Northern California Engineering Contractors Association

Announcements

City of Santa Rosa Inspection Services

The City of Santa Rosa has temporarily limited its operations to provide essential inspection services ONLY to prevent the spread of the coronavirus in our community. This means the City of Santa Rosa has reduced staffing during the pandemic and is focused on providing inspection services that support the most restrictive construction activities that are presented under both the State and County health orders. For more information on actions the City has taken to slow the spread of coronavirus in the community, visit srcity.org/PreventTheSpread. As of April 7, 2020, the following inspection services are available under Sonoma County Order No. C19-03 (Order): link

On April 1, 2020 the County extended the Shelter In Place Order No. C19-03 to May 3, 2020.  The extension also brought with it additional restrictions associated with construction activities.  We’ve received a significant number of requests from the construction and private development communities regarding the activities that are allowed under the County’s amended health order.   The construction specific activities that have received an exemption from the Shelter In Place requirement and are currently allowed to commence are highlighted in Section 13 (F)(F) of the Order.  I’ve included a list of the specific activities below:

  • Projects immediately necessary to the maintenance, operation or repair of Essential Infrastructure;
  • Projects associated with Healthcare Operations, including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response.
  • Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units;
  • Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency;
  • Shelters and temporary housing, but not including hotels or motels;
  • Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs;
  • Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so; and
  • Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed;
  • Construction or debris removal activities undertaken pursuant to Chapters 40 and 40A of the County Code, or any other construction and debris removal activities on fire damaged or destroyed properties;

Not long after the execution of the amended order, the County produced a resource document that provides a summary of the changes that were made.  The summary document and the amended order are available at the SoCo Emergency website.

https://socoemergency.org/order-of-the-health-officer-shelter-in-place-extended/

The City is currently providing any inspection services needed to support the construction activities allowed under the extension of Order No. C19-03.  We recently published a resource document (COVID Inspection Guidelines 4.7.20 – Final_) specific to the delivery of inspection services.  The document also explains the process a contractor can go through to have a project reviewed in order to determine eligibility for future inspections.  Construction projects that are not exempted from the order are still permitted to perform certain actives needed to shut down the construction site in a fashion that leaves it in a safe and secure state.  The vast majority of our current inquiries are associated with this provision.  Our guidance document describes how a contractor can obtain formal approval regarding the specific inspections that will be provided under this scenario.

Gabe Osburn | Deputy Director of Development Services
Planning and Economic Development Department | 100 Santa Rosa Ave | Santa Rosa, CA 95404
Tel. (707) 543-3853 | Fax (707) 543-3936| gosburn@srcity.org

Job Opening

Construction Technician I/II

Brelje & Race Consulting Engineers is a multi-disciplined firm offering a broad range of civil engineering planning and design, construction management, environmental permitting and surveying services. With strong roots since our 1954 start in Sonoma County and a diverse project portfolio, our commitment to high-quality technical work and outstanding client service makes us one of the most sought after firms in the North Bay region.

We have an immediate opening for a full-time Construction Technician I or II and are seeking a qualified individual with underground utility, asphalt paving and/or water/wastewater treatment plant experience. The individual will be responsible for field engineering and construction monitoring at various project sites in Sonoma, Lake and Mendocino Counties. The distinction between CT I and CT II is the attained level of experience and education.

Responsibilities include contract compliance monitoring; observation and reporting of construction activities; coordination of quality control testing; tracking and coordinating adjustments to project schedule; and maintaining client goals and expectations. Office duties may include assisting with contract administration services such as reviewing submittals, responding to requests for information, and maintaining construction contract logs and files.

