Posts

California is Reaching into Your Pockets AGAIN – 6 weeks Paid Time Off

I may be jumping the gun a little on this one, but yesterday, the city council of San Francisco UNANIMOUSLY voted that employers with over 20 employees will be required to allow family leave AT FULL PAY for 6 weeks!!

California already has California Paid Family Leave Act in place.  It is run through the EDD and is similar to State Disability Insurance.  It is paid for through payroll deductions and the employee receives about 55% of their normal pay while they are “bonding” with the new baby.  Now, San Francisco wants every employer to make up the 45% difference so that the employee is receiving 100% of their normal pay.  They do not say where this mystery money is supposed to come from, but you can imagine higher costs for everything, again, and another reason NOT to go to San Francisco.

I bring this new law up now because as we are painfully aware, all of our State Leaders come from San Francisco with a couple from Los Angeles.  So, every time San Francisco does something like this, it ends up in Sacramento a few months later.  So don’t be surprised when we are discussing this on a State level within the year.

So let’s review…..

We are raising payroll by 50%, then requiring that you give people at least 3 free days a year called sick pay, then we mandate that you provide health insurance and now you have to pay someone 45% of their normal wages for 6 weeks of non- productive work time.  And economists will tell you this will have no effect on business…..which shows the quality of education in California universities.  But that is for another day.

UPDATE!!!!!!.

On Monday, Governor Brown signed a new addendum that increases the payout to people on Paid Family leave to 60%.  This benefit could, in the future also create a new classification of worker.  Under a new definition, if an employee is earning below the poverty line they could fall into this new classification and be eligible for increased State funding for a variety of payouts.  This could mean that they would receive 70% of normal pay while other employee would only receive 60% for the same Paid Family Leave.  This could be extended to Unemployment Benefits, State Disability Pay and even employer covered expenses such as temporary disability under worker’s compensation benefits.  The costs to tax payers and employers just keep surging with no end in sight.

CALIFORNIA MINIMUM WAGE PART 2…..

Please look at this graph that shows the minimum wage increase path for small and large employers.

201603290916

It shows that small employers (25 or fewer employees) and large employers (26 or more employees) will pay at a different rate.  Beginning in 2017, large employers will increase to $10.50 per hour.  Smaller employers will not increase until 2018.

Small employers will continue to be one  year behind the large employers until all employees are covered at $15 per hour by 2023.  The increase starts like this…

Large Employer                    Small Employer

2017 – $10.50                          NO Raise

2018- $11.00                           $10.50

2019 – $12.00                          $11.00

2020 – $13.00                         $12.00

2021 – $14.00                        $13.00

2022 – $15.00                        $14.00

2023……………………………..$15.00 + yearly cost of living increases set each year so you don’t have much time to set new prices to adjust for the unknown increase each year.

This could all be changed before it is signed into law, but this is the proposal as of yesterday.  Also, there is a component that would tie the increases after this to inflation rates and also a “hold” feature if the economy goes down, but considering how the State lies about the real debt and economic problems (they still claim they are a employer friendly state), I don’t hold out much hope for a “hold” being used.  It is, after all, in the State’s interest to increase pay so they can increase the amount of taxes collected from everyone.  There is no incentive to lower the amount to be taxed.

Stay tuned……..

CALIFORNIA TO RAISE MINIMUM WAGE YEARLY TO $15 PER HOUR AND BEYOND……..

Governor Brown, today, will be announcing an agreement reached between the State Legislature and 2 major Unions in California regarding minimum wage.  The unions had registered 2 differing minimum wage initiatives and got them on the California ballot, thus going around the State Government to let the people vote on the idea.

According to news reports, the negotiated deal would boost California’s statewide minimum wage from $10 an hour to $10.50 on Jan. 1, 2017, with a 50-cent increase in 2018 and then $1-per-year increases through 2022. Businesses with fewer than 25 employees would have an extra year to comply, delaying their workers receiving a $15 hourly wage until 2023.

Future statewide minimum wage increases would be linked to inflation, but a governor would have the power to temporarily block some of the initial increases in the event of an economic downturn.

While we have often written here that we oppose minimum wage increases without acknowledging the other “hidden” costs such as large increases in Worker’s Comp costs, this may be the better of the choices available.  The other initiatives on the ballot would have raised the minimum rate more rapidly so the next 2 years we only get a .50 raise each of the first 2 years.

