Vol. 31, No. 7, July 2002
In This Issue

FLC License Verification Underway
IIP Program Held Out-of-Date
First-Aid Workers' Compensation Cases
Supervisors Beware
CUIDADO SUPERVISORES (Supervisors Beware)
Union Vote Disputed
Employer Liability for Cellular-Phone Use
FLC Laws Provide No Exception to WC Exclusive Remedy
Flow of Undocumented Aliens
DOSH Inspections & Violations
Safety Sheet: Applying Pesticides

FLC License Verification Underway

In California, no person may knowingly enter into an agreement for the services of a farm labor contractor (FLC) who is not licensed as such.

According to Minerva Duff, Farm Labor Contractor Licensing and Registration Manager, Division of Labor Standards Enforcement (DLSE), every grower must, starting July 1, 2002, verify with the DLSE the license of every farm labor contractor (FLC) they use. (Editor's note: Labor Code section 1695.7, subdivision (e), however, provides that the obligation to verify licenses and penalties for failure to do so will not apply until three months after the unit has been certified as operational by the State Auditor. It seems, then, that the earliest for that to occur would be Oct.1, 2002.)

By the close of the third business day after the day on which he engaged an FLC, a grower must contact the DLSE license verification unit to request confirmation of the validity of the FLC's license. The request must be made by telephone, fax, Website visit, e-mail, or other means as determined by the Labor Commissioner.

The verification unit will assign a verification number to the grower's request and, within 24 hours after having received the request, send by mail or, if available, by fax or e-mail, confirmation of the license's validity. The grower must record in his files the verification number provided by the unit. This verification serves as conclusive evidence that the grower complied with the verification process and remains valid until the FLC's license expires. While awaiting verification, the grower may receive services from the FLC and would not be liable if the license were to prove to be invalid.

In addition, before contracting with an FLC, a grower must obtain a copy of the FLC's license. The grower must keep the copy for three years after the contract's termination. The grower must inspect the FLC's license to determine whether it appears to be genuine on its face.

These requirements also apply to an FLC who contracts with another FLC for labor.

A grower or FLC who violates these requirements is subject to a civil action by an aggrieved worker for any claim arising from the contract that directly results from any violation committed by an unlicensed FLC of any state law regulating wages, housing, pesticides or transportation. Further, a violation is punishable as a misdemeanor by a fine of up to $1,000 and/or six months imprisonment in a county jail.

Duff says that any one of five methods can be used to verify an FLC's license:

1. By U.S. Mail:

Department of Industrial Relations

Division of Labor Standards Enforcement

Farm Labor Contractor Verification

P.O. Box 420603

San Francisco, CA 94142

2. By Telephone:

Fresno: (559) 248-1893 or

San Francisco: (415) 703-4854
3. By Fax:

Fresno: (559) 248-1895 or

San Francisco: (415) 703-4808

4. By E-mail:

FLCLicensingVerification@dir.ca.gov

5. By Internet Entry form:

http://www.dir.ca.gov/dlse/flcverify/flcverify.html

At a minimum, you must provide the DLSE with the FLC's name and license number. However, the more information you provide, the better, such as:

FLC Business Name (DBA)

Partner name(s)

FLC Address

Corporate officer name(s)

You must also give the DLSE your:

Name

Company Name

Phone number

Address

If you are verifying your FLC's license by fax, you must also provide your fax number. If you are verifying your FLC's license by e-mail or the Internet, you must also provide your e-mail address.

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IIP Program Held Out-of-Date

Of the seven items a company's Injury and Illness Prevention (IIP) Program must contain, one must be kept current. That item is the identification of "the person or persons with authority and responsibility for implementing the Program."

A violation of this requirement was one of several an employer incurred during a Cal/OSHA inspection and which the employer appealed to the Cal/OSHA Appeals Board.

The employer had identified a person with the authority and responsibility for implementing the IIP Program. The employer, however, no longer employed that person, and it had not yet designated a replacement. In its appeal, the employer failed to convince the Board to reverse the citation.

Cal/OSHA Policy and Procedures (P&P) describe how the agency enforces Cal/OSHA regulations. P&P C-45A, "Enforcement of 8 CCR Section 3203: Injury and Illness Prevention Program," describes the enforcement of the IIP Program requirement. P&P C-45A states the following about how an inspector should evaluate the effectiveness of the "Responsibility" requirement:

EFFECTIVENESS EVALUATION

The Division's evaluation of the effectiveness of an employer's IIP Program includes, but is not limited to, a determination of the effectiveness of the following elements:

Responsibility -- Whether the employer's written IIP Program provides the name and/or job title of the person or persons with the authority and the responsibility for implementing the program. If job title alone is used to identify the responsible person(s), a method must be available, e.g., a list of persons by job titles, by which employees can identify the name of the individual whose title is designated as the person(s) responsible for the IIP Program.

