Northern California Engineering Contractors Association

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Smith Dollar Employment Law Notes – December 19, 2018

New California Employment Laws for 2019—The “Big Four”

Undoubtedly, we all have 🎵It’s the Holiday Season🎵 echoing in our minds and ears as the year comes to a close. However, those with responsibility for employees cannot be lulled into believing the holiday season will serve as protection for not changing policies and practices immediately due to new laws coming in 2019.

This is especially true in California. 2018 was littered with landmines when it came to changes in statutes, regulations, or the court’s interpretation of existing standards. As we all know, California had the dubious honor of serving as the battlefront in the #MeToo movement.

Below, please find a listing of the most impactful changes, which we call the “Big Four”.  While not comprehensive, this list does provide you with a quick index to review to see if your business needs to make any changes — applications, employee handbooks, employment agreements, independent contractor agreements, severance agreements, etc. Otherwise, if those changes are not incorporated in the coming weeks, your business could be at risk of a visit from the Labor Commissioner or a process server come January 2.

Four Major Court Decisions

It seemed like every month in 2018, California employers were hit with a new court case that greatly impacted the way they went about their business. However, a number of them left so many unanswered questions that it was particularly difficult for employers (and counsel!) to discern and implement reliable new standards. In fact, the Dynamex decision on employment misclassification has already experienced two subsequent cases revising its impact—Curry and Garcia—and is awaiting a decision in a third on a motion for summary judgment—Western States Trucking Association—that identifying the explicit change in law moving forward would be an educated guess at best.

Happily, the below identifies four (4) court decisions that provided some definitive guidance on issues that impact employers throughout the state. Review these decisions, update your practices and training, and you will be in a good position heading into the new year.

  1. Standard Disciplinary Actions Cannot Constitute Constructive Discharge Unless they Involve Continuous Patterns of Mistreatment or Aggravating Working Conditions

In Simers v. Los Angeles Times Commc’ns, LLC, Plaintiff, a well-known sports columnist, sued defendant Los Angeles Times alleging disability and age discrimination, and constructive termination. The California Court of Appeal affirmed the dismissal of the constructive termination claim, and held that the use of standard employer disciplinary actions – e.g., criticism, investigation, demotion, performance plan – cannot constitute constructive discharge, even if undertaken for reasons later found to involve discrimination, unless they were employed in an unusually aggravated manner or involved a pattern of continuous mistreatment.

Take Away: Establish objective and impartial discipline procedures and document, document and document!

  1. Disclosure of Sensitive Personnel Information to Nonsupervisory Employees can Lead to Liability under Privacy Laws—for the Employer and Supervisor 

In Hurley v. Cal. Dep’t of Parks & Recreation, an employee overheard her supervisor discussing details of her personnel file with a nonsupervisory employee. The supervisor mentioned plaintiff’s probation at a prior job, a health insurance issue, and that her psychologist recommended that she take leave for one month. The employee filed an internal complaint and the supervisor acquired the employee’s supervisory drop file in anticipation of being interviewed, only to subsequently retire with the file still in the supervisor’s possession.

The employee filed a complaint in state court against her employer and supervisor alleging various employment related causes of action, including intentional infliction of emotional distress against defendant and her supervisor.  After learning that the supervisor never returned the file, the employee amended the complaint to include claims for invasion of privacy, violation of the California Information Practices Act (“IPA”), and breach of medical confidentiality.

After the defendants lost at trial, they appealed and lost again. The California Court of Appeal noted that the disclosure of records covered by the IPA is not limited to personnel files, and the file at issue qualified.  Further, the file was improperly disclosed on multiple occasions and the disclosures were sufficient to have caused emotional distress.

Take Away: While a violation of the IPA is limited to public entities only, employers are cautioned that employee information (personnel file, leaves of absence forms, etc.) needs to be protected and should be disclosed on a need to know basis only.

  1. Standard Workers Compensation Compromise and Release Agreements Do Not Release all Potential Claims

In Camacho v. Target Corp., the employee and employer settled a workers compensation claim using a standardized compromise and release form, providing that the release applies only to the workers compensation and related claims. The parties then added an addendum that specified additional particular claims. Shortly thereafter, the employee filed a civil complaint alleging harassment against the employer, and the employer argued unsuccessfully that the form release covered that claim.

The California Court of Appeals found that the language in the release was not sufficiently clear to put plaintiff on notice that he was signing a general release of liability.

Take Away: If an employer wants to resolve all claims at the same time as a workers’ compensation settlement, the employer should use an appropriate agreement containing general release language and waivers to ensure there is no ambiguity to what is being released.

