Issue 6-August 2012
Welcome to the 17th Annual California JPIA Risk Management Educational Forum
California JPIA Offers Scholarships to Attend the 17th Annual Risk Management Educational Forum
The City of Rosemead Gives “Back” to Employees
SB 1021: More Changes Required for Retired Annuitant Contracts
Modifications to the Fair Employment Housing Act
News: Worthy
Welcome to the 17th Annual California JPIA Risk Management Educational Forum
by Jonathan Shull, CEO
The Authority is committed to providing quality educational opportunities to its members. Over its 17-year history, the Authority’s annual Educational Forum has sought to bring together both local government officials and subject matter experts in order to listen, learn, and interact with each other.
The Executive Committee has approved waiving member Risk Management Educational Forum registration fees in recent years, largely to help those who would otherwise be unable to afford registration, but also to encourage greater overall participation by members. Given that many member agencies continue to impose restrictions on conferences and travel, the Executive Committee is pleased to announce the creation of a Risk Management Educational Forum Scholarship Fund. The purpose of the fund is to pay for Forum lodging for a limited number of member staff who can demonstrate significant need.
For 2012, the Authority has lined up an impressive masterpiece of speakers who understand today’s challenges, and are centered on the theme: The Art of Risk Management. Our legal and risk management experts will be there to present educational sessions including:
- The Fine Art of Risk Management
- Innovative Risk Leadership
- Liability Update Lessons Learned
- Employment Law
- Advanced Workers’ Compensation for Better Outcomes
- Success Stories in Risk Management
- The Elected Official’s Role
By now you should have received information about 2012 Educational Forum. If you have yet to register, I encourage you to consider attending the Educational Forum, which will be held at the Mark Hopkins Hotel in San Francisco, November 7 – 9, 2012.
There is no cost for member registration. Non-members may attend for the discounted early registration fee of $350. Accommodations at the Mark Hopkins are $199/night.
For more information and to apply for the scholarship, click here.
For more information or to register for the forum, click here.
News: Worthy
California JPIA Offers Scholarships to Attend the 17th Annual Risk Management Educational Forum
Registration is open for the California JPIA’s 17th Annual Risk Management Educational Forum: The Art of Risk Management, to be held November 7 – 9, 2012 at the Mark Hopkins Hotel in San Francisco. While there is no cost for member registration, the California JPIA is awarding a limited number of lodging scholarships for the Educational Forum in San Francisco.
To assist members unable to attend the forum due to financial limitations within their agencies, the Executive Committee has approved offering scholarships in the amount of $450 to cover hotel accommodations at the Mark Hopkins Hotel.
This is a competitive process, where those receiving scholarships will be deemed to be most deserving based on their stated desire to attend and their otherwise inability to attend. To be eligible to receive a scholarship, applicants must also:
- Be an employee of a member agency of the California JPIA
- Have supervisor or management approval to attend the forum
- Attend the forum in its entirety
- Be able to pay for any other travel related costs
Scholarship applications must be received by September 6, 2012. Chosen recipients will be notified by email on or before September 20, 2012.
For more information and to apply for the scholarship, click here.
For more information or to register for the forum, click here.
If you have additional questions, please contact Tammie Haller, Human Resources Manager, at thaller@cjpia.org
Re: Members
The City of Rosemead Gives “Back” to Employees
In an ongoing effort to provide for and protect its employees, the City of Rosemead is the latest member agency to hold an Ergonomic and Biomechanic training workshop offered by the California JPIA. Ergonomics addresses comfort, health and safety in the workplace and employs the discipline of biomechanics to improve workplace design and function. The California JPIA assists its members with training for office and field environments, plus special areas such as child care centers and recreation centers.
“We decided it was important to conduct the training due to a rise in the number of workers’ compensation injuries occurring from each of the respective departments,” said Kelley Kim, the Human Resources Specialist for the City. “We asked the California JPIA to create a training workshop that was customized to the departments’ needs.”
