Friday, January 31, 2014

Labor laws - the not so fine print

Our friend Garret Murai has posted a great case that has to do with labor and, get this, a BOND!  We love bonds.  But it’s an appeal bond, which we don’t do.  But we don’t care.


Still, it’s a nice reminder of the ins and outs of labor laws.




The Not So Fine Print


by Garret Murai


magnifying-glass-realdemystifying-seo-lixnhxncIt seems like there’s been a lot of labor law news lately. From theCalifornia Labor Commissioner’s crackdown on labor law violations this past year to new labor law-related legislation this year.


And here’s another.


In a decision decided last month, the California Court of Appeals for the First District, in Palagin v. Paniagua Construction, Inc., Case No. A137754 (December 16, 2013), reversed a trial court which had permitted a contractor to appeal an adverse Labor Commissioner decision without first posting an appeal bond. Tsk, tsk.


Background


The case began when welder Igor Palagin filed a wage claim with the California Labor Commissioner alleging that he was an employee of Paniagua Construction, Inc. (“Paniagua Construction”) and Alfred Martinez and that they had failed to pay him. On June 20, 2012, the Labor Commissioner issued a decision in favor of Palagin and against Paniagua Construction and Martinez and awarded him $34,259.32.


Thereafter, on July 6, 2012, Paniagua Construction and Martinez filed a notice of appeal with the San Francisco County Superior Court. However, they failed to post an appeal bond within 10 days of the Labor Commissioner’s decision as provided under California Labor Code section 98.2.


Palagin in turn filed a motion to dismiss the appeal.


On August 7, 2012, 49 days after the Labor Commissioner had issued its award, the trial court granted Palagin’s motion but extended the 10-day deadline under Section 98.2 for Paniagua Construction and Martinez to post an appeal bond through September 6, 2012.


Paniagua Construction and Martinez ultimately posted an appeal bond, and on re-trial the Superior Court reversed the Labor Commissioner finding that Palagin was not an employee of either Paniagua Construction or Martinez and was instead “a subcontractor.”


Palagin appealed.


The 10-Day Deadline to Post an Appeal Bond is “Jurisdictional” not “Directory”


On appeal, the First District Court of Appeal framed the issue as whether the 10-day deadline under Section 98.2 is jurisdictional or directory. If jurisdictional (read: mandatory), Paniagua and Martinez were required to post an appeal bond within 10 days of the Labor Commissioner’s decision, and their failure to do so, barred their appeal. If merely directory (read: strongly suggested but not necessarily mandatory), the trial court could (as it did) extend the deadline for Paniagua and Martinez to post an appeal bond beyond the 10-day deadline.


The Court, looking at the language of Section 98.2, the legislative history of the section, and considering the public policy behind the section, found that the 10-day deadline to post an appeal bond under Section 98.2 was jurisdictional not directory.


Looking first at the language of Section 98.2, which provides that “[a]s a condition to filing an appeal pursuant to this section, an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award,” the Court held that it was clear that “[an] employer must post the undertaking before it files its notice of appeal[ ] and no later than 10 days after service of the Commissioner’s order” (emphasis added).


Moreover, held the Court, when section 98.2 was last amended, it was amended in response to an earlier court decision in Progressive Concrete, Inc. v. Parker, 136 Cal.App.4th 540 (2006) which had found that the former section’s deadline was directional rather than jurisdictional.


And, finally, held the Court, one of the public policies behind Section 98.2 is to require the posting of an appeal bond to “discourage[] employers from filing frivolous appeals for purposes of delay (at least without an undertaking) and minimizes the time in which an employer might hide assets.”


Conclusion


The moral of the story here is: Make sure you follow every statutory requirement. Every section, every sentence, every word. Because while one court might give you a break, another (higher court) may well not.



Labor laws - the not so fine print
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Thursday, January 30, 2014

From our friends at Fall Protection Blog comes a nice article on warning lines.  As most of you have been able to see over the years, these lines are readily ignored.  Given our knowledge of human nature, can we then assume that the warning line is enough?  




When is a Warning Line Sufficient Fall Protection?


