Thursday, November 12, 2009, 09:47 PM - Political developmentsWorkers' comp and employment law sometimes intersect in fascinating ways. Those of us representing workers need to keep in mind the panoply of remedies available to workers.
A good example is the recent case of A.M. v. Albertsons, a case that arose out of a sad incident at the Albertsons grocery store in the small Marin County town of Fairfax.
Boxer and Gerson employment lawyers Jean Hyams and Leslie Levy won a six figure jury verdict in Marin County Superior Court on behalf of an Albertsons grocery checker, "A.M.". The verdict was recently upheld in a California Court of Appeals decision from the 1st Appellate District, Division Four.
The plaintiff, A.M was a refugee from war torn El Salvador. She had been with Albertsons for over 16 years at the time of the 2005 incident.
In 2003, A.M. was diagnosed with cancer of the tonsils and larynx. After radiation and chemotherapy treatment, her salivary glands were damaged. As a result, she needed to drink copious amounts of water. And that caused her to need to pee frequently.
As a result, she needed to have water with her at all times, and she needed to take frequent bathroom breaks. Albertsons did not normally allow employees to have beverages at the checkstand. But after returning from cancer treatment, A.M. was told that having water was not a problem. And she was told that she was to let the managers know when she needed to go to the bathroom and "they would cover for her".
Although this accommodation was never formally put in writing, it was effectively put into place for over a year.
But things unraveled in February 2005.
On the evening in question, there were only 3 employees on the evening shift. A.M was checking in front, accompanied by a courtesy clerk. Also in the store was "Sampson", a shift supervisor. Sampson was the person is charge of store operations when more senior managers were not present.
Sampson had apparently never been briefed on A.M's disability or that an accommodation had been granted by the store managers.
Here in quotes is the 1st DCA's concise recitation of what transpired that evening:
"About 8 p.m, A.M. saw Sampson and told her that she needed to take a break. She did not mention needing to use the bathroom. A delivery truck was arriving, so Sampson asked A.M if she could wait. A. M. agreed to do so."
"A while later, A.M had a line of customers waiting for her at her checkstand. She called Sampson on the store intercom to say that she needed to go to the bathroom. Sampson, explained that she was unable to relieve her because she was unloading merchandise. She told A.M. that she would have to wait. By this time, A.M. felt that she really needed to go."
"Seven to 10 minutes later, A.M. still had customers waiting for her to check them out. She called Sampson on the intercom again, explaining that she really needed to go. Again, Sampson said that she was busy and unable to come to the front of the store. A.M said that she was going to go. Sampson did not give her permission to leave her checkstand-she just hung up the phone."
"Unable to control herself, A.M urinated while standing at the checkstand. She was having her menstrual cycle, so she was very wet with both urine and blood. She felt shaky and humiliated......A.M told Hollis (the courtesy clerk) what had happened, instructing the courtesy clerk to find Sampson and tell her that A.M. needed her. When Hollis returned, she reported that Sampson said that she was still busy and that A.M had to wait."
"When Sampson finally went to the front of the store, she asked if A.M. was taking her break. A.M told her no, that she was going home...."
Eventually A.M, feeling humiliated, having trouble sleeping, depressed and withdrawn, was committed to a psychiatric hospital and then followup psychiatric care.
Some months later A.M tried to return to work but had trouble getting shifts that would allow her to continue her therapy sessions. The store did not feel it could accommodate her. Later she did return to a different Albertsons location.
Boxer and Gerson filed suit on her behalf, alleging a violation of FEHA, California's fair employment law on the theory that Albertsons failed to provide reasaonable accommodation.
The court noted that the case demonstrates that a single failure to make reasonable accommodation can have tragic consequences for the employee who is not accommodated.
In sum, the court noted that by its award to A.M of $200,000 (with attorney fees in addition), the jury found the failure to accommodate to be substantial, not trivial.
According to the court:
"when she arranged her accommodation with her store managers, she was not told to talk with company human resources officials about it, nor was she asked for any medical documentation of her need. On the night of the incident, A.M. did not explain to Sampson that she had a disability, or that Albertsons had always accommodated her disability by allowing her to go to the bathroom. She did not think that it was necessary to do so, assuming that management had told Sampson already."
Albertsons attempted to win dismissal of the case on the theory that a single incident could not constitute a failure to accommodate. Albertsons argued that its February 2005 failure to accommodate was trivial, and that it was but a single incident in context of a much longer period of successful accommodation.
Moreover, Albertsons argued that A.M had a continuing duty to communicate and act reasonably with respect to her accommodation.
