2007 Annual AgSafe Conference Starts Jan. 31

The 2007 Annual AgSafe Conference is set for Wed., Jan. 31, through Fri., Feb. 2, at the Embassy Suites Hotel and Conference Center on Monterey Bay in Seaside.

Presented by AgSafe, the conference is one of the premier events allowing California growers, packers, processors and others in related businesses to collectively address the most important safety issues facing the state's agricultural industry.

The upcoming conference will offer more than 80 workshops, seminars and training sessions as part of the 2007 event, reported AgSafe Director Kimberly Naffziger. In addition to the English workshops, more than 30 workshops will be presented in Spanish. More than a dozen specialists in various agricultural-safety issues will provide information and training during the three-day event.

The conference is designed to benefit participants representing all areas of agriculture and agribusiness, including safety professionals, production managers, supervisors, chemical handlers, machine operators and company owners. It typically draws more than 500 participants from throughout California.

For more information about the conference, call AgSafe at (559) 278-4404. Additional information, including detailed descriptions of the workshops, is available on the AgSafe Web site at http://www.agsafe.org/conference.htm.

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Garnishments and No-Match Social Security Numbers

A side effect of the Social Security Number (SSN) no-match problem is the confusion created by garnishments issued by courts or taxing agencies. Often the person whose wages are being garnished is located somewhere else and may even have a different name. The only common identifier is the SSN.

Employers must be careful in handling garnishment notices. An employer that ignores a garnishment notice could be liable for the wages not deducted.

Here are some tips on how to handle this situation:

1. Call the agency issuing the garnishment. Describe the discrepancy and why you think the person you employ is not the garnishment's true target. Ask the agency for instructions on how to proceed.

2. Follow the agency's instructions, even if you think they might not be appropriate.

3. Tell your employee about the problem. Instruct him to resolve the issue with the Social Security Administration and the agency issuing the garnishment. It's best to notify the employee in writing and to receive from the employee a written acknowledgment that he received the notification.

Here's a sample letter for that purpose. FELS subscribers wanting to receive the policies in Spanish may either fax their request to (916) 561-5696 or e-mail it to fels@cfbf.com.

LETTER TO EMPLOYEE ABOUT PROBLEM WITH PERSONAL DATA

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OSHA Issues Guidance Document for Avian Influenza

The federal Occupational Safety and Health Administration (OSHA) has published a new safety-and-health guidance document intended for employers and employees in addressing the occupational hazards associated with avian influenza and exposure to infected birds.

The new document updates the guidance on avian influenza issued by OSHA in 2004. The document provides separate recommendations for poultry employees, those who handle other animals, laboratory employees, healthcare personnel, food handlers, travelers, and U.S. employees stationed abroad.

The primary focus of the guidance document is on proper hygiene, including use of gloves and hand washing, as well as respiratory protection for those who work with infected animals or individuals. The guidance also includes links to helpful Web sites containing additional information. The document also includes a list of technical articles and resources, including a history of flu pandemics, symptoms and outcomes of various strains of the avian flu, a summary of the Animal and Plant Health Inspection Service bird importation regulations, and details on the transmission of the virus.

A copy of the 76-page document is available in English and Spanish at http://www.osha.gov/OshDoc/data_AvianFlu/avian_flu_guidance_english.pdf and http://www.osha.gov/OshDoc/data_AvianFlu/avian_flu_guidance_spanish.pdf.

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New Congress To Boost OSHA Oversight

As the 109th Congress adjourns, focus has shifted to Jan. 2007, when the new Democratic-led 110th Congress takes the majority.

Congressman George Miller (D-CA) incoming chairman of the House Education and the Workforce Committee, plans to conduct "comprehensive, stepped-up oversight to learn what actions can be taken to reduce the number of workplace fatalities and injuries," according to Tom Kiley, committee Democratic communications director.

"We also want to ensure that government agencies - including OSHA and MSHA - are operating effectively and enforcing the law," Kiley said. Equally aggressive oversight is expected in the Senate Health, Education, Labor and Pensions Committee, which will be led by Sen. Edward Kennedy, D-MA.

