2300 River Plaza Drive, Sacramento, California 95833-3239 • (800) 753-9073
2300 River Plaza Drive, Sacramento, California 95833-3239 •
(800) 753-9073
Quotation or reproduction in whole or part not permitted without express authorization.
Vol. 32, No. 1, January 2003
In This Issue
Post Cal/OSHA Form 300A
Annual AgSafe Conference
New Workers' Compensation Form Requirement
Holiday Shutdowns & Exempt Employees
Checklist for Government Inspection Search Warrants
Ag Accent Update
UFW Wins Decert Election at Coastal Berry Watsonville
Tomato Grower Hit for Using H-2A Program
Passage of Proposition 46 Opens Housing Doors
UC Advisor Offers Conflict Resolution Advice
Employee Fraternization
Sample Workplace Fraternization Policy
Consensual Relationship Agreement
Bill to Delay Enforcement of Job-Killer Legislation Introduced
Safety Sheet: Hand and Feet Safety
Unless exempt, an employer with 11 or more employees must post Cal/OHSA Form 300A from Feb. 1 through April 30 each year.
Form 300A lists a summary of occupational injury and illness experience for the prior calendar year.
For your convenience, FELS has indexed the Cal/OHSA recordkeeping regulation with links to the Cal/OSHA forms.
To access the indexed regulations, go to www.fels.org, click on "Subscriber Resources," click in the password “Ab12345" and press the green arrow. Then click on "Labor/Safety Index." From the Labor/Safety Index, click on "Cal/OSHA Recordkeeping & Form", then "Recordkeeping Cal/OSHA's New Regulation - FELS Indexed."
A fatal or serious injury or illness incurred by an employee must be reported to the nearest Cal/OSHA office within 8 hours. As of Jan. 1, an employer failing to do so is subject to a minimum $5,000 fine.
FELS 2003 Wage and Benefit Survey
A 2003 FELS Wage and Benefit Survey form is enclosed with this month’s issue of the FELS Newsletter.
Conducted by FELS since 1980, the annual survey is a valuable tool for FELS subscribers.
Please note: A new section has been added to the survey form. In light of the huge increases in workers' compensation premiums in the last year, we are asking for your 2002 and 2003 premium amounts. A summary of this data may be provided to the Legislature along with an expression of concern over the current sorry state of workers’ compensation costs in California.
So the results will be as valid as possible, subscribers are urged to complete and return the form by March 1. The results of the survey will be tabulated and reported in the May issue of the FELS Newsletter.
FELS is confident the results will be a useful tool for agricultural employers in gauging 2003 wage adjustments.
Guadalupe “Lupe” Sandoval, Director, Risk Management Services, USI Northern California, reported he found a free forklift training program while searching for training materials.
The Web site address of the training program is: http://www.free-training.com/osha/forklift/forkmenu.htm.
After going through part of the training, Sandoval said it was quite good and user friendly. "This will help employers comply with most of the formal OSHA forklift safety training, but not the competency certification requirement," Sandoval said.
Cal/OSHA's Forklift Safety training regulation (agricultural operations are exempt) are located at: http://www.dir.ca.gov/Title8/3668.html.
(Source: Guadalupe “Lupe” Sandoval, 800/527-2421)
Discussions of agricultural safety issues will fill the meeting rooms and hallways of the Embassy Suites Hotel and Conference Center in Seaside on Feb. 5 and 6 as the Ninth Annual AgSafe Conference will again be held along Monterey Bay.
The event will feature more than 30 workshops on safety issues ranging from hazard recognition to dealing with medical providers. More than a dozen specialists in various aspects of agricultural safety will provide information and training.
Agricultural and business managers are paying increasing attention to safety as they realize an effective safety program not only protects employees but also helps the financial bottom line, reported Kimberly Naffziger, director of AgSafe and conference coordinator.
“With workers’ compensation rates going up, safety managers are going to have to address these issues more pro-actively in order to keep their costs in line,” she said. Several of the workshops address financial issues directly related to safety, such as workers’ compensation, loss control and claims management, and occupational medical clinics.
