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Military Duty and FLMA

              On July 22, the Solicitor of Labor, Eugene Scalia, issued a memorandum on the interaction of the Uniformed Services Employment and Reemployment Rights Act of 1994 and the Family and Medical Leave Act.

              In that memorandum, the Solicitor indicates that time spent on military duty is to be calculated for eligibility for FMLA benefits. The example given by the Solicitor is:

              "[S]uppose that an employee who normally works a 40-hour week leaves civilian employment on November 5, 2001, to serve a tour of duty in Afghanistan, and is reemployed by the same civilian employer on June 10, 2002. On July 1, 2002, the employee begins FMLA leave, at which time the employee has only 840 hours of actual work performed for the civilian employer in twelve months prior to the leave request (18 weeks prior to the military service and three weeks following reemployment, at 40 hours per week). If the employee is otherwise eligible for FMLA leave, the 1240 hours that the employee would have worked but for his/her service in Afghanistan (31 weeks at 40 hours per week) should be added to the 840 hours actually worked, for a total of 2080 hours for purposes of determining FMLA eligibility."

              The Solicitor advises that VETS State Directors and Wage and Hour Division District Directors will prosecute complaints about this interpretation .

              The bottom line is that employers should consider military service time as time worked for FMLA eligibility purposes.

(Source: Wayne Hersh [whersh@oc.ber gerkahn.com], Law firm of Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone)

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DLSE & Cal/OSHA Inspections in Northern California

              Yuba-Sutter County Farm Bureau Executive Secretary Doris Joaquin relays these observations on massive inspections in northen California by the state Labor Commissioner and Cal/OSHA. The agencies cited for these violations:

1.           An employer without workers’ compensation was fined $1,000 per employee, for a total assessment of $61,000.

2.           A workers’ compensation poster was not filled in; $1,200 penalty assessed. That poster must list medical clinic/physician and other emergency information.

3.           Wrong Industrial Welfare Commission Order posted; $250 penalty assessed.

4.           Allowing a minor to work without a work permit, $500 penalty assessed.

5.           Field sanitation violations, such as not enough toilets, no toilet paper; $750 penalty per violation.

6.           Family picking as a family unit. The employer must pay each person wages earned, which must not be less than the state minimum wage. An employer may not pay one person, who in turns pays the other family members.

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Investigation of Applicants

              A subscriber called the FELS Employer Hotline to request information about the procedures an employer may use to investigate a job applicant.

              Legislation passed last year that took effect on Jan. 1 changes what employers must do when conducting background checks on applications for employment or on current employees. The law amends and broadens existing background checking requirements and was enacted partly out of concern for identity-theft issues.

              The key issue for employers concerns the as-yet uncertain boundary between what the law considers a “reference check” and what it considers a “background check.” Reference checks involve the prospective employer verifying with a previous employer the applicant’s employment dates, job title, and last salary. Background checks go further: Evaluating an individual’s character, general reputation, personal characteristics, and mode of living.

              Employers who use third-party agencies, or others in lieu of an agency, to perform background checks now must:

1. Notify the applicant or employee in writing within three days after requesting the background check that an “investigative consumer report” about the person’s character, general reputation, personal characteristics, and mode of living will be made;

2. Give the applicant or employee a copy of the report and information on the agency that issued it, as well as how to contact them. The employer must give the information either during the meeting with the applicant or employee, or within seven days of receiving the report, whichever is earlier.

3. Include the name and address of the agency conducting the investigation and the nature and scope of the investigation requested. The notification also must contain information about how the applicant or employee can obtain the report from the agency (CA Civil Code section 1786.22).

              Employers also must certify to the agency that they have made the required disclosures to the applicant or employee and that the employer will comply with the requirement to provide a copy of the report to him or her. If there is suspicion of wrongdoing or a good faith belief of criminal wrongdoing by the subject of the investigation that could result in a loss to the employer, employers do not have to give notice.

              Since it is unclear whether this legislation also applies to reference checks for employment, employers should proceed very cautiously.

              What Should You Do?

■            Review current reference checking policies and practices.

■            Evaluate whether you must notify applicants or employees when conducting a reference or background check. Consult with legal counsel if you have any questions.

■            Comply with all notification requirements.

