Governor Newsom Signs Executive Order Regarding Workers’ Compensation Presumption For Certain COVID-19 Related Claims (CA)

Posted by National Alliance for Fair Contracting on

May 15, 2020

Under the California Workers’ Compensation Act (“the Act”), employers must carry workers’ compensation insurance for employee injuries or illnesses which “arise out of and in the course of” employment. The Act, first passed in 1911 and amended over the years by the Legislature, provides a comprehensive system for administering claims, including the provision of disability benefits and the payment for associated medical expenses for work-related injuries.

Now comes the COVID-19 pandemic and a panoply of emergency orders by governors across the country. On May 6, 2020, Governor Newsom signed Executive Order #N-62-20 which creates a presumption that any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if certain conditions are met.
Those conditions include the following:

  1. The employee tested positive for or was diagnosed with COVID19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
  2. The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;
  3. The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and
  4. Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board, and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.

Thus, the Governor has taken the extraordinary step of presuming a workplace injury without specific evidence of job-causation. While the scope and legality of the new Executive Order may be subject to challenge, it is incumbent upon the California employer to review and enforce workplace safety, in all areas, and to specifically protect against the risk of employee exposure to a communicable disease, thereby avoiding added liability and costs associated with job illness or injury claims.

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Civil procedure – jurisdiction (IL)

Posted by National Alliance for Fair Contracting on

Where an employee is hired to perform labor for public works covered by the Prevailing Wage Act, they retain the right of action from the act even if their contract does not contain the provision guaranteeing them prevailing wage in contravention of the act.

Posted May 7, 2020 9:54 AM

The 1st District Appellate Court reversed and remanded the decision of Cook County Circuit Judge Margaret Ann Brennan.

The plaintiffs in this case are 12 landscape laborers employed by Moore Landscapes LLC (Moore) as tree planters. Moore had three contracts with the Chicago Parks District for landscaping and related work, each of which contained a standard “prevailing wage rates provision” which mandates that the contractor pay all their employees prevailing wages “if applicable.” It is not disputed that $41.20 is the prevailing wage for landscape related work and the plaintiffs were paid an hourly rate of $18 for their labor. Section 11 of the Prevailing Wage Act (Act) requires all public works to pay the prevailing wage for the labor, and provides a right of action for any laborer who was paid less than the prevailing wage for a contractor doing public works.

The plaintiffs filed suit against Moore in September 2018 seeking unpaid wages, punitive damages, prejudgment interest and reasonable attorney fees and costs. Moore moved to dismiss, arguing their work was exempt from the prevailing wage provisions of the act and citing interpretations by the Illinois Department of Labor. Moore also moved to dismiss under fail to allege facts sufficient to support a claim, asserting the laborers failed to allege facts that supported the inference that the type of labor they performed was covered by the Wage Act. The trial court granted the motion to dismiss. The plaintiffs appealed.

On appeal, Moore argued that, for section 11 of the act to apply, the contract with the laborers must specify that they would be paid prevailing wages, and their contracts had no such provision. The plaintiffs argued that section 11 of the act also mandated that Moore include such a provision, which Moore did not deny, but instead claimed that because there was no contractual stipulation, the plaintiffs had no right of action and must rely on the Department of Labor to enforce any provisions of the act on their behalf. The plaintiffs claimed that the trial court’s interpretation rewards those who issue contracts which violate the act by protecting them from the right of action the act guarantees their employees.

The appellate court agreed with the plaintiffs. The court found that an employer’s failure to adhere to section 4 of the act, which mandates that the contracts include the provision at issue, does not in any way limit an employee’s right of action granted under section 11 of the act for any work where they should have been covered under the act. The appellate court emphasized that to do otherwise would allow employers to avoid liability by failing to adhere to the mandates of the act. The appellate court acknowledged that there is an issue as to whether the labor performed by the plaintiffs was covered under the act, but found that this was a material question of fact suitable for an evidentiary hearing. For that reason, dismissal was inappropriate.

The appellate court therefore reversed and remanded the decision of the circuit court.

Samuel Valerio, et al. v. Moore Landscapes LLC
2020 IL App (1st) 190185
Writing for the court: Justice Bertina E. Lampkin
Concurring: Justices Robert E. Gordon and Eileen O’Neill Burke
Released: March 26, 2020

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LYNN WAGE THEFT ADVISORY COMMITTEE: WAGE THEFT ‘IS GOING TO HAPPEN’ (MA)

Posted by National Alliance for Fair Contracting on

BY DAVID MCLELLAN | March 11, 2020

LYNN – There are hundreds of construction workers who are or will be working at Lynn’s many current and future development sites. According to the Lynn Wage Theft Advisory Committee, it’s virtually guaranteed a chunk of them will get ripped off.

“It’s going to happen. It’s a slam dunk. It’s just so easy to get away with,” said Robert Reynolds, a member of the Wage Theft Advisory Committee who gave a talk on wage theft to the Greater Lynn Chamber of Commerce Government Affairs Committee Wednesday morning.

“This is something the whole community has a stake in. This harms everyone,” Reynolds said.

Wage theft is a term that encompasses a variety of legal infractions committed by employers, including failure to pay overtime wages, failure to pay a minimum wage, or otherwise not paying an employee the full amount to which they are legally or contractually entitled.

It harms the workers themselves, but also the larger community, Reynolds said. Tax revenue is lost, workers’ compensation and unemployment funds are lost, and honest businesses are disadvantaged.

According to Reynolds, construction is the No. 1 industry in terms of wage theft prevalence, followed by the food industry. Lynn officials should be paying extra attention to potential wage theft, given the amount of current or upcoming development in the city, he said.

“It’s almost guaranteed that that’s going on at every construction site,” he said. “You want a big banner hanging over the General Edwards Bridge saying, ‘If you’re going to engage in that stuff, we don’t want you here. And if you do engage in that stuff, we’re going to come after you.'”

With the recent increase in development – including at least six major waterfront developments adding thousands of new apartment units – the Wage Theft Advisory Committee is educating the public.

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