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Tag: 2021 News

Lawsuit Claims Amazon Violated COVID-19 Safety Measures

The New York Attorney General filed a lawsuit against Amazon over its failures to provide adequate health and safety measures for employees at the company’s New York facilities and Amazon’s retaliatory actions against multiple employees amidst the COVID-19 pandemic.

An investigation into Amazon started in March 2020 following numerous complaints about the lack of precautions taken to protect employees in Amazon facilities as New York was ravaged by COVID-19.

The investigation was later broadened to examine whether Amazon unlawfully fired or disciplined employees who reported these safety concerns. In particular, the investigation focused on two facilities with a combined workforce of more than 5,000 individuals.

The investigation uncovered evidence showing that Amazon’s health and safety response violated state law with respect to cleaning and disinfection protocols, contact tracing, and generally permitting employees to take necessary precautions to protect themselves from the risk of COVID-19 infection, among other things.

For example, Amazon was notified of at least 250 employees at the Staten Island facility who had positive COVID-19 tests or diagnoses, with more than 90 of those individuals present in the facility within seven days of notification to Amazon. However, in all but seven of these instances, Amazon failed to close any portion of the facility after learning of the positive cases.

Additionally, Amazon implemented an inadequate COVID-19 tracing program that failed to consistently identify workers who came into close contact with employees who tested positive for COVID-19. On occasions when a worker reported having close contact with a coworker with a positive COVID-19 test, Amazon dismissed the worker’s concerns and did not investigate or follow up on the reports.

The evidence also demonstrates that Amazon unlawfully fired and disciplined workers who reported their concerns about Amazon’s compliance with these health and safety mandates.

The lawsuit, filed in the Supreme Court of New York County, argues that Amazon’s actions are in violation of New York labor, whistleblower protection, and anti-retaliation laws. The suit seeks broad injunctive relief and damages, including:

– – Requiring Amazon to take all affirmative steps, including changing policies, conducting training, and undergoing monitoring, among others, to ensure that Amazon reasonably and adequately protects the lives, health, and safety of its employees.
– – Awarding backpay, liquidated damages, emotional distress damages, and reinstatement for former employee Christian Smalls.
– – Awarding liquidated damages and emotional distress damages for employee Derrick Palmer.
– – Requiring Amazon to give up the profits it made as a result of its illegal acts.

So Cal Corona Variant Spreads Throughout the State and Six Countries

The coronavirus variant first seen in Los Angeles in July now accounts for about 44% of new infections in Southern California and more than a third of new infections throughout the state, researchers reported Thursday.

In addition, the variant has spread across the United States and to six countries around the globe, according to the study in the Journal of the American Medical Assn.

It “remains uncertain” whether the genetic changes that characterize the fast-moving variant have improved its ability to transmit from person to person, or to make people infected with it sicker, a team from Cedars-Sinai Medical Center in Los Angeles acknowledged in the JAMA report. But the virus’ rapid propagation in California is a cause for some concern, they wrote.

The Los Angeles Times reports that the homegrown variant is distinct from other versions of the virus present in the U.S., including the B.1.1.7 strain from the United Kingdom and the B.1.351 strain from South Africa. But like those new strains, this variant is defined by several mutations in the virus’ spike protein, the “docking mechanism” the virus uses to latch on to human cells.

One of the California variant’s five mutations, known to scientists as L452R, could alter a particularly critical part of the spike protein called the receptor-binding domain.

A study conducted last year by Howard University researchers found that the mutation helps the virus attach more firmly to human cells. It therefore has the potential to enhance the virus’ transmission.

At both Cedars-Sinai and the UC San Francisco Medical Center, samples of the new variant are being tested in an effort to detect whether its altered genetic makeup has given the virus new powers to spread or sicken.

Its rapidly increasing share of California cases is also ominous, the study authors said.

Although the variant was barely detectable in early October, it accounted for 24% of roughly 4,500 viral samples gathered throughout Southern California in the last weeks of 2020, and 18% of statewide samples. Less than a month later, its share of new infections had climbed.

From Jan. 1 to Jan. 22, the variant accounted for 44% of coronavirus samples collected in Southern California and 35% of samples from throughout the state.

