Vol. 33, No. 8, August 2004
In This Issue
Exempt-Status Checklist
Agricultural Company Accused of Sex
Harassment
Private Attorneys General Law Amended
Managing Your Workers' Compensation Rates
Outdoor Workers Beware: West Nile Virus
New Workers' Compensation Form and Poster
ALRA & AgJobs Seminars to be Held at UC
Davis
Spanish-Language Farm-Worker Safety
Publication Available
Safety Sheet: West
Nile Virus Exposure
West Nile Virus
Exposure - Spanish
A common problem for employers is identifying employees who are exempt from some or all overtime, minimum-wage and time-record requirements.
Below is a checklist to help employers in determining who is a fully or partially exempt employee. Portions of the checklist were compiled from the Division of Labor Standards Enforcement's Management Memorandum "Exempt Status Analysis - Managerial or Executive Employees." DLSE uses this analysis to determine whether an employee is exempt under orders of the Industrial Welfare Commission (IWC). Questions below designated "DLSE" are from that memorandum.
Duties:
1. Does the employee primarily (more than half of the employee's work time) perform:
Professional duties: A person who is licensed or certified by the State of California and engaged in the practice of one of these recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; and, who customarily and regularly exercises discretion and independent judgment. Or, a person engaged in an occupation commonly recognized as a learned or artistic profession [see IWC orders, section 1(A)(3)].
If yes, go to Salary Test
If no, go to B.
B. Executive duties: An executive employee means an employee (a) whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision; and (b) who customarily and regularly directs the work of two or more other employees; and (c) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) who customarily and regularly exercises discretion and independent judgment; and (e) who is primarily engaged in duties which meet the test of the exemption. (See regulations under the Fair Labor Standards Act at 29 CFR sections 541.102, 541.104-111, and 541.115-116).
DLSE: 1. Hire or make effective recommendations to hire employees. The employee must have sufficient authority so that his or her recommendations for hiring command particularly serious attention.
2. Fire or make effective recommendations to fire employees. The employee must have sufficient authority so that his or her recommendations concerning employee discipline (including terminations) command particularly serious attention.
3. Customarily and regularly exercises discretionary and independent judgment. This involves the comparisons and evaluation of alternatives by the employee and using his or her experience and judgment in selecting the best option. The terms imply that the employee has the power to make independent choices, free from immediate supervision. The decision may be implemented or may result in a recommendation subject to final authority, but the employee's recommendation must command serious attention. The decisions should pertain to matters of consequence to the business and/or its customers. The exercise of such discretion need not be constant, but should be done on a mor than occasional basis.
4. Customarily and regularly directs two or more people. Individuals who supervise employees only in absence of the manger or who do not customarily and regularly direct the work of others are not considered exempt management or executive employees. These employees may qualify under the administrative or professional exemption test.
5. Exempt Duties: Any time related to management, which may be logicaly separated from non-exempt work, must be counted as exempt work, no matter how short the time span may be. Examples of exempt duties, when performed as a part of or in conjunction with overall management level responsibilities, include:
• Interviewing, selecting, hiring and training employees.
• Setting and adjusting pay rates and work hours or recommending same.
• Directing work.
• Keeping production records of subordinates for use in supervision.
• Evaluating employees' efficiency and productivity.
• Handling employees' complaints.
• Disciplining employees including termination, or recommendation to terminate.
• Planning work.
• Determining techniques to be used at work.
• Distributing work to others.
• Deciding on types of merchandise, materials, supplies, machinery, or tools.
• Controlling flow and distribution of merchandise, materials and supplies.
• Providing for safety of employees and property.
• Controlling revenue or expense.
6. Non-Exempt duties: Some examples of non-exempt duties include:
• Performing the same kind of work as subordinates.
• Performing any production work, even though unlike that performed by subordinates, which is not part of a supervisory function.
• Making sales, replenishing stocks, returning stock to shelves, other than for supervisory training or demonstration purposes.
