Tag: 2021 News

At Biden’s direction, the OSHA issued a rule earlier this month requiring U.S. employers with 100 or more workers to ensure their workers are fully vaccinated against COVID-19 or undergoing weekly tests for the virus by Jan 4. Businesses that don’t comply face thousands of dollars in fines.

The rule prompted a slate of legal challenges from at least 27 states as well as business and religious groups who argue the mandate is unconstitutional. Biden and other federal officials argue the mandate is necessary to end the COVID-19 pandemic and fully reopen the economy.

A few days later, the 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests. The Federal Government was ordered to respond to the motion for a permanent injunction by 5:00 PM on Monday, November 8 and the petitioners in the case were ordered to file any reply by 5:00 PM on Tuesday, November 9.”

After reviewing the responses, the appeals court reaffirmed its decision Friday to enact a stay on President Biden’s workplace vaccination mandate. The Fifth Circuit Court of Appeals ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.” The decision was the latest development in what is expected to be a lengthy legal battle over the mandate’s legality.

The court commenced it opinion by noting that “in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived. The opinion first considered whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. It concluded that for “a multitude of reasons, they are.”

One example is “the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).”

“OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.“

“The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees.”

The court went on to say “It is critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.”

“It lastly bears noting that the Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits…. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power.”

“Second, concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.”

In 2013 Salvador Guzman rear-ended Mitchell Hunter Oakes’ vehicle. Oaks employer’s workers’ compensation insurance carrier, Liberty Insurance Corporation, paid $256,631.76 for his treatment.

Oaks filed a civil action against Guzmman and his employer Progressive Transportation Services Inc. Liberty Mutual filed a complaint in intervention, seeking to recover against any judgment a lien for workers’ compensation benefits paid to plaintiff, as authorized by Labor Code section 3852. Liberty subsequently assigned its $256 thousand workers’ compensation lien to defendants and was dismissed from the case.

In November 2015, defendants served an offer to settle under Code of Civil Procedure section 998 for $200,000. Plaintiff rejected the offer.

Before the jury trial commenced the parties stipulated that a workers’ compensation lien existed in the amount of $256,631.76. The jury returned a verdict of $115,000 in plaintiff’s favor, and the trial court entered an initial judgment for that amount in plaintiff’s favor.

Plaintiff then filed a motion for attorney fees and litigation expenses under Labor Code section 3856, subdivision (b), claiming a $50,600 fee (44 percent of the jury verdict pursuant to his contingency agreement with his attorney), and $28,343.52 in costs. Defendants opposed the motion for fees and moved to tax plaintiff’s postoffer section 998 costs, arguing he should not recover fees and postoffer costs because the jury verdict did not exceed defendants’ section 998 offer.

Although the trial court noted that Labor Code section 3856 required costs to be paid from the judgment, the court added plaintiff’s attorney fees and allowable costs to the jury’s $115,000 verdict rather than subtracting them from that amount. The court calculated plaintiff’s award as “$115,000 + $50,600 + $475.98 = $166,075.98.” The trial court awarded defendants costs of “$174,830.20” under section 998, subdivision (c)(1). The court then concluded “[t]he defense has a net gain over the plaintiff of $8,754.22, and thereby becomes the prevailing party, i.e., ‘the party with a NET monetary recovery.’”

Oakes appealed the judgment that was calculated to be $8,754.22 judgment entered in defendants’ favor after applying both statutes. The Court of Appeal affirmed in the partially published case of Oakes v Progressive Transportation Services.

The purpose of section 998 is “to encourage settlement by providing a strong financial disincentive to a party – whether it be a plaintiff or a defendant – who fails to achieve a better result than that party could have achieved by accepting his or her opponent’s settlement offer.”

The parties disagree on the sequence in which the statutes at issue should be applied and which statute takes priority in application.

Applying the cost-shifting provisions of Code of Civil Procedure section 998 before the Labor Code section 3856 allocations is consistent with applicable case authority.

We have no basis for overturning the $8,754.22 judgment entered in defendants’ favor.

The Justice Department filed a lawsuit against Uber Technologies Inc. for charging “wait time” fees to passengers who, because of disability, need more time to enter a car. Uber’s policies and practices of charging wait time fees based on disability have harmed many passengers and potential passengers with disabilities throughout the country.

The lawsuit, filed in the U.S. District Court for the Northern District of California, alleges that Uber violated Title III of the Americans with Disabilities Act (ADA), which prohibits discrimination by private transportation companies like Uber.

In April 2016, Uber began charging passengers wait time fees in a number of cities, eventually expanding the policy nationwide. Wait time fees start two minutes after the Uber car arrives at the pickup location and are charged until the car begins its trip.

The department’s complaint alleges that Uber violates the ADA by failing to reasonably modify its wait time fee policy for passengers who, because of disability, need more than two minutes to get in an Uber car. Passengers with disabilities may need additional time to enter a car for various reasons. A passenger may, for example, use a wheelchair or walker that needs to be broken down and stored in the car. Or a passenger who is blind may need additional time to safely walk from the pickup location to the car itself. The department’s lawsuit alleges that, even when Uber is aware that a passenger’s need for additional time is clearly disability-based, Uber starts charging a wait time fee at the two-minute mark.  

The lawsuit seeks relief from the court, including ordering Uber to stop discriminating against individuals with disabilities. Additionally, the department asks the court to order Uber to modify its wait time fee policy to comply with the ADA; train its staff and drivers on the ADA; pay money damages to people subjected to the illegal wait time fees; and pay a civil penalty to vindicate the public’s interest in eliminating disability discrimination.

