Kate

The Californian 2020 Q1 – NEW YEAR, NEW DECADE, NEW LAWS!

NEW YEAR, NEW DECADE, NEW LAWS!

2020 EMPLOYMENT LAW UPDATE FOR CALIFORNIA EMPLOYERS

Jaimee K. Wellerstein, Esq. & Annette M. Barber, Esq., Bradley & Gmelich LLP

As we ring in a new year and a new decade, California employers are faced with a number of important new laws. Following are some key employment laws taking effect this year:

  • Sexual Harassment Training (SB 530): Last year, California employers were faced with SB 1343 which requires employers with at least 5 employees to provide at least one (1) hour of sexual harassment prevention training to all non-supervisory employees and two (2) hours for supervisory employees in California by January 1, 2020. SB 530 extends the deadline for mandatory sexual harassment training to January 1, 2021, and requires new supervisors to be provided trained within six (6) months of the assumption of a supervisory position.

Note that temporary services employers (including private patrol operators) must train all newly hired employees as of January 1, 2020, within 30 days of hire or 100 hours worked, whichever is earlier. Temporary services employers have until January 1, 2021 to train all current employees.

  • Prohibition of Mandatory Arbitration Agreements (AB 51): Intending to ban mandatory arbitration agreements, AB 51 was scheduled to go into effect on January 1, 2020. However, on December 30, 2019, a federal court issued a last minute temporary restraining order blocking AB 51 from going into effect and scheduled a hearing.

If it goes into effect, AB 51 would prohibit employers from being able to require applicants and employees to enter into arbitration agreements as a condition of employment. For now, the temporary restraining order remains intact and the matter has been taken under submission. Supplemental briefing is to be filed by the parties on January 24, 2020.

  • Sanctions for Failure of Employer to Timely Pay Arbitration Costs (SB 707): Employers must pay all arbitration fees and costs on time. If not paid within thirty (30) days, the employer is in material breach and waives its right to compel arbitration. Employer could then be subject to attorney’s fees and costs, and possibly evidentiary and terminating sanctions.
  • Expansion of Lactation Accommodation Requirements (SB 142): Lactation space must now include running water, refrigeration to store milk, and electricity or charging stations for electric or battery operated breast pumps.  The bill also provides for additional break time to express milk, policy requirements and penalties under the Labor Code for violations.
  • Settlement Agreements (AB 749): AB 749 voids “no rehire” provisions in settlement agreements entered into on or after January 1, 2020.  The law does include some significant exceptions, including where the employer made a good faith determination that the individual engaged in sexual harassment or assault.  Further, the law does not require an employer to rehire an individual “if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.”
  • Independent Contractors (AB 5): AB 5 codifies the Dynamex Operations West, Inc. ruling, which changed the test used to determine whether California workers are deemed independent contractors. AB 5 codifies the “ABC” test, established in Dynamex, which presumes that all workers are employees, and places the burden on the hiring business to establish all of the following to classify a worker as a contractor: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity. If the company fails to establish any factor, the worker will be classified as an employee.  Extreme care and caution should be used with regard to classification of all independent contractors.
  • Prohibited Discrimination Based on Race Based Hairstyles (SB 188): Known as the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, this law expands the definition of “race” under the California Fair Employment and Housing Act (FEHA) to include traits historically associated with race, such as hair texture and protective hairstyles. “Protective hairstyles” include, but are not limited to, “braids, locks, and twists.” The CROWN Act acknowledges the disparate impact workplace dress code and grooming policies potentially could have on black individuals. Policies that prohibit natural hair, including afros, braids, twists, and locks, are more likely to deter black applicants and burden or punish black employees than any other group. Employers should review their dress codes, grooming policies, and general hiring and employment practices to ensure compliance.
  • Statute of Limitations for FEHA Claims Extended to Three Years (AB 9): Under existing law, the California Fair Employment and Housing Act (FEHA) requires that an employee alleging discrimination, harassment, or retaliation must first file a verified complaint with the Department of Fair Employment and Housing (DFEH) before filing a civil action in court. Currently, the employee has a one (1) year statute of limitations to file their DFEH complaint. AB 9, known as the Stop Harassment and Reporting Extension (SHARE) Act, extends the deadline to file a claim with the DFEH to three (3) years. Employers should note that AB 9 does not revive claims that have already lapsed under the current one-year statute of limitations rule.
  • Amendment to California Consumer Privacy Act (“CCPA”) (AB 25): AB 25 clarifies that “consumers” under the CCPA includes employers, but exempts employers if they are collecting employee data for purposes solely relating to employment.  However, this exemption will expire on January 1, 2021. For now, businesses must:  1) implement physical and electronic security measures to safeguard personnel information of employees and job applicants; and 2) provide a disclosure notice to employees and job applicants listing the categories of “personal information” collected about them and the purposes for which the information will be used.  The disclosure may be provided to current employees through a handbook or memo, and to applicants at the time of
  • Recovery of Civil Penalties for Unpaid Wages (AB 673): Employees now have the right to recover civil penalties for unpaid wages. These civil penalties were previously enforceable only through an action by the Labor Commissioner.  Now, employees can recover $100 for each initial violation, and for a “subsequent violation, or any willful or intentional violation” of $200 for each failure to pay. AB 673 limits employee recovery to statutory penalties or civil penalties under the Private Attorney’s General Act (“PAGA”), but not both, for the same violation.
  • Unpaid Wages (SB 688): Amending Labor Code section 1197.1, which currently permits the Labor Commissioner to cite employers for failing to pay at least the minimum wage, SB 688 expands the power to issue citations for violations of unpaid wages that were less than the wage set by contract in excess of minimum wage.

Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.

Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies. Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbell, the highest peer rating available. jwellerstein@bglawyers.com / 818-243-5200.

 

 

 

 

 

Annette M. Barber is Special Counsel on Bradley & Gmelich LLP’s Employment Team.  She represents clients providing employment advice and counsel in all aspects of hiring, performance management, training, compensation, and termination. Annette spent the past 17 years working with a global security company of 100,000 U.S. employees as an employment law attorney and then as Corporate Vice President directing HR Compliance nationwide for all 50 states, Puerto Rico and Guam.

Annette drafts and revises policies, handbooks, and extensive training materials for the firm’s clients. She provides workplace trainings, as well as workplace investigations. She is a member of the Association of Workplace Investigators, numerous bar associations and employment law sections.  abarber@bglawyers.com / 818-243-5200.

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Kate

The Californian 2019 Q4 – NEW REQUIREMENTS FOR REPORTING SERIOUS INJURY OR ILLNESS AND DEATH

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NEW REQUIREMENTS FOR REPORTING SERIOUS INJURY OR ILLNESS AND DEATH

Jaimee K. Wellerstein, Esq. & Gregory B. Wilbur, Esq., Bradley & Gmelich LLP

A site supervisor at one of your security company’s posts calls into your dispatch center and reports that there was an altercation at a client site. Two of your guards had been asked by the client to remove a trespasser, but a scuffle broke out and the trespasser sucker-punched one of the guards. The other guard gave chase to the assailant briefly, then returned to her partner to render aid. The guard appeared fine but the punch opened a cut on his upper cheek, requiring a brief trip to the hospital for stitches. Is this a reportable event to Cal-OSHA under Labor Code section 6409.1, which requires reporting of serious injuries, illnesses, or deaths in the workplace?

At this moment, it is not, for at least two reasons. The definition of “serious injury or illness” included hospitalizations only of 24 hours or more, so a brief ER visit didn’t trigger a reporting obligation if the incident wasn’t reportable for another reason. And the definition also excluded injuries of any level of severity caused by commission of a Penal Code offense, excusing reporting for injuries suffered as a result of assault, battery, and other crimes. In our hypothetical above, both the duration of the hospital stay and the criminal conduct causing the injury would have made the above scenario one that did not have to be reported to Cal-OSHA.

But not for long. The definition of “serious injury or illness” was significantly amended earlier this year by Assembly Bill 1805, which takes effect January 1, 2020, and for the most part the effect has been to broaden the scope of the Cal-OSHA reporting requirements. The 24-hour minimum for hospital stays is gone: all hospitalizations, except those for medical observation or diagnostic testing, now trigger the requirement. The Penal Code exclusion was repealed as well, meaning criminal conduct no longer excuses reporting what would otherwise be a serious injury or illness. Another exclusion, for accidents on public streets or highways, remains in the statute, but has been narrowed not to include accidents occurring in construction zones. And the statute added amputation or the loss of an eye to the list of injuries requiring reporting, replacing language requiring the “loss of any member of the body.”

