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Employees Who Work Outside

Posted July 15, 2015 by S. Ward Heinrichs
Employees Who Work Outside

Mandatory Paid Sick Leave is a new California law. It requires all employers to give each employee, who works for a minimum of 90 days, at least 3 days of paid sick leave per year. Presumably, this law will greatly benefit employees who work in agriculture, construction, landscaping, etc. because of the greater potential injury rate in those occupations. (Labor Code §§245-49.)

The definition of Emergency Rescue Personnel was expanded this year, which gave more emergency workers protection from wrongful termination for missing work when those rescue workers are called to work in emergency situations. Since 1989, Labor Code §230.3 had protected certain emergency workers from discrimination and wrongful discharge. However, at least some medical providers were not clearly protected under the original law. Now, essentially any licensed health care provider cannot be terminated for missing work when called to perform emergency rescue work. However, those health care providers must notify their employers immediately at the time they are designated as emergency rescue workers.

In 2014, all workers, who qualified for recovery periods under any law or regulation, were entitled to get a recovery period. However, the legislature amended the law in 2015 to make clear that the recovery period was paid work time and that employers had to pay the employees one hour’s pay as a penalty for any violation of the law. (Labor Code §226.7.) A Cal OSHA regulation (Title 8, Code of Regulations, §3395) allows certain workers to take recovery periods on an “as needed” basis when the temperature is greater than 85 degrees. The workers who qualify under that regulation are those who work in the following outdoor occupations: Agriculture, Construction, Landscaping, Oil and Gas Extraction, Transportation of Heavy Materials.

In California, the law has always required Construction Contractors who worked on public works projects (Labor Code §1720) to pay prevailing wages. Prevailing wages are greater than the open market wages for the same jobs. Sometimes a California agency or court might determine, after a job has started, that a contract was a public works project requiring payment of prevailing wage. Labor Code §1784 allows a contractor to sue the person or entity who hired the contractor for the increased cost of paying prevailing wage on a job that was later determined to be a public works contract. Presumably, subcontractors can sue the hiring contractor under that law.

A new law, Public Contract Code §10186, prevents employers who bid on State construction contracts from asking potential employees whether they have a criminal record on an initial application. The California legislature passed this to promote hiring of convicts to help stop future criminal behavior.

In a spate of related situations in Southern California, courts and the Labor Commissioner have found that shipping companies have improperly classified truck drivers as independent contractors, resulting in wage theft. The shippers charged the drivers to lease its trucks and charged for insurance payments, maintenance costs, fuel cost, etc. Those deductions are legal if the drivers are actually independent contractors. However, in these cases, the courts and Labor Commissioner found that the drivers where employees and the cost deductions were not legal. Employers must cover the costs of doing business. (Labor Code §2802.)

A study done in Massachusetts found that construction workers were often treated as independent contractors rather than employees, were rarely paid overtime, were paid in cash, and often were paid less than promised. The study opined that many workers in the construction field were illegal aliens and that some employers probably believed that illegal aliens were less likely to report wage violations. Those observations by the study appear to be true in California, but California has passed laws that protect illegal aliens from wage theft and other forms of discrimination.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 408-7543 (fax)

Employment Law Office of WARD HEINRICHS

4565 Ruffner St. Suite 207 San Diego 92111


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