Thursday, December 5, 2024

California Adopts New Lead Exposure Regulations

On February 15, 2024, the Occupational Safety and Health Standards Board voted to approve proposed amendments to Cal/OSHA’s Lead Standards (California Code of Regulations (CCR), Title 8 (T8), Sections 1532.1 (for the Construction Industry) and 5198 (for General Industry).

The approved amendments for T8 CCR 1532.1 and T8 CCR 5198 were filed with the California Secretary of State on April 8, 2024, and will be enforced starting January 1, 2025.

Employers should review their existing procedures and programs and the guidance resources provided by the State to ensure that workers are protected.

The Cal/OSHA webpage only provides an overview — not all the requirements — of T8 CCR sections 1532.1, 5155, and 5198. The information provided is not meant to be a substitute for, nor a legal interpretation of, the regulations. Readers are cautioned to refer directly to sections 1532.1 and 5198 for detailed information regarding the regulation's scope, specifications, exceptions, and other requirements that may apply to their operations.

The website includes specific Occupational Lead Exposure Prevention for the Construction Industry:

• Cal/OSHA Occupational Lead Exposure Prevention in the Construction Industry – New information and materials related to the Cal/OSHA Lead in Construction standard.
• Lead Work Notification – New information on lead work notification.
• Lead Exposure Assessment & Incident Reporting – New information on reporting lead exposure.
• Educational Materials and Other Resources – New fact sheets, videos and fillable written safety plans.
• Coming soon will be Frequently Asked Questions About Lead in Construction – FAQs on Occupational Lead in Construction Industry and more.

WECA will provide updates as they become available.

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Elections Have Consequences, and How! [From various sources including Labor Union News]

Following President-Elect Trump’s pick of Lori Chavez-DeRemer — a one-term, pro-union Republican member of the House of Representatives — as his Secretary of Labor at the urging of Teamsters president Sean O’Brien, Bloomberg’s Josh Eidelson penned a piece about the nomination recently. While the article itself covered her nomination overall, many readers may have missed a one-line statement about the now (presumably) doomed Protecting the Right to Organize Act (aka PRO Act), which is this:

The bill went nowhere in the Republican-controlled House and fared little better in the narrowly Democratic Senate, though the Teamsters are working with US Senator Josh Hawley of Missouri, a Trump ally, to develop a more GOP-friendly alternative.

If a more “GOP-friendly alternative” to the PRO Act exists, it is hard to see where.

As written, the PRO Act has many provisions that are anathema to most of the business community and millions of Americans who earn their living as independent contractors.

Within the existing version of the PRO Act are such provisions as:

·        The elimination of "right-to-work” states, which would require millions of workers to pay union dues or agency fees or be fired from their jobs

·        Dictating wages and benefits upon unionized private-sector businesses through government-mandated arbitration 120 days after becoming unionized.

·        Foisting the so-called ABC Test on independent contractors and the businesses that use them. The ABC Test is what California’s AB5 codified in 2020 (when it went into effect), resulting in thousands of independent contractors in California losing their income. If put into effect at the national level, it may, in practical terms, "kill” the gig economy.

·        Allow unions to unionize so-called “micro-units” (such as an employer’s individual departments or specific job classifications)

·        Change the definition of “joint employment” and force businesses, including franchisors and franchisees, to alter their structures or face liability

There is more to the PRO Act than that which is listed above.

However, regardless of politics, it seems almost impossible for a compromise bill that would please Mr. O’Brien and his union cohorts and be “GOP-friendly” to the extent that it will not cause injury to businesses and the American workforce.

Engineering News-Record took a slightly less jaundiced view of Chavez-DeRemer, calling her a “US Lawmaker With Bipartisan Voting Record.” Their article quoted House GOP Whip Tom Emmer (R-Minn.) who praised the nomination, posting on social media that “Lori will be a fierce advocate for our country’s incredible workforce as she executes” the incoming administration’s agenda. And Mark Takano (D-Calif.) also praised the nomination, saying "I served with her on the House Committee on Education and the Workforce and her support of the Protecting the Right to Organize Act is indicative of her willingness to stand with working men and women.” However, ABC, one of the few construction trade groups that endorsed Trump, raised the nominee’s support for pro-union policy as a concern. “We are interested in understanding Rep. Lori Chavez-DeRemer’s views on the Protecting the Right to Organize Act and other issues ... as she embarks on her confirmation process,” Kristen Swearingen, vice president of legislative and political affairs, said. ABC-affiliated Coalition for a Democratic Workplace stated alarm over the appointment.

CDR narrowly lost a swing seat in Oregon in November but, according to the San Joaquin Valley Sun, “managed to wow the 45th and 47th President in an interview at Mar-A-Lago, simultaneously picking up critical endorsement from a surprising corner: the International Brotherhood of Teamsters.”

The appointment is also a surprise win for the San Joaquin Valley, with Chavez-DeRemer's longtime ties to the region – including her alma mater Fresno State – getting national play heading into Trump's return to Washington.

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Workers Compensation Mandate: Change in 2025?