• Performing routine clerical duties, such as bookkeeping, cashiering, billing, filling and operating business machines, other than for supervisory training or demonstration purposes.
• Checking and inspection of goods as a production operation, rather than as a supervisory function.
• Performing routine maintenance work.
If yes, go to Salary Test
If no, go to C.
C. Administrative duties: A person employed in an administrative capacity means any employee: (a) whose duties and responsibilities involve the performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; and (b) who customarily and regularly exercises discretion and independent judgment; and (c) who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (see regulations under the Fair Labor Standards Act, 29 CFR sections 541.201-205, 541.207-208, 541.210, and 541.215 - located at: http://www.access.gpo.gov/nara/cfr/waisidx_03/29cfrv3_03.html); or (d) who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) who executes under only general supervision special assignments and tasks.
If yes, go to Salary Test
If no, go to 2.
2. Is the employee a/an:
D. Outside salesperson: An exemption from the IWC orders is available to an employee classified as an outside salesperson. An outside salesperson means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.
If no, go to E.
E. Commissioned salesperson: A narrow exemption from only overtime is available to employees who work under IWC Orders 4 (Professional, Technical, Clerical, Mechanical and Similar Occupations) and 7 (Mercantile). Under these orders, overtime doesn't apply to any employee whose earnings exceed1½ times the minimum wage if more than half of that employee's compensation represents commissions.
If no, go to F.
F. Computer Software Field employee: A narrow exemption from the IWC orders exists for an employee in the computer software field who is paid on an hourly basis. See IWC orders, section 1(A)(3)(h), for a description of a computer software field employee.
If no, go to G.
G. Parent, spouse, child or legally adopted child of the employer: The provisions of the IWC Orders don't apply to the parent, spouse, child, or legally adopted child of the employer.
If no, go to H.
H. Irrigator: Irrigators are exempt from the FLSA's overtime-premium requirement because they are employed in agriculture. Under IWC Order No. 14, an employee is exempt from its overtime-premium requirement during any workweek in which he performs an irrigator's duties for more than half of his hours in that workweek. Those duties include the job functions defined in the U.S. Department of Labor's Dictionary of Occupational Titles (DOT) (i.e., Head Irrigator, Valve-Pipe Irrigator, Sprinkling-System Irrigator and Gravity Flow Irrigator). But as the DOT listing of irrigator types is not exhaustive, the state Labor Commissioner has acknowledged that other types of irrigators, such as drip-system irrigators, may fall within the exemption.
If no, go to I.
I. Truck Driver: Both the FLSA and IWC orders exempt from their overtime-premium requirements employees covered by federal or state laws regulating motor carriers. Generally, drivers and their helpers, loaders and mechanics) covered by the federal Motor Carrier Act of 1935 are exempt from overtime under the FLSA. Drivers covered by the state Motor Carrier Safety Act are exempt from the overtime-premium provisions of the IWC orders. However, they are limited to a maximum number of hours on duty. The state allows the exemption for only the truck driver and not for any non-driver who rides along for any other purpose such as to assist in loading or unloading. Covered by the state Motor Carrier Safety Act are drivers of: motortrucks of three or more axles that weigh more than 6,000 pounds unladen; truck tractors; buses; and trailers and semitrailers designed or used to transport more than 10 persons.
If no, go to J.
J. Part-time Employee: IWC Order No. 14 exempts certain part-time employees from the requirement that they receive overtime premium pay on the seventh day of work in a workweek. To qualify, the employee must not have worked more than 30 hours in the workweek or more than six hours in any workday.
If no, it is not likely the employee is exempt for overtime.
The employee must receive a monthly salary of at least twice the state minimum wage for full-time employment. Full-time employment is defined in Labor Code section 515(c) as 40 hours per week. With the California minimum wage now at $6.75 per hour, the minimum monthly salary is $2,340.