Attended by over 65 city workers from the Public Works, Parks and Recreation, and Public Safety divisions, the process began with an advance visit from instructor Dr. Mario Dominguez. Dr. Dominguez evaluated the working environment and the tasks required in each job, and then created training stations to reflect the various required tasks. The interactive exercise consisted of instructing and coaching employees on safe and proper posture and techniques. Participants rotated between stations and received individual evaluation and feedback from Dr. Dominguez.
“Dr. Mario Dominguez was very informative and hands-on in developing a training that our staff members were able to relate and engage in,” continued Kim. The feedback from staff members was very positive, so much so that they requested we conduct an ergonomics workshop two times a year.”
Backsafe® is an injury prevention program that teaches employees how to perform their specific jobs in a biomechanically correct manner. Specialized videos, active stretching and customized, job-based “Obstacle Course” workshops, break workers’ bad habits and replace them with proper body mechanics and self-management techniques.
What waits at the finish line of the challenge?
Reduced injuries, less absenteeism, minimized errors, maximized productivity, and healthier employees.
For more information about the Backsafe® program, contact your agency’s assigned training specialist.
Legal Matters
SB 1021: More Changes Required for Retired Annuitant Contracts
by Kelly A. Trainer and Katy A. Suttorp, Burke Williams & Sorenson, LLP
Historically, many CalPERS contracting agencies were able to provide for a smooth transition after departures of upper managers by contracting with retired annuitants under Government Code section 21221(h). Section 21221(h) had previously provided for the appointment of a retired annuitant for a limited duration to a position that required specialized skills or during an emergency to prevent stoppage of public business. However, earlier this year, AB 1028 took effect, amending section 21221(h), limiting its application to only the interim appointment of a retired annuitant while recruitment for a permanent appointee was conducted. That recruitment would need to be for a position that required specialized skills or during an emergency to prevent stoppage of public business. In addition, AB 1028 made clear that the compensation received by the retired annuitant could not exceed the “maximum published pay schedule for the vacant position.” Further, AB 1028 provided that the contracting agency “shall appoint a retired person only once under” section 21221(h). Finally, while section 21221(h) had always had a 12-month limitation on appointments, employers would often work around that by re-hiring employees under the related Government Code sections 21224 or 21229. AB 1028 now prevents employers from that practice.
Complicating matters further, on June 27, 2012, the Governor enacted SB 1021 entitled “Public Safety” taking effect immediately by its terms. Buried in legislation dealing with a variety of administrative matters such as establishing a $20 fee for attorneys wishing to appear by telephone in civil litigation, are significant changes to section 21221(h). Importantly, SB 1021 imposes three major changes on the content of contracts entered into with retired annuitants hired under section 21221(h).
First, the salary of the retired annuitant is now subject to a codified formula. Specifically, section 21221(h) provides that the salary “shall not exceed the maximum monthly base salary paid to other employees performing comparable duties as listed on a published pay schedule for the vacant position divided by 173.333 to equal an hourly rate.[1]
Second, the law now provides that a retired annuitant appointed pursuant to section 21221(h) “shall not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate.[2] CalPERS has yet to provide any additional guidance on the meaning of this provision, although CalPERS recently contacted some employers to advise of the passage of SB 1021 and of CalPERS’ intent to issue a circular letter on the matter in the coming months. However, the plain language of the section states that a retired annuitant cannot receive any benefits, which would include many benefits that are commonly found in interim employment contracts, such as paid sick leave, cellular phone stipends, and automobile allowances.
