Kate

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

, , ,

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.

/by
Kate

The Californian 2019 Q2 – HEAT ILLNESS PREVENTION

, , , , ,

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.

/by
Kate

THE CALIFORNIAN 2018 Q4 – SECURITY GUARD VS. SECURITY OFFICER- WHICH SHOULD YOU USE?

, ,

SECURITY GUARD VS. SECURITY OFFICER- WHICH SHOULD YOU USE?

Kwantek Team

So, you have a position opening up in your contract security firm. Now is the time to post the job in various places using your standard job description and other boilerplate materials you use when hiring.

You know you need systems in place for this, so you arm yourself with tools like an applicant tracking software or detailed hiring spreadsheets.

The question now becomes, what should your job title be?

Security Guard or Security Officer?

Many people in the industry will tell you there is no difference in the two.

Some say an Officer is armed and a Guard is not.

Some say the Officer has greater training and/or responsibility.

As we look at today’s hiring and retention landscape, there are two main reasons you should prefer the term “Security Officer” rather than “Security Guard.”

1) “Security Officer” is Searched More Often on Indeed

Thanks to data made publicly available by Indeed, we are able to know exactly how people are searching for security jobs.

In September of 2018, “Security Officer” was searched 725,027 times.

“Security Guard” was only searched 392,036 times, nearly half that of “Officer.”

If you want your job to be seen, the first logical step is to make the title what people search the most.

But it goes deeper than just what the candidate is searching. While it might help you edge out “Guard” in the search results, Indeed is smart enough to show jobs with both titles.

Making sure you get good placement is one thing, but how many people actually click your job?

In September of 2018, jobs titled “Security Officer” received 3,688,632 clicks.

Jobs titled “Security Guard” received only 975,338 clicks.

Not only does “Officer” get nearly twice as many searches as guard, it gets nearly FOUR TIMES as many clicks.

We like to let the data speak for itself. This is one of those cases.

2) Appeal to Your Audience

The first rule of copywriting is to appeal to your audience.

Your audience (your current and prospective employees) wants to feel respected and important.

Put simply, “Officer” has an implication of greater responsibility than “Guard.”

Implications aside, perhaps you actually believe there to be a fundamental difference between the two titles.

Here’s the reality…

A good guard, officer, or watchman is alert and observant.

They are ready and able to defuse a situation with words rather than weapons.

They are helpful to others and they follow rules of the management and client.

All of these responsibilities are those of an officer, and labeling them as such works to enhance their sense of self-worth and pride in their job.

When making this decision, we ask ourselves: what’s the goal?

Is the goal to be “right” in a semantics discussion?

Or is our goal to attract the best and most talent and keep them employed on our teams?

At Kwantek, we much prefer the latter, therefore “Security Officer” is the title we recommend.

If you insist on there being a difference between the two, consider using “Senior Security Officer” and “Security Officer” job titles. The difference could mean greater retention and/or more applicants.

/by
Kate

THE CALIFORNIAN 2018 Q4 – ACTIVE SHOOTER INCIDENTS: HOW SECURITY OFFICERS ARE HELD LIABLE

, ,

ACTIVE SHOOTER INCIDENTS: HOW SECURITY OFFICERS ARE HELD LIABLE

Tory Brownyard, President, Brownyard Group

The sheer volume of active assailant incidents in 2017 and 2018 has left many observers feeling the prognosis is grim for halting these incidents. Yet the security industry has remained a practical and hopeful voice in response, as experts seek to address the threat head-on with strategies and practices for access control, de-escalation and timely reporting.

However, one critical element is sometimes left out of these discussions: reducing potential liabilities. In the aftermath of active shooter incidents, as we all search for a cause, sometimes security is held up as the party at fault. Even if an officer behaves professionally, they may be held liable—whether it’s a verdict in the courtroom or the perception of those who read or view it in the media.

It may seem self-serving to focus on mitigating the risks associated with protection. I know security professionals want to focus on protecting the people and businesses they have been hired to serve. Yet they can’t do that job if they do not protect themselves as well.

Clients have high expectations for security officers. In fact, they sometimes expect security contracts to guarantee total safety and security, which no firm can promise. From an insurance perspective, I recommend firms seek to include indemnification clauses in their contracts, which transfer risk from the security professionals to the people who contract them, essentially holding the security professionals harmless. Similarly, contracts may include force majeure clauses, which remove liability in the case of an unforeseeable or extraordinary incident.

