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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.

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.

NEW CAL\OSHA HEAT ILLNESS PREVENTION RULES 3/23/2015

Here is a link to the new rules regarding Heat Illness as amended by Cal|OSHA: Copy and paste in a new window…..

https://www.dir.ca.gov/dosh/documents/Heat-Illness-Prevention-Regulation-Amendments.pdf

As you read through it, you will see 3 columns.  The first is existing language, the second is the amended language and the third is the guidance on the new requirements.  Please take the time to read through these regulations and understand them thoroughly.  OSHA will be out investigating and handing out large fines.  They will also be releasing this information to the media and local media loves to let people know when an employer is caught.  If you don’t want those problems, it is best to adjust to these rules NOW.  We are expecting over 80 temperatures next week and on-going for the next several months.

 

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.

 

NEW HEAT BREAK RULES SIGNED INTO LAW

Governor Brown of California signed SB435 into law effective next year.  It states that workers exposed to extreme heat must be granted cool-down periods during the work day.  If the employer does not provide such a cool-down period, they must pay the employee for an additional hour of work for each day the rest period is not provided. 

We are still awaiting the regulations surrounding this law.  Questions that arise include the definition of “extreme heat” and how the employer is to document that the employees took a cool-down rest period.

HR Mobile services will continue to monitor this new law and provide advise to our customers on how to best protect themselves.  We invite your questions and comments on this legislation.