NEW LAW ALLOWS HOME OWNERS TO ADD SECONDARY BUILDING ON SINGLE FAMILY RESIDENCE ZONED LOTS

New State Law

As of January 1st, 2017 a new California mandated law was passed. Senate Bill 1069 Chapter 270 promotes affordable moderate-income housing. This bill will allow California homeowners to have an easier time building small second dwellings on their property or make your existing residence into a rental property. The law gives owners of most single-family residences the option to construct accessory dwelling units-informally known as back houses, granny flats, or in-law units-as long as they comply with certain guidelines. 

This should allow homeowners to be able to start building new accessory dwellings without any trouble. Approved by Governor Jerry Brown, the bill is intended to encourage the development of badly-needed new units of housing in markets where a lack of supply has driven up rental prices at alarming rates. 

If you happen to own a single family residence in Laguna Beach, the City requirements would limit the size of the accessory dwellings to 640 square feet. The units would include bedrooms, bathrooms and kitchen. No additional parking spaces are required if the unit is (1) within ½ mile of public transit, or (2) part of the existing primary residence or an existing accessory structure

For those of you who have large lots that could only previously used for open space, you might want to explore the possibility of building a second home on the open space on your property.

KAYLA BEAMON INSURANCE PROFESSIONAL

Kayla was recently introduced to me.  She was so impressive I thought I wouldlet my group members know about her.  The following is written by Kayla in order to introduce you to the services she provides.

Our business provides Protection for your Business, Building, Auto, Home or your Family:

• Business Liability Insurance

 • Workers Compensation

 • Builders Risk

• E & O Insurance

 • Health Insurance: Company or Individual/Family

 • Home, Auto, Umbrella

 • Buy Sell Agreements

 • Life Insurance

 • Long Term Care

• Travel Insurance

 • All types of Insurance

As an expert in my field I'll work to make sure Your Business or your Clients are adequately covered for all your/their insurance needs.

I'd enjoy being your Personal Representative for ALL your Insurance needs.

Kylab@mgbenefits.com ; www.WiseEndeavors.com

971-327-5792

My Business Grows From Referrals so If you would be kind enough to forward

this to someone who needs the services I offer that would be much appreciated.

Kyla Beamon

RICK ANDRADE CERTIFIED AS MEDIATOR AND ARBITRATOR

 I am excited to announce that I have completed the training required to be a certified Mediator and Arbitrator and that I am expanding my business into this field.

I have worked as a litigation attorney for over 36 years. Over the course of my 36 years of practice I have tried over 300 trials/arbitrations (administrative, bench & jury). and I am fully committed to providing you with the highest quality of legal services and to resolve your disputes respectfully.

The purpose of Mediation/Arbitration is to help you, if possible, find common ground so the matter is resolved ending in a mutually agreeable settlement. More than 75% of all matters are settled through this process.

For Mediation purposes, my goal is to help guide you through the process of finding your own solution to your problem. If a mutually acceptable agreement is made, you are the one who will have to live with any settlement agreed to. As such I want you to be the one who decides what the solution will be. I won’t be telling you what to do or trying to judge who is right or wrong. I am an impartial third party who will facilitate negotiations, discussions, consensus building, problem solving, relationship building or to manage existing or potential difficulties in a wide variety of situations.

For Arbitration purposes, I will act in the same capacity as a Judge. I strongly adhere to the formalities required by the Code of Civil Procedure & Rules of Evidence, and ultimately decide who is right or wrong. I do not engage in “splitting the baby” as others do to make both parties happy. Rather, depending on your situation, facts, and law, I will determine if you prevail on your claims, prevail on only a portion of your claims a claim, or if you failed to prove entitlement to any claim being made and therefore receive no recovery. It is my belief this is what the law is intended to do and I will follow suit and adhere to this practice for every case in which I serve as the arbitrator.

Please see my LinkedIn profile for additional background information. Please feel free to contact me if you have any questions or concerns or otherwise are in need of my services.

