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Vol. 32, No. 11, November 2003
In This Issue
Employment-Law Seminars
Offered
New Book Reviews ALRA
Coverage Under the MSPA
Another "Anti-Employer" Law Signed
by Davis
Safety Material in Spanish Available Online
Ag Safety Orders Reorganized
Revised OSHA 300 Forms Available
Find the FELS Web Site and Win a FELS Coffee
Mug
Safety Sheet:
Protecting Your Hearing - English
Safety Sheet:
Protecting Your Hearing - Spanish
Employment-Law Seminars Offered
Farm Employers Labor Service (FELS) will conduct for Spanish-speaking supervisors in December two half-day seminars covering ever-changing and complex employment laws. The programs are designed to help supervisors become "employment-law compliant."
"Supervisors are becoming increasingly more important to prevent the imposition of penalties and fines," said George Daniels, FELS executive vice president. "Besides the problems a company will incur for their violations, supervisors can also be held personally liable for them. That's why these seminars are so important."
Daniels said areas to be covered in the upcoming seminars include:
• Safety and Health Violations. Information will help supervisors understand their obligations under the California Labor Code and Cal/OSHA standards. Supervisors having control or custody of any employment, who knowingly or negligently violate any Cal/OSHA
standard or certain other provisions of law, can face civil and criminal penalties.
• Harassment. Supervisors will learn information about laws regarding sexual harassment and any type of unlawful harassment in the workplace.
• Discrimination. Information will be presented on the various forms of unlawful discrimination and differential treatment that can result in severe penalties and fines.
• Discipline. Supervisors will learn the right ways to discipline employees to correct problems, enhance employee morale and avoid legal liabilities.
• Communications. Seminars will promote strong communication skills. Poor communication causes loss in production and can hurt employee morale. The seminars will promote listening and verbal skills that are important for supervisors.
The first seminar will be held in Coachella on Wednesday, Dec. 17, from 8:30 a.m. to 12 noon at the Riverside County Economic Development Agency, 53-990 Enterprise Way, Suite 1.
The second seminar will be held in El Centro on Thursday, Dec. 18, from 8:30 a.m. to 12 noon at the Imperial County Farm Bureau, 1000 Broadway.
Louis Uribe will conduct the seminars. Uribe, a FELS labor management consultant, has more than 30 years of experience in labor relations, including work as a human resources and safety manager. Under his guidance as a safety director, his prior firm was awarded the Golden Eagle Award from Cal/OSHA in 2003.
Registration for each seminar by Dec. 8 is $45 per person (registrations made after Dec. 8 are $55 each). A 25 percent discount is available for FELS or Farm Bureau members. To register for the seminars or for more information, call (800) 753-9073.
Believing the Agricultural Labor Relations Act (ALRA) has been a "promise unfulfilled" to farm workers, Dr. Philip L. Martin, UC Davis professor of agricultural economics, has written a book on the subject. Here is Dr. Martin's executive summary of his book:
Promise Unfulfilled: Jerry Brown, who was California's governor between 1975 and 1983, said, "The greatest accomplishment of my administration was the enactment of a farm labor relations law." Enactment of the ALRA was a high-water mark for Cesar Chavez and the United Farm Workers union that burst into prominence with strikes and boycotts in the mid-1960s. The ALRA fulfilled the demand of farm labor reformers that farm workers have the same union organizing and bargaining rights as other workers, and it was widely expected that most of the workers employed on the largest "factories in the fields" would soon be represented by unions, and that the unions would play a role in Hispanic uplift and integration similar to that played by churches for Blacks.
The ALRA has not fulfilled its promise to improve the lot of farm workers. The book Promise Unfulfilled, by Philip Martin, groups the reasons for the failure into four categories: poor union leadership, larger political changes, farm employer changes, and immigration. The union failure explanation acknowledges that Cesar Chavez was a charismatic leader who could articulate the hopes of farm workers, but Chavez and the UFW were unable to administer the contracts signed on behalf of its members, and stopped organizing in the early 1980s. The political change explanation is that the ALRA was enacted and administered under pro-worker Democratic appointees between 1975 and 1982, then pro-grower Republicans between 1983 and 1998, and since then Democrats again. This argument makes the success of unions dependent on who is making appointments to the ALRB.
