Vol. 33, No. 1, January 2004
In This Issue
10th Annual AgSafe
Conference Set for Feb. 4 & 5
Controlled Standby Time is Hours Worked
Update on Professional Employer
Organizations
Avoidable Consequences and Sexual-Harassment
Damages
Recall of Person in Seasonal Employment
Doesn't Trigger Form I-9 Action
Discharge for Violation of
Non-Fraternization Policy Upheld
U.S. Supreme Court Approves No-Rehire Policy
ALRB Files ULP Complaint Against UFW
Sample Termination Agreement Available
DIR Leadership Changes
Model FLC Agreement Available
State Claims It Can Regulate Tribe That
Sold Workers' Comp Policies
Safety Sheet:
Winter Safety Tips
Winter Safety
Tips -Spanish
10th Annual AgSafe Conference Set for Feb. 4 & 5
The 10th Annual AgSafe Conference will be held Wed., and Th., Feb. 4 and 5, at the Embassy Suites Hotel and Conference Center in Seaside, on Monterey Bay. The event will offer workshops in English and Spanish. Workshops will address topics such as workers' compensation, safety laws and regulations, food safety, dealing with an aging workforce, and hazard communication, with sessions for supervisors and crew leaders and much more.
Several workshops on pesticide and chemical safety will also be offered, including the "Pesticide Train the Trainer for Fieldworkers" class. That class qualifies participants to train fieldworkers in pesticide safety as required by the state Department of Pesticide Regulation and federal Environmental Protection Agency (EPA) regulations. After completing this course, participants are authorized to issue the EPA worker training verification card ("Blue card") to workers they have instructed in pesticide safety. In addition, continuing education hours for PCA's, QAL's and QAC's have been requested from the Department of Pesticide Regulation.
On Wednesday, Greg Hale, Chief Safety Officer and Vice President, Safety Accessibility and Advanced Technology for Walt Disney Parks and Resorts, is scheduled to provide the morning keynote presentation. Also scheduled for Wednesday are tabletop displays featuring safety products, services and supplies. A networking reception will round out the evening.
In addition to the workshops that will be offered on Thursday, California Insurance Commissioner John Garamendi has been invited to provide the morning keynote presentation. Graduates of the California Agricultural Safety Certificate Program will be honored at the Thursday luncheon.
For more information about the conference, contact AgSafe at (559) 278-4404, or visit its Web site at http://www.agsafe.org.
Controlled Standby Time is Hours Worked
Generally, an employee required by his employer to remain at the employer's place of business or at home to respond to emergency calls is deemed to be working and must be paid for all such hours-even if doing nothing more than waiting for something to happen. The employee "is being engaged to wait" rather than "waiting to be engaged."
In agriculture, a common standby situation is for frost protection, where an employee who either lives on the employer's premises or near the work site is required by his employer to stand by and be available to respond to a call to report for work.
Controlled Standby: If the employee's time is so restricted that he cannot pursue personal activities and come and go as he pleases, the employer is considered to have direction and control of the employee.
The state Division of Labor Standards Enforcement has adopted the test announced by the California Supreme Court in its decision in Madera Police Officers Assn. v. City of Madera and applies that test to determine the extent of control.
The Madera court applied a two-part preliminary analysis to determine whether the time was compensable. The first part of the test asks: Are the restrictions placed on the employee primarily directed toward the fulfillment of the employer's requirements and policies?
The second part asks: Is the employee substantially restricted so as to be unable to attend to private pursuits? The Madera court also indicated that as to the test's second prong, the trier of fact must examine the restrictions cumulatively to assess their overall effect on the worker's uncompensated time. In other words, the net impact of the restrictions must be considered.
Different Rate of Pay Allowed: Generally, on-call or standby time at the work site is hours worked for which the employee must be paid. However, the employee's pay rate for on-call time can be different from the regular rate paid for working time as long as the rate is set before the work is performed and the amount of the remuneration does not fall below the applicable minimum wage for any hour worked standing alone. For purposes of overtime computation, the weighted average of such rates is to be used in determining the regular rate of pay for overtime computation, unless there is a statutory rate (prevailing wage) involved, in which case the rate-in-effect method must be used.
