Vol. 29, No. 4, April 2000
In This Issue
Federal Seat-Belt Legislation Introduced
Form
I-9 Repeal and Amnesty Sought by AFL-CIO
Greenspan Sees Need to Ease
Entry of Foreign Workers
Farm
Workers Turn Out To Laud AgJOBS Bill
IWC Issues
Temporary Wage Order
Aguirre,
International, Visiting Farms
ALRB Judge Says UFW
Should Represent Coastal Berry Workers in Ventura County
Ag
Labor and Employment Summit Set for May 4
Employment-Law
Update For Year 2000 (Part 3)
Time Spent by Employees
Required to Ride in Company
Buses is Hours Worked
Federal Seat-Belt Legislation Introduced
Saying farm workers shouldn't have to risk their lives to get to work, U.S. Sen. Dianne Feinstein announced legislation Feb. 24 requiring seat belts on all farm-labor vehicles in the nation.
"It is unfathomable to me that farm workers don't have the same protection as everyone else," Feinstein said during a news conference outside the Fresno office of the California Highway Patrol.
While federal law requires farm-labor vehicles to be in good working order, it has never required seat-belt use or individual seats. The law also allows van owners to strip the passenger seats to accommodate more workers, often as many as 23 of them on a narrow wooden benches.
Feinstein's bill, S.2095, would require each passenger to have a designated seat with a working seat belt.
Form I-9 Repeal and Amnesty Sought by AFL-CIO
The AFL-CIO Executive Council on Feb. 16 passed a resolution that calls for replacing the current system under which employers must verify the eligibility of new employees to work in the United States.
The unanimously-passed statement also urges a new amnesty program and full workplace freedoms and rights for all employees--immigrant or native-born, documented or undocumented.
"Immigrants have played an important role in building democratic institutions," said Linda Chavez-Thompson, AFL-CIO executive vice president. "The current system of immigration enforcement in the U.S. is broken. If we are to have an immigration system that works, it must be orderly, responsible and fair."
The current system not only has failed to stop the flow of undocumented immigrants into this country--it also has led to discrimination and does not punish employers who exploit undocumented workers, "thus denying labor rights for all workers," the statement said.
"We strongly believe employer sanctions, as a nationwide policy applied to all workplaces, has failed and should be eliminated," the resolution proclaimed.
A new system should prevent employer discrimination against individuals who look or sound foreign. Workplace immigration laws should protect all employees and hold employers accountable for criminal activity, such as massive illegal importation of workers, or using workers' undocumented status as a way to break laws governing workplace safety, wages or the freedom to choose a union.
Union leaders noted that the recent case of undocumented hotel employees in Minneapolis who formed a union and now are faced with deportation shows why such workers should have protected immigration status.
"Employers often knowingly hire workers who are undocumented, and then when workers seek to improve working conditions, employers manipulate the law to fire or intimidate workers," Chavez-Thompson said. "This subverts the intent of the law and lowers working standards for all workers. The law should criminalize employer behavior, not punish workers."
The AFL-CIO's call for a new amnesty program could add support to proposals by agricultural groups calling for the adjustment of status of undocumented farm workers. However, it's unlikely the group will drop its objection to efforts to reform the H-2a foreign farm worker program.
Asserting that "[g]uest-worker programs too often are used to discriminate against U.S. workers, depress wages and distort labor markets," the resolution "renews our call for the halt to the expansion of guest-worker programs.
Greenspan Sees Need to Ease Entry of Foreign Workers
Federal Reserve Board Chairman Alan Greenspan testified Jan. 26 at a Senate Banking committee hearing on the general state of the economy.
At these hearings, the big news is usually the Fed's plans on interest-rate hikes. At this hearing, Sen. Jim Bunning (R-KY) questioned Greenspan on his views on whether the labor force should be expanded to prevent labor shortages from cooling the economic expansion.
"Do you believe we should do something with our laws, immigration or whatever it is, that would allow both high-tech and farm labor to come into the country to ease the burden as far as the problem with the labor force?" asked Bunning.
Greenspan responded, " I would certainly agree with that, Senator."
Farm Workers Turn Out To Laud AgJOBS Bill
Sen. Gordon Smith, the prime mover behind the AgJOBS bill (S. 1814), held two town meetings earlier this year on the measure, which would allow for the immigration status of certain undocumented farm workers to be adjusted and would reform the H-2a temporary foreign agricultural worker program.
Attending the meetings were hundreds of farm workers who would be affected by the bill's provisions. After hearing him explain AgJOBS, they told the senator how they felt about it.