The book can be purchased for $21.95 from Cornell University Press. www.cornellpress.cornell.edu.
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) is a far-reaching law, containing severe penalties for non-compliance. But, knowing whether you are covered by the MSPA and which of your employees are protected by the law is difficult to figure out. Here is a logic tree to help you analyze your exposure:
Index:
Is your business an agricultural association?
Are you an agricultural employer?
Do you provide custom combine, hay harvesting, sheep shearing
or custom poultry operations?
Are you a farm labor contractor?
Are you a family business?
Are you a small business?
Are you a common carrier?
Are you a labor organization?
Are you involved in seed production?
Are you a nonprofit charitable organization, or a public
or private nonprofit educational institution?
Do you engage in farm labor contractor activities?
Do you employ any Migrant Agricultural Workers?
Overview of MSPA Requirements
Employer Coverage:
A. Is your business an agricultural association? An agricultural association means any nonprofit or cooperative association of farmers, growers, or ranchers, incorporated or qualified under applicable State law.
If yes, go to step L under
"Employee Coverage - Migrant or Seasonal Agricultural Workers."
If no, go to item B.
B. Are you an agricultural employer? An agricultural employer means any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed.
If yes, go to item E.
If no, go to item C.
C. Do you provide custom combine, hay harvesting, sheep shearing or custom poultry operations? A custom combine, hay harvesting, or sheep shearing operation means the agricultural services and activities involved in combining grain, harvesting hay and shearing sheep, respectively, that are provided to a farmer on a contract basis by a person who provides the necessary equipment and labor and who specializes in providing those services and activities. A custom poultry operation provides custom poultry harvesting, breeding, debeaking, desexing, or health services, and its are not regularly required to be away from their permanent place of residence other than during their normal working hours.
If yes, stop, you are exempt from the MSPA.
If no, go to item D.
D. Are you a farm labor contractor? A farm labor contractor means any person--other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association--who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity. Farm labor contracting activities include recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.
If yes, go to item K under "Farm
Labor Contractor Coverage."
If no, go to item E.
E. Are you a family business? A family business is any individual who engages in a farm labor contracting activity on behalf of a farm, processing establishment, seed conditioning establishment, cannery, gin, packing shed, or nursery, that is owned or operated exclusively by such individual or an immediate family member of such individual, if such activities are performed only for such operation and exclusively by such individual or an immediate family member, but without regard to whether such individual has incorporated or otherwise organized for business purposes.
If yes, stop, you are exempt from the MSPA.
If no, go to item F.
F. Are you a small business? A small business is any person, other than a farm labor contractor, for whom the man-days exemption for agricultural labor is applicable. That exemption applies to an agricultural employer who did not, during any calendar quarter of the preceding calendar year, use more 500 man-days of agricultural labor. A man-day means any day during which an employee performs agricultural labor for not less than one hour. Agricultural labor performed by an employer's parent, spouse, child, or other member of his immediate family--i.e., step-children, foster children, step-parents, foster parents, brothers, and sisters-is not counted as man-days. The man-days of agricultural labor rendered in a joint employment relationship are counted toward the man-days of such labor of each employer for purposes of the man-day test.
If yes, stop, you are exempt from the MSPA.
If no, go to item G.
G. Are you a common carrier? A "common carrier" by motor vehicle is one that holds itself out to the general public to engage in transportation of passengers for hire, whether over regular or irregular routes, and that holds a valid certificate of authorization for such purposes from an appropriate local, State or Federal agency.
If yes, stop, you are exempt from the MSPA.
If no, go to item H.
H. Are you a labor organization? A labor organization is an organization as defined in section 2(5) of the Labor Management Relations Act (29 U.S.C. 152(5)) or as defined under applicable State labor relations law.
If yes, stop, you are exempt from the MSPA.
If no, go to item L.
