In the case of Olson v. California, 62 F. 4th 1206, decided in March 2023 by the Ninth Circuit Court of Appeals, a California-based Uber driver, Nicole Olson, challenged the constitutionality of Assembly Bill 5 (A.B. 5), the California law that redefined many app-based workers as employees instead of independent contractors. WorkCompAcademy reported on this case soon after it was published.

A.B. 5, as amended, codified the “ABC test” adopted by the Supreme Court of California in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 4 Cal. 5th 903 (2018), to categorize workers as employees or independent contractors for the purposes of California Labor and Unemployment Code provisions..However, A.B. 5 exempted a broad swath of workers from the Dynamex presumption.

Within a year of its enactment, A.B. 5 was amended by A.B. 170 and A.B. 2257. Both bills exempted even more workers from the Dynamex presumption.

Lydia Olson, Miguel Perez, Uber, Inc. and Postmates, Inc. filed a law suit in federal court to enjoin the State of California and the Attorney General of California , from enforcing California Assembly Bill 5 against them. The trial court denied a preliminary injunction, and the plaintiffs appealed. The 9th Circuit Court of Appeals heard argument in that case on November 18, 2020. However, on November 3, 2020, shortly before argument, Proposition 22 was adopted through California’s ballot initiative process.

Olson argued that A.B. 5 violated the Equal Protection Clause of the Fourteenth Amendment by creating an exemption for certain app-based businesses, like errand-running and dog-walking, while not exempting ride-sharing and delivery drivers like herself. This, she claimed, constituted unfair discrimination against a specific class of workers. The trial court ruled against her, and she appealed.

The 9th Circuit panel held that, even under the fairly forgiving rational basis review, Plaintiffs plausibly alleged that A.B. 5, as amended, violated the Equal Protection Clause for those engaged in app-based ride-hailing and delivery services. Thus, Plaintiffs plausibly alleged that the primary impetus for the enactment of A.B. 5 was the disfavor with which the architect of the legislation – Assemblywoman Lorena Gonzalez – viewed Uber, Postmates, and similar gig-based business models.
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Additionally, it ruled that Plaintiffs plausibly alleged that their exclusion from the wide-ranging exemptions, including for comparable app-based gig companies, could be attributed to animus rather than reason. The district court therefore erred by dismissing Plaintiffs’ equal protection claim.

The 9th Circuit panel therefore remanded the case for the district court to reconsider Plaintiffs’ motion for a preliminary injunction, considering the new allegations contained in the Second Amended Complaint.

This case was decided and published on March 17, 2023. Subsequently the Attorney General of California filed a Petition for Rehearing on April 28, 2023.

The Attorney General argued in it’s 62 page Petition that the decision was “a highly unusual departure from this Court’s consistent practice of affording States “wide latitude … in managing their economies.” And went on to provide examples such as “The equal-protection analysis in the panel opinion conflicts with the Court’s recent decision in American Society of Journalists (Am. Soc’y of Journalists & Authors Inc. v. Bonta 15 F.4th 954 (9th Cir. 2021)) – and many other decisions of this Court and the Supreme Court treating rational-basis review as “a paradigm of judicial restraint.”

Court Docket entries show a flurry of Amicus briefs were then filed by various interest groups arguing positions supporting the Petition for Rehearing including the states of Arizona, Washington, Connecticut, District of Columbia, Hawaii, Illinois, Maine, Maryland, Commonwealth of Massachusetts, Michigan, Minnesota, New Jersey, New York, Nevada, Commonwealth of the Northern Mariana Islands, Oregon and Vermont.

On December 18, 2023 The Court of Appeals for the 9th Circuit granted the Petition for Rehearing. The order said “Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion is vacated.”

En banc oral argument will take place during the week of March 18, 2024, in San Francisco, California. The date and time will be determined by separate order.

Retired Workers’ Compensation Judge David William “Billy” O’Brien bid a peaceful farewell on December 15th, 2023 at 95 years of age, leaving behind a tapestry of memories woven through his remarkable life. Raised in a humble New Hampshire town, David’s journey began at Plymouth Teacher’s College in 1950, followed by honorable service in the Korean War’s United States Army Counter Intelligence Corps, a testament to his devotion to duty and country.

In 1960, David’s pursuit of knowledge led him to graduate from the University of San Francisco with a law degree. His legal acumen flourished, establishing him as a distinguished figure in workers’ compensation law. For decades, he served as a respected Judge, author and scholar, leaving an indelible imprint on the legal landscape.

