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Tag: 2021 News

Sun-Maid Growers Faces Labor Law Class Action

A proposed class action just filed in a federal court in California, alleges Sun-Maid Growers of California has failed to pay proper wages and provide adequate meal and rest breaks to workers at its raisin and dried fruit processing plant.

The plaintiff, who worked for Sun-Maid from September 2016 to March 2020, alleges in the 55-page complaint that the company has unilaterally and unlawfully failed to accurately calculate overtime wages to avoid paying such.

Further, Sun-Maid has allegedly failed to accurately record the amount of time employees worked despite being required by law to do so, and permitted work to be done off the clock without pay, the case says.

More specifically, the lawsuit alleges Sun-Maid required the plaintiff and similarly situated employees to work while clocked out during what was supposed to be off-duty meal breaks. The plaintiff, the suit claims, was from time to time interrupted by work assignments, and there were many days where the man did not even receive a partial lunch, according to the lawsuit. Per the case, Sun-Maid workers were deprived of an off-duty meal period for every five hours worked during a shift, as well as a second off-duty meal period when they were required to work 10 hours.

Further, the lawsuit claims Sun-Maid, from time to time, failed to pay wages, including overtime, for every hour worked, such that employees were in aggregate underpaid wages due to the defendant’s “pattern and practice of unevenly rounding” their hours worked. Instead of receiving overtime at one-and-one-half times their regular rate of pay,

The case alleges Sun-Maid failed to include non-discretionary incentive pay in employees’ regular rates of pay for the purpose of calculating overtime wages. Per the suit, workers were also underpaid when it came to sick pay, as Sun-Maid allegedly failed to pay such at their regular pay rate and instead remitted the wages based on their base rates of pay sans non-discretionary incentives.

The case also alleges Sun-Maid failed to reimburse workers for business expenses, in particular for the required use of their personal cell phones for work purposes.

Sun-Maid has not yet entered an appearance in the federal case, and has not filed any responsive document.

New Problems with Reserving for Lifetime Awards

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.

Another $500K EDD Fraud Perpetrator Pleads Guilty

A San Dimas man pleaded guilty to a criminal charge that he fraudulently obtained more than $500,000 in COVID-19-related unemployment benefits in the names of foreign nationals he falsely claimed were local real estate agents hit hard financially by the pandemic.

50 year old Bonifacio Jastilana Marinas, pleaded guilty to a single-count criminal information charging him with mail fraud.

According to his plea agreement, from April 2020 to August 2020, Marinas took advantage of provisions in the CARES Act to file approximately 85 unemployment insurance claims with the California Employment Development Department (EDD) that falsely asserted that the named claimants were self-employed real estate agents in Los Angeles County whose jobs had been adversely impacted by the COVID-19 pandemic.

Marinas often listed his own real estate business – Vintage Realty & Finance Inc., located in West Covina – as the purported workplace of the named claimants.

In actuality, the named claimants resided in Saipan or the Philippines, were not registered as real estate agents in Los Angeles County, had no employment history in California, and were not eligible for the benefits Marinas claimed.

Marinas listed his own residence as the mailing address for each of the named claimants, the plea agreement states. As a result, the debit cards used to distribute the unemployment benefits were mailed to Marinas, who then used them to withdraw the fraudulently obtained funds.

In his plea agreement, Marinas admitted that his scheme caused losses to EDD and the United States Treasury of at least $516,244.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act passed by Congress and signed into law in March 2020, helped provide unemployment insurance benefits during the COVID-19 pandemic to people who did not otherwise qualify, including business owners, self-employed workers, independent contractors, and those with a limited work history.

A June 24 sentencing hearing has been scheduled, at which time Marinas will face a statutory maximum sentence of 20 years in federal prison.

This matter was investigated by the Department of Labor Office of Inspector General, IRS Criminal Investigation; the United States Postal Inspection Service, and the United States Secret Service. EDD Investigations provided substantial assistance.

L.A. McDonald’s Cited for Retaliation and Labor Law Violations

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.

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.