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Emergency Ambulance Employees May Remain On-Call During Rest Breaks

Medic Ambulance Service provides advanced life support ambulance services in the North San Francisco Bay area. They are the exclusive 911 ambulance provider for all of Solano County with the exception of Vacaville.

Meghan Silva, an Emergency Medical Technician, filed a class action against Medic Ambulance Service, Inc. alleging it had violated labor laws by requiring that employees remain on call during their rest breaks.

California voters subsequently approved a proposition enacting the Emergency Ambulance Employee Safety and Preparedness Act (EAESPA) (Lab. Code, § 880 et seq.). The EAESPA provides that emergency ambulance employees “shall remain reachable” throughout their work shift and is explicit that this provision is retroactive.

In Calleros v. Rural Metro of San Diego, Inc. (2020) 58 Cal.App.5th 660 (Calleros), the Fourth District rejected an argument that retroactive application of the EAESPA was unconstitutional.

When confronted with the EAESPA and Calleros, Silva’s counsel indicated they would proceed and appeal to the First District for a decision that disagreed with Calleros. Medic filed a motion for judgment on the pleadings (MJOP) and a motion for sanctions. The trial court granted the MJOP, and imposed a $2,000 sanction against Silva’s counsel. Silva and her counsel appealed, renewing their argument that Calleros was wrongly decided and contending that the trial court abused its discretion in imposing sanctions.

The Court of Appeal for the First Appellate District affirmed the trial court, and Calleros in the partially published case of Silva et al. v. Medic Ambulance Service, Inc -A167098 (April 2024).

In December 2016, the California Supreme Court issued its decision in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257 (Augustus). The class action plaintiffs in that case worked as security guards for ABM Security Services and were required to remain on call during rest periods. Interpreting Wage Order 4 in Augustus, the California Supreme Court determined that the term “rest period” should be given its “most common understanding” as a period of rest during which employees are relieved from their work duties. Requiring employees to remain on call could not be reconciled with this reading.

In February 2017, two months after the Augustus decision was issued, Silva filed a class action against Medic on behalf of herself and other emergency medical technicians, as well as paramedics, dispatchers, and supply service technicians employed by Medic.

In December 2017, the Ninth Circuit certified questions to the California Supreme Court regarding the applicability of meal and rest period regulations to the employers of ambulance attendants working 24-hour shifts. (Stewart v. San Luis Ambulance, Inc. (9th Cir. 2017) 878 F.3d 883, 884 (Stewart I).) The Ninth Circuit explained that, while the California Supreme Court had interpreted Wage Order 4 to require off-duty rest periods, “Augustus does not control the interpretation of Wage Order 9.”

The Ninth Circuit noted that “for the past twenty- seven years, California courts have permitted employers of ambulance attendants to exclude sleep periods from compensable time without a written agreement, despite the fact that the employer retains control throughout the twenty-four hours to wake the employees from their sleep every time an emergency arises.” (Stewart I, at pp. 886-887.) “This precedent, unique to the ambulance industry, makes the applicability of Augustus to Wage Order 9 a difficult open question.” (Stewart I, at p. 887.)

In November 2018 (with these questions still pending before the Court), California voters approved Proposition 11, which enacted the EAESPA. Section 887, subdivision (a) of the EAESPA provides: “In order to maximize protection of public health and safety, emergency ambulance employees shall remain reachable by a portable communications device throughout the entirety of each work shift.”

The California Supreme Court subsequently dismissed consideration of the questions posed by the Ninth Circuit in Stewart I. (Stewart v. San Luis Ambulance, Inc., S246255, Supreme Ct. Mins., Sept. 18, 2019.) It explained: “In light of the passage of Proposition 11, the Emergency Ambulance Employee Safety and Preparedness Act (Gen. Elec. (Nov. 6, 2018)[)], resolution of the questions posed by the Ninth Circuit Court of Appeals is no longer necessary . . . to settle an important question of law. ” (Ibid.)

In November 2020, the Fourth District issued its decision in Calleros. Calleros concluded that the EAESPA’s retroactive application satisfies constitutional requirements.

After the Calleros decision was issued and requests for its depublication were denied, Silva’s counsel represented to the trial court that Silva “does not intend to dismiss the case and believes the opinion from the 4th District was erroneously decided and will go before the Court of Appeal to have the decision reversed.”

