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Check Out How The New CA Wage & Hour Independent Contractor Ruling Affects You

14 May
A new wage and hour California State Supreme Court (CSC) ruling – defines persons to be employees and not independent contractors.  The groundbreaking CSC new decision reveals a significant change in independent contractor law that adopts a modified “A-B-C” test for determining whether an individual is an employee under the Wage Orders.  The new independent contractor test is modeled on Massachusetts’ independent contractor statute, which has been considered the strictest in the country.

New Independent Contractor Test

California courts and state agencies have long applied the Borello test for determining whether a worker was an independent contractor under the Industrial Welfare Commission Wage Orders.  This flexible, multi-factor approach determined whether the hiring entity had a “right to control” the manner in which the worker performed the contracted service, along with eight “secondary” factors whether: the worker was engaged in a distinct occupation or business the skill required in the particular occupation, or the worker or the hiring entity supplied the tools used to perform the work and the place where the work was performed.

Despite the Borello test being used for decades for Wage Order cases, the CSC rejected it in favor of a more rigid three-factor approach, called the “A-B-C” test.  Under this new test, a person is considered an independent contractor only if the hiring entity can prove all three of the following:

A.   That the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
B.   That the worker performs work that is outside the usual course of the hiring entity’s business; and
C.   That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
The “A” prong (freedom from control and direction) is similar to the common-law test used in Borello, asking whether the person is free from the “type and degree of control a business typically exercises over employees.”  The “B” prong (outside the usual course of the business) focuses on whether the person is “providing services to the business in a role comparable to that of an employee, rather than in a role comparable to that of a traditional independent contractor.”

But, the “C” prong (independent trade, occupation, or business) asks whether the person “independently has made the decision to go into business for himself or herself,” evidenced by things such as “incorporation, licensure, advertisements, or routine offerings to provide the services of the independent business to the public or to a number of potential customers.”  While presenting limited substantive guidance, the Court made it clear that it intended this new A-B-C test to be stricter than the previous Borello test.

This new independent contractor test only applies to Industrial Welfare Commission Wage Orders.  The CSC did not make any rulings about whether this test would also apply to other wage and hour laws – such as claims for reimbursement for business expenses, but the opinion suggests such laws will remain subject to the Borello standard.

The Narrow ‘B’ Prong

Many states use A-B-C independent contractor tests, often in their unemployment compensation statutes.  The A and C prongs that the CSC announced are comparable to these other tests.  However, the B prong deviates from the norm in an important way.  Most B prongs allow two different ways to prove that a worker is an independent contractor: either by showing that he or she works (1) outside the usual course of the business or (2) outside all the places of business of the hiring entity.  The CSC’s new test purposefully omits this second clause (i.e., “outside all the places of business”), meaning that the only way to satisfy the B prong – and, thus, the only way to be an independent contractor – is for one’s work to fall outside the usual course of the hiring entity’s business, regardless of where the work occurs.

The CSC explicitly copied the Massachusetts statute in crafting this new test.  To satisfy the B prong, the hiring entity must show that the person works in an “independent, separate, and distinct business from that of the employer.”  Said differently, the question is then “whether the service the individual is performing is necessary to the business of the employing unit or merely incidental.”  As a practical matter, for most companies, this narrow B prong works as a “de facto ban,” and prevents the use of independent contractors except where the person’s work has no tangible connection to the hiring entity’s business.

Exceptions

For some transportation companies, courts have held that the Massachusetts B prong is preempted by the Federal Aviation Administration Authorization Act (FAAAA) and is therefore unenforceable. Some Massachusetts courts have also held that “legitimate business-to-business” relationships can qualify for independent contractor status, even if the other “business” is a sole proprietor or one-person corporation.

Conclusion

It remains undecided how California courts will apply this new independent contractor test, or if the standard or its application will be limited by federal law when applied to certain arrangements involving motor carriers of property.  Companies should now expect more difficulty in proving that an individual is classified as an independent contractor under California wage and hour laws.