Required Qualifications:

Construction Technician I

  • Minimum 2 years of experience as construction estimator, foreman or superintendent or 1 year of prior construction inspection experience
  • Experience with a variety of project types such as underground utilities, concrete or steel structures, asphalt paving, mechanical pumping and/or water /wastewater treatment systems
  • Microsoft Office Suite familiarity
  • Strong oral and written communication skills
  • Self-motivated and detail oriented
  • Valid California Driver’s License

 Construction Technician II

  • BS Degree in Civil Engineering or Construction Management with 0 years of experience; OR

Minimum 4 years of experience as construction estimator, foreman or superintendent or 2 years of prior construction inspection experience

  • Coursework or experience with a variety of project types such as underground utilities, concrete, masonry or steel structures, asphalt paving, coatings, pipe fusing, sewer linings, mechanical pumping and/or water/wastewater treatment systems
  • Microsoft Office Suite proficiency
  • Excellent oral and written communication skills
  • Self-motivated and detail oriented
  • Valid California Driver’s License

 Desired Qualifications:

  • Knowledge of California State construction standards (Caltrans)
  • Familiarity with AutoCAD or similar software
  • California E.I.T. Registration
  • QSP or other specialized certifications
  • Familiarity with CSI MasterFormat®
  • OSHA Hazwoper 40-Hour training

Brelje & Race offers a small office work environment with large company amenities and resources. We provide an opportunity for professional development and advancement along with whole life balance. In addition, Brelje & Race provides competitive salaries, generous bonuses and a comprehensive benefits package. Most of our staff have tenures of over 15 years with the company.

Our outstanding team performance stems from a collaborative environment that is supportive, challenging and fun. Engaging in monthly social activities such as bowling, ziplining and summer picnics, enhances our already strong and effective working relationships.

If interested, we encourage you to send us your resume.

Contact:

Sean Jeane, P.E.
Associate Principal
707-636-3740

Brelje & Race Consulting Engineers
475 Aviation Boulevard, Ste. 120
Santa Rosa, CA 95403

Job Available

BoDean Company, Inc. is looking for an Hot Plant Site Manager to join our team! BoDean offers a safe, healthy work environment where teamwork and dedication are encouraged! We do offer an exciting benefit package which includes Vacation, Sick Time, Holidays, 401K, Medical & Dental Insurance, Life Insurance as well as Profit Sharing for all full-time employees. Please reply to this email with a resume and cover letter in order to be considered.

Position Title: Site Manager – AC Operations

Status: Production Staff / Non-Exempt

1 CHARACTERISTICS OF THE JOB

Responsible for the overall operation of the batch plant. Duties include, AC operations, plant processing, and the coordination of plant material needs.

PROVIDES SUPERVISION TO
Equipment and Plant Operators, Laborers, Maintenance, and Weighmaster.

2. RESPONSIBILITIES – ESSENTIAL FUNCTIONS

• Responsible for ordering and determining the inventory material needs of the asphalt plant (oil, cold feed truck scheduling).
• Assignment and/or reassignment of AC production staff in order to assure daily duties are carried out as directed.
• Establish plant schedules, including personnel weekly schedule to assure adequate coverage for production needs.
• Responsible for the instruction and training of all employees in the proper operation and related activities of the plant (WM 2000).

• Track orders and assure accuracy of information provided.
• Serve as sales support staff by greeting visitors and customers in a positive and professional manner and providing good customer service.
• Responsible to resolve problems/concerns as they occur during the workday.
• Assist in maintaining strong quality control over material and production procedures.
• Assure adherence to all safety rules and regulations.
• Provide input to the Director of Production on plant operations and potential staffing needs.
• Responsible for shutting down procedures and assuring that everything is locked upon leaving.
• Assist in loading operations, maintenance needs, excavation, recycle plant, dust control and all other operational needs of the plant site.
• Responsible for storm water preparation and compliance.
• Responsible for process of dealing with employee accidents.
• Host monthly safety meeting and ensure proper use of personal protective equipment (PPE).
• Scheduling of oil.

ANCILLARY FUNCTIONS

• Attend seminars and maintain continuing education to facilitate plant
• operations, safety regulations and management of personnel.
• Provide input for the annual budgeting process.
• Research and development of new and used equipment.
• Research and development of new asphalt production techniques.
• Adhere to all BoDean policies and procedures.
• Maintain onsite employee files.

