Employers Must Protect Workers from Excessive Heat

Originally Published by HR360

OSHA’s Heat Illness Website Outlines Employers’ Legal Duties

Under federal law, employers are responsible for providing workplaces free of known safety hazards, which includes protecting workers from extreme heat. The U.S. Occupational Safety and Health Administration’s (OSHA) heat illness website provides employers with (among other things) information on how to meet their obligations under the law.

OSHA’s tips and strategies include the following:

  • Provide heat stress training.Topics you may wish to address include worker risk, prevention, symptoms (including the importance of workers monitoring themselves and coworkers), treatment, and personal protective equipment.
  • Schedule hot jobs for the cooler part of the day.The best way to prevent heat illness is to make the work environment cooler. Monitor weather reports daily and reschedule jobs with high heat exposure to cooler times of the day. When possible, routine maintenance and repair projects should be scheduled for the cooler seasons of the year.
  • Provide rest periods with water breaks.Provide workers with plenty of cool water in convenient, visible locations in shade or air conditioning that are close to the work area. Avoid alcohol and drinks with large amounts of caffeine or sugar.
  • Monitor workers who are at risk of heat stress.Workers are at an increased risk of heat stress from personal protective equipment, when the outside temperature exceeds 70°F, or while working at high energy levels. Workers should be monitored by establishing a routine to periodically check them for signs and symptoms of overexposure.
  • Acclimatize workers by exposing them for progressively longer periods to hot work environments.Allow workers to get used to hot environments by gradually increasing exposure over at least a 5-day work period. OSHA suggests beginning with 50% of the normal workload and time spent in the hot environment, and then gradually building up to 100% by the fifth day.

Note: Displaying OSHA Safety Posters shows a commitment to safety. Therefore All In One Poster Company has created a Federal Heat Stress Poster for the convenience of its clients. California has its own Outdoor and Indoor heat illness prevention standards as well, for which All In One Posters Company has created separate posters.

The Centers for Disease Control and Prevention also has a page dedicated to providing information on heat stress (including symptoms and first aid), along with fact sheets and other resources for protecting employees.

Univ. of California system raises minimum wage to $13 an hour

University of California CollageThe first phase of a law that will eventually boost the minimum wage of all University of California employees to $15 an hour went into effect on Thursday.

The UC system is the first in the country to voluntarily create a plan for a $15 minimum wage, according to a university statement emailed on Thursday.Now, all university employees working 20 or more hours per week will earn at least $13 an hour. That wage is expected to increase to $14 an hour on Oct. 1 of 2016 and reach its target of $15 an hour on Oct. 1 the following year.

According to the UC website, the system employs 190,000 workers, though only a small fraction of workers will benefit from the program as the program only impacts those workers receiving an hourly wage.

According to NPR, the full policy is set to affect 3,200 employees in the University of California system. However, the total number affected could actually be higher, as any third party contracted by UC for services will earn the required wage, also according to the system’s website.

LOS ANGELES, CA - JULY 15:  University of California employees represented by the Union Coalition demonstrate in front of UCLA Ronald Reagan Medical Center to call on University of California executives take a pay cut instead of reducing services to patients, cutting employee hours and increasing student tuition on July 15, 2009 in the Westwood area of Los Angeles, California. As California continues to make history drastic cuts to state funds to get a handle on the state budget crises, union officials say that UC administrators have declined to give them budget information that shows reduced hours and services are needed. Pending reductions in work hours and services may affect as many as 150,000 public employees at all 10 University of California campuses.   (Photo by David McNew/Getty Images)

LOS ANGELES, CA – JULY 15: University of California employees represented by the Union Coalition demonstrate in front of UCLA Ronald Reagan Medical Center to call on University of California executives take a pay cut instead of reducing services to patients, cutting employee hours and increasing student tuition on July 15, 2009 in the Westwood area of Los Angeles, California. As California continues to make history drastic cuts to state funds to get a handle on the state budget crises, union officials say that UC administrators have declined to give them budget information that shows reduced hours and services are needed. Pending reductions in work hours and services may affect as many as 150,000 public employees at all 10 University of California campuses. (Photo by David McNew/Getty Images)

“This is the right thing to do — for our workers and their families, for our mission and values, and to enhance UC’s leadership role by becoming the first public university in the United States to voluntarily establish a minimum wage of 15 dollars,” UC President Janet Napolitano said when the plan was first announced.

The UC system’s website states the school will fund the cost of the extra wages through “non-core funds, including sales and revenue,” which will not include tuition or state resources. Employees can report wage or working conditions via a hotline, an online complaint system or periodic and annual audits.

The move comes in the midst of a national debate about the value of a minimum wage increase.

Michael Schramm is a student at the University of Michigan and USA TODAY College breaking news correspondent.

