Before the bursting of the internet bubble and the Bear Stearns/Lehman/housing bubble, I knew lots of baby boomers who were ready to "retire".

Fast forward to the present. Many of those folks have decided to keep working. As 401ks shrunk, the housing equity piggybank broke, and large federal deficits and an unstable dollar loomed, people feel less secure.

Those Golden Years may not be so golden for many people.

So many of us will be working longer. Grandma may be waiting tables into her 70s.

It's a graying population and a graying workforce.

What are the implications for workers' comp? Will we see older workers sustain injuries that have more complications, as confounding factors make injuries more problematic? In my practice I've recently seen several older workers whose relatively trivial injuries resulted in catastrophic complications, overlaid on underlying health problems.

Will this be counterbalanced by the SB 899 apportionment reforms which mandate apportionment to cause?

Do older workers work "smarter", with less significant injuries?

If the answers are out there, I'm unaware. It's a good topic for epidemiologists, actuaries and think tank researchers.

Meanwhile, here's a link to the New York Times piece by John Leland, "A Graying Population, A Graying Workforce":
http://www.nytimes.com/2010/04/25/us/25care.html?hpw

Stay tuned.

Julius Young
www.boxerlaw.com

It's been a slow period in California workers' comp.

The State Fund attorneys may be unhappy because they are losing their cars.

Greg Aghazarian has found a home at the Department of Food and Agriculture after failing to be confirmed by the legislature.

But its a slow time. No one expects much to happen this year in Sacramento. That's why all eyes are on the emerging gubernatorial clash.

We may not be getting much ash from Iceland, but fire and brimstone are raging in the Governor's race.

Meg Whitman has been called the dreaded RINO by California Republican stalwart Tom McClintock. That's "Republican In Name Only". But having Jeb Bush, Mitt Romney and John McCain show up for you tonight in Redwood City gives her pretty good cover as a GOP soldier.

Meanwhile, Whitman has dodged releasing her tax returns. In contrast, Jerry Brown has offered to release the past 10 years of returns.

There's been a lot of speculation about what Whitman's returns will reveal, particularly given her close association with Goldman Sachs.

But for those of you who are more wonkish, let's turn back to the healthcare reform. Remember that?

Here's a link to yet another study about the bill that did pass, a memo by Richard S. Foster, Chief Actuary of the Centers for Medicare and Medicaid Services:
http://thehill.com/images/stories/white ... nacted.pdf

This report may have sent some chilly wind on celebrants of the healthcare reform. Among the problems identified are the following:

-additional demand for services could create healthcare shortages, leading to some pricing pressures or cost shifting
-some employers may drop coverage as lower paid workers become eligible for Medicaid subsidies
-some projected savings may not materialize, particularly those based on hard political choices

But there are bright spots. Millions more will have access to coverage. The Medicare Hospital Insurance trust fund will last much longer than previously anticipated.

Here's Ezra Klein of the Washington Post on the math of the reform:
"Third Way, the centrist policy outfit, sent over its own analysis of the data. "The fact is that by 2019, national health spending per insured person will be $15,132 compared to $16,812 without the new law," they write. "That’s 10 percent less spending per insured person than it would have been, according to the actuary’s report."

"So though total spending nudges up (though by the end of the first 10 years, it's coming back down), spending per insured person actually comes down. As Third Way says: "The actuary’s report shows that the nation will be getting a bigger bang for its health care buck. For a mere two-tenths of one percent more in health care spending, the new health care law will cover most of the uninsured and more Americans will be healthier and living longer because they will be getting treatments like cancer care and heart surgery that had previously been denied them."

The basic question here is whether covering 34 million Americans is worth adding a percentage point or two more to our health-care spending for a couple of years, at which point total spending should actually fall below what it would've been if this bill had never passed. There's a different question of whether we can stick to the cost controls in the bill. I think we can, and that if we can't, we're doomed one way or the other. But so far as the report's estimation of the bill's projected costs go, we're getting a much more decent society for a very low price."

Meanwhile, here's Third Way's list of "What's In It For Me?":
http://www.thirdway.org/subjects/4/publications/200

Stay tuned.

Julius Young
www.boxerlaw,com

Opportunities have been in short supply for many young high school and college graduates, as companies freeze hiring.

That's led to an uptick in grads seeking internships, even unpaid internships, as a bridge toward a career or graduate school.

How does California law deal with unpaid internships? What labor laws apply?

California's Division of Labor Standards Enforcement has now outlined its position. The DLSE policy is set forth in an opinion letter dated April 7, 2010 addressed to Joseph. V. Ambash of the Greenberg Traurig law firm.

