Vol. 32, No. 8, August 2003
In This Issue
Meal
and Rest Period Legislation Proposed
Extra Sanitation Facilities Save Grower From
Minimum Penalties
Be Employment-Law Compliant Before Seeking
an Exemption From the Labor Commissioner
Employer Wins Union Election in Watsonville
Overtime Coverage for Wine-Industry
Activities
Seat-Belt Requirements
Governor Appoints New Members to Cal/OSHA
Standards Board
Record Retention Guidelines
Safety Sheet:
Seat Belts and Call Boxes
Meal and Rest Period Legislation Proposed
On Sept. 8, legislation was amended on the floor of the California Senate that would forbid employers from permitting employees to work during rest periods provided under orders of the Industrial Welfare Commission (IWC).
For decades, the IWC orders have stated that employers must "authorize and permit" employees to take rest periods at specified times. Further, IWC Order 14, which covers agricultural employees, uniquely uses the same "authorize and permit" language for meal periods.
In well-reasoned, commonsense opinions, the Division of Labor Standards Enforcement (DLSE), which enforces the IWC orders, has opined that the "authorize and permit" language means employees may voluntarily choose to forgo rest periods and, in the case of Order 14 employees, meal periods that their employers authorize and permit them to take.
The pending legislation, AB 1723, would strip from employees that freedom to choose whether to take or to forgo authorized rest and meal periods. If AB 1723 becomes law, it will take effect January 1.
Publication of this issue of the FELS Newsletter was delayed so that an article examining a new DLSE letter on the subject could be written, with comprehensive advice on what the law requires and how to comply with it. But as AB 1723 would severely impact the content of that article, its completion and publication have been postponed for now.
The Sept. issue of the Newsletter will update subscribers on the status of the legislation and, if it is enacted within a reasonable time before the issue's publication date, review it thoroughly. However, if the measure is defeated, the article on meal and rest periods that was to have appeared in this issue will be completed and published in the Sept. issue.
We apologize for the delay in sending you this issue.
Extra Sanitation Facilities Save Grower From Minimum Penalties
By providing more facilities than required by law, a grower who had failed to remove soiled toilet paper from the floor of a toilet facility and to restock soap in a handwashing facility avoided the imposition of minimum $750 penalties for failing to provide facilities under Cal/OSHA's field-sanitation regulation.
Accordingly, in a decision dated June 19, the Cal/OSHA Appeals Board administrative law judge (ALJ) hearing the employer's appeal reduced the penalties proposed by the Cal/OSHA field inspector to $225 for each violation.
The employer had provided enough toilet and handwashing facilities that met the regulation's requirements, noted the ALJ. The presence of additional non-complying facilities did not undermine that fact and thus did not constitute failures to provide facilities. The deficiencies were merely general violations of low severity that warranted the lower penalties.
However, the ALJ affirmed the minimum $750 failure-to-provide penalty proposed by the inspector because no unused cups were available at a fountainless drinking-water station. An employee therefore had to lower his head beneath the water container's spigot, depressing its valve to drink.
While water dispensed by a fountain complies with the regulation, water containers with spigots do not constitute fountains, noted the ALJ.
Citing case law, the ALJ noted that even a momentary lapse in providing a required exhaustible item such drinking cups constitutes a failure to provide a facility and requires the imposition of the minimum $750 penalty.
Despite the penalty reductions involved in it, this case exemplifies the need for agricultural employers to ensure that adequate numbers of clean and properly stocked sanitation facilities are provided to field employees. While it may seem absurd and unfair, the standard is so strict that compliance and avoidance of penalties may require monitoring, cleaning and restocking of facilities after every use of them.
Be Employment-Law Compliant Before Seeking an Exemption From the Labor Commissioner
California's Labor Commissioner has the authority to grant exemptions from certain legal wage and hour obligations if the employer can show that the obligation presents an undue hardship to the employer, and the exemption does not materially affect the welfare or comfort of the employees.
