HOUSING CONTRACTORS OF CALIFORNIA STANDING UP FOR YOU!

Bruce Wick testifies in support of proposed PAGA reforms!

• The California Labor and Workforce Development Agency (LWDA) has proposed regulatory changes to, among other things, hopefully reduce the fraud and abuse of the PAGA system by plaintiff attorneys. The LWDA did a study and found:
  • Five law firms filed a total of 2,086 PAGA notices—about one-quarter (24%) of all PAGA notice filings;
  • Three law firms filed on average more than one PAGA notice per day, with one filing 605 notices, another filing 535, and the third filing 409;
  • Four law firms filed more than 300 PAGA notices;
  • Eight law firms filed more than 200 PAGA notices;
  • Five attorneys filed a total of 1,571 PAGA notices, accounting for about 18%, or almost one-fifth, of all PAGA notices;
  • Ten attorneys filed a total of 2,192 PAGA notices, accounting for about one-quarter (25%) of all PAGA notices; and
  • One attorney filed 597 PAGA notices and another filed 368.
• Bruce Wick filed a comment letter, and then followed up with public testimony on April 9, 2026. Bruce went farther than most employer commenters and called for “vexatious filer” plaintiff attorneys to be suspended from filing PAGA claims. And all attorneys should be prohibited from giving referral fees to attorneys who have been suspended by the LWDA.
• You can click on the link below to see the proposal, and the list of comments by various parties including Housing Contractors of California.
• https://www.labor.ca.gov/resources/paga/rulemaking-labor-code-private-attorneys-general-act-of-2004/

   

  Housing Contractors of California Government Affairs Committee takes positions on multiple bills!

• The Committee is comprised of 6 HCC member representatives, who make decisions on bills presented by Bruce Wick and HCC contract lobbyist RJ Cervantes.
• They have already decided to support 6 bills, oppose 9 bills, and are reviewing another 15 bills for possible positioning.
• The Committee meets twice monthly during the legislative session.

IMPORTANT UPDATES FOR HOUSING CONTRACTORS OF CALIFORNIA MEMBERS!

The Workers’ Compensation Insurance Rating Bureau (WCIRB) votes to propose an increase in advisory rates!

• Bruce Wick attended the virtual meeting of the WCIRB Governing Committee held April 16, 2026. The meeting was held to decide on what they should propose to adjust the California workers’ compensation advisory insurance rates, effective on policy anniversary dates September 1, 2026 and after.
• Last year, the WCIRB had proposed an 11.2% average rate increase, which the Insurance Commissioner reduced to 8.7%.
• This year, the WCIRB Actuarial Committee proposed a 10.4% average rate increase. The Public Actuary proposed a 5.1% increase, less than half of the Actuarial Committee figure.
• The Governing Committee voted to send the 10.4% figure to the Insurance Commissioner for review. Bruce Wick will attend the public hearing on this proposal, and will argue for using the Public Actuary number instead.
• The two main drivers of the increases are increases in Cumulative Trauma (CT) Claims and Allocated Loss Adjustment Expenses (ALAE). CT claims filed post-termination have gone up over 50% in the last 3 years.
• HCC members should consult with their insurance broker or advisor to make sure the underwriters at your next renewal know that you have established strong practices to minimize these two issues.
  • For CT claims, you should have a meeting with your WC defense attorney and your claim adjuster. You should establish what procedures will be implemented to quickly investigate CT claim filings and make strategic choices to minimize overall costs.
  • For ALAE, these are expenses for defense attorneys and additional investigative costs. These expenses are often legitimate, but are also hard to find. Your insurance broker or advisor needs to make sure these costs are included and discussed when you do your periodic claim reviews. Some insurers and programs add unnecessary costs to defend claims, and you should be able to see what those costs are, and discuss if they are legitimate.

HERE ARE THREE IMPORTANT NOTICES FROM THE FEDERAL DEPARTMENT OF LABOR!

California employers are subject to both California enforcing California labor laws, and the Federal DOL enforcing Federal labor laws.

Here, a Newport Beach Contractor and its owners a given a court judgment of $468,505 in wages and penalties for various violations, including overtime and retaliation for complaining of the alleged violations. You can click here to review it: https://www.dol.gov/newsroom/releases/whd/whd20260415

In this case, a Mississippi HVAC contractor was penalized $122,476 for failure to include non-discretionary bonuses in overtime calculations. HCC members should ensure that bonus payments are properly included in these calculations when required. Click here to read the case: https://www.dol.gov/newsroom/releases/whd/whd20260408

Here, the Federal DOL is investigating California’s Employment Development Department (EDD) for multiple issues of fraud and improper payments, some of which have contributed to the current $21 Billion deficit in the California Unemployment Insurance (UI) Fund. Governor Newsom and state legislators have failed to provide any assistance to California employers, who otherwise have to pay back the deficit through increased UI contributions. HCC hopes the Federal investigation spurs California lawmakers to provide overdue relief to California employers. Click here to read the story:

https://www.dol.gov/newsroom/releases/osec/osec20260218

HERE IS A RECENT CALIFORNIA COURT RULING FOR HCC MEMBERS TO REVIEW!

