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Vol.
29, No. 5, May 2000
In This Issue
UFW, Rival Certified to
Represent Strawberry Workers
Nursery Employees Pick
UFW
What You Need from
Your FLC
"Lifestyle"
Discrimination Prohibited
New Law Limits Employer's
Access to Medical Records
Transportation
Law Goes Into Effect
Workplace Searches
Rest and Meal Periods Must be
Provided to Employees
UFW, Rival Certified to Represent Strawberry Workers
The United Farm Workers gained its first major stake in California's strawberry industry in a tradeoff that leaves the union and a rival upstart representing two different groups of employees at the nation's largest strawberry grower. The UFW and the Coastal Berry of California Farm Workers Committee both claimed victory when each was certified by the state farm-labor board May 4 to represent employees at one of two Coastal Berry Company locations.
The UFW won the right to bargain for 700 Coastal Berry pickers in Ventura. The Coastal Berry of California Farm Workers Committee will represent more than 800 pickers in Monterey and Santa Cruz.
"This is a complete vindication for our committee," said Salinas attorney Jim Gumberg, who represents the Coastal Berry Farm Workers Committee.
UFW President Arturo Rodriguez also declared a victory. Until now, the UFW's only success in the strawberry business was representing about 40 workers at Swanton Berry Farms in Davenport, the state's largest producer of organic strawberries.
The two unions are now expected to negotiate separate contracts with Watsonville-based Coastal Berry, the largest single employer of strawberry pickers in the country.
The UFW began trying to organize pickers in the state's $600 million strawberry industry in 1995, a goal that became the union's top priority.
The UFW was trying to spark a resurgence reminiscent of the mid-1970s and early 1980s, when tens of thousands of workers had joined it.
The UFW decided to start with Coastal Berry, owned in the mid-1990s by Monsanto Co.
Under pressure from Congress and Vice President Al Gore to resolve its labor problems, Monsanto sold Coastal Berry to investors who agreed to support employee efforts to join the UFW or any other union.
But the UFW's effort soon unraveled. Outside organizers were not welcomed by tight-knit communities, labor experts said. And when votes were held in the fields, most workers statewide chose the upstart committee over the UFW. Charges of misconduct, ranging from formal technicalities to brawls in the fields, soon arose.
But this week the UFW withdrew its objections in exchange for certification as the bargaining agent for the unit of Ventura employees, who voted for the UFW last year.
The action is notable for producing two certifications from an election for which the UFW had petitioned and which the Agricultural Labor Relations Board conducted in May-June 1999 to cover a single statewide bargaining unit. Three keys to making possible this result were:
(1) the Board's acceptance last month of a hearing officer's opinion that workers in the two areas lack the requisite community of interest to constitute a single bargaining unit;
(2) the joint request by the UFW and the Coastal Berry Farm Workers Committee on May 3 for a two-unit scheme, along with the UFW's withdrawal of election objections; and
(3) the separate tallying of votes by region in last year's election.
While the Coastal Berry Farm Workers Committee out-polled the UFW overall--725-616--the UFW won more votes in Ventura--321-277.
Results of a 1998 election that had favored the Farm Workers Committee over the UFW were set aside in May 1999 because 162 Ventura workers had been inadvertently omitted from the list of eligible voters in an election for a single statewide unit.
(Sources: The Sacramento Bee; Associated Press; Howard R. Rosenberg, Extension Labor Management Specialist, Dept of Agricultural and Resource Economics, University of California)
Employees at a Petaluma nursery marked Cinco de Mayo by voting to be represented by the United Farm Workers union. Employees at Vinifera Inc., voted 35 to five for the UFW in the election conducted by the state Agricultural Labor Relations Board.
The Vinifera vote is the UFW's 20th election victory since union President Arturo Rodriguez kicked off a new organizing drive in 1994.
Since then, the UFW has also signed 24 contracts with growers. UFW membership has grown to more than 27,000 today, from about 20,000 in 1994.
The UFW is negotiating with Gallo of Sonoma, the county's largest wine grape producer. The union also has contracts with three Napa County and one Mendocino County wine grape companies.
A grower who uses a farm labor contractor (FLC) should not assume he isn't liable for wage-payment and other violations committed by the FLC.
This is because it is easy for a grower to be found to be either the employer of the FLC and the workers provided by the FLC, or a joint employer of the FLC's employees.
