Tag: 2023 News

Martin Mariano, an employee of L & S Framing Inc., was working on a residential house under construction when he fell from the unprotected second floor stairwell onto the concrete ground floor below, sustaining serious injuries.

Ronald Aruejo, a senior safety engineer for the Cal/OSHA, issued plaintiff L & S Framing Inc., three general citations and one serious accident-related citation. Only the serious accident-related citation is at issue in this appeal.

The subsequent citation itself set forth the following: “[T]he employer did not provide the exposed sides of a stairway with temporary railings and toe board as prescribed in Section 1620. As a result, an employee was seriously injured when he fell from the exposed side of the stairway and landed approximately 11 feet below onto a concrete floor.” The citation cited section 1626, subdivision (a)(5), which is a section that does not exist. Plaintiff appealed the citation.

A hearing before an ALJ followed. The hearing occurred over four days, November 14 and 15, 2017, and September 5 and 6, 2018. On the first day of the hearing, the ALJ granted the Cal/OSHA’s request to amend the citation to refer to section 1626, subdivision (b)(5) which provides that “Unprotected sides and edges of stairway landings shall be provided with railings.” rather than nonexistent subdivision (a)(5), which according to Ronald Aruejo was a typographical error.

During the trial much of the testimony involved describing the correct characterization of the stairway within the meaning of various subsections of section 1626. At one pont the ALJ denied the Division’s mid-hearing request to amend the citation to allege a violation of section 1632, subdivision (b)(1) which requires that “Floor, roof and skylight openings shall be guarded by either temporary railings and toeboards or by covers.” And later denied the Division’s post-hearing motion to amend to allege violation of section 1626, subdivision (a)(2), which provides that ” Railings and toeboards meeting the requirements of Article 16 of these safety orders shall be installed around stairwells” and concluded the Division failed to prove the alleged violation of section 1626, subdivision (b)(5).

The Division filed a petition for reconsideration with the California Occupational Safety and Health Appeals Board which concluded the ALJ improperly denied the two requests to amend and upheld the citation based on violation of both section 1632, subdivision (b)(1) and 1626, subdivision (a)(2).

L & S Framing Inc.,filed a petition for a writ of mandate in the trial court and the trial court denied the petition. L & S Framing Inc., then filed an appeal with th California Court of Appeal which affirmed the trial court in the unpublished case of L & S Framing Inc., v Cal/SOSHA – C096386 (June 2023).

On appeal the employer asserts the trial court erred in permitting the Appeals Board to amend the citation, and asserts the Appeals Board ultimately found a violation based on two regulations that were not correctly pled.

In rejecting this assertion, the Court of Appeal noted that the Labor Code provides that the “rules of practice and procedure adopted by the appeals board shall be consistent with,” among other things, Government Code section 11507. which provides, in part: “At any time before the matter is submitted for decision, the agency may file, or permit the filing of, an amended or supplemental accusation . . . .” Thus, Government Code section 11507 contemplates amendments to accusations, and, pursuant to Labor Code section 6603, the rules of practice adopted by the Appeals Board shall be consistent with that provision.

Section 371.2, a rule of practice and procedure adopted by the appeals board, expressly addresses amendments of a citation or appeal. Among other things, it provides that a “request for an amendment that does not cause prejudice to any party may be made by a party or the Appeals Board at any time.”

“[A]mendments to pleadings in the administrative hearing context are liberally allowed.” (Calstrip Steel Corporation (Cal. OSHA, June 30, 2017, Nos. 12-R3D6-1998, 1999) 2017 CA OSHA App.Bd. Lexis 66 at p. *15.)

The employer also argued the issue of “did the location from which Mariano fell constitute a stairwell within the meaning of section 1626, subdivision (a)(2) and/or a floor opening within the meaning of section 1632, subdivision (b)(1).” Or is 1716.2, subdivision (f) the applicable regulation. That regulation requires fall protection “around all unprotected sides or edges” for work performed on floors that will later be enclosed by framed exterior walls, but only when the work is performed more than 15 feet above the floor level below. The fall here was less than 11 feet to the concrete floor below.

The Appeals Board concluded that, when plaintiff’s workers removed the railing, they “create[ed] a hole or empty space from which people or things could fall through.” The Appeals Board continued: “Mariano fell through the opening, which was unguarded and unprotected contrary to section 1632, subdivision (b)(1)’s mandate.”

