All Outdoor Employees Need Shade During Heat Waves, DOSH Chief Says

In the wake of tragic deaths thought to be heat related of agricultural workers in California, the recently confirmed chief of the Division of Occupation Safety and Health proclaimed his commitment to actively enforce California's heat-illness prevention standard. While stressing that provision of adequate shade is a centerpiece of the standard, he acknowledged that questions continue to be asked about what is adequate shade and how much shade is enough.

A major issue that has arisen is the extent to which employers must provide shade during scheduled rest and meal breaks. The standard does not mention breaks specifically, but DOSH Chief Len Welsh said that if employees are taking their breaks at the worksite - as is usually the case in agricultural settings - the standard applies during these breaks just as it does while employees are working.

He also noted that employees might be much more inclined to seek shade during those rest periods, which the standard allows them to do, because they do not lose any time working when they do so.

He added that shade must actually be present and that merely having a canopy or umbrella available for erection if an employee asks for a shade break does not comply with the standard.

Noting there's a big difference between 90 and 105 degrees, Welsh said that Cal/OSHA inspectors will interpret the requirement for "access to shade" as stated in the standard more strictly during exceptionally hot weather, because the intent of the standard is to assure the type of access that will provide sufficient cooling to prevent illness.

According to Welsh, the bottom line is that there must always be enough shade to accommodate those employees who seek it to cool off as required by the standard. This does not mean that there must be enough shade to accommodate all employees on the shift at the same time, but employers should anticipate that the hotter the weather gets, the more employees will seek shade during their breaks.

Extremely hot weather can turn scheduled breaks into critical cooling intervals, and at those times it may be necessary to use strategies such as staggering breaks, rotating employees in and out of shaded areas, or similar measures to assure adequate access to shade if the number of employees on the shift is greater than the amount of shade available to accommodate all of them at once. Welsh says DOSH will accept any reasonable strategy to assure that employees are not deprived of shade when they need it, and employers should think through their strategy and explain it clearly in their written procedures.

The state's heat-illness prevention standard for outdoor employees - the first in the nation and possibly the world - requires employers to maintain written compliance and emergency procedures and provide employees with heat-illness prevention training, plenty of cool drinking water, and access to cooling shade at all times.

It is this last requirement that is behind Welsh's remarks. The standard says:

Employees suffering from heat illness or believing a preventative recovery period is needed, shall be provided access to an area with shade that is either open to the air or provided with ventilation or cooling for a period of no less than five minutes. Such access to shade shall be permitted at all times.

Welsh stressed that it is DOSH policy to be clear about its enforcement interpretations as much as possible so employers can know where they stand. He acknowledged that an employer is always entitled to appeal a citation and argue that the standard does not require what DOSH says it does.

He added that an employer who believes DOSH has not followed its own policy in issuing a citation should ask for an informal conference with the responsible DOSH District Manager. The employer can also seek help in clarifying or resolving the issue from agricultural organizations to which the employer belongs.

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Stoppages Due to Heat May Trigger Reporting-Time Pay

Heat-illness prevention is a major concern at this time of the year. One preventative measure some employers of outdoor employees use in extremely hot temperatures is to stop work.

While this is a valid and effective tactic, an employer implementing it must consider the provision on reporting-time pay in orders of the Industrial Welfare Commission. It states in pertinent part:

Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. ...The foregoing reporting time pay provisions are not applicable when ... (3) The interruption of work is caused by an Act of God or other cause not within the employer's control.

The Division of Labor Standards Enforcement (DLSE) takes the position "that rain or other inclement weather that makes it impossible or unsafe to work falls into the category of 'an Act of God or other cause not with in the employer's control.'"

Under this interpretation, it would seem that an employer that halts work activities before employees have worked at least four hours or half their usual or scheduled day's work would be relieved of the duty to give them reporting-time pay, because outdoor temperatures so high as to make it unsafe to work are not within the employer's control.

However, as the application of this exception and the validity of the DLSE's interpretation haven't yet been tested in a precedential court case, employers should, if feasible, consider starting work earlier in the day and working employees enough hours to avoid this issue altogether.

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Services for Housing Creates Employment

Sometimes in rural areas the owner or controller of a vacant house or trailer provides it to a person in exchange for performing watchman, maintenance or caretaking duties or for doing some other incidental work on the property on which the house or trailer is located. In many such "work for lodging" relationships, no money is exchanged, either as rent or as wages.

These types of arrangements can last for years without a hitch. But what may seem to be a harmless and even benign informal relationship can result in unexpected, messy and expensive problems for the housing provider. That's because while this type of arrangement nearly always creates an employment relationship, the housing provider often does not recognize it as that and thus fails to act appropriately.

