The federal Fair Labor Standards Act forbids an employer from firing a worker because he filed a complaint accusing the employer of violating the law. It doesn’t say whether the employee’s complaint must be in writing. What if the worker complains verbally but never makes a written complaint? Does the FSLA’s prohibition against firing him still apply? That was the question the U.S. Supreme Court faced in a case it decided in March 2011.
Kevin Kasten, following the instructions in the employee handbook, told his supervisor that the location of the company’s time clocks might be illegal because it prevented workers from getting credit for the time they spent putting on and removing their protective work gear. (The FSLA requires employers to pay workers for this time.) Getting no response from his supervisor, he also complained to human resources staff and told them that he was contemplating a lawsuit. Eventually, the employer fired him. He claimed that he was fired for complaining about the location of the time clock; the company said it was because he repeatedly failed to punch in and out on the clock despite several warnings.
Kasten sued the company for illegal retaliation. The trial and appellate courts, while accepting his version of what happened, ruled in favor of the employer. The FSLA, they said, requires employees to make written complaints to their employers about possible violations, but Kasten made all his complaints verbally. Kasten appealed to the U.S. Supreme Court, which ruled in his favor.
Writing for the six-justice majority, Justice Stephen Breyer said, ” … (A)n interpretation that limited the provision’s coverage to written complaints would undermine the (FLSA’s) basic objectives … Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated or overworked workers?” He also noted that the federal Department of Labor has for decades held that the law’s requirements include oral complaints, even going so far as to set up hotlines for employees to make complaints.
Moreover, Breyer pointed out that other laws, regulations and court decisions have used the word “filed” in connection with oral complaints. He particularly noted that court decisions at the time Congress enacted the FLSA used “filed” with oral complaints. “Filings may more often be made in writing … But we are interested in the filing of ‘any complaint.’ So even if the word ‘filed,’ considered alone, might suggest a narrow interpretation limited to writings, the phrase ‘any complaint’ suggests a broad interpretation that would include an oral complaint.”
Justices Antonin Scalia and Clarence Thomas disagreed (Justice Elena Kagan recused herself from the case). In a dissenting opinion, Scalia argued that the FSLA forbids discrimination against a worker if that worker has filed a complaint with a government agency. He pointed out that every other use of the word “complaint” in the FSLA refers to an official filing with a government entity. Further, he said that the phrase “filing any complaint” appears alongside other activities that involve interaction with a government entity. Because Kasten complained only to his employer and not to a government agency, Scalia said, he was not protected by the law’s anti-retaliation provisions.
The dissents notwithstanding, employers should be aware that this decision protects workers from retaliation for making oral complaints to their employers. Businesses should create and implement policies stating that employees who make such complaints will not suffer retaliation. Since Employment Practices Liability insurance policies cover employers for retaliation claims, insurance companies will expect employers to take steps to make these claims less likely.
Content provided by Transformer Marketing.
According to the U.S. Bureau of Labor Statistics, around a third of all workers’ compensation claims are filed by employees only on the job for a year or less, with 13% being filed by an employee in their first three months of employment.
You can evaluate the statistics as they relate to your own company’s claims by sorting your employees into two categories – those employed longer than one year and those employed less than a year. Once all your employees have been sorted into the two groups, you can determine the frequency of claims per 100 employees from each group. If a large section of your workforce is aging and working physically demanding jobs, then you might find that your long-term employee group may have more claims. However, most employees will find that it’s their shorter-term employees that have the higher claim frequency.
It’s the lack of experience and training that’s one of the main culprits behind shorter-term employees having a higher claim frequency. The good news is that as they get more work hours under their belt and receive additional classroom and/or on-the-job training, they will gain experience and knowledge about safety hazards and become more safety conscious as they perform their job tasks.
Another factor causing new hires to be more prone to accidents is their personality traits and habits. Some workers might have a personality that leaves them with a tendency to ignore the rules. Other workers might simply believe that they should be left to their own devices if they get their work done on time. There are also certain employees that are prone to using short cuts. Maybe it’s in their nature, or maybe from habit, but either way they do it without regard to the risks involved.
As far as personality factors go, one of the best solutions will be to pre-screen applicants so that you can help avoid hiring someone that doesn’t demonstrate habits and personality traits conducive to your ideal working environment. The two types of pre-screening tests are: Behavioral assessments and personality measures.