(Source: National Safety Council)

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Use Interactive Process to Avoid Disability Claims

Dealing with workers' compensation injuries can pose a potential for litigation beyond the workers' compensation realm. Employers can run afoul of federal and state disability-discrimination statutes by failing to consider them. Employers dealing with workers' compensation cases must be careful to ensure they satisfy all of their duties under the California Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA).

The California Court of Appeal has ruled that where a California employer merely perceives that an employee has a disability, that employer has two duties under the FEHA, even though the employee does not actually have a disability. First, the employer has a duty to engage in an "interactive dialogue" with the employee about the employee's limitations and about the need for potential accommodation. The employer also has a duty to provide reasonable accommodation to the employee.

The case, Gelfo v. Lockheed Martin Corp., involved an employee with a work-related back injury. Eventually, his doctor said he was "permanent and stationary," with a 43% disability rating, and that he could not perform his regular job. The employee went through a retraining program for a different job with the employer, and nobody in the retraining program knew about his limitations.

When he completed the program, the employer offered him a job, but then withdrew the offer when it realized that his limitations would not allow him to do the new job. The employee insisted he had recovered from his injury and could do the new job without any accommodation, but the employer did not offer him the job.

The employee sued, saying that the employer "perceived" him as being disabled and failed to engage in an interactive process to determine if there were any reasonable modifications that could be made that would allow him to do the job.

The court found that the employer had violated the FEHA by failing to engage in the interactive process with an employee that it perceived as being disabled. The employer had actually gone back and forth with the employee a bit, discussing his limitations, before deciding he could not do the work in question. Despite that, the court found that the employer had not fulfilled its obligation to engage in an interactive process.

What This means For Employers: Employers must remember that satisfying their obligations under workers' compensation law does not necessarily end their legal obligations to injured employees. Employees commonly emphasize the extent of their disability to maximize their workers' compensation benefits, only to insist they can work without restriction when they need to return to work.

No matter whether an employee is actually disabled, or whether the employer simply thinks the employee is disabled, the employer must engage in an interactive process with the employee to determine what, if any, limitations the employee has, and what, if any, accommodations are necessary to enable the employee to perform a job's essential functions. Even if the employee is not disabled, the employer must make reasonable accommodations for the employee's perceived disabilities.

This decision separates the state FEHA from the federal ADA. In Kaplan v. City of North Las Vegas, the Ninth U.S. Circuit Court of Appeals ruled that the ADA does not require reasonable accommodation for employees who are not actually disabled. Nonetheless, California employers must carefully document their efforts to accommodate employees with potential disability issues and must be sure no reasonable accommodation is available if they refuse to accommodate the employee.

One of Gelfo's most important lessons for employers is the fact that there is a distinction between a "disability" under the workers' compensation system and a "disability" for purposes of the FEHA. The term "disability" does not mean the same thing in those separate contexts, and the fact that a doctor decides that an employee is disabled and unable to perform his job for purposes of workers' compensation does not mean the employer can skip the interactive process. At that point, it is necessary to sit down with the employee, discuss his limitations, discuss the essential functions of the job, and discuss if there are any reasonable accommodations that might allow the employee to perform the job. As always, employers should document all aspects of the interactive process.

(By Patrick Moody, Attorney, Barsamian, Saqui & Moody, 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.)

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Minimum-Wage Hikes Have Several Side Effects

With the minimum wage rising to $7.50 per hour this Jan. 1, and then to $8 per hour on Jan. 1, 2008, employers must consider how they will adjust. Some coping strategies are explored later in this article.

History: To see the history of minimum-wage increases in California, visit the Department of Industrial Relations Web site at http://www.dir.ca.gov/Iwc/MinimumWageHistory.htm.

Exempt Employees: The rate hikes will also affect employees who, to qualify for exemption from the state's overtime, minimum-wage and record-keeping requirements, must earn a monthly salary that is at least twice the minimum wage based on 40 hours of work in a workweek (in addition to performing "exempt-function" duties for most of their working time).

Meals and Lodging: Both state and federal laws allow employers to credit against their minimum-wage obligation the value of meals and lodging provided to employees. California law specifies limits for crediting the value of meals and lodging against an employer's minimum-wage obligation. Those limits will increase proportionately to the minimum-wage increases.

