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Tag: 2023 News

Pervasive Bullying by U.C. Berkeley Women’s Soccer Coach Violates Unruh Act

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.‘ ”

Cal//OSHA May Obtain Search Warrant but Must Show Probable Cause

On November 18, 2021, two inspectors from the Division of Occupational Safety and Health were denied consent to inspect the premises of Calvary Chapel of San Jose (Employer), a private school located on church grounds.

On November 29, 2021, the Division sought an “inspection warrant” from the Santa Clara County Superior Court. The Division supported their request for a warrant with two declarations: one from Richard Haskell (Haskell), Associate Safety Engineer, and another from Lisa Brokaw (Brokaw), Staff Attorney. Haskell’s declaration stated, “We were directed to open this inspection in response to a complaint made to the Division’s Fremont District Office on November 16, 2021 that Calvary Christian Academy was not complying with Title 8, section 3205, COVID-19 Prevention, face covering and outbreak reporting requirements.”

On November 29, 2021, a Judge of the Santa Clara County Superior Court granted the Division’s request for an inspection warrant. The Division subsequently conducted a site inspection, commencing on November 30, 2021.

On March 10, 2022, the Division issued five citations to Employer, alleging twelve violations of safety orders contained in title 8 of the California Code of Regulations,1 and totaling $67,330 dollars in penalties. Employer filed timely appeals of all the citations on March 21, 2022.

On July 18, 2022, the Employer filed a motion to suppress evidence, arguing all evidence from the inspection should be suppressed because the warrant had been issued without probable cause. The Division filed an opposition on July 28, 2022. Employer filed a reply on August 16, 2022.

On September 1, 2022, Administrative Law Judge (ALJ) Kerry Lewis issued an Order on Motion to Suppress Evidence, which granted Employer’s motion. The ALJ, relying on the Board’s prior jurisprudence, concluded she had jurisdiction to rule on the motion to suppress evidence, and granted the motion after determining the warrant had been issued without probable cause. The ALJ’s Order also excluded any evidence arising from the Division’s inspection of the site.

The Division filed a Petition for Reconsideration with the Occupational Safety and Health Appeals Board (OSHAB) in the case of In Re Calvary Chapel San Jose -1564732 (November 2023). In this case OSHAB affirmed the ALJ’s ruling that Cal/OSHA’s warrant application lacked the requisite probable cause. However the case was remanded for a ruling, on the application of the good faith exception to suppression of the evidence.

Labor Code section 6314, subdivision (b), states that if permission to investigate a place of employment is refused, the Division may seek an inspection warrant pursuant to Code of Civil Procedure section 1822.50 et seq. “An inspection warrant is an order . . . signed by a judge of a court of record, directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning.”

The Division’s petition for reconsideration argues, at length, that the Board and its ALJ lack authority to evaluate the validity of the inspection warrant issued by the Santa Clara County Superior Court, and lack authority to grant Employer’s motion to suppress evidence. The Division argues that the California Constitution solely vests courts with original jurisdiction to review such warrants for errors. The Division contends the Legislature can only divest the courts of such jurisdiction if they enact a law pursuant to express or implied constitutional authority, which the Division argues did not happen here.

Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority.

Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority.

Once an appeal has been initiated before the Board, the Board’s operative statutes require parties to contest the citations, and all related issues, to a final decision before the Board prior to seeking judicial review. (Lab. Code, § 6600-6633.) The statutes permit a party aggrieved by a final order or decision of a hearing officer to file a petition for reconsideration before the Board. (Lab. Code, § 6614.) The filing of such a petition for reconsideration is a prerequisite to judicial review, and all issues not in that petition are waived. (Lab. Code, §§ 6615, 6618.) Labor Code section 6615 states,

OSHAB then noted “Taken together, Labor Code sections 6615 and 6618 set forth an exhaustion requirement, providing that all objections, irregularities, and illegalities arising from a final order or decision are waived, and not subject to court review, unless first presented to the Board via a petition for reconsideration. As relevant here, these statutes demonstrate that the adequacy of the warrant must first be presented to the Board, and such remedies exhausted, to prevent waiver.” Thus the Board ruled that it had jurisdiction to entertain a motion to suppress.

