The applicants attorneys conference in San Diego drew to a close today.

In some coming posts I'll be commenting on some of the nuggets from the CAAA confab.

Hold that video?

That's the upshot of today's interesting presentation by Los Angeles attorney Lawrence I. Stern of Mallery and Stern.

Defendants in California workers' comp frequently secure sub rosa films and videos of injured workers. Like most attorneys, several times each week I'll find a DVD or VHS tape of clients in my mailbox.

The client may have been filmed from a van parked down the street from his house. Or the client may have been followed to the mall or the park or the beach. One client was followed from the doctor's office in the Bay Area to a casino in the foothills of the Sierra.

As cameras and microphones and night vision equipment have gotten smaller, video surveillance techniques have become much more sophisticated. And often much more invasive. Stuff the CIA had several decades ago may now be a tool in the hands of your local investigator.

While the videos can sometimes significantly undermine the worker's case, the videos are many times not really that significant.

But are they legal? Can the carrier take film pretty much whenever and wherever they choose to? Are there legal standards that must be met before video surveillance can be initiated? Or is the carrier able to commission video whenever and under whatever conditions it chooses, from public settings to invasive videos taken inside structures, from malls, stores and stadiums to dwellings?

It should be noted that the surveillance process sometimes causes embarassment and disruption in the worker's neighborhood. Neighbors
sometimes become involved since they observe unknown vehicles loitering around the neighborhood or following the worker. Neighbors may fear for the worker's safety or their own safety.

The worker's reputation in the community can be damaged in the process, as the worker "loses face". The worker and his friends and family may be put at risk where the worker is followed on the highway.

If shown to the treating physician, even benign videos may cause some physicians to become uncomfortable, not wanting to "get involved" if they feel the worker is "under the microscope".

Thus, surveillance video can have some significant collateral consequences.

In essence, can the carrier commission a fishing expedition of surveillance in hopes of catching the worker in a lie about activity? Does an injured worker lose all expectation of privacy?

Probably not.

After all, the cases of Allison v. WCAB (1999) 64 CCC 624 and Pettus v. Cole (1996) 61 CCC 975 both contain extensive reference to privacy rights. Privacy is central to the California Confidentiality of medical Information Act (Civil Code 56 et seq.) and is part of the California Constitution, Article I, Section I.

Stern reminded the audience (which contained a large number of defense attorneys) that there is a foundational requirement for films and videos.

Civil Code 1708.8(g) requires that there be a "showing" that is supported by "articulable suspicion of suspected illegal activity, violation of an administrative rule, fraudulent insurance claim, or other suspected fraudulent conduct or activity". Business and Professions Code 6521 requires that investigators be licensed.

Civil Code 1708(g) would appear to require that the decision to take film or video be based on an articulable suspicion, not simply on a generalized hope that something will turn up in the surveillance.

Such an articulable suspicion might be generated by a tip from a witness, co-worker or informant or at the suggestion of a treating doctor or QME. Other investigatory techniques such as an internet search or credit check may reveal evidence that the claimant may be working while claiming disability.

In those instances, a Civil Code 1708(g) showing of "articulable suspicion" would appear to be easy to establish.

But not so in many other instances where films or videos are obtained.

One wonders whether surveillance is actually generated in many cases at the whim of a claims adjuster or attorney, to "see if we can get something on this guy". Perhaps the worker or worker's attorney has irked the defendant. The defendant may think the "injury has gone on too long". The employer may be suspicious of the worker's doctor who is certifying the disability and treatment. The carrier or defense firm may have policy of doing surveillance on most cases from time to time in order to "turn up an occasional fraud".

In none of those instances does it appear that an "articulable suspicion" was established before the surveillance. Without such a showing, the films/videos may be inadmissible.

In the future I expect that we will see more challenges to the admissibility of film and video.

We'll see applicant attorneys demanding that the "articulable suspicion" be revealed before the applicant attorney will stipulate that the video/film be shown to the QME or AME.

