Vol. 29, No. 3, March 2000
In This Issue
$9.4 Million Granted for Freeze Relief
ALRB Now on the Web
Reducing Exposure to
Worker-Transportation Liability
Employment-Law
Update for Year 2000
Ag
Safety-and-Health Inspection Program
7th-Day
Overtime Pay for Part-Time Employees
Cal/OSHA
Posters Available On-Line
INS Document Guide
Available
Unsafe Labor
Vehicles Stopped
Legislation
Introduced to Protect Farmworkers from Exposure to Pesticides
$9.4 Million Granted for Freeze Relief
Relief for California farm workers disadvantaged by the 1998-99 freeze that devastated the citrus industry is the object of a $9.4 million grant by the U.S. Department of Agriculture. The money was issued to the Governor's office, from which it has been allocated to service agencies in areas where affected workers live.
The bulk of the money--$6.1 million--has been assigned to Proteus, Inc., at its headquarters in Visalia. It is to be used for relief efforts for farm worker residents in Fresno, Kern, Kings and Tulare Counties.
Other service agencies operating in the counties of Monterey, Merced and Madera and in the Bakersfield area received the rest of the money.
A Proteus spokesman said the agency operates 13 service centers in the four counties and will evaluate applicant needs as to current or back expenses for rent, mortgage payments, utilities and food. The goal is to enable workers forced into unemployment by the freeze to return to work without lingering debts.
Proteus, which describes itself as a nonprofit, community-based organization offering services to rural and urban residents, focuses on migrants, displaced persons and ex-offenders. Proteus also offers employment training to welfare recipients and low-income individuals.
Established in 1967, Proteus operates 32 offices in the four-county area, including 13 one-stop disaster service centers.
California Citrus Mutual in Exeter encouraged the USDA to help members of the citrus workforce and has worked closely with Proteus as the relief requirements were established. The money is to be disbursed by late spring.
(Source: Agricultural Action Committee)
The Agricultural Labor Relations Board's Web site can be accessed at www.alrb. ca.gov. Pamphlets, forms, the ALRB Handbook, the Agricultural Labor Relations Act, the regulations, and most Board decisions are available in a downloadable format.
Reducing Exposure to Worker-Transportation Liability
Yet another farm labor vehicle accident occurred last month involving 16 farm workers. The accident again raises the question about grower liability for employee transportation. Is a grower responsible for employees commuting to or from work in their own vehicles? If so, then to what extent?
While those questions are not easily answered, growers are increasingly named in third-party litigation after transportation accidents. Recent interpretations of the joint-employment concept under the Migrant and Seasonal Agricultural Worker Protection Act make it easier than ever for growers to be held liable for violations related to labor provided by farm labor contractors.
A panel discussion on the issue of employee transportation was held at the February 2 AgSafe conference in San Luis Obispo. Earl Hall, a farm labor contractor in the Mendota area, outlined his three-step approach to reducing his exposure to liability for employee transportation.
First, every employee is told that the company does not provide transportation to or from work. Employees are encouraged to car pool with each other. In fact, employees must sign an acknowledgment to that effect. Supervisors may not transport employees to or from work, much less charge for rides.
Second, every employee who does drive a vehicle to work must have his or her vehicle inspected by the California Highway Patrol (CHP) and have the appropriate driver's license for the vehicle they will be driving. CHP inspectors affix inspection stickers to vehicles that pass their inspections. The company requires CHP inspections for passenger vehicles, farm labor vehicles and buses.
At each work site Hall's supervisors inspect vehicles to ensure CHP stickers are affixed to them. Those without a sticker have up to two weeks to get an inspection and sticker. Non-complying employees may not bring their vehicles to any work site.
Drivers are also told about their responsibility to secure adequate vehicle insurance under state and federal requirements. Non-complying drivers may be discharged.
Third, employees are trained in safe driving procedures, including passenger safety.
Hall said he has been involved in four lawsuits in recent years. Hall believes he won all of them because he could show he had taken reasonable care to ensure drivers and passengers were traveling in safe vehicles with appropriate licenses and training.
Hall said his program isn't cheap, but it's much cheaper than being exposed to liability for vehicle accidents. He emphasized his highest goal is for the extra effort his company has put into its vehicle safety program to result in longer and healthier lives for his employees.
Employment-Law Update For Year 2000
By Michael C. Saqui and E. Mark Hanna, Law firm of Barsamian, Saqui and Moody
Courts and administrative agencies were busy interpreting labor and employment laws in 1999. This article highlights cases decided last year and discusses what they mean for employers. This is the second part of a three-part article on changes for the new millennium.
