Chapter 3 Labor Code

Strikes & Lockouts

"Any concerted act of more than 50 percent of the bargaining unit employees under applicable state or federal law to perform work or services for an employer, other than work stoppages based on conflicting union jurisdiction or work stoppages unauthorized by the proper union governing body."

Cal/OSHA cooperating unit " Division of Occupational Safety & Health".

"DOSH" enforces The Cal/OSHA standards & other occupational safety & health regulations. DOSH investigates serious & fatal job-related injuries & illnesses, as well as workers complaints about hazardous working conditions. DOSH also routinely inspects businesses with higher-than average potential risks to workers' safety & health. DOSH May issue citations and impose civil penalties for violations of safety laws by employers.

Classification of the Health & Safety Violations

( 1 ) A serious violation is one that presents substantial probability that a worker will be killed or suffer serious physical harm. ( 2 ) A general violation does not fit the definition of serious but does affect the health & safety of workers. ( 3 ) A regulatory violation pertains to permits, posting, record keeping, or reporting Requirements. An example of a regulatory violation would be a contractor neglecting to obtain a DOSH permit before demolishing a 4-story building.

An employer may not ask the following questions.

( 1 ) Age, Birthdate, or any other information that would allow the employer to calculate the applicant's age. ( 2 ) National origin, nationality, ancestry, or race. ( 3 ) Sex, Sexual orientation, or marital status.(Applicants May not be asked whether they have or plan to have children.) ( 4 ) Religion or lack of religion. ( 5 ) Arrest Record. ( An employer may ask if the applicant has been convicted of a crime and may ask about an arrest for which the applicant is out on bail or was released on his or her own recognizance pending trial. ( 6 ) Medical history or disabilities.( An employer may require that applicants pass a job- related medical exam prior to being hired, & may ask if you have any physical disability that may limit your ability to perform the job your applying for.) But may not ask for your medical record generally.

Injury & Illness Prevention Program (IIPP) Requirements.

( 1 ) Frequent, regular inspections of each construction site, equipment, and vehicles by supervisors; ( 2 ) immediate action to eliminate hazards; ( 3 ) Supervisors to report violations of Safety Orders & Safe practices to the employer. ( 4 ) Adoption & use of a Code of Safe Practices( an employer should obtain a copy of the Cal/OSHA pamphlet, "Construction Code of Safety Practices, " before preparing his/her own Code); ( 5 ) Monthly or more frequent meetings of all foremen/ women are recommended; and ( 6 ) periodic (at least every 10 days) safety meetings of supervisors with employees.

The wage deduction statement must include.

( 1 ) Gross wages earned; ( 2 ) Total hours worked by each employee whose compensation is based on an hourly wage; ( 3 ) number of piece rate units earned & applicable piece rate if the employee is paid on a piece rate basis; ( 4 ) all deductions; however, deductions made on written orders of the employee may be totaled & shown as one item; ( 5 ) net wages earned(gross wages minus deductions); ( 6 ) inclusive dates of the period for which the employee is paid; ( 7 ) the employee's name & social security number; ( 8 ) The name & address of the legal entity that constitutes the employer ( e.g ., Acme Construction,100 Main St., etc);& ( 9 ) the hourly rate in effect during the pay period & number of hours worked at that rate.

Misdemeanor For an employer

( 1 ) To Collect a Kickback from the wages of an employee. ( 2 ) To require an employee to sign a wage release or waiver unless the wages have actually been paid. ( 3 ) to willfully fail to make any agreed payments to an employee health or welfare fund, pension fund, or vacations plan. If the amount the employer fails to pay exceeds $500 the employer is liable for a fund of up to $1000 &/or imprisonment for up to five years.

Employer may not issue In payments of wages due, or to become due, or as advance on wages to be earned:

( 1 ) any checks, Money order, or draft, unless it is negotiable & payable in cash ( on demand, without discount) at a bank or some other established place of business, & there are sufficient funds for its payment for a minimum of 30 days after issuance; or ( 2 ) any Certificate, coupon, or card that is redeemable in anything other than money ( e.g., merchandise).

Minors under the age of 16 must not work on the following:

( 1 ) in adjusting any belt to any machinery; ( 2 ) in sewing or lacing machine belts in any workshop or factory; ( 3 ) in oiling, wiping, or cleaning machinery ( or assisting someone else); ( 4 ) in operating or assisting in operating circular saws or bandsaws, wood shapers, wood jointers, planers, sandpaper or wood polishing machinery, wood turning or boring machinery; ( 5 ) operating any automobile, motorcar, or truck ; ( 6 ) on scaffolding, in heavy work in the building trades, in any tunnel or excavation, or in or around mines or quarries; or ( 7 ) in any occupation dangerous to the life or limb, or injuries to the health or morals of the minor. Minors enrolled in school-approved work experience or vocational education programs are allowed to work longer hours & during the school day.

Labor Code Section1127

Collective bargaining agreements negotiated by employers and unions often contain a successor clause: That is, anyone who succeeds ( E.G., purchases the business from) the employer is bound by the agreement until it expires. However, Labor Code Section 1127 limits a successor clause for collective bargaining agreements to three years. In other words, after three years the new employer is no longer bound by the collective bargaining agreement, even though the agreement has not expired yet. In other words the new employer sets his wages with his new business after the 3rd year.

Cities & Counties Reporting Requirements

Counties and Cities requiring construction permits must also require that applicants file a certificate of insurance or consent to self-insure, unless the permit is for $100 or less or the applicant signs a certificate stating that he or she will not hire anyone to perform the work.

