How California Contractors Can Avoid Disgorgement

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The construction industry is one that can be unpredictable. One of the main reasons for this is because every market is different. While one market may be doing well, another may be suffering. One component of the industry that can cause major issues for construction companies is something called disgorgement. If you want to avoid this in California, then you need to take the appropriate actions.

What is Disgorgement?

Disgorgement is a law or regulation that can require a business to give something up as demanded or through legal compulsion. In the construction industry, it means that the construction company may have to give back their profits from a project they have completed or are in process of completing. For example, if a contractor enters into a contract with a client to build a property, performs the work, receives payment, and then has to return the payment due to legal reasons, that is disgorgement in action.

Actions to Take to Avoid Disgorgement

Just as lenders, real estate agents, and investors stay up to date on different laws and regulations affecting their sides of the industry, contractors benefit greatly from understanding laws and regulations that could potentially affect their work. Obviously, disgorgement is not something that any contractor wants to happen to them. In order to avoid this, there are some key things you need to do and stay on top of so you can avoid it in your business.

  • Have a valid license. You and all of your employees should have a valid license. This means that you need to have your license during the time that you are performing the contractual work. You do not want to start a project without an active license. Not only would you open yourself to the possibility of disgorgement but you could also face some civil and criminal penalties such as jail time, fines, and more.
  • Have workers’ compensation insurance. You want to make sure that you have the proper insurance at all times during a project. Beyond that, you want to make sure that the insurance does not lapse at any time. Even though it is an extra expense, it is not one that you want to let lapse so you can save a few dollars. You could end up losing all of your money from the project as a result. You also do not want to list employees as independent contractors to save money on this insurance if they are not. Doing so could invalidate your contractor license immediately and you may not even be notified of this change. You could then be operating as usual and not even know you have lost your license.
  • Only collect payment for work completed. You do not want to take money for any work that has not been done or for materials that have not been delivered yet. It is against the law in California to do this and you must limit a down payment to $1,000 or 10% of the purchase price. Since this is law in California, it is important to follow it at all times, even if you are strapped for cash. If the working relationship between you and your client were to go bad, then they could use that against you in court and it could result in disgorgement.

As you can see, disgorgement is something that can be avoided. As long as you comply with the laws and regulations, you should not be in danger of disgorgement for your construction business.

New California Law Will Limit Immigration Enforcement Agents’ Access to Workplaces, Records

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Employers in California will soon face several new requirements involving workplace inspections by US Immigration and Customs Enforcement (ICE).

Effective January 1, 2018, the Immigrant Worker Protection Act will prohibit employers in California from voluntarily consenting to allow immigration enforcement agents to enter any nonpublic areas of their workplaces unless they obtain a subpoena or judicial warrant.

The Act also will prohibit employers from consenting to enforcement agents accessing, reviewing or obtaining their employee records (except Forms I-9 and other documents for which ICE has provided the required three days’ notice before inspection) without a subpoena or judicial warrant.

Employers also will be required to notify employees of any inspections of Forms I-9 or other employment records within 72 hours of receiving notice of the inspection, including:

  • The name of the agency conducting the inspections;
  • The date that the employer received notice of the inspection;
  • The nature of the inspection to the extent known; and
  • A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.

By July 1, 2018, the California Labor Commissioner will create a template that employers may use to satisfy these notice requirements.

Within 72 hours of receiving inspection results, employers will be required to provide affected employees a copy of the written immigration agency notice and a written notice containing certain information about their collective obligations.

Employers that violate any of the aforementioned requirements will be subject to civil penalties of $2,000 to $5,000 for a first violation and of $5,000 to $10,000 for each subsequent violation.

In addition, employers will be prohibited from reverifying the employment eligibility of a current employee at a time or in a manner not required by specified federal law. Violations of this requirement will be subject to a civil penalty of up to $10,000.

If you should have any questions, please contact your HR Specialist at 925-556-4404.

Workplace Violence/Active Shooter Webinar

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On Wednesday Oct 25, 2017 @ 1:00 PM, we will be offering a 45 minute webinar titled “Workplace Violence/Active Shooter Training”.

How timely is this?

As fas as I know, we are the only HR/Safety/Insurance company offering such a class for employers! This webinar spans across all employment types and I am sure if we get the word out, we will have some great attendance. Some of the areas we will be discussing include:

  • Definitions
  • OSHA-involvement
  • OSHA required Injury & Illness Prevention Program and an Emergency Action Plan and documented employee training
  • Workers’ Compensation due to injuries related to workplace violence
  • Legal ramifications including heavy fines and possible criminal involvement on the part of owners and managers
  • Hostage situations
  • Robberies/Burglaries and how are they different
  • Employee Assistance Plans
  • Business recovery – Can you business  actually survive an “active shooter situation”? and
  • And some mind blowing statistics!
 
