Gavin Howe
California Labor Code Section 1102.5(b) prohibits an employer from retaliating against an employee who discloses information to a law enforcement agency if the employee has a reasonable cause to believe that the information discloses a violation of federal or state law. In addition, an employer cannot retaliate against an employee for refusing to violate public policy or reporting a violation of public policy. Caltrans has a zero-tolerance policy for violence, threats, harassment, intimidation, and abusive conduct in the workplace. Caltrans personnel must not instruct contractors' employees in equipment operation, as suggestions may be interpreted as direct orders.
| Characteristics | Values |
|---|---|
| Caltrans employees instructing contractors' employees | Caltrans employees should not instruct contractors' employees in equipment operation as suggestions may be interpreted as direct orders. |
| Caltrans employees adjusting contractors' equipment | Caltrans employees should not adjust contractors' equipment or ride on it unless it is designed for personnel transportation or required for work inspection. |
| Caltrans employees and workplace violence | If a Caltrans employee is involved in workplace violence or harassment, the Construction engineer will consult with the deputy district director of Administration, Legal, and deputy district director of Construction before reassignment. |
| Caltrans zero-tolerance policy | Caltrans has a zero-tolerance policy for violence, threats, harassment, intimidation, and abusive conduct in the work environment. |
| Caltrans and payroll records | In the case of delinquent, inadequate, or discrepant certified payroll records, Caltrans sends a letter to the prime contractor instructing them to provide the requested information or corrections within 15 calendar days. |
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What You'll Learn
- Caltrans employees cannot instruct contractors' employees to operate equipment
- Caltrans enforces contract requirements, not safety orders
- Caltrans has a zero-tolerance policy for workplace violence, threats, and harassment
- Caltrans may be the exposing employer if employees are exposed to hazards
- Caltrans must conduct a hearing for violations of the Subletting and Subcontracting Fair Practices Act
Caltrans employees cannot instruct contractors' employees to operate equipment
Caltrans employees are prohibited from instructing contractors' employees to operate equipment. This is because the contractor may interpret suggestions from a Caltrans employee as direct orders from a resident engineer. This dynamic could lead to confusion and potential safety risks, as the contractor's employees may feel pressured to follow the Caltrans employee's instructions, even if they deviate from standard operating procedures or safe work practices.
To maintain clear lines of responsibility and authority, Caltrans personnel must refrain from directly instructing or overseeing the operation of the contractor's equipment. Instead, they should allow the contractor's employees to work according to the guidelines and protocols established by their organization. This ensures that the contractor's employees are solely responsible for the operation of their equipment and that any suggestions or instructions are given by the appropriate supervisory personnel within their organization.
Additionally, Caltrans employees must also avoid adjusting or making any physical alterations to the contractor's equipment without authorization. The only exception to this rule is if Caltrans personnel need to utilize the contractor's equipment for their intended purpose, such as inspecting specific features of the work that require the use of specialized equipment. In such cases, Caltrans employees can use the equipment, but any adjustments or changes to the equipment's settings or functionality should still be handled by the contractor's authorized personnel.
It is important to note that this guideline is in place to maintain a safe and regulated work environment. By following this protocol, Caltrans and the contractor can ensure that equipment is operated by trained individuals who are familiar with the equipment's unique specifications and that any potential liability or safety issues are clearly addressed within the appropriate organizational structure. This helps to reduce the risk of accidents, mishandling, or misunderstandings that could occur if employees from different organizations were to interchangeably operate and adjust each other's equipment.
In summary, Caltrans employees must not instruct contractors' employees to operate equipment. Doing so could blur the lines of responsibility and authority, leading to potential safety hazards and liability issues. By adhering to this guideline, Caltrans and the contractor can foster a safer and more regulated work environment, reducing risks and ensuring clear accountability for all parties involved.