Uncontrolled Standby: An employee who has the choice of being available or not available to respond to a call by the employer to report for work is on uncontrolled standby if the employee is completely unrestricted to use his time for his own purposes. Such "free" standby time is not under the control of the employer and, thus, need not be paid.
Stipend for Uncontrolled Standby: Under some circumstances, employers may pay an employee a stipend for being available in an uncontrolled standby situation to return to work if called. In these situations, the employee agrees to be available to return to work, but is otherwise free to pursue personal interests without restriction. The stipend paid for uncontrolled standby is included in calculating the regular rate of pay for overtime purposes; however, the hours for which the stipend is paid is not to be calculated on a weighted-average basis. In other words, the stipend is simply added to the wage earned for actual hours worked and prorated among those hours.
Beepers: The simple requirement that the employee wear a beeper, standing alone, doesn't require the employee be paid for all the hours the beeper is on.
Sample Policy: Here is a sample employment policy on standby time.
Standby Time
Standby is where an employee must be on call and ready to report for work should the company desire the employee's services at an unspecified time. The degree of freedom that the employee has to pursue the employee's own interests determines whether the company must treat the standby time as hours worked. Generally, whether standby time must be counted as hours worked depends on whether it is controlled or uncontrolled.
Controlled Standby: Standby time is controlled where the company requires an employee during a specific time period to be close to the work place at a location where the employee can be reached if needed. Generally, the time "on call" of an employee whose movements are so restricted by the company's requirements that he cannot use the time effectively for his own purposes is deemed hours worked. In the case of frost control, an employee is informed of the time of day when controlled standby time starts. The rate of pay for controlled standby time is the minimum wage, and controlled standby time is separately recorded as such. Because controlled standby time is hours worked, it also counts for the purpose of overtime pay.
Uncontrolled Standby: Standby time is uncontrolled where the employee may leave the workplace, is required merely to inform the company of where the employee may be contacted, and is allowed sufficient time to pursue his or her own activities. The company does not count uncontrolled standby time as hours worked.
Update on Professional Employer Organizations
(By Patrick Moody, Attorney, Barsamian, Saqui & Moody.* Barsamian, Saqui & Moody is one of two law firms contracted by Farm Employers Labor Service to provide legal help to FELS subscribers under the FELS Group Legal Services Plan. Visit the firm's Web site at http://www.theemployerslawfirm.com/firm/)
In a recent article, we provided an overview of Professional Employer Organizations ("PEOs"), which typically perform many day-to-day personnel functions that so frequently lead to labor-law violations for employers, by hiring the employer's employees and then leasing them back to the employer. Many employers have turned to PEOs in the hope of avoiding some of the headaches inherent in the traditional employment relationship, especially the ever-increasing cost of workers' compensation insurance.
State labor-law enforcement agencies, however, have begun to crack down on PEOs and the employers that use their services. In particular, many PEOs are using alternatives to workers' compensation insurance that do not comply with California law. In doing so, they expose employers using their services to punishment as uninsured employers. Uninsured employers can be punished with monetary penalties and orders to cease doing business until proper coverage is obtained.
Earlier this summer, the Department of Industrial Relations warned employers that some PEOs did not have legitimate workers' compensation coverage and reminded them to be sure that any PEO they use has workers' compensation coverage from an insurer properly admitted to write such insurance in California. As such, the Department clearly signaled it was going to be taking a hard look at the coverage touted by PEOs.
This fall, the San Francisco Business Times reported that PEOs owned by various Indian tribes were offering significant savings on workers' compensation costs by providing so-called "tribal coverage." According to the report, these PEOs rely on the tribes' sovereign immunity to escape the state workers' compensation system. Unfortunately, non-Indian employers cannot rely on the possible immunity of the tribe for protection. Where an employer uses a PEO to provide its work force, the employer still has an express statutory obligation to provide workers' compensation coverage. While the employer can meet this obligation where the PEO obtains coverage that complies with state law, if the PEO fails to obtain such coverage, the employer can be punished as an uninsured employer.
