Newsletter

New Driver Management Resources

By Senior Risk Manager, Alex Mellor

When employees and volunteers drive on agency business, it is a significant exposure shared by nearly every California JPIA member. Automobile accidents often result in liability, workers’ compensation, and property claims, which are costly to defend and resolve. Over the last six years, automobile accidents involving a member driver represent a total cost to the Authority of $30.2 million ($5 million per year on average). Despite the exposure, there are multiple actions members can take to manage this risk, including:

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• Pre-employment review of applicant driver records
• Implementation of a Vehicle Use Policy
• Regular driver awareness training for employees and volunteers
• Enrollment in the CA DMV Employer Pull Notice (EPN) Program
• Accident investigation, debriefing, and retraining

The Authority has updated its Vehicle Use Policy template and Driver’s Report of Accident. Both are available in the resources section on the Authority’s website. Members are encouraged to update their internal documents consistent with these revised resources.

While the DMV has a mechanism to notify employers about violations by individuals enrolled in the EPN program, the system has limited functionality that makes it cumbersome and prevents members from obtaining timely and actionable driver record information.

The ability to effectively manage driving privileges – and to remove those privileges when necessary – is a critical element of every member’s driver risk management program. Authority staff researched various third-party vendor options to assist members in this regard. The main criteria for assessing potential business partners included the ability to continuously monitor driving records, experience working with public agencies, and ease of use. Ultimately, the Authority identified Embark Safety as its preferred business partner.

Features of Embark’s driver record monitoring platform include:

• 24/7/365 web-based access to DMV driver record information.
  The system is accessible via computer, tablet, or smartphone.
• Real-time motor vehicle record (MVR) notifications.
  Notifications of accidents, violations, suspensions, and other record changes reported to the DMV are available daily. Color-coded notification system.
• Green – no violations; the individual can drive on agency business.
• Yellow – violations exist; review to determine if the individual violates the agency’s acceptable driving record.
• Red – serious violations exist; the individual’s driving privileges should be immediately revoked.
• Violation decoding.
  Violations referencing the CA Vehicle Code are automatically decoded and presented in plain English.
• Driver management.
  Monitored drivers can easily be added or removed as needed.
• Pre-employment MVR checks.

Members should complete this short survey to sign up for the Embark driver monitoring service. An Embark Customer Success Manager will then assist with completing the sign-up process.

This program will be 100% funded by the Authority as a pooled cost. There are no direct, out-of-pocket expenses for members. Members are strongly encouraged to consult with their labor attorney to determine if the use of this program triggers an obligation to meet and confer with any affected bargaining units.

Please contact your regional risk manager if you have questions or want more information.

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Homeland Security Unveils State, Local and Cybersecurity Grant Program

First Application Deadline is Nov. 15; 80% Required Pass-Through to Local Governments

By Gerard Lavery Lederer, Partner; and Tillman L. Lay, Partner, Best Best & Krieger

Originally printed on September 20, 2022. Reprinted with permission from Best Best & Krieger.

The Department of Homeland Security (DHS) announced a notice of funding opportunities (NOFO) for a first-of-its-kind cybersecurity grant program created specifically to assist and protect state, local, Tribal [sic] and territorial information systems. This State, Local and Cybersecurity Grant Program (SLCGP) is part of the Infrastructure Investment and Jobs Act (IIJA) of 2021, and allows DHS to distribute $1 billion over 4 years to support projects. States must pass-through at least 80% of any funds they are awarded to local governments.

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Application Process & Timeline

• DHS issued a Notice of Funding Opportunity (NOFO) this month. All funding requirements and details can be found at that link. The first deadline is Nov. 15, 2022.
• Estimated total funding of $1 billion budget in 2022: $185,024,069
• Minimum award size: $500,000
• A total of 56 grants are anticipated — one for each state and territory.
• Only states and territories are eligible to apply for grant awards under the SLCGP. (The tribal grant NOFO has yet to announced.)
• Local entities receive sub-awards through their states. At least 80% of funds awarded to states must go to local governments, with a minimum of 25% of the allocated funds distributed to rural areas.
• Eligible entities can submit an application via Grants.gov. Applications appear to have two minimum requirements: creation of a state Cybersecurity Planning Committee and a completed state Cybersecurity Plan.

Key Requirements: Cybersecurity Planning Committee & Plan
The minimum requirements as stated in the State and Local Cybersecurity Improvement Act are a state-level Cybersecurity Planning Committee and a Cybersecurity Plan.