Agricultural Company Accused of Sex Harassment
A lawsuit against a Central Valley grower was filed this month, making the ninth lawsuit the federal Equal Employment Opportunity Commission has filed in the past three years against agricultural employers.
Joan Ehrlich, director of the EEOC's San Francisco District, said the lawsuit is one of several recently filed on behalf of Hispanic women alleging harassment. "We are doing our best, through aggressive litigation and extensive education for employers and workers both, to ensure that this trend changes," she said.
She added that outreach workers will step up training in Fresno, a center for farm production and packing, in the weeks ahead.
The lawsuit, filed in San Francisco, alleges that a plant manager at the company's grape-storage facility in Bakersfield sexually harassed an employee until she felt compelled to resign. The lawsuit alleges the woman "faced constant sexual harassment from the time she transferred into the Bakersfield grape facility in July 2001 until she left in January 2002."
EEOC Regional Attorney William R. Tamayo said the agricultural industry has a largely immigrant work force and "employs women with a particular vulnerability to sexual harassment."
The agency reported settlements of sexual harassment cases ranging from $150,000 to $1.9 million on behalf of Latina farmworkers.
(Source: The Fresno Bee)
Private Attorneys General Law Amended
California employers won partial relief from the so-called "Sue-Your-Boss" law when Gov. Arnold Schwarzenegger signed Senate Bill 1809 into law on Aug. 11 as part of the state budget deal.
Codified as Labor Code section 2699, the Private Attorneys General Act, which took effect on Jan. 1, let employees bring civil actions against their employers to recover penalties for petty violations of the Labor Code if the Labor Commissioner did not do so.
While many employer groups were hoping the Legislature would repeal this law in its entirety as part of California's recent budget negotiations, the amendments obtained by Gov. Schwarzenegger provide some significant relief to employers from this law's most offensive features. As an urgency measure, the bill took effect immediately upon its signing.
The amendments to the Private Attorneys General Act do the following:
1. Enumerates certain sections of the Labor Code (including violation of specified provisions regarding overtime, wage-payment, meal and rest periods, child-labor, and certain other laws ) for which these procedural and administrative requirements apply:
a) The aggrieved employee shall give written notice to the Labor and Workforce Development Agency (LWDA) and the employer of the alleged violation;
b) Within 30 days, LWDA shall notify the employer and the employee if it does not intend to investigate the alleged violation. Upon such notice, or if no notice is provided, the aggrieved employee may proceed with a civil action;
c) If LWDA intends to investigate the alleged violation, it shall notify the employer and the employee within 33 calendar days. Within 120 calendar days of that decision, LWDA may investigate the alleged violation and issue any appropriate citation;
d) If LWDA determines that no citation will be issued, it shall notify the employer and aggrieved employee within five business days; and,
e) Upon receipt of such notice, or if no citation is issued within the specified period, or if LWDA fails to provide any notification, the aggrieved employee may proceed with a civil action.
2. Specifies that these procedural and administrative requirements apply to the provisions of the Labor Code related to safety in employment (other than sections that are specifically enumerated):
a) The aggrieved employee shall give written notice to the Division of Occupational Safety and Health (DOSH) and the employer, with a copy to LWDA, of the alleged violation;
b) DOSH shall inspect or investigate the alleged violation pursuant to existing provisions of law;
c) If DOSH issues a citation, no civil action pursuant to SB 796 may commence;
d) If, by the end of the period for inspection or investigation, DOSH fails to issue a citation and the employee disputes that decision, the employee may challenge the decision in the superior court. If the court finds that DOSH should have issued a citation and orders DOSH to issue a citation, then no civil action pursuant to SB 796 may commence;
e) If DOSH fails to inspect or investigate the alleged violation within the period specified in existing law, the notice and cure provisions outlined in #2) above apply to the determination of the alleged violation;
f) Nothing shall be construed to alter the authority of DOSH to permit long-term abatement periods or to enter into agreements with employers in the case of long-term abatement issues;
g) Superior courts shall review and approve any proposed settlement of alleged safety in employment violations to ensure that they are at least as effective as the protections or remedies provided by state and federal law or regulation for the alleged violation. The provisions of the settlement related to health and safety laws shall be submitted to DOSH, who is authorized and permitted to comment on those settlement provisions; and,
h) These provisions will be subject to review by the Joint Committee on Boards, Commissions, and Consumer Protection in consultation with the Senate Committee on Labor and Industrial Relations and the Assembly Committee on Labor and Employment. The first review shall be completed within three years.