In Parsonage v. Walmart, the 4^th Appellate District gave a new interpretation to violations of the Investigative Consumer Reporting Agencies Act. Even though Walmart wound up hiring Parsonage after reviewing an investigative report on her background, the justices gave Parsonage $10,000 in statutory damages because Walmart failed to follow the detailed procedures in the Act. HCC members who use background or other investigate checks on prospective employees will want to confirm with their labor attorney or advisor that they are following the rules properly. Click here to read the ruling: D083831.PDF

Any questions please contact Bruce Wick at 760-535-9623, or bwick@housingcontractors.org

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HERE ARE TWO GOOD LEGAL RULINGS FOR HOUSING CONTRACTORS OF CALIFORNIA

MEMBERS TO REVIEW!

• The 2^nd Appellate District in California affirms a trial court ruling that an employee who fails to prevail on wage and hour issues in arbitration, is prohibited from continuing his PAGA claim. Because the arbitrator ruled that the employer did not violate any wage and hour laws against this employee, the employee could not bring a representative claim (PAGA) for other employees. This ruling again shows how important properly constructed employment arbitration agreements can be. Click here to see the ruling: B325261.PDF
• In Tolentino v. Luke’s Roofing, Inc.; the Workers’ Compensation Appeals Board overrules the findings of the Workers’ Compensation Judge who found 100% disability for Tolentino. The Board found that the Judge did not follow California Workers’ Compensation laws in the decision. The case goes back to the Judge with instructions to follow the law. You can read the case here: https://www.dir.ca.gov/wcab/Panel-Decisions-2024/Luis-TOLENTINO-ADJ11314069.pdf

HERE IS AN IMPORTANT DEADLINE FROM THE CALIFORNIA AIR RESOURCES BOARD (CARB).

• December 31, 2024, is the deadline under the Portable Equipment Registration Program to phase out Tier 2 portable diesel engines over 750 bhp, and Tier 3 between 50 and 750 bhp if owned by large fleets. This applies to engines built prior to 2009. You can click here to see the reminder: https://content.govdelivery.com/accounts/CARB/bulletins/3c072a5

  HERE ARE THREE NOTABLE COURT RULINGS THAT HCC MEMBERS NEED TO REVIEW TO AVOID LIABILITIES IN THE FUTURE.

• A jury in San Bernardino awarded a former Walmart employee $34.7 million in defamation damages. The employee was a truck driver who was injured in a vehicle accident. His medical restrictions included “no commercial driving”. The company did not find a job accommodation, and eventually fired the employee. Walmart apparently publicly defamed the employee when it became known that the employee drove an RV for recreational use, and drove himself to medical appointments, but was unwilling to drive commercial vehicles. The jury evidently thought Walmart should have fully investigated the facts before issuing any public remarks. Click here to read more about it: https://www.businessinsurance.com/jury-orders-walmart-to-pay-34-7m-in-defamation-case-involving-injured-truck-driver/
• A federal jury in Dallas Texas has awarded $2.17 million to a former employee of SkyWest Airlines, for emotional harm alleged in a sexual discrimination lawsuit. The jury did not take well to 2 particular actions of SkyWest.
  • When the employee filed a complaint, the “employee relations manager did not interview many employees identified as witnesses to and participants in the harassment or ask obvious follow-up questions. As a result, the investigation did not uncover the full extent of the harassment.”
  • “Although SkyWest promised to discipline participating coworkers and provide department-wide training, the discipline was superficial and SkyWest canceled the training after the employee retired, deciding that it was no longer necessary.”
• You can read more here: https://www.eeoc.gov/newsroom/jury-awards-217-million-against-skywest-airlines-sex-discrimination
• The Federal National Labor Relations Board (NLRB) has overturned its precedent rulings on statements that employers are allowed to make when discussing possible unionization where employees have filed for voting on unionizing. HCC members are reminded that it is very important to consult qualified legal counsel during a potential unionization effort by employees. You can read more here: Board Decision-Siren Retail Corp.pdf

HERE IS SOME VALUABLE INFORMATION TO REVIEW:

• CARB approves incentive funding of $35 Million for businesses to purchase zero-emission trucks, busses, and off-road equipment, with a focus on smaller businesses. You can click here to check out if it applies to you: https://content.govdelivery.com/accounts/CARB/bulletins/3c336e9
• AI Construction News has substantial information on its website regarding technology and artificial intelligence in construction, including a directory of providers. Click here to review it: https://www.constructionindustryai.com/homepages/public
• Cal/OSHA has released its analysis of OSHA statistics for 2023.
  • One of the most relevant for HCC members is the 2023 recordable incidence rates by trade. This includes all recordable injuries or illnesses under the OSHA 300 log. You can review and compare your results with your trade statewide: https://www.dir.ca.gov/oprl/Injuries/2023/2023Table6.html
• As commercial auto insurance continues to be an unprofitable segment for insurers, you can read more about how insurers are trying to underwrite these risks, and what best practices they are looking for: https://riskandinsurance.com/commercial-auto-insurance-struggles-persist-in-2023/?rid=1499241&utm_campaign=RiskandInsurance

Contact Housing Contractors of California Director of Risk Management Bruce Wick with any questions, 760-535-9623, or bwick@housingcontractors.org

HERE ARE A SERIES OF IMPORTANT UPDATES AND INFORMATION FOR HOUSING CONTRACTORS OF CALIFORNIA MEMBERS!

