Following the Hazardous Waste Operations and Emergency Response (HAZWOPER) requirements and regulations not only protects the health and safety of your employees, but it also saves you from expensive litigation you could face if you accidentally expose the outside environment and nearby residents to the potentially hazardous toxins on the worksite.
Officials from the Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency (EPA) and the National Institute for Occupational Safety and Health (NIOSH) all have input on HAZWOPER’s regulations because of the widespread effect hazardous waste has on the population as a whole, not just the industries’ workforces. This document will help you understand the basic requirements of HAZWOPER and determine whether you are in compliance. For a complete list of HAZWOPER requirements or to read the standard in its entirety, visit www.OSHA.gov and search HAZWOPER (Standard 29 CFR 1910.120).
Who Needs to Comply?
HAZWOPER applies to the following types of operations, unless the employer can demonstrate that the operation does not involve the reasonable possibility of employee exposure to safety or health hazards:
- Cleanup operations required by a government body (federal, state or local) involving hazardous substances conducted at uncontrolled hazardous waste sites
- Corrective actions involving cleanup operations at sites covered by the Resource Conservation and Recovery Act (RCRA)
- Voluntary cleanup operations at sites recognized by government bodies (federal, state or local) as uncontrolled hazardous waste sites
- Operations involving hazardous waste conducted at treatment, storage or disposal facilities
What qualifies as an emergency under HAZWOPER can vary, and you should consider the nature of your operation and the extent of your employees’ training. For example, small acid spills by a firm that routinely handles acids would not be an emergency; however, the same situation might be considered an immediate hazard on a site where employees have less training, equipment or experience. In the event that employees are in the following situations, the HAZWOPER standard would apply:
- Presence of high concentrations of toxic substances
- Any situation involving hazardous substances that is life- or injury-threatening
- Environments that present imminent danger to life and health (IDLH situations)
- Accidents that present an oxygen-deficient atmosphere
- Conditions that pose a fire or explosion hazard
- Any situation that requires the evacuation of an area or that requires immediate attention because of the danger posed to employees in that area
HAZWOPER Training
This standard provides specific safety regulations, emergency procedures and training guidelines for employers to follow at worksites that handle hazardous waste or who have the potential for accidental release of dangerous chemical substances. HAZWOPER’s main goal is to get employers to think about how they would handle a spill before it occurs.
HAZWOPER sets five basic training levels related to chemical emergency response, and training requirements for these five groups vary depending on how closely they work with the hazardous material spill. All training must be completed upon hiring for any employee that is expected to participate in emergency response.
- First Responder Awareness Level — individuals likely to witness a hazardous substance release and whose only responsibility would be notifying the proper authorities. Must have sufficient training to demonstrate the following:
- Understanding of what hazardous substances are and the risks associated with them in an incident
- Understanding of the potential outcomes associated with a hazardous substance emergency
- The ability to recognize the presence of hazardous substances
- The ability to identify the hazardous substances, if possible
- The ability to realize the need for additional resources and make appropriate notifications
- First Responder Operations Level — individuals who respond to releases of hazardous substances for the purpose of protecting nearby people, property or environment from damage. They should respond defensively by containing the release and keeping it from spreading. Must have eight hours of training or sufficient experience to demonstrate the following:
- Knowledge of hazard and risk assessment
- Knowledge of proper personal protective equipment (PPE) use
- Knowledge of basic control, containment and/or confinement operations
- Understanding of standard operating procedures
- Hazardous Materials Technician — individuals who respond to releases with the purpose of actively and aggressively stopping it. They will attempt to plug, patch or otherwise stop the hazardous substance release. Must have at least 24 hours training, all the first responder operations knowledge and the following:
- Knowledge of how to implement the employer’s emergency response plan
- Ability to classify, identify and verify known and unknown materials by using survey equipment
- Knowledge of how to select and use specialized chemical PPE
- Have the ability to perform advanced control, containment and/or confinement operations with the resources and PPE available
- Knowledge of basic chemical and toxicological terminology and behavior
- Hazardous Materials Specialist — individuals who respond with and provide support to hazardous material technicians, but with more specific knowledge of various hazardous substances. Also acts as the site liaison with government authorities. Must have 24 hours of training, all technician-level knowledge and employer-certified knowledge on the following:
- The local, state and federal emergency response plan
- Classification, identification and verification of known and unknown materials using advanced survey equipment
- The implementation of decontamination procedures
- Advanced chemical, radiological and toxicological terminology and behavior
- On-Scene Incident Commander — individuals who assume control of the incident site. Must have 24 hours of training and employer-certified competency in the following areas:
- Ability to implement the employer’s incident command system
- Ability to implement the employer’s emergency response plan and the local/state/federal emergency response plan
- Understanding of the hazards and risks associated with employees working in chemical protective clothing
- Understanding of the importance of decontamination procedures
Some important notes on training regulations in the HAZWOPER standard are that measurements of a qualified trainer can be met by academic degrees, completed training courses and/or work experience. Also, HAZWOPER specifically addresses the use of video or online training to satisfy requirements, saying that computer-based systems are an incomplete solution and must be supplemented.