3. Specifies that for those non-enumerated sections of the Labor Code, these procedural and administrative requirements apply:
a) The aggrieved employee shall give written notice to LWDA and the employer of the alleged violation;
b) The employer may cure the alleged violation within 33 calendar days and shall give written notice to the employee and LWDA if the alleged violation is cured;
c) The term "cure" is defined to mean that the employer abates each violation alleged by any aggrieved employee, the employer is in compliance with the underlying statutes as specified in the notice provided, and any aggrieved employee is made whole;
d) If the alleged violation is cured, no civil action pursuant to SB 796 may commence;
e) If the alleged violation is not cured within the 33-day period, the aggrieved employee may commence a civil action;
f) If the aggrieved employee disputes that the alleged violation has been cured, the employee shall provide written notice to the employer and LWDA. Within 17 days LWDA shall review the actions of the employer and provide written notice of whether the alleged violation has been cured;
g) If LWDA determines that the alleged violation has not been cured or if the agency fails to provide timely or any notification, the aggrieved employee may proceed with a civil action. If the agency has determined that the alleged violation has been cured, but the employee still disagrees, the employee may appeal that determination to the superior court; and,
h) No employer may avail himself or herself of the notice and cure provisions more than three times in a 12-month period for the same violation or violations contained in the notice, no matter the location of the worksite.
4. Authorizes a court to award a lesser amount than the maximum civil penalty amount allowed if to do otherwise would result in an award that is "unjust, arbitrary and oppressive, or confiscatory."
5. Provides that no action under SB 796 shall be brought for any violation of a posting, notice, agency reporting, or filing requirement except where the filing or reporting requirement involves mandatory payroll or workplace-injury reporting.
6. Amends provisions of existing law related to employment retaliation and discrimination to include among those specifically-protected employee rights the bringing of a civil action or initiating any notice pursuant to SB 796.
7. Repeals Labor Code section 431, which requires employers to submit copies of specified applications for employment to the Division of Labor Standards Enforcement.
The Bottom Line: While these amendments remedy major problems of the Private Attorneys General Act, employers still face significant penalties for a number of Labor Code violations, including wage-and-hour violations. Employers are strongly encouraged to audit their wage-and-hour practices and other similar policies and practices to avoid civil penalties under this act as well as general damages and other penalties set forth in the Labor Code.
Managing Your Workers' Compensation Rates
(Source: A presentation by Don Dressler at the June 16, 2004, Fresno Ag Safety Breakfast; edited by Fresno County Farm Bureau. Don Dressler is an attorney and a risk-management consultant.)
1. Handle Every New Work Injury Immediately
A. Immediate Medical Attention:
1) Take the employee to your designated health provider.
2) Don't send them, drive them there personally.
3) Ask about the injury (How did it happen? Has it ever happened before?)
4) Wait for them at the doctor's office.
5) Ask the medical provider about the injury and planned treatment right then.
B. Immediate Employee Statement:
1) Take notes about what the employee says happened.
a) Who else saw it?
b) Where?
c) When?
d) Conditions?
e) How?
C. Alert the Physician to Suspicious Claims:
1) If there is anything suspicious about the reported incident, call the physician to inform them before he/she sees the patient.
2) An alert report of all suspicious circumstances will avoid wrong conclusions by the first physician.
D. Decide Whether to Contest the Claim:
1) All the facts you need are usually available in the first 24 hours.