Although technically this ruling only applies to Industrial Welfare orders – including minimum wage, rest breaks, meal periods and overtime – the impact
is really much broader.  Many CalWorkSafety clients will find it difficult to
sustain the idea of independent contractors as fulfilling their business operations.  We can and will assist in evaluating each instance for you. 
The Bottom Line:
From Now on It’s Going to Be More Limited & Dangerous to Try
to Claim Independent Contractor Status in California

CALL US TODAY – LET’S TALK ABOUT THIS
 AND DEVELOP REAL SOLUTIONS FOR YOU
Visit our website: www.calworksafety.com 

or Call:  949-533-3742
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Changes in CA Immigrant Worker Protection Act

16 Feb

California’s Immigrant Worker Protection Act (AB 450) provides California workers with protection from immigration enforcement while on the job. This law applies to all California employers and was effective January 1, 2018.

One of the requirements of this new law is that employers must provide notice to all current employees when a federal immigration agency intends to inspect the employer’s Forms I-9 or other employment records.

Law Mandates Employee Notice Forms When ICE Plans I-9 Audits

Required Notice to Employees
If an employer receives a Notice of Inspection from a federal immigration agency, the employer must post a required notice to employees in the workplace within 72 hours of receiving the Notice of Inspection.

The Labor Commissioner released an official notice for employers to use. The Notice to Employee (Labor Code section 90.2) is available in English and Spanish.

  1. The notice must be posted in the language normally used to communicate with employees. A copy of the Notice of Inspection and any accompanying documents must be posted along with the required notice.
  2. In addition to posting the notice in the workplace, employers must give the notice to the employees’ collective bargaining representative(s), if any.

Additional Notice Requirements
Employers also have notice obligations once the inspection is over. Within 72 hours of receiving the inspection results, employers must give each “affected employee” a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection.

An “affected employee” is one identified by the inspection results as potentially lacking work authorization or having document deficiencies. There is not a template for this notice; it must be specific to the affected employee.

Preparation Is Essential
Employers only have 72 hours from the time they receive a Notice of Inspection to generate and post the required notice to employees, and only 72 hours from receipt of the inspection results to notify affected employees. Employers who violate the notice requirements can face penalties of up to $10,000 per violation, depending on whether it’s a first or subsequent offense.
The Bottom Line:
Because the timing is so short, preparation is key to meeting the notice requirements. Employers should have a process in place to respond to Notices of Inspection. Employers should identify who in their organization would likely receive a Notice of Inspection and confirm that person knows how to respond.

CALL US TODAY – LET’S TALK ABOUT THIS
AND DEVELOP REAL SOLUTIONS FOR YOU
We’re Here To Help!

Visit our website: http://www.calworksafety.com
or Call: 949-533-3742

Average “Pure Premium” Rates  Will Be Cut by 3% from July 1, 2017

31 Oct
Average “Pure Premium” Rates
Will Be Cut by 3% . . . from July 1, 2017
Rates for January 1, 2018
In October 2017 The California Insurance Commissioner issued a Decision regarding the WCIRB’s January 1, 2018 Pure Premium Rate Filing.
In his Decision, the Insurance Commissioner approved advisory Pure Premium rates that average $1.94 per $100 of payroll. The average approved Pure Premium rate is 3.0% less than the average of the approved July 1, 2017 advisory Pure Premium rates of $2.00 per $100 of payroll.
Pure Premium rates are used as a basis for insurer who then file individual company rates using the “Pure Premium” rates and add operating and other expenses to set their company rates. Insurer rates as of July 1, 2017 industry averaged $2.34 per $100 of payroll, but of course with over 500 classification codes, rates for any individual employer vary widely.
Employers who would like to discuss ways to handle
work injuries and control workers’ compensation
costs should contact CalWorkSafety
for a review of steps to take before an injury,
after an injury occurs, and when an injury is reported late.

Visit our website at www.calworksafety.com for more information

or Call:  949-533-3742

Summer Is Here…And It’s Hot!

15 Aug

With the heat of summer in full swing, California employers covered by CA Regulations  Code, (Title 8, Section 3395) who have employees who work outdoors should review their practices to ensure that they are complying with current Cal/OSHA’s Heat Illness Prevention requirements.

