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OSHA Inspections Are Serious Business

23 Sep

Starting this summer, Cal/OSHA has added over 40 new inspectors to its staff and their impact is already being felt.

The primary reasons employers are receiving inspections are being in a high hazard industry, having an experience modification of over 125 making them a high hazard employer, having had a serious injury which resulted in an employee being hospitalized or death, or a complaint being filed.

What are the chances you are in compliance with California employment and safety law?

7 Sep

There are over 44 Federal and California laws which apply to employers in our state. What are the chances you are in violation of one or more of these laws? What are the potential costs of such exposure?
We have some idea from the recent report of the Labor Enforcement Task Force, under the direction of the Department of Industrial Relations, which is a coalition of California State government enforcement agencies that work together and in partnership with local agencies to combat the underground economy. In this joint effort, information and resources are shared to ensure employees are paid properly and have safe work conditions and honest, law-abiding businesses have the opportunity for healthy competition.
ETF focuses on high-risk industries known to frequently abuse the rights of low wage workers such as:
• car wash,
• restaurant,
• manufacturing,
• roofing,
• construction,
• agricultural and
• auto repair businesses.

Members of LETF include:
• Division of Occupational Safety & Health (Cal/OSHA)
• Division of Labor Standards Enforcement (DLSE)
• Employment Development Department (EDD)
• Contractors State Licensing Board (CSLB)
• California Department of Insurance (CDI)
• Board of Equalization (BOE)
• State Attorney General (DOJ)
These groups as a task force last year inspected over 3,000 firms, and found violations of Cal/OSHA, improper classification of independent contractors who really were employees, wage and hour violations, improper rest and meal periods, etc.
Over 40 percent of businesses inspected are found to be out of compliance with all inspecting agencies. . Cal/OSHA inspected 2,495 firms and found 89% out of compliance, levying fines of $4.3 million. The Division of Labor Standards Enforcement inspected 2,858 firms and found 57% out of compliance and issued fines of $22.3 million. Employment Development Department inspected 3,019 firms and found 68% out of compliance and issued fines and tax penalties of $25.6 million. The average fine or penalty was $17, 000 per firm.
So, what are your chances of being out of compliance? Probably pretty good. You can improve your chances by working with a good human resources and safety consulting firm such as Don Dressler Consulting and CalWorkSafety.com. Check out our website at http://www.CalWorkSafety.com.

You Need to Review Exempt and Salaried Employee Status

7 Aug

A client this past week asked me to review the status of a salaried employee for compliance with the exempt or non-exempt rules of California and Federal law. As it turns out, this key employee is primarily a “doer” meaning a person who handles very important actions every day for the company, but has limited responsibilities which involve independent decision making and the exercise of discretion. Not only that, but in earning about $34,000, the person is on the borderline of earning enough to qualify as an exempt employee by the level of their income.
Certainly – by the first of 2016 – this person would earn too little to qualify as exempt from overtime under the new rules being planned by the US Department of Labor under changes announced to the Federal Fair Labor Standards Act. You may have read in the news that the income level under these planned FLSA changes will go to over $50,000 per year.
Salaried or not, exempt from over-time or not, these are big issues for employers in California and involve a lot of lawsuits and lots of money and potential damage claims. Now is the time for every employer to look at every single salaried employee and ask an employment attorney or wage and hour specialist – am I ok? Do it long before January 1, 2016 while you still have time to make changes and correct any problems.
Let us know at Don Dressler Consulting if you need assistance. Our team of HR consultants are here to help. Email us at dondressler1@hotmail.com

Most Frequent Cited Violations by Cal/OSHA in 2014

13 Jul

The top 3 reasons employers received citations and penalties from Cal/OSHA in 2014 involved not having adequate written safety plans or heat illness prevention plans.  In fact, just these 3 areas, Illness & Injury Prevention plans for general employers and construction employers and Heat Illness Prevention plans for those with employees who work out of doors involved 30 % of all the 15,000 citation issued by Cal/OSHA last year.

Other frequently cited violations included: failure to have adequate lock out/tag out plans for employees performing maintance on equipment;  failure to report serious injuries or work related deaths to Cal/OSHA within 8 hours; and violations of respirator program due to airborne contaminants or violations of the hazard communications program relating to exposure to hazardous chemicals.

All employers, even with only 1 employee, are required to have an effective written safety plan known as an Injury and Illness Prevention Program. It is clear from Cal/OSHA activity that many employers need to catch up the requirements of this law for almost 38 years now. The requirements regarding a written heat illness plan for any employer with even 1 employee working out of doors have been in place for 10 years now, but significantly strengthened just this past May 1, 2015.

Any employer needing assistance with compliance with Cal/OSHA to with questions about Cal/OSHA or help with a citation from Cal/OSHA can contact Don Dressler Consulting at dondressler1@hotmail.com

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.

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.