AB 51 Does Not Impact Workers’ Comp ADR Programs in California
OCTOBER 2019: Statement on California Assembly Bill 51 –
California Governor Gavin Newsom signed AB 51 into law. The law prevents employers from requiring employees or prospective employees to waive their rights to file lawsuits in court for violations of the California Fair Employment and Housing Act (FEHA).
FEHA is a state-level protection for employees and prospective employees against discrimination in employment or housing, and applies to all business practices including advertising, job applications and hiring processes, termination processes, working conditions including “compensation” (wages), and training practices among others.
Workers’ Compensation Alternative Dispute Resolution (WCADR) is in a different category from FEHA. It is regulated by the state and involves labor unions that negotiate with employers to put alternatives to the Workers’ Compensation court system in place.
Workers’ compensation claims are not FEHA claims. Instead, workers’ compensation involves people who were hurt at work and addresses medical treatment and disability payments, and includes adjudication of disputed issues in the context of whether someone was really injured at work and the nature and extent of disability.
The only time FEHA claims and workers’ compensation claims come into contact is if a person claims that they were discriminated against for filing a claim in violation of Labor Code 132a and they decide to pursue it in civil court as opposed to the WCAB. Sometimes a person might have a simultaneous FEHA and workers’ compensation cases, and under AB 51 the person would not be required to submit to arbitration to resolve the FEHA portion. But if there was a WCADR program in place, they would still have to use that program to address the workplace injury claim.
Before AB 51 was passed, employers could require people to sign documents that said that they would pursue FEHA claims using “alternative dispute resolution” rather than sue in court. However, some raised concerns about the fairness of such a requirement, so the legislature removed the requirement via AB 51. The term “alternative dispute resolution” relates to any kind of procedure for resolving cases outside of the formal court system.
In short, AB 51 does not disturb or disrupt WCADR programs.
Bradford & Barthel, LLP provides workers’ compensation litigation services in both traditional and alternative dispute resolution forums throughout California. We are a pioneering firm in the field of WCADR and have extensive experience in negotiating and developing ADR programs that meet the needs of labor unions and management.
Please do not hesitate to reach out to me with any questions or to discuss further. My contact details are:
Michael Peabody, Partner
Director of Alternative Dispute Resolution Services
Bradford & Barthel, LLP
18801 Ventura Blvd, Ste 200
Tarzana, CA 91356
California Workers’ Comp 2020 Temporary Total Disability Rates to Rise
SEPTEMBER 2019: The California Division of Workers’ Compensation has announced that the 2020 minimum and maximum temporary total disability rates will increase on Jan. 1, 2020.
The minimum TTD rate will increase from $187.71 to $194.91 and the maximum TTD rate will increase from $1,251.38 to $1,299.43 per week, the DWC said.
Labor Code requires the rate for TTD be increased by an amount equal to percentage increase in the State Average Weekly Wage compared to the prior year.
The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury. In the 12 months ending March 31, 2019, the SAWW increased from $1,276 to $1,325 – an increase of 3.84013 percent, according to the DWC.
Under Labor Code, workers with a date of injury on or after Jan. 1, 2003 who are receiving life pension or permanent total disability benefits are also entitled to have their weekly LP or PTD rate adjusted based on the SAWW.
The DWC is part of the California Department of Industrial Relations, which in turn is housed within the Labor & Workforce Development Agency.
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Information Source: Insurance Journal
Management’s Role in Slip, Trip and Fall Prevention
APRIL 2019: Slips, trips and falls (STFs) can present challenges to managers in nearly all types of facilities and businesses, but particularly those with any type of public space, like retail establishments, hospitals, financial institutions, hospitality venues and more.
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Information Source: Zurich American Insurance Company
For additional risk insights, visit https://www.zurichna.com/en/knowledge/topics/slip-trip-and-fall-safety
USRP Time Card Requirements – What is Acceptable?
MARCH 2019: In the California Workers’ Compensation Uniform Statistical Reporting Plan—1995 (USRP), several rules include a requirement for time cards or time book entries. The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) often receives questions regarding these documentation requirements.
