February 2016 - Issue 48

Contractual Risk Transfer Manual Now Available

Appealing a Cal/OSHA Citation and Notification of Penalty

Retaliation and Disability Charges are on the Rise, According to EEOC Litigation and Charge Statistics for FY 2015

Years Later, Irwindale Officers Honored for Courage During Mass Shooting

American with Disabilities Act Lawsuit? But She Wasn’t Even Disabled!

News: Worthy

Contractual Risk Transfer Manual Now Available

By Maria Galvan, Risk Manager

The sixth edition of the California Joint Powers Insurance Authority’s Contractual Risk Transfer Manual is now available to members. The manual was last revised in 2012. 

The manual includes a great deal of new content as well as several updates. New content includes a discussion on insurance requirements in RFP/RFQs and other related items, RFP Routing Guide, Contract Review and Transmittal Form, Coverage Analysis Matrix, additional information on waivers of subrogation, a discussion on endorsements required for ongoing and completed operations, sample sexual abuse/molestation insurance specifications, cyber liability discussion and sample insurance specifications, an update on 2013 ISO endorsement forms, Insurance Requirements Instruction Form, and a Certificate of Liability Insurance Reference guide.

Updated items include the general liability insurance specification, acceptable insurers provision, requirements not limiting provision, builder’s risk insurance specification, Risk Analysis Questionnaire, and additional insured endorsement samples.

The manual also includes a discussion about protected contracts. There may be occasions that a member of the California JPIA desires to assume the tort liability of a third party for claims and damages arising from contracted services.  The liability that a member assumes in contracts is not automatically covered under the California JPIA’s Memorandum of Liability Coverage. In order to extend coverage, it is necessary to designate the agreement with the third party as a protected contract. The revised manual clarifies the process for doing this.

Additionally, various contract templates related to chapters in the manual are now available. New templates that are available include a lease agreement, construction services agreement, facility use agreement for sports complexes/fields, instructor/coach agreement, municipal maintenance agreement, professional service agreement for non-construction projects, purchase order, and vendor agreement. Revisions were also made to the encroachment permit, facility use agreement, master service agreement for inflatables, and the participant waiver and release templates.

To access the manual and its various templates, visit the California JPIA website under Resources and Documents. You will need to log in with your myJPIA credentials.

If you have questions about the manual or contract templates, please contact your assigned Risk Manager

News: Worthy

Appealing a Cal/OSHA Citation and Notification of Penalty

By Melaina Francis, Risk Manager

Receiving a Cal/OSHA citation can be a little unnerving and intimidating. So, what should you do if your agency receives a Cal/OSHA citation?  An employer may agree to the citation, correct the condition by the date set in the citation and pay the penalty, if one is proposed (the Citation and Notification of Penalty remain in the agency’s file with the Cal/OSHA Enforcement District for up to three years).  Or an employer may disagree with the citation, which in some cases is the best recommendation, and file an appeal.

California employers have the right to contest the Citation and Notification of Penalty by filing an appeal with the Occupational Safety and Health Appeals Board. To initiate the appeal, employers must telephone or write to the Appeals within 15 working days from the date of receipt of the citation indicating the intention to appeal. After the appeal has been initiated, a completed appeal form must be submitted to the Appeals Board within 10 calendar days.  If the 15-working-day deadline is missed, the citation and notification of penalties becomes a final order of the Appeals Board, not subject to further review by any court or agency.

Appealing a Cal/OSHA Citation
What is the rationale for appealing a Cal/OSHA citation? First, an appeal allows an employer time to thoroughly investigate the incident or alleged condition, interview employees, gather training and inspection records, and develop an appeal strategy. Second, it affords an employer the opportunity to correct any hazardous conditions, draft a policy, and schedule training as necessary.  Often these actions demonstrate good faith on behalf of the employer and may assist in reducing penalties and also contribute in potential settlement discussions. Last, an appeal opens the door to potentially have the citation withdrawn or to negotiate the categorization of the citation(s).  For example, a notice may be issued in lieu of a citation, or citation may be reduced from a serious citation to a general citation.  Importantly, if the category of a citation is reduced, the associated penalties levied against an employer may potentially also be reduced.  A notice is the same as receiving a warning, and it is beneficial for the employer’s history, however it can only be issued when the original citation was for a general or regulatory classification.