The U. S. Department of Labor in 1997 revised its regulation on this subject. The revised rule states in effect that unless the grower gives the FLC total control in harvesting or otherwise servicing the grower's crop, without any interference by the grower, the DOL will consider the grower a joint employer of the FLC's employees.
Besides the joint-employment issue, in the event an employee is injured, even on the way to work, chances are everyone associated with the employee will be embroiled in a lawsuit.
Because of this potential liability, a grower should receive from the FLC and maintain documents indicating compliance by the FLC with various laws. Further, growers must keep certain documents pertaining to employees supplied an FLC.
Below are two checklists. One lists things a grower must do or keep; the other lists things a grower should do or keep.
REQUIRED:
1. See the FLC's current valid federal Certificate of Registration. Where the FLC will provide housing or transportation for workers, the certificate must authorize these activities.
2. Get and keep a copy of the FLC's current valid California license; failing that, at least confirm with the FLC that he is licensed and inspect the license to ascertain it is valid on its face.
3. Keep for at least three years a copy of payroll records that your FLC gives you for workers supplied to you, showing this information for each worker for each pay period:
a. Name, permanent address and Social Security number
b. Basis on which wages are paid (for example, "$6/hr." or "$.20/vine pruned")
c. Number of piecework units produced, if applicable
d. Number of hours worked
e. Total pay-period earnings
f. Purpose and amount of any sum withheld
g. Net pay
RECOMMENDED:
1. Have the FLC direct his workers' compensation insurer to send you a certificate of insurance.
2. Verify that the FLC or any employee of the FLC who drives any vehicle used to transport workers has a federal Certificate of Registration that authorizes such driving and that the driver has a current valid motor vehicle operator's license or permit. Verify that any vehicle used by the FLC to transport workers has a current California vehicle inspection sticker.
a. Get and keep a copy of the certificate.
b. If transportation authorized, get and keep a copy of:
i. Vehicle Mechanical Inspection Form WH-514 for each vehicle
ii. Doctor's Certificate for each driver
iii. CHP Farm Labor Vehicle inspection
iv. Driver's license of each driver used by the FLC (farm labor vehicle drivers must have a Class B license with a Farm Labor Vehicle endorsement)
v. Liability Insurance Policy & Form MBCU 3298
3. If FLC is authorized to house employees, get and keep housing permits and current inspection reports on file.
4. Verify that the FLC posts required notices and posters, either at the worksite or at a place frequented by the FLC's employees (for example, at the FLC's office).
5. Have a written agreement with the FLC.
6. Ask enforcement agencies about the FLC's status
a. U.S. Dept. of Labor, Wage and Hour Division (800-800-0235)
b. California Division of Labor Standards Enforcement (Labor Commissioner) (415-703-4854)
7. Ask for information that proves tax status:
a. Internal Revenue Service (IRS) Tax Identification Number
b. IRS Tax Information Authorization (Form 8821)
c. California Employment Development Department registration number
d. California Franchise Tax Board registration number
8. Other business licences:
a. Current Business License on file
b. County Ag Commissioner Registration Form for each county where the FLC does business
9. OSHA Compliance:
a. Injury and Illness Prevention Program
b. Safety Training documentation
c. Safety Inspections documented
d. Written Hazard Communication Program
e. MSDS's available to employees
f. CPR/First Aid Training Certificates
g. Emergency Action Plan
10. Pesticide Compliance--Obtain assurance that FLC will do the following:
a. Field employee pesticide training documentation
b Handler pesticide training documentation
c. Pesticide Safety Information Sheet A-9 posted
d. PSIS A-8 posted
e. Pesticide MSDS's available to employees
11. FLC/Company Agreement:
a. Agreement has been signed by FLC
b. Will secure a Labor Payment Bond
c. Will secure comprehensive general liability insurance and making company as additional insured
d. Agreed to indemnification and hold-harmless clause
e. Agreed to binding arbitration
f. Will provide payroll information with each invoice
g. Will provide evidence of state/federal employment tax payments
h. Will provide field sanitation, when required by law
i. Will post required state and federal notices
j. Will maintain INS Form I-9 on all employees
k. Will allow company to inspect related employment documents
l. Will call office for up-to-date pesticide applications and hazard communication information before entering production areas
m. Has a hygiene practices and crop handling policy for employees
"Lifestyle" Discrimination Prohibited
On Oct. 6, 1999, Governor Davis signed AB 1689 into law. The law amends Labor Code section 96 to allow the Labor Commissioner to hear discrimination claims for loss of wages (including claims for demotion, suspension or discharge) for "lawful conduct occurring during non-working hours away from the employer's premises."