Where credit for meals or lodging is used to meet part of the employer's minimum-wage obligation, the amounts so credited may not be more than the following:

Meals or lodging may be credited against the minimum wage only upon a voluntary written agreement between the employer and the employee. Further, where an employer, as a condition of employment, requires an employee to live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed above for lodging.

Posters: The Industrial Welfare Commission (IWC) has mailed to employers IWC Notice MW-2007, which can be downloaded at http://www.dir.ca.gov/IWC/WageOrderIndustries.htm. Employers must post MW-2007 next to the IWC order(s) applicable to their type of operation. To determine which IWC order(s) to post, see the document Which IWC Order? Classifications at http://www.dir.ca.gov/dlse/WhichIWCOrderClassifications.PDF.

FELS has updated its laminated "Official Notices" posters to include MW-2007 in addition to other revised state and federal notices. The new posters can be ordered on the FELS Web site at http://www.fels.org/Posters.htm.

Subminimum Wages: Before implementing any subminimum wage rate as noted below, contact an attorney knowledgeable in this area of the law. Due to differences between federal and California subminimum rate provisions, ensure that employees qualify under both.

California exceptions that apply to certain agricultural employees include:

1. Learners (employees in occupations in which they have had no previous similar or related experience) may be paid a subminimum wage during their first 160 hours of employment. Learners may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel.

2. A person whose earning capacity is impaired by physical disability or mental deficiency may be paid less than the minimum wage, if the employer first obtains a special license from the state Division of Labor Standards Enforcement.

3. A parent, spouse, child or legally adopted child of the employer is not subject to the minimum-wage laws.

4. Generally, minors must be paid wages on same basis as adults. Employers may pay a subminimum wage to adult and minor employees who qualify as "learners" as specified under the IWC orders. See item 1 above.

Adjusting Higher-Paid Employees' Wages: Minimum-wage hikes affect not only employees compensated at minimum wage. They also affect employees higher on the wage scale. This is sometimes called the "compression effect."

Employees who wage rate is, say, $1 above the old minimum wage may feel wronged if a minimum-wage boost suddenly causes the wage rate of lower-paid workers to be just pennies below their own. Employers thus should also consider raising the wages of employees earning more than the new minimum wage.

The increases don't need to be in the same proportion as the increases made at lower wage levels. The more a wage rate exceeds the new minimum wage, the smaller the increase should be to satisfy higher-paid employees.

Suppose, for example, Joe's pay rate was $6.75 per hour and Maria's was $8.10 per hour at the end of 2006. In the wake of the minimum-wage hike to $7.50 per hour on Jan. 1, Joe's rate must be raised by at least 75 cents to that rate, while for equity's sake Maria's rate should be raised by perhaps only 45 cents to $8.55 per hour.

One practical rule of thumb: For every 10% an employee's wage exceeds the old minimum wage, the raise differential is reduced by 20%. Here is a chart to illustrate this principle:

% Above Min. Wage	Old Wage Rate Per Hr.	New Wage Increase in Cents per Hr.	New Wage Rate per Hr.
$0	$6.75	$0.75	$7.50
10%	$7.43	$0.60	$8.03
20%	$8.10	$0.45	$8.55
30%	$8.78	$0.30	$9.08
40%	$9.45	$0.15	$9.60
50.%	$10.13	$0.00	$10.13

This scale, of course, is only a suggestion. Nonunionized employers are free to raise wages above the minimum wage at their pleasure, or not at all.

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Sexual-Harassment Prevention Training Regulation Finalized

The California Fair Employment and Housing Commission (FEHC) on Nov. 14 adopted its final regulation under AB 1825. That piece of legislation required employers with at least 50 employees to provide supervisors with at least two hours of sexual-harassment prevention training every two years.

The final regulation is posted at http://www.fehc.ca.gov/pub/pdf/11-14-06_reg.pdf.

On Dec. 14, the FEHC submitted the regulation to the Office of Administrative Law (OAL) for review. The OAL has 30 days to review and either approve it or disapprove it and require changes to it. Once approved, it will be sent to the Secretary of State, and it will take effect 30 days later. Thus, the FEHC estimates that the regulation, if approved by OAL without changes, will take effect on or about Feb. 14.

