Tag: 2023 News

Renee Thomas is a “well-regarded soccer player” who was recruited by University of California, Berkeley (UCB) head coach Neil McGuire to play in the 2018-2019 season. McGuire knew at the time that Thomas had already committed to play for the University of Colorado, which had offered her a scholarship. At a meeting with Thomas and her mother in February 2018, McGuire “assured” Thomas that she would be on UCB’s women’s soccer team for four years.

Thomas turned down her scholarship to the University of Colorado to accept a non-scholarship spot on UCB’s team based on McGuire’s “assurances that she was joining a four-year soccer program, that she would play on the team as long as she met the reasonable performance expectations of the program, and that she would be coached in a caring and encouraging manner.”

Thomas joined the team as one of six non-scholarship players, performed well, complied with the expectations McGuire laid out for her and “participated in every opportunity available to her to improve her performance.” McGuire told her she was “promising enough to rival the best-performing forward on the team” and she was honored at the team’s annual banquet as the most improved player.

During the 2018-2019 season, Thomas “experienced and witnessed” abusive behavior by McGuire. McGuire lost his temper at the athletes “on many occasions,” “[i]n fits of rage, he singled out athletes and berated them in front of the team, sometimes nonsensically, to make an example of them and strike fear in the witnessing athletes,” he “called young female athletes names, cursed at them, and degraded them with personal insults both related and unrelated to athletic performance,” and he “tormented them psychologically and punished them with grueling workouts.”

On April 29, 2019, “without warning or explanation,” McGuire released Thomas and four others from the team. It was “rare” for McGuire to release players from the team and “quite unusual that he released five players at once.”

Thomas initially filed a complaint in federal court alleging disparate treatment of the UCB men’s and women’s soccer teams in violation of United States Code title IX (20 U.S.C. § 1681 et seq.) (Title IX) and California Education Code section 66271.8, gender discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51) (Unruh Act), and negligence and negligent infliction of emotional distress, all based on her unjustifiable release from the team. The federal district court dismissed the first amended complaint without leave to amend, finding Thomas failed to state any of her claims and leave to amend would be futile.

Thomas then filed her complaint in California Superior Court on September 11, 2020, alleging claims against McGuire and Jim Knowlton, UCB’s Athletic Director, for violation of the Unruh Act and negligence, and against McGuire for breach of fiduciary duty and fraud. She subsequently filed a first amended complaint adding that UCB was liable pursuant to Government Code section 815.2. The defendants demurred.

The trial court sustained the demurrer with leave to amend only the fraud claim against McGuire. The court held that Thomas failed to state causes of action for violation of the Unruh Act or Civil Code section 51.9 (which Thomas argued was actually the basis for her Unruh Act claim), negligence or breach of fiduciary duty, and that the fraud claim against UCB was barred by governmental immunity (Gov. Code, § 818.8 [public entity not liable for employee’s misrepresentation]).

Thomas’s second amended complaint, was filed on July 6, 2021. The trial court adopted its tentative ruling sustaining another demurrer without leave to amend, finding that Thomas failed to allege all the required elements of a cause of action for fraud and McGuire was entitled to public employee misrepresentation immunity (Gov. Code, § 822.2).

Thomas appealed the dismissal. The Court of Appeal concluded Thomas sufficiently pleaded a cause of action for sexual harassment in violation of Civil Code section 51.9 against the head coach and UCB and should have been granted leave to amend her complaint to clarify the statutory basis of this claim. In all other respects it affirmed the trial court’s decision in the published case of Thomas v. The Regents of the University of Cal -A164550 (November 2023).

The first cause of action in Thomas’s first amended complaint alleged violation of the Unruh Act. Civil Code section 51, provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status 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).)

Thomas alleged that McGuire and Knowlton “engaged in unreasonable, arbitrary, and invidious discrimination” against her and “denied her full and equal privileges as compared with male athletes”; her gender was a “substantial motivating reason” for McGuire’s and Knowlton’s conduct; and UCB was liable for unlawful actions of its employees under Government Code section 815.2.

As developed in the employment context, federal and state law generally recognizes two theories of liability for sexual harassment claims, quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Hughes v. Pair (2009) 46 Cal.4th 1035 at p. 1043.) The present case involves the “hostile environment form of sexual harassment.”