After reviewing the arguments of the parties, the Court of Appeal in Slliva affirmed the reasoning in Calleros and the trial court. “..we conclude that the EAESPA clarified existing law and therefore retroactivity analysis is unnecessary. The EAESPA applies to Silva’s claim and Medic was entitled to judgment on the pleadings.” It also concluded that the trial court did not abuse its discretion in imposing sanctions against Silva’s counsel.

Bakersfield Sting Operation Cites 12 Unlicensed Contractors

The Contractors State License Board (CSLB), along with the Kern County District Attorney’s Office and California Department of Insurance, recently conducted a successful undercover operation targeting unlicensed contractors.

This sting operation took place in Bakersfield on March 20 and 21 where CSLB cited 12 individuals for allegedly conducting contracting activities without the required license. These offenders were issued Notices to Appear in criminal court and could face legal consequences, including fines up to $15,000 and/or jail time. Engaging in contracting work without a contractor’s licnse is a misdemeanor offense in California.

The individuals targeted during this operation submitted bids ranging from $600 to $6,500 for home improvement projects including fencing, landscaping, plumbing, painting, and concrete work. A California contractor’s license is required to bid or contract for construction work exceeding $500 in value, including materials and labor.

In addition, nine stop orders were issued during the operation, halting work at job sites where contractors failed to provide workers’ compensation insurance for their employees.

Unlicensed contractors apprehended in this operation may also face additional charges for advertising their construction services without the necessary license. It is illegal in California to advertise construction or home improvement work without a valid license in the advertised classification. If unlicensed individuals advertise contracting services, they must explicitly disclose their lack of licensure and cannot bid or contract for work valued at more than $500.

“CSLB is unwavering in our dedication to protect homeowners from the risks posed by unlicensed contractors,” said CSLB Registrar David Fogt. “Our commitment includes providing continuous consumer education on the critical significance of hiring licensed contractors. We urge homeowners to verify a contractor’s license on CSLB’s website before embarking on any construction project in California.”

Unlicensed contractors often use workers from the underground economy, who are paid in cash, and not protected by worker’s compensation policies of insurance. Licensed contractors are required to provide worker’s compensation coverage information to the Contractors State License Board as part of the regulatory process.

Arbitration Agreement Does Not Extend to Re-Employment Case

Jasmin Vazquez started working for SaniSure through a staffing agency in July 2019. She was hired directly by the company as an at-will employee that November. Her employment was “for no definite period,” and either she or SaniSure could terminate the employment relationship at any time.

As part of her hiring, SaniSure provided Vazquez with onboarding documents, including agreements to “utilize binding arbitration as the sole and exclusive means to resolve all disputes that may arise out of or be related in any way to [her] employment.” Subject to limited exceptions, she agreed that any claim she had against the company would “be submitted to and determined exclusively by binding arbitration.” She also agreed to bring any claim individually, waiving her right to pursue a class or collective action. Changes to these agreements, if any, could be made only in writing.

Vazquez terminated her employment with SaniSure when she resigned in May 2021. Four months later, she negotiated a new employment offer and returned to work for the company. During negotiations the parties did not discuss whether Vazquez would be required to sign arbitration agreements again or whether claims related to her employment would be subject to arbitration. Vazquez’s second stint of employment with SaniSure ended in July 2022.

In October, Vazquez filed a class action complaint alleging that SaniSure failed to provide accurate wage statements during her second stint of employment. She also alerted both SaniSure and the Labor and Workforce Development Agency (LWDA) of her intent to add a derivative action under the Labor Code Private Attorney Generals Act (PAGA) (Lab. Code, § 2698 et seq.).

SaniSure moved to compel arbitration. The trial court denied the motion. All the claims in Vazquez’s complaint arose out of her second stint of employment with SaniSure. But SaniSure failed to show that Vazquez agreed to arbitrate claims arising from that stint of employment.

The court of appeal affirmed in the published case of Vazquez v SaniSure, Inc., -B329219 (April 2024.)

SaniSure contends the trial court should have granted its motion to compel arbitration because it showed the existence of an arbitration agreement covering Vazquez’s second stint of employment. The court of appeal disagreed.

“Here, we cannot say that SaniSure’s evidence was so uncontradicted, so unimpeached, and of such a character that it left no room for a judicial determination that it was insufficient to support the existence of an arbitration agreement governing Vazquez’s second stint of employment. “An arbitration agreement is tied to the underlying contract containing it.” (Moritz v. Universal City Studios LLC (2020) 54 Cal.App.5th 238, 246 (Moritz).) Such an agreement can be revoked “upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.) At-will employment contracts can be revoked upon reasonable notice. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 727, fn. 12.)”

