ALRB Activity On the Web

The law firm of Barsamian, Saqui & Moody, The Employers' Law Firm sm, is now tracking union filings with the Agricultural Labor Relations Board and has posted them on its Web site. The filings are Notices of Intent to Take Access (NAs), Notices of Intent to Organize (NOs) and petitions for elections.

To access the information, visit: http://www.theemployerslawfirm.com/firm/alrb.php

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Agricultural Employees are Exempt from Federal Overtime

Several growers have recently faced class-action lawsuits alleging their employees were owed overtime, even though the work involved was agricultural in nature.

The federal Fair Labor Standards Act (FLSA) generally requires employers to pay employees an overtime premium of 1½ half times their regular rate for hours worked over 40 in a workweek. However, the FLSA provides an exemption from this overtime requirement for a person "employed in agriculture."

Failing to pay overtime to employees whose jobs are related to agriculture--but do not meet the FLSA's definition of agriculture--is a common and costly mistake. Following are some key reminders:

•An employee performing any of the primary activities of farming-such as cultivation and tillage of soil, or growing and harvesting of crops-is exempt from FLSA overtime. Fieldwork is a prime example.

•An employee performing secondary agricultural work incident to or in conjunction with farming operations is exempt from overtime. Examples include preparing commodities for market and delivering commodities to storage, to market, or to a carrier for transporting to market.

•An employee who performs exempt agricultural and non-exempt work in the same workweek is not exempt from the FLSA's overtime requirements for that week. The employee is owed overtime for any hours worked over 40 in the week, even if 99 percent of the work was exempt as agricultural.

•The agricultural exemption is available to a grower who produces, packs, sells and transports only his own crops. However, employees of a grower who in a workweek handle, sell or transport another grower's products are not exempt from FLSA overtime for any part of that workweek. Similarly, if the grower has a retail store that sells products not produced on his farms, field workers who occasionally work in the store would lose the agricultural exemption for any workweek in which they worked in the store. Likewise, the agricultural exemption is lost for nursery employees who, in addition to plants produced by it, sell chemicals or tools offered by it.

Quick Tips:

•If possible, simplify your operations to the extent necessary to keep employees performing only agricultural work in any workweek.

•Maintain thorough record-keeping practices. This is especially important if your operation is complex with workers performing work that is both exempt and non-exempt. Good records are essential to establish a solid defense under the FLSA, as well as other federal and state labor laws.

Overtime liability under the FLSA can be expensive. Back-wage liability can go back for three years, and can be doubled if the violations are found to be willful. Class action FLSA lawsuits are popular now in part because of the complexity of the law in this area and the availability of attorneys' fees if plaintiffs win.

Employers in California need to remember that, despite the exemption under the FLSA for agricultural work, state regulations require the payment of an overtime premium to persons employed in agricultural occupations. Industrial Welfare Commission Order No. 14-2001 requires that such an employee be paid 1½ times his regular rate of pay for hours worked over 10 in a workday and for the first eight hours of work on the seventh day of work in a workweek. Double-time must be paid for hours worked beyond eight on the seventh day of work in a workweek.

(Source: National Council of Agricultural Employers)

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Cal/OSHA Out of Travel Funds?

While some have speculated that Cal/OSHA is reducing its random on-site inspections due to reduced travel funds, many Santa Maria-area growers don't believe it.

Richard Quandt, President, Grower-Shipper Vegetable Association, reports that "four teams from the Division of Occupational Safety and Health (Cal/OSHA) conducted agricultural field enforcement inspections in the Santa Maria area the week of June 9-13. Inspections centered on strawberry growers...and vegetable harvesters...."

"Those inspected reported the following areas were investigated:

1. Verification that written maintenance records of field-sanitation facilities are kept at least 2 years.

2. Whether drinking water is cool, fresh and in sufficient amounts to meet the needs of the crew.

3. Whether the employer has a Written Injury and Illness Prevention program and has documentation in writing of farm-worker safety training. The inspectors are interviewing employees in the field to obtain a list of names and then examining training logs in the office to confirm training.