Depending on its facts and circumstances, this type of arrangement implicates various provisions of several employment laws, both federal and state, including minimum wage, overtime, record keeping, employment eligibility verification, payroll taxes, workers' compensation and unemployment insurance.

Depending on the work being done and its location, the lodger/worker might be deemed an agricultural employee under the federal Fair Labor Standards Act (FLSA) and California Industrial Welfare Commission (IWC) Order 14.

Or, he or she might be deemed a "domestic servant" under the FLSA and employed in a Household Occupation under Industrial Welfare Commission Order 15 and thus subject to their peculiar rules.

Because of the intricacies of these laws, a landowner/controller should seek competent legal counsel before entering - or if they've already entered - into any such arrangement. All in all, it is a potentially explosive situation for an agricultural employer or other landowner/controller.

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Missouri Joins Arizona in Requiring E-Verify

Similar to Arizona, Missouri joins the states creating new restrictions on state aid and the employment of undocumented aliens.

Under the Missouri immigration law, applicants for food stamps, housing and other public benefits will need to prove they are U.S. citizens or are legally in the country. All public employers will need to use Department of Homeland Security's E-Verify database to determine whether someone is authorized to work in the country.

Businesses that have a government contract worth more than $5,000 or that receive state loans will also be required to use E-Verify. But private employers won't have to use the E-Verify system unless they are caught hiring an undocumented alien.

The E-Verify system was created in 1996 to give employers an electronic way to determine whether employees can work in the United States. But misspelled names, last names entered as middle names and outdated information have led to mistakes.

The Government Accountability Office reported to Congress recently that about 92 percent of all E-Verify checks are confirmed within seconds. About 7 percent cannot be immediately confirmed by the Social Security databases and about 1 percent can't be confirmed by U.S. Citizenship and Immigration Services.

As of April 2008, 61,000 employers nationwide were registered for E-Verify, with the roughly 28,000 active users making more than 2 million queries from October 2007 to April 2008. The GAO reported it would cost more than $1 billion to update the system for the estimated 63 millionMenu annual queries that would come from making E-Verify mandatory nationwide.

Ag Safety Council Formed to Reduce Farm Accidents

A new organization, the Agricultural Safety and Health Council of America, was recently formed to work toward making farming safer.

Agriculture is consistently among the most hazardous occupations in the United States, according to Dennis Murphy, Penn State Distinguished Professor of Agricultural Safety and Health, a founding board member of the new council. In an average year, 516 workers die while doing farm work, and each day about 243 agricultural workers suffer lost-time injuries.

"Agriculture, due to its decentralized nature and diverse structure, lags behind other industries in reducing the toll on its workers with a safety rate that is eight times that of the all-industry average," Murphy said. "The council's mission is to pro-actively address ongoing and emerging occupational safety and health issues affecting agriculture in the United States."

The new council, driven by farmer/rancher and agribusiness leaders, is the first of its kind in the country to pursue a national strategy to reduce disease, injuries and fatalities in American agriculture. The group will attempt to influence research priorities to rapidly identify best-management practices for worker safety and health that maximize cost efficiency and sustainability.

The Agricultural Safety and Health Council of America is building on the success of similar national initiatives in Australia and Canada, Murphy notes. Organizations represented on the group's board of directors include AGCO Corp, Agri-Services Agency, American Farm Bureau Federation, Association of Equipment Manufacturers, CropLife Foundation, Farm Employers Labor Service, Workers Compensation Fund-Utah, National Institute for Farm Safety, National Pork Board and Penn State.

Administrative services are provided by the National Farm Medicine Center at the Marshfield Clinic Research Foundation.

"The council will pursue national strategies to reduce agricultural injuries and fatalities, based on reliable data and emerging issues," Murphy says. "The group will guide the development of effective delivery systems for safety and health through communications involving leaders representing producers, agribusinesses, insurance companies, safety associations and others."

A variety of membership packages are available for individuals and organizations. For more information, contact the Agricultural Safety and Health Council of America at (715) 221-7270 or by e-mail at info@ashca.com or go to www.ashca.com.

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The Five "W"s of Telling Someone They're Fired

By Laurie E. Meyer, Esq.

Whether a termination is because of misconduct or downsizing, no employer enjoys firing an employee. And while every termination decision brings with it the possibility of a lawsuit, legal risk can be reduced when the termination itself is handled in a straightforward, professional and dignified way.