We'll also see efforts to impose civil Superior Court liability on carriers and law firms that initiate video where there was no basis for articulable suspicion.

Not every bogus video will generate a viable claim for civil damages. But in the future I predict we will see some significant civil liablility in egregious cases where there was no "articulable suspicion" and where the very act of doing surveillance essentially became a harassment tool against the worker. In such cases it will be noted that the privacy violation was compounded by the carrier sending the films/videos to the treating doctor. If shown in the video, the family and friends of the worker may attempt to state a claim as well.

Carriers, beware. Sometimes it may be better to hold that camera.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right corner under "Most Recent Entries")

When most people think of workers' comp, they think of accidents at work.

Occupational diseases due to workplace chemicals and other hazards get less attention. Under the recently departed Bush administration, there was little progress in addressing the hazards of workplace chemicals.

I'm happy to see the New York Times piece by Felicity Barringer that's now online. Here's a link to the story of Ed Abney, who contracted a devastating neurologic condition after years of solvent exposure at work:
http://www.nytimes.com/2009/01/25/us/25 ... nted=print

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right corner under "Most Recent Entries")

I'm at the winter Applicants Attorney Conference in San Diego.

Here's a live blog on "The Most Important Cases". I'm paraphrasing some comments as they go along (caution: the following are a selection of the opinions of various panelists and may or may not be accurate or represent a consensus among experienced comp professionals)

First up is a discussion of the Hertz (Aguilar) case.

Bill Herreras:
-CAAA is requesting that Aguilar be depublished.
-The court's treatment of writ denied cases as legal precedent is troubling. Aguilar marks a big departure from LeBoeuf, which looked at the impact of THIS injury on THIS worker.
-If it stands, Aguilar will open the gate for consideration of all kinds of factors: how tall is the applicant? does he have a diploma? Every worker has a different situation with respect to some limitations.
-the applicant attorney in Aguilar has filed a petition for review by the California Supreme Court
-the Aguilar case reminds one of the literacy tests given to blacks so they couldn't vote, i.e. a racial factor to bar a benefit

Ron Feenberg:
-Aguilar is not an apportionment case, it's a discrimination case
-employers take people for what they are; Aguilar would punish people for what they are not
-Aguilar would import a "perfect man" standard into comp and takes Labor Code 4663 way too far
-attorneys should refuse to allow applicants to answer depo questions which pertain to this sort of discrimination; let the defendant push the issue at a motion to compel at the board; the board needs to be aware of the ugly side of discrimination that the Aguilar case entails

Joe Capurro:
-Aguilar is an example of a court lacking judicial restraint

Now they've moved on to talk about the Sandhagen case, decided by the California Supreme Court.

Melissa Brown:
-we now know that UR is mandatory; the carrier does not have the option to use 4062 (request for a QME) on treatment issues. Only the applicant's side can use 4062 to request a QME on treatment issue
-the problem is that 4062 really creates delays since it takes forever to go through the QME process. If the treater really wants the worker to get the treatment, they need to work with the attorney to write an adequate report supporting the treatment request

Joe Capurro:
-the applicant can still go to court on the treater's report if the pre-UR medical report is strong enough; but it's a strategy concern if you have to go back to get a supplemental treater report clarifying the treating request and in that event will you run into problems at the board?

Ron Feenberg:
-if your treating doctor's report is substantial evidence, why delay by going through 4062 evaluation

On to Minvielle V. County of Santa Clara (36 CWCR 199):

Bill Herreras notes:
-in Minvielle the worker had received an old award of 27.5% for a 1992 injury. The rating on a later 2004 injury (to the same body part, his back) was 31%; the WCAB panel found under the Kopping case that the defendant had the burden of establishing overlap where there is a prior award

Now on to E&J Gallo vs WCAB (Rubio) 73 CCC 1206 :

Herreras notes:
-the applicant in Rubio denied the existence of an earlier award; the defendant could not locate a copy of the alleged award. The court noted that if a prior award exists, under Kopping vs. WCAB, the defendant has the burden of establishing overlap. Also, the defendant had the burden of proof to establish a prior award and the percentage attributable to the earlier award.