However, the reality is that contracts do not always include this language. When they do, the incidents that are covered by either clause can be up for debate. When that is combined with the very real and valid trust clients put in security professionals, it can result in litigation. These lawsuits may include allegations of negligent security, failure to protect or failure to anticipate foreseeable violence.

During litigation, attorneys sometimes raise the issue of poorly designed or improperly followed policies and procedures. For example, some businesses have a “zero tolerance policy” for workplace violence. This is communicated to security officers with little indication of how this impacts their post orders or how they should respond in specific situations. Instead, post orders communicated in contracts should create clear expectations for officers and, ideally, be developed in conjunction with security experts.

Clear policies and procedures not only protect everyone during an active shooter incident, but also can help security professionals defend themselves in the event of a lawsuit. A customized active shooter response plan—that details a security officer’s role—is a critical tool for reducing losses during a tragic incident.

It should also be emphasized that training supports post orders, policies, procedures and response plans, both for officers and for the people they are protecting. Without effective training, neither party will be able to execute even the most carefully designed plans.

Yet how do you plan when clients do not fully grasp their exposures and security flaws? Planning without a security assessment puts security professionals in a difficult position as they are asked to execute policies and procedures that they do not agree offer the best protection. Even if a client declines, offering a security assessment—and doing so in writing—allows the client to consider the option for the future and demonstrates the security firm was diligent in attempting to fulfill their obligations to the client.

I am sure security professionals would prefer to focus on their area of expertise—protection—not the threat of lawsuits. But taking a proactive approach to managing active shooter risks and attending to potential sources of liability can free officers to focus on what they do best.

 

Tory Brownyard, CPCU, is president of Brownyard Group (www.brownyard.com), an insurance program administrator with specialty programs for select industry groups. In addition to his responsibilities as President, he currently spearheads the Brownguard security guard insurance program. For more information, contact him at TBrownyard@brownyard.com.

/by
Kate

THE CALIFORNIAN 2018 Q4 – SB 1343 EMPLOYER ALERT – NEW SEXUAL HARASSMENT PREVENTION TRAINING REQUIREMENTS

, ,

SB 1343 EMPLOYER ALERT – NEW SEXUAL HARASSMENT PREVENTION TRAINING REQUIREMENTS

Shaun Kelly, Tolman & Wiker, CALSAGA Preferred Broker

With the changes that are happening in society regarding the “Me too” movement and the subsequent litigation surrounding the allegations, it does not surprise me that California legislators passed Senate Bill 1343, effective January 1, 2019.

The current law requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

The new law reduces the 50 employee trigger and now requires an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter, as specified.

Here is a brief summary of the new bill:

1. All employers with 5 or more employees, including temporary or seasonal, must provide all employees in a supervisory role a minimum of 2hrs of sexual harassment training (this does not include bullying, which is required and is in addition to the minimum 2hr requirement).

2. All employers with 5 or more employees, including temporary or seasonal, must provide all employees in a NON supervisory role a minimum of 1hr of sexual harassment training.

3. The period in which this is to be accomplished is 1/1/2020, if the employee is currently employed.
a. for new employees in supervisory or non supervisory positions, the training must be conducted at time of hire or within 6 months of hire
b. for employees entering a new, supervisorial role, the training must be conducted within 6 months of their new role
c. for temporary, seasonal or employees hired to work less than 6 months, the training must be conducted within 30 days of hire or 100 hours worked, whichever occurs first.

4. Training for both the minimum 2 hour training for supervisors and the minimum 1 hour training for non-supervisory employees must continue every 2 years, thereafter.

5. Post-training documentation must be retained for 10 years, irrespective of the employee’s employment status with the company.

6. The bill also requires DFEH (dept. of fair employment and housing) to develop or obtain and post 1hr and 2hr online courses. An employer will have the option to conduct online training or classroom setting training.

7. All employers must make sure that their sexual harassment policy is in line with the current policy revision of 04/01/2016.

8. The new sexual harassment policy requirements which went into effect on 04/01/16 in part require that you discuss your policy at time of hire and or during a new hire orientation.

9. Another requirement is that you provide each employee with a copy of your policy with an acknowledgement form for them to sign stating that they have received, read and understand your policy.

10. An often overlooked regulation that took effect in 2018 requires that employers display a poster regarding transgender rights prepared by the California Department of Fair Employment and Housing.Below is a link to more details of SB 1343:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB1343

If you have any questions, please do not hesitate to contact us.

 

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.

/by
Kate

THE CALIFORNIAN 2018 Q3 – FEELING THAT CANNABIS HIGH

, , ,

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.