This article assumes that you've made the decision to fire or lay off a particular employee and that you are satisfied that the case has been made to justify the termination or layoff. For example, you've determined that there are no limitations on your ability to terminate the employee, such as those contained in an employment contract or a collective bargaining agreement.

Also, you're satisfied that legitimate, non-discriminatory reasons exist for the termination. If the termination is due to poor performance or conduct, you've ensured that the problems have been adequately documented and communicated to the employee, and that the employee has been treated consistently with other similarly-situated employees. If a downsizing is necessitated by an economic downturn, you've made sure that the downsizing process is well documented and that there is no intent to fill the employee's position in the near future.

But even assuming all your ducks are in a row, it remains important to communicate the termination appropriately. A host of lawsuits challenging employee terminations demonstrates that a significant number of these challenges occur because the termination was poorly and/or inadequately communicated. So how should you break the news? That is, how do you communicate the termination decision in a way that reduces the likelihood that the company will be sued?

WHO should communicate the termination decision? Ideally, the termination should be communicated to the employee by the manager or supervisor who made the decision, with a member of either upper management or human resources present. The termination interview should never be conducted alone, and it should not be conducted by someone who has not been trained on how to terminate employees safely and legally.

WHAT information should be communicated? If at all possible, prepare an agenda for the meeting that includes what you're going to say and how you're going to say it. Be succinct, be straightforward, be candid, and, above all, be honest. If the employee's productivity level has been sub-par for an appreciable amount of time, or if the employee has failed to meet specific goals, say so in specific terms.

Don't sugar-coat the decision in order to avoid hurting the employee's feelings by down-playing or omitting mention of performance deficiencies. Don't vaguely tell the employee that the company has "decided to go in a different direction." Don't try to shift "blame" by suggesting that "This is not my decision, but...."

An employee who feels the employer is being cagey about the reasons for his or her termination is more likely to challenge the termination. In addition, if the employee later sues the company, inaccurate statements or reasons given to the employee may undermine the company's defense and may set up a claim that the company's stated reasons for its decision are pretextual.

Similarly, unless you can give specific examples, don't tell an employee he or she is being terminated for "poor attitude" or "insubordination." Without detail, these words can be misinterpreted as code words for discrimination or retaliation.

Recognizing the intensity inherent in most employment termination meetings, it is important to listen to the employee and answer questions he or she may have. However, do not engage in a debate.

Finally, know what the employee is owed in terms of wages, vacation or other paid time off, commissions, bonuses, etc., and advise the employee when he or she will receive his or her final paycheck. Remind the employee of any obligations remaining to the company, such as the return of keys, uniforms or other company property. Remind the employee of any covenant-not-to-compete and his or her continuing obligation to keep trade secrets confidential.

WHERE should the meeting occur? The termination is best handled in a face-to-face meeting, not over the phone or by letter. In most circumstances, an office or conference room that is away from the eyes and ears of co-workers and that is free from distractions is the best location for the meeting. A caveat: you may need to assess the risk of violence if the termination is due to aggressive or violent conduct on the part of the employee, and hold your termination meeting in a place that is safe.

WHEN should the termination occur? Because of the importance of what you say and how you say it during a termination interview, don't fire someone when you are angry. While there are certainly some egregious offenses that trigger immediate termination, it is often preferable to suspend the employee, and handle the termination meeting when you can control both the timing and tenor of the meeting.

In the case of a planned termination, it is usually best to conduct the termination interview at the end of the work day or at another time when fewer co-workers are present. If possible, ask the employee to remain after work, when most employees have left for the day.

HOW should the termination be communicated? Use a calm, professional tone. While you can express sympathy for the employee, do not diverge from the honest reasons for the termination. Handle the termination with an eye toward allowing the employee to leave the company with his or her dignity intact.

If violence or other aggressive behavior is not likely to be an issue, avoid escorting the employee out of the building, especially by security personnel. If the company has concerns about possible theft or sabotage of company property or computer data files, make all attempts to safeguard these concerns without drawing undue attention to the employee's termination (e.g., IT personnel can restrict the employee's access to computer networks.)

By communicating your termination decision clearly and respectfully, you can help keep emotions cool, and possibly even avoid a lawsuit.

The 60-Second Memo is a publication of Gonzalez Saggio & Harlan LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer.

(Reprinted with permission of the author Laurie E. Meyer. Ms. Meyer is an attorney with Gonzalez Saggio & Harlan LLP, Milwaukee, WI. She can be reached at (414) 277-8500 (Ext.) 1169 or by email at laurie_meyer@gshllp.com. Copyright © 2008, Gonzalez Saggio & Harlan LLP.)