Vazquez signed arbitration agreements during her first stint of at-will employment with SaniSure. But she revoked these agreements by terminating her employment in May 2021. The causes of action in Vazquez’s lawsuit are based on events that allegedly occurred only during her second stint of employment with SaniSure.

Thus, for her claims to be subject to arbitration, SaniSure must show that the parties agreed that the agreements Vazquez signed during her first stint of employment would apply to her second. (See Code Civ. Proc., § 1280, subd. (i) [arbitration agreement can be extended by implied agreement]; see also Litton Financial Printing Div. v. NLRB (1991) 501 U.S. 190, 205- 206 (Litton) [cause of action that arises after contract terminates may be subject to arbitration if arbitration agreement survives termination of the remainder of the contract].)”

SaniSure has not done so. Vazquez testified that she never agreed that the agreements she signed during her first stint of employment would govern her second. She also said that SaniSure never told her that getting rehired was contingent on agreeing to arbitration. And the documents she signed upon rehiring do not mention arbitration. SaniSure points to no evidence to the contrary. It has thus failed to carry its – ‘almost impossible’ – burden of showing that the trial court erred as a matter of law when it denied the motion to compel arbitration. (Gamboa, supra, 72 Cal.App.5th at p. 166.)”

NSC Releases New Report on Safety Hazards in Crane Industry

While cranes play a vital role in the transportation, construction and agriculture industries, among others, operating this type of equipment can be especially dangerous if proper protocol is not followed. In fact, the Census of Fatal Occupational Injuries, or CFOI, reported a staggering 297 crane-related deaths between 2011 and 2017. As part of a collaboration with the NCCCO Foundation, and continuing its mission to advance safety in the workplace, the National Safety Council released a new report through its Work to Zero initiative, Understanding the Current State of Safety Hazards in the Crane Industry, highlighting lift-specific risks and best practices employers can adopt to keep workers safe.

Research from the CFOI also shows more than half of workplace deaths that occur in the crane industry involve workers being struck by objects or equipment, and an additional 27% of fatalities occur as a result of falls and transportation incidents.

For the report, the National Safety Council partnered with the NCCCO Foundation to survey certified crane operators and inspectors to identify the most common hazards in the industry, top risk factors and learn about technology solutions to eliminate or minimize injuries. Nearly 2,200 voluntary and anonymous responses from the NCCCO Foundation between July and August 2023 were used to develop this report. Notable findings include:

– – Top hazardous situations: Working at height, vehicle-pedestrian interactions, and loading and unloading materials are the top hazardous situations on the job. Between 55% and 89% of participants said they were likely or very likely to be exposed to these circumstances. In 2020, NSC found these three hazardous situations resulted in 30% of non-roadway occupational fatalities.
– – Most common risks: The two most common systemic risks contributing to workplace injuries in the crane industry are heat stress and fatigue. The report also found that survey participants reported heat and stress were some of the most likely exposures on the job.
– – Most common causes of injuries: Situational risks remain prevalent in the crane industry, with falls from height and being struck by a falling object being the two most common causes of injuries.
– – Safety training and compliance: Eight out of 10 survey respondents believe they have access to appropriate safety training before starting a task, but lack of proper training still accounted for 7% of personal injuries and 8% of on-site injuries.
– – Technology implementation: The use of safety technology – including drones, proximity sensors and vital sign wearables – is fairly low. Depending on the specific type, only one to 13% of participants reported using technology at job sites. However, many of those surveyed indicated a willingness to try new safety technology solutions, while the primary barrier to adoption was concern over data privacy.

The report also notes some recommended actions and potential technology solutions that employers can implement to help reduce the top safety risks in the crane industry, including:

– – Heat stress: Working in high-heat environments can lead to both serious injuries and illnesses, including heat stroke, slips, trips, falls and dropping objects. It’s important employers develop heat stress prevention programs that include safety training on how to recognize the signs and symptoms. Potential technology solutions that may help mitigate these risks include wearables that monitor people’s vital signs.
– – Fatigue: Fatigue can cause workers to have trouble focusing and remembering, which can lead to distractions and less muscle coordination, ultimately resulting in more injuries. Similar to heat stress, safety training should focus on how to recognize the signs and symptoms, and wearable technology can play an important role in monitoring this issue.
– – Struck by falling objects and falls from height: Working at height risks, like being struck by an object or falling, can be reduced with fall protection training and instruction on how to properly use personal fall arrest systems. Potential technology solutions include utilizing drones for inspection and visualization purposes, which eliminate the need for a worker to be off the ground.

