Friday, December 28, 2012

Mastagni Law Fights for Veterans' Rights

The December 2012 issue of the California Public Employee Relations (CPER) Journal features an article by Mastagni Law partner, Christopher W. Miller.  After the Homecoming: A User’s Guide to the Uniformed Services Employment and Reemployment Rights Act discusses how to honor the rights of returning veterans and comply with the law.

Under USERRA, employers must treat returning veterans as if they had been present and continuously working at their civilian jobs throughout their military service. Employees are entitled to more than merely their old job back. They are entitled to all the benefits, positions, and promotions they would have achieved if they had never left.  When employers do not honor veterans' rights, Mastagni Law fights for veterans' rights under the Act.

Wednesday, September 19, 2012

Mastagni Law to Host Webinar on Workers' Comp Reform

Senate Bill 863 makes major changes to California's Workers' Compensation System. On Wednesday, September 26, 2012 at 10:30 a.m., Mastagni Law attorneys John HolstedtJohn P. TribuianoJonathan W. A. Liff, and Eric Ledger will discuss the bill and how public safety professionals can protect their rights in the new Workers' Comp system.

  Workers' Compensation Reform: 

What SB 863 Means For Public Safety Professionals

Wednesday, September 26, 2012 10:30 AM
Registration is free.  

Friday, June 29, 2012

Actions Speak Louder Than Words

Businesses use many names, words, and titles in an attempt to define relationships with workers.  The California courts, however, are not bound by mere titles or words, and instead look to a company’s conduct to determine the real nature of its relationship with workers.

The Second Appellate District of the California Court of Appeal recently held that a franchisor could be held accountable for workplace harassment at one of its franchises when the franchisor exercises control over personnel decisions.  In Patterson v. Domino’s Pizza, LLC, an employee of a Domino’s restaurant alleged sexual harassment and assault at her job against both the local Domino’s franchisee and its parent company, the Domino’s franchisor.

The Court of Appeal rejected the franchisor’s attempt to dismiss the case against it on the grounds that plaintiff’s only employer was the local restaurant.  The Court held that despite the restaurant’s contract with Domino’s establishing it as franchisee and an independent contractor, there was evidence that the Dominos’ maintained substantial control over the franchisee’s local operation, management-employee relations and employee discipline.  

Further, the alleged harasser in Patterson v. Domino’s Pizza, LLC was the plaintiff’s supervisor, and in California an employer is held strictly liable for workplace harassment by its supervisors.             

You should contact an attorney experienced in matters involving employment law as soon as possible, if you believe you are the subject of workplace discrimination.

Tuesday, June 5, 2012

Age Discrimination Claims in the Age of Layoffs

Stale economies inevitably result in layoffs. As revenues dip, employers make tough decisions to balance budgets. Impacted employers often choose to layoff high-salary workers to cut costs. Firing high wage earners generally hurts older employees, and the courts are often called upon to determine whether eliminating high-salary workers, who happen to be over 40 years of age, is age discrimination.

A recent decision in the Ninth Circuit Court of Appeals is an example of the courts’ general reluctance to second guess an employer’s cost-saving choices, even when said choices harm older employees. Schechner v. KPIX-TV was about two forty-plus year old bay area television news reporters whose positions were eliminated by a local news station. During the case an expert statistician showed that the layoffs disparately affected older workers. In response, the employer claimed that the statistics did not explain differences in types of jobs, such as the difference between an anchor versus a general assignment reporter.

The Ninth Circuit held that the plaintiffs could use statistics as some evidence of discrimination. The statistics alone, however, were not enough to overcome their employer’s excuse that they were targeted for termination because they worked as general assignment reporters, and the argument that there was no discrimination because the very same individuals who had recently extended the plaintiffs’ contracts were the ones that made the decision to let the plaintiffs go.

You should contact an attorney experienced in matters involving employment law as soon as possible, if you believe you are the subject of discrimination.

Tuesday, April 17, 2012

California Supreme Court Decides Meal Period Rules

In Brinker Restaurant Corp. v. Super. Ct. (April 12, 2012) 2012 WL 1216356, the California Supreme Court found it is the employer's obligation to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose the employee desires. The employer need not, howeer, ensure that no work is done.