Sample effectiveness measure: Are employees actually aware of who the person is with the authority and responsibility for their IIP Program and can they access the person if necessary?"

An employer should name a job position for the person who is responsible to "develop and implement" the employer's IIP Program. Then, the name of the person who occupies that position should be posted on the employer's bulletin board.

Another deficiency for which the employer was cited was not having a procedure "for supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate direction and control may be exposed." The only reference to the subject was in the employer's IIP Program, which stated that supervisors were to attend safety training required for their subordinates to ensure knowledge of safe procedures. The Board ruled that the policy did not describe a training program that would satisfy the requirement.

It is important for employers to have documentation to show the instruction they give supervisors about the safety and health hazards to which their employees may be exposed.

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First-Aid Workers' Compensation Cases

An employer's workers' compensation experience modification (ex-mod) is determined primarily by two factors: severity and frequency of claims. The higher an employer's ex-mod, the more the employer will pay in workers' compensation premiums.

Severity is indicated by the dollar amount paid out for injuries, while frequency is indicated by the number of claims, no matter the dollar amount paid out.

An injury treated as first aid need not be recorded as an injury; therefore, it is not counted toward the employer's ex-mod. One way to reduce claim frequency is to have as many minor injuries as appropriate treated as first-aid cases.

Here are some guidelines regarding first-aid claims:

• Locate a clinic or physician that understands workers' compensation procedures, especially the importance of treating, where appropriate, your employees' injuries as first-aid cases. Inform the clinic or physician that you will pay for first-aid treatments. Don't take for granted that the clinic or physician will treat first-aid injuries as first-aid cases.

• The following guidelines were developed by State Compensation Insurance Fund (SCIF) to help its claims adjusters classify injuries:

• First Aid Guidelines - The following are generally considered First Aid treatment (e.g., one time treatment and subsequent observation of minor injuries) and are not considered reportable IF the injury does not involve loss of consciousness, restriction of work or motion, or transfer to another job.

• Application of antiseptics on first visit to a doctor or nurse.

• Bandaging on any visit to a doctor or nurse.

• Burns of first degree.

• Compresses, hot or cold, on first visit to a doctor or nurse.

• Use of elastic bandage on first visit to a doctor or nurse.

• Removal of foreign body from wound by tweezers.

• Use of non-prescription medication and administration of a single-dose prescription medication on first visit for minor injury or discomfort.

• Observation of injury on second or subsequent visit.

• Ointments applied to abrasions to prevent drying or cracking.

• Tetanus shots, initial or boosters ALONE (however, these shots are often given in conjunction with more serious injuries that require medical treatment vs. First Aid treatment).

• Hospitalization for observation (no treatment other than first aid).

• X-rays that are negative.

• Soaking therapy on initial visit.

• Use of whirlpool therapy during first visit to medical personnel.

• First Aid: California Labor Code §5401 defines first aid as a one-time treatment of minor scratches, cuts, burns, splinters, or other minor industrial injuries.

• SCIF's Claims Unit expands on the term First Aid care: first aid care is the "level" of care that does not require professional attention but could easily be given at home or at the worksite given the availability of supplies typically found in someone's medical cabinet. In the past our definition has been "if you can treat it at Long's Drugs, it's first aid."

• What Is Not First Aid:

• Cumulative Trauma (CT) Injuries

• Any Chiropractic Care

• Any Time Loss from Work Other than Date of Injury (D.O.I.)

• Prescription Medication (Other than Given as Samples by Doctor)

• Employee Claim Form (signed or unsigned)

• Important items to remember: An employee claim form will automatically start a claim! The receipt of an employee claim form by carrier gives the Workers' Compensation Appeals Board (WCAB) jurisdiction. No employee claim form should be given to an employee until it has been decided if the claim should be filed or be treated as first aid.

• If an employee claim form is filed with carrier, a non-dis file will be made up.

• Upon receipt of additional billing or reports of continued treatment, carrier will immediately initiate a claim.

• The treating physician is still required to file an injury report with carrier on First Aid cases.