Other conference classes will address safety laws and regulations, emergency response, crisis-management training, strategies to promote safe workplace behavior, ammonia safety, effective safety training, how to be an effective leader, and other topics.
International public speaker, trainer and consultant Valentine DiCerto will provide the opening keynote address. His presentation “Taking Knowledge to Power,” will set the tone for what planners expect to be a dynamic event. Other keynote presenters include John Avila, a detective with the Fresno County Sheriff’s Department, who will discuss “Narcotics Recognition as it Relates to Agriculture,” and Hector Escarcega, President of Bilingual Solutions, who will present “The Power of a Positive Attitude” during the luncheon on Thursday.
The conference is designed to benefit participants representing all areas of agriculture and agribusiness, including safety professionals, production managers, supervisors, chemical handlers, machine operators and company owners. It typically draws more than 200 participants from throughout California.
In addition to the workshops there will be networking opportunities, as well as vendor displays of safety equipment, services and supplies, Naffziger said.
The conference is sponsored by AgSafe; the Center for Agricultural Business (CAB) and California Agricultural Technology Institute (CATI) at California State University, Fresno; the National Institute for Occupational Safety and Health; the UC Center for Occupational and Environmental Health; and the UC Farm Safety Program.
Cost to attend is $190 for AgSafe members and $265 for non-members for registrations postmarked by Jan. 24, 2003. For single-day rates and other discount information, call (559) 278-4404.
More information, including detailed descriptions of the workshops, is available on the AgSafe website at agsafe.org and on the CAB website at cati.csufresno.edu/cab.
New Workers' Compensation Form Requirement
Starting this year, California employers must give each new employee a form on which the employee may pre-designate a health-care provider to treat him or her for a work-related injury or illness.
Under prior (and current) law, employers had to notify all employees of their rights and benefits under the workers' compensation law. They also had to notify all new employees of their right to pre-designate a personal physician or chiropractor for the treatment of work-related injuries. Under AB 749, signed by Gov. Davis on Feb. 15, 2002, employers are now required to provide new employees, at the time of hire or by the end of the first pay period, with a pre-designation form.
Most workers' compensation carriers will provide employers with the revised notice and new form after the state Department of Industrial Relations, Division of Workers’ Compensation, has adopted a regulation that includes them. According to State Compensation Insurance Fund, employers will be in compliance with the new law by continuing to post the existing approved notice until the revised notice and form is available. Your carrier will notify you when that occurs.
Failure of an employer to provide the required notice shall automatically permit the employee to be treated by his or her personal physician.
While an employer must provide new employees a physician pre-designation form, the form does not have to be given to current employees. Also, an employer is not required to orally tell employees about the form nor encourage them to fill it out. Where an employee does not pre-designate a health-care provider, the employer can choose the physician who will treat the employee during the first 30 days of treatment for a work-related injury.
Employers are encouraged to document the fact they provided employees with the required information and form. On page 6 of this newsletter is a revised "New Employee Orientation Checklist" form for this purpose.
Consider preparing and giving new employees a "New Hire Packet" or envelope. The packet or envelope contains every form and notice that a new employee must receive and a copy of the "New Employee Orientation Checklist." Before starting work, a new employee must complete the required employment forms and sign the "New Employee Orientation Checklist" form.
Holiday Shutdowns & Exempt Employees
The California Labor Commissioner recently issued an opinion letter affecting how employers in California must pay their exempt employees. The new opinion letter focuses on vacation shutdowns during the holiday season.
According to the California Labor Commissioner, an employer must pay an employee a full week’s pay for any workweek in which the employee performs any work. If no work is available for the entire workweek, as in the case of vacation shutdown, no salary need be paid. The employee’s exempt status will remain intact as long as the exempt employee is paid a monthly salary of at least twice the state minimum wage, based on a 40-hour workweek. Currently, the minimum monthly salary for exempt employees is $2,340. This could be an issue for employers that shut down operations for a period of a week or longer.