Despite the lack of a final regulation implementing its provisions, AB 1825, which was enacted in 2004 and took effect on Jan. 1, 2005, required initial training to be completed by Jan. 1, 2006. Accordingly, employers that provided initial training in 2005 will be training supervisors again in 2007. Thus, they should ensure their training programs comply with the new regulations.

The regulation defines various acceptable forms of "effective, interactive training" including "classroom" training, "e-learning," and "webinars." No matter the form of the training, the instruction must include questions that assess learning, skill-building activities that assess the supervisor's application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training.

The regulation also clarifies the qualifications that a trainer must possess. A "qualified trainer" is a person who, either through formal education and training or substantial experience can effectively lead in-person training sessions or webinars.

A trainer who is a "subject matter expert" - defined as one who has a legal education and practical experience, or substantial practical experience in training in harassment, discrimination and retaliation prevention - may answer questions and provide immediate feedback to participants. Otherwise, a "subject matter expert" must be available to answer questions and provide feedback either during the training session or within two business days after it.

While Government Code section 12950.1 requires employers to provide at least two hours of harassment training every two years, the regulation clarifies that the training need not be completed in two consecutive hours as long as classroom training or webinars are in segments of at least 30 minutes.

Employers must retain certain documentation of the training they provide for at least two years.

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Mandatory-Mediation/Forced-Contracts Law Upheld

Over the strong opposition of farm groups, then-Gov. Gray Davis in Sept. 2002 signed legislation authorizing a so-called mediator to set the terms of a labor contract between an agricultural employer and a union representing the employer's workforce.

The law was the first major change to the state's Agricultural Labor Relations Act, which in 1975 gave California farm workers the right to organize and bargain collectively with farm employers. The new law also made California the first state to enact such a law, whose provisions are nowhere to be found in the National Labor Relations Act, upon which the ALRA was modeled.

After the new law took effect, the battle over it moved from the Legislature to the courts.

The Hess Collection Winery, seeking to get the law thrown out, was supported by several leading farm groups, including California Farm Bureau Federation and Western Growers Association, in a brief written and submitted by Pacific Legal Foundation (PLF) of Sacramento. On the other side, the United Farm Workers Union joined the United Food and Commercial Workers in defending the law.

In July, the 3rd District Court of Appeal in Sacramento, in a 2-1 decision, ruled against the winery and farm groups. The court upheld the law and a mediator's decision on the winery workers' contract. The state Supreme Court declined to hear the case, said Randall Roeder, a San Francisco attorney who had represented the winery.

Significantly, unions have recently used the threat of binding interest arbitration, as the appellate court termed it, to secure labor contracts with farm employers. According to one union representative, "It's a vehicle... to sit down and negotiate something equitable for both parties."

Jim Bogart, president of Grower Shipper Association of Central California, said he was disappointed by the decision. The Salinas association was one of the farm organizations that joined in the brief PLF filed in the winery case. "My reaction is that I don't like an outside third party deciding what is going into a contract between two other parties," Bogart said.

Bogart said the court decision, unless overturned, may make binding interest arbitration a fact of life in farm-labor contract negotiations. "It's there, but it hasn't been used that frequently," he said. "It could be that they have been able to negotiate contracts, or it may be the unions haven't utilized this tool."

(Primary Source: Larry Parsons, Monterey Herald, Nov. 29, 2006)

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Seatbelts Required for Farm Labor Busses

The Legislature in 1999 mandated that all farm labor vehicles, including buses, have a seatbelt for each passenger position. Then in 2000, AB 602 was enacted, which exempted buses from the seatbelt requirement until Jan. 1, 2007, unless exempted by California Highway Patrol regulations.

Many in the industry assumed the CHP would exempt school-bus type vehicles after studying the issue and put the issue aside. Unfortunately, the CHP did not exempt school buses in its subsequent regulation.

According to the CHP, seatbelts will be required on all farm labor buses starting Jan. 1. The CHP is relying on its own regulation and Vehicle Code section 31405, subdivision (e)(2), which provides: "On or after January 1, 2007, any farm labor vehicle… (including a "bus" carrying 16 or more persons) shall be equipped at each passenger position with a seat belt assembly unless exempted under [Department] regulations." According to the CHP, no regulation exempts farm labor buses.