  1. Timekeeping System that Rounds Time is Legal so Long as System Does Not Systematically Undercount

In AHMC Healthcare, Inc. v. Superior Court, the Court of Appeal reaffirmed the rule that a rounding policy is lawful if it is facially neutral, consistently applied, and does not favor the employer to a significant degree.  Further, rounding policies are not analyzed on an individual employee basis: even if an individual employee is undercompensated, so long as all employees as a group are compensated fairly, the policy is lawful.

Take Away: While a rounding policy may be lawful, it is expensive to defend as an expert needs to be retained to analyze all employee time records.  Since most employers use time clocks or POS systems to record time and not manual paper records, there is no real need to round anymore. This practice should be discontinued.

Four “Me-Too” Developments

The #MeToo moment transitioned into the #MeToo movement in 2018—most significantly in California. Many new bills were proposed and considered. Many were signed by Governor Brown. The bulk of the new statutes expand existing protections. Some added new restrictions and requirements around resolving workplace sexual harassment. Here are four  of the most notable changes:

  1. FEHA Amendments (SB 1300)

The Fair Employment and Housing Act (FEHA) is amended as follows:

  1. Employers now liable for any kind of unlawful harassment by non-employees where the employer knew or should have known of the harassment and failed to take appropriate corrective action;
  2. Employers cannot require an employee to release a FEHA claim in exchange for a raise or bonus or as a condition of employment or continued employment;
  3. Employer cannot  require an employee to sign a non-disparagement agreement or other document preventing the employee  from disclosing information about unlawful acts in the workplace;
  4. Adds declarations clarifying the Legislature’s intent with regard to the application of the anti-harassment laws:
    1. A single incident, including a “stray remark” may be sufficient to create a triable issue regarding the existence of a hostile work environment.
    2. Statements uttered by a non-decisionmaker can be considered as part of the totality of the circumstances for hostile work environments Harassment cases are rarely appropriate for disposition on summary judgment.
    3. The legal standard for sexual harassment does not vary by type of workplace.

 

  1. Expansion of Relationships Covered Under FEHA (SB 224)

SB 224 added, ““investor, elected official, lobbyist, director, and producer” among those listed persons who may be liable to a plaintiff for sexual harassment under Civil Code, § 51.9 of who may be personally liable for sexual harassment.

  1. Sexual Harassment Training for All Employees and Small Employers (SB 1343)

SB 1343 expands the present requirement of employers to provide at least 2 hours of sexual harassment prevention training to all supervisors and managers every 2 years, or within 6 months of an employee becoming a supervisor or manager to include employers with at least 5 employees. Previously, it was limited to employers of 50 or more.  The amendment also requires employers to provide at least one hour of training to non-supervisory employees by January 1, 2020, and once every 2 years thereafter.

  1. Female Directors on Corporate Boards (SB 826)

SB 826 requires publicly-held domestic and foreign corporations with principal executive offices in California to have a minimum of one female director on their boards by the end of 2019. This minimum gradually increases over the next years, depending upon the size of the entity.

Take Away:  We expect to see a rise in sexual harassment claims in 2019 based on the clarifications made by the Legislature.  Employers be aware and train, train, train, discipline, and train (and discipline) some more.

Four Other  Changes

Beyond #MeToo, there are a number of other statutory and regulatory changes that went into effect in 2018. These changes should spur employers to review and revise current employee handbooks, practices, policies, and training to ensure that they are compliant.

Here are four of those changes that could impact your business:

  1. Expansion of National Origin Discrimination under FEHA

California law already prohibits discrimination on the basis of “national origin,” but new regulations were published that expanded the definition of this protected category, effective July 1, 2018. It now includes prohibiting discrimination, harassment, and retaliation regarding all of the following:

  • Physical, cultural, or linguistic characteristics associated with a national origin group;
  • Marriage to or association with persons of a national origin group;
  • Tribal affiliation;
  • Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  • Attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  • Name that is associated with a national origin group.

The regulations also clarify that “national origin group” includes any ethnic groups, geographic places of origin, and countries that are not presently in existence. This may include micro-nations, which claim to be independent nations, or states that are not recognized in the international community.

In addition, the new regulations address language restriction policies, limited to circumstances where the restriction is justified as a business necessity, narrowly tailored, and employer documents communicating to employees the language restriction, when it applies, and what happens to employees who violate it.

  1. Copy of Payroll Records (SB 1252)

SB 1252 amends Labor Code Section 226 to clarify that employees have the right “to receive” a copy within twenty-one (21) days of the request. The prior version of the section provided that employees solely had a right to inspect or copy their payroll records in that timeframe.