With the High Heat conditions we are experiencing now, Cal/OSHA will be Watching and Inspecting employers to ensure that they follow this heat-related regulations:

  • Free, Cool Water
  • Access to Shade
  • High-Heat Procedures (written)
  • Training for Employees (documented)
  • Emergency Response Procedures (written)
  • Acclimatization
  • Heat Illness Prevention Plan (written)

If you have not already done so, every California employer should develop and implement an effective Heat Illness Prevention Plan for their employees, including:

  1. Procedures for providing sufficient water
  2. Procedures for providing access to shade
  3. High-heat procedures
  4. Emergency response procedures
  5. Acclimatization methods and procedures

These regulations are for the employer’s protection and employees.  

Enforcement of these Heat Illness laws is intensifying, which means employers  can’t afford to ignore them!

These regulations are for the employer’s protection as well as the employees. Enforcement of these Cal/OSHA Heat Illness Laws is intensifying, which means that employers cannot afford to ignore them!

Cal Work Safety understands the Title 8, Section 3395CA Regulations Code

Contact our team of experts….
We know the latest regulations and can help you implement internal programs to keep you compliant and safe from huge penalties.:

Call: 949-533-3742 or email:

DonDressler1@hotmail.com  

Effective April 2016 – updated Equal Employment and Anti-Harassment policies

29 Apr

This is the first of several important human resources and safety issues CalWorkSafety.com and Don Dressler Consulting wish to provide information about for clients and prospects.   First – every employer in California needs to update their employee handbooks or personnel manuals to revise Equal Employment and Anti-Harassment Policies.  

Due to new regulations of the California Fair Employment & Housing Council, we have developed suggested new provisions for client handbooks incorporating these new requirements. It is strongly advised that any employer have an employment attorney or experienced human resources consultant review their entire handbook because very often there are other provisions that involve similar matters which must be coordinated, and also other provisions may be out of date or not be in compliance with Federal or California law.) Contact us at Don Dressler Consulting and CalWorkSafety for assistance. (www.DonDressler.com and www.CalWorkSafety.com )

On April 1, 2016, California employers will be subject to new anti-discrimination and anti-harassment regulations, as amended by the California Fair Employment and Housing Council (“FEHC”). Although the amendments are intended to conform the existing regulations to recent court decisions, the most notable addition is the requirement that covered California employers develop and distribute anti-harassment and discrimination policies with certain required elements and create formal internal complaint processes to address employee concerns. Employers should promptly review their anti-harassment, discrimination, and retaliation policies for compliance with these new regulations.

New Harassment, Discrimination, and Retaliation Policy Requirements

Covered California employers have had an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. But, employers generally had discretion in deciding how to do so. No longer. Starting April 1, 2016, a covered California employer must have a harassment, discrimination, and retaliation policy that:

  • Is in writing;
  • Lists all current protected categories covered under the FEHA;
  • Indicates that managers, supervisors, coworkers and third parties with whom employees come into contact are prohibited from engaging in unlawful conduct under the FEHA;
  • Creates a complaint process to ensure that complaints receive: (a) a designation of confidentiality, to the extent possible; (b) timely responses; (c) impartial and timely investigations by qualified personnel; (d) documentation and tracking for reasonable progress; (e) appropriate options for remedial actions and resolutions; and (f) timely closure;
  • Provides a complaint mechanism that permits employees to complain to someone other than his or her immediate supervisor, such as a designated company representative (including a human resources manager, EEO officer, or other supervisor), a complaint hotline, an ombudsperson, or identification of the California Department of Fair Employment and Housing (“DFEH”) and the U.S. Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints;
  • Assures employees that if the employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation in a manner that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected;
  • States that confidentiality will be kept by the employer to the extent possible, but not that an investigation will be completely confidential;
  • Instructs supervisors to report complaints of misconduct to a designated company representative, such as a human resources manager;
  • Indicates that if misconduct is found after investigation, appropriate remedial measures shall be taken; and
  • Confirms that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Employers must disseminate this written policy to employees by one or more of the following methods: (1) providing a printed copy to all employees with an acknowledgement form for the employee to sign and return; (2) sending the policy via email to all employees with an acknowledgement return form; (3) posting the current versions of the policies on a company intranet with a tracking system to ensure that all employees have read and acknowledged receipt of the policies; (4) discussing the policy upon hire and/or during a new hire orientation session; and/or (5) any other way that ensures employees receive and understand the policy. Employers must translate the written policy into every language that is used as the “spoken language” by at least 10 percent of the workforce at any facility or establishment.

