The U.S. Department of Labor has published the final rule, “Federal Register – Improving Protections for Workers in Temporary Agricultural Employment in the United States” effective on June 28, 2024.

The final rule strengthens protections for temporary agricultural workers by making several changes to H-2A program regulations to bolster the Department’s efforts to prevent adverse effect on workers in the U.S. and ensure that H-2A workers are employed only when there are not sufficient able, willing, and qualified U.S. workers available to perform the work.

These changes include empowering workers to advocate on behalf of themselves and their coworkers regarding working conditions; improving accountability for employers using the H-2A program; improving transparency and accountability in the foreign labor recruitment process; requiring seat belts in most vehicles used to transport workers; enhancing existing enforcement provisions; improving transparency into the nature of the job opportunity by collecting additional information about owners, operators, managers, and supervisors to better enforce program requirements; clarifying when a termination is “for cause” to protect essential worker rights; and revising provisions and codifying protections that are outdated, unclear, or subject to misinterpretation in the current regulations.

The final rule also strengthens protections for temporary agricultural workers when employers fail to properly notify workers that the start date of work is delayed, and clarifies and streamlines procedures to prevent noncompliant employers from using the Employment Service.

The Department of Labor will host a public webinar on Thursday, June 6, 2024, to educate employers, agricultural associations, farm labor contractors, farmworkers, advocates, and other interested members of the public on the changes to the H-2A and Wagner-Peyser Employment Service programs made by the 2024 Farmworker Protection Final Rule.

Participants of this webinar will learn from the Office of Foreign Labor Certification, the Office of Workforce Investment, and the Wage and Hour Division about the key aspects of this rule.

The Final Rule will become effective June 28, 2024, and OFLC will begin accepting applications subject to the provisions of this rule on August 29, 2024.

Additional Information

– – Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States
– – Frequently Asked Questions
– – H-2A Employer’s Guide to the Final Rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States”
– – Flyer: Protections for Workers Employed Under the H-2A Program (English and Spanish)
– – Flyer: Protections for U.S. Workers Under the H-2A Program (English and Spanish)
– – Proposed rule

Arasely Soto was injured during a routine medical procedure and had to retire from her job as a public school teacher. She sued her medical providers for medical malpractice and also sought disability retirement benefits from the California State Teachers’ Retirement System (CalSTRS).

The Sotos attended a CalSTRS benefits planning session in January 2018. CalSTRS gave them information and documents about applying for disability benefits. The documents explained CalSTRS’s “[r]ight of subrogation” as follows: “[I]f you pursue a claim against a third party for the same impairment that entitles you to a disability benefit from CalSTRS, you must notify us. This is true even if the claim has not yet resulted in a court action. [¶] CalSTRS has the right to participate in the claim by filing our own action against the responsible party, intervening in your claim, or filing a lien against any judgment you may recover. [¶] If you don’t notify CalSTRS and you recover – or have already recovered – a monetary sum from the third party, you may be required to reimburse CalSTRS for part of the costs of your disability benefit.”

One day after the Sotos’ benefits planning session with CalSTRS, they released their claims against Dr. Borna in exchange for a six-figure settlement. Ten days later, Arasely filled out an application for disability benefits. Her application stated that her injuries were caused by employees of the hospital, including Dr. Borna.CalSTRS acknowledged receipt of Arasely’s application for disability benefits in February 2018. That same day, the court in the malpractice action granted the Sotos’ request to dismiss Dr. Borna from the lawsuit.

In May 2018, the Sotos released their claims against the hospital in exchange for a seven-figure settlement. Eight days later, the Sotos dismissed the malpractice action with prejudice.

CalSTRS brought suit against the Sotos, seeking to enforce its right to subrogation or reimbursement. The complaint alleges that CalSTRS is entitled to be reimbursed for Arasely’s disability benefits from her settlement with the malpractice defendants.

CalSTRS moved for summary adjudication on its declaratory relief cause of action, and the Sotos moved for summary judgment. In connection with both motions, the Sotos argued that Civil Code section 3333.1 bars any subrogation claim that CalSTRS would have asserted against the malpractice defendants.

Subdivision (a) of section 3333.1 authorizes a defendant in a medical malpractice action to introduce evidence of a variety of ‘collateral source’ benefits – including health insurance, disability insurance or worker’s compensation benefits.” Subdivision (b) of the statute provides, in turn, that ‘[n]o source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of a plaintiff against a defendant.”

In opposition, CalSTRS argues that (1) CalSTRS was not a source of collateral benefits for purposes of section 3333.1; (2) Arasely’s disability retirement benefits were never introduced as evidence in the malpractice action; and (3) the statutes governing CalSTRS’s right of subrogation were enacted after section 3333.1, and the later-enacted statutes prevailed.

