Tag: 2021 News

Courthouse News reports that an attorney for the California Grocers Association told a federal judge Tuesday a city of Long Beach ordinance providing a $4 an hour boost in hazard pay for grocery workers interferes with ongoing labor negotiations and should be blocked.

The Southern California city’s “Premium Pay for Grocery Workers Ordinance” provides the $4 per hour in premium pay for essential grocery workers who face higher risk during the Covid-19 pandemic.

CGA, which represents 6,000 grocery stores across California, filed a federal lawsuit against Long Beach on Jan. 21, claiming companies operate on thin profit margins and that some have already given their workers hazard pay bonuses.

In court papers, attorneys for CGA said the ordinance would result in grocery stores being more crowded and food prices more expensive for customers.

Upon filing its lawsuit in the Central District of California, CGA moved on an ex parte basis for a temporary restraining order blocking enforcement of the ordinance.

The next day, U.S. District Judge Dolly M. Gee, who had been initially assigned to the case, denied CGA’s bid, ruling that the association failed to show how it would be irreparably harmed without emergency action by the court.

Gee also called the threat of city-sanctioned lawsuits against noncomplying grocery stores “speculative,” which the ruling said cannot be the basis for granting a TRO.

The case had since been transferred to U.S. District Judge Otis D. Wright II.

In court papers opposing an injunction, attorneys for Long Beach cited reports of grocery store corporations such as Kroger earning “eye-popping” profits during the pandemic while their frontline workers continue to face potential daily exposure to the novel coronavirus.

In a virtual federal court hearing Tuesday, CGA attorney William F. Tarantino told Wright a preliminary injunction should be granted because the ordinance’s alleged effect on collective bargaining is preempted by the National Labor Relations Act.

To support CGA’s preemption claims, Tarantino cited the U.S. Supreme Court’s 1976 ruling in Machinists v. Wisconsin Employment Relations Comm, which held local governments should not interfere in business that would otherwise be determined by “the free play of economic forces.”

Wright took the matter under submission and indicated a final ruling on the preliminary injunction would be issued soon.

Tuesday’s hearing came on the same day the Los Angeles County Board of Supervisors voted 4-1 to approve an urgency ordinance requiring national grocery and drug stores chains in unincorporated LA County to pay workers an extra $5 an hour in “hero pay.”

The ordinance – which takes effect immediately and is enforceable for the next 120 days – cited frontline workers’ higher risk of contracting Covid-19 and their ongoing labor contributions as justification for the wage increase.

A California woman, 65 year old Corby Kuciemba, sued her husband’s employer because she believes he caught the novel coronavirus at work and brought it home with him – ultimately infecting her also.

The couple then tested positive for the virus on July 16, 2020, and both were hospitalized as a result, with Corby Kuciemba being held for treatment until the beginning of August.

She and her husband, Robert Kuciemba, alleged in their Oct. 23, 2020 lawsuit that his employer, Nevada-based Victory Woodworks, violated local and federal virus-safety guidelines when it moved workers from one site to another in the San Francisco region.

The company’s failure to take basic precautions allegedly caused Robert Kuciemba to contract the virus and unknowingly bring it home and infect his wife, and both required extended hospital stays and suffer from after-effects.

The closely watched case was removed by the employer to the Federal District Court in Northern California on December 28. The removal was soon followed by a Motion to Dismiss filed on January 4, and then a hearing on that motion set for February 12.

On February 22, the federal judge ruled that the First, Second, Third, and Fifth Causes of Action, titled, respectively, “Negligence,” “Negligence Per Se,” “Negligence – Premises Liability,” and “Loss of Consortium,” are barred by the exclusive remedy provisions of California’s workers’ compensation statutes.

Judge Chesney also ruled that the couple’s Fourth Cause of Action doesn’t meet the required threshold, or standing, to hold Robert Kuciemba’s employer, Victory Woodworks Inc., liable for creating a public nuisance.

However, the plaintiffs were given leave to file, no later than March 19, 2021, a First Amended Complaint.

The case is Kuciemba v. Victory Woodworks, 20-cv-09355, U.S. District Court, Northern District of California (San Francisco).

While it obviously presented challenges, 2020 is looking like it may not have been such a bad year for workers’ compensation insurers and insureds after all.

Insurers took in less premium but paid fewer claims. They managed to achieve one of the lowest combined ratios in history. An increasing number of workers were able to be treated via telemedicine, meaning they did not have to travel. Injured workers, including COVID-claimants, appear to have received their medical care without much delay. And the vast majority of COVID-19 claimants needed only limited treatment.

On the down side, 2020 may have seen a return of opioid over-prescribing.

Experts from the industry’s data and rating organization, the National Council on Compensation Insurance (NCCI), recently shared their preliminary analysis of 2020 claims data. In a virtual roundtable, COVID-19 and Workers Compensation, summarized by the Insurance Journal.

NCCI looked at results through the third quarter of 2020 and extended those through the end of the year. NCCI uses data from private carriers and state funds in 41 jurisdictions but its data does not include many public entities such as first responders or health care entities including hospitals and nursing homes that are largely self-insured.

