California Vehicle Code Changes

Two significant changes to the California Vehicle Code took effect in January.

First, VC section 34500 now reads: "The department [of California Highway Patrol] shall regulate the safe operation of the following vehicles: ... (j) Any other motortruck not specified in subdivisions (a) to (h), inclusive, or subdivision (k), that is regulated by the Department of Motor Vehicles, Public Utilities Commission, or United States Secretary of the Department of Transportation, but only for matters relating to hours of service and logbooks of drivers."

A vehicle operator required to possess a motor carrier permit issued by the Department of Motor Vehicles must comply with hours of service regulations. This means that a vehicle of 10,001 pounds gross vehicle weight rating (e.g., large pickup) is covered once again.

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California residents with pesticide complaints can now call a toll-free phone number for help, the state Department of Pesticide Regulation (DPR) announced.

The new service, 1-87PestLine (1-877-378-5463), transfers callers to their County Agricultural Commissioner's Office with recorded information in English and Spanish.

"Our goal is to help people with their pesticide problems as quickly as possible," said DPR Director Mary-Ann Warmerdam. "The 1-87PestLine is an important innovation that will help us and our local partners, the County Agricultural Commissioners, enforce pesticide laws and protect the public. "Despite previous DPR outreach efforts, many people seem to be unaware of how to report pesticide complaints, or whom to call," said Warmerdam. "The new 1-87PestLine will speed up reporting and response time. This could be especially helpful for illness investigations."

The new toll-free service was launched as DPR released its latest annual summary of pesticide illness reports. The 2005 illness summary found 911 individual cases related to pesticide exposure. Of these, 647 were agricultural and 263 were non-agricultural. (One case could not be classified.)

That compares to 828 total cases in 2004. Some 390 were agricultural, 438 non-agricultural.

Non-occupational injury reports have been on the decline since 2002, when federal funding ran out for a project that linked DPR to reports from the California Poison Control System. The system, which provides emergency responders with information on toxic exposures, led DPR to hundreds of pesticide cases annually. Many involved home accidents. Thanks to an improved outlook for DPR's budget, the Department restarted the project with its own funds in Oct. 2006.

DPR has long recognized that consumer injuries and complaints are less likely to be reported, either because people do not know how to file a complaint or do not seek medical treatment for an injury. When medical help is sought, DPR has found that physicians often fail to report non-occupational cases to local health officers.

In the agricultural sector, pesticide drift remains a significant source of injuries, the 2005 DPR summary showed. The largest drift investigation in 2005 involved release of chloropicrin during a farm field fumigation adjacent to a neighborhood in Salinas. A total of 324 injuries were related to that mishap. Earlier this year, Warmerdam set a DPR goal to "aim for zero" major incidents such as the Salinas drift case. Such incidents may involve several victims who require medical attention, or just one person if hospitalization occurs (excluding suicide attempts). Significant environmental and property damage are other examples of major incidents.

"DPR's 1-87PestLine service is another tool that will help us 'aim for zero'," said Warmerdam. "Later this year, we will also produce two new print guides for the public. One will help people involved in pesticide emergencies. The second will help people understand DPR's regulatory work, and how they can participate in setting pesticide policies."

The toll-free number will be listed under "Pesticide" in the state government pages of phone books statewide. DPR will also sponsor public service announcements, handouts, and other materials featuring a 1-87PestLine logo during the next 18 months. The Department also is asking local agencies, worker advocates, and environmental groups to help publicize 1-87PestLine.

For individual county illness statistics in 2005, see the link at the end of the news release at www.cdpr.ca.gov. For the statewide illness summary document, go to www.cdpr.ca.gov/docs/whs/pisp.htm.

DPR researchers emphasize that these statistics alone are not an indicator of the effectiveness of pesticide regulation at the local level. Illness statistics are compiled and summarized statewide to analyze illness trends and help determine whether existing safeguards are sufficient.

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Food Safety Resources

As federal health officials warn California farmers to improve produce safety, growers are asking where they can obtain credible resources. In California a campaign to ensure the safety of and to restore consumer confidence in leafy greens began with the formation of a Leafy Greens Advisory Board.

Growers can begin now to adopt Good Agricultural Practice with the help of resources from Cornell University. Cornell University has produced a packet of materials that seem to hit the mark. Its Good Agricultural Practices (GAPs) Web site is at http://www.gaps.cornell.edu/.

The package of materials consists of:

• Farm and Packinghouse Record Keeping Sheets: These free, downloadable Record Keeping Sheets help growers implement GAPs and the appropriate record keeping for their operations. Record keeping is critical, part icularly if you plan to have a third-party audit or quality-assurance certification. These record keeping sheets are templates and should be customized to reflect your standard operating procedures. They were developed in collaboration with New York State Department of Agricultural and Markets Farm Inspectors and Cornell Cooperative Extension Education. Go to http://www.gaps.cornell.edu/ ks.html to download the record sheets.

