E-Blasts

ALERT: Cal/OSHA Issues New High Heat Advisories and Reminders to Prevent Heat Illness.

By: The Saqui Law Group and Jorge Lopez Espindola

Cal/OSHA issued a News Release yesterday regarding high heat advisories across The Golden State. The National Weather Service has issued heat advisories in effect today through early next week for many interior and coastal parts of California from Shasta and Sacramento Counties, through the San Francisco Bay Area and Fresno, Kern, Ventura, Los Angeles Counties and more. Cal/OSHA reminds employers that the Heat Illness Prevention Standard applies to all outdoor workers, including those in agriculture, construction, landscaping, and those that spend a significant amount of time working outdoors such as security guards and groundskeepers, or in non-air-conditioned vehicles such as transportation and delivery drivers.

To combat the spread of COVID-19, employers must provide cloth face coverings or allow workers to use their own. Cal/OSHA is reminding employers that face coverings can make it more difficult to breathe and harder for a worker to cool off, so additional breaks may be needed to prevent overheating.

As a friendly reminder, supervisors and workers must be trained on the signs and symptoms of heal illness so that they know when to take steps to prevent heat illness.

COUNSEL TO MANAGEMENT

It is critical that employers follow procedures that are compliant with Cal/OSHA Heat Illness Prevention Protocols and guidance for preventing the spread of COVID-19. If you have any questions about how to comply with the protocols, please contact the experts at The Saqui Law Group, a division of Dowling Aaron Incorporated.

 

Uber and Lyft Targeted by the California Labor Commissioner for Systemic Wage Theft

By: The Saqui Law Group and Jorge Lopez Espindola

The California Labor Commissioner’s Office is suing Uber and Lyft for allegedly engaging in systemic wage theft. The Labor Commissioner alleges that Uber and Lyft committed systemic wage theft by misclassifying employees as independent contractors and depriving these workers of their legal protections. The popular rideshare companies, Uber and Lyft, have been classifying their drivers as independent contractors because, in the companies’ eyes, they are not the driver’s employer, the driver is its employer.

The Labor Commissioner alleges in its complaint that by misclassifying the drivers as independent workers, the rideshare companies failed to pay the drivers at least minimum wage for all hours worked, to pay overtime compensation, to provide paid sick leave, and other slew of violations. You can read the News Release here.

An independent contractor is generally someone who is in business for themselves. An employee is someone whom a company has much more control over. In the California Supreme Court’s Dynamex ruling, the Court established the ABC test, where workers are considered as employees unless they are free from control from the hiring entity, perform work outside of the hiring entity’s business, and engage in an independently established trade or occupation. The California Legislature ratified the Dynamex ruling by passing Assembly Bill 5, which went into effect at the beginning of this year.

Employees under California law are entitled to certain protections that are not given to independent contractors. These protections include wage and hour laws, such as minimum wage, overtime, meal periods, and rest breaks. Furthermore, employees can utilize the Labor Commissioner’s Office to seek enforcement of these laws, whereas independent contractors must resolve their disputes or enforce their rights under their contracts through other means.

COUNSEL TO MANAGEMENT

This E-Blast serves as a reminder for employers to be extra careful when classifying a worker as an independent contractor because if wrongly classified, the violations may lead to hefty penalties. If you have any questions about classifying workers, please contact the experts at The Saqui Law Group, a division of Dowling Aaron Incorporated.

 

Cal/OSHA Issues Updated COVID-19 Infection Prevention for Agricultural Employers and Employees

By: The Saqui Law Group and Christina Anton

The California Department of Industrial Relations Division of Occupational Safety and Health (“Cal/OSHA”) issued updated guidance on COVID-19 Infection Prevention for Agricultural Employers and Employees.

While this guidance does not impose a new legal obligation on agricultural employers, the guidance provides helpful information and tools to assist agricultural employers in their efforts to prevent and minimize the spread of COVID-19.

Agricultural employers are required to provide training to employees on COVID-19, including symptoms, safety measures, and potential sources of exposure. The guidance provides that adequate safety measures include the mandatory use of cloth face covers, social distancing and good sanitation practices.

The guidance also recommends that agricultural employers establish and implement the following procedures in their Injury and Illness Prevention Program (IIPP):

  • Immediately send employees with COVID-19 symptoms home or to medical care as needed;
  • Establish procedures to notify local health officials upon learning that someone has a COVID-19 infection;
  • Encourage sick workers to stay home;
  • Advise employees who stay home with symptoms not to return to work until at least 3 days after recovery and 10 days after the original onset of symptoms;
  • Make hand-washing stations more readily available and encourage use; and
  • Establish enhanced procedures for cleaning and disinfecting.

The guidance further recommends that agricultural employers establish procedures to increase social distancing, such as adjusting line speeds, staggering work shifts and breaks, limiting crew sizes, and providing additional seating and shade structures. You may review the guidance here.

COUNSEL TO MANAGEMENT

Agricultural employers should attempt to comply with the guidance and provide adequate training and safety measures to help prevent and minimize the spread of COVID-19. If you have any questions about the guidance or COVID-19 compliance, please contact the experts at The Saqui Law Group, a division of Dowling Aaron Incorporated.

 

Poorly Drafted Arbitration Agreement Gets Thrown Out of Court

By: The Saqui Law Group and Jorge Lopez Espindola

A carefully drafted arbitration agreement can avoid the cost, delay, and headaches that litigating in court brings. Recently, a California Appellate Court ruled that a provision containing an invalid waiver of an employee’s Private Attorneys General Act (“PAGA”) claim can make the entire arbitration agreement unenforceable.

In Kec v. Superior Court of Orange County, Reynolds Tobacco Company asked the court to compel arbitration of the employee’s individual claims since both parties entered into a binding arbitration agreement. The lower court granted the motion to compel arbitration but did not fully address the provision that made the agreement murky. The employee appealed the granting of the motion. 

The Court of Appeals found that a provision in the arbitration agreement included a waiver of “representative” claims. The Court held that PAGA claims are representative matters since the individual is bringing the case on behalf of the Attorney General. The arbitration agreement also included other provisions and language that went contrary to what the employer sought to do. Therefore, the Court ruled that the arbitration agreement was entirely void and the employer had to litigate the individual claims in court. You can read the opinion here.

COUNSEL TO MANAGEMENT:

Arbitration agreements are useful to efficiently resolve claims outside of court, but a poorly drafted agreement can ultimately lead to unnecessary litigation. Employers should make sure that they are represented by competent counsel to properly draft an arbitration agreement and to compel employees to arbitrate claims. If you have any questions about your company’s arbitration agreement, contact the experts at The Saqui Law Group, a division of Dowling Aaron Incorporated.  

 

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