Safety & Workers' Compensation

Fisker Automotive, maker of all electric powered cars for the luxury market was hit with a class action lawsuit after laying off 75% of their staff in Anaheim, California and failing to comply with the federal Worker Notification and Retraining Act (WARN Act) and California Labor Code section 1400 (Cal-WARN). The suit seeks civil penalties and unpaid wages for a period of sixty (60) days on behalf of one hundred and sixty (160) employees who allegedly failed to receive proper notice under the WARN Act and Cal-WARN (CLICK HERE for a copy). The layoff came after workers were furloughed and returned to work, and as Fisker faces default on a $193 million dollar loan from the U.S. Department of Energy. The lawsuit was filed by the same law firm that obtained a $3.5 million dollar settlement on behalf of employees who were laid off without notice after the famously troubled solar panel company, Solynra, filed for bankruptcy.

After several months of intense negotiations between representatives of labor unions and employers, Senate Bill 863 was forged. SB 863 was signed into law by Governor Jerry Brown on September 18, 2012 with many of the provisions taking effect January 1, 2013. The focus of the negotiations was clear. The permanent disability paid to injured workers was too low and the cost to administer claims was too high. Implementation of the changes brought about by the Bill will be overseen by teams from both the California Department of Industrial Relations (DIR) and the Division of Workers’ Compensation (DWC). Some of the changes under SB 863 are outlined below:

The weather in California has been slow to transition from winter to spring this year, but we all know that the summer heat wave will come.  On April 26th, Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor’s Occupational Safety and Health Administration has launched an outreach campaign to educate employers and workers about the hazards of working outdoors in the heat.  The Labor Department’s message is simple (and familiar to those of us in California)—water, rest, and shade.

“I’m fired? Ow, my back!”

          Many employers are forced to go through an extended and costly process when disgruntled, recently terminated, employees decide to file potentially frivolous workers’ compensation claims.  Instances of employees filing workers’ compensation after learning of their termination are on the rise, and it is vital that employers understand their legal rights.  California Labor Code §3600(10) offers some protection to employers from terminated employees who decide to file workers’ compensation claims after receiving notice of their termination.  

          Principals of a farm labor contractor, Merced Farm Labor Contractor, who are accused in the death of a 17 year-old pregnant farm worker in 2008, are headed for a December 16, 2010, hearing in San Joaquin County on criminal charges, as well as an appeal hearing before the Cal/OSHA Appeals Board on citations assessed up to $262,000.

          Employers around the state are experiencing an increase in petitions for “serious and willful misconduct by employer.”  The petitions are brought by employees or former employees before the Workers’ Compensation Appeals Board and provide that the amount of compensation recoverable by the petitioner can be increased by 50% when the employer is found to have engaged in serious and willful misconduct under the California Labor Code.

            Governor Schwarzenegger was busy signing 49 bills yesterday (and vetoing 54 others, including SB 1474 as reported earlier today).  Among those signed by the governor was Assembly Bill (AB) 2774, which takes bold steps in redefining what is a serious violation and enhancing communication between employers and the Division of Occupational Safety and Health (DOSH).

The Saqui Law Group wishes to thank Rob Roy, President/General Counsel of the Ventura County Agricultural Association, for contributing this article.         

          The California Division of Workers’ Compensation has finalized regulations that require all employers within the State to post a new "Notice to Employees - Injuries Caused by Work" (dated 6/10/10).  The Notice must be posted in a conspicuous location frequented by employees no later than October 8, 2010.

          The proposed changes to General Industry Safety Order section 3395 were unanimously adopted by the Cal/OSH Standards Board today, as reported by the Cal-OSHA Reporter.  The rulemaking package includes new requirements that will require “shade up” provisions when the temperature reaches 85 degrees, additional protective precautions when the temperature exceeds 95 degrees, and clarification of what constitutes a “shade break.”  The regulations also provide exemptions from the shade up requirement for employers when it is not feasible, providing employers can provide an alternative and effective shade option.

          California employers are clearly taking great efforts to protect their farm workers from heat illness.  Cal-OSHA data suggests that in 2009, the heat regulation compliance rate was 65%, and so far in 2010, the compliance rate is at 87%.  Taking “heat” for decreased fines and issuance of citations, Cal-OSHA chief Len Welsh spoke to Capital Public Radio last week to clarify that Cal-OSHA is not relaxing their enforcement efforts, but instead is seeing their five-year heat-illness campaign pay off as employers have shown a steady increase in the degree of compliance.