U.S. Supreme Court Interprets Disability under ADA
In three cases decided last June, the U.S. Supreme Court limited the definition of the term disability under the Americans with Disabilities Act (ADA).
The court held that mitigating factors such as eyeglasses and medication need to be taken into account in analyzing whether persons are substantially limited in a major life activity and, therefore, have a disability under the ADA. These decisions are important for employers because the U.S. Equal Employment Opportunity Commission (EEOC) had previously issued guidelines stating that mitigating measures should not be considered in determining if a person is substantially limited in a major life activity.
The Supreme Court decisions surprised some observers because a 1998 high-court decision held that a person with asymptomatic HIV could sue under the ADA. That decision was regarded as broadening the definition of disability, rather than narrowing it as last year's cases appear to do.
In one case the plaintiffs had applied for jobs as pilots with United Airlines. United turned them down because it required pilots to have uncorrected vision of 20/100 or better. The plaintiffs had vision of 20/400 without glasses, but corrected vision of 20/20.
In another case, the plaintiff was a mechanic with high blood pressure that he controlled with medication. He was fired from his job with UPS after it was learned his blood pressure did not meet U.S. Department of Transportation (DOT) requirements.
In the third case, the plaintiff was a truck driver who was blind in one eye but had 20/20 vision in the other. Although his brain had learned to compensate for the loss of peripheral vision and depth perception, he was fired for not meeting DOT requirements.
In all these cases, the U.S. Supreme Court said the EEOC's interpretation of the term disabled was wrong. It held that if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures (both positive and negative) must be taken into account when judging whether that person is substantially limited in a major life activity and thus disabled under the ADA. Because the plaintiffs in these cases could correct or control their condition through mitigating measures, they were not disabled.
WHAT THIS MEANS FOR EMPLOYERS: With these decisions, it is now more difficult for a plaintiff with a controlled physical or mental condition to bring a disability claim. Despite this, employers should not relax. For example, an insulin dependent diabetic who was not hired for a job may be able to argue the employer refused to hire her because it perceived her to be disabled. Further, plaintiffs may still be able to file claims under state disability law.
Ultimately, courts will look at each situation on a case-by-case basis in determining whether a person is disabled, in light of any mitigating measures such as medication. For now though, it seems more employers will be able to successfully defend cases by showing that, due to the availability of mitigating measures, plaintiffs' conditions are not disabilities under the ADA.
Reasonable Accommodation of Disabilities
In 1999, the EEOC issued interpretive guidance on what constitutes reasonable accommodation and undue hardship under the ADA).
WHAT THIS MEANS FOR EMPLOYERS: In light of this guidance from the EEOC, employers should review their policies and practices on reasonable accommodation to reflect the following:
1. The accommodation process must be interactive, including the opportunity for the applicant or employee to identify any possible accommodation.
2. The employer has the right to choose between effective accommodations.
3. Accommodations to be considered should include job restructuring, unpaid leave, modified schedules, and modified policies. If these are not available or effective, a transfer to another position should also be considered. A checklist demonstrating that each option was considered is advisable.
4. An employer need not provide any personal item (e.g., eyeglasses) as an accommodation to a disability.
Employers should review and compare the EEOC's guidance to their accommodation policies. The guidance can be found at: www.eeoc.gov.docs/accomoda tion.
EEOC Issues Sexual-Harassment Guidelines to Reflect U.S. Supreme Court Rulings
On June 18, the EEOC issued its enforcement guidelines analyzing when employers are liable for unlawful harassment by supervisors. These guidelines were issued in light of two 1998 U.S. Supreme Court decisions holding that employers are subject to vicarious liability for unlawful harassment by their supervisors. The standard of liability set forth in these two decisions is based on two principles:
1. An employer is responsible for the acts of its supervisors; and,
2. Employers should be encouraged to prevent all forms of harassment, and employees should be encouraged to avoid or limit the harm from harassment.
To accommodate these standards, the Supreme Court held an employer is always liable for a supervisor's harassment that culminates in a tangible employment action. If the harassment does not result in a tangible employment action, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that must include two elements:
1. The employer exercised reasonable care to prevent and promptly correct the harassing behavior; and,
2. The employee either unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or failed to avoid harm.
WHAT THIS MEANS FOR EMPLOYERS: In its guidelines, the EEOC made clear that the standard of liability set forth in the Supreme Court decisions apply to all forms of unlawful harassment, not just sexual harassment. The court's rule on vicarious liability therefore applies to harassment by supervisors based on race, color, sex (whether or not of a sexual nature), religion, national origin, protected activity, age, or disability. Thus, employers should establish anti-harassment policies and complaint procedures covering all forms of unlawful harassment.