This report builds on the Work to Zero Safety Innovation Journey to help organizations assess risks, identify technology solutions and ready workplaces for implementation. As the crane industry continues to navigate major safety challenges, NSC and the NCCCO Foundation plan to continue this work and provide additional resources to educate crane operators, inspectors and employers about potential workplace hazards and technology solutions that can help minimize risks.

Failure to Comply With WCAB Rules Precludes Newly Discovered Evidence

Kristina Gallo was employed as an Office Manager/Stock Clerk by Rooster T. Feathers Comedy Club on on 9/5/2014 when she suffered an injury to her back, trunk and lower extremities. A QME, Dr. Renee Ownbe, diagnosed her with right ankle fracture, right hip trochanteric bursitis that resulted in a 16% WPI to the ankle and 3% WPI for pain add on. The case was resolved by Compromise and Release agreement on 11/20/2107 for $60,000.

She then filed an application for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits on 08/03/2018 alleging injury to the back, right side, right lower extremity with pre-existing disability to internal organs, bilateral upper and lower extremities, spine and psyche.

Dr. Christopher Chen, Dr. Joshua Kirz and Dr. Massoud Mahmoudi served as applicant’s SIBTF QMEs. SIBTF did not seek its own med-legal report.

Applicant testified during trial she had varicose vein starting in her early 30s, that she had symptoms prior to her 9/5/2014 subsequent injuries and had to change her work activities as a result. She also testified that during marathon training in 2005, she fell on her left side, injuring her left hip, left knee, and lower back and may have been seen by Dr. Rodney Wong. Applicant testified that she started limping on the left side shortly after the 2005 injury and continued every day but episodic.

However, the WCJ noted that “applicant’s testimony was not supported by any evidence whatsoever. Based on Dr. Kirz, he reviewed in excess of 1000 pages of records dating back to the 1990s. Yet, based on Dr. Chen, Dr. Kirz and Dr. Mahmood’s reports, there were no documents nor history of any lower extremities complaints, treatment, nor any documented history of limping.

Applicant relied on Dr. Chen’s opinion to support her SIBTF claim which stated that in part that “medical records” showed applicant had back problems going back to 2001 and that applicant “likely” had left L4 radiculopathy since 2005, which affected the opposite and corresponding lower extremity under LC §4751.

The WCJ however could not find any “records” that Dr. Chen stated to support this opinion. The WCJ went on to write “While there is no doubt that applicant had prior low back complaints as well as other symptoms, evidence failed to show prior or pre-existing labor disabaling condition to the opposite and corresponding left lower extremity. Dr. Chen miserably failed to point to a single evidence supporting “chronic left L4 radiculopathy” despite having reviewed extensive medical records. He did not support his reason for his opinion that applicant “likely” had left L4 radiculopathy since 2005 when the records he reviewed only related to low back pain.”

Applicant alleges that per Dr. Chen, varicose vein has latency period and genetic factors. Dr. Chen did not provided any opinion regarding latency of varicose vein. He did not specify the latency period nor any medical literature or evidence to support that applicant’s varicose vein was present and developed over many years. As for the genetic factor, again, Dr. Chen failed to provide any evidence. While medical record did confirm family history of heart disease in maternal grandparents and hyperlipidemia in applicant’s mother, where applicant’s mild hypertriglyceridemia was most likely genetic, records were silent as to any family history of varicose vein. The undersigned can only logically conclude Dr. Chen’s opinion is speculative or relying on facts not supported by any evidence.

On July 16, 2021 the WCJ issued a Findings and Order which found that “applicant has not established through substantial medical evidence that she had permanent partial disability to her left lower extremity, specifically varicose vein, as of the date of her subsequent industrial injury to the opposite and corresponding member on [September 5, 2014].”

The Findings and Order was affirmed by the WCAB in the case of Gallo v Subsequent Injuries Benefits Trust Fund -ADJ10049929 (March 2024).

“We agree with the WCJ that the opinion of Christopher Chen, M.D., is not substantial medical evidence. To be considered substantial evidence, a medical opinion ‘must be predicated on reasonable medical probability.’ (E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687];McAllister v. Workmen’s Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416–17, 419 [33 Cal.Comp.Cases 660].) A physician’s report must also be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).)”

On reconsideration, applicant argued that she had “newly discovered evidence” to support her claim. However, the WCAB panel noted that “we note that applicant has failed to comply with the requirements of WCAB Rule 10974” which requires that the petition must contain an offer of proof which includes “a full and accurate statement of the reasons why the testimony or exhibits could not reasonably have been discovered or produced before submission of the case.”