Thus the Court of Appeal concluded the Appeals Board’s construction and interpretation of section 1632, subdivision (b)(1) comports with the plain meaning of the terms used in that provision. In the particular context of workplace health and safety here at issue, our high court has reviewed the statutory structure and – noting that the relevant provisions “speak in the broadest possible terms” – has concluded that “the terms of the legislation are to be given a liberal interpretation for the purpose of achieving a safe working environment.”

Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest.

In 2012, Groff took a mail delivery job with the United States Postal Service. Groff’s position generally did not involve Sunday work, but that changed after USPS agreed to begin facilitating Sunday deliveries for Amazon. To avoid the requirement to work Sundays on a rotating basis, Groff transferred to a rural USPS station that did not make Sunday deliveries.

After Amazon deliveries began at that station as well, Groff remained unwilling to work Sundays, and USPS redistributed Groff’s Sunday deliveries to other USPS staff. Groff received “progressive discipline” for failing to work on Sundays, and he eventually resigned.

Groff sued under Title VII of the Civil Rights Act of 1964, asserting that USPS could have accommodated his Sunday Sabbath practice without undue hardship on the conduct of USPS’s business. 42 U. S. C. §2000e(j).

The District Court granted summary judgment in favor USPS. The Third Circuit affirmed based on this Court’s decision in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, which it construed to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” 35 F. 4th 162, 174, n. 18 (quoting 432 U. S., at 84). The Third Circuit found the de minimis cost standard met here, concluding that exempting Groff from Sunday work had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.”

The United States Supreme Court reversed in the case of Groff v DeJoy Postmaster General, – No. 22-174 (June 2023).

SCOTUS began it’s Opinion by noting “This case presents the Court’s first opportunity in nearly 50 years to explain the contours of Hardison. The background of that decision helps to explain the Court’s disposition of this case.”

Title VII of the Civil Rights Act of 1964 made it unlawful for covered employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment,because of such individual’s . . . religion.“

As originally enacted, Title VII did not spell out what it meant by discrimination “because of . . . religion.” Subsequent regulations issued by the EEOC obligated employers “to make reasonable accommodations to the religious needs of employees” whenever doing so would not create “undue hardship on the conduct of the employer’s business.” 29 CFR §1605.1 (1968).

Hardison concerned an employment dispute that arose prior to the 1972 amendments to Title VII. In 1967, Trans World Airlines hired Larry Hardison to work in a department that operated “24 hours per day, 365 days per year” and played an “essential role” for TWA by providing parts needed to repair and maintain aircraft. Hardison later underwent a religious conversion and began missing work to observe the Sabbath. Attempts at accommodation failed, and TWA discharged Hardison for insubordination.

Hardison sued TWA and his union, and the Eighth Circuit sided with Hardison. The Eighth Circuit found that reasonable accommodations were available to TWA.

Applying this interpretation of Title VII and disagreeing with the Eighth Circuit’s evaluation of the factual record, the Court identified no way in which TWA, without violating seniority rights, could have feasibly accommodated Hardison’s request for an exemption from work on his Sabbath.

However, the parties in Hardison had not focused on determining when increased costs amount to “undue hardship” under Title VII separately from the seniority issue. But the Court’s opinion in Hardison contained this oft-quoted sentence: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Subsequently, “lower courts have latched on to ‘de minimis’ as the governing standard.”

Returning to the Groff case, SCOTUS concluded “that showing “more than a de minimis cost,” as that phrase is used in common parlance, does not suffice to establish “undue hardship” under Title VII. Hardison cannot be reduced to that one phrase. In describing an employer’s “undue hardship” defense, Hardison referred repeatedly to “substantial” burdens, and that formulation better explains the decision. The Court understands Hardison to mean that “undue hardship” is shown when a burden is substantial in the overall context of an employer’s business. This fact-specific inquiry comports with both Hardison and the meaning of “undue hardship” in ordinary speech.

Hence “Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”

The California Supreme Court agreed to review the constitutionality of Uber and Lyft-backed ballot initiative that allows the companies to classify their drivers as independent contractors.

The controversy began In 2019 when the California Legislature enacted AB-5, which established a new test for distinguishing between employees and independent contractors for the purposes of the Labor Code and Unemployment Insurance Code.

In response, Davis White and Keith Yandell, supported by a group called Protect App-Based Drivers and Services proposed Proposition 22. Among the supporters of Protect Drivers and Proposition 22 were rideshare and delivery network companies such as Uber Technologies, Inc., Lyft, Inc., and DoorDash, Inc.

The voters approved Proposition 22 in November 2020, with 58.6 percent of voters in favor and 41.4 percent opposed. It added sections 7448 to 7467 to the Business and Professions Code.