Of course, by 2022, $15 will not raise anyone out of “poverty” since the line will rise as well, so by then the new chant may be $20 per hour.  And so it goes…..

Its backers are hopeful that the final agreement will allow them to formally withdraw that initiative in a few weeks.

“We want to look at the details first,” said Steve Trossman of Service Employees International-United Healthcare Workers West.

Sources say the Legislature could vote on the wage compromise as soon as the end of next week by amending an existing bill on hold since 2015.

It is of note that NO BUSINESS OWNERS OR ORGANIZATIONS WERE INCLUDED IN ANY OF THESE DISCUSSIONS.  So much for open and transparent government!!

We will continue to monitor this law as it is rewritten and passes through the Legislature to the Governor’s desk.  Then we have to hope the initiatives are pulled from the ballot as well.  Stay tuned……

UFW HANDING OUT FALSE WAGE INFORMATION

 

 

Due to the recent signing of AB1513 there are a lot of people very nervous about Piece Rate pay and the new rules.  Please not the article below and then I will add more information below the article.  Also, as a reminder, Minimum wage goes to $10 per hour beginning January 1, 2016 in California.

UFW Distributes Minimum Wage and Piece-Rate Leaflet

Article Courtesy of: Rob Roy, President and Counsel, Ventura County Agricultural Association

Please find a leaflet that is being left on employee’s vehicles at worksites or along public roads by representatives of the United Farm Workers of America, AFL-CIO (UFW).

The leaflet seeks to inform agricultural employees as to whether they have heard about the “new wage law.”  They also claim that “thanks to the UFW, we have a new law that protects wages for farm workers that work by piece rate.”

The leaflet goes on to say that effective January 1, 2016, it is required that each employee is paid for their non-productive time (e.g., travel time between fields, training, exercises, etc.) based upon the minimum wage.  It also states that it is required that your employer allow you to take paid rest periods even though you work by piece rate based upon the average hourly rate earned.

Before December 15, 2016, the leaflet requests that if your employer has not given you retroactive pay, you should demand it for the last four years the employer failed to pay.  It goes on to state that you could be eligible for $8 more per day, up to $48 per week.

Lastly, the leaflet asks employees to remember not to sign documents that waive their right to this money.  This last reference is to retroactive release agreements between employers and employees to cover retroactive wages not paid such as non-productive time, rest or heat recovery periods or overtime.

There are several misstatements in this leaflet.  For example: (1) The UFW was not a party to the negotiation process; (2) Workers cannot demand unpaid wages beyond three years unless they are part of a class action lawsuit with a cause of action for restitution under the California Business and Professions Code; (3) There is no law that currently requires an employer to pay retroactive non-productive time and rest periods.  However, AB 1513, which becomes effective on January 1, 2016, permits employers to voluntarily make such payments to avoid potential class action lawsuits.

It should be noted that these leaflets may be passed out with Notices of Intent to Take Access by UFW organizers to your workplace.  If the UFW files a valid Notice of Intent to Take Access and files it with the ALRB, they will be permitted to take access to your business operations during three specified periods in the workday.  During such periods, they may be able to distribute such leaflets and speak with your employees concerning its content.

Do not attempt to restrain UFW representatives in passing out leaflets to your employees during lawful access.  Also, do not question your employees about what the UFW representatives discussed during the access periods.

If UFW organizers are accessing private property to put the leaflets on employee vehicles, you may intercede and inform the organizers that they are on private property, they are trespassing, and ask them to remove the leaflets.  To enforce your demand, you should take a photo of the individual placing the leaflet, as well as his/her car and license plate.

If they persist in not leaving your private property, contact the local police or sheriff’s office.

_________________________________________________________________________________________________________

AB 1513 was written to address the issue of unpaid rest periods, which, by law, should be paid.  Here is the problem….when an employee is working by piece rate, they are not paid when they are “resting” so the court said the employer must establish an hourly rate to pay the employee when they are not picking fruit or whatever the job is.  You cannot establish just a minimum wage for this time because it is not an incentive to take a rest break for less than you are making when you work.  So, they created a formula that involves taking the gross amount paid for a week, divided by the hours worked minus the 10 minute breaks and meal periods time.  That gives you the hourly rate when they are working.  This is the hourly rate you use to pay the rest breaks on a separate line on their pay stub.  We strongly suggest that you meet with your attorney and develop a plan for paying any employees who fall into this category.

