Tag: 2022 News

The City of San Francisco generally requires employers to provide employees with paid sick leave based on hours worked in San Francisco. The City also provides its employees with paid sick leave. The City did not have a law addressing paid public health emergency leave. That will change on October 1, 2022.

On March 1, 2022, the Board of Supervisors voted 11 to 0 to place Proposition G on the ballot. And the Proposition has now been approved by 64.44% of City voters.

Starting on October 1, 2022, Proposition G would generally require private employers and the City to provide paid leave to employees for public health emergencies.

This requirement would apply to private employers with more than 100 employees worldwide and would cover only their employees working in San Francisco. The amount of leave provided each year would be equal to the number of hours that each employee regularly works over a two-week period, up to a maximum of 80 hours. This leave can be used only during a public health emergency. A public health emergency includes:

– – a local or state health emergency relating to any infectious disease, as declared by a local or state health official; or
– – when a Spare the Air Alert is in effect.

Employees may use public health emergency leave in several circumstances, including when:

– – the employee or their family member is unable to work due to the recommendations or requirements of a health order addressing the emergency;
– – the employee or their family member experiences symptoms of the disease causing the emergency or tests positive for the disease; or
– – the employee primarily works outdoors and has heart or lung disease, has respiratory problems, is pregnant, or is at least 60 years old when a Spare the Air Alert is in effect.

An employee may choose to use public health emergency leave or paid sick leave in circumstances where both could apply. Any unused public health emergency leave does not carry over to the next year.

With a federal judge in California is poised to rule that it misclassified janitors as contract workers and the D.C. attorney general suing them for wage theft, commercial cleaning company a report in Courthouse News says that Jan-Pro International is now arguing that it’s not in the janitorial business at all.

The Georgia-based company operates as a multilevel franchising scheme, selling cleaning businesses to “Regional Master Franchisees” throughout the nation who in turn sign “unit franchisee” agreements with individuals who perform the actual janitorial work.

Master franchisee middlemen pay janitors only after deducting 4% for Jan-Pro, and the janitors are also required to pay a “franchisee fee” to be allowed to work, from which the master franchisees pass on 10% to Jan-Pro.

“We are in the business of selling and supporting master franchises,” Jan-Pro attorney Jeffrey Rosin said. “There are a lot facts here, a lot of actual facts a jury could hold on to and find that Jan-Pro is not in the cleaning business.”

That argument didn’t appear to sway the federal judge who issued a tentative ruling ahead of Thursday’s hearing that mostly sides with the workers – granting them both class certification and summary judgment on a host of claims that include unlawfully deducting royalties and failing to pay minimum wages or reimburse for supplies, uniforms, and travel time.

In a lawsuit first filed in Massachusetts in 2008, low-wage cleaners accused Jan-Pro of preying on immigrant workers by inducing them to buy cleaning franchises while taking a hefty cut of their earnings as “royalties” and misclassifying them as independent contractors. Claims brought by janitors who live in California were eventually severed and transferred to the Northern District.

In finding for Jan-Pro in 2017, the federal judge applied the employment relationship defined by the California Supreme Court in Martinez v. Combs. Alsup also looked to the high court’s ruling in Patterson v. Domino’s Pizza, which determined that franchisors are not vicariously liable for franchisees’ workplace conduct.

The Ninth Circuit disregarded Patterson when it overturned Judge Alsup in 2019, since it was not a wage-and-hour case but focused instead on a franchisor’s vicarious liability for a worker’s sexual assault.

Then in 2018, the California Supreme Court ruled in Dynamex Operations West, Inc. v. Superior Court of Los Angeles that employers can only classify workers as independent contractors if they can show A) the hiring entity does not directly control the worker, B) the work falls outside the hiring entity’s usual course of business, and C) the worker is “customarily engaged in an independently established trade occupation, or business of the same nature as the work performed.”

The test was written into California Labor Code with the passage of Assembly Bill 5 in 2019.

Judge Alsup was asked to take another look at the case after the Supreme Court ruled that Dynamex applies retroactively. Having done so, Alsup found the janitors are necessary to Jan-Pro’s business under the “B” prong of the Dynamex test.

He also flatly rejected Jan-Pro’s argument that it’s not a cleaning business.

On Thursday, labor attorney Adelaide Pagano, a partner at Lichten & Liss-Riordan, urged Alsup to adopt his tentative decision. “It was exactly on point,” she said. “These cleaning workers are essential to its business and it is not correct for Jan-Pro to suggest it is in a different business than the cleaning franchisees.”

Rosin asked Alsup to reconsider, saying Jan-Pro should qualify for a Dynamex exemption under AB 5, which allows a more permissive standard for determining independent contractor status for a business that is contracted to provide services to another business.