In the employment context, the plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557)

Harassment “because of sex” may be shown where “an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.” (E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir. 2005) 422 F.3d 840, 845 (E.E.O.C.).)

To plead a cause of action for sexual harassment in the form of a hostile environment, “it is ‘only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner.”

The Court of Appeal concluded that Plaintiff’s “allegations unquestionably describe pervasive bullying behavior toward the young women on the soccer team that created a hostile environment.”

“The defendants argue (and the trial court concluded) that they do not allege pervasive sexual harassment because the alleged conduct and comments were not of a sexual or hostile gender-based nature. We disagree. As we have explained, ‘there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.‘ ”

The California Attorney General joined a multistate coalition in filing an amicus brief urging the U.S. Supreme Court to reverse a lower court decision holding that only workers employed in the transportation industry can be exempt under the transportation-worker exemption to the Federal Arbitration Act (FAA).

The multistate amicus brief supports the petitioners in Bissonnette v. LePage Bakeries Park St., LLC, et al 59 F. 4th 594 – Court of Appeals, 2nd Circuit 2023, who are truck drivers delivering baked goods to restaurants and stores for baking conglomerate Flowers Foods.

The Bissonnette case involved a dispute between two commercial truck drivers, Neal Bissonnette and Tyler Wojnarowski, and their employer, LePage Bakeries Park St., LLC. The drivers claimed that they were not subject to the Federal Arbitration Act (FAA) because they were “transportation workers” within the meaning of the statute. The FAA excludes from its scope contracts with “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce.”

The United States Court of Appeals for the Second Circuit affirmed the district court’s decision that the drivers were not “transportation workers” under the FAA. The court reasoned that the drivers were not employed by a company in the transportation industry, but rather by a bakery that simply used transportation services to distribute its products. The court also noted that the drivers’ primary duties did not involve transportation, but rather the sale and merchandising of bakery products.

In their brief, the attorneys general ask the U.S. Supreme Court to reverse that ruling because it is inconsistent with precedent that has rejected defining the exemption by industry, would be unworkable as a practical matter, and prevents states from effectively monitoring commerce and ensuring lawful workplace conditions.

California is home to over 1.5 million transportation workers. Of these workers, about 312,080 are truck drivers in a variety of industries, and many of these workers are directly related to the movement of goods, even if they do not directly work for a trucking company. For the many California workers in the sector, workable standards safeguard their access to the courts, lessening the probability they will be erroneously diverted to arbitration and abandon their claims.

The California Attorney General joins the attorneys general of Illinois, Colorado, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

The decision in Bissonnette has important implications for employers and employees in the transportation industry. The decision clarifies that the FAA does not apply to all workers who are engaged in interstate commerce, but only to those who are employed by companies that are primarily engaged in the transportation industry. This distinction could have a significant impact on the enforceability of arbitration agreements in the transportation sector.

The U.S. Supreme Court granted certiorari in Bissonnette on September 29, 2023. Thus the case is currently pending before the Supreme Court. The petitioners’ brief was filed on November 13, 2023. The respondents’ brief is due on December 15, 2023. The case is likely to be argued before the Supreme Court in early 2024.

UCLA is offering a new Bachelor of Arts in disability studies, which aims to bridge academic theories with lived experience and encourage students to advocate for change in their communities.

The program, which is the first disability studies degree at the UC, includes an internship program in a community-based agency and a capstone project, according to the UCLA Undergraduate Education Initiatives. Historically, disability has been taught in terms of clinical solutions, but UCLA’s disability studies program will connect medical education with the social construct of disability, creating a unique learning experience for all students, said Victoria Marks, the chair of the disability studies interdepartmental degree program as well as the existing minor.

Marks,  a professor in the Department of World Arts and Cultures/Dance, said that disability studies are critical because the field challenges what is perceived as normal and forces people to consider the stigmas that those with disabilities face.

‘(Disability studies) is a way of thinking about how we construct identities around health and well-being, functionality and in some degrees, citizenship itself,” she said.