4. QUALIFICATIONS
• Degree in Industrial Operations or four years work experience in related field may be substituted for the education.
• Knowledgeable in all phases of AC batch operations.
• Ability to communicate both orally and in written form.
• Ability to organize information, develop and implement reporting procedures.
• Must be a self-starter, organized, cooperative and able to work under pressure.
• Must be able to work at a steady pace for long periods of time.
• Must be able to tolerate the exposure and conditions of working outdoors.
• Valid California Driver’s License.
• Ability to work overtime and weekends as directed.

5. WORK ENVIRONMENT
Primarily works outdoors in assisting with the overall operation of the asphalt batch plant. Continuous exposure to changes in temperature, weather conditions, and moderate to high levels of dust, noise and hot asphalt oils. Contact is made with hazardous machinery, such as crusher, conveyor belts, electrical control panel, heavy equipment, and welding materials. Walking surfaces may be uneven. Some managerial duties shall be performed in field office.

6. PHYSICAL REQUIREMENTS
Standing, walking and sitting intermittently throughout work shift. The individual is required to utilize moderate manual dexterity for record keeping and telephone functions. Occasional lifting up to 50 pounds, carrying, bending and stooping when performing production activities. Visual acuity, near and far. Hearing and verbal skills required.

7. IMMEDIATE SUPERVISOR

Director of Production

Workers Comp Package

On July 16, 2019, the ECA Board of Directors voted to join the North Coast Builders Exchange program which collaborates with George Petersen Insurance to offer Members an opportunity to get competitive or less expensive worker comp packages while supporting the ECA. We are very excited about this program and we thank our Big Sister NCBE for allowing the ECA to join their program that has been in effect for the last eight years-very successfully I might add.
For more details, please contact Jeff Okrepkie at 707-360-4338.

New Member

Tri Counties Bank offers a unique brand of customer Service with Solutions® providing a breadth of personal, small business and commercial banking services serving communities throughout Northern and Central California, including Santa Rosa and the San Francisco Peninsula.

Established in 1975 and now with assets of over $6.5 billion, Tri Counties Bank is a wholly-owned subsidiary of TriCo Bancshares (NASDAQ:TCBK) headquartered in Chico, California.

In addition to its California communities branch network, the Bank provides easy access to its services with advanced online and mobile banking, a nationwide network of over 32,000 surcharge-free ATMs, and bankers available by phone 7 days per week.

In Santa Rosa, to learn more call (707) 522-5480, visit the branch at 819 4th Street or visit www.TriCountiesBank.com.

May 2, 2019

A Newsletter 5-2-19

John’s Soapbox

KUDOS to the Sonoma County Board of Supervisors!

Have I gotten mellow in my view of elected officials? It is possible. This Soapbox is going to compliment the existing Supervisors in office in Sonoma County. I know-if I wanted to I could find some things to gripe about, but fair is fair-let’s honestly look at some of the accomplishments the existing five have been able to get some credit for.

I want to start with Shirlee Zane’s unabashed support of building 14 tiny homes for veterans on Russell Avenue. Look-we all know the overall homeless problem is too complex and too varied to have some easy solution. However, in Sonoma County there are several hundred homeless veterans and I personally believe this small “slice” of the big problem is solvable. In 2015 the opportunity for this project was presented and the Supervisors appointed the Community Housing Sonoma County to manage the project. Paula Cook worked tirelessly to get this project built on County owned land. Shirlee Zane supported, cajoled, spoke in favor of, and provided the impetus to get 14 tiny homes built on a small parcel of land on Russell Avenue, just north of the County jail and just south of Kaiser Hospital. To see an article on this, click here

The location is ironic as it is entirely possible, that without these tiny homes providing safe haven for these guys, they could end up either in the jail, or in the hospital. Instead, they have a tiny home with a roof over their head, neighbors with common interest and shared history, and a door to lock that all combine to instill purpose, hope, security and pride in lives that might otherwise have none of that.

Kudos to Shirlee!