(Source: SCIF, Robin Minder, Assistant Claims Manager, 916-924-6893)

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Supervisors Beware

(Note to employers: Sexual harassment--and, for that matter, any type of unlawful harassment--by supervisors is a serious matter. In the past several years, at least three California agricultural employers have incurred massive penalties. This article is intended to communicate this issue to your supervisors. For on-site training assistance, please call FELS at (800) 753-9073.)

Supervisors can be held personally liable for harassment and for retaliating against employees they supervise. This means that if you were found to have engaged in unlawful harassment or retaliation, the victim could sue you and get a judgment against you personally. The victim could satisfy the judgment by, among other possibilities, garnishing your wages. It is important to understand what constitutes unlawful harassment and retaliation.

Sexual harassment means unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. Sexual harassment includes many forms of offensive behavior, including gender-based harassment of a person of the same sex as the harasser. Some examples of sexual harassment are:

a. Unwanted sexual advances

b. Offering employment benefits in exchange for sexual favors

c. Making or threatening reprisals after receiving a negative response to sexual advances

d. Visual conduct: leering, making sexual gestures, displaying of sexually-suggestive objects or pictures, cartoons or posters

e. Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes

f. Verbal sexual advances or propositions

g. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually-degrading words used to describe an individual, suggestive or obscene letters, notes, or invitations

h. Physical conduct: touching, assault, impeding or blocking movements.

If you use your position as a supervisor to make advances of a sexual nature, then the person to whom they are directed may accuse you of sexual misconduct. Here are the types of actions that constitute sexual harassment by a supervisor:

a. The submission to your advances are made as a term or condition of employment;

b. Submission to or rejection of such advances are used as a basis for employment decisions such as layoffs, recall, job assignment, and raises in pay; or

c. Sexual conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive working environment.

If you are found guilty of such conduct, a court could assess fines of tens of thousands of dollars which you would have to pay yourself. The company is not responsible for your debts. For more more information on the subject, see your manager or the owner.

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CUIDADO SUPERVISORES

Los supervisores pueden ser personalmente responsable por acosamiento y por represalias contra los empleados que ellos dirigen. Esto significa que si se descubre que usted ha estado involucrado en el acosamiento ilegal o represalias, la víctima podría demandarlo y podría conseguir un juicio personalmente contra usted. La víctima podría satisfacer el juicio por, entre otras posibilidades, ordenar la retención de sus sueldos. Es importante entender lo que constituye el acosamiento ilegal y represalias.

El acoso sexual significa los adelantos sexuales no deseados, o conducta visual, verbal o física de una naturaleza sexual. El acoso sexual incluye muchas formas de conducta ofensiva, incluyendo acoso de género-basado de una persona del mismo sexo como el acosador. Algunos ejemplos de acoso sexual son:

a. Adelantos sexuales no deseados

b. oferta de beneficios de empleo a cambio de favores sexuales

c. Hacer o cometer represalias amenazantes después de recibir una respuesta negativa a los adelantos sexuales

d. Conducta visual: mirar de soslayo, hacer gestos sexuales, exhibir objetos sexualmente-sugestivos o retratos, dibujos animados o carteles

e. Conducta verbal: hacer o usar comentarios derogatorios, epítetos, calumniantes, y chistes

f. Adelantos sexuales verbales o proposiciones

g. Abuso verbal de una naturaleza sexual, comentarios verbales gráficos sobre el cuerpo de un individuo, palabras sexualmente-degradantes usadas para describir a un individuo, cartas sugestivas u obscenas, notas, o invitaciones

h. Conducta física: tocar, asaltar, impedir o bloquear movimientos.

Si usted usa su posición como un supervisor para hacer adelantos de una naturaleza sexual, entonces la persona a quien se lo dirige puede acusarlo de mala conducta sexual. Aquí están los tipos de acciones que constituyen el acoso sexual por un supervisor:

a. La sumisión a sus adelantos son hechos como un término o condición de empleo;

b. Sumisión a o el rechazo de tales adelantos se usan como base para las decisiones del empleo, como los despidos, volver a llamar, asignación del trabajo, y aumentos en el pago; o

c. Conducta Sexual tiene el propósito o efecto de interferir irrazonablemente con el desempeño del trabajo de un empleado o crea un ambiente de timidez, hostilidad u ofensivo.

Si usted se encuentra culpable de tal conducta, una corte podría evaluar multas de miles de dólares, lo que usted tendría que pagar. La compañía no es responsable de sus deudas. Para más información sobre el asunto, consulte con su gerente o el dueño.

