Archive | June, 2015

Update on Paid Family Leave Laws

25 Jun

We are 1 week away from California’s start of our new Paid Sick Leave Law, which applies to all employers. (July 1, 2015) If you still have not written a paid sick leave policy or modified your company’s previous sick leave or Paid Time Off policy – NOW is the time to do so. Send us an email and we can help. You also need to revise the written notice you provide all new hourly employees, and we strongly suggest you use the same type notice for newly hired salaried employees. Let us know if you need help with that notice as well. You can contact us by email at dondressler1@hotmail.com
Oregon has become the fourth state, after Connecticut, California, and Massachusetts, to mandate that employers provide their employees sick leave benefits. Subject to certain exceptions, Senate Bill 454, signed by Governor Kate Brown on June 22, 2015, applies to all private-sector employers, regardless of the location of the employer’s primary place of business. The law goes into effect January 1, 2016.
Under the new law, private employers throughout the state are required to implement sick time policies that meet or exceed the law’s minimum benefits. Employers with operations outside of Portland and who have at least 10 employees working in the state will be required to provide employees up to 40 hours of paid sick leave per year. Employers with Portland operations and who employ at least six employees anywhere in the state will similarly be required to provide up to 40 hours of paid sick leave benefits. The California law, by contrast, applies to all employers, even those with only 1 employee, but only requires a maximum of 24 hours (3 days) of paid sick leave a year.

Advertisements

Two hard lessons for employers from a recent Cal/OSHA case

23 Jun

Following a fire at a Los Angeles area acrylic plastics manufacturing plant, Cal/OSHA conducted an inspection and found 3 safety violations, 2 of which should get the attention of every employer in California.
First, even though the company had to deal with a fire and injured workers, and still called the district Cal/OSHA office within 12 hours to notify them of serious burn injuries, this was not good enough to satisfy Cal/OSHA who cited the employer for violating Section 342(a) not “immediately reporting any serious injury or illness or death of an employee occurring in a place of employment.” “Immediately means as soon as practically possible but not longer that 8 hours after the employer know or with diligent inquiry would have known of the death or serious injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.”

In this incident it took the employer 12 hours to make the report because the supervisor encountered chaos when he arrived at the plant! Further, the supervisor sent an employee to the hospital to check on the condition of injured employees. Cal/OSHA said he should have called while he was driving to the plant or as soon as he arrived. Further, since the plant operates 24 hours a day, Cal/OSHA said the supervisor should have delegated the injury reporting to ensure a report was made when he learned of the fire and “the impending injury of employees”. A fine of $2,000 was upheld by the Occupational and Safety Appeals Board.

To add to the burden of the employer, Cal/OSHA next cited for not doing as complete an accident investigation as they wanted, in particular not determining the cause of the accident and findings and corrective action taken. Cal/OSHA did not say the employer did not find out the cause nor did it say no corrective steps were taken, just that the accident report did not contain “any determination as to the cause of the incident, nor did it contain any corrective actions.” “There was no evidence that the employer investigate how the fire was able to travel for the waste storage area to another room in the plant. Employer did not record any findings as to how employees were injured other than being burned. A fine of $1,125 was upheld by the Occupational and Safety Appeals Board for this violation.

Employers – who often struggle just to obtain the information to complete the Employers First Report of Injury for a workers’ compensation claim, now need to know that much more is expected of them, particularly if there are any significant injuries involved in a work place accident.

If you would like a set of documents to help you with steps to take in case of a work injury: An Employers Guide to Workplace Injury Procedures (requiring medical treatment beyond first aid); an Accident, Injury and Illness Investigation Form; a California Workers’ Compensation Claim Form (DWC 1); California Employer’s First Report of Occupational Injury or Illness or a Cal/OSHA District Offices map, please just e-mail me at DonDressler1@hotmail.com