Behavioral assessments will ask an applicant extremely direct questions, such as about personal drug use and theft. It’s easy to assume mistakenly that the applicant would just lie and answer the question as it should be answered. However, behavioral assessment questions are so blunt that the applicant is often caught not paying attention and will answer the questions honestly without even thinking about it or realizing they’re admitting to a bad behavior. The behavioral assessment will allow you to know the exact nature of the risk the applicant poses.
Personality tests will examine an applicant’s personal characteristics, attitude, and opinions. The questions are much more indirect than a behavioral assessment. The responses can help you evaluate and rank various job applicants based on the possible risks they pose.
In closing, using both tests together can be a very potent risk control tool. Employers that utilize such pre-screening tests also find that they can save significantly from better avoiding hiring an applicant that’s not very likely to stick with the job, and from potentially reducing their number of Workers Compensation claims.
Content provided by Transformer Marketing.
California’s worsening drought and mandatory new state water rules are prompting Bay Area water agencies to beef up their conservation staffs — the employees sometimes called “water cops.”
Only a few cities, including Santa Cruz and Sacramento, have resorted to writing tickets or issuing fines. But most others are simply responding to complaints by sending employees to homes and businesses with a stern warning, and sometimes a door hanger.
“The bottom line is that we are just not getting the results we would like to see for water reduction,” said Joan Maher, deputy operating officer for the Santa Clara Valley Water District.
On Tuesday, the district’s board will vote on whether to spend $500,000 to hire up to 10 new temporary employees to help enforce water use prohibitions across Silicon Valley.
If the proposal is approved, as expected, the workers would respond in person to complaints about property owners wasting water. They also would send the information to whichever of the 12 cities or private companies sends the property owner their bill.
Few Bay Area cities have begun to impose fines yet for wasting water, but if they eventually do, they could use the information to write tickets.
In February the Santa Clara Valley Water District asked its 1.8 million customers in the county to cut water use by 20 percent compared with last year, but so far, none of its retailer providers has met that goal. Palo Alto and Mountain View conserved the most, with a 17 percent reduction each, and the countywide total is a 12 percent reduction.
Similarly, in the East Bay, the East Bay Municipal Utility District in Oakland hired a new outreach person this week, and another starts next week, said district spokeswoman Abby Figueroa.
They will join nine other East Bay MUD staff members who help do free water audits at homes and business, look for leaks and tell property owners when they are violating the district’s and state’s water wasting rules.
“We have a backlog with water wasting complaints,” Figueroa said. “We’re getting calls about runoff, broken sprinklers, people washing cars too much. Everyone is hearing all the media reports and talking about drought a lot. The news definitely got people’s attention.”
In February, East Bay MUD asked its 1.3 million customers in Alameda and Contra Costa counties to voluntarily reduce water use by 10 percent. Between Feb. 1 and May 31, they achieved that 10 percent savings. But it is still below the 20 percent savings that Gov. Jerry Brown requested statewide in January when he declared a drought emergency as the state moved into its third dry year.
Figueroa said the agency has no plans this year to issue fines to people violating its rules or new rules passed last week by the State Water Resources Control Board that ban washing cars without a nozzle on the hose, spraying down pavement, watering landscaping so much that it runs into streets and running ornamental fountains without recirculating systems.
“We’ve been conserving. Our total system storage is in good shape compared to other districts,” she said. “And we brought in additional supplies. That’s getting us through the summer.”
At an Aug. 12 board meeting, the district is expected to pass rules limiting lawn watering to two or three days a week.
Contra Costa Water District, which requested a 15 percent voluntary reduction, has no plans for fines. It has eight outreach employees and enough budget to hire two more if needed, said district spokeswoman Jennifer Allen.
The Bay Area’s largest water district, the San Francisco Public Utilities Commission, which provides water to 2.6 million people in San Francisco, San Mateo, north Santa Clara and southern Alameda counties through the Hetch Hetchy system, is planning to either hire or reassign six employees to respond to water wasting complaints, and look for violations.
The agency is considering in the next few weeks imposing fines on San Francisco residents who waste water, with a warning for first violations, said Steve Ritchie, its assistant general manager.
