Vol. 33, No. 9, September 2004
In This Issue
Goodbye, Steve
UFW Must Pay Back Wages to Berry Pickers
Responding to Administrative Charges
Teamsters Use "Sue-Your-Boss" Law
to Organize
Compliance With Cal/OSHA Requirements a Must
Border Patrol Faces New Limits
Crop Handling and Food Safety
Offer Letters: Traps for the Unwary
New Federal OT Rules Have Little Impact on
CA Employers
Central Valley Grower Accused of Sex
Harassment
Safety
Sheet: Vehicle Maintenance, Repair of Tires
Vehicle
Maintenance, Repair of Tires - Spanish
Farm Advisor Steve Sutter announced his retirement effective Aug. 21. For more than 15 years, Steve provided the agricultural-employer community with valuable information and resources as the University of California's Fresno Area Personnel Management Farm Advisor. He often contributed to the FELS Newsletter and helped in many seminars. Steve will be missed by the large audience who depended on his timely and accurate information.
Here is Steve's retirement announcement in his own words:
This is to let everyone know that I'll retire at the end of this week, and hope by Labor Day to be at the family farm (established 1843) in northern Maine. Thirty years of cooperative extension (half of them here) gave me many opportunities to field questions (or calm concerns) of family farmers, supervisors, and allied industry representatives. Whatever rapport I've had in the industry, I attribute to having been farm-reared (on a farm highly dependent on seasonal workers).
I want to thank my numerous friends and colleagues for your interest and assistance.
Adios!
-- Steve
Goodbye Steve, and best wishes for a well-deserved retirement.
UFW Must Pay Back Wages to Berry Pickers
The United Farm Workers (UFW) union agreed late to pay out over $105,000 in back pay to a large group of strawberry pickers unlawfully fired from their jobs for refusal to join the union and sign dues check-off authorizations permitting the union to collect full dues directly from their wages.
The settlement comes after attorneys with the National Right to Work Legal Defense Foundation persuaded the General Counsel of California's Agriculture Labor Relations Board (ALRB) to issue a complaint against the UFW in Dec. 2003 for unlawfully ordering and causing the mass firings of more than 100 Oxnard Coastal Berry employees in 2001. Under the settlement agreement, those workers will receive checks to compensate them for lost pay within the next several weeks.
With the help of Foundation attorneys, Francisco Alcazar, Bertha Ambriz, Bertha Andrade, Ella Carranza, Alma Rose Arredondo, and Manuel Mena filed the class-action unfair labor practice charges against the UFW in June 2001. Coastal Berry, which employs approximately 750 workers, is the world's largest strawberry producer.
The unionization of Coastal Berry's Oxnard work site occurred under controversial circumstances in the first place. In May 2000, by order of an ALRB packed with three one-day appointments by then-Gov. Gray Davis, UFW officials were granted monopoly bargaining power over Coastal Berry employees - even though a large number of the employees did not support the UFW. In March 2001, Coastal Berry entered into a collective bargaining agreement with the UFW. Within days, UFW officials demanded that all Coastal Berry workers join the union and sign payroll deduction cards that would have allowed union officials to seize dues from their paychecks.
The ALRB complaint stated that UFW officials unlawfully demanded that the berry pickers pay full union dues as a condition of employment, violating several Foundation-won U.S. Supreme Court decisions, including Chicago Teachers v. Hudson. UFW officials also unlawfully failed to inform employees of their rights to object to paying for non-collective bargaining activities (such as politics) and the right to challenge the union's fee calculations before an impartial decision maker.
(Source: The National Right to Work Legal Defense Foundation. The Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation can be contacted toll-free at 1-800-336-3600)
Responding to Administrative Charges
Sooner or later, nearly all human resources personnel have to respond to an administrative charge of harassment or discrimination. An employee who believes he or she has been harassed or suffered discrimination based upon a protected classification (e.g., race, religion, sex, disability, age, national origin, etc.) can file an administrative charge with either the California Department of Fair Employment and Housing (DFEH) or the U.S. Equal Employment Opportunity Commission (EEOC). Those agencies will ask the employer to respond to the complaint, stating its version of the relevant facts and providing information requested by the agency. Here are some tips for responding to such a charge.