RICK ANDRADE

COMPLIANCE UPDATES FOR 2017

California has recently issued numerous updates that employers must adhere to in order to comply with the law. The following is a portion of the updates that might affect your company. These are provided simply to make you aware of the new requirements. Not all of the updates will apply to your company.

Compliance Updates

Proactive alerts when employment laws change that may affect your company's policies, procedures or compliance

CA Supreme Court: On-Call Rest Doesn't Satisfy Break Requirement

January 19, 2017

The California Supreme Court has ruled that during rest breaks, employers must relieve their employees of all duties during their break time. Employers do not satisfy these requirements when they require employees to remain on-call during their break.

Background:

Under California law , employers must permit non-exempt  employees to take an uninterrupted rest period for a minimum o fraction thereof) worked, unless an employee works less than 3 .5 hours in workday. A rest period is considered time worke

Example: If a non-exempt employee works 6.5 hours, the employer must provide the employee with two paid rest breaks,4.0 hours worked , and the second covers the remaining 2.5 hours worked (required because 2. 5 is a major fraction of four hours).

Employers that fail to provide employees with required rest periods must pay the employee one additional hour of pay for each rest period that is not provided.

California Supreme Court Case:

In the case before the California Supreme Court, security guards alleged that their employer violated the state's rest break pagers on, remain vigilant, and respond when necessary during breaks.

In its ruling, the Court concluded that during rest periods, employers must relieve employees of all work- related duties during their break time.The Court also found that requiring employees to remain on-call during rest periods fails to satisfy the obligation of an employer to provide an employee break time undisturbed by the employer.

Compliance  Recommendations:

Non-exempt employees should be allowed to take their rest periods relieved of all duties and employer control. Review your handbook so it complies with this decision. Note: The California Meal& Break Periods policy has been updated in HR41l".

Department of Labor Increases Fines

July 11, 2016

The Department of Labor has published a rule increasing fines for violations of the Occupational Safety and Health Act (OSH Act), the Fair Labor Standards Act (FLSA), and other laws it enforces.

The following is a summary of some of the changes , effective August 1, 2016:

• The maximum penalties for serious OSH Act violations will increase from $7,000.00 to $12,471.00 .

• The maximum penalty for willful (or repeated) OSH Act violations will increase from $70,000.00 to $124,709.00.

• The penalty for willful violations of the FLSA's minimum wage and overtime provisions increases from $ 1,100.00 to $1,894.00.

The changes are a result of the Federal Civil Penalties Inflation Adjustment Act of 2015 which directs agencies to adjust their civil monetary penalties for inflation every year.

The new amounts will apply to penalties assessed after August 1, 2016, for violations occurring after November 2, 2015 (the date the Federal Civil Penalties Inflation Adjustment Act was enacted).

Compliance  Recommendations:

The new penalties are a reminder to remain diligent about compliance with the OSH Act and the FLSA, particularly in light of new overtime rules that became effective December l, 2016.

California Clarifies Anti-Harassment  Policy Requirements

March 16, 2016

The California Department of Fair Employment and Housing (DFEH) has published regulations clarifying the state's requirements for preventing and correcting sexual harassment. Among other things, the regulations specify what must be included in sexual and other unlawful harassment policies. The regulations were effective April 1, 2016.

Overview:

The regulations state that employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct, including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Employers also have an affirmative duty to create a workplace environment that is free from unlawful employment practices. Employees, interns, volunteers and contractors are all protected under the Fair Employment and Housing Act (FEHA).

Required Policy Components:

The regulations require that in addition to distributing the Department's DFEH-185 brochure on sexual harassment, employers must develop a written policy that includes the following elements:

• All current protected categories covered under the FEHA, including sex, race, national origin, color, ancestry, age, disability, religion, military status, veteran status, genetic information, medical condition, marital status, gender, gender identity, gender expression, and sexual orientation;

• That the law prohibits coworkers and third parties (including vendors, clients, or customers), as well as supervisors and managers, with whom the employee comes into contact, from engaging in conduct prohibited by the FEHA;

 A complaint process to ensure that complaints:

• Are confidential, to the extent possible;

• Addressed and closed in a timely manner;

• Trigger an impartial and timely investigation by qualified personnel;

• Are documented and tracked for reasonable progress; and

• Will result in appropriate remedial action and resolution, if applicable.