California Supreme Court Eliminates Co-Worker Liability for Harassment
On December 10, the California Supreme Court ruled that while the California Fair Employment and Housing Act (FEHA) prohibits any person from harassing an employee, it does not impose personal liability on a non-supervisory co-worker.
In that case, the plaintiff was a state-agency employee who sued the agency, two of her supervisors, and a co-worker for sexual harassment violations of the FEHA. The plaintiff claimed the co-worker had sexually harassed her and alleged that neither the agency nor her supervisor stopped it.
The two supervisors were ultimately dismissed from the case because they had never personally sexually harassed the plaintiff, but the remaining issue before the court was whether the harassing co-worker could be liable for sexual harassment.
The plaintiff argued that since the FEHA prohibits any person from committing harassment, co-workers must be liable. Disagreeing, the court noted that if an employer takes appropriate action in the face of a harassment claim, then no unlawful practice has occurred.
Thus, the court reasoned, the Legislature could not have intended that a harassing co-worker's liability should turn on his or her employer's failure to take appropriate action.
While this decision eliminates liability for non-supervisory harassers, it does not eliminate employer liability for their harassment, especially if the employer does not take prompt, effective action upon learning of it.
Indeed, the court emphasized that employers have a duty to take all reasonable steps to prevent harassment from occurring in the first place and immediate action when it learns of the bad conduct.
The court also said that while a plaintiff may not sue a co-worker under the FEHA for harassment, a harasser may still be personally liable under some other law or theory, such as assault and battery or perhaps under California's sexual-battery statute.
WHAT THIS MEANS FOR EMPLOYERS: As has long been emphasized, employers must:
1. Effectively train their employees to combat harassment; and
2. Take all claims of harassment seriously, including conducting a thorough and prompt investigation, no matter whether the claim is against a supervisor, co-worker, client or customer. Only thus may an employer escape liability for harassment claims.
Leave Policies
On the list of difficult assignments for human-resources professionals, maintaining lawful leave policies may rank second only to consistently enforcing them. For the year 2000, here are two more things to consider:
1. The Workers' Compensation Appeals Board (WCAB) has held that an employer that terminates an industrially-injured employee's benefits at the end of the employee's Family and Medical Leave Act (FMLA) leave has discriminated against the employee in violation of Labor Code section 132a.
Further, the California Supreme Court held in 1998 that section 132a is not an exclusive remedy and employees may therefore bring public-policy claims based upon alleged discrimination. The WCAB ruled that unless it can show that continuing benefits past 12 weeks would be an undue hardship, an employer may not stop paying its usual share of the employee's benefits while the employee is on workers' compensation leave.
2. A regulation issued by the U.S. Department of Labor (DOL) interpreting the FMLA requires an employer to notify an employee that an absence is being counted as FMLA leave. If the employer fails to promptly provide this notice, the absence does not count against the employee's FMLA-leave entitlement, state the regulations.
However, two federal Circuit Courts (but not the Ninth Circuit, which covers California) ruled this provision to be unlawful. Those courts concluded that the FMLA provides only 12 weeks of leave and does not suggest this entitlement may be extended. While it is not prudent to ignore the DOL regulation just yet, this notification trap for the unwary may be on the way out.
For more information, contact the law firm of Barsamian, Saqui & Moody in Fresno, California, at (559) 248-2360, or by e-mail at laborlaw@qnis.net.
About the Authors:
Michael C. Saqui is a shareholder in the law firm of Barsamian, Saqui and Moody. He oversees the firm's Sacramento office. Mr. Saqui specializes in labor and employment law, representing management in all aspects of labor and employment relations, and provides experienced counsel in strikes, union organizing campaigns and elections, collective-bargaining negotiations and grievance arbitrations.
E. Mark Hanna is an Associate with Barsamian, Saqui & Moody, a recognized leader in the representation of business interests in California. He counsels clients on labor and employment laws and regulations affecting businesses today and conducts preventive-training seminars to keep companies aware of continually-changing labor and employment laws. In addition to handling traditional employment litigation cases, Mr. Hanna writes extensively for various publications, as well as authoring Barsamian, Saqui & Moody's own quarterly newsletter.
This article is not to be considered legal advice. As in all cases involving potential liability, experienced legal counsel should be consulted about your specific situation.
Ag Safety-and-Health Inspection Program
Last year Cal/OSHA began a new inspection program called the Agricultural Safety and Health Inspection Program (ASHIP).