HAZWOPER Emergency Response Plan
Another important section of the HAZWOPER section you should take note of is the need for an emergency response plan with regard to hazardous substance releases. HAZWOPER gives the following guidelines for employers’ emergency response plans, saying it should at least include the following:
- Pre-emergency planning
- Personnel roles, lines of authority, training and communication standards
- Emergency recognition and prevention
- List of safe distances and places of refuge
- Site security and control standards
- Evacuation routes and procedures
- Decontamination procedures
- Emergency medical treatment and first aid procedures
- Emergency alerting and response procedures
- Critiques and follow-ups on previous emergency response situations
For more information on how you can further implement HAZWOPER loss control methods, contact Scurich Insurance.
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An effective accident prevention program requires proper job performance from everyone in the workplace. As an owner or manager, you must ensure that all employees know about the materials and equipment they work with, known hazards and how to control those hazards.
Each employee needs to know the following:
- No employee is expected to undertake a job until he or she has received proper job instructions and is authorized to perform that job.
- No employee should undertake a job that appears unsafe.
You may be able to combine safety and health training with other training sessions, depending upon the types of hazards present in your workplace.
Here are some actions to consider:
- Ask your OSHA state consultant to recommend training for your worksite. The consultant may be able to conduct training while he or she is there.
- Make sure you have trained your employees on every potential hazard that they could be exposed to and how to protect themselves against those hazards. Then, verify that they really understand what you taught them.
- Pay particular attention to your new employees and to employees who are moving to new roles within the organization. Since they are learning new operations, they are more likely to get hurt.
- Train your supervisors to understand all the hazards faced by the employees and how to reinforce training with quick reminders and refreshers, or with disciplinary action, if necessary.
- Make sure that your top management staff understands their safety and health responsibilities and how to hold subordinate supervisory employees accountable for their actions.
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On May 31, 2018, the Internal Revenue Service (IRS) published a proposed rule that would expand the electronic filing requirement for a number of tax forms. Current IRS rules impose a 250-return threshold for mandatory electronic filing, which applies separately to each type of information return. However, the proposed rule would require:
- All information returns, regardless of type, to be taken into account to determine whether a reporting entity meets the 250-return threshold; and
- Any reporting entity subject to the electronic reporting requirement to file corrected information returns electronically, regardless of the number of corrected information returns being filed.
This proposed rule would impose mandatory electronic filing for significantly more reporting entities. According to the IRS, most forms are currently filed electronically. However, employers that don’t currently file electronically with the IRS should evaluate the number of information returns that they file to determine how this new standard could affect them.
Overview of Mandatory Electronic Filing
Existing IRS rules require reporting entities that file 250 or more information returns to file electronically. However, this 250-return threshold applies separately to each type of return. This means that each type of return is counted separately and not aggregated when determining whether the 250-return threshold applies.
These rules generally cover the following tax forms (among others):
- Form W-2 (Wage and Tax Statement);
- Forms in the 1094 series (including Forms 1094-B and 1094-C, the required transmittal forms under Section 6055 and Section 6056);
- Forms 1095-B and 1095-C (the required individual or employee statements under Section 6055 and Section 6056); and
- Forms in the 1099 series.
When the electronic filing rules were originally established, electronic filing was in the early stages of development and was not as commonly used as it is today. However, according to the IRS, significant advances in technology have made electronic filing more prevalent and accessible, in many cases making it less costly and easier for reporting entities than paper filing. The IRS asserted that most information returns are already filed electronically (approximately 98.5 percent in the 2016 tax year). As a result, the IRS no longer believes that determining the 250-return threshold on a form-by-form basis without aggregation is necessary to relieve taxpayer burden and cost.
Proposed Expansion of the Electronic Filing Requirement
Due to these advances in technology, the proposed rule would require reporting entities to count all information returns, regardless of type, to determine whether they meet the 250-return threshold and, therefore, must file the information returns electronically. Specifically, under the proposed rule, a reporting entity that is required to file a total for 250 or more information returns of any type covered by this rule during a calendar year will be required to file those information returns electronically.
