Monthly Archives

December 2016

New Minimum Wage and Paid Sick Leave Laws for Washington Employers

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November 2016 was a dynamic month for laws relating to Washington State workers.  At the state level, Washington voters approved Initiative Measure No. 1433 (“the Law”), which provides incremental increases of the state minimum wage beginning January 1, 2017 and paid sick leave beginning January 1, 2018.  Washington was one of two states—the other being Arizona—to approve ballot measures providing for paid sick leave during the November general election.  Washington and Arizona join five other states—California, Connecticut, Massachusetts, Oregon and Vermont and numerous other localities including the Washington cities of Seattle, Tacoma and Spokane— who already require employers to provide employees paid sick leave.  Locally, Seattle voters also approved Initiative 124, which imposes new and significant health and safety, healthcare, and hiring requirements on the City’s hotel industry.1

Additionally, on November 14, 2016, the Spokane City Council approved amendments to the Spokane Earned Sick and Safe Leave Ordinance (“Ordinance”), which was initially passed by the City Council on January 11, 2016.  The Amendments fill gaps the original ordinance created and provide for an administrative enforcement system for receiving and resolving complaints.

In this article, we will discuss important developments regarding the new statewide Law and the amendments to the Spokane Ordinance.

Washington’s Minimum Wage Increases

For those Washington adult workers who are not otherwise exempt from the state’s minimum wage requirements, the Law implements the following incremental increases to the minimum wage:

  • $11.00 per hour beginning January 1, 2017
  • $11.50 per hour beginning January 1, 2018
  • $12.00 per hour beginning January 1, 2019
  • $13.50 per hour beginning January 1, 2020
  • Annual adjustment for inflation beginning January 1, 2021

The Law’s minimum wage increases apply to all employers, regardless of size.

The Law specifies that employers must pay all tips and gratuities to its employees, and they cannot be counted toward the minimum wage.  These requirements are not different than the law as it existed previously, but now they are codified in the Washington Minimum Wage Act.  The impact of these changes on mandatory tip pools, if any, is not clear.

The Law also states that employers must pay all automatic service charges (related to food, beverages, entertainment, and porterage) to its serving employees, unless the employer specifically discloses in an itemized receipt and on any menu the service charges that are not payable to the serving employee as defined in RCW 49.46.160.  Service charges paid to employees also cannot be counted toward the minimum wage.

The Law’s minimum wage requirements will not supersede any local law providing greater minimum wage rights than the Law requires, such as the Seattle, Tacoma, and SeaTac minimum wage ordinances.  The Law requires the Washington State Department of Labor and Industries to adopt and implement rules to carry out and enforce the provisions of the Law.

Washington’s Mandatory Paid Sick Leave

The Law’s paid sick leave requirements, which will be codified in Washington’s Minimum Wage Act, Chapter 49.46 of the Revised Code of Washington, will not supersede any local law providing greater sick leave rights than the Law requires.

Covered Employers and Employees

The Law’s requirement to provide paid sick leave applies to all employers, regardless of the size of the employer.

Because the Law will be codified within Washington’s existing Minimum Wage Act (the “Act”), it is possible that the current definition for covered employees under the Act will apply to the new paid sick leave requirements.  The Act’s definition of employee excludes several categories of workers such as white collar exempt workers and carriers subject to the Interstate Commerce Act.

Accrual, Carryover and Frontloading of Sick Leave

Employers must permit employees to accrue paid sick leave at a rate of one sick leave hour for every 40 hours worked.  Additionally, employees must be permitted to carry over at least 40 hours of unused, accrued leave to the next year.  Employers can satisfy the law’s accrual and carryover requirements by awarding sick leave hours in advance, provided that such frontloading meets or exceeds the Law’s requirements for accrual, use and carryover.

Paid Sick Leave Usage

Leave can be used for any of the following reasons:

  • The employee, or the employee’s family member is ill, injured, or is receiving medical care, treatment, diagnosis or preventative medical care;
  • Closure of the employee’s place of business and/or the employee’s child’s school or place of care due to order of a public official for any health-related reason;
  • Absences that qualify for leave under Washington’s Domestic Violence Leave Act, Chapter 49.76 RCW

An employee may use accrued leave on the 90th calendar day after the commencement of his or her employment.  An employer must permit employees to use their accrued leave in hourly increments.  For each hour of leave used, an employee must be paid the greater of the minimum hourly wage or his or her normal hourly compensation.

Paid Sick Leave Requests and Certification

Employers may require employees to give reasonable notice of an absence from work, so long as such notice does not interfere with an employee’s lawful use of paid sick leave.

For absences of more than three days, an employer may require that an employee provide verification that their use of paid sick leave is for an authorized purpose.  The employer may further require that the verification be provided within a reasonable time period during or after the leave.  However, an employer’s requirements for verification may not result in an unreasonable burden or expense on the employee and may not exceed privacy or verification requirements otherwise established by law.

An employer may not require, as a condition of an employee taking paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using paid sick leave.

Notice Requirements

Employers must provide regular notification to employees about the amount of paid sick leave available to each employee.

