According to a report by the U.S. House of Representatives’ Committee on Education and Labor, a staggering 69 percent of all workplace injuries and illnesses may not be represented in the Bureau of Labor and Statistics Survey of Occupational Injuries and Illnesses, which many trust as a gauge of the safety of American workplaces. On a corporate level, not reporting or underreporting workplace injuries can have serious ramifications for the organization and the employer, which can include fines, exorbitant and unnecessary, health costs and more.
Research has found that the employer’s behavior, policies and attitude are key determinants in a worker’s decision to report an injury. Not only is it essential that employees are educated on the importance of reporting injuries, it is also important to examine your company policies so you are not inadvertently discouraging reporting. The consequences of underreporting can be severe.
Consequences of Underreporting
The unfortunate trend of injury underreporting can have serious ramifications at both the industry and company level. Widespread underreporting can be quite damaging to workers’ compensation rates on a large scale. Employers may not realize it, but such an underreporting problem may lead to more audits by insurance companies of their clients and higher rates for everyone. Many employers erroneously believe that reporting injuries leads to audits and higher rates.
At the company level, underreporting injuries can be quite costly for the employer. If it is an OSHA-reportable incident, the employer may face significant fines if it is not properly recorded or reported.
In addition, often when an injury isn’t reported or properly cared for immediately, it worsens and leads to higher health care costs and more lost time. Even if it is never reported as a workplace injury, the employer still loses out on health care costs and productivity. If it is eventually reported, it becomes much more difficult to prove that it was workplace-related. Additionally, a study reported by the Hartford Financial Services Group found that injuries reported four or five weeks after the incident are 45 percent more expensive than injuries reported within the first week due to increased health costs and possible legal fees, or even a lawsuit, associated with late reporting.
One of the best ways to control workers’ compensation costs is through early reporting and intervention. Not only will it save money in health bills and legal fees, but it will also help to constantly improve your safety program. When there is an injury, consider it an opportunity to examine current safety procedures and decide if there is a suitable change that could be made to prevent similar injuries in the future. Thus, prompt reporting can be a productive element to your safety program in your quest to always strive for the safest work environment. Rather than accepting a vicious circle where injuries are not reported and thus nothing is done to fix the problem, leading to more injuries, take advantage of injury reporting as a proactive solution to safety.
Reasons for Underreporting
There are several reasons why employees may not report injuries immediately or at all.
Incentive programs: Many employers have reward or incentive programs to promote their safety initiatives, such as rewards for going a certain number of days without an injury. This can create a negative attitude toward reporting an injury, since doing so could cost that employee, a co-worker or a superior a reward or bonus.
Having incentive programs are a good idea, but a more effective strategy is to reward positive, safe behaviors. This can include reporting a safety hazard, attending a safety meeting or training class or equipment maintenance. Rather than rewarding for days without an injury, reward behaviors that strive to avoid injury, or even reward employees for prompt reporting when an injury occurs.
Fear of negative ramifications: Some employees fear that reporting an injury will create an image of them as weak to their co-workers and managers. He or she also may fear that such an image will be a detriment to his or her career.
Dispel this fear by assuring all employees that reporting an injury will have no negative impact on their job, and ensure follow through on all levels of the company. Work to promote a safety culture where prompt injury reporting is encouraged and praised. Injury reporting should never be frowned upon, even subtly or behind closed doors. If employees find out you are angry about a reported injury, he or she is less likely to report an injury in the future.
Some companies have a policy mandating drug testing after any incident whether or not there is evidence of drug use. This deters some employees from reporting injuries as well. Consider making the drug testing conditional depending on the circumstances of the injury and whether there is evidence that drug use was a factor.
For more information about injury reporting or your company’s workers’ compensation and safety programs, please contact Scurich Insurance at 831-661-5697 today.
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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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Workers’ Compensation Insurance is an important product for employees. There are six common myths that surround this insurance, though. Debunk the myths so you can understand and maximize your benefits.
1. Small businesses don’t need to offer Workers’ Compensation Insurance.
You may work in a small business with only a few employees. Federal and state laws dictate that most businesses with one or more employees must carry Workers’ Compensation insurance. Be sure your employer carries this valuable insurance even if you are a solo employee.
2. I don’t need Worker’s Compensation insurance because my job is low-risk.
Some jobs, like construction, farming and commercial fishing, are dangerous. However, even low-risk jobs include injury and illness risks. You could develop carpal tunnel while typing or slip and fall in the break room during lunch. Your employer will pay lower Workers’ Compensation insurance premiums if you work in a low-risk job, and you absolutely must ensure you’re covered no matter what type of work you perform.