Feenberg adds:
-Gallo may have known the earlier award, but they did not produce the documents for the WCAB to prove the award
-note that there is an old pre AMA system and then under the AMA for a back injury there is ROM and DRE used to rate impairment.
-a doctor may try to retroactively apply current rating language under the AMA to the worker's condition years ago; but you can not subtract an old ROM rating from a current DRE rating

Melissa Brown:
-how can you measure an old injury under an AMA scenario? In her opinion if you have a prior award, you are in 4664 and you must produce the underlying evidence that was the basis of the award if you want to prove overlap

Mark Kahn and Joe Capurro:
-discussing double-dip apportionment attempts under 4663 and 4664

Ron Feenberg:
-why should defendant get a deduction from current AMA impairment rating for an earlier award where the earlier pre-AMA award was based on subjective complaints, which were a basis for pre-AMA rating

Mark Kahn:
-raises issue of whether WCAB under Tyler and McCune does or does not have a duty to develop record on earlier award if defendant has not bothered to do so

The discussion moves to Barr v. WCAM and SIBTF v. WCAM (Dorigo).

Ron Feenberg:
-these cases involve the issue of costs of presentation of vocational expert testimony on diminished future earning capacity. In Dorigo the court granted the applicant's petition, finding that the board improperly failed to exercise its discretion to award costs for the fees of the vocational expert.
-the test for reimbursement: at the time the expert's efforts were obtained, was it reasonable and necessary at the time they were incurred. If not, the costs are not reimbursable

Joe Capurro:
-can you file a petition for costs at the time you obtain the expert's report? Capurro thinks you should be able to do so but acknowledges differences of opinion on the panel

Mark Kahn:
-not being able to get the costs paid up front puts the woker and attorney at a disadvantage; but the other side of the coin is that the case is not developed at that point.
-one possibility is to try to award the costs subject to later assessing the costs against the applicant if it does not appear reasonable

Bill Herreras:
-if the defendatnt gets an expert report, that should be a factor, so that the applicant has a level playing field and is not at a disadvantage compared to the defendant

Melissa Brown:
-there is a lack of clarity as to what is required to rebut the schedule; don't get hung up on what is substantial evidence. In her practice the costs are being paid

Joe Capurro:
-it may help to get a doctor to say that he/she wants vocational opinion

The discussion moves to Safaeipour v. Sierracin Corp. 36 CWCR 258.

Ron Feenberg:
-in this case the panel QME had found a compensable psych injury. Afterwards, defendant hired a lawyer, who sought to depose the treating doctor. Defendant sought removal where the judge had refused to allow the defense attorney to depose the treating doctor's opinion (the treater's notes were illegible). The WCAB granted removal, ordering further discovery.
-Feenberg notes that the panel QME is not always correct; the parties do have discovery rights

Joe Capurro:
-it's not clear whether there were due diligence problems but those could dictate a different result if defendant did not pursue its discovery in a timely fashion.

Up for discussion next is L.A. County Professional Peace Officer Association v. County of Los Angeles (73 CCC 1235). The panel notes that in this case the worker sought to sue in Superior Court where the employer dealt with accrued vacation pay differently for individuals on industrial leave than for employees who had non-industrial disability. The case is significant because Labor Code 132 was held to be not the only remedy. The worker could pursue a separate civil remedy.

The panel then mentions Tapia v. Skill Master Staffing, 73 CCC 1339. The lien claimant has the burden of establishing the reasonableness of their charges. An unsupported billing in and of itself does not establish reasonableness, even if the insurer presented no rebuttal evidence.
Judge Mark Kahn notes that the lien claimant misapplied the Kunz case on liens (Kunz is 67 CCC 1588). $22,00 for 3 hours of surgery seemed unreasanable on its face and in Tapia the WCAB upheld an award of $4,700 to the surgery center.

