Temp Help Agencies, Staffing Firms & Employees of Others
Many organizations regularly use staffing firms, temp help agencies and even PEOs (Professional Employer Organizations) for the people who handle important jobs in their operations. In most instances, even if such workers are on the payroll and are supervised by some other employer, your company may be legally liable for wage and hour law violations and failure to provide workers' compensation for such workers. The new (AB 1897) law imposes liability.
There are some protections for employers and some limits to the application of this new law:
- Businesses with fewer than 25 employees are exempt
- The law only applies if you use 5 or more temporary or supplied workers at one time
- Salaried administrative, executive or professional personnel are not covered by the law
- You can include in contracts with the agencies or firms supplying you such workers that they will indemnify you and hold you harmless for any wage violations or workers' compensation violations, and defend you from any law suits or claims for such violation (except for OSHA violations.)
Since this law takes effect 1-1-15, you should carefully review any contracts with staffing firms, temporary agencies, PEO firms or labor contractors.
Now Add "Waiting time" Penalties
Employers who are found to have paid less than the state minimum wage (now $9.00 an hour, going to $10.00 per hour effective Jan. 1, 2016) are subject to actions for unpaid wages, interest, attorney's fees, costs of litigation and civil penalties.
AB 1723, which is effective 1/1/2015,
adds the penalty of one day's wages for every day of delay up to a maximum of 30 days, which is the "waiting time" penalty for late payment of final wages under California Labor law.
Wage and Hour or Safety Laws
If an employee complains of Labor Code violations (such as wage and hour or safety laws) and an employer then discriminates or retaliates against the employee because of the complaint, that employer can be penalized up to $10,000 under AB 2751. The money is awarded the employee or employees who suffered the violation. AB 2751 is effective 1/1/2015.
2015 Laws Require You Follow Changes Ordered by Inspectors ... Before Your Day In "Court"
New power has been given to Cal/OSHA inspectors, when they issue "serious" safety citations which require changes in business operations - called "abatement" of what the inspectors charge are violations. Previously, an employer could "stay" or hold off being forced to make these changes demanded by OSHA inspectors by filing an appeal with the Occupational Safety and Health Appeals Board. Before that Board, an independent body, the Cal/OSHA inspectors had to provr that the law and regulations actually had been violated and the employer needed to make changes in the business.
Not Any longer. As of 1-1-2015, Under AB 1634, when given a serious Cal/OSHA citation (faced with expensive fines and an order to make changes in equipment, procedures, etc.) based on the opinion of a Cal/OSHA inspector, the employer MUST make the ordered changes, even while appealing that the charges against it are wrong, and may in the end win the case that no violation was ever proven and no "abatement" is needed. But, it will be too late then, after months and thousands in needlessly wasted costs. Penalties in cases where abatement has not been accomplished cannot be modified, so failure to abate will be very costly.
An ironic part of the law is that an employer can request a copy of the inspection report (basis of the charges from Cal/OSHA against it - and the employer must pay for a copy of this report). The employer will not get this report until after the time has passed for abatement, and won't even know the details or support for the charges against the firm. There is one opportunity to hold off Cal/OSHA's order...if the employer can demonstrate by a preponderance of evidence that a stay of the abatement will not adversely affect the health or safety of employees.
The November BOTTOMLINE will include four additional 2015 New Law Updates that are important to your plans for next year.
Watch your inbox for this valuable information.
The team of Don Dressler Consulting is keeping up on the legal developments on this issue, and here to assist and advise you on compliance with this and other important human resources and safety matters.
For a personal discussion: Call Don Dressler @ 949-533-3742