On Nov. 7, the State Labor Commissioner ordered the closure of nine International House of Pancakes restaurants in Fresno and Sacramento for failure to secure valid workers' compensation coverage. The restaurants had used a PEO that offered "tribal coverage" to replace their traditional workers' compensation coverage. The restaurant owner refused to close, arguing it had coverage through the PEO. The Labor Commissioner countered that because the coverage the PEO provided was not authorized by the State, the restaurants did not possess valid coverage. He therefore imposed the maximum fine of $100,000. The business is now setting up a policy with an authorized carrier, so it will likely escape further enforcement action. The Insurance Commissioner also filed charges against the broker who had sold the illegal policy and against eight other agents and brokers involved in similar schemes.
In an effort to assert its sovereign immunity to protect its product, the tribal enterprise involved in the IHOP situation filed a lawsuit in Sacramento. Unless and until this litigation is resolved in favor of tribal coverage, using the tribal coverage approach will expose employers to enforcement action by the State.
Tribal coverage is not the only illegal method of offering workers' compensation savings to employers. On Nov. 4, the Department of Insurance Fraud Investigation Unit served search warrants on a Southern California staffing company. Although few details have yet to emerge, the investigation is apparently focusing on underreporting of payroll, misclassification of employees, and the hiding of workers' compensation claims.
What This Means For Employers: In the current workers' compensation crisis, some entities are taking advantage of employers' need to find savings, by violating existing law. It is critical that employers avoid exposing themselves to penalties and closure simply to save money in the short run. Contracts with PEOs and staffing companies should be reviewed by competent legal counsel to ensure the employer is properly protected, and employers must confirm that PEOs and staffing companies have legally valid workers' compensation coverage in place.
(*The goal of this article is to provide employers with current information on labor and employment laws. Its 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, (916) 782-8555 in Sacramento, or toll-free at (888) 322-2573, for individual responses to questions or concerns about any given situation.)
Avoidable Consequences and Sexual-Harassment Damages
In the case State Department of Health Services v. McGinnis, the California Supreme Court ruled Nov. 24 that the doctrine of avoidable consequences applies to sexual harassment claims brought under the Fair Employment & Housing Act.
The court drew upon the decisions of the United States Supreme Court in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. Those decisions had held that an employer is subject to vicarious liability to a victimized employee for actionable hostile environment created by a supervisor with authority over the employee. That Court continued and held that in cases where there was no tangible adverse employment action taken, then the employer could raise as an affirmative defense to liability or damages, if the employer could establish: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. The United States Supreme Court observed that Title VII's primary purpose was "not to provide redress but to avoid harm."
The California Supreme Court noted that the Fair Employment & Housing Act imposes two standards for dealing with sexual harassment at the work place. The first is the "negligence standard" that applies to an employer's liability for the acts of a co-worker. An employer is liable if and only if the employer (1) knew or should have known about the harassment and (2) failed to take immediate and appropriate corrective action. The second standard applies to actions taken by a supervisor for which the court noted that employers are strictly liable for the sexual harassment by a supervisor.
The court then addressed the doctrine of "avoidable consequences." "Avoidable consequences" is a doctrine recognized in California in which a person injured by another's wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure. The defense of "avoidable consequences" is pled and the burden of proof is on the defendant.
The California Supreme Court held that application of the doctrine of "avoidable consequences" to hostile environment sexual harassment cases is consistent with the two main purposes of the Fair Employment & Housing Act---compensation and deterrence.
"Avoidable consequences" is not a defense to liability but may be a defense to damages. The employer is still strictly liable for the harassment by the supervisor, but can avoid damages for that period where the employee failed to take reasonable steps to avoid harm.
Employers to take advantage of this doctrine must show that it has adopted appropriate anti-harassment policies and has communicated essential information about the policies and the implementing procedures to its employees. The employer must show it took steps to encourage the employee victim to come forward with complaints of unwelcome sexual conduct and to respond effectively to the employees' complaints.
The case continues to hold the employer strictly liable for harassment by supervisors, but provides the employer with a potential defense to liability for damage only if the employee unreasonably fails to timely report harassment and the employer has anti-harassment policies and procedures and its past record shows it acts on harassment complaints.
