June 2007 FELS ® Newsletter

President Bush on May 25 signed into law H.R. 2206. While containing funding for the war in Iraq, the legislation has several other provisions, including a three-step boost in the federal minimum wage, now $5.15 an hour. Under the measure, the federal minimum wage will rise as follows:

                July 24, 2007: $5.85 an hour
                July 24, 2008: $6.55 an hour
                July 24, 2009: $7.25 an hour

While the California minimum wage is higher than even the final hike of the federal minimum wage, California employers will need to post the new rates nonetheless. According to Eduardo Huerta, U. S. Department of Lobar, Employment Service Administration, the new Fair Labor Standards Act Minimum Wage poster is scheduled to become available for public dissemination after July 24. Huerta believes other changes will be reflected in the new poster as well.

In the meantime, enclosed in this issue of FELS Newsletter are stickers reflecting the new federal minimum-wage rates that can be applied to poster #1 of the FELS Laminated Official Notices. The stickers can also be download from www.fels.org/find/#0706

The National Council of Agricultural Employers has provided President Bush’s statement on S. 1323, the Immigration Reform Bill. A link to that statement is available at the FELS Quick Finder website at www.fels.org/find/#0706.

The answer to a question from a FELS subscriber may be of interest to other subscribers as well. The subscriber asked whether an employer may lawfully require an employee to cover tattoos and to remove body-piercing jewelry. Associated with this question is: May an employer prohibit employees from wearing certain clothing or insignias on their clothing? And, may a company limit what an employee affixes to company-provided equipment, such as hard hats, employee name badges and vehicles?

Employers may institute reasonable dress and grooming standards. Standards may not discriminate against a person based on protected-class status, such race, religion or national origin. See Protected vs. Unprotected Classes below. In other words, an employer may not subject members of one protected class to an appearance rule while not applying it to members of another.

While this also holds true for sex-based appearance rules--that is, an employer may not impose a dress code on only one sex–an employer may impose a dress code for both sexes that specifies different attire for men and women based on "accepted community standards."

In California, women generally must be allowed to wear pants. (Govt. Code §12947.5.)

Employers must provide employees with a reasonable accommodation regarding religious dress and grooming requirements. An employer need not offer an accommodation that would result in undue hardship for the employer. An employer may maintain a reasonable dress standard that relates to a bona fide and identifiable business reason.

Employers generally may make employment decisions based on an employee's appearance such as size, facial features, hairstyle, cleanliness and tattoos. Very few legal prohibitions exist in this regard, even where these items do not directly relate to the employee's ability to perform the job.

In a broader context, the issue of limiting insignias or clothing may be controlled by discrimination rules.

Protected vs. Unprotected Classes: The issue of limiting or even prohibiting specific items can be broken down into two categories: (1) clothing or insignias that involve a lawfully protected class or activity and (2) those that don't.

For example, wearing a union campaign button or a symbol required by an employee's religion falls under the first category. This is because specific protections in law grant individuals the right to join or associate with a union or to adhere to religious beliefs. In these types of situations, an employer may need to accommodate the employee's desire or need to wear the item.

In contrast, wearing a sport team's insignia does is not protected. No law protects an employee from discrimination based on affiliation with a sports team.

Personal vs. Company Property: An employer may lawfully prohibit an employee from affixing to company property an insignia of any type. For example, employees may be prohibited from putting a union sticker on a company name badge or on a vehicle, as long as affixing other types of stickers to company property is similarly prohibited.

However, a blanket prohibition against wearing a union button on employee shirts may violate the employees' rights to associate with or promote a union for collective bargaining purposes. An employer could implement a policy prohibiting such activity if wearing a union insignia or button would adversely affect its business or where a ban is necessary to maintain employee discipline.

Protected Classes: Here is a partial list of protected classes that could affect an employer's ability to limit the wearing by employees of an insignia or an article of clothing: participation in union activity; race; color; religion (religious creed); sex; national or ethnic origin; ancestry; citizenship; physical or mental disability; martial status; sexual orientation; and political activity.

Protected-Class Issues: Even where a protected class or activity is involved, an employer may in some instances lawfully control what affected employees wear. In any event, an employer must have a legitimate business reason for doing so and be consistent in applying the rule.

Typically, courts balance an employer's interest in banning the wearing of an item against an employee's interest in wearing it.

