Amendments to ‘Job Killer’ Make Heat Illness Bill Even Worse

Recent amendments to a California Chamber of Commerce-opposed ‘job killer’ bill make the bill even more detrimental, creating unprecedented and excessive consequences for perceived and actual violations of heat illness prevention regulations.

AB 2346 (Butler; D-Los Angeles) could also increase the price of food and force growers to move their crop production to other states and countries, thereby hurting California exports.

The provisions of the bill create traps and a ‘gotcha’ cycle from which it could be difficult for employers to exit. Among the bill’s onerous provisions that opponents find most egregious are:

• Creates a broad new private right of action even when no violation has been found by Cal/OSHA. 
• Creates joint liability along with a repeat offender provision for any violation—even paperwork.
• Creates a very low bar to meet a presumption of fraud, which in civil law is a very high standard.
• Creates a new unprecedented, undefined requirement to certify the availability of a program and equipment to comply with heat illness prevention requirements.
• Ignores and potentially undermines state law establishing workers’ compensation as the exclusive remedy for work-related injuries and illnesses by creating a private right of action to sue for damages.

Complex, Overly Burdensome Requirements

In 2005, California was the first state in the nation to adopt heat illness regulations. These regulations were developed with extensive input from labor and management. Since the adoption of these regulations, Cal/OSHA has actively worked with employers providing education and compliance assistance, as well as an enormous enforcement effort and presence. In response to the regulations and the assistance of regulators, employers have stepped up compliance efforts and reduced the incidence of heat-related illness in outdoor workplaces. Cal/OSHA attests to the success of the program in gaining increased compliance with heat illness prevention rules in outdoor places of employment throughout the state.Agricultural employers made enormous strides in compliance and created unprecedented public-private partnerships. There is no reason for this bill.The enforcement provisions combined with fines and penalties are extraordinarily high and unwarranted. The opportunities for litigation are almost limitless: from private rights of action and enormous awards of damages, bounty hunter provisions, joint liabilities and high penalties. State regulators have effective enforcement authority and statutory provisions for fines, penalties and due process for employers that should be respected as the appropriate authority for heat illness prevention enforcement.This bill creates such complex and overly burdensome requirements that agricultural employers may not be able to comply. The bill is filled with procedural traps nearly impossible to avoid. As such, the overly punitive fines for violations could be a disincentive for employers to remain in California.

Action Needed

AB 2346 is awaiting action by the full Senate.  Contact your senator and urge him/her to oppose AB 2346.

Heat Illness Prevention Network Conference Call – July 14

Members of the Heat Illness Prevention Network should take advantage of an upcoming conference call to get information on updates straight from Cal/OSHA.

WHO: Christine Baker, Director of the Department of Industrial Relations; Cal/OSHA Chief – Ellen Widess
WHAT: Conference call to members of the Heat Illness Prevention Network
WHEN: Thursday, July 14 at 10:00 a.m.
WHY: To update Heat Illness Prevention Network members on topics relating to the Heat Illness Prevention Standard
HOW: Call 1-800-619-4625. Advise operator that your participant code is DIRHIP. During the Q&A section, press *1 on your telephone keypad to ask a question.
 
Email additional questions or comments to heat@dir.ca.gov.

Agenda includes:  

• Outreach and education
• Enforcement and compliance information
• Orders prohibiting use
• Q & A

The California Chamber of Commerce is a founding member of the Heat Illness Prevention Network (The HIP Network), which is administered by the California Division of Occupational Safety and Health (Cal/OSHA) in the state Department of Industrial Relations (DIR).

The HIP Network is a voluntary public/private partnership established to increase both employers’ and employees’ awareness of the hazard of heat illness and the importance of heat illness prevention measures to prevent fatalities and serious illnesses in California workplaces.

HIP Network members work with Cal/OSHA to provide timely information to employers and employees to help prevent heat illness in workplaces throughout California.
 
HIP Network membership is free, and interested parties can join by submitting name, title, organization name, telephone number and email to communications@dir.ca.gov.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

As Temperature Rises, Cal/OSHA Intensifies Enforcement Activities

This week, temperatures in some parts of the state spiked to the high 90s and low 100s. In response, Cal/OSHA will intensify its enforcement of new heat illness prevention requirements for outdoor worksites. This is the first summer that employers will have to operate under the revised heat illness regulations that went into effect on November 4, 2010.  