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Union Vote Disputed

Vineyard workers at a Windsor winery voted in March, 62-37, to be represented by the United Farm Workers union after intense posturing by both sides in the days leading up to the election.

But due to challenges filed over the voting eligibility of some of the winery workers who cast ballots, it could be months before contract negotiations start.

Joining the 99 Sonoma-Cutrer vineyard workers in the election for union representation were 51 other winery employees - clerical staff, cellar workers and other non-agricultural winery employees. They were sent to the election even though they were not on the voter eligibility list on which management and the union had earlier agreed.

The contested ballots were sealed and not counted after the election. But if they are ruled valid, they would affect the election's outcome.

Freddie Capuyan, regional director of the Agricultural Labor Relations Board and an official at the election, said the winery's management had insisted that all its winery workers be allowed to vote in the union election even though only 108 vineyard workers were on the voter eligibility list.

According to Capuyan, managers said the winery workers sometime work in the vineyards and have a right to vote.

Capuyan said now the ALRB must investigate each employees who cast a challenged ballot to determine his or her role at the winery. He said investigators will look at paycheck stubs and job descriptions to determine the worker's duties.

He said the investigation would be done as quickly as possible. But he could offer no time frame as to when it might be completed.

Capuyan said the investigation must be completed by the ALRB before the election can be certified. The election must be certified before contract negotiations can begin.

If the ALRB certifies the election, the winery will become the third wine-related company in Sonoma County to have its workers represented by the union founded by Cesar Chavez. The UFW represents 350 workers at Gallo Sonoma in Healdsburg and 50 workers at Balletto Ranch in Santa Rosa.

(Reprinted with permission from Tim Tesconi, The Santa Rosa Press Democrat, published March 16, 2002)

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Employer Liability for Cellular-Phone Use

An employee making sales calls while driving home from the office runs a red light and hits a pedestrian, killing her. The calls were made in the scope of his regular job duties and were for the employer's benefit. Should the employer be held liable for more than $30 million in a wrongful-death suit?

Much to the surprise of many employers, this is not simply an unfortunate hypothetical situation. In a number of recently-filed lawsuits, cellular phone use by employees has been used by plaintiffs to hold employers liable for the torts of their employees.

The workplace is constantly being restructured by new technologies. While cellular phones provide greater flexibility and increased productivity in the workforce, they can also open the door to new forms of employer liability. For employers, two potential areas of liability can be linked to the exponential increase in cellular phone use: (1) vicarious liability for distracted driving; and (2) workers' compensation claims for health issues allegedly caused by excessive use of cellular phones. Employers may want to consider these new forms of liability when creating and enforcing employment policies.

Cautionary Tales

In an ongoing case in Virginia, a San Francisco law firm (not this one) was sued for $30 million after an associate attorney, who was making work-related calls on her cellular phone while driving home from a work meeting, swerved off the road, striking and killing a teenage girl in March 2000. Having been propelled over a guardrail from the impact, the fifteen-year-old girl's body was not found until almost an hour later.

The girl's parents sued both the employee and her law-firm employer, basing their claims against the employer on a theory of vicarious liability. Their complaint contends that if the attorney was billing the time spent on her cellular phone to a client, then she was acting within the scope of her employment. Thus, the parents argue that their daughter's employer was vicariously liable for her death.

In her defense of the claim, the employee said she thought she had hit a deer and therefore did not stop her vehicle after the impact.

In a similar situation, the brokerage firm of Smith Barney was sued in Pennsylvania when a stockbroker, using his cellular phone to conduct business on the road, hit and killed a motorcyclist in 1995. Rather than litigate the matter and test the plaintiff's theory of vicarious liability, Smith Barney chose to settle the case in 1999, agreeing to pay the victim's family $500,000 despite the fact that the evidence suggested the stockbroker had not made a single work-related call that evening.

A similar case was brought in Florida. There, a lumber wholesaler was sued along with its employee when the employee, driving an Explorer, struck another car, gravely injuring its 78 -year-old passenger. At the trial, evidence was offered that a sales call was made by the employee just 46 seconds before a second call was placed to 911. A Miami jury awarded the plaintiff nearly $21 million. Rather than appealing, the defendants settled the case just five days after the verdict for more than $16 million.

In another case, the city of Honolulu agreed to pay $1.5 million after a city employee struck a pedestrian while talking on a cellular phone.

These cases suggest the scope of potential liability an employer can face for its employee's cellular-phone use while driving. They also vividly illustrate that defense and settlement costs of such claims can be substantial.

