Tag: 2021 News

Supply chain issues in the United States and particularly the role ports in Los Angeles and Long Beach play, have become a hot topic in the news cycle.

Dwell time for containers at terminals is six days, the wait time for on-dock rail is nearly 12 days and it takes 8.5 days on average for containers on the street to find dock space at warehouses. The situation is so bad that a few weeks ago about 65 container vessels were stacked up along the coast waiting to berth and unload.

In addition to the nationwide labor shortage, ports in California face state-specific challenges.

Last week President Biden announced that the Port of Los Angeles will join the Port of Long Beach in operating 24/7 in an attempt to clear the shipyards of cargo containers and allow the dozens of ships anchored offshore to offload their cargo. That should do the trick, right? Only for people who don’t understand how a supply chain works.

According to the California Trucking Association (CTA), there are more than 70,000 predominantly minority-owned independent truckers operating in California. About 17,000 truckers are registered to bring goods into the Los Angeles and Long Beach ports. Many of those are contractors who own or lease their trucks and don’t receive workers’ compensation or other benefits enjoyed by full-time employees.

Many of these independent contractors are hired by large, well known trucking companies, many of them contract with multiple trucking companies, both large and small. Many of the independent contractors are small businesses themselves and utilize employees and contractors. This business model has existed at California ports for many decades.

However, AB5, enacted in 2019, changes the rules for the California trucking industry model of doing business. It sets as law the ABC test for determining whether a worker is an employee or a true independent contractor. And for trucking, the B prong is viewed as making it difficult to hire independent owner-operators as drivers, because it defines a person engaged in the primary activity of the hiring company – like a trucking company hiring a truck driver – as an employee.

There were two AB5/trucking-related cases on the U.S. Supreme Court docket for this term; on October 5 the Court denied certiorari in the Cal Cartage case, but hasn’t yet ruled on another case brought by the California Trucking Association (CTA).

In that case, a federal judge issued an injunction in January 2020 blocking the implementation of the law in the trucking industry until legal challenges could wind their way through the courts. In April the 9th Circuit Court of Appeals ruled against CTA, but enforcement of that order has been stayed pending SCOTUS’ decision, which means the January 2020 injunction is still in effect.

According to an article by Compliance Navigation Specialists, carriers that have been taking the “wait and see” approach on the law and the court’s process are now facing a near-term reality that the independent contractor system might not be possible and will have to face an increase in costs to hire the drivers.Other carriers have been cutting ties with California as the cost of doing business in the state are greater than the reward and pull out of any California operations to shield themselves from the impact of the AB5 law.

And, depending on how SCOTUS rules on a pending case regarding how California’s AB5 applies to the trucking industry, the problem will only get worse. If owner-operators who contract with larger freight companies must be classified as employees there will likely be a huge contraction in trucking capacity in California.

The National Academy of Social Insurance is a non-profit, non-partisan organization made up of the nation’s leading experts on social insurance. Its mission is to advance solutions to challenges facing the nation by increasing public understanding of how social insurance contributes to economic security.

Social insurance encompasses broad-based systems that help workers and their families pool risks to avoid loss of income due to retirement, death, disability, or unemployment, and to ensure access to health care.

The Academy just published its Workers’ Compensation Benefits, Costs, and Coverage – 2019 Data. These data range from benefits, costs, and coverage to Department of Labor data on injuries and fatalities, and data on the overlaps between Social Security disability insurance and the workers’ compensation system. This latest report is issued annually by the National Academy of Social Insurance.

Drawing on data from surveys of workers’ compensation agencies from all 50 states and the District of Columbia, as well as from A.M. Best and the National Council on Compensation Insurance, this is the only report of its kind available free-of-charge for researchers and students, state and federal agencies, workers’ rights and employer advocates, and others.

While overall, total benefits paid rose slightly over the five-year study period from 2015 to 2019, standardized benefits fell, continuing a ten-year trend. Total benefits paid rose 0.4%. Cash benefits increased by 2.0%, but medical benefits declined by 1.1%. Standardized cash and medical benefits fell by 14.0% and 16.7%, respectively, combining for a 15.4% decline in total standardized benefits between 2015 and 2019.

While medical benefits as a share of total benefits have increased in recent decades (with the share attributable to cash benefits shrinking), the national average masks enormous variation across states. In 2019, for example, medical benefits constituted 49.6% of all workers’ compensation benefits paid out, yet they are only 29.8% of benefits in D.C. and 79.1% of benefits paid in Wisconsin.

There are considerable cross-state differences within standardized benefits, where only one state, Hawaii, saw an increase over the study period. Declines ranged from 2.4% in Massachusetts to 30.5% in Tennessee and 33.1% in Oklahoma. Over that period, 24 states observed standardized benefit declines exceeding 15%, and 11 of those states, exceeding 20%.

Total employer costs for workers’ compensation in 2019 were $100.2 billion.

Like benefits, standardized employer costs vary substantially across states from the 15.0% national-average decline over the study period. In Hawaii, standardized costs rose by 1.9%. Decreases in the other states range from 4.5% in Massachusetts to 30.8% in Oklahoma and a massive 40.2% figure in Tennessee. In all, standardized costs declined by more than 15% in 31 states, and by more than 20% in 13 states.