Third, where section 21221(h) had previously permitted the governing body of an agency employing a retired annuitant to obtain approval of an extension of temporary employment beyond 960 hours in a fiscal year from CalPERS, SB 1021 has removed that possibility. Section 21221(h), now provides that a retired annuitant appointed under section 21221(h) shall not work more than a combined total of 960 hours in any fiscal year, regardless of whether he or she works for more than one agency.[3]
For those agencies that do not currently employ any retired annuitants under section 21221(h), these changes will need to be reflected in any future contracts. However, a number of agencies have contracts currently in effect that are now in conflict with section 21221(h) – particularly the provisions regarding salary determination and fringe benefits. Neither the language of the bill nor the committee analysis provides any guidance as to the applicability of SB 1021 or its consequences for a contract currently in place. Notably, the bill does not expressly provide for any grandfathering of preexisting contracts or for a reasonable time period to come into compliance with the new legislation. The consequences of violating section 21221(h) involve at minimum, loss or interruption of retirement benefits, and at worst, reinstatement of the retired annuitant to the CalPERS system, which carries a cost to both the retired annuitant and to the employing agency.
We would advise that agencies immediately review their contracts with retired annuitants to determine if there are provisions that may now place the status of the retired annuitant in jeopardy and consult experienced legal counsel.
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[1] Public employers should be aware that SB 1021 also revised section 21224, which applies to the employment of a retired annuitant either during an emergency to prevent stoppage of public business or because the retired person has specialized skills needed in performing work of a limited duration. Retired annuitants employed under section 21224 are also subject to the same salary formula as those employed under section 21221(h).
[2] This prohibition was also added to section 21224.
[3] This hours limitation was also added to section 21224.
The Court Report
Modifications to the Fair Employment Housing Act
by Tammie Haller, Human Resources Manager
The Fair Employment and Housing Act (FEHA) prohibits harassment and discrimination in employment because of race, color, religion, sex (gender), sexual orientation, marital status, national origin (including language use restrictions), ancestry, mental and physical disability, medical condition (cancer/genetic characteristics), age (40 and above), pregnancy, denial of medical and family care leave, or pregnancy disability leave and/or retaliation for protesting illegal discrimination related to one of these categories or for reporting patient abuse in tax supported institutions.
On June 28 Gov. Edmund G. Brown, Jr. modified the Fair Employment Housing Act by signing into law Senate Bill 1038. To eliminate duplication and maximize efficiency, SB 1038 will modernize and take enforcement of the FEHA to a new level by:
- Eliminating the Fair Employment and Housing Commission effective Jan. 1, 2013;
- Creating within the Department of Fair Employment and Housing (DFEH) the Fair Employment and Housing Council, with seven members to be appointed by the governor, confirmed by the Senate, staffed and funded by the DFEH, to promulgate regulations. The DFEH Director will serve as a nonvoting ex officio member of the council;
- Allowing DFEH to file cases directly in court. Prior to filing a civil action, DFEH will require all parties to undergo mandatory dispute resolution in the department’s internal dispute resolution division, free of charge to the parties;
- Authorizing courts to award DFEH reasonable attorney fees and costs, including expert witness fees if the department is successful in its litigation. The DFEH will use the attorney general’s $170 per hour rate as its fee basis; and
- Creating a special fund for the deposit of awarded attorney fees and litigation costs, to be appropriated by the Legislature to offset the costs of the department.
For more information about the DFEH and the FEHA, click here.
Risk Management Solutions
BMX Bikes and Skate Parks
by Bob May, Senior Risk Consultant
Build it and they will come. When cities embarked on creating skate parks for skateboarders in their communities many did not contemplate that others would want to use it for activities other than skateboarding, thus fueling a debate over who should be allowed to utilize the facility. Recently, city officials have been struggling with the idea of permitting BMX bikes including scooters to utilize the skate park facilities. This has produced conflicts between the groups.
Under existing California law, cities enjoy certain immunities for unsupervised skate park facilities. These immunities remain as long as cities comply with the requirements of the California Health and Safety Code 115800 as it relates to the operation of skate parks. The code does not afford the same immunities for BMX bikes or scooters. When a city deviates from the statutory requirements the lines become blurred.