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Example: Company W is required to file 200 Forms 1099–INT (Interest Income) and 200 Forms 1099–DIV (Dividends and Distributions), for a total of 400 returns. Because Company W is required to file 250 or more returns covered by this rule for the calendar year, Company W must file all Forms 1099–INT and Forms 1099–DIV electronically. |
Corrected information returns are not taken into account in determining whether the 250-return threshold is met under the proposed rule. However, the proposed rule would also require corrected information returns to be filed electronically if the original information returns were required to be filed electronically.
According to the IRS, this rule change would help facilitate efficient and effective tax administration.
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However, the rule change would require significantly more reporting entities to file information returns electronically with the IRS. Often, this involves working with a third-party service provider that offers information return preparation and electronic filing. |
Notably, though, the proposed rule does not change the existing regulations allowing reporting entities that are required to file returns electronically to request a waiver of the electronic filing requirement. As a result, electronic reporting waivers will still be available for reporting entities that properly request them. Electronic reporting waivers are intended to relieve the burden on reporting entities that lack the necessary data-processing capabilities or access to return preparers and third-party service providers at a reasonable cost.
Effective Date
The proposed rule is proposed to be effective once final regulations are issued and become applicable. However, to give reporting entities sufficient time to comply with the new rule, the proposed rule will not apply to information returns required to be filed before Jan. 1, 2019. Therefore, the proposed rule, if finalized, would generally be effective for:
- Information returns required to be filed after Dec. 31, 2018; and
- Corrected information returns filed after Dec. 31, 2018.
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Self-driving vehicles may feel like something that will only be available in the distant future, but autonomous technology is already having an impact on the transportation industry. Many motor carriers are promoting new equipment to attract tech-savvy drivers, and advanced safety sensors are helping decrease accidents on the road.
Over 30 automakers and technology companies are working to make trucks fully autonomous, and many states have already passed self-driving legislation that allows for testing on public roads. But, even though this technology offers motor carriers a way to increase efficiency and improve safety, there are a number of topics your business needs to consider before adopting self-driving trucks.
The Different Levels of Automation
Most of the technology used in autonomous vehicles is an evolution of common safety features that use vehicle-mounted cameras and sensors, such as automatic brakes, lane departure systems and blind spot alerts. However, self-driving technology takes this concept a step further by having these systems work together to perform some or all driving functions.
Because there are multiple self-driving systems in development that offer different levels of autonomy, most companies use a system developed by SAE International to classify levels of autonomous vehicles. Levels 0-2 mainly define limited control systems that are commonly available in consumer and commercial vehicles:
- Level 0: No automation – The driver performs all driving tasks, but automated system issue warnings may be present.
- Level 1: Driver assistance – The vehicle and driver may share control in limited circumstances, such as adaptive cruise control and parking assistance. However, the driver must be ready to retake control at all times.
- Level 2: Partial automation – The vehicle has combined automatic functions (such as controlling acceleration and steering simultaneously), but the driver must be constantly engaged and aware of the surrounding environment.
Levels 3-5 define vehicles that are commonly referred to as autonomous or self-driving:
- Level 3: Conditional automation – A driver must still be present, but doesn’t have to monitor the environment. However, they must be ready to take control at all times and with no notice.
- Level 4: High automation – The vehicle can perform all driving functions under certain conditions, and switching control back to the driver may be optional.
- Level 5: Full automation – The vehicle can perform all driving functions at all times.
How Can Self-driving Trucks Help Carriers?
Self-driving trucks could help motor carriers address a number of common issues:
- Safety – Properly functioning self-driving systems operate without the chance of human error and can react to changing traffic patterns faster than a regular driver.
- Driver shortage – Regulations likely won’t allow vehicles to operate without a driver in the near future. However, the technology will attract applicants who don’t want to spend long stretches of time in full control of a commercial truck.
- Increased efficiency – Autonomous technology can give carriers real-time information on location, maintenance status and traffic patterns in order to increase efficiency and better manage fleets.
- Cost reductions – Motor carriers can reduce costs by sending autonomous trucks on more fuel-efficient routes or by platooning the vehicles together to reduce air drag.
What Risks Does This Technology Present?
Although autonomous technology is advancing rapidly, there are still a number of risks and obstacles to overcome before the vehicles can be widely adopted:
- Public perception – Advanced sensors generally make self-driving trucks safe, but recent high-profile collisions and fatalities during tests have lowered the public’s opinion of the technology.