Returning to our hypothetical and applying the new law, an event that is not reportable in 2019 will be in 2020. The hospitalization for stitches makes the guard’s injury a serious one under the statute. Furthermore, the criminal conduct that would have excluded the incident from the reporting requirement before no longer does, as the Penal Code exclusion has been removed from the law.

EMPLOYER TAKEAWAYS

To make sure your safety and injury reporting program is in compliance with the new amendments, employers should first be aware of the up-to-date and complete list of triggers for mandatory reporting:

  • Incident that requires inpatient hospitalization other than for medical observation or diagnostic testing, OR
  • Incident that results in an amputation, loss of an eye, or any serious degree of permanent disfigurement

The most important changes to PPOs and other security providers are likely to be those highlighted above: mandatory reporting for any hospitalization other than for observation and testing, and the elimination of the exclusion for incidents resulting from crimes. Employers must make sure supervisors, human resources staff, and safety coordinators are all aware of these changes and the newest standards for mandatory reporting to Cal-OSHA.

Additionally, employers should be on the lookout for an announcement from Cal-OSHA regarding the establishment of an online portal for reporting serious injuries, illnesses, or deaths. Under another new law, Assembly Bill 1804, the agency is directed to establish the online portal to replace immediate email reporting of serious incidents as currently required. Employers may still report serious incidents by phone or email until the portal is established, after which they will be required to report by either phone or the portal. More information on incident reporting can be found here.

Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.

Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies. Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbell, the highest peer rating available. jwellerstein@bglawyers.com / 818-243-5200.

 

 

 

 

 

Gregory B. Wilbur is a member of Bradley & Gmelich LLP’s Employment Department, where he provides aggressive and cost-effective representation to employer clients in a wide variety of proceedings in state and federal court and before administrative agencies. He has extensive experience litigating wage and hour class actions, PAGA representative actions, and discrimination, harassment, and retaliation lawsuits under various equal employment and whistleblower statutes. He has also represented clients in appeals of Cal/OSHA and Labor Commissioner penalty assessments, including seeking judicial review of administrative decisions.

In addition to his active litigation practice, Greg also provides advice and counsel to employers to prevent costly disputes from arising, with a focus on high-risk areas such as wage and hour compliance, reasonable accommodation and the interactive process, and employee leaves of absence. He also helps clients manage their employment law exposure by advising them on the use of arbitration agreements with class action waivers, and drafting such agreements to ensure they remain enforceable in a rapidly changing legal landscape. gwilbur@bglawyers.com / 818-243-5200.

                                          Continue reading the 2019 Q4 edition of The Californian

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Kate

The Californian 2019 Q4 – WORKPLACE VIOLENT ACT – ACTIVE SHOOTER AND VIOLENT ACT COVERAGE

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WORKPLACE VIOLENT ACT – ACTIVE SHOOTER AND VIOLENT ACT COVERAGE

Shaun Kelly, Tolman & Wiker, CALSAGA Preferred Broker

Personally, I want to say, “Thank you”, to the CALSAGA Team for putting on another wonderful conference! It is always great to see everyone and meet the new Members and guests. The Security Industry is continuing to change and CALSAGA does an excellent job keeping the Members updated on those changes that affect our businesses.

Did you know that workplace violence is the second leading cause of workplace fatalities?  With incidents increasing within the last three years, it has sadly become a sign of the times. Do you and your clients know that Active Shooter and Violent Act Insurance Coverage is available to assist in mitigating potential revenue loss and liability?

As the threat of violence emerges, business owners are reviewing their general liability insurance policies and finding that bodily injury or property damage caused by an active shooter may or may not be covered.

Standard coverage may not apply to the crisis management as a result of the event. Personal attacks against customers or other third parties may not be covered by general liability insurance. Additionally, if law enforcement determines your business should remain closed after an incident, your policy may not cover loss of business income.