As one example, the Labor Commissioner can grant variances from the rest period requirements of the various Industrial Welfare Commission Wage Orders in appropriate circumstances (which are rare). As another example, the Labor Commissioner can allow 16- and 17-year-old minors employed by packing plants, who may ordinarily work only eight hours per day, to work up to ten hours per day during the peak harvest season.
The procedure to obtain an exemption is temptingly simple. The employer need only submit a written request for an exemption to the Division of Labor Standards Enforcement in San Francisco, setting forth the exemption desired and the reasons why the employer needs the exemption. A copy of the written request must also be posted in the workplace.
Unfortunately, however, many employers who decide to seek an exemption often open up a "can of worms" that can result in much more serious problems than the exemption was intended to resolve. What many employers fail to consider is that when the Labor Commissioner receives a request for an exemption, it will typically visit the employer's business to conduct a thorough review of the employer's payroll records, personnel records and workplace practices to make sure the employer is operating in full compliance with the law.
With the amount of regulations concerning wage-and-hour issues, record keeping, and other day-to-day personnel issues California employers are saddled with, the odds are quite high that the Labor Commissioner will find at least one, and more likely, a whole variety of mistakes the employer has overlooked. Therefore, instead of getting the exemption it sought, the employer may well end up facing liability and penalties due to the Labor Commissioner's audit.
In that regard, the Labor Commissioner has been increasingly aggressive in seeking penalties for violations of Wage Order requirements, especially those related to rest breaks and meal periods. Unfortunately, a number of cases have arisen recently where employers exposed themselves to liability for these types of violations by seeking an exemption.
Thus, it is critical for employers, before requesting an exemption from the Labor Commissioner, to conduct a thorough self audit, with an eye toward avoiding the exposure that can result from a Labor Commissioner examination of the business. This way, the employer can be confident that if it seeks an exemption, it will not create a bigger problem than the one the exemption is intended to alleviate.
Employers should not invite government agencies to review their records and practices unless the employer is confident that the business is operating in compliance with all applicable laws and regulations. A self-audit is a great way for employers to discover and solve problems before it is too late to do anything about them.
This article's goal is to provide employers with current information on labor and employment law . 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 in Fresno or (916) 782-8555 in Sacramento, or toll-free at (888) 322-2573, for individual responses to questions or concerns about any given situation.
Employer Wins Union Election in Watsonville
(Source: Barsamian, Saqui & Moody, by Anthony P. Raimondo)
On July 16, the Agricultural Labor Relations Board conducted an election at Garroutte Farms of Watsonville in which employees could decide if they wanted to be represented by the United Farm Workers union.
In the election, 373 employees voted: 242 workers voted against the UFW, 123 voted for it, and eight ballots were challenged. This wide margin of victory for the employer reflects a resounding rejection of the UFW by Garroutte Farms employees.
This impressive employer victory could not have been accomplished without a skilled team in place to direct the campaign and develop a strategy to deliver the employer's message about unionization to the employees. A team of attorneys from Barsamian, Saqui & Moody and consultants from Farm Employers Labor Service (FELS) effectively coordinated their efforts to defeat the UFW and keep the company union free.
The success of the employer's campaign shows the importance of having an effective campaign team in place to repel union organizing. Unions plot their strategy and game plan long before they show up in the workplace. The better prepared the employer is to respond to an organizing campaign, the greater the likelihood of success. A strong team of supervisors, consultants, and labor attorneys can help employers implement a strategy of union avoidance even before a union appears on the scene. Advance planning helps employers either avoid an organizing campaign altogether or defeat one once it starts.
Union activity, especially by the UFW, is on the rise. Employers must be prepared to meet this challenge. Advance planning, including evaluating the risk that the employer will become a union target, is critical. An effective team can help an employer develop a long-term strategy to help keep it union-free.
Overtime Coverage for Wine-Industry Activities
(This article was prepared by Anthony P. Raimondo of Barsamian, Saqui & Moody, as a quick guide to overtime issues for grape growers. The information applies to all growers except in specific areas such as wineries and tasting rooms.)
