2300 River Plaza Drive, Sacramento, California 95833-3239 (800) 753-9073
Quotation or reproduction in whole or part not permitted without express authorization.
Vol. 29, No. 7, July 2000
IN THIS ISSUE
Ag-Busnet - An UC Internet News List
E-Mail
And Internet Policies For Your Company
America's Ag Labor
Network
Court:
Poultry Processor Covered by MSPA
ASHIP Is Permanent
Employer May Change
Job-Security Pledge, Court Rules
Vineyard Employees
Reject UFW
Ag-Busnet - An UC Internet News List
University of California Area Personnel Management Farm Advisor Steve Sutter has created a new UC Davis e-mail list called ag-busnet.
This electronic network extends and supplements his printed APMP Newsletter, providing employers and farm workers with brief articles, news, and time-sensitive notices in the broad area of agricultural and personnel management.
Ag-busnet topics includes agricultural labor, payroll-tax and safety compliance, services for employers and farm workers, proposed and enacted legislation, and more.
Subscription is free, and the e-mail addresses on this list are kept confidential.
To join ag-busnet, e-mail a request that includes your name, firm or organization, city, and state to Steve Sutter at srsutter@ucdavis.edu. For more details, call Steve at (559) 456-7560.
E-Mail And Internet Policies For Your Company
(Source: E. Mark Hanna, Barsamian, Saqui & Moody, A Professional Corporation, Attorneys at Law)
E-mail and the World Wide Web offer fast and efficient communication, but they also provide new ways for creating discriminatory and hostile work environments.
Along with employee privacy issues, e-mail and the Internet create a minefield of employer liability.
Privacy Rights v. The Company's Need to Know: California law says an employer's right to monitor employees' e-mail and Internet use in the workplace is a balancing of whether employees have a legitimate right to privacy in their workplace, and whether this right is more compelling than an employer's legitimate business needs.
California employees have a right to privacy stated in the state Constitution, but California law also holds employers strictly liable for the acts of employees who create a hostile work environment. Therefore, privacy is not total.
Privacy Not Absolute: Unlike the United States Constitution, the California Constitution expressly provides that all persons have a right to privacy. However, the state constitutional right to privacy is not absolute. The law will allow some intrusion into an employee's privacy if it is justified by a competing interest. In the case of monitoring an employee's e-mail or Internet use, the competing and compelling interest is the employer's duty to create a hostile-free and discrimination-free work environment. In Hill v. National Collegiate Athletic Association, the California Supreme Court provided these guidelines to analyze how the state constitutional provision applies in an invasion of privacy case:
1. The complaining party (the employee) must first establish:
A. a legally-protected privacy interest that concerns protection of either information or autonomy (that is, a function recognized by social norms as private);
B. an objectively reasonable expectation of privacy under the circumstances; and
C. a serious invasion of the privacy interest.
2. The employer may respond with evidence of a legitimate, competing interest based on activities that are legally authorized and/or socially beneficial (that is, the fact that California law holds employers strictly liable for the hostile work environments created by their managing agents).
3. The complainant/employee then may introduce evidence there is a less intrusive alternative.
Leave an Electronic Trail: With e-mail and the Internet, the threat of liability is greater for employers because written communication creates an electronic trail.
On the federal level, the Electronic Communications Privacy Act (ECPA) of 1986 prohibits unauthorized access to, or retrieval of, a wire or electronic communication while it is in electronic storage. (An exception to the ECPA that exempts the provider of the communications service from prohibitions on access and disclosure may protect employers who own their own systems, and possibly messages sent internally.)
What remains is a balancing act. Employers have a legitimate need to monitor how their employees use workplace technology, and employees have a constitutional right to privacy.
Create a Useful Policy: As technology continues to expand workplace horizons, employers will continue to face privacy issues. Courts weigh the degree of intrusion into an employee area of privacy, such as monitoring e-mail or Internet use, against the employer's legitimate need to maintain an effective workforce.
An employer should have a policy addressing the use of, and access to, e-mail and the Internet to eliminate any reasonable expectation of privacy in these communications. An employer should also post throughout the workplace notices explaining that employees do not have a reasonable expectation of privacy in their employer-provided technology.
Employers also can use a simple statement that comes on the screen when employees access their e-mail or Internet saying: "This is not a confidential means of communication." This message lets employees know that, if they use e-mail or the Internet for inappropriate or illegal reasons, they do so at their own risk.
E-Mail as Discovery Material: Courts are approaching electronic data in a way no one could have anticipated, by allowing the discovery in litigation of backup systems consisting of hundreds of thousands of tapes. This can be dangerous, because computer users often put messages into e-mail communications that they would never put into writing on real documents. Also, e-mail lasts longer than most users realize. Whenever an employee sends a message over the company's network, two or three copies of the message are stored on file servers before being transferred to archive tapes.
