Coronavirus (COVID-19) and Personal Protective Equipment (PPE): Important Intel for Private Patrol Operators and Private Investigators

At the end of March 2020, the American economy met a man-made economic disaster after the arrival of the novel coronavirus (COVID-19). As part of the governor’s executive order, many “non-essential” businesses were forced to close to prevent the spread of COVID-19.  If our local, state, and federal government believed so strongly in temporarily shutting down progress in the US economy—in the distant future—I foresee that new private patrol operator (PPO) or private investigator (PI) qualified manager applicants will be tested on the legal mandates of issuing personal protective equipment (PPE). Even if you have managed your security or investigations business for any length of time, I strongly suggest you consider my research and opinions.

Authority

The primary authority for the California Code of Regulations (CCR) is its affirmation of, “This order shall apply to all persons employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or other basis… (CCR, Title 8, Section 11040.1).” In Section 11040.2(O), the professions of “guard” and “investigator” are specified. The order confers an employee certain rights, specifically, the right to PPE if certain conditions apply. I suggest you read Section 11040 in its entirety to understand the conditions and exceptions, but if not or when in doubt, you should assume that your employee has the right to PPE.

Mandatory Risk Assessment

As an employer, CCR Title 8, Section 3380 requires you to conduct a risk assessment of the employee’s workplace and its conditions. The assessment must be signed/certified. If hazards are present, or are likely to be present, which necessitate the use of PPE, you must (1) select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment; (2) communicate selection decisions to each affected employee; and (3) select PPE that properly fits each affected employee. After the assessment, you must provide training to the employee on how to use the PPE. As the employer, the law requires you to pay for the PPE (Labor Code 6401).

Standard of Care

As the employer, no matter where your employee is stationed, you have a duty to provide a "safe and healthful" environment (Labor Code 6404) and "to do every other thing reasonably necessary to protect the life, safety, and health of employees (Labor Code 6403)."  For example, you may be familiar with the injury and illness prevention programs required by Section 3203 of Title 8 of the California Code of Regulations, that require employers to show their employees how to lift something appropriately to prevent a back/neck injury (Labor Code 6403.5(a)).

In a negligence claim, the plaintiff will attempt to show you did not meet a standard of care and will often refer to laws or customs designed to prevent injury or contamination. For this reason, you must provide PPE that is designed as intended and that meets lab testing standards for its intended use (CCR Tile 8, Section 3380(a)(2) refers to CCR Title 8, Section 3206). In other words, you cannot issue a cloth-only mask for an employee working in an airborne-pathogen rich environment, or issue cloth gloves in a bloodborne pathogen setting. The investigator assigned to a surveillance post on a dusty hill, ought to be wearing a mask designed for dust particles. And those assigned to areas that accommodate the hiding or hosting of used syringes, should have access to puncture resistance gloves and sharps storage containers.

Contracts that Necessitate PPE

The most common types of contracts that commonly necessitate the use of PPE are agreements involving hospitals, medical facilities, construction sites, and hazardous material sites. I would also not be surprised if—due to the COVID-19 outbreak—if clubs, bars, shopping centers, or other areas of public gathering, would necessitate the use of PPE; however, at this point of time, this idea is nothing more than speculation, but growing in popularity. The better business practice is to issue PPE when your county Public Health Officer mandates wearing PPE (Health and Safety Code Sections 101040, 101085, and 120175) or when your employee asks for it. A lack of effective PPE supplies on the global or local market is not an excuse. Always prepare for the worst. If you have any questions about whether there are orders mandating such practice, click here and consult with the public health officer assigned to your county.

Disclaimer

I am not an attorney and no information discussed here cannot be construed as legal or professional advice. I am not associated with the Bureau of Security and Investigative Services. You should not make any financial, professional, or legal decisions based on the information in this discussion without the advice of a licensed attorney in your jurisdiction. The information may be incorrect. Engage at your own risk.

S/  Shaun E. Sundahl, Author of The Legal Investigator and the Private Patrol Operator.

