CAPHCC Legislative Update by Richard Markuson

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Capitol Richard Markuson

June 27, 2014                        

 More Details on New Public Works License

The Administration proposal to require contractors and subcontractors who perform on public works to obtain a new certification from the Department of Industrial Relations is final. Contractors will pay an annual fee – set initially at $300 and will be required to submit additional details about their business in order to bid or perform work on public works projects.This new fee is intended topay for all DIR administration and enforcement of prevailing wage requirements.

Contractors will apply and pay the fee online and must meet minimum qualifications to be registered as eligible to work on public works.

Essentials of contractor registration program:

  • Contractors will be subject to a registration and annual renewal fee that has been set initially at $300.  The fee is non-refundable and applies to all contractors and subcontractors who intend to bid or perform work on public works projects.
  • Contractors will apply and pay the fee online and must meet minimum qualifications to be registered as eligible to work on public works:
    • Must have workers’ compensation coverage for any employees and only use subcontractors who are registered public works contractors.
    • Must have CSLB contractor license applicable to trade performed.
    • Must have no delinquent unpaid wage or penalty assessments due to any employee or agency.
    • Not under debarment.
    • Not in prior violation of this registration requirement once it becomes effective.  However, first time violators will be able to avoid a 12 month disqualification by paying an additional penalty.
  • The registration fee is not related to any project.  It is more like a driver’s license in that it entitles the registrant to bid on and perform public works.
  • DIR will post a list of registered contractors and subcontractors on its website so that awarding bodies and contractors will be able to comply with requirement to only use registered contractors and subcontractors.
  • Various protections are built in so that
    • Contractor won’t be in violation for working on a private job that is later determined to be public work;
    • Inadvertent listing of unregistered subcontractor on a bid will not necessarily invalidate that bid;
    • Contract with unregistered contractor or subcontractor is subject to cancellation but is not void as to past work;
    • Unregistered contractor or subcontractor can be replaced with one who is registered;
    • Contractor whose registration has lapsed given grace period within which to pay a late fee and renew.
  • Other miscellaneous information:
    • Registrations will begin after July 1, 2014.  The requirement to list only registered contractors and subcontractors on bids becomes effective on March 1, 2015.  Requirement to only use registered contractors and subcontractors on public works projects applies to all projects awarded on or after April 1, 2015.
    • Payment will be by credit card.
    • The initial fee has been set in anticipation that it will generate sufficient revenue to support the $11.4 million cost of DIR’s current public works program.  The fee may be adjusted later (no more than annually) so that it continues to meet program costs.
    • Registration program is based on model that has been in use for several years in states of New Mexico and New Jersey.

PHCC has been informed that contractors who register in 2014 before the implementation in 2015 will NOT be required to renew until 2016.

Cal/OSHA proposes overly prescriptive draft heat illness regulation revisions

The debate over heat illness prevention in California rages on. Clearly California employers’ emphasis on protecting their employees from heat illness and complying with the nation’s only heat illness prevention regulation has gone un-noticed.

On May 28, 2014 the Division of Occupational Safety & Health (Cal/OSHA) submitted a draft version of proposed amendments to the heat illness prevention regulation to the Occupational Safety and Health Standards Board (Board) for rulemaking. The draft proposal is online at http://www.dir.ca.gov/dosh/doshreg/heatillprevent.html.

In 2005, California adopted the first heat illness prevention regulation in the nation. To this date, we remain the only state to regulate the prevention of heat illness.

We anticipate a public comment period and hearing in late summer/early fall of this year. In the meantime, it is important that employers understand the potential impact of this proposal, and how it changes the current heat illness prevention regulation, Title 8, section 3395.

A group of businesses, known as the Heat Illness Prevention Coalition is concerned that this proposal goes too far and will hurt employers, while not creating safer outdoor workplaces in California.

In general, the coalition is concerned that the proposed changes are unnecessary, overly burdensome, and would be disruptive to employers in compliance with the current requirements. Cal/OSHA has not shown the need for such far-reaching rules nor provided any evidence of necessity to justify these changes. They simply state in the draft “Initial Statement of Reasons” that the amendments are needed to clarify the requirements of the regulation, and to ensure that emergency medical services are provided without delay. These amendments not only fail to accomplish these objectives, but also far exceed these stated reasons.

This proposal is unprecedented in its overly prescriptive approach. This micro-managing of workplaces is in conflict with Cal/OSHA’s long-standing practice to provide performance rather than prescriptive standards. The proposal is laden with traps for employers so that they can never know when they are in compliance and can always be found to have not done enough.

The question remains as to whether these provisions are feasible, enforceable and clear enough for compliance. Various provisions are vague, and rather than provide clarity, will leave employers wondering how to comply. Significant concerns include the following:

·         New duty to establish a method to acclimate employees, buried in training section (f) (D), and in written procedures section (g) (3).

·         Implications that a preventative cool down rest break taken by an employee shall be treated as a period of recovery from heat illness, rather than as a preventive measure when an employee feels the need to cool down. [Section (d)(3)]

·         Implications that an employer must implement unspecified methods to acclimatize employees when temperatures rise. [(f)(1)(D)]

·         May force employers to assess all employees for symptoms of heat illness during all breaks in temperatures over 80 degrees.

·         New supervisor and designated employee (not medical personnel) duties for monitoring, observing and assessing employees for signs or symptoms of heat illness during all breaks in temperatures over 80 degrees. [(d)(4) and elsewhere]

·         Significant new exposure to ‘be a supervisor, go to jail’ liability.

·         Unprecedented mingling of wage and hour requirements with health and safety requirements, greatly facilitating private attorney actions to enforce heat illness prevention requirements [(e)(6)].

·         Mandates recovery periods exclusively for agricultural employees, setting a precedent that could spread to all industries.

If you wish to join the coalition and share your thoughts regarding the proposal, as well as join in efforts to maintain a reasonable approach to heat illness prevention in California, please email your contact information, and your initial thoughts to heatillness@calchamber.com.

Related to this PHCC members are invited to participate on the Heat Illness Prevention Network call next week. A few years back, CalChamber worked with Cal/OSHA to establish the network to provide useful information to employers regarding the prevention of heat illness, and to help in compliance with the regulation. The calls are open to all.

The discussion is likely to include the experience this year with regards to heat illnesses and the circumstances of those illnesses.

Conference call number:  800-369-1894 Passcode: CAL OSHA

E-mail your questions / comments to heat@dir.ca.gov

Legislation

Good news! With 1-3 vote (with 5 abstentions), SB 1021 (Wolk), a de facto split-roll parcel tax bill, failed passage in the Assembly Revenue and Taxation Committee this afternoon. You may read the Assembly Revenue and Taxation Committee analysis of SB 1021 here.

 

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