New California Law Aims to Punish Contractors for Wage Violations They Did Not Commit. Huh?

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Suppose you are a general contractor, hired to erect a monument to honor Carlos Santana’s monument-worthy performance of the national anthem during last year’s NBA Finals. Because the monument will be so tall (to house the many awards he should win for it), you need to hire subcontractors. Suppose the subcontractors cheat their employees, though, and don’t pay them a proper wage.

Under a new California law, the general contractor is strictly liable for the sub’s wage violations.

There’s no balancing test. No Right to Control Test. No joint employment finding needed. It’s strict liability. Call it the Jerry Brown corollary to Colin Powell’s Pottery Barn Rule. Someone else breaks it, you own it.

I hear you: “Not fair!” But as we all know, fair is not a required feature element of employment law in California. (Fair may still be an element of due process, however, for those who may seek to challenge the constitutionality of this law.)

The new law, cleverly titled “Section 218.7,” took effect January 1, 2018.

To try to protect themselves, contractors may require their subs to show proof of payment by the subs to its employees. They may also tell noncompliant subs, “you’ve got to change your evil ways, baby, before I start loving you.” But most contractors probably won’t say that.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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Did You Know You Can Be Cited for OSHA Violations for Non-Employee Workers?

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Can OSHA cite your business for conditions that affect another company’s employees? Maybe.

OSHA’s Multi-Employer Citation Policy addresses who gets cited for violations that occur on a multi-employer worksite. If your company hosts staffing agency workers, that may include you.

The policy has been subjected to several legal challenges, though, based on an argument that OSHA obligations extend only to an employer’s own employees. One of these challenges is currently pending in the Fifth Circuit Court of Appeals, based on a dispute over an Austin, Texas, construction site.

While we wait for a decision, though, here’s what OSHA has to say about its authority to issue citations on multi-employer worksites: Continue reading