§ 10201. Procedure for Determining Eligibility Under Labor Code Section 3201.5.

(a) Every employer and union proposing to establish any program permitted by Labor Code section 3201.5 shall jointly request the Administrative Director to determine eligibility, as follows:

(1) Employers shall submit the following documents:

(A) Upon its original application and whenever it is renegotiated thereafter, a copy of the underlying collective bargaining agreement and the approximate number of employees who will be covered thereby. The collective bargaining agreement shall be complete, including side letters and all appendices and other documents referred to in the agreement that relate to the program permitted by Labor Code section 3201.5, including but not limited to trust agreements and agreements concerning providers. If the application is on behalf of a group of employers, the application shall clearly define the group and shall state whether all the members of the group are bound by the 3201.5 provision, or whether each member must individually agree to be bound.

(B) Upon its original application and annually thereafter, evidence of a valid and active license where that license is required by law as a condition of doing business in the state within the industries set forth in subdivision (a) of Section 3201.5.

(C) Upon its original application and annually thereafter, a statement signed under penalty of perjury, that no action has been taken by any administrative agency or court of the United States to invalidate the collective bargaining agreement.

(D) Upon its original application and annually thereafter, the name, address, and telephone number of the contact person of the employer.

(E) Upon its original application and annually thereafter, evidence that the employer is actually engaged in construction, construction maintenance, or activities limited to rock, sand, gravel, cement and asphalt operations, heavy-duty mechanics, surveying, or construction inspection in California, or has a plan for immediate engagement in one of those businesses.

(F) Upon its original application and annually thereafter, evidence that the employer:

(i) is developing or projecting an annual workers' compensation insurance premium, in California, of two hundred fifty thousand dollars ($250,000) or more, or has paid an annual workers' compensation insurance premium, in California, of two hundred fifty thousand dollars ($250,000) in at least one of the previous three years; or

(ii) is a group of employers engaged in a workers' compensation safety group complying with Sections 11656.6 and 11656.7 of the Insurance Code, and established pursuant to a joint labor management safety committee or committees, which develops or projects annual workers' compensation insurance premiums of two million dollars ($2,000,000) or more; or

(iii) is an employer or group of employers that is self-insured in compliance with Section 3700 that has projected annual workers' compensation costs that meet the requirements of, and that meet the other requirements of, paragraph (i) in the case of employers, or paragraph (ii) in the case of groups of employers; or

(iv) is an employer, who is properly signatory to a project agreement, and is covered by an owner or general contractor provided wrap-up insurance policy applicable to a single construction site that develops workers' compensation insurance premiums of two million dollars ($2,000,000) or more with respect to those employees covered by that wrap-up insurance policy.

Every member of a group of employers must maintain separately administered workers' compensation insurance or a self-insurance program distinct from all other types of insurance. Every member must maintain this insurance or self-insurance in one of the ways enumerated in Labor Code section 3700; but it is not necessary that all members maintain insurance or a self-insurance program in the same way. Every member must meet one of the minimum premium or cost requirements listed in paragraphs (i) through (iv) above.

(G) Upon its original application and annually thereafter a statement that it is able and willing to supply the data required by Labor Code section 3201.5(i).

(H) If the application is on behalf of a group of employers, evidence that:

(i) membership in the group is limited to employers that meet all the criteria of Labor Code section 3201.5 and these regulations;

(ii) the group shall, on behalf of its individual members, provide the data required by Labor Code section 3201.5(i);

(iii) the group shall maintain records of its membership satisfactory to the Administrative Director for the purpose of readily ascertaining the facts required by Section 10201(e)(3). Membership records shall include evidence of security for the payment of compensation for each member, including the insurance policy number, or a copy of the certificate of self-insurance issued pursuant to Labor Code section 3700. Membership records shall also include the approximate number of employees for each individual member of the group who is bound by the collective bargaining agreement. Copies of membership records shall be delivered to the Administrative Director on request.

(2) Unions shall submit the following documents:

(A) Upon its original application and annually thereafter, a copy of its most recent LM-2 or LM-3 filing with the United States Department of Labor, along with a statement, signed under penalty of perjury, that the document is a true and correct copy.

(B) Upon its original application and annually thereafter, the name, address, and telephone number of the contact person or persons of the collective bargaining representative or representatives.

(C) Upon its original application and annually thereafter evidence that the union is a bona fide labor organization in that:

(i) it actually represents employees engaged in construction, construction maintenance, or activities limited to rock, sand, gravel, cement and asphalt operations, heavy-duty mechanics, surveying, and construction inspection in California as to wages, hours and working conditions,

(ii) its officers have been elected by secret ballot or otherwise in a manner consistent with federal law, and

(iii) it is free of domination or interference of any employer and has received no improper assistance or support from any employer.