Fit

Federal Income Tax

FICA

Federal Insurance Contributions Act; tax levied on employers and employees to support Social Security and Medicare( SOCIAL SECURITY)

FED/OSHA

Federal Occupational Safety & Health Administration

FUTA

Federal Unemployment Tax Act

Labor Code Section 2928

If an employee is late for work, the employer may deduct for the lost time. The deduction may not exceed the wages that would have been earned had the employee arrived on time. For example, if an employee who earns $10/ hour is an hour late for work, the employer may deduct no more than $10 from the employee's wages. However, Labor Code Section 2928 allows the employer to deduct a half hour's wage for any time lost during the first 30 minutes of a workday. For example, if the employee mentioned above arrives 10 minutes late for work the next day, the employer may deduct $5(a half- hour's wage).

Failed to provide workers compensation & employee is injured .

If an employer fails to provide workers' compensation, and an employee is injured, the employer must pay the medical & other benefits plus a penalty of 10% & attorneys' fees. The injured employee also had the right to sue the contractor in a civil court. In this type of lawsuit, the employer may not use the defense that the injury was the employee's fault. It will be presumed that the injury resulted from the employer's negligence.

Delinquent 1%/ Penalties 10%/ Tax invasion 50%

If contributions are not paid on time, they are considered delinquent & accumulate interest at the rate of 1% per month. The employer is also liable for a penalty of 10% is assessed if no returns are filed. If an employer attempts to defraud EDD or is guilty of tax evasion, the penalty is increased to 50% of the taxes due.

Cal/OSHA is instructed by Fed/OSHA

It consists of four independent cooperating units:

Professional strikebreaker

It is illegal to hire these type of ppl as replacement for employees involved in a strike or lockout. These type of ppl are person who has replaced striking or locked-out employees of two or more separate employees at least three times In the past five years.. For Example, a carpenter who worked as a strikebreaker once for Ms.Jones and twice for me smith with the past five years is, by definition, a professional strikebreaker. An employer who knowingly hires a professional strikebreaker is subject to a maximum fine of $1,000 &/or a jail sentence of up to 90 days. A professional strikebreaker who offers to replace striking or locked- out employee's is subject to he same penalty

Apprenticeship

Job Training, skill development, educational programs, apprenticeship laws • Division of Apprenticeship Standards • California Apprenticeship Council

Adjudication

Judgement

Mediation & Conciliation

Labor- Management relations, strike mediation, arbitration • State Mediation & Conciliation Service

Aggravated

Made worse or more serious

Medical Benefits

Medical Benefits. An injured worker has the right to receive all reasonable and necessary medical treatment. The Labor Code Section 4600 defines medical treatment as; medical, surgical, chiropractic etc ( p11 chap 3 ) The treatment must be provided by a licensed physician. Under the labor Code, a " Licensed physician" includes medical doctors, chiropractic,dentist etc. The physician does not have to administer all of the medical treatment.

Minors 14 or 15

Minors 14 or 15 years of age may work a maximum of three hours on a school day, & 18 hours in any week while school is in session. When school is not in session ( e.g ., during winter break) minors 15 & under May work a maximum of eight hours in any day and 40 hours in one week.

Minors 16 to 17

Minors 16 to 17 years of age may work a maximum of 48 hours in one week, but a maximum of four hours on a school day and only until 10 p.m on any evening preceding a school day, On a non- school day, minors 16 to 17 years old may work a maximum of 8 hours in one day and until 12:30 a.m on any evening preceding a non-school day.

Employers Look Back Period

Most employers will have to make deposits of FICA & FIT before the Form 941 quarterly return is due. The frequency & amount of the deposits depends on the total FICA & FIT owed during a four quarter lookback period. The lookback period begins July 1 and ends June 30. The deposit must be made monthly if the total taxes during the lookback period were 50,000 or less. If the total taxes during the lookback period were more than 50,000, the taxes must be deposited semiweekly. These taxes must be deposited in a Federal Reserve Bank or Financial institution that is authorized to accept federal tax payments. Once you become an employer,you should consult your book keeper, accountant, or the IRS Employer's Tax Guide ("Circular E") for instructions on deposits.

Inclusive

Not excluding anything

Statistics & Research

Occupational Injury & illness statistics, publications • Division of Labor Statistics & Research

Prevailing wage rates

On public works project, the prime contractor & the sub may not pay less than the specified prevailing wage rates, including over time. These rates are determined by the director of the Department of Industrial Relations. Ordinarily, the public agency lists the prevailing wages rates in its Invitation for bids. By Law, the public agency must post a copy of the rates at the job site, so that workers can compare their wages with the prevailing rates. A contractor or Sub who pays less than the rates posted can be fined &50 per day for each worker paid less than the prevailing wage.

Working Hours

Ordinarily, an employer cannot require an employee to work more than six days in seven. In other words, an employee is entitled to at least one day off each week. However, there are several exceptions. The two most important are: ( 1 ) The employer may require an employee to work seven straight days if this is allowed by the collective bargaining agreement negotiated by the employee's union. ( 2 ) If the nature of the work reasonably requires that the employee work seven or more consecutive days, the employer can require it, as long as the employee receives in each month the # of days off equivalent to one day in seven. For example, a contractor has an agreement with a city agency to do emergency work. On February 1, an earthquake causes damages that must be repaired immediately. The Contractor requires his employees to work from February 1 through February 24. By law, the employees are entitled to take off February 25th through the 28th.

Polygraph Test, Bonds, Photographs, and Physicals

PRIVATE employers may not require a job applicant or an employee to take a polygraph ( lie detector ) test as a condition of employment or continued employment. An employer may require that an employee be bonded. A common example is a fidelity bond that protects the employer from financial losses caused by a dishonest employee (e.g ., a bookkeeper who embezzles money). Some employers require photographs of employees, the employer must pay the cost of any photographs. If an employer requires a medical or physical examination as a condition of employment, it is the responsibility of the employer to pay for it.