• A complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:

• Direct communication. either orally.or in writing. with a designated company representative. such as a human resources manager. EEO officer. or other

California Expands Anti-Retaliation Protections

October 21, 2015

California Governor Jerry Brown has signed legislation (Assembly Bill l509) expanding the state's anti-retaliation law to protect employees' family members. Assembly Bill 509 became effective January, 2016.

Background:

Collectively, California Labor Code Section 98.6 and Section 1102.5 prohibit employers (or persons acting on behalf of the employer) from taking adverse action against an applicant or employee for, among other things:

• Exercising any right covered by the Labor Code

• Filing a complaint with the  labor Commissioner

• Disclosing information to the government or certain other entities if the individual has reasonable cause to believe that the information discloses a violation of local, state or federal law, rule or regulation

Assembly Bill 1509:

Assembly Bill l509 amends Section 98.6 and Section 1102.5 to also prohibit retaliation against employees whose family members have, or are perceived to have, engaged in protected activity.

Compliance Recommendations:

California employers should review policies, practices, and supervisor training to ensure compliance with the expanded anti-retaliation provisions.

OSHA Changes, Clarifies Recordkeeping Rules

June 13, 2016

The Occupational Safety and Health Administration (OSHA) has published a final rule that requires employers in certain industries to submit injury and illness data to the agency electronically. The rule also makes changes to requirements for how employers must inform employees about their rights and responsibilities under OSHA and clarifies employees' rights to access injury and illness records. The rule became effective August 10, 2016, but the electronic submission requirements will become effective in 2017

Background:

Under existing rules, employers with more than 1O employees must keep records of work-related injuries and illnesses, unless they are classified under one of the partially exempt low- hazard industries.

Employers covered by these rules must:

1. Record each recordable employee injury and illness on an OSHA Form 300 (Log of Work-Related Injuries and Illnesses).

2.  . Prepare a supplementary OSHA Form 30 1 (Injury and Illness Incident Report) that provides additional details about each case recorded on Form 300.

3. At the end of each year, prepare a summary report of all injuries and illnesses on OSHA Form 300A ("Summary of Work-Related Injuries and Illnesses"), and post the form in a visible location in the workplace.

These requirements do not change under the new rule.

Electronic Filing:

The new rule requires certain employers to file OSHA forms electronically. OSHA intends to publish employers ' injury and illness data on a publicly accessible website.

Employers with 20 to 249 employees in certain designated industries must submit information from Form 300A to OSHA electronically on an annual basis. Employers with 250 or more employees must submit information from Forms 300, 300A, and 301 to OSHA electronically on an annual basis. Other employers may also be asked by OSHA to report electronically.

The electronic submission requirements will be phased in as follows :

Employer Size

Forms Required to Be Filed Electronically

20 to 249 employees and in one of these industries must submit OSHA Form 300A

electronically beginning July 1, 2017

Final Overtime Rules Effective December 1, 2016: What You Need to Do to Prepare

May 18, 2016

The Department of Labor (DOL) has announced a final rule that will increase the minimum salary requirement for the administrative, professional, executive, and highly compensated employee exemptions. The final rule became effective December 1, 2016.

Background:

The Fair Labor Standards Act (FLSA) requires virtually all employers to pay most employees at least the federal minimum wage for each hour worked, as well as overtime pay for all hours worked in excess of 40 in a workweek . The FLSA allows for exemptions from these overtime and minimum wage requirements for certain "exempt" employees. To be considered "exempt," these employees must generally satisfy specific salary and duties tests:

• Meet the minimum salary requirement ;

• With very limited exceptions, the employer must pay the employee their full salary in any week they perform work, regardless of the quality or quantity of the work; and

• The employee's primary duties must meet certain criteria.

