Happy Labor Day!

Happy Labor Day

Labor Day is just around the corner, which means it’s time to break out the grill, gather your loved ones, and have a blast. But do you ever stop to think about the history behind this awesome holiday? If you’re curious and want to impress your friends and family with some fun facts, check out this quick rundown of Labor Day.

Labor Day is an epic celebration of the achievements of American workers, observed every year on the first Monday in September. The roots of this holiday go back to the late 1800s when labor activists worked tirelessly to establish a federal holiday recognizing the incredible contributions that workers make to America’s strength, prosperity, and well-being.

But before it was a nationwide holiday, Labor Day was recognized by individual states and passionate labor activists. The movement to secure state legislation began with municipal ordinances in 1885 and 1886. New York was the first state to introduce a bill, but Oregon was the first to pass a law recognizing Labor Day on February 21, 1887. And the momentum only grew from there – by the end of the decade, more than half of all states had adopted the holiday. It wasn’t until 1894 that Congress passed an act making the first Monday in September a legal holiday.

The question of who founded Labor Day is a hotly debated one. Some believe it was Peter J. McGuire, a co-founder of the American Federation of Labor, who suggested the idea of a “general holiday for the laboring classes” back in 1882. But others argue that it was actually machinist Matthew Maguire who proposed the holiday while serving as secretary of the Central Labor Union in New York. Recent research seems to support Maguire’s claim, and the Paterson Morning Call even declared him the “undisputed author of Labor Day as a holiday.” Regardless of who came up with the idea, both McGuire and Maguire attended the country’s first Labor Day parade in New York City in 1882 – a historic moment that would pave the way for generations of hardworking Americans to celebrate their contributions to this great nation.

Liability Under FCA Depends On Whether Defendants Believe They Lied

If you have information about violations of The False Claims Act contact an attorney for information about Whistleblower protection and rewards.

Liability Under FCA Depends On Whether Defendants Believe They Lied

United States et al. ex rel. Schutte et al. v. Supervalu Inc. et al., 2023 WL 3742577 (2023)

The False Claims Act imposes liability on anyone who “knowingly” submits a “false” claim to the Government. 31 U. S. C. §3729(a). In some cases, that rule is straightforward: If a law authorized payment of $100 for “each” medical test, and a doctor knows that he did five tests but submits a claim for ten, then he has knowingly submitted a false claim. But sometimes, the rule is less clear. If a law authorized payment for only “customary” medical tests, some doctors might be confused when it came time for billing. And, while some doctors might honestly mistake what that term means, others might correctly understand whatever “customary” meant in this context—and submit claims that were inaccurate anyway. The cases before the Supreme Court involved a legal standard similar to that latter example: In certain circumstances, pharmacies are required to bill Medicare and Medicaid for their “usual and customary” drug prices. And, critically, these cases involved defendants who may have correctly understood the relevant standard and submitted inaccurate claims anyway. The question presented is thus whether the defendants could have the scienter required by the FCA if they correctly understood that standard and thought that their claims were inaccurate.

In a unanimous decision authored by Justice Thomas, the Supreme Court held that the answer is yes: What matters for an FCA case is whether the defendant knew the claim was false. Thus, if defendants correctly interpreted the relevant phrase and believed their claims were false, then they could have known their claims were false.

Employees Lose Labor Claim for Not Performing Labor Within Usual Course of Business

Family leave provides security for employees.

Employees Lose Labor Code § 2810.3 Claim Where They Were Not Performing Labor Within The “Usual Course Of Business” Of The “Client Employer”

Morales-Garcia v. Better Produce, Inc., 2023 WL 3749314 (9th Cir. 2023)

In 2014, California enacted Labor Code § 2810.3 to protect workers whose labor has been outsourced to a labor provider. Under the statute, the outsourcing entity, known as a “client employer,” is liable for the laborers’ wages if the laborers’ work is within the outsourcers’ “usual course of business.”

In the present case, the plaintiffs are agricultural workers hired by strawberry growers (“the Growers”) to pick the fruit that was then turned over to the defendants – Red Blossom Sales, Inc. and Better Produce, Inc. (“the Marketers”) for distribution. The Marketers cooled and sold the berries principally to large retail grocery chains. The Marketers conducted their cooling and distribution operations on premises that were close to but separate from the farms.

As happens quite frequently with agricultural workers (and, hence, the need for Labor Code § 2810.3) the Growers stopped paying the plaintiffs and later filed for bankruptcy. The plaintiffs sued the Growers and the Marketers as joint employers under California and federal law. The plaintiffs also sued the Marketers as client employers under California Labor Code § 2810.3. The district court ruled for the Marketers on all theories. The plaintiffs appealed only with respect to the Marketers’ liability under § 2810.3.