For example, the wearing of union buttons and insignia is protected activity. This general rule, however, must be balanced against an employer's right to manage its business. An employer may be able to ban the wearing of union emblems only where the employer can show "special circumstances," such as maintaining production and discipline, safety, and preventing alienation of customers.

Similarly, an employer may need to accommodate an employee's religion-based need to wear an article of clothing. However, if the wearing of the article would interfere with safety or some other legitimate employer business interest, the employer may be able to ban the wearing of the article.

Non-Protected-Class Issues: While able to limit the wearing by employees of most types of clothing or insignias during work, employers should consider how such a ban might affect employee relations.

Take, for example, a broad ban on wearing baseball caps that display any type of logo, including of a popular local sports team. Some employees may become disgruntled because their employer is preventing them from showing support for "their" team.

However, letting employees wear the local team's emblem could set a precedent that would open the door for employees to wear logos of commercial products or of a competing sports team.

While the employer may lawfully prohibit employees from wearing other commercial or sports insignias, an employee denied that privilege may claim the denial is because he is in a protected class different from that of employees who wear the permitted emblem.

The atmosphere of the workplace is created in part by the personal appearance of employees. Employees must therefore exercise good taste and judgment in choosing their dress and appearance. Employees may not wear or otherwise display buttons, pins, insignias, emblems, logos or other symbols because those items may offend other company employees or customers.

An employee who, in the judgment of the employee's supervisor or other company representative, is dressed inappropriately or provocatively is sent home and directed to return to work in proper attire. The employee is not compensated for that time away from work.

An employee who has tattoos may be asked to conceal them by wearing long pants or a long-sleeve shirt. An employee with one or more body piercings may be asked to remove jewelry from the piercing(s) during working time.

Uniforms furnished by the company are not designed to be worn off its premises as one's personal, non-employment-related attire. Accordingly, they are not to be worn or carried off company premises without the approval of the employee's department head.

This is an overview of company policy on dress and grooming standards. An employee should ask the employee's department head for specific dress standards for that department.

The company complies with all legal requirements with respect to this policy. Where legally required, the company explores reasonable accommodation of an employee's specific grooming or dress requirements that might otherwise violate this policy.

This issue of the FELS Newsletter carries the first installment of Counselors’ Corner. This new recurring feature, by Anthony Raimondo and Michael Saqui of the law firm Saqui & Raimondo, Counselors to Management, answers employment-law questions posed by FELS subscribers. Due to space constraints, only one or two questions are answered in each monthly issue. Subscribers should submit questions by email to fels@fels.org.

Here is this month’s Counselors’ Corner question-and-answer on employee housing and ICE investigations.

Question on Housing: I have just fired an employee who occupied company housing. What are my options in getting him and his family out of the house? In the future, are there any advantages to charging rent for company-provided housing? Are there any advantages to providing the house as "employee housing" as opposed to renting it out to a non-employee?

Answer: It is very difficult to evict an employee from employer-provided housing. If the employee is considered a "tenant" under the law, he may be entitled to up 60 days' notice, depending on the interpretation of the tenancy, before the employer can act to evict him, and he may be able to drag out the process in court.

If the employee occupies the housing under a "license," the employer can immediately terminate the license, but there is a very practical problem of trying to remove someone who doesn't want to go.

The best way to remove the employee is to obtain the employee's agreement to vacate the premises. Talk to the employee about how much time he needs to pack up and go–most employees do not want to stay where they just got fired.

If you need to, offer the employee a cash payment in exchange for getting out by a certain date. With this payment, you can also secure a severance agreement that will protect you against a wide range of legal claims that disgruntled employees typically file. Even offering a payment can be cheaper and less aggravating than the eviction process.

Employers should make the choice of offering housing for rent and creating a tenancy, or offering housing as compensation under a license. There are pros and cons to both approaches. If you rent employees housing, then they will be tenants who are entitled to remain, even if they no longer work for you, as long as they pay rent. However, there is an advantage because if they fail to pay rent, you can evict on three days' notice.

In addition, as a tenant you can require the employee to pay full market value for the housing. The housing provided will not be considered part of the employee's wages and will not drive up the overtime rate.

An employer subject to the Migrant and Seasonal Agricultural Worker Protection Act can avoid many housing obligations by offering employees' housing on the same terms as the housing is offered to the general public.