The message for 2004: Get an effective anti-harassment policy; communicate it to your employees, take prompt action when reports are made; and assure employees they are protected from retaliation.
(Source: Wayne A. Hersh, Berger Kahn, 2 Park Plaza, Suite 650, Irvine, CA 92614, (949) 474-1880)
Recall of Person
in Seasonal Employment Doesn't Trigger Form I-9 Action
{(Source: Steve Sutter, Agricultural Personnel Management Program, Ag-Busnet)
Here is a question from a reader of Steve Sutter's Ag-Busnet, an email forum, with Steve's response:
"It is my understanding that employers are required to retain Form I-9 for 3 years after an employee's hire or rehire date or 1 year after an employee's separation (IRCA of 1986). Then, the forms can be destroyed. Is my interpretation of the law correct?
"Also, I understand we are to re-verify a returning employee's eligibility, then complete Section 3 of the form accordingly. In our industry, employment is seasonal so employees come and go several times during the same calendar year. If we are to follow the re-verification requirement every time, it becomes tedious and labor intensive, and in many cases, impossible to comply. Is there an exception to the rule that you know off?
"Please provide your opinion on this subject. Also, I'm very interested to know what others in the industry are doing to comply, if you have any knowledge regarding their I-9 Form Policy. Thanks, Steve."
Steve's response: "In general, an employer must complete an I-9 any time an individual is 'hired' for employment. Some situations, however, do not constitute a 'new hiring' which would require an employer to complete a new Form I-9 for the employee if a Form I-9 has previously been completed. An employer will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times. An employee is considered to be continuing in his or her employment if the employee is engaged in seasonal employment.
"The employer must maintain the I-9 form for all current employees. And yes, for employees whose employment has ended, the employer must maintain the I-9 form for at least 3 years from the date of hire, or for one year after the employment has ended, whichever is later.
"Periodically review the I-9 file to eliminate I-9s (and copies of the verification documents presented by the employee, if the employer has decided to make such copies) no longer required to be maintained because of the passage of time."
The federal regulation on which Steve based his answer about seasonal employment not being a hiring is title 8, Code of Federal Regulations § 274a.2(b)(viii)(A)(8) and (viii)(B), whose text reads as follows:
(viii) An employer will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times.
(A) An individual is continuing in his or her employment in one of the following situations:
[(1) - (7) omitted]
(8) An individual is engaged in seasonal employment.
(B) The employer who is claiming that an individual is continuing in his or her employment must also establish that the individual expected to resume employment at all times and that the individual's expectation is reasonable. Whether an individual's expectation is reasonable will be determined on a case-by-case basis taking into consideration several factors. Factors which would indicate that an individual has a reasonable expectation of employment include, but are not limited to, the following:
(1) The individual in question was employed by the employer on a regular and substantial basis. A determination of a regular and substantial basis is established by a comparison of other workers who are similarly employed by the employer;
(2) The individual in question complied with the employer's established and published policy regarding his or her absence;
(3) The employer's past history of recalling absent employees for employment indicates a likelihood that the individual in question will resume employment with the employer within a reasonable time in the future;
(4) The former position held by the individual in question has not been taken permanently by another worker;
(5) The individual in question has not sought or obtained benefits during his or her absence from employment with the employer that are inconsistent with an expectation of resuming employment with the employer within a reasonable time in the future. Such benefits include, but are not limited to, severance and retirement benefits;
(6) The financial condition of the employer indicates the ability of the employer to permit the individual in question to resume employment within a reasonable time in the future; or
(7) The oral and/or written communication between employer, the employer's supervisory employees and the individual in question indicates that it is reasonably likely that the individual in question will resume employment with the employer within a reasonable time in the future.
Discharge for Violation of Non-Fraternization Policy Upheld
In Barbee v. Household Automotive Finance Corporation, the Court of Appeal, Fourth Appellate District, was asked to consider whether Labor Code section 96, subdivision (k), created a new independent public policy that provides employees with substantive rights for "lawful conduct occurring during nonworking hours and away from the employer's premises."
