UFW Signs H2-A Pact With Mexico

            The Sacramento Bee reports that the United Farm Workers of America (UFW) has signed a pact with a Mexican state for H2-A workers on U.S. farms.

            The UFW signed an agreement with a Mexican state to help recruit guest workers to labor on U.S. farms legally – and under union contract. "If this is something that's going to be utilized more in the future, then we've got to get in on it," UFW President Arturo Rodriguez said of the H-2A temporary labor certification program. "We're looking for enlightened employers who are willing to sit down and do this with us."

            Jack King, national affairs manager of California Farm Bureau Federation, said farmers "face a different world in contracting labor in the future....I expect there will be a lot of groups forming to bring workers into the United States," King said. "I guess we would welcome the UFW as well."

            For the full story, visit: http://www.sacbee.com/111/story/871903.html. Or, go to www.fels.org/find#0805.

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Landlord Legal Assistance Online

            The Judicial Council of California provides online help to persons with legal issues. One such issue is housing, both from a tenant and a landlord perspective.

            The Council’s Tenant/Landlord information is at: http://www.courtinfo.ca.gov/selfhelp/other/landten.htm, or locate it at: www.fels.org/find#0805.

            This Web site provides housing information housing for both tenants and landlords, such as, “Eviction Questions & Answers: A Guide for Landlords.”

            The Judicial Council of California is the policymaking body of the California courts. Under the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. The Judicial Council's staff agency, the Administrative Office of the Courts, is responsible for implementing council policies.

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ICE Inspections On The Rise

            U.S. Immigration and Customs Enforcement (ICE) stepped up its enforcement against employment of undocumented aliens. Notable ICE raids include: Universal Industrial Sales, Inc. in Utah (February), Micro Solutions Enterprises in California (February), Lansdowne Resort in Virginia (April), and the Pilgrim's Pride Raids in Texas, Florida, Tennessee, Arkansas, and West Virginia (April).

            ICE has also made numerous unpublicized raids, several of them warrantless.

            On one series of raids, ICE stormed 11 El Balazo restaurants in the Bay Area, arresting 63 illegal immigrants and drawing the outrage of immigration-reform advocates who had marched the prior day to call for the legalization of undocumented workers.

            The raids began at 10:30 a.m. in San Francisco, San Ramon, Lafayette, Concord, Pleasanton and Danville and involved 62 people from Mexico and one from Guatemala.

            Immigration officials photographed, fingerprinted and interviewed all arrested. Ten women and one man were quickly released on humanitarian grounds, including pregnancy and medical concerns, pending future immigration proceedings.

            The rest were being processed, the majority of whom were expected to be released under supervision. Some of the illegal immigrants had prior criminal convictions or deportation orders and will be detained.

            More recently, ICE raided Cattle Congress in Waterloo, Iowa. Hundreds of people were detained at the meat-packing plant. Officials didn't allow media or others near the entrance. At least 300 people were arrested during the operation, the largest of its kind in Iowa.

            The raid targeted people who illegally used other people's Social Security numbers and were in the U.S. illegally. According to an affidavit, "Based on information thus far developed in the investigation, it appears, based on 2007 fourth-quarter payroll reports, that approximately 76 percent of the 968 employees of Agriprocessors were using false or fraudulent social security numbers in connection with their employment."

            Authorities released 40 of the arrested employees "on humanitarian grounds" with supervision, pending further proceedings.

            A total of 16 local, state and federal agencies, led by ICE, joined the investigation that began last October. Among them was the U.S. Marshals Service, the Iowa Dept. of Public Safety, the Federal Bureau of Investigation, the U.S. Dept. of Agriculture, the federal Drug Enforcement Agency, the Waterloo Police Dept. and the Postville Police Dept.

            Since its creation in 2003, ICE has stepped up efforts to stop the employment of illegal immigrants. Last year, the agency made more than 4,900 arrests related to undocumented workers, a 45-fold increase compared with 2001.