Important affirmative defenses
The following defenses may apply to the facts of an appeal under certain limited circumstances. The employer must raise them or they are considered waived.

  • Independent Employee Act Defense

    The Independent Employee Act Defense (IEAD) requires five elements to be met in order to establish that an employee acted independently, contrary to an employer’s safety program, and against his or her own best interest. Employers must prove each one to establish IEAD.  If successful, the employer is not liable for the violation.

    1. The employee was experienced in the job being performed.
    2. The employer has a well-devised safety program that includes training employees in safety matters pertaining to their particular job assignments.
    3. The employer effectively enforces the safety program.
    4. The employer has a policy, which it enforces, of disciplining employees who violate the safety program.
    5. The employee caused a safety infraction that he or she knew was contrary to the employer’s safety program.

  • Logical Time Defense

    An employer does not have to comply with a safety order until the logical time for compliance has arrived. Worker safety is the focus of the defense, not what is most convenient for the employer from an engineering or cost point of view. For example, an employer need not place guardrails around the perimeter of a building until the flooring is in place, because it would be dangerous for the worker installing the guardrails.

  • The Statute of Limitations

    "No citation or notice shall be issued by the Division for a given violation or violations after six months have elapsed since the occurrence of the violation." (Labor Code § 6317.) This affirmative defense must be pleaded by the employer. The six months normally will begin to run at the time of the inspection of the worksite by the division.

  • Absence of Employer Knowledge of Serious Violation
    To establish a serious violation, the division must show that there is a substantial probability that death or serious physical harm could result from the violation. A serious violation will not be found if the employer can prove that it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. (Labor Code Section 6432.). The employer, therefore, has the burden of proving that it did not know and could not have known of the presence of the violation.

It is important to note that one particular citation is entirely avoidable -- a “failure to report” to Cal/OSHA based upon a reportable injury pursuant to 8 CCR 342(a).  In 2014, Cal/OSHA issued 472 "failure to report" citations resulting in $1.8 Million in penalties.  An employer has only eight (8) hours after reasonable knowledge of one of these occurrences to contact Cal/OSHA to report the accident or incident. Failure to contact Cal/OSHA by the employer will result in a $5,000 mandatory fine. This is one of the most difficult Citation and Notification of Penalties to effectively appeal.  It is important to note that an injury that is not reportable at the onset may become reportable in the future if the severity worsens, thereby triggering a duty to report within eight hours of knowledge.

Avoiding Cal/OSHA citations is the best approach, and employers can be better prepared should an inspector come knocking by having the following programs effectively implemented and kept current, with training regularly conducted and documented:

  • Injury and Illness Prevention Plan
  • Safety policies, code of safe work practices, rules and regulations, safety handbooks
  • Heat Illness Prevention Program
  • Hazard Communication Program
  • Safety Inspection records
  • Safety Meeting/Tailgate Meeting records
  • Energy Control Lockout/Tagout
  • Emergency Action Plan
  • Workplace Violence Prevention/Security measures
  • Equipment operating permits, as required

The employer’s specific risk exposures will determine other safety programs and policies that the inspector may request to review.

The Authority recommends that members have a notification procedure in place and that managers, supervisors, and lead-employees are aware of the process and criteria for reporting injuries. Often “failure to report” citations are issued as a result of a reportable injury that occurred after-hours, on weekends, or in isolated locations, and key staff within the organization with reporting responsibilities to Cal/OSHA were not notified in a timely manner.

Navigating the appeal process is not easy and may not always turn out as expected. However, the effort required to appeal is worth the time investment.  To learn more, visit the Occupational Safety and Health Appeals Board overview of the appeal process by accessing
http://www.dir.ca.gov/oshab/oshabappealpro.html. For assistance reviewing a citation or questions regarding the submission of an appeal, please contact your assigned Risk Manager.

