Tag: 2022 News

Spectrum Security Services, Inc., provides secure custodial services to federal agencies. The company transports and guards prisoners and detainees who require outside medical attention or have other appointments outside custodial facilities.

Gustavo Naranjo was a guard for Spectrum. Naranjo was suspended and later fired after leaving his post to take a meal break, in violation of a Spectrum policy that required custodial employees to remain on duty during all meal breaks.

Naranjo filed a putative class action on behalf of Spectrum employees, alleging that Spectrum had violated state meal break requirements under the Labor Code and the applicable Industrial Welfare Commission (IWC) wage order. (Lab. Code, § 226.7; IWC wage order No. 4-2001, § 11.) The complaint sought an additional hour of pay – commonly referred to as “premium pay” – for each day on which Spectrum failed to provide employees a legally compliant meal break.

According to the complaint, Spectrum was required to report the premium pay on employees’ wage statements and timely provide the pay to employees upon their discharge or resignation, but had done neither. The complaint sought the damages and penalties prescribed by those statutes as well as prejudgment interest.

After a remand from the Court of Appeal (Naranjo I v. Spectrum Security Services, Inc. (2009) 172 Cal.App.4th 654) on several issues, the trial court certified a class for the meal break and related timely payment and wage statement claims and then held a trial in stages. The trial court entered judgment for the plaintiff class on the meal break and wage statement claims and awarded attorney fees and prejudgment interest at a rate of 10 percent.

Both sides appealed. The Court of Appeal affirmed the trial court’s determination that Spectrum had violated the meal break laws but reversed the court’s holding that a failure to pay meal break premiums could support claims under the wage statement and timely payment statutes. It also ordered the rate of prejudgment interest reduced from 10 to 7 percent. (Naranjo II v. Spectrum Security Services, Inc. (2019) 40 Cal.App.5th 444).

The California Supreme Court disagreed with the Court of Appeal, decision in Naranjo II, and concluded that the extra pay constitutes wages subject to the same timing and reporting rules as other forms of compensation for work, but agreed that the 7 percent default rate set by the state Constitution applies. (See Cal. Const., art. XV, § 1.) in its opinion in Naranjo III v Spectrum Security Services Inc. (2022) S258966.

California’s meal and rest break requirements date back to 1916 and 1932, respectively, when the newly created IWC included the requirements in a series of wage orders. For most of the century following the promulgation of the break requirements, the law offered limited tools for enforcement: “The only remedy available to employees . . . was injunctive relief aimed at preventing future abuse.”

In 2000, concerned that the injunctive remedy had not given employers enough incentive to comply with the law, the IWC added a new monetary remedy. Employees denied a meal or rest break on a given day would be due “one (1) hour of pay at the employee’s regular rate of compensation.” The Legislature followed suit the same year by enacting Labor Code section 226.7 providing essentially the same remedy.

An employee who remains on duty during lunch is providing the employer services; so too the employee who works without relief past the point when permission to stop to eat or rest was legally required. Section 226.7 reflects a determination that work in such circumstances is worth more – or should cost the employer more – than other work, and so requires payment of a premium. In this respect, missed-break premium pay is comparable to other forms of payment for working under conditions of hardship.

The extra pay thus constitutes wages subject to the same timing and reporting rules as other forms of compensation for work. When an employment relationship comes to an end, the Labor Code requires employers to promptly pay any unpaid wages to the departing employee.

In January, progressive California Democrats vowed to adopt the toughest Covid vaccine requirements in the country. Their proposals would have required most Californians to get the shots to go to school or work – without allowing exemptions to get out of them.

Democrats unveiled eight bills to require vaccinations, combat misinformation, and improve vaccine data. Two were sweeping mandates that would have required employees of most indoor businesses to get shots and added Covid vaccines to the list of immunizations required for schools.

But, according to the report in Kaiser Health News, most of the proposed legislation imploded.

Months later, the lawmakers pulled their bills before the first votes. One major vaccine proposal survives, but faces an uphill battle. It would allow children ages 12 to 17 to get a covid-19 vaccine without parental permission.

“It’s important that we continue to push for vaccine mandates the most aggressively we possibly can,” state Assembly member Buffy Wicks (D-Oakland) told KHN in early 2022. She was the author of the workplace mandate bill.

In March, Wicks’ worker vaccine mandate proposal died. It was strongly opposed by firefighter and police unions, whose membership would have been subject to the requirement.

“I don’t think the anti-vaxxers carry much weight in Sacramento with my colleagues,” Wicks said. “They’re a pretty insignificant part of the equation.” The public safety unions who opposed the bills “are the ones that carry the weight and influence in Sacramento,” she said.

Democrats also blamed the failure of their vaccine mandates on the changing nature and perception of the pandemic. They said the measures became unnecessary as case rates declined earlier this year and the public became less focused on the pandemic. Besides, they argued, the state isn’t vaccinating enough children, so requiring the shots for attendance would shut too many kids out of school.

Political pressure from business and public safety groups and from moderate Democrats – along with vocal opposition from anti-vaccine activists – also contributed.