If yes, stop, you are exempt from the MSPA.
If no, go to item J.
J. Are you involved in seed production? Seed production exemption: (1) Any person whose principal occupation or business is not agricultural employment, when supplying full-time students or other individuals whose principal occupation is not agricultural employment to detassel, rogue, or otherwise engage in the production of seed and to engage in related and incidental agricultural employment, unless such full-time students or other individuals are required to be away from their permanent place of residence overnight or there are individuals under eighteen years of age who are providing transportation on behalf of such person.
If yes, stop, you are exempt from the MSPA.
Farm Labor Contractor Coverage:
K. Do you engage in farm labor contractor activities within a 25-mile intrastate radius of your permanent place of residence and for not more than 13 weeks per year? Twenty-five mile intrastate radius means that engagement in a farm labor contracting activity may not go beyond a 25-mile intrastate geographical radius. Once this limit is exceeded, the exemption no longer applies, and the person becomes subject to the requirements of the Act. A person who uses lines of communication (such as U.S. Mail, telephone, or advertising) to recruit, solicit, hire, or furnish workers over a distance greater than 25 miles from his permanent residence or from across a State line for agricultural employment is also engaged in a named activity beyond the specified limit of the exemption and is subject to the Act. In the case of a corporation its permanent place of residence for these purposes shall be a single designated location.
For not more than 13 weeks per year means that farm labor contracting activities may not be engaged in for more than 13 weeks in a year. The number of weeks of contracting activity during the prior year is also a factor. When the limit of weeks for the exemption is exceeded in a calendar year, the person is subject immediately to the MSPA and is also presumed subject to the MSPA in the next calendar year, unless it can be shown that the tests are met.
If yes, stop, you are exempt from the MSPA.
If no, go to item L below under
"Employee Coverage - Migrant or Seasonal Agricultural Workers."
Employee Coverage - Migrant or Seasonal Agricultural Workers:
L. Do you employ any Migrant Agricultural Workers? Migrant agricultural worker means an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence. Permanent place of residence, with respect to an individual, means a domicile or permanent home. Permanent place of residence does not include seasonal or temporary housing such as a labor camp. The term permanent place of residence for any nonimmigrant alien is that individual's country of origin. (See "Migrant agricultural worker" exemption below).
If yes, the MSPA covers your migrant agricultural workers. See "Overview of MSPA Requirements" below. Go to item M
below.
If no, go to item M below under "Employee Coverage - Migrant
or Seasonal Agricultural Workers."
M. Did you employ Seasonal Agricultural Workers? A seasonal agricultural worker means an individual who is employed in agricultural employment of a seasonal or other temporary nature and is not required to be absent overnight from his permanent place of residence (see "seasonal or other temporary basis" below):
(1) When employed on a farm or ranch performing field work (see "Field Work" below) related to planting, cultivating,
or harvesting operations; or
(2) When employed in canning, packing, ginning, seed conditioning or related research, or
processing operations, and transported, or caused to be transported, to or from the place
of employment by means of a day- haul operation.
If yes, the MSPA covers your migrant agricultural workers. See "Overview of MSPA Requirements" below.
If no, your employees are not covered by the MSPA.
Additional Definition of Terms:
"Migrant agricultural worker" exemption:
Migrant agricultural worker does not include:
(1) Any immediate family member of an agricultural employer or a farm labor contractor; or
(2) Any temporary nonimmigrant alien who is authorized to work in agricultural employment
in the United States (known as H2A workers) of the Immigration and Nationality Act.
"Seasonal or other temporary basis" defined:
On a seasonal or other temporary basis means:
(1) Labor is performed on a seasonal basis where, ordinarily, the employment pertains to
or is of the kind exclusively performed at certain seasons or periods of the year and
which, from its nature, may not be continuous or carried on throughout the year. A worker
who moves from one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even though he may continue
to be employed during a major portion of the year.
(2) A worker is employed on other temporary basis where he is employed for a limited time
only or his performance is contemplated for a particular piece of work, usually of short
duration.