The regulation issued by the CHP under VC section 31405 merely restates the technical requirements for seats and seatbelts in farm labor vehicles. The regulation, which is in 13 California Code of Regulations section 1270.3, does not exempt buses.

(Source: Terry O'Connor, a partner in the law firm Noland, Hemerly, Etienne & Hoss, as reported in the Grower Shipper Association Newsletter)

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Defendants Sentenced for Defrauding UI

U.S. Attorney McGregor W. Scott announced that Enrique Caratachea Valencia, 26, and Jose Luis Caratachea Valencia, 32, both from Fresno, were sentenced by U.S. District Court Judge Oliver Wanger to 33 months and 27 months, respectively, for defrauding the State of California, Employment Development Department (EDD), of more than $600,000 in unemployment insurance benefits. The defendants pled guilty to eight counts of mail fraud on August 28, 2006.

This case is the product of an extensive investigation by the U.S. Department of

Labor, Office of Inspector General, Labor Racketeering and Fraud Investigations and the State of California, Employment Development Department.

According to Assistant U.S. Attorney Stanley A. Boone, who prosecuted the case, the scheme to defraud EDD covered the period from Jan. 2002 to Sept. 2005 and involved the use of more than 50 individual identities. The individuals had no idea that their identities

were being used to file fraudulent unemployment insurance claims with the EDD.

As part of their sentence, the defendants were ordered by Judge Wanger to pay restitution to the EDD in the amount of $647,935.

To learn more about fighting fraud, visit www.edd.ca.gov/uirep/de2370.pdf

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Use-It-Or-Lose-It Versus Accrual-Cap Vacation Policies

Question: Our employee-handbook policy caps vacation-time accruals. California law, I understand, precludes a use-it-or-lose-it vacation policy. How does a cap, which prevents an employee from accruing any more vacation when at the cap, differ in any practical way from a use-it-it-or-lose-it vacation-time policy?

Answer: An accrual-cap provision in an employer's vacation policy does not differ in any practical way from a use-it-or-lose-it provision. But there's a crucial legal difference: An accrual-cap provision does not result in a forfeiture of earned vacation time, which is a form of wages that cannot by law be forfeited. Rather, the employee does not earn additional vacation whenever his or her accrual is at the cap.

In contrast, a use-it-it-or-lose-it policy results in an impermissible forfeiture of earned vacation time (i.e., wages) whenever the accrued time is at the specified limit. The employee continues to earn vacation time to replace the forfeited time, thus keeping the accrual at the limit. Again, it's the forfeiture of earned vacation time that the law forbids.

The California Court of Appeal noted and discussed the legal difference in its 1992 opinion in Boothby v. Atlas Mechanical, Inc.:

Accordingly, [California Labor Code] section 227.3 and Suastez [v. Plastic Dress-Up Co.] prohibit any forfeiture of a private employee's vested vacation time. . . . On termination, an employee must be paid in wages for all vested but unused vacation unless a collective bargaining agreement provides for some other form of compensation. . . When vacation is earned during a period of employment (for example, two weeks of paid vacation annually) and the employee does not complete the period, section 227.3 requires compensation for a pro rata share of the unused vacation based on the percentage of the period completed.

Boothby, however, did not necessarily continue to earn and accumulate vacation as a matter of law. As they did in the trial court, the parties, in their arguments on appeal, overlook the subtle but critical difference between two different types of vacation policies, both of which, on their face, prevent accumulation of vacation time from year to year.

A "use it or lose it" vacation policy provides for forfeiture of vested vacation pay if not used within a designated time, while a "no additional accrual" vacation policy prevents an employee from earning vacation over a certain limit. Although both policies achieve virtually the same result, the former is impermissible and the latter permissible.