HCC Director of Risk Management Bruce Wick recently attended the International Risk Management Institute’s Annual Construction Risk Conference in San Diego. Bruce has the following updates from the conference:

• January 1, 2025, is the deadline for all balconies in multifamily buildings with 3 or more units, to be inspected with a report to the owner or HOA. Some builders report receiving Construction Defect claims unexpectedly, possibly based on this report. We in the building industry were concerned that these blanket required inspections from SB 721 in 2017 and SB 326 in 2018 might result in referrals to plaintiff attorney firms. HCC members should work collaboratively and quickly with builder clients when made aware of these claims. It would be good for industry to quickly shut down non-meritorious claims arising from these inspections.
• You can click here to see the verbiage of SB 721:https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB721
• You can click here to see the verbiage of SB 326: https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201920200SB326&showamends=false

There were many developments reported as far as the commercial insurance marketplace

• For the global insurance market, there is still quite a bit of capacity, but catastrophic storms and wildfires have caused over $100 billion in insured damages during 2024. This will cause prices to continue to rise and underwriting to be incredibly careful when writing commercial risks. 
• For Builders Risk coverage, which is particularly important for HCC members, there are several important updates. Most the placements are being individually underwritten, so you will need to review the Builders Risk coverage, which is particularly important for HCC members, there are several important updates. Most the placements are being individually underwritten, so you will need to review the Builders Risk coverage for each new project, even if you are collaborating with the same Builder/Owner/GC customer. Rates are still increasing, and retentions are increasing as well. The retentions and deductibles need to be reviewed by HCC members. Most Builder Risk claims are water damage, so those members involved in water issues need to carefully review the coverage and exclusion. And finally, every insurer now has their own coverage form for Builders Risk. It is important that your broker has the capability to review these individualized forms to help you understand the coverage provided. 
  

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• Commercial Auto Insurance continues to have negative loss ratios and will continue to be very costly to renew. There are strong recommendations to install cameras in the dash, and in the front and rear of the vehicle, to fight frivolous claims and keep your loss ratios down
• It is a continuing problem for both General Liability and Builders Risk coverage to have gaps in coverage when projects are completed. There are differing triggers of coverage for when projects are completed, especially when there are delays in the project. Contractors are encouraged to keep calendar diaries for coverage expiration dates and avoid these coverage gaps. 
• It was emphasized how much Artificial Intelligence systems can help with the fact that insurance coverage forms and construction contracts now have little standardization. Parties can sneak in unwanted exclusions or contractual obligations. HCC members are strongly encouraged to discuss with their attorneys and insurance brokers how to utilize AI increasingly to work through this maze of documents to not be caught short. 
• Since so many claims are caused by water damage, there was significant discussion regarding the use of water sensing devices, with the ability to remotely shut water off to the project. It was also recommended that contractors who are involved in potential water damage claims develop formalized procedures for preventing water damage, and procedures for responding to and mitigating water leaks if they happen. One of the key presenters was Alert Labs of Canada, who provides solutions for Plumbing and HVAC Contractors. You can click here for the website: https://www.alertlabs.com/

  Read the full memo here

September 19, 2024

Chair Joseph Alioto and Board Members

Occupational Safety & Health Standards Board

Department of Industrial Relations, State of California

2520 Venture Oaks Way, Suite 350

Sacramento, CA 95833

SUBJECT:    Changes to Residential Fall Protection regulations

Dear Chair Alioto and Members of the Board:

The California Framing Contractors Association along with the Residential Contractors Association and the Housing Contractors of California respectfully submit the comments below. This Coalition represents employers both Union and Non-Union, large and small who engage in residential framing.

This is a fact check of the presentation made by OSHSB staff to the OSHSB Board on August 15, 2024, regarding Residential Fall Protection.

We write this letter to point out much misleading and inaccurate information presented to the Board by Board staff at that Board meeting wherein the Board voted on the Residential Fall Protection proposed regulation.  We understand that the vote already occurred and this information cannot change that outcome.  However, we know that you all, as Board members, rely on information received by your staff in casting your votes.   We, as stakeholders, expect that information provided to you at your Board meetings be unbiased and accurate.  We do not believe the information should be presented in a fashion to “sway” or “persuade” a vote in a particular direction by your staff.   It is vital that you as Board members receive unbiased, accurate information to make an informed decision.  In the presentation provided by your staff just prior to the vote, it appeared the staff was advocating a position rather than providing impartial information.  The testimony at the podium is where the advocacy should be placed.

Below, we have provided detailed responses to identify issues of misleading or inaccurate information presented by the staff on August 15, 2024.

Slide 1-Inaccurate

1. This Title slide shows “Fall Protection in Residential Construction”. The proposed regulatory changes affect commercial roofing construction and all of construction as regards fall protection plans (T8 Section 1671.1).Therefore, the title of the slide and the notices associated with the proposed rulemaking failed to accurately present the proposal resulting in no commercial contractors or labor unions recognizing the proposal actually applied to all construction activities.

Slide 2-Accurate

Slide 3-Accurate

Slide 4-Accurate

Slide 5-Accurate

1. Note: This slide may be accurate in that it states what Fed-OSHA stated to DOSH.However, there is argument that the issues raised are not supported.

Slide 6-Misleading

1. The slide said there were Advisory Committee meetings with Fed/OSHA on November 3 and 4, 2015. These were not advisory. The Fed/OSHA Director said directly 6 foot is lower than 15 feet, and “I have a plane to catch”. There was no opportunity to express how California’s regulations are superior to Federal OSHA’s regulations.
2. The slide said that findings from this meeting were presented to the Board at their January 21, 2016 Business Meeting in Costa Mesa. The Fed/OSHA Director threatened to begin an “action for cause” within 30 days, and take over construction enforcement, if the Board did not capitulate to his desires.
3. The slide said that on April 11, 2016 a meeting reached consensus with Cal/OSHA and Fed/OSHA participation. The consensus reached was limited to perimeter fall protection only. The proposal subsequently presented to the Board was substantially different.