The lawsuit was filed by five non-exempt restaurant employees of Chili’s who claimed the restaurant illegally denied them meal and rest breaks. The employees challenged the restaurant’s practice of having employees take early lunches shortly after starting work and then working employees another five to ten additional hours without receiving another meal period. The employees also claimed they should have received a rest break before the first meal period.

The Court found an employer’s obligation to "provide" a meal period is satisfied if the employee (1) is relieved of all duty for an uninterrupted thirty minute period, and (2) is free to leave the work premises. The employer's obligation is to "relieve the employee of all duty," with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires. The employer need not "ensure" that no work is done during a meal period. If an employer relieves the employee of all duty, the employer is not liable for a meal period premium if the employee chooses to work (unless the employee is pressured by the employer to work). However, if the employer knew or reasonably should have known that the employee was working during the meal period, the employer will be liable for payment of the employee's regular (or overtime) wage for such time worked. The Court further found Rest breaks and meal periods do not need to be taken in a certain order.

Thursday, April 12, 2012


The California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. held that an injured party is not entitled to recover the reasonable value of medical services provided as damages in a lawsuit when the injured party was responsible enough to maintain private health insurance coverage. The Court opined that such an injured party’s medical damages are limited to the significantly lower sum paid by the healthcare insurer pursuant to its contract with the medical providers. The Court explained that the reduction in compensation for medical services based on a negotiated rate differential is not a benefit provided to the plaintiff in compensation for his or her injuries.

The decision skewed the civil justice system in favor of liability insurers and defendants by leaving prevailing plaintiffs with a smaller recovery and insurance companies with lower liability damages. Defendants are no longer liable for the total cost of a plaintiff’s medical bill, but rather the substantially discounted negotiated rates that are paid for by medical insurance companies.
The Court’s decision penalizes the injured plaintiff whose foresight and prudence resulted in maintaining private health insurance by creating disparate values of medical treatment for plaintiffs with health insurance and those without health insurance.

Plaintiffs with medical insurance are entitled to only what is paid by their medical insurance carrier; however, plaintiffs with no insurance are entitled to recover the entire reasonable value for identical medical treatment. The uninsured plaintiff is entitled to such a recovery even when the hospital reduces the costs of non-insured plaintiffs’ bills. In Sanchez v. Strickland, the California Court of Appeals held that when a hospital willingly reduces the bill without the insurance carrier being involved it is a benefit that may be recovered by the plaintiff under the collateral source rule. As a result, Howell puts insured plaintiffs in a worse position than those plaintiffs who do not carry medical insurance.

Bob Tyson, who argued for the defendants before the California Supreme Court, argues that letting plaintiff’s recover the full bill is a “super windfall.” Generally a windfall is defined as receipt of financial gain that was not expected and not the result of something the recipient did. Finding a $100 bill on the street is a windfall. In contrast, a marketplace gain by freely negotiating parties is not a windfall. It’s anticipated, planned, and paid for with plaintiffs’ medical insurance premiums. This “windfall” rhetoric, which has a negative connotation, has been used effectively by defense attorneys throughout the nation to limit the scope of the collateral source rule.

On February 24, 2012, California Senate President Pro Tem Darrel Steinberg brought a glimpse of hope when he introduced Senate Bill 1528 (“SB 1528”). The Bill seeks to add Section 3284 to the California Civil Code, which would effectively overturn last year’s California Supreme Court decision in Howell. The Bill would eliminate the cap set by the Court in Howell and instead allow plaintiffs with medical insurance to recover the reasonable cost of the medical services provided to the plaintiff without regard to the amount that was actually paid for the services.

Look out for a major battle this year over SB 1528!

Monday, March 26, 2012

One Woman's Struggle for Reimbursement

One of the principal cornerstones of the workers’ compensation system, both in California and abroad, is the right to medical care. California Labor Code Section 4600 states that a broad range of medical care “that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer.”

When someone is gravely injured, the level of this necessary care reaches quite far: extensive surgery, hospitalization, and sometimes even constant bed-side care. In a real sense, this is the system working at its best: the level of care matches the workers’ need, not some arbitrary external standard. However, this also means that the costs to defendants reach high levels, and defense attorneys seek creatively destructive arguments to weasel out of providing necessary care.

