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.
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