While the major has been in discussion for many years, there were difficulties in figuring out what departments would be involved because of its interdisciplinary nature, said Brooke Wilkinson, director of academic initiatives for the Undergraduate Education Initiative.

Wilkinson said the major is more organized than the already existing minor, with classes from multiple disciplines centered around disability studies. The courses cover subjects such as health humanities and bioethics, where students can view these topics through disability studies – a lens that students rarely view these disciplines through, she added.

The major also allows students to blend their personal interests and experiences, Wilkinson said, adding that students are able to specialize in a topic that they select through the internship, which culminates in a senior capstone project.

Augustine Udukumbura, a member of the Disabled Student Union, said they believe it is important for nondisabled students to learn about these topics so they can more effectively help advocate for disabled students.

“Having it (the disability studies major) really spots disabled people, but it also puts us into everyday conversation,” said Udukumbura, who is also a fourth-year gender studies and sociology transfer student.

Some students have already expressed interest in the major. Elanor Armstrong, a first-year psychology student, said she plans on applying to the disability studies major, adding that she has worked and wants to work with individuals with disabilities after she graduates college.

She said she believes disability studies are important to normalize disabilities, as many people are not aware of what it means to have a disability, what having a disability looks like or what it is like for a family member to have a disability.

“(The creation of the major) shows that UCLA is an inclusive campus that provides the resources for people to learn and grow,” Armstrong said.

She added that the possibility of the major was one of the reasons why she decided to attend UCLA, as things like the internship will allow her to have real-world experience with the course content.

As part of the upper-division coursework for the major, students must take four electives on interdisciplinary perspectives in disability, according to UEI. These courses are offered by a variety of departments, such as community health, English and gender studies.

Udukumbura, who has bipolar disorder, said they believe such an intersectional approach allows disabled students to learn more about their conditions from different perspectives, as people with the same disability might experience their condition in different ways.

“I think, in a sense, it helps me make space for my own feelings,” they said. “It really helps to have almost an explanation.”

Armstrong said she hopes the major will help her decide how she wants disability studies to be incorporated into her career path. Students can go on to work in all kinds of fields – including law, medicine or education – once they graduate with the disability studies major, Wilkinson said.

“It allows all students, whether disabled or not disabled, to have language for and think about, tangibly, how it is that we move through the world differently,” Marks said.

Udukumbura added that they hope the interdisciplinary approach will help validate the experiences and feelings of disabled students studying their disability or other disabilities.

Marks said she hopes the major will ultimately allow students to vouch for diverse communities and advocate for change.

“These students will go on to be the people who make changes in the world that affect all of our lives,” she said. “A new generation will come up who can take on these complex issues of rights and justice and respect and dignity and care.”

The Labor Commissioner’s Office has settled a lawsuit against Glendale-based Calcrete Construction Inc. for over $1 million for multiple wage theft violations, including overtime and paid sick leave law violations, affecting 249 construction workers.

“This employer used various illegal tactics to circumvent paying owed wages,” said Labor Commissioner Lilia García-Brower. “My team responded aggressively to recover stolen wages and expose systemic violations.”

The Labor Commissioner’s Office began investigating in October 2016 after receiving a complaint from the Carpenters / Contractors Cooperation Committee, a union-affiliated, non-profit organization that advocates for workplace compliance within the construction industry.

The investigation found that Calcrete failed to pay workers for overtime hours, allocate pay for sick leave and provide proper wage statements. As one example, Calcrete employees regularly worked 45-68 hours a week but were not paid overtime during a two-year period audited from 2014-2016. The settlement will pay workers overtime wages owed with interest, with payments ranging from $344 to $20,893.

The Labor Commissioner’s Office filed a lawsuit against Calcrete Construction, Inc. in August 2017, seeking $6,300,338 for multiple wage theft violations affecting a group of 249 construction workers and the willful misclassification of 175workers as independent contractors.

The lawsuit claimed that beginning in August 2016, Calcrete forced its workers under threat of termination to sign contracts stating they were independent contractors.The company then used staffing agencies Dominion Staffing and Southeast Personnel Leasing to pay the workers.