Commenting from the Senate floor on Feb. 23, Sen. Smith said he felt the meetings were productive and increased his resolve to move AgJOBS forward.
IWC Issues Temporary Wage Order
The California Industrial Welfare Commission (IWC) has issued Interim Wage Order 2000. It amends the IWC's 15 industry and occupational orders to conform with provisions under AB 60, the Eight-Hour-Restoration and Workplace Flexibility Act, which took effect Jan. 1.
A copy of the interim order must be posted next to each pre-1998 order that covers your employees.
Only Section 10 (Penalties) of the interim order must be posted next to IWC Order No. 14 (Agricultural Occupations). That's because, except for its penalty provisions for failures to pay overtime premiums, AB 60 did not affect Order No. 14.
Most notably, employees covered by IWC Order No. 14 may still work up to 10 hours
in a workday and on six workdays of a workweek at their regular pay rate.
The interim order is available at the IWC's web site, along with a summary of and Statement of Basis for its provisions. Go to: www.dir.ca.gov/IWC/iwc.html.
Enclosed in this FELS Newsletter issue is a reduced copy of the interim order that is suitable for posting next to each IWC order that covers your employees.
An employer with only agricultural employees covered by Order No. 14 and non-agricultural employees covered by Order No. 4 (Professional, Technical, Clerical, Mechanical, and Similar Occupations) may no longer post IWC Order No. 4-98, which was voided by AB 60. (Such an employer, for example, does not have employees who pack or process commodities in a permanently-fixed structure on the farm.)
In the place of Order No. 4-98, such an employer must post the pre-1998 order, No. 4-89. It may be downloaded from www.dir.ca.gov/iwc/IWCarticle4.pdf. Or, get a copy from FELS: call 800-753-9073 or fax your request to 916-561-5696.
Aguirre, International, Visiting Farms
Growers in Oregon and California and their associations have been asking FELS about requests they've received from the firm Aguirre, International, to survey their farm employees.
FELS asked Monte Lake, an attorney with McGuiness Norris & Williams in Washington, D.C., for his opinion on the Aguirre surveys and whether employers should cooperate with them.
Lake responded that he encourages cooperation with Aguirre. "It is one of the means by which we document the high illegal population in the agricultural workforce, which has been helpful in the immigration debate. The information is strictly confidential," Lake said.
The U.S. Department of Labor (DOL) has since 1988 conducted national surveys of farm workers. Survey data have given policy makers and program service workers a reliable source of information about farm-worker demographics.
For more information about the surveys, visit DOL's web site at http:www2.dol. gov/dol/asp/public/programs/agworker/naws.htm.
ALRB Judge Says UFW Should Represent Coastal Berry Workers in Ventura County
The United Farm Workers could be on the verge of winning the right to represent Ventura County employees of the state's largest strawberry grower despite losing an election at the company's farms last spring.
A decision by an Administrative Law Judge of the California Agricultural Labor Relations Board says employees working for Coastal Berry of California operations in Ventura County are in one bargaining unit while those working in the Watson-ville area are in another.
That's significant because, while the UFW lost a runoff election last June among all Coastal employees statewide, it was the union of choice of employees who voted in Ventura County.
If the five-member ALRB agrees with Judge Thomas Sobel's ruling, the UFW would be certified to represent Coastal's Ventura County employees in labor negotiations with the company.
Even so, the ALRB would have to review dozens of election objections filed by the UFW to decide whether the its rival, the Coastal Berry of California Farm Workers Committee, should be certified to represent Watsonville-area employees.
"The workers in Ventura County want the UFW, so they should have what they voted for," UFW spokesman Marc Grossman said.
The ruling didn't surprise Rob Roy, who represents local farmers as president of the Ventura County Agricultural Association. "We had been anticipating all along the UFW would be trying to get through the back door what they couldn't get through the front door," Roy said.
Ag Labor and Employment Summit Set for May 4
The Third Annual Agricultural Labor and Employment Summit is Thursday, May 4, 8 a.m. to noon, at the Garden Ball Room, Harris Ranch, near the intersection of Interstate 5 and State Highway 198 in Coalinga.
Attorneys Michael Saqui and Mark Hanna, the CHP SAFE Program's Ray Madrigal, U.S. Wage and Hour Division Officer Gil Molina, and George Daniels of Farm Employers Labor Service (FELS) will address problem social security numbers, liability for and new rules on farm-worker transportation, changes in overtime and sick-leave rules, new-hire reporting rules, and more.
Sponsoring organizations are the CSU Fresno Center for Ag Business, AgSafe, the law firm Barsamian, Saqui and Moody, FELS, and the UC Agricultural Personnel Management Program.