Shaolei Teng, a Howard University biologist who led a team exploring the effect of the virus’ genetic changes, said the variant’s L452R mutation clearly improved its ability to bind to human cells. In all likelihood, he said, the change also makes it easier for the virus to get inside cells – a crucial step in the replication process.

What’s more, the variant has begun to travel widely. It has been detected in Alaska, Arizona, Connecticut, Georgia, Hawaii, Maryland, Michigan, New Mexico, Nevada, New York, Oregon, Rhode Island, South Carolina, Texas, Utah, Washington, Wisconsin, Wyoming and Washington, D.C.

It has also made its way to Australia, Denmark, Israel, New Zealand, Singapore and the United Kingdom.

Drywall Contractor Cited for $2M Wage Theft From 472 Laborers

A hearing officer has upheld the Labor Commissioner’s wage theft citations of nearly $2 million to a Southern California drywall contractor affecting 472 laborers who worked on 26 construction projects throughout Southern California.

In 2018, the Labor Commissioner’s Office cited Fullerton Pacific Interiors Inc. $1,964,679 for wage theft violations and civil penalties.

The workers who did taping and drywall installation at hotel, recreation centers and casino projects in Los Angeles, Orange and San Bernardino counties from August 2014 to June 2016 were paid a daily rate that did not properly compensate them for overtime hours and rest breaks, and 28 workers were paid less than minimum wage.

Fullerton Pacific Interiors Inc. appealed the citations, and the hearing officer affirmed each citation in January after a non-continuous 10-day administrative appeal hearing conducted throughout 2019.

The investigation into Fullerton Pacific Interiors Inc, began in June 2016, after a referral to the Labor Commissioner’s Bureau of Field Enforcement (BOFE) from the Carpenters/Contractors Cooperation Committee.

BOFE’s wage audit identified 472 workers employed during the violation period did not receive lawful rest periods, 289 were not paid overtime and 28 were paid less than minimum wage.

The Labor Commissioner’s Office issued citations for minimum wage violations, liquidated damages, overtime violations, rest periods violations, failure to comply with itemized statement provisions and waiting time penalties.

When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest. Waiting time penalties are imposed when the employer intentionally fails to pay all wages due to the employee at the time of separation.

This penalty is calculated by taking the employee’s daily rate of pay and multiplying it by the number of days the employee was not paid, up to a maximum of 30 days.

Foster Farms Fights “First in Nation” COVID Court Injunction

Foster Farms, the nation’s 10th largest poultry producer, operates a plant in Livingston, California, about 100 miles east of San Jose. It employs over 2,500 workers there, making it the largest employer in Merced County.

The first outbreak at the Livingston plant peaked in August 2020. In total, nearly 400 workers tested positive and nine died. Merced County’s public health director called the incident “one of the largest occupational fatalities experienced during COVID-19 in the state of California.”

The county health department shut down the plant for six days, during which Foster Farms completed two rounds of deep cleaning of its facilities and COVID-19 testing of its workforce.

In the aftermath of the first outbreak, United Farm Workers of America, the union that represents about 2,000 employees at the plant, alleged that Foster Farms had not been following county public health orders and other directives related to limiting the spread of COVID-19.

Fisher Phillips reports that following a second COVID-19 outbreak at Foster Farms, a California judge issued what is likely the first injunction in the nation against a meat processing plant over corona virus safety.

Soon after the suit was filed, the court issued a temporary restraining order (TRO) at the plaintiffs’ request. A TRO typically lasts no more than 30 days.

The court set a a preliminary injunction hearing on January 29, 2021 and decided to issue an injunction incorporating the TRO’s 20 requirements imposed on Foster Farms.

The ruling leaves in place the substance of a December 2020 temporary restraining order requiring the employer to take 20 specific steps to protect workers from the spread of the virus. The lawsuit was brought by the union that represents the employees at the plant.

Those requirements include:

– – Requiring all workers to wear face coverings and supplying them with masks;
– – Promoting social distancing by staggering employees’ works schedules and break times, and installing additional break areas;
– – Installing physical dividers in areas where social distancing is difficult to maintain, like production lines;
– – Training employees on COVID-19 hazard mitigation and informing them of testing requirements, outbreaks that occur, areas affected, and training on safety requirements; and
– – Warning and appropriately disciplining employees who do not comply with its new COVID-19 policies.