Cellular Phone Use: What Studies Reveal

Cellular phones have become indispensable in and out of the workplace. It is estimated that more than 110 million people in the United States have cellular phones and that approximately 85 percent of cellular phone users talk on the phone while driving. According to a recent report issued by the U.S. Department of Transportation's National Highway Traffic Safety Administration (NHTSA), on any given weekday an estimated 500,000 drivers of passenger vehicles are talking on hand-held cellular phones.

While a number of studies attempting to quantify the increase in crash rates due to cellular phone use have been conducted, the results are inconclusive. One well-publicized 1997 study in the New England Journal of Medicine found that the risk of collision when using a cellular telephone was four times higher than when a cellular phone was not being used. This study also found that hands-free devices offered no safety advantage over hand-held units.

Another well-publicized study in the late 1990s provocatively stated that the use of a cellular phone while driving was equivalent to the dangers of driving drunk. While the studies completed to date do not quantify in precise terms the link between cellular phone use and car accidents, given the prevalence of cellular phone use in the workplace, accidents such as the ones described above are likely to become more commonplace.

The Legislative Response

State legislatures have recently begun to address the dangers of cellular-phone use while driving. According to the National Conference of State Legislatures, in the year 2001 alone, lawmakers in 43 states, the District of Columbia, and Puerto Rico proposed approximately 140 bills regarding cellular phones and driving (compared to only 27 states considering similar legislation in 2000, and 15 in 1999).

In addition, two bills have been introduced in the U.S. Congress that would withhold highway funds from states that did not ban the use of hand-held cellular phones while driving. To date, however, only one state (New York), as well as a handful of localities, has actually banned the use of hand-held cellular phones while driving. Laws in several states provide a brief snapshot of how this issue is being addressed (this list is far from exhaustive):

New York was the first state to enact a ban on the use of handheld cellular phones while driving (though hands-free cellular phones are still permitted and handheld devices may still be used for emergencies). The penalty for use of a hand-held device is a fine of up to $100, with fines for repeated violations of up to $500.

California, boasting more than 10 million cellular-phone users, has not yet enacted such a ban. One was introduced in 2001 (amended in 2002). It would prohibit the use of hand-held cellular telephones while driving throughout California. This bill is similar to the recently enacted New York bill, but imposes a more modest $20 fine for the first offense and a $50 fine for subsequent offenses. Though no ban was passed, in 2001 a bill was enacted to facilitate the collection of data on cellular phones as a contributing factor in car accidents. The conclusions drawn from this collected data are due in July 2002 and will surely affect the course of future legislation.

Laws almost identical to those considered and/or passed in California are currently under consideration in Virginia. There are two resolutions in the Virginia Senate regarding the collection of data on the contributing factors in crashes resulting from distracted or inattentive drivers. In addition, Virginia House and Senate bills currently under consideration would also prohibit the use of hand-held mobile phones while operating a motor vehicle.

In Colorado, legislation has also been introduced that would ban the use of cellular phones other than hands-free devices, making violation a secondary traffic offense. This ban would not go into effect until 2005, however, and currently consideration is postponed indefinitely.

Washington, D.C., has also joined in the efforts to pass protective legislation regarding cellular-phone use. In 2001, the Council of the District of Columbia introduced two bills regarding the responsible use of cellular phones and driving safety. As neither of these bills was enacted, the Council introduced a resolution in 2002 directing the Mayor to take immediate steps to restrict use of hand-held cellular telephones by drivers and directing the Council to work in cooperation with the governments of Virginia and Maryland to enact legislation that is substantially similar in the three jurisdictions.

In addition, other laws that fall short of complete bans on hand-held use have been enacted throughout the country. In California, for instance, rental cars with cellular-phone equipment must include operating instructions about safe use. In Massachusetts, cellular-phone use is permitted, but only if it does not interfere with the operation of the vehicle and at least one hand remains on the steering wheel at all times. In Florida, cellular-phone sound may enter only one ear so that the other ear will be able to hear surrounding noises.

Health Risks & Cellular Phone Use

To date there have been only a handful of workers' compensation claims alleging employer responsibility for health problems believed to be associated with the use of company-issued cellular phones. Nevertheless, considerable media attention has focused on purported health problems associated with cellular-phone use. This environment may lead to an increase in workers' compensation claims in the future.

According to the Federal Communication Commission, no scientific evidence proves that cellular-phone use can lead to cancer or other adverse health effects such as headaches, dizziness, high blood pressure, or memory loss. Even so, employers may wish to monitor the extent of cellular phone use by employees and take steps to ensure that employees are trained in the safe use of cellular phones.

