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4 days ago · by · 0 comments

California Minimum Wage Laws

Federal minimum wage law is governed by the Fair Labor Standards Act (FLSA). The current federal minimum wage rate is $7.25 per hour for nonexempt employees. California law complements federal law and, in some cases, prescribes more stringent or additional requirements that employers must follow. Whenever employers are subject to both state and federal laws, the law most favorable to the employee will apply.

The Division of Labor Standards Enforcement (DLSE), part of the California Department of Industrial Relations, enforces and investigates minimum wage violation claims.

Minimum Wage Rate

The current minimum wage rate in California is $10 per hour. A separate minimum wage rate applies for sheepherders, equal to $1,777.98 per month. “Employee wages” are the entire amount of compensation an employee receives for his or her labor or services. Wages can be fixed or based on time, task, piece, commission or other method.

On April 4, 2016, Governor Jerry Brown signed a bill into law that will increase California’s minimum wage rate to $15 per hour by 2022.

New Minimum Wage Rate Implementation

The minimum wage increase will be phased in over several years in separate schedules for employers, depending on the employer’s workforce size.

Minimum Wage Rate

Effective Date

26 or more employees

25 or fewer employees

$10.50 per hour

N/A

Jan. 1, 2017

$11 per hour

$10.50 per hour

Jan. 1, 2018

$12 per hour

$11 per hour

Jan. 1, 2019

$13 per hour

$12 per hour

Jan. 1, 2020

$14 per hour

$13 per hour

Jan. 1, 2021

$15 per hour

$14 per hour

Jan. 1, 2022

Adjustment for inflation

$15 per hour

Jan. 1, 2023

Adjustment for inflation

Adjustment for inflation

Jan. 1, 2024

After the rates described above are implemented, the state will adjust the minimum wage rate annually to reflect the rising cost of inflation.

The law allows the governor to temporarily suspend the minimum wage rate increase schedule if the state’s economic condition does not support an increase. Under a temporary suspension, the implementation schedule would be delayed by one year. However, the governor may not implement a temporary suspension more than twice.


Lodging

Room (alone)

$47.03 per week

Room (shared)

$38.82 per week

Apartment

Two-thirds of ordinary rental value up to $564.81 per month

Apartment (couple)

Both individuals must work for the same employer.

Two-thirds of ordinary rental value, up to $835.49 per month

                                          Meals

Breakfast

$3.62

Lunch

$4.97

Dinner

$6.68

Meals and Lodging Credits

If the employee voluntarily agrees in writing, employers may generally include in employee wages part of the cost of meals and lodging they provide.

The adjacent table provides the maximum amount employers may credit for meals and lodging. Special rules exist for sheepherders and employees of organized camps.

  • Sheepherder wages cannot be offset by meal and lodging credits; and
  • Organized camps may deduct the entire value of meals and lodging from the salary of a student-employee, camp counselor or program counselor.

Refer to the wage orders mentioned below for more information on industry-specific meal and lodging credits.

Tipped Employees

In California, employers must pay tipped employees a wage rate equal to or greater than the state’s minimum wage rate. Employers may not deduct a tip credit from their employees’ wages. Tip payments include any tip, gratuity, money or other gift a patron gives an employee over and above the actual amount of the goods, food, drink, items or services the patron received from that business.

Employers cannot enter into contracts with their employers to override tipped employee regulations.

Subminimum Wage Rates

California law allows disabled workers, apprentices, learners, student-employees, camp counselors and program counselors to receive wage rates below the minimum state rate. In certain cases, a license may be required for a subminimum wage rate to apply. When a license is required, the DLSE may set the terms and conditions of employment. Licenses may be revoked if the employer violates any term or condition of employment set by the license.

Disabled Workers

Employers that obtain a special license issued by the DLSE may pay disabled workers a wage rate below the state’s minimum wage rate. Employers must generally obtain a separate license for each disabled employee. These licenses are valid for up to one year, and must be renewed on a yearly basis.

Nonprofit employers, including sheltered workshops and rehabilitation facilities, may receive a general license to employ disabled employees at subminimum wage rates, instead of individual licenses for each employee. Employers may be required to renew these licenses every year or on a more frequent basis.

Apprentices and Learners

The DLSE may also issue special licenses authorizing employers to pay subminimum wage rates as low as 85 percent of the state’s minimum wage rate to employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience.

Organized Camps

Employers operating an organized camp can pay their student-employees, camp counselors and program counselors a minimum wage rate equal to 85 percent of the state minimum wage rate. These employers can also deduct the entire value of meals and lodging they provide to these employees.