Foster Farms plans to appeal the ruling, characterizing it as unnecessary court intervention, as both the county public health department and Cal/OSHA already have oversight of the plant. Company officials also highlighted the fact that Foster Farms has administered nearly 100,000 COVID-19 tests to its workforce since the pandemic began, 40,000 of them at the Livingston plant.

Feds Launch Telehealth Audits Following $6B Takedown

Telehealth services and providers have been in high demand as the world copes with the COVID-19 public health emergency. Federal and state agencies have amended, and often loosened, regulations in an attempt to facilitate and expand access to telehealth.

However, the honeymoon phase of relaxed oversight may be coming to an end as the world adjusts to a new-normal.

The Department of Health and Human Services Office of Inspector General, along with state and federal law enforcement partners, participated in a nationwide health care fraud takedown in September 2020.

The takedown focused on several schemes to include alleged telefraud, or scams that leverage aggressive marketing and so-called telehealth services to commit fraud.

This fraudulent activity resulted in charges for 345 defendants in 51 judicial districts, including telemedicine executives, the owners of durable medical equipment (DME) companies, genetic testing laboratories, pharmacies, and more than100 medical practitioners, for their alleged participation in health care fraud schemes involving more than $6 billion in alleged loss.

In the aftermath of this takedown, on January 26, 2021, the Department of Health and Human Services, Office of Inspector General (“OIG”) announced a new telehealth-related audit targeting the implementation of telehealth waivers by home health agencies during the public health emergency.

On the same day, OIG announced a second telehealth-related audit to investigate a broad swath of telehealth services, dubbed “Audits of Medicare Part B Telehealth Services During the COVID-19 Public Health Emergency.”

In the Announcement, the OIG reveals its plan to conduct a series of audits of Medicare Part B telehealth services. The audits will occur in two phases.

The first phase aims to make an early assessment of whether services “such as evaluation and management, opioid use order, end-stage renal disease, and psychotherapy” meet Medicare requirements.

The second phase will dive deeper into a broad range of Medicare Part B telehealth services and compliance issues, including “distant and originating site locations, virtual check-in services, electronic visits, remote patient monitoring, use of telehealth technology, and annual wellness visits.”

McKinsey & Co. Pays $600M to Resolve 49 State Opioid Claims

The California Attorney General, along with a coalition of attorneys general from 47 states, the District of Columbia and five U.S. territories, announced a $600 million settlement with one of the world’s largest consulting firms, McKinsey & Company (McKinsey).

McKinsey & Company is an American worldwide management consulting firm, founded in 1926 by University of Chicago professor James O. McKinsey, that advises on strategic management to corporations, governments, and other organizations.

Under the leadership of Marvin Bower, McKinsey expanded into Europe during the 1940s and 1950s. In the 1960s, McKinsey’s Fred Gluck – along with Boston Consulting Group’s Bruce Henderson, Bill Bain at Bain & Company, and Harvard Business School’s Michael Porter – transformed corporate culture.

McKinsey advised opioid makers on how to “turbocharge” sales of OxyContin, propose strategies “to counter the emotional messages from mothers with teenagers that overdosed” on OxyContin, and help opioid makers circumvent regulation.

The firm also advised Purdue Pharma to offer pharmacies rebates based on the number of overdoses and addictions they caused.

In February 2021, McKinsey reached agreements with attorneys general in 49 states, five U.S. territories, and the District of Columbia. Across the settlements, the firm agreed to pay nearly $600 million to settle investigations into its role in promoting sales of OxyContin.

The settlement also resolves California’s investigation into the company’s role in advising opioid companies, helping those companies promote their drugs, and profiting from the opioid epidemic. California will receive $59,613,603.99 from the settlement.

In addition to providing funds to address the crisis, the agreement calls on McKinsey to prepare tens of thousands of its internal documents detailing its work for Purdue Pharma and other opioid companies for public disclosure online.

When states began to sue Purdue’s directors for their implementation of McKinsey’s marketing schemes, McKinsey partners began corresponding about deleting documents and emails related to their work for Purdue.

Federal Trucking Law Preempts More Stringent CA Break Law

The Federal Motor Carrier Safety Administration (FMCSA), an agency within the U.S. Department of Transportation, is tasked with issuing regulations on commercial motor vehicle safety. The FMCSA also has authority to determine that state laws on commercial motor vehicle safety are preempted, based on criteria Congress has specified.