4. Whether the employer has a first-aid kit with material that sanitary, unable and replenished when needed."

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Wage Overpayments May Be Hard To Recoup

A subscriber called the FELS Employer Hotline recently with the problem of overpaying an employee in his last paycheck. The employee cashed the check, and the employer wanted to know how he could get the overpaid money back.

Unfortunately, an employer cannot make any deduction to an employee's wages unless the employee provides the employer with a voluntary written authorization to do so.

Another way to receive the funds from the employee is for the employee to pay back the overpayment in cash.

Reporting the matter to the local police authorities or district attorney's office could help.

The only other way to get the funds back is by filing suit in Superior Court.

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Retirement and Bonus Plans-Part Two

(This is the conclusion of an article that started in last month's issue.)

Bonuses are sometimes confused with commission wages. To qualify as a "commission," the scheme must meet the requirements of a "commission wage." Bonuses are not predicated upon the price of a particular product or service, but are usually based on reaching a minimum amount of sales or making a minimum number of pieces, and can be distinguished from a commission by that fact.

Many times a bonus is paid to individuals who are not engaged in sales at all. Generally, if the contract for the commissions is clear and unambiguous and substantial duties must be performed to complete the sale, the employee who quits his employment without accomplishing those tasks is not entitled to recover.

However, a discharged employee has been prevented from completing the duties and may be able to recover all or a pro rata share of the commissions. A commission is "earned" when the employee has perfected the right to payment-that is, when all of the legal conditions precedent have been met.

As described in point 2 above, bonuses-or the lack thereof-can pose an employee morale problem. Some employers budget for bonuses and reward employees on their merits, rather than on how much cash is available. Budgeting for bonuses avoids the problem of disappointing an employee who, though performing exceptionally well during the year, won't get a bonus because the company did poorly financially.

Besides, if the company ties bonuses to profitability, then it opens the door for employees not paid bonuses because the company claims it had an unprofitable year to demand to review the company's financial records-a situation most companies want to avoid.

To receive the most bang for your bonus dollars, tie the bonus to quantitative measurements that employees can control. For example, award a nursery propagator a bonus based on the number of plants that matured rather than the number planted. Or, a milker gets a bonus based on the bacteria count reported by the creamy.

The measurements must be not only obtainable, but they must be objective and reliable. Take, for example, the bacteria-count measurement. The results are derived by a neutral, independent source: the creamy. Accordingly, the bonus is based on trustworthy criteria, making the bonus-granting decision virtually unchallengeable.

As mentioned in points 4 and 5 above, a bonus program must be well-developed and put into writing. Take, for example, an end-of-season bonus for harvest employees. Without the appropriate safeguards, an employer may be forced to pay an employee the bonus or a prorated portion of it.

For example, an end-of-season bonus policy should specify: 1) when employees must start the season to be eligible for the bonus; employees starting after the specified starting deadline are ineligible; 2) how many absent days disqualify an employee from eligibility for the bonus ; 3) the minimum number of bins an employee must pick to be eligible; 4) how the bonus is measured, e.g., units produced; and 5) designate the last day of work-for example, "employees must work the last scheduled day of the harvest to be eligible for a bonus."

Stanislaus County Farm Advisor, Gregorio Billikopf Encina has an excellent discussion of incentive-pay systems in a chapter of his book Cultivating Personnel Productivity, 2^nd edition. The chapter reviews causal and formal incentive systems, pointing out the pros and cons of each. Plus, he offers sample policies and real-world examples of incentive-pay systems. The book is available on the Internet at http://www.cnr.berkeley. edu/ucce50/ag-labor/7labor/08.htm.

Another resource is Ag Help Wanted. This book, by Howard R. Rosenberg, is another University of California resource. In chapter 5, Rosenberg discusses Pay and Performance programs. The book can be ordered online from http://aghelp wanted.org/.

(Sources of Retirement-Plan Information: TD Waterhouse Investor Services, Inc., and FindLaw.com)

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Fed OSHA Radio Campaign Targets Spanish Speakers

The Occupational Safety and Health Administration began a campaign to reach Spanish-speaking employees. The campaign will run public service messages on Hispanic radio stations. More than 650 stations will air the messages.

