Tag: 2021 News

Marian Garcia began her employment with Poker Flat in 2006 when she was hired to be Poker Flat’s office manager. Poker Flat is a property owners association located at Lake Tulloch in Calaveras County.

Poker Flat maintained a boat launch and docks on the lake and charged association members to use these facilities. Members would pay a fee for a boat sticker and gate card to access the gated community and boat launch. At some point a financial discrepancy came to the attention of the Association, and Garcia was placed on administrative leave while an accounting firm investigated the issue. Her absence resulted in a greater work burden for her assistant Stacy Halstead.

Her assistant became frustrated over her working situation, and posted an expletive ridden message on Facebook about her situation, blaming Garcia as the “thief” who was responsible.

Subsequently the accountant’s report recounted significant irregularities, including a lack of deposited money to match member payment entries in the ledger book. The following day, Garcia’s employment with Poker Flat was terminated effective immediately

Marian Garcia sued her former employer, Poker Flat Property Owners Association, Inc., alleging she was wrongfully terminated in retaliation for reports she made to Poker Flat’s board members concerning sexual harassment and other claimed violations of law.

The trial court granted summary judgment in Poker Flat’s favor. With respect to Garcia’s wrongful termination and retaliation causes of action, the trial court concluded Poker Flat’s evidence established that Garcia’s termination was for a legitimate, non-retaliatory basis. And that she failed to demonstrate any causal nexus between her complaints about Poker Flat’s claimed misconduct, “occurring in almost every case years before her eventual termination,” and that termination.

The Court of Appeal affirmed the dismissal in the unpublished case of Garcia v Poker Flat Property Owners Association.

The Court noted that “the trial court’s ruling must be affirmed because Garcia’s causes of action for wrongful termination and retaliation fail as a matter of law and her remaining causes of action against Poker Flat are either barred by workers’ compensation exclusivity or also fail as a matter of law.”

Poker Flat’s showing of a nonretaliatory reason for terminating Garcia’s employment entitled the association to judgment as a matter of law unless Garcia could “show there was nonetheless a triable issue that decisions leading to [her] termination were actually made on the prohibited basis of [retaliation].”

Labor Code section 3602, subdivision (a) establishes the exclusive remedy provisions, which applies unless certain exceptions are met. Subdivision (b) of this section sets forth three circumstances in which “[a]n employee . . . may bring an action at law for damages against the employer, as if this division did not apply,” none of which apply in this case.

Nearly 150 former workers of an elder-care business in West Hills will be paid more than $8.3 million in a wage theft investigation that found employees were subjected to “oppressive” conditions and paid as little as $2.40 hourly, according to the state Labor Commissioner’s Office.

The Oct. 1 judgment will compensate 148 employees who worked at six Adat Shalom Board & Care locations. It upholds wage-theft citations issued to the business and owner Angelica Reingold in 2018.

The facilities, which have since been re-branded as Land of Peace, are all in West Hills with various addresses on Kittridge Street and Sale Avenue.

Pilipino Workers Center, a nonprofit that helps Filipino workers and their families, referred the case to the California Commissioner’s Office and assisted in identifying employees during the investigation.

The Labor Commissioner’s Office opened its investigation in June 2017 after receiving a report of labor law violations. The investigation uncovered that from July 2014 to July 2017, the caregivers at the six facilities in West Hills were:

– – Paid less than the minimum wage for each hour they worked.
– – Not paid overtime for working 24-hour shifts, six days a week.
– – Not relieved from their duties to take meal or rest breaks.
– – Provided pay stubs that withheld key information such as hourly rate of pay and total number of hours worked.

The live-in caregivers were responsible for monitoring and caring for elderly residents and hospice patients, many of them suffering from Alzheimer’s or dementia. The caregivers were paid fixed amounts ranging from $1,500 to $1,800 per month, or $2.40 to $2.88 per hour.

Aquilina Soriano Versoza, the center’s executive director, said employees at the care facilities could sleep at certain times but were still on call 24 hours a day. “They listened to monitors and had to leave their doors open so they’d be ready to respond,” she said. “They had to ask permission to leave if they needed to run to the store.”