Executive Order Establishes Paid Sick Leave for Federal Contract Workers

New Provisions Generally Applicable to New Contracts in 2017

Under a new Executive Order applicable to covered contracts where the solicitation for such contract has been issued (or the contract has been awarded outside the solicitation process) on or after January 1, 2017, workers on such contracts will earn a minimum of 1 hour of paid sick leave for every 30 hours worked.

Accrual of Leave

  • Executive departments and agencies generally must ensure that new contracts, contract-like instruments, and solicitations (collectively referred to as “contracts”) include a clause—which the contractor and any subcontractors must incorporate into lower-tier subcontracts—specifying, as a condition of payment, that all employees must earn at least 1 hour of paid sick leave for every 30 hours worked.
  • A contractor may not set a limit on the total accrual of paid sick leave per year (or at any point in time) at less than 56 hours.
  • Accrued paid sick leave must carry over from 1 year to the nextand must be reinstated for employees rehired by a covered contractor within 12 months after a job separation.
  • The Executive Order does not require a covered contractor to make a financial payment to an employee upon a separation from employment for accrued sick leave that has not been used (but unused leave is subject to reinstatement as described above).

Use of Leave

  • Paid sick leave may be used for an absence resulting from physical or mental illness, injury, or medical condition; obtaining diagnosis, care, or preventive care from a health care provider; caring for certain relatives; or for certain instances related to domestic violence, sexual assault, or stalking.

Employee Notice

  • Paid sick leave must be provided upon an employee’s oral or written request that includes the expected duration of the leave, and is made at least 7 calendar days in advance where the need for the leave is foreseeable (and in other cases as soon as is practicable).

Note: The U.S. Department of Labor (DOL) is expected to issue regulations that, among other things, may provide definitions, recordkeeping requirements, and further guidance on the specific types of contracts and contract-like instruments subject to the Executive Order.

Additional information and requirements are available in the text of theExecutive Order.

Our Compliance Assistance for Federal Contractors page features helpful resources for federal contractors and subcontractors.

Originally posted by WWW.HR360.COM

EXCLUSIVE: Two construction managers face homicide charges in death of Queens worker crushed by collapsing wall

Two construction managers are facing homicide charges in the death of a Queens hardhat who was crushed by a collapsing wall at a Meatpacking District work site, the Daily News has learned.

Wilmer Cuevas, 49, and Alfonso Prestia, 55, have been indicted for allegedly refusing to shut down the Ninth Ave. site April 6 after an engineer assigned to observe the work warned them it was too dangerous, police sources said.

The engineer’s fears were realized just moments later when a portion of a wall collapsed onto a pit 20 feet below street level — killing 22-year-old Carlos Moncayo.

“There was a life that was lost,” Moncayo’s brother-in-law Tobias Espejo, 35, told The News. “If this was an accident and they didn’t take responsibility, they are responsible.”

Cuevas, of Sky Materials Corp., and Prestia, of Hartco Consultants Corp., have been indicted on charges of criminally negligent homicide, manslaughter and reckless endangerment, sources said.

Wilmer Cuevas, 49, and Alfonso Prestia, 55, have been indicted for allegedly refusing to shut down the Ninth Ave. site April 6 after an engineer assigned to observe the work warned them it was too dangerous, police sources said.

Wilmer Cuevas, 49, and Alfonso Prestia, 55, have been indicted for allegedly refusing to shut down the Ninth Ave. site April 6 after an engineer assigned to observe the work warned them it was too dangerous, police sources said.

Both men are expected to turn themselves in at the NYPD’s 6th precinct stationhouse on Wednesday.

“You’ll have to speak to my lawyer about that,” Prestia said from behind a screen door at his home in Yonkers.

Cuevas was not home Saturday, but his wife, who identified herself only as Sara, said, “He just didn’t expect that to happen.”

“He feels bad. (Moncayo) was his coworker,” she said.

In the wake of the tragedy, Harco Consultants Corp. was issued a penalty of $12,000 for failing to “provide protection at sides of excavation,” Building Department records show.

Wilmer Cuevas (pictured), of Sky Materials Corp., and Alfonso Prestia, of Hartco Consultants Corp., have been indicted on charges of criminally negligent homicide, manslaughter and reckless endangerment, sources said

Wilmer Cuevas (pictured), of Sky Materials Corp., and Alfonso Prestia, of Hartco Consultants Corp., have been indicted on charges of criminally negligent homicide, manslaughter and reckless endangerment, sources said

“Contractor failed to protect worker while excavation operations ongoing,” records show.

Neither Hartco nor Sky Materials returned calls for comment Saturday.

The Buildings Department referred calls to the Department of Investigation, which declined to comment.

Sources said Christian Ofusu, an independent engineer employed by Domani Inspection Services and assigned to oversee the work, first voiced his safety concerns to Prestia, the site superintendent.

When Prestia ignored him, Ofusu went to foreman Cueva, who also refused to stop the work.