Warning Signs for Employers Red Flags of Work Comp Fraud

6 Jun

There are several “red flags” that are common in workers’ compensation claim fraud. While none on its own is necessarily cause for alarm, the presence of two or more should raise suspicions and trigger an investigation.
1) Monday morning report of injury. The alleged injury occurs first thing on Monday morning, or the injury occurs late on Friday afternoon but is not reported until Monday.
2) Employment change. The reported accident occurs immediately before or after a strike, job termination, layoff, end of a big project, or the conclusion of seasonal work.
3) Suspicious providers. An employee’s medical providers or legal consultants have a history of handling suspicious claims, or the same doctors and lawyers are used by groups of claimants.
4) No witnesses. There are no witnesses to the accident and the employee’s own description does not logically support the cause of the injury.
5) Conflicting descriptions. The employee’s description of the accident conflicts with the medical history or injury report.
6) History of claims. The claimant has a history of a number of suspicious of litigated claims.
7) Treatment is refused. The claimant refuses a diagnostic procedure to confirm the nature or extent of an injury.
8) Late reporting. The employee delays reporting the claim without a reasonable explanation.
9) Claimant is hard to reach. The allegedly disabled claimant is hard to reach at home.
10) Changes. The claimant has a history of frequently changing physicians, addresses or jobs.
We believe that vigilant employers can nip most fraud in the bud with a tight workers comp management program that focuses on preventing injury, treating employers fairly and compassionately when injuries do occur and closely monitoring the recovery process until return-to-work on full or transitional duty. By actively demonstrating vigilance repeatedly, opportunistic fraudsters may think twice and sophisticated fraudsters may choose an easier target. Here are some best practices:
• Zero tolerance message. Educate employees about their rights and responsibilities under workers comp, and be clear that your intention is to care for anyone who is injured on the job, but that you aggressively prosecute fraud as a crime.
• Publicize your return-to-work program. Establish and reinforce a goal of recovery and return-to-work for any work-related injuries.
• Train supervisors. Your supervisors should understand workers comp and their role in the process. They should understand the employer/employee rights and responsibilities and what to do if an injury occurs. They should be alert for red flags.
• Aim for same-day injury reporting. Train employees to report injuries immediately when they occur.
• Conduct accident analyses. As soon as possible after a work injury or near miss, gather facts and witnesses while things are fresh. This will also set the stage for getting to the root cause and taking any remedial actions to prevent future occurrences.
• Set the tone at point of injury. Escort an injured worker to the treating physician in your network. Remind them of rights / responsibilities and that you will be monitoring their recovery.
• Keep in close touch with out-of-work injured employees. Let the employee know how important they are to the team. Have transitional work available that conforms with any restrictions and establish a return to work date.
• Work with your insurer. Be familiar with “red flags” and report any suspicious activity immediately.

U.S. Citizenship and Immigration Services Issues Guidance on SB 60 Drivers Licenses

4 Jun

U.S. Citizenship and Immigration Services on May 19, 2015 posted on its website guidance for employers of employees who present a driver’s license issued by a state to persons who cannot submit satisfactory proof of legal presence in the United States. In sum, the guidance states that such a license:
• Must be accepted in the Form I-9 employment eligibility verification process as a List B document establishing identity if it otherwise meets the requirements of a List B document (i.e., it contains a photo of or information identifying the individual presenting it) and the employer determines it reasonably appears to be genuine and to relate to that individual.
• Does not, in and of itself, support a conclusion that the employer had actual or constructive knowledge (i.e., knew or should have known) that the employee presenting it is not employment authorized (if that is in fact the case).
In addition, the guidance notes that:
• An employer accepting such a license as a List B identity document in the Form I-9 process must (as for all types of List B documents) also examine a List C document establishing the individual’s employment authorization.
• Under a regulation of the Department of Homeland Security, which houses USCIS, whether an employer is considered to have actual or constructive knowledge that an employee lacks employment authorization is determined on a case-by-case basis and depends upon all of the facts and variables specific to the individual case.
The last point above is made in the context of the federal ban against employing or continuing to employ an employee with knowledge that the employee is not eligible to be employed in the U.S. The DHS regulation noted above states that a “knowing hire” violation can be based on either actual knowledge or constructive knowledge of unlawful status. Constructive knowledge is knowledge that may be fairly inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.
The omission from the guidance of any statement that an employer must do anything other than accept such a license as a List B identity document in the Form I-9 process indicates the federal government does not expect an employer to inquire into why an employee claiming employment eligibility has such a license—at least where the employer has no other reason to doubt the employee’s claim.