Cal/OSHA Injury & Illness Summary Must Be Posted

Most employers with 11 or more employees in the prior year must maintain records of work-related injuries and illnesses and post the summary of their records for that year. Excepted are those employers in certain low-hazard establishments in the retail, services, finance and real-estate sectors.

Covered California employers must log recordable cases on Form 300, collect case details on Form 301, and post a case summary for the prior year on Form 300A.

Form 300A for 2007 must be posted in the workplace starting on Feb. 1, and it must stay posted throughout the months of February, March and April.

Form 300A must be displayed in a conspicuous place or places where notices to employees are customarily posted. Companies with no injuries or illnesses in 2005 should post Form 300A with zeros on the total line.

Also, the annual summary must be mailed or provided to employees who normally do not report at least weekly to a location where the annual summary for their workplace is posted.

The annual summary includes information on the types of injuries and illnesses that occurred in the prior calendar year and their extent and outcome. The summary alerts employees of possible hazards in their workplace.

Employment information on annual average number of employees and total hours worked during the calendar year is also required to help calculate injury and illness incidence rates.

In addition to recording injuries and illnesses meeting criteria detailed in the record-keeping regulation, employers must report immediately by telephone to the nearest Cal/OSHA district office any serious injury or illness or death of an employee occurring in a place of employment or in connection with an employment.

"Immediately" means as soon as practically possible but not longer than eight hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.

"Serious injury or illness" means any injury or illness occurring in a place of employment or in connection with an employment that requires inpatient hospitalization for more than 24 hours for other than medical observation or in which an employee suffers a loss of a member of the body or a serious degree of permanent disfigurement.

However, the term excludes an injury, illness or death caused by the commission of a Penal Code violation other than under Penal Code section 385 or by an accident on a public street or highway.

Return to Menu

Dealing With Claims of Employee Social Security Fraud

An employer has a problem upon learning that one of its employees might have committed Social Security fraud.

Suppose someone calls you and says one of your employees is using his Social Security number (SSN). He says he knows this because his Social Security disability benefits are being reduced due to the crediting to his Social Security account of your employee's earnings.

Dealing with such an occurrence can be tricky. Unjustly discharging an employee would result in the loss of an otherwise good employee. However, not taking it seriously and doing nothing could implicate the company as a co-conspirator in committing fraud.

Here are some tips on handling this messy situation:

1. Verify the employee's SSN with Social Security Administration (SSA). Call 800-772-1213 and provide this information:

a. The company's Taxpayer Identification Number,

b. Employee's name,

c. Employee's date of birth, and

d. Employee's sex.

2. If the SSN matches SSA records, inform the employee that another person is trying to use his SSN and suggest he contact SSA to ensure no one else is using his SSN. If the accusing party contacts you, inform the party that you verified the SSN with SSA and it related to your employee. Suggest the party contact SSA to resolve the matter with SSA.

4. If, however, SSA replies that the SSN doesn't match its records, discuss the issue with the employee. Ask him to explain why his SSN doesn't match SSA records. If he plausibly explains the discrepancy, tell him to contact SSA to correct it. Until he returns to you with satisfactory documentation resolving the SSN no-match, discontinue using the SSN in question. Report the employee's earnings to SSA using "unknown" as the employee's SSN.

If, on the other hand, the employee cannot provide a reasonable explanation or admits outright he used another person's SSN, then discharge the employee.

You do not have to notify the authorities about the document fraud. However, continuing to employ the employee could expose the company to a charge that it was a co-conspirator in a crime.

Return to Menu

Governor Appoints Two to ALRB

Gov. Arnold Schwarzenegger announced two appointments to the Agricultural Labor Relations Board (ALRB) on Jan. 11:

Guadalupe Almaraz, 55, of Bakersfield, has been appointed chair of the ALRB. He has worked for California state government for more than 30 years.

Since 2005, Almaraz served as deputy chief labor commissioner for the Division of Labor Standards Enforcement in the Department of Industrial Relations. Almaraz is a Democrat.

Cathryn Rivera-Hernandez, 37, of Sacramento, has been reappointed to the Agricultural Labor Relations Board. She has served as a member of the board since 2002.

Previously, Rivera-Hernandez served as chief deputy cabinet secretary for Gov. Gray Davis from 1998 to 2002. In 1998, she served as voter registration organizer for the California Democratic Party and worked as a policy advisor for Hermandad Mexicana Nacional. Rivera-Hernandez is a Democrat.

Both appointments require Senate confirmation.

Return to Menu

Checklist for Layoffs and Discharges

Layoffs are inevitable in agriculture, and discharges are a fact of life for any employer. In light of this reality, it is a good business practice to be prepared for those eventualities.