This distinction is consistent with Suastez. Because vacation in an amount established by the employment agreement is deferred compensation for services rendered, the right to paid vacation vests as the employee labors. It is nonforfeitable. However, if the employment agreement precludes an employee from accruing more vacation time after accumulating a specified amount of unused vacation time (a "no additional accrual" policy), the employee does not forfeit vested vacation pay. A "no additional accrual" policy simply provides for paid vacation as part of the compensation package until a maximum amount of vacation is accrued. The policy, however, does not provide for paid vacation as part of the compensation package while accrued, unused vacation remains at the maximum. Since no more vacation is earned, no more vests. A "no additional accrual" policy, therefore, does not attempt an illegal forfeiture of vested vacation.

As stated in Henry v. Amrol, Inc. . . ., the law does not prevent an employer from "announcing a level beyond which additional vacation time would no longer accrue. This would prevent additional vacation from vesting after a certain level had been reached. However, once vacation time has vested, it cannot be divested. There is an obvious difference between a policy which prevents additional vacation time from accruing after a certain amount of such time accrues and a policy which would divest an employee of already accrued vacation time."

(Source: Carl Borden)

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Employee-Housing Resources

Here are links to employee-housing resources:

California Department of Housing & Community Development - Employee Housing Regulations:

http://www.hcd.ca.gov/codes/eh/ehregst25.htm

Cal/OSHA regulations are at:

http://www.dir.ca.gov/Title8/3350.html

http://www.dir.ca.gov/title8/3361.html

http://www.dir.ca.gov/title8/3362.html

Federal OSHA housing regulations: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title29/29cfr1910_main_02.tpl (Look under §1910.142 Temporary labor camps.)

Federal Department of Labor (DOL) housing rules (MSAWPA):

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title29/29cfr500_main_02.tpl (Look under: Subpart D-Motor Vehicle Safety and Insurance for Transportation of Migrant and Seasonal Agricultural Workers, Housing Safety and Health for Migrant Workers)

A comparison of federal and state regulations are at:

http://www.fels.org/data/Forms/dhcd_dol.pdf

California Housing and Community Development Employee Housing Act poster: http://www.fels.org/data/forms/HCD 206.pdf

Federal DOL (MSAWPA) housing poster: http://ucce.ucdavis.edu/files/file library/742/13751.pdf

Sample housing agreement: http://www.fels.org/data/forms/houseagr.pdf

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Dairy Job Descriptions Made Easy

According to Gregorio Billikopf Encina, University of California Farm Advisor, Richard Stup, Penn State Dairy Alliance HR specialist, has provided dairy farmers an excellent tool to quickly generate job descriptions for employees.

Just fill in the blanks and a job description that you can print is then generated. It is suggested to look at each of the possible categories first and make up a pretend job description, just to get a sense of the capabilities of the free program offered.

The job-description program is located at: http://dairyalliance.psu.edu/hr/job description/

Gregorio says the job-description program can even be used by non-dairy producers to produce easily adapted job descriptions.

(Source: Gregorio Billikopf Encina, University of California)

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Travel-Time Dispute Settled

The recent decision in Medrano v. D'Arrigo Bros. and the settlement of the underlying dispute didn't plow any new legal ground with respect to employee-transportation issues. The issue of treating as hours worked time spent by employees traveling at the employer's insistence in employer-provided vehicles was answered by the California Supreme Court in Morillion v. Royal Packing in 2000.

In Morillion, the court held that an employee's working time starts when he reports at a time and place specified by his employer so as to be picked up and transported to a field in an employer-provided vehicle as required by his employer. The employee's working time ends when he is dropped off by the employer-provided vehicle at the pickup point or some other place. All time in between (except for an off-duty meal period of at least 30 minutes) is hours worked and compensable.

D'Arrigo Bros.'s problems stemmed from its reliance for a couple of years on the prior contrary opinion of the California Court of Appeal in Morillion, which had held that working time started and ended when employees arrived at and left the fields. After the state Supreme Court reversed that Court of Appeal opinion, former D'Arrigo Bros.'s employees sued their former employer for having failed to count as hours worked the time they had spent traveling as required by their employer on employer-provided transportation from and to designated pickup/drop-off points.

In a 2004 ruling, U.S. District Court Judge Jeremy Fogel in Medrano v. D'Arrigo Bros. applied the Morillion v. Royal Packing holding. No surprise there. But he went on to rule that employees were nonetheless not due additional wages if their piece-rate earnings were sufficient to cover the employer's minimum-wage obligation for all hours worked in each workweek even after accounting for the additional travel time that had previously not been counted as hours worked. Time records were lacking, so the judge ordered a special master to determine the extent to which individual employees were underpaid.