The increased role of e-mail in litigation presents serious problems. First, e-mail messages are easier to falsify than handwritten or signed documents. Second, lawyers' requests for electronic evidence have made the already burdensome discovery process even more onerous for companies, as there are few limits to what lawyers can demand during discovery, and the defendant is usually required to pay for the process of cataloguing and/or sorting its own records. When this process involves retrieving millions of pages of e-mail stored on hard drives or optical disks, the costs can exceed hundreds of thousands of dollars before the case even reaches trial.
Employers should warn employees to use the same care in preparing e-mail messages that they would in drafting a letter on paper. E-mail often lasts longer than messages on paper and is easily forwarded to many other readers. Remind users that a promise made in an e-mail message is just as binding as one made in a letter, and that discriminatory or harassing comments are improper in any form, whether oral, written on paper, or posted in an e-mail message. Finally, inform employees that e-mail messages should never refer to any person's race, color, religion, sex, age, national origin, disabilities, or sexual orientation.
Five Steps to an Office E-Mail And Internet Policy: To help avoid costly invasion of privacy claims, employers who plan to keep electronic tabs on employees should fully, fairly and regularly communicate this information to their employees. Employers also should implement these practices:
1. Include an electronic media policy in your employee handbook that explains the following:
A. Employees do not have a reasonable expectation of privacy in their e-mail or Internet use, and the employer has software and systems in place to monitor and record all Internet use, if applicable.
B. Employees may use employer-provided technology only for work-related purposes.
C. Employees will be disciplined, up to and including termination, if they use employer-provided technology for anything other than work-related purposes.
D. Any software or files downloaded off the Internet become the property of the employer.
E. Any use of employer-provided technology for illegal purposes is grounds for immediate dismissal, and management will cooperate with any law enforcement agency.
F. The employer reserves the right to inspect any and all files stored in private areas of the employer's network to assure compliance with this policy.
G. Sexually explicit material may not be displayed, archived, stored, distributed, edited or recorded using the employer's network or computing resources.
2. Train your employees about all your employment policies. Ask your employees to sign a statement saying they have received, read, and understand the employer's handbook and that they understand they do not have a right to privacy in employer-provided technology.
3. The employer should take steps to discipline employees who refuse to follow such policies. For example, if the employer has an e-mail policy stating that employees should not use e-mail for anything but company business and an employee sends an off color joke through e-mail to co-workers, the employee should receive appropriate discipline as dictated by the employer's policy.
4. Employers should always swiftly investigate any complaints of a hostile work environment or discrimination stemming from inappropriate use of employer-provided technology. It is a technical violation of the California anti-discrimination laws to fail to investigate such a claim. Investigations also send the message to employees that the employer cares and is striving to create a safe place to work.
5. Make sure employee e-mails are accessed only for essential administrative and investigate purposes and only when there is a reasonable suspicion of work-related misconduct.
Sample Voicemail, E-mail and Internet Policy Statement: The following is a sample policy designed to protect employers who have voice-mail and/or electronic mail (e-mail) in the workplace. Because this area of law is rapidly developing and changing, this policy should be thoroughly reviewed by an individual employer intending to implement it, tailored to the employer's individual needs and reviewed by legal counsel before distribution.
VOICEMAIL, E-MAIL AND
INTERNET POLICY
Company-maintained systems: Voice-mail and electronic mail (e-mail) systems are maintained by this company in order to facilitate company business. Therefore, all messages sent, received, composed and/or stored on these systems are property of the Company.
Personal use extremely limited: These systems are to be used by employees in conducting company business and are not for employees' personal use. The company understands that on occasion immediate family members may need to leave messages on the voice-mail system for an employee, and is willing to accommodate such personal use of the system to a limited degree. However, personal use of the voice-mail systems which interferes with an employee's work performance will not be tolerated.
Privacy not guaranteed: The company reserves the right to access an employee's voice-mail (outgoing and incoming) and e-mail messages at any time. Therefore, an employee's outgoing voice-mail or e-mail message must not indicate to the caller that his/her incoming message will be confidential or private. The existence of a password on either system is not intended to indicate that messages will remain private, and passwords must be made known to the company by all employees.
Erasure not reliable: Employees should be aware that even when a message has been erased, it still may be possible to retrieve it from a backup system. Therefore, employees should not rely on the erasure of messages to assume a message has remained private.
Message access: Messages on the voice-mail and e-mail systems are to be accessed only by the intended recipient and by others at the direct request of the intended recipient. However, the company reserves the right to access messages on both systems at any time. Any attempt by persons other than the above to access messages on either system will constitute a serious violation of company policy.