Slide 7-Accurate

Slide 8-Accurate

Slide 9-Inaccurate

1. The slide said that it is a misconception by stakeholders that the SRIA contained significant errors. Industry stakeholders issued a detailed calculation by calculation analysis within 8 days of the SRIA to the Board. The analysis outlined how the SRIA should be recalculated to be accurate. 5 years later, than has never been any response by Cal/OSHA to the detailed analysis by those in the industry.
2. The slide said that the Board hired a reputable consulting company to prepare the SRIA. This is true, the BEAR group is a reputable company.
3. The slide said the consulting company prepared the SRIA in consultation with experts, including the commenter stakeholders and DOF. It is true that BEAR consulted with stakeholders, but did not review their final draft with the industry expert stakeholders, who would know the cost and proper calculations better than anyone. The industry stakeholders would have told them how to make the correct calculations.
4. The slide said the cost estimates reflect only the proposed changes to the existing standard. This is true, that was never contested in the stakeholder response to the SRIA. Which again shows, apparently no one ever read the industry stakeholders detailed response.
5. The slide said the analysis utilized DOF residential projected construction growth rates and underwent multiple levels of internal review. The key point here is that all review is done by those outside the industry. Those inside the industry issued a detailed analysis showing how to make the correct calculations. Any internal review should have included working with industry stakeholders who know their industry the best.
6. The slide said the Board updated the benefits and costs for inflation using DOF projections. This is accurate, and the industry stakeholders used the same inflation factors in their presentation to the Board on August 15, 2024.

Slide 10-Inaccurate

1. The slide said it is a misconception that no efforts were made to provide notice to other trades or contractors affected by the changes to Section 1671.1. The title of the proposal has throughout been called “Residential Fall Protection”. Commercial contractors would not have considered that what was inside the proposal would affect their operations. But the changes to 1671.1, and the subsequent changes to roofing section 1730 affect the commercial construction marketplace.

Slide 11-Misleading

1. The slide said that it is a misconception by construction stakeholders that the hazards involved in installing scaffolds, guardrails, and “tie-off” systems for the first-floor framing processes are greater than the actual framing activities involved. The stakeholders clearly showed through video presentation and testimony to the Board how the length of time of exposure to install fall protection is much greater than the exposure time to do the actual work. Therefore it is a greater hazard for employees to install and uninstall fall protection than to do the actual work.
2. The slide said that “short duration” and “limited exposure” exemptions are not considered ALAE by Fed/OSHA. This language was approved by Federal OSHA in Section 1669 since 1997.The language from 1669 was pulled over into 1716.2.Stating that this language has not been approved by Federal OSHA is misleading at best.
3. The slide said that an employer can use a fall protection plan if the hazard is greater. It is safer not to use a fall protection plan because following the requirements of Section 1716.2 provides standardized safety processes and consistent training of carpenters throughout California for over 20 years.
4. The slide said “All this demonstrates the importance of planning ahead and ensuring fall protection is planned into the work process”. This is an insult to the dedicated work and efforts shown by the construction stakeholders to establish and work to maintain the safest work practices in the country. Further, following the requirements of Section 1716.2 provides extensive planning and processes.

Slide 12-Inaccurate

1. The slide said that it is a misconception by construction stakeholders that there is no effective fall protection for framing employees under 15 feet because you cannot use personal fall protection systems. It says employers have the flexibility to choose based on the circumstances at their workplace. First, the construction stakeholders advised there is no effective conventional fall protection for interior framing work. Secondly, there are no other safe choices for conventional fall protection, which was clearly demonstrated to the Board with the video presented by the construction stakeholders. Further, this ignores all the fall protection methods and procedures included in 1716.2.It is also inaccurate in that 1716.2 requires guardrails at stages of construction at 7 ½ feet around floor openings/stairwells, windows, etc.
2. The slide said OSHA advises they rarely encounter real-world situations in which conventional fall protection is truly infeasible. As the construction stakeholders have clearly outlined previously to the Board, Fed/OSHA allows employees to tie off with personal fall protection at a 9-foot height. This is unsafe, and completely against manufacturer’s recommendations. They also allow the use of ladders, which is also as unsafe as the tie off at 9 feet. Ladders are an unstable platform, leading to falls, greater ergonomic strain, and use of pneumatic nailers near the head and chest, instead of around the feet.
3. The slide said Fed/OSHA directs the reader to the 2020 OSHA Guidance Document titled “Fall Protection in Residential Construction”. This document advises that “Residential construction employers generally must ensure that employees working six feet or more above lower levels use guardrails, safety nets, or personal fall arrest systems. As we have clearly shown the Board, none of these systems work for interior fall protection. This document also states “If the employer can demonstrate that use of conventional fall protection methods is infeasible or creates a greater hazard, it must ensure that a qualified person: Creates a written, site-specific fall protection plan in compliance with 29 CFR 1926.502(k); and Documents, in that plan, the reasons why conventional fall protection systems are infeasible or why their use would create a greater hazard”. We have petitioned Fed/OSHA to utilize this plan, verbatim to their language. They have refused.
4. The slide also said Fed/OSHA directs the reader to the 2011 OSHA Fact Sheet titled “Reducing Falls During Residential Construction: Installing Roof Trusses”. This Fact Sheet states “Guardrails, nets, or PFAS (conventional fall protection) may not be practical for all phases of truss installation. Instead, employers should plan to use other methods, such as ground assembly, scaffolds, aerial lifts, or ladders to keep workers safe. Ground Assembly does not work in most residential construction. Scaffolds don’t work because of the interior bracing, and most California lot lines don’t allow the use of aerial lifts. Which again reduces to the unsafe use of ladders, which is why Cal/OSHA has utilized Section 1716.2 to great success for the last 22 years.
5. The slide also said Fed/OSHA directs the reader to the March 21, 2024 presentation OSHA Directorate of Construction gave at the San Diego Board Meeting. That presentation showed no applicable residential construction operations in California.