Recently California has seen a particularly nasty illustration of this sort of defense tactic, which, despite decisive rebukes from the Workers’ Comp Judge and the Workers’ Compensation Appeals Board, is now pending in the California Third Circuit Court of Appeals.

Felix Nino Mota was working as a lawn care worker for Allgreen Landscaping in Orange County when he suffered a brutally debilitating injury in 2001. Virtually his whole body was impacted: his head, neck, jaw, low back, right leg, right shoulder, left wrist, chest, liver, nose, eyes, gums, urinary tract and gastrointestinal system. He wound up settling his claim at 89% permanent disability with the right to ongoing and future medical care.

Mr. Mota required nearly constant care to get through daily life, and according to the uncontested language of Labor Code Section 4600, the defendant had to pay. Faced with this horrible incident, Mr. Mota’s wife Teodora left her home in Mexico to come to California and do what she could to help. She obtained legal permission to enter the country, though she did not maintain proper documentation through the long time in which she was caring for her severely disabled husband.

Defendant did not object to the care Ms. Mota was providing—at least not until she filed a lien to receive reimbursement for her work. As noted, this is nothing more or less than routine when medical providers give care without being paid. When Ms. Mota went forward and requested what was owed to her, Allgreen’s lawyers brain-stormed a series of spurious reasons in an attempt to keep their client’s wallet shut.

They claimed that Ms. Mota had not filed her lien in a timely manner. While the WCJ agreed at first, the Appeals Board shot this argument down, highlighting the continuous nature of the caregiving services. This was not one-time care that was then abandoned; it was (and remains) a process of care. Even the defendant’s lawyers conceded that this area of law is hardly clear.

Second, they claimed that because Mota is not a licensed vocational nurse they didn’t have to pay for the care she provided. (In fact, while not licensed, Ms. Mota had obtained significant training for the more complex tasks she performed.)

Here, again, though, they had to concede that in numerous instances courts have authorized non-experts, including close family members to provide such care. The defense acknowledged such cases, and even cited some of them, albeit to claim that they all involved exceptional circumstances not present in Mota’s case.

Third, and most off-track, they sought to avoid paying Mota because she is an undocumented immigrant.

One might be inclined to ask, what do her immigration papers have to do with her right to reimbursement for medical benefits in a workers’ compensation matter? A fair question, and one for which Allgreen has a rather implausible answer: according to Allgreen, Ms. Mota, by providing nursing care, became an employee of Allgreen’s, and according to the federal Immigration Reform and Control Act of 1986, it is illegal to hire undocumented immigrants. Hence, the argument goes, they do not have to pay medical benefits.

But of course reimbursement for medical benefits does not constitute employment by any stretch of the imagination. By Allgreen’s logic, every doctor that gives care in a workers’ comp case would become an employee of every injured worker’s employer. Doctors’ offices would be overrun with W-2 forms.

The truth is that this argument is just the latest in a series of attempts by the workers’ comp defense bar to drag immigration laws into the domain of workers’ compensation. Unfortunately, they have had some success in denying benefits such as temporary disability and vocational rehabilitation. Now emboldened, they are now trying to expand this campaign beyond employment to medical expenses.

The effort has no justification. Immigration and Customs Enforcement is a mammoth federal agency, which in 2011 commanded well over $5,000,000,000 of our tax dollars. Its operating mission does not in any way require the conscription of workers’ comp judges in California. And there is no reason for the rest of us to respect the repeated perverse attempts by the defense bar to exploit irrelevant areas of law in order to avoid paying their bills.

Monday, March 12, 2012

Anti-SLAPP: New California Appellate Decision Reinforces the Need to Exhaust Administrative Remedies

In Nesson v. Northern Inyo County Local Hospital District, (4th Dist., Div 2, March 6, 2012) Case No. SICVCV1049815, the California Court of Appeal affirmed the trial court’s grant of the hospital’s anti-SLAPP motion and held that (1) the trial court properly found that all causes of action arose from alleged actions and conduct by the hospital during medical peer review that qualify as official proceedings under the anti-SLAPP statute; (2) all causes of action were barred due to the plaintiff's failure to exhaust his administrative and judicial remedies before filing suit; and (3) even if the plaintiff had exhausted his remedies, he failed to meet his burden to establish a probability he would prevail on any of his claims.

