A LITTLE TIME AND MONEY SPENT UPFRONT CAN HELP SHOPS AVOID BIG NON-COMPLIANCE FINES DOWN THE ROAD

BY: DICK DELOACH

Originally published in Parts and People

Fresno, Calif.—Everyone who works in California — as a shop owner or employee — is subject to the regulations set forth by the California Division of Occupational Safety and Health (DOSH), also known as Cal/OSHA. According to a recent report from the Labor Enforcement Task Force (LETF), from 2012-2016, Cal/OSHA non-compliance has grown from 75 percent to 91 percent of the companies targeted. “LETF is a coalition of California State government enforcement agencies under the direction of the Department of Industrial Relations, that work together and in partnership with local agencies to combat the underground economy,” a Cal/OSHA spokesman said. In this joint effort, information and resources are shared to ensure employees are paid properly and have safe work conditions and that honest, law-abiding businesses have the opportunity for healthy competition. LETF is committed to outreach and education and has produced information for workers and employers to ensure they know their rights and responsibilities. “While the sample size is small – only about 800 targeted employers – the percentages have greatly increased,” said David Fischer, of California Employer’s Services (CES), a Fresno-based Cal/OSHA compliance and labor law consulting firm. “Granted, these employers are ‘targeted’ and they are not the bright and shining stars, but the fact remains that in spite of agency sweeps and increased fines the numbers are still going up. “Moving across town to the better employers you are also going to find that even they sometimes have a hard time keeping compliant.”

Why are employers failing to comply?

Fischer noted a number of reasons shop owners fail to be compliant:

• An outdated employee handbook.
• Their illness injury prevention program (IIPP) is outdated.
• They do safety training but fail to document it.
• They feel that they are under the radar because of their size.
• Many older employers are just not aware how much the times have changed.
• They don’t believe they will get caught.

Reasons to comply

Fischer also added that there are a myriad of reasons for shops to be compliant, and he outlined the following:

• Fines have gone up tremendously, ranging from $15,000 to $60,000.
• There are more ways for employees to sue a shop owner than ever before.
• Enforcement procedures have changed, making the burden of proof on the shop owner.
• Cal/OSHA now requires proof/documentation that owners are doing everything their safety program says they will do.
• California labor laws and other compliance regulations have become more and more complex.

“I love helping employers comply with all of the new laws,” Fischer said. “I am very passionate about the rights of employers and I am excited about helping them to get in and stay in compliance, but with all of the complexity, it makes it very hard for employers.”

Hiring a labor law attorney

“The problem is how do you know which labor law attorney to hire,” he said. “I encourage employers to ask attorneys how much work they actually do in the field. This is an important question in view of the fact that many times the laws are enforced differently than how they are written.”

That’s why Fischer said he works with, and refers shop owners, to attorneys such as Anthony P. Raimondo, a Fresno-based attorney who specializes in California labor law.

“Employee lawsuits are hitting employers very hard these days and are increasing at an alarming rate,” Raimondo said. “When you add to that the increased fines and penalties from Cal/OSHA, it just does not make any sense for employers to skimp on compliance when it could cost them so much if they are found to be out of compliance.”

A good employee handbook is worth time and expense

Employers must introduce and adopt policies, which are reasonable and fair, in order to have a good employee handbook, Fischer said. Employers cannot deprive their employees of their “statutory” rights. In case of conflicts between a company’s employee handbook and statutory rights, the statute will prevail over the employee handbook.

“Your employee handbook is your front line of defense,” he said. “It is your front line of defense to keep you out of court, and it is your front line of defense if you end up in court.”

Good employee handbook policies

Fischer said there are too many policies to list, but a shop’s “At-Will Status” should be one and it should be between pages 1-3, and the new Sexual Harassment Policy, which should be between pages 3-5.

Not every policy must have a specific place, but some do, he added. The handbook should also have a good Social Media policy, a Non-Expectation of Privacy policy, the new Paid Sick Leave policy, and the new Transgender Rights policy.

“CES was set up with the employer in mind,” Fischer said. “Our Platinum Services package includes everything you need to be in compliance, including the employee handbook, the safety program, and the needed Cal/OSHA walk-throughs. The investment is about $1550 a year at most.”

CES member shop evaluation

The Car Doctor, in Palo Alto, a NAPA AutoCare Center owned by brothers Gary and Chris Schaller, has been a CES Platinum Services client for more than six years and they are very happy with the service.

“The biggest thing I like about CES is that I don’t stress when a Cal/OSHA inspector comes out because I know I’m compliant,” Gary Schaller said. “Dave has provided us with an excellent employee handbook, plus other written materials. He also comes to our shop and does an actual Cal/OSHA walk-through two or three times a year. What Dave does is stellar.”

Modesti’s Car Care Center, in Culver City, an AAA Approved Repair Center (AAR) owned by John Modesti, has been a CES Platinum Services client for several years. His son, Nick, who is general manager, said they are very pleased with the service.

“We’ve worked with CES for years and we couldn’t be happier,” he said. “I call and email Dave a lot with HR questions. He also does two Cal/OSHA walk-throughs a year, and constantly updates my employee handbook with the new laws and statutes so I always have a paper trail if an inspector comes in.”

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