Employers do not have to let exempt employees use vacation or personal time off (“PTO”) to make up lost salary. An employer may adopt a policy or have individual employment agreements that govern whether employees may apply vacation or PTO pay during a shutdown. However, an employer may not require employees to use accrued vacation time or PTO during vacation shutdowns unless it has a policy or an employment agreement specifying the requirement and has given notice of the specific period at least nine months in advance.
Finally, if an exempt employee takes a partial day off for personal reasons, or if the employer tells the employee to do so because the work load is light, the employer may not dock the employee’s salary the balance of the day from his/her vacation or PTO bank. Employers must generally pay exempt employees for a full workweek in which any work is performed, no matter who initiates the request for time off.
The only permissible exception is where an exempt employee requests and is granted a full day off for his or her own personal reasons. In this instance, an employer may dock the employee’s salary for the entire day, and the exempt employee may elect to make up the loss from accrued vacation or PTO.
In applying these rules, an employer must remember its defined “workweek.” Many employers’ workweeks start at 12:01 a.m. Sunday and end at midnight on Saturday. If a workweek runs Sunday through Saturday and the employer shuts down for Christmas through New Year’s Day, exempt employees are entitled to full pay for both weeks in which the holidays fall. This is because employers will have performed some work in both work weeks.
(Source: Wayne Hersh [whersh@oc.bergerkahn.com] of Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone)
Checklist for Government Inspection Search Warrants
Employers should adopt a policy on what is expected in the event of government inspections or government search warrants.
1. The first procedure that must be in place and disseminated to all employees is that when government agents, whether from the state or federal government, show up at a facility of the employer, it is the employee’s obligation to notify management immediately.
2. Employees or the supervising manager at the location should check the credentials and find out what agency, whether they are from the state or federal government.
3. The designated point person for the employer should ask what the purpose of the inspection or search warrant is.
4. The point person should request time to get whoever the ranking manager/supervisor is present on the scene.
5. The policy should also provide:
a. No interviews on Company property
b. Employees are not to answer a question of substance regarding an inspection or search warrant without a legal consultation
c. No document destruction
d. Agents should be signed in
e. Agents should provide a copy of the inspection notice or warrant
f. All searches are monitored by counsel if possible
g. Employers should designate a spokesperson to deal with any press inquiries
h. Release employees in searched areas -- move the employees to a different area
I. Request copies of all documents seized
j. Under the California Penal Code §§1535 and 1538, a request of inventory of all documents or objects taken
k. Photograph all areas where they were photographed by the government agents
l. Request split samples or samples of any liquid are taken for evaluation
m. Request a print out of electronic documents when electronic material is seized
n. Notify agents of attorney-client privilege or work product
Note: For any search of the legal department, request that the search be conducted under supervision of a special master. See California Penal Code §1524(c). A federal search needs a special authorization, 28 CFR 59.4.
(Source: Wayne Hersh [whersh@oc.bergerkahn.com] of Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone)
The following articles are provided by Ag Accent, a publication of the Agricultural Action Committee, Don Curlee, editor. Agricultural Action Committee is a membership organization dedicated to informing agricultural employers about farm labor issues. Subscriptions/contributions are available at a suggested rate of $50 per year. For more information write to P.O. Box 34, Clovis, CA 93613.
Rivera Re-Appointed to ALRB: Cathryn Rivera, a 32-year-old attorney from Sacramento, was re-appointed by Gov. Gray Davis to a full five-year term as a member of the Agricultural Labor Relations Board. She was the governor’s chief deputy cabinet secretary and had been editor-in-chief of the La Raza Law Journal.
Rivera earned her bachelor of science degree from Arizona State University and a juris doctorate degree from Boalt Hall School of law, University of California, Berkeley. Her annual salary is $114,191.
UFW Wins Decert Election at Coastal Berry Watsonville: An election to decertify the Coastal Berry Agricultural Workers committee was held in November in Watsonville. The petition to decertify required a 30-percent showing of interest.
The election had an unusual twist in that the United Farm Workers union qualified as an intervenor with a showing of interest of 20 percent of the workers.The UFW won a majority of the votes casts and was certified to represent the company’s employees in that bargaining unit.