Beyond his professional achievements, David’s magnetic storytelling illuminated every gathering, endearing him to all who crossed his path. His warmth, wisdom, and boundless humor resonated with friends, family, and acquaintances.

David is survived by his cherished family, his cherished colleagues and the many friends he made in his life.

David’s absence leaves a void felt deeply by his community. His legacy as a devoted family man, accomplished legal luminary, and captivating raconteur will endure i n the hearts of those privileged to have shared in his extraordinary life.

Professionally he was a member of the California and New Hampshire bars, was admitted to the U.S. District Courts, of New Hampshire and California. He is also a member of the American Bar Association.

He served as a Workers’ Compensation Judge with the California Workers’ Compensation Appeals Board, as an Administrative Law Judge with the California Unemployment Insurance Appeals Board, as a Deputy Commissioner of Corporations for the State of California, and as a Senior Counsel for the State Compensation Insurance Fund.

He has also devoted many years to the private practice of law as both a defense and plaintiff attorney, serves as an expert witness in civil cases and is a Certified Administrator for Self-Insurance Plans.

At 95 he was actively engaged as a partner with the firm of Floyd Skeren Manukian Langevin, LLP at its Westlake Village office.

Judge O’Brien is the author of the textbook “California Workers’ Compensation Claims and Benefits” as well as a pamphlet entitled “California Workers’ Compensation Insurance, Employee Rights and Responsibilities” approved by the Administrative Director for use in educating employees as to their rights and responsibilities in the event of an industrial injury.

And he is the author of a second treatise “California Unemployment, Disability and Paid Family Leave Insurance Programs.”

Contributing authors to these texts are his daughter Bernadette O’Brien Esq., and Brianne Uebelhardt, Esq., who are attorneys with Floyd Skeren, and the firms senior partner John Floyd Esq.,

Both texts are available by subscription at JudgeOBrien.com.

The California Civil Rights Department (CRD) announced reaching an approximately $54 million settlement agreement to resolve allegations that Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (Activision Blizzard) discriminated against women at the company, including by denying promotion opportunities and paying them less than men for doing substantially similar work. Under the agreement, which is subject to court approval, Activision Blizzard will take additional steps to help ensure fair pay and promotion practices at the company and provide monetary relief to women who were employees or contract workers in California between October 12, 2015 and December 31, 2020.

After more than two years of investigation, CRD filed a lawsuit against Activision Blizzard in 2021 for alleged violations of California’s Equal Pay Act and Fair Employment and Housing Act – key civil rights laws that help protect Californians against discrimination. In the lawsuit filed before the Los Angeles County Superior Court, the department sought relief on behalf of the State of California and a class of women employees and contract workers who allegedly experienced discrimination in compensation, promotions, and other aspects of Activision Blizzard’s workplace.

Headquartered in Santa Monica, California, Activision Blizzard is a video game company known for many popular video game franchises played around the world, including “Call of Duty,” “World of Warcraft,” “Guitar Hero,” and “Diablo.”

Today’s announcement is in addition to measures Activision Blizzard has implemented through a separate 2021 consent decree with the U.S. Equal Employment Opportunity Commission and other proactive recruitment and retention steps as described in the company’s 2022 Environmental, Social, and Governance Report.

If approved by the court, the settlement agreement will require Activision Blizzard to:

– – Pay approximately $54,875,000 to cover direct relief to workers and litigation costs. Of the total, approximately $45,750,000 will go to a settlement fund dedicated to compensating workers.
– – Distribute any excess settlement funds to charitable organizations focused on advancing women in the video game and technology industries or promoting awareness around gender equality issues in the workplace.
– – Retain an independent consultant to evaluate and make recommendations regarding Activision Blizzard’s compensation and promotion policies and training materials.
– – Continue its efforts regarding inclusion of qualified candidates from underrepresented communities in outreach, recruitment, and retention.

Women who worked as employees or contract workers for Activision Blizzard in California between October 12, 2015 and December 31, 2020 may be eligible to receive compensation. At this time, no action is needed by individuals covered under the proposed agreement and additional information will be posted on CRD’s website upon approval by the court. If the court approves the settlement, covered workers will receive further information and updates from a settlement administrator.

The settlement announced today comes as a result of the efforts of attorneys in CRD’s Legal Division and at Outten & Golden LLP, with support from CRD investigators.