The program in question was designed for 18 to 24 year olds who have not finished high school or a G.E.D. and had a training component similar to what would be offered in a vocational school. The program's goal was to empower young urban adults with IT and career skills. The program had a community college segment as part of the internship as well as a placement segment where participants would be placed at businesses or non-profits.

The DLSE concluded that these interns were not employees for purposes of coverage under California's minimum wage laws. Citing the U.S. Supreme Court's 1947 decision in Walling Vs. Portland Terminal Co,, 330 U.S. 148, the DLSE looked at six criteria:
(1) The training, even though it includes actual operation of the employer's facilities, is similar to that which would be given in a vocational school;
(2) The training is for the benefit of the trainees or students;
(3) The trainees or students do not displace regular employees, but work under their close observation;
(4) The employer derives no immediate advantage from the activities of trainees or students, and on occasion the employer's operations may be actually impeded;
(5) The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
(6) The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training

The memo notes that the above criteria must be applied in view of "all the circumstances" of the intern's activities. Apparently the DLSE has in the past (now discontinued) used an 11-factor test which included these factors:
(7) Whether any clinical training was part of an educational curriculum
(8) Whether the trainees or students received some employee benefits
(9) Whether the training was designed to benefit the particular employer or rather to qualify the trainee to work in similar businesses
(10) Whether the screening process was different than would be used for employment
(11) Whether advertisements for the program were couched in terms of education and training

According to the DLSE, the internship program would not be exempt "where the intern's activities become an integral part of the business' activities and the business derives any consequential economic benefit from the intern's activities".

The memo notes that "Agreements or other statements by trainees that they will not be paid for their activities do not constitute a waiver of protections under the FLSA but are relevant only insofar as it shows the expectations of trainees for purposes of this factor".

Writing a 17 page analysis, DLSE Acting Chief Counsel David Balter concluded that this particular internship program (for Year Up Inc.) satisfied the 6 criteria and that the interns would be exempt from California's minimum wage law.

Balter notes, however, that "the facts of any new intern placement which vary from your letter must continue to be reviewed on a case by case basis".

Clearly, since this internship program was exempt from California wage and hour labor laws, there would be no "employment" for California workers' comp purposes.

But the memo (which has not been tested in court) leaves open the possibility that internship programs which meet some but not all of the six criteria would fall afoul of California labor laws. At what point would such interns be deemed employees for wage and hour law purposes?

And if the intern is not exempt for wage and hour purposes, will the intern be an employee for workers' comp purposes? Would it make a difference if the intern is given some perks...a small scholarship, parking and meal allowance, expenses reimbursement, personal gifts, or something else of value? When does the line get crossed to where the intern is an employee?

These are interesting questions. If such situations have arisen in California workers' comp law, I'm not aware of them.

But in a weak economy we're likely to see more issues of this type arising in the comp world.

Here is the link to the DLSE memo:
http://www.dir.ca.gov/dlse/opinions/2010-04-07.pdf

Stay tuned.

Next time you hear some company threaten to move overseas because of high labor costs, just remember this.....

Capitulate.

We shouldn't, can't and won't compete against this....:
http://www.dailymail.co.uk/news/article ... awake.html

It's an amazing picture of a Microsoft workforce working under pathetic working conditions.

Stay tuned.

Julius Young
www.boxerlaw.com

Those of you from other parts of the state have likely never had the pleasure of driving from Oakland to San Jose at rush hour.

That's where I found myself this morning, headed to an appearance at the San Jose WCAB.

It always amazes me that traffic can be so clogged in one of the nation's most important incubators of technology and innovation. Many of the world's most visionary companies are located in the area, but commuter traffic is often a crawl.

But there's more time to gaze at overpasses. There today were a gaggle of tea-partiers, holding signs decrying too much government. But what would they cut? Medicare? Social Security? Mine safety? Wage and hour enforcement? Wish someone would survey them to get some concrete answers.

And there's more time to read billboards.

And lo and behold, there was a huge billboard, emblazoned with "No workers' comp? That's criminal".

Sponsored by the Santa Clara County District Attorney Dolores Carr, these ads are designed to educate that not carrying workers' comp is a crime. There are 21 of these billboards.

Good ad campaign.

In case you missed it, here is a reprise of my post, "It's the Employer Fraud, Stupid-Part 1"
http://www.workerscompzone.com/index.ph ... 670342ae49

And, "It's the Employer Fraud, Stupid, Part 2":
http://www.workerscompzone.com/index.ph ... 818-110358


Julius Young
www.boxerlaw.com