Harassment and discrimination: Messages on the company's voice-mail and e-mail systems are subject to the same policies regarding harassment and discrimination as are any other workplace communications. Offensive, harassing or discriminatory content in messages will not be tolerated.
USDA Office of the Chief Economist Al French announced the launch of AgNet, a free Internet-based electronic service to facilitate recruitment of agricultural workers by farm employers and the movement of agricultural workers to areas with labor supply needs.
AgNet is managed by the AgNet Partnership, consisting of farm worker and grower organizations, and supported by the U.S. Department of Labor and the USDA.
If the system is successful, use of AgNet for recruitment will be taken into account in assessing the adequacy of a grower's effort to recruit U.S. workers before the admission of foreign workers.
"AgNet will alleviate problems employers have had in the past with mismatched SSNs by conducting a prior SSN match," said French.
A review of AgNet is at: http://migration.ucdavis.edu/rmn/cfra/ucdapr2000/french.htm.
Court: Poultry Processor Covered by MSPA
In an opinion by the United States District Court for the Western District of Texas, decided March 23, 1999, a poultry processor and some of its employees were found to be covered by the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
The significance of this case is two-fold. First, the court ruled that employment with a high turnover rate--even if it's intended to be indefinite in duration--is still considered to be "of a temporary nature" and thus potentially subject to the MSPA.
Second, the court ruled that a poultry processor is an agricultural employer covered by the MSPA, even where the processor did not raise the birds. Processors of other agricultural commodities would likewise be covered under the court's interpretation, which cited in the MSPA to language encompassing broad definitions of "agricultural employer" and "agricultural employment."
Employers covered by the MSPA must follow a broad range of worker protection rules that require, among other things, written and forthright disclosures in the workers' language at the time of recruitment. It prohibits false and misleading assurances about employment policies and practices, housing conditions, and transportation arrangements for workers. It also regulates housing and transportation standards.
The defendant, Case Farms of Ohio, Inc. operates a chicken processing plant in Ohio, where live chickens are processed into market-ready packages of chicken parts. Case Farms employees perform a range of jobs, which include eviscerating, deboning, receiving, grading, wrapping, weighing, and washing chickens.
The basis for the civil action was mistreatment of employees in both the recruitment process and working and living conditions regulated by the MSPA.
Case Farms contended the civil action did not qualify for the protections afforded by the MSPA, and the farm labor contractors who supplied the employees were responsible for whatever violations of the law that had occurred. Case Farms maintained the employees' work at Case Farms was neither "temporary" nor "seasonal," so as to exclude employees from the MSPA's regulatory protections of "migrant workers."
The MSPA defines a "migrant agricultural worker" as "an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence."
The MSPA provides protections for both "seasonal" and "migrant" agricultural workers. The Department of Labor's interpretive regulations define a temporary worker as one who "is employed for a limited time only or his performance is contemplated for a particular piece of work, usually of short duration." The regulations further provide that "generally, employment which is contemplated to continue indefinitely is not temporary."
Case Farms' contention was that the employees' employment at Case Farms was not "for a limited time," but was instead for an indefinite tenure. In fact, a number of employees testified that they understood that they could work at Case Farms indefinitely. However, Case Farms' employees acknowledged that the company historically had high turnover rates at the Case Farms processing plan, and that such high turnover is due to the nature of its business. Among the factors presented as contributing to the high turnover rates at the Ohio plant are its location 30 to 40 miles from Canton, Ohio (where the closest practical housing is located).
The mean average length of employment as Case Farms for employees was 6.6 weeks. The longest period of employment by a employee was 30 weeks, the shortest period of employment was one week. Based on undisputed information, the employees contended that the "extremely high annual turnover demonstrates that, in reality, the nature of employment at Case Farms' processing plant was short-term or temporary" despite the fact that Case Farms' plant operates year-round. Thus, the employees were "migrant" employees.
The court thus determined that Case Farms' employees did qualify as "temporary workers," thereby qualifying for legal definition of "migrant agricultural worker" under the MSPA. The court stated: "[I]t is unrefuted that in almost all, if not all, cases, employees left their families and permanent residences in Texas to go to Ohio to work. In some instances, employees were given bus tickets from Texas. They arrived, in most cases, without housing, transportation, or furniture. Once in Ohio, as mentioned previously, employees' stays were short, with a mean average length of between six and seven weeks. Such temporary tenure was to be expected by defendant Case Farms, given its incredibly high yearly turnover rate. This court has considered the sealed turn-over rates of the Case Farms' plant in Ohio, and finds them compelling."