In 2011, the FMCSA revised the federal hours-of-service regulations, which imposed certain limits on the driving time of commercial motor vehicle drivers, to require that drivers working more than eight hours must take at least one 30-minute break during the first eight hours of work, though the driver has flexibility as to when the break occurs.

The California rules are different. California’s rules are contained in wage orders issued by the State’s Industrial Welfare Commission (IWC), which is tasked with protecting workers’ “health, safety, and welfare.”

California’s minimum required break (MRB) rules generally require that employers allow commercial truck drivers to take more rest breaks, at greater frequency, and with less flexibility as to when breaks occur.

In 2018, two transportation industry groups asked the FMCSA to revisit a prior determination that federal law did not preempt California’s MRB rules.

The FMCSA, after seeking public comment on the preemption question, declared California’s MRB rules preempted as applied to operators of property-carrying motor vehicles subject to the federal hours-of-service regulations.

California’s Labor Commissioner and three other sets of petitioners (labor organizations and affected individuals) filed timely petitions for review.

The question was whether the FMCSA’s preemption decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”

The 9th Circuit Court of Appeal affirmed the preemption of federal over state law in the published opinion of International Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration.

The court concluded that the FMCSA reasonably determined that California’s MRB rules imposed additional and more stringent requirements than the FMCSA’s own regulations, and that the FMCSA simply determined that, in its view, federal regulations adequately and more appropriately balanced the competing interests between safety and economic burden.

Cost Impact of California’s Drug Formulary – Two-Year Checkup

California’s drug formulary, which went into effect January 1, 2018, was intended to reduce frictional costs in the workers’ compensation system; restrict inappropriate prescribing, especially that related to opioids; and ensure that injured workers receive medically necessary medications in a timely manner.

In the July 1, 2018 Pure Premium Rate Filing, the WCIRB estimated that the drug formulary would reduce pharmaceutical costs by 10 percent, resulting in an overall 0.5 percent reduction in the advisory pure premium rate level.

The WCIRB’s initial estimate was based largely on projected reductions in the use of opioids, compounds, physician-dispensed drugs and brand name drugs when a generic alternative was available.

The WCIRB has updated the cost impact evaluation of the Drug Formulary, utilizing additional pharmaceutical transaction information in 2019 through the pre-pandemic period in 2020, in its Cost Impact of California’s Drug Formulary – Two-Year Checkup research brief.

Key findings in the research brief include:

– – While pharmaceutical costs had been declining sharply prior to implementation of the formulary, the decline accelerated in 2018 and continued at a somewhat slower rate through 2019 and the pre-COVID-19 period in 2020.
– – The share of prescriptions for drugs not subject to prospective UR in accordance with the formulary continued to increase in 2019 and early 2020, while that of drugs subject to UR continued to decline.
– – The share of pharmaceutical payments for opioids, compounds and brand name drugs with generic alternatives dropped sharply in 2018 and continued to drop at a similar rate in 2019 and early 2020.
– – While the share of pharmaceutical payments for physician dispensed drugs started to increase slightly toward the end of 2019, on an annual basis, the share of payments to these drugs continued to decline during the two years of the formulary implementation.
– – The continued downward trend in pharmaceutical costs through early 2020, as well as the continued decreases in the proportion of drugs not subject to UR, opioids, compounds, physician-dispensed drugs and brand name drugs with generic equivalents suggest the formulary is achieving its intended effects.

The COVID-19 pandemic and the resultant stay-at-home orders have affected the patterns of medical treatment of California injured workers. While elective medical services were suspended during the early weeks of the pandemic, pharmaceutical use has increased throughout the pandemic. The increases have driven the average drug payments in the system above the prepandemic level. Most of the increases came from non-opioid pain medications.

Given that the formulary impact on drug utilization and costs may be mixed with the impact of the stay-at-home orders during the ongoing pandemic, this updated evaluation focused on the pre-COVID-19 pandemic period and assessed how the drug formulary affected prescription drug utilization and costs during this period.

Gig Workers File Second Challenge to Proposition 22

Gig workers and labor unions on Thursday continued their challenge to California’s Proposition 22, filing a lawsuit in a lower court as urged by the state Supreme Court, which last week rejected a request for an expedited review of the case.