The trial court ruled in favor of Cal/STERS. The Court of Appeal affirmed the trial court in the published case of Soto v. Super. Ct. -E081902 (May 2024). It expressed no opinion on the parties’ legal arguments concerning the applicability of section 3333.1 in general.

The Legislature enacted section 3333.1 in 1975 as part of the Medical Injury Compensation Reform Act (MICRA), a wide-ranging statutory scheme designed to reduce the cost of medical malpractice insurance ‘by limiting the amount and timing of recovery in cases of professional negligence. MICRA addressed the problem in numerous ways, including by revising certain legal rules applicable to medical malpractice litigation. (

Education Code section 24500 grants CalSTRS “a right of subrogation” for the amounts CalSTRS “paid and became obligated to pay as disability retirement allowances, disability allowances, family allowances, or survivor benefit allowances.” (Ed. Code, § 24500; see Ed. Code, § 22174.)

The Legislature enacted the statutes giving CalSTRS a right of subrogation in 1988. (Ed. Code, former §§ 23300-23305, added by Stats. 1988, ch. 380, § 1, pp. 1699-1700, repealed and reenacted as Ed. Code, §§ 24500-24505 by Stats. 1993, ch. 893, §§ 1-2, pp. 4867, 4973-4974.) According to the legislative history, the CalSTRS subrogation provisions were “patterned” on the subrogation provisions governing the California Public Employees’ Retirement System (CalPERS).

“The CalPERS provisions also incorporate the workers’ compensation statutes, and the pertinent language of the CalSTRS and CalPERS subrogation provisions is nearly identical.”

The workers’ compensation subrogation provisions bar double recovery by an employee who claims workers’ compensation benefits “and also seek[s] damages for the employee’s injury or death from negligent third parties.”

Section 3333.1, subdivision (a), does not specify how jurors should use the collateral source evidence, but “the Legislature apparently assumed that in most cases the jury would set plaintiff’s damages at a lower level because of its awareness of plaintiff’s ‘net’ collateral source benefits.

But the employer’s consent is not required if the settlement includes only the employee’s claim for damages that will not be paid by workers’ compensation benefits. (Lab. Code, § 3859, subd. (b); Marrujo, at p. 978.) That is, the employee may segregate their claim from that of the employer and settle it without the employer’s consent. (Board of Administration v. Glover (1983) 34 Cal.3d 906, 913 (Glover); Marrujo, at p. 978.)

If the employee segregates and settles their claim in that manner, then the settlement is not subject to the employer’s claim for reimbursement of workers’ compensation benefits, while the employer retains its subrogation right “against the alleged tortfeasor to recover payments it had made to its employee.” (Glover, at p. 914; Marrujo, at p. 978; Lab. Code, § 3860, subd. (b).) But if the employee settles an unsegregated claim (i.e., a claim that includes both the employer’s claim for reimbursement of benefits and the employee’s claim for damages not compensated by benefits), then the employer may seek reimbursement out of the settlement proceeds.

The Sotos did not offer any evidence that the malpractice defendants sought to introduce evidence of Arasely’s disability retirement benefits in the underlying action, so section 3333.1 was never triggered. In addition, if the Sotos had offered such evidence, then section 3333.1 would be irrelevant. The same evidence would tend to show that CalSTRS has no reimbursement claim against the Sotos for reasons independent of section 3333.1.

Bertha Perez sustained injury to her back while working for World Variety Produce as a produce packer on August 27, 2010. On May 1, 2011, she underwent surgery, and lien claimant, Monrovia Memorial Hospital, provided the employer’s carrier, Zurich North America, with an invoice for $67,497.95.

Pursuant to the recommendations made by its bill review company, Zurich paid $15,857.48. Monrovia Memorial Hospital filed its lien for the balance of its invoice.

On May 6, 2015, a WCJ ordered lien claimant and defendant to forward all relevant documentation and/or evidence as to the value of the lien claimant’s services to a jointly selected bill review expert, Stelzner and Kyle Consulting.

On March 14, 2016, the matter proceeded to a lien conference and the parties set the matter for trial. Over the next few years a number of hearings took place regarding the issues surrounding the lien of Monrovia Memorial Hospital.

On September 18, 2018, defendant filed a Petition for Restitution/Reimbursement in which it alleged that “[r]ather than provide the information to IBR as directed by the Court, the lien claimant submitted the billing again to defendant which accidentally paid it in full.” Zurich requested reimbursement for the $51,640.47 check issued to Monrovia Hospital on May 16, 2018 for unjust enrichment. On October 26, 2018, the matter proceeded to trial on defendant’s claim for restitution and defendant’s petitions for sanctions, costs and fees.