- Long-term employment – Autonomous technology will help to attract new drivers in the near future, but some experts believe that fully independent vehicles may someday eliminate millions of jobs.
- Liability – The liability of an accident involving human-driven vehicles is fairly easy to judge. However, self-driving trucks bring a nonhuman factor into the equation that makes it difficult to determine if an operator, technology developer, manufacturer or other party is at fault for an accident.
- Compliance – Individual states, cities and jurisdictions currently manage laws regarding the testing and use of self-driving trucks, making interstate commerce more complicated. However, the FMCSA recently requested feedback on the regulations that would have to be updated, modified or eliminated to safely allow for the use of autonomous vehicles. Key questions discussed by the agency include the following:
- How will motor carriers ensure automatic systems are functioning properly?
- What changes, if any, should be made to distracted driving regulations?
- How will enforcement officials determine a vehicle’s SAE classification level, and would easily identifiable classification signage negatively affect other drivers?
- How should a driver’s hours of service be recorded when using an automated driving system?
Considering Your Options
As self-driving vehicles continue to develop, your business should carefully consider how both the advantages and risks of this new technology will impact its operations. Contact us at 831-661-5697 today for help analyzing your unique risk exposures.
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On May 21, 2018, the U.S. Supreme Court ruled that employers can use arbitration clauses in employment contracts to bar employees from filing class-action lawsuits related to wage and overtime claims. In a 5-4 split decision, the court determined that employment agreements can require arbitration, waiving the employee’s right to participate in a class-action lawsuit, to settle these disputes.
This ruling is a departure from the position taken by the Obama administration and the National Labor Relations Board (NLRB). Instead, the decision favors employers and follows President Donald Trump’s position on federal employment law that employers are entitled to waive their employees’ right to file class-action lawsuits under the Federal Arbitration Act (FAA).
As a result of this ruling, employers are now free to include clauses in employment contracts requiring the use of arbitration to resolve wage and overtime claims, and barring class-action lawsuits related to these matters. The ruling can protect employers from costly litigation, but critics argue that it could allow employers to escape liability for labor law violations.
Arbitration is a private method of dispute resolution that is used as an alternative to court action, where an impartial third party makes a binding decision on the matter, rather than a judge or a jury. Historically, arbitration has been used in a wide variety of disputes as a cost-saving measure to avoid the burden and expense of litigation.
Mandatory arbitration clauses have become increasingly common in many types of contracts and agreements, especially among large corporations and in consumer transactions. However, courts have had to impose certain limits on the use of these types of clauses, particularly in situations where one party has more bargaining power than the other.
Federal labor law is conflicting on the issue of mandatory arbitration in employment agreements. The National Labor Relations Act (NLRA) guarantees employees’ right to collective action, while the FAA encourages the use of arbitration agreements and generally requires courts to enforce these provisions as written.
The court ruled that arbitration clauses in employment contracts that waive the employees’ right to participate in class actions are lawful and enforceable.
Historically, courts and the NLRB agreed that arbitration agreements are enforceable. In 2012, however, the NLRB took the position that arbitration clauses in employment agreements that include class-action waivers violate the NLRA. As a result, the NLRB pursued and invalidated arbitration agreements and policies used by many employers. The Obama administration sided with the NLRB, arguing that the NLRA essentially invalidates the FAA in the context of labor disputes.
The Supreme Court’s Ruling
The case before the Supreme Court—Epic Systems Corp. v. Lewis—combined three separate lawsuits involving employees who entered into employment agreements requiring arbitration, but still sought to participate in class-action lawsuits over state and federal employment law claims. The lower federal courts were split in their rulings, and the Supreme Court was asked to resolve this conflict.
Although the FAA generally requires courts to enforce arbitration agreements as written, the employees argued that this obligation is eliminated if an arbitration agreement violates some other federal law, and that their employment agreements violated the NLRA by requiring individualized proceedings. Their employers, however, argued that the FAA protects agreements requiring arbitration from judicial interference, and that the NLRA does not change this requirement.
The majority on the Supreme Court sided with the employers, following their long practice of limiting class actions and favoring arbitration over litigation. The court ruled that arbitration clauses in employment agreements that waive the employees’ right to participate in class actions are lawful and enforceable.
Impact on Employers
The Supreme Court’s ruling only impacts non-unionized employees, and does not affect employees represented by labor unions. As a result of the ruling, employers are now free to include clauses in employment contracts requiring the use of arbitration to resolve wage and overtime claims, and barring class-action lawsuits related to these matters.