“Now, even as case rates start to balloon again, the window of opportunity to adopt covid vaccine mandates may have closed,” said Hemi Tewarson, executive director of the National Academy for State Health Policy. “Given the concerns around mandates and all the pushback states have received on this, they’re hesitant to really move forward,” Tewarson said. “Federal mandates have stalled in the courts. And legislation is just not being enacted.”

Other states have also largely failed to adopt covid vaccine requirements this year. Washington, D.C., was the only jurisdiction to pass legislation to add the covid vaccine to the list of required immunizations for K-12 students once the shots have received full federal authorization for kids of those ages. A public school mandate adopted by Louisiana in December 2021 was rescinded in May.

The most popular vaccine legislation has been to ban covid vaccine mandates of any kind, which at least 19 states did, according to the National Academy for State Health Policy.

Dr. Akikur Reza Mohammad, 58, of West Hills, California was sentenced to 15 months in prison for his role in a conspiracy to broker patients as part of a multi-state patient referral kickback scheme in which recruiters were directed to bribe drug-addicted individuals to enroll in drug rehabilitation. The sentence followed his guilty plea on September 15, 2020.

Mohammad graduated from the Peoples Friendship University of Russia Faculty of Medicine in 1988, and currently still holds a valid license as a physician and surgeon in California.

He owned and operated the Las Virgenes Behavioral Health And Medical Clinic in Agoura Hills California. Several of his co-conspirators owned and operated a California marketing company. They orchestrated the scheme that involved bribing individuals addicted to heroin and other drugs to enter into drug rehabilitation centers, generating fees from those facilities in New Jersey, Maryland, California, and other states

The marketing company organized patient recruitment where Mohammed paid for patient referrals in exchange for kickbacks in part covered by reimbursements from health care programs. He received more than $439,000 from such programs.

The marketing company’s recruiters would encourage patients to remain at a facility for at least ten days to ensure reimbursement. The marketing company also steered patients to additional facilities to trigger extra payments without regard to medical necessity. Referral payments ranged from $5,000 to $10,000 per patient.

Mohammad pled guilty to violating the Eliminating Kickbacks in Recovery Act (“EKRA”) 18 U.S.C. § 220, one of the country’s first convictions under this statute targeting opioid kickbacks.

EKRA was enacted by Congress in October 2018 as part of a broader package of legislation aimed at combating the opioid crisis. The law bars the payment of kickbacks in exchange for the referral of patients to drug treatment facilities. Mohammad’s EKRA conviction is among the first such convictions in the country using the new charge.

Congress enacted EKRA as a part of the bipartisan Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act of 2018 (the “SUPPORT Act”), to respond to the opioid epidemic.

EKRA prohibits patient brokering and kickback arrangements involving recovery homes, clinical treatment facilities and clinical laboratories regardless of whether the service was paid by a government payor. Penalties for violation of EKRA include a fine of not more than $200,000, imprisonment of not more than ten years, or both, per violation.

However, EKRA goes further in prohibiting kickbacks for all recovery homes, clinical treatment facilities and clinical laboratories without requiring any tie to opioid or other drug treatment. Thus far, known enforcement cases under EKRA have focused on opioid and drug treatment cases.

Shortly after the enactment of EKRA, the Department of Justice (DOJ) created the Sober Homes Initiative in 2020 to focus on fraud schemes in the substance-abuse-treatment industry. Seeking to enforce EKRA, the Sober Homes Initiative focused on bringing criminal charges against medical providers believed to feed patient addictions in order to continue billing for their recovery.

Enforcement under EKRA can help shed light on questions remaining concerning the statute’s broad definitions, particularly around laboratory services, and its application in light of other federal laws such as the federal anti-kickback statute (AKS). Questions remain as to how EKRA interacts with the AKS, particularly for laboratory services, as the AKS has statutory and regulatory safe harbors that do not apply to EKRA-prohibited conduct.

In addition to the prison term, Mohammad was sentenced to three years of supervised release and ordered him to pay restitution of $493,104.

Michelle Roman began working for Hertz Local Edition Corporation in 2018. By 2020, she had been promoted to the position of management associate at the National City, California branch.

During 2020, Roman and other employees rotated responsibility for conducting COVID-targeted screenings for employees entering the workplace. To perform these screenings she received training on COVID-safe policies and how to screen employees for COVID-related symptoms.

She understood that it was her responsibility “to know and adhere to the protocols,” one of which was that “employees showing . . . recognized indications of COVID-19 not be admitted to company facilities.” Recognized indications of COVID-19 included “feeling unwell and experiencing cough or shortness of breath.”

On September 4, after having vague symptoms for a few days while continuing to work, she tested positive for COVID-19 and reported the results to her employer. She was told that because she tested positive for COVID-19 and therefore was not allowed to work, she would receive 80 hours of COVID-19 pay in accordance with Hertz’s policies. She remained quarantined at home until September 18 when she received a negative result from a repeat test taken on September 16.