Plaintiff John Nesson, a radiologist, sued defendant Northern Inyo County Local Hospital District (hospital) after the medical executive committee (MEC) summarily suspended his medical staff privileges and the Hospital terminated his contract to provide radiology services because the hospital deemed that it would be impossible for Nesson to comply with the requirements of his contract with the hospital without the medical staff privileges. Nesson filed a complaint against the hospital for breach of contract, breach of the covenant of good faith and fair dealing, violation of Health and Safety Code section 1278.5, violation of the Unruh Civil Rights Act, and violation of the Fair Employment and Housing Act. In response, the hospital filed a special motion to strike pursuant to the Code of Civil Procedure section 425.16 (hereinafter, “the anti-SLAPP statute”). The Legislature enacted the anti-SLAPP statute to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.

The anti-SLAPP statute establishes a two-step procedure. First, the defendant is required to show that the cause of action arises from protected activity, i.e., activity by the defendant in furtherance of his constitutional right of petition or free speech. Statements and activity made in connection with an “official proceeding authorized by law” fall within the scope of the first prong of anti-SLAPP. In this case, the court held that the adverse employment actions were protected because the termination of employment and privileges arose from the hospital’s peer review process, which is an official proceeding required by a comprehensive statutory scheme and subject to review by the courts in administrative mandamus proceedings.

Second, if the defendant meets the initial burden, then the burden shifts to plaintiff to demonstrate a reasonable probability of prevailing on the merits of his cause of action. The court emphasized that a plaintiff, who has failed to exhaust his administrative and judicial remedies, cannot prove a probability of prevailing on any claim, irrespective of how it is labeled. More specifically the court outlined specific steps that a physician, who is a victim of faulty medical peer review, must take to rectify the situation prior to filing a lawsuit. First, the physician must fully exhaust his internal hospital administrative remedies. Second, if the physician has fully exhausted his administrative remedies at the hospital but has failed to overturn the hospital’s peer review negative disciplinary action against him, the physician is required to petition for issuance of a writ of mandamus under Code of Civil Procedure section 1094.5. Only after the physician has obtained a writ of mandamus setting aside the hospital’s discipline of him, may the aggrieved physician file a civil lawsuit asserting state law claims against the hospital and its associated defendants. Here, the court held Nesson’s claims are barred because he failed to exhaust his administrative and judicial remedies. He did not request a timely hearing as required by the hospital bylaws; refused to cooperate with the evaluations requested by the peer review committee; refused to cooperate with the investigation undertaken by the medical staff; and did not file a petition for writ of mandamus to set aside the hospital’s adverse actions.

Accommodation and Termination

One of the first questions confronted by every worker who suffers an injury on the job is What can my employer do to me now?  In addition to the pains of the injury itself, there is the deep wound of dampened financial prospects from possible job loss.

The basic answer is as simple as it is slippery:  On the one hand, your employer cannot punish you because you have filed a claim for a work-related injury. And this applies not just to firing you, but to any discriminatory action.

To discriminate against a work comp claimant is not only prohibited; it is a criminal offense under Labor Code Section 132A.

This sounds pretty good for workers, but the second point cuts in the exact opposite direction: by law employers do not have to accommodate any work restrictions. That is, while punitive termination is strictly forbidden and harshly penalized, “letting go” of a worker who “can no longer perform her job duties” is quite alright. Indeed, it’s done all the time. As long as the treatment is not worse simply because the employee suffered a work-related injury.

Discrimination against an injured worker means more than just some detriment. The legal problem comes when the employee is targeted because the injury occurred at work.

A few moments’ reflection should reveal the depth of this problem.

Recently, the Workers’ Compensation Appeals Board has had to confront this issue in the context of a police officer who suffered a work injury to his psyche. Charles Kesecker, a police sergeant at Marin Community College, had an unfortunate series of work troubles in the form of gastroesophageal reflux disease, a wounded elbow, hypertension, and psychological trauma. His experiences in the line of duty caused his problems.