Contact Your Attorney: Even if you are experienced in responding to this type of claim, you should always discuss it with your attorney before doing anything else, and definitely before contacting the agency. If the matter ends up in civil litigation, the entire file, including the investigator's notes of any conversations with you, will become evidence. You do not want to make the mistake of generating adverse evidence.
Contact the Agency: The agency will assign an investigator to the charge, and the employer should contact that person to discuss the charge. While the investigator is, at least in theory, supposed to be a neutral fact-finder, most investigators are extremely employee-friendly. Thus, the employer should not volunteer any information whatsoever to the investigator, but rather, should attempt to find out what additional information the investigator will provide about the claim. Let the investigator know that you will review the charge in detail, and respond accordingly. It is usually a good idea to request additional time to respond to the claim. The initial letter usually requests a response within approximately 30 days, but extensions of time are routinely given if requested. If the investigator grants an extension, confirm that in writing with a short letter to him or her.
Investigate the Facts: If you have no prior notice of the alleged facts (i.e., the employee did not make an internal complaint), you should:
1. Interview all witnesses, taking detailed notes and even obtaining signed statements if possible. Tell each witness to maintain confidentiality;
2. Review all relevant documents, such as the employer's personnel policies and/or handbook, personnel records, and incident reports, etc.; and,
3. Prepare a summary of the investigation, which will serve as the basis of the employer's response to the charge.
Prepare a Written Response: The employer should respond to the charge, answering all of the questions asked (unless there are grounds for objecting, such as providing home addresses for other employees, etc.), and setting forth the employer's position on the facts. The response should include:
1. A denial of everything in the charge that can be denied;
2. A statement of the employer's commitment to equal employment opportunity, including copies of relevant personnel policies and complaint procedures;
3. If there was a prior internal investigation, a summary of that investigation and its conclusion;
4. Summaries of relevant witness statements, if any;
• Supporting documentation, if any;
• Any additional facts that the employer feels are relevant; and
• A statement that the employer is willing to work with the agency to reach a reasonable solution, if the employer is so inclined.
Reconsider Contacting Your Attorney: There is no requirement that the employer have an attorney prepare its response, and most employees are not represented during administrative investigations. Keep in mind though, that unless a claim is settled at the administrative stage, nearly every employee will get a "right-to-sue" letter, which is his or her ticket to file a civil lawsuit. Further, most plaintiffs' attorneys will review the investigative file before determining whether to take a case for civil litigation. Therefore, it can be extremely helpful to have a comprehensive and persuasive response, which may well discourage attorneys from taking the case.
Wait: Most administrative investigations involve the investigator reviewing the response, getting the employee's response to the information supplied by the employer, and occasionally some witness interviews. Then, the file typically sits dormant for a number of months, depending upon the investigator's workload at the time.
The EEOC, in particular, regularly invites the parties to try to resolve the charge through mediation. EEOC mediation involves a neutral mediator who will not share information with the investigator if the charge is not settled.
If a charge is not settled during the administrative stage, the agency will issue the employee a "right-to-sue" letter, which is a prerequisite to filing a civil lawsuit. The employee has only 90 days to file in federal court after the EEOC's letter, but has up to a full year after the DFEH's letter. Until that time has passed, you should maintain all relevant information in a secure location, in case of litigation.
What This Means for Employers: Employers may be able to handle responding to an administrative charge on their own, but it is advisable to review the situation with experienced labor counsel, at a minimum, prior to submitting any response. Submitting a solid, persuasive response can go a long way toward avoiding future litigation.
(Source: Barsamian, Saqui & Moody. The goal of this article is to provide employers with current information on labor and employment law. The contents should neither be interpreted as 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.)