• Food Safety Begins on the Farm: A Growers' Guide (English & Spanish): This 28-page color booklet provides an overview of GAPs that can be implemented on the farm and in packinghouses as well as background information on food-borne illnesses related to produce consumption.

• Reduce Microbial Risks with GAPs (English & Spanish): This brochure summarizes GAPs from pre-planting through post-harvest handling.

• GAPs Presentation CD (English): The CD includes the Food Safety Begins on the Farm booklet in PDF format, a series of PowerPoint presentations on the program, and additional GAPs-related information.

• Laminated Posters (English & Spanish): Set of three laminated posters containing graphic images and text in English and Spanish instructing proper use of field toilets, proper disposal of used toilet paper, and proper hand washing.

• Grower Self Assessment of Food Safety Risks (English only): This manual is designed to guide growers through the processes of identifying risks particular to their operation, developing appropriate solutions, implementing good agricultural practices and developing a farm food safety plan. It has 21 sections allowing growers to evaluate sanitation, worker hygiene, wild animals, water use, farm biosecurity, and crisis management. Each section contains worksheets so that growers can document their progress and plan for GAPs implementation.

• Fruits, Vegetables, and Food Safety: Health and Hygiene on the Farm: Designed to be part of a comprehensive worker training program, this 15-minute video offers guidance to workers on proper handwashing and toilet use, with emphasis on how their health affects the safety of fresh fruits and vegetables. Hygiene topics discussed in this video are reinforced in the Field Hygiene Poster Series. Available in DVD and VHS formats, each video contains both the English and Spanish versions. A Hmong version is available on a separate DVD.

• Fun Fruit & Very Vegetable Tour Coloring Book (English & Spanish): Originally developed for children of farm workers, this book follows three children as they tour the United States produce industry to see how fruits and vegetables are grown, harvested and sold. Main learning themes include the importance of handwashing and the nutritional value of fruit and vegetables consumption. Each book is bilingual and appropriate for ages 5-10.

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California Pesticide Safety Spanish Manual Updated

The University of California's Statewide Integrated Pest Management Program has updated its Spanish translation of Pesticide Safety: A Reference Manual for Private Applicators (Seguridad en el manejo de pesticidas Manual de referencia para aplicadores privados).

This is a study guide for the California Department of Pesticide Regulation certified private applicator examination and a handy reference for all farms. Instructions include how to read pesticide labels, how to mix and apply pesticides, how to avoid pesticide hazards, and how to handle emergencies involving pesticides. The appendix includes a pesticide application checklist, resource lists, sample training forms for pesticide handlers and fieldworkers.

For more information, contact UC Agriculture and Natural Resources Publications, 800-994-8849 (www.anrcaalog.uc avis.edu). The publication number is 3394; the cost is $7.

IRS Announces Changes to FUTA Return

The Internal Revenue Service Jan. 26 said it has made several improvements to Form 940, Employer's Annual Federal Unemployment (FUTA) Tax Return, which return payroll professionals and business owners must file each year by Jan. 31.

The redesigned Form 940 for 2006 is more user-friendly, with the expectation that this will reduce the burden for more than 1 million filers, IRS said in a news release (IR-2007- 17). According to IRS, the new form incorporates features of Form 940- EZ, which was discontinued for tax year 2006, into a simplified form for all filers.

IRS employment tax experts worked with representatives from other federal and state agencies and gathered input from internal and external stakeholders to create the new form, according to the news release.

The agency said the result is "a plain language form that is logical, easy to follow, and compatible with optical scanning."

IRS said improvements include:

• a logical sequence from the taxpayer's point of view;

• eight separate parts with visual cues, breaking up the task into smaller steps;

• a new Schedule A for multistate employers or credit reduction situations; and

• check boxes instead of "A, B, C" questions.

The agency said it has been working on these changes since May 2004, an effort led by the IRS Office of Taxpayer Burden Reduction.

IRS said it welcomes input from tax and payroll professionals, business owners, and the public on the new Form 940 and on other opportunities to make it easier to comply with the tax laws.

The redesigned Form 940 can be found on the IRS Web site at www.irs.gov/ pub/irs-pdf/f940.pdf. The new instructions are at www.irs.gov/pub/irs-pdf/i940.pdf

The new Schedule A is at http://www. irs.gov/pub/irs-pdf/f940sa.pdf. More information, including a link to Form 13285A, which allows taxpayers to suggest ways to reduce the compliance burden, can be found at www.irs.gov/businesses/small/ content/0,,id=146284,00.html

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Respiratory Protection Rules Comment Period Ends

The 15-day comment period for the modified new Respiratory Protection regulations proposed by the California Department of Pesticide Regulation (DPR) ended on March 7. DPR must send the regulations to the Office of Administrative Law (OAL) by May 11. OAL then has 30 days to either approve the final regulations or return them to DPR for revision.