These dissemination requirements are in addition to employers’ continuing obligation to distribute to employees the DFEH’s brochure on sexual harassment (DFEH-185), or an alternative writing compliant with the FEHA.[7]

Training Requirements

Since 2004, California has required that employers with 50 or more employees provide biennial and continual sexual harassment prevention training. The regulations impose new training and record-keeping requirements for those employers.

Such training must now also:

  • Instruct supervisors of their obligation to report sexual harassment, discrimination, and retaliation of which they become aware;
  • Cover appropriate remedial measures to correct harassing behavior; and
  • Review the definition of “abusive conduct,” explain the negative impact of abusive conduct, specifically discuss the elements of abusive conduct, provide examples of abusive conduct, and emphasize that, unless the act is especially severe or egregious, a single act shall not constitute abusive conduct. Although the new regulations still do not identify the amount of time that must be dedicated specifically to the subject of “abusive conduct,” they make clear that the subject should be covered “in a meaningful manner.”

Employers must maintain for two years all written or recorded materials that comprise the training, including copies of all webinars, all written questions and responses from webinars and e-learning, all sign-in sheets, and all certificates of attendance or completion issued, in addition to the already-required names of supervisory employees trained, the date of the training, the type of training and the name of the training provider.

Enforcement

The regulations track existing case law and confirm that there is no stand-alone private cause of action for failure to prevent harassment or discrimination under the FEHA. A private claimant must also plead and prevail on an underlying claim of discrimination, harassment, or retaliation.

The DFEH, however, may independently seek non-monetary preventative remedies for a violation—regardless of whether the DFEH prevails on an underlying claim for discrimination, harassment, or retaliation.

DRAFT UPDATED HANDBOOK POLICIES:

Equal Employment Policy Provision 2016:

[Company Name] is an equal opportunity employer and makes employment decisions on the basis of merit. We want to have the best available persons in every job. Company policy prohibits unlawful discrimination based and over):  ancestry, color, religious creed (including religious dress and grooming practices), denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), genetic information, military and veteran status,  national origin (including language use restrictions), race, sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, and gender expression, sexual orientation and retaliation for making a complaint about discrimination or participating in an investigation of a complaint about discrimination or any other consideration made unlawful by federal, state, or local laws. It also prohibits unlawful discrimination based on the perception that anyone has any of those characteristics, or is associated with a person who has or is perceived as having any of those characteristics. Discrimination can also include failing to reasonably accommodate religious practices or qualified individuals with disabilities where the accommodation does not pose an undue hardship. All such discrimination is unlawful.

The Company is committed to compliance with all applicable laws providing equal employment opportunities. This commitment applies to all persons involved in Company operations and prohibits unlawful discrimination by any employee of the Company, including supervisors and coworkers, clients or customers or suppliers or other outside persons.

If you believe you have been subjected to any form of unlawful discrimination, submit a written complaint to your supervisor or the individual with day-to-day personnel responsibilities. Any supervisor receiving any written or other complain is to report any complaints of misconduct to a human resources manager, so the company can try to resolve the claim internally and promptly. Your complaint should be specific and should include the names of the individuals involved and the names of any witnesses. If you need assistance with your complaint, or if you prefer to make a complaint in person, contact __________________. [insert name of contact person] Confidentiality about  your complaint will be kept by the Company to the extent possible, but the investigation cannot be completely confidential. The Company will immediately undertake an effective, thorough, and objective investigation and attempt to resolve the situation.

If the Company determines that unlawful discrimination has occurred, effective remedial action will be taken commensurate with the severity of the offense. Appropriate action also will be taken to deter any future discrimination. The Company will not retaliate against you for filing a complaint and will not knowingly permit retaliation by management employees or your coworkers for participating in any investigation.

To comply with applicable laws ensuring equal employment opportunities to qualified individuals with a disability, the Company will make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee unless undue hardship would result.

Any applicant or employee who requires an accommodation in order to perform the essential functions of the job should contact a Company representative with day-to-day personnel responsibilities and discuss the need for an accommodation. The Company will engage in an interactive process with the employee to identify possible accommodations, if any, that will help the applicant or employee perform the job. An applicant or employee who requires an accommodation of a religious belief or practice (including religious dress and grooming practices, such as religious clothing or hairstyles) should also contact a Company representative with day-to-day personnel responsibilities and discuss the need for an accommodation. If the accommodation is reasonable and will not impose an undue hardship, the Company will make the accommodation.

