NCPA LEGAL UPDATE MARCH 2010

The Department of Industrial Relations’ Division of Occupational Safety and Health (DIR/DOSH) has issued a press release reminding California employers to post at their place of business a summary of work-related injuries and illnesses during 2009. (Source:http://www.dir.ca.gov/DIRNews/2010/IR2010-01.html)

The Form 300A requires employers to report the number of injuries each year, even if no work-related injuries occurred. Vital information must also include the nature of the injury or illness that the employee suffered, the severity of the work-related incidents and the number of days the employee missed work due to the injury.

Download the form using this link: www.dir.ca.gov/dosh/dosh_publications/oshalog300.pdf

The deadline is upon us. According to Cal/OSHA, the summary must be displayed in a visible area from Feb. 1 through April 30 for employee review. The posting period helps improve safety, according to state officials. “The mandatory Cal/OSHA log helps employers identify recurring problems and eliminate them,” said DIR Director John Duncan.

Which employers must post Form 300a?

Employers with 11 or more employees, except those covered in the California low-hazard establishments in the retail, services, finance and real estate sectors. For information about whether your company is an excepted establishment, follow this link to the Cal/OSHA website: http://www.caloshareu.com/­oshalog300/­html/­index.htm

Covered employers must display the totals from the Summary of Work-Related Injuries and Illnesses (CAL/OSHA form 300A) wherever employee notices are usually posted. Cal/OSHA also requires employers to mail or provide the annual summary to employees who do not report at least weekly to a location where the annual summary for their workplace is posted.

If there is more than one business establishment, a separate log and summary must be posted in each physical location that is expected to be in operation for one year or longer.

Some companies are facing tough choices during the current economic downturn. Layoffs may allow the company to survive. But when the economy rebounds, those laid off workers may not be available for rehire. Hiring and training a new workforce is time consuming and expensive.

The California Employment Development Department (EDD) offers a program that may make sense for some employers.

The EDD offers what it calls a "Work Sharing Unemployment Insurance program." The program allows eligible employers to reduce hours of workers, and offers the employees partial unemployment benefits.

For example, if a business with 100 employees faces a temporary setback and could file a Work Sharing plan with EDD reducing the work week of all employees from five days to four days (a 20 percent reduction). The employees would be eligible to receive 20 percent of their weekly unemployment insurance benefits.

Says the EDD in a publication on the program: "Under this plan everyone benefits. The employer is able to keep a trained work force intact during a temporary setback and no employees lose their jobs."

The catch of course is that the employer takes a hit on its EDD reserve account, which in turn would lead to higher employer contribution rates to make up for the depletion. That is, payroll taxes will increase. Of course, some increase may occur in a straight layoff too. Also consider that an employer may risk offending its entire workforce in an across the board reduction of hours, rather than offending only those who would receive the pink slip in a straight layoff.

The EDD offers a "Guide for Work Sharing Employers" which can be found at this link: http://www.edd.ca.gov/pdf_pub_ctr/de8684.pdf

Below are some FAQs offered in the publication:

Q.     Who may participate in the Work Sharing program?

A.     Any employer who has a reduction in production, services or other condition that causes the employer to seek an alternative to layoffs. The Work Sharing plan requires the participation of at least two employees, a minimum reduction of 10 percent of the regular permanent work force or work unit(s), and a minimum reduction of 10 percent of the wages earned and hours worked of participating employees.

Q.     Who may not participate in the Work Sharing program?

A.     Leased or temporary service employees may not participate.

Q.     How does an employer apply for the Work Sharing program?

A.     Employers must either call or write EDD’s Special Claims Office to request a Work Sharing Plan Application.

Q.     How do employees qualify for the Work Sharing program?

A.     To qualify for the Work Sharing program an employee must meet the following requirements for each Work Sharing week:

Q.     How much lead time is required to initiate a plan for participation in the Work Sharing program?

A.     All Work Sharing plans begin on a Sunday. The earliest a plan may begin is the Sunday prior to the employer’s first contact date withEDD. If the Work Sharing Plan Application is submitted timely, the employer chooses the effective date. To be considered timely a DE 8686 must be submitted within 28 days of the employer’s first contact date with EDD.

Q.     Can an employer with multiple locations have more than one Work Sharing plan?

A.     No. Only one Work Sharing plan is approved for one California employer account number. However, units at the same or different locations may be included in the Work Sharing plan.

Q.     When Work Sharing is no longer necessary, how does an employer cancel the Work Sharing plan?

A. D     iscontinue issuing the Work Sharing Certifications to participating employees. The Work Sharing plan will expire six months after the effective date without any further action from the Work Sharing employer.

Q.     How many subsequent Work Sharing plans can an employer receive?

A.     Subsequent Work Sharing plans will be approved provided the employer meets the requirements of the program. Each Work Sharing plan is effective for six months and subsequent plans may be approved until the employer’s economic conditions improve.

Q.     Are Work Sharing participants required to serve a one week waiting period like regular unemployment insurance claimants?

A.     Yes, like regular unemployment insurance claimants, Work Sharing participants must serve a one week unpaid waiting period. Usually the waiting period is the first week claimed after the initial claim is filed. Even though the waiting period is an unpaid week, all the eligibility requirements for the Work Sharing program must be met.