When is a Warning Line Sufficient Fall Protection?


There is one quick and simple answer to the question, “When is a warning line sufficient fall protection?”


Never!


To be clear, that does not mean that a warning line does not have its applications or that it does not, at times, achieve regulatory compliance, but it certainly will never serve as fall protection.  The best a warning line system is going to do is keep you in an area that prevents you from being exposed to a fall – if set up properly.  The problem is that warning lines are not always set up properly.  Sometimes, they are placed directly at the edge of a building.  Should somebody stumble, there’s nothing a warning line at the edge of the building is going to do to stop them from falling.


Proper Warning Line Practices


Let’s focus on when a warning line is acceptable and how it should be properly set up to eliminate fall exposure.  Warning lines are most often associated with roof work.  That is because, for the most part, that’s where their use is allowed – specifically low-slope roofs (4 to 12 or less, vertical to horizontal).  This does not mean HVAC guys working on a roof or electricians or other maintenance personnel, this means roofing work:  the actual laying, tearing up, or repairing of roof membrane.


For all other type of work that happens to take place on a roof, proper fall arrest or prevention must be utilized – as far as the regulations are concerned.  However, as safety professionals, it is important to go beyond the regulations to ensure that other criteria have not been established by letters of interpretation.  In this instance, some have.  The most recent can be found here: Use of a warning line instead of conventional fall protection; Part 1926 Subpart M.


This letter reiterates the fact that only roofers can utilize a combination of warning line and safety monitor (to be discussed further below).  All others, even in situations where they may be working alongside roofers, must use conventional fall protection or prevention means.  OSHA states that no distance from the edge is a “safe” distance, however, they will consider a warning line for work other than roofing work a de minimis violation if:


  • It meets all of the requirements of 1926.502(f)(2)

  • It is set 15’ from the edge

  • No work is to take place between the warning line and the roof edge, and

  • A work rule is established to ensure nobody leaves the confines of the warning line

The Necessity of the Safety Monitor


Now that we’ve clarified the exception to the rule, let’s look at the rule itself.  A warning line is acceptable in certain roofing situations on low slope roofs.  One of the most overlooked parts of this regulations is, in my experience, that a warning line alone is unacceptable.  It must be used in conjunction with a safety monitor, rails, nets, or personal fall arrest systems.  The regulations actually allow for the use of only a safety monitor in one situation (a roof 50-feet or less in width) but make noallowance for the use of warning lines alone.  Even when a company remembers to include a safety monitor, the monitor is often unacceptable because they are doing other work that takes them away from their monitor duties or they cannot readily communicate with or see everybody on the roof.  Companies sometimes find it very difficult to pay a person to “do nothing”, but as a safety professional it is important to get that company to understand that not only are they required to do it, but that the worker is actually (or SHOULD actually be) doing something: actively monitoring the workers for unsafe situations.


In addition, warning lines must be set up at least 6’ from the edge on all sides of the work.  Should mechanical equipment be in use, then the line must be 10’ from the edge which is perpendicular to the equipment’s line of travel.  In other words, if your equipment is heading toward an edge, the line must be 10’ back from that edge.


Working Beyond the Line


If you’ve got adjacent support areas that are not directly inside your work area, they must be connected to your work area by a path made of two warning lines.  At no time should your workers be walking on a roof with no warning line between them and an edge, unless they are the workers specifically designated to work between the warning line and the edge.  At one time, it simply may have been acceptable to say that there was no way a worker performing roofing work at the edge of a roof could have fall protection, but there is so much technology available today that this is often not the case.  There are free-standing rails, parapet clamp rails, weighted stands, and fall protection carts available that should be put into use whenever possible.  Of course, not all situations have a solution, which is why the regulation allows for a roofing worker to work outside of the warning line without any means of fall protection.


Warning Line Criteria


Your warning line, itself, must also meet certain criteria.  You cannot just spray-paint a line on the ground, for instance.  A warning line must consist of ropes, wires, or chains with supporting stanchions.  The line must be flagged with high visibility material every 6 feet or less and must remain completely between 34” and 39” from the walking/working surface.  The stanchions must be able to withstand being tipped by 16 lbs. of pressure 30” off the walking/working surface and the line must have a minimum tensile strength of 500 lbs.  The line must also be attached in such a way that pulling it in one section does not affect other sections.