The panel then discusses Medrano v. WCAB, 73 CCC 140

There is a discussion about the survival or non-survival of the "ghost statues" and whether voc rehab survives after 1.1.09

Mark Kahn notes that the VR survival issue is coming up soon in cases in Los Angeles. Some have argued that VR survives via Godinez and the reference to "ghost statutes". Since Kahn will be sitting as a judge on cases, he does not want to give his current thoughts on whether the statutes extinguished rehab rights that existed before 1/1/09.

Now they discuss Lane V. Zurich American, 36 CWCR 254. Under Lane, the applicant can seek treatment outside the MPN but it will be at his own expense if he was provided adequate notice of the existence of the MPN.

Also under discussion: Ramirez vs. Drive Financial Services & One Beacon Insurance Company, 73 CCC 1324.

Bill Herreras notes this is an important case setting forth the standard for setting penalty amounts under Labor Code 5814(b). The decision noted that the amount of a penalty is discretionary and sets forth a number of factors for the judge to consider in determining a penalty.

Heading toward the end of their program, they move to issues regarding rebuttal of the 2005 PDRS.

Note is made of Rosendin Electric v. WCAB (Bojorquez) 73 CCC 1123, where the board panel suggested a future roadmap on DFEC issues might be coming in future decisions.

Capurro notes that an unpublished panel decision in the Arledge case (not sure if I have spelled it correctly, but it was written by Commissioner Lowe) is significant. CAAA has a copy and will be circulating it. In that case, the app put on DFEC testimony that the 39% rating did not reflect the diminished future earning capacity.The trial judge, who rejected the DFEC rebuttal analsysis, had noted the expert relied on functional capacity information that was not reviewed or commented on by any doctor. The board panel apparently agreed. The Arledge decision may shed some light on how the WCAB will deal with DFEC issues.

That's the report from San Diego this afternoon.

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader on the lower right hand column)

The long wait is over.

Governor Schwarzenegger has filled the last open slot on the California Workers Compensation Appeals Board. The appointment went to a fellow Republican, Greg Aghazarian. Aghazarian represented an area encompassing San Joaquin County as an elected member of the California Assembly (26th District) from 2002 to 2008.

Aghazarian (who I've never met) recently ran an unsuccessful race for an open California State Senate seat, losing to Davis-area Assemblywoman Lois Wolk by a 65% to 35% margin. One issue that surfaced in the campaign was his acceptance of six-figure per diem expenses while living in Stockton and commuting to Sacramento.

Aghazarian is a graduate of USC and McGeorge School of Law in Sacramento.

In the Assembly he served on the Public Safety and Natural Resources Committees as well as Chair of the Republican caucus.

He was honored in 2008 by the California Civil Justice Association, a business group that supports tort reform:
http://www.cjac.org/newsandresearch/pre ... zarian-ho/

According to political blogs I've seen, there had been speculation a few years ago on whether Aghazarian would take a shot at unseating first term U.S. Rep Jerry McNerney. But eventually Aghazarian did not make the race.

There had been much speculation over whether the Governor would give the final slot as a plum to a political appointee or whether he would reserve the slot for an industry veteran. Earlier Schwarzenegger appointments have been widely applauded by insiders in the "comp community"; the earlier appointees were all distinguished attorneys with years of workers' comp experience.

The current WCAB members all live in the San Francisco Bay Area. There was criticism of a former WCAB member, Janice Murray, who lived in Los Angeles and did not appear at WCAB staff meetings on cases in San Francisco.

Hopefully Aghazarian will make the move from Stockton and be a hands on member of the board, which is a vital part of the California workers' comp system.

Here is a link to a site on Aghazarian's voting record in the legislature:
http://www.allballots.com/user/candidat ... spx?Id=736

Aghazarian may or may not have handled a handful of comp cases, but he clearly is not an attorney with years of experience in the field. However, he will receive guidance from the terrific staff counsel at the the WCAB and other WCAB members who have decades of comp experience.