On appeal, the Ninth Circuit affirmed, explaining that because the plaintiffs were not performing labor within the Marketers’ “usual course of business” – which is defined as “the regular and customary work of a business, performed within or upon the premises or worksite of the client employer Labor Code § 2810.3(a)(6) – the Marketers were not liable as client employers under California Labor Code § 2810.3.

Arbitration Denied Employer Failed To Authenticate Employee’s Signature On Agreement

Non-compete agreements something akin to indentured servitude.

Arbitration Denied Where Employer Failed To Authenticate Employee’s Signature On Arbitration Agreement

In Gamboa v. Northeast Community Clinic, 72 Cal.App.5th 158 (2021), the Court of Appeal affirmed the trial court’s decision to deny arbitration due to the employer’s failure to satisfy its burden of proving that the employee signed the employer’s arbitration agreement. The employer provided the trial court with an arbitration agreement that appeared to be signed by a representative of the employer and an employee, along with a declaration from a human resources official indicating that the plaintiff had signed the arbitration agreement (but lacking any foundational facts such as that the official witnessed the plaintiff signing the agreement). The plaintiff, however, filed a declaration in support of her opposition, stating that: (1) she reviewed the arbitration agreement attached to the official’s declaration but does “not remember these documents at all”; (2) before this case, no one had ever told her about an arbitration agreement or explained what it was; and (3) if she had known about the arbitration agreement and had been told about its provisions, she would not have signed it. In affirming, the Court of Appeal stated: “By not providing any specific details about the circumstances surrounding the contract’s execution, the defendant’s declarant offered little more than a bare statement that the plaintiff entered into the contract without offering any facts to support that assertion. This left a critical gap in the evidence supporting the defendant’s petition.” (cleaned up).

Arbitration Denied Where Employer Failed To Authenticate Employee’s Electronic Signature

Proof that electronic signatures on arbitration agreements.

Arbitration Denied Where Employer Failed To Authenticate Employee’s Electronic Signature On Arbitration Agreement

In Bannister v. Marinidence Opco, LLC, 64 Cal.App.5th 541 (2021), the Court of Appeal affirmed the trial court’s decision to deny arbitration due to the employer’s failure to satisfy its burden of proving that the employee signed an arbitration agreement. The Court of Appeal cited both conflicting evidence as to whether the agreement was electronically executed by the employee and the fact that there were no employee-specific usernames or passwords required for the execution of the agreement.

Consumer Privacy Protections for Employers Under the California Consumer Privacy Act

Employees right to data privacy.

Consumer Privacy Protections for Employers Under the California Consumer Privacy Act, as Amended by the California Privacy Rights Act (CCPA)


When the California Consumer Privacy Act (“CCPA”) originally took effect in 2020, it exempted employees from most of its provisions. This year, the California Privacy Rights Act (“CPRA”) finally extends major consumer privacy rights under the CCPA to employees and job applicants of covered employers. In addition to requiring covered employers to provide privacy notices at the time employee personal information is collected, the CPRA grants employees several new rights, including the rights to request what personal information their employers have collected and/or disclosed and to request that their employers delete their personal information, with some exceptions.

Covered employers do not need to – and in some instances may not – delete certain data, including where a business’s legal obligations require its retention, such as under California Labor Code Sections 1198.5(c) (retention of personnel files) and 226(a) (retention of payroll records). Among its other provisions, the CPRA also allows employees to opt out of the sale or sharing of their personal information and to limit the use of “sensitive” personal information, a new category of data under the CCPA that includes an employee’s social security number, driver’s license, and financial information, as well as race, ethnicity, and religion. The CPRA includes an anti-discrimination provision, which prohibits retaliation for the exercise of rights under the Act.

Though its provisions are wide sweeping, the CCPA focuses on larger companies and those engaged in the sale of data. It covers only companies doing business in California that fall within one of 3 categories: (i) businesses having annual gross revenues that exceed $25 million; (ii) those that annually buy, receive, share, or sell personal information of more than 100,000 consumers or households in California; or (iii) companies that derive at least 50 percent of their annual revenue from selling or sharing personal information of residents of California.

Lawsuit alleges Hocking College in Nelsonville, Ohio, Discriminated and Retaliated Against Down Syndrome Student Athlete

Hocking College football sensation sues for discrimination, harassment and assault.

An athlete with Down syndrome made history. Then the abuse began, the suit says.