"Field Work" defined:
(1) Field work related to planting, cultivating or harvesting operations includes all
farming operations on a farm or ranch which are normally required to plant, harvest or
produce agricultural or horticultural commodities, including the production of a commodity
which normally occurs in the fields of a farm or ranch as opposed to those activities
which generally occur in a processing plant or packing shed. A worker engaged in the
placing of commodities in a container in the field and on-field loading of trucks and
similar transports is included.
(2) Nursery, mushroom and similar workers engaged in activities in connection with
planting, cultivating or harvesting operations are intended to be covered. (However, see "Seasonal or other temporary basis does not
include" below.)
(3) An individual operating a machine, such as a picker, or tractor is not included when
performing such activity.
"Seasonal or other temporary basis" does not include:
(1) Generally, employment, which is contemplated to continue indefinitely, is not
temporary.
(2) On a seasonal or other temporary basis does not include the employment of any foreman
or other supervisory employee who is employed by a specific agricultural employer or
agricultural association essentially on a year round basis.
(3) On a seasonal or other temporary basis does not include the employment of any worker
who is living at his permanent place of residence, when that worker is employed by a
specific agricultural employer or agricultural association on essentially
a year round basis to perform a variety of tasks for his employer and is not
primarily employed to do field work (see "Field
Work" above).
"Seasonal agricultural worker" does not include:
(1) Any migrant agricultural worker;
(2) Any immediate family member of an agricultural employer or a farm labor contractor;
(Immediate family includes only: (1) A spouse; (2) Children, stepchildren, and foster
children; (3) Parents, stepparents, and foster parents; and (4) Brothers and sisters.) or,
(3) Any temporary nonimmigrant alien who is authorized to work in agricultural employment
in the United States under the Immigration and Nationality Act.
Overview of MSPA Requirements:
The MSPA provides employment-related protections to migrant and seasonal agricultural workers. Every non-exempt farm labor contractor, agricultural employer, and agricultural association who "employs" workers must:
• Provide to migrant workers written disclosure of the terms and conditions of
employment at the time of recruitment (must provide disclosure to seasonal workers upon
request);
• Post information about worker protections at the worksite;
• Pay workers the wages owed when due and provide an itemized statement of earnings
and deductions;
• Comply with the terms of any working arrangement made with the workers and,
• Make and keep for three years payroll records for each employee.
The protections do not apply to individuals who are independent contractors rather than employees.
Agricultural workers can have more than one employer at the same time. Each "joint employer" is responsible for all employer obligations under the MSPA, but the MSPA does not require the unnecessary duplication of effort. Thus, employer responsibilities may be carried out by only one of the joint employers. However, the failure to provide the required protections will result in joint liability for all joint employers.
Another "Anti-Employer" Law Signed by Davis
On Oct.12, outgoing Gov. Gray Davis signed Senate Bill 796 (Dunn). That bill expands the concept of "representative actions" against employers. Its title--Labor Code Private Attorneys General Act of 2004-says it all.
SB 796 allows aggrieved employees to sue on their own behalf and on the behalf of other current and former employees. It provides for penalties of $100 per employee per payroll period for the initial Labor Code violation and $200 per employee per payroll period for subsequent violations. The aggrieved employee is also allowed to recover reasonable attorney's fees and costs. (Labor Code Section 2698 (a) to (j)).
(Source: Wayne Hersh [whersh@berger kahn.com])
Safety Material in Spanish Available Online
Looking for safety material in Spanish? Here are some Web sites to explore:
California Agricultural Safety Resources: www.calagsafety.org/
Consejo Interamericano de Seguridad: www.cias-iasc.org/
Federal OSHA Spanish Web Site: www.osha.gov/as/opa/spanish/index.html
Federal OSHA Health & Safety: www.osha-
lc.gov/TC/spanish/index.html
FELS Safety Sheets: www.fels.org/emp
index-K-S.htm#Safety%20Sheets
Oregon OSHA: www.orosha.org
National Ag Safety Database: www.cdc.gov/nasd/
NIOSH Publications on Agriculture: www.cdc.gov/niosh/topics/agriculture/default.html
State Fund Tailgate Sessions: www.scif.com/news-info/tailgate/main.htm
UC Farm Safety Program: www.farm safety.ucdavis.edu/
(Reprinted with permission from Cal-OSHA Reporter, vol. 30 no. 33, August 15, 2003. Copyright 2003 Providence Publications, LLC. All rights reserved. Cal-OSHA Reporter is the trademark and dba of Providence Publications, LLC.)