Cases discussing the constitutionality of inspection warrants in Cal/OSHA proceedings have stated that the search and seizure requirements of the Fourth Amendment and Article I, section 13, of the California Constitution mandate a probable cause requirement for Cal/OSHA inspection warrants. (Salwasser Mfg. Co. v. Mun. Court (1979) 94 Cal.App.3d 223, 231-232 (Salwasser I).)

The standard of probable cause, i.e., the level of scrutiny required for a Cal/OSHA inspection warrant, is detailed in Salwasser Mfg. Co. v. Occupational Safety & Health Appeals Bd. (1989) 214 Cal.App.3d 625 (Salwasser II). Salwasser II found that the criminal probable cause standard is not applicable when the warrant application is based on employee complaints, and instead called for a “lesser standard of administrative probable cause.” (Salwasser II, supra, 214 Cal.App.3d at 630.) Salwasser II relied on federal circuit court decisions when discussing and defining this lesser standard of administrative probable cause.

The Board follows the good faith exception to the exclusionary rule. (Southwest Marine, Inc., supra, Cal/OSHA App. 96-1902.) The Board has previously noted that it will only exclude evidence pursuant to the exclusionary rule when it can be established that the warrant was not obtained in good faith.

The Occupational Safety and Health Appeals Board concluded that the “ALJ has not yet ruled on application of the good faith exception in this particular case. Therefore, it remanded this matter back to hearing operations for consideration, and a ruling, on the application of the good faith exception in this case.

Cal AG Files Amicus on SCOTUS Transportation Workers’ Arbitration Case

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.

Decline in SAWW Means No TD/PD Rate Increases for 2024

The U.S. Department of Labor has issued new data showing California’s State Average Weekly Wage (SAWW) edged down 0.48 percent from $1,650 to $1,642 in the 12 months ending March 31, 2023.

As a result, the California Workers’ Compensation Institute (CWCI) notes there will be no change in California’s minimum and maximum temporary total disability (TTD) and permanent total disability (PTD) rates for 2024 work injuries, or in other benefits that are tied to increases in the SAWW.

Under California law, minimum and maximum TTD and PTD rates are subject to annual changes, effective January 1 of each year, based on the percentage increase in the SAWW After increasing steadily for more than a decade, including a 5.159 percent increase last January on top of a record 13.521 percent increase in 2022, the maximum TTD/PTD rate for 2023 job injuries is now $1,619.15 per week, and the minimum is $242.86 per week.

But, with the decline in the SAWW last year, those rates will not need to be adjusted for claims with injury dates on or after January 1, 2024.

The 2022-2023 decline in the SAWW also means that annual cost of living adjustments to life pension and PTD payments on existing claims with injury dates on or after January 1, 2003 will not apply next January, and the maximum rate for death benefit installment payments, which are paid in the same manner and amount as TTD, will remain unchanged.

However, depending on the rate now being paid, some existing older claims that are eligible for more than 104 weeks of TD [e.g., claims involving amputations, hepatitis or any of 9 long-term injuries noted in LC §4656(c)(3)] will qualify for an increase in 2024 as LC §4661.5 requires that any TTD payment made two or more years after the injury date be based on the TTD rate in effect on the date of the payment, unless that would reduce the amount paid.

Thus, a worker who suffered an amputation on April 1, 2022, and who is still receiving TD at the 2022 maximum of $1,539.71, should see that payment increase to the current maximum of $1,619.15 on April 1, 2024 (assuming that rate is justified by their at-injury earnings).

Claims administrators are encouraged to review the latest SAWW figures with legal counsel to confirm that benefit payments are appropriate and accurate. For reference, California’s SAWW data can be found in the U.S. Department of Labor Unemployment Insurance database.

UCLA Launches New Degree in Disability Studies

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.”

DWC Proposes Changes to QME Regulations

The Division of Workers’ Compensation has issued a second notice of public comment period beginning on November 21, 2023, for modifying the text of proposed amendments to the Qualified Medical Evaluator (QME) Regulations. The affected regulations are Title 8, California Code of Regulations Sections 1, 11, 11.5, 14, 33, 35, 35.5, 50, 51, 52, 54, 55, 55.1, 56, 57, 63, 10133.54 & 10133.55. (QME Process Regulations).