2) You and your insurer will pay for all medical costs up to $10,000 until you deny a claim.
2. Report the Injury:
A. Immediately notify your insurer or claims administrator.
B. Prepare carefully the first report of injury based on your investigation and statements from the employee and any witnesses.
C. Give the claims administer the tools to do a good job for you.
3. Get the Employee Back to Work
A. Returning the employee to work is the single most positive action you can take to minimize the cost of a claim.
B. Review with the physician the diagnosis and any work restrictions (i.e. can employee bend, lift, stand).
C. Make a written offer of return to work. You will need to be able to prove what offers you make to injured workers; and, if they decline, the will not receive temporary disability…and any permanent disability will be rated to save you 15%.
4. Keep in Touch with the Employee:
a. Assign someone to talk directly with the employee in a regular basis. Employees who feel abandoned or afraid may turn to an attorney; not share their physical condition with you; and become difficult, increasing lost time, extending medical treatment, and increasing your costs.
B. Having someone at your company help an injured worker will provide you with a tangible return in investment for any time and costs you incur. Help employees with:
5. Transportation
A. Help with necessities such as shopping, if employee needs
B. Answer questions about their workers' compensation claim.
C. Demonstrate concern and understanding for them.
6. Manage the Claims Adjustor
A. Keep informed about what the adjustor is doing about paying bills, calculation of benefits, issuing denials and documenting offers of modified work.
B. Ask for a written status of all open claims every 90 days. Review any loss reports you received and follow up with any questions or concerns.
C. Be prepared to meet personally with claims adjustor or their supervisor.
D. PLAN AHEAD - Calendar the key event which govern your workers' compensation policy, not just your renewal or anniversary date.
1) 120 days (4months) before your anniversary/renewal date, discuss your options with a broker or agent you trust. It takes time to prepare to a quality application for insurance and then decide which insurers to approach. Waiting until 30 days before renewal severely limits your options. Also consider asking your agent/broker to take you meet with the underwriter. When establishing your premiums, the underwriter has a range within to establish premiums. They are more likely to give you the benefit of the doubt when they have had a chance to talk to you ask questions about your operations, as opposed referring to you as just another policy holder.
2) 120 days (4 months) after your anniversary/renewal date, have a review of all open and closed claims for the past 4 years, since these claims will be used to set your experience modifications; and each year's claims are used for three years.
7. Review your Experience Modification
A. What is your Experience Modification? Most group programs require an ex-mod of 125% or lower. If your ex-mod is over 200%, any new insurer will have to completely review your Illness & Injury Prevention Program.
B. Are your "primary" losses higher than expected? If so, consider the following:
1) New Employee Orientation on Safety
2) Regular Safety-worksite inspections
3) Monthly training on safety topics
4) Thorough accident investigations
5) Employee safety incentive programs
D. Are your "excess" losses higher than expected? If so, consider the following:
1) Return to work programs and offers
2) Meeting with claims adjustor
3) Participate in all legal steps, including attending any depositions
4) Exercise your rights under the "Employers Bill of Rights."
Outdoor Workers Beware: West Nile Virus
West Nile Virus' inexorable march across the United States is leading to an inexorable march up California and, for the first time, human deaths.This month's Safety Sheet provides information for field workers about avoiding mosquitos that carry the virus.
New Workers' Compensation Form and Poster
The California Department of Workers' Compensation (DWC) has revised the Workers' Compensation notice that must be posted by all California employers and the Workers' Compensation Claim Form (DWC-1).
The notice appears on page 6 of this issue of the FELS Newsletter. A copy of each can be downloaded from the Internet. Here are the Web addresses for these items:
Notice to Employees Poster (English and Spanish) DWC 7 (8/1/04):
http://www.dir.ca.gov/dwc/NoticePoster.pdf Workers' Compensation Claim Form (DWC 1):
http://www.dir.ca.gov/dwc/DWCForm1.pdf
ALRA & AgJobs Seminars to be Held at UC Davis
The University of California is conducting two seminars of interest to growers. The first is Regulating Farm Labor Relations: The ALRA, which will be held on Thursday, Sept. 30, at the Davis campus in the Activities and Recreation Center (ARC) Ballroom.
