Tag: 2023 News

AMTCR, Inc., AMTCR Nevada, Inc., and AMTCR California, LLC have been collectively operating as a single employer and/or integrated enterprise in Nevada, Arizona, and California, and have common management and ownership, centralized control of labor operations, and interrelation operations.

These three entities Collectively own, manage, and operate approximately twenty-two McDonald’s fast food restaurants in this tri-state region, and are collectively doing business as “McDonald’s.” The 22 restaurants operate under the common ownership and management of President/Owner Abelardo “Abe” Martinez III. And they share common managers, such as Director of Operations Theresa Hernandez and Area Supervisor Ruben Benitez, who both oversee employees throughout the tri-state region.

They share a common corporate headquarters and/or main office and human resources department for the entire tri-state region located in Kingman, Arizona.

And the EEOC just announced that this major McDonald’s franchisee has agreed to pay nearly $2 million to settle an EEOC sexual harassment lawsuit.

Prior to filing the civil action, the EEOC investigated a charge of discrimination that had been filed with the Commission. Following the investigation, the Commission issued Letters of Determination to the employer, finding reasonable cause to believe that Title VII was violated and inviting them to join with the Commission in informal methods of conciliation to endeavor to eliminate the discriminatory practices and provide appropriate relief.

But the Commission was unable to secure from Defendants a conciliation agreement acceptable to the Commission. Therefore, in September 2021, the U.S. Equal Employment Opportunity Commission filed a civil lawsuit against the companies in the United States District Court District of Nevada, charging them with sexual harassment and constructive discharge in stores/restaurants in Nevada, Arizona, and California.

The EEOC alleged in general that the “sexual harassment included, but was not limited to, constant groping, grabbing, and rubbing of the arms, shoulders, thighs, and buttocks; offensive comments and gestures regarding male genitalia; sexual advances; and sexual ridicule, intimidation, and insults.” And that due to the employer’s failure to remedy the ongoing sexual harassment, “the Charging Party and many other adversely affected employees could no longer tolerate the hostile and abusive work environment and were subjected to constructive discharge.”

One of the several specific instances of misconduct listed in the Complaint involved a twenty-six-year-old female Shift Manager, and another by a twenty-one-year-old male Cook. Both were employed at Defendants’ McDonald’s store in Blythe, California. Both claimed to be sexually harassed by the at Defendants’ McDonald’s store in Blythe, California, the by same General Manager, and who was also the hiring manager at this McDonald’s store.

This Blythe General Manager was in charge of receiving and reviewing job applications, interviewing applicants, and making hiring decisions. He was allegedly particularly fond of the young male applicants. After conducting interviews, The General Manager would message young male applicants via Facebook and send them sexually inappropriate messages and requests for dates. The General Manager admitted to Claimant 5 that he informed these male applicants via Facebook that if they refused to sexually engage with him and/or date him, he would not hire them.

During 2017 to mid-2019, many employees complained to “Claimant 5” about the General Manager’s sexual comments and conduct. Claimant 5 would relay these employee complaints to upper management, but Defendants did nothing to stop the harassment.

In July 2019, Claimant 5 felt compelled to compile a list of all the sexual harassment complaints that she had received. Claimant 5 submitted the list of complaints to upper management with a request for an investigation and remedial action. Later in July 2019, an employee meeting was held at the store where Defendants required employees were required to sign an agreement regarding sexual harassment. However, allegedly no other remedial action was taken.

After the July 2019 employee meeting, Claimant 5 continued to receive complaints from employees about being subjected to sexually offensive comments by male managers and co-workers. These comments often related to co-workers’ body parts such as breast size.

The company has agreed to pay $1,997,500 to resolve the sexual harassment lawsuit. And it has agreed to provide significant, franchise-wide injunctive relief aimed at preventing discrimination and harassment in the workplace.