Separation from Employment and Rehire

Employers are not required to provide financial or other reimbursement for accrued and unused paid sick leave to any employee when a separation of employment occurs.  However, if an employer rehires a separated employee within 12 months of separation, whether at the same or a different business location, all leave that the employee had accrued at the time of his or her separation must be reinstated, and the previous period of the employee’s employment shall be counted for purposes of determining the employee’s eligibility to use paid sick leave.

Prohibitions & Enforcement

Employers are prohibited from adopting or enforcing any policy that counts paid sick leave absences as absences that may lead to or result in discipline against the employee.  Additionally, employers may not discriminate or retaliate against an employee for his or her exercise of any rights provided under the Law, including the use of paid sick leave.

The Law requires the Washington State Department of Labor and Industries to adopt and implement rules to carry out and enforce the provisions of the Law, including but not limited to:

  • Procedures for notifying employees about available paid sick leave;
  • Protecting employees from retaliation for the lawful use of sick leave;
  • Exercising other rights provided by the Law.

Amendments to Spokane Sick and Safe Leave Ordinance

The amended Ordinance includes a “sunset” provision after which the law will no longer be effective.  In particular, the law will be effective until December 31, 2017, or until the implementation the Washington state mandatory paid sick leave law, whichever occurs last.

Covered Employers and Employees

While the original law applied to all employers in the City of Spokane, the amended Ordinance limits coverage to employers that have a permanent location in the City of Spokane and at least one employee working in Spokane.  All employees who work in the City of Spokane are covered, except for “occasional employees” who work fewer than 240 hours per year in Spokane.

Benefit Year

Under the amendments, the employer can determine the benefit year, as long as it is a “fixed consecutive twelve-month period established by the employer and used in the ordinary course of the employer’s business for the purpose of calculating wages and benefits.”

Accrual, Carryover and Frontloading of Sick Leave

Under the Ordinance, employees accrue at the rate of one hour of sick leave for every hour worked up to a maximum bank of either 24 hours (for employers with less than 10 employees who work in Spokane), or 40 hours (for employers with 10 or more employees who work in Spokane).  In other words, employees accrue sick leave until they reach 24 or 40 hours, at which point they stop accruing more sick time until they use some of that time.

The original law did not address accrual of sick leave for exempt employees, but the amended Ordinance requires accrual of sick leave for exempt employees based on a 40-hour workweek, or the employee’s normal workweek if it is less than 40 hours.  No accrual is required for hours worked beyond a 40-hour workweek.

Employers may also limit use of sick leave to 24 or 40 hours in a year, depending on the number of employees working in Spokane. While the original law required all employers to carry over 24 hours of sick leave for each employee into the next year, the amendment requires carry-over of 24 or 40 hours (again depending on the size of the employer).

Finally, employers can comply by front-loading leave hours (24 or 40 hours depending on the size of the employer) at the beginning of each year.

Earned Sick Leave Usage

The amendment specifies that the minimum increment for using earned sick leave is one hour.

Earned Sick Leave Requests

The amended Ordinance requires earned sick and safe leave to be provided upon the employee’s request.  The employee’s request should include a reasonable estimate of the expected length of the absence “whenever possible.”

Notice Requirements

The original law required employers to provide notice to employees about the accrual of sick leave (including the leave balance and amount of leave used) on a quarterly basis.  The amended Ordinance requires this notice to be provided each time wages are paid.

Recordkeeping Requirements

Under the amendments, an employer’s failure to maintain the required records will create a rebuttable presumption of a violation.

Enforcement

The Ordinance codifies the enforcement procedures to be followed by the City of Spokane Contract and Business Standards Compliance Office for receiving charges, investigating, and making determinations regarding alleged violations.

From January 1, 2017 to December 31, 2017, the enforcement posture will include informing employers and employees of their rights and obligations under this chapter and providing technical assistance to increase compliance.

 

Should you have any questions, please contact your HR Ideas Representative.

A Break Is A Break: California Supreme Court Rules That Rest Breaks Must Be Duty Free

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oday, the California Supreme Court ruled that employers must provide their workers with duty-free rest breaks or face potentially devastating financial consequences. Most California employers know that state law generally requires you to provide meal and rest breaks to non-exempt employees during their work day, and failure to do so could result in being forced to pay an additional one hour of pay at the employee’s regular rate of pay. As today’s California Supreme Court decision in Augustus v. ABM Security Services, Inc. illustrates, failure to comply with these often onerous requirements can lead to overwhelming financial liability.

By resurrecting a $90 million award against the employer for failing to provide proper rest breaks to its security guards, today’s decision was not only an early Christmas present for the plaintiffs in this case, but for potential plaintiffs across California. The decision has important ramifications for employers in all industries, so you should familiarize yourself with the facts and the holding to avoid a similar fate in the New Year.

Court Concludes That Employer’s On-Call Rest Break Policy Violates California Law

ABM Security Services employs thousands of security guards at locations throughout California. For the past decade, it has battled a class action lawsuit brought by some of its former security guards alleging that the company failed to properly relieve them of all duties during their legally mandated rest breaks.

ABM requires its guards to remain on call even while taking their rest breaks. This means the guards need to keep their cell phones or pagers on during their rest breaks in order to respond when certain needs arise (such as when a tenant wishes to be escorted to the parking lot, or an emergency situation occurs). According to ABM, however, guards are rarely interrupted to perform any of these tasks and are otherwise permitted to engage in various non-work activities during this time, including smoking, reading, making personal telephone calls, attending to personal business, and surfing the internet.