            Congress's concern about the ongoing ICE raids prompted the House Immigration Subcommittee to hold a hearing on Feb. 13 entitled "Problems with ICE interrogation, detention, and removal procedures. Testimony at the hearing highlights numerous systemic abuses plaguing ICE.

            As a result, Congress is considering a proposal to appoint an independent ombudsman with authority to ensure that ICE remains on target and does not frivolously jeopardize our national security in chasing dishwashers. There already exists a CIS Ombudsman, and Congress could just roll-in ICE oversight responsibilities into that office.

            Read more about this by going to: http://judiciary.house.gov/oversight.aspx?ID=410 or www.fels.org/find#0805.

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USCIS Enhances E-Verify Program

            U.S. Citizenship and Immigration Services (USCIS) announced improvements to its E-Verify employment authorization program that will reduce an already low mismatch rate, while also streamlining and increasing the effectiveness of the overall program.

            The announcement comprises the first two phases of an overall three-part enhancement for E-Verify aimed at decreasing the mismatch rate for naturalized citizens.

            "Less than one percent of all work-authorized employees receive a tentative non-confirmation through E-Verify," said USCIS Acting Director Jonathan Scharfen. "While this is a very small percentage, we believe every employee who is authorized to work in the United States should be instantly authorized by the program. We're confident that the enhancements we're launching will help us achieve that goal."

            Starting May 5, the E-Verify system included naturalization data, which helps instantly confirm the citizenship status of naturalized U.S. citizens hired by employers participating in E-Verify. Naturalized citizens who have not yet updated their records with the Social Security Administration (SSA) are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify.

            Additionally, a naturalized citizen who receives a citizenship mismatch with SSA can call USCIS directly to resolve the issue (in addition to the option of resolving the mismatch in person at any SSA field office.) E-Verify also now includes real-time arrival data from the Integrated Border Inspection System. This additional data source reduces the number of mismatches related to immigration status for newly arriving workers who have entered the country legally.

            USCIS also plans to initiate citizenship status records information sharing with SSA to further help prevent tentative non-confirmations from occurring. This effort will improve the efficiency of E-Verify by providing to SSA with the most accurate and timely citizenship status information.

E-Verify also plans to check against Dept. of State passport records in the near future to even further reduce mismatches. More than 64,000 employers participate in E-Verify with approximately 1,000 new enrollments weekly. The Web-based system allows participating employers to electronically verify the employment eligibility of newly hired employees.

            E-Verify evolved from the Basic Pilot/Employment Eligibility Verification Program developed in 1997 and made available to employers as a Web-based system in 2004. USCIS operates the program in partnership with SSA. Additional details on the program are available on the E-Verify Web site at www.uscis.gov/e-verify.

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Piece Workers’ Non-Productive Time Must Be Separately Compensated

It is a longstanding principle that employees who work under a piece-rate payment method must be paid at least the state minimum wage for all hours worked.

            However, the Division of Labor Standards Enforcement (DLSE) has opined that for “non-productive” work periods where, at the direction of the employer, an employee cannot earn piece-rate compensation, the employer must compensate the employee for that “non-productive” period by paying the employee the minimum wage (or a higher contract wage, if one exists) in addition to the employee’s piece-rate earnings for productive periods. Examples of non-productive periods are safety-training sessions, post-work clean up, waiting time for equipment repairs and time spent traveling in a vehicle as required by the employer.

            According to the DLSE Enforcement and Interpretations Manual, Section 47.7:

            “All Hours Must Be Compensated Regardless Of Method Used In Computation. DLSE has opined that employees must be paid at least the minimum wage for all hours they are employed. Consequently, if, as a result of the directions of the employer, the compensation received by piece rate or commissioned workers is reduced because they are precluded, by such directions of the employer, from earning either commissions or piece rate compensation during a period of time, the employee must be paid at least the minimum wage (or contract hourly rate if one exists) for the period of time the employee's opportunity to earn commissions or piece rate.