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Caltrans enforces contract requirements, not safety orders
Caltrans is responsible for enforcing contract requirements, not safety orders. The law mandates that Cal/OSHA enforces safety orders and promotes safe work environments and practices. Cal/OSHA is comprised of three distinct agencies: a rule-making function, an enforcement function, and an independent appeals board. The Occupational Safety and Health Standards Board (Standards Board) within Cal/OSHA adopts, amends, and repeals safety orders. These safety orders are subject to both state and federal laws, which require that they be at least as restrictive as federal Occupational Safety and Health safety orders.
The Division of Occupational Safety and Health enforces the safety orders by issuing citations, orders, and notices, proposing civil penalties, and specifying the necessary changes to rectify unsafe conditions. In the event of a violation, Cal/OSHA may issue citations, and these citations may be appealed to the Occupational Safety and Health Appeals Board for a hearing.
Cal/OSHA has the authority to cite all employers who expose their employees to hazards at multi-employer worksites. The California Labor Code identifies four categories of employers: exposing, creating, controlling, and correcting employers. An exposing employer is one whose employees were exposed to a hazard. A creating employer is one who created the hazardous situation. A controlling employer is responsible for the safety and health conditions on the worksite and has the authority to verify that the hazardous condition has been corrected. Finally, a correcting employer is tasked with rectifying the hazard.
Caltrans may be considered an exposing employer if its employees are exposed to a hazard and fail to remove themselves from the hazardous situation or request the contractor to address it. Caltrans personnel are prohibited from operating a contractor's equipment or instructing a contractor's employees in equipment operation. Contractors are responsible for using renewable diesel to fuel their off-road construction equipment and must maintain fueling records, annually filing them with the California Air Resources Board.
In the event of violations, Caltrans is required to conduct a hearing to determine whether a penalty should be assessed against the prime contractor. The hearing should be presided over by a neutral decision-maker, and each party is entitled to present their arguments. If the prime contractor is found to be in violation, a penalty ranging from 0 to 10% of the subcontract amount is assessed.
Caltrans has a zero-tolerance policy for violence, threats, harassment, intimidation, and abusive conduct in the workplace. If workplace violence or harassment occurs, Caltrans may consider terminating the contract. If acts of violence or harassment result in an assault, the California Highway Patrol or other law enforcement agencies should be contacted.
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Caltrans has a zero-tolerance policy for workplace violence, threats, and harassment
The zero-tolerance policy applies to all employees, contractors, and anyone who may come in contact with Caltrans employees. It is important to note that Caltrans enforces contract requirements and, in the case of workplace violence or harassment, may consider termination of the contract. Additionally, under Cal/OSHA safety orders, contractors and subcontractors are required to hold their own tailgate safety meetings, and Caltrans may participate in safety stand-downs to improve safety culture and awareness.
In the event of workplace violence or harassment, Caltrans has procedures in place to assess and resolve the issue. This includes involving legal support, district management, and the Construction field coordinator. If a Caltrans employee is involved, the Construction engineer will consult with the deputy district director of Administration, Legal, and Construction before making any reassignment decisions.
It is the responsibility of all Caltrans employees to report any incidents of workplace violence, harassment, or threats to their manager or supervisor, as well as to the Workplace Violence hotline. This includes discrimination, retaliation, and sexual harassment, which should be reported to the Equal Employment Opportunity Officer. Any acts of retaliation against an employee who reports or participates in an investigation are strictly prohibited.
To further prevent workplace violence, Caltrans should assess its worksites and implement a well-written and comprehensive workplace violence prevention program. This includes providing training to employees on prevention methods, signs of potential violent behavior, and how to respond in an active shooter situation. By taking these steps, Caltrans can create a safer work environment for its employees and anyone interacting with the organization.
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Caltrans may be the exposing employer if employees are exposed to hazards
Caltrans enforces contract requirements, not safety orders. The law requires Cal/OSHA to enforce safety orders and promote safe workplaces and practices. Cal/OSHA achieves this function through three separate agencies: a rule-making function, an enforcement function, and an independent appeals board.