Late in 2014, the Court of Appeal found that this on-call rest break policy was permissible. On December 22, 2016, however, the California Supreme Court reversed the lower court and concluded that the policy violated California’s rest break law. The court held “state law prohibits on-duty and on-call rest periods” and “employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.” Based on today’s ruling, the requirement to relieve employees of all duties now clearly applies to both meal and rest periods.

The Nature Of Rest Breaks Requires Employees Be Relieved Of All Duties

The concept of a “rest break” is not specifically defined in the Labor Code or Wage Orders. In the absence of a specific definition, the Supreme Court determined the reference to a rest period in Wage Order 4 evokes the ordinary meaning of rest, which one would consider as meaning “an interval of time free from labor, work, or any other employment-related duties.” Further, in the court’s view, it makes sense that an employer’s responsibility to relieve employees of all duties during rest periods is par with the same responsibility for meal periods.

The Court stated that an employer cannot satisfy its obligations under Wage Order 4 by requiring that employees remain on call. It explained that an on-call rest break is unworkable because employees simply could not use the 10 minutes to take care of other personal matters that require uninterrupted time. Therefore, it determined that requiring an employee to carry a pager or respond when the employer seeks contact with the employee is irreconcilable with the requirement of duty-free rest periods.

Justice Kruger’s concurring and dissenting opinion complained that a requirement to carry a pager does not necessarily prevent an employee from taking brief walks, making phone calls, or otherwise using a rest break for their own personal purposes. Her pleas for a more common sense approach to the issue, however, were rejected by the majority opinion, which frowned upon a requirement to wear a pager during a rest break.

The Mere Possibility Of Being Called Back Does Not Invalidate Breaks

California employers should understand that even under the “relieved of all duty” standard, the mere possibility that an employee may be called back to work does not invalidate a meal or rest break. If your policy provides employees with rest breaks where they are relieved of all duties and occasionally these breaks are interrupted, then you must pay the one hour penalty pay on those rare occasions or provide the employee with another uninterrupted rest break. The court distinguished this scenario from policy in this case, which specifically required its guards to remain on-call during their rest breaks.

A Limited Exemption Process For On-Duty Rest Breaks

The Supreme Court did note that employers can seek relief through a Division of Labor Standards Enforcement (DLSE) exemption process. If you can demonstrate that relieving employees of all duties during rest breaks would pose an undue hardship and will not materially affect the welfare or comfort of the employees, you could be relieved of your standard obligations. However, applying for the exemption from the Labor Commissioner may trigger an investigation of your break practices, so it is a risky proposition. Also, the exemption is not retroactive and would only apply prospectively from the date it is granted.

Action Items For California Employers

In light of the Supreme Court’s decision in this case, you should make sure your rest break policy does not contain any on-call requirements such as remaining reachable by pager, phone, or by other similar means. In rare circumstances, it may make sense for you to apply for an exemption from duty-free rest breaks. However, you should seek legal counsel to help evaluate whether it makes sense to apply to the DLSE for an exemption.

It is equally important to consider having counsel review your meal and rest break policy and practices. This will help you assess your organization’s risk of a potential crushing financial liability resulting from a relatively technical violation of California’s strict break requirements.

If you have any questions about this decision or how it may affect your organization, please contact your HR Ideas Representative!

Are You Ready? City of Santa Monica’s Sick Leave Provisions Become Effective January 1, 2017

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Are you sick of sick leave yet? Beginning on January 1, 2017, the new paid sick leave provisions under Santa Monica City’s recently adopted Minimum Wage and Sick Leave law will go into effect.

As of January 1, 2017, smaller employers with 25 or fewer employees are required to provide at least 32 hours of paid sick leave, and larger employers with 26 or more employees are required to provide at least 40 hours of paid sick leave. As of January 1, 2018, these numbers will jump to 40 hours and 72 hours, respectively, according to the amendments.

Here are the key highlights of the effective version of the Santa Monica sick leave provisions:

  • Requires paid sick leave for employees who perform at least two hours of work per week within the City of Santa Monica and are entitled to payment of a minimum wage under the California Labor Code and wage orders published by the California Industrial Welfare Commission.
  • Accrual rate is one hour for every 30 hours worked.
  • Employers can cap accrual and limit the annual carryover of accrued sick leave (whether calendar year, fiscal year, or year of employment): 32 hours for small businesses, 40 hours for larger businesses for 2017. [Caution: Santa Monica permits lower accrual caps in 2017 than the 48 hours or 6 days required under State law, although employers still must comply with State law.]
  • No accrual or carryover is required if the full amount of leave required by the ordinance is provided at the beginning of each year (whether calendar year, fiscal year, or year of employment). [Thus, while State law permits a grant of 3 days or 24 hours, Santa Monica’s ordinance requires the grant be at least 32 hours for smaller employers and 40 hours for larger employers in 2017; these numbers increase to 40 hours and 72 hours, respectively, in 2018.]
  • Employers may prohibit use of sick leave until the 90th day of employment.
  • Employers are not required to pay out unused paid sick leave upon an employee’s termination, resignation, retirement, or other separation from employment, as long as the sick leave is offered separately from any paid time off or vacation plan.