Grape Growing: California Law: Industrial Welfare Commission (IWC) Order 14, covering agricultural occupations, covers employees engaged in grape growing. Order 14 applies to all employees engaged in field work, tractor drivers, employees who maintain the farm and its equipment, and employees who haul the grape crop from the field to winery. Once the grapes reach the place of first processing, Order 14 no longer applies.
Federal Law: Employees engaged in field work of cultivating and tilling the soil and growing and harvesting grapes are exempt from the overtime-pay requirement of the Fair Labor Standards Act (FLSA). Accordingly, California law controls overtime-pay requirements for such employees. Irrigators: California Law: A special overtime exemption applies to irrigators, who work under IWC Order 14. Employees who spend more than half of their working time in a workweek performing the duties of an irrigator are exempt from Order 14's overtime-pay requirement.
Federal Law: Applying water to the soil for farming is within the primary meaning of agriculture under federal law. Accordingly, irrigators are exempt from FLSA overtime under its exemption for agricultural employees.
Wineries: California Law: Winery operations are covered by IWC Order 8 if the winery processes grapes other than those grown by the winery operator. If the winery processes grapes grown only by the winery operator, then it is covered by IWC Order 13.
Federal Law: Under federal law, employees working in wineries are not engaged in agriculture, regardless of the source of the grapes, because wine production is considered to be a process more akin to manufacturing than agriculture. Thus, employees who perform any work in a winery during a workweek are entitled to FLSA overtime pay after 40 hours worked in a workweek, even if the vast majority of their time is spent engaged in field work. This is because the FLSA agricultural exemption from overtime applies only to persons employed exclusively in agriculture during a workweek.
Clerical and Office Staff: California Law: IWC Order 4 applies to office staff who support vineyard operations where their employer conducts no operations under IWC Order 8 or 13. Clerical staff supporting an operation covered by IWC Order 8 or 13, such as a winery, are covered by that order.
Federal Law: Clerical employees exclusively supporting farming operations are exempt from FLSA overtime as agricultural employees because their work falls within the secondary meaning of agriculture. However, clerical employees supporting winery operations at any time during a workweek are entitled to FLSA overtime after 40 hours worked.
Mechanics: Federal Law: Mechanics who are employed by a farmer and who during a workweek exclusively maintain the farmer's tools and equipment are employed in agriculture and are exempt from overtime pay. If they spend any time during the week maintaining wineries or other non-agricultural activities, they will be entitled to overtime after 40 hours worked in the work week.
California Law: The maintenance of farm tools and equipment is considered agricultural work under IWC Order 14. Thus, mechanics servicing farm tools, equipment, and vehicles for a vineyard operated or managed by their employer are covered by Order 14 and are entitled to overtime pay after working 10 hours in a workday and for all work on the seventh day of work in a workweek.
However, if the employer allows other growers to pay to use his mechanics' services, they are covered by Wage Order 4, which requires daily and weekly overtime pay in the same manner as IWC Order 8, except that a day off after 72 hours worked in a week is not required.
Mechanics servicing both the vineyard and the winery are covered by Order 14 when they service vineyard equipment and either Order 8 or 13 when they service winery equipment. However, because wineries are not considered agriculture under federal law, a mechanic who spends any amount of time in a workweek supporting a winery is entitled to FLSA overtime pay after working 40 hours in that workweek.
Tasting Rooms: California Law: The position of the Labor Commissioner is that work performed in tasting rooms operated in conjunction with a winery is covered by the same IWC order as the winery-either Order 8 or 13, again depending on the source of the grapes.
Federal Law: A tasting room is considered a separately organized productive activity and thus outside the scope of the overtime exemption for agricultural employment.
Questions on seat-belt usage arise occasionally. Here is a summary of seat-belt requirements:
Off-Road: Cal/OSHA General Industry Safety Order section 3653 requires seat-belt assemblies to be provided on all equipment on which rollover protection is installed. Further, employees must be instructed in their use. The section contains no requirement that drivers or passengers use the provided seat belts.