There is also a ‘safe-harbor” time set up to pay back pay if you owe it, without incurring penalties.  This could save you thousands of dollars and again, it is worth a discussion with a good labor attorney to protect your rights.

You may also contact HR Mobile Services, Inc. for a general discussion of this issue before you speak to your attorney.  Just give us a call or email.

REST PERIOD BILL ON GOVERNOR’S DESK – AB 1513

SEE UPDATED INFORMATION DATED 1/24/2017

News came down yesterday that there has been negotiations going on between AG attorneys and the State regarding rest periods and employees who are paid by piece-rate, or truckers by the load. As we discussed before, you have to establish a pay rate for when an employee is supposed to take a paid rest break even if they are paid by the load. So the good news is there is some recognition of the problem and a partial solution is headed to the Governor’s desk, but it is several pages and I have not had a chance to digest it all yet. It is called AB 1513 (March 5, 2015). It actually is also combined with changes to Worker’s Compensation where you may also have a problem establishing the pay rate for people when they are injured and cannot work. How do you figure the rate of Disability compensation for piece rate or commission sales employees.

 

There is a lot of complicated language in the 7 page bill, but a couple of things I do see, includes a provision that you may pay employees for non-productive time at a rate of at least the minimum wage or an average of the money an employee earns in a work week divided by the number of hours worked, minus any time spent in non-productive time. It does say that you will need to have a better system for documenting non-productive and rest period time if you are paying that separately from an hourly worker. It will require that you show the amount of rest or cool-down time you are paying for on a separate line on the paycheck stub.

 

You can read more here: https://asmdc.org/members/a37/news-room/press-releases/piece-rate-worker-compensation-bill-to-governor-s-desk

 

As I said, I do not have any big answers right now and there is no guarantee it will be signed (though it is very likely).  Once it takes effect, we will have a little more clarity and I will be able to enlist the help of attorney’s.  Still, I thought it was important to bring to your attention.

Explaining California Paid Family Leave and the new California Family Rights Act

California has 2 plans to help employees when they have a family emergency, or the birth of a new baby.  For years, California has had the Paid Family Leave (PFL) Act which applies to all employees and employers in California.  It is paid out of a fund that is deducted from employee paychecks along with unemployment and State Disability.  In fact, the employee goes to the EDD to file for PFL.  It provides about 60% of normal wages for the employee for up to 6 weeks away from work while they bond with a new baby or care for a family member.

California also has the CPFL which mirrors the Federal FMLA that you may have heard about.  This applies to businesses with 50 + employees.  Employers were having a problem following California law at the same time as meeting Federal FMLA standards.  So, we now have an updated California Family Rights Act which helps bridge the gap for employers and employees in this program.

ONE VERY IMPORTANT THING TO KNOW……

If you provide health care for your employees, you must continue the coverage for the length of the leave up to 12 weeks.  So, if you have a stated policy that says any leave longer than 2 months will be turned over to COBRA benefits….that will not apply in this case.

Below is the CFLA from the Cal.gov website:

 

California Family Rights Act (CFRA)

 

The California Family Rights Act (CFRA) (Gov. Code, § 12945.2) was established to ensure secure leave rights for the following:

Birth of a child for purposes of bonding

Placement of a child in the employee’s family for adoption or foster care

For the serious health condition of the employee’s child, parent or spouse

For the employee’s own serious health condition

Benefits

An employer is not required to pay an employee during a CFRA leave, except when an eligible employee elects, or the employer requires, the employee to use any accrued vacation time or other accumulated paid leave other than accrued sick leave.

However, if CFRA leave is for the employee’s own serious health condition, the employee may elect or the employer may require the employee to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave. Additionally, the employee may elect to use accrued sick leave for any other reason mutually agreed to by the employer.

An employer must continue health care coverage for employees during their CFRA leave

If the employer provides health benefits under any group health plan, the employer has an obligation to continue providing such benefits during an employee’s CFRA leave. This obligation commences on the date leave first begins. The obligation continues for the duration of the leave(s), up to a maximum of 12 work weeks in a 12-month period.