We all know what a traumatic series of events Mother Nature has dumped on our County (and others). No budget could have anticipated and had coverage for the massive commitment of resources the County of Sonoma had to put out to overcome the Tubbs and Nuns fires as well as the floods of the Russian River in 2019. The ability of the County Supervisors to get emergency funding to cover much of those costs is unprecedented. It is a tribute to their relationships with Congressmen Thompson and Huffman, as well as State Senator Mike McGuire, and State Assemblymen Jim Woods and Bill Dodd. Those relationships enabled trust and communication which led to getting emergency funding that might not have been available otherwise. It is a tribute to the character and hard work of all five of our County Supervisors that our Sonoma County budget, although stretched and frayed from the emergencies, has held up and continues to fund public safety, transportation infrastructure, and health and human services to a large extent, as it did before the emergencies.

Kudos to Susan, James, David, Shirlee, and Lynda!

Transportation infrastructure has been addressed by this group of Sonoma County Supervisors for the past 6-7 years in a healthy and productive manner. They all get the benefit of regular maintenance of our roads being good practice to safeguard the underlying structural integrity of our 1384 miles of roads in unincorporated Sonoma County. The plan that was put into action several years ago to repair our roads has so far reconstructed or resurfaced over 500 miles of our County roads. Sonoma County has been spending more General Fund dollars on roads than any other County in California for several years now. To go back to 2017 and the repaving of 170 miles in one season, click on this link from the North Bay Business Journal— link

Despite the pressure the emergencies put on the County Budget from the fires and floods, the County still intends to vote on May 21, 2019 on a planned road improvement funding that has not been reduced. The floods of 2019 caused another $23 million in damage to County roads due to washouts from high water that will get funding separate from the May 21, 2019

Supervisor vote. Emergency funding for those roads damaged in the floods is currently being sought by the Supervisors and I have no doubt they will be successful. Thanks for fixing our roads!

Kudos to David, Lynda, James, Susan and Shirlee for fixing our roads!

The 2020 elections will see Lynda Hopkins, Susan Gorin, and Shirlee Zane run as incumbents for re election to the Sonoma County Board of Supervisors. Slated for ECA Board action on May 21, 2019, will be whether to support and endorse the incumbents or not. This will be a Board decision, not a John decision. If you want to state your opinion on whether we should endorse these incumbents, please let me know and I will share your opinion at that Board meeting.

That’s All Folks!

John Bly

Public Officials Night Award winners and sponsors

Thank you to all our sponsors and everyone that attended the Public Officials Night on April 18th.
Antonio Mencarini of Ghilotti Construction Company was the first recipient of the “Golden Hard Hat Award” given to the most deserving worker in the ECA member firms for extraordinary work to help the Community.
Golden Hat Award Video
The Bridge Award will be given to Scott Brodhun, City of Petaluma for their work with Miracle League North Bay. Bridge Award Video
Thanks again to:
Showcase Sponsor
Team Ghilotti
Gold Sponsor
Ghilotti Construction
Platinum Sponsor
Ghilotti Bros. Inc.
Raffle Sponsor
ADS-Pipe
G&G Heavy Equipment Rentals
Jim-n-i Rentals
Northgate Ready Mix
Peterson CAT
Bridge Award
Argonaut Constructors
Kadon Trucking
Syar Industries
The Wattle Guys
V.Dolan Trucking
Bronze Sponsor
Aaction Rents
Adobe Associates, Inc.
APM Homes
Canyon Rock Co., Inc.
George Petersen Insurance
PACE Supply
RCX, Inc.
Siri Grading & Paving, Inc.
Media Sponsor
Sound Ideas

WHAT THE ASHBRITT CLASS ACTION MEANS TO YOU – Smith Dollar PC

WHAT THE ASHBRITT CLASS ACTION MEANS TO YOU
By Ellyn Moscowitz

March 22, 2019

On March 21, 2019, the Press Democrat reported on a class action lawsuit that was brought
against Ashbritt International and Tetra Tech, the engineering and general contractors
responsible for the clean‐up and debris removal of fire afflicted properties in Northern
California. The Federal lawsuit, brought by property owners who lost their homes in the 2017
wildfires, alleges a fraudulent scheme to 1) over‐excavate properties to bill more for removal of
debris; 2) falsifying reports that stated contaminated properties were “safe and
“uncontaminated” and 3) resulted in more expensive engineering costs to rebuild their
damaged properties. The lawsuit was brought under the Racketeering Influenced and Corrupt
Organizations Act (RICO), a law originally created to deal with the influence of the Mafia and
organized crime!