Copyright 2020 by Shaun E. Sundahl

Private Patrol Operators and Operating within the Scope of your License

As a private patrol operator (PPO) it’s important to know WHEN a special license is needed. With a lack of knowledge on everything the Business and Professions Code (BPC) or California Code of Regulations covers, PPOs must assume that a special license is required for anything that does NOT include protecting places or property with the use of private security guards. 

PPOs must also not partake in contracts or activity that are outside the scope of protecting places and property with private security guards. For example, a client who asks a private security guard to paint a wall is asking the PPO for that guard to perform outside the scope of security services. The same goes with EP agents being asked to carry their client’s baggage. When you’re carrying baggage, you leave your client more vulnerable to an attack since your hands have limited use. And yes, I already know it’s the polite thing to do if you want to retain clients.

California Contractors State License Board 

Some may also think that you do not need a special license for something seemingly simple—such as installing a closed-circuit video camera (CCTV) for your client. However, anyone who accepts for payment of $500 or more for building improvement, is required to have a California Contractors State License Board (CSLB) license.  So, is installing a CCTV a “building improvement?” The State of California believes it is!

If you install, service, or maintain communication and low voltage systems which are energy limited and do not exceed 91 volts, you need to have a C-7- Low Voltage Systems Contractor license. According to California Code of Regulations, Title 16, Division 8, Article 3, “closed-circuit video systems”, “including “telephone systems,” are included in this section that requires a C-7 license. Also, if there are wires involved, then you also need a C-10 license, according to California Code of Regulations, Title 16, Division 8, Article 3.

Private Investigator License Requirement

In Chapter 12, Section 7 in my book, The Private Patrol Operator (2018), I discuss 7582.1(b) - Business and Professions Code, that states in part you can investigate an incident if it is “…incidental to the theft, loss, embezzlement, misappropriation, or concealment of any property...” Otherwise, you need a CA PI license!

Bottom Line: Know what you can do with your PPO license and DO NOT exceed the scope!

New Labor Code on Independent Contractors Affecting Private Patrol Operators and Private Investigators

On January 1, 2020, California codified the decision from the California Supreme Court case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018).  This case was a landmark decision because it shifts the burden of the worker proving he/she was being treated as an employee,

resulting in the prevailing worker being entitled to a benefit bestowed by labor codes favorable to employees. The burden is now on the employer having to prove the worker was not an employee, but an independent contractor.

I commonly train private investigators and private patrol operators. AB No. 5 has no bearing on private investigators since they are excluded by the new law (CA Labor Code 2750.3. (b) (3)). But, you’re not off the hook yet Private Investigators. Read towards the bottom.

The way the law is written, Governor Gavin Newsom (D) and the bill’s author, State Senator Lorena Gonzalez (D), did not exclude private patrol operators and for this reason, patrol operators must be acquainted with AB No. 5.

Labor Code 2750.3. (a)(1) was one of the codes created by AB No. 5. This law says that an employer (such as a private patrol operator) must only classify a worker (known below as a “person.”) as an independent contractor if:

(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

(B) The person performs work that is outside the usual course of the hiring entity’s business.

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

In the private security industry, it is a common practice for private patrol operators to pay “under the table” to security officers for large events and for this reason, AB No. 5 will affect this practice (and any practice of misclassifying a worker as an independent contractor). Paying under the table, refers to paying a worker cash after the assignment or anytime thereafter. Although it’s not unlawful to pay a worker cash, most of the time when a worker is paid under the table, the employer classifies the worker as an independent contractor to avoid payroll costs, insurance costs, benefit obligations, and training requirements.  Additionally, private patrol operators who do not have a payroll structure set up, are more inclined to unlawfully classify workers as independent contractors. Penalties for misclassifying workers include, but are not limited to, attorney fees and workers’ compensation fines, as well as paying back with interest, Social Security Admin. penalties, Medicare penalties, and the Employment Development penalties for unpaid unemployment insurance.

If you are a private patrol operator and need to hire a security officer worker as an independent contractor make sure that (1) the worker has his/her own private patrol operator license and (2) the worker does not fall within Labor Code 2750.3. (a)(1) or other relevant laws.

Now for you Private Investigators. Even though AB No. 5 does not apply to you, a case law does. To appropriately classify a worker, you must follow the standards set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). According to Borello (as quoted by the Department of Industrial Relations Division of Labor Standards Enforcement, an individual will be considered an employee where the employer exercises all necessary control by direct or indirect means over the work details of the individual.  

