Sunday, November 3, 2013
New Litigation Threat Facing Contractors
The construction industry may soon face a new wave of litigation filed by attorneys on behalf of laborers. On October 10, 2013, Governor Jerry Brown signed into law SB 435 (Senator Padilla). This Senate Bill, which goes into effect January 1, 2014, is “an act to amend Section 226.7 of the Labor Code, relating to compensation.” The amendment adds the term “recovery period” in addition to meal and rest periods as originally included in Section 226.7. The recovery period is essentially a “cooldown” period to prevent heat illness. This bill provides compensatory relief for field laborers who are not accommodated with shade under which the recovery period is to be taken. These recovery periods may be taken throughout the day per Cal-OSHA regulations. It would not be surprising to see class action labor attorneys spring into action to aid in enforcement of these provisions.
The amendment to Section 226.7 is interesting with respect to its expanded language. It essentially adds requirements to comply with statutes, regulations and/or orders of the Occupational Safety and Health Standards Board and the Division of Occupational Safety and Health. As such, this amendment ties Section 226.7, which stipulates penalties of one hour, per employee, per workday, that each meal or rest or recovery period is not provided, with Cal-OSHA rules and regulations. One of the more notable regulations under Cal-OSHA is with respect to Heat Illness Prevention. This code section, click here for the details, requires employers to provide proper shade to accommodate 25% of the employees on the shift without having physical contact with one another. There is a temperature threshold stated in this section requiring employers to provide this shade to be available when the temperature reaches 85°F. It also requires the employer to provide access to shade even if the temperature doesn’t reach 85°F upon the employee’s request. The rest periods for cooldown must be at a minimum 5 minutes to prevent overheating. Access to shade must be available at all times.
For those wishing to read the language of Section 226.7 as amended by the bill for themselves, I’ve included it below here:
(a) As used in this section, “recovery period” means a cooldown period afforded an employee to prevent heat illness.
(b) An employer shall not require an employee to work during a meal or rest or recovery period mandated by an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.
(c) If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.
(d) This section shall not apply to an employee who is exempt from meal or rest or recovery period requirements pursuant to other state laws, including, but not limited to, a statute or regulation, standard, or order of the Industrial Welfare Commission.
Although this may prove to be challenging for contractors to comply with, as always it’s best to know the landscape such as it is. Please share this with your contractor friends accordingly so they can decide how best to navigate these requirements.