Anti-Harassment Policy Provision – 2016

[Company Name] is committed to providing a work environment free of harassment, disrespectful or other unprofessional conduct. Company policy prohibits conduct that is disrespectful, unprofessional as well as harassment based on and over):  ancestry, color, religious creed (including religious dress and grooming practices), denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), genetic information, military and veteran status,  national origin (including language use restrictions), race, sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, and gender expression, sexual orientation and retaliation for making a complaint about discrimination or participating in an investigation of a complaint about discrimination or any other basis protected by federal, state or local law or ordinance or regulation. All such conduct violates company policy.

The Company’s anti-harassment policy applies to all persons involved in the operation of the Company and prohibits harassment, disrespectful or unprofessional conduct by any employee of the Company, including supervisors and managers, as well as vendors, customers, independent contractors and any other persons. It also prohibits harassment, disrespectful or unprofessional conduct based on the perception that anyone has any of those characteristics, or is associated with a person who has or is perceived as having any of those characteristics.

Prohibited harassment, disrespectful or unprofessional conduct includes, but is not limited to, the following behavior:

  • Verbal conduct such as epithets, derogatory jokes or comments, slurs
  • Unwanted sexual advances, invitations or comments;
  • Visual displays such as derogatory and/or sexually-oriented posters, photography, cartoons, drawings or gestures;
  • Physical conduct including assault, unwanted touching, intentionally blocking normal movement or interfering with work because of sex, race or any other protected basis;
  • Threats and demands to submit to sexual requests as a condition of continued employment, or to avoid some other loss and offers of employment benefits in return for sexual favors;
  • Retaliation for reporting or threatening to report harassment; and
  • Communication via electronic media of any type that includes any conduct that is prohibited by state and/or federal law, or by company policy.

If you believe that you have been the subject of harassment or other prohibited conduct or witnessed such actions, bring your complaint to your own or any other Company supervisor, the president or the personnel administrator of the Company as soon as possible after the incident. You will be asked to provide details of the incident or incidents, names of individuals involved and names of any witnesses. It would be best to communicate your complaint in writing, but this is not mandatory. Supervisors will refer all complaints involving harassment or other prohibited conduct to the personnel administrator, investigative officer or the president of the Company. The Company will immediately undertake an effective, thorough and objective investigation of the allegations. Any information provided will be kept confidential by the employer to the extent possible, but because the Company has an obligation to deal with improper behavior it cannot assure that the investigation will be completely confidential.

If the Company determines that harassment or other prohibited conduct has occurred, effective remedial action will be taken in accordance with the circumstances involved. Any employee determined by the Company to be responsible for harassment or other prohibited conduct will be subject to appropriate disciplinary action, up to, and including termination. A Company representative will advise all parties concerned of the results of the investigation. The Company will not retaliate against you for filing a complaint and will not tolerate or permit retaliation by management, employees or co-workers.

The Company encourages all employees to report any incidents of harassment or other prohibited conduct forbidden by this policy immediately so that complaints can be quickly and fairly resolved. You also should be aware that the Federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing investigate and prosecute complaints of prohibited harassment in employment. If you think you have been harassed or that you have been retaliated against for resisting or complaining, you may file a complaint with the appropriate agency. The nearest office is listed in the telephone book.

CA Lawmakers move to raise state minimum wage to $15

31 Mar

California lawmakers have reached a tentative deal with labor groups to increase the state’s minimum wage to $15 an hour over the next six years.

The initiative would boost California’s minimum-wage from the current $10 an hour to $15 an hour by January 2021 by increasing about a dollar most years. Backers of another initiative are still collecting signatures for their alternative, which would push the hourly minimum to $15 on July 15, 2020.

The tentative agreement between Gov. Jerry Brown’s office, labor and legislative leaders would raise the minimum to $15 an hour in 2022 and would give small businesses another year beyond that to reach the $15 level, according to Rendon’s email to Assembly Democrats. The added time could be enough to persuade state business leaders to sign on, especially if the more aggressive minimum-wage increase looks like a winner in November.