In addition, the following factors are to be considered in determining an individual’s status as an independent contractor:

1. The individual performs services in an occupation or business distinct from that of the principal;

2. The work performed is not part of the regular business of the principal;

3. The individual supplies his/her own instrumentalities, tools and the work place;

4. The individual has made a significant investment in the equipment or materials required for his or her task(s);

5. The individual's services require a unique skill in a particular occupation;

6. The individual's occupation in the locality is usually done by a specialist without                              supervision;

7. The individual’s opportunity for profit or loss depends on his/her own managerial skill;

8. The time for which the services are to be performed is reasonably limited to the task(s) for which the individual was hired;

9. The working relationship between the individual and the employer is reflective of the time allotted to perform the task(s) for which the individual was hired;

10. The method of payment is time certain or project specific;

11. The parties do not believe they are creating an employer-employee relationship.

12. The individual has the right to control and discretion as to the manner of performance of the contract for services but not the means by which the work is accomplished; (Labor Code Section 2750.5)

13. The individual is customarily engaged in an independently established business; (Labor Code Section 2750.5)

14. The individual's independent contractor status is bona fide and not a subterfuge to avoid employee status; (Labor Code Section 2750.5)

15. The individual has a substantial investment in the business other than personal services; (Labor Code Section 2750.5)

16. The individual holds him/herself out to be in business for him/herself; (Labor Code Section 2750.5)

17. The individual bargains for a contract to complete a specific project for compensation by project rather than by time; (Labor Code Section 2750.5)

18. The individual has control over the time and place the work is performed; (Labor Code Section 2750.5)

19. The individual hires his/her own employees; (Labor Code Section 2750.5)

20. The individual holds a license to perform the work; (Labor Code Section 2750.5)

21. The relationship is not severable or terminable at will by the principal but gives rise to an action for breach of contract. (Labor Code Section 2750.5)

Disclaimer: I am not an attorney and no information discussed here cannot be construed as legal or professional advice. I am not associated with the Bureau of Security and Investigative Services. You should not make any financial, professional, or legal decisions based on the information in this discussion without the advice of a licensed attorney in your jurisdiction. The information may be incorrect. Engage at your own risk.

S/  

Shaun E. Sundahl, Author of The Legal Investigator and the Private Patrol Operator.

Don't use the BSIS logo or you can end up in jail!

The Bureau of Security and Investigative Services (BSIS) tells us that according to BPC Section 17533.6, it is illegal for any person, firm, corporation or association that is a non-governmental entity to use the Bureau of Security and Investigative Services’ (BSIS) logo. This prohibition includes the use of the BSIS logo on a webpage as a link and/or hyperlink to the BSIS webpage. If a non-governmental person, business or organization wishes to have a link and/or hyperlink from its website to the BSIS website, only general language referencing BSIS is permitted for the identification of the link and/or hyperlink.

The unauthorized use of the BSIS’ logo is a misdemeanor, which can result in the issuance of a fine up to $2,500, time in a county jail or both.

We are not affiliated with BSIS.

IN SUMMARY, DO NOT USE THIS LOGO ANYWHERE!:

The Truth About Hiring an Independent Contractor (A.K.A. 1099 "Employee")

In most licensed occupations in California, including private investigation agencies, the employer does not have to pay workers’ compensation insurance and payroll costs if their worker is classified as an independent contractor. Liability may also be eliminated or reduced. Sometimes the worker, although skilled, does not have a PI license so the agency says, “you’ll work under my license.” Knowing all this, it’s common for private investigation agencies to misclassify workers as independent contractors (1099 IRS form).

I was recently asked a question from a past student of mine regarding the classifying of “employees” as independent contractors. My student’s friend, argued, that you can have investigator “employees” working under a licensed PI even if you treat them as an independent contractor. The truth is that an overwhelming population of PIs, intentionally, hire investigator workers and treat them as independent contractors all to save insurance, payroll costs, and to deviate from California’s requirement that private investigators maintain a PI license. This student of mine and his colleague demanded legal authority to support their position.