A good place to start is by developing a company policy on layoffs and discharges. FELS has sample policies on its Web site. Visit www.fels.org/find#0801.

Next, know that some things must be done, and others may not be done. Below are checklists to help you prepare for a layoff or discharge.

Discharge Questions: Here are some key questions to ask:

• Have the facts behind the discharge been thoroughly investigated and documented?

• Have the reasons for the discharge been properly documented?

• Have alternatives to discharge been considered?

• Is the employee being treated the same as other employees in similar circumstances?

• Have all company policies and procedures been followed?

• Is the discharge timely-that is, is it occurring soon after the circumstances leading up it?

• Has the employee been told the true reason for the discharge?

• Has the employee been given the opportunity to respond and relate his or her side of the story?

• Have appropriate steps been taken with respect to confidentially?

• Have the necessary final paychecks been prepared and provided?

• Is there a witness to the discharge meeting?

• Have all of the employee's questions been answered?

• Has an exit interview been scheduled after the discharge to provide the employee the opportunity to talk about his or her employment experience?

Here are additional checklists highlighting the things you must, should, and may not do:

Must Do:

1. Give the employee a "Written Notice of Discharge/Layoff." A sample form is located at: www.fels.org/find#0801.

2. Prepare and give the employee a final paycheck, which must include pay for all hours worked before the discharge/layoff and all other money due the employee, such as non-forfeitable vacation pay (a form of wages) and deposits for loaned equipment.

3. Give the employee Employment Development Department (EDD) pamphlet DE 2320, For Your Benefit....The California Unemployed. The pamphlet can be obtained from EDD by calling 916-322-2835. (When ordering DE 2320, also order pamphlet DE 2515, State Disability Insurance, which must be given to employees upon hiring.)

4. If the employee is covered by company health insurance, prepare (or obtain from your program administrator) the COBRA (or Cal-COBRA) 60-Day Notification for Group Health Plan notice. Also, prepare the Health Insurance Portability and Accountability Act (HIPPA) notice for the employee. Give the employee a copy of the Health Insurance Premium Payment Act (state) notice. Call or e-mail a request to FELS for copies.

May Not Do:

1. As an at-will employer, you may discharge for any reason. However, you may not discharge in violation of "public policy." See "Public Policy Checklist" at www.fels.org/find#0801

2. If the employee owes you money, do not deduct from the final paycheck any amount of money in excess of the amount authorized by the employee for the regular payroll. In other words, do not deduct from the final paycheck a balloon payment for the repayment of a loan.

3. Do not withhold from the final paycheck any money for non-returned equipment loaned to the employee without the employee's prior written authorization for the deduction.

(While an authorization given when the equipment was loaned might suffice legally, it would be best to get at the time of discharge another deduction authorization from the employee. Any such authorization must be truly voluntary--that is, don't condition the employee's receipt of the final paycheck on the employee giving the authorization.)

Should Do:

1. Prepare a letter or memo stating the reason for the action. If the employee later challenges the action, the document will help show that the reason was not a pretext.

2. If the employee is being fired for assaulting another employee or making threats of violence against your personnel or property, then contact the local civil authorities to alert them to possible retaliation.

3. Sanitize the employee's personnel folder. Destroy unnecessary documents unrelated to the employee's performance, pay increases, or safety training.

4. Recover loaned equipment and keys. You may not withhold final pay because the employee hasn't returned borrowed items. See item 3 in previous paragraph.

5. If employee occupies company housing, give the employee a "Notice to Quit." Consider telling the employee that you will pay him a specific sum if he vacates company housing by a certain date. Otherwise, you will pay nothing and start a judicial unlawful detainer (i.e., eviction) action against him. See www.fels.org/find#0801 for "Housing Agreements and Eviction Procedures."

6. If you are discharging the employee for poor work performance or improper behavior, tell him he is not eligible for re-employment. Likewise, tell a laid-off employee if he is or is not eligible for re-employment.

7. If you think the employee will contest the discharge, consider seeking from him a termination-of-employment release. Consult an attorney for help.

Return to Menu

The following article was provided courtesy of Barsamian & Moody, The Employers' Law FirmSM, one of two law firms participating in the Group Legal Services Program for FELS subscribers. It is intended to provide employers with current information on labor and employment law. Its contents should neither be interpreted nor construed as legal advice or opinion. Please consult with Barsamian & Moody in Fresno at (559) 248-2360 or toll-free at (888) 322-2573 for individual responses to questions or concerns about any given situation.

Are You Properly Reimbursing Your Employees?

The Internal Revenue Service has once again raised the standard mileage-reimbursement rate for automobiles, vans, pickups, and panel trucks. It is now $0.505 (i.e., 50½ cents) per mile. The new rate took effect Jan. 1.