It will be presumed that a union is bona fide if for a period of five years it has actually entered into collective bargaining agreements with employers in California and has filed all appropriate reports with the United States Department of Labor in that period. If a union is not presumed to be bona fide, it shall present evidence satisfactory to the Administrative Director that it meets the criteria of a bona fide labor organization.

(3) Any person may submit documents to the Administrative Director that bear on the eligibility of an applicant. Copies of all such documents received shall be sent to the applicants for comment.

(b) [Reserved for regulation relating to confidentiality]

(c) Issuance of a Letter of Eligibility

Within 30 days after receiving an application, the Administrative Director shall notify the applicants that the application is complete or shall specify what further information is needed to complete the application. Within 30 days after the time an application is completed, the Administrative Director shall either (1) issue a letter of eligibility, or (2) deny eligibility. If eligibility is denied, the Administrative Director shall inform the parties of the reasons therefor. For good cause and upon written notice to the applicants, the Administrative Director may extend the periods of notification for an additional 30 days.

(d) Period of Eligibility

The letter of eligibility shall state the beginning date of eligibility, which shall be no earlier than 15 days before the parties submitted their request to the Administrative Director under this section. A letter of eligibility shall remain valid for the same period as the 3201.5 provision of the collective bargaining agreement, but no longer then three years from the date of issuance of the letter. Upon the effective date of this regulation, the Administrative Director shall re-issue letters of eligibility to parties which have already received them.

(e) Effect of a Letter of Eligibility

(1) A letter of eligibility is a determination by the Administrative Director that the parties meet the eligibility requirements of Labor Code section 3201.5. A letter of eligibility is not a determination by the Administrative Director that the collective bargaining agreement or any part of it is in compliance with Labor Code section 3201.5.

(2) A 3201.5 provision is valid and binding only if there was a letter of eligibility in effect at the time of injury.

(3) A letter of eligibility issued to a group of employers shall be valid as to an individual member of the group if all the following facts are established as of the time the provision is alleged to be in effect and at the time of injury:

(A) the group of employers possessed a current letter of eligibility;

(B) the individual employer was a member of the group;

(C) the individual employer had signed the 3201.5 provision;

(D) the individual employer was actually engaged in construction, construction maintenance, or activities limited to rock, sand, gravel, cement and asphalt operations, heavy-duty mechanics, surveying, or construction inspection in California and possesses a valid and active license as required by Labor Code section 3201.5(a); and

(E) the individual employer was is compliance with Labor Code section 3201.5(c).

(f) Renewal of Eligibility

(1) At least 30 days prior to the expiration of the letter of eligibility, the parties shall submit to the Administrative Director updated copies of the documents and other evidence required by subdivision (a) of this Section. However, if certain documents and other evidence are completely unchanged since the submission of the previous annual report required by Section 10204, the party responsible for submitting the updates may instead submit a statement under penalty of perjury that there has been no change in the document or evidence since the previous annual report. The Administrative Director may nonetheless require any party to submit the actual documents or evidence.

(2) Within 30 days after receiving the information required under subdivision (f)(1), the Administrative Director shall either: (1) renew the letter of eligibility for the same period of time set forth in subdivision (d); or (2) deny eligibility. If eligibility is denied, the Administrative Director shall inform the parties of the reasons therefor.

(g) All insurers, self-insured employers, and third party administrators who adjust claims subject to a Section 3201.5 provision shall comply with the applicable provisions of Section 138.4 of the Labor Code and shall comply with the administrative regulations contained in Title 8, Cal. Code Regs., Division 1, Chapter 4.5:

(1) Subchapter 1: Article 1.1, commencing with Section 9700; Article 5, commencing with Section 9780; Article 6, commencing with Section 9796; Article 8, commencing with Section 9810; Article 8.5, commencing with Section 9880; Article 10, commencing with Section 9900;

(2) Subchapter 1.5: Article 1, commencing with Section 10100; Article 2, commencing with Section 10101; Article 3, commencing with Section 10105; Article 4, commencing with Section 10110; Article 5, commencing with Section 10111; Article 6, commencing with Section 10113; Article 7, commencing with Section 10115; Article 6, commencing with Section 10116; Article 7, commencing with Section 10122; and,

(3) Subchapter 1.6, commencing with Section 10150.

HISTORY

1. New section filed 8-8-95; operative 8-8-95. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 95, No. 32).

2. Amendment filed 4-22-2004 as an emergency; operative 4-22-2004 (Register 2004, No. 17). A Certificate of Compliance must be transmitted to OAL by 8-20-2004 or emergency language will be repealed by operation of law on the following day.

3. Certificate of Compliance as to 4-22-2004 order, including further amendment of section, transmitted to OAL 8-20-2004 and filed 10-4-2004 (Register 2004, No. 41).

Note

Note: Authority cited: Sections 133, 3201.5 and 5307.3, Labor Code. Reference: Section 3201.5, Labor Code.