Skate parks are generally designed for single use purpose. The determination of use is vested with the design professional. There are separate inherent designs standards for each group that the design professional takes into consideration when designing a facility. Cities accommodating the use of the facility other than what it is designed for creates a liability for the cities and may erode the defined immunities. It creates the potential for a finding of dangerous condition of public property, per Government Code section 835. Permitting BMX bikes or scooters within the skate park could ultimately become an act of negligence against the city for allowing the use and creating the condition.
Recently, the cities of San Clemente and Moorpark made the decision to keep their skate parks as single use skate parks and not allow BMX bikes or scooters. Since, such use absent the proper design or controls would have the potential of resulting in significant injury to either rider. Most if not all riders absent sound supervision fail to wear proper protective equipment. The cities utilized one of the membership benefits of the Authority and made their decisions after consulting with their risk consultants. The decisions were based on liability and the eroding of governmental immunities.
Authority members who allow or are considering mixed use of their skate parks are encouraged to contact their agency’s assigned risk consultant.
Risk Management Solutions
Outdoor Heat Exposure
by Bob May, Senior Risk Consultant
Working outside in Southern California this week and throughout the summer months is a tough assignment. With the blistering heat exacerbated by uncharacteristic humidity, imagine spending your day chipping away at concrete with a jackhammer, paving and sealing a street, or landscaping the city park.
Site workers on outdoor worksites must cope with the daily risk of heat illnesses ranging from heat rash, to heat cramps, to heat exhaustion and heat stroke. These conditions are more than uncomfortable — they can be life threatening.
Cal/OSHA currently offers a set of standards governing conditions in hot work environments they are: Training, Water, Shade, and Planning. Agencies are required to have a heat prevention program in place including having site managers familiarize themselves with the signs of heat illness and act quickly and decisively to protect their worksite team.
Following is from OSHA’s webpage “Campaign to Prevent Heat Illness in Outdoor Workers.” OSHA has developed this webpage to provide workers and employers useful, up-to-date information on occupational heat exposure.
For more information about OSHA’s “Campaign to Prevent Heat Illness in Outdoor Workers, click here.
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Campaign to Prevent Heat Illness in Outdoor Workers
HEAT ILLNESS CAN BE DEADLY. Every year, thousands of workers become sick from exposure to heat, and some even die. These illnesses and deaths are preventable.
This website is part of OSHA’s nationwide outreach campaign to raise awareness among workers and employers about the hazards of working outdoors in hot weather. The educational resources page gives workers and employers’ information about heat illnesses and how to prevent them. There are also training tools for employers to use and posters to display at their worksites. Many of the new resources target vulnerable workers with limited English proficiency. OSHA will continue to add information and tools to this page throughout the summer.
OSHA is also partnering with the National Oceanic and Atmospheric Administration (NOAA) on weather service alerts. NOAA’s Heat Watch page now includes worker safety precautions when extreme heat alerts are issued.
We invite you to join in this effort by helping to reach workers and employers in your community with the resources you will find on this site.
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Who is affected? Workers exposed to hot and humid conditions are at risk of heat illness, especially those doing heavy work tasks or using bulky protective clothing and equipment. Some workers might be at greater risk than others if they have not built up a tolerance to hot conditions.
What is heat illness? The body normally cools itself by sweating. During hot weather, especially with high humidity, sweating isn’t enough. Body temperature can rise to dangerous levels if precautions are not taken. Heat illnesses range from heat rash and heat cramps to heat exhaustion and heat stroke. Heat stroke can result in death and requires immediate medical attention.
How can heat illness be prevented? Remember three simple words: water, rest, shade. Drinking water often, taking breaks, and limiting time in the heat can help prevent heat illness. Employers should include these prevention steps in worksite training and plans.
Gradually build up to heavy work in hot conditions. This helps you build tolerance to the heat — or become acclimated. Employers should take steps that help workers become acclimated, especially workers who are new to working outdoors in the heat or have been away from work for a week or more. Gradually increase workloads and allow more frequent breaks during the first week of work.
Also, it’s important to know and look out for the symptoms of heat illness in yourself and others during hot weather. Plan for an emergency and know what to do – acting quickly can save lives!
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