This policy includes coverage for Business Interruption, Third Party Bodily Injury Liability, Property Damage and Incident Response Expenses.  While most people feel that GL covers some of this exposure, be aware of the following:

  • Intent – Current General Liability (GL) applications do not ask questions regarding this exposure and therefore are not underwriting for it.  The original intent of GL does not include coverage for this type of exposure.
  • Foreseeability – GL can exclude/deny coverage for events the Insured reasonably could have foreseen.  This can include losses where employees have a history of violent behavior and no action was taken to prevent an event, or security measures that could have been taken that were not, etc.
  • Crisis Response – GL will only respond if there is a lawsuit filed and NOT offer proactive crisis management services.  The Workplace Violent Act policy offers Incident Response Expenses (IREs) that include crisis response and extra expense as well as assistance and guidance during a crisis event to help mitigate and/or prevent demands and lawsuits after the crisis.
  • Terrorism – While GL policies offer TRIA to be purchased, there is still no coverage for uncertified violent act or terror events.

Policy definitions and coverage triggers:

Incident means Workplace Violent Act Event, Workplace Violent Act Threat Event, Workplace Violent Act Against

Offsite Employee Event or Stalking Event. Multiple Incidents involving the same Violent Actor(s) will be considered one Incident. In order for Workplace Violent Threat Event(s) or Stalking Event(s) to be considered for coverage, they must be reported to the appropriate government authorities as soon as practicable.

Workplace Violent Act Event means the use of a Deadly Weapon to cause Bodily Injury at a Covered Location.

Deadly Weapon means any firearm, vehicle or other device, instrument, material, or substance that, from the manner in which it is used or is intended to be used, is calculated to or likely to produce death or physical injury.

Active Shooter and Violent Act Insurance coverage may be something that you or your clients may be interested in reviewing. Specifically, if they are a school, religious establishment, airport, hospital, shopping center……anywhere. Click here to view information on the coverage. An application is included, if you would like to obtain a quote.

Please let us know if you have any questions or if we can be of assistance.

Shaun Kelly joined Tolman & Wiker Insurance Services in 2005.  He specializes in all lines of property and casualty insurance for industries including contract security firms, agriculture, construction, oil and gas. Shaun received a BS in Business Administration with a major in Finance from California State University in Fresno, California. He is an active member of several industry associations, including the Association CALSAGA, the Kern County Builders Exchange and the Independent Insurance Agents of Kern County. Shaun can be reached at 661-616-4700 or skelly@tolmanandwiker.com.

Continue reading the 2019 Q4 edition of The Californian

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Kate

The Californian 2019 Q3 – WORK OPPORTUNITY TAX CREDITS

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WORK OPPORTUNITY TAX CREDITS 

Kwantek Team

 

In the Security Industry, it’s common to hire employees that would qualify for Work Opportunity Tax Credits (WOTC). If your company has significant annual hiring volume, using these credits can help deduct tens of thousands of dollars from taxable income.

WOTC is a Federal Tax Credit available to most employers who hire and retain veterans and individuals from other groups with barriers to employment. Employers are eligible to reduce their federal income tax liability by an average of $1,000 per employee, with a credit potential up to $9,600 for some employees.

Who is Eligible for WOTC?

WOTC is available for employers that hire veterans and individuals from other groups with barriers to employment. This includes:

  • Veterans – unemployed and other qualified
  • Temporary Assistance for Needy Families (TANF) Recipients
  • SNAP (food stamps) Recipients
  • Ex-Felons
  • Supplemental Security Income Recipients

This represents a massive opportunity for contract security companies to reduce their taxable income by thousands – and even hundreds of thousands of dollars. Let’s take a look at an example of a Kwantek client:

  • 665 New Hires were WOTC Eligible
  • 309 Received WOTC Certifications
  • $904.22 average Tax Credit earned per certified employee
  • $279,404.09 real Tax Credit to Employer

If you’re hiring veterans, ex-felons, or low-income employees, you could stand to deduct thousands of dollars each year from your taxes!

Click here to download a full report detailing everything you need to know about WOTC.

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Kate

The Californian 2019 Q2 – ON-CALL AND CALL-IN SHIFTS REQUIRE PAYMENT OF WAGES

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ON-CALL AND CALL-IN SHIFTS REQUIRE PAYMENT OF WAGES

Jaimee K. Wellerstein, Esq., Bradley & Gmelich, CALSAGA Network Partner

A sales clerk brought a putative wage and hour class action against his employer, Tilly’s, alleging that store employees were due reporting time pay for on-call shifts or call-in shifts in which employees were required to contact the stores two hours before the start of their shift to determine whether they were needed.  The sales clerk argued that having to be on a tether to determine if he should have to report is the same as being under the employer’s control and should be compensated as reporting time.