Since 2018, the U.S. Department of Labor has seen a 69 percent increase in children being employed illegally by companies. In the last fiscal year, the department found 835 companies it investigated had employed more than 3,800 children in violation of labor laws.

As the U.S. Department of Labor’s Wage and Hour Division and Office of the Solicitor continue to find serious illegal employment practices in the meat and poultry processing industries, a California poultry processor and supplier to supermarkets and food distributors has agreed to pay nearly $3.8 million in back wages, damages and penalties after the department found the company endangered young workers recklessly in Southern California.
Division investigators found that The Exclusive Poultry Inc. and related companies established by owner Tony Bran employed children as young as 14 years old to debone poultry using sharp knives and operate power-driven lifts to move pallets. The children also worked excessive hours in violation of federal child labor regulations. The company also retaliated against employees for cooperating with investigators by cutting their wages.

Bran and The Exclusive Poultry are subject to a consent judgment entered by the U.S. District Court for the Central District of California on Nov. 16, 2023, after an investigation and litigation by the department. The investigation included two poultry plants controlled by Bran in City of Industry and La Puente, California.  Investigators found that Bran set up several front companies to employ workers at these plants. Those front companies were Meza Poultry LLC, Valtierra Poultry LLC, Sullon Poultry Inc. and Nollus’s Poultry LLC. The department has also obtained consent judgments against these companies and their owners.

The judgments resolve the lawsuit filed by the department based on the division’s findings that, in addition to their unlawful employment of children and retaliation against workers, the employers failed to pay workers their required wages.

Specifically, the division determined that Bran, The Exclusive Poultry and their associated companies willfully failed to pay required overtime wages to their employees, paying them either a piece rate or a straight time hourly rate even when they worked 50 or 60 hours per week. Investigators also found the employers failed to maintain required records when they intentionally omitted workers from payroll records.

Upon substantiating the child labor and overtime violations, the department’s Office of the Solicitor obtained from the U.S. District Court a temporary restraining order and an injunction to prevent Bran and The Exclusive Poultry from shipping into commerce any “hot goods,” in this case, poultry produced in violation of the Fair Labor Standards Act and any goods from a location where the department observed child labor.

As directed by the consent judgment, Bran and The Exclusive Poultry must pay $3.5 million in back wages and damages to affected workers. Of that total, $300,000 in punitive damages and $100,614 in back wages will be paid to workers who faced retaliatory conduct. In addition, the employers must pay $201,104 in civil money penalties assessed by the division for the child labor and willful violations.

The judgment also requires Bran and The Exclusive Poultry to retain a monitor for three years to ensure future compliance and to show a hiring preference for those workers they fired following the department’s search of the poultry plants. Under that preference, Bran and The Exclusive Poultry must offer these workers employment first before hiring others.

The division’s West Covina District Office conducted the investigation and the department’s Office of the Solicitor in Los Angeles filed the complaint and secured the consent judgments. In conducting the enforcement action, the department worked with the Los Angeles County Office of Immigrant Affairs and its community partners, who provided support services to workers, and with the U.S. Marshals, who assisted with the execution of a search warrant at the two poultry processing plants.

The department is seeking any current or former employees of The Exclusive Poultry, Meza Poultry, Valtierra Poultry, Sullon Poultry or Nollus’s Poultry who believe they may be owed back wages. These employees should contact the West Covina District Office at (626) 966-0478.

The consent judgment is part of the department’s ongoing effort to combat child labor abuses and wage theft in the poultry and meat processing industries. The action follows the division’s investigation of Packers Sanitation Services Inc. and its assessment of $1.5 million in penalties for child labor violations in February 2023. In that case, investigators discovered that the company employed at least 102 children – from 13 to 17 years of age – in dangerous occupations and had them working overnight shifts at 13 meat processing facilities in eight states.

In March 2023, the department recovered $353,141 in back wages for 322 workers in Alabama and North Carolina who were denied overtime wages. Between 2020 and 2023, the department obtained judgments against three La Puente poultry processing companies requiring them to pay more than $1.2 million for denying overtime wages to 113 workers deliberately and using intimidation to hide their wage thefts. Investigators are also probing into the death of a 16-year-old worker at a Mississippi poultry plant.

James Suess, was employed as a police corporal by the City of Pomona. In May 2016, the Pomona Police Department Internal Affairs Unit received a citizen complaint against Suess, filed by Vasken Asadourian, a relative of one of Suess’s neighbors, alleged that Suess assaulted him.