You may not consider employees tenants if they are required to live on the employment premises and may charge them only up to limits set forth in the California Industrial Welfare Commission wage orders.

A license, on the other hand, is a benefit of employment that most often must be included in the employee's compensation. In most cases, this has the effect of driving up the employee's regular rate of pay, which in turn increases the employer's overtime obligations.

The advantage of a license is that no notice is required to terminate it, and the employee does not gain many of the rights available to tenants. The other advantage is that, as long as there is a written agreement consenting to the credit, the housing can be credited towards minimum wage, subject to that agreement.

It is absolutely essential that employers enter into written housing agreements with their employees. A housing agreement is the critical document that establishes the terms of the housing arrangement, and can make sure that the employer has the legal arrangement it desires. In the absence of a written agreement, housing arrangements are often interpreted to provide the employee-occupant with the broadest scope of possible rights, including 60 days' notice to evict or change the terms. (Editor’s note: A sample housing agreement and eviction forms can be found at www.fels.org/find/#0706.

Question on ICE Inspections: We have heard ICE (Immigration and Customs Enforcement) is in the area. They are questioning people in town and taking aliens into custody. What should we do to prepare for a "sweep" of our facilities? What should we say to our employees, if anything? And, what rights do we have regarding an inspection of our property and records?

Answer: Be certain you have completed I-9 forms for all new hires, including U.S. citizens. Make sure that all staff who process new hires are trained to properly complete the I-9 process and are trained to properly complete the I-9 form. Periodically interview staff to make sure they are properly processing new hires. Incomplete or improperly completed I-9 forms will result in exposure to liability! Complete the forms at the same point in the employment process for all employees–after you have made the decision to hire the person.

Periodically review your I-9 procedures, especially prior to the employment of seasonal workers. Conduct occasional "spot checks" to ensure the procedures are being followed and the forms are being filled out correctly. Periodically review your record retention practices. Be certain you keep I-9 forms on file for three years after the date of hire or for one year after termination of employment, whichever date is later.

Educate your employees to refer ICE or other government inquiries to your designated company representative. Be certain no management employee submits to an interview or provides documents to the ICE or other government agency without first conferring with your designated company representative. You should always have a designated person to be the contact point for ICE (and any other government agencies that may show up at your door), and you should have the telephone number(s) for the Company's legal counsel at hand. A "raid" does not require advance notice, but does require a search warrant. ICE must have a search warrant to enter open agricultural property to question workers, or must obtain the consent of the employer. A search warrant is not required if the owner or its agent gives consent; if the property is not being used for agricultural purposes; if the government is in "hot pursuit" of a suspected illegal alien, or if the property is within 25 miles of the U.S. Border.

An "audit" does not require a warrant, but does require three days' notice. If you need time, ask the investigator courteously and respectfully for some additional time to prepare what is being requested. During an I-9 audit, you are technically required to produce only the I-9 forms for inspection. If ICE wants to see anything else, you can require the agent to get a valid subpoena. In a "raid," the warrant will specify what the inspectors are entitled to. Make sure you read the warrant carefully.

You, your supervisors and your employees are not required to answer any questions. Make sure you consult with an attorney before permitting anyone to speak with ICE other than your designated contact person, and inform ICE of your desire to do so before they question anyone. Also, you have the right to continue operating your business during the ICE visit.

The goal of this article is to provide employers with current labor and employment law information. Its contents should neither be interpreted nor construed as legal advice or opinion. The reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento, for individual responses to questions or concerns regarding any given situation.

The Ninth U.S. Circuit Court of Appeals has held that bullying behavior by a supervisor can amount to sexual harassment, even if the behavior in question is not of a sexual nature.

In EEOC vs. National Education Association, Alaska, three women who worked directly under the male executive director filed a lawsuit alleging that the director had sexually harassed them. They alleged that the director yelled at them, stood right behind them while they worked, and frequently made aggressive physical gestures toward them, such as shaking his fist in their faces.

The employer filed a motion for summary judgment to get the case thrown out of court, arguing that the evidence showed that the director acted the same way toward the male employees, that none of his comments or gestures were of a lewd or sexual nature, and that none were gender specific against women. Agreeing with the employer, the trial court dismissed the case.