Imminent

Ready or about to occur

Occupational Safety & Health

Safety and health standards, consultation, enforcement of laws relating to working conditions at the job site. • Cal/OSHA Program • Division of Occupational Safety & Health • Occupational Safety and Health Standard Board • Occupational Safety & Health Appeals Board • Cal/OSHA Consultation Service

SDI

State Disability Insurance

SUI

State Unemployment Insurance

SIT

State income tax

Payroll records & Most other records, like I-9

State law requires payroll records to be kept for a minimum of three years. Most other records, such as Form I-9, must be kept for the entire time the employee is employed and for at least one year after employment is terminated. In all cases form I-9 must be kept for a minimum of three years , even if the employee quits or is terminated after less than two years.

Carcinogen

Substance known to cause Cancer.

Cal/OSHA Cooperating unit "Occupational Safety & Health Appeals Board"

The Appeals Board reviews disputes dealing with the enforcement of the Cal/OSHA program. Many of these disputes have to do with the citations issued by DOSH. Under Labor Code Section 6600, an employer has 15 working days after receiving a citation to appeal( i.e., file a "Notice of Contest"). The employers appeal will be assigned to an administrative law judge, an attorney employed by the Appeals Board to hear appeals. The employer & DOSH will have opportunity to present testimony & evidence, after such a judge will make a decision. An employer who is dissatisfied with the decision can file a "petition for are reconsideration" with the Appeals Board. If the petition is denied, the employers can file a petition with superior court. This petition, called a "Writ or Mandate," asks the court to determine the lawfulness of the administrative law judge's decision &/or the Appeals Board's refusal to reconsider the decision.

Cal/OSHA Safety Orders

The Cal/OSHA standards are published in Title 8, Chapter 4, "Division of Industrial Safety," of the California Code of Regulations ( formerly entitled California Administrative Code). The standards, which are called "Safety Orders," are organized by subchapter and industry. For example, the standards for the construction industry are listed as: Chapter 4. Division of Industrial Safety Subchapter 4. Construction Safety Orders

Department of Industrial Relations

The California D.I.R is the government agency responsible for administering and enforcing the provision of the Labor Code. The Department consist of many divisions, boards, commission, councils, & services that oversee the following.

Section 6300 of the California Occupational Safety and Health Act of 1973

The California Occupational Safety and Health Act of 1973 is hereby enacted for the purpose of assuring safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, assisting & encouraging employers to maintain safe & healthful working conditions, and by providing for research, information, education training & enforcement in the field of occupational safety & health.

California Unemployment Insurance Code two systems of protection

The California Unemployment Insurance Code provides two systems of protection for employees against wage loss: (1) Unemployment Insurance for those unemployed who are able and available to work; (2) Disability Insurance for those unemployed who are unable to do their regular or customary work because of a non industrial (not job related) disability.

Cal/OSHA "Cooperating unit "Cal/OSHA Consultation Service".

The Consultation Service helps employers & workers solve safety and health problems. Without fear of citation or penalty, private employers & public agencies and their employees can obtain the Consultation Service's free professional assistance in identifying workplace hazards & in developing or improving accident/ illness prevention programs.

Stop order Penalty

The Director of the Department of Industrial Relations May issue a stop order to an employer who is not insured for workers' compensation. The order prohibits the employer from hiring or continuing to employ workers. Failure of the employer to comply with the stop order is a misdemeanor punishable by a maximum jail sentence of 60 days and a fine of up to $1,000. The court may also order the employer to stop doing business until he or she obtain workers' compensation insurance.

Employee's w-4 form must be recorded.

The employee's signed W-4 should be kept with the rest of the payroll records for a minimum of four years. An employer is not usually required to submit the Form W-4 to the IRS. The IRS only requires employers to submit a copy of an employee's W-4 if the employee claims more than 10 with holdings allowances or claims exemption from withholding and the employee's wages would normally be more than $200 per week.

California Unemployment Insurance Code & State Income Tax( EDD)

The employer is totally responsible for paying unemployment insurance taxes. This includes the Employment Training Tax (ETT) that finances EDD's job training program. On the other hand, the employee alone is responsible for disability insurance taxes ( SDI ) & state income taxes (SIT), although the employer deducted the employee' SDI & SIT from his or her wages & pays the amount deducted to EDD.

Labor Code Section 5001

The employer, worker, or insurance company may negotiate their own settlement. However, any settlement must be approved by the WCAB. Labor Code Section 5001 states: " No release of liability or compromise agreement is valid unless it is approved by the appeals board or referee."

Violations

The penalties for violations of health and safety laws can be civil or criminal. The maximum civil penalty for each minor, non serious violation is $7,000. The maximum civil penalty for a serious violation is $25,000 and serious violations will always be assessed a penalty, while minor ones MAY be assessed a penalty. Repeated violations ( minor or serious ) can result in civil penalties of not less than $5,000 and up to $70,000 each. A serious violation that causes death or prolonged impairment to the body of a worker carries a maximum criminal penalty of $100,000 to $250,000, depending on the circumstances of the violation, and/or imprisonment for up to 3 years. If the serious violation is repeated, the maximum criminal penalty is $250,000 and/ or up to four years imprisonment.

Job Related Injury

The term " Job related injury"( or "industrial injury") means any injury, illness, disease, or medical condition that is aggravated by the employment. The term also includes damages to eyeglasses, dentures, braces, & hearing aids.

Filing Exemptions For Self Employed Contractors

There are two exceptions to the filing requirements for self-employed contractors who do not have any employees: (a) a self employed contractor does not have to obtain an employer's identification # just a social security #; and (b) a self-employed Contractor Pays FICA annually, not quarterly.

The National Labor Relation Act of 1935

This Act of 1935 established the rights of workers to organize into unions & negotiate contracts. An employer may not interfere with an employee's right to join a labor union. It is a misdemeanor for an employer to coerce or force any person to agree, orally or in writing,not to join or become a member of a labor organization as a condition of hiring.