Coverage continued to increase, largely because the labor force has continued to expand, a fairly consistent trend, at very different rates. The only five exceptions are Alaska, Louisiana, North Dakota, West Virginia, and Wyoming. Even in those states, covered wages increased.

In 2019, workers’ compensation covered 144,407,000 jobs across the country, with a total of $8.6 billion in covered wages. Measured by covered jobs, workers’ compensation coverage increased by 3.2% from 2015 to 2017, and by 2.8% in the following two years, for a total increase of 6.2%.

Certain source data are available upon request to Griffin Murphy, gmurphy@nasi.org, or Jay Patel, jpatel@nasi.org.

The California Attorney General announced the filing of criminal charges in Sacramento County Superior Court against Alma Hernandez and Jose Moscoso as a result of a multiagency investigation by the Tax Recovery in the Underground Economy (TRUE) Task Force.

Investigators say the leader of SEIU California and her husband embezzled from a union-run PAC and lied on their taxes for half a decade. Facing multiple felonies, Alma Hernandez resigned her union post Wednesday. SEIU California represents over 700,000 employees in every county of the state.

The California Department of Justice’s Bureau of Investigation began looking into the married couple after an investigation by the Fair Political Practices Commission revealed Hernandez, who was the Executive Director of SEIU California, allegedly embezzled money from an SEIU California-sponsored political action committee (PAC).

The California Franchise Tax Board uncovered alleged underreporting of Hernandez’s and Moscoso’s income from 2014 to 2019. The Employment Development Department (EDD) also identified that Moscoso’s air duct cleaning business allegedly failed to report employees’ wages from 2017 to 2020.

Hernandez previously served as the treasurer of the Working Families for Solorio for Senate 2014 PAC. The complaint alleges that in October 2014, two checks totaling $11,700 were approved by Hernandez and issued by the PAC’s bank account to Moscoso for services he did not provide.

According to the complaint, Moscoso and Hernandez also allegedly filed false joint income tax returns when they underreported $1,427,874 of income to the FTB for tax years 2014 through 2018. The couple are alleged to owe $143,483 in unpaid income tax.

According to court documents, Moscoso allegedly did not disclose to EDD that he employed multiple individuals to work in his air duct cleaning business, resulting in more than $300,000 in unreported wages. Additionally, from 2017 through 2020, Moscoso allegedly failed to file quarterly reports with EDD and failed to pay more than $16,000 in employment taxes.

It would be reasonable to assume that perhaps workers’ compensation premium fraud arose out of the payroll fraud. However, the Attorney General did NOT include workers’ compensation premium fraud as a charge. It is not known if it was investigated or ruled out.

Hernandez faces two counts of grand theft, one count of perjury and five counts of filing a false income tax return with intent to evade.

Moscoso is also charged with five counts of filing a false income tax return with intent to evade, one count of failure to file a report with the Employment Development Department, one count of failure to pay unemployment insurance and training tax, one count of failure to pay disability insurance, one count of failure to file employment tax returns with intent to evade paying taxes, and one count of failure to collect and pay personal income tax.

Both Hernandez and Moscoso are charged with a special allegation of aggravated white collar crime with loss over $100,000.

Arraignment has been set for Friday morning in Sacramento County Superior Court.

Over the past weekend, Southwest Airlines canceled more than 2,000 flights. The mass flight cancellations sparked unsubstantiated claims from some social media users and politicians, including Texas Senator Ted Cruz, that pilots and air traffic controllers had either walked off their jobs or called in sick to protest federal vaccination mandates.

“Joe Biden’s illegal vaccine mandate at work!” Cruz tweeted Sunday. “Suddenly, we’re short on pilots & air traffic controllers. #ThanksJoe.”

Southwest said that bad weather and air traffic control issues were to blame for the cancellations. Southwest, the Southwest Airlines Pilots Association and Federal Aviation Administration have all denied there is any truth to the theories that employee pushback was to blame for the weekend’s issues. Both the company and union have not said how many of the airline’s employees missed work over the past weekend.

Notwithstanding theories about the massive flight cancellations, this October Southwest Airlines Pilots Association (SWAPA) filed a motion for temporary and preliminary injunctive relief against Southwest’s newly announced vaccination mandate in its ongoing lawsuit with Southwest Airlines, initially filed on Aug. 30, and then amended on October 6.

Neither Southwest Airlines or the Southwest Airlines Pilots Association know how many pilots remain unvaccinated against COVID-19, according to union president Casey Murray. The airline told employees last week that they would be required to get the vaccine by December 8, leaving less than two months to enforce the requirement.

The original complaint asserts the airlines are in violation of the Railway Labor Act (RLA), among other things, Sec. 6, which requires the parties to maintain “status quo” until a new agreement is reached. The lawsuit maintains that the carrier can not alter pay rates, rules, and working conditions until a new agreement is reached.