Please let me know if you should have any questions.

OSHA Top 10 Safety Violations for 2017 (Fiscal Year)

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With employers always having limited resources for safety, they would benefit from OSHA’s Top 10 violations for 2017. If the employer are going to put money towards safety, I would recommend the following areas as applicable to their business:

1. Fall Protection – General Requirements (1926.501)     

6,072

2. Hazard Communication (1910.1200)   

4,176

3. Scaffolding (1926.451)              

3,288

4. Respiratory Protection (1910.134)     

3,097

5. Lockout/Tagout (1910.147)    

2,877

6. Ladders (1926.1053) 

2,241

7. Powered Industrial Trucks (1910.178)

2,162

8. Machine Guarding (1910.212)               

1,933

9. Fall Protection – Training Requirements (1926.503)     

1,523

10. Electrical – Wiring Methods (1910.305)          

1,405

Fall protection has led the safety violations for many years and generally include falls in excess of 8 feet.

Hazard Communication includes all those written safety plans required by law.

No matter what industry an employer is in (and some are more than one), there is a high likelihood that you have an area in OSHA’s Top 10 violations.

Employers Must Use New I-9 Form Beginning September 18, 2017

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Starting September 18, 2017, employers must use the revised Form I-9 with the revision date “7/17/17” to verify the identity and work eligibility of every new hire.

The new Form I-9 version is very similar to the prior edition. It has updated the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section, and it has removed “the end of” from the phrase “the first day of employment.” USCIS also revised the List C documents section, specifically related to the Consular Report of Birth Abroad and the Report of Birth issued by the Department of State. The process of completing the I-9 remains the same, as does the deadline to complete an I-9.

If you should have any questions, please contact your HR Representative at 925-556-4404.

Mandatory Flu Vaccine Policies: Dealing With Employees Who Refuse the Shot

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Flu season is coming, and healthcare (and other) organizations may be asking whether they should have mandatory flu vaccine policies. If an employer decides to implement a mandatory program, the next question is how to administer it.

In the healthcare industry, mandatory vaccination programs for employees are common. A number of states require healthcare employers to offer the vaccine or to ensure that employees receive it (with certain exceptions). The Centers for Disease Control (CDC) and Prevention website tracks these various state laws and their requirements, and the CDC itself recommends that all health care workers get vaccinated (including all workers having direct and indirect patient care involvement and exposure).

However, “mandatory” doesn’t always mean mandatory. In some circumstances, healthcare providers may have to grant exceptions to their “mandatory” vaccination programs. Federal and state discrimination laws require employers to provide reasonable accommodations to employees with disabilities and sincerely-held religious beliefs. Some employees may be medically unable to receive the flu vaccine. Others may have religious objections. Absent undue hardship, healthcare providers will need to create exceptions to their “mandatory” policies for employees as a reasonable accommodation for the employees’ disabilities or religious practices.

Missteps in the accommodation process can open the door to litigation. Last year, the U.S. Equal Employment Opportunity Commission (EEOC) sued a hospital that declined to grant religious exemptions for six employees who refused the flu vaccine. The case settled for $300,000. Another similar case, Equal Employment Opportunity Commission v. Baystate Medical Center, is still pending in federal court.

So how can healthcare employers implement mandatory flu vaccine policies? Every workplace and situation is different, but there are a few key points to keep in mind:

  • Be prepared. Before rolling out a mandatory vaccination requirement, an employer may want to have a process in place for requesting accommodations. A carefully written vaccination policy can describe that process, so employees understand where to turn if they need to ask for accommodation. Employers may also want to have forms for employees to fill out to request a waiver as an accommodation.
  • Objections based on religion or disability. Employers have an obligation to accommodate only sincerely held religious beliefs or disabilities. But remember, “religion” and “disability” are broad terms. The EEOC and at least one federal court consider veganism, in some circumstances, to constitute a religious belief that could exempt an employee from a flu-vaccination requirement. The bottom line is that an employee’s objection to a vaccine might not appear to be “religious” at first blush, but it could be religious in the eyes of the law. Medical conditions or restrictions causing the need to forego a flu vaccine should be relatively rare.  Recently, non-egg options and versions of the shot that are safe for those with egg allergies have become available. However, valid medical objections may still exist.
  • Explore accommodations. Employers may want to have general reasonable accommodations policies, as well as procedures and request forms, to manage the interactive process. For an employee who declines the vaccine, the appropriate accommodation will depend on a variety of factors, including whether the employee’s position involves patient contact. Depending on the circumstances, appropriate accommodations may include modifying the employee’s work duties, finding an alternate version of the flu shot (or a nasal spray), having the employee wear a surgical mask, transferring the employee to a vacant position, or a leave of absence. Once the accommodation is in place, an employer can continue working with the employee to make sure it remains effective and feasible.
  • Document. In the context of vaccines and otherwise, employers will want to carefully document the accommodation process in writing. Specifically, businesses should keep clear records of precisely what accommodations have been requested, considered, negotiated, and either granted or rejected. Employers may also want to make sure documentation identifies who was involved in the process, when each step took place, whether disciplinary action was taken, and why each decision was made along the way.