What Employers Can Do

Employers should stay abreast of cellular phone laws in their geographical region and the regions in which their employees regularly travel. Employers may want to institute employment policies specifically addressing the dangers of cellular-phone use while driving and any possible health hazards that might be associated with frequent cellular-phone use. Every employer and place of employment is different, and any policy enacted to protect against vicarious liability or workers' compensation claims must be tailored to the particular needs of the employer and its industry. Employers that wish to institute a policy on cellular-phone use should consider the following approaches:

prohibiting all cellular-phone use while driving, or at least all use of hand-held devices

restricting use to brief conversations with hands-free devices

requiring the use of a headset at all times and keeping the antenna as far from the head as possible to reduce any potential health risks

requiring the use of cellular phones with the lowest radiation output or, if the company issues cellular phones, choosing those with the lowest radiation output

providing employee education about the risks of cellular phone use while driving

If adopted, it is essential that such a policy be communicated to all employees. In particular, employers may wish to educate employees about the safe use of cellular phones while driving, by providing them with the following information and suggestions for safe cellular-phone use:

get to know the cellular phone and its features;

use hands-free devices when available;

position the phone within easy reach;

let the person you are speaking with know that you are driving, and if necessary, suspend the call in heavy traffic or hazardous weather conditions or simply hang up;

do not take notes or look up phone numbers while driving;

place calls only when the vehicle is not moving or before pulling into traffic;

use voice-recognition dialing when available;

do not engage in stressful or emotional conversations while driving that may divert your attention from the road;

dial "911" to report serious emergencies and use the phone to help others in emergencies, calling roadside assistance when necessary.

It is also important to remember that putting a policy in place is never enough.

After implementing an appropriately-tailored policy and communicating it to employees, employers must also take steps to enforce the policy for it to be effective.

By taking these steps, employers can begin to build a defense to potential tort claims that may offer some protection should employees become involved in accidents while making business-related cellular-phone calls.

Permission to reprint article by Mary A. Ferrer and Deborah E. Warren. Mary A. Ferrer is an associate in the San Francisco office of Morrison & Foerster LLP and can be reached at 415-268-7199. Deborah E. Warren is also an associate of Morrison & Foerster LLP and can be reached at 415-268-7418.

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FLC Laws Provide No Exception to WC Exclusive Remedy, Court Rules

With few exceptions, California's workers' compensation system provides employees with their sole and exclusive remedy for work-related injuries. Consistent with this general rule, a state appellate court on May 30 affirmed the rejection by a trial court of a lawsuit brought by a farm worker against his employer, a farm labor contractor (FLC).

The farm worker, Homero Ruiz, was injured in an accident while being transported in a van driven by a co-employee at the direction of the FLC, Juan Cabrera, doing business as J.C. Contracting. Ruiz sued Cabrera for resulting damages. Concluding that workers' compensation was Ruiz' exclusive remedy, the trial court granted judgment for Cabrera.

On appeal to the Court of Appeal for the Fifth Appellate District, Ruiz argued that the state's farm labor contracting laws create an implied exception to the general rule of workers' compensation exclusivity, as they allow an aggrieved employee to bring a civil action for violations of them. The appellate court, however, disagreed with that contention.

The court noted that the farm labor contracting laws' focus is "the preservation of the financial integrity of the employment relationship," such as by requiring the payment of wages due, assuring the availability of promised work, and prohibiting imposition of unfair charges on employees as a condition of access to work. The court opined that the Legislature accordingly chose the word "aggrieved" rather than "injured" to describe an employee hurt by a violation of those laws to reflect the scope of their protections.

Thus, while an aggrieved employee may file a civil action to remedy a violation of a farm labor contracting law, those laws do not provide an FLC's employee with a way around the workers' compensation exclusivity rule for a work-related physical injury.

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Flow of Undocumented Aliens

The steady, massive flow of legal and illegal Mexican immigrants into the United States cannot be stopped and won't decrease dramatically even if the Mexican economy blooms, U.S. and Mexican demographers say.

"The migratory phenomenon between Mexico and the United States is structural and permanent," concludes a study by Mexico's National Population Council, a ministry of the Interior agency. The report, "Migration: Mexico-United States," concludes that by 2030, the Mexican-born U.S. population will at least double to 16 million to 18 million regardless of improvements in Mexico's economy.

(Source: The Washington Times, 3/27/02)

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* Latest Data Available

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