Teamsters Use "Sue-Your-Boss" Law to Organize
By now, many employers know of the Private Attorneys General Act, also known as the "Sue-Your-Boss" law that was pushed through the California Legislature by California Rural Legal Assistance Foundation.
However, many employers are not aware that the Teamsters union is going to institute an "associate" member program. The purpose of this program is to take advantage of the "Sue-Your-Boss" statute and use it as an organizing weapon. The union believes that since it would in that case represent "associate members," it would then have standing to sue on their behalf.
Some employers, faced with a million-dollar liability, may be open to advances by the Teamsters or some other labor organization. Also, under Business & Professions Code section 17200, the statute of limitations (the amount of time for which a lawsuit can seek damages) is four years.
(Source: Wayne Hersh, of Berger Kahn, 949-474-1880, whersh@bergerkahn.com)
Compliance With Cal/OSHA Requirements a Must
Recent reports of farm-worker fatalities in the San Joaquin Valley from prolonged exposure to heat emphasize how important it is for agricultural employers to comply with health-and-safety requirements.
Listed below are important provisions of Cal/OSHA regulations protecting agricultural field workers from workplace hazards. Readers should remember that this summary is not exhaustive, but covers only major points.
Field Sanitation: Agricultural employers must provide toilet and handwashing facilities and drinking water where one or more employees are performing hand-labor operations. "Agricultural employer" includes a person or entity that:
• Owns or operates an agricultural establishment:
• Buys a crop before it is produced and exercises substantial control over production (e.g., a packinghouse); or
• Recruits and supervises employees (e.g., a farm labor contractor) or manages an agricultural establishment (e.g., a grove or vineyard manager).
A farm labor contractor (FLC) is generally liable for failing to provide field-sanitation facilities to the FLC's employees.
Definitions:
• A "hand-labor operation" is one performed by hand or with a hand tool in producing an agricultural commodity. Examples of "hand-labor operations" include: moving irrigation pipes and other irrigation equipment by hand; cultivating, weeding, planting and harvesting crops by hand; and hand-packing produce into containers, whether done on the ground, on a moving machine, or in a temporary packingshed located in the field.
• Alternative Compliance: An agricultural employer may meet the field-sanitation requirements specified below by providing transportation to the facilities only where one or more of these three conditions applies:
1) Employees are performing field work for less than two hours (including transportation time to and from the field);
2) Fewer than five employees are engaged in hand-labor operations on any given day; or
3) Employees are not engaged in hand-labor operations.
Agricultural operations not involving hand-labor must comply with Title 8, Calif. Code of Regs. sections 3360-3368 (sanitation facilities in permanent places of employment).
Drinking Water Requirements: Potable drinking water must be provided during working hours at locations readily accessible to all employees.
• Access to the water must always be permitted.
• The water must be fresh, pure, cool, and in sufficient amounts to meet the needs of all employees.
• Drinking water containers must be constructed of materials that maintain water quality. They must have a faucet, fountain, or other device to draw the water.
• The water must be dispensed in single-use drinking cups or by fountains. "Common-use" (i.e., shared) cups or dippers are not permitted unless they are cleaned and sterilized between uses.
Toilet and Handwashing Facilities: A fixed or portable facility designed to collect and contain the products of both defecation and urination must be provided.
• It must be supplied with toilet paper adequate to employee needs. It may be a biological, chemical, flush or combustion toilet or sanitary privy.
• Separate toilet facilities for each sex must be provided for every 20 employees of each sex or fraction thereof. Exception: Where fewer than five employees are working, separate toilet rooms for each sex are not required, as long as toilet rooms can be locked from the inside and contain at least one water closet.
• One handwashing facility must be provided for every 20 employees or fraction thereof.
• Urinals may be installed instead of water closets in toilet rooms to be used only by men, as long as the number of water closets is at least two-thirds the minimum number of toilet facilities.
• Toilet and handwashing facilities must meet these standards:
• Toilet facilities must be screened.