(Source: California Chamber of Commerce, Labor Law Update)

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FLC License Verification Unit Certified as Operational

              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.

              Legislation enacted last year, AB 423, created within the Department of Industrial Relations (DIR), Division of Labor Standards Enforcement (DLSE), an FLC license verification unit and added a requirement that a grower or FLC using labor provided by an FLC must verify the FLC’s license with that unit.

              But AB 423 also provided that the obligation to verify licenses and penalties for failures to do so will not apply until three months after the State Auditor has certified that the unit is operational.

              Accordingly, the State Auditor, in its report 2001-017 issued last month, concluded that the DIR’s “process for verifying the status of licenses issued to farm labor contractors is operational but needs some improvement.” As a result, a grower or FLC using labor provided by an FLC must verify the FLC’s state license starting Oct.1.

              The complete Auditor’s report is available online at http://www.bsa.ca.gov/ bsa/pdfs/2001017.pdf.

              The verification process works as follows:

              By the close of the third business day after the day on which a person engages 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 or e-mail.

              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.

              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.

              Here are the methods that may 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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Ergonomics Publication in Spanish

              In Feb. 2001, the National Institute for Occupational Safety and Health (NIOSH) issued a free 46-page publication, Simple Solutions: Ergonomics for Farm Workers.

              The manual is full of photographs and practical ideas. An English version of it can be viewed and downloaded from the Internet at http://www.cdc.gov/niosh/ pdfs/01-111.pdf

              This publication has now been translated to Spanish under the title Soluciones Simples: Ergonomía para Trabajadores Agrícolas.

              You can order free copies by e-mail (make sure to provide your mailing address so your copies can be delivered to you by the U.S. Postal Service:

              E-mail: NIOSH Publications <pubstaft@cdc.gov>

              Or call 1-800-35-NIOSH (1-800-356-4674)

              Request publication number 2001-111(SP2002) for the publication in Spanish. Or, 2001-111 for the publication in English.

              For more information contact Andrea L. Steege at 513-841-4538.

(Source: Gregorio Billikopf Encina, Farm Advisor, University of California, gebillikopf@ucdavis.edu )

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Paid Family Leave Signed Into Law

              In legislation signed by Governor Davis on Sept. 23, SB 1661 (Kuehl), California will become the first state in the nation to provide employees with paid family-care leave.

              The legislation creates, within the state disability insurance (SDI) program, a family temporary disability insurance program to provide up to six weeks of wage-replacement benefits (family-care benefits) to employees who take time off work to care for a child, spouse, parent, or domestic partner with a serious health condition, or to bond with a new child. The program will be financed entirely by an increase in employee payroll contributions to the SDI fund.

              Employees will start paying into the fund on Jan.1, 2004, and will be eligible for family care benefits starting on July 1, 2004. On average, employees will pay about $27 extra per year into the SDI fund to support family-care benefits. Participating employees will be eligible for up to six weeks of family-care benefits over a 12-month period, at rates of up to 55 percent of the employee’s wages. The program will be administered by the California Employment Development Department (EDD).

              Other Key Provisions of the Legislation

              Eligibility: Employees will be eligible for family-care benefits if they provide to the EDD a certification establishing that either (1) a "serious health condition" of a child, parent, spouse, or domestic partner "warrants the participation of the employee to provide care" or (2) the employee is taking leave due to the birth or placement of a child of the employee or the employee’s domestic partner, and the leave is taken within one year of the birth or placement.

              "Serious health condition" is given the same definition as contained in the California Family Rights Act (CFRA). Situations that "warrant the participation of the employee to provide care" include providing psychological comfort and arranging third-party care for the family member, as well as directly providing or participating in medical care. However, an employee is not eligible for family care benefits for any day that another family member is able and available to provide the required care.

              Notice to employees: The EDD must develop a notice informing workers of their rights to disability-insurance benefits, including family-care benefits. Employers must provide this notice to all employees hired after Jan. 1, 2004, and to each employee leaving work on or after July 1, 2004, due to pregnancy, non-occupational injury, or illness, or to care for a family member.

              One-week waiting period: The first seven consecutive days of leave taken for family care is deemed a "waiting period," during which no benefits are payable.