3. I’m careful and won’t get hurt.
While you might have an accident-free employment history, it only takes a second for an accident to happen. Plus, some workplace accidents or injuries occur because of someone else’s actions. Ensure you are covered by Workers’ Compensation regardless of your careful track record.
4. My boss is like family, and I could never sue.
It’s great that you have such a good relationship with your boss and feel like family. However, you are still employer-employee. By law, your employer must provide Workers’ Compensation for you. You also owe it to yourself and your dependents to have this valuable coverage in place in case you are injured or disabled and can’t work.
5. My boss will pay my work-related injury or illness expenses out-of-pocket.
Perhaps your boss has vowed to pay out-of-pocket for your medical, living and others expenses if you’re injured or become ill on the job. Unfortunately, your boss may decide not to pay, particularly when the Workers’ Compensation claims reach thousands of dollars or affect multiple employees. Always protect yourself with Workers’ Compensation insurance so that you can ensure your expenses are paid.
6. Any pain I feel at work is eligible for Workers’ Compensation.
While assembling furniture at work, you notice that your arm hurts. Instead of rushing to file a Workers’ Compensation claim, think about when and where the pain started. If it originated from an activity or injury that occurred outside of work, don’t file a Workers’ Compensation claim.
Workers’ Compensation insurance is important. Understand these six myths as you make sure you’re covered. For more details, contact your Human Resources manager or insurance agent.
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Whether you stand all day, operate heavy machinery or handle chemicals, you need to protect your feet as you work. Several foot safety tips reduce injuries and help you maintain a safe work environment.
When to Wear Safety Footwear
Safety footwear protects your feet against numerous injuries, including punctures, impacts, electrical shock and compression. If you work in any hazardous work environment, you probably need to wear safety footwear as part of your daily uniform. Protective shoes also protect your feet if you suffer from weak ankles or other medical conditions.
Available Types of Safety Footwear
Depending on your job and preferences, you may select safety boots or sneakers. Available in a variety of styles and colors, the best safety shoes include a CSA certification and may include:
Safety-toe – features a special toe covering that protects the foot from dropped objects
Steel insole – stabilizes feet and protects them from joint and bone injuries or problems
Metal instep – provides a barrier against glass, nail and other sharp object punctures
Metatarsal protection – reduces injuries to your upper feet and internal bones
Electric protection – absorbs shock through specially made soles
Heat resistant – resists heat-related injuries
Water resistant – repels water and keeps feet dry
Nonslip – improves traction on various surfaces
Where to Purchase Safety Footwear
Your employer may provide strict guidelines and limitations about exactly which safety shoe you may wear, including where you may purchase this gear. If you can select the safety shoes you wear, check specialty footwear stores or online retailers. Because you want to protect your feet, select only the right shoes for your job and feet. Price should be secondary as you promote safety.
How to Fit Your Safety Footwear
When trying on safety footwear, ensure a proper fit.
- Try on shoes in the afternoon to accommodate swelling that occurs naturally during the day.
- Wear your regular work socks and any special supports.
- Ensure ample toe room since the shoes typically do not stretch with wear.
- Check for snugness around the heel and ankle.
- Walk around a bit to check for comfort.
Care Instructions
Most safety footwear requires ongoing care and maintenance. Before you wear them for the first time, apply a water-resistant coating. Every day, inspect your shoes for damage, including sole cracks, leather breaks or toe cap exposure. Always replace your safety footwear if you notice signs of wear or damage that you cannot repair and after a puncture, impact or other event that may compromise the shoe.
Protect your feet at work when you wear the right safety footwear. Talk to your employer and check OSHA resources as you purchase, maintain and wear shoes that protect your feet every day.
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The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) recently made changes to the system for determining employers’ experience mods. Because experience mods are one of the largest factors when determining your workers’ compensation premiums, it’s important to know the details of these changes, and what they mean for your business.
Split Point Changes
The largest change the WCIRB made was to the split point, which had not been changed since 2010:
- Losses in excess of the split point will now be ignored during the calculation of an employer’s experience mod. These losses were previously considered, but did not carry as much weight as losses below the split point. Excess losses focus on the severity of injuries and illnesses in the workplace, a focus that will no longer be considered under the new changes to the rating system.
- Losses up to the split point will still count fully in the calculation of an employer’s experience mod. These primary losses focus on the frequency of injuries in the workplace, as they are fully weighted during the calculation of an experience mod. Because the WCIRB chose to focus on primary losses, the agency believes that employers will be encouraged to develop safe workplaces and reduce the occurrence of injuries and illnesses.
In addition to the focus on primary losses, the split point will now vary between approximately $4,500 and $75,000, based on the size of a business, instead of the previous $7,000 fixed split point. There will be approximately 90 threshold split points. The WCIRB believes that a varying split point will benefit smaller employers, who could previously expect abnormally high experience mods after a single, catastrophically large loss. Additionally, other states that use a fixed split point typically set them at $15,000 or higher, which the WCIRB believes is unfairly high for many small businesses.