A petition for reconsideration sought upon these grounds may be denied if it fails to meet the requirements of this rule, or if it is based upon cumulative evidence.”

Federal Judge Vacates New NLRB Joint Employer Rule

On Oct. 26, the National Labor Relations Board (NLRB) issued its much-anticipated final rule addressing the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA). The 229-page rule not only restores the deeply flawed standard first announced during the Obama administration in its 2015 Browning-Ferris decision, but also expands potential liability for employers.

During the Trump administration, the NLRB reversed the Browning-Ferris standard via a final rule, and it required a putative joint employer to “possess and exercise . . . substantial direct and immediate control” over essential terms and conditions of employment to determine that status. The new October 26, 2023 rule rescinds the Trump-era board’s standard and “makes extreme and troubling changes to Board law,” as Member Marvin Kaplan states in his dissent to the new rule.

Joint employment is where two or more employers control the essential terms and conditions of employment for the same employees. The rule makes it easier for the NLRB to declare joint employment status exists in business relationships where it traditionally doesn’t, like franchising, contracting, and supply chains.

The U.S. Chamber of Commerce and a coalition of business groups filed a lawsuit against the National Labor Relations Board (NLRB) in the U.S. District Court for the Eastern District of Texas over its new joint employer rule.

The rule makes it easier for the agency to declare joint employment status exists in business relationships where it traditionally doesn’t, like franchising, contracting, and supply chains. It upends a longstanding precedent by broadening liability for employers and enabling unions to organize across companies rather than store by store. Many companies could find themselves facing liability for workers they don’t employ and workplaces they don’t actually control.

The Chamber is joined by co-plaintiffs: the American Hotel and Lodging Association, Associated Builders and Contractors, Associated General Contractors of America, Coalition for a Democratic Workplace, International Franchise Association, Longview Chamber of Commerce, National Retail Federation, National Association of Convenience Stores, Restaurant Law Center, Texas Association of Business, and Texas Restaurant Association.

According to the Chamber of Commerce “If the rule is allowed to go into effect, it will have far-reaching consequences for businesses of all sizes. A previously expanded joint employer rule was in place from 2015 to 2017 and cost franchise businesses, a majority of which are small businesses, $33 billion per year. That resulted in 376,000 lost job opportunities and led to 93% more lawsuits.”

The new rule was set to take effect March 11, 2024 after two delays. Prior to the effective date, the Chamber of Commerce had a major victory as the court granted their motion for summary judgment in the case, finding that the Board’s reach “exceeds the bounds of the common law and is thus contrary to law.” The judge also held the Board’s rescission of the 2020 rule arbitrary and capricious and reinstated the 2020 rule that requires “direct and immediate control” over the essential terms and conditions of employment of another entity to establish joint-employer status.

The final Judgment of the Court in U.S. Chamber of Commerce et al. v. NLRB et al., No. 6:23-cv-0055 was entered on March 8, 2024. “It is declared that enforcement against plaintiffs or their members of the rule issued by the National Labor Relations Board on October 27, 2023, entitled Standard for Determining Joint Employer Status, 88 Fed. Reg. 73,946, would be contrary to law as to the rule’s addition of a new 29 C.F.R. § 103.40 and arbitrary and capricious as to its removal of the existing 29 C.F.R. § 103.40 (2020). In both respects, the rule is hereby vacated.”

The decision in the lawsuit filed by the Chamber of Commerce sets the stage for an appeal to the US Court of Appeals for the Fifth Circuit, which is known for politically conservative rulings.

In another pending case on this new rule, the Service Employees International Union filed a petition for review of the new rule in the D.C. Circuit, Case No. 23-1309 last November. SEIU is asserting that the new rule on the ground that the Rule was not broad enough..

The U.S. Chamber of Commerce and a number of other employer groups have filed documents as intervenor in the SEIU action. it has asked “the Court to hold these proceedings in abeyance pending the resolution of any appeal of the final judgment entered in Chamber of Commerce of the United States of America v. NLRB,” which vacated the rule challenged in the SEUI petition. The D.C. Circuit has not ruled on this motion, and briefing of the issue remains in progress by the parties.

In addition to these two pending cases, Congress is advancing a Congressional Review Act resolution to block the rule, even though the lawmakers’ effort faces a veto by President Joe Biden. Last January, the House the House passed H.J. Res. 98, a Congressional Review Act resolution by a bipartisan vote of 206 to 177,that will nullify the National Labor Relation Board’s (NLRB) joint employer rule,

The legislative process has now moved to the US Senate where a vote is expected later this year.