OSHA has said that there are not only language barriers, but also literacy and cultural barriers to be overcome in achieving safe and healthy work sites.

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New Respiratory Protection Standard Proposed

The Occupational Safety and Health Administration will soon publish two proposed rules that seek to enhance worker protections from respiratory hazards on the job.

OSHA is seeking comments until Sept. 4 on its proposals to amend the Respiratory Protection Standard to include a new fit-testing procedure and incorporate new Assigned Protection Factors (APFs) for respiratory protection programs, that are expected to prevent approximately 4,000 injuries and illnesses and prevent about 900 deaths annually from cancer and other chronic diseases.

"It's critical that workers and employers select respirators that will protect users against over-exposures and adverse health effects," said OSHA Administrator John Henshaw. "These proposed additions will assist employers and employees in fit-testing respirators and properly selecting respirators based on the conditions in their workplaces."

In a notice of proposed rulemaking, OSHA will propose amending the existing Respiratory Protection Standard to incorporate APFs as part of a complete respiratory protection program to assist workers and employers in the proper selection of respirators. APFs are numbers that reflect the workplace level of respiratory protection that respirators are expected to provide to employees. The proposal contains OSHA's preliminary decisions on an APF Table, definitions for APFs and Maximum Use Concentrations, and amendments to replace the existing APF requirements in OSHA's substance-specific standards.

OSHA also is seeking comment on its proposal to approve a new testing protocol for its Respiratory Protection Standard. The proposed protocol is referred to as controlled negative pressure (CNP), which requires three different test exercises followed by two redonnings of the respirator. OSHA's current CNP protocol specifies eight test exercises, including one redonning of the respirator.

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U.S. Supreme Court Issues Key Employment Decisions

Nearing the end of its current term, the U.S. Supreme Court has been issuing decisions on the many cases it heard throughout the term. Two of those case in particular are important in the area of employment law.

Corporate Shareholders May Be Counted as Employees

In Clackamas Gastroenterology Associates v. Wells, the court considered a question that is particularly relevant to small corporations. In that case, an employee sued a small medical group for alleged violation of the Americans with Disabilities Act (ADA). The group was set up as a professional corporation, and the four doctors in the group were the only shareholders. If the doctors were considered employees, the employer would meet the minimum number for coverage by the ADA-15 employees-but if they were not considered employees, the employer would not be covered by the ADA.

The doctors argued that even though they were shareholders in a corporation, in reality they were more akin to partners, who are not considered "employees" under employment-discrimination laws. The court, however, said that the doctors could not take the advantages of being a corporation, such as protection from personal liability, and at the same time try to avoid employer liability under the discrimination statutes by contending they are really partners. Rather, the court said that one must look at six factors to determine if shareholders are considered employees: whether the organization can hire or fire the individual, the extent the organization supervises the individual's work, the extent the individual can affect the organization, the parties' intent as evidenced by any contracts, and whether the individual shares in the profits, losses and liabilities of the organization. No one factor is determinative, even a written "employment agreement," but rather, the court will look at all of the circumstances.

What This Means for Employers: If, or perhaps more accurately, when, your business is sued by an employee, it is important to accurately determine whether the business is even subject to the relevant statutes. If your business has shareholders who are active in the operation, there may be ways to avoid counting them as part of the requisite number of employees.

"Mixed-Motive" Cases Are Now Easier to Prove

In a watershed case decided in 1989, the court held that when an employment decision is made on the basis of both a legally permissible reason and an impermissible reason-a so-called mixed-motive case-the employer can avoid a substantial portion of the available liability by proving the affirmative defense that it would have made the same decision without any consideration of the impermissible reason.

If the employer can prove the affirmative defense, the employee is limited to recovering declaratory and injunctive relief, and attorney's fees and costs, but cannot recover compensatory damages or potential punitive damages.

The court in that case was divided, however, on whether the employee had to show direct evidence of the discriminatory reason to switch the burden of proof to the employer, or if the employee could switch the burden with mere circumstantial evidence. In Desert Palace, Inc. v. Costa, the court has now answered that question.

