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California law requires most employers who have hadmore than 10 employeeson payroll during the last calendar year to keepillness and injury recordsfor each worksite. Covered employers must also conspicuously post at each worksite an annual accident and injury summary for the prior calendar year from February 1 to April 30.
California law requires most employers who have had more than 10 employees on payroll during the last calendar year to keep illness and injury records for each worksite. Covered employers must also conspicuously post at each worksite an annual accident and injury summary for the prior calendar year from February 1 to April 30.
California’s Code of Regulations lists possible exemptions for qualified establishments in the retail, service, finance, insurance or real estate industries.
The California Occupational Safety and Health Administration (“Cal/OSHA”) website contains an overview of what is required, i.e., what forms to use, what injuries/illnesses and other information an employer must record, when employers should omit an employee’s name because of sensitive information or situation, and so on. The site also offers an interactive educational module, FAQs, and other helpful information from these pages.
The website also has the required forms for the annual record keeping (Cal/OSHA 300) and summary reports (Cal/OSHA 300A).
Regardless of whether a company is required to keep and post records of illnesses and injuries, it still is required to report to Cal/OSHA any deaths or serious injuries or illnesses.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
March 8, 2019
Ms. Valerie Chavez now our firm’s director of promotion and marketing.
Ms. Valerie Chavez now our firm’s director of promotion and marketing.
Valerie comes to us with a background in service industry management, with experience and appreciation for client communications and security.
She has pursued study in justice administration at Pasadena City College and is looking to continue her education within the legal profession.
We welcome Valerie to the firm and look forward to working with her!
March 7, 2019
Geneva White has joined the firm as a technical administrative assistant.
Geneva White has joined the firm as a technical administrative assistant.
Geneva comes to us with a background in public relations with former positions in commercial marketing design as well as full-time humanitarian non-profit work.
She has studied at New York’s The New School for Social Research and Parsons School for Design. Geneva is also a graduate of the Delphian School in Oregon, a leading competency-based institution Tim helped establish at the beginning of his career.
We welcome Geneva and look forward to working with her!
March 3, 2019
In another rebuke to the construction industry, theLabor Commissioner has cited RDV Construction, a Los Angeles County subcontractor, $12 million for wage theft violations involving more than a thousand workers. The Carpenters Contractors Cooperation Committee, a non-profit labor-management organization, assisted in bringing those violations to light.
In another rebuke to the construction industry, the Labor Commissioner has cited RDV Construction, a Los Angeles County subcontractor, $12 million for wage theft violations involving more than a thousand workers. The Carpenters Contractors Cooperation Committee, a non-profit labor-management organization, assisted in bringing those violations to light.
RDV provided crews on 35 mixed-use, apartment, and hotel projects around the county, but over 21 months, paid workers with checks that did not clear the bank, and then failed to make good on all wages owed the workers, withholding of 10-25 percent of the wages owed. The crews typically also worked nine hours without correct rest breaks or payment of overtime premiums.
The nearly $12 million in citations included:
Each of these violations affected from 844 to 1,125 workers.
Labor Commissioner Julie Su stated: “Dodging labor laws and stealing wages hurts workers and creates unfair conditions for law-abiding employers. After a hard day’s work, the last thing a construction worker should have to face is a paycheck that bounces. Stealing earned wages from workers’ pockets is illegal in California and this case shows that employers who steal from their workers will end up paying for it in the end.”
It is serious enough for the company to be cited $12 million. But Labor Code sections 558 and 558.1 also permit persons working on behalf of an employer who violate the wage and hour laws to be cited personally for those violations. Pursuant to these laws, the CEO and two project managers are also personally liable under these citations.
It seems almost too obvious to say that employers must timely pay workers all wages they earn, including overtime, provide proper breaks, and provide wage stubs that contain all of the required information. See Correct Stubs Save Bucks
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For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
February 22, 2019
TheCalifornia Fair Employment and Housing Act(FEHA) requires employers with five or more on payroll to engage in an“interactive process”with a worker requesting disability-related accommodation. The employer must have timely, good faith and ongoing discussions to explore if and how to reasonably accommodatethe physically or mentally disabled worker’s ability to perform theessential functionsof his or her job. Failure to do so can be a costly error.
The California Fair Employment and Housing Act (FEHA) requires employers with five or more on payroll to engage in an “interactive process” with a worker requesting disability-related accommodation. The employer must have timely, good faith and ongoing discussions to explore if and how to reasonably accommodate the physically or mentally disabled worker’s ability to perform the essential functions of his or her job. Failure to do so can be a costly error.
On January 8, 2019, the California Department of Fair Employment and Housing (DFEH) announced that it settled a reasonable accommodation case with California Coast Credit Union (Credit Union) for $30,000.