Workers' Compensation

This Law, which is contained in Section 3200 through 6200 of the Labor Code, establishes a NO-Fault insurance plan paid for by employers & supervised by the Division of Industrial Accidents. The purpose of the plan are to limit employers' liability, avoid costly lawsuits, & to guarantee that workers receive prompt & complete medical treatment & other benefits (e.g., Compensation for lost wages) for job-related injuries. If a job-related injury causes death, the deceased worker's dependents are eligible for death & burial benefits. Under this law, an employer who is insured for workers' compensation cannot, with certain exceptions, be sued for job-related injuries. One exception is if the employer physically assaults a worker. On the other hand, an injured worker can receive immediate medical treatment & other benefits after notifying the employer of an injury.

Reporting Requirements Labor Code Section 5400

This code requires that an injured workers must give the employer written notice of the injury within 30 days of its Occurrence. However, there are several exceptions to this requirements. For example, the notice is not required if the employer or a person in authority (e.g., superintendent or foreman) witnessed the injury. The employer has one working day after learning of the injury to send the injured worker( or the dependents if the worker died) a written notice of the worker's rights to compensation benefits. The notice must be in nontechnical language & mention the benefits (e.g., medical, temporary & permanent disability, death, & vocational rehabilitation) to which the worker may be entitled.

The California Labor Code

This is a collection of laws dealing with matters such as job applications, hiring and firing employees, discrimination, wages, benefits, working hours, strikes, workers' compensation insurance, & healthy and safe working conditions.

Lockout

This is the refusal by an employer to permit any group of five or more employees to work because of a dispute over wages, Working hours, or other conditions of employment..

Jurisdictional strike

This occurs when two or more labor organizations each claim exclusive rights to enter into a collective bargaining agreement with, or have their members work for, an employer, the results of which is a concerted refusal to work for the employer or otherwise interfere with his/her business. Jurisdiction strikes are unlawful, and an employer is entitled to injunctive relief(a court order ending the strike & damages ( payment for any losses caused by the strike)

Aggregate/Aggregated

Total, Total

Exemptions of Unemployment benefits

Unemployment benefits are not charged to the employer's account if EDD finds, based on information provided by the employer, that the claimant had either voluntarily quit or had been fired by the employer for misconduct connected with the employment.

Form DE 6

Unemployment insurance (SUI), employment training tax(ETT), Disability (SDI), & any state income taxes (SIT) withheld from employee's wages are reported quarterly to EDD with the Quarterly Wage Withholding Report, Form DE 6. The filing deadline is the last day of the month following the close of the calendar quarter: EDD Form DE 6 Deadline 1st quarter: January-February-March April 30 2nd quarter: April-May-June. July 31 3rd quarter: July-August-September October 31 4th quarter: October-November-December January 31 As if the case with FICA & FIT, most employers are required to make deposits of state payroll taxes before the Form DE 6 quarterly return is due. Please consult your bookkeeper, accountant, or EDD's Employer's Guide or California Personal Income Tax Withholding Guide.

Permanent Disability

Unfortunately, some injuries result in permanent total disabilities. Examples are injuries that cause total paralysis or blindness in both eyes. These types of injuries qualify a worker for lifetime disability payments. Permanent partial disabilities (e.g., paralysis of the legs only or the loss of sight in one eye) qualify a worker for benefits based on factors such as the type of disability and the worker's age, earning capacity, & occupation.

FIT FICA Wage Base Limit

Unlike FIT, FICA tax has a wage base limit. The wage base limit is the maximum wage that is subject to the tax for the year. Once an employee's wages exceeds the wage base limit the wages are no longer subject to FICA tax. The wage base limit is subject to change; consult the IRS for the current limit.

Gross wages

Wages before deducting employment taxes.

Labor Laws

Wages, Working hours, employment practices, dispute resolutions. • Division of Labor Standards Enforcement (headed by the State Labor Commissioner) • Industrial Welfare Commission

The employer must pay the minimum he/she agrees is owed.

When the employer and employee disagree about the amount of wages earned, the employer must pay the minimum amount he or she agrees is owed.For example, let's say an employer fires an employee on Monday & Presents a check for $500. The employee believes that the wages should be $600. The employer must pay the $500 on Monday because that is the amount the employer agrees is owed. The employee may deposit the check and then file a. Complaint with the labor Commissioner for a $100.

Application of the Workers Compensation

With a few exceptions, the Workers' Compensation Law applies to All employees, including full and part time employees. A working partner who received wages & a share of the partnership's profit is entitled to workers comp benefits, as are employed relatives(e.g., the employer's son or daughter). ( But. Some carriers will not extend workers' comp coverage to partners any more: Check with your agent to be sure.)

Hiring & Firing

With certain exceptions, an employer may not fire or refuse to hire a person because of age, national origin, nationality, ancestry, race, sex, sexual orientation, marital status,religion, or disability. The exceptions include:

If the Employer is charged with "serious & willful misconduct" he must pay 50% of Workers Compensation or the penalty is exempt.

1) Penalty assessed because of the employer's "serious & willful misconduct.". For example, a painting contractor is prohibited by Cal/OSHA from using unsafe scaffolding. Nevertheless, the contractor tells a new employee, who is unaware of the safety hazard, to use the scaffolding for an exterior painting job on a five story building. The scaffolding collapse, and the employee is killed. The contractor is guilty of serious & willful misconduct & must pay a penalty equal to 50% of the amount the deceased employees dependents receive for workers compensation. The contractor must also reimburse the dependents for up to 250$ in cost (e.g., attorney fees). 2) Penalty assessed for an injury to an illegally employed person under 16 years of age. The penalty is 50% of the amount the employee receives in workers' compensation benefits. However, the employer would not have to pay a penalty in a case where a 15 year old showed the employer a drivers license or birth certificate that indicated the employee was 16. This applies even when the driver's license or birth certificate were falsely obtained by the employee.