As you can see, there is a lot to consider, yet so many times a warning line is thrown up as a dog-and-pony show.  Perhaps these contractors don’t really understand the rules.  Perhaps they do, but feel that nobody is going to bother to come up to check on their setup.  Regardless of the reason, their employees are in an equal and very real amount of danger.




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Monday, January 27, 2014

A great list of resolutions to improve in the new year!

A big thanks to Mark Cobb on his post on resolutions to improve during the new year.


My favorite: resolving to update your information for credit in the new year (of course that’s our favorite).


See the full post here: New Years Resolutions for Contractors and Suppliers


Posted in Practical Tips by Blue Blog on the January 24th, 2014






Best Practices for Georgia Contractors and Suppliers


 


by Mark A. Cobb


Welcome to the new year!  It’s January and that means there are new-years resolutions being made in great abundance.  Self-improvement is always a good idea, but January can also be used to break bad business habits and replace them with better practices.  Thus, we hereby offers our New Year’s Resolutions for the construction industry:


  • RESOLVE to have your construction contracts reviewed and revised to improve their enforceability, to properly shift risks, and better define a project’s scope

  • Georgia General Contractors should RESOLVE to file proper Notices of Commencement on every construction project

  • Third-tier subcontractors and suppliers should RESOLVE to timely send Notices to Contractors and Notices to Owners (NTOs)

  • RESOLVE to use only Georgia’s statutory Interim Lien Waiver form and Final Lien Waiver form (they waive payment bond claims too!)

  • RESOLVE to remember that if you wait more than 60 days from the date of a Georgia lien waiver, the lien waiver becomes unconditional which means that you cannot recover the money you are owed

  • RESOLVE to work harder as today’s construction market place requires the best of each and every individual

  • RESOLVE to give your construction attorney time to prepare and file your Georgia mechanics and materialmen’s liens

  • Suppliers and materialmen should RESOLVE to update their credit applications and obtain more information which is useful to judgment collection

  • Non-resident contractors working in Georgia should RESOLVE to register with the Georgia Department of Revenue and obtain their sales tax bond

  • RESOLVE to purchase (and maintain!) all pertinent types of insurance including workers’ comp, general liability, an umbrella policy, automobile insurance, etc.

  • RESOLVE to address issues on construction projects as soon as you become aware of them rather than letting a small issue snowball into a larger problem

  • RESOLVE to pay your bills on time

  • RESOLVE to submit accurate, signed pay apps

  • RESOLVE to treat your employees and subordinates (well, everyone) the way that you want to be treated

  • RESOLVE to implement (and maintain!) better bookkeeping & record keeping methods

  • For plumbers (others?), RESOLVE to cover-up that plumber’s butt

  • RESOLVE to implement technology to lower your cost and improve your efficiency

  • RESOLVE to keep signed, daily construction logs

  • RESOLVE to know your rights as a prime contractor, a specialty subcontractor, or as a material supplier

  • Contractors and specialty sub-contractors should RESOLVE to promptly pay their subcontractors and suppliers after they receive payment

  • RESOLVE to adopt a policy of integrity for every aspect of your business

  • RESOLVE to become more active in any number of great contractor groups such as AGC (Associated General Contractors), ASA (American Subcontractors Association), or CSA (Construction Suppliers Association)

  • RESOLVE to honor your business contracts

  • RESOLVE to stop procrastinating

  • RESOLVE to constantly strive to be your best

  • RESOLVE to take a vacation and relax

  • RESOLVE to improve the professionalism of the construction industry


A great list of resolutions to improve in the new year!
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7 Ways to Save on Safety

Dan Wampler at Simplified Safety has posted a really nice articles on how to save – while being safe.