DOL Issues New Rule on Employee Representation During OSHA Inspections

The U.S. Department of Labor announced a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration compliance officer during an inspection of their workplace will be published in the Federal Register on April 1. The rule is effective on May 31, 2024.

The Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee.

For a non-employee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection.

Consistent with OSHA’s historic practice, the rule clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. This experience may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection. These revisions better align OSHA’s regulation with the OSH Act and enable the agency to conduct more effective inspections. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.

The rule is in part a response to a 2017 court decision ruling the agency’s existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives. However, the court acknowledged that the OSH Act does not limit who can serve as an employee representative and that OSHA’s historic practice was a “persuasive and valid construction” of the OSH Act. The final rule is the culmination of notice and comment rulemaking that clarifies OSHA’s inspection regulation and aligns with OSHA’s longstanding construction of the act.

Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended.”

The Workforce Committee Chairwoman Virginia Foxx (R-NC) issued a statement on the Department of Labor’s (DOL) final Walkaround Rule. “This rule has absolutely nothing to do with keeping workers safe. Rather it weaponizes OSHA inspections – harming workers’ safety while also increasing employers’ costs. This isn’t surprising given this administration’s zeal for regulatory overreach.

“What’s worse, under this rule unionizing efforts and other activist campaigns are put ahead of safety efforts. So much for OSHA’s vital mission of protecting the health and safety of the nation’s workers. It appears the Biden administration’s only concern is propping up Big Labor’s agenda. Mr. President, workers and job creators hear your message loud and clear.”

Senate Committee on Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Bill Cassidy (R-Louisiana) stated: “OSHA inspections are crucial to protect workers’ safety and should never be co-opted to promote a political agenda,” said Dr. Cassidy. “The union has a vested interest in harassing a non-union employer. Giving them the power to influence an inspection is a potential weapon against a workplace that has chosen to be non-union. This is wrong.”

Greg Sizemore, Associated Builders and Contractors vice president of health, safety, environment and workforce development said: “There simply is no business case for this final rule and no benefit during a compliance inspection.”

By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them. OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite.”

More SoCal Poultry Processors Accused of Using Illegal Child Labor

Since 2018, the U.S. Department of Labor has seen a 69 percent increase in children being employed illegally by companies. In the last fiscal year, the department found 835 companies it investigated had employed more than 3,800 children in violation of labor laws. Last year the Department reported it had over 600 child labor investigations underway and continues to field complaints and initiate investigations to protect children.

And last year a California poultry processor and supplier to supermarkets and food distributors agreed to pay nearly $3.8 million in back wages, damages and penalties after the Department found the company endangered young workers recklessly in Southern California. Division investigators found that The Exclusive Poultry Inc. and related companies established by owner Tony Bran employed children as young as 14 years old to debone poultry using sharp knives and operate power-driven lifts to move pallets.

On March 4, 2024, Acting Labor Secretary Julie Su filed a petition to enforce the department’s subpoenas for information from L & Y Food, Chen Lu and another business and individual in connection with an investigation of minimum wage, overtime, record keeping and child labor violations. The case was filed in the U.S. District Court for the Central District of California.

In response to the petition to enforce the subpoenas, Court House News Service reported that Gregory Patterson, an attorney for L & Y Food and Chen Lu, called the government’s conduct “shocking and reprehensible.” He went on to say the companies in question haven’t violated a single wage and hour law and are paying their workers bonuses, described as “piece-pay,” based on their output, such as boxes of cut chicken. This, the attorney said, isn’t illegal in California or the U.S. as long as it is more than minimum wage or overtime pay based on guaranteed minimum wage.

Subsequently, on March 20, 2024, investigators with the Wage and Hour Division, U.S. Department of Labor claims it discovered oppressive child labor at a poultry processing facility at 15861 Salvatierra St., Irwindale, California where it observed children deboning poultry, during a March 20, 2024 civil search warrant.

The investigators claim children had been working at the facility for months and the employer continually removed goods from the facility the entire time, including after the search warrant, and over Wage and Hour Division’s objection. It says the goods processed in this facility up to April 19, 2024 are tainted by child labor and are now “hot goods” under the FLSA. “The goods removed from the facility are permanently hot and cannot enter commerce.”