• Toilet and handwashing facilities must be ventilated and have self-closing doors, lockable from the inside, and otherwise be constructed to ensure privacy.
• Toilet facilities must have an area of at least 8 square feet, with a minimum width of 2½ feet for each toilet seat. A facility must have a minimum area of 10 square feet, with a minimum width of 2½ feet, if a urinal is included. Sufficient additional space must be included if handwashing facilities are within the facility.
• The waste water tank on chemical toilets must be constructed of durable, easily-cleanable material and be able to hold at least 40 gallons. It must be constructed to prevent splashing on the occupant, field, or road.
• The handwashing water tank must be able to hold at least 15 gallons.
• Units housing toilet and handwashing facilities must be rigidly constructed. Their inside surfaces must be of nonabsorbent material, smooth, readily cleanable, and finished in a light color.
• Water flush toilets and handwashing facilities must conform to Title 24, Calif. Code of Regs., Part 5, Calif. Plumbing Code.
Location: Toilet and handwashing facilities must be accessibly located near each other.
• They must be within a ¼-mile walk or five minutes of employees, whichever is less. Where due to terrain it is not feasible to locate facilities as required above, they must be located at the point closest to vehicular access.
Maintenance Standards: The employer must service and maintain potable drinking water, toilet and handwashing facilities in accordance with appropriate public-health sanitation practices, including the following:
• Drinking water containers must be regularly cleaned, refilled daily or more often as necessary, and covered and protected to prevent persons from dipping the water by hand or otherwise contaminating it.
• Toilet facilities must always be operational, clean, sanitary, and in good repair. Written records of service and maintenance must be kept for at least two years.
• Toilet paper must be provided in a suitable holder in each toilet unit.
• Effective odor control and solid-liquefying chemicals must be used in chemical toilet waste holding tanks.
• Contents of chemical tanks must be disposed of by draining or pumping into a sanitary sewer, an approved septic tank of sufficient capacity to handle the wastes, a suitably sized and constructed holding tank approved by the local health department, or by any other method approved by the local health department.
• Privies must be moved to a new site or taken out of service when the pit is filled to within 2 feet of the adjacent ground surface. The pit contents must be covered with at least 2 feet of well-compacted dirt when the privy is removed.
• Handwashing facilities must meet these standards:
• Pure, wholesome, and potable water must be available for handwashing.
• Handwashing facilities must be refilled with potable water as necessary.
• Soap or other suitable cleansing agent and single-use towels must be provided.
• Signs stating that the water is only for handwashing must be posted.
• Handwashing facilities must be provided at or near the toilet unit.
• Handwashing facilities must be clean and sanitary.
Notice to Employees: The employer must notify each employee of the location of the sanitation facilities and potable water and allow each employee reasonable opportunities during the workday to use them.
The employer must ensure that employees use the sanitation facilities and inform each employee of the importance of these good hygiene practices to minimize exposure to the hazards in the field of heat, communicable diseases, retention of urine, and agrichemical residues:
• Use the water and facilities provided for drinking, handwashing, and elimination;
• Drink water frequently, especially on hot days;
• Urinate as frequently as necessary;
• Wash hands both before and after using the toilet; and
• Wash hands before eating and smoking.
(Source: James Bogart, Grower-Shipper Association of Central California)
Border Patrol Faces New Limits
Several months after Border Patrol agents made a series of controversial arrests in Southern and Central Coast of California, federal officials are finalizing a policy to limit the agency's operations in interior areas.
Documents and interviews show that Department of Homeland Security officials want to concentrate Border Patrol agents at the borders and limit their inland activity to arresting illegal immigrants while they are traveling from the border and at transportation centers such as Los Angeles International Airport and highway checkpoints such as those in Temecula and San Clemente.
Authorities said the changes were under discussion before the June arrests, which stirred protests in the Latino community. About 450 suspected illegal immigrants in Riverside, San Bernardino and San Diego counties were arrested in less than a month by a specially trained team of 12 agents called the Mobile Patrol Group.