Although the filing of the petition was disputed originally on the basis that the work force was not a 50 percent of peak, a decision was made by the executive secretary of the ALRB that the 412 employees on the payroll fell within the margin provided in the ALRA.
The ballot workers marked had three choices: the present “Comite” union, the UFW or no union. As stated on the petition, those voting were all of the company’s agricultural workers (currently employed) in Monterey and Santa Cruz Counties.
Tomato Grower Hit for Using H-2A Program: Harry Singh & Sons, an Oceanside tomato grower, has been sued by a group of workers represented by California Rural Legal Assistance for importing 160 workers under the H-2A program, allegedly displacing domestic workers.
Singh employed the workers imported from Mexico to pick tomatoes. The suit says the employer failed to make a good-faith effort to recruit domestic workers and charges that domestic workers who had been employed by Singh were paid less than the imported workers.
U.S. District Judge Judith Keep issued a preliminary injunction ordering Singh to send letters to the domestic workers he had employed, offering them a chance to apply for work at the same pay as the foreign workers. Singh had supplied bus service for domestic workers from the Coachella Valley, but he canceled it. The judge did not require that he reinstate it.
Singh’s attorney said Singh had been able to recruit only 480 workers to pick tomatoes at the Camp Pendleton site, but 650 were needed. The attorney said Singh had incurred a loss of $2.5 million due to the worker shortage.
Singh is the second grower to be challenged by the CRLA for importation of foreign workers. SAMCO, a farm labor contracting firm in Santa Paula, was sued previously for its use of foreign workers in last summer’s lemon harvest.
In the 1990s, Singh was named by an agency of the federal government as the agricultural employer of the year for the western region.
Passage of Proposition 46 Opens Housing Doors
The potential for improvement in the amount and condition of housing available for farm workers in California was expanded with the passage November 5 of Proposition 46, a bond measure allocating $2.1 billion for various low-cost housing. The measure passed with a 15-percent margin.
The measure was supported by the California Farm Bureau Federation and the United Farm Workers union. Roy Gabriel, CFBF’s labor affairs director, is part of a farm-worker housing task force named in September.
The task force, which includes representatives of the housing commission staff, USDA, HUD, the Department of Migrant Services and California Rural Legal Assistance, will help direct the funds.
The proposition allows the $2.1 billion to be added to other state and federal housing funds already available. $200 million will be used to construct and rehabilitate housing for farm workers.
Local housing authorities and others who can provide matching amounts are expected to apply for the funds. Gabriel said the additional funds provided by Proposition 46’s passage will be a big boost in overcoming the critical shortage of farm workers housing, and will enhance the use of the H-2A program, which requires that imported workers be housed.
UC Advisor Offers Conflict Resolution Advice
University of California labor management advisor Gregory Encina Billikopf discovered a form of conflict resolution that goes against conventional wisdom, but is effective. His findings might have something to offer mediators who will have to mediate the inability of agricultural employers and unions to reach collective-bargaining agreements under the Agricultural Labor Relations Act and draft contracts for them if mediation fails.
Billikopf’s “new style” of settling differences is based on the mediator’s meeting with each participant in the dispute individually ahead of time. Traditionally, the mediator is introduced to both parties at the same time and begins his counseling by listening to each side’s presentation.
Billikopf says: “In a joint meeting, when both people are upset, neither wants to listen first. Emotions can escalate out of control as each side speaks while the other tries to rebut and defend him or herself.”
His method allows each party to explain his or her side to a sympathetic listener (the mediator). The experience gives the mediator an opportunity to inform each party how to share feelings without using hurtful words or expressions that will put the other party on the defensive.
He also found that a meeting by the two parties with the mediator present works best when the participants face each other, with the mediator sitting at a distance from them. In such a joint session, he says, “They aren’t talking to me (but to one another). Sometimes the two people do such a good job of talking and solving problems, I almost feel I’m not needed there.”
His discovery of the alternative method of resolution arose from his work with agricultural employers seeking means of settling claims and charges by employees, some of them against each other, some against the employer. He recommends the method to all agricultural employers, and offers his paper on the subject to them. He can be reached at (209) 525-6800 or by e-mail at gebillikopf@ucdavis.edu.