In Desert Palace, the plaintiff employee was the only woman working in her department at Caesar's Palace in Las Vegas. She had been subject to a series of disciplinary steps, including a suspension, when she got into a fight with a male co-worker who was a long-term employee with a spotless work history.

As a result of the fight, the employer suspended the male employee, but fired the female employee. She filed suit alleging sex discrimination, claiming she had been subjected to a long course of differential treatment on the basis of her sex, ending in her termination.

The trial court instructed the jury that if it found the employee had shown any evidence the employer had used any discriminatory reasoning in its decision, the employee had switched the burden to the employer to prove its affirmative defense.

The employee won substantial damages at trial, including compensatory and punitive damages, and the employer appealed. The Ninth Circuit Court of Appeal upheld the trial court, and the employer appealed to the Supreme Court.

The Supreme Court found that when Congress amended the Civil Rights Act in 1991, it made changes that expressly provide that an employee need only "demonstrate" that an employer used an illegal reason as "part of" its decision making, before the employer is obligated to prove its affirmative defense. Therefore, any type of evidence is sufficient to shift the burden to the employer.

What This Means for Employers: Whenever taking adverse action against an employee, it is imperative for an employer to consider the potential avenues the employee may have to allege some type of illegal discrimination. Many times, it is relatively easy for employees to show circumstantial evidence of discrimination, especially in hindsight. Failure to think about that beforehand can lead to expensive and time-consuming litigation.

(Source: Barsamian, Saqui & Moody. The goal of this article is to provide employers with current labor and employment-law information. The contents should neither be interpreted nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360, or his or her own attorney, for individual responses to questions or concerns about any given situation.)

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Tractor Driver Licensing Requirements

Several FELS Subscribers have called the FELS Hotline to find out if a tractor driver is required to have a driver license. The answer to this question is not a simple "yes" or "no." Several circumstances must be considered, such as the type of implements the tractor is pulling. Here is a summary of the tractor driver license requirements:

Transporting Employees: While tractors are not generally used to transport passengers, they may be used to transport employees (passengers) if they have suitable seats. Tractors may be used to transport passengers by pulling a suitable trailer for passengers.

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the California Division of Occupational Safety and Health (Cal/OSHA) regulate employee transportation.

Under the MSPA, a driver of any vehicle transporting workers must have a valid motor vehicle operator's license. This applies to both on- and off-the-road transportation.

Cal/OSHA regulates the transportation of employees when hauled exclusively on private property. Under Cal/OSHA General Industry Safety Order sections 3700-3703, one may drive a vehicle while transporting employees only if the driver holds a valid operator's license for the appropriate class of vehicle being driven.

Operation on Public Highways: The California Vehicle Code regulates vehicle equipment and licensing while used on public roads. Vehicle Code section 36300 provides that any person, while driving or operating an implement of husbandry incidentally operated or moved over a highway, is not required to obtain a driver's license. However, a driver's license is required:

1. While the tractor is being used to draw a farm trailer carrying farm produce between farms or from a farm to a processing or handling point and return.

2. While operating an automatic bale wagon along a highway for a total distance greater than one mile from the point of origin of the trip.

3. While operating a combination of vehicles that includes an implement of husbandry at a speed in excess of 25 miles per hour or towing any implement of husbandry as follows:

A. A spray or fertilizer applicator rig used exclusively for spraying or fertilizing in the conduct of agricultural operations.

B. A trailer or semitrailer which has a maximum transportation capacity in excess of 500 gallons of anhydrous ammonia,

C. A trap wagon.

The California Highway Patrol offers a booklet with more information. Titled "Registration Enforcement Manual" (publication number HPM 82.5), the publication costs $5.40 plus California sales tax. Call (916) 375-2101.