The 1st DCA noted that the failure to engage in an interactive process and the failure to accommodate are separate, independent claims. The purpose of the interactive process is to determine what accommodation is required.
But the court noted that "Once a reasonable accommodation has been granted, then the employer has a duty to provide that reasonable accommodation".
According to the court:
"To graft an interactive process intended to apply to the determination of a reasonable accommodation onto a situation in which an employer failed to provide a reasonable, agreed-upon accommodation is contrary to the apparent intent of the FEHA and would not support the public policies behind that provision."
In other words, an employee who has been granted accommodations need not engage in bargaining time and again each time they need the accommodation.
The court noted:
"In essence, Albertsons reasons that the FEHA allows for at least one failure to accommodate, if a pattern of successful accommodation also is shown....In our view, to adopt this interpretation of a failure to accommodate would be inconsistent with the FEHA. The statute does not speak of a pattern of failure and Albertsons cites no case authority supporting its interpretation of the FEHA failure to accommodate statute requiring one".
Upholding the jury verdict, the 1st DCA noted that a single failure to make reasonable accommodation can have tragic consequences for the employee who is not accommodated.
My office is very proud to have been able to do this case. Thanks again to Jean Hyams and Leslie Levy, the trial attorneys, supported by Rebecca Kagin and Darci Burrell along help from appellate specialist Ellen Lake of Law Offices of Ellen Lake.
Monday, November 9, 2009, 09:23 PM - Political developmentsI love arcade games.
Show me a skeeball machine and I'm a happy camper. It's worth the drive to the Santa Cruz Boardwalk just for that.
Pac Man? Say no more. A good pinball machine is heaven. Table shuffleboard? Spent many hours playing at a local Oakland watering hole, The Kingfish.
But a good game of wac-a-mole is difficult to beat.
California Insurance Commisioner (and GOP gubernatorial candidate) Steve Poizner continues to play a good game of whac-a-mole.
Today comes his announcement that he is AGAIN denying the WCIRB's request for a hike in comp insurance rates. The WCIRB had recommended a 22.8% rate increase, effective January 2010.
Whether politically tinged or not, it's a stunning rejection of the insurance industry's attempt to justify higher comp rates. Poizner continues to believe that the industry has not made the case for increasing rates.
The industry (and WCIRB) has been pushing for an increase in the recommended "pure premium rate". That rate, set by the Insurance Commissioner, is not binding on carriers but does set a tone for the industry and is watched as a barometer of trends in the industry.
Poizner was not about to be stampeded by unsubstantiated fears that the recent Almaraz/Guzman and Ogilvie WCAB decisions would create major systemic cost increases. He noted that there were differing assessments of the impact of those decisions and lack of actual data to back up the claim that those decisions would have a major impact on comp costs.
Poizner's refusal to endorse an upward adjustment to comp rates due to Almaraz/Guzman/Ogilvie would perhaps appear to take some wind out of the sails of those stakeholders who have recently negotiated behind closed doors to reverse Almaraz/Guzman (by changes to Labor Code 4600 (b)(1)) and Ogilvie (by changes to Labor Code 4600(b)(1)) in exchange for other systemic changes. If the Insurance Commissioner does not believe the case has been made, it may be a hard sell to convince Democratic party politicians to get aboard a train which would shut the door on Almaraz/Guzman/Ogilvie arguments in the fashion envisioned in the draft CHSWC just released.
Assembly and Senate Democrats who are mindful of the interests of injured workers will want to carefully scrutinize the sort of approach that was being brokered with the help of CHSWC staff. More data on the effect of the WCAB decisions will need to be gathered before disabled workers can be asked to endure more take aways.
Poizner believes that the insurance industry is not doing enough to control costs or increase efficiency.
Here's Poizner's statement:
http://www.insurance.ca.gov/0400-news/0 ... 171-09.cfm
Poizner noted that the pure premium cost benchmark is down 63.4% since its high in 2003.
It's worth keeping in mind that payments to or on behalf of injured workers have been less than half of premiums paid since the 04 reforms. That figure was noted by UC Berkeley Professor Frank Neuhauser in a recent presentation to CHSWC. Neuhauser noted that "using detailed data on California workers' compensation insurance we calculate that the administrative overhead accounts for 50-60% of premiums":
http://www.dir.ca.gov/chswc/Reports/200 ... n_2009.pdf
The actual Poizner rate filing decision can be accessed here:
http://www.insurance.ca.gov/0400-news/0 ... 091109.PDF
Saturday, November 7, 2009, 10:24 PM - Political developmentsToday is a historic day. The House of Representatives has voted tonight to move forward with a healthcare reform package.