All employers operating in Santa Monica should carefully review their policies and practices related to paid sick leave. If you should need any assistance, please contact your HR Ideas Representative!

Los Angeles’ “Ban the Box” Ordinance Signed Into Law

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On December 9, 2016, Los Angeles Mayor Eric Garcetti signed the “Los Angeles Fair Chance Initiative for Hiring,” the “Ban the Box” ordinance that bars certain City of Los Angeles employers from asking job applicants about their criminal history.  Ban the Box goes into effect January 1, 2017, and Los Angeles becomes the fifteenth locality in the nation to adopt it.

This ordinance applies to all city contractors and private employers with ten or more employees who perform at least two hours of work on average each week within the geographical boundaries of the City of Los Angeles.  Some exceptions apply for fields such as child care and law enforcement.

In effect, employers may not have a “box” on job applications to seek information about a prospective employee’s criminal history.  However, once a conditional offer of employment has been made, the employer may assess an applicant’s criminal history.  Employers performing a written assessment shall, at a minimum, consider the factors promulgated by the United States Equal Employment Opportunity Commission (“EEOC”) as well as any other factors set forth by the rules or guidelines of the Department of Public Works, Bureau of Contract Administration (“DAA”) to evaluate and determine linking specific aspects of the applicant’s criminal history with the inherent risks in hiring the applicant.

If, following an assessment, an employer does not hire the employee, the employer may not fill the position for a period of at least five business days after the applicant is informed of the proposed adverse action.  During this period, the applicant may choose to engage in the Fair Chance Process whereby he or she may present any information for the employer’s consideration and the employer will complete a written re-assessment of the proposed adverse action against the applicant.  Following the re-assessment, if the employer sticks to its guns, then the employer shall notify the applicant of its decision and provide a copy of the written re-assessment.

Penalties and administrative fines for violations of this ordinance will be enforced by the DAA.  On July 1, 2017, monetary penalties of $500 for the first violation, up to $1,000 for a second violation, and up to $2,000 for third and subsequent violations will be in effect.  Prior to July 1, 2017, the DAA will issue written warnings to employers that will later be used to prove that employers were on notice of the new ordinance.

In addition, Ban the Box requires posting, notification, and record retention requirements.  And, employers now must state in all hiring advertisements that the employer will consider qualified applicants with criminal histories consistent with the ordinance.  Furthermore, employers are required to post a notice in a conspicuous place at every workplace, job site, or other location in the City of Los Angeles under the employer’s control and visited by job applicants.  The employer is also required to send a copy of the notice to each labor union with which the employer has a collective bargaining agreement.  Finally, employers are required to retain job applications, assessments, and any re-assessments for three years.  Violations of the positing, notification, and record retention requirements will result in fines up to $500 for each violation.

Are You Ready for California’s Workplace Violence Prevention in Health Care Rule?

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By April 1, 2017, all employers in California operating in the following areas will be required to comply with Section 3342, the Workplace Violence Prevention in Health Care rule:  health care facilities; home health care programs; drug treatment programs; emergency medical services; and outpatient medical services to correctional and detention settings.  This rule is far more expansive than Federal OSHA’s guidelines for the Prevention of Workplace Violence in Health Care settings.  Here are some highlights of the new rule:

  • Requires a written workplace violence prevention plan.  This can be incorporated into the Injury Illness Prevention Plan (IIPP) that is currently required in California.  Required elements are:
    • Names or job titles of people responsible for plan implementation;
    • Procedures for the active involvement of employees in developing the plan;
    • Methods for coordinating implementation of the plan with other employers whose employees work in the same facility, service or operation;
    • Procedures for obtaining assistance of law enforcement during all work shifts;
    • Procedures for accepting reports of workplace violence from employees, including anti-retaliation provisions;
    • Procedures to ensure compliance with the plan;
    • Procedures for communicating with employees about workplace violence matters;
    • Procedures for training employees on workplace violence;
    • Assessment procedures to identify risk factors for workplace violence;
      • There are 9 elements under this requirement, some of which may prove difficult, such as the requirement for physical barriers between employees and persons at risk of committing workplace violence – certainly a difficulty when treating patients.  For home health care, there is a requirement for assessment of environmental risk factors as well that could prove very difficult for an employer to implement.
    • Procedures to identify patient specific risk factors, such as:
      • patient’s mental status, medications, history of violence, disruptive or threatening behavior- another potentially difficult portion of the rule for many medical providers who may not have a full history at the time of accepting a patient for treatment or that may have mandated requirements for accepting patients regardless of the patient’s past history.
    • Procedures to correct workplace violence hazards in a timely manner;
      • There 10 elements under this provision.  Some of the themes under this provision relate to staffing levels at the facility.  What is not answered is whether compliance with state regulations related to staffing equates to sufficient staffing levels or what metric would be considered adequate.  Additionally, there is a requirement for security personnel to be specifically present to maintain order and to respond to workplace violence.  What is not clarified is whether these security personnel will be expected to respond to patients who are exhibiting violence or just non-patient violence.
    • Procedures for post-incident response and investigation.
  • Maintenance of a Violent Incident Log – regardless of whether an injury occurs.  This provision specifically requires an employer to NOT maintain certain personal identifying information in such logs, i.e. social security numbers, addresses, telephone numbers, etc.
  • Annual Review of the plan.
  • Training employees annually on the plan.
  • Reporting to the Division (CalOSHA) any use of physical force against an employee regardless of whether an injury occurs.  If there is an injury or use of a weapon, the report must be made within 24 hours.  If there is no injury or use of a weapon, the report must be made within 72 hours.
  • Records to be maintained include:
    • Records of workplace violence hazard identification, evaluation and correction;
    • Training records to be maintained for one year;
    • Records of violent incidents shall be maintained for five years;
    • All of these records shall be given to the Division upon request and to employees and their representatives upon request.