The employer argued that on-call scheduling is not what triggers the Wage Order reporting time pay requirements, but rather when they actually report physically to work.  In Ward v. Tilly’s, Inc., 31 Cal. App. 5th 1167 (2/4/2019), the Court of Appeal sided with the employees and held that if an employer directs employees to present themselves for work by telephoning the store two hours prior to the start of a shift, then the Wage Order’s reporting time requirement is triggered by the telephonic contact.

Reporting time pay is one-half of the scheduled shift and, in any case, not less than 2-hours of pay at straight time. (See, IWC Wage Order No. 4, section 5.)

LESSON LEARNED:  Although the On-Call or the Call-In models are not typically used in the security industry, if you do, be aware that each employee is deemed to be under the employer’s control while they are waiting to see if they will be needed.  As such, reporting time wages are required to be paid.

Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas. Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies. Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbel, the highest peer rating available. jwellerstein@bglawyers.com 818-243-5200.

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Kate

The Californian 2019 Q2 – U.S. SUPREME COURT: COURTS MAY ONLY COMPEL CLASS-WIDE ARBITRATION IF EXPRESSLY AGREED UPON IN EMPLOYMENT ARBITRATION AGREEMENT

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U.S. SUPREME COURT: COURTS MAY ONLY COMPEL CLASS-WIDE ARBITRATION IF EXPRESSLY AGREED UPON IN EMPLOYMENT ARBITRATION AGREEMENT

Jaimee K. Wellerstein, Esq., Bradley & Gmelich, CALSAGA Network Partner

In a split 5-4 decision in Lamps Plus, Inc. v. Varela, No. 17-988 (Apr. 24, 2019), the U.S. Supreme Court held that courts may only compel class action arbitration where the parties expressly declare their intent to be bound by such actions in their arbitration agreement. The holding and rationale are important to employers because the Court decisively ruled that class arbitration “fundamentally” changes the nature of the “traditional individualized arbitration” envisioned by the Federal Arbitration Act. Thus, the Supreme Court said, “Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.”

Following the Supreme Court’s ruling, arbitration agreements must unequivocally state that the parties agree to resolve class actions through arbitration in order to proceed this way. Courts cannot compel the parties to arbitration when an arbitration agreement is ambiguous about the availability of class arbitration.

Employer Takeaway: This ruling is a win for employers. Courts can no longer impose class-wide arbitration unless the employer’s arbitration agreement clearly authorizes this. Only express agreements between the parties can lead to class arbitration. Companies, along with their counsel, should review their employment arbitration agreements to determine whether they comply with the SCOTUS standards.

Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas. Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies. Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbel, the highest peer rating available. jwellerstein@bglawyers.com 818-243-5200.

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Kate

The Californian 2019 Q2 – ESSENTIAL CONTRACT TERMS FOR YOUR SECURITY SERVICES AGREEMENTS

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ESSENTIAL CONTRACT TERMS FOR YOUR SECURITY SERVICES AGREEMENTS

Barry A. Bradley, Esq., Bradley & Gmelich, CALSAGA Network Partner

While recently teaching CALSAGA’s Security University course on contracts, it became clear that many of your service contracts with your clients are often missing some vital essential terms.  Without going into too much detail in this limited space, examine your contract template and see if they contain each of the following:

  • General Statement of Duties (Scope) Are your duties clear and defined both as to location, post responsibilities, hours, expectations, and especially limitations? Are your officers to use force? Are they just required to observe and report?
  • Term of Contract When does your service agreement expire? Will it automatically renew? Is termination addressed?
  • Price and Payment Terms Are all service hours defined and invoicing defined?
  • Attorney’s Fees If a dispute arises between you and your client (for example, for non-payment), does the prevailing party have a right to recover its reasonable attorney’s fees?
  • Disclaimers Are you making promises you shouldn’t?
  • Indemnification This is perhaps one of the most vital areas of your agreement. Is it in your favor, or are you giving up the farm?
  • Insurance Requirements Are you providing appropriate insurance coverage? Are you required to name your client as an Additional Insured? Are there exclusions that might apply for which you might not have coverage?
  • How Disputes are Resolved? In the event of a legal dispute with your client, where and how will it be addressed?