That seminar will review the economic and legal trends in the farm labor market in the 30 years since the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act was signed into law on June 5, 1975. The morning panel will examine changes in the farm-labor market from an economic point of view. The afternoon panels will review changes in farm-labor relations.
The state bar has approved this conference for 6.5 MCLE credit hours. The registration fee for the conference is $95, which includes breakfast, lunch and conference materials. There is a separate fee of $45 for the reception and dinner; if you are participating in both the conference and the dinner, the charge is $125. Support for the seminar comes from the Giannini Foundation.
The second seminar is AgJOBS and Immigration Reform. It will be held on Friday, Oct. 1, also in the ARC Ballroom on the UC Davis.
The Agricultural Job Opportunity, Benefits, and Security (AgJOBS) Act would provide a path to legal status for some farm workers who cannot lawfully be employed in the United States and make it easier for farm employers to employ foreign employees under the H-2A temporary agricultural worker program.
This conference will review the provisions of AgJOBS and likely implementation issues to help worker advocates and Qualified Designated Entities, farm employers and associations, and researchers anticipate key implementation issues.
The registration fee for this conference is $75, which includes breakfast, lunch, and conference materials.
For reservations, call UC-Davis at (530) 752-6071 or (530) 752-1530. For information about the ARC Ballroom, visit http://rechall.ucdavis.edu online, then click on "Conferencing" and scroll down to "Ballroom."
Spanish-Language Farm-Worker Safety Publication Available
Western Plant Health Association (WPHA) announces the third printing of Proteccion De Su Salud: Proteccion De Trabajadores Expuestos A Pestididas (Protecting Your Health, Protection for those Working with Pesticides), a 30-page Spanish-language training booklet for farm workers. The novella uses a comic-book style to teach farm workers about proper practices for working with agricultural pesticides through the experiences of its main character, Cati, as she starts a new job in agriculture.
"We recognize that skilled farm workers are the backbone of production agriculture and many of these workers are bilingual or speak Spanish as a primary language," said Steve Beckley, president and CEO of WPHA. "We developed the novella as a service to both the grower community and the farm workers crucial to bringing food from field to table."
First published in 1999, the novella is a collaboration between WPHA, the Coalition for Urban/Rural Environmental Stewardship (CURES), California Environmental Protection Agency (CalEPA) and the Department of Pesticide Regulation (DPR).
The novella has been updated and reprinted three times to keep up with changing regulations as well as grower and industry demand. The latest edition includes information required under the U.S. Environmental Protection Agency's Worker Protection Standard (WPS). EPA has approved the novella as appropriate worker training material to fulfill WPS requirements.
"This novella is an excellent example of the steps taken by the crop protection industry to avoid accidents by educating and empowering growers and farm workers regarding personal health and safety," said Beckley. "Educational programs like this one can reduce the risk of illness for both agricultural workers and the community."
Topics covered in the novella include wearing protective clothing in the field, sorting and washing field clothes separately from other clothes, washing hands before eating, drinking, smoking, or other activities, understanding and obeying application postings, identifying exposure symptoms and the proper response to a possible exposure.
Since its release in 1999, over 250,000 copies of the novella have been distributed at no charge through a wide array of organizations.
"We receive requests for copies from not only WPHA members and their grower customers, but also community based resource groups, clinics and more. The sustained demand for this publication clearly demonstrates the need it fills within agriculture," said Beckley.
Copies of Proteccion De Su Salud can be ordered by visiting the WPHA Web site at www.healthyplants.org/novella.htm, contacting Bonnie Nichols at bonnien@healthyplants.org or visiting http://www.curesworks.org.