The workers’ comp system worked as it should, and gave Kesecker medical treatment and permanent disability awards for his injuries. Kesecker took a psychological test, passed, and returned to work.

Things went well for two years, until Kesecker’s supervisors forced him to take another psychological exam. There was no standard practice to give such exams along these lines; they selected Kesecker in particular for this exam. This time around, the examiner deemed him unable to continue employment and his employer terminated him on these grounds.

Kesecker took legal action, with initial success. The workers’ comp judge deemed the employer’s act to be punitive—a good deal beyond standard failure to accommodate, a way of singling out Kesecker because he had a permanent disability award.

Strangely enough, the Workers’ Compensation Appeals Board did not agree and reversed the comp judge. They stated that even though Kesecker was deliberately given a psychological exam, the old distinction holds:  that is, he was not targeted because his psychological trauma arose in the line of duty, but because he suffered psychological trauma. A worker who suffered from non-work causes might be treated the same way, or at least Kesecker had not adequately shown otherwise.

Kesecker was undoubtedly targeted because of his work-related psychological injury.  His employer just maintains that he was targeted because of the injury itself, rather than the fact that Kesecker suffered it in the line of duty.

If that disturbs you, you are not alone. Employers seem to have an easy job of getting rid of their injured employees, and if the Workers' Compensation Appeals Board’s reasoning triumphs bosses will be able to act with impunity—assuming they aren’t caught on record stating, “Hey, let’s fire this guy for filing a work comp claim!”

However, the matter may not be done yet—Kesecker’s attorney has petitioned the California Court of Appeals to hear the case, and is expected to find out on March 6th whether or not they will grant review. Whatever they decide, the question of punitive termination versus supposedly innocuous “layoffs” due to “inability to accommodate”—the end of that question is not yet.

Thursday, March 1, 2012

Lactation Accommodations for Nursing Mothers in the Workplace

Child-bearing is essential to our society. While there have been significant advances towards gender equality, unfortunately, discrimination against women because of pregnancy continues to be a common practice in society, particularly in the workplace. One common form of discrimination is failure to accommodate nursing mothers’ right to break time to express milk for their infant child.

Health professionals and public health officials promote breastfeeding to improve infant health. Both the state and federal legislatures have recognized this and enacted laws in response to promote lactation accommodations. On March 23, 2010, Patient Protection and Affordable Care Act (“PPACA”) was signed into law and amended Section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth…” and “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public…” The accommodation rights under FLSA were modeled after California Labor Code sections 1030 and 1031 which were adopted in 2001.

However, one major difference exists between the two legislations. Under the California Labor Codes, employers can opt out of lactation accommodations by establishing undue hardship, such as inability to continue functioning as a business. Under FSLA, only employers with fewer than 50 employees are not subject to the accommodation requirements if compliance with the provision would impose an undue hardship.  Additionally, FLSA’s accommodation rights are limited to 1 year after the child’s birth whereas accommodation rights under the California Labor Codes are not restricted to the 1 year period.  This is a significant distinction for a mother seeking accommodation more than 1 year after the birth of her child.  

Both section 7 of the FLSA, and California Labor Code sections 1030 and 1031 have reporting mechanisms that allow employees to report on employers who are violating their lactation accommodations.  The Wage and Hour Division (WHD) of the Department of Labor administers and enforces FLSA. If you would like to file a complaint with the WHD because you believe your employer has violated the break time for nursing mothers requirement under the FLSA, you should call the toll-free WHD number 1-866-487-9243.  The Bureau of Field Enforcement (BOFE) of the Division of Labor Standard Enforcement administers and enforces Labor Code sections 1030 and 1031. To file a claim visit

It is important to note that lactation accommodation violations by employers are often coupled with other employee rights violations that are protected by laws such as the Pregnancy Discrimination Act, Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the California Family Rights Act, and the Fair Employment and Housing Act. Contact our experienced employment law team to discuss your options.