“Uber’s wait time fees take a significant toll on people with disabilities,” said Acting U.S. Attorney Stephanie M. Hinds for the Northern District of California. “Passengers with disabilities who need additional boarding time are entitled to access ridesharing services without discrimination. This lawsuit seeks to assist people with disabilities to live their lives with independence and dignity, as the ADA guarantees.”

“People with disabilities deserve equal access to all areas of community life, including the private transportation services provided by companies like Uber,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “This lawsuit seeks to bring Uber into compliance with the mandate of the Americans with Disabilities Act while sending a powerful message that Uber cannot penalize passengers with disabilities simply because they need more time to get into a car. Uber and other companies that provide transportation services must ensure equal access for all people, including those with disabilities.”

If someone believes they have been a victim of disability discrimination by Uber because they, or someone they were traveling with, were charged wait time fees, please contact 833-591-0425 (toll-free), 202-305-6786, or send an email to Uber.Fee@usdoj.gov.  

An Orange County Superior Court Judge ruled earlier this month that four drug companies cannot be held liable for California’s opioid epidemic. It marked the first trial win for any drug companies in the more than 3,300 lawsuits filed by states and local governments over a drug abuse crisis that the U.S. government says led to nearly 500,000 opioid overdose deaths over two decades.

The only other opioid trial to reach a verdict resulted in an Oklahoma judge in 2019 ordering J&J to pay $465 million to the state. However, the Oklahoma Supreme Court just reversed the verdict, finding the trial judge misinterpreted the state’s public nuisance law.

The Attorney General of Oklahoma sued three prescription opioid manufacturers and requested that the district court hold opioid manufacturers liable for violating Oklahoma’s public nuisance statute. The State settled with the other opioid manufacturers and eventually dismissed all claims against J&J except public nuisance.

The State presented evidence that J&J used branded and unbranded marketing, which actively promoted the concept that physicians were under treating pain. Ultimately, the State argued J&J overstated the benefits of opioid use, downplayed the dangers, and failed to disclose the lack of evidence supporting long-term use in the interest of increasing J&J’s profits.

The district court conducted a 33-day bench trial with the single issue being whether J&J was responsible for creating a public nuisance in the marketing and selling of its opioid products. The district court held J&J liable under Oklahoma’s public nuisance statute, and J&J appealed.

The question before the Oklahoma Supreme Court was whether the conduct of an opioid manufacturer in marketing and selling its products constituted a public nuisance

In a 5-1 ruling, the high court held that the district court’s expansion of public nuisance law went too far. Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids.

Writing for the majority, Justice James R. Winchester said stopping the opioid crisis is a “laudable goal” but cannot be done by “reshaping” the public nuisance law that has traditionally been used to address “discrete, localized” problems.

“The district court’s expansion of public nuisance law allows courts to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems,” Winchester wrote. “Further, the district court stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far.”

The majority said the high court has followed criminal and property-based limitations on the public nuisance law for 100 years.

The dissent writes that he would have reversed the verdict and sent the case back to the trial court for a new award.

“I would remand to the district court to recalculate damages based upon J&J’s share of the market in the years it sold its opioids in Oklahoma with its deceptive marketing scheme….,The attorney general’s basic theory of the case is tenable, both in law and equity.”

Biden’s vaccine or testing mandate for business with 100 or more employees went info effect on Friday, after the Occupational Safety and Health Administration published the requirements in the Federal Register. Businesses have until Jan. 4 to ensure their employees have received the shots required for full vaccination. After that date, workers who are unvaccinated must submit a weekly negative Covid test to enter the workplace. Unvaccinated workers must wear masks indoors at their workplaces starting Dec. 5.

The American Trucking Associations, which pushed back against the mandates to White House officials at the Office of Management and Budget last month, had warned many drivers would quit rather than follow the rules, further disrupting the national supply chain over the holiday season at a time when the industry is already short 80,000 drivers.

“Given the nationwide shortage of truck drivers, it is vital that our industry has the relief it needs to keep critical goods moving, including food, fuel, medicine and the vaccine itself,” American Trucking Associations President and CEO Chris Spear said Friday.

In response to the pushback, a report by CNBC said that Labor Secretary Marty Walsh announced that most truckers are not covered by President Joe Biden’s Covid vaccine and testing requirements for private businesses, a win for an industry that had warned of potential walkouts that would disrupt already strained supply chains.

“We’ve heard some pushback from truckers today. The ironic thing is most truckers are not covered by this, because they’re driving a truck, they’re in a cab, they’re by themselves, they wouldn’t be covered by this,” Walsh said in an interview with MSNBC’s Chris Hayes late Thursday.

However, the mandate exempts workers “who do not report to a workplace where other individuals such as coworkers or customers are present,” including truckers who are alone in their cab or who are not interacting with others at their point of departure or destinations, according to the Department of Labor. People who work from home or exclusively outdoors are also exempt.

“All indications thus far from the Department of Labor suggest this exemption does apply to the commercial truck driver population,” Spear said on Friday in a statement, hailing the provisions “as an enormous victory for our association and industry.”

The vaccination and testing requirements would apply to “truck drivers who work in teams (i.e., two people in a truck cab), or those who interact with people in buildings at their destinations or starting points,” a Labor Department spokesperson told CNBC.

Despite the exemptions, Spear still criticized the mandate, accusing OSHA of “using extraordinary authority unwisely, applying it across all industries at an arbitrary threshold of 100 employees that fails to factor in actual risks.”

“We are weighing all options of recourse to ensure every segment of our industry’s workforce is shielded from the unintended consequences of this misguided mandate,” Spear said.