The women filed an appeal with the Ninth Circuit. That court reversed the lower court. The court said "[a] pattern of abuse in the workplace directed at women, whether or not it is motivated by 'lust' or by a desire to drive women out of the organization, can violate [the law]." The court further said that where "an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men," such bullying can amount to sexual harassment.

According to the court, it did not matter that the director treated the male employees the same way he treated the female employees, but rather, the important question was whether the bullying affected the women more adversely than the men. The court said that even if the director used comments "equal in intensity and in an equally degrading manner against male employees," there might still be a viable claim for sexual harassment because the court needs to look at whether a "reasonable woman" would be offended by the conduct, not a "reasonable person."

What This Means For Employers: In a number of prior rulings, the Ninth Circuit has ruled that when a woman is alleging sexual harassment, the court needs to use a "reasonable woman" standard, as opposed to the normal "reasonable person" standard, because applying the sex-blind "reasonable person" standard "tends to be male-biased and systematically ignores the experiences of women." Thus, conduct that a typical male might not find offensive or unwelcome can still amount to sexual harassment if a typical female would find it offensive or unwelcome.

The other important lesson from this case is the reminder that conduct does not necessarily have to be of a sexual nature to amount to sexual harassment. Sexual harassment is a type of sex discrimination, and one way to establish sexual harassment is to show that the conduct was directed at the recipient "because of" his or her sex. Thus, conduct that is directed only at women can be sexual harassment because it is directed at them because of their sex.

The goal of this article is to provide employers with current information regarding labor and employment law. The contents should neither be interpreted nor construed as legal advice or opinion. You should consult Barsamian & Moody at (559) 248-2360, or toll-free at (888) 322-2573, for individual questions or concerns you have regarding your specific situation.

As California heads into the hot summer months, Cal/OSHA urges all employers to revisit their injury and illness prevention programs and their emergency response procedures to make sure they are thoroughly prepared for heat waves.

“When the temperature rises into the high 90s and above, employers must take special precautions to protect employees whose work exposes them to these extreme temperatures,” said Len Welsh, acting Cal/OSHA chief. “Heat illness can quickly progress to heat stroke and be fatal. It’s crucial to know what to do in case of a medical emergency and to give employees the training they need.”

Under the state’s heat-illness regulation, employers must take four basic steps to prevent heat illness at all outdoor worksites:

• Make readily available and encourage each employee to drink four 8-ounce cups of fresh water per hour; and

• Provide immediate access to shade or any cool area out of the sun for recovery periodsfor at least five minutes at a time.

For more information on heat-illness prevention, free workshops and training materials, visit the Cal/OSHA Web site at http://www.dir.ca.gov/DOSH/HeatIllnessInfo.html,or visit www.fels.org/find/#0706 for Cal/OSHA’s above link and a link to FELS’ Heat-Illness Prevention resources.

Professor Caren Goldberg of American University concluded a study of 234 white-collar professionals in which she concludes sexual-harassment training does not encourage employees to file lawsuits. The study's findings were published in the Insurance Journal on June 7.

In California and Connecticut, training is the law anyway. However, we have always believed the benefits of anti-harassment training outweigh the potential risks. This study backs up that conclusion.

The full article can be found at www.fels.org/find/#0706, or visit http://www.insurancejournal.com/news/national/2007/06/07/80480.htm

(Source: Jennifer Brown Shaw, Esq., Shaw Valenza LLP, 520 Capitol Mall, Suite 630, Sacramento, CA 95814.Telephone: (916) 326-5150 Email: jshaw@shawvalenza.com Web site: www.shawvalenza.com)

The Third U.S. Circuit Court of Appeals on June 4 issued a decision in the case of AARP v. EEOC, settling an issue that has been lingering for several years.

The Third Circuit held that the Equal Employment Opportunity Commission (EEOC) has the authority to issue a regulation exempting from the prohibitions of the Age Discrimination in Employment Act (ADEA) employer-sponsored benefit plans that coordinate retiree health benefits with eligibility for Medicare. The EEOC’s final rule expressly permits employers to “alter, reduce or eliminate” retiree health benefits for Medicare-eligible retirees.

Funding cuts proposed by the Environmental Protection Agency for fiscal year 2008 could delay re-registration of existing pesticides, as well as affect grants for states and tribes to help implement the worker protection program and other pesticide programs.

Out of the agency's $122.3 million budget designated for pesticide licensing activities (not including laboratory expenses), EPA would cut about $879,300 when compared with FY 2006 from risk assessment contracts that support pesticide re-registrations.