Last month an article appeared titled "Avoiding Workplace-Romance Problems." This month we are providing a sample handbook policy on workplace fraternization and a sample Consensual Relationship Agreement.
Sample Workplace Fraternization Policy
Our company has a policy prohibiting sexual harassment in the workplace. This policy applies to all employees of the Company, including supervisors, managers, and executives.
While the Company does not encourage co-employee dating or entering into consensual social relationships with other employees, the Company cautions employees not to let such fraternization affect their job performance. The Company allows fraternization provided: both parties mutually and voluntarily consent to the social relationship; the relationship does not breach corporate values; and the relationship does not affect judgment or performance of duties of involved employees or negatively impact the common good of the Company.
To ensure that social relationships do not adversely affect the workplace, employees who enter into such relationships must comply with the following:
* Notify the Human Resource Director of the relationship;
* Review the Company's policy prohibiting Sexual Harassment;
* Agree to possible reassignment if the social relationship involves a subordinate employee;
* Behave professionally at all times - avoiding indiscreet behavior while at the workplace or while on Company time or business including refraining from public displays of sexual affection, sexual innuendo, suggestive comments and sexually oriented joking.
* Agree to confidential counseling by the Company’s Employee Assistance Program regarding the issues surrounding workplace dating
* Notify the Human Resource Director should the social relationship terminate.
Employees found in violation of this policy will be subject to disciplinary action up to and including termination.
The Company reserves the right to make decisions in the best interest of the organization including reassignment, transfer or separating employees where appropriate.
Consensual Relationship Agreement
Employee , employed by the Company as a _______________, and Employee , employed by the Company as a _______________, hereby notify the Company that we wish to enter into a voluntary and mutual consensual social relationship. In entering into this relationship, we both understand the company policy on dating and do not find our relationship to be in violation of the policy and agree that we are both free to end the social relationship at any time. Should the social relationship end, we both agree that we shall not allow the breakup to negatively impact the performance of our duties.
Before signing this Consensual Relationship Contract, we received and reviewed the Company's Employee Dating Policy, a copy of which is attached. By signing below, we acknowledge that the social relationship between us does not violate the Company's Employee Dating Policy, and that entering into the social relationship has not been made a condition or term of employment.
Employee A Date
Employee B Date
Bill to Delay Enforcement of Job-Killer Legislation Introduced
Senator Chuck Poochigian has introduced a bill designed to delay enforcement of many of the bills that went into effect on January 1, 2003, until the Governor issues a proclamation that the State’s economy has fully recovered from the recession that began in 2000.
The bill, SBX1 1, is currently pending before the Senate’s Labor and Industrial Relations Committee.
As happens every January 1, a wide multitude of new legislation goes into effect. This year, the was particularly stacked against California’s employers, in many different ways. Among the new legislation that SBX1 1 seeks to delay are the following:
AB 749, which made sweeping changes to California’s workers’ compensation system;
AB 2509, which allows local jurisdictions to create and enforce local versions of labor and employment laws, in addition to the state and federal laws employers are already forced to comply with; and
SB 1156 and AB 2596, which require mandatory “mediation” when an employer and a union are unable to reach terms of a collective bargaining agreement under California’s Agricultural Labor Relations Act.
SBX1 1 also seeks to stop enforcement of several pieces of legislation that went into effect in prior years, including:
SB 975, effective in 2001, which requires “prevailing wages” to be paid on any private project that receives any assistance from the State; and
AB 60, effective in 1999, which ended California’s short-lived effort to be consistent with the federal Fair Labor Standards Act provisions on overtime. Specifically, AB 60 reinstituted California’s requirement of daily overtime, as compared to the federal overtime requirement which is only based upon weekly hours worked.
(Source: Patrick S. Moody, Barsamian, Saqui & Moody)
Safety Sheet: Hand and Feet Safety
Safety Sheet: Hand and Feet Safety
NEW EMPLOYEE CHECKLIST
LISTA DE CHEQUEO DE EMPLEADO NUEVO
Name Date of Hire
Nombre Fecha de Empleo
Supervisor Job Title:
Supervisor Titulo de Trabajo: Dept.