              Requiring use of accrued vacation time: An employer may require an employee to take up to two weeks of accrued but unused vacation leave before the employee’s initial receipt of family-care benefits. If the employer requires an employee to take vacation leave, the vacation leave must be applied to the one-week waiting period.

              Coordination with FMLA and CFRA leave: Employees entitled to leave under the Family and Medical Leave Act (FMLA) or the CFRA must take family temporary disability insurance leave concurrent with their FMLA and/or CFRA leave.

              Reinstatement rights: The legislation does not create any new right to reinstatement upon the expiration of family-care leave. To the extent otherwise applicable, reinstatement rights are governed by other laws, such as the FMLA, the CFRA, and the pregnancy-disability leave law.

              Voluntary plans: An employer may offer employees a voluntary plan (VP) in place of SDI coverage. A VP must provide all the benefits of SDI and at least one benefit that is better than SDI. The EDD must approve the VP, and a majority of the employees must consent to it as well before an employer can implement the VP.

              No action necessary yet: Employee handbooks need not be revised to cover to the new state law for these reasons, as noted above:

              First, SB 1661 will not take effect until Jan. 1, 2004. That’s when employee paychecks will start to be dinged for the additional amount needed to fund the new benefit.

              Second, the new benefit isn’t payable to employees until July 1, 2004.

              Third, SB 1661 doesn’t create any new leave entitlement. It just says an employee who takes a leave for a purpose specified under the FMLA and CFRA will be able to receive 6 weeks of the new benefits. Those purposes are: caring for a child, spouse, parent, or domestic partner with a serious health condition; and bonding with a new child. An employer not covered by the FMLA or CFRA—simply stated, one with fewer than 50 employees—won’t have to hold the employee’s job open, although the employee would still be entitled to the benefits.

              Fourth, the bill directs the EDD to develop a notice that employers will have to give employees starting Jan. 1, 2004.

(Sections of this article were written by Orrick, Herrington & Sutcliffe LLP's Employment Law Department, which counsels and represents employers in the full range of employment and labor law. For more information, please visit www.orrick.com. ©2002 Orrick, Herrington & Sutcliffe LLP. All Rights Reserved.)

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Payroll Records & Reporting Poor Working Conditions

              Governor Gray Davis has signed legislation designed to offer employees the right to inspect their payroll records and report poor working conditions without fear of repercussions from their employers.

              Payroll Records: AB 2412, by Assemblymember Manny Diaz (D-San Jose), specifies that within 21 days of receiving a written or oral request from a current or former employee, an employer must provide copies (at cost) of his or her payroll records, or permit the employee to inspect those records. The bill prescribes a penalty of $750 for a failure to comply with this requirement. AB 2412 also authorizes an employee to bring action for injunctive relief to obtain access to payroll records.

              Reporting Poor Working Conditions: AB 2895, by Assemblymember Kevin Shelley (D-San Francisco), creates protections for an employee who discloses information about his or her working conditions. The bill also makes it unlawful for an employer to require employees to refrain from disclosing information about the employers working conditions. The measure also makes it unlawful to discharge, formally discipline or otherwise discriminate against an employee who does disclose information about the employer's working conditions.

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NCAE Updates Status of SSN Mismatch Issue - Part 2

              In August, the National Council of Agricultural Employers (NCAE) issued an updated review of the Social Security mismatch letter issue. Below is Part 2 of a two-part article containing excerpts from that Alert Memorandum, which was prepared by legal counsel, McGuiness Norris & Williams, LLP.

              Because the circumstances of each case may vary and require different steps in achieving legal compliance, employers should consult a qualified expert in responding to their specific circumstances. The memorandum is intended to provide general information regarding the types of issues employers typically face and highlight those areas where the required or prohibited steps are clear and those where they are not.

What are the risks to an employer if it handles the SSA Mismatch Process Improperly?

•            What is document abuse discrimination?

              The anti-discrimination provisions of IRCA prohibit discrimination on the basis of citizenship status and national origin. Simply put, employers cannot discriminate against U.S. or alien workers because of their U.S. citizenship or alien status or because of the country from which they or their ancestors came to the U.S. In addition, IRCA prohibits employers from document abuse, which is defined as requiring more or different documents to establish employment authorization than is required under the law, or refusing to accept documents that appear genuine, based on a person’s citizenship status or national origin. The intent of this provision is to prevent employers from singling out a group of workers, typically aliens, and imposing stricter work document standards upon them. The Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) enforces these anti-discrimination provisions.