Agents arrested the immigrants in residential and commercial areas, saying they were acting on information about smuggling. The arrests ended when a Homeland Security official said the sweeps violated agency policy because they had not been approved in Washington.
The Border Patrol will take the lead at the border and on all arrests of illegal immigrants in inland areas as they travel north; Bureau of Immigration and Customs Enforcement agents will focus on enforcement away from border areas and take the lead on all immigration investigations.
Still to be defined, however, is where the border region ends and the inland area begins.
Food sanitation is a growing issue in the press, which in turn is translating into more governmental activity.
Several commodity groups, together with numerous food distributors, are going on the offense to head off governmental regulatory involvement. Growers are being encouraged to develop crop-handling sanitation policies for their employees.
At the end of this article is a sample policy written by FELS that advises employees of proper sanitation practices.
Further, California Grape and Tree Fruit League suggests its members adopt a quality-assurance statement as a way to relieve the anxiety of their distributors. With the League's permission, here is its suggested statement, to be placed on your letterhead:
(Delete any item below that does not apply to your operation. Further, you may want to have a company expert or legal counsel review this document.)
[Name of Packer] takes pride in growing and/or shipping the best product we can produce. We want to assure you that as of the date of shipment:
1. These farm products meet all field sanitation standards established by Cal/OSHA respecting the adequacy/appropriately equipped and number of field toilets and hand washing facilities, including maintenance records.
2. We maintain adequate records that show water and soil testing as often as required by law or more often as needed.
3. We comply with all applicable state and federal laws governing the safe application and use of pesticides and fertilizers.
4. We maintain adequate records concerning the application and use of pesticides and fertilizers.
5. We maintain and adhere to the requirements for supervisory and employee health and safety training required by California Labor Code section 6401.7.
6. We maintain copies of all required licenses and certificates governing the use of farm labor contractors in the state.
Date: Packinghouse:
The League and Western Growers (WG) have produced informational materials on the subject. Fruit growers should contact Alex Ott at (559) 226-6330 for the League's publication Profile of Farm, Orchard and Packing-house Practices - Quality Assurance for California Peaches, Plums, Nectarines and Table Grapes.
Here is a sample employee handbook policy on crop-handling sanitation:
Personal Hygiene and Crop Handling
Our company is committed to producing safe and healthful products. To help us achieve this goal, you must do your part by using good personal hygiene practices.
Personal Hygiene: To minimize heat stress, exposure to communicable diseases and agrochemical residues, and retention of urine, you should follow these good hygiene practices; they are required not only by our company policy, but also by law:
1. Use facilities provided for drinking, hand washing and elimination.
2. Drink water frequently, especially on hot days and even if not thirsty.
3. Urinate as frequently as necessary.
4. Wash hands before and after using the toilet.
5. Wash hands before eating and smoking.
When washing your hands, use the provided antibacterial soap. After drying your hands with the provided single-use paper towels, dispose of them in the designated trash receptacles. You must also dispose of all waste--such as drinking cups, food packaging and beverage containers--in designated trash receptacles.
Wash your hands before entering production areas where food crops are handled, including before you reenter a work area after a rest break. You may not eat, smoke, or chew gum or tobacco while in production areas.
Accidents: First-aid supplies are provided in or near work areas. Your supervisor will tell you where to find first-aid supplies in your area. Any item, including crops, contaminated by blood, body fluids or body wastes must be destroyed or disposed of in designated trash receptacles. Exposed equipment must be cleaned of any blood, body fluids or body wastes. Report any such incident to your supervisor to ensure contaminated items are handled so as to minimize exposure and are properly disposed of.
Your Health: Inform your supervisor if you feel ill. You must also inform your supervisor if you have an open wound, skin rash or sore on your body. If, in your supervisor's opinion, you are likely to expose other employees or crops to an unhealthful condition, you will be instructed not to work for the rest of the day. You may also have to give your supervisor a physician's statement that you can return to work after an illness.
Visitors: Non-employee visitors may not be in work areas. Visit with them outside crop-production areas.