If an employee’s payroll is to be divided between two or more classifications, the applicable time card record keeping requirements for most industries are listed at Part 3, Standard Classification System, Section V, Payroll – Remuneration, Rule 3. Division of Single Employee’s Payroll. This rule states, in part:
… the remuneration of any one employee may be divided between two or more classifications, provided the employer has maintained complete and accurate records supported by original time cards or time book entries which show separately, both by individual employee and in summary by operations performed, the remuneration earned by such employee …
The rule does not require any standard format for the records, but requires that they be original, i.e., contemporaneous records, and that they be summarized, meaning totaled by operation. The accuracy of the summaries must be verifiable by reviewing the original employee records. Some employers use smartphone apps to record the required information contemporaneously, and in some cases, information for multiple employees is recorded by a supervisor rather than by the individual employees.
Rule 3 also addresses those instances in which complete and accurate records are not maintained. Rule 3 states:
If the employer fails to keep complete and accurate records as provided in this rule, the entire remuneration of the employee shall be assigned to the highest rated classification applicable to any part of the work performed by the employee. Payroll may not be divided by means of percentages, averages, estimates, or any basis other than specific time records.
Similar requirements for dividing payroll between Construction or Erection classifications are contained in Section IV, Special Industry Classification Procedures, Rule 2, Construction or Erection Work. This rule states, in part:
… Division of payroll shall be made for each separate and distinct type of construction or erection operation that is specifically described by a classification, provided separate records of payroll are maintained and provided the use of any such classification in connection with a separate job or location is not restricted by classification phraseology or footnotes. When the operations at a job or location are classified on a divided payroll basis, the remuneration of any one employee may be divided between two or more classifications provided the employer has maintained complete and accurate records supported by original time cards or time book entries which show separately, both by individual employee and in summary by operations performed, the remuneration earned by such employee. Operations for which separate records of payroll are not maintained shall be assigned to the highest rated classification applicable to the job or location if payrolls are kept separately by job within the policy period; otherwise, the highest rated classification shall be assigned based on the entire policy period …
As with Rule 3 discussed previously, Rule 2 requires summaries that can be reconciled to original, contemporaneous records when dividing an employee’s payroll between two or more classifications.
Some Construction or Erection classifications are dual wage classifications that require verification that the employee’s regular hourly wage equals or exceeds a specified amount. These classifications are subject to additional record keeping requirements that are provided at Section IV, Rule 2a(1), Records of Payroll. This rule states, in part:
For all employees, other than salaried employees, determination of the regular hourly wage must be supported by one of the following sources:
(a) Original time cards or time book entries for each employee. Original records must include the operations performed, the total hours worked each day and the times the employee started and ended each work period throughout the workday. At job locations where all of the employer’s operations cease for a uniform unpaid meal period, recording the start and stop times of the uniform break period is not required.
(b) A valid collective bargaining agreement that shows the regular hourly wage rate by job classification of worker. If using a collective bargaining agreement, the records must include an employee roster by job classification that permits the reconciliation of individual employees to the job classifications set forth in the collective bargaining agreement.
For all employees, other than salaried employees, the payroll for which an hourly wage determination cannot be reconciled to time cards or time book entries or collective bargaining agreements as specified above shall not be assigned to a classification that requires the regular hourly wage to equal or exceed a specified amount.
Note that Rule 2a for dual wage classifications is the only rule that includes a requirement for recording the times the employee started and ended each work period throughout the workday.
Each of these rules requires that certain data elements be contemporaneously recorded and summarized, but the rules do not require that a standard form or format be used. This allows employers the flexibility to use a variety of methods and technologies to record the required information.
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Information Source: WCIRB California:
Classification and Test Audit Insight – News and Information for the California Underwriting and Audit Community
The Classification and Test Audit Insight e-newsletter highlights common classification and test audit issues of interest to auditors, underwriters and others.
Editions are issued monthly, and past editions are available in the Learning Center section of wcirb.com.