Slide 13-Inaccurate

1. The slide said that construction stakeholders have a misconception that the proposed regulation will force the industry to utilize equipment or methods that are infeasible or create a greater hazard, or will mandate the use of ladders. Construction stakeholders have clearly stated that Fed/OSHA allows two extremely unsafe actions as compliant, tying off at 9 feet, or using ladders.
2. The slide said that if an employer demonstrates that conventional fall protection is infeasible or creates a greater hazard, they can utilize Section 1671.1 and 1671.2. This creates chaos in compliance and enforcement, because it is now a subjective argument over infeasibility or greater hazard, that will vary with each Cal/OSHA inspector. That is why most employers subject to Fed/OSHA regulations use the unsafe methods if they use any methods at all, to avoid the argument.
3. The slide said that the proposal does not mandate the use of ladders. This is so misleading. Construction stakeholders have advised multiple times that the most unsafe action is to tie off employees at a 9-foot height. Because no other conventional fall protection is feasible, ladders wind up as the only option for interior framing under Fed/OSHA regulations.

Slide 14-Misleading

1. The slide said that construction stakeholders have a misconception that the proposed regulation will lead to an increased use of fall protection plans. The construction stakeholders have clearly evidenced that if employers are only given the choice to work off of ladders or use a fall protection plan, many will choose the fall protection plan. But as already explained, now the employer and Cal/OSHA are having a subjective argument over that use. It is much better to utilize the positive fall protection provided by Section 1716.2, working off of stable surfaces through proven effective methods.

Slide 15-Misleading

1. The slide said that construction stakeholders have a misconception that Fed/OSHA Appendix E (a Mon-Mandatory Guideline) recognizes the infeasibility associated with residential framing activities. While Appendix E is Non-Mandatory, it is usable under Fed/OSHA, and clearly states “The reasons outlined in this sample fall protection plan are for illustrative purposes only and are not necessarily a valid, acceptable rationale (unless the conditions at the job site are the same as those covered by these sample plans) for not using conventional fall protection system”. The job site conditions are the same as those covered by the sample plans.
2. The slide also said that construction stakeholders have a misconception that using limited portions of Fed/OSHA Appendix E (a Mon-Mandatory Guideline) suffices to comply with Federal OSHA requirements for the use of fall protection plans. See answer to number 1 above. It is true Cal/OSHA has different standard requirements for fall protection plans, but that is a separate question to Fed/OSHA accepting the use of its own Appendix E when it is applicable.

Slide 16-Inaccurate

1. The slide said that construction stakeholders have a misconception that CA Title 8 Section 1716.2 provides a positive/physical means of fall protection. As clearly evidenced through the video presented to the Board, Section 1716.2 requires employees to stand on and work from a stable surface, which is both positive and physical.
2. The slide also said that construction stakeholders have a misconception that CA Title 8 Section 1716.2 meets Fed/OSHA’s indices of effectiveness under 29 CFR 1902.4(b)(2)(vii). This section states “Provides that State standards, where appropriate, contain specific provision for the protection of employees from exposure to hazards, by such means as containing appropriate provision for use of suitable protective equipment and for control or technological procedures with respect to such hazards, including monitoring or measuring such exposure”. 1716.2 very appropriately complies with this section.

Slide 17-Inaccurate.

1. The slide said the construction stakeholders have a misconception that the video shown to the Board evidences interior fall protection does not work. See the response to slide 13, number 3.
2. The slide also said that the proposal does not mandate the use of ladders, and the video demonstrates the need to PLAN ahead. See the response to slide 11, number 4.
3. The slide also said that Fed/OSHA rarely encounters real-world situations in which conventional fall protection is truly infeasible. It is sad that Fed/OSHA has minimal actual experience on residential jobsites. The construction stakeholders have repeatedly asked Fed/OSHA and framing contractors in other states where contractors are using conventional fall protection safely, and we have never been told or shown about its use anywhere in the country.

Slide 18-Irrelevant

1. The slide said the construction stakeholders have a misconception that Fed/OSHA should have come to the Board to explain their reasoning before adopting this proposal. They said the construction stakeholders should have submitted written comments in 1994 when OSHA was adopting their standards. This is misleading, Fed/OSHA rules do not apply in California. Fed/OSHA subsequently in 1999 developed its Directive 03-00-001, which allowed fall protection plans up to 48 feet for residential framing. That Directive was re-written in 2011, eliminating the 48 feet option. In the meantime, California’s framing contractors and Carpenters Union representatives developed a much better regulation, Section 1716.2. With California typically representing 20% of the nation’s residential construction, how could Fed/OSHA not even take one opportunity to learn and understand how the Carpenters Union and framing contractors believe California’s regulation is safer and more protective. They should at least have come to the Board with that knowledge, and tried to make their case that their regulation is better, based on a factual discussion.