These are just a few of the necessary provisions that should be addressed in any of your service contracts.  There are additional areas that can protect your business, but at a minimum, you should make sure you have these basics.

LESSON LEARNED:  We all know it is better to use your own contract than one that is drafted by your client. Your basic template can and should fully protect your business.  However, when you must use your client’s contract, you can always negotiate before you enter into the agreement and try to ensure that some of these essential provisions are there that will protect your business.

Contact us to assist you in reviewing your contract template, or any agreements you might be asked to sign.  (Once you sign it, it’s too late to change things.)

Barry A. Bradley is the Managing Partner of Bradley & Gmelich LLP located in Glendale, California, where he heads up the firm’s Private Security Team and oversees the Employment and Business Teams at the firm.  A former Deputy District Attorney, Barry’s practice concentrates on representing business owners in employment, business and licensing issues, as well as defending litigated cases involving negligent security, employment and business related issues.  The firm acts as general counsel for many security companies in California.  Barry is the Legal Advisor to CALSAGA.

He has been conferred an AV-Preeminent Peer Rating by Martindale Hubbell, the highest rating attainable, and has been named a Southern California Super Lawyer for the past 14 consecutive years in the area of Business Litigation.  Barry is also the recipient of CALSAGA’s Security Professional Lifetime Achievement Award. bbradley@bglawyers.com  818-243-5200.

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Kate

The Californian 2019 Q2 – HEAT ILLNESS PREVENTION

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HEAT ILLNESS PREVENTION

Shaun Kelly, Tolman & Wiker, CALSAGA Preferred Broker

It’s that time of the year….not post tax season… Heat Illness Prevention season!

With the change in seasons comes the warmer weather and it is imperative (And required by Cal/OSHA) that all employers train their supervisors and employees on heat illness prevention. The safety of your employees is the responsibility of the employer and if an unfortunate event does occur, Cal/OSHA may  be investigating the event. If so, they will be asking if you have your Heat Illness Prevention Program in place. The investigation will include verification that you have provided training to your supervisors and employees.

A Cal/OSHA study identified the key role that employers play in preventing worker fatalities due to heat illness. The findings highlighted the value of training supervisors so that they can make the fullest use of their power to control safety on the job.

California Code of Regulations, Title 8, Section 3395 Heat Illness Prevention requires all employers to have a Heat Illness Prevention Program which includes the following:

Provide fresh/potable drinking water

Employers must provide employees with fresh, pure, and suitably cool water, free of charge. Enough water must be provided for each employee to drink at least one quart, or four 8-ounce glasses, per hour and the water must be located as close as practicable to the work area. Employers are also required to encourage employees to drink water frequently

Provide access to shade

When temperatures exceed 80 degrees, employees must be provided shade at all times in an area that is ventilated, cooled, or open to air and that is as close as practicable to the work area. There must be sufficient space provided in the shade to accommodate all employees taking rest. When temperatures do not exceed 80 degrees, employees must be provided timely access to shade upon request. Employees should be allowed and encouraged to take preventative cool-down rest as needed, for at least 5 minutes per rest needed.

Have high heat procedures in place

High heat procedures are required of agricultural employers when temperatures exceed 95 degrees. The procedures must provide for the maintenance of effective communication with supervisors at all times, observance of employees for symptoms of heat illness, procedures for calling for emergency medical services, reminders for employees to drink water, pre-shift meetings to review heat procedures and the encouragement of employees to drink plenty of water and take preventative cool-down rest as needed.

Agricultural employers must additionally ensure employees take, at a minimum, one 10-minute preventative cool-down rest period every two hours in periods of high heat.

Allow for acclimatization

New employees or those newly assigned to a high heat area must be closely observed for the first 14 days of their assignment. All employees must be observed for signs of heat illness during heat waves. A “heat wave” is any day where the temperature predicted is at least 80 degrees and 10 degrees higher than the average high daily temperature the preceding 5 days.