The court determined that section 96, subdivision (k), did not. Instead, the court ruled it merely establishes a procedure by which the Labor Commissioner may assert, on behalf of employees, recognized constitutional rights. The underlying case dealt with a claim by an employee that his constitutional right to privacy was violated when he was discharged for having breached the employer's non-fraternization policy.
(Editor's note: The court, however, observed in a footnote: "Labor Code section 98.6 was amended in 2001 . . . and provides in relevant part: '(a) No person shall discharge an employee or in any manner discriminate against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96....' Neither party has relied upon this provision and we do not consider it in this appeal." Had it considered that provision, the court might have ruled differently.)
The court applied the elements of a prima facie case for invasion of privacy: (1) legally protected privacy interest; (2) reasonable expectation of privacy; and (3)conduct by the defendant constituting a serious invasion of privacy.
The court found a legally protected privacy interest in the employee who was engaged in a consensual relationship with a subordinate and found the employer's conduct seriously invaded the privacy interest, but found that the employee had no reasonable expectation of privacy. The court found that the employer had a policy of non-fraternization and that the employer had a legitimate interest in avoiding conflicts of interests that occur where supervisors are intimate with their subordinates.
The employer had given the employees the options of resigning or discontinuing the relationship. The employees rejected the options. This case can be an important tool for employers who must eliminate sexual harassment form the workplace.
(Source: Wayne A. Hersh, Berger Kahn, 2 Park Plaza, Suite 650, Irvine, CA 92614, (949) 474-1880)
U.S. Supreme Court Approves No-Rehire Policy
The United States Supreme Court reversed a decision by the Ninth U.S. Circuit Court of Appeals in the case Raytheon Company v. Hernandez.
The Ninth Circuit had held that Raytheon's policy of not hiring former employees who had been discharged for violating workplace conduct rules violated the Americans With Disabilities Act (ADA). The Ninth Circuit had determined that Raytheon's no-hire policy as applied to former drug addicts whose only work-related offense was testing positive for their drug addiction was unlawful under a disparate treatment claim of discrimination.
The U. S. Supreme Court reversed and reviewed the difference between disparate treatment cases and disparate impact cases. In discrimination cases the Court has set forth a burden shifting scheme for discriminatory treatment cases. The plaintiff must establish a prima facie case. Once the plaintiff establishes a prima facie case then the burden shifts to the employer to show a non-discriminatory reason for its actions. If the employer demonstrates a non-discriminatory reason for its actions, then the plaintiff must show that the proffered reason is pretextual.
Disparate treatment cases are those in which the employer treats some people less favorably than others because of their race, color, religion, sex, or other protected characteristic. The employer's liability is determined on whether the protected trait actually motivated the employer's decision.
Disparate impact cases involve policies that are facially neutral in their treatment of different groups but in fact fall more harshly on one group than another and cannot be justified by business necessity.
The lesson of this case seems to be that the plaintiff should have alleged disparate impact instead of disparate treatment. The lesson for employers is one must evaluate polices to make sure that they do not fall more harshly on the disabled than on other groups, because not all plaintiffs will allege the wrong theory of liability when they file claims of discrimination.
(Source: Wayne Hersh, attorney for Berger Kahn)
ALRB Files ULP Complaint Against UFW
The Agricultural Labor Relations Board's (ALRB) General Counsel, Norma Turner, filed a complaint against the United Farm Workers (UFW) union for unfair labor practices. The complaint alleges that the union's actions cost the jobs of more than 150 Oxnard workers. The employees worked for Coastal Berry Co. LLC.
Coastal Berry, a large strawberry grower, and the UFW entered into an agreement in March 2001 that required all employees to become members of the union. The company discharged employees who refused to sign forms authorizing 2 percent of their wages go for union dues.
The complaint claims union representatives "failed to advise the employees . . . that they had the right to object to the payment and expenditure of monies to the union for purposes other than collective bargaining, contract administration and grievance adjustment."