The proposed changes are necessary to bring existing regulations into compliance with amendments to the Labor Code and to clarify the Administrative Director’s authority with respect to the process related to appointment and reappointment of QMEs, which is granted by relevant statutory authority.

The proposed regulations are amended to provide greater clarity to the wording. Based upon issues of clarity and to provide ease of interpretation, DWC proposes to update the text of the proposed amendments of the regulations to:

– – Provide a clearer definition of and the reason for encryption of Electronic Transmissions.
– – Delete unnecessary phase-in periods for certain regulations as a result of the new anticipated effective date of April 1, 2024 for the proposed regulations.
– – Add a new regulation that delineates the new continuing education hour and subject matter requirements that apply to applications for reappointment after April 1 2026.
– – Clarify the definition “new medical legal evaluation” for purposes of satisfying criteria for QME unavailability.
– – Provide criteria for the Administrative Director’s use of the exercise of discretion in the QME reappointment process.
– – Provide examples of good cause, provide clarity to the regulatory language and delete confusing language where necessary in the regulations involving reappointment and denial of reappointment for QMEs.
– – Add and in some cases delete language and hours of accreditation to clarify the proper interpretation of regulations related to the Continuing Education requirements.
– – Define and add criteria for good cause in the exercise of discretion by the Administrative Director in granting an appeal of denial of reappointment when a hearing is anticipated.
– – Correct typographical errors.

DWC has also published a Supplemental Initial Statement of Reasons to provide additional information about the need for and economic impact of the proposed regulations.

DWC will consider all public comments. The 15-day notice of modification to the text of the proposed regulations and the text of the regulations can be found on DWC’s rulemaking page.

Written comments should be addressed to:

Maureen Gray, regulations coordinator
Department of Industrial Relations
Division of Workers’ Compensation
1515 Clay Street, 18th floor
Oakland, CA 94612

The Division’s contact person must receive all written comments concerning the proposed modification to the regulations no later than December 11, 2023. Written comments may be submitted by facsimile transmission (FAX), addressed to the contact person at (510) 286-0687. Written comments may also be sent electronically (via e-mail), using the following e-mail address: dwcrules@dir.ca.gov.

Labor Commissioner Reaches $1 Million Settlement in Wage Theft Case

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.

New Law Creates Rebuttable Presumption of Employer Retaliation

Governor Newsom signed Senate Bill No. 497 into law, the “Equal Pay and Anti-Retaliation Protection Act.” The new law amends California Labor Code sections 98.6, 1102.5, and 1197.5 to create a “rebuttable presumption of retaliation” if an employee experiences an adverse employment action within 90 days of engaging in any protected activity covered by the specified sections. This new law, which will become effective on January 1, 2024, also entitles a prevailing plaintiff civil penalties for each violation.

As explained by the California Supreme Court, Section 1102.5 of the Labor Code reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation. (Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66). Under current law, penalties up to $10,000 can be assessed against an employer that is an LLC or corporation when the employer retaliates against an employee who was a whistleblower.

According to the author of this new law, “the fear of retaliation is still one of the main reasons workers are afraid to report labor violations. This is especially true for Black and Latinx workers who are more likely to experience retaliation. The Department of Industrial Relation’s most recent report of retaliation complaints filed with the Labor Commissioner’s Office found that just over 90% of retaliation claims were dismissed. In large part this is because when a complaint is filed with the Labor Commissioner’s office, the worker currently has the burden of proving that they were retaliated against because they were exercising their rights under the Labor Code. This burden of proof is extremely challenging for a worker who does not have the same level of access to information as the employer.”

The new law amends Labor Code Section 98.6 to allow the Labor Commissioner to identify retaliation more quickly. If a worker files a retaliation complaint with the Labor Commissioner and shows that their employer took a negative action against them within 90 days after exercising rights under the Labor Code, the employer must prove a legitimate reason for taking that negative action.

Similarly, this new law amends Labor Code Section 1197.5 to add a similar “rebuttable presumption” for any retaliation complaint under the Equal Pay Act. This kind of “rebuttable presumption” of retaliation already exists in other parts of the Labor Code, and is working well in protecting workers from immigration-related retaliation, such as threats of deportation, and retaliation for use of paid sick leave.