Cal/OSHA General Industry Safety Order section 3702 requires that trucks and buses used primarily or regularly for the transportation of employees: (1) be constructed or accommodated for that purpose; (2) be equipped with seats adequately secured in place; and (3) have at least a 46-inch high rail or enclosure on the sides and back of the vehicle to prevent falls from the vehicle. That section also requires that farm labor vehicles be equipped at each passenger position with a Type 1 or Type 2 seatbelt assembly. The driver and each passenger must be properly restrained while the vehicle is operated. While it is clear the driver and passengers must wear seat belts, there is no similar requirement for other vehicles.
Off and On-Road: The federal Migrant and Seasonal Agricultural Worker Protection Act covers both off and on-road transportation. Passenger vehicles, station wagons and pickups are treated differently from other vehicles that transport employees more than 75 miles, including day-haul operations. Neither type of vehicle requires the installation or use of seat belts.
Public Highways: The California Vehicle Code regulates on-road use. California Vehicle Code section 27315 provides that seat belts are required to be used in all vehicles that are not exempt from seat belts whenever the vehicle is on a highway or publicly maintained road (only exempt when on private property). Vehicle Code section 27315 provides for some limited exemptions, such as, taxicab passengers, bus passengers (but not the driver), and disabled persons. Vehicle Code section 23116 provides the following:
"(a) No person driving a pickup truck or a flatbed motortruck on a highway shall transport any person in or on the back of the truck.
(b) No person shall ride in or on the back of a truck or flatbed motortruck being driven on a highway.
(c) Subdivisions (a) and (b) do not apply if the person in the back of the truck is secured with a restraint system. The restraint system shall meet or exceed the federal motor vehicle safety standards published in Sections 571.207, 571.209, and 571.210 of Title 49 of the Code of Federal Regulations.
(d) Subdivisions (a), (b), and (c) do not apply to any person transporting one or more persons in the back of a truck or flatbed motortruck owned by a farmer or rancher, if that vehicle is used exclusively within the boundaries of lands owned or managed by that farmer or rancher, including the incidental use of that vehicle on not more than one mile of highway between one part of the farm or ranch to another part of that farm or ranch.
(e) Subdivisions (a), (b), and (c) do not apply if the person in the back of the truck or the flatbed is being transported in an emergency response situation by a public agency or pursuant to the direction or authority of a public agency. As used in this subdivision, "emergency response situation" means instances in which necessary measures are needed in order to prevent injury or death to persons or to prevent, confine, or mitigate damage or destruction to property.
(f) Subdivisions (a) and (b) do not apply if the person in the back of the truck or flatbed motortruck is being transported in a parade that is supervised by a law enforcement agency and the speed of the truck while in the parade does not exceed eight miles per hour."
Governor Appoints New Members to Cal/OSHA Standards Board
Governor Gray Davis announced the appointments of Larry Gotlieb, Jesse Navarro and Robert Harrison as members of the Occupational Safety and Health Standards Board.
Mr. Gotlieb, 55, of Sherman Oaks, is the vice president for Government and Public Affairs and Associate Corporate Counsel at KB Home, the largest homebuilding firm in the west. His responsibilities include federal, state, and local legislative and regulatory matters and the range of legal affairs associated with corporate law practice. Previous positions include senior counsel for First Interstate Bancorp; director of First Interstate's federal government affairs program; Assistant United States Attorney; United States Department of Justice in Los Angeles; Legal Counsel to the Los Angeles County Board of Supervisors; and an antitrust lawyer in private practice in Washington, D.C.