“Penalties are the last resort. But we are definitely keeping that option on the table,” he said. “It’s important that we have that as a tool.”
Some Bay Area residents are surprised that there aren’t more areas issuing fines, as city officials in Sacramento, Santa Cruz and other communities have done for flagrant water wasting.
“Nobody wants to be seen as fining people, but what we are doing isn’t enough,” said Peter Gleick, executive director for the Pacific Institute, an Oakland nonprofit group that studies water usage.
“Maybe we’ll muddle through this year and we’ll be lucky and next year will be wet,” he said. “But if not, we’re in a deep, deep hole and voluntary will be off the table. We will be talking about things like mandatory removal of lawns, and per-capita rationed amounts.”
Most companies will need to undergo some remodeling, repairs, or possibly even an expansion at some point or another. Such work is most often outsourced to a vendor.
Before you hire a vendor to do work at your facility, you want to protect the financial security of your business and make sure that their liabilities don’t suddenly become a liability for you. For example, you’d likely feel bad for all involved if a contract worker suffered an injury working on your project. However, you might not realize that you too could be involved. If that injured contractor wasn’t insured, then it could involve an expensive lawsuit against your business. Such scenarios often prompt business owners to question how they can best protect themselves when hiring a vendor.
You might get lower bids by vendors not licensed and insured, but an unexpected injury later could result in insurmountable legal costs that would far surpass any savings. It can’t be emphasized enough just how important it is to hire only reputable, licensed, and insured companies.
How Do I Know If My Vendor Is Licensed?
Finding out if a contractor is licensed isn’t very difficult, as any licensed contractor must display their state licensing number on all marketing and advertising materials, such as phone book, billboard, and newspaper ads; the company logo on their building sign or company vehicles; and even the materials they pass out to the public.
How Do I Know If My Vendor Is Insured?
Finding out if a contractor is insured isn’t quite as simple as looking at their ads, but it’s a vetting step that you certainly don’t want to skip. Never work with a vendor that doesn’t have Commercial General Liability insurance and Workers Compensation. At a minimum, the Commercial General Liability insurance policy will cover advertising injuries, personal injuries, bodily injuries, and property damages.
If your contractor doesn’t voluntarily offer to show you a certificate of insurance as proof that they’re covered by a Commercial General Liability policy, then you should ask for it. Don’t accept that they’ll bring it by after they’re hired and don’t forget to check that the expiration and effective dates will be congruent with the dates of the project.
What Else Can I Do to Protect My Business?
Additionally, you might consider taking the following steps:
- Make a list of approved vendors that are both licensed and have shown proof of insurance.
- Ask the contractor’s insurance agent to mail you their certificate of insurance.
- Ask that your company be added to the contractor’s General Liability policy as an additional insured until the project is completed.
- Consider only hiring a contractor that has insurance limits equal to your own.
- Ask the contractor to sign a written legal contract indemnifying your company from a liability claim.
- Never work with a contractor that will need to use your tools or equipment to complete the job. Don’t even lend such items to the contractor. If your equipment or tools are defective and cause a contractor to be injured, it could result in a lawsuit.
Content provided by Transformer Marketing.
Fido is your best friend. He’s been with you through the thick and thin. Your family is not complete without him and now you are looking to purchase a home. One of the things that you will need to do is to get homeowners insurance.
But did you know that not all breeds are insurable under the homeowners insurance? That’s right. In fact, there is quite a few breeds that won’t be covered.
- Siberian Huskies. Although their behavior is mainly friendly, these dogs are strong and can be difficult to control. Siberian Huskies have predatory instincts and therefore are not good around other small animals.
- German Shepherds. German Shepherds are known for their aggressive behavior and to be great police and military dogs.
- Alaskan Malamutes. Intelligent, independent, and Strong-willed are characteristic traits of this dog, making training and controlling this dog difficult.
- Akitas. This breed is all about domination and independence. Some countries have labeled this breed as a dangerous dog.
- Perro de Presa Canario. Remember the San Franciscan who was mauled to death in the condo hallway? The Perro de Presa Canario was at fault for that attack.
- Great Danes. Often called the “gentle giant,” the Great Dane can become aggressive if not trained at an early age.