Complainant’s doctor ordered her to work a reduced schedule due to her disability, which Credit Union initially accommodated. However, Credit Union terminated her employment after she provided a new doctor’s note and requested an extension of the accommodation.
In response, the former employee filed a DFEH complaint for lost wages and emotional distress, alleging that Credit Union discriminated against and terminated her because of her disability.
DFEH Director Kevin Kish stated in the press release: “An employer’s duty to reasonably accommodate an employee with a disability does not necessarily expire at the conclusion of the time period listed on a doctor’s note. When an employee requests an extension of the accommodation period based on a new doctor’s note, the employer has a duty to continue the interactive process to determine if an extension would pose an undue hardship.”
In addition to the $30,000 settlement amount, Credit Union also agreed to update its company policies and train its supervisors and human resources personnel for three years.
Employers should always proceed with caution when responding to an employee’s request for disability accommodation. This includes properly engaging in an ongoing, thorough, fair and well-documented interactive process.
The employer is only justified in refusing to reasonably accommodate the disabled employee where accommodation choices would legitimately impose undue hardship. The undue hardship standard is difficult to satisfy and the employer should consult with competent and experienced legal counsel before making that determination.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
February 14, 2019
The federalE-Verify programprovides a way for employers to confirm that people they are hiring are eligible to work in the United States. Participation in E-Verify is discretionary for most employers, but mandatory for federal contractors and certain others, such as businesses instates requiring its use. California is not one of those states. An employer who opts to use the system must then use it for every new hire.
The federal E-Verify program provides a way for employers to confirm that people they are hiring are eligible to work in the United States. Participation in E-Verify is discretionary for most employers, but mandatory for federal contractors and certain others, such as businesses in states requiring its use. California is not one of those states. An employer who opts to use the system must then use it for every new hire.
During the recent federal government shutdown, E-Verify was not accessible. However, businesses do not get a “pass” on compliance for hires made during that period. While of course no one could report during the shutdown, everyone is now expected to catch up now that it is over.
Thus, any affected company is required by Monday, February 11, 2019 to create an E-Verify case for each person hired during the shutdown, using the hire date on the employee’s I-9 form. Each such case should be designated as “E-Verify Not Available” under “Other” in the drop-down menu.
If the information submitted by a participating employer for a new hire does not match government records, the response generated by the Department of Homeland Security (DHS) or Social Security Administration (SSA) is a “tentative non-confirmation” (TNC). The company then notifies the employee of the TNC. If the person informs the employer of a decision to contest the TNC, the company notifies SSA and provides that person a “referral date confirmation” (RDC) with a deadline for him or her to communicate with either DHS or SSA to begin resolving the discrepancy.
For any TNCs that were pending but could not be addressed during the shutdown, E-Verify is giving affected employees who notify their employers by February 11 of their intent to contest the TNCs an extra 10 federal business days to do so. Instructions on an employer’s obligations to issue a revised RDC on receiving such notification are on the E-Verify website.
For those using E-Verify, the administrators warn of longer wait times because of backlogged traffic.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
February 8, 2019
In addition to the safeguards we have recently reported, the California legislature has enacted other significant “Me-Too”-inspired legislation effective January 1, 2019 to further prevent workplace harassment and encourage those targeted to prevail on their claims:
In addition to the safeguards we have recently reported, the California legislature has enacted other significant “Me-Too”-inspired legislation effective January 1, 2019 to further prevent workplace harassment and encourage those targeted to prevail on their claims:
Optional Bystander Intervention Training Authorized. Employers may, but are not required to, provide bystander intervention training and guidance to enable persons to recognize and take action when observing problematic behavior in the workplace such as sexual harassment or other inappropriate conduct. The training may include providing bystanders with the skills, confidence, and resources to intervene appropriately. Government Code 12950.2.
Settlement Confidentiality Limitations. Settlement agreements entered into on or after January 1, 2019 must not include any provision that prevents disclosure of factual information related to civil or administrative complaints of sexual assault, sexual harassment, retaliation or discrimination based on sex. However, the settlement amount may remain confidential and the claimant’s identity may be shielded from disclosure. Code of Civil Procedure 1001.
Prohibition of Attorney’s Fees and Costs. Employers who prevail in lawsuits shall not be entitled to recover their attorney’s fees and costs unless the court finds the employee’s action was frivolously brought or maintained. .
Legislative Declarations. The legislature has declared its support or disapproval of several key judicial rulings, declaring that: (i) the plaintiff does not need to prove his/her production declined as a result of the harassment; (ii) a single incident of harassment may suffice to support the existence of a hostile work environment; (iii) any discriminatory remark – even if made by a co-worker — may be relevant, circumstantial evidence of workplace discrimination; and (iv) harassment cases should typically be brought to trial. While none of these statements establish new law, such declarations may become legally enforceable by further legislative action. Government Code 12923.