  1. Lactation Accommodation (AB 1976)

AB 1976 amends Labor Code, § 1031 and requires an employer to make reasonable efforts to provide an employee with “use of a room or other location, other than a bathroom, to accommodate an employee desiring to express breast milk” for a child. The new law substitutes “bathroom” for “bathroom stall”.

  1. Criminal History Inquiries (SB 1412)

SB 1412 amends the Labor Code to tighten the exception to the prohibition of criminal history inquiries to apply only where an employer is required by law to inquire into a “particular conviction,” or where the employer cannot by law hire someone with a “particular conviction.” A “particular conviction” is defined to mean “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.”

Contact Information”

Diane Aqui daqui@smithdollar.com

Glenn Smith gsmith@smithdollar.com

Justin Hein jhein@smithdollar.com

ECA Survey

ECA Survey
As we head into our 2019 year, it is important that we understand what our members want as a “Return on Investment” for belonging to the ECA. In that spirit, I hope you can take a few short minutes to fill out this survey and send it back to us.
Click here for form.

Emergency Response Manual 2019- 2020

It is time to update the Emergency Response Manual.

We provide this manual to local city and county agencies in case of an emergency we can help serve our community.

If you are a contractor or an affiliate that can provide assistance in an emergency please fill out the attached ER Info Flyer.

We are also offering advertising. For those interested in advertising in the Emergency Manual see attached ER Ad Flyer.

Team Ghilotti

Corporate Member – Team Ghilotti
Experience, Expertise, Integrity
Kevin Ghilotti, Matt Verke, Robert Lee,Joe Moreria
Glen and Kevin Ghilotti started Team Ghilotti, Inc. in 2007 bringing with them a culture of family, community, and expertise in the construction industry. Glen Ghilotti believed in quality workmanship completed safely and giving back to the community. When the fires struck, Glen partnered with many local firms to help rebuild Sonoma County.
We are honored to be able to work with other leading professionals in the Bay Area to support the Miracle League of the North Bay. As Team Ghilotti, Inc. continues to grow in the coming years, we will continue our support of our local community and charities.
Glen genuinely cared for each of his employees. His employees were an extension of his family. In honor of Henry James “Babe” Ghilotti, TGI started a scholarship for employees’ family members to attend college. This year, Kevin Ghilotti has continued this scholarship in honor of Glen and keeping with our roots of caring for our employees and their family members.
With Glen’s passing in March of 2018, Kevin and Jennifer Ghilotti have continued TGI’s spirit of work completed with integrity and growing our community with the support of talented construction professionals in Robert Lee, Joe Moreira, Karen Toso, Sean Durenberger, Matt Verke, Mike Sciacca, Alan Texeira, Dan Mercury, Steve Mack, John Loftus, Joe Petroni, Juan Avelar, Mike Daily, Ed Ponte, Fernando Romo Vallejo, John Merz, and Egidio Bettinelli.
Team Ghilotti continues to perform complex projects such as the P-1 Pipeline project in Cotati with adherence to the same standards set by our founder, Glen Ghilotti; standards of quality, longevity, and safety. We maintain a fleet of specialized equipment and employ the latest technologies available in the industry for projects to be completed timely and with precision. With a knowledgeable staff, state-of-the art equipment, and dedication to innovation in design and implementation, TGI can deliver construction projects that are built to last.
Team Ghilotti, Inc. looks forward to serving our communities for many years to come.
To find out more about Team Ghilotti, Inc., please visit our website at www.teamghilotti.com.
Team Ghilotti, Inc. is an equal opportunity employer.

Job opening

Advanced Stormwater Protection, Inc, a stormwater and water resources consulting firm is growing. This growth has created an exciting opportunity in Northern California for a QSP or QSD of any level to implement SWPPP, inspect BMP’s, investigate, sample and monitor stormwater discharges in order to maintain client compliance. This inspection position will evaluate and resolve client stormwater federal, state, and local regulatory compliance needs through site auditing activities which include inspection, sampling, other field related activities, reporting and the establishment and maintenance of the inspection routes.

Requirements: Construction Management or related field experience in stormwater services delivery and inspections. Must have working knowledge of local regulations and be skilled in program development, system design and scheduling and routing inspection services activities. QSP and/or QSD certification required as well as a valid driver’s license, clean driving record and reliable transportation.

The successful candidate must be a self-starter, have strong technical writing and problem-solving skills, good observation and communication skill with the ability to work independently.