              Before the 1996 immigration reform bill (IIRIRA), the document abuse provisions of IRCA were interpreted by OSC as establishing a strict liability standard. In other words, if an employer requested specific documents, over-documented, or refused to accept documents, it was considered liable, regardless of whether it did so with the purpose or intent of discriminating. In 1996, Congress amended the law to require a person to show that the employer engaged in document practices with the purpose and intent of discriminating. In Robison Fruit Ranch, Inc. v. U.S., 147 F.3d 798, 801-02 (9th Cir. 1998), a federal court of appeals held that both the document abuse provision of IRCA, as originally enacted, and as amended in 1996, required a proof of discriminatory intent. The mere act of requesting more or different documents, or refusing to accept documents, was not a per se violation of the law. In rejecting any liability on the part of the grower, the court held that in determining whether there is discrimination, it must consider, in part, whether additional burdens were created for a class of applicants or whether aliens or citizens were treated differently. Moreover, cases interpreting the intent standard under the document abuse standard adopt the approach taken under other employment statutes, and allow an employer to defeat a claim of discrimination by offering legitimate non-discriminatory reasons for its actions that are not a pretext for discrimination.

•            What risks do employers face from document abuse discrimination during the SSA Mismatch Process?

              Employers who do not implement a procedure for handling SSA mismatch letters that is uniformly and consistently applied to all employees face the risk of document abuse claims. Do not single out particular employees, simply because they are aliens or of a particular national origin for greater scrutiny than other employees. For example, if upon receipt of a mismatch letter, an employer reviewed the Forms I-9 of workers on the mismatch list who produced an alien resident card, or who had a Latino name, for additional scrutiny and asked them to reverify their work authorization, and did not do the same for other employees named in the letter, it likely would face document abuse charges. Clearly, it would have placed greater burdens on aliens than others and have treated them differently than citizens. If there is a reasonable basis to require an employee to take additional steps, consistent with SSA requirements and based on the guidance provided by the INS opinion letters summarized above, then all employees, regardless of citizenship or national origin, should be subject to the same steps.

•            The Supreme Court’s recent Hoffman Plastics decision has made worker advocates wary of employer efforts to use SSA mismatch letters as a basis to terminate workers who complain about labor law violations.

              The U.S. Supreme Court’s recent decision in Hoffman Plastic Compounds, Inc. v. NLRB, held that undocumented aliens are not entitled to back pay if they are terminated in violation of the National Labor Relations Act, citing the purposes of IRCA. While undocumented aliens are protected under most federal labor and employment laws, the Hoffman decision limits their ability to recover back wages for periods other than the period for which work was performed.

              Worker advocates are alarmed that unscrupulous employers will use the decision to fire with virtual impunity employees who assert their rights or complain about labor law violations. They have expressed concern that such employers will use Social Security mismatch letters as a pretext to fire workers who complain or are viewed as troublemakers. Consequently, employers must be especially careful that their SSA mismatch procedures are uniformly and consistently applied in order to place themselves in the most defensible position, should they be challenged with a discrimination or document abuse claim.

Can employers terminate employees who refuse to correct their mismatch problems or who provided false SSN information to their employers?

              If an employee fails to cooperate with the employer’s attempt to provide accurate information to SSA, or admits that he/she lied in presenting a name or number to the employer, the employer may have independent grounds for termination, especially, if it has an express policy providing for discipline or termination if employees provide inaccurate or false information in applying for employment. A termination under such circumstances would be based on non-compliance with the employer’s policy and would not be based on citizenship status, national origin or document abuse. It is important, however, that such a policy be uniformly and consistently applied to all employees, not just aliens or persons of a certain national origin. Otherwise, the employer would face potential discrimination charges.

Should employers take a different approach when they have a union contract?

              As discussed in detail in an earlier NCAE Alert Memorandum, an arbitration decision, Travelodge Joint Venture, addressed the question of whether termination of union employees for repeated failures to correct SSN mismatches constituted just cause under the union contract. In a poorly-reasoned decision, the arbitrator found the termination was without just cause. NCAE members with union agreements should be aware of this decision. Given the concerns of worker advocates and unions as a result of the Hoffman Plastics decision, it is likely that they will continue to challenge such terminations. Non-union employers do not have to contend with the just cause termination requirements and must simply show that terminations comply with their employment policies and/or are not discriminatory and do not constitute document abuse.