An employer must continue other benefits during an employee’s CFRA leave

During the period of CFRA leave, the employee is entitled to accrual of seniority and to participate in employee benefit plans, including life, short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other leave granted by the employer for any reason other than CFRA leave.

Eligibility Requirements

CFRA leave

An employee may take an unpaid leave for the birth of a child for purposes of bonding, for placement of a child in the employee’s family for adoption or foster care, for the serious health condition of the employee’s child, parent, or spouse, and for the employee’s own serious health condition.

Health condition

Serious health condition means illness, injury (including on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent or spouse of the employee that involves either:

In-patient care (i.e., an overnight stay) in a hospital, hospice, or residential health care facility

Continuing treatment or supervision by a health care provider

Employers covered under CFRA

Employers subject to CFRA are those who do business in California and employ 50 or more part-time or full-time employees, including non-profit religious organizations. Covered employers also include the State of California and any of its political and civil subdivisions, and cities and counties, regardless of the number of employees.

Requirements employee must satisfy to be eligible to take a CFRA leave

To be eligible for CFRA leave, an employee must be either a full-time or part-time employee working in California, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period before the date the leave begins, and work at a location in which the employer has at least 50 employees within 75 miles radius of the employee’s work site.

Leave Requirements

The maximum CFRA leave entitlement

Leave under the California Family Rights Act (CFRA) may total up to 12 workweeks in a 12-month period. It does not need to be taken in one continuous period of time.

How the 12-month period is calculated

An employer may choose how to compute the 12-month period in which the 12 workweeks of leave entitlement occurs, using any of the four calculation methods listed below. An employer must apply the chosen method consistently and uniformly to all employees.

The calendar year

Any fixed “leave year” of 12 months, such as a fiscal year, a year required by State law, or a year starting on an employee’s anniversary date

The 12-month period measured from the date an employee’s first CFRA leave begins

A rolling 12-month period measured backward from the date an employee uses any leave

The CFRA leave may be added onto pregnancy disability leave

At the end of an employee’s period(s) of pregnancy disability leave, a CFRA-eligible employee may request a CFRA leave of up to 12 workweeks for reason of birth of her child if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition nor is there a requirement that the employee no longer be disabled by her pregnancy, childbirth, or related medical condition before taking CFRA leave for reason of birth of her child.

The minimum duration for a CFRA leave taken for the birth, adoption, or fostercare placement of a child

Basic minimum duration of a CFRA leave is two weeks when the leave is taken for the birth, adoption, or fostercare placement of a child. However, an employer shall grant a request for a CFRA leave of less than two weeks duration on any two occasions. In addition, leave taken for the birth, adoption, or fostercare placement of a child must be completed within one year of the qualifying event. Where CFRA leave is taken for the serious health condition of a parent, child, or spouse or for the serious health condition of the employee, leave may be taken intermittently or on a reduced-work schedule when medically necessary, as determined by the health care provider of the person with the serious health condition. However, an employer may limit leave increments to the shortest period of time the employer’s payroll system uses to account for absences.

There are limitations to the CFRA leave entitlement

If both parents are eligible for CFRA leave but are employed by the same employer, that employer may limit leave for the birth, adoption, or foster-care placement of their child to 12 workweeks in a 12-month period between the two parents. No other limitations restrict these parents from taking a CFRA leave for other qualifying reasons.

Notification

An employee must give advance notice if he/she wants to take a CFRA leave

An employee shall provide at least verbal notice sufficient to make the employer aware the employee needs CFRA qualifying leave. The notice shall state the reason for the leave and its anticipated timing and duration. An employer may require 30 days advance notice before CFRA leave is to begin if the need for the leave is foreseeable. If 30 days is not feasible (e.g., not knowing when leave will be required to begin, a change in circumstances, or a medical emergency), notice must be give as soon as feasible. Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as CFRA leave. In addition, the employer shall respond to a leave request as soon as possible but no later than ten calendar days after receiving the request.

An employer must inform employees of notice requirements

An employer shall provide notice to his/her employees of the right to request a CFRA leave and shall post the notice in a conspicuous place or places where employees tend to congregate. If the employer publishes a handbook describing other kinds of personal or disability leaves available to its employees, the employer shall include a description of CFRA leave in its next edition. The employer may include both pregnancy disability leave and CFRA leave requirements in a single notice.