Calcrete employees typically worked 10-12 hours Monday through Friday and eight hours on Saturday. They were paid only their regular hourly rate and not for the 18-28 hours of overtime they regularly worked. Thisunderpayment occurred for a nearly two-year period from 2014-16, the lawsuit specifies.

Enforcement investigations typically include a payroll audit of previous years to determine minimum wage, overtime, and other labor law violations, and to calculate payments owed and penalties due. When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid minimum wages plus interest.

The Department of Industrial Relations’ Division of Labor Standards Enforcement (California Labor Commissioner’s Office) combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices.

Workers employed at Calcrete beginning August 1, 2014 to September 30, 2016 should contact the LCO at 833-LCO-INFO (833-526-4636), as they may be entitled to owed wages and damages under this settlement agreement.

According to survey data collected by the American Physical Therapy Association (APTA), the job vacancy rate for physical therapists in outpatient settings last year was 17%.

The “Hiring Challenges in Outpatient Physical Therapy Practice” report is based on analysis of survey responses from 133 outpatient physical therapy practices across the U.S. representing 2,615 clinics and nearly 11,000 full-time equivalent employee positions that included PTs, PTAs, and support staff. In terms of practice size, 62% of respondents were practices with between one and four sites; 4.7% reported owning more than 50 sites. The survey was conducted between May 25 and June 16 in collaboration with Vault Consulting.

In broad terms, the report reveals that the coronavirus pandemic ramped up an already-existing shortage of personnel in outpatient clinics, but that relocation and pay – rather than concerns about the pandemic – are the main factors driving employees’ decisions to leave a clinic. The result: vacancy rates that have reached “significant” levels, according to the report.

Among the findings:

– – The total vacancy rate reported by practices averaged 16%. Vacancy rates were highest for PTs, at 17%, followed by 14% for support personnel, and 13% for PTAs. Nearly 80% of respondents reported at least a 5% vacancy rate across all positions.
– – When asked to compare the number of job openings they had before the pandemic with current openings, 60% of respondents said vacancies had increased, with 40% of those estimating that vacancies had grown by 50% or more since 2019.
– – Nearly 41% of practices reported more turnover in the first part of 2022 compared with the same time period in 2019, with 18.5% reporting less turnover in 2022 compared with 2019.
– – When asked to rank why they think employees left their clinics, 37.3% of the business owners cited relocation as the primary reason, with 67.8% placing it in the top three reasons they lost employees. Pay was also a frequently cited reason for leaving, with 25.4% of respondents saying it was the primary reason for employee loss and 63.5% placing it among the top three.
– – Work-life balance figured heavily into the owners’ perceptions of why they lost employees, with 77.1% of respondents placing the issue in the top three reasons, and 22.9% saying it was the primary reason for employee loss.
– – Respondents believe that concerns about COVID-19 did not play a big factor in employee loss, with only 1.7% of owners saying it was the primary reason and 11.9% placing those concerns among the top three reasons for leaving.

Wait times are generally long across the nation, as patients tell of waiting weeks or even months for appoint-ents while dealing with ongoing pain or post-surgical rehab. But the crunch is particularly acute in rural areas and places with a high cost of living, like California, which has a lower ratio of therapists to residents – just 57 per 100,000, compared with the national ratio of 72 per 100,000, according to the association.

A follow up report by California Healthline said that the reasons are multifold. The industry hasn’t recovered from the mass defection of physical therapists who fled as practices closed during the pandemic. In 2021 alone, more than 22,000 PTs – almost a tenth of the workforce – left their jobs, according to a report by the health data analytics firm Definitive Healthcare.

And just as baby boomers age into a period of heavy use of physical therapy, and covid-delayed procedures like knee and hip replacements are finally scheduled, the economics of physical therapy are shifting. Medicare, whose members make up a significant percentage of many PT practices’ clients, has cut reimbursement rates for four years straight, and the encroachment of private equity firms – with their bottom-line orientation – means many practices aren’t staffing adequately.

There’s a shortage of physical therapists in all settings, including hospitals, clinics, and nursing homes, and it’s likely to continue for the foreseeable future, said Justin Moore, chief executive of the physical therapy association. “Not only do we have to catch up on those shortages, but there are great indicators of increasing demand for physical therapy,” he said.