The settlement, under which the Salinas-based vegetable grower must pay an estimated 3,000 workers as much as $3.5 million, resolves that issue.

(Source: Carl Borden)

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Cal/OSHA Record-Keeping Made Easy

Every employer with 10 or more employees at peak employment during the last calendar year must maintain Cal/OSHA records. Cal/OSHA has developed a separate Web site to help employers comply with this requirement.

Besides hosting the required forms, the Web site has an FAQs (frequently asked questions) section, "What's New" page, and Microsoft Excel spreadsheets to automate the record-keeping chore. The site is located at: http://www.califor niaosha.info. The Cal/OSHA spreadsheets are at http://www.dir.ca.gov/dos h/dosh_ publications/CalOSHARecordkeepForms.xls.

Here are samples of the FAQs from the Cal/OSHA Web site:

Determination of work-relatedness:

Question: An employee experienced an injury or illness in the work environment before they had "clocked in" for the day. Is the case considered work related even if that employee was not officially "on the clock" for pay purposes?

Yes. For purposes of Cal/OSHA record keeping, injuries and illnesses occurring in the work environment are considered work-related. Punching in and out with a time clock (or signing in and out) does not affect the outcome for determining work-relatedness. If the employee experienced a work-related injury or illness, and it meets one or more of the general recording criteria under section 14300.7, it must be entered on the employer's Cal/OSHA 300 log.

General recording criteria

Question: If a physician or other licensed health care professional recommends medical treatment, days away from work or restricted work activity as a result of a work-related injury or illness, can the employer decline to record the case based on a contemporaneous second provider's opinion that the recommended medical treatment, days away from work or work restriction are unnecessary, if the employer believes the second opinion is more authoritative?

Yes. However, once medical treatment is provided for a work-related injury or illness, or days away from work or work restriction have occurred, the case is recordable. If there are conflicting contemporaneous recommendations regarding medical treatment, or the need for days away from work or restricted work activity, but the medical treatment is not actually provided and no days away from work or days of work restriction have occurred, the employer may determine which recommendation is the most authoritative and record on that basis. In the case of prescription medications, Cal/OSHA considers that medical treatment is provided once a prescription is issued

Question: Are work-related cases involving chipped or broken teeth recordable?

Yes, under section 14300.7(b)(7), these cases are considered a significant injury or illness when diagnosed by a physician or other health care professional. Work-related fractures of bones or teeth are recognized as constituting significant diagnoses and, if the condition is work-related, are appropriately recorded at the time of initial diagnosis even if the case does not involve any of the other general recording criteria.

Question: How would the employer record the change on the Cal/OSHA 300 Log for an injury or illness after the injured worker reached the cap of 180 days for restricted work and then was assigned to "days away from work"?

The employer must check the box that reflects the most severe outcome associated with a given injury or illness. The severity of any case decreases on the log from column G (Death) to column J (Other recordable case). Since days away from work is a more severe outcome than restricted work the employer is required to remove the check initially placed in the box for job transfer or restriction and enter a check in the box for days away from work (column H). Employers are allowed to cap the number of day's away and/or restricted work/job transfer when a case involves 180 calendar days. For purposes of recordability, the employer would enter 180 days in the "Job transfer or restriction" column and may also enter 1 day in the "Days away from work" column to prevent confusion or computer related problems.

Question: Must the employer record a work-related injury and illness if an employee experiences minor musculoskeletal discomfort, the health care professional determines that the employee is fully able to perform all of his or her routine job functions, but the employer assigns a work restriction to the injured employee?

A case would not be recorded under section 14300.7(b)(4) if 1) the employee experiences minor musculoskeletal discomfort, and 2) a health care professional determines the employee is fully able to perform all of his or her routine job functions, and 3) the employer assigns a work restriction to that employee for the purpose of preventing a more serious condition from developing. If a case is or becomes recordable under any other general recording criteria contained in section 14300.7, such as medical treatment beyond first aid, a case involving minor musculoskeletal discomfort would be recordable.

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