According to Edward Blanco, Attorney to the General Counsel, the union must advise union members they have the right to apply to the union for a fee rebate. The rebate is the difference between the actual cost of collective bargaining and the amount the union charges members paid through a payroll deduction (11 ALRB No. 32, UFW/ Giles Beaux).
The complaint seeks to require the UFW to immediately restore the discharged workers and reinstate them to their former or equivalent positions and give them back pay.
Sample Termination Agreement Available
Gregorio Billikopf Encina, Stanslauis County Farm Advisor emailed this text to AG-HRNET subscribers:
"I have been a long time proponent of termination agreements. Employee termination decisions can be costly if the employee sues for wrongful termination (suits for a million dollars are not uncommon). The best protection against being sued is not the poorly understood and much praised 'employment at-will' clause. Rather, it is the effective carrying out of disciplinary policies and careful documentation of violations.
"There are often situations where the farm employer shares some of the blame, and employee termination is a risky business. For instance, an employee may have been working for you or for your family for 15 years but has been allowed to get away with below average performance all this time. A sudden termination of such an employee today may be hard to defend in court. A termination agreement is a positive tool where employers can pay a given severance in exchange for the worker resigning rather than the employer firing the individual. The employer who uses a termination agreement does not admit to any guilt, yet protects him or herself against a possible suit.
"Sometimes, the situation may clearly be the fault of the employee, who has stolen farm property, been involved in sexual harassment, or threatened violence against you. If such an employee has worked for a long time at your farm enterprise, and you feel termination is still called for, there may be some circumstance where you may also want to use a termination agreement. I suggest that you take each termination on a case by case basis and discuss your options with your labor attorney to determine if a termination agreement is right for this situation.
"I have posted a sample termination agreement on the Web. This agreement needs to be adapted to your state or area and your particular circumstances, through the help of a qualified labor attorney. My motivation for posting this agreement on the Web was to include some provisions that are often left out of agreements, but which in my opinion are of particular interest to agricultural employers. Through the years several attorneys have agreed that these provisions would be beneficial. I encourage any of the attorneys in this list to write and suggest changes or improvements. In no way is this sample general release intended to replace the advice of a qualified labor attorney. There are a number of tricky situations that need to be taken into consideration at the time of termination."
The termination agreement Gregorio referenced in the above article is located at:
http://www.cnr.berkeley.edu/ucce50/ag-labor/7article/article36.htm.
(Source: Gregorio Billikopf Encina [gebillikopf@ucdavis.edu])
EDD Tax Rates for 2004
The tax rates for unemployment insurance (UI) and state disability insurance (SDI) and meals and lodging values for 2004 are now posted online at http://www.edd.ca.gov/taxrep/taxrte9xtx.htm.
Unemployment Tax: The UI rate schedule in effect for 2004 will be Schedule F+. This is Schedule F plus a 15 percent emergency surcharge, rounded to the nearest tenth. Schedule F+ provides for UI tax rates from 1.5 to 6.2%. The taxable wage limit remains at $7,000 per employee.
The new employer UI tax rate is 3.4% for up to three years. The Employment Training Tax (ETT) rate for 2004 remains at 0.1%. The taxable wage limit remains at $7,000 per employee.
State Disability Insurance: The SDI withholding rate for 2004 has been announced as 1.18%, which includes 0.08% for Paid Family Leave. The SDI taxable wage limit is $68,829 per employee for calendar year 2004. The maximum to withhold is $812.18.
The UI, ETT, and SDI tax rates are combined on a single rate notice, Notice of Contribution Rates and Statement of UI Reserve Account (DE 2088). The DE 2088 was mailed in December, with a mailing date of December 31, 2003. Employers will have 60 days from the December 31 mailing date to protest any UI figure they believe to be erroneous.
Meals and Lodging Values - 2004
Meals Value
Breakfast $1.85
Lunch 2.60
Dinner 4.10
Total per day $8.55
A meal not identified as $3.00
breakfast, lunch or dinner
Lodging Value: Value is set at 66 percent of the ordinary rental value to the public, but not in excess of $921 per month or less than $29.85 per week.
Direct questions to the EDD Taxpayer Assistance Center at (888) 745-3886.