Residential care workers, leaders from Pilipino Workers Center and other supporters held a press conference Wednesday to announce the Labor Commissioner’s decision. The judgment includes:

– – $1,623,384 for minimum wages owed
– – $1,939,112 for unpaid overtime
– – $2,540,675 in liquidated damages
– – $152,441 for meal period wages owed
– – $2,100,405 in prejudgment interest

Founded in 1997, Pilipino Workers Center (PWC) is a non-profit 501(c)3 that organizes the low-wage Pilipinx community in Southern California to demand better living and working conditions. PWC provides support for human trafficking survivors, immigration services, affordable housing, workforce training, education on workers’ rights, wage theft enforcement, free tax preparation, and a cooperative for homecare workers.

The District Court of Central California on Wednesday awarded a former Walmart pharmacist with $27 million in total damages, agreeing that the retail giant routinely denied her work breaks and overtime pay.

According to the report on CourtHouse News, the case was originally filed by former Walmart pharmacist Afrouz Nikmanesh in Orange County Superior Court in 2015, but was later moved to the District Court of Central California.

Nikmanesh said Walmart told her to obtain her immunization certification, which would allow her to provide on-site immunizations to pharmacy patients, but refused to compensate her for the time she spent studying and preparing for the exam. She also claimed that getting the certification increased her workload several times over, but said Walmart refused to provide additional staffing to meet the increased demand.

The ruling includes $40,000 for economic losses; $100,000 for non-economic losses; $60,000 for future non-economic losses; and $27.3 million in punitive damages.

In the original complaint, Nikmanesh claimed she was denied overtime wages along with meal and rest breaks, forced to perform work off the clock studying for and taking the immunization certification exam and given inaccurate wage statements that didn’t account for the hours she actually spent working.

She said Walmart enacted a policy prohibiting its pharmacists from leaving the pharmacy unattended, adding that this made it impossible for her to take her legally mandated meal and rest breaks. Because of a shortage of pharmacists who could cover for her, she said she was effectively forced to work throughout their shifts without pause.

Walmart also committed numerous pharmacy violations and instances of noncompliance with state law, according to the plaintiff, including charging Medicare beneficiaries above the Medi-Cal reimbursement rate for prescriptions and failing to provide eligible patients with a Medicare discount.

She also said Walmart failed to report necessary data to the Controlled Substance Utilization Review and Evaluation System, otherwise known as the CURES program, a database of controlled substance prescriptions dispensed throughout California which requires pharmacists to file weekly reports with the California Department of Justice.

Nikmanesh reported these violations to her supervisors sometime between July 2013 and September 2014 and asked that they investigate and correct the various compliance issues. Walmart responded by firing Nikmanesh in September 2014, which she claims was solely in retaliation for her complaining about their non-compliance with state laws.

The company also failed to reimburse Nikmanesh for business expenses, didn’t give her a bonus that she earned, refused her request to host a health fair promoting the pharmacy, unfairly denied her promotions and gave her a poor performance review shortly after she complained about their illegal practices, according to the lawsuit.

“The Jury of 8 unanimously found that Ms. Nikmanesh’s reporting of Walmart’s overcharging Medicare customers over the age of 65 and persons under the age of 65 with disabilities for their medications and not properly reporting the dispensement of controlled substances to the Department of Justice under the Controlled Substance Utilization Review and Evaluation System program was a substantial motivating reason for Walmart’s decision to retaliate against and discharge her,” explained Dayton B. Parcells III, lead attorney for the plaintiff.

Representatives for Walmart were not immediately available for comment.

Courthouse News reports that the U.S. Supreme Court declined an emergency application to stop the enforcement of a Covid-19 vaccine mandate for health care workers in Maine.

Maine Governor Janet Mills, a Democrat, instituted the mandate in late September requiring health care workers to be fully vaccinated by Oct. 29, or risk losing their jobs. Several health care workers challenged the mandate, citing in their complaint beliefs that prevent them from receiving a Covid-19 vaccine because of “the vaccines’ connections to aborted fetal cell lines,” among other religious reasons.