Now, I argue that the risk associated with safety and the related legal costs are almost always underestimated by contractors/firms/management.  The occurrences happen more frequently than people believe and are more severe than thought.  Many companies use historical data – which is the exact wrong data to use.  That’s because the historical data is almost always skewed.  For example, let’s assume the standard number days between accidents is, say, 180 days.  For a company that hasn’t had an accident for 200 days, they would assume that they have little to no risk of an accident.  The better analysis is that they’re overdue.


Enjoy.


 


Seven Ways to Save on Safety


Seven Ways to Save on Safety


In this economic climate, saving money is of utmost importance. However, when it comes to safety


  • How do you economize without sacrificing your employee’s wellbeing?

  • How can you develop and maintain a great culture of safety while still focusing on the bottom line?

This is a tightrope walk that every safety professional has to manage – even in a good economy. Many of the ways that you can save money are focused on long term goals, rather than short term savings. Short fixes may help meet this month’s budget, but will leave you facing the same issues next month, next year, etc… A combination of short and long term solutions should leave you moving in the right direction today, while helping you obtain future goals within budgetary constraints. Here are a few ideas that should point you in the right direction:


1. Keep a Close Eye on the Lifetime Cost of Your Safety Solution


In addition to the purchase price you need to consider the following costs


  • maintenance how much time do I need to spend taking care of this product?

  • training how much training time is required to use this product?

  • usage how much time does it take the worker to use this solution (e.g. setup, tear down)?

  • productivity how is the workers efficiency effected by the solution?

 


Option A Inexpensive Harness and Anchor Point. ($)


Purchase the least expensive fix for a fall protection hazard: This usually means an inexpensive penetrating anchor point, a low end harness, and a simple lanyard. You may, depending on your scenario, be able to spend only a couple hundred dollars “fixing” the solution.


However, what is the “lifetime cost”?


  • First of all, that penetrating anchor point will need to be installed (time).

  • It will also need to be maintained to ensure that leaks don’t form at the penetrations (time).

  • The lanyard that you purchased may be suitable for that anchor point, but it is a fixed length that will restrict its usability on other/future scenarios – leaving you in a position to have to purchase other solutions in the future (time and money).

  • Lastly, that “cheap” harness that you purchased may be OSHA or ANSI compliant, but does it allow the worker to move efficiently? Because there is no elasticity to the harness, the worker may be uncomfortable, have a limited range of motion, and perhaps even wear the harness too loosely – potentially causing injuries that could have been avoided.

In total, you saved money on the initial purchase, but will have these additional costs:



Cost:


  • Required daily inspections,

  • workers working slowly,

  • required maintenance,

  • limited re-usability,

  • training and retraining,

  • greatest risk of injury, and

  • high insurance costs.

  • There is also a management cost – keeping log books up to date, documenting training, verifying proper use, etc…

  • Lastly, these products do not last forever – most have a maximum lifespan of 5 years or until they fail a daily inspection – whichever comes first. Less expensive products typically wear faster than their higher quality counterparts.


Option B Non Penetrating Anchor Point and a High End Harness ($$)


Purchase a “better” fix for a fall protection hazard. This time, you purchase a non-invasive anchor point (one that does not penetrate the roof, steel, or concrete – and can be reused), a rope-grab lifeline (an adjustable lifeline that can keep you from reaching the roofs edge), and a comfortable, mid level harness. This option, depending on your scenario, may be only slightly to significantly more expensive.


However, what is the “lifetime cost”?


  • First of all, your anchor point will not need to be maintained – only inspected.

  • Your lifeline will give workers tremendous flexibility on the distance they want to be able to move from the anchor point. This will provide flexibility for use in many different scenarios, as well as allowing workers to limit their ability to reach the fall hazard – thus preventing them from ever taking a tumble in the first place.

  • The harness will allow for increased comfort and motion. This will translate into a faster worker who has a better range of motion, and will wear the harness tighter (which is safer) – not to mention he/she will be more content complying to your safety standards.

In total, you spent more money, but reduced “lifetime costs”.



Cost:


  • daily inspections,

  • training,

  • moderate insurance costs,

  • and moderate working speed for employees.

  • You will also still have the same management responsibilities as the cheaper solution, but will hopefully not need to spend as much time verifying proper use and encouraging workers to wear equipment properly.