As a member of the WCAB, he will participate in decisions on appeals in workers' comp cases for years to come.

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the right lower column under "Most Recent Entries")

You're ready to look ahead. I can understand that.

But as the transition from Bush to Obama occurs along the Potomac, it's time to take a last look at how labor fared under the Bush Presidency.

Workers' compensation is not a federal law, so Bush had no direct effect on state workers' compensation benefits. But his term had major impact on workers generally.

The Bush Administration rolled out the red carpet for business and industry. Unions and the interests of workers took a back seat. There was nothing subtle about George W's labor policy.

Historians in future years will sift through the Bush record on civil liberties, national security, the "Bush Doctrine", immigration law enforcement and presidential powers. Partisans will debate whether some of his measures made us more or less safe. Economists will debate the impact of 2 wars and the role of Bush and Greenspan's Fed in the great financial unraveling we're seeing unfold.

But the record on labor issues is more straightforward. Most worker advocates didn't like the Bush labor policy; management did.

Yet, there were a handful of bipartisan surprises that will please workers. But those were few and far between.

What follows is a list of the major developments regarding workers during the eight years of Bush.

1. Under Bush, OSHA fell asleep on the job. The Occupational Safety and Health Association (OSHA) is tasked with setting and enforcing standards for safe and healthful workplaces. Problems at OSHA during the Bush years included the following:
-Draft regulations and warnings on workplace hazards were withdrawn or delayed, including regs on air contaminants, hazardous chemicals, ionizing radiation, berylliuum and silica, brake linings, glycol ethers, tuberculosis, crane safety and many other hazards
-Political appointees and industry lobbyists ignored OSHA staff recommendations that were based on scientific studies, creating a pattern of sweetheart collusion with industries OSHA was tasked to regulate. Regulatory functions were politicized.
-Confusion over OSHA's mission. Bush's first OSHA director announced that employers, not the nation's workers, were OSHA's customers.
-proposed new "risk assessment rules" that would change the way work hazards are regulated
-in a new January 2009 "midnight" regulation, issued a new OSHA Field Operations Manual

For more information on OSHA under Bush , here's a piece by R. Jeffrey Smith in the Washington Post, "Under Bush, OSHA Mired in Inaction":
http://www.washingtonpost.com/wp-dyn/co ... 24_pf.html

For particulars on OSHA and occupational health & safety developments under Bush, I recommend the archives on the excellent blog www.thepumphandle.wordpress.com

2. Bush's National Labor Relations Board (the "NLRB") rolled back labor protections. The NLRB is the agency which is charged with policing labor cases, giving it great influence over national labor policy. Under Bush's tenure the following are notable:
-Many workers lost labor law protection including temps, graduate teaching assistants, and workers in rehabilitation programs
-Double standards were applied to supervisors' anti-union and pro-union conduct
-Work rules that discouraged organizing activity were permitted
-In IBM Corp., the NLRB ruled that non-union employees have no Weingarten rights (the right to have a co-worker present during a disciplinary hearing), overturning a precedent that went back to 1975
-Standards for fair elections were weakened
- Remedies for labor law violations were weakened
-Union busting lockouts were permitted
-Employers were excused for many violations
-Rules were relaxed to allow employers who acquire a unionized workplace the right to immediately begin efforts to decertify the union
(MV Transportation, a 2002 NLRB decision)
-Employers were required to post information on how workers could begin to decertify a newly organized union

Altogether, the Bush NLRB made organizing a union more difficult and gave employers additional tools to chill workers' exercise of their rights.
Less than 8% of American workers are now covered by union contracts.