Caden Cox ran out to the 13-yard line with 3:22 left in the third quarter as his Hocking College Hawks battled the Sussex County Community College Skylanders on Sept. 11, 2021.

With Cox ready, the center snapped the football to the holder, who caught it and put it on the turf. Wearing No. 21, Cox trotted forward, pulled back his right leg, and swept it forward, lifting the ball through the uprights.

The extra point was good.

With that, Cox made history as the first known player with Down syndrome to score during a college football game. The feat earned him a spot in the history books and a 5½-minute segment on ESPN.

People talked to me and said, ‘Wow, it was an awesome kick

“People talked to me and said, ‘Wow, it was an awesome kick,’” he told a reporter at the time.

Less than two years later, Cox is suing his alma mater, alleging that the very thing that made his kick historic also made him a target for discrimination. In a lawsuit filed Thursday in the U.S. District Court for Southern Ohio, Cox alleges that college officials in Nelsonville, Ohio, discriminated against him because he has Down syndrome and then retaliated against him when he reported it to administrators. In one incident, a supervisor at the college’s student center threatened him with a knife and was later convicted in the incident.

President Betty Young declined to comment on Cox’s allegations but, in a statement to The Washington Post, said that she’s “happy Hocking College could provide opportunities for Caden to receive a college education and to participate in college athletics.”

“We remain committed to provide such to all our students,” she added.

Cox alleges that the discrimination started soon after June 2021 when the college hired Matthew Kmosko, a former professional soccer player, as a soccer coach and a supervisor at the college’s student center. In the latter role, Kmosko oversaw Cox, who worked at the center as a student-employee. As Cox’s boss, Kmosko consistently used “derogatory slurs” about people with Down syndrome and repeatedly berated him in front of his co-workers, the suit alleges.

Court records do not yet list an attorney for Kmosko. The public defender who represented Kmosko in the criminal trial declined to comment on Cox’s allegations in the civil suit.

In July 2021, Cox’s mother, Mari, who works at the college, filed a written complaint about Kmosko’s behavior with the college’s human resources department, according to the suit.

The misbehavior not only continued but also escalated, it alleges.

In January 2022, Mari emailed another complaint about Kmosko, asking that he be replaced as her son’s supervisor, the suit says. In the message, she accused Kmosko of calling her son the r-word, taking his phone without permission, and “putting his hands on [her son] inappropriately.”

Then, on May 12, when Cox went into a men’s bathroom to change the garbage bags, Kmosko allegedly followed him, blocked the exit and screamed at Cox while preventing him from leaving. As Kmosko did, he pointed a knife at Cox’s chest, the suit states.

Cox told investigators he feared that Kmosko would stab him, according to a police report.

Surveillance cameras captured Kmosko walking into and out of the bathroom with the knife, the suit states. Shaken and scared, Cox returned to the front desk, where he said he received a call from Kmosko. He allegedly told Cox that he could see him sitting there and ordered him to “get up and do something” before hanging up.

Cox “was terrified and traumatized and called his mother immediately,” according to the suit.

In July, Kmosko, who resigned from the college, was charged with aggravated menacing, a misdemeanor, in connection with the incident, and an Athens County jury found him guilty in January of menacing, a lesser charge. He was sentenced to 30 days in jail.

This past October, the college sent an email to employees calling for nominations for awards at the fall graduation ceremony, the suit states, and Cox “was nominated for nearly every award” by several staff members, including his coaches. Once the votes were tallied on Nov. 11, Cox had won three honors: the Inspirational Award, the Scholar Athlete Award, and the Hocking College Trustee Award, which was to be bestowed at a graduation ceremony on Dec. 10.

On Dec. 2, lawyers representing the Cox family delivered a letter to Young, laying out their allegations of discrimination, harassment, and assault.

On Dec. 9, a day before the ceremony, Cox’s father, Kevin, who worked at the college as a football coach until he resigned in February, arrived at the school to set up for the next day’s festivities. Reviewing the ceremony program, he noticed it listed his son as having won only one award, although a QR code on posters around the school routed to a digital version showing all three.

“Retaliation is the only plausible reason for the surreptitious and punitive removal of [Cox’s] graduation awards days before the graduation ceremony was to take place,” the suit alleges.

For people with Down syndrome, a longer life, but under a cloud

After graduating, Cox completed a football-related internship at Texas A&M University, where his older brother works as a strength coach, his lawyer, Mark Weiker, told The Post. He’s back in Ohio and, in June, plans to go to orientation at an Ohio State University program for people with intellectual and developmental disabilities.