If you should need any assistance or have any questions, please contact your HR Ideas Representative!

Are You Ready for California’s Workplace Violence Prevention in Health Care Rule?

By | HR, OSHA, Private, Public Blogs, Safety, Training | No Comments

By April 1, 2017, all employers in California operating in the following areas will be required to comply with Section 3342, the Workplace Violence Prevention in Health Care rule:  health care facilities; home health care programs; drug treatment programs; emergency medical services; and outpatient medical services to correctional and detention settings.  This rule is far more expansive than Federal OSHA’s guidelines for the Prevention of Workplace Violence in Health Care settings.  Here are some highlights of the new rule:

  • Requires a written workplace violence prevention plan.  This can be incorporated into the Injury Illness Prevention Plan (IIPP) that is currently required in California.  Required elements are:
    • Names or job titles of people responsible for plan implementation;
    • Procedures for the active involvement of employees in developing the plan;
    • Methods for coordinating implementation of the plan with other employers whose employees work in the same facility, service or operation;
    • Procedures for obtaining assistance of law enforcement during all work shifts;
    • Procedures for accepting reports of workplace violence from employees, including anti-retaliation provisions;
    • Procedures to ensure compliance with the plan;
    • Procedures for communicating with employees about workplace violence matters;
    • Procedures for training employees on workplace violence;
    • Assessment procedures to identify risk factors for workplace violence;
      • There are 9 elements under this requirement, some of which may prove difficult, such as the requirement for physical barriers between employees and persons at risk of committing workplace violence – certainly a difficulty when treating patients.  For home health care, there is a requirement for assessment of environmental risk factors as well that could prove very difficult for an employer to implement.
    • Procedures to identify patient specific risk factors, such as:
      • patient’s mental status, medications, history of violence, disruptive or threatening behavior- another potentially difficult portion of the rule for many medical providers who may not have a full history at the time of accepting a patient for treatment or that may have mandated requirements for accepting patients regardless of the patient’s past history.
    • Procedures to correct workplace violence hazards in a timely manner;
      • There 10 elements under this provision.  Some of the themes under this provision relate to staffing levels at the facility.  What is not answered is whether compliance with state regulations related to staffing equates to sufficient staffing levels or what metric would be considered adequate.  Additionally, there is a requirement for security personnel to be specifically present to maintain order and to respond to workplace violence.  What is not clarified is whether these security personnel will be expected to respond to patients who are exhibiting violence or just non-patient violence.
    • Procedures for post-incident response and investigation.
  • Maintenance of a Violent Incident Log – regardless of whether an injury occurs.  This provision specifically requires an employer to NOT maintain certain personal identifying information in such logs, i.e. social security numbers, addresses, telephone numbers, etc.
  • Annual Review of the plan.
  • Training employees annually on the plan.
  • Reporting to the Division (CalOSHA) any use of physical force against an employee regardless of whether an injury occurs.  If there is an injury or use of a weapon, the report must be made within 24 hours.  If there is no injury or use of a weapon, the report must be made within 72 hours.
  • Records to be maintained include:
    • Records of workplace violence hazard identification, evaluation and correction;
    • Training records to be maintained for one year;
    • Records of violent incidents shall be maintained for five years;
    • All of these records shall be given to the Division upon request and to employees and their representatives upon request.

California Employer Gets Landmark Criminal Conviction For Wage Theft

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In a first-of-its-kind criminal conviction in California, a San Diego restaurant owner has been sentenced to two years in jail for promising wages to immigrant workers but paying them only in tips. San Diego County Superior Court also ordered the employer to repay $20,000 in stolen wages and tips to six of the restaurant workers.

California Labor Commissioner Julie A. Su, who led the wage theft investigation, said in a statement, “Our investigation uncovered egregious wage theft and worker abuse.” This included:

  • Collecting a portion of the tips from unpaid workers;
  • Charging the workers $5 a shift for “glass breakage” to offset the employer’s costs; and
  • Paying kitchen staff $4 an hour and forcing them to work during rest and meal breaks.

The restaurant owner was convicted of two felony counts of grand theft of labor for failing to pay workers as promised, one felony count of grand theft of tips and several misdemeanor charges, including four counts for failing to provide itemized wage statements.

Governor Jerry Brown signed California’s Fair Day’s Pay Act last year, which aimed to crack down on wage theft violations such as these by giving the Labor Commissioner increased enforcement rights against employers. The law took effect January 1, 2016. The Act provides that owners, directors, officers or managing agents can be held personally liable as the employer for certain wage and hour violations.

California is not the only state that has taken firm steps to deter wage theft. Effective January 1, 2017, a new Oregon law will require an employer to include additional information on employees’ pay statements to prevent wage theft.