A summary of these developments involving the NLRB can be found in this July 13, 2006 report by the U.S. House of Representatives Committee on Education and the Workforce:
http://www.changetowin.org/fileadmin/pd ... -13-06.pdf

3. Bush appointees to the U.S. Supreme Court joined in the Ledbetter v. Goodyear Tire & Rubber case. In Ledbetter the Supreme Court rejected an equal pay lawsuit by Ms. Ledbetter, ruling that the 180 day statute of limitations for equal pay lawsuits ran from the date the pay was agreed to, not from the date Ledbetter discovered that she was paid less than men doing the job.

Here's a link to an earlier blog post I did on this issue:
http://workerscompzone.com/index.php?en ... 603-162015

4. The Bush Department of Labor in November 2008 published final rules implementing amendments to FMLA (the Family and Medical Leave Act). Although these regulations, effective 1/16/09, contain some provisions, including notice requirements, that will we welcomed by employees, they are on balance more favorable to business interests. For a summary of the FMLA regs, check this legal update by Jackson Lewis, a major law firm that represents employers:
http://www.jacksonlewis.com/legalupdate ... m?aid=1563

A good summary on the notice requirements under the new regs is here:
http://ohioemploymentlaw.blogspot.com/2 ... -mean.html

And here:
http://ohioemploymentlaw.blogspot.com/s ... amendments

The regs have some privacy rights implications:
http://privacyblog.littler.com/2009/01/ ... employers/

5. On March 20, 2001 Bush signed a Congressional Resolution of Disapproval which killed an ergonomics standard that had been under development in the Clinton Administration. The ergonomics rules were designed to prevent repetitive stress injuries and to reduce the amount of and severity of on-the- job injuries. In 2002 a national advisory commission on ergonomics was formed, but the safety advisory committee was stacked with a 3-1 ratio of management to worker advocates. Comprehensive replacement regulations were never issued. Instead, the emphasis has been on encouraging "voluntary" measures by businesses.

6. Following the 9/11 World Trade Center attack, the Bush adminstration pressured the EPA to tone down reports about potential health hazards from the event and the resulting cleanup. This was detailed in a report by the EPA inspector general.

7. Black lung regulations were suspended by a federal judge at the behest of Bush administration attorneys. These regulations, which had gone into effect in 2001, were aimed at streamlining claims by miners suffering mine-related disease.

8. Bush issued several executive orders aimed at union organizing ( note: several of these were later nixed by the courts):
-An order to bar so-called "project labor agreements" on federally sponsored construction projects. These agreements have been commonplace since World War II
-An order to end rights when there is a change in federal contractors. This was aimed at changing a rule that bound federal contractors to rehire displaced workers when there was a change in contractors, a rule that discouraged turnover in low-wage jobs.
-An order requiring government contractors to post notices advising workers how to object to union dues. The order did not require that explanation of the right to organize a union be posted.

9. Bush allocated relatively little money to labor law enforcement.
-The 2009 Fiscal Year budget request for labor law enforcement by Bush's Department of Labor allocated $2,500 per union to investigate unions and $26.08 per employer. As an AFL-CIO blogger noted, "President Bush wants to spend almost 100 times more per union to make sure they comply with the laws than to make sure employers comply with the law".
-Bush cut back in many areas of enforcement, but expanded enforcement of the Landrum-Griffin Act, a law which empowers the Secretary of Labor to audit union finances and internal union affairs.
-Meanwhile, money for mine safety, OSHA enforcement, and wage and hour law enforcement actually had as of 2007 dropped significantly below 2001 levels.

10. Workers found themselves working harder and longer in what writer Steven Greenhouse has called "The Big Squeeze" . The American economy was more and more leveraged and in hock to Asian economies, with huge continuing trade imbalances. Enemies of globalization and privatization argued that workers were losing ground as part of a grand transnational "shock doctrine". CEO pay soared but worker pay did not, as outsourcing and waves of downsizing created worker anxiety through much of Bush's term, only to end with a drastic economic collapse in late 2008. As energy and other commodity prices climbed (until 2008), the middle class lifestyle was increasingly under pressure as many workers lost health coverage, employers abandoned 401k contributions, employees faced furloughs, and the social compact between workers and management frayed.