If you do not have the requirements or skills listed above ASP, Inc will sponsor and support you in training and getting you certified through our 90-day training/probation period.

We offer interesting, technically challenging work within a supportive work environment as well as a comprehensive compensation package. Please submit a resume and letter of interest to jason@aspnow.net.

Thank you for your time,

Jason Griffin, President

CPESC #6764, QSD #22388

707.953.9787

 

 

Stormwater Solutions

An article in Storm Water Sollutions on January 26, 2018. ECA member Doug Allard, The Wattle Guys transormed his property to produce straw wattles and inlet protection on site.

for more information go to this link!

https://www.estormwater.com/wildfire-warnings

Re Building Updates

Minutes from 10-17-17

ECA Cleanup and Rebuild Meeting

The meeting was intended to present information as to how local contractors can be involved in the cleanup from the fire.  The goal was to come up with ideas on how ECA members can take care of their clients that are asking them to mobilize and cleanup with or without the CalRecycle being put into place as the oversight organization.  Another intended purpose of the meeting was to discuss ways to reallocate existing resources from contract work existing to cleanup and erosion control work due to the emergency.  Developing a new work force by holding a job fair was also discussed.  Finally, discussions on the need for housing (temporary and permanent) were discussed.

Here is a summary of the discussions:

*How is the cleanup and debris removal going to happen?  Although this was a “fluid situation” at the time of the meeting, generally it is believed the Feds will have a hand in dictating the rules for surveying the sites for hazardous materials and then CalRecycle will be the governing body in charge of doing the cleanup and the erosion control.  Art Diecke attended the Sonoma County Board of Supervisor meeting Tuesday morning, and discussed what guidelines were presented by Christine Sosko, who is the Director of Environmental Health for Sonoma County (Christine phone # is 707-565-6521).  There was discussion as to what the rules of entry for cleanup will be, and generally it is anticipated there will be two acceptable methods:  1.  Follow the guidelines of the Office of Emergency Services to EPA to Cal Recycle to whatever contractor (s) Cal Recycle puts in place (probably Pacific States) and local contractors should get preference over outside labor forces.  If the OES path is followed, the homeowner will allocate his insurance settlement for debris cleanup over to CalRecycle and the Government will cover the balance of the cleanup costs for the homeowner or business owner.  If the private path is followed, the homeowner or business owner will be responsible for the cleanup costs from his insurance company and the rest will be out of pocket to the homeowner or business owner.

*What is the procedure for cleanup?  Although at the time of the Town Hall meeting, the County and City had not yet posted the protocol required, based upon past fire cleanup we can anticipate the procedure will be as follows-This protocol will be generally followed whether CalRecycle is administering the oversight or whether a private contractor is selected by the homeowner or business owner.

Here is my opinion-uneducated-uninformed-but I am probably right.  Whatever your homeowner decides to do, whether going with CalRecycle or the private route, the authorities want to know the following:  what bad stuff was in the debris?  Where did you take and dispose of the bad stuff?

Dustin Davis spoke to this, and the assumed protocol will be, in simplified form, as follows:  A) A licensed demolition contractor goes to the City or County and applies for a demolition permit (in the case of CalRecycle, the homeowner will fill out a right of entry form, and either the EPA or CalRecycle will pull the permit and conduct survey of the property as described following)-generally these demolition permits are available over the counter.  As part of the demolition permit requirements, the permittee must bring in a licensed and certified consultant company to sample the site for EPA identified hazardous materials.  Lab testing of the samples is involved.  Prior to disturbing any of the ash, metal, or debris, the lab results must be analyzed and a protocol for handling, storing, shipping, and disposing of the debris must be established that follows all applicable EPA and OSHA regulations as well as local regulations as to landfill disposal.  B)  Once the site has had the debris removed and disposed of, including a layer of dirt to depths deemed safe by the haz mat survey, then the homeowner can apply for a building permit but will need to show the appropriate documentation of the debris and hazardous material removal.

Curtis Mikalini of Industrial Carting spoke up and said his firm would have the necessary debris containers and that his firm can also handle the car removal.  Again, EPA regulations must be followed which means the burned autos have to be drained of all fluids and have batteries removed and fluids and batteries must be disposed of with special environmental health firms.  Only after they are drained can the cars be hauled off by Industrial Carting.

