Tag: 2022 News

A landmark employment law case will soon be decided by the California Supreme Court, which will require California’s top court to go head-to-head with the United States Supreme Court, over the application of employer arbitration agreements that seek to limit employees from pursuing Private Attorney General Act (PAGA) claims against them, and proceed to arbitration instead.

The soon-to-be landmark decision involves Erik Adolph, who was a driver for UberEATS, a meal delivery service. The company through which drivers are connected with those in need of UberEATS’ services is owned by Uber Technologies Inc..

Before he began making deliveries for UberEATS in March 2019, Adolph created an account to use the UberEATS app. In creating his account, Adolph accepted an arbitration agreement, which “is governed by the Federal Arbitration Act.”

In October 2019, Adolph filed a putative class action complaint against Uber, claiming that Uber had misclassified employees as independent contractors, and had therefore failed to reimburse the class members for necessary work expenses. The complaint was amended to include only a California Private Attorney General Act (PAGA) cause of action. Uber filed a petition to compel arbitration of Adolph’s individual claims, strike the class action allegations, and stay all court proceedings.

But the trial court denied Uber’s petition to compel arbitration citing California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384 and the cases following it, .

In Iskanian the California Supreme Court held “that an employee’s right to bring a PAGA action is unwaivable,” and that “here . . . an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law.”

Uber appealed the ruling of the trial court. On April 11, 2022 the Court of Appeal affirmed the trial court in the case of Adolph v Uber Technologies Inc. – G059860 (consol. w/ G060198). The case was unremarkable at the time, hence it was “unpublished.”

The Court of Appeal acknowledged that about 11 days prior to its April 11 opinion the “United States Supreme Court heard arguments on March 30, 2022, in the case of Viking River Cruises, Inc. v. Angie Moriana, case no. 20-1573 (Viking).” And that the issue before SCOTUS was “Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”

Nonetheless, rather than waiting for a decision by the SCOTUS, the Court of Appeal went ahead and fell in line with other California decisions and concluded that “Unless and until the United States Supreme Court or the California Supreme Court directly overrules it, the courts of this state must follow the rule of Iskanian (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), which establishes that the trial court did not err by concluding that the initial issue of whether Adolph can pursue a PAGA claim as an aggrieved employee must be decided by the trial court, not an arbitrator.”

About two months later, SCOTUS published its decision in Viking on June 15, 2022, agreeing with the employer, and limiting the application of Iskanian in California. It said “When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit.” As a result, Moriana would lack statutory standing to maintain her non-individual claims in court, and the correct course was to dismiss her remaining claims.

The U.S. Supreme Court decision in Viking has now – at least temporarily – disrupted the PAGA process against employer’s who have arbitration agreements in California Hence, on July 22, 2022 the California Supreme Court granted Uber’s Petition for Review in the Adolph case. The Uber case which was unremarkable is now remarkable, since the timing make it the case chosen to decide how Viking will work in California.

The case will now be the arena where California employers will wage their battle to limit the application of the Private Attorney General Act against them, in favor of arbitration of each employees individual claim. The outcome of the battle is uncertain, but will no doubt be closely followed, as it will have a major impact on California employment law – one way or the other.

Laguna Honda and Rehabilitation Center is a skilled nursing and rehabilitation center owned and operated by the San Francisco Department of Public Health. It is located on a 62-acre campus in the heart of the city,

Laguna Honda is one of the largest skilled nursing facilities in the United States, and represents the one of the most extensive commitments by any city or county to therapeutic care for seniors and adults with disabilities. It was founded in 1866 to care for one of the first generations of San Franciscans, the Gold Rush pioneers. A century and a half later, it remains a civic icon representing San Francisco’s tradition of service to the underserved.

In July 2021, Laguna Honda self-reported two non-fatal overdoses to the California Department of Public Health (CDPH), per standard Laguna Honda policy and federal regulations. That report triggered a series of inspections by CDPH and CMS. Laguna Honda was cited for deficiencies in care related to cigarette lighters and drug paraphernalia found on campus, infection prevention and control, as well as two missed doses of a medication.