Tuesday, February 14, 2012

Diminished Earning Power and its Social-Scientific Expressions

A worker who suffers a work-related injury faces numerous burdens—medical bills, lost time from work, lasting bodily impairment—and the workers’ compensation system has its methods (fair or otherwise) for addressing these various issues. One area, however, on which the law provides less clarity is how a worker’s weakened job prospects impact his or her right to workers’ compensation permanent disability payments. This is a dynamic and live question, fraught with ambiguity.

Everyone involved agrees that the loss in employment opportunities can give a right to increased permanent disability money. And all parties also agree that the California state legislature, in enacting SB899, the 2004 workers’ comp system overhaul, intended to change the system used to calculate that increase. But the nature of that change is a point of much ongoing and confusing debate, facilitated (as ever) by cryptic statutory language and pseudo-elucidating appellate holdings.

While it is surely too soon to tell, the Oakland Workers’ Comp Appeals Board recently issued a ruling in the case of Gonzalez v. McCullock that indicates one possible new way that applicants, attorneys, and courts may bring evidence to bear on this important question.

By way of background, SB899, the 2004 change in law, reformed the system with the ostensive aim of turning to scientific methods—a court must use “a numeric formula based on empirical data and findings that aggregate the average percentage of long-term loss of income resulting from each type of injury for similarly situated employees.” No more speculative dueling experts; no more wild-eyed armchair conjecture—workers’ compensation for the twenty-first century requires a scientific, socially-informed perspective.

The Court of Appeals gave its various thoughts on a couple of occasions. The one that matters now, Ogilvie-2011 (not to be confused with any earlier Ogilvie) clarified the proper approach. First, apply the default ratings on earnings losses (based on an approved social study by the RAND Institute for Social Justice). Second, rebut those ratings, in the few situations where you can—if the ratings reflect a faulty assumption for the case at hand; if the injury not only impairs the worker but also actively interferes with the worker’s rehabilitation; or if the relevant study sample does not include cases similar to the case you’re dealing with.

But once you show that a case is the sort that falls outside the default rules for future earnings loss—what then must you do? It is here that Ogilvie-2011 becomes less clear. (This is hardly an attack on the judges; it is not easy business prescribing sound methods in social science to anyone, let alone the most interested parties imaginable.) We have clear guidelines about what we must not do: do not consider the impact of factors other than the work injury; do not look at the final calculation and attack it without explaining what went wrong in its genesis. But granting all that, still—what is to be done?

This is where the new Gonzalez decision offers its suggestion.

To sum it up: dueling experts stood before the court, one Stauber for the defense, and one Malmuth for the applicant. The former appears not to have impressed the court much, and the opinion says little of him. But the board was quite smitten with Malmuth’s method, and subjects it to the dual tributes of exposition and endorsement.

First, Dr. Malmuth suggests looking at two populations: one the one hand, the population of workers who are generally similar to the particular worker (in skills, position, &c.) but who are not injured; and on the other, a population of workers who are similar to the worker and who also share the same kind of injury. EDD and the Federal Government have relevant data for the attainment of these data. Second, compare the earnings between the two groups to find out how much this sort of impairment impacts earning capacity.

It is simple and elegant. It is perhaps as close as a workers’ comp calculation can get to a controlled experiment, as it is designed to weed out all distinctions between the two groups of workers apart from the a particular type of work-related injury. It thus delivers good evidence about the impact of the work injury, while ignoring extraneous factors that might give one worker an unduly high or low estimate of lost future earnings. The Ogilvie-2011 court was quite concerned about this.

There are other virtues, as well. The legislature and the Ogilvie-2011 court sought to filter out the particulars of one worker’s situation and look at the sort of injury at hand, rather than this particular injury. (The quixotic task—as old as mankind itself—of converting suffering into an abstraction.) Malmuth shows a path forward on this front.

Finally, this new take on Malmuth’s method helps clarify how future earnings capacity interacts with other permanent disability adjustment factors—like age and occupation. Does the future earnings adjustment replace the other adjustments? Since Malmuth controls for factors like age and profession, there is no replacement.