News: Worthy

Retaliation and Disability Charges are on the Rise, According to EEOC Litigation and Charge Statistics for FY 2015

(Reprinted from CALPELRA Clips, February 17, 2016)

The number of charges filed with the Equal Employment Opportunity Commission (EEOC) is once again climbing, according to newly released litigation and enforcement statistics for FY 2015.  During the past fiscal year, 89,385 charges were filed with the agency, up slightly from the 88,778 charges filed the previous year.  The largest number of charges filed with the agency since FY 1997—the first year the agency started compiling such data—is 99,947 charges filed in FY 2011.  Charge numbers had steadily declined since that time until this year.

The agency's litigation and enforcement statistics provide insight into the types of discrimination claims employees are filing, as well as where the Commission is focusing its resources. For FY 2015:

  • 44.5% (39,757 out of 89,385) of the claims filed involved allegations of employer retaliation.
  • Retaliation claims stemming only from alleged Title VII violations amounted to 35.7% (31,893) of all claims filed. A similar number of charges alleging race discrimination (31,027, or 34.7%) were filed during this time.
  • Notably, claims of disability discrimination reached a record high this past year. A total of 26,968 such claims were filed, representing 30.2% of total charges.

As for the agency's litigation record, the EEOC filed 142 merits lawsuits in FY 2015.  Most of these lawsuits (83) involved Title VII claims.  Fifty-three lawsuits were brought under the Americans with Disabilities Act; 14 lawsuits involved multiple statutes; and another 14 were brought under the Age Discrimination in Employment Act.  The number of subpoena enforcement actions (32) remained relatively steady, down only slightly from the 34 filed in FY 2014.

Of the 142 lawsuits, 42 involved multiple claimants.  This is in keeping with the agency's focus on systemic discrimination, which the EEOC defines as discrimination involving "a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area."

The Commission also reports it resolved 171 actions, including 155 merits lawsuits, during this period.  With respect to discrimination charges, the agency's statistics show it resolved 92,641 charges in FY 2015.  In total, the agency was able to secure more than $356 million through voluntary resolutions (mediation, conciliation, and settlements), and other $65.3 million for charging parties through litigation.

Re: Members

Years Later, Irwindale Officers Honored for Courage During Mass Shooting

(Reprinted from the San Gabriel Valley Tribune, January 27, 2016)

The Irwindale police recognized officers and other personnel for acts ranging from charging toward an active shooter to resuscitating a lifeless baby during the department’s first-ever Employee Awards Banquet Wednesday.Years later, Irwindale officers honored for courage during mass shooting

Awards presented included the department’s Medal of Valor, awarded for “an act displaying extreme courage while consciously facing imminent peril”; the Life Saving Award, “when a life is saved or prolonged due to actions taken by an officer”; the Distinguished Service Award, “for performing exceptional service in a duty of great responsibility or of critical importance to law enforcement”; and the Meritorious Service Award, for “meritorious service similar to, but to a lesser degree than required for the Distinguished Service Medal,” Irwindale police officials said in a written statement.
“I just couldn’t be more proud of this department,” Chief Anthony Miranda said. “The men and women of this department are really doing, right now, the right thing for the right reason. That’s all any chief can ask for.”

Since the event was the department’s first awards ceremony, some of the recognitions were long overdue, officials said.

Five sworn officers received the Medal of Valor, and a police dispatcher received a Distinguished Service Award for their efforts to stop a mass shooting at an Irwindale Southern California Edison Office on December 16, 2011 in which two people were killed and three others were injured by a disgruntled coworker.

With the aid of Dispatcher Mariela Avila, Sgt. Greg Gomez, Cpl. Armando Lopez, Detective Jose Vargas, Sgt. Rudy Gatto, Officer Mario Camacho and Officer Jesse Bravo arrived within three minutes, police said.

“Without hesitation, these officers organized a six-person ‘active shooter’ entry team and entered the building,” according to the statement. Upon arrival, they immediately smelled burnt gunpowder and encountered panicked employees trying to flee.
“It is at this moment that each of these officers placed themselves in great danger and faced imminent peril as they closed in on the active shooter,” the statement said.