/by
Kate

THE CALIFORNIAN 2018 Q3 – SECURE BEHIND THE WHEEL: DECIDING TO PREVENT DISTRACTED DRIVING

, ,

SECURE BEHIND THE WHEEL: DECIDING TO PREVENT DISTRACTED DRIVING

Tory Brownyard, President, Brownyard Group

 

From public health officials to your insurance agent to the local police department, everyone wants to talk about distracted driving these days. We all know the basic facts: Distracted driving is common—and some experts (such as the National Safety Council) believe distracted driving is underreported as a cause of accidents.

 

Getting distracted from the task of driving leads to crashes, injuries and worse. According to the National Highway Safety Administration, 3,450 people died nationwide in 2016 as a result of distracted driving. Plus, distracted driving is often against the law—in California, thanks to AB 1785, it is illegal to drive with a cell phone in your hand.

 

Preventing unsafe driving of all kinds comes down to decisions: whom security firms decide to hire, the decisions that security officers make on the road and how the company decides to respond to accidents. If you are responsible for hiring or managing security officers with driving responsibilities, you can put in place systems to support better driving decisions.

 

  1. Understand what falls under the umbrella of distracted driving

The term “distracted driving” is often using to mean driving while using a cell phone. Yet “distracted driving” refers to any type of driving during which the driver is not attending to the road. Eating and smoking are distractions, as are GPS devices and radios. Texting while driving is particularly dangerous, because it takes our hands, eyes and minds off the wheel.

 

  1. Develop enforceable and clear driving policies

Most companies have some version of a cell phone ban for employees who drive. But a distracted or safe driving policy needs to outline clear, distinct and enforceable policies for employees.

 

Questions a policy can answer include:

  • What should employees do instead of using their cell phones when driving?
  • What are the consequences for dangerous driving behaviors?
  • Are there systems for monitoring employees’ driving behavior, such as dashcams and telematics?
  • What happens after an employee gets in an accident?

 

These policies can be supported by regular road tests and ride-alongs that help detect signs of trouble among drivers while giving managers an opportunity to review policies in context. In order to ensure a policy is enforceable, it should be developed in conjunction with human resources and legal counsel.

 

  1. Make informed hiring decisions

Some businesses “hire the problem”—that is, they hire unsafe drivers for positions that require driving. Checking motor vehicle records (MVRs) is as important as a criminal background check for officers who drive; those responsible for hiring should review a candidate’s MVRs for every state in which he or she has had a driver’s license. MVR red flags include frequent violations like speeding or citations for driving under the influence (DUI). Past violations may indicate future behavior.

 

It also may help to consider the candidate’s skill and experience driving, such as training in defensive driving. Alternately, consider whether or not he or she has a health condition that does not permit operating a vehicle for long periods of time.

 

Finally, it may help to ask yourself whom you would hire if you did not have insurance. That is, who has the sort of driver profile that would make you feel safe enough to put them behind the wheel with little safety net? The public expects businesses to carefully screen employees like security officers. Hiring an unsafe driver could not only result in an accident and insurance claim, but damage your reputation.

 

  1. Use technology to your advantage

Modern technology is not always the villain on modern roadways. It can be used to reduce distractions on the road, too. Telematics devices are more and more common and can be used, in conjunction with GPS technology, to monitor behaviors like braking, speeding and seatbelt use as well as the location of a company vehicle. Plus, products like Cell Control allow employers to block the use of cell phones in company vehicles.

 

Of all the challenges and risks a security officer can face on a daily basis, driving may seem minor. After all, many of us drive several hours a week just to run routine errands. But just because driving—and, sadly, distracted driving—is commonplace does not mean it is safe. Making the decision to commit to safe driving protects officers and the communities that trust them.

 

Distracted driving has been such a frequent topic of conversation that we developed a risk management brief on the issue. If you would like more information on the consequences of unsafe driving and how employers can prevent it, visit this link to download “Driving on the Edge: Why We Must Act Now to End Dangerous and Distracted Driving”: http://brownyard.com/distracted-driving/

 

Tory Brownyard, CPCU, is president of Brownyard Group (www.brownyard.com), an insurance program administrator with specialty programs for select industry groups. In addition to his responsibilities as President, he currently spearheads the Brownguard security guard insurance program. For more information, contact him at TBrownyard@brownyard.com.

 

 

 

 

[Sources:

https://www.nhtsa.gov/risky-driving/distracted-driving

https://www.nsc.org/road-safety/safety-topics/distracted-driving

https://www.ots.ca.gov/Media_and_Research/Campaigns/Distracted_Driving/default.asp ]

/by