You can’t hire someone (including a close friend or family member) and have them work for you as an independent contractor, without losing control or the right to control the worker both as to the work done and the manner and means in which it is performed (S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341). Now, let’s say your debate opponent for today’s topic persists that 1099 workers still do not need a PI license. All you have to do to win the argument is to show him Business and Professions Code (BPC) 7523:  “Unless specifically exempted by Section 7522 , no person shall engage in the business of private investigator, as defined in Section 7521 , unless that person has applied for and received a license to engage in that business pursuant to this chapter.” Then you ask your debate opponent which law or other authority allows a licensed PI agency to hire an independent contractor. There is none.

In case you’re wondering which legal authority allows you to hire employees to do your investigative work, there is a legal theory called “the law of agency.” This theory allows us to delegate our work to actual employees. Otherwise, all you really have is BPC 7531: “A licensee shall at all times be legally responsible for the good conduct in the business of each of his or her employees or agents, including his or her manager.” Upon reading 7531, you can imply there was legislative intent that private investigation agencies (licensees) be authorized to hire employees to do work they are contracted for. Why else would they create 7531?

Then, if your debating opponent is still not convinced he can’t misclassify employees as independent contractors, show him Labor Code 2753 and its penalty: "A person who, for money or other valuable consideration, knowingly advises an employer to treat an individual as an independent contractor to avoid employee status for that individual shall be jointly and severally liable with the employer if the individual is found not to be an independent contractor.”

The last part of your debate should come from the client’s perspective. We know that one of the two major reasons for contracting with a private investigator, is to (1) eliminate or reduce liability and (2) the client needs the training and experience that the investigator is offering. Under Labor Code Section 2750.5  and 3357, there is a rebuttal presumption that: "Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee."

What this means, is that if one of the independent contractor workers does work for a client--let's say an insurance company--and the worker gets injured or causes legal damage to another party, the client is on the hook for workers' comp. and other liabilities!

Click here if you want to read the California Dept. of Labor's  informational guide of "Independent contractor versus employee"

Hope this helps!

Shaun Sundahl, Author of The California Legal Investigator. Available on Amazon and other bookstores.

*****************End of Argument************

Drone Surveillance

The newest craze out there are the use of drones. Private investigators across the US are using them as surveillance tools. This begs the next question. Are the use of drones legal? The answer is it depends on your purpose for the drone.

The FAA Modernization and Reform Act of 2012, Section 336 vaguely mentions that flying a drone in a manner that is in furtherance of a business, is a violation of federal law. However, the penalties are ambiguous so enforcement of this law is sort of questionable.

I also don't have to tell you that trespassing on private property is a crime. Well, is air space considered private property? If not, then can we fly a drone over private property for surveillance purposes, right? To answer this question, let's look at the classic US Supreme Court case of United States v. Causby (1946):

A landowner “owns at least as much of the space above the ground as he can occupy or use in connection with the land,” and invasions of that airspace “are in the same category as invasions of the surface.”

Now, as for you fellow Californians, you're probably wondering if there's any California-specific laws addressing the use of drones. I don't want to spoil all the fun, so I'll give you some homework: Look up CA Code of Civil Procedures § 1708.8 (a).

Take care and if your taking the California PI exam, good luck to you!

--Shaun Sundahl


Note: Information presented in this blog is in Shaun's 2018 book titled, The California Legal Investigator: A Book on Investigative Methods for Investigators Without Law Enforcement Authority and Managing a California-Based Private Investigations Agency.

The California Private Investigator

Hello California PI exam takers! It's Shaun E. Sundahl here.  Do you need a study guide or book to help you pass the California Private Investigator Exam? If so, read my new E-Book. Click here to look at my new book.  This is one of the few legitimate books that is designed to help you increase your knowledge base on the California PI exam.

Also, if you're a licensed Private Investigator in California and you need a review on what you can and can't do, read my book. This book serves as a review for all California PI's wanting to increase or review their knowledge base. 

If you like my book, please don't hesitate to provide a positive Amazon review. I would greatly appreciate your time. Positive ratings attract more readers. More readers equals more funding to update this book and create others. Here's the link, if you would be so kind to provide a review by clicking here.

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