Despite Laguna Honda’s work to correct the cited deficiencies, CMS terminated Laguna Honda’s Medicare and Medicaid provider agreements as a result of the deficiencies. The City has appealed that decision, and Laguna Honda intends to apply for re-certification in both Medicare and Medicaid with CMS. However, to continue federal funding, Laguna Honda was forced to prepare a closure and transfer plan.

SFDPH proposed a number of options based on its assessment of the Laguna Honda patient population and the known lack of skilled nursing beds that would have lessened the impact on existing patients, including a re-certification process that would not require relocating existing patients; an 18-month transfer plan that would give appropriate time to find alternative care and living arrangements for all patients; and a phased transfer process wherein the most vulnerable patients would be transferred last.

On May 13, 2022, CMS rejected all of those options and insisted on an unreasonable deadline of September 13, 2022, giving Laguna Honda just four months before federal funding would be cut off, the facility would be forced to close, and close to 700 patients would have to be transferred or discharged. There is an acute shortage of skilled nursing beds throughout California and the Bay Area, and it is simply impossible to find skilled nursing beds for all of Laguna Honda’s patients within the timeframe mandated by CMS.

Additionally, the City filed three administrative appeals contesting the CMS decision to terminate its contract with Laguna Honda. Those administrative appeals will not be decided until well after the September 13 deadline to close the facility, effectively denying the City, Laguna Honda, and patients the due process they are owed.

Thus far, nine patients who have been transferred or discharged from Laguna Honda have died days or weeks after transfer or discharge, underscoring the incredibly high stakes of moving such a fragile population of people in a rushed manner. The federal government, through CDPH, have temporarily paused patient transfers, but the September 13 deadline remains, giving the City less time to complete this daunting and ill-advised process.

However San Francisco City Attorney David Chiu and former City Attorney Louise Renne announced that they filed a pair of lawsuits over the federal government’s decision to cut off federal funding to Laguna Honda Hospital & Rehabilitation Center and mandate that the facility transfer or discharge all patients by September 13, 2022.

The City’s lawsuit against the U.S. Department of Health and Human Services (HHS) and Health and Human Services Secretary Xavier Becerra alleges that the Centers for Medicare & Medicaid Services (CMS), which operates under HHS, forced the City to implement an unworkable closure and transfer plan that denies the City due process and puts Laguna Honda patients at risk.

The complaint lays out how CMS imposed an arbitrary September 13 deadline to transfer Laguna Honda’s patients and has denied the City due process as the facility is required to close well before the City’s administrative appeals can be decided – appeals that would render the transfers unnecessary.

The lawsuit seeks declaratory and injunctive relief to eliminate the September 13 deadline and extend federal funding to Laguna Honda at least until the appeals can be decided and all patients can be safely transferred or discharged.

Similarly, Louise Renne, founding partner at the Renne Public Law Group (RPLG) and former San Francisco City Attorney, announced that she has filed a class action lawsuit against the state and federal government on behalf of Laguna Honda patients and families.

The RPLG complaint alleges that the closure of Laguna Honda and rushed transfer process violate the Americans with Disabilities Act and deny patients and their families substantive and procedural due process. The RPLG lawsuit is seeking declaratory and injunctive relief to continue federal funding to Laguna Honda and to stop patient transfers and discharges.

Robert Backus, a 40-year-old salesman for Schireson Bros, Inc., dba Volutone, filed two Applications, alleging that on 12/13/17 and during the period commencing 1/13/17 through 1/13/18, he sustained injury arising out of and occurring in the course of employment to his low back and lower extremities. The claims were denied by the employer.

Backus testified at the trial and the matter was continued for further testimony. At the next hearing, he testified and Rossana Harris was called as witness by defendant. The trial was continued and at the third hearing no additional exhibits were offered and there was no testimony; the matter was submitted for decision

The WCJ found that Robert Backus did not sustain injury arising out of and occurring in the course of employment to his low back and lower extremities; and Ordered that he take nothing by way of his injury claim.