In a June 21 press release, Cal/OSHA Chief Ellen Widess announced Cal/OSHA’s intent to pursue employers who evade the law:

“Our program will be strategic, focusing on workers at highest risk in outdoor industries such as agriculture, construction, landscaping and locations where we expect to find serious violations.  We will be identifying and targeting employers who skirt the law at worker’s expense.”

Cal/OSHA said enforcement efforts will include statewide traveling heat sweeps, local district actions when soaring temperatures can put workers at the greatest risk, and multi-agency enforcement actions through the Economic and Employment Enforcement Coalition.

Widess also said that if Cal/OSHA discovers conditions at an outdoor worksite that  put employees at risk, the agency will shut down the worksite until the employer takes the proper steps to correct high-heat hazards.

Cal/OSHA will work with other agencies, such as the California Labor Commissioner’s Office and the Contractor’s State Licensing Board, to pursue serious enforcement actions against employers who violate health and safety and labor standards.

Cal/OSHA’s revised standards specify that shade may be provided by any natural or artificial means that does not expose employees to unsafe or unhealthy conditions and requires employers to provide shade whenever the outdoor temperature exceeds 85 degrees Fahrenheit. If employers can demonstrate that providing a shade structure is not feasible or is unsafe the employer can provide equivalent but alternate access to shade.

The standards also include high heat procedures whenever the temperature equals or exceeds 95 degrees Fahrenheit, and these procedures include incorporating effective communication between employees at the worksite and a supervisor, observing employees at the worksite for signs or symptoms of heat illness, reminding employees to drink water, and closely supervising new employees.

The full text of the revised heat illness standards  is on the Department of Industrial Relations' website and should be reviewed by employers.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber members can learn what they need to do to comply with heat illness prevention requirements from HRCalifornia. CalChamber members can also use a sample Heat Illness Prevention Plan to help develop procedures to comply with Cal/OSHA heat illness regulations.

Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial. 

RSVP for Two Must-Attend Webinars

Yesterday, Sacramento got its first 90-degree day of 2011, and forecasters say it could hit the high 80s today. We grumble about the heat as we walk from our air-conditioned offices to our air-conditioned cars, but what if we worked outside, under the sun?

California businesses with outdoor workers must protect those workers from heat illness, and those businesses shouldn’t forget that they need to comply with Cal/OSHA’s amended heat illness regulations, which took effect late last year.

Register for our Heat Illness Prevention Webinar to learn:

• How to comply with the new rules
• What employers must do to prevent heat illness

Thursday, May 12, 2011, 2:00 p.m. – 3:30 p.m. PST

 

Hiring new employees can be challenging. Not only does hiring a new employee create lots of administrative tasks, an applicant who’s not selected for the job could file a lawsuit against the employer alleging unfair hiring practices.

Even if an employer doesn’t feel comfortable hiring new employees, promoting an employee to a higher rank or position could also create the same problem – an employee who was passed over for the promotion could file a discrimination lawsuit against the employer.

Register for our How to Hire Employees Webinar to learn:

• How to avoid discrimination
• Best practices and pitfalls of testing employees being considered for promotion, and background checks and reference checks for potential new hires

Thursday, May 12, 2011, 10:00 a.m. – 11:30 a.m. PST

Erika Frank, General Counsel, California Chamber of Commerce

Seminar Update, and Employment Law Tip of the Day

Hello from the road. We've returned from sunny Southern California, and will spend time in Northern California next week.

We'll be hosting our HR 101: Intro to HR Administration seminar in San Jose on Wednesday, and our HR 201: Labor Law Update seminar in San Jose and Emeryville on Thursday. 

We hope to see you at one of our upcoming locations! Or, if you can't get out of the office, consider attending HR 201 webinar on January 27th.

Employment Law Tip of the Day: 2011 is a sexual harassment prevention training year for employers with 50 or more employees located anywhere in the universe. You must provide anti-harassment training for your California supervisors and managers every two years.*

See you next week!

Erika Frank and Susan Kemp

*Download CalChamber's free harassment training white paper for more information on training requirements, and take a look at CalChamber's online harassment prevention training course. CalChamber members get a 20 percent discount on all compliance products. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.