Shortly afterwards, Hector Castellanos, Joseph Delgado, Saori Okawa, Michael Robinson, Service Employees International Union California State Council, and Service Employees International Union filed a petition for writ of mandate seeking a declaration that Proposition 22 is invalid because it violates the California Constitution.

The trial court granted the petition, ruling that the proposition (1) is invalid in its entirety because it intrudes on the Legislature’s exclusive authority to create workers’ compensation laws; (2) is invalid to the extent that it limits the Legislature’s authority to enact legislation that would not constitute an amendment to Proposition 22, and (3) is invalid in its entirety because it violates the single-subject rule for initiative statutes.

It issued a judgment ordering Katie Hagen, as director of the Department of Industrial Relations, not to enforce any of Proposition 22’s provisions.

Proposition 22’s proponents and the state appealed, arguing the trial court was mistaken on all three points.

The Court of Appeal agreed that Proposition 22 does not intrude on the Legislature’s workers’ compensation authority or violate the single-subject rule. But it concluded that the initiative’s definition of what constitutes an amendment violates separation of powers principles. Because the unconstitutional provisions can be severed from the rest of the initiative, it affirmed the judgment insofar as it declares those provisions invalid and to the extent the trial court retained jurisdiction to consider an award of attorney’s fees, and otherwise reversed in the published case of Castellanos v. State of California – A163655 (March 2023).

The Court of Appeal concluded that sections 7465(c)(3) and (4) are facially invalid on separation of powers grounds because they intrude on the judiciary’s authority to determine what constitutes an amendment to Proposition 22, and section 7465(c)(4) fails for the additional reason that it intrudes on the Legislature’s authority by artificially expanding Proposition 22’s article II, section 10(c) shadow.

However, the proper remedy for the separation of powers violation is to sever section 7465(c)(3) and (4) and allow the rest of Proposition 22 to remain in effect, as the voters indicated they wished. (§ 7467, subd. (a).) rather than strike Proposition 22 in its entirety.

And the Court of Appeal ruled that the “judgment is affirmed to the extent it declared sections 7465(c)(3) and (c)(4) invalid and to the extent the trial court retained jurisdiction to consider a motion for attorney fees under Code of Civil Proctedure section 1021.5. In all other respects, the judgment is reversed. The matter is remanded to the trial court with instructions to enter a new judgment not inconsistent with this opinion.”

On April 21. 2023 the plaintiffs filed a Petition for Review with the California Supreme Court. And on June 28, 2023 the Petition for Review was granted.

As part of the Order, the Supreme Court wrote “Pending review, the opinion of the Court of Appeal, which is currently published at 89 Cal.App.5th 131, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”

A South Bay woman was found guilty of nearly two dozen felonies for billing Medicare more than $24 million by submitting fraudulent claims for medically unnecessary durable medical equipment – mostly power wheelchairs (PWC) – and PWC repairs, many of which were never performed.

Tamara Yvonne Motley, 54, a.k.a. “Tamara Ogembe,” of Redondo Beach, was found guilty by a federal jury of 20 counts of health care fraud, two counts of aggravated identity theft, and one count of conspiracy to commit money laundering.

Following the reading of the guilty verdicts, United States District Judge Stanley Blumenfeld Jr. remanded Motley into custody.

According to evidence presented at her five­-day trial, from July 2006 to August 2014, Motley was the de facto owner of the Hawthorne-based Action Medical Equipment and Supplies. From January 2013 to November 2016, Motley was the de facto owner of the Ventura-based Kaja Medical Equipment & Supply. Both companies were enrolled with Medicare in the names of Motley’s out-of-state relatives.

Motley orchestrated a scheme in which she paid marketers for patient referrals and then directed them to take patients to corrupt physicians, who prescribed medically unnecessary durable medical equipment, such as PWCs, that Motley’s companies used to submit fraudulent bills to Medicare.

In January 2011, when Medicare changed the reimbursement rules for PWCs to make the upfront payments less lucrative to suppliers, Action switched to billing Medicare for PWC repairs, and continued that scheme at Kaja once Action was shut down.

These repairs were not medically necessary because the patients did not need the PWCs to begin with, were not needed to make the PWCs serviceable in any event, and often simply were not performed. These repairs were expensive – often billed for $3000-$4000 – and accounted for nearly half of Action’s billings and almost all of Kaja’s.

Over an eight-year period, Action billed Medicare more than $18.2 million for DME – most for PWCs, but also for PWC accessories, knee braces and back braces – and the repair or replacement of PWCs. Medicare paid Action nearly $10.3 million.

