Construction Today - October 2016 - 7

the right to update their personnel information - including their
social security number (SSN). If a long-term employee wants to
"update" his or her SSN, and admits the one you have on file was
fraudulently obtained, you cannot take negative employment
action. It is also a crime in California to threaten to deport someone, and the penalty can include loss of your business license.
Make sure your supervisors know this.
* Respect Employee Privacy - Employers often track employee
activity for various work-related reasons. Common monitoring
methods include tracking company vehicles, reviewing employee email, social media and cell phone use and using hidden
cameras. Most monitoring is allowed as long as the employees
are notified of the potential invasion of their privacy - but the
act of notifying them may defeat the purpose of monitoring.
Audio recording is almost always illegal - as are cameras in
changing rooms or bathrooms. Reading personal emails and
monitoring off-duty behavior is also almost always illegal. Make
sure there is a legitimate reason for each potential intrusion
into the employee's life, and have your monitoring practices
reviewed by competent counsel.
* Adopt a Smartphone Policy - Nonexempt employees who check
emails and texts, make and receive phone calls or work remotely
after hours can create overtime liability for the company - and
the smartphone records each and every violation. Reduce your
risk by not giving company phones to nonexempt employees
and have a policy covering personal phone use and/or company
phone use that is legal and enforced consistently. California law
requires reasonable reimbursement when employees use their
personal smartphones to conduct company business - even if
the employee has an unlimited plan. Finally, all employers must
have a policy forbidding cell phone use while driving for work,
even if the company does not provide cell phones.
* Review Your OFCCP Compliance - Federal law requires federal
contractors to attract, retain and track the hours worked by certain covered categories (including women, minorities, disabled
individuals and veterans), and to comply with an affirmative
action plan. The rule to avoiding potential violations here is
simple: conduct a self-audit of your practices (with counsel) to
ensure you are compliant and correct any deficiencies before
you are audited by the OFCCP and face potential liability.
* Be Prepared for Medical Marijuana Issues - California employers are not required to allow medical marijuana use at work, but
must accommodate the underlying medical condition. Applicants and employees will often "volunteer" their medical marijuana status. Medical marijuana should be listed as an "illegal
drug," for the purposes of your policy, and make sure that your
managers are trained on how they should respond to medical
marijuana questions.

Todd R. Wulffson is
managing partner in the
Orange County office
of Carothers DiSante
& Freudenberger LLP,
a leading California
employment, labor and
business immigration law
firm providing litigation
defense and counseling
to California employers.
Wulffson has 25 years
of experience counseling and defending
businesses in labor and
employment issues and
has extensive experience
representing employers
across the entertainment,
manufacturing, banking,
hospitality, financial
services and retail industries. To contact Wulffson,
email him at twulffson@
cdflaborlaw.com or call
(949) 622-1661.
David Szwarcsztejn
is an attorney in the
Orange County office
of Carothers DiSante &
Freudenberger LLP, an
award-winning California
labor and employment
law firm. Szwarcsztejn
represents California employers in a wide variety
of employment claims,
including wrongful termination, wage and hour
violations, discrimination,
harassment, breach of
contract, trade secrets,
fraud and unfair competition. To contact him,
email him at davids@
cdflaborlaw.com or call
(949) 622-1661.

7

OCTOBER 2016 CONSTRUCTION-TODAY.COM

CALIFORNIA CONSTRUCTION

"regular commute" does. If employees
drive to various job sites - particularly in
traffic - a system for capturing excessive
travel time needs to be created and monitored. Again, putting the obligation on
the employee to report anything beyond
a regular commute credit is fine, but a
policy or practice of not paying for travel
time to job sites is simply a class action
lawsuit waiting to happen.
* Safety Violations Carry Huge Liability -
Lax workplace safety can result in a slew
of negative consequences, including
expensive workers' compensation claims
and insurance, Cal-OSHA investigations
and citations and even orders stopping
work at your job sites. Review your
policies periodically to ensure compliance with evolving standards, train all
supervisor and employees and strictly
enforce workplace safety rules - before
an accident occurs. Consider having a
consultant do a periodic assessment of
your policies and job sites. Being proactive and consistent can go a long way
toward reducing claims and fines.
* Classify Employees Correctly - Federal
law looks at an employee's "primary
duties" to determine whether they are
exempt from overtime. California law,
however, looks at what they spend more
than 51 percent of their time doing.
Just because someone has the title of
supervisor, foreperson or lead and is paid
a salary, does not mean they are exempt
from overtime. Similarly, just because
you have an independent contractor
agreement with someone, does not mean
they are not legally your employee. Misclassification of employees is a common
class action claim, and the penalties for
violation make these common audit
issues for the Labor Commissioner. Do
a self-audit about once per year with
counsel so you can correct any issues and
the audit is not discoverable in a lawsuit.
* Don't Discriminate Based on Immigration Status - California employees have


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Table of Contents for the Digital Edition of Construction Today - October 2016