AMTCR has also agreed to retain an outside third-party EEO monitor who will conduct internal audits of AMTCR’s practices in handling harassment and retaliation complaints; establish a centralized tracking system for discrimination, harassment, and retaliation complaints; and ensure accountability and appropriate disciplinary action occur.

The U.S. Bureau of Labor Statistics reported that there were 5,190 fatal work injuries recorded in the United States in 2021, an 8.9-percent increase from 4,764 in 2020. The fatal work injury rate was 3.6 fatalities per 100,000 full-time equivalent (FTE) workers, up from 3.4 per 100,000 FTE in 2020 and up from the 2019 pre-pandemic rate of 3.5.

Key findings from the 2021 Census of Fatal Occupational Injuries

– – The 3.6 fatal occupational injury rate in 2021 represents the highest annual rate since 2016.
– – A worker died every 101 minutes from a work-related injury in 2021.
– – The share of Black or African American workers fatally injured on the job reached an all time high in 2021, increasing from 11.4 percent of total fatalities in 2020 to 12.6 percent of total fatalities in 2021. Deaths for this group climbed to 653 in 2021 from 541 in 2020, a 20.7-percent increase. The fatality rate for this group increased from 3.5 in 2020 to 4.0 per 100,000 FTE workers in 2021.
– – Suicides continued to trend down, decreasing to 236 in 2021 from 259 in 2020, an 8.9-percent decrease.
– – Workers in transportation and material moving occupations experienced a series high of 1,523 fatal work injuries in 2021 and represent the occupational group with the highest number of fatalities. This is an increase of 18.8 percent from 2020.
– – Transportation incidents remained the most frequent type of fatal event in 2021 with 1,982 fatal injuries, an increase of 11.5 percent from 2020. This major category accounted for 38.2 percent of all work related fatalities for 2021.

Fatal event or exposure

– – Despite experiencing an increase from 2020 to 2021, transportation incidents are still down 6.6 percent from 2019 when there were 2,122 fatalities.
– – Fatalities due to violence and other injuries by persons or animals increased to 761 fatalities in 2021 from 705 fatalities in 2020 (7.9 percent). The largest subcategory, intentional injuries by person, increased 10.3 percent to 718 in 2021.
– – Exposure to harmful substances or environments led to 798 worker fatalities in 2021, the highest figure since the series began in 2011. This major event category experienced the largest increase in fatalities in 2021, increasing 18.8 percent from 2020. Unintentional overdose from nonmedical use of drugs or alcohol accounted for 58.1 percent of these fatalities (464 deaths), up from 57.7 percent of this category’s total in 2020.
– – Work related fatalities due to falls, slips, and trips increased 5.6 percent in 2021, from 805 fatalities in 2020 to 850 in 2021. Falls, slips, and trips in construction and extraction occupations accounted for 370 of these fatalities in 2021, and an increase of 7.2 percent from 2020 when there were 345 fatalities. Despite the increase this is still down 9.3 percent from 2019 when construction and extraction occupations experienced 408 fatalities due to this event.

Occupation

– – There was a 16.3-percent increase in deaths for driver/sales workers and truck drivers which went up to 1,032 deaths in 2021 from 887 deaths in 2020. This was the primary factor behind the increase in fatalities to workers in transportation and material moving occupations which reached a series high in 2021.
– – Construction and extraction occupations had the second most occupational deaths (951) in 2021, despite experiencing a 2.6-percent decrease in fatalities from 2020. The fatality rate for this occupation also decreased from 13.5 deaths per 100,000 FTE workers in 2020 to 12.3 in 2021.
– – Protective service occupations (such as firefighters, law enforcement workers, police and sheriff’s patrol officers, and transit and railroad police) had a 31.9-percent increase in fatalities in 2021, increasing to 302 from 229 in 2020. Almost half (45.4 percent) of these fatalities are due to homicides (116) and suicides (21). About one-third (33.4 percent) are due to transportation incidents, representing the highest count since 2016.
– – Installation, maintenance, and repair occupations had 475 fatalities in 2021, an increase of 20.9 percent. Almost one-third of these deaths (152) were to vehicle and mobile equipment mechanics, installers, and repairers.
– – The fatal injury rate for fishing and hunting workers decreased from 132.1 per 100,000 FTEs in 2020 to 75.2 in 2021.