However she was terminated from employment for violating Hertz COVID protocols for coming to work between September 1-4 despite feeling sick, achy and tired and scheduling a COVID test for herself.

Roman filed suit against Hertz alleging disability discrimination based on an actual and/or perceived disability, wrongful termination in violation of public policy, failure to provide reasonable accommodation, failure to engage in the interactive process, and failure to timely pay wages. The trial court granted summary judgment in favor of Hertz in the case of Roman v Hertz, 20cv2462-BEN (May 2022)

The basis for most of Roman’s claims was that because she became infected with COVID-19 she suffered from a disability (or alternatively was perceived as suffering from a disability). Because she suffered from a disability, she claimed she was entitled to protection against discriminatory and adverse actions under FEHA.

Whether contracting COVID-19 qualifies as a disability under FEHA was a question of first impression. Without guidance from the California courts, the federal Court looked to regulations issued by the California Department of Fair Employment and Housing.

FEHA defines a physical disability as a physiological condition that affects one or more body systems. Cal. Govt. Code § 12926(m)(1)(A). The disability must also limit a major life activity. Id. § 12926(m)(2)(B). A condition limits a major life activity if it makes the achievement of the major life activity difficult. Id. § 12926(j)(1)(B), (m)(1)(B)(ii).

On the other hand, a disability is not a condition that is mild or does not limit a major life activity 2 Cal. Code Regs. § 11065(d)(9)(B).

If one has a disability, FEHA prohibits employers from firing or discriminating against an employee in “compensation or in terms, conditions, or privileges of employment” because of the disability. Cal. Gov. Code § 12940(a). FEHA instructs courts to construe its protections broadly.

Hertz contends that Roman’s COVID-19 infection falls under Cal. Code Regs. tit. 2, § 11065(d)(9)(B), which excludes certain conditions from FEHA’s definition of disability. Roman disagrees, claiming that her infection, although temporary, qualified as a disability.

The Court concluded that “temporary symptoms akin to the common cold or seasonal flu, COVID-19 will fall outside the FEHA definition of ailments considered a disability, pursuant to § 11065(d)(9)(B). Because the facts on summary judgment about Roman’s COVID-19 infection are not genuinely disputed, and because the symptoms of her infection were mild with little or no residual effects, Roman’s COVID-19 infection is excluded from FEHA’s definition of disability.”

The Court noted however that “it should not go without saying that for some individuals COVID-19 can cause exceedingly severe, even deadly, symptoms with long durations that would easily qualify as a FEHA disability.”

The World Economic Forum Annual Meeting 2022 is taking place in Davos, Switzerland between May 23-26. The Annual Meeting 2022 convenes at the most consequential geopolitical and geo-economic moment of the past three decades and against the backdrop of a once-in-a-century pandemic.

The meeting brings together over 2,000 leaders and experts from around the world, all committed to a “Davos Spirit” of improving the state of the world.

Speaking as a panelist at the Davos meeting, Moderna CEO Stéphane Bancel was complaining about having to “throw away” 30 million doses of Covid-19 vaccine because “nobody wants them. We have a big demand problem.”

Bancel’s comments come days after Bloomberg reported that EU health officials want to amend contracts with Pfizer and other vaccine makers in order to reduce supplies, as a number of European countries are overflowing with shots they can’t use — and they’re telling drug companies they don’t want to pay for more.

Health officials from European Union members including Poland, Slovakia, Romania, Bulgaria, Luxembourg, Finland, the Netherlands and the three Baltic states met to discuss amendments to contracts with producers such as Pfizer Inc., as supplies overflow and storage costs mount for shots with short shelf lives.

The push to change agreement terms highlights how the 27-nation bloc has shifted to a new phase in its battle against the virus. While demand is falling just a year after countries had to scramble to gain access to supplies, Bloomberg reports that “many EU members remain far from the goal of a 70% inoculation rate.”

And things are not much better in our nation, as US News reports that many areas of the U.S., states are scrambling to use stockpiles of doses before they expire and have to be added to the millions that have already gone to waste.

State health departments told The Associated Press they have tracked millions of doses that went to waste, including ones that expired, were in a multi-dose vial that couldn’t be used completely or had to be tossed for some other reason like temperature issues or broken vials.

Nearly 1.5 million doses in Michigan, 1.45 million in North Carolina, 1 million in Illinois and almost 725,000 doses in Washington couldn’t be used.

The percentage of wasted doses in California is only about 1.8%, but in a state that has received 84 million doses and administered more than 71 million of them, that equates to roughly 1.4 million doses. Providers there are asked to keep doses until they expire, then properly dispose of them, the California Department of Public Health said.

The national rate of wasted doses is about 9.5% of the more than 687 million doses that have been delivered as of late February, the Centers for Disease Control and Prevention said. That equates to about 65 million doses.

And more than a million doses of the Russian Sputnik vaccine just expired in Guatemala, because nobody wanted to take the shot.

In fact, supplies are so strong that the CDC now advises doctors that it’s OK to discard doses if it means opening up the standard multi-dose vials to vaccinate a single person and the rest has to be tossed.