This new law also strengthens Labor Code Section 1102.5, the California Whistleblower Protection Act, by providing some financial relief to whistleblowers who report retaliation. Existing law requires some employers to pay a penalty of up to $10,000 to the State. The law would make sure that money goes directly to the worker victimized by illegal retaliation. The bill would also amend the law so that employers can’t use other corporate forms, such as limited liability partnerships, to evade paying penalties.

A coalition, including the California Chamber of Commerce, opposed the rebuttable presumptions in SB 497. It claimed there “is no justification for creating a presumption in these two code sections. Courts already take temporal proximity into account when evaluating retaliation claims and the courts should be allowed to consider other factors relevant to the specific case. Creating a presumption simply allows claims to proceed that should not be moving forward, which wastes valuable court and litigant resources.”

The California Labor Commissioner’s Office reported that in 2020, the Retaliation Complaint Investigation Unit (RCI) received 6,063 complaints. Of those cases, 2,067 were accepted for investigation by the Labor Commissioner. Among the complaints filed, 1,897 of them were for alleged retaliation prohibited under Section 98.6, 1,450 were for alleged retaliation prohibited under Section 1102.5, and 127 were for alleged retaliation prohibited under Section 1197.5

Nationwide Shortage of Physical Therapists is Especially High in California

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.

Two Former Tustin Police Officers Face $188K Comp Fraud Charges

Two married former Tustin Police Officers have been charged with numerous felonies related to false workers’ compensation claims they filed with the City of Tustin, claiming they both suffered chronic back pain due to wearing their full duty belt and vest while on duty that prevented them from working.

Video surveillance, and the couple’s own photos and videos, showed the former officers engaged in an active lifestyle while being paid workers’ compensation wages for their injuries. The couple was documented vacationing in Mammoth that included mountain biking and boating, flying internationally to go on a scuba diving trip as well as working on various home improvement projects.

Kendal Hurd, 40, and her husband, Kyle Hurd, 38, have both been charged with multiple felony counts of insurance fraud as well as multiple counts of perjury or attempted perjury. If convicted of any of the charged felonies, they will lose any pension benefits that accrued from the date of the commission of the crime and they will be prohibited from working as peace officers in the future.

Kendal Hurd faces a maximum sentence of 11 years in state prison if convicted on all counts. Kyle Hurd faces a maximum sentence of nine years and six months in state prison if convicted on all counts.

Kendal Hurd worked as a police officer for the City of Santa Barbara for 2 ½ years before joining the Tustin Police Department in April 2015. Kyle Hurd worked as a police officer for the City of Montclair for three years before joining the Tustin Police Department in June 2014. They were terminated in July 2021.

Tustin Police Officer Kyle Hurd filed a workers’ compensation claim on December 7, 2018, claiming he was suffering constant back pain as a result of wearing his duty belt and gear, as well as getting in and out of his patrol car. Less than a year later, on October 16, 2019, after returning to work from the international scuba trip, Kendal Hurd filed a nearly identical workers’ compensation claim as her husband, alleging that her chronic back pain resulted from wearing her duty belt and vest as well as twisting while getting in and out of her patrol vehicle.

The Hurds both told their workers’ compensation doctors that their pain increased with activity and improved with rest. They never disclosed to their doctors that they in fact were capable of doing much more than what they represented.

The City of Tustin initiated the surveillance after both Kendal and Kyle Hurd had been receiving medical care for numerous months for the same condition without seeing improvement.

Surveillance revealed the couple engaging in active lifestyles, including sliding down a water slide, lifting children, riding bikes, paddle boarding, and going to Pilates classes, as well as spending time playing in the water at Lake Mission Viejo.

Those activities directly contradicted what the Hurds told their doctors and what they testified to at their depositions under oath. Kendal Hurd claimed she couldn’t lift more than three pounds unless supervised during physical therapy and she could not stand for longer than five minutes without experiencing severe pain.

After Kyle Hurd was suspended, it was discovered that he sent a text to one of his friends that bragged about receiving unnecessary medical treatment because he was a good actor.

Senior Deputy District Attorney Pam Leitao of the Insurance Fraud Unit is prosecuting this case.