Mostly Safe for Work and Work-Related Blog

On 2/26/25, in Ryan v. County of Los Angele s, the California Court of Appeal reversed the trial court's denial of the County's motion for judgment notwithstanding the verdict, in a case in which a surgeon was terminated by Harbor UCLA medical Center after his medical staff privileges lapsed and were not renewed. The surgeon then sued  the County, which operates Harbor UCLA Medical Center. The trial court sustained the County's demurrer to some claims, but a jury verdict returned a split verdict finding for the county on some claims and the surgeon on other claims, and warding the surgeon $2.1 million in noneconomic damages. On appeal the County contended it was entitled to judgment on all claims, and the surgeon ruled the trial court erred in granting the County's motion for summary judgment and denying a motion for leave to amend to add a claim. https://www4.courts.ca.gov/opinions/documents/B320677.PDF

On 2/28/25, the California Court of Appeals affirmed the trial court's ruling finding that the plaintiff lacked standing to challenge a judgment affirming a PAGA settlement. In a prior appeal, the Court had found the plaintiff had standing to challenge the initial settlement agreement. This decision was later disapproved by the California Supreme Court in Turrieta v. Lyft . However, the settling parties revised their settlement agreement, and the trial court again approved the settlement over the plaintiff's renewed objections. The trial court also denied the plaintiff's request for a service aware and for attorneys' fees.   https://www4.courts.ca.gov/opinions/documents/A168481.PDF

On 2/26/25, in Serrano v. Public Employees' Retirement System , the California Court of Appeals affirmed the decision of the trial court (and previously, the Public Employees’ Retirement System (CalPERS)) that special pay additives could not be included in a city employee's pension, though the employee argued that Government Code  § 3558.8 mandated that he not lost compensation, including pensionable compensation while serving as present of the Santa Ana Police Officers' Association.  https://www4.courts.ca.gov/opinions/documents/C098392.PDF

On 2/26/25, in Lowry v. Port San Luis Harbor Dist ., the Cal. Court of Appeals upheld a trial court's summary judgment finding that the denial of disability retirement benefits to an employee was snot an adverse action under the California Fair Employment & Housing Act (FEHA), since such payments do not facilitate an employee’s continued employment, but rather serve as income replacement for employees who can no longer work. The Court held that an individual who is not a qualified employee cannot bring a disability discrimination claim under FEHA for the denial of disability retirement payments. https://www4.courts.ca.gov/opinions/documents/B330631.PDF

On 2/26/25, in Rodriguez v. Packers Sanitation Services , the California Court of Appeals affirmed a trial court order denying an employer's motion to compel arbitration of an action brought under the California Private Attorneys' General Act of 2004 (PAGA).  The employer argued that the trial court failed to order the arbitration of the employee's individual claims, but the employee responded and argued that he had waived his individual relief and his PAGA claims therefore lacked an individual component. https://www4.courts.ca.gov/opinions/documents/D083400.PDF

On 2/26/25, in Lui v. DeJoy , the Ninth Circuit Court of Appeals reversed a trial court summary judgment of a disparate treatment claim, remanded a hostile work environment claim, and affirmed the granting of summary judgment on a retaliation claim under Title VII of the U.S. Civil Rights Act.  The panel held that the district court erred in finding that Lui failed to establish a prima facie case of disparate treatment, because she had shown that she was treated less favorably than similarly situated individuals, as she was removed from her position and demoted, replaced by someone of different race and gender. The Ninth Circuit also found that the employer failed to establish a legitimate non-discriminatory reason or the adverse employment action, and there was a genuine dispute of material fact whether the decision to demote the employee was influenced by subordinate bias. The Ninth Circuit also disagreed that the employee failed to exhaust administrative remedies, and that the f...