Business Standard Mileage Rate Decreases for 2017

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Starting January 1, 2017. The Notice also provides the 2017 maximum standard automobile cost that may be used to compute the allowance under a fixed and variable rate (FAVR) plan.

Specifically, the standard mileage rates for the use of a car, van, pickup or panel truck will be:

  • 53.5 cents per mile for business miles driven (down from 54 cents per mile in 2016);
  • 17 cents per mile driven for medical or moving purposes (down from 19 cents in 2016); and
  • 14 cents per mile driven in a passenger car in performing charitable services (set by law and unchanged).

Cal/OSHA Amendment Significantly Expands its Definition of “Repeat” Violations

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Effective January 1, 2017, Cal/OSHA will be utilizing a broader definition of “Repeat” violation under California’s Health and Safety Code.  This is significant for California employers because if Cal/OSHA finds a Repeat violation, the employer could initially be subject to a penalty of up to $70,000, and up to $124,709 or more when Cal/OSHA updates its penalties as required by federal OSHA.  According to OSHA, the purpose of the greater penalty for Repeat violations is to encourage an employer’s ongoing compliance with safety and health standards at all of its locations without requiring OSHA to engage in separate compliance actions at each location.  Because Cal/OSHA has always previously limited Repeat violations to a single worksite reoccurrence, and because of the forthcoming increased penalty structure, California employers will need to develop a more strategic response to any citations they receive.

In its 2013 Federal Annual Monitoring and Evaluation (FAME) Report, federal OSHA found that California’s enforcement of Repeat violations was lower than the federal average and noted that the policy used by the state was different and less protective than that applied by federal law.  As a result, Cal/OSHA was directed to amend California Code of Regulations Title 8, Section 334(d), to be consistent with the definition of a Repeat violation as used by Federal OSHA.

Currently, a Repeat violation is defined in section 334(d), as a violation where an employer has corrected, or indicated correction of, an earlier violation for which a citation was issued and, upon a subsequent inspection within three years, Cal/OSHA finds that the employer has recommitted the same violation.  For employers with fixed establishments, section 334(d) currently limits Cal/OSHA’s authority to issue a repeat citation to the cited establishment, which means that both the underlying and the subsequent violation must have occurred at the same work site or address.

Now, however, California employers will be subject to a much broader definition of Repeat violation.  Specifically, Cal/OSHA amended section 334(d) by:

  1. Expanding the “look back” period of a Repeat violation from three years to five years.
  2. Defining a Repeat violation as a substantially similar violation.
  3. Increasing the geographic scope of a Repeat violation to any violation in the state.

Cal/OSHA Will Now Look Back Five Years

The current three-year look-back period of a Repeat violation begins to run on the date of the conduct giving rise to the violation.  But, if the employer appeals the citation, the appeal prevents the citation from becoming final, and a final citation is necessary for a Repeat violation to be found.  As the three-year clock runs from the date of the conduct, the employer could minimize its chance of a Repeat violation by appealing every citation issued.

Cal/OSHA’s amendment eliminated an employer’s incentive to appeal solely to shorten or exhaust the look-back period.  Now, the starting time for calculating the period begins at either:

  • the date of the final order affirming the existence of a previous violation cited in the underlying citation;
  • the date on which the underlying citation becomes final by operation of law; or
  • the date of final abatement of the violation cited in the underlying citation.

Cal/OSHA also expanded the window of time for a Repeat violation from three years to five years, which is a policy change that federal OSHA made in 2010.1

Cal/OSHA Will Now Consider Substantially Similar Violations

Cal/OSHA currently defines a Repeat violation as occurring when the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again.

Cal/OSHA amended the rule to broadly allow it to find a Repeat violation for a violation of a “substantially similar” regulatory requirement. This change places Cal/OSHA directly in line with federal OSHA.  The “substantially similar” standard is the language used by federal OSHA but is not officially defined by Cal/OSHA.  Federal OSHA also does not have a regulatory definition of “substantially similar” but the term has been interpreted in policy documentation and numerous citation appeal decisions.  As the term is undefined, employers will have some opportunity to influence the interpretation of what constitutes substantially similar violations supporting a Repeat violation in California, but this may be one area where the state adopts the federal interpretation.  The greater scope naturally increases the frequency at which a Repeat violation could be issued.

Cal/OSHA Will Now Consider Statewide Violations

The current rule defining the geographic scope of Repeat violations is that the later citation must involve the same factory, store, or other fixed establishment that was previously cited.  But, for field sanitation standards, a Repeat violation is any subsequent violation state-wide, on the theory that farm labor contractors work up and down the state during a short span of time and, thus, violations at different sites in California are akin to Repeat violations.

Cal/OSHA eliminated the difference between field sanitation and other industries and removed the geographical restrictions that currently limit a Repeat violation to a specific facility or store.  In other words, in determining whether to cite the employer for a Repeat violation, Cal/OSHA will consider any violation in the state as opposed to violations at a specific location.  Thus, for example, if Cal/OSHA finds a violation at a facility in Los Angeles, and if the employer has facilities in Sacramento and San Francisco, the agency will determine whether citations for substantially similar violations were issued at the facilities in those two cities.