Thursday’s hearing coincides with D.C. Attorney General Karl Racine suing the company over its labor practices, including misclassifying janitors and saddling them with unfair franchise fees.

Regenerative medicine is a new field of medicine in which orthopedic surgeons aim to move away from replacement and toward joint preservation. Using orthobiologics, they plan provide the body with the cells, materials, and stimulation it needs to heal without you ever going under the knife.

According to the report on News-Medical.net, the promise of regenerative medicine in orthopedics is a future where a joint replacement can be delayed for as long as possible, perhaps offering a solution to long transplant waiting lists for other disciplines of medicine. The main debate in orthobiologics is whether the body of evidence currently supports incorporating regenerative medicine techniques into national guidelines and conventional treatment strategies.

Case studies and anecdotal evidence often support orthobiologics (biological substances orthopedics surgeons can use to help the body heal) as a treatment option. However, the size and consistency of available studies are still a problem. There is plenty of evidence to support regenerative medicine techniques in specific circumstances such as osteoarthritis and tendinopathy. Still, a broader evidence base will be required before these treatments are accepted as standard practice in wider orthopedic circles.

The idea behind regenerative medicine isn’t new. More recently, regenerative medicine has focused on the implantation of cells to initiate healing in musculoskeletal structures, with the introduction of modern interventions such as platelet-rich plasma, mesenchymal stem cells, and injections of biomaterials that can induce a healing response.

Modern orthopedic regenerative medicine treatments still struggle to find a place within standard practice and large healthcare organizations, owing to the debate over whether the evidence base currently supports its use. Therapies such as platelet-rich plasma and adipose (fat cell) derived stem cell injections often require patients to pay out of pocket as insurance companies refuse to cover these forms of treatment.

There is, however, a growing number of practitioners who use orthobiologics as part of their standard practice. With a growing evidence base, these practitioners have started to treat conditions such as osteoarthritis and tendinopathy in this way, offering treatments including injection of:

– – Platelet-rich plasma – blood plasma with a high concentration of platelets taken from the patient’s blood.
– – Mesenchymal stem cells – stem cells sourced from fat tissue, bone marrow, and pregnancy-related sources such as the umbilical cord, amniotic fluid, and the placenta.
– – Biomaterials – biological substances such as autologous chondrocytes (cells taken from the patient which produce cartilage), bovine collagen, bone matrix, and proteins.

These orthobiologics are generally considered conservative treatments, meaning they are used as a less invasive alternative to surgery or as an additional option when other treatments have failed.

The popularity of orthobiologics is increasing, in no small part due to media coverage of famous athletes undergoing these procedures – Tiger Woods, Steph Curry, and Raphael Nadal, to name just a few. This may have added to the controversy surrounding regenerative medicine. In these circumstances, therapies were used to treat injuries and aid post-surgical healing – an area with less research backing.

Regenerative medicine holds the promise of delaying and possibly reducing surgical intervention in patients with degenerative joint conditions and musculoskeletal injuries. In the near future, we may see orthobiologics used as a middle-ground for conditions like arthritis, sitting somewhere between conservative treatment (such as steroid injection) and surgery.

In the far future, we may even see a complete overhaul of how we replace joints – moving away from metal and ceramic joint replacements towards biological replacement and regeneration. We can also expect a move towards orthobiologic injection as a preventative measure for degenerative joint conditions.

On July 8, Los Angeles Mayor Eric Garcetti signed an ordinance establishing a $25 minimum hourly wage for workers at eligible privately owned healthcare facilities. The signing came after the Los Angeles City Council voted unanimously June 29 in favor of raising the minimum wage.

The ordinance will affect workers in a range of roles at certain privately owned healthcare facilities in the city, such as acute care hospitals, affiliated clinics and skilled nursing facilities. Affected roles include clinicians, nurses, aides, technicians, maintenance workers, janitorial or housekeeping staff, groundskeepers, guards, food service workers, pharmacists and administrative or clerical workers. The increase excludes managers and supervisors.

According to a July 8 news release from the mayor’s office, the new minimum wage becomes effective 31 days after the ordinance is published. The office estimates the minimum wage increase will affect about 20,000 healthcare workers.

SEIU-UHW originally collected more than 145,000 signatures to put the pay increase on the Nov. 8 ballot. Councilmen Curren Price and Marqueece Harris-Dawson decided to move more quickly, pushing their colleagues to adopt the measure immediately.

But some are not happy with the new law.

A coalition of Los Angeles hospitals and other health facilities launched a campaign on Tuesday to repeal a newly enacted ordinance boosting the minimum wage for thousands of healthcare workers to $25 per hour, saying the law will have a harmful effect on medical care across the city. The coalition acted just days after Mayor Eric Garcetti signed the measure into law.