Minimum Wage Rate Exemptions

California’s minimum wage rate requirements do not apply to certain occupations and industries. Separate specific minimum wage rate and payment requirements, described in a series of minimum wage orders, apply for these employees. Consult the wage orders below for information on affected industries:

Other exceptions to California’s minimum wage rate requirements include individuals who are closely related to their employer (parent, spouse or child) and outside sales personnel.

Notice and Postings

Employers are required to post and maintain updated information on the state’s minimum wage rate. The Industrial Welfare Commission (IWC) has provided a model poster that employers can use.

Employers covered by one of California’s industry-specific wage orders must also display a copy of the applicable wage order. These wage orders are available on the IWC’s website.

Prohibited Wage Discrimination

In general, the California Equal Pay Law prohibits employers from discriminating on the basis of sex in the payment of wages.

Subject to some limited exceptions, female and male employees are entitled to equal pay for substantially similar work. Substantially similar work is determined by evaluating the level of skill, effort, responsibility and performance under similar working conditions.

California’s Equal Pay Law allows employers to pay different wages for employees of opposite sex when the wages are based on:

  • A seniority system;
  • A merit system;
  • A system that measures earnings by quantity or quality of production; or
  • A differential based on any bona fide factor other than sex.

A bona fide factor other than sex, such as education, training or experience, exists only when the employer demonstrates that the factor is:

  • Not based on or derived from a sex-based differential in compensation
  • Job-related (with respect to the position in question); and
  • Consistent with a business necessity.

“Business necessity” means an overriding legitimate business purpose. Business necessity does not exist when the employee can demonstrate that the employer could have implemented or used an existing alternative practice that would avoid a wage differential while serving the same business purpose.

Penalties

Criminal, civil and administrative penalties may apply for violations of California’s minimum wage laws.

Criminal Penalties

Employers that violate California’s minimum wage laws commit a misdemeanor, punishable by a fine of at least $100, imprisonment for at least 30 days or both a fine and imprisonment. Employers that violate tipped employee regulations also commit a misdemeanor, punishable by a fine of up to $1,000, imprisonment for up to 60 days or both.

Civil Penalties

Employers that pay wages below the state minimum wage rate or that violate California’s equal pay laws are subject to civil lawsuits, and could be ordered to pay:

  • The difference between what an employee’s wages should have been and what they actually were (plus interest);
  • Liquidated damages (in an amount equal to the wage difference plus interest); and
  • Court costs and reasonable attorneys’ fees.

Employers may avoid paying liquidated damages if they can prove that their actions were in good faith.

Employee lawsuits must be filed within two years of when the violation takes place (or within three years, for willful violations). In the case of any wilful violation, the DLSE can request and obtain injunctions against any further violations.

The identity of any employee that files a complaint for wage discrimination with the DLSE will remain confidential during an investigation and will not be disclosed until the validity of the claim is established.

Administrative Penalties

In addition to the civil penalties described above, the DLSE may issue citations for any employer that violates the state’s minimum wage laws. Cited employers may be subject to fines as follows:

  • $100 per underpaid employee for each pay period in which the employee is underpaid, for a first offense; and
  • $250 per underpaid employee for each pay period in which the employee is underpaid, for a second or subsequent violation.

Employers can appeal these fines by requesting a hearing within 15 days of receiving the citation.

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2 weeks ago · by · 0 comments

Cranes and Derricks in Construction – Operator Qualifications FAQs

OSHA’s cranes and derricks operator certification standard becomes effective on Nov. 10, 2017.

Employers that use cranes and derricks in construction must comply with this standard. Employers should also become familiar with this standard if their employees work in areas or sites where cranes and derricks are in use. Finally, crane lessors that provide operators or maintenance personnel with the equipment they lease also have duties under the standard.

This Compliance Overview presents some frequently asked questions and answers compiled by OSHA regarding operator and signal person qualifications and operator certification.

LINKS AND RESOURCES

  • OSHA’s cranes and derricks in construction website
  • OSHA’s cranes and derricks FAQs
  • OSHA’s small entity Compliance Guide for cranes and derricks in construction standard

OPERATOR QUALIFICATION & CERTIFICATION

IMPORTANT: On Sept. 26, 2014, OSHA published a final rule that extends the deadline for crane operator certification in the cranes standard at 29 CFR 1926.1427 for three years, to Nov. 10, 2017 (published in the Federal Register). The final rule also extends the employer’s duty to ensure that operators are competent to operate the crane safely for the same three-year period. During this extension, OSHA will address operator qualification through additional rule-making. OSHA will provide updated information about the crane operator certification and qualification requirements as it becomes available on OSHA’s cranes and derricks in construction page.

What must employers do before the operator certification requirements go into effect to ensure the competency of their operators?