Implications for Employers

Starting in 2017, California employers can no longer focus solely on the financial implications of settling a citation or contesting it.  Employers will have to be more strategic in their response.  Because the Repeat classification and increased penalties are not directly limited to Serious violations, employers will even have to consider their acceptance or appeal of General and Regulatory citations.

Employers can initially focus even more attention on preventing workplace safety violations through comprehensive programs.  However, if an employer receives a citation, it should carefully evaluate whether simply paying the citation is the best strategy and also should immediately determine whether it is in compliance with other standards that are “substantially similar” to the one for which it was cited at all of its California facilities.  This increased focus will raise the cost of abatement for employers that do decide to accept a citation because they will need to ensure abatement at all of their locations to avoid future Repeat violations with their substantial penalties.  Overall, this change will undoubtedly lead to more litigation over Cal/OSHA citations as employers will need to manage their citation history to avoid future Repeat violations occurring over a five-year period.

Cal/OSHA Adopts First in the Nation Standard on Workplace Violence Prevention for Healthcare Employers

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National research indicates that health care workers are at a substantially higher risk of workplace violence than the average worker in another industry.  According to the federal Occupational Safety and Health Administration (OSHA), from 2002 to 2013, the rate of serious workplace violence incidents (those requiring days off for an injured worker to recuperate) was more than four times greater in healthcare than in private industry on average.1  Patients are the largest source of violence in healthcare settings, followed by visitors or co-workers, and surveys show that many incidents go unreported.

On October 21, 2016, the California Occupational Safety and Health Standards Board (Standards Board) unanimously passed a new General Industry Safety Order entitled “Workplace Violence Prevention in Health Care” (Standard).2  The Office of Administrative Law approved the Standard on December 8, 2016.  The Standard is codified at Section 3342 of Title 8 of the California Code of Regulations.

Coverage

Although Senate Bill 1299 only required a standard for hospitals, the Standards Board went further and the standard applies to any “health facility,” which is defined very broadly to mean “any facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, or treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer.”3

The Standard also applies to home health care and home-based hospices, emergency medical services and medical transports, drug treatment programs and outpatient medical services to those incarcerated in correctional and detention settings.  The Standard will not apply to certain state-run health facilities.

The Standard Broadly Defines “Workplace Violence”

“Workplace violence” means any act of violence or threat of violence that occurs at the work site.  The term workplace violence shall not include lawful acts of self-defense or defense of others.  Workplace violence includes the following:

1.         The threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury;

2.         An incident involving the threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury;

3.         Four workplace violence types:

  • “Type 1 violence” means workplace violence committed by a person who has no legitimate business at the work site, and includes violent acts by anyone who enters the workplace with the intent to commit a crime.
  • “Type 2 violence” means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors or other individuals accompanying a patient.
  • “Type 3 violence” means workplace violence against an employee by a present or former employee, supervisor, or manager.
  • “Type 4 violence” means workplace violence committed in the workplace by someone who does not work there, but has or is known to have had a personal relationship with an employee.

Workplace Violence Prevention Plan

Healthcare employers covered by the Standard are now required to establish, implement and maintain an effective workplace violence prevention plan (Plan), which must be in effect at all times and in every unit, service or operation.  The Plan must be in writing, be specific to the hazards and corrective measures for the unit, service, or operation, and be available to employees at all times.  The written Plan may be incorporated into the employer’s written IIPP or maintained as a separate document.

The Plan must include the following:

  • Names or job titles of the persons responsible for implementing the Plan;
  • Effective procedures to obtain the active involvement of employees and their representatives in developing, implementing, and reviewing the Plan, including their participation in identifying, evaluating, and correcting workplace violence hazards, designing and implementing training, and reporting and investigating workplace violence incidents;
  • Methods the employer will use to coordinate implementation of the Plan with other employers whose employees work in the same health care facility, service, or operation, to ensure that those employers and employees understand their respective roles as provided in the Plan;
  • Effective procedures for obtaining assistance from the appropriate law enforcement agency during all work shifts;
  • Effective procedures for the employer to accept and respond to reports of workplace violence and to prohibit retaliation against an employee who makes such a report;
  • Procedures to ensure that supervisory and non-supervisory employees comply with the Plan;
  • Procedures to communicate with employees regarding workplace violence matters;
  • Procedures to develop and provide training to employees that addresses workplace violence risks employees are reasonably anticipated to encounter on the job;
  • Assessment procedures to identify and evaluate environmental and community-based risk factors for each facility, unit, service, or operation, which shall include a review of all workplace violence incidents that occurred in the facility, service, or operation within the previous year, whether or not an injury occurred;
  • Procedures to identify and evaluate patient-specific risk factors and assess visitors or other persons who are not employees;
  • Procedures to correct workplace violence hazards in a timely manner; and
  • Procedures for post-incident response and investigation.

The Standard describes in great detail the procedures that must be addressed within each of these topics.

At least annually, the employer is required to review the effectiveness of the Plan and correct any problems.  The annual review must include employees and their representatives and address the employees’ respective work areas, services and operations.  The Standard sets out numerous additional items the employer must consider when reviewing the Plan, including, among other things, staffing, sufficiency of security systems and job design and equipment.

Violent Incident Log

Healthcare employers will be required to record in a “violent incident log” every incident, post-incident response, and workplace violence injury investigation with descriptive details.  The employer must review the log as part of its annual review of the Plan.