- Chow Chows. Overly protective of their family, Chow Chows can be very aggressive towards people and other animals.
- Rottweilers. This breed of dog is typically good-natured and a great working dog, however without the proper training or environment this dog can become very aggressive.
- Doberman Pinschers. Dobermans were originally bred to be guard and protection dogs due to their size and intimidation factor.
- Pit Bulls. Of course you were going to see this breed on the list. When there is a dog attack, generally the breed that is blamed is the pit bull.
Be aware that if you have one of the listed breeds, you may have a hard time finding coverage. Contact our office today so we can help you get the coverage that you need.
Content provided by Transformer Marketing.
The 4th of July is a wonderful time to have barbecues, pool parties, and gathering with your closest friends and family to celebrate the nation’s independence. Did you make plans? No? No worries, we have a couple of places you can check out!
Modesto’s Independence Day Parade
For 140 years now, Modesto has hosted a parade in downtown. The parade starts on July 4th at 9:30 am and theme of this year’s parade is, “Land of the Free, Home of the Brave.”
Are you looking for something more thrilling?
Check out KaBoom
It’s the 27th annual fireworks spectacular at Fairplex. Monster trucks and Moto X extreme get the crowd cheering and the stupendous fireworks are the grand finale. The nighttime programming has been a crowd pleaser since its inception in 2002. It puts the boom in KABOOM! Monster Truck and Big Air Freestyle Motocross 8 p.m.
From everyone here at McVey Insurance Agency, we wish you all a happy and safe 4th of July!
Our hands are used in almost all daily activities, work or leisure. But, for some reason, we often overlook just how frequently our hands are used until they are injured.
According to the National Safety Council (NSC), the hands are involved in one of every five occupational injuries. This statistic really isn’t all that surprising once a worker stops to consider the array occupational hazards, such as tools, solvents, and chemicals, that are capable of causing burns, contusions, and lacerations to the hands. That said, workers can protect their hands and avoid a lot of unnecessary injuries by taking a few precautions.
Material Safety Data Sheet. Some chemicals can burn your hands immediately following contact. Before handling any chemical, it’s of vital importance that you’re familiar with Material Safety Data Sheets (MSDS), as these forms will instruct you on the safe handling and use of certain potentially harmful chemicals.
Hand Washing/Cleaning Procedures
- Apply lotion if your job requires frequent hand washing.
- Use mild soap and water to wash hands; dry them thoroughly.
- Avoid harsh and abrasive cleaners.
- When removing tar, grease, or paint, use a waterless cleaner.
- Never wash hands with benzene, paint thinner, gasoline, or other harsh solvents.
- Flush hands under running water for 20 minutes or longer after your hands come into contact with any corrosive chemical.
- If a minor skin laceration occurs, wash it immediately and seek medical treatment.
- The MSDS can alert you to what type of glove should be donned when handling potentially harmful chemicals.
- Throw any frayed, tattered, or worn gloves away.
- Never share gloves with co-workers.
- Never immerse your hand in chemical agents, even if gloved.
- Asbestos or leather gloves are used to protect against heat.
- Neoprene or rubber gloves are used to protect against corrosive chemicals.
- Cotton, leather, or PVC gloves are used to protect against abrasives.
- Synthetic knit or cotton gloves with gripping dots are used when hand-grip is needed.
- Kevlara, heavy leather, or metal-mesh gloves are used to help prevent cuts to the hand.
- Never wear gloves with any metal features when working near electrical hazards.
- Avoid wearing gloves around moving equipment.
Avoiding Contusions and Lacerations
- All tools should be properly maintained on a regular basis.
- Safety guards should never be removed and a tool without the appropriate guard shouldn’t be used until it’s in proper working order.
- Lockout equipment when making repairs or cleaning it.
- Wear metal-mesh, leather, or Kevlara gloves when handling or operating sharp and bladed tools.
- Don’t do a job if you don’t have the appropriate tool.
These simple safety precautions can help you keep one of your most important assets, your hands, intact.
Content provided by Transformer Marketing.
This year’s drought has resulted in lower than usual river flows throughout the region, but it hasn’t deterred rafters and kayakers from hitting the water this summer.
“It was awesome,” said Oakdale resident Rudi Burtschi, who moved down the Stanislaus River in a kayak Sunday. “But it was way slower than usual. The water is down.”