It certainly remains to be seen whether this method is a blueprint for social-scientific diminished earnings’ capacity calculations for years to come, or a mere flash in the pan. Quite possibly it will only be one of several formulae that fall within Ogilvie’s constraints. There is also a real chance that higher courts will not treat it kindly. Nevertheless, this noble attempt to resolve the conundrum has hit most of the marks that were set for it by the legislature and by the Court of Appeals. We do not know for now whether Dr. Malmuth and the WCAB have shown us what lies at the end of this tortuous path. But at the very least, they have given us a helpful lesson on constructing the sort of lamp we will need to tread boldly forward.

Friday, January 20, 2012

Ninth Circuit Revives the Employee Friendly, Burden Shifting Standard Known as the McDonnell Douglas Test to Age Discrimination in Employment Act (ADEA) Summary Judgment Motions

With 11 percent-high unemployment rate in California an increasing number of older workers are being laid off and are competing for jobs with younger applicants.  In this economic climate, with the age-bias stereotypes that some older workers already confront, it is not surprising that the number of age discrimination complaints being filed is at a record high. However, the road from filing a complaint with the Equal Employment Opportunity Commission (EEOC) to winning a case is not easy under the Age Discrimination in Employment Act (ADEA).

The Age Discrimination in Employment Act protects individuals who are 40 years of age or older from employment discrimination based on age. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.  It has always been the plaintiff’s burden to prove discriminatory treatment in an ADEA claim.  Numerous frameworks have been established by the U.S. Supreme Court for proving discriminatory treatment.

Some of these frameworks are employee friendly, such as the McDonnell Douglas burden shifting framework. Under the McDonnell Douglas burden shifting framework, a plaintiff would first have to establish a prima facie case of discrimination. If successful, the burden of production shifts to the employer to articulate a legitimate non-discriminatory reason for its action. It is then the plaintiff’s task to demonstrate that the employer’s justification is merely a pretext for behavior actually motivated by discrimination. The McDonnell Douglas framework was initially applied to a Title VII mixed motive employment discrimination case. Since its inception in 1973, many federal courts adopted the framework to employment discrimination claims brought under other federal laws, including the ADEA.

Other frameworks make it tougher for plaintiffs to prevail, such as the “but for” test.  Under the “but for” test, a plaintiff must show by a preponderance of the evidence that the employer would not have acted that way it did but for the employee’s age. Under this test, the employer does not need to show that it would have made the same decision regardless of age.

In 2009, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), rejected the application of the employee friendly McDonnell Douglas framework to the ADEA and instead applied the “but-for” test. This decision was a victory for employers because the “but for” standard of causation is a far more stringent requirement than the mixed motive standard used in most discrimination cases.

Last week, with the Ninth Circuit’s decision in Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012), the pendulum began to slowly swing back to the employees’ side. The Ninth Circuit read Gross narrowly to apply only to cases that had already progressed to trial. The Court overturned the District Court’s decision to apply the employer friendly, strict “but-for” test to a motion for summary judgment in an ADEA claim. Instead, the Ninth Circuit held that in a mixed motive case, an employee friendly, burden-shifting test applies to a motion for summary judgment in an ADEA claim.

As a result, the McDonnell Douglas test, an employee friendly burden shifting standard, applies in the summary judgment phase and the Gross test, a strict “but for” standard, is left for the trial phase. Even though a small victory, this legal proof structure is a tool that will assist plaintiffs at the summary judgment stage so that they can have their day in court. 

Represented Resistance: Unmasking the Brutality of the New Regime of Workers’ Compensation, and How Hiring a Lawyer Can Help Workers Fight Back

Every workers’ compensation applicant faces a choice of finding an attorney to assist them in their struggle, or attempting to take on the system alone. Many ask themselves, Does it really matter? Will it help my case in any significant degree to have a lawyer on my side? Often, injured workers wind up deciding based on anecdotes and conjectures. 

New evidence compiled by UC Berkeley researcher Frank Neuhauser demonstrates that on the whole, represented workers recover at substantially higher levels than those without attorneys. Moreover, under the reworking of the system undertaken in 2005, the gulf between those with lawyers and those without has increased. Attorneys provide returns in workers’ comp, and this is truer now than before.

Work Comp Central reports on this breathtaking new study, which was presented to California’s employer-labor workers’ compensation advisory and research panel. (The story can be found here—though access to the website is for subscribers only.)