 On 2/24/25, in In re: Kristen v. California Pizza Kitchen, Inc ., the Ninth Circuit Court of Appeals affirmed a strict court's approval of a class action settlement, reversed and remanded an attorneys' fees award, in a class action in which employees alleged there personal information was compromised by a cyber attack on their employer. One group of plaintiffs' attorneys reached a settlement agreement in which the class claims were valued at $950,000 yet the attorneys sought $800,000 in attorneys' fees. The Ninth Circuit held that the district court may approve such claims-made settlements even if there are indicia of collision as long as they still adhere to procedural requirements and find the settlement "fair, reasonable, and adequate" under Fed. R. Civ. P. 23.  The Ninth Circuit also found that the district court's reasoning, while sparse in the orders granting preliminary approval and final approval, was otherwise extensive in the record. However, th...

On 2/24/25, in Ramirez v. Charter Communications, Inc ., the California Court of Appeals issued an opinion affirming a trial court's ruling not to sever unconscionable provisions of an arbitration agreement in a case involving claims brought under the California Fair Employment and Housing Act (FEHA).  T he challenged provisions included those: describing which claims were subject to and excluded from arbitration; imposing a shortened filing period for certain claims; limiting discovery available in arbitration; and allowing the employer to recover attorneys' fees in a manner contrary to FEHA.  The Court found that severing the unconscionable provisions would not further the interests of justice under Ramirez v. Charter Communications, Inc.  https://www4.courts.ca.gov/opinions/documents/B309408A.PDF

On  February 14, 2025, National Labor Relations Board ( NLRB) Acting General Counsel William Cowen issued  a memo to  all field offices, rescinding certain memoranda issued by the former General Counsel, and announced his intention to issue further guidance on appropriate allocation of the Agency’s resources. Among the rescinded memos are:  GC 21-06  and  GC 21-07  (remedies to be sought),  GC 21-08  (student-athletes are not employees under the NLRA);  GC 23-02  (electronic monitoring); GC 23-05  (severance agreements) and·  GC 23-08  and  GC 25-01  (on non-compete agreements). AGC Cowen also rescinded GC 24-01  (concerning the NLRB's Decision in  Cemex Construction   Materials Pacific, LLC .  Ir was also announced that  GC Memo 21-01  (Mail Ballot Elections), was rescinded as COVID-19 is no longer a Federal Public Health Emergency.  https://apps.nlrb.gov/link/document.asp...

On 2/19/25, the  U.S. Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas announced  that the EEOC would begin to  rigorously enforce the law to protect American workers from national origin discrimination. The press release noted that employers violate Title VII by preferring non-American workers because of (1) perceived lower labor costs (whether due to "under the table" payments or exploiting rules around visa holder wage requirements), (2) non-American workers are seen as more easily exploited and having less knowledge of legal protections, (3) improper customer or client preferences,  or (4) biased perceptions that foreign workers are more production or have a better work ethic than American workers. However, Lucas said  “[t]he law is clear: the prohibition on national origin discrimination applies to  any  national origin group, including discrimination against American workers in favor of foreign workers." https://www.eeoc.g...

On 2/20/25, in Dept. of Corrections & Rehab. v WCAB , the California Supreme Court    yesterday that a 50% hike in workers’ compensation benefits that applies where an employee is incapacitated due to a workplace injury caused by an employer’s “serious and willful misconduct” is to be calculated based on the amount a worker is normally entitled to take home under the Labor Code, and not, in the case of certain public employees, based on high sums received by them under a separate statutory scheme. https://www4.courts.ca.gov/opinions/documents/S282013.PDF

On 2/19/25, in Lin v. Board of Directors of PrimeCare Medical Network , the Court affirmed the trial court's decision to grant a petition for writ of administrative mandamus under CCP 1094.5. The petition challenged the Board's decision in peer review proceedings after PrimeCare had suspended Lin's privileges to perform patient care services. The Court found that the Board acted in excess of its jurisdiction and committed a prejudicial abuse of discretion when it reversed Prime Care's judicial hearing committee finding Lin's suspension was unreasonable and not warranted. https://www4.courts.ca.gov/opinions/documents/D084821.PDF