The WCAB denied his Petition for Reconsideration in the panel decision of Robert Backus v Schireson Bros, Inc. – ADJ11847265-ADJ11741978 (June 2022).

Backus contended on Reconsideration that the reports from QME Allen Fonseca, M.D., were not properly considered regarding the issue of injury AOE/COE, that the reports from Dr. Fonseca are substantial evidence, that the decision was based on a “partial and unsubstantial record,” that his “unimpeached and uncontradicted” testimony must be accepted as substantial evidence, and that the record should be further developed.

Both the Panel and the WCJ noted that regarding applicant’s “unimpeached and uncontradicted” testimony, the WCJ stated in the Report, Backus, ”had highly questionable credibility due to the fact that he failed to disclose his prior back injury to either examining physician” … “and initially denied such injury under oath until confronted with the records of same.” The WCJ also noted that applicant’s testimony, “was in fact rebutted by Defense witness Rossana Harris.”

The Panel cited numerous authorities for the proposition that “It is well established that a WCJ’s opinions regarding witness credibility are entitled to great weight.“

The Panel went on to say that “most of applicant’s arguments are premised on his contention that the WCJ erred by not considering the reports from QME Dr. Fonseca.” However after having “reviewed the entire trial record, it is clear that the WCJ is correct; the trial record contains no reports from Dr. Fonseca.”

As to the issue of whether the record should be further developed, the panel said “applicant is correct that the Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue.”

Citing numerous case authorities, and referring to footnote 2 of the WCJ Report, the panel went on to say “if a party fails to meet its burden of proof by failing to introduce competent evidence, it is not the job of the Appeals Board to rescue that party by ordering the record to be developed.”

Abelardo Martinez, Jr. filed a civil lawsuit against Cot’n Wash, Inc. (CW) alleging a single violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.). He alleged CW violated the Unruh Act by intentionally maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software.

The Unruh Act provides that “[a]ll persons within the jurisdiction of this state . . . no matter what their . . . disability . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).)

CW “owns, operates and provides to the public” a website that “provides access to [CW’s] array of products and services, including descriptions of its products, . . . [and an] online shop.” CW is not alleged to offer any products and services at any physical location, or in any manner other than through its website.

Martinez is “permanently blind and uses screen readers in order to access the internet and read website content.” There are “well-established, industry standard guidelines for ensuring websites are accessible to blind and visually-impaired people” using screen reading software.

The trial court sustained a demurrer to the complaint without leave to amend. The Court of Appeal affirmed the dismissal in the published case of Martinez v Cot’n Wash, Inc. – B314476 (August 2022).

On appeal, Martinez argues that the trial court erred in concluding (1) the alleged inaccessibility of CW’s website did not violate the Americans with Disabilities Act (42 U.S.C. § 12111 et seq.) (the ADA), specifically Title III of the ADA (42 U.S.C. §§ 12181−12189) (Title III) and (2) the complaint did not allege sufficient facts to establish CW’s discriminatory intent, which the Unruh Act requires in the absence of an ADA violation.

The Court of Appeal held that the trial court was correct on both points.The key issue was whether CW’s website constitutes a “place of public accommodation” for the purposes of Title III. (42 U.S.C. § 12182(a).)

“The ADA defines the phrase ‘. . . public accommodation’ by enumerating 12 categories of covered ‘places’ and ‘establishments,’ giving nonexclusive examples of types of enterprises falling into each category. [Citations.] The listed examples mainly reference physical locations. The implementing regulations similarly define a public accommodation by referring to a ‘facility,’ which is in turn defined as ‘all or any portion of buildings, structures, sites, complexes, equipment, rolling stock . . . or other real or personal property, including the site where the building, property, structure, or equipment is located.’ ‘

This is not surprising as there were no commercial websites when the ADA was enacted in 1990.