The continued by stating "[C]ongress intended to improve protections, previously provided by the FLCRA, for migrant workers, because 'in many cases the contractor tends to exaggerate conditions of employment when he recruits workers in their home base or that he fails to inform them of their working conditions at all; tends to transport them in unsafe vehicles; fails to furnish promised housing or else furnishes substandard and unsanitary housing; . . .' These are virtually the same allegations at issue in this civil action. Because the economic reality of the employees' position is that their work for Case Farms was of a temporary nature, it is determined that employees are 'migrant agricultural workers' for the purposes of the MSWPA."
Vicky Heza, Division of Occupational Safety and Health's acting Chief Deputy for enforcement has announced that DOSH's new Agricultural Safety and Health Inspection Project (ASHIP) will become a permanent annual enforcement program. The objective of ASHIP is to increase enforcement investigations and consultations in agriculture.
A revised 10-page Cal/OSHA publication describing the project highlights the safety topics that will be targeted during inspections. They are:
Machinery-related accidents--agricultural equipment
Field sanitation
Heat stress
Short-handled and long-handled agricultural tools
Prolonged stoop labor
Skin conditions and injuries
Electrocution by contact with high-voltage lines
ASHIP Goals are: Increase the total number of programmed and unprogrammed (complaint, referral, follow-up and accident) enforcement investigations by 5% (over 1999 baseline) per year that are conducted in agriculture, including but not limited to these SIC Codes: (a) Agricultural Production--Crops (SIC Codes 011 through 019); and (b) Agricultural Services (SIC Codes 071 through 078); (2) Increase the number of consultations by 5% (over 1999 baseline) per year which are conducted in agriculture; and (3) reduce by 5% per year the number of fatal and nonfatal serious injuries and illnesses in agriculture.
ASHIP Timeline ASHIP began in July 1999 and is part of Cal/OSHA's Five-Year Strategic Plan.
In the section speaking to the use of agricultural tools and prolonged stoop labor, the publication says: "[I]n addition, the practice of hand weeding may contribute to the development of back, shoulder, arm, wrist, and hand injuries.
These injuries can result from a combination of harmful effects on the back (for example, prolonged stooping and bending) and upper extremities (for example, repetitive motions and forceful exertions when pulling weeds)."
Emloyers should heed this view before requiring employees to do that kind of work.
Employer May Change Job-Security Pledge, Court Rules
Handing a significant victory to employers, a sharply-split California Supreme Court ruled that an employer may unilaterally terminate a promise of job security to employees as long as reasonable conditions of timely notice and vested benefits are protected.
The 4-3 opinion was issued in response to a question posed to the state court by the 9th U.S. Circuit Court of Appeals in a federal employment dispute between Pacific Bell and eight management employees who were laid off in 1991 despite a company policy promising new jobs if old positions were eliminated.
No precedent applied to the state law issue, thus prompting the federal court to seek an answer from the state high court.
Justice Ming W. Chin declared: "An employer may unilaterally terminate a policy that contains a specified condition if the condition is one of indefinite duration and the employer effects the change after a reasonable time, on reasonable notice, and without interfering with the employees' vested benefits."
In 1986, Pacific Bell promised it would find new jobs for managers if old jobs were cut as long as there was no "change that will materially alter Pacific Bell's business plan achievement."
In 1991, two years after warning employees it might back out of the promise, it dropped the policy in a cost-cutting move.
Some 60 Pacific Bell managers sued in federal district court in Oakland alleging their termination was contrary to company personnel policy and amounted to breach of contract, breach of fiduciary duty, fraud and a violation of the federal Employee Retirement Income Security Act (ERISA).
A spokesman for Pacific Bell, Rodd Aubrey, issued a statement welcoming the ruling, saying it "clarifies important principles of employment law and validates that Pacific Bell was acting appropriately in managing its employment policies."
While the decision allows employers unilaterally to terminate an employment policy, even if specified conditions for altering the policy are not met, the ruling does have a down side for employers.
The decision marks the first time in years that the high court has clearly articulated that employment policies such as a no-layoff guarantee are enforceable. The opinion makes it clear that if an employer imposes conditions on its employment policy, it is bound by the policy until it properly changes the policy.
The United Farm Workers lost a bid to unionize workers at a Monterey County vineyard last month.
Employees of Coastal Valley Management Co. at the San Bernabe Vineyard in Monterey rejected the union, 153-42. The vineyard grows wine grapes.
Sixty percent of the workers, mostly grape pickers, signed union authorization cards, which triggered the election, said UFW spokesman Marc Grossman.
The result of the election were 153 for no union, 42 for the UFW and 195 challenged ballots.
The UFW had campaigned for only a short time at the vineyard, which has seen at least five failed attempts at unionization.