He said the Stanislaus River has always been a good place for a beginner to learn how to be a rafter, but the low river flow doesn’t make it any easier. Higher water levels allow rafters to float above the rocky areas.
“The lower the water is, the bigger the rapids are, which is fun,” Burtschi said. “That’s what it’s all about, as long as you’re doing it safely.”
He and his brother, John Gumbert, grew up rafting down the Stanislaus River east of Oakdale. Gumbert said the lower levels increase the chances of “beaching” a boat along the river.
“We were able to avoid that today,” Gumbert said while he and his brother loaded up their kayaks onto their Jeep. “The big rafts, they have to get off and push themselves free.”
Tim Burwell of Antioch made that same trip down the Stanislaus River in a raft with his daughters, Shara and Alecsa. Their Father’s Day outing was just about what they expected.
“We expected it to be pretty laid back,” Burwell said about this stretch of the river that is known to be friendly to first-time rafters. “As far as speed of the water, it seemed about average.”
He said he and his daughters have been out rafting before, but this was their first time along the Stanislaus. They started out near Knights Ferry on Sunday and ended their trip about 8 miles later near Orange Blossom Road east of Oakdale.
Burwell said he could tell the water level was about 2 or 3 feet lower than usual, but “we still had a great time.”
Tyler Wendt, operations manager for OARS rafting company, said the lower-than-normal river flows haven’t affected business because their boats rely on water coming from upstream reservoirs. The Angels Camp-based company offers rafting trips along the Tuolumne River and two forks of the American River.
“Our numbers are up, and there’s plenty of water to go rafting,” Wendt said.
The company typically has one nonrafting day per week during the summer, but this year’s drought has resulted in no rafting Tuesdays and Wednesdays. Nevertheless, Wendt expects there to be enough water flow to raft through Labor Day.
He says higher water flows create more hazards for rafters, so it might be easier for a novice to take up the sport this year.
Read the entire article here.
Father’s Day is right around the corner, are you ready? No? Don’t worry, we have you covered.
Take dad to a car show
Head on over to the First Baptist Church for the 15th annual car show! Enjoy live entertainment, and one free lunch per entry. This event will benefit the youth programs at the church. We will be raffling off awesome prizes, including a 40 inch HDTV!
Is dad not a car enthusiast? Try this one out…
Bud’s Seafood offers a Sunday Brunch from 10:00 am-3:00 pm located in Stockton, Favorites such as oysters on the half shell, shipwreck, to the lox scramble, are all included on the menu. Adults are $14.95 and kids are $8.75.
From everyone here at McVey Insurance Services, we want to wish all the Fathers out there a Happy Father’s Day!
For many people, summer is one of the most active times of the year. From outdoor sports to evening barbecues, summer is a fun-filled season. However, although these summer activities may be exciting and enjoyable, they can also increase your need for insurance coverage.
The insurance-related risks you face in summer depend primarily on how you spend your time. For example, if you enjoy riding a motorcycle when the weather is nice, you run the risk of accidents, injuries and property damage. Likewise, if you like to host parties or barbecues, your risk of homeowners insurance claims may be higher in the summer. Other common summer risks include:
- Automobile accidents
- Boating accidents
- ATV accidents
- Sports-related injuries
- Liability claims for injuries occurring on your property
Before the summer begins, review your current insurance policies to determine if your coverage levels are sufficient. If you ride a motorcycle or drive your car more frequently in the summer months, make sure that your insurance policy provides plenty of liability coverage in case of an accident. If you own an ATV, consider purchasing a separate insurance policy to cover it. In addition, if you will be hosting parties at your home, make sure your homeowners insurance policy includes generous coverage for liability claims. Finally, if you or a family member participates in any type of athletic activity during summer, take some time to review your health insurance policy.
For extra protection from liability, consider purchasing an umbrella insurance policy. Umbrella insurance will cover the cost of liability claims that exceed the limits of your other policies, such as homeowners insurance and auto insurance. This additional coverage helps to ensure that you will not be responsible for paying any liability claims out-of-pocket.
Reviewing all of your insurance coverage can be a daunting task. For assistance, consult our office.
Content provided by Transformer Marketing.