Legislative UpdateLegislative Update• Senate Bill 558 (Simitian)

– Lowers the Burden of Proof to establish elder abuse

• Assembly Bill 271 (Nestande)– Promotes fairness by allowing both sides the same

right to appeal a decision supporting class certification

Humboldt

Sacramento

Sonoma San Francisco

Alameda

Los Angeles

California LitigationCalifornia Litigation

Class Action UpdateClass Action UpdateInconsistency ContinuesInconsistency Continues

• Ongoing Long Term Care Class Action Defendants– Country Villa (request for appellate review of class

certification Denied)– Discovery IV (request for appellate review of class

certification Granted)– Covenant Care (Case Dismissed: Abstention Granted)– Evergreen (Abstention Denied) – Ensign– Golden Living– Kindred– Thekkek

DPH All Facilities LettersDPH All Facilities Letters• Attempts to Clarify 3.2 Metric

– NHPPD does not assure any patient receives 3.2 hours of nursing care

– Total number of nursing hours performed by direct caregivers divided by average patient census

• 72038 defines direct caregivers (still not funded)• Cross trained personnel count if documented• Doing the math (q shift or beginning of day/8/16 hours)

1st shift census (100) + 2nd shift census (90) + 3rd shift census (92) = total census (282 ÷ 3 = 94 Average Census)

DPH PenaltiesDPH Penalties• DPH penalty for NHPPD less than 3.2

– Up to 4.9% of audited days = no penalty

– 5% to 49% of audited days = $15,000

– 50% or more of audited days = $30,000

Compare Civil Plaintiff ClaimsCompare Civil Plaintiff Claims• 24 day audit• 94 census

– 1 day below (less than 5%)• 1 day x 94 census x $500 per patient =

$47,000 + attorney fees• Compared to No DPH Penalty

– 12 days below (50%)• Civil case• 12 days x 94 census x $500 per patient =

$564,000 + attorney fees• Compared to $30,000 DPH Penalty

EARTHQUAKE SHAKES CALIFORNIA

EMPLOYMENT LITIGATION

AT&T Mobility v. Conception (2011)

Discover Bank (2005) Class Action waivers in California arbitration agreements are unconscionable and cannot be enforced.

Class Action Waiver - language in an arbitration agreement which prohibits an individual from commencing or participating in a class action.

AT&T Mobility v. Conception

Rules set forth in Discover Bank are pre-empted by the Federal Arbitration Act.

Minimum Requirements for Enforceable Minimum Requirements for Enforceable Pre-Dispute Arbitration AgreementsPre-Dispute Arbitration Agreements

1. Mutuality

2. Neutral Arbitrator

3. Cost beyond those normally incurred in civil court to be borne by employer

4. More than minimal discovery

5. Some written reasons for the award

6. Same relief as would be available in civil court

Wage and Hour Class ActionsWage and Hour Class ActionsGoing Strong!Going Strong!

• Failure to provide uninterrupted breaks and meals– Additional one hour each violation

• Failure to provide all wages due at the time of termination– Additional 30 days pay

• Failure to provide accurate itemized wage statements– Up to $4,000 per employee– Plus attorneys fees

There’s an App for that!!There’s an App for that!!The DOL has created a smartphone app for employees to

independently track hours worked and wages owed.

“This new technology is significant because, instead of relying on their employer’s records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.”

Employer’s Solution:

Have a strong policy requiring employees to come forward to report incorrect pay.

Require employees to verify their hours are correct when they receive their checks.

Social Security “No-Match” Social Security “No-Match” Letters Are BackLetters Are Back

What are “no-match” letters?

What changes have been made since the last round?

How should employers proceed?

Cautiously!