California has one of the highest minimum wages in the country at $10 an hour. Massachusetts’ minimum wage is also $10 an hour, while Washington, D.C., has the highest at $10.50. Under the deal, the rate would increase by 50 cents the first two years, to $10.50 in 2017 and $11 in 2018, then by $1 per year until it reaches $15 in 2022, according to a source.

The deal was met with a mixture of joy and anxiety across the state Sunday.

Some workers and labor officials hailed it as a breakthrough in providing higher-wage jobs in fields where it’s a struggle to make ends meet. But some business owners feared the shift would hurt their bottom lines — and perhaps even put them out of business. The debate is likely a preview for the weeks ahead as the minimum wage proposal works its way through Sacramento.

Business groups opposed to raising the minimum wage recently created the Consumers Against Higher Prices Committee to fight the ballot initiative. The group includes the California Restaurant Association, the California Retailers Association and the Los Angeles Area Chamber of Commerce.

“It is imperative that lawmakers listen to the voices of their constituents rather than bowing to the will of special interest groups,” the group said Sunday. “If this overreaching deal is passed through the Legislature, it will not solve any of the fundamental problems it seeks to address, and will result in devastating impacts to family-run businesses, education, seniors, services for the disabled, working families and more.”

Cumulative Trauma

29 Feb
What’s the Difference Between a Specific Injury vs. Cumulative Trauma?

 
In general, there are two types of injuries a worker can suffer while at work.  First, there is the “specific injury.”  For example, if you lift something heavy and hurt your back, if you fall off a ladder, or if you are involved in an automobile accident while making a delivery.

The second type of work injury are the “cumulative trauma” injuries.  Cumulative trauma injuries are also known as “repetitive” injuries. These are injuries that happen gradually at work, over a period of time or during a course of repetitive action.  For example, if your job entails continuous heavy lifting and you gradually develop back pain, or if you use your hands repetitively at work and you develop hand/wrist pain, or if you are exposed to toxins and/or chemicals over a period of time and develop respiratory problems.

In addition to the above physical cumulative trauma injuries, an employee can also develop a cumulative trauma psychological injury.  For example, if you are exposed to ongoing stress at work that causes anxiety, depression, loss of sleep, or stomach problems you may have a workers’ compensation claim for a cumulative trauma psychological injury. However, to be eligible in California for coverage under workers’ compensation – such stress must be predominately caused by employment,   which means at least 50% or more caused by work instead of health conditions, family or financial problems, addiction or drug use, etc.  Also if the stress is caused by good faith employment actions, it is not covered under workers’ compensation.

A cumulative trauma injury can also bring on or aggravate a prior injury or condition. For example, someone who had a back injury many years ago and is required to do a lot of repetitive lifting at their current job may have an aggravation in their back symptoms.

In sum, a cumulative trauma injury is an injury which occurs over time.  A cumulative trauma injury is recognized in the California workers’ compensation system.  There have been a significant increase in cumulative trauma claims in the past several years, and now the cumulative trauma claims make up almost 15% of all claims.  Many are not really eligible for coverage but often employers fail to fully investigate and inform their insurance claims department.

Statute of Limitations for Reporting Cumulative Trauma

The rules that define the time limit for bringing a workers’ compensation claim at the Workers’ Compensation Appeals Board are seemingly straightforward but are wrought with numerous sweeping exceptions. The basic SOL is one year from the date the injury occurred. For specific injuries, the rule is easily applied. However, for cumulative trauma injuries, the rule is not so easily applied. As a general rule (with many intricacies not discussed here), the SOL for a cumulative trauma begins to run on the last date of injuries exposure (the last day the worker was exposed to the occupational hazard causing the health condition). As previously stated, the 1 or one year statute of repose is not without a number of exceptions some of which can be highly factual in nature. Therefore, always consult a lawyer before assuming that an exception exists in your claim.

All states permit some form of such claims, but California is widely seen as the most permissive and lucrative in such awards. When the worker comp claims awards increased in 2010, cumulative injury claims were cited as a cause in a report released in January by the Workers’ Compensation Insurance Rating Bureau of California.

Do you have questions about Cumulative Trauma Worker’s Compensation? Please don’t hesitate to contact us at Don Dressler Consulting and CalWorkSafety.com. We’re here to help!