Courthouse News reports that the former chief financial officer of the defunct Girardi & Keese California personal injury law firm lost his bid to be released from jail while fighting charges he stole $10 million from the firm in a “side fraud” scheme separate from the estimated $100 million disgraced attorney Thomas Girardi is accused to have siphoned off from his clients’ trust funds.

Tom Girardi, a titan of the California plaintiffs bar, is believed to have used his client settlement funds as his own personal piggy bank for years. The 83-year-old lawyer is suffering from Alzheimer’s and his firm went bankrupt two years ago as reports of his malfeasance came out.

Last year, a Chicago law firm accused singer and “Real Housewives of Beverly Hills” star Erika Jayne of acting as a “frontwoman” for her then-husband, Girardi. The court filing called Girardi’s now-shuttered law firm “the largest criminal racketeering enterprise in the history of plaintiffs’ law.”

U.S. District Judge Dale Fischer on Monday rejected the arguments by a lawyer for Christopher Kamon that his client wanted a “fresh start” and that there are perfectly innocent explanations why he liquidated his assets in the U.S., transferred millions of dollars to overseas bank accounts, and bought a $2.4 million home in the Bahamas.

“The government has proven that he’s a flight risk,” Fischer said at the hearing in LA federal court. “The transfer of funds is extremely suspicious in my view.”

Kamon, 49, has been in jail since his arrest Nov. 5 at the airport in Baltimore when he returned from the Bahamas. Prosecutors with the U.S. Attorney’s Office in LA say that Kamon planned to leave the county, change his name and hide, citing an unidentified witness who they say was an unwitting co-schemer who believed the accountant had authority to use the law firm’s funds for his private pursuits.

Prosecutors say Kamon, who worked at the Girardi Keese accounting department for almost two decades, used falsified invoices, fraudulent transfers and cash kickbacks from the firm’s accounts to steal millions of dollars. They also claim he improperly used the firm’s funds for his personal expenses, including home renovations, travel around the world on private planes and and tens of thousands a month for “female companionship.”

It was highly doubtful that he was authorized to provide a $20,000 monthly allowance to an escort, Assistant U.S. Attorney Ali Moghaddas said at the hearing.

If convicted, the accountant could face 11 to 14 years in prison just for his “side fraud,” according to the government. That doesn’t take into account Kamon possible culpability in the broader fraud scheme perpetrated by Girardi and others, which involved an estimated $100 million stolen from client settlement funds, the government said.

In addition, prosecutors said, the $1 million secured bond Kamon proposes to post as bail is far from sufficient to secure his return to court because he still has millions of dollars in foreign bank accounts.

The judge agreed Kamon could easily reimburse his family members and friends who have agreed to put up equity in their homes as part of his bond should he decide to flee rather than risk a possible 15 years in prison.

Jack DiCani, one of Kamon’s attorneys, told Fischer everybody knew where his client was going and that he travelled to the Bahamas and sought residency there under his own name. According to DiCani, he had repeatedly reached out to federal prosecutors in Chicago, where there’s a criminal investigation into the purported fraud by Girardi, and there hadn’t been any indication that Kamon was a target in that probe, which could have prompted him to flee.

“Mr. Kamon wanted a fresh start at life,” DiCani told the judge. “They’ve taken objective facts and read into them a nefarious explanation – that he was trying to hide from law enforcement.”

Kamon doesn’t have a criminal record, is charged with only one nonviolent crime, and nothing in his past or present conduct suggests that he is a flight risk, DiCani previously said in his request for pretrial release.