11. The struggle over immigrant labor continued. Unable to strike a politically acceptable deal on immigration reform, Bush leaves office with immigration reform still a political "third rail". Although the public will probably support some sort of immigration amnesty solution in exchange for some sort of increased enforcement mechanism against entry and employment of future illegal immigrants, a compromise was never reached. High profile enforcement against immigrant workers and employers was stepped up, particularly in the later years of the Bush presidency. Industries such as meat and poultry processors and car washes were found to be heavy employers of undocumented workers (as well as violators of wage and hour and safety laws). Efforts to create a social security number verification system ran into legal challenges. As the Bush presidency ended, the Department Of Homeland Security has delayed proposed E-Verify rules til February 2009, giving the Obama administration an opportunity to put its own stamp on immigration work rule policy.
Meanwhile a late 2008 Bush regulation to the agricultural guestworker program (the H2-A program) allows agricultural employers to hire temporary foreign guest workers if there are not enough domestic workers able or willing to fill the jobs. Critics include some who oppose immigration altogether and also farmworker advocates, who fear this will result in lower wages, slashed protections and labor abuses.

To understand some of these concerns, check this:
http://texascivilrightsreview.org/phpnu ... mp;thold=0

And this:
http://www.dallasnews.com/sharedcontent ... 60737.html
11.On the positive side, as part of a negotiated compromise with Congress, Bush did sign the Americans With Disabilities Amendments Act of 2008. The 2008 amendments (which were not as favorable to workers as S.1881, the "ADA Restoration Act" which had been proposed) were designed to restore the originally intended definition of disability under the ADA, thus making the ADA law more useful to workers (note: despite the 2008 amendments, most California employment lawyers still prefer to file cases under the California FEHA law rather than in federal court under the ADA). Court decisions over the years had narrowed the ADA's definition of disability. Included in this bill is a provision making it clear that (with the exception of eyeglasses), the determination of disability is to be made without considering the impact of mitigating measures. Other improvements included in the law include a clarification that a condition which "substantially limits" means "materially restricts" rather than the more difficult standard "prevents or seriously restricts". Also, added was a provision that "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active".

12. In May 2008 Bush signed the Genetic Information Nondiscrimination Act. Genetic Information is now added to the list of prohibited discrimination categories (along with race, sex, national origin etc.) It is now illegal for an employer to refuse to hire, discharge, or discriminate
against an employee because of genetic information.

13. On May 15, 2002 Bush signed the "No-FEAR Act" (the Notification and Federal Employee Antisdiscrimination and Retaliation Act of 2002). The law, passed with bipartisan support, bans federal managers and supervisors from engaging in unlawful discrimination and retaliation and requires agencies to fund awards out of their budgets.Support for this law was sparked by a jury verdict that found the EPA had violated the rights of a staffer who had reported mine safety violations.

14. After Democrats took control of the House of Representatives in 2007, Bush did sign a minimum wage increase which was part of Speaker Nancy Pelosi's quick action plan. The bill, The Fair Mimimum Wage Act of 2007, raised the minimum wage to $7.25 per hour. President Bush signed only after the minimum wage bill was loaded up with $4.8 billion in tax breaks for business.

15. In 2006, President Bush signed the Pension Protection Act of 2006.
This bill requires companies who have underfunded pensions to pay more premiums to the Pension Benefit Guarantee Corporation and closed some loopholes in employer pension funding practices. In addition, the bill gave workers greater control over how their accounts are invested, raised the amount that employers were allowed to invest in their own plans, and increased some disclosure requirements. Given the 2008-2009 financial meltdown, many pension funds are under extreme financial stress.

But enough looking backwards for now.

We can expect the Obama administration to launch prompt initiatives to reverse some of the Bush-era labor law developments. I'll be here to cover some of these developments, an important backdrop for California workers.

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right corner under "Most Recent Entries")