On January 3, 2019, the WCJ issued Amended Findings and Orders, ordering lien claimant to pay restitution in the sum of $51,640.00 as well as sanctions, costs and attorneys’ fees under section 5813 and WCAB Rule 10561. Lien claimant sought reconsideration of the WCJ’s January 3, 2019 Amended Findings and Orders. On March 25, 2019, the WCAB granted reconsideration based upon a lack of substantial evidence to support the WCJ’s findings.

Because the WCJ did not admit any exhibits or testimony during the October 26, 2018 trial, the WCAB panel was unable to determine whether lien claimant would be unjustly enriched if it retained the disputed payment or whether sanctions were justified. Thus it rescinded the WCJ’s decision and returned the matter to the trial level for further proceedings.

The matter appeared again for trial on September 23, 2019, at which time the parties submitted exhibits and testimony. On November 8, 2019, the WCJ issued the disputed F&O, finding that, pursuant to the IBR calculation issued on November 12, 2015, the reasonable value of lien claimant’s services was $15,857.48, which defendant had previously paid.

The WCJ also ordered that lien claimant pay defendant $51,640.00 in restitution as a result of unjust enrichment. The WCJ also found that lien claimant and its representative employed bad faith, frivolous litigation tactics in violation of section 5813 and WCAB Rule 10561 warranting sanctions in the amount of $2,500.00 payable to the WCAB. The WCJ also awarded defendant costs and fees to be determined by subsequent court order.

After this second Petition for Reconsideration was filed by Monrovia, the November 8, 2019 F&O was affirmed in the panel decision of Perez v World Variety Produce –ADJ7447035 (May 2024).

In its Petition for Reconsideration, lien claimant contends that the WCJ erred by 1) awarding restitution to defendant, as there is no evidence of unjust enrichment, and 2) awarding sanctions, costs, and fees, as there is no evidence that it engaged in bad faith or frivolous conduct in violation of section 5813 or WCAB Rule 10561. Both assertions were rejected by the WCAB panel.

“Restitution is an equitable remedy which has primarily been utilized by courts to prevent unjust enrichment. Under certain circumstances it has been held that administrative tribunals such as the [WCAB] may appropriately employ equitable remedies. Such use by the Board would seem particularly justified, for example, when fraud has been charged and proven.” (American Psychometric Consultants, Inc. v. Workers’ Comp. Appeals Bd. (Hurtado) (1995) 36 Cal.App.4th 1626, 1645-1646 [60 Cal.Comp.Cases 559], citations omitted.)

In this case, the WCJ found that lien claimant engaged in improper conduct leading to unjust enrichment, where it circumvented defendant’s typical processes for handling disputed lien claims. Specifically, the WCJ found that lien claimant intentionally bypassed defendant’s internal procedures by demanding payment from its medical review department, rather than its claims department, and that lien claimant knew or should have known that the resulting payment in full was made in error, particularly where the bill amount was still being litigated.

Here, the WCJ found that sanctions should issue as a result of lien claimant’s willful failure to comply with the court’s May 6, 2015 Findings and Order requiring it to forward all documentation showing the value of its services for IBR for roughly three years.

The California Department of Industrial Relations and the Labor Commissioner’s Office completed the first cycle of funding for the Workers’ Rights Enforcement Grant Program, which provides opportunities for public prosecutors in California to develop and implement wage theft enforcement programs in their regions.

This funding creates opportunities for public prosecutors in California to prosecute wage theft and deter employers from engaging in unlawful labor law practices in the workplace. The grants will enable prosecutors to address wage theft cases in their jurisdictions and provide resources so they can address exploitative labor industry trends, barriers workers confront in reporting violations and obstacles to holding perpetrators accountable within their respective communities.

Labor Commissioner Lilia García-Brower said “Wage theft is a persistent problem, and this funding helps address it in local communities across our state. The 17 applications we received demonstrate prosecutors’ commitment to curtail and eradicate this abusive behavior. We look forward to continuing our work with public prosecutors, community organizations and industry leaders to eliminate this serious and costly crime.”

The 17 public prosecutors who applied for the grant will receive awards as detailed below:

Alameda District Attorney – $335,935
Contra Costa District Attorney – $720,000
Fresno City Attorney – $720,000
Long Beach City Prosecutor – $414,392
Los Angeles City Attorney – $317,543
Los Angeles County Counsel – $475,000
Los Angeles District Attorney – $733,351
Napa District Attorney – $102,531
Oakland City Attorney – $425,655
Orange County District Attorney – $750,000
San Diego City Attorney – $669,251
San Diego District Attorney – $750,000
San Francisco City Attorney – $410,000
San Francisco District Attorney – $160,451
San Mateo District Attorney – $739,396
Santa Clara County Counsel – $679,220
Sonoma District Attorney – $147,275

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.

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