Are There Steps An Employer Can Take to Reduce the SSA Mismatch Problem at Hiring?

              The SSA will verify employee names and SSN’s upon request of employers. However, if an employer plans to request such verification, it is important to proceed in the correct sequence of steps. The employer should first determine if a prospective employee is qualified for the job for which the person is being considered, and, if so, make a hiring commitment. Only after a hiring decision is made should the employer proceed to complete the Form I-9. After the Form I-9 is completed and put aside, the employer may complete other paperwork, such as the employee’s Form W-4, on which the employee records his or her SSN. When the Form W-4 is completed, the employer should urge employees to record their name exactly as it appears on their Social Security card. Only after all of the above steps are completed is it safe for the employer to seek verification of the employee’s name and SSN with the SSA. If the name and number fail to match, the employer should then proceed with the steps outlined above, the same as would be followed if a mismatch letter were received.

If an employer chooses to verify SSN’s with the SSA, this policy should be followed on a non-discriminatory basis. All newly hired workers’ numbers should be verified. The employer should not single out one group of employees and verify their numbers to the exclusion of others.

Summary:

              The SSA mismatch problem persists and continues to pose administrative and compliance problems for employers. The following general conclusions reflect the current status of the issue:

• SSA is broadening its efforts to eliminate mismatches and reduce the number of suspense accounts.

• SSA is seeking greater IRS and INS enforcement against targeted industries, including agriculture, for non-compliance with SSA and INS obligations. SSA and IRS are exploring ways to pursue greater enforcement against employers who repeatedly submit erroneous name and/or SSN information. IRS officials have been quoted in press reports indicating that there will be increased enforcement in 2002 and in the future for violators.

• Employers must respond to SSA mismatch letters or risk fines.

• SSA mismatch letters direct employers to contact employees regarding mismatch problems and the employee to provide the employer with any necessary corrections.

• Employers, who communicate with employees in writing on an annual basis but do not follow up with the employee to determine whether efforts have been made to correct inaccuracies with the SSA, face the prospect of receiving recurring letters regarding mismatches involving the same employees. The prospect of increased IRS enforcement against targeted employers with persistent mismatches poses problems for such an approach.

• Mismatch letters alone, without other circumstances, do not provide the basis to terminate employees.

• INS General Counsel opinions indicate that SSA mismatch letters can raise immigration issues for employers, and under certain circumstances, can place employers in a position of having actual or constructive knowledge that employees are unauthorized to work. Employers must take action in such circumstances.

• Employers who use mismatch letters to terminate or take other adverse action against a particular group of employees, typically aliens or employees of certain national origins, without applying similar procedures to all other employees, may face discrimination or document abuse charges.

• Employers should establish an effective mismatch procedure, and apply it consistently and uniformly to all employees on SSA mismatch lists.

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Intoxicated Employees

              FELS subscribers often call the FELS Employer Hotline with questions about intoxicated employees. Their first question often is: “Can I require the employee to take a drug or alcohol test?” Another question is: “Can I institute a drug-and-alcohol testing program?” Unfortunately, the answer to these questions isn’t a clear-cut yes or no. In California, requiring employees to submit to testing may violate their privacy rights.

              In many situations, not testing is safer and can achieve the same goals. Those goals are to get the employee away from the work site and to administer some form of discipline. Drug or alcohol testing isn’t required to achieve those objectives. No matter whether you institute a drug-testing program, focus on employee behavior and job performance. Employers often want to attack a problem's cause–in this case, alcohol or drugs–but in reality, it is the cause's effect–that is, the employee's behavior and job performance–that counts and is the real problem.

              A person misusing alcohol or drugs is likely to develop a poor attendance or timeliness record, a bad attitude, unsatisfactory performance, or other outward signs of misuse. So, instead of basing discipline or a discharge on drug or alcohol use, base it on poor quality of work or other demonstrable deficiency. In the final analysis, that may be more definitive than drug or alcohol test results, which sometimes may be false.