Slide 19-Misleading

1. The slide states that there are fatalities and injuries associated with falls for heights between 6 and 15 feet, as if the construction stakeholders did not know this. Yes, there are fatalities and injuries at those heights, which is why the Carpenters Union and the framing contractors in California worked so hard to minimize these fatalities and injuries as much as possible. The slide does not differentiate whether these falls were off of ladders, being unsafely tied off, or due to lack of compliance with OSHA regulations.

Slide 20-is a new Title slide, Fall Protection Fatalities by Height in California 2011-2022.

Slide 21-Misleading

1. The slide said there were 70 fatal falls in California between 6 and 15 feet over this ten-year period. This slide does not clarify whether it is construction only, but even if it were, it does not differentiate between falls off of ladders, by roofing employees, through unprotected skylights, or where there was no regulatory compliance. Again, 1716.2 minimizes the exposure to the greatest extent possible at the 9-foot plate line height of residential construction.

Slide 22-is a graph of the information on slide 21

Slide 23-Misleading

1. The slide said that the fall fatality data does not show a sustained and significant reduction in fall fatalities after the effective date (August 6, 2024) of Section 1716.2. First, obviously there is a typo in the slide, the effective date was 2004. Secondly, the SRIA on this proposal said that the projected fatalities saved would be 2.8 per year. While we disagree that this proposal would save any fatalities, if that number were true, it could not possibly show a significant reduction when you compare that number to the total number of fall fatalities per year which average about 36. Further, the Division could not point to even one fatality in residential construction from a fall of an employee engaged in residential framing while in compliance with 1716.2, since its effective date.

Slide 24-This is the graph for the information in slide 23

Slide 25-References the proposed delay of the effective date.

Slide 26-Misleading

1. The slide purports to show 4 email communications with construction stakeholders, and 3 meetings, as apparently significant communication with the construction stakeholders. While we appreciate that there was some communication, the significance and magnitude of this proposal required substantially more communication. Much of this communication was not a dialogue, only input from stakeholders.

Slide 27-States reasons for declining some proposed language.

Slide 28-Is a list of communications between OSHSB and Fed/OSHA

Slide 29-Info on the first 15-day notice

Slide 30-Misleading

1. The slide said that 5 years of data from OSHA 300 logs from 11 large framing contractors can’t be used as a representation of each and every framing contractor in California, as the injury data from the 11 California Framing Contractors Association members is not representative of non-complying employers. It has been a topic of discussion for many years that we have minimal specific injury data in residential construction in California. Here, we have a group of large contractors breaking out specific information relative to falls from the interior, exterior, ladders, and also injuries from pneumatic nail guns. Each of these categories are very informative to the overall safety of 1716.2. Construction stakeholders have clearly evidenced that ladder and pneumatic nail gun injuries and fatalities will increase dramatically with the Fed/OSHA proposal. This data represents valuable information relative to this important concept. The second point referencing non-complying employers makes no sense. Non-complying employers aren’t following Cal/OSHA regulations, and won’t follow Federal regulations. This is another important point to the effectiveness of 1716.2, as it is a much clearer regulation to see non-compliance and bring enforcement action.

Slide 31-Helpful

1. The slide said that the Board relied on commenters information to draft the proposed language for 1716.2(e)(2). This language is helpful to minimize the loss of safety due to the Fed/OSHA proposal, but obviously still leaves gaps in providing the safest way for framing work to be done.

Slide 32-Restates the information in slide 30 relative to the FSOR

Slide 33-Helpful

1. The slide said how Fed/OSHA’s concerns with the 2^nd 15-day notice language were addressed.

Slide 34-Advises that there will be a Phase II looking at fall protection in commercial construction

Slide 35-Inaccurate

1. The slide said that a request of the construction stakeholders to use part of Fed/OSHA Appendix E would be confusing, and create inconsistency in safety, enforcement or compliance. It is not understandable that using the parts of Appendix E that clearly coincide with the 22-year use of 1716.2 in California would create confusion. It would minimize confusion, and promote the consistency from project to project that California has had for those 22 years.
2. The slide also said that there is a problem using just a portion of Fed/OSHA’s Appendix E. It is not understandable how including the portions of Appendix E relative to leading edge and precast concrete work would help when we are focused on residential construction.

Slide 36-Misleading

1. The slide said it disagrees with the construction stakeholders that without the word “exterior”, section 1716.2(e)(2) would be rendered useless. It said several Title 8 regulations using the term leading edge(s) don’t have a distinction between interior and exterior. We are not talking about leading edges here, and construction stakeholders are doing their best to make the new proposal as clear as it can be.
2. The slide also said that as the job evolves, it is sometimes hard to distinguish exterior from interior. This statement doesn’t make sense. Residential construction in California is almost all done off of concrete slabs, which clearly define exterior and interior.

Slide 37-Makes clear the sad state of affairs with Fed/OSHA

1. The slide said that California is at risk with what Fed/OSHA could do if the Board does not capitulate to Fed/OSHA’s demands. This statement shows the level of hypocrisy Fed/OSHA apparently now operates under. Both the Carpenters Union and framing contractors in California believe the current 1716.2 is the safest environment for California carpenters to perform framing work. Even though California represents 20% of residential construction in the country, Fed/OSHA made no effort to try to understand the innovation and effectiveness of 1716.2. The credibility hit Fed/OSHA is taking with this bullying approach is enormous.