The plaintiffs, who filed the lawsuit in January, say the measure, which 58% of the state’s voters passed in November and exempts companies like Uber Technologies Inc. and Lyft Inc. from a law that would require them to treat their drivers as employees, is unconstitutional.

Among other things, they say Prop. 22 precludes gig workers’ inclusion in the workers’ comp system and keeps them from collective bargaining.

The new lawsuit, which they filed in Alameda County Superior Court, states “Because the Legislature has ‘plenary power, unlimited by any provision of this Constitution’ to address workers’ compensation, including occupational safety,an initiative statute cannot limit the Legislature’s authority in this area.”

The lawsuit also says Prop. 22 is too broad because ballot measures are supposed to focus on only one issue: “[It] also attempts to impose other restrictions that are not substantively addressed in the measure.”

The plaintiffs include the SEIU California and the national SEIU, individual drivers and a ride-hailing customer.

“I’m joining together with my fellow ride-share drivers to continue our fight against Prop. 22 because we know that in a democracy, corporations shouldn’t get the final say in determining our laws,” said Saori Okawa, one of the plaintiffs, in a statement.

In a news release, the plaintiffs mentioned other constitutional challenges to state ballot measures and acknowledged that those efforts took a long time.

“In the case of Prop. 187 – which denied undocumented immigrants access to basic education and healthcare – it took nearly five years, multiple appeals, the end of Gov. Pete Wilson’s administration and the passage of federal legislation for the initiative to be struck down,” the plaintiffs said. “It took almost seven years for Prop. 8 – which denied marriage equality to same-sex couples – to make its way to the United States Supreme Court, where it was struck down in 2015.”

Biden Picks Julie Su – Head of CA Labor Agency as Labor Deputy

President Joe Biden nominated Julie Su, the head of California’s labor agency, on Wednesday as the deputy U.S. secretary of labor, potentially putting another Californian in a top administration job and focusing a brighter spotlight on the state’s ongoing unemployment fraud scandal.

If confirmed by the Senate, Su would be tasked with helping to lead a sprawling department that oversees laws that regulate worker standards and pay, workplace safety, workers’ compensation, unions, family and medical leave and more. She would work in partnership with Boston Mayor Marty Walsh, Biden’s nominee for labor secretary, if he is confirmed.

Julie A. Su is currently the Secretary of the California Labor and Workforce Development Agency. Governor Gavin Newsom appointed Su in January of 2019 to serve as his cabinet advisor on labor issues and employment programs for workers and businesses throughout California.

Secretary Su oversees the state departments and boards that enforce labor laws, including minimum wage and occupational safety standards, provide state disability and unemployment insurance benefits, fund workforce training and apprenticeship programs, combat wage theft, protect injured workers, and arbitrate public sector contract disputes.

Su is a nationally recognized expert on workers’ rights and civil rights who has dedicated her distinguished legal career to advancing justice on behalf of poor and disenfranchised communities, and is a past recipient of a MacArthur Foundation “Genius” grant.

As California Labor Commissioner from 2011 through 2018, Su enforced the state’s labor laws to ensure a fair and just workplace for both employees and employers. A report on her tenure released in May 2013 found that her leadership has resulted in a renaissance in enforcement activity and record-setting results. In 2014, she launched the first “Wage Theft is a Crime” multi-media, multilingual statewide campaign to reach out to low-wage workers and their employers to help them understand their rights and feel safe speaking up about labor law abuses.

Prior to her appointment as California Labor Commissioner, Su was the Litigation Director at Asian Americans Advancing Justice-Los Angeles, the nation’s largest non-profit civil rights organization devoted to issues affecting the Asian American community. In her 17 years as a civil rights lawyer, Su brought landmark lawsuits resulting in millions of dollars for low-wage workers and policy changes in California and the United States protecting immigrant victims of crime and human trafficking. In 1995, she was the lead attorney for Thai garment workers who were trafficked into the United States and forced to sew behind barbed wire and under armed guard in an apartment complex in El Monte, California. Su is known for pioneering a multi-strategy approach that combines successful impact litigation with multiracial organizing, community education, policy reform, coalition building, and media work.

Su has taught at UCLA Law School and Northeastern Law School. She is a graduate of Stanford University and Harvard Law School and began her career with a Skadden Fellowship. Su is the daughter of Chinese immigrants and speaks Mandarin and Spanish