Under the multi-employer liability clause, Cal/OSHA has the authority to cite all employers who are observed to have employees exposed to a hazard at a multi-employer worksite. Cal/OSHA identifies an exposing, creating, controlling, or correcting employer as defined in Section 2-104C, "Classes of Employers," in this manual, for each unsafe condition found. It bases the employers' degree of responsibility on their awareness of the condition, the foreseeability of the condition, and the reasonable steps they take to protect employees.
The California Labor Code identifies these employer categories:
- Exposing employer: the employer whose employees were exposed to the hazard.
- Creating employer: the employer who created the hazard.
- Controlling employer: the employer who was responsible by contract or through actual practice for the safety and health conditions on the worksite, the one who had the authority to verify that the hazardous condition was corrected.
- Correcting employer: the employer responsible for correcting the hazard.
Caltrans may be the exposing employer if Cal/OSHA observes that Caltrans employees were exposed to a hazard and the employees failed to remove themselves from the exposure or ask the contractor for corrective action. Caltrans and contractor managers can be held criminally responsible if they knowingly or negligently allow a serious violation, repeatedly violate safety orders, or directly refuse to correct a known unsafe condition. Criminal penalties may include six months to one year in jail and fines.
To avoid hazards, Caltrans personnel must not adjust the contractor's equipment or ride on equipment other than that designed for personnel transportation or as required for work inspection. Caltrans has a zero-tolerance policy for violence, threats, harassment, intimidation, and abusive conduct in the work environment. If workplace violence or harassment has occurred, Caltrans may consider terminating the contract.
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Caltrans must conduct a hearing for violations of the Subletting and Subcontracting Fair Practices Act
Caltrans is required to conduct a hearing for violations of the Subletting and Subcontracting Fair Practices Act, as per Section 4110 of the Public Contract Code. This hearing aims to determine whether a penalty should be imposed on the prime contractor for any violations. Each party involved is entitled to present their arguments regarding the alleged violations.
The hearing process should be conducted as follows:
- A neutral decision-maker, such as a Caltrans employee at a senior transportation engineer level or above, who is not part of the project's chain of command, should be appointed as the hearing officer.
- A certified court reporter should be hired to transcribe the proceedings.
- The Division of Construction Labor Compliance program manager should be contacted for assistance and guidance.
- If necessary, third parties, such as subcontractors or suppliers, can be subpoenaed.
- The hearing officer will directly and cross-examine witnesses under oath and accept relevant documents from each party, which will be included in the certified transcript.
- The hearing should focus solely on the violation of the Subletting and Subcontracting Fair Practices Act and not veer into unrelated issues.
The hearing officer will issue a written decision on the substitution request after the hearing. This decision will be sent to the prime contractor, the objecting subcontractor, and the Division of Construction's labor compliance manager. If the prime contractor is found to be in violation of the Fair Practices Act, the hearing officer may assess a penalty of up to 10% of the subcontract amount.
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Frequently asked questions
No, Caltrans employees cannot instruct anyone to violate the law. Caltrans employees must not adjust a contractor's equipment or give them orders regarding its operation. Caltrans enforces contract requirements, not safety orders.
If a Caltrans employee instructs you to violate the law, you should report it to the relevant authorities. Caltrans has a zero-tolerance policy for violence, threats, harassment, intimidation, and abusive conduct in the workplace.
If a Caltrans employee is found guilty of instructing someone to violate the law, they may face disciplinary action, up to and including termination of their employment. Additionally, both Caltrans and contractor managers can be held criminally responsible for violations.
Caltrans employees are expected to adhere to safety protocols outlined in the Cal/OSHA safety orders. These include holding tailgate safety meetings and participating in safety stand-downs to improve safety culture and awareness.
If there are workplace violence or harassment concerns related to a Caltrans employee, contractors should notify Caltrans to ensure that their policies and procedures are followed in assessing and resolving the issue. This may include legal support and consultation with the deputy district director of Administration, Legal, and Construction.