Exemptions benefits of workers compensation

1) The injury is caused by the intoxication of the employee. 2) The injury is intentionally self inflicted. 3) The employer commits suicide 4) The Injury is caused by a fight in which the employee was the "initial physical aggressor"(e.g the employee punches someone without sufficient provocation 5) At the time of the injury the employee was not performing work related to, or even incidental to, employment, otherwise acting in the course of employment. For Example, an Employee decides to spend a holiday renailing loose shingles on the roof of his house. If te employee were injured (e.g., by failing off the roof), the employee would not be eligible for workers' compensation benefits.

Unemployment Insurance Tax after three years

A new contractor (as an employer) pays a basic unemployment insurance tax of 3.4%. After three years the contractor can be rated & pays an unemployment insurance tax rate that ranges from 0. 1 to 5.4 %. The contractor's rate depends on the level of money in the unemployment insurance fund & the amount of claims charged against the contractors account. Also, each employer must pay a separate "balancing account" tax that Finances: (a) Benefits not charged to any particular employer's account, (b) charges to employer's account with insufficient funds. (C) & certain other expenses.

Self Employed Contractor Tax Responsibility's

A self-employed Contractor is responsible for paying both the employer and the employee portion of FICA. The IRS sets the rate for self employed individuals, and it is generally twice the amount of the employee's rate because it reflects the contribution of both the employer and employee. Payroll taxes should not be confused with a contractor's personal income tax. A contractor is still responsible for filling a personal income tax returns with the IRS & the California Franchise Tax Board every April 15.

Temporary Disability

A worker is entitled to weekly temporary total disability payments while recovering from an injury. The weekly payments begin within 14 days of the disability. A disabled employee who is able to return to work part-time is entitled to temporary partial disability payments that help offset the difference between the part-time wages and the full-time wages earned by the employee before the injury.

Naturalization

Act of making a foreign- boy person a citizen

Workers Compensation Cost Based On # Of Claims

Although an employer who has purchased a workers' compensation insurance policy is not personally responsible for payment of benefits, the employer may dispute an employee's compensation claim. One major reason is that the employer's insurance costs are based partly on the number of claims. In other words, an employer with a history of many worker injuries & benefits claims will pay higher insurance premiums than will an employer whose record shows few claims.

Applicant's right to a copy

An applicant or employee who has signed a job application, employment contract, or any other employment-related form is entitled, upon request, to a copy of the signed form(s).

Personnel Files

An employee has the right to review his or her own personnel file & any records that the employer keeps regarding the employee's performance or any grievance concerning the employee. It is the employer's responsibility to make the records available to the employee at reasonable times, but the employer does not have to make the records available during working hours. An employee is not entitled to see the entire file. Some records that the employer can restrict access to include: 1. Records relating to the investigation of a possible criminal offense ; 2. Letters of reference; & 3. Ratings, reports, or records that were: •obtained prior to the employee's employment • prepared by identifiable examination committee members •obtained in connection with a promotional examination

Complaint & Inspections

An employee or employee representative who believes that the workplace or work practices are unsafe or unhealthy has the right to file a complaint with DOSH. DOSH must investigate a complaint charging a serious violation within three working days after the complaint is submitted. A complaint of a non serious violation must be investigated no later than 14 calendar days after it has been received by DOSH. The name of the person filing a complaint is kept confidential, unless that person request otherwise. In any case, a worker may not be discharge, punished, or discriminated against by the employer for filling a complaint with DOSH or for refusing to work in an unhealthy area or with unsafe equipment. A worker who is discriminated against is entitled to rehiring, reinstatement, & reimbursement for lost wages or work benefits.

Types of Coverage

An employer can provide workers' Compensation insurance for employees in one of two ways: 1. By purchasing a standard approved workers' compensation insurance policy from an insurance company or from the state Compensation Insurance Fund. 2. By obtaining a permit from the Director of the Department of Industrial Relations to become a self insurer. To obtain a permit, an employer must meet strict financial requirements & post a bond of at least $220,000. Most employers find it more cost- effective to buy a worker's compensation insurance policy.

Labor Code Section 1294

An employer is not obligated to employ an applicant who is underage. In many cases, it would be illegal to hire a minor. For example, Labor Code Section 1294 prohibits persons under 16 years of age from working on scaffolding. An employer who knowingly hires anyone under 16 to work on scaffolding is guilty of a misdemeanor.

The 1986 Immigration Reform & Control Act

An employer may fire employees who cannot or will not provide documentation of their legal right to work in the United States. The 1986 Immigration Reform & Control Act requires each newly hired worker to submit documentation to the employer of employment eligibility (e.g., U.S. passport or Certificate of Naturalization). In addition, the worker & the employer must complete INS Form I-9, " Employment Eligibility Verification" Within 3 business days of the date hired.

Refusing to hire because of medical Condition

An employer may refuse to hire applicants whose medical condition or disability will prevent them from performing the major functions of the job or from performing the job in a way that will not endanger the health and safety of the applicants or other workers. For example, a contractor specializing in high- rise structural still erection would not be obligated to hire a steelworker who suffers from a disease that causes frequent fainting spells or convulsions.

DOSH Warrant

An employer may refuse to permit a DOSH inspector to enter the workplace unless the inspector presents an inspection warrant, in which case the employer must allow the inspection.

Employment Taxes

An employer must comply with both federal and state employment tax laws. Federal tax laws are administered by the Internal Revenue Service (IRS). The Employment Development Department ( EDD) enforces provisions of California's Unemployment Insurance Code as well as certain sections of the Revenue and Tax Code relating to collection of state unemployment insurance tax paid by employers, as well as disability insurance and personal income tax withheld from employees' wages by their employers. EDD processes monthly and quarterly returns and routes the appropriate information to the California Franchise Tax Board for processing of the annual combined federal/state wage and tax statements ("W-2"). It is the employer's responsibility to furnish each employee with a completed Form W-2 by January 31 & to keep a copy on file with the payroll tax records. The IRS requires that all tax records must be kept for a minimum of four years.