By this memo, Victoria Bradshaw, Undersecretary of the state Labor & Workforce Development Agency, announced on Jan. 7 several high-level personnel changes in the Department of Industrial Relations:
"As has been the case with every new administration, there are changes in leadership positions at the Department of Industrial Relations.
"Departing from appointed service in DIR are former Acting Director Chuck Cake, Acting Chief Deputy Director Suzanne Marria and Labor Commissioner Arthur Lujan. I would like to thank Chuck, Suzanne and Art for their assistance to me and to the entire transition staff over the past several weeks. Their knowledge, dedicated service and professionalism helped to ensure the change in administrations moved forward in an efficient and very thoughtful manner.
"DIR Chief Counsel John Rea will assume the role of acting director of Industrial Relations, effective today. I'm sure you join me in congratulating John, and I am equally certain you will lend your vital support and assistance as he takes on this important responsibility. To fill the void in the Legal office, Vanessa Holton becomes acting chief counsel.
"Greg Rupp, assistant chief, Division of Labor Standards Enforcement (DLSE), today becomes acting deputy chief of the division. Greg brings a vast amount of enforcement experience to this position and he will be a vital part of the leadership team. Sam Rodriguez, who has served as deputy chief of DLSE since 2003, is leaving his position and, until further notice, any inquiries or business directed to Sam should be directed to Greg.
"Ann Rose of the DIR Personnel office is acting in the capacity of chief of the Division of Administration, effective today. She replaces Dennis Hutcheson.
"Finally, Deputy Director of Communications Louis Blumberg has informed us he has taken a position with an environmental organization, and today will be his last day at DIR. We wish Louis all the best in his new position and thank him for his work with the department."
Robert P. Roy, President/General Counsel, Ventura County Agricultural Association, has developed a model Farm Labor Contractor (FLC) Agreement. He has given FELS authorization to make it available to our subscribers.
The model agreement was drafted to meet the requirements specified in Labor Code section 2810, which was added to that code by SB 179 (Alarcon). Section 2810, which took effect Jan. 1, prohibits a person from contracting with an FLC for labor or services where the person knows or should know the contract does not include sufficient funds to allow the FLC to comply with all laws governing the labor or services to be provided.
An employee injured by a violation of a labor law or regulation in connection with the performance of the contract may sue to recover the greater of his actual damages or $250 per violation for an initial violation and $1,000 for each subsequent violation. Such an employee may also seek injunctive relief and recover his costs of suit and reasonable attorney's fees.
Section 2810 provides a rebuttable presumption affecting the burden of proof that the prohibition has not been violated where the contract and any material changes to it comply with several specific requirements.
This model agreement covers those requirements. It also contains provisions that should be included in an agreement between a grower and FLC for the parties' protection.
As with any legal document, you should seek the advice of appropriately experienced legal counsel before implementing the model agreement or any modification of it.
Subscribers desiring a copy of the model agreement may request one by either emailing FELS at fels@cfbf.com or faxing FELS at (916) 561-5696. Download Model Agreement as a MS Word Document
State Claims It Can Regulate Tribe That Sold Workers' Comp Policies
State officials insisted Jan. 7 that they have the right to regulate an Indian tribe that sold an inexpensive version of workers' compensation insurance to hundreds of California businesses.
The statement, filed in Sacramento Superior Court, represents the latest twist in a potentially groundbreaking flight between California officials and the Blue Lake Rancheria of Humboldt County.
The tribe established an employee-staffing firm, Mainstay Business Solutions of Roseville, that sold a cheap workers' comp alternative to more than 350 clients across California. Mainstay said its workers' comp program was 25 percent cheaper than traditional coverage.
The program sparked a showdown with state officials, who temporarily closed nine pancake houses in Sacramento and Fresno in November because they lacked conventional workers' comp insurance. The restaurants reopened after switching to traditional coverage.
The tribe sued the state Insurance and Industrial Relations departments, contending they had no business regulating Indian business affairs.
Experts on Indian law say the suit could define how much authority the state has over tribal conduct, particularly in businesses established outside reservation boundaries.
(Source: The Sacramento Bee, 01/08/04)