Reinstatement

An employer must reinstate the employee at the end of his/her CFRA leave

Upon granting an employee a CFRA leave, the employer must guarantee reinstatement to the same or comparable position and provide the guarantee in writing upon the request of the employee. Employment in a comparable position means employment in a position that is virtually identical to the employee’s original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, skill, effort, and authority, must be performed at the same or geographically proximate work site, and ordinarily means the same shift or same or equivalent work schedule.

Reasons why an employer could deny reinstatement to an employee on CFRA leave

An employer may deny reinstatement to an employee if his/her position ceased to exist, such as in a lay-off. An employer may also deny reinstatement if the employee taking the leave is a key employee (salaried and among the highest paid 10 percent) and the denial of reinstatement is necessary to prevent substantial and grievous economic injury to the operations of the employer. However, the employer must notify the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary as well as give the employee a reasonable opportunity to return to work.

 

This is from the Ca.gov site for fair employment and housing regarding CFRA

UFW IS SANCTIONED WATCHDOG FOR CAL\OSHA

An settlement was reached between the families of 2 farmworkers who have had heat-related deaths over the past couple of years.  The UFW was also engaged in suing the State of California for not aggressively pursuing violators of the heat-illness regulations.

Since those deaths, Cal\OSHA has raised the standards again as we saw with this year’s roll-out of the program in May.  However, that was not enough.  So, in reaching a resolution to the lawsuits, Cal\OSHA has agreed to sanction the UFW as an official Watchdog.  Also, they have agreed to aggressively increase the inspection and overview of agriculture workers in the State over the next few months.

What this means to every farm and ranch owner is that  you better go back and review your training and if you are AT ANY POINT not in compliance, you should fix it now or face a real possibility of stiff fines and further inspections.  It may also be time to watch your neighbors as well.  When they are not in compliance, that draws attention to all locations around them.  With UFW on board, they are just looking for a good reason to get onto your property and organize your workers.  With the new rules regarding organizing meetings set down by the NLRB and our generous State officials, it could be a very long and difficult Summer.

UPDATE

The California Farm Labor Contractor’s Association sent out the following statement to it’s members:

Beware of Strangers – Control Access to Fields!

Dear CFLCA Members and Others:

Most of you are aware that Cal OSHA recently settled an old lawsuit filed by UFW charging inadequate enforcement of the Heat Illness Prevention standard. That settlement included a memorandum of understanding in which Cal OSHA is required to investigate any reports by UFW staff of non-compliance found among agricultural employers. UFW is now sending representatives to fields under the guise of educational outreach to workers on heat illness prevention. They have been active in the Fresno region. Employers are advised that UFW representatives have NO RIGHT to enter your fields, unless they have filed their Notice of Intent and if access has been granted by the ALRB. The grower would have to receive a copy of the notice. Without such notice, UFW representatives should be asked to immediately leave your premises. Click here for a copy of the questionnaire UFW reps are asking employees to complete. It seeks information regarding employer compliance with the standard. It might be used as evidence against the employer for a violation of the rules. Please train all workers to tell any visitors they must wait to talk to the supervisor. And train all supervisors to check all visitors for identification. For Cal OSHA and other enforcement agencies, the supervisor should advise the government agent to wait while the supervisor calls the designated person (safety/HR/Employer) authorized to allow visitor access to the field. All non-authorized visitors, including UFW and CRLA representatives should be respectfully directed to leave the private property.

More comments from HR Mobile Services, Inc.:

Your best defense is good compliance.  Make sure you have plenty of COOL water available, with disposable cups if you use Igloos.  Make sure you have someone refilling the buckets regularly and that they have ice to keep it cool. You must have adequate shade and seating for your employees who are outside and under HIGH HEAT situations.  You must institute the “buddy system”, your supervisors need to monitor all employees hourly, and more frequent breaks are needed.  Employees are allowed cool-down periods also.  New employees must be monitored and oriented to the high heat for their first 2 weeks at work, to allow them to adapt.

If you have any questions, you may contact your loss prevention specialist at HR Mobile Services, Inc.

