Court of Appeal: Volunteer Reserve Cop Has No Discrimination Claim

L.A. has a corps of volunteer, reservist police in addition to the regular police force.  They grant these volunteers workers' compensation benefits and a $50 per shift expense reimbursement, but no salary. 

Frank Estrada was a volunteer for some 17 years.  The police force ended his engagement after he was investigated for some misconduct related to his regular job.  

He sued for disability discrimination under the Fair Employment and Housing Act.  The court had to decide whether Estrada was an "employee."   (Only applicants/employees can sue under FEHA for disability discrimination).

Agreeing with the trial court, the Court of Appeal said that Estrada was not an employee.  The city did not "appoint" him to an employee position.  That the city chose to extend workers' compensation benefits to its volunteers was a policy decision, the court said.  Here is the punchline:

Estrada was a volunteer who served without remuneration. He was appointed to a volunteer position, rather than to a position in the classified civil service. Accordingly, Estrada was not an employee of the City. (Board Civil Service Rules,§ 1.17.) Therefore, Estrada is incapable of maintaining a cause of action against the City for disability discrimination pursuant to the FEHA.

So, employers may be able to argue that it is possible to cover volunteers with workers' compensation insurance and yet maintain non-employee, volunteer status. But, this case was decided in great part based on Los Angeles' status as a charter city.  So, a private sector employer could come out with a different result. Be careful.

This case is Estrada v. City of Los Angeles and the opinion is here.

California Workers' Compensation Reform Bill

Governor Jerry Brown just signed SB 863, a big workers' compensation reform package, supported by the Cal. Chamber. 

We don't practice in this area, but we know workers' comp. premiums are expensive for employers and administration is employers' responsibility. So, the bill is here.  If I see a good summary I will post it as well.

Much of the bill addresses how the workers' compensation appeals board and medical providers will go about their business.  The Cal Chamber believes it will result in improved efficiency and reduced fraud.  See here. I hope so!

California Supreme Court: Workers' Compensation Preemption of Loss of Consortium Claim

The Workers' Compensation Act preempts most civil lawsuits by injured workers. There are certain exceptions allowing civil lawsuits, such as for emotional distress due to sexual harassment. There are statutory exceptions, too, such as when a co-worker intentionally injures the employee.  One less-known provision, called the "power press" exception permits civil actions in addition to workers' compensation claims. As explained by the Supreme Court:

[Labor Code] Section 4558 authorizes an injured worker to bring a civil action for tort damages against his or her employer where the injuries were “proximately caused by the employer’s knowing removal of, or knowing failure to install, a point of operation guard on a power press,” where the “manufacturer [had] designed, installed, required or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer.” (§ 4558, subds. (b) & (c).)

 If an injured worker can sue in court in addition to filing a workers' compensation claim for injuries falling within the "power press" exception, can his spouse sue for loss of consortium, or is that claim barred by the Workers' Compensation Act exclusivity provisions?

The Supreme Court said:

notwithstanding the availability of a civil cause of action for workers who suffer power press injuries, claims arising from the industrial accident that caused those injuries fundamentally remain compensable under the workers’ compensation system. Consequently, under settled principles of workers’ compensation law, the exclusivity rule bars a dependent spouse’s claim for loss of consortium.  

This means that the loss of consortium claim is not actionable, even if the power press exception applies. 

The case is Lifiell Mfg. Co. v. Superior Court and the opinion is here.

Governor Jerry Brown's Actions on Pending Workers' Compensation Legislation

Our friends at the California Chamber of Commerce prepared a nice summary of what became of the proposed workers' compensation bills this year:  Your can find the roundup here. 

California Supreme Court Limits Employer Liability to IC's Employees

Typically, when an organization hires a vendor / independent contractor, the hiring organization is not liable to the vendor's employees when something goes wrong. The vendor/contractor is the "employer" responsible to its own employees.

As explained by the California  Supreme Court:

Defendant US Airways uses a conveyor to move luggage at San Francisco International Airport. The airport is the actual owner of the conveyor, but US Airways uses it under a permit and has responsibility for its maintenance. US Airways hired independent contractor Lloyd W. Aubry Co. to maintain and repair the conveyor; the airline neither directed nor had its employees participate in Aubry‘s work.

The conveyor lacked certain safety guards required by applicable regulations. Anthony Verdon Lujan, who goes by the name Verdon, was inspecting the conveyor as an employee of Aubry, and his arm got caught in its moving parts.

Plaintiff SeaBright Insurance Company, Aubry‘s workers‘ compensation insurer, paid Verdon benefits based on the injury and then sued defendant US Airways, claiming the airline caused Verdon‘s injury and seeking to recover what it paid in benefits. Verdon intervened as a plaintiff in the action, alleging causes of action for negligence and premises liability.

Of special relevance to this case, the insurance company argued that US Airways was liable because of its obligations under CalOSHA to provide a "safe workplace." The issue was whether US Airways could delegate the duty to provide a safe workplace to its contractor, with respect to the safety of the contractor's employees.