Slide 38-Advises that Fed/OSHA’s FAME report continues to list residential fall protection as an issue

Slide 39-Inaccurate

1. The slide said that this proposal is the best solution to ensure that both Fed/OSHA and Stakeholders have been heard. The reality is that Fed/OSHA has made their voice loud and clear, but has refused to listen to the construction stakeholders. This proposal is not the best solution, as it is far less safe for California’s carpenters.
2. The slide also said that current regulations are not as least as effective as Fed/OSHA’s regulation. The construction stakeholders have provided substantial evidence that 1716.2 is far more effective than the Fed/OSHA regulations.
3. The slide also snidely said that yes, there are fatalities and injuries associated with falls for heights between 6 and 15 feet. See the answer to slide 19, number 1.

AN IMPORTANT ALERT FROM CAL/OSHA:

• Cal/OSHA reminds employers to follow the regulations on wildfire smoke, especially those working in Southern California. Here is their press release: https://www.dir.ca.gov/DIRNews/2024/2024-70.html

TRAVELERS INSURNACE COMPANY ISSUES THEIR ANNUAL INJURY REPORT, WHICH PROVIDES VALUABLE INFORMATION ON CURRENT WORKPLACE INJURY TRENDS. Click here to see the report: https://www.travelers.com/resources/business-topics/workplace-safety/injury-impact-report

THE CSLB (CONTRACTORS’ STATE LICENSE BOARD) ISSUES A REMINDER TO PROVIDE YOUR TOP 3 WORKERS’ COMPENSATION CLASS CODES AT YOUR NEXT LICENSE RENEWAL! The codes are the three codes with the highest estimated payroll as shown on your current workers’ compensation insurance policy or self-insured program. The CSLB will not be able to process the renewal without this information. If you have less than 3 class codes listed, you can show the 1 or 2 that are listed. Click here for more information: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=7125.6&lawCode=BPC

HERE IS A FEDERAL CIRCUIT COURT RULING INVALIDATING AN EMPLOYER’S ARBITRATION AGREEMENT DUE TO UNCONSCIONABILITY. We remind Housing Contractor of California that employment arbitration agreements are extremely helpful in many types of employment claims, but must be written properly, and have reasonable procedures for employees to agree to them. Here, USF Reddaway, Inc., a major trucking firm, was prohibited from enforcing their agreement. The rationale for procedural unconscionability is discussed on pages 9-19, and the rationale for substantive unconscionability is discussed on pages 19-23. Click here to read the case: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/22/21-55685.pdf

HERE ARE SEVERAL ENFORCEMENT ACTIONS INVOLVING DISCRIMINATION CLAIMS. We have been alerting members that employment discrimination claims are rising, and HCC members need to be well informed when making employment decisions on how to avoid acting in a discriminatory fashion.

• Construction Company Balfour Beatty Infrastructure, Inc., must pay $80,000, and submit to multiple actions and reporting to the Federal EEOC (Equal Employment Opportunity Commission for claims involving one female employee. The female truck driver was sexually harassed and transferred to an undesirable work location when she complained. You can read the case here: https://www.eeoc.gov/newsroom/balfour-beatty-infrastructure-inc-pay-80000-settle-eeoc-sexual-harassment-and-retaliation
• The Federal EEOC files a lawsuit against FedEx for disability discrimination, alleging they failed to follow the ADA (Americans with Disabilities Act), by refusing to consider reasonable accommodations for workers with medical restrictions. FedEx has had a 100% healed policy for ramp transport drivers, which did not allow for accommodations. You can read the press release here: https://www.eeoc.gov/newsroom/eeoc-sues-fedex-disability-discrimination
• The Federal EEOC also files disability discrimination claims against three other employers, for failing to provide reasonable accommodations. You can read more here: https://www.eeoc.gov/newsroom/eeoc-sues-three-employers-disability-discrimination
• The California 2^nd Appellate District confirms an award of $3.475 Million for attorney’s fees and costs in a wrongful termination claim to the plaintiff, while also confirming the $3.35 million award for economic and non-economic damages. This case involved three trials and 9 years. It is a good reminder of potential ramifications when considering offers to settle cases early. You can read the ruling here: B323715.PDF (ca.gov)

A PHILADELPHIA JURY AWARDS $68.5 MILLION IN DAMAGES TO THE FAMILY OF A WORKER KILLED WHEN HE FELL THROUGH AN INADEQUATE GUARDRAIL FIVE STORIES UP ON A TOWNHOUSE SITE! The award was apportioned between six different contractors on the project. HCC members are reminded to inspect guardrails on projects, especially when installed by other contractors. You can read more here: https://www.insurancejournal.com/news/east/2024/07/03/782298.htm

Contact Housing Contractors of California Director of Risk Management Bruce Wick with any questions, 760-535-9623, or bwick@housingcontractors.org

The 4^th California Appellate District gives a positive ruling on corporate and partnership agreements!