On 2/19/25, in Arzate v. ACE American Ins. Co ., the California Court of Appeals reversed a trial court decision lifting a stay of arbitration after neither party took action to initiate arbitration. The arbitration agreement required the person having the "employment-related legal claims" to "submit them to arbitration" and "start" the arbitration by filing a demand for arbitration. The trial court, however, concluded it was the employer's burden to demand arbitration and that the failure to do so was a waiver. However, the Court reversed the trial court and found that the employees had agreed in the arbitration agreement to "submit" their claims to arbitration, so it was the employee's burden to initiate arbitration and the employer did not waive its right to arbitration.    https://www4.courts.ca.gov/opinions/documents/B336829.PDF

On 2/13/2025, the California  Division of Workers’ Compensation (DWC) issued a press release noting that it would be holding a public comment period to solicit feedback on its proposed update to the Medical Provider Network and Medical Treatment Billing and Payment regulations. The updated regulations would seek to streamline the MPN review process (and provide clarity on telehealth and remove services and access standards https://www.dir.ca.gov/DIRNews/2025/2025-19.html

On 2/11/25, in Civil Rights Department v. Cathy's Creations, Inc. , the California Court of Appeals issued a decision in a lawsuit filed by the California Civil Rights Department, reversing a trial court decision and finding that the defendant bakery had engaged in intentional discrimination by not baking a cake for a lesbian couple, that the bakery's referral of the couple's business to a different bakery was not "full and equal access," and that the refusal to provide the cake was not protected free speech. The Court distinguished the Supreme Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Dept. because the cake was a plain white cake that did not entail any free speech or expression. https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2025/02/2025.02.12-Tastries-Statement.pdf https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2025/02/Tastries-Merits-Appeal_Courts-Opinion-F085800.pdf

On 2/5/2025, recently confirmed U.S. Attorney General Pam Biondi issued two memoranda regarding Executive Order 14173, which directed all federal agencies and contractors to end Diversity, Equity, and Inclusion (DEI) policies and programs, and terminated several prior Executive Orders that had promoted DEI. Executive Order 14173 also directed the U.S. Attorney General to develop recommendations for using civil rights laws to deter DEI in private organizations. The first memo directed the U.S. Department of Justice (DOJ) to update its guidance to affirm "equal treatment" and also review all consent decrees, settlement agreements, litigation positions, grants, policies, and contracts that include race or sex-based preferences, and DEI hiring targets or criteria. The second memo directed the DOJ's Civil Rights Division to investigate illegal DEI policies and programs in the private sector and submit a report with recommendations about how to end such policies and programs.  ...

On 2/10/2025, the California D ivision of Occupational Safety and Health (Cal/OSHA) issued a $529,640 fine against two plumbing contractors for violating safety regulations that resulted in serious injuries to a construction worker during a near-fatal trench collapse in San Mateo on 8/1/2024. The citations included numerous violations relating to lack of protective equipment (PE), lack of daily inspections, lack of exit routes, lack of shorting, lack of foot protection, lack of emergency medical personnel, lack of required permits, and lack of IIPP program and tailgate safety meeting: https://www.dir.ca.gov/DIRNews/2025/2025-18.html

On 2/7/2025, the California  Division of Workers’ Compensation (DWC) issued a press release and Notice of Public Hearing regarding proposed updates to the Medical Treatment Utilization Schedule (MTUS), 8 CCR  §  9792.24.2 (Chronic Pain Guidelines) and adoption of  8 CCR  §  9792.24.8 (Cannabis Guidelines). The DWC also advised that the MTUS updates and additions were exempt from the Administrative Procedures Act (APA) but subject to a 30-day public comment period, hearing requirement, and response requirement under Labor Code   §  5307.27. Under the proposed Cannabis Guidelines, cannabis would not be recommended for the treatment of either acute or subacute pain: https://www.dir.ca.gov/DIRNews/2025/2025-17.html https://www.dir.ca.gov/dwc/DWCPropRegs/2025/MTUS-Evidence-Based-Update/Index.htm