              Here are some do’s and don’ts regarding alcohol and drug issues:

Do’s

1.           Insert in your application for employment form a clause that states: “I understand that, if hired, my employment could be made contingent on my taking and passing a medical examination and/or test for illegal drug use, either of whose fees the company would pay.”

2.           Establish company policies regarding drug and alcohol use. A sample policy appeared in the August issue of the FELS Newsletter. Have employees sign an acknowledgment of receipt of your employee handbook, which contains this statement: “I will comply with the company's lawful requirements, including its procedures on testing for alcohol and other drug use, both as set forth in the handbook and as otherwise may be communicated to me."

3.           Document all such incidents and your attempts to find a satisfactory safe solution.

4.           Train supervisors in recognizing drug and alcohol abuse and the company’s procedures in dealing with the problem. If a drug or alcohol test is implemented, a supervisor’s informed observations can assist in defending against an employee’s challenge to a test. Where possible, base tests on the recommendations of at least two supervisors. Develop a form on which supervisors can document the reasons for the test. A sample form appeared in the July issue of the FELS Newsletter.

5.           Determine the jobs or positions requiring physical exams and drug and alcohol tests. At least until the state Supreme Court clarifies the issue, limit drug and alcohol tests to those positions for which testing is legally required (that is, driving jobs subject to the U.S. Department of Transportation controlled substances and alcohol use and testing regulations) and other safety- or security-sensitive jobs. Note these jobs or positions, and always test every new or current employee moving into them.

6.           Consider referring the employee to a drug-and-alcohol counseling program.

Don'ts

1.           Don’t discharge an employee on the spot. Suspending an employee is safer. Besides giving everyone a time to "cool off" and gather the facts in the case, you won't run the risk of incurring a waiting-time penalty for failing to pay final wages upon a discharge. California Labor Code section 203 requires employers to pay employees all monies earned at the time of layoff or discharge. The penalty for not paying an employee on time is one day's wages for each day the employer failed to pay the employee, up to a maximum of 30 days.

2            Don't fail to pay a suspended employee reporting time pay. Suppose you suspend the employee and you decide to fire the employee when he reports back the next day. When an employee is told to report to work but no work is provided, the employee must receive half of the employee's scheduled hours of work, from a minimum of 2 hours to a maximum of 4 hours.

3.           Try not to let an intoxicated employee drive home. If the employee were to drive himself home and cause an accident, the company could be held liable for it. Have the employee driven home by a relative, friend or another employee. Or, ask the employee to take a taxi. If the employee attempts to drive himself, try to get the employee’s car keys. If the employee insists on driving himself home, tell the employee you will be notifying the police or sheriff’s department immediately so it can intervene to prevent the employee from driving while intoxicated; the fear of apprehension by a law-enforcement officer while driving intoxicated should cause the employee to change his mind about driving himself home.

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Ag Workers May Proceed With RICO Suit

              In its decision in Mendoza v. Zirkle Fruit Co., the Ninth U.S. Circuit Court of Appeals held that agricultural workers eligible to work in the United States have standing under the Racketeer Influenced and Corrupt Organizations Act (RICO) to sue their employers whom they allege depressed their salaries by conspiring to hire undocumented workers at below-market wages. The employers in the case are packing operations in Yakima, Washington.

              Earlier this year, the Second Circuit decided in Commercial Cleaning Services v. Selective Employment Agency, Inc., that RICO gave a janitorial service company standing to sue its competitor that had allegedly hired undocumented workers.

              These new decisions will give pause to many employers throughout the country who may hire undocumented workers, a consequence clearly foreseen by the courts that wrote these opinions.

              The Immigration and Naturalization Service has conducted investigations finding that as much as half the growers’ workforce is employed illegally, and the growers have been targeted for “raids and other law enforcement procedures.” According to the complaint, the scheme is facilitated by Selective Employment Agency, Inc., a separate company that employs the workers and then “loans” them to the growers. “Defendants Matson and Zirkle use Selective Employment as a ‘front company’ for the purpose of perpetrating this scheme with the hope that each will be thus shielded from charges that they violated federal law.” While Selective Employment was named only as an association-in-fact enterprise, not as a defendant, in the federal RICO claim, the complaint alleged a state conspiracy claim that did name Selective Employment as a defendant.

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