Subcontractors in Sonoma and Napa Counties, who worked with Ashbritt and Tetra Tech, are
understandably nervous about what this lawsuit means to them. The Northern California
Engineering & Contractors Association (NCECA) has asked us to explain 1) what a class action
lawsuit is; 2) how contractors may be implicated in the scheme, and 3) what steps you can take
to protect your company.

Q: What are the specific facts alleged to be unlawful?

Ashbritt and Tetra Tech contracted with the U.S. Army Corp of Engineers (USACE) to test
the soil and remove debris from areas damaged by the fire;

That during their scope of work contractors removed excessive amounts soil, structure,
vegetation or land materials that were not contaminated, to boost the price of the
removal because Defendants were paid by the ton—the more they removed, the more
they were paid;

That Defendants caused damage to or destroyed sidewalks, driveways, wells and septic
tanks;

That Defendants left contaminated materials on the properties and falsely reported the
land was safe;

And that they contracted with subcontractors to be part of this “scheme.”
Q: What is a class action lawsuit?
Individual property owners can collectively bring a lawsuit against Ashbritt and Tetra
Tech when there are so many potential plaintiffs in a case that bringing such cases individually
may be cost prohibitive to the plaintiff and tie up the courts in hundreds of lawsuits. A class
action must be certified by a Judge to proceed as a class action. Here, three individual home
owners brought the suit on behalf of some 14,000 home owners whose property had debris
removed by Ashbritt and Tetra Tech. The potential number of plaintiffs, 14,000 meets the
“numerosity” requirement for class certification. A party seeking a class action must also prove
there are common questions of law and facts so that all issues are worked on together in one
case. Here, the Ashbritt and Tetra Tech may argue that each property has unique characteristics;
that not all properties were damaged, and many had different subcontractors doing the work on
a multitude of properties. The decision about whether this case will proceed as a class action
will not occur until later this year. If the Judge decides against class certification, then each
individual property owner who has a dispute must bring their claims to court individually.

Q: How can subcontractors be brought into the lawsuit?
There are three possible ways contractors who worked with Ashbritt could be brought in: 1)
Ashbritt could “counter sue” the subcontractors who worked with them and allege the
individual contractors working on the land are at fault or were “involved in the scheme”; 2) The
Plaintiffs in this lawsuit could add the contractors in when the names of the subcontractors are
“discovered” under the Doe substitution process or 3) The plaintiffs can bring individual lawsuits
against subcontractors for over‐excavating or tree and vegetation removal;.

Q: Who Might Become Defendants?
If your company contracted with Ashbritt or Tetra Tech over the clean‐up of properties, you
might be brought into the suit. Already, a tree removal service has been sued separately for
removing too many trees as part of the clean‐up. Road companies, excavation contractors, well
or septic companies, electrical contractors and plumbing contractors who did work on the
contaminated properties could also be brought into the suit if you contracted with Ashbritt or
Tetra Tech.

Q: What should I do if I get sued in connection with this case?
Obviously, you should contact your lawyer, or if you don’t have one who can handle these types
of cases, feel free to call our office for help. Not all lawsuits have to be long, protracted or
expensive. It depends on how much of a role your company played in the clean‐up; whether you
acknowledge harm was done and want to enter into a settlement with specific homeowners; or
whether you believe you’ve done nothing wrong and need a strong advocate on your behalf.

To seek advice, please contact me at Smith Dollar at (707) 522‐1100, or email me at emoscowitz@smithdollar.com.

Ellyn Moscowitz, Esq.
Smith Dollar

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