Savings:


  • Workers will work faster,

  • increased flexibility with other/future sites,

  • lower risk of injury, and lower insurance costs.

  • Also, workers will be happier and more interested in the safety culture that you are trying to build.


Option C Install a Passive Guardrail Solution ($$$)


Purchase the “best” fix for a fall protection hazard. This time, you purchase a railing system (non-penetrating if possible). Out of pocket costs will probably be highest with this option, but lifetime costs will be lowest. This is by far the safest solution for most scenarios and will take the least amount of thought and energy once installed. This option eliminates the need for daily inspections, training, and worker interaction. Simply put, a worker will not need to think about the fall hazard at all. Let’s look at the cost vs. savings for this option:



Cost:


  • If you purchase a lower end railing (one that is not galvanized or penetrates the surface), you will have some maintenance costs.

  • No matter what type of railing you purchase, You will also need to inspect the railing yearly.



Savings:


  • Workers in this scenario will work fastest and be unencumbered.

  • Almost no management responsibilities, training, or maintenance (again, if you purchased a good railing).

  • Your insurance costs will be lowest and you will have the lowest potential for injury.

  • Workers will appreciate not needing to navigate fall hazards – because the hazards will already be prevented.

  • There are also ways to save on the initial purchase – we will cover that later.


2. Evaluate the longevity of safety options.


How long will the system that you purchase last? At what point will it need to be repaired/replaced? This will require that you evaluate what materials the products are made from, potential job site damage, and expected lifespan. Here are some examples:


Product Material


A galvanized railing will last longer than a powder coated, non-galvanized railing. A roof anchor that is galvanized will last longer than one that is not galvanized. A wire retractable will last longer than a webbing retractable. A railing that uses galvanized pipe fittings instead of weld points will be far less susceptible to rust – and yes, last longer.


Potential Job site Damage


Railing will typically take abuse much better than other fall protection products, but still need to be chosen wisely. For instance, railing that will be near heavy machinery or the lifting path of a crane, may become damaged. If the railing was welded, the cost of repairs may be significant. If it was a modular railing, the expense can be minimal.


Another example to consider: products made out of webbing (harnesses, some lanyards, some anchor points) will show wear much more quickly than products made out of metal. A webbing retractable or lanyard may be a less expensive option than a stainless steel cable, but will it stand up to the conditions on your job site over the course of the time?


Here are some questions you may want to ask:


  • Will the unit potentially be walked on? Will it be used by or around welders?

  • Are there corrosive substances that may come into contact with the fall protection?

  • Will it be rubbing against any abrasive surfaces?

Questions like these should lead you towards choosing the right material. On the same note, evaluate how the worker will view the particular safety equipment that you provide for him. If you purchase the cheapest harness you can get your hands on, it will probably end up being tossed in the back of a pickup truck with other tools. If you get one that is more comfortable, it may actually find its way to a hook or hanger.


Expected Lifespan


Most active fall protection – harnesses, lanyards, retractables, anchor points, lifelines, etc… have a maximum manufacturer’s lifespan of 5 years from the date that the unit goes into service (note the tag that is on almost every piece of equipment). However, some units require extra attention. For instance, most retractables have a 5 year life span, but need to be recertified every 2 years. Vacuum anchor systems typically need to be re-certified once a year. On the other hand, railing will have the longest potential lifespan. A galvanized, modular railing system – with no weld points or ground penetrations – may last 20, 30, 40 years or more.


By purchasing with longevity in mind, you can save significant costs in the long run.


3. Look for alternative purchasing options.


Are there ways to purchase a better system without compromising your cash flow? Some companies have the ability to lease products to you. For example: let’s say that you want to purchase a large railing system for a few roofs at your facility. The cost of the railing is 50k. Budgets are tight, so releasing that much cash right now is difficult or impossible. However, leasing the railing over 5 years will allow you to pay a small amount out of your safety budget every month and provide your company with a valuable write off for 5 years. Unlike a bank loan, leasing typically expands your financial resources while offering better terms than a bank can offer you. At the end of the term you will end up owning the products to keep your works safe – without compromising the commodity that is of utmost importance right now: cash.