After a federal district court judge denied the health care workers injunctive relief last week, they quickly filed their emergency application with the U.S. Supreme Court.

But Justice Stephen Breyer denied the application without prejudice Tuesday afternoon.

The Supreme Court has previously used the emergency docket – sometimes called the shadow docket – to reject vaccine mandates challenges from public school teachers in New York and students and employees from Indiana University, but this case marks the first time the court addressed a statewide Covid-19 vaccine mandate.

“We are pleased that the Supreme Court is ready to consider this case if we do not get relief at the First Circuit Court of Appeals or if the lower court does not rule by October 29,” Mathew Staver, attorney for the plaintiffs and Liberty Counsel founder and chairman, said in a statement. “As of Monday, our case is now fully briefed at the court of appeals. We look forward to an expedited ruling. There is no question that Gov. Janet Mills cannot nullify federal law and the First Amendment to the U.S. Constitution.”

Staver and the plaintiffs did not have to wait long for the First Circuit to weigh in. Shortly after the Supreme Court’s denial, a three-judge panel of the First Circuit also ruled against the plaintiffs, rejecting their request for a preliminary injunction.

“While we do not diminish the appellants’ liberty of conscience, we cannot find, absent any constitutional or statutory violation, any error in the district court’s conclusion that the rule promotes strong public interests and that an injunction would not serve the public interest,” U.S. Circuit Judge Sandra Lynch, a Bill Clinton appointee, wrote in the 35-page opinion.

Now, the case is likely headed straight back to the Supreme Court.

According to Maine’s vaccination data, over 85% of all health care workers across the state’s facilities were vaccinated as of September.

Erika Spence filed an application for adjudication of claim alleging that on July 30, 2017 she sustained industrial injury to her right foot while playing in a basketball tournament with other women from the Los Angeles Police Department called the Menehune Basketball Invitational Tournament held at a facility in the City of La Puente, California and hosted by a private organization.

At the trial on the sole issue of AOE-COE, Spence testified that no one encouraged or pressured her to play on the women’s basketball team. There would not be any negative consequences if she did not join the team, nor would there be any promotions or benefits if she did join. Her participation on the team was voluntary. Participating in tournaments was also voluntary.

Defendant presented the testimony of Sergeant Edward Acosta along with an excerpt of the 2017 LAPD Manual Vol. 3, in which Sergeant Acosta testified that, while basketball is on a list of approved activities, the tournament in which applicant was injured did not meet the requirements outlined in the LAPD Manual.

Based on this evidence, the WCJ issued the F&O finding that the applicant’s injury occurred AOE/COE. The LAPD petition for reconsideration was granted, and the WCAB panel found that she did not sustain injury AOE-COE to her right foot in the case of Spence v City of Los Angeles, ADJ 10987859 (10/6/2021)

Labor Code section 3600(a)(9) bars compensation for an injury Where the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.

Pursuant to Ezzy v. Workers’ Comp. Appeals Bd. (1983) 146 Cal.App.3d 252, 260 [48 Cal.Comp.Cases 611].) evaluation of whether an injury is barred under section 3600(a)(9) requires a two-prong test: (1) whether the employee subjectively believes his or her participation in an activity is expected by the employer, and (2) whether that belief is objectively reasonable.

In this case, based on applicant’s testimony, the first prong of Ezzy was not met. That is, applicant did not establish that she subjectively believed that participation in the Menehune Basketball Invitational Tournament was required.

Additionally, the panel noted that note that departments have the ability to limit the scope of potential liability by designating and/or pre-approving athletic activities or fitness regimens (Young v. Workers’ Comp. Appeals Bd. (2014) 227 Cal.App.4th 472, 482; citing, Taylor v. Workers’ Comp. Appeals Bd. (1988) 199 Cal.App.3d 211.) (Taylor).)

In this case, the LAPD Manual specifically outlined the conditions under which injury resulting from athletic activity will be considered on duty.