The No on the Unequal Pay Measure Coalition, a group sponsored by the California Assn. of Hospitals and Health Systems, said it will start gathering signatures this week for a referendum to put the wage hike question in front of voters.

The coalition claims that the new $25/hr minimum wage standard applies to certain workers at private hospitals, hospital-based facilities and dialysis clinics, but completely excludes workers who do the exact same job at public hospitals, clinics, and health care facilities, including all University of California and county hospitals and clinics.

The also complain that the measure also completely excludes workers at health care facilities not affiliated with hospitals, including community health clinics, Planned Parenthood clinics, nursing homes, medical centers, and more.

They say “hospitals and health care providers go to great lengths to pay all health care workers competitive, living wages with strong benefits. In fact, the average nurse working in a Southern California hospital earns $57 per hour, the average clinical worker earns $28 per hour, and the average non-clinical worker in a hospital earns approximately $18 per hour.”

To qualify the referendum for the ballot, the coalition would need to gather nearly 41,000 valid signatures from L.A. voters within 30 days. Such a move, if successful, would block the wage increase from going into effect – at least until an election to determine its fate.

A Los Angeles Times report on the new law says that at Gateways Hospital and Mental Health Center in Echo Park, administrators said they are weighing whether to scale back operations – possibly by as much as 20% – as a way of absorbing the increased costs. That 300-bed psychiatric facility serves a large number of people who are either homeless or at risk of becoming homeless, hospital CEO Phil Wong said in an interview.

In Woodland Hills, the nonprofit Motion Picture and Television Fund is now looking at how to cover a $1.5-million yearly increase in labor costs, according to Bob Beitcher, the fund’s chief executive. That increase is currently set to take effect in August.

Beitcher said some security guards at the motion picture fund’s 300-bed campus, which provides care for seniors who have retired from the entertainment industry, would receive pay increases of 40% to 50%. Some nursing assistants would see pay hikes of 30% to 40%, he said.

“The only way we could absorb that is either to cut back on services, which isn’t something we’d like to do, or fundraise another million and a half [dollars] per year,” he said.

WinCo Foods operates a supermarket chain with just over 100 locations across the western United States, including California.

When WinCo hires new employees, a Hiring Manager calls successful applicants to extend what WinCo terms a contingent offer of employment. The Hiring Manager informs the applicant of a mandatory drug test as part of the contingent job offer. When an applicant consents, WinCo instructs applicants to report to a testing location. It pays the drug testing facility’s fee, but does not compensate for the travel expenses and time required to undergo the testing.

Plaintiff Alfred Johnson, on behalf of himself and other WinCo employees in California, filed this class action in California state court. Johnson alleges violations of the California Labor Code relating to the payment of wages and business-related expenses and the California Business & Professions Code §§ 17200, et seq., proscribing unfair business practices. WinCo removed the case to federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d).

The federal district court certified the class, and then entered judgment in favor of WinCo on the ground that under California law, plaintiffs were not yet employees when they took the drug test. Plaintiffs appealed contending that they were employees. The 9th Circuit Court of Appeals affirmed in the published case of Johnson v WinCo Foods 21-55501 (June 2022).

The same issues have arisen in a number of similar cases removed from California state courts to federal district court. The other district courts in those cases have also ruled in favor of the employer. There is as yet, however, no authoritative California state court decision. Thus the 9th Circuit affirmed in a published opinion.

Plaintiffs argue on appeal that because the tests were administered under the control of the employer, plaintiffs must be regarded as employees, as California law applies a control test to determine whether an employment relationship exists. See Martinez v. Combs, 49 Cal. 4th 35, 64 (2010). Second, and alternatively, they contend that under California law the test should be regarded as a “condition subsequent” to their hiring as employees. See Cal. Civ. Code § 1438.

The 9th Circuit rejected both arguments noting that “the class members were not performing work for an employer when they took the preemployment drug test; they were instead applying for the job. They were not yet employees.”

Johnson relies in major part on a workers’ compensation case, Bowen v. Workers’ Compensation Appeals Board, 73 Cal. App. 4th 15 (1999). At issue in Bowen was whether an injured baseball player had been hired in California, where he accepted an offer subject to approval by the Commissioner of Baseball, or out of state, where the Commissioner was located and where the plaintiff worked. Johnson argues that this case is like Bowen and the employment contract was made when the class members accepted a comprehensive offer of employment over the phone.

The 9th Circuit distinguished this case by noting that the “court in Bowen, however, went to great lengths to explain that it was deciding a workers’ compensation case and its decision was guided by the policy of liberally construing contracts in favor of employees in accordance with California workers’ compensation law.”

“The Bowen opinion suggests that if the court had applied California contract law, rather than workers’ compensation principles, there would not have been a contract until all of the conditions were satisfied.”