4. Take advantage of monthly specials and quantity discounts.


Whenever purchasing, ask if there are discounts for purchasing at certain levels. If you work for a larger company with different branches, or even simply know others in the safety industry, network with others to purchase together. Safety supply companies will appreciate the opportunity to expose themselves to other branches/companies and you will potentially save money by purchasing in a larger quantity than usual. Think of it as a co-op for safety.


5. Open yourself to new ideas.


The safety industry has evolved tremendously in the past few years. New technology is constantly being introduced to both the construction industry and general industry. Whether it is new products or old products made safer, lighter, or more user-friendly, there are many opportunities out there for you to streamline and save. Present the specifics of your job site/facility to a safety consultant and see if there are other products out there that you could be using. It is amazing how often people are using the wrong product for the job, or simply using the right product incorrectly. Using the right product for the job will at least make the job safer and more efficient – which is always less expensive than the alternative.


6. Consider alternative building products.


Think outside the box when planning a project. This may mean outsourcing what you would normally do in-house, or doing in-house what you would normally outsource. Let me supply a couple of examples:


Example A


Let’s say that you want to build a railing. The “typical” way to build a railing would be to hire a welder/fabrication shop to make one for you. This is true because not every business has a fabrication shop to produce their own, nor does every company have the skilled labor necessary to put it together. One alternative would be to produce a “non-welded, modular railing.” Most modular railings will have the same strength of a welded solution, but require none of the skilled labor, permits, planning, time, or tools that a welded rail would need. This often will save you money up front, and it will allow you keep all of the labor expenses in house.


Example B


Let’s look at the other side of the same coin. On any job site (both in the general and construction industry), you have a pretty good chance of spotting a “homemade” fall protection solution. From a piece of rope purchased at the local hardware store that is now tied to someone’s harness, rebar that was bent to make an anchor point, to a flag line that looks like it was stolen from a used car dealer. I am sure you have seen (and maybe constructed) a non-engineered safety solution. Not all of them are ridiculous, but they all share one thing in common: you take all of the liability of a workers life on your shoulders. Engineered safety solutions absorb the liability of the hazard for you – as long as they are used properly. This is both safe, and keeps money in your pocket. First of all, insurance companies love them – which means lower premiums. Secondly – OSHA loves them – which means lower (hopefully no) fines. As a bonus, in an effort to protect themselves and you, manufacturers also overbuild most solutions to make certain that no one will be hurt because one failed.


7. Organize your safety department.


7 Ways to Save on Safety
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Tuesday, January 14, 2014

So How do You Choose the Right Bond Agency?

While most surety bond companies do not offer up surety bonds directly to smaller contractors, you can get a surety bond through a specialty agency. These agencies handle the sale and customer service explanations of surety bonds. Picking the right agency for you is very important as going with the wrong agency could end up costing you money – as well as delay the amount of time that it takes you to receive a surety bond for your project. Here are some of the things to consider when you are trying to find the right bond agency.

commercial surety bonds


1. The price of bonds through an agency: most customers generally go with the agency that can offer them the best possible price on the cost of the surety bond. Make sure that you inquire at a few different agencies to see the differences in surety bonds that are offered. Finding an agency that has different surety companies can help you to find the lowest price on a surety bond. Different agencies may also have exclusive bond programs that can help to save customers money.

2. Industry experience: it’s always important to go with the surety bond agency that has extensive experience in the industry. Make sure that you find an agency that is easy to speak to and can answer all of your questions. Having the answers available to you can help you avoid unnecessary delays and can prepare you so that you can have everything in order when you want to purchase your surety bond. Picking an agency that has lots of industry experience will ensure that they have handled a similar case to yours so that the process will be simple to get through.

3. Great customer service: an agency with great customer service will be able to cut down on the amount of time that it takes you to get a surety bond. This is because they can offer up specialty surety bond insurance, simplify the application process for you and provide you with very quick approvals for your surety bond.

These are just a few of the ways that you can find the right bond agency for you.

For Original Blog you can visit our website @

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