Based on this information, on Saturday, March 30, 2024 the Wage and Hour Division filed a lawsuit in federal court against the three companies named as defendants in the complaint – L & Y Food of El Monte, which operates two poultry processing plants, Moon Poultry of Irwindale and JRC Culinary Group of Monterey Park. Fu Qian Chen Lu, according to the complaint, is the owner of the three businesses and responsible for their management.

Section 12(a) of the FLSA, 29 U.S.C. § 212(a), prohibits Defendants from shipping or delivering for shipment in commerce any goods produced in that establishment in or about which within thirty days prior to the removal of such goods therefrom the oppressive child labor was employed.

The lawsuit seeks to permanently enjoin and restraining Defendants, their officers, agents, servants, employees, and those persons in active concert or participation with them from prospectively violating the FLSA including: Sections 11(a), 12, and 15(a)(4) of the FLSA, 29 U.S.C. §§ 211(a), 212, and 215(a)(4)

It also asks that Defendants “disgorge all ill-gotten profits earned from any sale of goods produced in an establishment where the employed oppressive child labor and movement of this contraband.” And to to pay all civil monetary penalties arising from their violations of the FLSA’s prohibitions against oppressive child labor.

U.S. District Judge Otis Wright II on Monday April 1, 2024 issued a temporary restraining order to force the companies and their owners to stop using child labor, provide the Labor Department with the names of the people they have employed in the past year and their contact information, and not ship any products from the facilities where they used child labor.

Tesla-Freemont to Face Hostile Work Environment Claims in Multiple Forums

The Equal Employment Opportunity Commission filed a lawsuit in September 2023 in the United States District Court for the Northern District of California against Tesla, Inc.under Title VII of the Civil Rights Act of 1964 for claims arising from Tesla’s race-based employment practices.

The Commission alleges Tesla has subjected Black employees at its Fremont, California manufacturing facilities to severe or pervasive racial harassment and has created and maintained a hostile, race-based work environment there since May 2015. The N-word and other racial slurs, epithets, and stereotyping “permeated Tesla’s Fremont Factory.” Non-Black managers, non-managerial employees, and temporary workers directly addressed Black employees individually and collectively using the N-word.Other race-based slurs and insults were frequently used as well.

At work, Black employees allegedly encountered racist graffiti-including swastikas, death threats, and nooses on bathroom walls, desks, elevators, and equipment. Black employees describe the use of slurs and racist imagery as “casual and normal,” “frequent,” “constant,” “a regular thing,” and occurring “too many times to count.”

Non-Black employees allegedly used slurs and epithets openly in high-traffic work areas and hubs. Supervisors and managers witnessed racially offensive conduct but failed or refused to intercede. Black employees reported the slurs, insults, graffiti, and misconduct to Tesla’s human resources, employee relations, and managerial personnel. Tesla failed to investigate complaints of racial misconduct, adopt policies or practices to ensure its temporary workforce did not perpetuate racial harassment at the Fremont Factory, or otherwise take remedial action to end the ongoing racial harassment.

Tesla’s supervisors and human resources officials allegedly retaliated against Black employees by changing their schedules, assigning them less desirable duties, writing them up without justification, and firing them within weeks of reporting the ongoing racial harassment and discrimination.

Tesla filed a motion to stay the proceedings under the Colorado River doctrine and on the grounds the Commission failed to engage in pre-suit conciliation, and also a motion to dismiss based on the Commission’s failure to identify any member of the alleged group of victims. And also because the EEOC did not allege all three elements of a prima facie retaliation claim. On March 29, 2024 the court denied all three motions.

In Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, the U.S.Supreme Court recognized “in exceptional circumstances, considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation can support a stay of federal litigation in favor of parallel state proceedings.

Tesla insists this action is substantially similar to two state court actions now before Alameda County Superior Court Judge Grillo: Department of Fair Employment and Housing v. Tesla, Inc., Alameda County Superior Court No. 22CV006830, and Vaughn, et al. v. Tesla, Inc., et al., Alameda County Superior Court No. RG 17882082.

In the Vaughn Case, filed July 2021, the plaintiffs sue Tesla for race-based harassment and discrimination and failure to prevent race-based harassment and discrimination in violation of California’s Fair Employment and Housing Act. In the Civil Rights Department Case, filed in March 2022, California’s Department of Fair Employment and Housing initiated an enforcement action for group relief against Tesla on behalf of California and aggrieved Black Fremont Factory workers, alleging racial harassment, employment discrimination based on race, retaliation, failure to prevent racial harassment and discrimination, and recordkeeping violations.