On 2/3/2025, the  Workers’ Compensation Insurance Rating Bureau of California (WCIRB) announced that Andrea Coleman assumed the role of President and Chief Executive Officer, effective February 1, 2025.  Andrea joined the WCIRB in May 2022 as Executive Vice President and Chief Operating Officer. https://www.wcirb.com/news/press-releases/andrea-coleman-assumes-role-wcirb-president-and-ceo

On 2/5/2025,  the California Department of Industrial Relations (DIR) has posted guidance for employers and workers on how to proceed rapidly and safely as they navigate the risks associated with  wildfire debris removal and cleanup. The DIR noted that workers have special rights during emergency conditions, such as access to cell pones, time off, and potential disability benefits. https://www.dir.ca.gov/DIRNews/2025/2025-15.html https://www.dir.ca.gov/Wildfire-Cleanup-Rebuild.html

On 2/6/2025, the  Division of Workers’ Compensation (DWC)  issued a press release noting additional adjustments to the Official Medical Fee Schedule (OMFS) for Pathology and Clinical Laboratory services, to  conform to recent changes in the Medicare payment system as required by Labor Code 5307.1 https://www.dir.ca.gov/DIRNews/2025/2025-16.html

On 2/4/2025, Andrew Rogers was named as new A cting General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC). Rogers had previously served as Chief Counsel to EEOC Acting Chair Andrea Lucas. Rogers also served with the Department of Labor's Wage and Hour Division. https://www.eeoc.gov/newsroom/andrew-rogers-named-acting-eeoc-general-counsel

On 2/5/2025, Gwynne Wilcox, a former Democratic member of the National Labor Relations Board (NLRB), filed a lawsuit in the United States District Court for the District of Colombia, against President Trump and his administration, alleging that her firing was a violation of NLRB members' removal procedures contained within the National Labor Relations Act (NLRA): https://www.bloomberglaw.com/public/desktop/document/WILCOXvTRUMPetalDocketNo125cv00334DDCFeb052025CourtDocket/1?doc_id=X1SMTPQLRQU8LV95F6576E9TLAK

On 2/4/2025, the  California Division of Occupational Safety and Health (Cal/OSHA) issued a press release advising employers that most COVID-19 Prevention Non-Emergency Standards ended after two (2) years, except for  reporting and recordkeeping requirements, which remain in effect until 2026. Employers still have to maintain a safe workplace, maintain an IIPP program, and identify and correct unsafe conditions in the workplace (associated with COVID-19 or otherwise): https://www.dir.ca.gov/DIRNews/2025/2025-14.html https://www.dir.ca.gov/dosh/coronavirus/

On 2/4/2025, the  California Division of Workers’ Compensation (DWC) i ssued a press release noting its  December 3, 2024   prior order adjusted Ambulance Services on the Official Medical Fee Schedule (OMFS) to conform to Calendar Year 2025 changes in the Medicare payment system. The  DWC has also posted an Ambulance Fee Schedule CY 2025 update to adopt the revised Medicare fee schedule. https://www.dir.ca.gov/DIRNews/2025/2025-13.html https://www.dir.ca.gov/dwc/OMFS9904.htm#1

On 2/3/2025, the National Association of Diversity Officers in Higher Education filed suit against the Trump Administration (President Trump and nine governmental departments and their corresponding cabinet officers) in the U.S. District Court for Maryland (Baltimore Division) and asked the district court to halt and declare unconstitutional several recent executive orders that sought to end diversity programs in the federal government and federal contractors. The lawsuit argues that the executive orders exceed the President's authority under the U.S. Constitution and asks the district court for preliminary and permanent injunctions to stop implementation of the orders and to find them unlawful and unconstitutional. https://www.reuters.com/legal/trump-sued-attempt-block-his-anti-diversity-orders-2025-02-04/ https://democracyforward.org/wp-content/uploads/2025/02/NADOHE-et-al-Anti-DEIA-EO-Challenge.pdf