            “As an example, if piece rate workers are required to attend a meeting during which, of course, they would not be able to earn compensation at the piece rate, the employer would be required to pay those workers at least the minimum wage (or the contract hourly wage, if one exists) during such period. (For discussion of the legal rationale underlying this enforcement policy, see O.L. 2002.01.29)”

            Opinion Letter 2002.01.29 can be downloaded at www.fels.org/find#0805.

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Pay-To- Appeal Cal/OSHA Legislation

            Legislation that would require employers to pay $250 for the right to appeal a Cal/OSHA citation would presume guilt and undermine due process, according to a group of employers led by the California Chamber of Commerce. The legislation is AB 1988, authored by Assemblymember Sandre Swanson (D-Oakland).

            Specifically the legislation would require employers with 25 or more employees to pay a $250 filing fee to appeal a notice of a civil penalty, refundable if the case is dismissed.

            According to Marti Fisher, CalChamber Policy Advocate, this legislation presumes employers cited for workplace safety violations are guilty until proven otherwise. The bill passed out of the Assembly Labor and Employment Committee on a party-line vote of 6-2 on April 17.

            The bill proposes a potentially costly double appeal process that presumes guilt for employers and undermines due process with regard to citations for workplace safety violations.

            Under AB 1988, an employer would have to pay a filing fee to initiate the appeal process once a citation has been given. Often the penalty for a general citation is less then the filing fee for an appeal.

            “This bill does leave untouched some of the real underlying problems with the appeals board process right now, and that’s that they’re severely understaffed, they have an enormous backlog of cases and a lot of that, we believe, is due to the enormous penalties that are levied on employers for citations,” says Ms. Fisher.

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UFW Launches Black Eagle Wines

            The United Farm Workers (UFW) recently launched Black Eagle Wines, a vintage of Napa Valley wines. According to the union’s press release the wine is a vintage of “wines that celebrate justice and help organize people to earn a better living without having to rely on government assistance.”

            The new wines come from grapes harvested by union workers.

            "It is our hope that at every political dinner, every union banquet, and every Latino community gathering, that people serve Black Eagle Wines," said California Latino Caucus Chairman and Assemblymember Joe Coto (D-San Jose), who purchased the wine for the California Democratic Party Convention dinner. The Cesar E. Chavez Foundation has committed to serving Black Eagle Wines at its tribute dinners and fundraisers. We hope that everyone attending these events in the coming weeks will enjoy the inaugural serving of the wine."

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 Using GPS Devices to Keep Tabs On Employees

            Some employers with employees who work alone or in remote locations or who travel on company business want the ability to remotely ascertain their location. Their reasons for wanting to do that range from concerns about employee safety to doubts about employee honesty.

            Employers can now do that thanks to the development and availability of relatively low-cost devices using global positioning system (GPS) technology that transmit the device’s location to a distant receiver.

            As with other monitoring devices such as video cameras, the use of electronic locators (e-locators) in employment situations raises issues about the right to privacy under the California Constitution. To reduce the risk of claims and liability for violations of that and other rights, an employer should first establish an appropriate policy on the subject.

            Advising employees that they are subject to such monitoring is a crucial component of any such policy. An employee who acknowledges in writing that his whereabouts may be monitored in this way would have a very difficult time claiming later he had an expectation of privacy that his employer violated by remotely monitoring his location.

            The policy should also define the situations subject to monitoring. Off-duty location monitoring should be off limits. Thus, the policy should state that monitoring will occur during only the employee’s working time.

            In addition, the policy should state the employer’s purpose in establishing it.

            Here is a sample policy on location monitoring:

Employee Location Monitoring

            To further its interests in ensuring employee safety and honesty, the Company may electronically monitor (e-monitor) the location of certain employees during their working time.

            The following applies to e-monitoring:
   1.  Employees subject to e-monitoring are those who work alone or in remote locations or who travel in company vehicles.