Was US Airways liable for the injury to Verdon, even though Aubry was Verdon's employer and Verdon was covered by Workers' Compensation Insurance?  Hmmm?  Heck I don't know, I was asking you.

Oh, right the California Supreme Court knows. And the Court said:

plaintiffs here cannot recover in tort from defendant US Airways on a theory that employee Verdon‘s workplace injury resulted from defendant‘s breach of what plaintiffs describe as a nondelegable duty under Cal-OSHA regulations to provide safety guards on the conveyor. Hence, the Court of Appeal erred in reversing the trial court‘s grant of summary judgment for defendant.

The court emphasized that US Airways owed its own employees a non-delegable duty to provide a safe workplace. But Verdon, an employee of Aubry, could not look to US Airways for relief.

The decision is Seabright Ins. Co. v. US Airways and the opinion is here.

New California Workers' Compensation Regulations

Workers' compensation law is just one more thing that HR has to be worried about. I try not to worry about it, but I can't help it. Our friends at the California Chamber of Commerce published a handy FAQ regarding new regulations. The regulations concern Medical Provider Networks. In particular, the posters and notices must be revised substantially. The FAQ's lead you to the government's source documents. The deadline is October 8, 2010, so get ready.

Court of Appeal Once Again Explains 132a Liability

The Court of Appeal clarified what Labor Code Section 132a means - again. It appears the Workers' Compensation Appeals Board has not adapted to the California Supreme Court's decision in Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281 (Lauher).

So, Fowler had significant spine surgery. Initially he could not be cleared to return to work as an order puller / machine operator. The doctor's restrictions permitted him to use equipment for just an hour a day. Then, the doctor changed his mind and returned Fowler to work with no restrictions. Because of the seeming conflict, Fowler and his employer submitted his case to an "AME" doctor, who decided Fowler could return to work.

Fowler filed a workers' compensation discrimination claim under Labor Code Section 132a because of the delay in returning him to work. The Workers' Compensation Appeals Board held that Gelson's, the employer, discriminated against Fowler by refusing to accept his doctor's note returning him to work. The Board appeared to apply old law, basically saying that any negative action against an industrially injured worker is a violation of section 132a regardless of whether the employer would take the same action against a non-injured worker.

The Court of Appeal annulled the WCAB decision because Fowler did not prove discrimination - differential treatment:

Here Fowler made no showing that Gelson’s treated him differently from nonindustrially injured employees. That is, Fowler made no showing that Gelson’s would have returned to work a nonindustrially injured employee whose physician provided the same releases, but discriminated against Fowler by not returning him to work. Fowler made no showing that Gelson’s treated him disadvantageously because of the industrial nature of his injury, as compared to how Gelson’s treated a nonindustrially injured employee. Thus he did not make a prima facie case of discrimination in violation of section 132a and did not shift the burden to Gelson’s to establish an affirmative defense.

The case is Gelson's Markets, Inc. v. WCAB and the opinion is here.

Narrowcast Supreme Court Opinion Contains Hidden Gems

So, I actually did not read Miklosy v. Regents on the day it was issued. The headline holding is that the state's Whistleblower Protection Act, Gov't Code section 8547 et seq., does not apply to the University of California, unless the University fails to address an internal complaint. Of course, this case is important to the University, its lawyers, its employees, and people who sue the University. But I'm none of those.

Yet, at the end of the opinion, the Court made some key rulings that affect all of us California employment lawyers:
- the court endorsed the long line of court of appeal decisions holding that individuals may not be held liable for wrongful termination in violation of public policy;
- the court held that claims for intentional infliction of emotional distress are preempted by the Workers' Compensation Act even when the conduct alleged violates public policy. The claim for wrongful termination is not preempted, but the common law IIED claim is.
- public entities may not be sued for wrongful termination in violation of public policy.

DGV

No Workers' Compensation Benefits for Mean Employee

So Verga is a United Airlines employee. She is tough on her co-workers. They resent it and are mean to her. Verga files a workers' compensation claim for "stress" caused by the co-workers' "disdain." The Court of Appeal, agreeing with the Workers' Compensation Appeals Board, held: "No benefits for you!"

Here is the gist of it:

The Workers’ Compensation Appeals Board (the WCAB) concluded that Rosemary
Verga was not entitled to compensation for psychiatric injury while employed by United Airlines. According to Verga, her psychiatric injury was the result of harassment and persecution by her supervisor and co-workers. However, the WCAB found “the true fact remains that [Verga] was not actually subject to harassment or persecution, she instead brought upon herself the disdain of her co-workers” because Verga was “a difficult person to get along with”; she was impolite, unpleasant, and co-workers “never knew when [she] might get upset.” The WCAB held: “That disdain is not an actual event of employment” within the meaning of the statute. [par.] We issued a writ of review and shall now affirm the WCAB order.

The case is Verga v. WCAB and the opinion is here.