The cuts are part of a four percent, agencywide reduction proposed by the White House.

EPA's proposed budget would also cut about $1.17 million when compared with FY 2006 from grants to help states and tribes implement the compliance and enforcement provisions of the Federal Insecticide, Fungicide, and Rodenticide Act.

The agency said this money helps enforce worker protection standards and mitigate high-risk pesticide activities, including pesticide misuse in urban areas and the misapplication of structural pesticides. State and tribal assistance grants also provide resources like seminars, guidance documents, and brochures to educate end users in the proper application of pesticides, EPA said.

Other STAG grants related to pesticides also would take a hit. For example, the agency would cut $778,900 from grants for worker protection and certification training, endangered species activities, and pesticide environmental stewardship programs.

The Department of Homeland Security is preparing to use its voluntary "Basic Pilot" employee verification program as an enforcement tool by flagging questionable queries from employers about new hires and referring those cases to enforcement agents, a DHS official said.

At a briefing, DHS Verification Division Chief Gerri Ratliff said her office will soon produce a memorandum of understanding with DHS's enforcement division, the office of Immigration and Customs Enforcement, under which her division will agree to refer Basic Pilot cases that appear fraudulent to ICE. Under the voluntary Basic Pilot program, which is separate from the Social Security Administration's "nomatch letter" program (see related story), participants electronically check the names and identification numbers of new hires to verify that they are authorized to work in the United States.

Although the program is headquartered at DHS, most of the queries initially are checked against SSA databases to verify new hires' Social Security numbers. Electronic queries on non-citizens are checked against DHS databases that document those workers' immigration status. Both the House and the Senate have proposed making the program mandatory for all employers, despite numerous problems cited by government and employer organizations about the verification system, such as its high rate of "tentative non-confirmations" about work authorization.

Farm Employers Labor Service
2007 Agricultural Wage and Benefit Survey Report
Report based on All Commodities producer data
I. Wages
Job Title Hourly Wages	Avg	Low- est	Avg Low	Avg High	High- est	sd	n	N
Supervisor	16.68	7.50	15.70	17.66	46.00	6.13	62	114
Foreman	12.79	7.50	12.01	13.56	35.00	3.69	116	249
Shop mechanic 1	14.87	7.50	14.31	15.42	50.00	6.06	145	224
Shop mechanic 2	12.01	7.50	11.42	12.60	28.60	3.56	93	163
Equipment operator	11.42	7.50	10.75	12.09	28.00	3.56	122	271
Tractor driver 1	10.34	7.50	9.88	10.81	30.00	2.58	136	313
Tractor driver 2	9.77	7.50	9.33	10.21	24.50	2.04	96	224
Milker	10.49	7.50	10.19	10.79	17.50	2.33	16	32
Irrigator - flood/row	8.83	7.50	8.47	9.20	18.00	1.55	103	195
Irrigator - lines	9.33	7.50	8.93	9.73	20.00	2.08	83	185
Pruner - tree or vine	9.34	7.50	8.64	10.04	24.00	2.01	78	174
Nursery propagator	9.25	7.50	8.48	10.02	18.40	2.16	16	39
General laborer 1 (Direct Hire)	8.84	7.50	8.43	9.26	19.00	1.56	136	290
General laborer 1 (FLC)	8.41	7.50	8.08	8.74	30.00	1.63	71	111
General laborer 2 (Direct Hire)	8.27	7.50	8.02	8.52	15.06	1.09	133	212
General laborer 2 (FLC)	8.10	7.50	7.94	8.25	15.00	1.17	73	100
Monthly Salaries
Supervisor	4,748	1,461	4,405	5,091	11,210	1,843	111	202
Foreman	3,335	1,400	3,115	3,555	6,500	885	65	123
Shop mechanic 1	3,555	1,650	3,470	3,639	7,100	1,021	36	44
Shop mechanic 2	2,757	1,650	2,717	2,796	4,550	894	5	7
Equipment operator	2,238	1,500	2,161	2,316	3,000	428	5	8
Tractor driver 1	2,237	1,500	2,184	2,289	3,000	431	7	9
Tractor driver 2	2,227	1,500	2,152	2,302	3,600	663	4	7
Milker	2,290	1,400	2,139	2,441	4,300	600	10	23