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OSHA Issues of Concern in Agriculture

As a part of its strategic planning process, the Center for Occupational and Environmental Health, in partnership with Department of Industral Relations (DIR) and California Department of Health Services (CDHS), has chosen to focus its attention on occupational health and safety issues in California agriculture in 2004. Here is the text of the agency's announcement:

"While the agricultural sector is worthy of this attention in its own right, it also typifies a number of other segments of the California economy in the types of problems and potential solutions to occupational health and safety problems. Among these are a high fraction of short-term contract employees and immigrant workers, the pervasiveness of young workers, and the barriers to participation in health and safety programs resulting from non-English-speaking workers with insufficient education. Therefore, the objective of our year-long re-evaluation of occupational health and safety problems in agriculture is, in part, to determine if new problems have arisen but, more centrally, to determine if the changing nature of work and the political and economic environment in California generally offers new prospects for solving long-standing problems, both in agriculture and in other sectors of the economy which share the foregoing characteristics. We will examine health and safety in agriculture in the context of what training is available, enforcement of worker rights, the changing workplace, the prevalence of immigrant and young workers, and other broad labor issues

"The year's activities will be threefold, to identify priority problems, to explore new approaches to their solution, and to develop a strategy to implement these solutions. We begin here with the challenge of identifying priorities.

"Priorities: The following issues were identified by the COEH Agricultural Partnership Planning Group for use in conducting an informal needs assessment with the individuals and organizations identified by the group as having an interest in the health and safety of agricultural workers. Each member of the planning group will discuss these issues with the people they agreed to contact regarding the importance of these issues in targeting the greatest needs in agriculture. Equally important is to solicit other issues they consider to be significant problems.

1. Acute and chronic injuries

What are the most prevalent and disabling injuries?

Are there new strategies and/or tactics for more effective prevention?

Is there a need for additional research to identify solutions?

Better dissemination of existing solutions?

2. Engineering controls

What controls are available but not being used? Why not?

Are there new engineering solutions that need to be developed for minimizing hazards related to agricultural equipment?

3. Data collection

What is the current status of State data collection and record keeping for agriculturally related injuries or disease?

How can it be improved?

Do you have a need for better data and how would you use it?

4. Transportation Safety

are there risk factors for vehicle-related deaths or injuries among agricultural workers that are different than among the general population?

If so, are there specific prevention strategies?

5. Pesticides

There has been a great deal of work done already on pesticide poisoning prevention, but are there gaps still to be filled?

Does it make sense that occupational exposures to chemicals in agriculture are regulated under a different set of regulations than is the case for these same chemicals in other industries?

6. Other Issues

Are there other important research, education or enforcement issues critical to the protection of farm labor that need to be addressed in the state?

Identifying Key Participants

1. Find out if the person you interview is interested in participating in our workshops, which are tentatively scheduled.

2. Find out if they know other people who should be included in our needs assessment and workshop discussions. Attached is a list of the stakeholder groups we are contacting.

Are there any school-based programs?

Are there any safety people in agriculture? Cal/OSHA Shelves ASHIP

According to its Annual Performance Plan for FY 2003, Cal/OHSA has put on hold for now its Agricultural Safety and Health Inspection Program, or ASHIP.

The Annual Performance Plan continues: "The Division will still be programmatically attentive to these important ongoing projects. The High Hazard Unit and the Cal/OSHA Consultation Service will increase inspections, educational, public relations and on-site assistance activities by 3% over the performance level in 2001. These areas involve educational outreach to agricultural workers, worker advocacy groups and employers, and the California Voluntary Protection Program (Cal/VPP) - for fixed and non-fixed industries alike."

In reference to "Agricultural Workers" outreach, the Plan says "Cal/OSHA Enforcement unit will strive to increase worker awareness of workers rights and employers responsibilities through an increase in bilingual educational and public relations activities that target agricultural workers and worker advocacy groups, in addition to agricultural employers, by 3% over the Division's performance level in calendar year 2001. Additionally, the Cal/OSHA Enforcement Unit will work collaboratively with agricultural worker advocacy groups to increase compliance at agricultural worksites through education, outreach and referral inspections."

The full text of the Annual Plan is at http://www.dir.ca.gov/dosh/app2003.pdf.