ARBITRATION AGREEMENTS MAY BE ON THE WAY OUT IN CALIFORNIA

AB465 just passed the Senate Labor and Industrial Relations Committee on a 4-1 vote and is on to the Senate Judiciary Committee next.  This bill precludes mandatory employment arbitration agreements, which have already been authorized by the California and US Supreme Courts.

Although this regulation, if passed, could ultimately be overturned by the courts, it will take many years to work it’s way through the system.   Meanwhile, employers and employees will have to pay for lengthy lawyer and court proceedings with no resolution in sight.  The only people making money on this are the lawyers of California and they are, as usual, silent on the issue.

If you have or are thinking of adding a arbitration agreement to your employment package, you may want to reconsider and instead impose good payroll, time recording and proper training as a low cost alternative to this expensive process.  If you have the correct tools in place, the chances of trouble diminishes considerably.  Your loss prevention specialist from HR Mobile Services, Inc. can help you stay in compliance.

IN ALL CASES, if you are a full service customer of ours, and OSHA shows up on your property, ask them to wait off the property for one hour and call our office immediately so we can get out there and represent you.

Attention ALL States: California is at it Again – Double Holiday Pay!!!!!

Hot on the heals of establishing a mandatory 3 days of sick pay for all employees in the state, California is now considering Double Pay for certain holidays.  Please read the analysis below from the California Chamber of Commerce Alert Bulletin regarding this legislation (more commentary at the end):

_________________________________________________________________________________________________________________________

Assembly Committee Passes Double Holiday Pay Bill

March 20, 2015 Jennifer Barrera

The Assembly Labor and Employment Committee this week approved a California Chamber of Commerce-opposed bill requiring double pay for work on certain days.

During testimony to the committee on AB 67 (Gonzalez; D-San Diego) CalChamber Policy Advocate Jennifer Barrera explained that the bill increases costs, creates a competitive disadvantage, and potentially violates employers’ constitutional rights by forcing employers to recognize certain days as “family holidays” and compensate all employees with double pay for work performed on those days.

Violates Religious Freedom

AB 67 provides that employers shall compensate an employee at no less than twice the employee’s regular rate of pay on a “family holiday,” defined as “December 25 of each year” and “the fourth Thursday of November of each year,” commonly referred to as Christmas and Thanksgiving.

While the recognition of these holidays may seem benign to some persons, employers who have non-Christian-based beliefs or are immigrants to America might not see the recognition the same way. The Legislature should not mandate certain days as more significant based upon religious or cultural beliefs that are not maintained by all.

Further questions about the First Amendment implications of AB 67 were raised during the hearing and directed at Barrera, but she was stopped from answering them by the committee chair, who cited procedural precedent issues.

Unavoidable Increase in Costs

Although some employers may close their place of business on a “family holiday” to accommodate their employees, others do not realistically have that option for their business models.

Competitive Disadvantage

AB 67 would also unilaterally increase the cost of doing business only for those employers who have a physical presence in California, thereby automatically placing them at a competitive disadvantage with online companies and out-of-state businesses that would not be subject to this cost.

Recently, the Legislature tried to even the playing field between online retailers and brick-and-mortar stores in the sales-tax arena. AB 67 would further distort this playing field by increasing the cost of doing business for local employers, as opposed to online retailers, who would not have to comply.

Regular Rate of Pay/PAGA Enforcement

Determining the regular rate of pay of many employees requires a detailed calculation that goes beyond just an employee’s hourly pay. As defined by the Division of Labor Standards Enforcement, the “regular rate of pay includes a number of different kinds of remuneration, for example hourly earnings, salary, piecework earnings, commissions, certain bonuses, and the value of meals and lodging.” While this calculation is performed for overtime purposes, it is subject to good faith errors as to what types of “remuneration” should be included in the calculation.

Due to being included in Section 511.5 of the Labor Code, the provisions of AB 67 are subject to the Private Attorneys General Act (PAGA) (Labor Code Section 2699 et seq.). Therefore, errors in calculating the regular rate of pay or failures to comply with other provisions of this mandate would add another threat of litigation against California employers.

Key Vote

AB 67 passed the Assembly Labor and Employment Committee 5-2.

 

Ayes: Chu (D-San Jose), Hernández (D-West Covina), Low (D-Campbell), McCarty (D-Sacramento), Thurmond (D-Richmond.