On 2/4/2025, in Vo v. Technology Credit Union , the California Court of Appeals reversed a trial court's ruling denying a motion to compel arbitration and found that the arbitration agreement was not substantively unconscionable where the agreement incorporated JAMS Rules, including JAMS Rule 17 which grants the arbitrator the ability to expand discovery and allow third party discovery rights: https://www4.courts.ca.gov/opinions/documents/H051619.PDF

On 2/3/2025, in Casey v. Superior Court (D.R. Horton, Inc.) , the California Court of Appeals granted the employee's petition to vacate the trial court's petition to compel arbitration, holding that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 preempts state law attempts to compel arbitration because it permits plaintiffs to elect to render arbitration agreements unenforceable in cases related to a sexual harassment dispute (and parties cannot contract around the EFAA through choice-of-law provisions): https://www4.courts.ca.gov/opinions/documents/A170650.PDF

On 2/3/2025, the Trump Administration appointed William B. Cowen as Acting General Counsel of the National Labor Relations Board (NLRB). Cowen previously served as Regional Director in the NLRB's Los Angeles Regional Office since 2016. https://www.nlrb.gov/news-outreach/news-story/president-trump-appoints-willam-b-cowen-acting-general-counsel-of-the

On 2/1/2025, the National Labor Relations Board (NLRB) issued a press release notifying  the public that the NLRB Office of the General Counsel’s Field Offices will continue their normal operations of processing unfair labor practice cases and representation case. The NLRB cited the National Labor Relations Act, 29 CFR 102.178, and applicable case law as legal authority.   The press release noted that under  29 CFR 102.182, during any period when the Board lacks a quorum “all representation cases may continue to be processed." It was also noted that th e NLRB General Counsel currently has “full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j) or section 10(e) and (f) of the NLRA. Questions were to be related to the NLRB's Field Offices. https://www.nlrb.gov/news-outreach/news-story/information-for-the-public-on-nlrb-office-of-the-general-counsel-authority

On 2/3/2025, the California Civil Rights  (CRD) announced the opening of the pay data reporting portal for 2024 . Under California law, private employers of 100 or more employees or workers hired through contractors are required to annually report pay, demographic (including race and ethnicity), and other workforce data to the state. The deadline is May 14, 2025.  The CRD has also issued a new 2024 California Pay Data Reporting Handbook (in addition to FAQ). https://calcivilrights.ca.gov/2025/02/03/civil-rights-department-announces-opening-of-2024-pay-data-reporting-window/ https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2025/01/PDR_California_Pay_Data_Reporting_Handbook.pdf

On 1/31/2025, the Department of Industrial Relations's (DIR") California  Commission on Health and Safety and Workers' Compensation (CHSWC) announced the annual California Young Worker (High School) Leadership Academy on UC Berkeley, February 20 through 22, 2025. https://www.dir.ca.gov/chswc/info_bulletins/2025/info_bulletin01.html

On 1/31/2025, in Nabors Corporate Services, Inc. v. City of Long Beach , the California Court of Appeals addressed the trial court's granting of demurrers to a complaint filed by a contractor, Nabors, that sought indemnity after it was told by the City of Long Beach and a general contractor Tidelands Oil Production Co. that its work was not subject to prevailing wage laws but later faced a wage and hour class action seeking unpaid prevailing wages (which led to arbitration awards and court judgments). The trial court sustained the City and Tidelands demurrers to Nabors's complaint for indemnity under Labor Code  § §  1781 and 1784. The trial court reasoned that  Labor Code  §  1784 could not be applied retroactively to Tidelands and the arbitration awards confirmed by the federal court were not court decisions under Labor Code   §  1781. The appellate court affirmed the dismissal of Nabors's claim under Labor Code   §  1784 against Tidelands ...