Employers must ensure that equipment operators are competent through training and experience to operate the equipment safely (see 29 CFR 1926.1427(k)(2)). If an employee assigned to operate a crane does not have the required knowledge or ability to operate the equipment safely, the employer must train that employee before allowing him or her to operate the equipment and must evaluate the operator to confirm that he or she understands the information provided in the training (see 29 CFR 1926.1427(f) training requirements).

Does OSHA require operators to be certified under existing state, county or city licensing programs?

The answer depends on whether the licensing criteria meets the minimum requirements (“federal floor”) in 29 CFR 1926.1427(e)(2) and (j). If a state or local jurisdiction has a licensing program that meets the federal floor, OSHA requires the employer to ensure that all operators operating within that jurisdiction are licensed by that state or local jurisdiction, unless they are qualified by the U.S. military (see §1926.1427(a)(1)).

This requirement went into effect in November 2010. Note, however, that the crane standard’s operator certification requirements do not supersede state or local licensing laws. If the licensing program does not meet the federal floor, OSHA does not require operators to be licensed in accordance with that program, although the operator may still be subject to action by the state or local authority for failure to comply with its requirements.

Who will determine if a state or local operator certification process meets the federal floor requirements in 29 CFR 1926.1427?

Initially, states or local governments are responsible for determining if a state or local operator certification program meets the requirements of 29 CFR 1926.1427(e)(2)(i-ii) (see §1926.1427(e)(2)(iii)).

OSHA does not require compliance with a state or local licensing requirement unless the state or local authority that oversees the licensing department or office assesses that program and determines that it meets the minimum requirements in §1926.1427(e)(2)(i) and (ii), including satisfying the substantive testing criteria of §1926.1427(j) through written and practical tests and providing testing procedures for relicensing.

OSHA does not intend to require compliance with a state or local licensing requirement absent a public statement by the authority with oversight responsibility for the licensing office that the licensing program meets OSHA’s minimum requirements and the reason for that determination. However, OSHA has the final authority in determining that the program meets minimum OSHA requirements.

Is the option for qualification by the U.S. military available to employees of private contractors working under contract to the Department of Defense?

No. This option is only available to civilian and uniformed employees of the Department of Defense. When the operator certification requirements are in effect, private contractors must use one of the other options for operator certification/qualification available under 29 CFR 1926.1427.

Does OSHA endorse or approve testing bodies for operator certification or other purposes under the cranes standard?

No. OSHA does not evaluate or approve crane operator training courses or crane operator certification testing bodies. Under the cranes standard, operator certification testing bodies must be accredited by a nationally recognized accrediting agency (29 CFR 1926.1427(b)(1)(i)). Currently the American National Standards Institute (ANSI) and the National Commission for Certifying Agencies (NCCA) are the two organizations that OSHA has identified as nationally recognized accrediting agencies.

SIGNAL PERSON QUALIFICATIONS

What qualifications must a signal person possess?

A signal person must:

  • Know and understand the type of signals used;
  • Be competent in the application of the type of signals used;
  • Have a basic understanding of equipment operation and limitations, including the crane dynamics involved in swinging and stopping loads and boom deflection from hoisting loads; and
  • Know and understand the relevant requirements of the provisions of the standard relating to signals.

How does an employer know whether a signal person is qualified?

Under 29 CFR 1926.1428, employers must determine that a signal person is qualified through the assessment of a qualified evaluator, who must meet one of the following definitions in §1926.1401:

  • Third-party qualified evaluator (“an entity that, due to its independence and expertise, has demonstrated that it is competent in accurately assessing whether individuals meet the qualification requirements in this subpart for a signal person”). The signal person must have documentation from a third-party qualified evaluator showing that he or she meets the qualification requirements.
  • Employer’s qualified evaluator (not a third party) (“a person employed by the signal person’s employer who has demonstrated that he or she is competent in accurately assessing whether individuals meet the qualification requirements in this subpart for a signal person”). The employer’s qualified evaluator assesses the individual, determines that the individual meets the qualification requirements and provides documentation of that determination. This assessment may not be relied on by other employers.

(See 1/9/12 Interpretation Letter to William Irwin, Jr. and 6/28/11 Interpretation Letter to Walter Wise.)

Must the required training and qualification of a signal person be performed by an accredited organization?

No, but employers must have documentation of the signal person’s qualifications available at the worksite, either in paper form or electronically. For example, the documentation may be accessed from a laptop or tablet, via email or be transmitted from an off-site location by facsimile. While a physical card may serve as proof of a signal person’s qualifications, it is not the only means allowed by the cranes standard.

The documentation must specify each type of signaling (e.g., hand signals, radio signals, etc.) for which the signal person is qualified under the requirements of the standard. The purpose of this documentation is to ensure the on-site availability of a means for crane operators and others to determine quickly whether a signal person is qualified to perform a particular signal for the hoisting job safely.