For example, under the old split point system, a small employer with a single $60,000 loss would have a vastly different experience mod than a larger employer with 10 $6,000 losses. Under the new system, the WCIRB hopes to encourage safety at all times instead of punishing employers for abnormally high and rare losses.
What the Change Means for You
Although the varying split point can now reach extreme heights, the WCIRB believes that the elimination of excess loss consideration will cause premiums to remain flat. However, it’s possible that you could see your split point—and consequentially, your premiums—rise if you increase your workforce substantially.
The most important factor when working to lower your workers’ compensation premiums is to reduce the frequency of injuries and illnesses in the workplace—especially now that the calculation of your experience mod will be determined almost entirely by primary losses. For help keeping your workplace safe and responding to injuries and illnesses at your business, contact us at 831-661-5697 today.
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OSHA’s final rule on electronic reporting requires certain employers to submit data from their injury and illness records electronically so it can be posted on the agency’s website. Because the rule is an extra requirement on top of existing OSHA recordkeeping standards, affected employers need to be ready to comply with the rule before the proposed Dec. 1, 2017, deadline.
Other News and Tips
Preparing for OSHA Inspections
If an unannounced OSHA inspection finds violations at your business, you may have to pay thousands in fines and watch as your reputation plummets. Fortunately, OSHA inspections generally follow an established procedure that you and your staff can prepare for.
When an OSHA compliance officer arrives at your business, it’s important to check his or her credentials and then determine if you’ll give consent to the inspection. Although you can refuse an inspection or give only partial consent, the compliance officer will take note of this and OSHA may take further action.
Once an inspection begins, the goal should be to determine its purpose and set any ground rules. You should also be prepared to provide proof that your business is in compliance with OSHA standards. During the walkaround process, be sure to take notes of what the inspector documents so you can review them later.
OSHA inspections can be stressful, even when your business is in full compliance. Scurich Insurance can provide you with our inspection guide, “Be Prepared for an OSHA Inspection,” and help your business impress OSHA compliance officers.
OSHA Removes Employee Fatalities from Home Page
Although OSHA used to include a URL link on its home page that would direct viewers to a list of employee fatalities, the agency recently moved the link to a separate page on its website.
According to a spokesperson from the Department of Labor, the link was moved in order to increase the accuracy of workplace data, as previous listings included fatalities that were outside OSHA’s jurisdiction. However, OSHA will keep the list of employee fatalities on its website and continue to review data from employers.
Although the electronic reporting rule initially required certain employers to start submitting their required information by July 1, 2017, OSHA’s Injury Tracking Application website wasn’t ready to receive electronic reports in time, and OSHA proposed Dec. 1, 2017, as the new deadline. The rule doesn’t change an employer’s requirements to complete and retain regular injury and illness records, but some employers will now have additional obligations. Here are the requirements for the rule:
- Establishments with 250 or more employees that are required to keep injury and illness records must electronically submit the following forms:
- OSHA Form 300: Log of Work-Related Injuries and Illnesses
- OSHA Form 300A: Summary of Work-Related Injuries and Illnesses
- OSHA Form 301: Injury and Illnesses Incident Report
- Establishments with 20 to 249 employees that work in industries with historically high rates of occupational injuries and illnesses must electronically submit information from OSHA Form 300A.
The final reporting requirements will be phased in over two years. After the initial Dec. 1, 2017, deadline, establishments with 250 or more employees must submit information from OSHA Forms 300, 300A and 301 by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
For more help preparing for this new rule, call us at 831-661-5697 and ask to see our comprehensive Compliance Overview on OSHA’s electronic reporting rule.
New Silica Rule Enforcement Begins
A new OSHA rule on respirable crystalline silica will require employers to limit their employees’ exposure to silica hazards and provide medical exams to monitor highly exposed employees. The rule is scheduled to come into effect on June 23, 2018; however, OSHA began enforcement of the new rule in the construction industry on Sept. 23, 2017.
Under the new rule, employers must reduce the permissible exposure limit (PEL) for respirable silica to 50 micrograms per cubic meter of air (50 µg/m3). The rule also requires employers to take the following steps:
- Establish engineering controls to limit employees’ exposure to the new PEL.
- Provide employees with respirators when engineering controls alone do not provide enough protection.
- Establish a written silica exposure control plan.
- Provide medical exams to employees who are exposed to levels of respirable silica at or above the new PEL for 30 or more days a year.
To see more information on the respirable silica rule, and to see specifics about the rule’s application in the construction industry, visit OSHA’s website.
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