2. Legislative 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

3. Humboldt Sacramento Sonoma San Francisco Alameda Los Angeles California Litigation

4. Class Action Update Inconsistency 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

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

8. DPH 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

9. Compare 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

10. EARTHQUAKE SHAKES CALIFORNIA EMPLOYMENT LITIGATION AT&T Mobility v. Conception (2011)

11. 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.

12. AT&T Mobility v. Conception Rules set forth in Discover Bank are pre-empted by the Federal Arbitration Act.

13. Minimum Requirements for Enforceable Pre-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

14. Wage and Hour Class Actions 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

15. 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.

16. Social Security “No-Match” Letters Are Back What are “no-match” letters? What changes have been made since the last round? How should employers proceed? Cautiously!