Contents
Construction Today - October 2016 - Cover1
Construction Today - October 2016 - Cover2
Construction Today - October 2016 - 1
Construction Today - October 2016 - Contents
Construction Today - October 2016 - 3
Construction Today - October 2016 - 4
Construction Today - October 2016 - 5
Construction Today - October 2016 - 6
Construction Today - October 2016 - 7
Construction Today - October 2016 - 8
Construction Today - October 2016 - 9
Construction Today - October 2016 - 10
Construction Today - October 2016 - 11
Construction Today - October 2016 - 12
Construction Today - October 2016 - 13
Construction Today - October 2016 - 14
Construction Today - October 2016 - 15
Construction Today - October 2016 - 16
Construction Today - October 2016 - 17
Construction Today - October 2016 - 18
Construction Today - October 2016 - 19
Construction Today - October 2016 - 20
Construction Today - October 2016 - 21
Construction Today - October 2016 - 22
Construction Today - October 2016 - 23
Construction Today - October 2016 - 24
Construction Today - October 2016 - 25
Construction Today - October 2016 - 26
Construction Today - October 2016 - 27
Construction Today - October 2016 - 28
Construction Today - October 2016 - 29
Construction Today - October 2016 - 30
Construction Today - October 2016 - 31
Construction Today - October 2016 - 32
Construction Today - October 2016 - 33
Construction Today - October 2016 - 34
Construction Today - October 2016 - 35
Construction Today - October 2016 - 36
Construction Today - October 2016 - 37
Construction Today - October 2016 - 38
Construction Today - October 2016 - 39
Construction Today - October 2016 - 40
Construction Today - October 2016 - 41
Construction Today - October 2016 - 42
Construction Today - October 2016 - 43
Construction Today - October 2016 - 44
Construction Today - October 2016 - 45
Construction Today - October 2016 - 46
Construction Today - October 2016 - 47
Construction Today - October 2016 - 48
Construction Today - October 2016 - 49
Construction Today - October 2016 - 50
Construction Today - October 2016 - 51
Construction Today - October 2016 - 52
Construction Today - October 2016 - 53
Construction Today - October 2016 - 54
Construction Today - October 2016 - 55
Construction Today - October 2016 - 56
Construction Today - October 2016 - 57
Construction Today - October 2016 - 58
Construction Today - October 2016 - 59
Construction Today - October 2016 - 60
Construction Today - October 2016 - 61
Construction Today - October 2016 - 62
Construction Today - October 2016 - 63
Construction Today - October 2016 - 64
Construction Today - October 2016 - 65
Construction Today - October 2016 - 66
Construction Today - October 2016 - 67
Construction Today - October 2016 - 68
Construction Today - October 2016 - 69
Construction Today - October 2016 - 70
Construction Today - October 2016 - 71
Construction Today - October 2016 - 72
Construction Today - October 2016 - 73
Construction Today - October 2016 - 74
Construction Today - October 2016 - 75
Construction Today - October 2016 - 76
Construction Today - October 2016 - 77
Construction Today - October 2016 - 78
Construction Today - October 2016 - 79
Construction Today - October 2016 - 80
Construction Today - October 2016 - 81
Construction Today - October 2016 - 82
Construction Today - October 2016 - 83
Construction Today - October 2016 - 84
Construction Today - October 2016 - 85
Construction Today - October 2016 - 86
Construction Today - October 2016 - 87
Construction Today - October 2016 - 88
Construction Today - October 2016 - 89
Construction Today - October 2016 - 90
Construction Today - October 2016 - 91
Construction Today - October 2016 - 92
Construction Today - October 2016 - 93
Construction Today - October 2016 - 94
Construction Today - October 2016 - 95
Construction Today - October 2016 - 96
Construction Today - October 2016 - 97
Construction Today - October 2016 - 98
Construction Today - October 2016 - 99
Construction Today - October 2016 - 100
Construction Today - October 2016 - 101
Construction Today - October 2016 - 102
Construction Today - October 2016 - 103
Construction Today - October 2016 - 104
Construction Today - October 2016 - 105
Construction Today - October 2016 - 106
Construction Today - October 2016 - 107
Construction Today - October 2016 - 108
Construction Today - October 2016 - 109
Construction Today - October 2016 - 110
Construction Today - October 2016 - 111
Construction Today - October 2016 - 112
Construction Today - October 2016 - 113
Construction Today - October 2016 - 114
Construction Today - October 2016 - 115
Construction Today - October 2016 - 116
Construction Today - October 2016 - 117
Construction Today - October 2016 - 118
Construction Today - October 2016 - 119
Construction Today - October 2016 - 120
Construction Today - October 2016 - 121
Construction Today - October 2016 - 122
Construction Today - October 2016 - 123
Construction Today - October 2016 - 124
Construction Today - October 2016 - 125
Construction Today - October 2016 - 126
Construction Today - October 2016 - 127
Construction Today - October 2016 - 128
Construction Today - October 2016 - Cover3
Construction Today - October 2016 - Cover4
http://digital.construction-today.com/nxtbooks/knighthouse/ct_vol17issue6
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http://digital.construction-today.com/nxtbooks/phoenix/ct_20141112
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http://digital.construction-today.com/nxtbooks/phoenix/ct_201208
http://digital.construction-today.com/nxtbooks/phoenix/ct_201207
http://digital.construction-today.com/nxtbooks/phoenix/ct_201206
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http://digital.construction-today.com/nxtbooks/phoenix/ct_201201
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http://digital.construction-today.com/nxtbooks/phoenix/ct_20111011
http://digital.construction-today.com/nxtbooks/phoenix/ct_201109
http://digital.construction-today.com/nxtbooks/phoenix/ct_201108
http://digital.construction-today.com/nxtbooks/businessmedia/ct_201107
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http://digital.construction-today.com/nxtbooks/schofield/ct_200912
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