The Planning Committee will identify and prioritize statewide efforts, including identifying opportunities to consolidate projects to increase efficiencies through partnership with at least one representative from relevant stakeholders, including:

• The eligible entity;
• If the eligible entity is a state, then representatives from counties, cities and towns within the jurisdiction of the eligible entity;
• Public education within the jurisdiction of the eligible entity;
• Public health; and
• Rural, suburban and high-population jurisdictions.

The Cybersecurity Plan is a statewide planning document that must be approved by the Cybersecurity Planning Committee and the CIO/CISO equivalent, be updated in fiscal 2024 and 2025, and contain the following components:

• Incorporate, to the extent practicable, any existing plans to protect against cybersecurity risks and cybersecurity threats to state, local or territorial owner or operated information systems
• Demonstrate input from local governments and associations of local governments, and outline individual responsibilities of the state and local governments in implementing the Plan [sic]
• Include all required elements outlined in Appendix C of the NOFO
• Outline the necessary resources and a timeline for implementing the plan and summary of associated projects
• Outline metrics to measure progress

Next Steps
Local governments should contact their governor’s office to determine the status of the state’s application process and how their community’s needs are being factored into the state’s plan.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

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The Impacts of Senate Bill 1127 on Workers’ Compensation Claims

By Workers’ Compensation Program Manager, Jeff Rush

Governor Newsom recently signed Senate Bill 1127 (SB 1127) into law, despite the opposition of the California JPIA and employers throughout the state. The bill has several components that dramatically change how presumptive workers’ compensation claims are handled. These components are detailed below.

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Temporary disability-cancer claims

THEN: Employees with a presumptive cancer claim were limited to 104 weeks of temporary disability benefits (which is consistent with most injuries).
NOW: Employees with a presumptive cancer claim are now entitled to up to 240 weeks of temporary disability if their injury has not reached maximum medical improvement before that time.

Discovery for presumption claims

THEN: Employers were afforded 90 days to investigate most workers’ compensation claims.
NOW: Employers will be allowed 75 days to investigate a claim. These claims often involve significant discovery, such as a deposition, retrieval of prior medical records, and a comprehensive med-legal evaluation, so it will often be impossible to complete discovery in this shortened timeframe.

Increased penalties
The potentially most concerning aspect of SB 1127 is establishing a new penalty for claims that are “unreasonably rejected.” These penalties would be set at “Five times the amount of the benefits unreasonably delayed” with a limit of $50,000 per claim. This bill provision will likely increase litigation as injured employees and their attorneys pursue these potential penalties.

The California JPIA will be hosting a webinar on Thursday, November 10, from 10:00–10:45 a.m. to address the anticipated impact of SB 1127. Workers’ Compensation Program Manager Jeff Rush will host the webinar and will feature the following panelists:

• Demetra Geges Johal, Managing Partner, Laughlin, Falbo, Levy & Moresi
• Steve Siegel, Partner, Siegel, Moreno & Stettler
• Adam Dombchik, Managing Partner, Gordon, Edelstein, Krepack, Grant, Felton & Goldstein

There is no cost to attend this webinar. However, member agency staff interested in attending must complete a registration request on the event website.

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Rising Inflation Means Rising Minimum Wage in 2023

By Lauren S. Gafa, Senior Associate; and Amber S. Healy, Partner, Atkinson, Andelson, Loya, Ruud & Romo

Originally published on October 13, 2022. Reprinted with permission from Atkinson, Andelson, Loya, Ruud & Romo.

Due to a cost-of-living increase required by the State’s minimum wage law, effective January 1, 2023, California’s minimum wage will increase from $15.00 to $15.50 per hour for all employers, regardless of their number of employees.

California Labor Code section 1182.12 requires minimum wage to be increased by at least 3.5 percent, rounded to the nearest 10 cents, if the State’s rate of inflation exceeds 7 percent. The California Department of Finance is responsible for determining the rate of inflation and recently announced the rate of inflation increased to 7.9 percent, thus triggering the increase in minimum wage.

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California’s current minimum wage law was passed in 2016 and implemented a tier-based increase in the State’s minimum wage until it reached $15.00 per hour. Currently, the law requires that employers with 25 or fewer employees pay $14.00 per hour, whereas employers with 26 or more employees pay $15.00 per hour. The upcoming increase in minimum wage will affect all employers, regardless of their number of employees. Employers must also be mindful of any local minimum wage ordinances that may apply to their workforce and that require a minimum wage higher than the State’s minimum wage.