Cooperation: By following these simple but important procedures, we can assure our customers that they are receiving safe and healthful food from our company.
Higiene Personal Y
Manejo De La Cosecha
Nuestra compañía se compromete en producir productos seguros y saludables. Para ayudarnos a lograr esta meta, usted debe hacer su parte, usando buenas prácticas de higiene personales.
Higiene personal: Para reducir el agotamiento del calor, exposición a las enfermedades contagiosas, residuos químicos agrícolas, y la retención de la orina, usted debe seguir estas buenas prácticas de higiene; estas no sólo son exigidas por la política de nuestra compañía, sino también por la ley:
1. Use los servicios proporcionados para beber agua, el lavado de manos y la eliminación.
2. Beba agua con frecuencia, sobre todo en los días calurosos, así no tenga sed.
3. Orine con tanta frecuencia como le sea necesario.
4. Lávese las manos, antes y después de usar el servicio higiénico.
5. Lávese las manos antes de comer y fumar.
Cuando se lave las manos, use el jabón contra la bacteria. Después de secarse las manos con el papel toalla, de un solo uso, que le ha sido proporcionado, tire el papel en los recipientes designados para la basura. También debe tirar en los recipientes de basura, todo desperdicio como vasos, recipientes de empaques de comida y de bebidas.
Lávese las manos antes de entrar en las áreas de producción donde se manejan las cosechas de comida, incluyendo antes de volver a entrar en la área de trabajo, después de un descanso. Usted no puede comer, fumar, o masticar chicle o tabaco, mientras esté en las áreas de producción.
Accidentes: Los suministros de primeros-auxilios, se encuentran en o cerca de las áreas de trabajo. Su supervisor le dirá dónde puede encontrar los suministros de primeros-auxilios, en su área. Cualquier artículo, incluso las cosechas, que sean contaminados con sangre, fluidos del cuerpo, o desechos del cuerpo, deben de ser destruidos o puestos en los recipientes designados para la basura. El equipo que ha sido expuesto a la sangre, fluidos del cuerpo o desechos del cuerpo, debe de ser limpiado. Informe a su supervisor de cualquier incidente para asegurar que los artículos contaminados, sean manejados para así disminuir la exposición y que sean tirados apropiadamente.
Su Salud: Si se siente enfermo, avísele a su supervisor. Usted también debe informarle a su supervisor, si tiene una herida abierta, sarpullido, o llaga en el cuerpo. Si, en la opinión de su supervisor, es probable que usted pueda exponer a otros empleados o cosechas a una condición insalubre, le dirán que no trabaje por el resto del día. También, tendría que entregar a su supervisor un informe médico indicando que después de una enfermedad, usted puede regresar a trabajar.
Visitas: Las visitas que no son empleados, no pueden estar en áreas de trabajo. Visite con ellos fuera de las áreas de producción de la cosecha.
Cooperación: El Seguir estos simples procedimientos pero importantes, nosotros podemos asegurar a nuestros clientes que ellos están recibiendo alimentos seguros y saludables de nuestra compañía.
Offer Letters: Traps for the Unwary
(Part one of a two-part article)
Two recent decisions by the California Court of Appeal demonstrate the need for employers to be cautious about the representations they make in oral and written offers of employment. Seemingly harmless representations may lead a court to find an implied covenant not to terminate an employee except for good cause, even when the employer's offer letter expressly states the employment is "at will." Moreover, such representations may support a claim for fraud, exposing the employer to both actual and punitive damages.
The Dore Decision: In an unpublished opinion of the Second Appellate District, Dore v. Arnold Worldwide, Inc., the court reversed a grant of summary judgment to the employer on plaintiff's claim for breach of an implied covenant not to terminate except for cause, even though the offer letter contained "at will" language. In Dore, the offer letter to the plaintiff stated: "[Y]our employment with [the Company] is at will. This simply means that [the Company] has the right to terminate your employment at any time just as you have the right to terminate your employment with [the Company] at any time."