Notice specifying regular paydays & time & place of payment.

An employer must post a notice specifying the regular paydays & the time & place of payment at the workplace, or at a location where the Notice can be seen as employees come or go to work, or at the nearest office where paychecks are issued.

Wage Deduction Statement

An employer must provide an employee with a wage deduction statement each time wages are paid. The statement may be a detachable part of the paycheck or a separate itemized form.

Death or Serious injury reporting Requirements

An employer must report a work-related death immediately by telephone or telegraph to the nearest office of the Division of Occupational Safety & Health (DOSH). A serious injury, serious illness, or blasting accident must be reported within 24 hours of the event. An injury or illness is serious if it requires hospitalization for more than 24 hours; also included are the loss of a body part or serious permanent disfigurement (e.g., a large-scale burn).

Penalties

An employer who does not self-insure or purchase a workers' compensation insurance policy is guilty of a misdemeanor punishable by a minimum fine of $ 10,000 & or 1 year in jail. The Registrar of Contractors May suspend or revoke the license of a contractor for failure to self-insure or to purchase a workers' compensation insurance policy. An employer who willfully violates an occupational safety or health standard & causes the death of, or prolonged injury to, an employee is liable for a maximum fine of $100,000 to $250,000 depending upon the circumstances, &/or up tho three years in prison. A second conviction shall result in a maximum fine of $ 250,000 &/ or imprisonment for up to 4 years.

Before Workers' Compensation Law

Before this law was passed an injured worker usually had to sue an employer to recover medical expenses and lost wages. This type of lawsuit was expensive & often lasted for months or years. In some cases, the court would award the worker a substantial amount of money. In others, the employer would win the lawsuit, & the worker would receive nothing.

Cal/OSHA

California Occupational Safety & Health Administración

Workers' Compensation

Claims settlement, benefits and rehabilitation for job related injuries & illnesses • Division of Industrial Accidents • Workers' Compensation Appeals Board • Self-Insurance Plans • State Compensation Insurance Fund

Contractor- Employer Obligations

A contractor's obligations are spelled out in both the Labor Code & the Construction Safety Orders. ( 1 ) maintain a place of employment that is safe & healthful for workers; (2) know and comply with safety & health standards; (3) provide an effective injury & illness prevention program (IIPP) that includes training of workers on the hazards and safe work practices on their specific work assignments. (4)Post the Cal/OSHA Notice "Safety and Health protection on the job, " which informs employees of their Cal/OSHA protection & obligations; (5)Register with DOSH if your business involves the use of asbestos or other carcinogens(cancer causing substances); (6) Post any citation for safety & health violations near the place of violation for at least three days or until the violation is corrected. (7) allow: an employee representative to accompany the DOSH inspector on worksite inspections; allow employees to observe monitoring or measuring of exposure to hazards(e.g., asbestos); allow employees to have access to their medical records and of records of employee exposure to potentially toxic materials or harmful physical agents. (8) obtain a DOSH permit for: Construction of trenches or excavations 5ft or deeper that workers must enter; Construction or demolition of any building, structure, scaffolding, or false work more than three stories (36 ft) high; Construction elevators; all large and some small air tanks.

Form DE 11011

A former employee makes a claim against an employer's Unemployment insurance account by completing Form DE 11011 & faxing or mailing it to EDD, contacting EDD by telephone, or by applying online. EDD will then send Form DE 1101C, Notice of New Claim Filed to the employer. If the employer disputes the claim, the employer must complete & return this form to EDD within 10 days of its mailing.

Federal Insurance Contribution Act (FICA) & Federal Income Tax(FIT)

An employer who has one or more employees, whether temporary, part time or full time, must obtain an employer's identification number from the IRS. Each employer must withhold federal income taxes (FIT) from the wages of all employees not claiming exemptions. FIT is withheld from all wages, tips, & other compensation (such as bonuses) earned by the employee. Only the employee pays fit. The employer must also withhold the FICA (Social Security) Tax from the wages of any employee. This FICA Tax is paid by both the employer and the employee to the IRS. In other words, the employer must contribute to the IRS the same amount withheld from the employee's wages. An employee must provide the employer with his or her social security # & a signed Form W-4 Employee's withholding Allowance Certificate when starting work. The employer should copy the employee's social security number directly from the social security card rather than accept a memorized number. If an employee does not have a social security #, the employee must apply for one with the Social Security Administration. If an employee does not turn in a signed W-4, the employer should withhold income tax as if the employee is single with no withholding allowances. An employee will be required to complete a new W-4 after a change in marital status or if the employee has a change in the number of withholding Allowances.

Job Ads, Application, & Interviews.

An employer's job advertisement must be accurate. It is illegal for an employer to misrepresent the type of work, the length of time the job will last, or the wages & benefits offered. The ad must mention any labor disturbance in progress, such as a strike or lockout, as well as the name of the employer.

Independent Contractor vs Employee

As a general rule, a worker is an independent contractor if an employer has the right to control or direct only the result of the work and not the means and methods of accomplishing the results. If an employer has the right to control what will be done and how it will be done, the worker is an employee. Other standards that are used to determine whether a worker is an independent contractor or an employee include: • the extent to which a worker makes his or her services available to the general public. Independent contractor are generally free to seek out business opportunities; • how the worker is paid. Independent contractors are frequently paid for a result while employees are guaranteed a regular wage for a set period of time. • the extent to which the worker can realize a profit or loss. Independent contractors can make a profit or loss; • written contracts describing the relationship;& • whether the worker receives benefits such as vacation or sick pay, or insurance through the company. Any worker who is hired as an independent contractor rather than an employee must be furnished with form 1099-Misc by January 31 if they were paid more than $600 over the course of the year. Payroll taxes are not required to be withheld from independent contractors.