Final Rules:

New Salary Requirements

Administrative, Professional , Executive Exemptions:

Effective December l, 2016, the minimum salary requirement for the administrative, professional (including the salaried computer professional), and executive exemptions will increase from $455 per week to $913 per week (or from $23,660 per year to $47,476 per year). This means that employees who meet the administrative, professional, and executive exemptions must be paid a minimum weekly salary of $913 in order to be exempt from the FLSA's minimum wage and overtime requirements . Exempt computer employees may also be paid hourly, if it is at least $27.63 per hour, which doesn't change under the new rule.

Note: The minimum salary for these exemptions is less than the DOL had initially proposed.

New HRA Benefit Plans for Small Employers Permitted

December 13, 2016

President Obama has signed legislation (HR 34 - the 21st Century Cures Act, or the Act) that will allow small employers to offer stand-alone health reimbursement arrangements (HRAs) to employees that have purchased a health plan in the individual market, as long as certain conditions are met. The law is effective January 1, 2017

Background

Under the Affordable Care Act (ACA), employers that do not meet the definition of an Applicable Large Employer (ALE) are required to either provide health plans that meet certain requirements to their full-time employees or pay a penalty to the Internal Revenue Service (IRS). Many employers that are not ALES have wanted to offer limited health benefits to their employees, but have generally been prohibited from offering such benefits, including through HRAs that are not integrated with other employer coverage, that do not meet ACA coverage and cost-sharing requirements. Employers faced significant IRS penalties of $100 per  "affected individual" per day, for offering HRAs to cover health insurance costs for the purchase of plans on the individual market.

Under the 21st Century Cures Act, eligible small employers can now offer Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs) without being subjected to these penalties.  The Act stipulates that a QSEHRA is not a group health plan under the Internal Revenue Code or ERISA and is not subject to ACA coverage and cost-sharing requirements. Benefits under a QSEHRA are not subject to income or employment taxes.  Provisions of a QSEHRA may affect the amount of an individual's premium assistance tax credit for purchase of insurance on a health insurance exchange.

The following conditions must be met: Eligible Small Employers

To be eligible, employers must:

• Not be an ALE (i.e., must have an average of fewer than 50 full-time and full-time equivalent employees, excluding seasonal workers , in the prior calendar year); and

• Offer no group health plan to any of its employees.

Eligible  Employees

The QSEHRA must generally be offered to all employees, except those who are:

• Part-time;

• Seasonal;

• Under the age of 25 ;

• Within the first 90 days of service with the employer.

Los Angeles Restricts Criminal History Inquiries

December 20, 2016

Los Angeles has enacted Ordinance No. 184652, which will restrict employers from asking applicants about their criminal history and require employers to take certain steps before taking adverse action based on criminal history information. The Ordinance took effect on January 22, 2017.

Coverage:

The Ordinance applies to private employers with l0 or more employees and employees who:

• Perform at least two hours of work on average each week within the geographic boundaries of the city; and

• Qualify as an employee entitled minimum wage under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission.

Restrictions on Criminal History Inquiries:

Employers are prohibited from asking about criminal history on application forms and must wait until they extend a conditional job offer before seeking criminal history information.

Pre-Adverse Action Requirements:

Once employers extend a conditional job offer, they may seek criminal history information. Before taking adverse action based on an applicant's criminal history, employers must complete a written assessment that links the specific aspects of the applicant's criminal history with the risks inherent in the job sought.

Conducting an Assessment:

In performing the assessment, employers must, at a minimum, consider the factors identified by the United States Equal Employment Opportunity Commission (EEOC), including the nature and gravity of the offense, the time that has passed since the offense, and the nature of the job sought. This may include:

• The facts or circumstances surrounding the offense;

• The number of offenses;

• Age at the time of conviction, or release from prison;

• Evidence that the individual performed the same type of work, post-conviction, with no known incidents of criminal conduct;

• The length and consistency of employment history before and after the offense;

• Rehabilitation efforts (such as education or training);

• Employment or character references and any other information regarding fitness for the particular position; and

• Whether the individual is bonded under a federal, state, or local bonding program.

 

As mentioned, some of these new changes may not affect your company. It is highly recommended that you review your Policy and Procedures Manual or Company Handbook to ensure that you are in compliance with those new changes that do apply to you.