The ruling advises that while California laws are usually against non-compete agreements, they can be valid in certain cases. The case here was where a former part owner of a business sold their partial interest, and contested the contractual agreement that they could not compete against that business. The Justices applied a reasonableness standard, advising that no California Appellate court had ruled on this issue for a sale of a partial interest. This ruling should clarify the law for parties such as contractors who may establish partnerships or corporations with multiple owners. You can read the ruling here: G061911.PDF (ca.gov)

Here are five important informational pieces for Housing Contractors of California members to review.

• The National Safety Council reviews vital potentially life-saving information regarding having Naloxone type medication available on worksites. Both Cal/OSHA and the California Legislature are reviewing possible laws or regulations that would require Naloxone in first aid kits. HCC members can consider this issue, in light of the epidemic of opioid overdoses that take place. An important point to review with your first aid kit provider is how to properly store Naloxone, due to temperature requirements. You can read the short article here: https://www.nsc.org/safety-first/survey-results-demonstrate-gaps,-opportunities-to

   

• Cal/OSHA has continued to add content and guidance on heat illness prevention to its website. This information is helpful for dealing with the new Indoor Heat Illness Prevention regulations, which took effect July 23, 2024. You can click here to review the latest information: Cal/OSHA Heat Illness Prevention Guidance and Resources

   

• CARB (California Air Resources Board) announces its Cal Fleet Advisor program to give guidance to companies with commercial vehicles that will need to transition to zero emission vehicles. You can register to have consultation with CARB staff or join an online forum of fleet managers who are trying to navigate the complicated rules. Click here for more information: https://content.govdelivery.com/accounts/CARB/bulletins/3aff564

   

• The Insurance Journal publishes an article regarding nuclear liability verdicts. These verdicts are very large awards in auto and general liability claims, where juries give far more money to plaintiffs than is reasonable. This article outlines how important it is to select the right attorney to defend these cases. You can read the article here: https://www.insurancejournal.com/news/national/2024/07/29/785662.htm

   

• The WCIRB (Workers’ Compensation Insurance Rating Bureau) has updated information provided by its Policyholder Ombudsman. Housing Contractors of California Director of Risk Management Bruce Wick is the employer representative on the WCIRB Ombudsman Oversight Committee. Robin McGuire has been the Ombudsman for several years and is very helpful to employers trying to resolve problems or get a better understanding of workers’ compensation issues. There is an updated website portal on timekeeping for dual wage classifications in construction, which would be good for HCC members to review. They can click here for that link: https://www.wcirb.com/products-and-services/products-and-services/employer-resources/time-card-recordkeeping-requirements

Here is the general link to the Ombudsman office: https://www.wcirb.com/products-and-services/products-and-services/employer-resources

Here are three important enforcement items.

• An Administrative Law Judge (ALJ) affirms Cal/OSHA giving four citations to a contractor for fall protection equipment violations. Three of the citations were classified as serious, with total penalties of $39,790. There was also a hard had citation. It is unfortunate that the employee, who was a safety foreman for the company, died in a fall. Housing Contractors of California members who use fall protection equipment should review this ALJ ruling to ensure they are in compliance with the regulations.
  • The one general citation was for a missing label on one of the two Self Retracting Lanyards (SRL) issued to the employee. Cal/OSHA gave a citation even though the employer only utilized one type of SRL for all employees.
  • The first serious citation was that the employer failed to follow the manufacturer’s instruction by not removing a deteriorated SRL from service.
  • The second serious citation was for not following Title 8 Section 1670 (b) (19), which requires a competent person to inspect all company personal fall arrest systems not less than twice per year.
  • The third serious citation was for not effectively training employees on how to inspect and maintain their fall protection equipment. The specifics given were that employees were not trained to inspect labels. Even though the employer only used one type of SRL, the ALJ ruled that each label shows the age of the equipment and its rated capacity.
  • You can read the ruling here: ALJ Decision, The Herrick Corporation, Inspection number 1372705 (ca.gov)

     

• Cal/OSHA reinvigorates the Bureau of Investigations Unit (BOI). This unit has been very understaffed for many years. The purpose of the Unit is to process referrals from Cal/OSHA district offices where an occupational accident may give rise to criminal charges against the employer. These cases usually involve fatal accidents but can sometimes involve serious non-fatal accidents. The important note for HCC members is to have an experienced Cal/OSHA defense attorney advise you if you have a serious or fatal accident. You can click here to read the release: Cal/OSHA bolsters staff to investigate the most egregious violations, referring them for criminal prosecution | California Department of Industrial Relations

   

• The Federal EEOC files a lawsuit against a Chicago, IL employer for wrongfully terminating an electrician. The employee had worked for the company for some time. He had declared up front he had a back issue from serving in the U.S. Navy; but he passed the pre-hire physical and had no problems doing the work. The company terminated him due to co-workers expressing concern he might fall off ladders or stairs because they thought he struggled to navigate them. The company was considered in the wrong because it did no investigation and had no medical evidence that the employee could not do the job. Housing Contractors of California members are reminded to conduct a fair and reasonable investigation when considering terminations. You can read the press release here: https://www.eeoc.gov/newsroom/eeoc-sues-alto-ingredients-disability-discrimination

The California Supreme Court rules that public agencies are not subject to PAGA claims!

Public agencies in California have around 12% of the workforce. We expect that PAGA plaintiff attorneys will now avoid filing against these entities and concentrate more on private employers. It is therefore even more vital that Housing Contractors of California members take full advantage of the PAGA reforms passed in June. Members can review our webinar on how to minimize PAGA exposure by taking a few proactive steps. You can read the ruling here: S279137.PDF (ca.gov)