The court noted the first sentence, standing alone, would have sufficed to bar any claim of an implied covenant not to terminate except for cause, notwithstanding any oral representations which may have been made to the employee. In the court's view, the term "at will" means the employment may be terminated at any time with or without cause as a matter of law. However, the court held the language of the second sentence, and particularly the words, "This simply means . . . at any time," redefined the at-will language in the first sentence, because it omitted from the usual definition of "at will" the proviso the employment could be terminated "with or without cause."
Moreover, because the contract, even if fully integrated, was "silent as to cause for termination," the plaintiff was allowed to introduce evidence outside the contract in support of his implied covenant claim, such as the existence of a confidentiality and non-compete agreement and oral statements implying his employment would be of long duration.
In finding a triable issue of fact, the court further relied upon language in the offer letter stating, "You will have a 90 day assessment with your supervisor at which time you will receive initial performance feedback. . . . After your assessment is complete, you and your supervisor will have the opportunity to discuss consideration for being named an officer of [the Company]." The court held this language reasonably could be construed by a jury to have established a "probationary period" indicative of an intent to terminate only for cause after 90 days. This interpretation demonstrates that virtually any promise of promotion or job security after an introductory period of employment may be construed as a "probationary period" supporting an implied covenant claim.
Finally, the Dore court permitted the plaintiff's claim for intentional misrepresentation (fraud) to proceed to trial. The court noted the employer's oral statements assuring plaintiff he would be a member of the employer's "family" and would "play a critical role in growing the agency" could reasonably have led the plaintiff to believe he would continue to be employed for so long as he performed his job adequately, particularly where the people he interviewed with had all been with the company for a minimum of ten years. Even the employer's representations regarding plaintiff's opportunities for promotion were found to be relevant to show the company was aware plaintiff would be giving up secure employment in reliance upon the company's offer.
The Agosta Decision: In a published decision, the Fourth Appellate District in Agosta v. Astor took a more measured approach, finding the existence of any "at will" language in a written contract of employment signed by the employee would suffice to defeat an implied covenant claim. By definition, "at will" means "with or without cause." Unlike the Dore court, the Agosta court held no extrinsic evidence was admissible to vary the "at-will" term of the employment agreement, even if the agreement was not integrated (i.e., contained a clause precluding any other agreement between the parties). The court correctly reasoned there can be no express contract term and implied contract term, each embracing the same subject matter, but requiring different results.
On the other hand, the court drew a sharp distinction between "at will" employment, which refers only to the right to terminate, and intentional misrepresentations made to induce the candidate to enter into the employment relationship in the first place. As the court explained, "an 'at-will' employer does not have carte blanche to lie to an employee about any matter whatsoever to trick him or her into accepting employment." Fraudulent inducement is actionable whether the employee is terminated or not.
New Federal OT Rules Have Little Impact on CA Employers
The U.S. Department of Labor (DOL) last month issued final revised regulations on overtime eligibility for "white-collar" workers under the Fair Labor Standards Act (FLSA). Those changes, however, affect private employers and employees in California only minimally, if at all. That's because California has more-restrictive standards under the state Labor Code and orders of the Industrial Welfare Commission (IWC), and employers must comply with the stricter of the federal or state standards. For example,
For example, the federal regulations require only that exempt functions be an employee's primary job duties; the employee need not spend more than half of his time doing them. In contrast, an employee under California's rules must spend more than half of his time performing exempt tasks to be exempt.
For an employee in California to be exempt from overtime and other provisions of the applicable IWC order, the employee's employer must determine the employee meets the criteria specified in section one of that order.
Find answers to frequently asked questions about overtime pay in California on the state Division of Labor Standards Enforcement Web site at: http://www.dir.ca.gov/labor_law.html.
For information on federal overtime rules, visit the U.S. Dept. of Labor Web site.
Employers can review and download the IWC wage order applicable to their industry from the Department of Industrial Relations workplace postings page.