 

 

GOOD NEWS FOR EMPLOYERS- COURT DECLINES TO EXTEND LIABILITY UNDER THE "GOING AND COMING RULE"​

As I am sure you are aware, the legal rule of vicarious liability can make an employer liable for an act of its employee performed doing the course of his work. An exception to this rule is the "going and coming to work" rule. Unless the act of driving is a part of your employees duties, an employer is not liable for an act by its employee while he is either going or coming to work.

Recently, a Plaintiff unsuccessfully tried to expand the vicarious liability of an employer by exempting from the "coming or going " rule, an employee who is required to commute long distances in order to get to work.

In Lynn v. Tatitlek Support, Plaintiffs and appellants Gail M. Lynn (Mrs. Lynn), individually and as executor of the Estate of Brian Griffin Lynn (Mr. Lynn), and Randy Lynn, Mr. and Mrs. Lynn’s son, (plaintiffs) appealed from summary judgment entered in favor of defendant and respondent employer Tatitlek Support Services, Inc. (TSSI) in a wrongful death action. 

 The sole question raised on appeal is whether TSSI’s temporary employee, Abdul Formoli, was acting within the scope of his employment when he caused an automobile accident (the accident), killing Mr. Lynn and seriously injuring Mrs. Lynn. Plaintiffs contend the “going and coming” rule, precluding employer vicarious liability, does not apply because of the nature of Formoli’s employment preceding the accident. Because of the remoteness of the jobsite, Formoli’s employment required him to undertake a lengthy commute home, after working long hours, over three and a half days. Plaintiffs argue that under such circumstances there is a triable issue of material fact as to whether an exception to the “going and coming” rule applies. Plaintiffs rely on three exceptions: the extraordinary-commute incidental benefit exception, the compensated travel-time exception, and the special risk exception.

 The Court concluded that the plaintiffs failed to present evidence supporting these exceptions to the going and coming rule. The Court therefore affirmed the judgment on the ground that it is undisputed TSSI was not vicariously liable for the accident under the doctrine of respondeat superior.

This is an important decision supporting a construction employer's lack of liability for an employee who in the construction industry often have to commute long distances after working long hours. Although under certain circumstances an employer may be found vicariously liable for the act of its employee who has to commute to a jobsite, for now the Court's trend is to continue to not hold employers responsible for the acts of their employees who are either coming to or going from work.

CALTRANS TO PAY CALIFORNIA PROMPT PAY PENALTIES INCLUDING ATTORNEYS FEES

In a recently decided case, Caltrans has been ordered to pay not only the principle sought by the contractor but in additional sums representing California Prompt Payment Penalties including a penalty of 2% per month on the principle amount due until judgment is entered, and more importantly the payment of mandatory attorney fees to the prevailing contractor.

Andrade & Associates (A&A) represented a general contractor in a claim against the State of California Department of Transportation (Caltrans) seeking to recover among other things the wrongful retention withheld from the contractor by Caltrans and also the recovery of California's Prompt Payment Penalties since Caltrans withheld the Contractors money without a good faith dispute. Caltrans position was that the withheld money, $226,800.00 represented 40 days of liquidated damages based upon Caltrans refusal to stop the contract calendar days even though Caltrans had taken beneficial possession of the project and had opened the highway up for use by the public over 21 days before the extended contract completion date.

A&A was able to establish that the contractor was entitled to a 40 day contract extension due to delays caused by Caltrans. Despite the granting of the 40 contract extention days which worked to wipe out the liquidated damages assessed, Caltrans nonetheless took the position that since last minute change order work involving a sign already installed and accepted by Caltrans was not completed by their calculations until 40 days after the extended contract completion, that Caltrans was still entitled to charge liquidated against the contractor in the amount of $226,800.00 due to the change order work which was not part of the original contract scope.

A&A successfully argued that the change order work added at the end of the project and which involved making changes to work already performed and accepted by Caltrans could for the basis upon which Liquidated Damages could be assessed and in any event could not establish a good faith dispute still pending against the contractor. A&A successfully convinced the arbitrator to award a sum of approximately $700,000.00 based upon the return of the Liquidated Damages assessed, penalty interest of 2% per month for 40 months on the unpaid Liquidated Damages, and mandatory attorneys's fees and costs.