The government, however, said Kamon has been trying to avoid being served with lawsuits in civil litigation stemming from his role at Girardi Keese and that even his own lawyers didn’t know where he was. They also scoffed at the argument that there was nothing unusual about the fact that he had four mobile phones on him when he was arrested, saying that for some busy professionals it might be normal to have more than one phone, but not for someone who’s unemployed.

The California Legislature passed a law requiring the California State Auditor’s Office to conduct an audit of the State Bar’s attorney complaint and discipline process. The Legislature included this requirement in the law because the State Bar did not take action against Los Angeles lawyer Tomas Girardi, husband of “Real Housewives of Beverly Hills” star Erika Jayne, for misconduct until recently, despite repeated allegations of this attorney’s misconduct over decades.

A Los Angeles Times investigation documented how the now-disgraced attorney Tom Girardi cultivated close relationships with the agency and kept an unblemished law license despite over 100 lawsuits against him or his firm – with many alleging misappropriation of client money. Along with his family and employees, Girardi contributed more than $7.3 million to political candidates.

The Auditor of the State of California 2021 audit report is entitled “The State Bar of California: It Is Not Effectively Managing Its System for Investigating and Disciplining Attorneys Who Abuse the Public Trust” and was released on April 29, 2021.

The Auditor noted that “the State Bar’s backlog grew by 87 percent from the end of December 2015, to the end of June 2020.” As pointed out by the Auditor, this “growing backlog allows attorneys who are under investigation more time to continue practicing law while their cases are pending, increasing the risk for potential harm to the public.” The Auditor’s “analysis indicates that both higher- and lower-priority cases are taking significantly longer to resolve.” Additionally, as the Auditor highlights, the “State Bar is also disciplining attorneys at a drastically lower rate for reasons it cannot adequately explain. From 2015 through 2019, the total number of cases that resulted in discipline – including reprovals, suspensions, and disbarments – declined by 54 percent.”

The public outcry over Girardi’s long history of complaints prompted the State Bar to conduct its own special disciplinary audit, which it published in June 2021. The audit, commissioned by Interim Chief Trial Counsel Melanie Lawrence, revealed mistakes made in some investigations over the many decades of Mr. Girardi’s career going back some 40 years and spanning the tenure of many Chief Trial Counsels.

The State Bar subsequently prepared a proposal to streamline it’s disciplinary process. On October 28, 2022, the State Bar provided the Legislative Analyst’s Office (LAO) with its proposed (1) caseload processing standards for resolving attorney discipline cases within its Office of Chief Trial Counsel (OCTC), (2) establishment of a backlog goal and metrics to measure such a goal, and (3) staffing requirements needed to achieve the new standards.

As required by Chapter 723 of 2021 (SB 211, Umberg), The LAO presented its assessment of the State Bar’s proposal. which raised concerns with some of the assumption the state bar made in developing the new standards.

– – Overarching Comments – Consider Whether Changes for Additional Oversight Are Warranted. The State Bar’s proposal assumes that the existing disciplinary process is generally reasonable. However, the Legislature will want to consider whether it believes changes are warranted. Additionally, we note that the lack of legislative approval of the State Bar budget can make oversight difficult. Accordingly, the Legislature will want to consider what level of oversight it wants to exercise over State Bar processes and funding.
– – New Case Processing Standards – Partially Reasonable, but Raises Several Concerns. We found it reasonable to include both risk and complexity when prioritizing cases. However, we identified several concerns related to the proposed standards. For example, we find it unclear whether the aggressive time lines reflected in the standards are reasonable. In light of these concerns, we raised five key questions for legislative consideration. For example, the Legislature will want to consider how aggressive they believe case processing standards should be.
– – Establishment of Backlog Goal and Metrics – Partially Reasonable, but Also Raises Several Concerns. We found that alternative definitions of backlog could also be reasonable and identified several concerns with the State Bar’s proposal. For example, the State Bar’s proposed backlog metrics measure closed, rather than pending, workload. Based on our review, we identified three key questions for legislative consideration. For example, the Legislature will want to consider how backlog should be defined and calculated.
– – Staffing Analysis – Makes Sense to Delay Analysis. We found that it was reasonable that the State Bar report only provides a preliminary estimate of staffing and resource needs. However, we are concerned with the State Bar’s plan to conduct a staffing analysis in 2023 given that the full impact of various operational changes will likely not be known at that time. Based on our review, we identified two key questions for legislative consideration. For example, the Legislature will want to consider when would be the most appropriate time for the State Bar to conduct the staffing analysis.