Since mandatory flu vaccine programs have been a hotbed for litigation (and a source for the viral spread of misinformation), healthcare providers may want to proceed with caution and make sure their processes and procedures comply with applicable discrimination laws.

If you should have any questions, please contact your HR Representative at 925-556-4404.

California High Heat Advisory: Cal/OSHA Reminds Employers Shade Must Be Made Available for Outdoor Workers

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As temperatures are projected to hit triple digits across the state with
prolonged heat waves, Cal/OSHA reminds employers with outdoor workers that shade
must be made available at all times, and must be in place when temperatures reach 80
degrees or above.

The National Weather Service has issued excessive heat warnings and high heat
advisories statewide, especially in inland areas. Periods of prolonged, widespread triple
digit heat is expected tomorrow through Thursday in downtown Los Angeles and much
of Southern California’s inland areas, as well as in the Bay Area, Monterey, Sacramento
and Central Valley regions.

Cal/OSHA urges workers experiencing possible overheating to take a preventative cooldown
rest in the shade until symptoms are gone. Workers who have existing health
problems or medical conditions that reduce tolerance to heat, such as diabetes, need to
be extra vigilant. Some high blood pressure and anti-inflammatory medications can also
increase a worker’s risk for heat illness.

Staying properly hydrated throughout the workday is one of the most effective heat
illness prevention techniques. Cal/OSHA encourages all workers to drink at least one
quart of water every hour, preferably sipping an 8-ounce cup of water every 15 minutes.
Drinks such as soda, sports drinks, coffee, energy drinks or iced tea are not
recommended for hydration. Also, the lingering effects of alcoholic beverages can
contribute to quickly dehydrating the body in hot weather.

In addition to the basic steps outlined by California’s heat regulation for employers with
outdoor workers, heat at or above 95 degrees Fahrenheit requires additional
precautions. Among other measures, it is crucial that workers are actively monitored for
early signs of heat illness. This helps ensure sick employees receive treatment
immediately and that the symptoms do not develop into serious illness or death.

In case a worker does get sick, supervisors and coworkers must be trained on the
emergency procedures required to ensure that the sick worker receives treatment
immediately and serious illness does not develop.
Cal/OSHA inspects outdoor worksites in agriculture, construction, landscaping, and
other operations throughout the heat season.

If you should have any questions, please contact your HR Representative at 925-556-4404.

7 ways to keep germs out of your workplace

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In a very busy work environment, it’s easy to become distracted and put health on the back burner.. Unfortunately, skipping healthy habits can make us more susceptible to illnesses like viral and bacterial infections. It’s not good for business when employees or their family members are sick, so here are some tips for preventing illness in the workplace.

1. Offer immunizations: Vaccines are effective at preventing illnesses like the flu and other infectious diseases. Encourage employees to keep their vaccines up to date for themselves and their families. It’s best to make immunizations as convenient and cost-effective as possible. Employers can offer on-site clinics and choose a health plan that provides vaccines at little or no cost to participants.

2. Promote healthy foods and drinks: Maintaining a healthy diet and consuming a wide variety of essential nutrients can ward off disease. Next time you are thinking about offering doughnuts for a breakfast meeting, consider a healthier option like fruit and a low-sugar, high-protein yogurt. You could also implement a healthy vending and catering policy at your organization, which requires foods offered in the workplace to meet certain nutrition standards. Additionally, our bodies are not well-equipped to fight infections when we are dehydrated. Filtered drinking water should be easily accessible at your worksite. Installing water bottle refill stations makes drinking water a convenient choice. Always offer water as a beverage option at meetings and work events, and make sure that vending machines and cafeterias stock plenty of water as well.

3. Keep food safe: How long have those leftover turkey sandwiches been sitting out in the break room? Did employees wash their hands and follow good food safety practices when preparing their prized dish for the annual pot luck? Generally speaking, after about two hours at room temperature hot and cold foods will no longer be safe to eat. Make that only one hour if your employee picnic is outside in the summer heat. To keep hot and cold foods fresh longer, they must be properly insulated with hot and cold packs to maintain a safe temperature. Wash hands and prep surfaces between tasks like handling raw proteins and preparing ready-to-eat fruits and vegetables.

4. Minimize stress: Acute and chronic stress can weaken the immune system and make you more prone to infections. Stress in the workplace can have a number of causes such as working in an environment where employees have little control and high demands. Reducing stress in the workplace not only prevents the spread of infectious diseases, but also prevents many chronic conditions such as obesity and heart disease.

