Cal-OSHA Provides Model Workplace Violence Prevention Program

Cal-OSHA has required almost all California non-healthcare employers to adopt a Workplace Violence Prevention Plan (“WVPP”) since July 1, 2024.  Covered employers must establish, implement, and maintain an “effective” plan including:

• Identifying who is responsible for implementing the plan;

• Involving employees and their representatives (i.e., unions);

• Accepting and responding to reports of workplace violence and prohibit employee retaliation;

• Communicating with employees regarding workplace violence matters;

• Responding to actual and potential emergencies;

• Developing and providing effective training;

• Identifying, evaluating, and correcting workplace violence hazards; and

• Performing post incident response and investigations.

Creating a plan requires more than adopting a policy or filling out a few forms: the above factors require employers to invest time assessing the workplace, working with employees, and tailoring their WVPP to each individual location.

Very little guidance was provided for employers, leaving many either confused or reliant on often-expensive outside consultants.

Fortunately, the California Division of Occupational Safety and Health (“DOSH”) has now created a model format employers may use for guidance.  While the model still requires management to assess their workplace individually, and to interact with employees while doing so, it provides a much easier route to creating compliant plans (and ones DOSH is likely to acknowledge as well!).

The Division’s model program can be found on the DOSH website at this link.  Further guidance and discussion can be found here as well. 

Creating a WVPP is not the end of the story, as employers must provide regular training (discussed here) in addition to updating the plan periodically.  Covered employers should monitor the DOSH site, and relevant industry and human resource sources, to stay atop these important new developments.

More Employment Laws Affecting Lawyers (and their clients, too)

This year has seen myriad changes in state and federal employment affecting all employers - and even the lawyers who represent them. This new presentation to the Napa County Bar Association contains valuable advice for all businesses, showing how similar the legal industry is to all other types of workplaces.

Our September 26 presentation covers many of these changes, such as:

• Minimum Wage Changes

• Indoor Heat Regulations

• Workplace Violence Prevention

• Ergonomic Safety

• Paid Sick Leave Increase

• New-Hire Notices

• Non-Compete Agreements

• Retaliation

A copy of the presentation can be viewed (and shared) by clicking here.

An Irregular Definition of "Regular Rate"

California has long required meal and rest periods for hourly employees.  The requirement was virtually ignored for many years because failure to provide breaks resulted in almost no penalties.  This changed in 2000 after the state legislature mandated one-hour “wage” penalties for each day an employer fails to provide meal or rest periods as required.  Since then, employers have faced up to two penalties each day payable at an employee’s “regular rate of compensation.”

Under Labor Code section 226.7 and state “wage orders,” employees who miss a meal period, rest period, or recovery period (a cooldown period afforded to employees to prevent heat illness) are entitled to an additional hour of pay at the employee’s “regular rate of compensation.”  This is often called a “Wage Penalty.” 

Calculating the “regular rate of compensation” can be confusing for employers.  On the one hand, “regular rate” could mean an employee’s usual base hourly wage – which is the rule many employers followed for years.  On the other hand, it could mean an employee’s “regular rate of pay” as used for calculating overtime under state and federal law, which requires that an employee’s base rate be increased to reflect other types of pay such as differentials and incentive bonuses.  This conflict confused employers for decades until the California Supreme Court held that employers must use the broader definition of “regular rate” when calculating Wage Penalties.

This makes a big difference.  When calculating amounts due to an employee, employers must include hourly pay and non-discretionary payments such as shift differentials, incentive bonuses, and other compensation beyond base hourly rate. This should be a familiar calculation, as it is the same formula used for calculating “regular rate” for overtime premiums. 

One example could be an employee working at a winery for 20 hours at $15.00 per hour, but who also receives a $25 bonus for wine club signups.  Her usual base wage is $15.00 but her ‘regular rate’ is $16.25 ($15.00 x 20 hours plus $25 [$325], divided by the 20 hours worked).  If she missed two rest periods and one meal period that week, but was paid only $45 in Wage Penalties, she would have been underpaid $3.75.

This small difference can have a huge impact, as underpaid Wage Penalties may result in an overall wage underpayment when employees are terminated.  If so, the “waiting time” penalty for a single underpayment (under Labor Code section 203) could be up to 30 times an employee’s average daily pay.  (And this is in addition to other potential Labor Code penalties as well!)

Employers should keep this “regular rate” issue in mind when calculating missed meal and rest period premiums.  Heads up: the issue applies in other situations, such as sick pay calculations, as well.