Hot Topics - East Ventura County EAC
STAY COOL CALIFORNIA
Within weeks our cool spring mornings will be a thing of the past and summer will be in full swing. Increased temperatures bring increased health risks for employees and Cal-OSHA continues to cite employers for failure to comply with heat illness regulations.
Employers should also be aware that as of January 1, 2011, it is easier for Cal-OSHA to establish a “serious violation” under Cal-OSHA’s penalty matrix. Prior to the amendment to California Labor Code section 6432, Cal-OSHA was required to show that there was a “substantial probability” that the employer’s safety violation could result in death or serious physical harm to its employees.
“Substantial probability” meant that Cal-OSHA had to show there was a likelihood of 51% or more that death or serious physical harm would result from the employer’s violation before the violation could be classified as “serious.” The new law substitutes the words “realistic possibility” for “substantial probability.” Although the phrase “realistic possibility” is not accompanied by a specific definition, this new phrase is intended to reduce Cal-OSHA’s burden to show that an employer engaged in a serious violation.
The amendment to section 6432 also expands the definition of “serious physical harm.” Relevant to heat illness citations, any in-patient hospitalization or impairment sufficient to cause a part of the body or function of an organ to be permanently or significantly reduced in efficiency now qualifies as “serious physical harm.”
However, Cal-OSHA inspectors are now required to issue a form to the employer outlining the alleged violations and soliciting information from the employer at least fifteen (15) days before the inspector issues a serious violation citation.
Inspectors are also required to make a reasonable attempt to consider the employer’s safety training, safety procedures, supervision, communication systems and other efforts that the employer had engaged in prior to the alleged violation. Cal-OSHA is supposed to consider what a reasonable and responsible employer would have done in the same situation before it issues a “serious violation” citation.
The combination of the lowered standard for serious violations with Cal-OSHA’s focus on heat illness prevention means that employers must be even more vigilant in addressing heat illness issues or risk hefty fines.
In particular, employers should be aware of the following requirements regarding heat illness:
- Employers must provide one quart of water per employee per hour per shift. Water must be cool and the employer must provide cups and a place for the employee to dispose of the cups.
- Employers must provide shade to employees. According to the applicable regulation, shade is NOT a car without air conditioning. Shade is mandatory when temperatures are predicted to be 85 degrees or more but may also be required when other risk factors are present like an employee who is acclimatizing to working outside or humidity. Shade should be available within a 2 ½ minute walk of an employee’s location.
- Employers must accommodate additional rest breaks to avoid heat illness. These additional breaks must be no less than five minutes long and are in addition to an employee’s normal rest and meal breaks.
- Employers must acclimatize employees to the heat.
- Employers must have a system in place to monitor the weather, check the availability of water and shade for employees and to respond quickly if there is a heat wave.
- Employers must train their employees and supervisors to handle heat illness issues.
Employers who revise their IIPPs to include a heat illness policy, train their employees and supervisors on heat illness avoidance policies and engage in active monitoring of working environments will be in the best position to not only avoid heat illness in their employees but will be best situated to avoid problems with Cal-OSHA. Finally, although the regulations specifically reference employees who work outdoors, Cal-OSHA recently released a policy flier relating to employees who work inside.
4-10s? 10-4: IS YOUR ALTERNATIVE WORKWEEK SCHEDULE COMPLIANT?
Whether you are thinking about instituting an alternative workweek schedule (AWS) or already have one in place, ensuring compliance with the requirements of your applicable Wage Order is paramount. Failure to do so can invalidate the AWS and force the employer to pay overtime and penalties that could bankrupt the company.
An AWS can be a win/win for employers and employees. Employers utilizing an AWS may benefit from lower operating costs, increased employee productivity, reductions in absenteeism and tardiness, and diminished overtime expenses. Employees working an AWS, on the other hand, often enjoy having an additional day off to attend to personal and family matters and may benefit from decreased travel and child care expenses associated with working a normal five day workweek.
Once an AWS has been adopted by employees, a variety of issues must be addressed to ensure that the AWS election was valid. For example:
- Was the proposed AWS presented to affected employees in writing prior to the secret ballot vote?
- Was a meeting held at least 14 days prior to the vote to discuss the effects of the AWS?
- Was the AWS adopted by at least two-thirds of the affected employees in the work unit?
- Were the results of the secret ballot election reported to the Division of Labor Statistics and Research within 30 days after the results are final?
The Wage Orders set forth additional requirements for the adoption of a valid AWS.
COBRA SUBSIDY EXTENDED YET AGAIN
Most employers are aware that they are currently responsible for paying 65% of the medical insurance premium for employees who are terminated between September 1, 2008 and February 28, 2010. That subsidy was extended another month through March 31, 2010 under federal law (H.R. 4691). Remember also that the subsidy may continue for up to 15 months.
WHAT HAPPENS IN VEGAS DOES NOT ALWAYS STAY IN VEGAS
The bankruptcy and closure of the Castaways Hotel and Casino in Nevada offers a cautionary tale about when corporate owners and managers have personal liability for unpaid wages under the federal Fair Labor Standards Act (FLSA), which applies to California employers. Unexpected wage claims may arise against owners even years after a business is gone.
Former Castaways Hotel employees sued the casino’s CEO, CFO and senior human resources executive to recover unpaid holiday and vacation time earned prior to the hotel’s bankruptcy. The executives argued that the hotel, as the plaintiffs’ “employer,” was solely responsible for the unpaid wages. The 9th Circuit Court of Appeals disagreed and ruled that individual corporate managers who exercise control over the employment relationship are personally liable under the FLSA for unpaid wages and overtime, even if the corporate employer is insolvent and out of business.
On this point, the FLSA differs substantially from state law, under which managers and owners are rarely held personally responsible for the company’s wage and hour violations. If you think your business is too small to be covered, think again – the FLSA applies to businesses that gross $500,000 or more annually and to every employee in any business whose work is part of “interstate commerce.” This broad definition covers many employees across a spectrum of industries - a phone call or email is sufficient for “interstate commerce.”
To minimize personal liability in financially-troubled circumstances, owners and executives should make payroll a number one priority. Further, management should consider lay offs before employees earn wages the company cannot afford. Finally, owners and managers should keep detailed records of hours worked by and wages paid to employees, even if the business closes. A well-documented and orderly winding down may thwart wage and hour liability and avoid adding insult to injury.