Ofusu was in the midst of trying to persuade the project manager, Mohammed Sharif, to order a work stoppage when the wall came down, sources said.

BY Rocco Parascandola , Keldy Ortiz , Rich Schapiro
NEW YORK DAILY NEWS

US Department Of Labor Provides New Guidance On Employee vs. Independent Contractor Classification

Most workers are employees under the [Fair Labor Standards Act’s] broad definitions.”

The debate over classification of workers as employees versus independent contractors has yet another chapter.  Last month, it was the California Labor Commissioner who sent ripples across the rideshare industry by telling Uber Technologies, Inc. that its drivers are employees, not independent contractors.  This month, the United States Department of Labor decided it was time to throw its hat in the ring and weigh in on the matter by way of a fifteen page Administrator’s Interpretation issued by Dr. David Weil.

The Fair Labor Standards Act (“FLSA”) defines employees, rather unhelpfully, as “any individual[s] employed by an employer.”  The FLSA’s definition of “employer” is similarly unilluminating: “employer”  “includes any person acting directly or indirectly in the interest of an employer in relation to an employee.”  To “employ” under the FLSA is “to suffer or permit to work.”

Lone-Worker-Group

If you’re confused as to whether a worker is an employee or independent contractor based on these definitions, you’re not alone.

The Department of Labor’s new interpretation explains that an “economic realities” test should be utilized to determine worker classification.  Under this test, the key inquiry is whether a worker is economically dependent on the employer, thereby making the worker an employee, versus whether the worker is truly in business for him or herself and thus, an independent contractor.  Determining the economic independence of a worker should occur on a case-by-case basis, using a multi-factor test that has been developed by a series of federal court decisions.  Factors that should be customarily examined include:

(i)            the extent to which the work performed is an integral part of the employer’s business;

(ii)           the worker’s opportunity for profit or loss depending on his or her managerial skill;

(iii)          the extent of the relative investments of the employer and the worker;

(iv)         whether the work performed requires special skills and initiative;

(v)          the permanency of the relationship; and

(vi)         the degree of control exercised or retained by the employer.

No one factor is determinative and “each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself… or is economically dependent on the employer.”  The interpretation emphasizes the FLSA definitions were deliberately designed to provide a broad scope of statutory coverage and the “Act’s intended expansive coverage for workers must be considered when applying the economic realities factors.”  The interpretation also explains “the economic realities of the relationship and not the label an employer give it are determinative.  Thus, an agreement between an employer and a worker designating or labeling the worker as an independent contractor… is not relevant to the analysis of the worker’s status.”

The correct classification of workers matters both for workers and employers alike.  A worker’s classification affects entitlement to legal protections such as overtime pay and minimum wage, amongst other protections under the Act.  This DOL interpretation comes only two weeks after the DOL unveiled its proposed rule that is anticipated to result in approximately 5 million currently exempt workers shifting classification to non-exempt workers, thereby becoming entitled to minimum wage and overtime protection under the FLSA.

Originally posted by Shar Bahmani of The National Law Review

Superior Court Judge Upholds Labor Commissioner’s Decision That Truck Driver Was Misclassified as Independent Contractor: Driver to Receive Nearly $180,000 in Back Wages and Expenses

Los Angeles—A Superior Court judge last week sided with the Labor Commissioner’s Office in finding that a Los Angeles trucking company misclassified an employee as an independent contractor. The court affirmed that Laca Express Inc. owes driver Ho Woo Lee $179,390 in back wages and expenses unlawfully deducted from his paycheck.

“The Labor Commissioner determines the employment status of an individual based on the facts of each case,” said Christine Baker, Director of the Department of Industrial Relations (DIR.) “This decision shows the laws are in place to ensure that workers are properly classified.” The Division of Labor Standards Enforcement, also called the Labor Commissioner’s Office, is a division of DIR.

In his December 2012 claim filed with the Los Angeles Labor Commissioner’s office, Lee said Laca Express unlawfully deducted $83,292 from his paycheck in violation of Labor Code section 221. Lee’s claim included more than $80,000 in weekly lease and insurance payments that were deducted from his paycheck for a truck that Laca repossessed after terminating Lee’s employment. The Labor Commissioner’s Office issued an Order, Decision or Award (ODA) in Lee’s favor for $161,205.

Laca appealed the ODA, and the Labor Commissioner’s Office represented Lee in the Los Angeles Superior Court case. Judge Ross Klein determined that Lee was owed $179,390 plus costs and attorney’s fees for unlawfully deducted wages, reimbursable expenses (such as fuel and truck repair costs), interest and penalties.

“Judge Klein’s ruling will go a long way toward making Mr. Lee whole for the unlawful behavior of Laca Express,” said Labor Commissioner Julie A. Su. “The judgment will also serve as a deterrent to wrongful misclassification of workers and other forms of wage theft.”

DIR News Release No.: 2015-62
Date: July 7, 2015