SWAPA alleges that “Most recently, on Oct. 4, 2021, Southwest Airlines unilaterally rolled out a new and non-negotiated COVID vaccine mandate for all employees, including SWAPA. The new vaccine mandate unlawfully imposes new conditions of employment, and the new policy threatens termination of any pilot not fully vaccinated by Dec. 8, 2021. Southwest Airlines’ additional new and unilateral modifications of the parties’ collective bargaining agreement is in clear violation of the RLA.”

“The new vaccine mandate unlawfully imposes new conditions of employment and the new policy threatens termination of any pilot not fully vaccinated by December 8, 2021,” the Southwest Airlines Pilots Association’s lawyers wrote in their legal filing. “Southwest Airlines’ additional new and unilateral modification of the parties’ collective bargaining agreement is in clear violation of the [Railway Labor Act].”

The amended complaint has two counts. Count I, “Failure to Maintain the Status Quo During the Ongoing ‘Major’ Dispute,” and Count II, “Failure to Exert Every Reasonable Effort to Reach Agreement.”

In a statement on the union’s website, its leadership stipulates: “We want to be perfectly clear: SWAPA is not anti-vaccination, but we do believe that, under all circumstances, it is our role to represent the health and safety of our Pilots and bring their concerns to the company.”

A Southwest spokesperson told The Epoch Times that the firm “disagrees with SWAPA’s claims that any COVID-related changes over the past several months require negotiation” and “remains committed to [it’s] employees’ health and welfare and to working with SWAPA, and our other union partners, as we continue navigating the challenges presented by the ongoing pandemic.”

Sanjoy Banerjee M.D.provided billings and doctor’s reports concerned medical services to workers’ compensation patients through three entities that Banerjee owned and operated from a single location in Wildomar California: (1) Sanjoy Banerjee, M.D., Inc., doing business as Pacific Pain Care Consultants (PPCC); (2) Kensington Diagnostics, LLC (Kensington); and (3) Rochester Imperial Surgical Center, LLC (Rochester).

Banerjee presented billings totaling $157,797.01 to Berkshire Hathaway Homestate Companies payable pursuant to the state’s workers’ compensation system, through Kensington and Rochester, for services that Banerjee provided to patients between 2014 and 2016. BHHC paid less than 10 percent of the $157,797.01 amount billed.

Each doctor’s report included the following attestation near the end of the report: “I have not violated Labor Code section 139.3, and the contents of this report and bill are . . . true and correct to the best of my knowledge. This statement is made under penalty of perjury.”

Banerjee was charged with two counts of insurance fraud and three counts of perjury. The charges are based on Banerjee’s alleged violations of Labor Code section 139.3(a), which prohibits physician self referrals to entities where the physician owns a specified financial interest.

According to a BHHC investigator who testified as the only witness at his preliminary hearing, Banerjee was obligated to disclose his financial interests in Kensington and Rochester to BHHC, and BHHC had no business records indicating that Banerjee had made this disclosure.

The superior court denied Banerjee’s motion to dismiss the information as unsupported by reasonable or probable and set a trial on the merits. The Court of Appeal granted his petitions for a writ of prohibition and dismissed the perjury charges, but rejected the petition to the fraud charges (for overbilling) in the published case of Banerjee v. Superior Court.

To date, no published court decision has interpreted Labor Code sections 139.3 or 139.31. The statutes were enacted in 1993 as part of Assembly Bill No. 110, part of a comprehensive package of legislation that reformed the state’s workers’ compensation laws. It was intended to reduce costs and strengthen conflict of interest rules in the workers’ compensation system.

Section 139.3(a) makes it unlawful for a physician to refer a person for specified services “if the physician or his or her immediate family has a financial interes with the person or in, the entity that receives the referral.” A violation of section 139.3(a) is a misdemeanor.

Section 139.31(e) provides: “The prohibition of section 139.3 shall not apply to any service for a specific patient that is performed within, or goods that are that are supplied by, a physician’s office, or the office of a group practice. . . .”  The Court’s interpretation of section 139.31(e) means that the physician’s office exception applies to Banerjee’s financially interested “self-referrals” to his two other legal entities since they are both located in his same Widomar office. Since his alleged violations of section 139.3(a) was the only basis to support the perjury charges, the perjury charges must be dismissed.

The record also supports a strong suspicion that Kensington and Rochester were sham entities, and that Banerjee formed Kensington and Rochester with the specific intent to defraud BHHC through his Kensington and Rochester billings. The Kensington and Rochester billings gave the appearance that the entities were not part of Banerjee’s medical practice but were stand alone, diagnostic testing and surgical centers, operating independently of any physician’s office.

Even though the evidence does not show that Banerjee violated section 139.3(a), the evidence supports a strong suspicion that Banerjee specifically intended to present false and fraudulent claims for health care benefits, in violation of Penal Code section 550, subdivision (a)(6), by billing the workers’ compensation insurer substantially higher amounts through his two other legal entities, between 2014 and 2016, than he previously and customarily billed the insurer for the same services he formerly rendered through his professional corporation and his former group practice.

Thus, the Court granted the writ as to the perjury charges but denied it as to the insurance fraud charges.