To pre-register, send attendee name(s), firm/organization, address, and phone number to CSUF Center for Ag Business, 2910 E. Barstow Ave., M/S OF115, Fresno, CA 93740-8009. The fee for sponsoring members is $30; make checks payable to CSUF Foundation. Registration after April 28 is $5 more. For information, call (559) 278-4405.
Employment-Law Update For Year 2000 (Part 3)
By Michael C. Saqui and E. Mark Hanna, Law firm of Barsamian, Saqui and Moody. 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 circumstances.
Courts and administrative agencies were busy interpreting labor and employment laws in 1999. This article highlights last year's legal developments and discusses what they mean for employers. This is the last part of a three-part article on changes for the new millennium.
Outside-Salesperson Exemption
In June, the California Supreme Court addressed the issue of who qualifies for the outside-salesperson exemption from overtime and minimum-wage laws. The court ruled that California's outside-salesperson exemption is materially different than its federal-law counterpart.
Under federal law, the focus is on an employee's chief duties rather than on the amount of time spent engaged in sales activities.
In contrast, the court said that under California law, the amount of time an employee spends performing sales activities determines whether the employee is an outside salesperson.
Specifically, the court stated that these factors must be analyzed:
1. How does the employee actually spend his or her time?
2. Does the employee's practice differ from the employer's legitimate expectations?
3. If the employer is dissatisfied with the amount of time spent by the employee in performing certain tasks (e.g., selling), has the employer expressed that dissatisfaction to the employee?
4. If the employer did express such dissatisfaction, was that expression realistic, given the job's actual requirements?
What this means for employers: This case makes it more difficult to prove an employee is an outside salesperson. Thus, all applicable policies and job descriptions should be reviewed and, if necessary, revised to make it clear that actual sales activity is where the majority of time must be spent. If the employee deviates from this requirement, the employer must instruct the employee in writing to correct the deficiency.
Discharge for Refusal to Sign Arbitration Agreement is Not Wrongful
The California Court of Appeal ruled that an employer may fire or refuse to hire a person who will not sign a pre-dispute arbitration agreement as a condition of employment.
In this case, the employer required all employees to sign an agreement requiring work-related disputes to be resolved through binding arbitration. An employee fired for refusing to sign the agreement sued for wrongful discharge.
The employee alleged that firing an employee for refusing to give up one's constitutional right to a jury trial and a judicial forum for resolving disputes violates public policy. Disagreeing, the court found that rejecting a wrongful-discharge claim advances general social policies. This is so because public policy favors resolving disputes through arbitration. To impose liability in a case such as this would thwart that policy.
The employee also argued the arbitration agreement could not be valid because it could not be entered into knowingly and voluntarily when the employee had no choice but to sign it. The court disagreed here as well, holding a compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a take-it-or-leave-it basis.
What this means for employers: This decision allows employers to refuse to hire an individual who will not sign a pre-dispute arbitration agreement as a condition of employment. Any arbitration agreement, however, must be fairly written and specifically state what rights and/or clams are being waived in favor of arbitration.
Employers Should Evaluate Binding-Arbitration Provisions
Employers are urged to consult with legal counsel before using binding-arbitration agreements in the workplace, as their legal validity remains controversial.
In a recent case, the California Court of Appeal, finding an arbitration agreement was unconscionable, ruled an employee did not have to submit an employment dispute to arbitration.
The employee worked under a written employment agreement containing an arbitration clause that stated: Any controversy or claim arising out of, or relating to, this Agreement, or breach of this Agreement, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association . . . .
The clause required three arbitrators: each party was to select one, and those two arbitrators were to choose the third.
The arbitration clause further dictated: Each party shall pay the fees of the arbitrator selected by that party, the fees of the party's own attorneys, the expenses of the party's own witnesses, and any other expenses connected with presenting that party's case. All other costs of arbitration . . . shall be borne equally by the parties.
The employment agreement also gave the employer the right to take the employee to court and ask the court to prevent the employee from breaching the contract or from working for anyone else.
Finally, the agreement had a provision stating that if the employer took the employee to court either to prevent the employee from breaching the contract or to compel the employee to arbitrate, the loser would have to pay the winner all costs of the court action.
The court said these provisions were unconscionable and therefore void. The court explained that unconscionability generally means the absence of meaningful choice for one party plus unreasonably one-sided contract terms.
In 1999, mandatory arbitration provisions in employment contracts have come under particular scrutiny for unfairness, especially as to state and federal laws prohibiting employment discrimination.