(See 1/9/12 Interpretation Letter to William Irwin, Jr. and 6/28/11 Interpretation Letter to Walter Wise.)

Do Union and Trade Association Apprenticeship Certification Programs qualify as third party qualified evaluators for purposes of evaluating signal person qualifications in accordance with 29 CFR 1926.1428(a)(1)?

OSHA’s cranes standard requires each employer of a signal person to use a qualified evaluator (a third party or an employee) to verify that the signal person possesses a minimum set of knowledge and skills (29 CFR 1926.1428(a)). In general, OSHA does not evaluate or endorse specific products or programs, and, therefore, makes no determination as to whether a certification program meets the definition of a “qualified evaluator (third party).”

It should be noted, however, that in the preamble to the cranes standard, OSHA stated that “labor-management joint apprenticeship training programs that train and assess signal persons would typically meet the definition for a third-party qualified evaluator…”

(See the preamble to the cranes standard in the Federal Register at 75 FR 48029.)

With regard to training, the employer is ultimately responsible for assuring that its employees are adequately trained regardless of whether the employees’ qualification is assessed by the employer or a third party.

(See 1/9/12 Interpretation Letter to William Irwin, Jr. and 6/28/11 Interpretation Letter to Walter Wise.)

Does a certified operator automatically satisfy the criteria for being a qualified signal person under 29 CFR 1926.1428?

No. To qualify as a signal person, the operator would need to be evaluated by a qualified evaluator, satisfy the specified testing requirements for signal persons under 29 CFR 1926.1428 and documentation must identify the types of signaling (e.g., hand, radio, etc.) for which the operator has been evaluated.

In some cases, the operator’s certification process may also satisfy the signal person qualification requirements, depending on the qualifications of the certifying organization, the content of the certification exam and the documentation provided by the certifying organization. In general, the qualifications of a signal person and an equipment operator are not considered one in the same.

I received a license or certificate from an accredited organization as a trainer in signaling. Does this qualify me to be an evaluator of the qualifications of signal persons?

Not necessarily. While being an accredited trainer may indicate that the trainer possesses the skills for effectively communicating subject matter to trainees, a qualified evaluator must also have demonstrated that he or she is competent in accurately assessing whether individuals have the qualifications required by the cranes standard. For further information regarding signal person qualifications, refer to related fact sheets.

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1 month ago · by · 0 comments

Benefits of Owner-Controlled Insurance Programs

An owner-controlled insurance program (OCIP) is a type of a wrap-up insurance policy commonly used to insure construction projects. OCIPs replace the traditional method of insuring construction projects – that is, where the various parties involved obtain their own insurance coverage.

Instead, OCIPs provide the participants of a construction project with insurance coverage under one policy controlled by the project owner.

OCIPs offer a number of important benefits to the parties involved, particularly as it relates to the following:

Potential cost savings. OCIPs allow project owners to avoid the costs associated with contractors who carry overlapping insurance coverage as well as markups by contractors who would otherwise pass their insurance costs on to the owner. What’s more, project owner’s bulk purchasing power and economies of scales allow insurance to be obtained at a discount.

Peace of mind. OCIPs consolidate insurance policies into one, uniform insurance program, guaranteeing the owners that individual contractors and subcontractors are adequately covered. Under OCIPs, project owners do not have to worry about the availability or adequacy of insurance coverage for individual contractors on the job site, differences in policy limits and deductibles, or liability that may arise if a contractor allows its insurance coverage to lapse.

Streamlined claims handling. OCIPs facilitate more efficient and simplified claims processing. Under most OCIPs a single insurance company is the control point for reporting claims, conducting investigations and making payments. With one insurer, claim settlement procedures are more consistent.

Reduced litigation. OCIPs can reduce potential litigation and disputes between insurance companies. With traditional insurance policies where each contractor purchases coverage through separate insurance companies, there is a greater chance of lawsuits being used to settle accident and injury claims. By relying on one central insurer, OCIPs eliminate the incentive for litigation amongst insurance companies.

Access to contractors. OCIPs give project owners more flexibility when selecting contractors, because a contractor’s ability to meet minimum insurance requirements of the project is removed from the equation. As a result, the total pool of contractors available to a project owner is expanded through an OCIP.

Safety initiatives. OCIPs allow for the development of a centralized safety program covering the operations of all contractors and subcontractors. This in turn, can improve overall workplace safety for the parties involved in a project.

Length of coverage. OCIPs cover the life of a project plus an extended completed operations period.

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Scurich Insurance Services
Phone: (831) 661-5697
Fax: (831) 661-5741

Physical:
783 Rio Del Mar Blvd., Suite7,
Aptos, Ca 95003-4700

Mailing:
PO Box 1170
Watsonville, CA 95077-1170

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(831) 661-5697

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