Vicky Heza, Deputy Chief for Division of Occupational Safety and Health (DOSH), reported that from July through November ASHIP conducted more than 800 inspections. During the same time period from 1992 to 1998 an average of 300-500 per year were conducted.
She said DOSH plans to open a district office in the Imperial Valley due to the program's success.
7th-Day Overtime Pay for Part-time Employees
AB 60--the Eight-Hour Day Restoration and Workplace Flexibility Act of 1999--took effect on Jan. 1.
The Division of Labor Standards Enforcement (DLSE) has issued an enforcement policy interpreting AB 60. One item of interest is the part-time employee exemption from the requirement to pay an overtime premium for work done on the seventh day of work in a workweek.
Under prior law, employees who worked no more than six hours on any workday and no more than 30 hours in a workweek were exempt from the seventh-day overtime requirement.
The DLSE notes that AB 60 requires seventh-day overtime even for any nonexempt employee who works all seven days in a workweek, no matter the total number of hours worked during that workweek or on any day of that workweek. As a result, many part-time employees are no longer exempt from the requirement of the seventh-day overtime pay.
One notable exception for agricultural employers is for a person employed in an agricultural operation under Industrial Welfare Commission (IWC) Order No. 14.
Because most of AB 60's provisions, including this one, do not apply to Order 14 employees, seventh-day overtime continues to be inapplicable to an agricultural employee working on the part-time basis noted above.
Cal/OSHA Posters Available On-Line
Are you low on Log 200 or need the new Safety and Health Protection on the Job poster? These and other Cal/OSHA publications are available on the World Wide Web from Cal/OSHA's web site located at: http://www.dir.ca.gov/databases/edtraintest/public3.html.
This and other sites are listed on the FELS links page at: http://www.cfbf.com/fels link.htm.
The U.S. Immigration and Naturalization Service (INS) has published a full-color pamphlet showing the documents issued by INS.
For a copy of the 24-page pamphlet, fax your request to (323) 526-7682 and request A Guide to Selected U.S. Travel/Identity Documents For Law Enforcement Officers (INS Form M-396).
A series of sweeps in the Central Valley by the California Highway Patrol intended to remove unsafe farm-labor vehicles from the road is being called a success by officers who found unlicensed and uncertified drivers.
"We were surprised to see as much activity as we were seeing, and it just tells us our program is needed," said Sgt. Ray Madrigal, supervisor of the Safety and Farm Labor Vehicle Education program.
The CHP is training 10 officers to enforce a new farm-labor vehicle safety law, including a requirement that vehicles have seat belts.
The law--pushed by Assembly Member Dean Florez, D-Shafter--was the result of a public outcry over the death of 13 farmworkers last August. Their van was hit by a big-rig. The van driver didn't have a license. And most of the passengers were seated on carpeted benches without seat belts.
The farm-labor safety law, which provided $1.7 million to put officers on country roads to look for violators, is the toughest in the nation, Florez said: "There's an overall consensus among the farm labor contractors I've talked to that they're working to change the vans and the vehicle structures so they have seat belts and are safe."
During sweeps in Fresno County in December and January, officers made 254 stops and put 18 farm-labor vehicles out of service because of drivers license violations. Drivers were charged with driving without a license or driving out of class, both misdemeanors.
Drivers of vehicles carrying farm laborers need a Class "B" drivers license. Drivers found were not certified by the CHP. In addition to a Class B license, drivers must pass written and driving exams. The test is much like that required to drive a school bus, but is designed for drivers of farm-labor vehicles. Before taking the test, drivers must have 10 hours of classroom instructional and 10 hours behind-the-wheel experience.
Seat belts are required for all vehicles that were inspected for the first time after October 1. Those with older certificates have until May 1 to retrofit vehicles with seat belts.
Legislation Introduced to Protect Farmworkers from Exposure to Pesticides
Senator Liz Figueroa (D-Fremont), member of the Senate Health and Human Services Committee and Chair of the Senate Business and Professions Committee, announced last month the introduction of legislation, SB 1523, which would require landowners to post warning signs during dangerous pesticide "no-entry" periods.
Current law requires that landowners post "No Entry" signs only if the danger period is longer than seven days. Figueroa says this loophole does not require warning signs for fields with reentry times of seven days or less even though those fields are too dangerous to enter. Figueroa's legislation, SB 1523, would require growers to post warning signs around their fields whenever they apply any toxic pesticide with a no-entry period of 4 hours or more.
California Rural Legal Assistance Foundation, the bill's sponsor, has supposedly documented more than 60 pesticide poisoning incidents across the state that could have been prevented by field posting. These reported incidents, when workers seek medical care, reflect only a small reaction of the early reentry violations that occur every year.