The new employee has filled out the following items/El empleado nuevo ha llenado las siguientes formas:
Employment Forms/Formas de Empleo:
___ Application for Employment ___ INS Form I-9
Aplicación de Empleo Forma INS I-9
___ IRS Form W-4 - Social Security Card copy attached ___ Tools/Equipment Loan Agreement
Forma IRS W-4 Contrato de Préstamo de Herramientas/Equipo
___ Bonding Application ___ Drug Free Workplace Agreement
Aplicación de Garantía Contrato de Lugar de Trabajo Libre de Drogas
___ Housing Agreement ___ DOT Alcohol & Control Substance testing agreement
Acuerdo de Vivienda
Enrollment Cards/Tarjetas de Alistamiento:
___ Health Plan ___ Dental Plan
Plan de Salud Plan Dental
___ Long-Term Disability Plan ___ Life Insurance
Plan de Incapacidad de Largo Plazo Seguro de Vida
___ Flexible Spending Account Election Form ___ Other
Otro
Received from New Employee/Se Recibió de Parte del Empleado Nuevo:
___ Work Permit, if under 18 ___ Motor Vehicle Record (Driving Record)
Permiso para trabajar si es menor de 18 años Récord de Conductor del Departamento de Vehículos (Récord de Conductor)
___ College Transcripts ___ Other
Transcripciones de colegio Otro
Paycheck Deduction Authorization/Deducciones de nóminas de pago:
___ Housing/Utilities ___ Credit Union
Vivienda/Utilidades Banco (Credit Union)
___ Medical Insurance Plan ___ Other
Plan de Seguro Médico Otro
The new employee has received the following items/El Empleado Nuevo Recibió los Siguientes Artículos:
___ SDI Pamphlet (DE 2515) ___ Workers' Compensation Insurance Pamphlet
Folleto de SDI (DE 2515) Folleto del Seguro de Compensación del Obrero
___ Written Injury Prevention Program ___ Physician Pre-designation form
Programa Escrito de Prevención de Lesiones
___ COBRA Notification ___ Employee Handbook
Aviso sobre COBRA Manual de Empleados
___ Other ___ Sexual Harassment Pamphlet
Otro Folleto de Acoso Sexual
These items have been explained to the new employee/ Estas cosas se le han explicado al empleado nuevo:
___ Migrant and Seasonal Agricultural Worker Protection Act Worker Disclosure Information.
Ley de Protección de Trabajadores Emigrantes y Temporales en la Agricultura Información para los Trabajadores.
___ Safety Training for employee's position.
Entrenamiento de seguridad para la posición del empleado.
___ Workers' Compensation Insurance Orientation.
Orientación sobre el Seguro de Compensación del Trabajador.
___ Conduct Standards.
Normas de Comportamiento.
___ Hazard Communication and MSDS Training.
Entrenamiento de Comunicaciones de Peligros y de hojas de MSDS.
___ Location of Sanitation Facilities/Good Hygiene Practices.
Ubicación de Instalaciones Sanitarias/Practicas de Buen Higiene.
___ Wages/Benefits
Sueldos/Beneficios
___ Other
Otro
The following records have been set up/Se han preparado los siguientes archivos:
___ Personnel Records ___ Personal Folder
Archivos de personal Archivo Personal
___ Time Records ___ Other
Registros de Tiempo Otro
Physical Examinations/Exámenes Físicos:
___ Employment is contingent on employee taking and passing a job-related medical examination and/or test for illegal drug use.
El empleo depende en que el empleado tome y pase un examen médico relacionado al trabajo y/o prueba de uso de drogas ilegales.
___ Employee was referred to on
El empleado fue recomendado a el
Physician/Client - Médico/Cliente Date/Fecha
___ for an examination.
para una examinación.
___ Medical statement received and filed in employee's personnel folder.
La declaración médica recibida y archivada en el archivo personal del empleado.
Signatures/Firmas:
Employee Date
Empleado Fecha
Company Representative Date
Representante de la compañía Fecha