“Dispatcher Mariela Avila was the voice and ears for these officers during this event and was the help the employees calling 9-1-1 needed to hear as she reassured them help was on the way.”

The gunman fatally shot himself as the officers closed in on him, officials said.
More than four years later, the involved officers were yet to be formally recognize for their heroism, Miranda said.

“For whatever reason, it didn’t happen. That didn’t sit right with me. It needed to be done. It really needed to be done,” the chief said.

Wednesday’s ceremony was held at a different Southern California Edison (SCE) facility in Irwindale. SCE Vice President of Business Customer Division Lisa Cagnolatti was on-hand to express the utility’s gratitude to the first responders.

Sgt. John Fraijo and Officer Rudy Campos received Life Saving Awards for helping resuscitate and rescue a lifeless, choking toddler on January 31, 2014. Sgt. Rene Sapien, Officer Joe Hardy, and Dispatcher Sherry Peterson received Distinguished Service Awards for their roles in the same rescue.

Officer Rudy Campos received a second Life Saving Award for talking a suicidal man down from a 605 Freeway overpass on August 20, 2014.

Officer Jesus Bravo received a Life Saving Award for performing CPR on a 60-year-old man for more than 10 minutes before paramedics arrived.

Sgt. George Zendejas, Sgt. Rudy Gatto, and Officer Diego Cornejo received Meritorious Service Awards for their work to increase the department public outreach through social media and the Internet.

Also recognized were 2015 Officer of the Year Officer, Rudy Campos; 2014 Officer of the Year, Diego Cornejo; 2015 Civilian Employee of the Year, Records Clerk Norma Ortiz; and 2015 Civilian Employee of the Year, Volunteer Dianna Hurst.

Photo: Irwindale Police Chief Anthony Miranda, center, stands with award winners

The Court Report

American with Disabilities Act Lawsuit? But She Wasn’t Even Disabled!

(Reprinted from HRMorning.com, January 20, 2016)

Employers beware: Just because a worker isn’t disabled doesn’t mean she can’t hit you with an ADA lawsuit.
Though rarer than typical ADA complaints, companies can come under fire for “associational ADA bias.”

That’s when a worker claims his or her employer discrimination against him or her for the employee’s relationship to a disabled person.

That’s what happened to 878 Education LLC, a technical college in New York, after it fired a worker for absenteeism. Here’s what happened at the school, and what it can teach you about avoiding associational bias complaints.

Constantly absent Elizabeth Manon, a receptionist at the school, had an infant daughter who often experienced medical issues due to an asthma-like condition called Reactive Airway Disease. As a result, Manon often missed work to look after her daughter.

Manon worked for 878 for six months, during which she left early 54 times, came in late 27 times and was absent for 17 days, total. Manon had told her manager, Alphonso Garcia about her daughter’s condition, and did her best to give advanced notice of when she would be out.

Despite her frequent absenteeism, Garcia only reprimanded her once.

He said what?
Then, without warning, Manon arrived one day to find she was fired. During the termination meeting, Manon asked what she could do to fix things and keep her job. But Garcia told her he needed someone “who does not have kids who can be at the front desk at all times.”

He also asked her, “How can you guarantee me that two weeks from now your daughter is not going to be sick again … So, what is it, your job or your daughter?”

Court weighs in
Manon then sued for associational ADA bias, saying that 878 fired her because of her daughter’s illness. The school fought to get the suit thrown out, pointing out that Manon’s absenteeism was the real reason she was terminated.

But a judge decided the case should go to trial for two reasons:

  • Manon’s frequent communication about her daughter’s condition could also lead a jury to conclude that Garcia knew about her disability when he fired Manon.
  • Garcia’s comments during the meeting could be seen as a “smoking gun” that Manon’s termination was triggered by her daughter’s disability.

What managers need to know
Win or lose, the lawsuit will be a financial blow to 878. But the case serves as a good reminder to managers that work issues related to an employee’s disabled relative have to be dealt with using as much care as a typical ADA case.