On July 9, 2016, Suess’s neighbor, Neshan Boymoushakian, filed another complaint against Suess regarding his harassment of his family. Suess was notified of both complaints and was interviewed during both investigations, and was placed on paid administrative leave pending completion of these investigations.

On June 7, 2017, the City served Suess with a Notice of Intent to Terminate on the basis of misconduct including battery, unabated harassment of his neighbor, and dishonesty during his interviews.

Suess requested a pre disciplinary meeting with his department, which was held on July 18, 2017. At that meeting, Suess suggested he “suffered physical, mental and emotional trauma’ and need[ed] proper care and treatment.” While it was unclear to Pomona Police Chief Paul Capraro whether Suess was suggesting his conduct was the result of a disability, he “did not provide any documentation substantiating [his] alleged disability or request any accommodations related to this incident near the time of incident or early in the investigation.”

On August 3, 2017, the City notified Suess he was terminated from his employment as a police corporal effective August 4, 2017. The City provided Suess with notice of his right to appeal the decision within 15 days. Suess did not appeal.

In April 2017, several months before his termination, Suess filed a workers’ compensation claim based on his involvement in a 2012 officer-involved shooting incident which occurred on February 26, 2012. After a high-speed chase on that date, a suspect pointed a shotgun at Suess and another police officer from a different jurisdiction (West Covina) who pursued the suspect into Pomona. The other officer shot and disarmed the suspect. The suspect was later convicted of attempted murder of Suess and other officers.

Suess did not request psychological services at the time. He continued to perform his duties as a police officer until his off duty misconduct led to disciplinary proceedings in 2016. His workers’ compensation claim was “denied based on a violation of [the] statute of limitations L[abor] C[ode ]5410, and the lack of current substantial medical evidence.” As with his termination, Suess did not appeal the denial of his workers’ compensation claim.

In April 2019, twenty months after his termination of employment from the City, Suess filed a disability retirement election application with respondent CalPERS based on posttraumatic stress disorder, among other disabling conditions. CalPERS determined he was “not eligible for disability retirement.” Accordingly, on July 22, 2019, CalPERS denied Suess’s application. An ALJ affirmed the denial of his CalPERS claim after an administrative appeal challenging CalPERS’s decision.

His petition for a writ of mandate was denied by the Superior Court. And the decision of the trial court was affirmed by the Court of Appeal in the unpublished case of Suess v. California Public Employees Retirement System -G062730 (December 2023).

On appeal Suess contends that the ALJ misapplied the Haywood (Haywood v. American River Fire Protection District (1998) 67 Cal.App.4th 1292) and Smith cases (Smith v. City of Napa (2004) 120 Cal.App.4th 194), which Suess argues “were inapposite to this case.” The Court of Appeal disagreed.

As explained in Haywood, “where, as here, an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, the termination of the employment relationship renders the employee ineligible for disability retirement . . . .”

“Nor are disability retirement laws intended as a means by which an unwilling [-to-faithfully-and-competently-perform] employee can retire early in derogation of the obligation of faithful performance of duty. The pension roll is a roll of honor – a reward of merit, not a refuge from disgrace; and it would be an absurd construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who, on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior.”

In Smith, the appellate court held that a terminated employee may qualify for industrial disability retirement if he or she had a “matured” right to do so before his or her termination for cause.

Smith recognized an exception to the rule set forth in Haywood: “[c]onceivably, there may be facts under which a court, applying principles of equity, will deem an employee’s right to a disability retirement to be matured and thus survive a dismissal for cause.” But Smith held the disability evidence must be “unequivocal” to constitute a matured right.

Suess claims Smith and Haywood are distinguishable because he was “deprived of the ability to present medical evidence of his condition [by] a violation by the City [of] its own policy regarding the provision of professional counseling to officers following an officer-involved shooting.” Suess suggests he would have had more compelling evidence of a disabling PTSD condition if the City had adhered to that policy. He also suggests CalPERS “abused its discretion” in denying his application for disability retirement “without obtaining medical evidence available to it from Respondent City of Pomona.”

The Court of Appeal again disagreed. The ALJ correctly observed in her ruling, “an applicant for disability retirement has the burden of proving . . . that he is entitled to it.” (Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327, 1332.) Suess did not establish an unequivocal matured right to disability retirement under Smith where his own testimony indicated he was not incapacitated by the 2012 shooting.