Some highlights of the year include:

– – The pandemic has “put gas on a fire that was already burning,” that is, workers’ compensation loss costs have been on a downward trend for years and expense ratios have been climbing.
– – The percentage of COVID-19 claims among all workers’ compensation paid claims has varied greatly among states and occupations, as has the decrease in non-COVID claims, according to research from the Workers Compensation Research Institute (WCRI).
– – While at least 17 states have passed laws or issued orders that expanded access to workers’ compensation benefits for employees who contract COVID-19, many of those directives are creating new exposure for only a sliver of the workforce, new research by the WCRI shows.
– – Although the nation’s focus may have shifted to the coronavirus pandemic, the opioid crisis not only remains a challenge, but also may have worsened due to COVID-19, according to speakers at a forum sponsored by the American Property Casualty Insurance Association and the U.S. Chamber of Commerce.
– – Written premium for the full calendar year of 2020 is expected to be the lowest since 2012.

The NCCI figures are calendar year and do not reflect the full costs of treating COVID-19 or other health conditions with long-term effects.

Overall for 2020, NCCI projects an 8% decline in premium to $38.6 billion, the lowest since 2014. That is accompanied by a 7.6% decline in losses and a favorable 86% calendar year combined ratio.

Worker claims due to COVID-19 have ranged from no symptoms to critical care, hospitalizations and, unfortunately, fatalities in some cases.

The overall COVID-19 claims picture is by no means dire. The larger majority of the cases are small and have only required the injured worker to miss work and quarantine or recover at home.

For many years the life expectancy for the average American increased, and as a result, so did the reserve estimate for lifetime awards in workers’ compensation claims. Maybe it is time to re-think that assumption in the mathematical calculation.

American life expectancy decreased by a full year in the first half of 2020, hitting its lowest point since 2006, as the Covid-19 pandemic burned through the country.

The Centers for Disease Control and Prevention announced the findings Thursday in a first-of-its-kind report based on provisional vital statistics data, joining the annual and decennial national life tables that the agency typically publishes.

According to the analysis in the report by Courthouse News, life expectancy summarizes the mortality conditions in a given year, providing a baseline for health officials to track changes across populations and over time.

According to the latest data, pandemic-related deaths have deepened life-expectancy disparities along racial and ethnic lines that were already striking.

The CDC put the latest life-expectancy gap between Black and white Americans at six years – the largest since 1998. In addition to reporting on the three-year fall in the expected life spans of Black Americans, the CDC observed a nearly two-year drop in the lives of Hispanic Americans, another group whom white Americans statistically tend to outlive.

“This is a huge decline,” Robert Anderson, who oversees the numbers for the CDC, announced on Thursday. “You have to go back to World War II, the 1940s, to find a decline like this.”

The study from the CDC’s National Center for Health Statistics backs up what other researchers have been finding.

In an email, University of Southern California postdoctoral scholar Theresa Andrasfay called it “another important piece of evidence of the enormous mortality toll – and the large racial and ethnic disparities – of Covid-19.”

Andrasfay was the co-author of a similar study on the subject that appeared last month in the Proceedings of the National Academy of Sciences.

The California Labor Commissioner has cited a Los Angeles McDonald’s franchisee $125,913 for workplace retaliation and labor law violations, after the Labor Commissioner found that the employer illegally fired four workers for reporting unsafe working conditions during the COVID-19 pandemic.

The four employees of the Marengo Street McDonald’s, operated by R&B Sanchez, Inc., filed retaliation complaints with the Labor Commissioner’s Office last September.

The workers had advised their employer, Cal/OSHA and the Los Angeles County Health Department about unsafe work conditions that they were concerned exposed them to COVID-19 infections. They had also participated in strikes over safety conditions at the Marengo Street McDonald’s, and subsequently received termination letters from their employer.

The Labor Commissioner’s Office on February 12th issued citations totaling $125,913 in wages and penalties against McDonald’s franchisee R&B Sanchez, Inc. Also named in the citations as jointly and severally liable are owners Robert Sanchez and Beverly Sanchez, as well as Brian Sanchez, who served as the franchisee human resources officer.

The citations include $45,193 in lost wages, $720 in interest due, $40,000 in Section 98.6 retaliation penalties, and $40,000 in Section 1102.5 retaliation penalties. R&B Sanchez must reinstate the four workers to their jobs, remove any negative references from their personnel files, and post information on the citations and violations in the workplace.

“Too many workers fear retaliation if they report a problem or stand up for their rights,” said Labor Commissioner Lilia García-Brower. “California law has anti-retaliation protections in place that make it illegal for employers to punish workers for exercising their labor rights, such as reporting a workplace safety hazard. My office is committed to ensuring those laws are enforced.”

The Labor Commissioner’s Office enforces more than 45 labor laws that specifically prohibit discrimination and retaliation, including Equal Pay Act violations. The Labor Commissioner’s Office investigates workplace retaliation complaints including instances of termination, suspension, transfer or demotion, reduction in pay or hours, disciplinary actions or threats, or unfair immigration-related practices.

The Labor Commissioner’s Office has launched an interdisciplinary outreach campaign, “Reaching Every Californian.” The campaign amplifies basic protections and builds pathways to impacted populations so that workers and employers understand legal protections, obligations and how to defend them. Californians can follow the Labor Commissioner’s Office on Facebook and on Twitter.