Reporting Requirements

As mentioned in chapter 1,a licensed contractor who purchases a workers' compensation policy must report the insurance company's name & address to the Registrar of Contractors within 90 days after the policy is issued. The contractor must also send the insurance company a copy of the report. A self-insured employer must file form 5020, or its equivalent, with the Division of Labor Statistics & Research (DSLR) Within five days of learning of the injury or that requires medical treatment beyond first aid. An employer who has purchased a workers' compensation insurance policy should file Form 5020 with the insurance company within five days of learning of the injury. The insurer will open a claim file before sending the form to DSLR. A physician who treats an injured worker must file DLSR Form 5021, " Doctor's First Report of Occupational Injury or Illness," with the employer's workers' compensation insurer.

Injunctive relief

Assistance or benefit in the form of an injunction that is sought out

DOSH Inspector

DOSH May send an inspector to a workplace to investigate possible health and safety violations. By law, advance notice of a DOSH inspection may not be given to the employer, except by special permission from the Chief of DOSH or an authorized representative. Unauthorized advance notice is a misdemeanor, punishable by a fine of not more than $1,000 and/ or six months imprisonment.

DOSH

Division of Occupational Safety & Health

Overtime

Eight hours of labor is one day's work. Unless an alternative workweek schedule is adopted allowing employees to work longer hours, any work beyond eight hours in one workday or 40 hours in one work week is considered overtime and is paid at the rate of 1-1/2 times the regular rate of pay. Any work beyond 12 hours in one workday is paid at twice the regular rate of pay. In addition, if an employee works all seven days of the workweek, the first eight hours of the seventh day is paid at a rate of 1-1/2 time the regular rate of pay and work beyond eight hours on the seventh day is paid at twice the regular rate.

Employment taxes & Insurance: who pays what?

Employer pays- Federal Unemployment Insurance (FUTA); Report: Yearly (if FUTA over 500, deposit quarterly. Pay to:IRS State Unemployment Insurance ( SUI ) Report quarterly, Pay to : EDD Employment Training Tax (ETT) Report : Quarterly Pay too EDD Worker's Compensation Insurance I Report: Varies by carrier Pay too: Agent of Carrier BOTH PAY - Social security Tax (FICA) Report- Quarterly Pay to : IRS Employee pays Social Disability Insurance (SDI) Report ,quarterly Pay too , EDD FEDERAL & State Income Tax(FIT& SIT) Report: Quarterly Pay to : Federal-IRS State —EDD

Notice to Employees

Employers must post conspicuously — in a location frequented by employees —a notice stating the name of the employers workers compensation insurance company or, if such is the case, that the employer is self-insured. If the employer has purchased workers compensation insurance, the notice must include the expiration date of the policy. Failure to keep this notice posted is a misdemeanor. The employer must give new employees, either at the time the employees are hired or by the end of their fist pay period, written notice that they have the right to receive workers' compensation benefits if injured at the time while working for the employer.

Record keeping

Employers who have 11 or more employees must record each employee injury or illness on CAL/OSHA Form 300, " Log and Summary of Occupational Injuries & Illnesses." At the end of the calendar year you must review Form 300 and transfer the results to Form 300A must be posted at the workplace during February of each year with the total number of injuries & illnesses. All written health & safety records must be kept for at least five years. The injuries & illnesses that MUST be recorded are: ( 1 ) Occupational deaths; ( 2 ) Lost workday cases; ( 3 ) Occupational injuries that involve loss of consciousness, restricted work activity, transfer to another job, or medical attention; ( 4 ) Occupational illnesses caused by pesticide exposure, or exposure to environmental factors associated with employment, including acute or chronic illness or diseases; ( 5 ) Significant Injury or illness diagnosed by a physician or other licensed health care professional; ( 6 ) needle sticks & cuts from sharp objects contaminated with another person's blood; (7) Occupational hearing loss; (8) Tuberculosis, if the employee contracts the disease at work. An employer does not have to record first aid(I.e., one-time treatment), even if administered by a doctor, or subsequent observation for injuries such as minor scratches, cuts, burns, & splinters.

EDD

Employment Development Department

Unemployment Insurance Code & Register(EDD)

Every contractor who employs one or more persons and pays wages of more than $100 during any Calendar quarter becomes an employer as defined by the California Unemployment Insurance Code & is required to register with the Employment Development Department (EDD) Within 15 days after the first quarter in which wages are greater than $100.

Federal Unemployment Tax Act (FUTA)

Every employer is required to pay federal un employment tax if, during the. Current or previous calendar year, he or she either : (a) paid wages of 1,500 or more in any calendar quarter, or (b) at any time had ONE or more employees in any 20 calendar weeks. This tax must be paid by the employer and may not be deducted from the wages of employees. FUTA taxes are paid for the first 7,000. Of employee's wages earned in a calendar year and are reported annually to the IRS on Form 940 or from 940-EZ. The deadline for filling is January31 of the Following year. Quarterly FUTA tax deposits are required of most employees. The federal unemployment Tax Act lists both civil and criminal penalties for failure to file returns, pay taxes, keep records, etc. For example, filing a false unemployment tax return is a felony. A less serious offense may be prosecuted as a misdemeanor, or a civil penalty might be imposed.

FIT & FICA Quarter Reports IRS Form 941

FICA taxes & any FIT withheld from employees' wages are reported & paid to the IRS on the basis of a calendar quarter. IRS Form 941 (FICA & FIT tax return) must be filed during the month immediately following the end of a calendar quarter. 1st Quarter, January February March, Deadline April 30 2nd Quarter, April May June, Deadline July 31 3rd Quarter, July August September, Deadline October 31 4th Quarter, October November December, Deadline January 31

Wages

Generally, wages must be paid twice a month on days designated in advance by the employer as the regular pay days. Work performed between the 1st & 15th days of the month must be paid for between the 16th & the 26th day. Wages for work performed between the 16th & the last day of the month are due between the 1st and the 10th of the following month. An employer may pay employees weekly if the wages are paid no later than seven days following the close of the pay period. The salaries of executive, administrative, & professional employees may be paid once each month on or before the 26th day of the month if the entire month's wage, including the unearned portion between the date of payment & the last day of the month, are paid at the same time. Employees who are terminated must be paid immediately. If an employee quits without notice, wages must be paid within 72 hours. For example, an employee who quits on Monday must be paid no later than Thursday. However, if the employee give at least 72 hour notice, wages are due at the time of quitting. Employees who tell their employer on Monday that their last day is Thursday must be paid by Thursday. In the event of a strike, the wages earned by striking employees are due on the next regular payday.