In my career spanning over 300 trials, this was the first case that I have been involved with that Caltrans was forced to pay the penalties, interest and mandatory attorney fees associated with California's Prompt Payments statutes. So in the future, litigation might not be Caltrans first choice now that they have been proven not to be beyond the reach of the Legislative Penalties. Caltrans long standing policy of withholding money due the contractor an inordinate amount of time without a good faith dispute that the contractor owes any money or further performance on the contract may finally come to an end.

ANDRADE & ASSOCIATES NAMED BOUTIQUE CONSTRUCTION LITIGATION LAW FIRM OF THE YEAR FOR CALIFORNIA

As part of the 2017 Corporate International Global Awards in the Boutique category, Andrade & Associates has been named the Construction Litigation Law Firm of the Year in California. Primarily based in Orange County with Satellite offices in San Diego and Los Angeles, Andrade & Associates' practice focuses exclusively on the construction industry which by necessity includes mechanics liens; stop payment notices; surety bond claims (payment, performance and Miller Act). claims for differing site conditions and resultant delay claims for items that are time related damages, claims for extra work and change order claims, all aspects of labor law including wage and hour law employee claims and General Business dealings including Business Litigation. Andrade & Associates has been serving the construction industry for over 35 years representing owners, general contractors, sub-contractors, suppliers and materialmen on private works of improvements, State public works of improvements as well as Federal Public Works projects. Andrade & Associates offers a no cost initial consultation should you wish to discuss a pending matter and get a second opinion or wish to discuss options available to you for a new matter that needs to be handled.

From those of us here at Andrade & Associates, we are thankful for the recognition from the Corporate Global Award individuals who bestowed the honor upon us and we look forward to hopefully working with your company in the future.

CONTRACTORS STATE LICENSE BOARD OUTLINES NEW 2017 LAWS AFFECTING CONSTRUCTION INDUSTRY

SACRAMENTO — The Contractors State License Board (CSLB) is providing a round-up of new state laws affecting California’s construction industry that take effect in the new year.

Assembly Bill (AB) 1793 modifies the criteria the courts use to determine if a contractor substantially complied with licensing law under Business and Professions Code (BPC) section 7031. This allows a client to not pay a contractor and to demand the return of compensation paid for work completed if the contractor was unlicensed at any time during the course of work. The new legislation provides the court a modified set of criteria to use when determining if a contractor “substantially complied” with licensure requirements and acted promptly and in good faith to remedy the lapse in licensure once known.   

Senate Bill (SB) 1209 provides for enhanced complaint disclosure of legal actions taken against licensees. Under the provisions of this legislation, citations issued against a licensed contractor follow that contractor if he or she is issued another license and allows for the public disclosure of these citations.

AB 2486 requires that by January 1, 2019, CLSB create a system that allows consumers to search CSLB’s website for a licensed contractor either by zip code or geographic area, which should make it easier for consumers to identify and hire properly licensed contractors.

In an effort to establish further safety measures around underground excavation, SB 661enacts the Dig Safe Act of 2016, and makes several changes to existing requirements for excavation procedures. These include requiring that excavators delineate an area to be excavated prior to notifying an appropriate regional notification center and establishing the California Underground Facilities Safe Excavation Advisory Board within the Office of the State Fire Marshall. 

AB 2286 authorizes CSLB to raise its various fees, resulting in what will be the first fee increase since 2011, and only the second fee increase since 1993. The 10 percent fee increase will ensure that CSLB has enough funds to operate in the coming years. Increases that take effect July 1, 2017 include: The application fee for an original license in a single classification will increase from $300 to $330; the renewal fee for an active license will increase from $360 to $400; and the registration and renewal fee for a Home Improvement Salesperson will increase from $75 to $83.

CSLB will provide the industry more information on the upcoming fee increase in the spring.

PUBLISHED BY CONTRACTORS STATE LICENSE BOARD