Following the Supreme Court’s ruling, the NLRB indicated that it intended to follow the decision. According to the NLRB, it currently has 55 pending cases with allegations that employers violated the NLRA by maintaining or enforcing individual arbitration agreements or policies containing class- and collective-action waivers. The NLRB now intends to quickly resolve those cases in accordance with the Supreme Court’s decision.
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STATE RESOURCES
California Department of Industrial Relations
www.dir.ca.gov/dlse/dlse
WagesAndHours.html
Publications
The DIR has published the following materials regarding wage and hour laws in the state:
Poster
Employers can use this DIR model poster to satisfy their posting requirements.
On April 30, 2018, the California Supreme Court adopted a new test for classifying workers as independent contractors for purposes of the California wage orders. In Dynamex Operations West, Inc. v. Superior Court, the Supreme Court ruled that employers must use a three-part “ABC test” to establish whether a worker may be properly classified as an independent contractor for this purpose.
Worker Classification
Whether a worker is covered by a particular law or is entitled to receive a particular benefit often depends on whether the worker is an employee or an independent contractor. In general, employment laws, labor laws and related tax laws do not apply to independent contractors.
For purposes of federal labor and employment laws, no standard test has emerged to determine the true character of an independent contractor relationship. In fact, employers may have to apply various tests to determine how issues of employment benefits, workers’ compensation, unemployment compensation, wage and hour laws, taxes or protection under Title VII of the Civil Rights Act, the American with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA) affect their workforces.
In addition, employers should be aware that state and local variations of these tests may apply in certain situations.
California Wage Orders
Several federal laws regulate wage and hour requirements. California law also imposes state wage and hour requirements. When federal and state laws are different, the law that is more favorable to the employee will apply.
The Industrial Welfare Commission (IWC), part of the California Department of Industrial Relations (DIR), established wage orders to enforce and administer California’s wage and hour requirements throughout the state. Because the IWC is no longer in operation, the Division of Labor Standards Enforcement (DLSE) currently enforces the wage orders.
In total, there are 17 California wage orders, plus a minimum wage order, that California employers must comply with. Each wage order covers a separate industry and imposes requirements relating to minimum wages, work hours and basic working conditions (such as meal and rest periods) for California employees.
Overview of Dynamex v. Superior Court
In Dynamex v. Superior Court, the California Supreme Court was asked to determine what standard applies under California law for purposes of determining whether workers should be classified as employees or as independent contractors under the California wage orders. In this case, a group of delivery drivers sued their employer, Dynamex, arguing that the drivers had been misclassified as independent contractors, rather than employees. The delivery drivers claimed that, due to this misclassification, Dynamex violated Wage Order No. 9 (the applicable order governing the transportation industry), as well as various sections of the California Labor Code.
Prior to 2004, drivers working for Dynamex who performed similar pickup and delivery work as the current drivers were classified as employees. In 2004, however, Dynamex adopted a new policy and contractual arrangement under which all drivers are considered independent contractors, rather than employees. Dynamex argued that, in light of the current contractual arrangement, the drivers are properly classified as independent contractors.
The Supreme Court’s ruling—The “ABC Test”
Historically, courts have applied a multifactor balancing test in determining whether a worker is an employee or an independent contractor. However, the California Supreme Court abandoned the traditional balancing test, and instead adopted a new three-part test that California employers must use when determining whether a worker can be classified as an independent contractor for purposes of the wage orders.
This three-part test is commonly referred to as the “ABC test” due to its three factors to consider. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the employer establishes that all of the following are true:
- That the worker is free from the control and direction of the employer in connection with the performance of the work, both under the contract for the performance of the work and in fact;
- That the worker performs work that is outside the usual course of the employer’s business; and
- That the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the employer.
This test generally favors a determination that workers are employees, rather than independent contractors. The ABC test presumes that all workers are employees and allows workers to be classified as independent contractors only if the employer demonstrates that the worker in question satisfies each of the three conditions.
Impact on Employers
Employers that employ independent contractors in California will want to ensure that their workers are properly classified under the new ABC test adopted by this ruling. As a result, these employers should review their employment relationships and contractual arrangements to evaluate the impact that this ruling may have on their business.
Employers in California should also keep in mind that this ruling applies for purposes of the California wage orders only. Other existing worker classification tests continue to apply for federal law purposes.
More Information
Contact Scurich Insurance for more information on wage and hour laws in California.
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