But a year later, the knife incident still haunts Cox, according to his lawsuit. He continues to suffer from nightmares and anxiety. When he visits Hocking’s campus, he gets especially scared when he sees a red car like the one Kmosko used to drive to school.

“The distress that [Caden] suffered and continues to suffer from as a result of the trauma he endured,” the suit states, “will affect him emotionally and psychologically for the rest of this life.”

Read more By Jonathan Edwards

AB 2188: Protections for Off-site, Off-duty Marijuana Use

California employers cannot discrimination for legal cannabis use.

AB 2188 Protections for off-site, off-duty marijuana use beginning January 1, 2024

The legalization of recreational marijuana in 2016 led many to question the California Supreme Court’s decision in Ross v. RagingWire Telecommunications Inc., 42 Cal.4th 920 (2008), which held in part that, despite the legalization of medical marijuana in 1996, an employer could lawfully refuse to hire a job candidate who failed a drug test, even if it was the result of legal marijuana use. Although the passing of Proposition 64 in 2016 did not impact the holding in Ross (in fact, the law explicitly preserved its holding), societal attitudes towards marijuana have shifted significantly since the Court’s decision.

Starting on January 1, 2024, AB 2188 will amend FEHA to prohibit discrimination based upon an employee’s use of cannabis off the job and away from the workplace, partially superseding Ross. The bill does not prohibit an employer’s use and reliance on pre-employment drug screenings that determine current impairment or active levels of tetrahydrocannabinol (“THC”). It also has some exceptions, including for workers in the building and construction trades and applicants and employees subject to federal background investigations or clearances.

“No Spanish” Rule is National Origin Discrimination and Retaliation, Says EEOC

Constitutional rights lawyers of Helmer Friedman LLP.

The Equal Employment Opportunity Commission (EEOC) recently settled charges of national origin discrimination and retaliation against Total Employment and Management (TEAM). This Washington employer instituted a “No Spanish” rule in its workplace. TEAM, a staffing company, agreed to pay $276,000 to settle the charges filed with the EEOC. According to the EEOC, TEAM imposed a “No Spanish” rule without an adequate business necessity. Also, it fired five employees from two locations when those employees opposed the rule and continued to speak Spanish in the workplace.

As part of the settlement, TEAM agreed to revise and update its policies, provide them in English and Spanish, and train its employees on harassment and discrimination.

Under the EEOC guidance and federal law, “English Only” employment rules violate Title VII of the Civil Rights Act of 1964, prohibiting national origin discrimination unless the employer can demonstrate a business necessity. In addition, these rules are considered discriminatory due to a disparate effect on employees who speak English as a second language or through disparate treatment against those same employees when they speak their language of birth and are disciplined or otherwise adversely affected.

EEOC regulations state that a rule requiring employees to always speak English is presumed to violate Title VII and will be closely scrutinized by the Commission. However, such a rule can be valid in very limited circumstances and usually only at certain times. Some situations the EEOC indicates might meet the business necessity requirement are the following:

  • Communicating with customers, coworkers, or supervisors who only speak English.
  • Employees must speak a common language in emergencies or other situations to promote safety.
  • For cooperative work assignments, the English-only rule is needed to promote efficiency.
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication in English with coworkers or customers.

Generally, such a rule cannot be applied to casual conversations between employees when they are not performing job duties.

Likewise, federal courts have upheld “English Only” rules when there is a potential for workplace danger, where a foreign language is being used to further hostility in the workplace, or when monitoring of employees by supervisors is necessary. Trends in these court decisions track the EEOC guidance—the business justification must be narrow and necessary, and those justifications are shrinking.

Employers considering any rule regarding establishing or limiting language in the workplace should consult with employment counsel before implementing such a rule. A facially neutral policy may be discriminatory when applied, and a believed business justification for such a policy may run contrary to recent decisions and guidance.

AB 1949: Employers Required to Provide 5 Days of Bereavement Leave

AB 1949: New requirement for employers to provide 5 days of bereavement leave

AB 1949 makes it an unlawful employment practice for a covered employer to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave (which need not be consecutive) upon the death of a family member. A “covered” employer is: (i) a person who employs 5 or more persons to perform services for a wage or salary; and (ii) the State and any political or civil subdivision of the State, including, but not limited to cities and counties. An “eligible” employee means a person employed by the employer for at least 30 days prior to the commencement of the leave. A “family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Government Code Section 12945.2

The law provides that bereavement leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

The law requires that the leave be completed within 3 months of the date of death.

The law also requires employees, if requested by the employer, within 30 days of the first day of the leave, to provide documentation of the death of the family member.

“Documentation” includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.