The bill, which comes in at over 1500 pages, will not be the final version. Indeed, a number of House yes votes were cast specifically to advance the bill in hopes that a better version will emerge in the Senate or in conference.
Still to be explored: the cost of the package, how it will be financed, and whether it will bend the healthcare cost curve. Those issues are critical, of course.
But tonight is a great day for millions of Americans who can't get coverage or who live in fear of losing their coverage. There is a beacon of hope for them.
I can think of a number of friends who can't afford to move or change jobs for fear of losing their health coverage. With pre-existing health conditions, they rightly figure that they would be rejected by cherry picking private health insurers.
Many disabled workers find themselves in this group. No longer covered by their employer, they cannot get coverage (even if they could pay for it under COBRA, which they can't usually afford). They must delay needed treatments. When they find themselves dreadfully ill, the emergency room is the only option.
And I suspect many of us know young adults who need coverage, but can't find healthcare coverage (or a job) in an economy where the combined unemployment and underemployment is over 17%.
So ultimately this is a very personal issue.
To the extent that the tea-party folks wanted to do nothing, that's
So the President ekes out a victory in this vote tonight. As Obama noted in a pitch to House Democrats, delay or failure would simply embolden the tea-partiers.
Clearly, the public is uneasy with the cost of it all and the expansion of entitlement programs. But the public also wants change, and an end to gridlock. So the vote was an act of faith and courage.
It all now moves to the Senate.
Thursday, November 5, 2009, 11:02 AM - Political developmentsCHSWC has now released documents detailing negotiations between certain employers (including Sean McNally of Grimmway Farms, a CHSWC member) and some labor advocates, including Angie Wei of the California Labor Federation, a CHSWC member).
These documents have been promised since a recent CHSWC vote. DIR Director John Duncan requested that they be released.
Stakeholders in California workers' comp will be analyzing these documents carefully in the coming days.
It's not clear yet how close the negotiating parties were to a deal they could live with. And it's not clear yet how many other stakeholders and interested parties (not to mention politicians) the negotiators would have been (or are able to) bring along with them in forming a deal.
It is clear that significant CHSWC staff support was given to these negotiations.
Here are the documents for you to read:
Here's the introductory letter:
http://www.dir.ca.gov/CHSWC/LaborEmploy ... 202009.pdf
Here's a CHSWC staff report:
http://www.dir.ca.gov/CHSWC/LaborEmploy ... ssions.pdf
Here's draft legislative language:
http://www.dir.ca.gov/CHSWC/LaborEmploy ... ussion.pdf
Wednesday, November 4, 2009, 10:20 PM - Political developmentsGovernor Schwarzenegger has now signed SB 313, a bill which increases penalties for failure to provide workers' comp coverage.
Sponsored by State Senator Mark DeSaulnier, SB 313 will allow penalties of double the monies that would have been paid as premiums by the employer.
Here's my recent post on the bill:
http://workerscompzone.com/index.php?en ... 019-225849
Employer fraud is now a major problem in the comp system. Dishonest employers seek to cut corners, particularly in the sort of industries that hire lots of immigrant service workers. These employers often gain an unfair competitive advantage. And poorly informed employees who are injured are forced to seek treatment at the public's expense when they find that the employer had no insurance.
In the past week there was yet another crackdown on scofflaw car washes. 49 car washes were cited for not carrying workers' comp insurance. Many of these car washes were also cited for other labor law violations.
John Duncan, Director of the Department of Industrial Relations, is quoted (in an article by Greg Griggs on workcompcentral.com) as noting that ...."we found that 12% of California employers are uninsured. This is really frightening and contributes to an increase in workers' comp costs for everyone."
I've been noting this for several years now. Here's my post, "It's the Employer Fraud, Stupid":
http://workerscompzone.com/index.php?en ... 818-110358
Supporters of SB 313 run the gamut from big labor unions to small business advocates.
If anything, one has to wonder whether the penalties are still too small.
The new penalties will probably help deter large employers from skipping comp coverage. But smaller employers may still be willing to run the risk. SB 313 is a great bill. Time will tell whether the penalties need to be hiked much higher, though.
In the meanwhile, it's good to see system stakeholders come together to address a major systemic problem.
Thanks and congratulations are due to all those who helped clear the path for passage of SB 313.
The text of the bill can be found here:
http://www.leginfo.ca.gov/pub/09-10/bil ... rolled.pdf