The first element of the Cal/OSH Standards Board's Title 8 reorganization project will be completed soon and will be posted on a new Web page developed specifically for the reform effort, project manager Hans Boersma told Cal-OSHA Reporter (COR).
The first reform element includes the development of a new subchapter - the Agriculture Safety Orders (ASO) - in Title 8 of the California Code of Regulations. To make room for it, the board is proposing to move the Compressed Air Safety Orders into Group 26 of the General Industry Safety Orders, alongside the regulations related to diving operations.
The ASO would organize agriculture-specific standards in an "easy-to-find" format to help employers in one of California's most important - and hazardous - industries locate the Title 8 regulations that affect them.
Title 8 reform aims to reorganize the massive occupational safety and health code and eliminate duplication. Title 8 contains thousands of regulations, covering thousands of pages. An advisory committee, which last met about a year ago, is assisting the Standards Board in developing the reorganization.
Among its recommendations were to include a comprehensive index to help employers navigate Title 8, a definition of the "core rules" that apply to all employers, separate subchapters for specific industries, cross-referencing and creation of a user's guide.
Boersma, a senior safety engineer for the Standards Board's staff, said the web page, intended to be an "on-line advisory committee," should be available later this month.
"Reform element one is ready for the committee's consideration and will be posted on the project's web page once that is up and running," he said.
Boersma also said an advisory committee that recently met for the first time to study proposed Title 8 revisions designed to protect workers from winch accidents, reached a consensus that the proposal was not necessary.
Revised OSHA 300 Forms Available
Revised forms to record job-related injures and illnesses in 2004, which include a new occupational hearing loss column, are now available, the Occupational Safety and Health Administration announced October 2. OSHA's revised recordkeeping rule went into effect January 19, 2002, but provisions on recording hearing loss cases were delayed until January 1, 2003.
In addition to the hearing loss column, OSHA said the revised OSHA Form 300, Log of Work-Related Injuries and Illnesses" includes clearer formulas for calculating incidence rates and changes to make the forms easier to use. Employers must begin to use the new form in January 2004 for records to be posted in February 2005.
OSHA said the forms for 2003 and 2002 would continue to be available on the agency's World Wide Web site at http://www.osha.gov. Hard copies of the revised OSHA 300 forms should be available beginning in November through the agency's online order form or by calling 800-321-6742.
mployers can obtain downloadable Excel spreadsheets for Cal/OSHA forms 300, 300A, and 301. To acess the forms go to Cal/OSHA's web site at www.california osha.info/ <[www.californiaosha.info/]>. Then click on the "Forms & Instructions" page. The forms are listed as Appendix A (Form 300), Appendix B (Form 300A), and Appendix C (Form 301). These forms were previously only available in Adobe Acrobat Reader format.
To download the Excel spreadsheets to your local PC (be sure to remember your file location) where you can keep a running incident record. This spreadsheet will perform column tallies and is linked to automatically post and update the Cal/OSHA Form 300A, the Annual Summary of Work-Related Injuries and Illnesses.
Find the FELS Web Site and Win a FELS Coffee Mug
Here is a challenge to our loyal subscribers. Find the "Summary of Labor Requirements Index" and win a FELS coffee mug.
To receive the coffee cup, find, copy and paste into an email the table of contents for the "Summary of Labor Requirements for California Growers". Send the email to fels@cfbf.com. The first 50 FELS subscribers who email the correct table of contents to FELS will be mailed a coffee mug.
To be eligible, your company must have a current FELS subscription. If you do not have the FELS Subscriber Resources password, email us a request for it at fels@cfbf.com.