evidence. At that point there was nothing left for the superior court to do. Moreover, dismissing the appeal now could moot the issue of whether respondent had exhausted all administrative remedies before he sought a petition of writ of administrative mandate. We therefore conclude the challenged order is appealable.”

“Because the two additional medical reports were not available within 30 days after the hearing officer’s decision had been served, both sides appear to agree the only basis respondent had for requesting a new hearing was ‘that the evidence did not justify the decision.’ “

“Here, the applicable charter section designates the review hearing as permissive not mandatory. Respondent had no new evidence or legal arguments to present at a review hearing where the same judicial officer would be presiding. Requesting a duplicative hearing on the same facts and law would have been meaningless, costly, and inefficient.“

Appellant also contends the superior court erred by admitting two additional medical reports and remanding the matter back to the agency to consider the new reports.

When the Legislature granted the superior court the discretion to receive “relevant evidence which, in the exercise of reasonable diligence, could not have been produced at the administrative hearing,” it reasonably may be inferred that it meant to authorize the receipt of evidence of events which took place after the administrative hearing. (Curtis v. Board of Retirement (1986) 177 Cal.App.3d 293, 299 (Curtis).)

“Here, the court did not err by considering the two medical reports that were prepared after the hearing. Moreover, section 1094.5 gives the court the option to remand the case in light of the new evidence or admit the evidence and proceed with the court’s independent review.”

“Contrary to Appellant’s argument, the court here merely considered the new medical reports in deciding to remand the matter back to the agency; the court did not admit the medical reports into the record.”

“The superior court made a reasonable determination that the new evidence was sufficient to require the agency to reconsider its decision. Indeed, it is preferred ” ‘that the administrative agency should have the first opportunity to decide the case on the basis of all the evidence’ ” and that the better practice is to remand the action in light of the new evidence.