That, coupled with the recent California Supreme Court decision in Gattuso v. Harte-Hanks Shoppers, Inc., makes it a good time to examine the way you reimburse your employees for expenses. In that decision, the Court decided that employers can pay a lump sum to employees to reimburse them for business expenses.

Labor Code section 2802 states: "An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful."

Normally, employers reimburse employees in full for their expenses - for example, reimbursing them for a business meal or work-related hotel stay. However, difficulties may arise when an expense is hard to measure, such as the work-related use of the employee's automobile. Employers may opt to reimburse the employee by paying them on a per-mile basis.

In Gattuso, the employer was the publisher of advertising booklets in California, including the PennySaver. Harte-Hanks employed a staff to sell advertising space, which included both inside sales representatives and outside sales representatives. While the inside sales representatives stayed in the office and made sales over the telephone, the outside sales representatives drove their own vehicles to meet with customers in person.

Harte-Banks paid its outside sales representatives higher base salaries and higher commission rates to compensate for the automobile expenses incurred in driving to and from meetings. The plaintiff in the case, Gattuso, sued Harte-Banks, arguing the payment arrangement did not meet the obligation of section 2802.

In its decision, the Court examined three methods employers may use to calculate reimbursements owed to their employees.

The Actual Expense Method: The "actual expense" reimbursement method requires the employee to track all business-related expenses the employee incurs. The employee must keep detailed and accurate records of amounts spent in the discharge of his or her duties. For vehicle expenses, this includes fuel, maintenance, registration, insurance, repairs, and depreciation of the car itself. While the actual expense method is the most accurate, it is also the most burdensome for both the employer and the employee. The employer could object to the expenses claimed by the employee on the basis that some of the expenses were related to the employee's personal choices, such as what vehicle to drive.

The Mileage Reimbursement Method:

The more common method used by employers is the "mileage reimbursement" method. This method allows the employer to calculate the reimbursement by multiplying the number of work-related miles traveled by a predetermined amount that approximates the per-mile cost of operating the vehicle. This simplifies the process by allowing the employee to simply keep track of the miles traveled.

The IRS rate, which the DLSE favors, calculates an automobile mileage rate for federal income tax purposes based on national average expenses for fuel, maintenance, repair, depreciation, and insurance. This is generally the rate that employers use, though it can be any rate that fully reimburses the employee. Thus, if the employee shows that the IRS rate does not fully reimburse the employee, the employer would need to reimburse the employee for those expenses.

The Lump Sum Method: Lastly, the employer may reimburse the employee by the "lump sum" method. Under this method, the employer pays a fixed amount for automobile expenses incurred. There is no need for the employee to track mileage or other information. This was the method at issue in the Gattuso case.

In Gattuso, the Court determined that "Labor Code section 2802 does not prohibit an employer's use of a lump-sum method to reimburse employees for work-required automobile expenses, provided that the amount paid is sufficient to provide full reimbursement for actual expenses necessarily incurred." The Court further held that the employer must "establish some means to identify the portion of overall compensation that is intended as expense reimbursement, and provided also that the amounts so identified are sufficient to fully reimburse the employees for all expenses actually and necessarily incurred."

Therefore, an employer using this method should make sure the lump sum fully covers the employee's expenses and that if challenged, the employer can show the employee the method used to derive the lump sum.

What This Means For Employers: As there are several methods available to calculate reimbursement owed to employees for expenses, employers should evaluate each one to see which is the most accurate and convenient for them to use. Although an employer may opt to pay employees a lump sum to cover their expenses, it must pay them a sum that fully reimburses them.

An employer using the lump sum method must keep an accounting so the employee can determine that the employee has been fully reimbursed. The employee must be permitted to challenge the amount of the lump sum payment the employer provides. The employee will then have the opportunity to calculate the amount due according to either the actual expense method or the mileage reimbursement method. If it is found that the lump sum the employer has provided is not adequate, the employer must make up the difference.

By: Patrick Moody, Barsamian and Moody.

Return to Menu

The following articles were provided courtesy of Saqui & Raimondo, Counselors to Management. They are intended to provide employers with current information on labor and employment law. Their contents should neither be interpreted nor construed as legal advice or opinion. Please consult with Saqui & Raimondo at (831) 443-7100 in Salinas, (916) 782-8555 in Sacramento, or (559) 449-8585 in Fresno, for individual responses to questions or concerns about any given situation.

FEHC Issues Sexual Harassment Training Regulations (Part II)

The Dec. 2007 issue of FELS Newsletter contained Part I of this article. Here is the final portion.