AB 1689's limited legislative history reveals this bill was supported almost entirely by unions and was intended to prohibit employers from attempting to coerce employees to follow (or refrain from following) any particular line of political action or activity.
WHAT THIS MEANS FOR EMPLOYERS: It is unclear whether this new law merely expands the jurisdiction of the Labor Commissioner or creates a whole new (and very broad) protected classification for claims in civil court. The legislative history shows that the statute was intended to "reduce court congestion" by creating an "alternative administrative remedy." However, it is expected that plaintiffs' attorneys will use this new law as a basis for wrongful termination in violation of public-policy claims.
This new law underscores the need to keep employment decision based on events and facts directly related to work performance. As a result of the new law, it will now be riskier than ever to take detrimental employment action because:
-An employee holds another job.
-An employee makes statements to the press (not directly related to work) that are contrary to the employer's interest.
-An employee engages in consensual sexual conduct with a coworker outside of the workplace.
-An employee engaged in embarrassing (but lawful) conduct outside of the workplace.
Unfortunately, neither the legislative history nor the language of the statute allow an accurate prediction of whether this statute is a time bomb waiting to explode, or merely an addition to the Labor Commissioner's jurisdiction.
(Source: Mark Hanna, law firm of Barsamian, Saqui & Moody)
New Law Limits Employer's Access to Medical Records
Assembly Bill 435, which became law on Jan. 1, severely limits the type of information that insurance claims administrators may provide to employers about injured workers.
AB 435 prohibits workers' compensation insurers from disclosing to employers any medical information about an employee, including information related to an employee's workers' compensation claim, except in the very narrow circumstances described below.
THE WORKERS' COMPENSATION EXEMPTION: California's Confidentiality of Medical Information Act (COMIA) (Cal. Civil Code section 56 et seq.) prohibits health-care providers from disclosing a patient's medical information without the patient's authorization. COMIA exempts from this authorization requirement disclosure of a patient's medical records to an insurance company pursuant to a workers' compensation claim.
Further, California Labor Code section 3762 requires workers' compensation insurers to discuss with an employer any information in an employee's claim file that will affect the employer's insurance premium and to provide the employer with copies of documents affecting the employer's insurance premium, including medical records.
AB 435 limits the workers' compensation exemption under the COMIA and significantly restricts the scope of medical information employers are entitled to receive under the mandatory disclosure provisions in Labor Code 3762.
WHAT THIS MEANS FOR EMPLOYERS: These amendments appear to limit an employer's access to medical information related to workers' compensation claims. But the limits go against an employer's entitlement to "all elements" of a premium-affecting claim under existing law.
Still, the exceptions seem to be very broad for an employer's purposes. An employer still may receive a diagnosis that will affect the employer's premium (which would be the situation for most claims). Also, the employer is entitled to information that will enable the employer to modify the employee's work duties.
Arguably, these exceptions still entitle an employer to quite a bit of information. Meanwhile, expect that your compensation claims representatives will share less information with you. This is all the more reason to have up-to-date job descriptions and physical-restriction questionnaires for each job.
(Source: Mark Hanna, law firm of Barsamian, Saqui & Moody)
Appeal Rejected in Self-Propelled Tractor Case
The California Supreme Court ruled in favor of Western Growers Association by rejecting California Rural Legal Association's appeal in the M & M Packing case.
Lower courts ruled that the company's safety rules and its installation of kill switches had satisfied the requirement of separate brake and throttle controls for furrow-guided tractors operated at less than two miles per hour.
The case may not be cited as binding precedent, and employers should seek advice about its applicability to their own unique situations.
(Source: Terry O'Connor, Western Growers Law Group; 831-422-8379; toconnor@wga.com)
Harold Rose Appointed to IWC
Gov. Gray Davis announced the appointment of Harold A. Rose to the Industrial Welfare Commission.
Mr. Rose, 60, of Santa Rosa, is a retired annuitant with the Department of Forestry and Fire Protection, a position he has held since 1998. Previously, he worked 35 years with the California Department of Forestry (CDF). During his service with CDF, Mr. Rose was a firefighter, an engineer and a captain. From 1991 to 1994, he served as an elected statewide rank and file representative for the CDF firefighters.
IWC members do not receive a salary. This position requires Senate confirmation.