Train all employees regarding heat illness prevention

Employees must be trained regarding the risk factors of heat illness and the employers’ procedures and obligations for complying with the Cal/OSHA requirements for heat illness prevention. Supervisors must additionally be trained regarding their obligations under the heat illness prevention plan and how to monitor weather reports and how to respond to heat warnings.

Have emergency response procedures

Employers must have sufficient emergency response procedures to ensure employees exhibiting signs of heat illness are monitored and emergency medical services are called if necessary.

Have a Heat Illness Prevention Plan

Employers must have a written heat illness prevention plan that includes, at a minimum, the procedures for access to shade and water, high heat procedures, emergency response procedures, and acclimatization methods and procedures.

For your reference, linked is a sample of a Heat Illness Prevention Plan.

Shaun Kelly joined Tolman & Wiker Insurance Services in 2005.  He specializes in all lines of property and casualty insurance for industries including contract security firms, agriculture, construction, oil and gas. Shaun received a BS in Business Administration with a major in Finance from California State University in Fresno, California. He is an active member of several industry associations, including the Association CALSAGA, the Kern County Builders Exchange and the Independent Insurance Agents of Kern County. Shaun can be reached at 661-616-4700 or skelly@tolmanandwiker.com.

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Kate

THE CALIFORNIAN 2018 Q3 – FEELING THAT CANNABIS HIGH

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FEELING THAT CANNABIS HIGH

by Stephan P. Hyun, Esq.

 

Starting on January 1, 2018, cannabis-related business activity became legalized in California, resulting in a lot of questions about the opportunities that have now become presented.  We as legal counsel often get asked:  Should I do business with a cannabis company?  What should I look out for?  How do I protect myself?  After all, this legalization affects both the licensed cannabis businesses themselves as well as the businesses who do business with them.

Here are important issues that we frequently deal with in protecting our clients who want to start doing business with a cannabis company.

1) Typically in contracts, there are provisions that say how the agreement will be governed and interpreted, as well as where any claims can be brought.  Having these provisions properly drafted can be ‘life-savers’ because while cannabis is legal in California, it is not legal federal-wide.  Also since California has enacted additional protections to ensure that the contract can be enforced under California law, adding certain clauses and language in your contract can allow California courts to determine that your contract is valid and enforceable.  This will help you in instances when the cannabis business your dealing with is not upholding their end of the bargain.

2) We advise our clients to put into the agreement ways in which you can terminate or suspend your services immediately without any notice.  When advising our clients and drafting their contracts, we take into account the possibility of the federal government investigating or prosecuting cannabis activity even in states where it’s ‘legal’.

3) Our firm has negotiated key provisions to be incorporated into cannabis security service contracts.  One of the provisions that we insist be carved out is about when the cannabis business will defend you and cover your losses if the federal government comes after you for being seen as facilitating/assisting a cannabis business.

4) In the agreements we have worked on, we want to ensure our clients are protected by eliminating consequential damages.  Consequential damages are damages that go beyond the contract itself and flow from some type of failure in adhering to the contract.  Consequential damages in a cannabis-related situation would be the loss of the cannabis product that may have been stolen, or the cannabis company’s lost profits as a result of the security officer failing to show up at the dispensary on time.  For our clients, we advise them to limit their exposure, and draft contracts to meet that end.

5) Because many banks do not want to deal with cannabis businesses, cannabis businesses frequently pay in cash.  We counsel our clients to be wary of the temptation to be paid in cash.  By accepting cash, you could be accused of money laundering by the federal government.  Further, federal prosecutors may be suspicious that you are not simply a security services provider, but rather a pawn in the cannabis company’s scheme to hide where the money is truly coming from.  Certainly, this is unwanted attention for your business.

Recommendation:  We recommend that you get ahead of the ball and be proactive in preparing separate cannabis security service agreements, different from your standard contracts.  That way you lead in the negotiations for your services versus the other way around.  By understanding the intricacies and interplay between federal and state cannabis law, you will be able to fully capture this new opportunity and better protect yourself from this emerging cannabis high.

 

Stephan P. Hyun is an associate attorney at Bradley & Gmelich LLP, where he represents clients in a variety of business litigation and general liability matters, with a focus on providing legal counsel in business transactions and contracts, as well as business formation/development.  His practice also extends to handling licensing and compliance issues for both private security and cannabis industries.  He recently presented on the topic of Cannabis in California at the CALSAGA conference.  shyun@bglawyers.com  /  818-243-5200.