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Fraudulent Access to US Air Force Academy

The Denver Office of the Bureau of Immigration and Customs Enforcement (ICE), working with the Social Security Administration and Air Force Office of Special Investigations, has arrested 27 foreign nationals working illegally at the United States Air Force Academy (USAFA) in Colorado Springs, Colorado.

Those arrested include construction workers, landscapers, and other employees working in the areas of building maintenance.

ICE agents initiated "Operation Kuribdis" after military authorities at the USAFA suspected that prospective civilian contractor employees were submitting fraudulent identification documents to obtain contractor badges to access the military installation.

During Operation Kuribdis, ICE agents discovered that the individuals arrested had in possession fraudulent green cards, employment authorization work documents, and counterfeit Social Security cards. All those taken into custody are believed to be from countries in Latin America.

"Today's operation was a clear demonstration of ICE's resolve to work closely with other agencies," said James Chaparro, Special Agent in Charge for Denver, Colorado.

Those arrested have been charged with the misuse of a social security card or use of a fraudulent document to gain employment. U.S. Attorney John Suthers said "No facility that is part of the critical infrastructure of the United States can be considered secure unless the identity of the people working there is fully ascertained."

The individuals will also be served with notices to appear before an immigration court to answer charges of being illegally present in the United States.

ICE is the primary investigative arm of the Department of Homeland Security. ICE investigates a variety of crimes, ranging from money laundering, and illegal arms dealing to immigration fraud and migrant smuggling.

ICE's activities also include the detention and removal of criminal aliens and other deportable individuals, as well as providing security for more than 8,000 federal facilities around the nation.

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Preparing for Discharges & Layoffs

Agriculture by nature is seasonal, so most employment in it unfortunately is also temporary.

It's best to be ready for the inevitable large-scale end-of-season layoff by preparing for it before the season even begins. A good place to start is by developing a company policy on discharges and layoffs. At the end of this article is a sample policy.

Next, know that some things must be done, and others may not be done. Below are checklists to help you prepare for the end of the season.

Sometimes you may find yourself wanting to discharge an employee who isn't working up to your standards. But instead of firing the employee, you consider laying him off along with a group of seasonal employees. While this seems to be the most diplomatic and least confrontational way to ease the employee out, it can be dangerous.

In Reeves v. Sanderson Plumbing Products, Inc., the U.S. Supreme Court signaled that employers may face consequences for not telling employees the truth when discharging them.

In Reeves the employee sued his employer for age discrimination, arguing its asserted reasons for firing him were untrue, and that the actual motivation was his age.

Under the traditional legal analysis of an employee's discrimination claim, the employee must make an initial showing that he is entitled to relief under the anti-discrimination laws. The employer then offers a legitimate business reason for its action. Then, the employee must come forward with evidence that the employer's reason is not the real reason for the termination decision.

In Reeves the Supreme Court decided it was sufficient for the discharged employee merely to show the employer's stated reason for his termination was false, and he did not have to submit other evidence showing the real reason was discrimination.

Even at-will employees are protected by antidiscrimination laws, and an employer must follow all pertinent policies and procedures it may have adopted.

Accordingly, employers should consider creating standard criteria to be considered in every termination. Here are some key questions to ask:

• Have the facts behind the termination been thoroughly investigated and documented?

• Have the reasons for the termination been properly documented?

• Have alternatives to termination been considered?

• Is the employee being treated the same as other employees in similar circumstances?

• Have all company policies and procedures been followed?

• Is the termination timely-that is, is it occurring soon after the circumstances leading up it?

• Has the employee been told the true reason for the termination?

• Has the employee been given the opportunity to respond and relate his or her side of the story?

• Have appropriate steps been taken with respect to confidentially?

• Have the necessary final paychecks been prepared and provided?

• Is there a witness to the termination meeting?

• Have all of the employee's questions been answered?

• Has an exit interview been scheduled after the termination to provide the employee the opportunity to talk about his or her employment experience?

Here are additional checklists highlighting the things you must, should, and may not do:

Must Do:

1. Give the employee a "Written Notice of Termination/Layoff." A sample form is located on page 6 of this issue.

2. Prepare and give the employee a final paycheck, which must include pay for all hours worked before the termination/layoff and all other money due the employee, such as non-forfeitable vacation pay (a form of wages) and deposits for loaned equipment.