  2.  The Company notifies affected employees in writing that they have been selected for e-monitoring.

  3.  Employees selected for e-monitoring must sign a form confirming they understand they will be e-monitored.

  4.  E-monitoring devices used by the Company only track the employee’s location and do not record video or sound.

            Employees should direct questions about this policy to the company’s general manager.

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Video Spot Slams Card-Check Scheme

            Both state and federal legislation is being pursued to let a union become the collective-bargaining agent of an employer’s employees by merely presenting union authorization cards to the National Labor Relations Board (NLRB) or to the California Agricultural Labor Relations Board (ALRB).

            The Coalition for a Democratic Workplace, which opposes such measures, has created and posted on its Web site a clever and effective 30-second spot cautioning employees that a card-check scheme means the end of their right to cast a secret ballot on the question of whether they want union representation.

   See it at http://www.myprivateballot.com/

Click on the arrow on the photo.

            In related news, Former Assembly Speaker Fabian Núñez (D-Los Angeles) has stated he is working on a bill to provide agricultural employees with a new way to select a union as their collective-bargaining agent (CBA). Currently, the only way is by secret-ballot election conducted by the Agricultural Labor Relations Board. Núñez reportedly said he is exploring “having them go absentee like absentee ballots.” Once he develops it, he will amend his new plan into his AB 2386, an unrelated measure.

Last year, Gov. Schwarzenegger vetoed two bills that would have amended the Agricultural Labor Relations Act to let a union become the CBA of a farmer’s ag employees by gathering enough cards signed by them to evidence majority support. Both of these so-called “card-check” bills failed to protect the free association rights of farm employees by stripping them of their right to a secret-ballot election and replacing it with an unprotected process called a “majority sign-up election.” This type of scheme not only undermines the right of employees to cast their ballots in a secure, private election booth free from coercion, but also deprives them of the opportunity to hear and consider other viewpoints on unionization.

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Safety Resources from Penn State

Penn State Agricultural Safety and Health, a program of the Agricultural & Biological Engineering Department at Penn State University, is multi-dimensional. Its scope ranges from engineering to reduce exposure to hazards to safety training for youth, managing agricultural emergencies, how to most effectively use best management practices, providing technical support to farmers with disabilities, and social impacts of farm work injuries.

Semi-monthly it produces an electrontic safety newsletter. The latest issue of Ag Safety and Health News is now available online at: http://www.agsafety.psu.edu. This issue includes these subjects:

      •          Stay Free from Fires

      •          For Want of Resources

      •          Fire Prevention Sidebars

      •          Little Good News in 2007

      •          2007 Farm Fatality Report

      •          Quiz Bowl Gets Makeover

      •          News to Use

      This issue and previous issues are also available on the Pennsylvania Agricultural Safety and Health Website.

      The newsletter can be sent to you by subscribing. To subscribe send an email with “ASHnews” in the subject line to mxh16@psu.edu.

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DOL Auditing Forms I-9

Employers have reported recent visits by U.S. Dept. of Labor (DoL) officials in which they were asked to provide their employment records, including Forms I-9 (Employment Eligibility Verification). Employers are also asked for their Forms I-9 in Immigration and Customs Enforcement (ICE) raids and visits.

According to DoL, in the course of onsite activities at the employers' facilities, Employment Standards Administration staff may advise employers about their employment-eligibility verification and anti-discrimination responsibilities under immigration laws and review employer records for compliance with these obligations, including Form I-9. There is an exception where the investigation is based on a complaint alleging labor-standards violations.

Employers must complete Form I-9 for all new hires, including U.S. citizens. Make sure that all staff who process new hires are trained to properly conduct the Form I-9 process, and periodically interview staff to make sure they are properly processing new hires. Incomplete or improperly completed Forms I-9 expose an employer to liability.