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Kate

THE CALIFORNIAN 2018 Q3 – WHEN DOES  A “TALL” BECOME A “VENTE?”

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Bradley & Gmelich LLP’s Legal Corner

In this issue, we have two articles.  From our Employment Team, we address a new California Supreme Court case requiring payment of wages for trivial work that may be performed after an employee clocks out, even if it only takes two minutes.  We also present, from our Business Team, an article to those PPOs who are thinking of selling to another company – some questions to help you look for potential blind spots.

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From Our Employment Team:

WHEN DOES  A “TALL” BECOME A “VENTE?”

(OR, WHEN DOES SOMETHING MINIMAL BECOME BIG?)

Barry A. Bradley, Esq., Bradley & Gmelich, CALSAGA Network Partner

On July 26, 2018, the California Supreme Court dealt another blow to employers, as it departs from applying federal law to our wage and hour issues.  In Troester vs. Starbucks Corporation, plaintiff brought a class action on behalf of himself and all non-managerial hourly employees who had to perform store closing tasks.

Essentially, Troester said he was required to clock out at closing, and then transmit data from the computer regarding daily sales, profit and loss, and store inventory data to Starbuck’s corporate headquarters. Troester would then activate the alarm, exit the store, and lock the front door.  Occasionally he would escort other employees to their cars, pursuant to Starbucks policy. These tasks typically took anywhere from 4 to 10 minutes to complete, but averaged less than 5 minutes.

He sued Starbucks arguing that he (and all non-managerial employees who closed the stores at night) should have been compensated for this minimal time.  (Over a 17-month period, it added up to $102.67.)  Starbuck’s argued that the time was de minimus, or so trivial that it doesn’t deserve to be counted.  Federal labor laws have long recognized that such minimal work need not be compensated, under the so-called de minimus doctrine.

Although the district trial court threw out the case, the California Supreme Court unanimously disagreed with Starbucks and the district trial court. In holding that the de minimus doctrine does not apply to California wage and hour laws, it opened the door for class action lawsuits on these new grounds.  The Court held that even though the employee’s tasks only took a few minutes, the fact that employees were required to regularly work for nontrivial periods of time without providing compensation was tantamount to requiring off-the-clock work.  Besides, to Troester, the Court reasoned that $102.67 may not have been so trivial – it could have paid for a monthly gas bill, or perhaps a nice dinner.

Thus, the Troester plaintiffs can now pursue their class action lawsuit against Starbucks alleging unpaid wages, as well as the “coat-tail” claims of inaccurate wage statements, failure to pay all final wages in a timely manner, and unfair competition.

[Note:  the Court expressly did not decide the question of whether an employee who, on rare occasion needs to spend a few minutes doing something after they clock out, would constitute a violation. The Court limited its decision to the specific facts presented, and left open the fight of whether occasional work need be compensated for another day.]

RECOMMENDATION:  Do not require your employees to regularly perform tasks after they clock out.  This could include writing in a pass-down log, conducting verbal shift-change information, calling-in to their supervisors to give updates, or just cleaning out a patrol vehicle to lock up the items.  If this is part of their job duties and it is required to be performed after they clock out, you are in violation of the wage laws. This could result in a serious class action or a Private Attorneys General Act (PAGA) lawsuit.

 

Barry A. Bradley is the Managing Partner of Bradley & Gmelich LLP located in Glendale, California, where he heads up the firm’s Private Security Team and oversees the Employment and Business Teams at the firm.  A former Deputy District Attorney, Barry’s practice concentrates on representing business owners in employment, business and licensing issues, as well as defending litigated cases involving negligent security, employment and business related issues.  The firm acts as general counsel for many security companies in California.  Barry is the Legal Advisor to CALSAGA.

He has been conferred an AV-Preeminent Peer Rating by Martindale Hubbell, the highest rating attainable, and has been named a Southern California Super Lawyer for the past 14 consecutive years in the area of Business Litigation.  Barry is also the recipient of CALSAGA’s Security Professional Lifetime Achievement Award. bbradley@bglawyers.com  818-243-5200.

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