(Source: Terry O'Connor Western Growers Law Group; 831-422-8379; toconnor@wga.com)
Transportation Law Goes Into Effect
Starting May 1, any person who operates, or any owner or farm labor contractor who knowingly allows the operation of, a farm labor vehicle in violation of annual inspection and seat-belt requirements will be fined at least $1,000 per violation. No part of the fine may be suspended.
If passengers are in the vehicle, the fine is increased by $500 per passenger, not to exceed a total of $5,000.
For more information, contact Mike Webb at Western Growers Law Group's legal hotline at 1-877-WGA4LAW (1-877-942-4529).
Workplace searches should be handled very carefully, advises Western Growers Law Group. If done improperly, a workplace search may violate the right-of-privacy provision of the California Constitution. Another consideration is that employees may have a protected expectation of privacy in workspaces such as offices, desks and lockers.
If an employer has a clear policy allowing for reasonable searches of employee areas, its employees' expectations of privacy will be diminished. The objectives of any search should be job-related, and the degree of intrusion should be restricted to what is reasonably necessary for the search to be deemed reasonable.
In the absence of voluntary consent or a pre-announced search policy, an employer may not conduct a general search of an employee's property or person, even, for example, where the employer has probable cause to believe the employee possesses illegal drugs. Rather, the employer must confine the search to items in plain view, to which no reasonable expectation of privacy attaches.
The employer's search-and-inspection policy should be clearly established, easily understood, and fairly administered. It should be communicated to all employees by a statement in the employee handbook.
Employees should be advised that all areas are subject to search at all times at the employer's discretion without prior notification. Areas would include, as appropriate, lockers, toolboxes, lunch boxes, desks, briefcases, and purses. As a morale consideration, the policy should state it is intended as a deterrent, and therefore a request to search is not necessarily indicative of any individualized suspicion.
Persons subject to these policies will ordinarily be deemed to have consented to them, but employers should seek express written consent, where ever practical, before proceeding with an intrusive search. Searches of areas that are not explicitly mentioned in the employer's policy should be conducted only when the employer has a reasonable basis for believing that contraband or evidence of misconduct is present, barring some other compelling business reason that supports such a search.
Searches of an employee's person, of course, are more sensitive. It would be prudent for the employer to engage in personal searches only where there is a compelling probability of an employee's misconduct--for example, where an employee was observed removing property or was the only person with access to the property when the loss occurred. In all cases, care should be taken to avoid embarrassment to the employee or a public confrontation.
FELS has developed a sample policy as outlined above. The Spanish version is available to FELS subscribers. Here is that policy:
Inspections
To protect its property and the safety of its employees and to maintain proper discipline, the Company reserves the right to inspect, without giving employees any notice of the inspection, all areas of and adjacent to its premises, as well as all other areas under its control. These areas include, but are not limited to, employee lockers, desks, Company and employee vehicles, notebooks, electronic data (computer), tool boxes, parking lots and buildings.
The Company may also inspect company-operated living quarters, but will give affected employees reasonable notice of the inspection except in the case of an emergency.
Rest and Meal Periods Must be Provided to Employees
Federal law does not require either rest or meal periods for employees. Orders of the California Industrial Welfare Commission (IWC), however, do require them. California Labor Code section 512 also requires meal periods.
Rest Periods: Employers in California must authorize and permit all employees to take rest periods, which must be counted as hours worked. To the extent it is practical to do so, rest periods must be in the middle of each work period. The amount of rest-period time is based on total hours worked daily, with a break of at least 10 minutes for each four hours worked (or major fraction of four hours). Exception: A rest period need not be authorized for an employee whose total daily work time is less than 3½ hours.
Meal Periods: After a work period of not more than five hours, employees must be allowed a meal period of at least 30 minutes. However, where a work period of not more than six hours will complete the day's work, the employer and employee may agree to waive the meal period.
A meal period is not counted as time worked as long as employees are relieved of all duty and allowed to leave the employer's premises during it. Otherwise, it is an "on duty" meal period and counted as time worked.
Further, an "on duty" meal period is permitted only where both (1) the nature of the work prevents an employee from being relieved of all duty and (2) the employer and employee have agreed in writing to an on-the-job paid meal period.
IWC orders other than No. 14 further provide that an employee who works more than 10 hours in a day must be provided a second meal period of at least 30 minutes. Exception: If the total hours worked is no more than 12 hours, the employer and employee may agree to waive the second meal period, but only if they did not waive the first meal period.