Tesla asserts the state court actions are substantially similar to this action because 1) “the putative class in the Vaughn Case and the alleged aggrieved group in the [Civil Rights Department] Case include all African American workers at the Factory within the statutory periods,” and 2) the Commission’s complaint is based on the same factual allegations and seeks to vindicate the same legal rights as some claims in the state court actions.

However the court noted that “a Colorado River stay is inappropriate when the state court proceedings will not resolve the entire case before the federal court. If there is any substantial doubt as to whether the state court actions will completely and promptly resolve the issues between the parties, it would be a serious abuse of discretion to grant the stay or dismissal at all.”

Between July 2022 and June 2023, the Commission engaged in conciliation efforts with Tesla, including a seven-hour, in-person conciliation session on June 13, 2023. So, the Commission tried to engage Tesla in discussions to provide Tesla the opportunity to remedy the allegedly discriminatory practice. A court looks only to whether the EEOC attempted to confer about a charge, and not to what happened.

Tesla’s argument for dismissal based on the Commission’s failure to identify any member of the alleged group of victims failed because the Commission brings this enforcement action in its own name, so the Commission is not required to identify an aggrieved individual to survive Tesla’s motion to dismiss.

The complaint is not required to plead a prima facie case of retaliation as long as it contains “a short and plain statement of the claim showing that the pleader is entitled to relief,” Swierkiewicz v. Sorema N. A., 534 U.S. 506. at 508 (quoting Federal Rule of Civil Procedure 8(a)(2)).

WCIRB Reports on Impacts of Employee Tenure on Claim Frequency

Research shows that employees with shorter tenure are more likely to be involved in work-related injuries, potentially due to newer employees being less skilled and less aware of safety practices than more experienced employees. A 2016 WCIRB study also highlighted a decline in the average tenure of injured workers during a period of increased claim frequency.

More recently, the COVID-19 pandemic further affected employment dynamics, with significant shifts observed between 2020 and 2022. Many shorter-tenured employees lost jobs in 2020, and subsequently, some gained jobs in the same industry while others entered new industries. The recent changes in the labor market and employee tenure may have long-term impacts on work-related injuries.

The WCIRB has conducted a study of employee tenure focusing on several key areas, including a comparison of shifts in employee tenure among injured workers and those among California workers and relative claim frequency and claim characteristics by tenure. For the purpose of this study, employee tenure is defined as the length of time that an employee has been employed by their current employer. The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released a new report, Impacts of Employee Tenure on Workers’ Compensation Claim Frequency in California.

Highlights of the report include:

About 40% of workers’ compensation claims come from workers with <1 year of tenure. Service-providing industries have a higher share of claims from these short-tenured workers than other industries.
– – From 2020 to 2022, all industry groups experienced a rise in the share of claims from workers with <1 year of tenure, largely driven by a strong labor market with increased job openings. This might have resulted in a higher number of new hires with less experience or training, who were more susceptible to work- related injuries.
– – Workers with longer tenure tend to have a higher share of cumulative trauma (CT) indemnity claims, mostly because it takes time for CT injuries to occur. Health care & education and office workers with increased tenure tend to have a higher likelihood of CT injuries than workers in other industries.
– – Workers with <1 year of tenure are more than 2X as likely to have a claim relative to the statewide average, largely driven by those in physical labor and service-providing industries.
– – Workers with <1 year of tenure are more likely to have fall, struck or cut injuries, while longer-tenured workers tend to have more strain injuries.
– – Workers with longer tenure tend to have a higher share of cumulative trauma (CT) indemnity claims, mostly because it takes time for CT injuries to occur. Health care & education and office workers with increased tenure tend to have a higher likelihood of CT injuries than workers in other industries.
– – For injured workers aged 16-34, the share of indemnity claims involving temporary disability (TD) only decreases with increased tenure; however, the share of claims involving permanent disability (PD) increases. The correlation between tenure and both TD and PD weakens for older workers within the 35-54 and 55+ age groups.
– – After adjusting for age, the average incurred losses on indemnity claims, valued at approximately 18 months from policy inception, are generally higher for longer-tenured workers.

Members of the WCIRB Actuarial and Research Teams will host a free webinar to discuss this new report on Thursday, April 18, 2024, 10:00-11:00 AM PT. The WCIRB presenters are Julia Zhang, PhD, Vice President, Data Analytics and Sean Cooper, FCAS, MAAA, Executive Vice President and Chief Actuary.

Click on this registration link to sign up.