GSBE Business and Employment Update 08/12/17
Public Works Contractor Updates
- Public Contractor Registration fee increased to $400 a year.
- Starting in 2019, contractors can renew for up to three years at a time.
- Failure to renew registration, based on good faith mistake, allows for a penalty of $400, plus $400 registration fee if done within 90 days (by September 28)
- Public Contractor Registration NOT required when the prime contract with the Agency does not exceed $25,000 for construction, alteration, demolition, installation or repair, or $15,000 for maintenance work. This applies to the prime contract amount between the contractor and the Agency and not a subcontract amount.
- Contractors who do not have to be registered because of $25,000/$15,000 exemption above do NOT have to submit certified payroll through the DIR’s eCPR system.
- Contractors not registered cannot work on a public works projects over the $25,000/$15,000 exemption.
- Penalty for registering after bidding on a public works contract and/or working on a public works project (without being registered) is the $400 registration fee, plus $2,000 registration penalty, plus $100 a day for each day worked on a public works project without being registered up to a maximum of $8,000.
- Prime contractors who have a subcontractor which is required to be registered and is not registered are also subject to a separate fine of $100 a day for each day worked by that unregistered subcontractor up to a maximum of $10,000.
- Prevailing wages still apply to all public works (including maintenance) over $1,000. Apprenticeship regulations still apply to all public works projects over $30,000.
SB 306 – Passed Assembly!
SB 306 allows the Labor Commissioner to seek injunctive relief before completing an investigation and determining retaliation has occurred passed the Assembly Labor and Employment Committee yesterday.
SB 306 (Hertzberg; D-Van Nuys) also requires an employer to pay the costs and fees of the Labor Commissioner to pursue a civil action for retaliation, even if the claim lacks merit.
It provides the Labor Commissioner’s office and an individual employee with authority that will:
- expose employers to increased legal costs;
- potentially require an employer to continue to employ an individual who has committed harassment, assaults, dangerous threats, or other egregious conduct;
- place employees who allege retaliation in a better position than victims of stalking or harassment; and
- expose employers to constant threats of civil proceedings and costs, as well as excessive penalties for simple posting violations.
Prohibits an Employer from Terminating an Employee Who Has Engaged in Egregious Conduct
SB 306 proposes to allow an employee or the Labor Commissioner to obtain a temporary restraining order that will prohibit the employer from terminating an employee based upon an allegation of retaliation. Currently, the Labor Commissioner has the authority to seek any appropriate relief, including injunctive relief, after it has investigated a claim of retaliation and made a determination that a violation exists. SB 306 proposes to allow the Labor Commissioner the authority to petition the court for temporary or permanent injunctive relief before it has completed an investigation and made a determination. The injunction would remain in effect until the Labor Commissioner issues a citation or determination as to whether a violation actually occurred.
Once an order from a court is obtained prohibiting an employer from terminating an employee, the employer is precluded from taking any action. What happens if, after this order is obtained, the employee violates employer policies? What happens if, after this order is obtained, the employee commits multiple acts of sexual harassment? What happens if, after this order is obtained, the employee makes threats of violence in the workplace? What happens if, after this order is obtained, the employee commits even more severe acts or conduct? Under SB 306, the employer would be prohibited from terminating the employee that engages in egregious conduct based on the temporary restraining order obtained by the Labor Commissioner’s office. Nothing in the language allows the employer to terminate an employee for good cause after the order is obtained.
Places the Labor Commissioner in a Better Position to Obtain a Temporary Restraining Order than Victims of Harassment or Stalking
Notably, this proposal also places the Labor Commissioner and an individual alleging retaliation in a better position to obtain a temporary restraining order than victims of stalking or harassment, recipients of public benefits, or individuals seeking to engage in protests. Under a section of the California Civil Code, an individual who seeks a temporary restraining order must establish:
- irreparable harm if the restraining order is not granted;
- likelihood of success on the merits of the claim; and
- that these interests outweigh the harm that the defendant will suffer from the order.
Under SB 306, the Labor Commissioner or individual employee does not have to establish “irreparable harm” or that the Labor Commissioner or individual is likely to prevail on the merits of the claim for retaliation, as individuals subject to harassment, stalking, or denial of significant benefits must prove.
Rather, the Labor Commissioner must simply show “reasonable cause” to obtain a temporary restraining order that will prohibit an employer from taking action against an employee who engages in egregious conduct. This is a significant expansion of authority and will preclude an employer from maintaining a safe work environment for all employees.
Moreover, despite the requirement in the state Labor Code that the Labor Commissioner must make a determination within 60 days after a complaint has been filed for retaliation, these investigations can take as long as three years.
Under SB 306, during this three-year period, or even longer, an employer could be prevented from terminating an employee engaging in egregious conduct. Additionally, for three years or longer, SB 306 would give an employee and the Labor Commissioner authority to legally challenge every action or omission of an employer before a violation is proven. This would significantly interfere with an employer’s ability to manage its workforce as well as create a constant threat of civil proceedings and cost.
SB 306 also completely alters the procedure under which a retaliation determination is processed. Currently, the burden is on the Labor Commissioner to enforce the determination through a civil action. SB 306 provides the option for the Labor Commissioner to simply cite the employer for an alleged violation and places the burden on the employer to challenge the citation through an administrative hearing and writ of mandate. Furthermore, SB 306 exposes employers to significant penalties of $100 per day up to a maximum of $20,000 for a posting violation, which is overly punitive.
SB 306 passed the Assembly Labor and Employment Committee 5-2 on July 5.
Ayes: Gonzalez Fletcher (D-San Diego), Jones-Sawyer (D-South Los Angeles), Kalra (D-San Jose), McCarty (D-Sacramento), Thurmond (D-Richmond)
Noes: Flora (R-Ripon), Harper (R-Huntington Beach)
Don’t Forget About New Domestic Violence Notice
If you have 25 or more employees, you now must provide new employees with a written notice about the rights of victims of domestic violence, sexual assault and stalking to take protected time off for medical treatment or legal proceedings. The notice also contains information on victims’ rights to accommodation and protections against discrimination.
This new notice requirement went into effect July 1 as a result of legislation passed last year (AB 2337). The Labor Commissioner developed this notice/form, which is available in both English and Spanish.
Employers must provide this information to:
- New workers when hired; and
- Current workers upon request.
Under California law, all employers must provide victims of domestic violence, sexual assault and stalking with the right to take time off from work to appear in legal proceedings, such as obtaining a restraining order or other court order.
All employers must provide reasonable accommodations for victims of domestic violence, sexual assault or stalking who request an accommodation for their safety while working.
Companies with 25 or more workers also must provide these victims with the right to take time off to seek medical treatment for injuries, services from domestic violence shelters, programs or crisis centers, psychological counseling or safety planning.
Don’t worry about searching for the new posting, your Builders Exchange has the posting available for you!!