 

Noes: Harper (R-Huntington Beach), Patterson (R-Fresno).

 

The bill now heads to the Assembly Appropriations Committee; no hearing date has been set.

_________________________________________________________________________________________________________________________

This bill puts a direct strain on any employer who works with living beings, animal or human.  Zoos, dairies, pet stores, aviaries, animal conservatories, laboratories and research facilities, all would fall under this.  Not mentioned are the thousands of employees who work with the elderly and infirmed.  Now, many places fully staff on the holidays so that people who may not have family or a place to celebrate a holiday, have a great day.  Now they will cut back to a bare minimum of workers and hours and this will also reduce the enjoyment of holidays for those people.

This is a well intentioned bill but not a well thought out bill.  Notice that Sick Pay, Paid leave, and now Holiday pay do not affect the State employees because they can just close on those days or they already have a better package of specialties, or, what the heck, it is just tax payer money so there are no real consequences to State agencies.   Hmmmm……..

One positive, there is almost no reason to join a union any more.  They are already in the California Legislature.

We ask that you contact your representatives and express your opinion about this legislation. 

 

NEW CHANGES TO THE HEAT STRESS REQUIREMENTS IN CALIFORNIA

Heat Illness Changes Approved – It’s Training Time

Many of our customers have already had their Heat Stress Prevention Training for 2015.  However, these new regulations will need to be addressed by May 1.  We in California know that this is ridiculous because we already had temperatures near 80 degrees in early February in several areas.  Definitely by March we should have a few days over 80 and theoretically we would be implementing this new regulation before retraining can take place.  SO, while you wait for retraining, below you will find the new requirements and you can prepare for the new season.  Be proactive.  We can all complain, and we should, but at the end of the day, it is still the law and you must comply until they come to their senses.

Over the objections of employer groups and applause from labor representatives, the Cal/OSH Standards Board approved major revisions to the state’s heat illness prevention standard. Executive Officer Marley Hart said the board would request an early effective date for the revisions from the Office of Administrative Law – May 1 instead of July 1.


That means that employers must revise their heat illness programs and train employees on an accelerated schedule, with barely two months before the changes become enforceable. Under normal circumstances, the changes would trigger on July 1, as OAL sets effective dates quarterly and April 1 is too early. But Cal/OSHA wants the changes in place for the growing season.

The revisions, which the Division of Occupational Safety and Health say are necessary based on the Division’s enforcement experience, are aimed at specifying the requirements for provision of water and shade. It also ramps up requirements under the high-heat provisions and adds new language on emergency response procedures, acclimation and training. Specifically:

  • Water must be “fresh, pure, suitably cool” and located as close as practicable to where employees are working, with exceptions when employers can demonstrate infeasibility.
  • Shade must be present at 80 degrees, instead of the current 85, and accommodate all employees on recovery or rest periods, and those onsite taking meal periods.
  • Employees taking a “preventative cool-down rest” must be monitored for symptoms of heat illness, encouraged to remain in the shade and not ordered back to work until symptoms are gone. Employees with symptoms must be provided appropriate first aid or emergency response.
  • High-heat procedures (which will remain triggered at 95 degrees) shall ensure “effective” observation and monitoring, including a mandatory buddy system and regular (hourly) communication with employees working by themselves. During high heat, employees must be provided with a minimum 10-minute cool-down period every two hours.  Communication plan needs to be in your training plan materials and your IIPP.
  • Emergency response procedures include effective communication, response to signs and symptoms of heat illness and procedures for contacting emergency responders to help stricken workers.
  • Acclimation procedures including close observation of all employees during a heat wave – defined as at least 80 degrees. New employees must be closely observed for their first two weeks on the job. 

The board voted 5-1 to approve the changes, with management representative Bill Jackson casting an emphatic “no.” He commented, “My belief is that the Division made the decision that this is necessary, and by god, we’re going to do this. There isn’t an ounce of necessity” to it.

But chairman Dave Thomas, who last month stated publicly that he was opposed to the proposal as written, said he had changed his mind after re-reading the proposal and remembering his charge as board chair. “This is reasonable enough for me,” he said.

Employer representatives hammered the necessity argument, saying DOSH has refused to provide requested data to prove the changes are necessary. But labor reps said the continuing deaths and illnesses they believe are attributable to heat illness support the argument for change.