Contractors are urged to get their workers that will be on the ground on these burn sites to comply with all personal protective equipment prescribed by OSHA, the EPA, and the local Environmental Health and Safety departments that the site is located in.  Jim Persons, a well-known safety consultant, spoke to what the requirements for PPE are.  The ECA recognized that workers need a 40 hour HazWop certification and have set up a class for the 40 hour HazMat certification to be held on 10-19-17, 10-20-17, 11-2-17, and 11-3-17 for 10 hours each day.  ECA is charging their cost plus a nominal fee to cover hard costs of food and drink and classroom rental.  There is room in the class for signups still. Email mary@nceca.org if you are interested.

Since our meeting yesterday, I have received several new informational pieces.  I have attached them here:  1 is the 10-18-17 Press Democrat article announcing EPA is overseeing the toxic cleanup, http://www.pressdemocrat.com/news/7534834-181/us-epa-to-oversee-toxics?artslide=0

and the other is a form handed out to a homeowner as they were allowed back into their site.  The form was handed out by the City of Santa Rosa. 

 *In Lake County, Workers Had to be Dispatched to CalRecycle Contractors through the union hall.  Is that going to be the case here?  This was unknown at the time of the meeting but Chris Snyder of Operating Engineers Local 3 addressed the issue by saying that workers would be allowed from local contractors regardless of their signatory status to collective bargaining agreements.  Also discussed was that only licensed contractors would be allowed to perform the work.  If there is any question as to what contractor license is required, contact Eric Stephens of the Contractor State License Board at 707-536-0713 and ask.

*Erosion Control Needs and SWPP will be required as usual?  David Noren of the Regional Water Control Board discussed what the considerations should be for containment of sediment runoff and we also had Mary Larsen and Jason Griffith on hand to discuss erosion control issues specific to the burn sites.  Doug Allard of the Waddle Guys informed us that he has the ability to locate a waddle manufacturing machine right on site for the cleanup projects.  Rich Castle of Castle Pumping informed us that he has a special attachment to his belt conveyor that enables filling of “sand bag tubes” up to 200 lineal feet long.  Much faster and easier than doing it by hand.

*What mistakes were made in Lake County and how can we avoid those here?  Lake County Supervisor Rob Brown was able to share his thoughts and experience on this subject.  Some of the points Rob made were:  Average cost of cleanup for the 500 sites in Lake County was $100,000.  Rob stressed that schools should get back in session as soon as possible with regularly scheduled events taking place.  Rob also pointed out to the workers cleaning up the sites to treat the sites with the utmost respect as families consider those sites sacred ground.  Workers need to be sensitive.

*There is a tremendous need for housing.  What can the ECA do to alleviate this?  Glen Ghilotti spoke about the need for locating appropriate sites to be immediately site conditioned to put RV’s, trailers, and prefab houses on them.  All utilities are needed so sites are preferable close in to City sewer and water infrastructure.  City of Santa Rosa Councilman Chris Rogers was on site and let everyone know that the City was not ruling out anything and would work with us to develop appropriate housing areas.  It was urged for people to think about what sites might be good candidates  for development of housing sites.  Mark Soiland suggested the old Sonoma County Water Agency site on W College as being perfect.  Someone else suggested the fairgrounds near the old little league ball fields.

*Tools have been lost-can we set up a tool room?  Keith Woods mentioned that during his time manning the desks at Mendocino Avenue LAC, he heard story after story of contractors that had lost their truck and tools.  Keith asked the group if they thought it a good idea to develop a tool room for those affected and collect some tools for victims of the fire.  Glen Ghilotti generously donated $5,000 to seed the need.  Another member of the audience suggested there was a pawn shop with some inexpensive tools that we might contact.  All good suggestions!

*Where Are The Workers Going To Come From-We are already busy!  Mike Ghilotti suggested the ECA hold a job fair ASAP.  Folks are out of work because businesses have been lost, and we could all use some extra workers.  Cynthia Murray suggested the County is already set up for this, but the ECA might coordinate with the County and see to it that training specific to our construction needs is being addressed.  John Bly mentioned that City and County and CalTrans might consider allowing non-emergency contract work have dates for completion extended so resources might be able to be reassigned to cleanup, infrastructure repair, and erosion control.

John Bly, Executive Vice President, Northern California Engineering Contractors Association

O-707-546-5500 M-707-483-0859 F-707-546-5507

1000 Apollo Way, Ste 100, Santa Rosa, CA  95407

The City and County are currently working on the protocol on debris cleanup on burn sites due to the fire. At this time homeowners and business owners that want private contractors to clean up their sites must be patient and “stand down”. More information will be presented at a Town Hall meeting at Santa Rosa High School from 6 pm – 8 pm today. As soon as we have more information we will share it with you. Thank you.

 

John Bly