Roofers have been mandated to have workers comp for many years, but recently, the legislature amended Business and Professions Code (BPC) §7125 to require additional contractors to always have a certificate of workers’ compensation (WC) insurance or certificate of exemption on file with the CSLB as a condition of licensure. A contractor may file an exemption if they certify they have no employees. Five license classifications are precluded from filing an exemption. They must have WC on file regardless of whether they have employees (C-8 Concrete, C-20 Warm-Air Heating, Ventilating and Air-Conditioning, C-22 Asbestos Abatement, C-39 Roofing, and D-49 Tree Service contractors). All licensees, regardless of classification or whether they have employees, will be required to hold WC insurance beginning January 1, 2028. But a change may occur in 2025. More

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Labor Department Releases Guide to Combat Harassment in Construction

• The U.S. Department of Labor has released a new guide focused on combatting harassment in construction.
• Issued by DOL’s Office of Federal Contract Compliance Programs (OFCCP), the guide is aimed at helping federal contractors understand the agency’s jurisdiction, clarifying what constitutes harassment and providing information to workers who may experience harassment, OFCCP announced Nov. 21.
• The agency had been planning to release the guide for several months as part of the White House’s National Strategy on Gender Equity and Equality, a DOL spokesperson told Construction Dive. “OFCCP developed this guide for employers and workers because harassment in construction remains a common issue,” the spokesperson said via email.

More

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What to Do If Immigration Agents Come to Your Job Site Last month, President-elect Donald Trump named Tom Homan, former acting head of Immigration and Customs Enforcement, as his “border czar.” Homan has promised that the incoming administration will increase workplace raids as part of its broader immigration plan. It’s not clear yet which industries would be most affected, but there are clues from Trump’s first term. More

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OFCCP Reinstates the Federal Government Construction Contractor and Subcontractor Monthly Employment Utilization Reports On November 25, 2024, the Office of Federal Contract Compliance Programs (OFCCP) announced it was reinstating the revised Monthly Employment Utilization Report (CC-257). Employers with a federal construction contract or subcontract and/or federally assisted construction contract or subcontract in excess of $10,000 must complete and submit monthly Form CC-257 reports to OFCCP. The first report will cover the calendar month of March 2025 and is due April 15, 2025. More

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Wage theft in construction? CalMatters reports “Attorney General Rob Bonta is getting tough on wage theft on behalf of allies in organized labor. At a [recent] press conference in Los Angeles, Bonta announced a felony complaint against US Framing West, a Kentucky-based wood framing company, and two of its employees, alleging 31 counts of grand theft, payroll tax evasion, prevailing wage theft, and filing false documents. Bonta: “For some reason, US Framing West seems to think it can operate outside the prevailing wage laws of California. I’m here with a simple message: They cannot. No company can.” As CalMatters Inland Empire reporter Deborah Brennan explains, US Framing West secured several jobs on large construction projects in California between 2018 and 2022, subcontracting out the labor to unlicensed operators who allegedly underpaid workers by tens of thousands of dollars. Bonta also accused the company of failing to pay more than $2.5 million in state payroll taxes over that period. Notably, the case came to the attorney general’s office through complaints from construction unions. Lorena Gonzalez, president of the California Labor Federation, appeared alongside Bonta at Tuesday’s press conference, where she called for jail time for wage theft violations. Tending to that relationship is smart politics for Bonta, who is expected to soon enter the 2026 race for governor. In an already crowded and largely undefined field, winning the backing of organized labor could offer a significant boost.

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Overturning Precedent: NLRB’s Game Changing Decisions and the Impact on Employers This podcast features an in-depth discussion with Littler attorneys Maura Mastrony and Jonathan Levine about recent decisions from the National Labor Relations Board that overturned decades of precedent and what employers might expect moving forward. Podcast

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District Court Vacates Biden’s Overtime Final Rule On November 15, the U.S. District Court for the Eastern District of Texas vacated and set aside the Department of Labor’s (DOL) overtime final rule. The rule is now invalidated nationwide. The final rule made three changes to the overtime regulations, all of which are more fully explored in a previous post:

·        Increased the minimum salary threshold and highly compensated employee (HCE) threshold on July 1, 2024;

·        Increased the thresholds again on January 1, 2025; and

·        Implemented triennial automatic updates to both thresholds.

The decision vacated all three provisions.

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New Face at the Contractors State Licensing Board: Josef Preciado, Sacramento, Democrat, economic and small business representative III at Sacramento Municipal Utilities District since 2024. Salary: $100 per diem.

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California Law Imposes New Disclosure Obligations on Employers Conducting Voluntary Child Labor Audits On September 22, 2024, California Governor Gavin Newsom signed into law Assembly Bill 3234 (“AB 3234”), which requires employers to disclose the results of audits on child labor practices. Specifically, effective January 1, 2025, AB 3234 requires employers that “voluntarily” conduct a “social compliance audit” to determine whether child labor is involved in the employer’s “operations or practices” to publish the audit findings on the company website. AB 3234 offers very little guidance on these disclosure duties. Indeed, it leaves critical compliance details unclear, including, for example, the deadline for posting reports after an audit, the jurisdictional scope of where the audits occurred, how long the report must remain online, and any penalties for non-compliance. We may see guidance from the California Labor Commissioner clarifying these and other unclear points. Until then, employers will face the difficult task of complying with an ambiguous law. More

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The Power of Money in Politics A courageous Foster City councilmember recently wrote about tainted government. He observed, “We can learn firsthand the value or return on investment that can be gained by special interest groups that fill coffers of political candidates. Construction trades are heavily involved financially in political elections, even at the local level. Let’s be honest, endorsements and financial support given by special interests come with an expectation. To think otherwise is simply naive.” Article