For example, the court here stated: We perceive a significant trend in the law, both in this jurisdiction and elsewhere, towards a heightened awareness of potential for unfairness in pre-dispute arbitration clauses. We applaud this trend. In the final analysis, no dispute resolution method, whether in court or out, will be accepted by litigants unless it is (and perceived to be) fair, prompt and economical.
What this means for employers: Many similar cases may follow this one. Employers should carefully examine their arbitration agreements to ensure they contain the appropriate information.
FCRA Compliance May Be Required For Harassment Investigations
Investigation of a sexual-harassment complaint by an outside organization, such as a consultant or a law firm, may subject an employer to the requirements of the Fair Credit and Reporting Act (FCRA).
The Federal Trade Commission (FTC) asserts that a firm relied upon by an employer for help in investigating a harassment claim is a Credit Reporting Agency (CRA). The FTC says such a firm is a CRA because it furnishes consumer reports to a third party (the employer).
In determining whether a firm is a CRA, the FCRA does not distinguish whether the firm gets information from internal employer records or from an outside source. Any information assembled or evaluated by the firm about the consumer/employee becomes an investigative consumer report.
What this means for employers: An employee who is the subject of a harassment investigation is entitled to the forms of notice required by the FCRA.
Unemployment Insurance for Workers on Family and Medical Leave?
Unemployment Insurance Pilot Program: The Family Income to Respond to Significant Transitions (FIRST) Insurance Act was introduced in both the Senate and the House of Representatives. It would authorize an appropriation of $400 million for a FIRST Demonstration Program.
The legislation would fund pilot programs in the states using different mechanisms, including unemployment insurance and temporary-disability insurance, to provide paid leave to individuals caring for a newborn or adopted child and to employees taking other forms of leave authorized by the Family and Medical Leave Act of 1993 (FMLA).
Last May, President Clinton issued an executive memorandum directing the Secretary of Labor to implement federal regulations authorizing the states to enact legislation providing unemployment benefits to individuals taking leave to care for newborn or newly-adopted children.
What this means for employers: Expect to see legislation in the California Legislature that would authorize unemployment benefits to employees taking leave under the FMLA or the California Family Rights Act. Similar legislation authorizing disability payments for workers on such leaves will likely also be introduced.
Conclusion
Legislation and judicial and administrative decisions of last year will greatly affect California employers. Problems are likely simply because these complex laws and decisions will be applied to changing situations. Employers must learn about and respond appropriately to these changes to ensure compliance with them.
Time Spent by Employees Required to Ride in Company Buses is Hours Worked
Time spent by farm employees required to ride in employer-provided buses between pick-up points and their work fields is hours worked, the California Supreme Court ruled last month.
At the heart of the court's decision in Morillion vs. Royal Packing is the conclusion that agricultural employees required to travel on their employer's buses are "subject to the control of an employer." Their travel time and any required waiting time is thus hours worked under California Industrial Welfare Commission Order No. 14-80.
Most employees must be paid at least the minimum wage--now $5.75 an hour in California--for all hours worked in a pay period. Further, most agricultural employees in the state must receive overtime pay for hours worked beyond 10 in a workday or on the seventh day of work in a workweek.
The unanimous ruling overturned a contrary lower court decision in a case brought by employees of Salinas-based Royal Packing Co. At issue was Royal's requirement that employees report to specified locations to board buses in which they were transported to the fields for the day's work.
The ruling, however, is not likely to have a big impact on all of California agriculture because it does not apply to growers who merely provide transportation as an option, instead of mandating it, according to California Farm Bureau Federation associate counsel Carl Borden. The word "required" is the "linchpin."
Writing for the court, Justice Ming W. Chin noted: "Employers may provide optional free transportation to employees without having to pay them for their travel time, as long as employers do not require employees to use this transportation."
Borden had these thoughts for growers:
• If possible, don't require employees to use company-provided transportation. Make it optional.
• If business realities dictate that employees must ride in company vehicles, then issue an employment policy or other written statement stating that travel pay is at the minimum wage.
• Piece-rate employees who have not worked any overtime hours in a pay period are not entitled to extra pay as long as their pay-period earnings divided by their hours worked in the pay period yields at least the minimum wage.
Borden said he hopes employers who have been requiring employees to use company transportation won't respond to the court's decision by no longer providing it at all.
"The reasons an employer wants employees to ride in a company vehicle will continue to exist," he said. "And most, if not all, employees would still want free rides to and from work sites, even if not required to do so. Most employers should be able to sidestep the decision by making such transportation voluntary instead of mandatory."
Source: AgAlertŪ