The increase of the minimum wage also impacts the minimum salary requirement for all exempt employees. California law provides exemptions from minimum wage and overtime requirements for employees employed as bona fide executive, administrative, and professional employees. To qualify for this exemption, one of the requirements is that the exempt employee is paid at least twice the minimum wage. The minimum salary threshold is tied to the State minimum wage, not applicable local minimum wage ordinances, so as of January 1, 2023, the minimum salary for an exempt employee will increase to $64,480.00.

Employers should prepare for the upcoming wage increase for their employees and the potential impact it may have on their business operations. If employers have questions concerning wage related issues they may contact the authors or their normal trusted counsel at AALRR.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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New Brown Act Provisions Allow Additional Process For Remote Meeting Attendance

By Thomas D. Jex, Partner, Burke, Williams & Sorensen, LLP

Originally published on October 4, 2022. Reprinted with permission from Burke, Williams & Sorensen, LLP.

AB 2449 amends the Brown Act to provide an additional procedure for members of legislative bodies to attend public meetings remotely. It will become effective on January 1, 2023.

Under this new law, members of a legislative body may attend public meetings remotely without identifying their teleconference site on the agency’s agenda or ensuring it is accessible to the public if the procedures below are followed.

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As long as a quorum of the legislative body participates in person from a physical location open to the public, the remaining agency members can participate remotely in two situations:

1. Just Cause
Just cause is defined as any one of the following:

• childcare or caregiving of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires a member to participate remotely;
• a contagious illness that prevents a member from attending in person;
• a need related to a physical or mental disability; or
• travel while on business of the legislative body or another state or local agency.

In order to participate remotely under the just cause provisions, the member must notify the legislative body at the earliest possible opportunity, including at the start of a meeting, of their need to participate remotely and provide a general description of the circumstances related to one of the four items above.

A member may only participate remotely under the just cause provisions up to two meetings per calendar year.

2. Emergency Circumstances
Emergency circumstances means [sic] a physical or family medical emergency that prevents a member from attending in person.

In order to participate remotely under the emergency circumstances provisions, the member must request that the legislative body allow them to participate in the meeting remotely because of emergency circumstances and the legislative body must take action to approve the request.

A member must make a request to participate remotely under the emergency circumstances provisions as soon as possible. The legislative body may take action on this request at the earliest opportunity. If the request does not allow sufficient time to place it on the agenda for the meeting for which the request is made, the legislative body may take action on the request at the beginning of the meeting by majority vote.

The legislative body must request a general description of the circumstances relating to the member’s need to appear remotely. This description does not have to be more than 20 words and the member does not have to disclose any personal medical information.

Additional Rules if Members Participate Remotely
If agency members participate remotely under this new law for either the just cause or emergency circumstances situations described above then the following rules apply:

• The legislative body must provide a way for the public to remotely hear, visually observe, and remotely address the legislative body, either by a two-way audiovisual platform or a two-way telephonic service and a live webcasting of the meeting.
• The legislative body must provide notice of how the public can access the meeting and offer comments.
• The agenda must identify and include an opportunity for the public to attend and directly address the legislative body through a call-in option, an internet-based service option, and in-person at the location of the meeting.
• The body cannot require comments to be submitted before the start of the meeting. The public must be allowed to make “real time” public comment.
• If there is a disruption to the meeting broadcast or in the ability to take call-in or internet-based public comment, no further action can be taken on agenda items until the issue is resolved.
• The legislative body must implement a procedure for receiving and resolving requests for reasonable accommodations for individuals with disabilities, and must give notice of these procedures.
• Members participating remotely must participate through both audio and visual technology.
• Members participating remotely must publicly disclose at the meeting before any action is taken whether any other individuals 18 years of age or older are present in the room at the remote location with the member and the general nature of the member’s relationship with the individual.
• A member may not participate in meetings solely by teleconference under this law for more than three consecutive months or 20% of the regular meetings for the public agency within a calendar year. If the legislative body regularly meets less than 10 times a year, a member may not participate remotely for more than two meetings.

Legislative bodies may still meet via teleconference by following the traditional Brown Act rules of identifying the teleconference site on the agency’s agenda and ensuring it is accessible for the public to attend. Further, legislative bodies may meet by teleconference under AB 361 until January 1, 2024 during the Governor’s proclaimed State of Emergency and as long as other requirements are met.

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