5. Encourage ZZZZs: Getting the right amount of quality sleep is important for many reasons and helps with fighting off diseases. Unfortunately, about a quarter of adults report having insufficient sleep at least 15 out of every 30 days.

6. Clean work spaces: Maintain good hygiene when it comes to your workplace. Bathrooms, common areas, break rooms, phones, keyboards, desks, door handles and elevator buttons can be germ magnets. Keep the common areas clean and encourage employees to clean personal office spaces regularly. Make sure bathrooms and break rooms are always stocked with plenty of hand soap to promote good hand hygiene.

7. Have a sick policy: An employer’s sick policy can dictate whether an employee is likely to come to work or stay at home when they are contagious or not feeling well. It’s important for employees to stay at home when they are sick. Sick employees are not productive at work, and staying home prevents the spread of disease to co-workers. An employee should not feel discriminated against or scrutinized for using sick days. Supervisors should be flexible and encourage their employees to refrain from working until they are no longer contagious and are feeling better.

Implement these simple tips at your worksite for a healthier, happier workforce. If you should have any questions, please contact your HR Representative at 925-556-4404.

Cal/OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week.

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Cal OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week. California rules are very clear on how employers must protect their workers from heat illness.

Cal OSHA’s goal is to prevent deaths and serious illnesses and injuries caused by exposure to heat.” Special attention must be given to new employees who have not been acclimatized to working under hot conditions, as they are particularly vulnerable to heat illness. They must be monitored carefully for signs of heat illness and should, if possible, be allowed to begin work earlier in the day when the temperature is lower or gradually work up to a full schedule. Many regions of the state will be reaching temperatures in the triple digits. When temperatures reach 95 degrees or above, employers are required to implement high heat procedures to ensure outdoor workers are protected.

Procedures include effective monitoring of all workers through methods such as a mandatory buddy system for workers or regular communication with workers who work alone. California’s Heat Illness Prevention Standard requires employers to train workers on the signs and symptoms of heat illness, provide shade when temperatures exceed 80 degrees, develop emergency response procedures and train workers on how to execute those procedures when necessary. Cal OSHA inspects outdoor worksites in agriculture, construction, landscaping, and other operations throughout the heat season.

A written Injury and Illness Prevention Program is required for employer who have more than 10 employees. Documented Heat Stress training is required regardless of employee size.

If you should have any questions, please contact us 925-556-4404.

Is Crying at Work Sufficient Notice of an FMLA Covered Condition?

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It is well established that an employee need not specifically request leave under the Family and Medical Leave Act (“FMLA”) in order to benefit from the Act’s protections.  Rather, the law requires the employer to take action to notify an employee of FMLA rights when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason or that the employee may need such leave.  The difficulty facing employers is when to initiate the FMLA process based on observations of the employee’s condition or behavior.  In a recent decision out of the Northern District of Illinois, the Court held that an employee sufficiently stated a claim for interference under the FMLA because the employer was on notice of a serious health condition when she became “extremely distraught and began crying regularly and uncontrollably at work.”

In Valdivia v. Township High School District 214, a secretary claimed her coworkers made derogatory remarks about Hispanic students and their families.  She allegedly complained but nothing was done.  After expressing concern over whether she could continue working while in frequent distress, she was allegedly told that she needed to decide whether she wanted to continue working or resign.  The employee reportedly also told the principal that she was overwhelmed, not sleeping, not eating, and losing weight but she was again given the option of working or resigning.  Ultimately the employee resigned for medical reasons.

In addition to claiming a hostile work environment, the employee claimed that the school interfered with her FMLA rights by failing to provide her notice that she had the right to take job protected leave.  The Court noted that the FMLA notice requirement for employees is “not demanding.”  In fact, it may be possible that the employee is not even aware he/she is suffering from a serious health condition.  In these cases, “clear abnormalities in in the employee’s behavior may constitute constructive notice of a serious health condition.”  The school argued that it was not reasonable to be held accountable for knowledge of the employee’s health condition when she was not even aware of it.  The employee was diagnosed with depression after her termination.  The Court dismissed that argument and noted that uncharacteristic or unusual conduct at work may itself provide adequate notice of a serious health condition.

Employers often struggle with how to address situations involving changes in an employee’s condition or conduct.  Failure to address the situation as one that is potentially covered by the FMLA or even the ADA could result in a violation of the employee’s rights under those laws.  On the other hand, treating an employee as if they have a serious health condition could result in a claim that the employee was improperly regarded as disabled or, in the event of a later adverse employment action, retaliated against for having the health condition.  As demonstrated by this decision, Courts and the Department of Labor tend to give employees the benefit of the doubt with respect to notice of an FMLA condition and employers must be cautious about failing to react in these situations.