The log must contain, at a minimum, the following items:

  • The date, time, specific location, and department of the incident;
  • A detailed description of the incident;
  • A classification of who committed the violence;
  • A classification of circumstances at the time of the incident;
  • A classification of where the incident occurred;
  • The type of incident;
  • The consequences of the incident; and
  • Contact and other information about the person completing the log.

As with the Plan, the Standard describes in the detail the specific information that must be included for each item.

Training

The Standard requires healthcare employers to provide training to employees designed to address the workplace violence risks that employees are reasonably anticipated to encounter in their jobs.  The employer must have an effective procedure for obtaining the active involvement of employees and their representatives in developing training curricula and training materials, participating in training sessions, and reviewing and revising the training program.

The Standard requires that training be conducted at various times, including:

  • when the Plan is first established and when an employee is newly hired or newly assigned to perform duties for which the training was not previously provided;
  • when new equipment or work practices are introduced; and
  • when a new or previously unrecognized workplace violence hazard has been identified.

The Standard requires the initial training to address the workplace violence hazards identified in the facility, unit, service or operation, and the corrective measures the employer has implemented.  The initial training also must include:

  • An explanation of the employer’s Plan, including the employer’s hazard identification and evaluation procedures, general and personal safety measures the employer has implemented, how the employee may communicate concerns about workplace violence without fear of reprisal, how the employer will address workplace violence incidents, and how the employee can participate in reviewing and revising the Plan;
  • How to recognize the potential for violence, factors contributing to the escalation of violence and how to counteract them, and when and how to seek assistance to prevent or respond to violence;
  • Strategies to avoid physical harm;
  • How to recognize alerts, alarms, or other warnings about emergency conditions such as mass casualty threats and how to use identified escape routes or locations for sheltering, as applicable;
  • The role of private security personnel, if any;
  • How to report violent incidents to law enforcement;
  • Any resources available to employees for coping with incidents of violence, including, but not limited to, critical incident stress debriefing or employee assistance programs; and
  • An opportunity for interactive questions and answers with a person knowledgeable about the employer’s workplace violence prevention plan.

Annual refresher training also is required for employees performing patient contact activities as well as their supervisors.

In addition, employees assigned to respond to alarms or other notifications of violent incidents or whose assignments involve confronting or controlling persons exhibiting aggressive or violent behavior must be provided training on numerous topics prior to initial assignment and at least annually thereafter, including strategies to prevent physical harm, aggression violence predicting factors and characteristics of aggressive and violent patients and victims.

Reporting Requirements for Certain Hospitals

In addition to the above requirements, the Standard requires general acute care hospitals, acute psychiatric hospitals, and special hospitals to report to Cal/OSHA any incident involving either of the following:

  • The use of physical force against an employee by a patient or a person accompanying a patient that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury (as that term is defined in Cal/OSHA’s regulations requiring the reporting of other types of injuries or illnesses).
  • An incident involving the use of a firearm or other dangerous weapon, regardless of whether an employee sustains an injury.

All reports must be made within 72 hours, except that the report must be made within 24 hours if the incident:

  • results in a fatality or an injury that requires inpatient hospitalization for at least 24 hours for other than medial observation or in which an employee suffers a loss of a limb or suffers any serious degree of permanent disfigurement;
  • involves the use of a firearm or other dangerous weapon; or
  • presents an urgent or emergent threat to the welfare, health, or safety of hospital personnel, which means that hospital personnel are exposed to a realistic possibility of death or serious physical harm.

The Standard describes the information that must be included in the report.  Cal/OSHA will implement an online system for employers to report the information.  These reports do not relieve the healthcare employer from making reports that may be required by other Cal/OSHA regulations.  Employers can expect that these reports will result in a significant number of new non-formal and on-site inspections.

Recordkeeping

The Standard will require healthcare employers to maintain various records, including records of workplace violence hazard identification, evaluation, and correction, training records, and records of violent incidents.  Records must be made available to employees and their representatives, as well as Cal/OSHA, upon request.

Next Steps for Employers

The Standard is effective on April 1, 2017, which means that California healthcare employers have less than four months to get in full compliance with these onerous requirements.  Cal/OSHA’s Standard is a first of its kind at the federal and state level, although Federal OSHA is proceeding with a rulemaking and will hold a public hearing on January 10, 2017.

At a minimum, employers covered by the Standard should immediately consider:

  • Gathering records of all incidents of workplace violence (with or without injury) from the previous year;
  • Reviewing all existing policies, programs, and training addressing elements of workplace violence prevention;
  • Conducting the required assessments for each workplace;
  • Drafting and implementing a new written Workplace Violence Prevention Plan, which addresses the numerous topics enumerated in the Standard;
  • Creating training programs for all employees that effectively advise of any workplace violence risks that may arise in a healthcare environment and in the employees’ particular work area; and
  • Establishing a record retention program for training and any incident that could be viewed as an incident of workplace violence, even if no injury resulted.

Employers should also review the significant privacy issues raised by the Standard, and with the advice of privacy attorneys, develop an appropriate policy addressing concerns which may arise in keeping records, reporting incidents to Cal-OSHA, and handling inspections of this Standard.

Should you have any questions, please contact your representative at HR Ideas.