Employers can review the full text of the new rules on the DOL website's special website (FairPay) at:
http://www.dol.gov/esa/regs/compliance/whd/fairpay/main.htm.
A helpful PowerPoint presentation that explains the new rules in detail is available at:
http://www.dol.gov/esa/regs/compliance/whd/fairpay/presentation.ppt.
Central Valley Grower Accused of Sex Harassment
A Central Valley Grower has been accused of sexual harassment which again highlights the growing trend of in agriculture. The lawsuit was filed by the U.S. Equal Employment Opportunity Commission.
The lawsuit is the ninth the agency has filed in the past three years against agricultural employers. The EEOC, 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," said Joan Ehrlich, director of the San Francisco District. 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 manager at the company's storage facility sexually harassed an employee until she felt compelled to resign.
The agency reported settlements of sexual harassment cases that included these:
* A $200,000 settlement for Latina farmworkers employed a coastal grape grower and vineyard management company in King City.
* A $150,000 settlement with another Central Valley farm in Bakersfield on behalf of Latina packinghouse workers.
* A $1.9 million settlement with a Salinas lettuce grower, on behalf of Latina farmworkers in Salinas and Yuma, Ariz.
To help protect themselves, growers should take three actions. These are:
1. Develop and disseminate a company sexual harassment policy.
2. Instruct employees and management personnel (including forepersons and supervisors) about the company's sexual harassment policy.
3. Assign a high-level employee to oversee the sexual harassment policy.
4. Develop and disseminate a sexual harassment policy: California Government Code section 12950 requires employers to disseminate to its employees a sexual harassment information sheet written by the state Department of Fair Employment and Housing (DFEH) or an equivalent information sheet written by the employer.
Essentially, the information sheet becomes the company's sexual harassment policy. A copy of the sheet provided by DFEH can be obtained from the FELS web site under "Forms/Publications - State." The form number is DFEH 185.
Further, the law requires employers to post the DFEH "no discrimination" poster (DFEH 162) in a prominent and accessible location in the workplace.
An EEOC publication states "[E]mployers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains."
5. Instruct employees and management personnel about the company's sexual harassment policy: Employers can be held liable for harassment of other employees by a co-employee, a supervisor and even a non-employee.
There are two types of sexual harassment: "hostile work environment" and "quid pro quo" ("this for that") harassment.
A hostile work environment interferes with an employee's work performance or creates an intimidating or offensive work environment. The employer is responsible for acts of non-supervisory sexual harassment where the employer (or its supervisory personnel) knows or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action.
Where the harasser is a supervisor, the sexual harassment can take the form of a "quid pro quo" and/or a hostile work environment. In a "quid pro quo" situation, the harassed employee is threatened with a loss of benefits or of her job itself unless the employee complies with the supervisor's sexual advances.
An employer is always liable for a supervisor's harassment if it culminates in a tangible employment action. However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense. That defense includes two necessary elements: (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
This is why instruction/training is so important. By training its supervisors and employees about sexual harassment, a company establishes an affirmative defense. The company can then show it took reasonable steps to prohibit sexual harassment and communicated to employees the company's complaint procedures.
6. Assign a high-level employee to oversee the sexual harassment policy: Because of the complexities of sexual harassment and expertise involved in investigating complaints, a company should assign a single high-level employee to handle sexual harassment issues for it. This will accomplish two objectives.
First, assuming the company's policy states that all complaints are to be directed to a specific person, it will eliminate the possibility of an employee discussing a problem with an inexperienced management employee who might overlook the potential severity of the complaint.
Second, the assigned person will be better equipped to document the compliant, conduct the appropriate investigation and recommend the appropriate resolution.
7. Sexual Harassment Training: Posted on the FELS Web site is Safety Sheet that reviews the basics of sexual harassment. The Safety Sheet is a simple training program for employees and supervisors regarding sexual harassment and violence in the workplace. A link to the Safety Sheet is in the "Newsletter Index", under "Safety Sheets."