As the various #MeToo laws make it more expensive and time-consuming to defend lawsuits and settle claims, it’s best to prevent problems from occurring or at least from escalating. Now is the time to update and implement employee handbooks, internal complaint procedures, and other legally-compliant personnel training, policies and procedures.
Please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin with any questions on these changes. Our office will continue to provide such California-mandated interactive anti-harassment, -discrimination, and -retaliation training, including on-site seminars for flat fees.
Contact officemgr@tbowleslaw.com for more information and to schedule your seminar.
See also:
Cindy Bamforth
January 31, 2019
Continuing to target restaurants and other industries under itsWage Theft Is a Crimeprogram, theDivision of Labor Standards Enforcement (DLSE)has takenaction against the Mango Gardens restaurant chain. In 2015 following a referral from Asian Americans Advancing Justice-Asian Law Caucus, the DLSE and Alameda County District Attorney’s Office (ACDA) began investigating Mango Gardens, with restaurants in Fremont, San Jose, and San Mateo.
Continuing to target restaurants and other industries under its Wage Theft Is a Crime program, the Division of Labor Standards Enforcement (DLSE) has taken action against the Mango Gardens restaurant chain. In 2015 following a referral from Asian Americans Advancing Justice-Asian Law Caucus, the DLSE and Alameda County District Attorney’s Office (ACDA) began investigating Mango Gardens, with restaurants in Fremont, San Jose, and San Mateo.
The investigation found that the restaurants had paid 56 workers in cash, deducting 15 percent of the amount paid under the guise of tax payments, while the employees worked more than 10 hours a day without receiving minimum wage, overtime, meal and rest breaks, or split shift premiums.
A DLSE hearing officer found the owners and operators personally liable for citations amounting to $2,115,187 for their responsibility in these violations. This amount includes all the unpaid wages and one hour of extra pay for each day with missed meal breaks and another hour for each day with missed rest breaks. It also doubles the unpaid minimum wage as “liquidated damages” and adds $365,541 in interest (10 percent/year from the dates the wages were due). Also included are waiting time penalties of full wages for up to 30 days after the employees left the company.
The hearing officers also found that when the owners got wind that some of their workers were planning to file claims, they engaged in major corporate shenanigans – dissolving existing corporations, creating new ones, and listing different people as management.
The ACDA has thus seized $1.7 million in assets from the owners and operators and is liquidating those to pay the workers, who will receive from $2,603 to $150,523 each.
If you are in the restaurant industry – or any other industry – and are not providing proper wages and breaks, it behooves you to clean up any such employment irregularities. It is advisable to obtain attorney assistance to ensure you know everything that is required and can transition into correct practices as smoothly as possible.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
January 16, 2019
The #MeToo movement has prompted the California Legislature to expand employer liability for harassment of employees and other specified persons effective January 1, 2019, making it far easier for workers to sue and bring their cases to trial.
The #MeToo movement has prompted the California Legislature to expand employer liability for harassment of employees and other specified persons effective January 1, 2019, making it far easier for workers to sue and bring their cases to trial.
Release and Waiver Agreements Prohibited: Except for certain negotiated settlement agreements that resolve an underlying claim filed in or with a court, arbitration, administrative agency, or through the employer’s internal complaint process, employers may not require employees — in exchange for a raise, bonus or as a condition of employment or continued employment — to sign a release of harassment, discrimination or retaliation claims, including a statement that the individual does not possess any such claim or injury against the employer. (Government Code 12964.5)
Restricted Non-Disparagement and Nondisclosure Agreements: Subject to the same exceptions described above, employers shall not require an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. (Government Code 12964.5)
Protected Right to Testify: No contract or settlement agreement entered into on or after January 1, 2019 may include a waiver of any party’s right to testify in response to a court order, subpoena, or formal written request in an administrative, legislative or judicial proceeding concerning the other party’s — or its agents or employees — alleged criminal conduct or alleged sexual harassment. (Civil Code 1670.11)
Expanded Employer Liability for Any Type of Harassment: If an employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action, that employer may now be held responsible for nonemployees’ (e.g., subcontractors, customers) acts with respect to any form of unlawful harassment, not just sexual harassment, of its employees, applicants, interns, volunteers, or independent contractors. (Government Code 12940)
Best practices:
Our updated 2019 model forms include employment applications, arbitration agreement, contract for at-will employment, paid sick leave policies, termination documents and more.
Contact our client service representative Loretta Gardea for pricing and order information at clientservices@tbowleslaw.com.
See also:
For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
January 7, 2019