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The following articles were provided courtesy of Barsamian & Moody, The Employers' Law FirmSM, which participates in the Group Legal Services Program for FELS subscribers. These articles are intended to provide employers with current information on labor and employment law. Their contents should neither be interpreted nor construed as legal advice or opinion. Please consult with Barsamian & Moody in Fresno at (559) 248-2360 or toll-free at (888) 322-2573 for individual responses to questions or concerns about any given situation.

Court Lets Farm Laborer's Age Claim Go to Trial

In Diaz v. Eagle Produce Limited, D.C. No. CV-03-02127-MHM (filed April 4, 2008), four farm laborers in Phoenix alleged that they were laid off improperly from agricultural work in violation of the Age Discrimination in Employment Act ("ADEA"), the Migrant and Seasonal Agricultural Worker Protection Act, and the Americans with Disabilities Act.

The district court granted the employers motion for summary judgment on all claims and threw the case out. The workers, aged 51, 63, 65 and 68, appealed only on their ADEA claim.

The employer, Eagle Produce, operated a broccoli and melon farm. The seasonal nature of the work obviously created a fluctuating need for workers. Eagle Produce hired new workers or transferred existing employees to satisfy its labor needs during periods of increased activity, and laid off workers or transferred them to other operations when the need for labor decreased, typically during the winter.

The plaintiffs were members of a tractor crew that was responsible for preparing the soil for planting. A new supervisor took over the tractor crew in December 2001. He was responsible for making personnel decisions. In the winter of 2001-02, the farm started to use a technique called "plastic mulching" that required much less labor. The plaintiffs were either transferred elsewhere or laid off due to the slowdowns.

The plaintiffs then filed suit, including the claim under the ADEA. Courts evaluate ADEA claims based on circumstantial evidence of discrimination by using the three stage burden-shifting framework laid out in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Under this framework, the employee must first establish a prima facie case of age discrimination. If the employee shows a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. If the employer satisfies its burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination.

Three of the plaintiffs established a prima facie case under the ADEA, each showing he was (1) at least 40, (2) was performing satisfactorily, (3) was discharged, and (4) either was replaced by a substantially younger employee with equal or inferior qualifications or was discharged under other circumstances giving rise to an inference of age discrimination.

The only issues were whether plaintiffs were performing their jobs satisfactorily and whether they were discharged under circumstances giving rise to an inference of age discrimination.

The court was persuaded by the fact that before the new supervisor took over, the average age of the workers was 44, and after he was given hiring responsibility the average age of the workers hired dropped to 35. The disparity between the average age of those hired and those laid off increased from slightly less than two years to nearly 16 years once the new supervisor took over.

The court said the evidence showed he had used his authority to replace older workers with younger counterparts, and that could allow a reasonable juror to draw an inference of age discrimination. The court also found that Eagle Produce did not provide a facially legitimate explanation for one of the plaintiff's discharge (but did for the remaining two) and therefore allowed that one plaintiff's claim to go to trial on the ADEA issue.

What This Means for Employers: News reports frequently detail the likelihood that more workers than ever will continue to work well past what normally has been considered the typical retirement age. Government statistics likewise indicate that the workforce will continue to age. Of course, as the workforce continues to age, the various issues affected by considerations of potential age discrimination will become more and more prevalent.

When considering personnel actions involving applicants or employees 40 years old or older, both California and federal law prohibit basing the decision on age. Any such decisions must be based upon legitimate business justifications, such as performance standards.

To that end, it is very helpful to have up-to-date job descriptions and current performance evaluations. Performance evaluations must be accurate.

Also, in layoff situations, like this one, it may be helpful to do your own statistical analysis beforehand so you can see if the layoff is having a disproportionate effect on older workers, and if so, what legitimate rationale explains it.

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New Form I-9 Must Be Used

The U.S. Citizenship and Immigration Services (USCIS) has issued a new Form I-9 for verifying the identity and employment eligibility of new employees, which all employers are to have started using as of July 1.

The new form is substantively unchanged from the previous form; the only change is its expiration date of June 30, 2009.

If employers fail to use the new form, they may be subject to civil penalties. The previous revision to Form I-9, which just went into effect this past Jan. 1, did have substantive changes, including the removal of several list "A" documents that can be accepted as evidence of employment eligibility.

It is not necessary for employers to complete the new Form I-9 for employees hired before July 1 if there is already a properly completed Form I-9 on file. However, employers must use the new form to reverify employment authorization and for all employees hired after July 1, 2008.

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