The bar’s chief mission officer Yun Xiang said in reply that .”The state bar is pleased to learn that the Legislative Analyst’s Office found the proposed disciplinary case processing standards ‘reasonable’ in many key aspects,” He indicated that the state bar will continue to collaborate with the LAO and the Legislature to provide further clarifications and address the proposal-specific issues.”

Aaron Brown became an inmate at Los Angeles County jail on approximately February 16, 2018. On March 8, 2018 he transferred to “wayside” facility. One week later, he signed an agreement to participate in the conservation work program, which provided “work time” credits of 1 ½ days for every one day of work in the program.

On March 22, 2018, Brown slipped and fell while walking to the coffee pot at the print shop where he participated in the conservation work program. He reported the injury immediately and was examined at urgent care. He returned to urgent care the next evening due to hip pain. Hours later, he was released on the early release program.

Los Angeles County denied his claim for workers’ compensation benefits claiming there was a lack of and employment relationship.

After conclusion of a trial, the WCJ found that Brown was not an employee for purposes of workers’ compensation benefits. The WCJ relied upon an ordinance passed in 1970 that states that county inmates may be forced to labor and that such county inmates shall not be considered an employee for the purposes of workmen’s compensation insurance. Also submitted into the record is the Inmate Worker Agreement.

Brown’s petition for reconsideration was granted, and the WCAB panel concluded that he was an employee at the time in the case of Brown v County of Los Angeles/Sheriff’s Department – ADJ11278318 (December 2022).

Labor Code section 3351 defines “employee,” and section 3357 provides that “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” This is a rebuttable presumption.

Penal Code section 4017 provides that county inmates working in the suppression of fire are considered employees of the county. It does not speak as to the employee status of county inmates who do not work in fire suppression. The employee status of county inmates are thus left to the courts to decide.

In making this determination, courts have looked at whether the work that the inmate performed was “voluntary” or “compulsory” as an incident to incarceration and whether there was consideration for the work performed. If an inmate was performing compulsory work as an incident to penal servitude, he is not an employee and has no rights to workers’ compensation benefits. (Parsons v. Workers’ Comp. Appeals Bd. (1981) 126 Cal.App.3d 629 [46 Cal.Comp.Cases 1304].)

In deciding whether an inmate was performing compulsory or voluntary work, trial courts may ask the following questions (the Rowland factors): (1) Did the county require the worker to work as a condition of incarceration? (2) Did the inmate worker volunteer for the assignment? and (3) What consideration were received, if any; for example, monetary compensation, work-time credits, freedom from incarceration, etc. (Rowland v. County of Sonoma (1990) 220 Cal.App.3d 331, 333-334.).

There is a difference in determining employee status between persons incarcerated in state prison and person incarcerated in county jail. State inmates are statutorily included in the definition of “employee” while county inmates are subjected to a compulsory test to determine their employee status.

In more recent laws, employer control is a major factor in determining employment status (the more employer control, the more likely employment status is found, whereas here, the opposite effect results when applying the compulsory test, in that the more control the county exercises, the more likely the inmate’s work is found to be compulsory without the protections of an employment relationship.

The language in a local ordinance with respect to assigning work to inmates is not determinative, although it may be considered in determining whether the inmate’s work is compulsory or voluntary.

In applying the compulsory test above using the Rowland factors, the WCAB panel concluded that applicant’s work at the time was voluntary. Accordingly, it concluded that applicant is an employee of the county and entitled to workers’ compensation benefits.