Individuals without the required experience are permitted to team with a qualified trainer, as long as the qualified trainer is available throughout the training for questions.

What types of training are acceptable? The regulations also explain that there are three acceptable forms of training:

1. Classroom - In person instruction with content created and provided by a trainer. Supervisors must be removed from daily duties during such training;

2. On-line, computer based ("e-learning") training - Individualized, interactive, computer based training created by a trainer and an instructional designer. Such training must have a link or directions providing contact to a live trainer who will answer questions within two business days; and

3. Web-based live seminars ("Webinars") - An Internet based seminar with content created and delivered by a trainer and transmitted in real time over the Internet. Each supervisor must attend the entire training, must actively participate in the interactive content, and must be able to ask questions of the trainer.

Employers are responsible for providing documentation that the training was actually attended by supervisors, and the training must last for two hours.

Training schedule: Under the law, supervisors must receive training every two years. The regulations explain that employers can use an individual year, or a "training year" to track the training. An individual year means that each individual supervisor receives the training within two years of the date his or her last training. For example, a supervisor trained on November 30, 2007 must be trained on or before November 29, 2009. A training year means that training can be tracked by calendar year. For example, an employer can designate that all supervisors trained in 2007 must be retrained in 2009.

Prior training: If an employer is satisfied that training from another employer in the last two years is in compliance, then retraining is not required. The new supervisor must still read and acknowledge receipt of the new employer's anti-harassment policy within 6 months, and must be put on a two year schedule based on the date of the training from the prior employer. The current employer will have responsibility for providing documentation of the prior training, and of showing that it satisfied the requirements of the law.

Training content:

Required content includes:

1. The definition of sexual harassment under state and federal law;

2. FEHA and Title VII statutory provisions and case law explaining the prohibition and prevention of harassment, discrimination, and retaliation;

3. The types of conduct that constitute sexual harassment;

4. Remedies for sexual harassment;

5. Strategies to prevent harassment;

6. Practical examples from case law, media accounts, and hypotheticals and role plays, case studies, or group discussions;

7. Limited confidentiality in the complaint process;

8. Resources for victims of harassment, such as how and to whom they should report complaints;

9. The employer's obligation to conduct an effective investigation;

10. What to do if you are accused of harassment; and

11. Essential elements of an anti-harassment policy and how to use it when a complaint is filed. At or immediately after the training, the employer must provide a copy of its policy and require the supervisor to read it and acknowledge receipt.

Documentation: Employers must document the training, including the supervisor's name, the date of the training, the type of the training, and the name of the training provider. Records must be retained for at least two years. Employers should require supervisors to sign a certification that they attended the training for the entire two hours, understood the content, and had all of his or her questions answered by the trainer.

COUNSEL TO MANAGEMENT: The mandatory training for supervisors is only one small component of an effective policy against harassment. All employers with 5 or more employees are required to have a policy against harassment and must train employees on the policy and the complaint procedure. For practical purposes, even employers with fewer than 50 employees should provide the mandatory training for supervisors in addition to training for all employees, and careful documentation should be maintained. Although the regulations only require record to be kept for 2 years, employers should maintain training records as a permanent part of the personnel file just in case they face litigation and need to show all that they have done to prevent harassment.

Return to Menu

Deputy Labor Commissioner Impostor

Officials of the California Division of Labor Standards Enforcement (DLSE/Labor Commissioner's Office) announced that a Southern California man who allegedly attempted to extort money from a former employer by posing as a deputy state labor commissioner has been arrested and charged with four felony offenses. He was arraigned in Alhambra Superior Court and was released on $20,000 bail.

"We acted immediately on a complaint from the employer and within two days this man was arrested and taken into custody," said Labor Commissioner Angela Bradstreet. "We will continue to pursue this case and seek maximum penalties as these types of activities undermine the trust we need to work fairly and effectively with employers and employees."

Gabriel Holguin, 30, was arrested and taken into custody by the Los Angeles Sheriff's Department Temple Station officers. At his arraignment, he was charged with extortion, attempted extortion, attempted grand theft, and petty theft after a prior conviction. He faces a maximum penalty of four years and eight months in prison, if convicted.

According to investigators, Holguin posed as a deputy with the Labor Commissioner's Office and demanded by e-mail and phone calls that his former employer, Jayco Acceptance Corp., pay him $600 for hours worked or legal action would be taken against the company. The company had already paid Holguin $143.13 in wages and a penalty of $256 for late payment, although no late payment penalty was due. After receiving several e-mails demanding conflicting amounts, phone calls and threats, a representative of Jayco contacted the Labor Commissioner's office in Sacramento and an investigation was initiated.

Holguin was arrested two days later when he arrived at Jayco to get the check he demanded.

Return to Menu