3. Give the employee Employment Development Department (EDD) pamphlet DE 2320, For Your Benefit....The California Unemployed. The pamphlet can be obtained from EDD by calling 916-322-2835. (When ordering DE 2320, also order pamphlet DE 2515, State Disability Insurance, which must be given to employees upon hiring.)

4. If the employee is covered by company health insurance, prepare (or obtain from your program administrator) the COBRA (or Cal-COBRA) 60-Day Notification for Group Health Plan notice. Also, prepare the Health Insurance Portability and Accountability Act (HIPPA) notice for the employee. Give the employee a copy of the Health Insurance Premium Payment Act (state) notice. Call or e-mail a request to FELS for copies.

May Not Do:

1. Where the employee owes you money, do not deduct from the final paycheck any amount of money in excess of the amount authorized by the employee for the regular payroll. In other words, do not deduct from the final paycheck a balloon payment for the repayment of a loan.

2. Do not withhold from the final paycheck any money for non-returned equipment loaned to the employee without the employee's prior written authorization for the deduction. (While an authorization given when the equipment was loaned might suffice legally, it would be best to get at the time of discharge another deduction authorization from the employee. Any such authorization must be truly voluntary-that is, don't condition the employee's receipt of the final paycheck on the employee giving such authorization.)

Employers, though, are cautioned that the legality of deducting from an employee's final pay any amount to cover the cost of non-returned loaned equipment-even upon the employee's written authorization-has not been explored by the courts.

While section 9(C) of the Industrial Welfare Commission orders authorizes such deductions, the state Division of Labor Standards Enforcement (DLSE) in a Feb. 22, 1993, letter, noted court decisions have clouded the issue.

One California Court of Appeal decision, Barnhill v. Saunders, while disallowing a "balloon payment" deduction from final pay to repay a loan, broadly concluded: "[A]n employer is not entitled to a setoff of debts owing it by an employee against any wages due that employee."

The DLSE therefore warned that a court at some point might hold that section 9(C)-and employer policies based on it-might be void as against public policy. Employers should therefore proceed cautiously in this regard.

Should Do:

1. Prepare a letter or memo stating the reason for the action. If the employee later challenges the action, the document will help show that the reason was not a pretext.

2. If the employee is being fired for assaulting another employee or making threats of violence against your personnel or property, then contact the local civil authorities to alert them to possible retaliation.

3. Sanitize the employee's personnel folder. Destroy unnecessary documents unrelated to the employee's performance, pay increases, or safety training.

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Sample Policy - Seasonal Discharges and Reemployment

Because the company's activities are seasonal, its labor needs decrease and increase seasonally. Accordingly, the company reduces and expands its workforce as seasonal activities end and begin.

As the end of the season approaches and its labor needs decrease, the company discharges employees, generally by crew or department. The company may retain and transfer to another crew or department an employee of special merit or who has a job skill of special value to the company.

The company informs each employee whom it is discharging whether or not the employee qualifies to be reemployed when the next seasonal activity begins. Discharged employees who have been informed that they are so qualified are encouraged to seek reemployment with the company when work for which they are qualified again becomes available.

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Two UFW Contracts Signed

(Source: AgAccent, Published by the Agricultural Action Committee, Clovis CA, Don Curlee, Editor)

Two contracts covering citrus workers in the Riverside County desert were negotiated and signed recently by two employers and the United Farm Workers union.

The union's agreement with Desert Citrus Properties (Ventura Coastal) covers about 1,200 employees in Blythe and the Coachella Valley.

The other with Sun Desert (Sun World) includes only irrigators and tractor drivers.

A third contract covering Sun Desert's harvest crews is in the late stages of negotiation.

A spokesman for one of the companies said the negotiating sessions were businesslike, proceeded on schedule and resulted in conditions that are favorable to both employees and the employer.

Notice of the contract signings was received just before publication. Details will be sought for next month's issue.

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Discharge Notice/Aviso de Despido form

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