Mr. Gotlieb has been a member of the Citizens Compensation Commission since his appointment by Governor Davis in June 2003. He serves as chair of the California Workforce Investment Board and as co-chair of the Committee on Professionalism of the Los Angeles County Bar Association. Mr. Gotlieb also serves on the Governor's Commission on Building for the 21st Century, the Coro Southern California Board of Directors, the Orthopedic Hospital Foundation, the Building Industry Legal Defense Foundation, Dispute Resolution Services, Incorporated and the Board of Trustees of the Los Angeles County Bar Association. Mr. Gotlieb earned a bachelor of arts degree from Dartmouth College and a juris doctorate degree from Harvard Law School.
Dr. Harrison, 48, of San Francisco, is clinical professor of Medicine at the University of California, San Francisco and chief of the Occupational Health Surveillance and Evaluation Program for the California Department of Health Services. He serves on the executive board of the Council of State and Territorial Epidemiologists and on the Governing Council of the American Public Health Association. He earned a bachelor of arts degree from the University of Rochester, a doctorate of medicine from the Albert Einstein College of Medicine and a masters of public health degree from the University of California, Berkeley.
Mr. Navarro, 56, of Chula Vista, is the special assistant to the San Diego County District Attorney. In addition, he and his family have owned and operated La Casita Restaurant, a Mexican restaurant in downtown San Diego, for many years. From 1989 to 2002, Mr. Navarro owned PAX International Services, an international investigative and consulting firm. In 1973, Mr. Navarro graduated from the San Diego Police Academy and became among the first Hispanic police officers with the City of San Diego and the San Diego County Sheriff's Department. He was employed in the field of law enforcement in various capacities until 1985. He is a member of the Small Business Advisory Board for the City of San Diego, the Ethics Commission for the City of Chula Vista and the Merit & Review Panel for federal magistrates. Mr. Navarro is a founder and former president of the San Diego Hispanic Chamber of Commerce, former president of the International Chamber of Commerce and former member of the Joint Venture Board for the California Department of Corrections.
The Occupational Safety and Health Standards Board is the standards-setting agency within the Cal/OSHA program. The Standards Board's objectives are to adopt reasonable and enforceable standards at least as effective as federal standards. The Standards Board also has the responsibility to grant or deny applications for variances from adopted standards and respond to petitions for new or revised standards. Members do not receive a salary. These positions do not require Senate confirmation.
This table shows for how long employment and other records should be retained:
| Type of Record Retention | Period |
| Accident reports and claims (settled) Checks (canceled, routine) Checks (canceled, important) Contracts and leases (expired) Contracts and leases in effect Correspondence (general) Correspondence (legal matters) Employee personnel records and employment applications (after termination) Insurance policies (expired) Insurance records, claims, policies Payroll records and summaries Petty cash vouchers Stenographer's notebooks Tax returns & worksheets Permanently Time books Voucher for payments to vendors and employees |
7 yrs. 7 yrs. Permanently 7 yrs. Permanently 4 yrs. Permanently 4 yrs. 4 yrs. Permanently 7 yrs. 3 yrs. 1 yr. 7 yrs. 7 yrs. 7 yrs. |
Most records for most purposes must be kept for at least four years except in the following instances:
Cal/OSHA forms 300, 300A and 301 - Employers with over 10 employees must complete, post and retain the summary log of injuries and illnesses for five years.
Internal Revenue Service - Records documenting business expenses such as payroll and bonuses should be kept for at least seven years, but preferably forever. The IRS can audit an employer's last seven years of records, but there is no time limit in cases of fraud.
FICA, FUTA, Income Tax Withholding - Records containing basic employee data and information on compensation, period of service, hours of work, and annuity and pension plans must be kept four years from the date tax is due or tax is paid.
Written Employment Contracts - The statute of limitations on oral contracts is two years from the date of a breach. For written contracts for employment or other purposes, however, it is four years. Courts often view employee handbooks as written employment contracts.
Records Relating to Discrimination Lawsuits - Must be kept until "final disposition" of the charge or lawsuit.
ERISA - Records on matters for which disclosure or certification is required must be kept for at least six years after the date the documents were due to be filed, even if an exemption from reporting or disclosing the information exists.
INS Form I-9 - Must be kept three years after date of hire or one year after date of termination, whichever is later.