Between July 2013 and November 2016, Kaja billed Medicare $6.3 million, primarily for PWC repairs. Medicare paid Kaja approximately $2.8 million for those claims.

Judge Blumenfeld scheduled an October 3 sentencing hearing, at which time Motley will face up to 10 years in federal prison for each health care fraud count, up to 20 years in federal prison for the money laundering conspiracy count, and a mandatory sentence of two years in federal prison consecutive to the other sentences for the aggravated identity theft counts.

Two other defendants have been convicted in this case:

– – Cynthia Karina Marquez, 47, of Paramount, who worked as an office manager at both Action and Kaja, pleaded guilty in December 2019 to two counts of making false statements affecting a health care program. She received a time-served sentence, was placed on supervised release for three years, and was ordered to pay $9,886,646 in restitution.
– – Juan Roberto Murillo, 46, of Montebello, who worked at both medical supply companies as a repair technician, pleaded guilty in November 2019 to one count of conspiracy to commit money laundering. He was sentenced to three years’ probation and was ordered to pay $2,504,119 in restitution.

The United States Department of Health and Human Services, Office of Inspector General; the FBI; and the California Department of Justice investigated this matter. Assistant United States Attorneys Kristen A. Williams and David H. Chao of the Major Frauds Section are prosecuting this case.

66 year old Chunli Zhao, a Chinese citizen, allegedly shot and killed four workers and wounded a fifth employee last January 23rd at California Terra Garden. He then went to nearby Concord Farms, where he had worked previously, and allegedly fatally shot three former co-workers.

Zhao told KNTV-TV in a courthouse interview that he committed the shootings, then drove to the police station to turn himself in. But no one was there, so he waited about two hours in the parking lot for officers to finally approach and arrest him. He said he was bullied and worked long hours on the farms and his complaints were ignored, the station reported. He also told the reporter who interviewed him that he has a green card, but had no problem buying a gun in 2021.  He also said he thinks he is mentally disturbed, according to the report of the interview.

In a jail interview with NBC News Zhao claimed a forklift he was operating was hit by a coworker on a bulldozer and that he was asked to pay $100 to cover the cost of the damage. Zhao went on to say he vented his frustration over the bill 30 minutes before the shooting.

He then went back to confront his boss again, shooting both his supervisor and the coworker he blamed for the accident.

According to CBS News, the San Mateo County District Attorney confirmed a report that the Half Moon Bay mass shooting suspect claimed the incident stemmed from his anger over a $100 equipment bill.

The victims who died have been identified as Zhishen Liu, 73, Aixiang Zhang, 74, Qizhong Cheng, 66, Jingzhi Lu, 64, Marciano Martinez Jimenez, 50, Yetao Bing, 43, and Jose Romero Perez, 38. An eighth victim, Pedro Romero Perez, was critically injured but survived the shooting.

A spokesperson for California Terra Garden confirmed Zhao lived on the property with his wife, but said the farm had no knowledge of any bullying complaints.

Zhao has a history of threatening coworkers, according to court documents obtained by the ABC7 News I-Team. In 2013, Chunli Zhao had a restraining order filed against him by a former roommate and coworker. They both worked at a restaurant when Zhao reportedly lost his job, the documents say.

According to these documents, the roommate says Zhao threatened that if he didn’t get his job back, he would kill him. Zhao, at one point, even held a pillow over his face, reportedly trying to suffocate him.

The documents also note he said, “he wants to come back to work. If this can’t be done, this will be a bigger problem which will not be good, pleasant for anyone.”

He pleaded not guilty to seven counts of murder and one count of attempted murder at his arraignment on February 16. Prosecutors say this was the deadliest attack in San Mateo County’s history.

In the aftermath of this tragedy, Cal/OSHA has now cited the two employers in Half Moon Bay following an investigation into the workplace violence that killed the seven agricultural workers on January 23, 2023.

Cal/OSHA cited California Terra Garden, Inc. for 22 violations, including five classified as serious and one classified as serious accident-related for failing to have a plan or procedures to immediately notify employees of an active shooter threat and instruct them to seek shelter. Total proposed penalties are $113,800.

Concord Farms Inc. was cited for 19 violations, three of them serious, including failure to address previous incidents of workplace violence and develop procedures to correct and prevent this hazard. Total proposed penalties are $51,770.

Both employers were cited for failing to establish a workplace safety plan that evaluated the threat of workplace violence and train workers in a language they can understand. Both employers were also cited for failure to secure labor camp permits for onsite worker housing.

Other state agencies continue to investigate at the worksites, which may result in additional enforcement actions.