Employers should regularly review their Form I-9 procedures, especially before employing seasonal workers. A Form I-9 must be kept for three years after the date of hire, or for one year after employment ends, whichever date is later. The employer is not required to keep a copy of the document(s) the employee presented to establish identity and employment eligibility.

An employer faced with an audit by a government agency – be it the Economic and Employment Enforcement Coalition (EEEC), DoL, ICE, or some other agency – should follow several steps:

First, the employer should determine who the investigators are. Ask them for a business card. Make sure they are who they claim to be. The employer should be polite with the government agency. Assume an attitude of cooperation, but make sure to consult with company attorneys and owners for a directive on how much cooperation is appropriate under the circumstances.

The employer should also ask the investigators why they are there. An audit of the employer's Forms I-9 requires three days' advance notice in writing, but no search warrant, whether it is part of a DoL inspection or an ICE audit. Some officials will present a subpoena (in conjunction with an audit), suggesting you need to comply with it immediately. However, the employer is entitled to three days’ advance notice in writing, and the agency may not use the subpoena to shortcut that. Notice is waived, however, if the employer or his agent consents to search the premises.

If the investigators are there as part of an ICE raid, the company's representative should call its legal counsel immediately. In a raid, ICE agents must have a search warrant, and they do not have to give advance notice.

The employer should also have a knowledgeable designated representative in place who is authorized to meet and talk with DoL or ICE personnel. Make sure that this person knows the agents may audit the records only after giving three days' notice, and make sure they know to contact the company's attorneys or owner(s) immediately in the event of a visit.

The representative should also try to limit the scope of government access by bringing the documents to the government agent in a private office so the government agent is not given free reign to wander around the company's premises and to speak to personnel.

Make sure that no employees submit to an interview or provide documents to DoL, ICE, or other agency without first conferring with your designated company representative. 

What This Means For Emplovers: Employers should use caution when they are visited by any governmental agency. They should make sure they have designated employees to meet with the government agents. The employer should contact its attorney immediately and, in the event of an audit of Forms I-9, ask for three days’ notice as required by law.

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Meal Period Not Waived If It’s On Duty, Court Says

A federal court has ruled that an on-duty meal period is a type of meal period and that by taking one, an employee is not waiving a meal period.

In California, an employee generally may not work more than five hours without being provided with a duty-free meal period of at least 30 minutes; it may be waived, however, by the mutual consent of the employer and employee if a work period of not more than six hours will complete the day’s work.

Further, except under Industrial Welfare Commission Order 14 (Agricultural Occupations), a second meal period must be provided if the employee has worked 10 hours; it may be waived, however, by the employer’s and employee’s mutual consent if the first meal period was not waived and the employee works no more than 12 hours.

In addition, an employee in limited situations may agree in writing to taking an on-duty instead of off-duty meal period.

In McFarland v. Guardsmark, a security officer who had agreed to take on-duty meal periods claimed that sometimes when he worked more than 10 hours in a day, he was not provided with a second meal period.

He argued that because both his first and second meal periods were on-duty, he was waiving both of them. Under his theory, because he waived his first meal period, he could not lawfully waive his second meal period under the conditions specified for waiving a second meal period.

The U.S. District Court for the Northern District of California in San Francisco rejected his position. It held his two daily meal periods were meal periods even though they were both on-duty; therefore, he was waiving neither of them. A waiver of a meal period occurs when one gives up one’s right to eat, not when one merely forgoes a meal period free of duty. Because he could eat during them, his on-duty meal periods were meal periods under the law.

What This Means For Employers: Under the court’s opinion, both meal periods to which an employee working more than 10 hours in a day is generally entitled may be taken while on duty, and the employer will not be liable for the additional hour of pay for failing to providea meal period.

An on-duty meal period may be taken only if the nature of the work prevents an employee from being relieved of duty. The court, however, did not address the issue of whether that condition existed so as to make the on-duty meal periods legally valid.

Always consult legal counsel before authorizing on-duty meal periods, as they are very difficult to legally justify. 

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