Martinez argued that the plain meaning of “place of public accommodation” is alone sufficient for the Court of Appeal to adopt the broader view taken by several federal courts – namely, that a physical place is not a necessary component of the ADA’s definition of a place of public accommodation.

However the opinion disagreed “that the plain language of the statute is alone sufficient to decide the issue – let alone sufficient to decide the issue in Martinez’s favor.” Dictionaries “overwhelmingly” define “place” as involving a physical location.

The opinion when on to note that “Congress and the DOJ have long been aware of the confusion in the courts regarding whether and when a website can be considered a ‘place of public accommodation,’ but have chosen not to clarify the issue through amendments to the statute or additional rulemaking. The federal circuit split began in the 1990’s, and resolving it – be it through judicial or legislative means – has been the topic of legal scholarship ever since then.”

“It thus appears that, no later than 2010, Congress and the DOJ (1) both recognized the need to clarify whether and under what circumstances a website might constitute a ‘place of public accommodation,’ and (2) agreed that such clarification should take a broad and inclusive approach. The only conclusion we can draw from their failure in the 12 years that followed to provide any such clarification through regulation or statute is that neither officially endorses this approach.”

On March 6, 2015 Cristina Jackson was working as a package handler for FedEx Ground Package System, Inc. when she sustained injury arising out of and in the course of employment to her right knee and left knee. The employer accepted the claim and provided medical treatment and indemnity benefits.

Dr. Han reported in the case as a QME. He diagnosed her with bilateral post-traumatic osteoarthritis of the knee post knee replacement, internal derangement of the right knee with lateral meniscus tear and internal derangement of the left knee with lateral and medial meniscus tear. He described Applicant’s medical history which included prior bilateral meniscectomies in 1995 and 1996 and a left ACL reconstruction in 1992.

In his April 5, 2019 report, Dr. Han apportioned 60% of the disability to pre-existing and 40% to the industrial injury. He explained that Jackson had prior surgeries, fell off a curb in 2016, and had obesity resulting in degenerative changes that made the bilateral total knee replacement surgeries necessary, which is the basis for the permanent disability.

After a trial on the issue of permanent disability, the WCJ found that the injury resulted in permanent disability of 21%, after 60% apportionment to “other factors” of permanent disability under Labor Code section 4663(c)

In her Petition for Reconsideration, Jackson contends that the medical opinion of Dr. Han is not substantial evidence of apportionment under the requirements of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [Appeals Board en banc] and that since applicant’s permanent disability rating is based on her bilateral knee replacement surgeries necessitated by the industrial injury, she is entitled to an unapportioned award pursuant to Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679].

The WCAB panel affirmed the apportionment, however it clarified the WCJ’s discussion of Hikida in the panel decision of Jackson v FedEx ADJ10048474 (June 2022)

After the panel concluded that “Dr. Han’s three medical reports, taken together, are substantial evidence justifying the WCJ’s determination that 60% of applicant’s permanent disability is caused by non-industrial ‘other factors’ under Labor Code section 4663(c)” it went on to review the Hikida decision in greater detail.

“Dr. Han convincingly explained that apportionment of the need for those surgeries applied equally to apportionment of the permanent impairment. However, we do not adopt or incorporate the discussion of Hikida found in the WCJ’s Report.”

The panel went on to explain that “the Hikida principle is not limited to situations involving failed treatment or new injuries. In County of Santa Clara v. Workers’ Comp. Appeals Bd. (Justice) (2020) 49 Cal.App.5th 605, 615 [85 Cal.Comp.Cases 467], however, the Court of Appeal does seem to have made an attempt to limit Hikida, with the Court in Justice stating: ‘Hikida precludes apportionment only where the industrial medical treatment is the sole cause of the permanent disability.’ ” (Italics added.)

“The instant case is more like Justice than Hikida. In Hikida, the injured employee developed the entirely new medical condition of CRPS following her treatment and surgery, whereas here, as in Justice, the applicant had a significant prior history of the same knee problems and degenerative conditions, some of them non-industrial, which continued to the date of injury.”