Neuhauser’s statistics are striking: unrepresented workers’ average impairment ratings stood at 22.2% before the 2005 schedule and 13.3% afterward. Workers with attorneys, however, received much higher ratings:  37% before 2005, and 26.5% under the current schedule. At present the gulf in permanent disability money is over $5,000—and that is only an average. 

Moreover, the compensation difference between those with lawyers and those without has grown under the new regime. While on the whole represented workers recover less than they did before (~37.2%), the unrepresented overall recover less than half what they did before (a 51.7% decrease). Neuhauser hypothesizes that part of this is attributable to the Almaraz-Guzman and Ogilvie cases. To simplify these complex matters greatly—the former can allow a more holistic disability rating than the rating found under the strict application American Medical Association guidelines, while the latter case can enable a higher rating when an existing assessment does not fully account for a worker’s diminished future earning capacity. Good attorneys can help highlight these special legal concerns to medical evaluators when necessary, while most injured workers are unfamiliar with these rules.

It is worth noting that the above data, while astounding, does not even address the many other ways in which representation may prove beneficial in workers’ comp—for instance, in ensuring that adjusters authorize requested medical treatment in a timely and effective manner.

While securing representation is more important than ever for individual applicants, Neuhauser’s data still shows that the post-2005 workers’ comp system is stingier and more ruthless than its predecessor. Navigating the present system is worse—substantially worse—for the unrepresented, but under the new regime, the workers’ comp system as a whole has lowered permanent disability payments by 58%—an incredible amount, estimated at $2,640,000,000.

For that, there is no immediate remedy. Labor unions, applicants’ attorneys, and the working and injured people of the state of California must join together and make our message clear. We must let the legislature and Governor Brown know that the child of just pay for injured workers can no longer be surrendered to the talons of profiteers and anti-social special interests.

That greater struggle will continue. For the time being, injured workers must fight their smaller skirmishes to secure their rightful benefits, marching into battle in the shackles of the present regime, whether alone or armed with the power of a Counselor at Law.

Wednesday, January 11, 2012

Accountability and Wisteria

Where does the personal end and the legally compensable begin? California’s Second Appellate District recently had a chance to weigh in on this crucial workers’ compensation question as it relates to a work-from-home firefighter.

Richard Warner is a Los Angeles County firefighter who works and lives on tiny, picturesque Santa Catalina Island. To ensure that the approximately 4,000 residents of the island have fire protection, LA County required Warner, along with one other firefighter, to live on the island. Warner’s house is both residence and partial workplace. Island denizens visit him there when they need his services, and he often responds to incident calls directly from home, without traveling to the island’s modest fire station.

In February of 2010, Warner’s wife asked him to help her trim the wisteria that grows wildly around their house. Warner climbed a ladder to perform the task. Unfortunately, while cutting back the burgeoning blossoms, he fell off the ladder and injured his neck and his back, as well as his wrist, elbow, and shoulder on his left side.

The County tried, with initial success, to avoid paying disability or medical costs to Warner, under the claim that this injury was due to a personal act—a favor Mr. Warner did for his wife—rather than part of his employment obligations. The Workers’ Comp Appeals Board sided with the County, concluding that although Warner suffered his injury in the course of employment, it did not arise out of employment, because trimming the wisteria was something he did for private purposes.

The Second Appellate District struck down the Board and upheld Warner’s rights. The Appellate Court invoked the time-honored Dual Purpose Doctrine:  if an action serves both personal and employment-related ends, it is an act which “arises out of work” for compensation purposes. There was no question that Warner worked from his home. It was equally incontestable that the County benefited from having this fire station-cum-residence be both easily accessible and aesthetically pleasing.

In other words, trimming the wisteria served both Warner’s ends and those of his boss—the fact that Warner acted at his wife’s request did not negate this fact. His employer must pay him workers’ comp.

The court’s decision is unpublished, but it nevertheless represents a significant vindication of the rights of workers in a time when they are under increasing attack. Workers’ comp exists to help those who are hurt serving their bosses’ interests. Employers who compel their subordinates to mingle duty and leisure should not be able to cry “Personal purposes!” when the same mingled deeds lead to mangled results.

It is reassuring that the Court of Appeals recognizes this.