Labor Commissioner

Head of Division of Labor Standard Enforcement.

Workers' Compensation Appeals Board

If the employer or insurance company does dispute a claim and refuses to pay the benefits requested, the worker or his/her attorney can file an " Application for Adjudication of Claim" with the Workers' Compensation Appeals Board (WCAB). This is the equivalent of filing a lawsuit in a civil court. The WCAB consist of commissioners and referees( also called "Workers' compensation judges"). A referee conducts the initial hearing, which is much like a trial in civil court. People testify, evidence is submitted, & so on. If the worker or employer are dissatisfied with a referee's decision, they can file a "Petition for Reconsideration" with the WCAB. This petition is first reviewed by the referee who made the decision. The petition & any comments or recommendations by the referee are then referred to the commissioners. The commissioners may grant the petition & issue a new decision without an additional hearing. On the other hand, they may request further medical information, testimony, or other evidence before upholding the original decision or issuing a new decision. If the commissioners deny the petition, they must state the reason for their denial. WCAB decisions can be appealed to the California Court of Appeal.

Death & Burial Benefits

If the injury causes death, a death benefit is paid to those dependent on the deceased worker for support at the time the injury occurred. The maximum death benefit is set by the state and varies according to the number of dependents. Dependents are also allowed up to $5,000 in burial expenses.

Vocational Rehabilitation

If the injury prevents a worker from returning to his/her usual occupation, the worker may be entitled to services such as job counseling, job modification, retraining, or placement assistance.

DOSH "Order Prohibiting Use"

If, during an inspection or investigation, DOSH concludes that a condition or practice poses an imminent hazard to the safety and health of workers, an "Order Prohibiting Use" is issued to the employer. The order prohibits use by workers of an area, machine, or equipment that presents the hazard. The order is usually in effect for 24 hours but can be extended to 96 hours or longer by DOSH. A "yellow tag" is placed conspicuously in the area where the imminent hazard exits. Only an authorized DOSH representative may remove the tag.

INS

Immigration & Naturalization Service

Safety in Employment

In 1970, Congress passed the Federal Occupational Safety & Health Act & created Fed/OSHA, a program aimed at developing and enforcing health and safety regulations for various U.S. industries, including the construction industry. Although many in California welcomed the Fed/OSHA program, the consensus among industry and political leaders was that the new federal health and safety regulations were not, among other things, strict enough. So in 1973, the California Legislature passed the California Occupational Safety & Health Act.

Hazardous Substances

The Director of the Department of Industrial Relations publishes a list of hazardous substances. If a material(e.g., asbestos) is included in The Director's List of Hazardous Substances, the manufacturer or seller of the material must distribute a Material Safety Data Sheet (MSDS) To anyone who purchases the material. An MSDS for a particular materials provides information on fire or explosion potential, possible health effects, symptoms of over exposure, proper precautions and handling practices, necessary protective equipment, first aid procedures, etc. An employer must provide employees with information on the contents of the MSDS either in written form or through employee training program if the employees might come into contact with a hazardous substance. In addition, the MSDS for substances at the workplace must be made available to an employee, or the employee's physician, on a reasonable and timely basis if requested. Employers must adopt a Code of Safe Practices that will provide workers with information and training about hazardous substances(I.e., how to handle these substances safely under normal and emergency conditions). If an employee is exposed to a potentially toxic material, the employer must inform him or her & also keep the employee informed regarding the corrective action being taken.

Employers are penalized for not paying on time.

The Labor Code imposes a penalty for not paying wages on time. If an employer refuses to pay an employee immediately on termination ( or within 72 hours of quitting), the employee's wages may continue for up to 30 days. For example, let's say an employee is fired on June 15 but is not paid wages until July 1. The employee may file a complaint with the Labor Commissioner to obtain an order requiring the employer to pay 15 days additional wages as "waiting time". This same rule applies to bad checks. An employer who issues a paycheck knowing that there are insufficient funds in the Acount is liable for up to 30 days' extra wages.

Cal/OSHA Cooperating unit "Occupational Safety & Health Standards Board".

The Standard Board is the only agency in the state that is authorized to adopt health & safety standards. Employers & workers play an important role in the development of these standards through participation at the Board's public hearing and as members of advisory committees.

Asbestos

The most common carcinogen in construction or demolition work is asbestos. Persons who do insulation, plasterboard, roofing, siding, & plaster ceiling work have the highest exposure risk. Lung cancer is five times more common in people who have been exposed to asbestos. Asbestos-related disease may not show up for 15 to 40 years. Consequently, workers exposed today may not develop symptoms for years. For this reason, records relating to asbestos must be kept for at least 30 years. Contractors must register with DOSH if they are working with asbestos-containing materials with 100 sq ft or more surface area. They must also register with DOSH before applying for the Asbestos Abatement Certificate issued by the CSLB. An exception is allowed for contractors who state in writing that their certificate is required only for the purposes of bidding on a project involving asbestos-related work. In such cases, those contractors are required to subcontract the asbestos work to one or more properly registered & certified asbestos contractors. The unlawful removal of asbestos is punishable by a minimum fine of $1,000 & the possible suspension or revocation of the contractor's license. An owner, employer, or contractor must determine whether asbestos is present before work begins on a project. The employer or contractor must always inquire whether asbestos is present in any building constructed prior to 1978.