DPR is amending sections 6000, 6720, 6738, and 6793, and adopting section 6739 of Title 3, California Code of Regulations. The regulatory action pertains to respiratory protection worn by employees working with pesticide materials. In summary, the action will revise the written respiratory protection program that employers must establish when employees are required by pesticide label, restricted materials permit, or regulation to use respirators in the workplace.

Within the last few years, both the U.S. Department of Labor's (DOL's) Occupational Safety and Health Administration (OSHA) and, later, the California Department of Industrial Relation's (DIR's) Division of Occupational Safety and Health (Cal/OSHA) have revised their respiratory protection regulations.

DPR's existing respiratory protection regulations were patterned after DOL's former regulations. These DPR regulations are contained in section 6738(h) and consist of a two-page, eight-point list of requirements with which an employer must comply. While considered protective, DPR must revise its respiratory protection regulations to maintain a respiratory program that is consistent with Cal/OSHA. DPR also recognizes that its compliance and protection would be increased from improved clarity.

DPR considered incorporating by reference the DIR regulations contained in section 5144. However, the regulations in section 5144 may not have been intended to encompass agriculture.

DPR believes that because section 5144 was meant to cover a majority of industries, its scope must be broad and encompassing. However, DPR's jurisdiction is confined to pesticide users. Therefore, DPR tried to design regulations that are specific to the handling of pesticides. Hazardous conditions incidental to pesticide handling (e.g., entrance into a confined space environment for the purpose of making a pesticide application) are still rightly within the jurisdiction of DIR.

Further, some of the principles of respiratory protection found in section 5144 (e.g., selection and use of a respirator based on the chemical and physical properties of the air contaminant, the levels of exposure) are already mandated by the U.S. Environmental Protection Agency-approved label requirements. The additional language in section 5144 not pertinent to pesticides is not included in the proposed text.

Summary of new respiratory regulations:

• Would require the employer to identify a physician or other professional licensed health care provider (PLHCP) to perform a medical evaluation prior to requiring an employee to use a respirator. The medical evaluation begins with the employee confidentially completing a medical questionnaire or providing employees with an initial medical examination that covers the same material. The employer is required to obtain a written recommendation from the PLHCP regarding an employee's ability to use a respirator.

• A more extensive written respiratory protection program that describes work-site specific procedures for selecting, fit testing, using, cleaning, inspecting, storing, repairing. It also describes the procedures for employee medical evaluation, training, handling emergencies, and regularly evaluating the respiratory protection program.

• Would require a respirator "program administrator" to administer the respiratory protection program and conduct the required evaluations of program effectiveness.

• Language that addresses the voluntary use of respirators.

• Would require revised fit testing and face-piece seal checks.

• Would require detailed precautions to be taken including the number of people necessary, means of communication, specific rescue training, notification of the employer, respiratory equipment, and means to retrieve the employee(s) that enters an IDLH atmosphere.

• Would require greater specificity as to the requirements for the maintenance and repair of respiratory protective devices, detailing the source for cleaning and disinfecting information, the appropriate conditions of storage, the minimum elements of equipment inspections, and the repair/removal- from-service requirements for defective or otherwise failed respirators.

• Specifies where emergency respirators should be stored, both for general purposes (at the work site) and for specific conditions (away from the source of potential respiratory hazard the equipment it supposed to protect against).

• Expands current rules pertaining to breathing air suppliers.

• Stipulates that the NIOSH identification and information on respiratory protective devices not be removed or made illegible.

• Training requirements on various kinds of personal protective equipment is revised to require employers to provide additional training to ensure each employee can demonstrate knowledge and skills specific to the use of respiratory protection in their workplace.

• Improves the clarity on the requirements for program evaluation and provides for employee input for program improvement and evolution.

• Would require an employer to use an established hierarchy for determining the end-of-service.

• Would require the employer to retain written information regarding medical recommendations, fit testing, and the respirator program for review by affected employees and to the CAC or persons designated by the Director for examination and copying.

More information on the new proposed regulation is posted online at http://www.cd pr.ca.gov/docs/legbills/rulepkgs.htm#resp

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New OSHA Poster Questioned

The Occupational Safety and Health Administration (OSHA), part of the U.S. Department of Labor, recently issued the first update in seven years to its "It's the Law!" poster. Critics say the changes reflect the agency's shift from enforcing workplace safety rules to helping companies comply with those rules. The complaints about the poster illustrate the dissatisfaction of organized labor and some congressional Democrats with what they see as OSHA's skewed priorities under the Bush administration.

The agency contends it modified the poster only to make it easier for workers to read and get information. Employers need not replace the old poster with the updated one. (Note: California employers need not post the new poster due to an arrangement with the Federal OSHA agency for California to operate its own program.)

The criticism of the updated poster has focused on formatting issues and two new sections specifically directed to employers. The previous version was designed solely to inform workers.

"This is supposed to be a poster about workers' rights," AFL-CIO Director of Safety and Health Peg Seminario protested.

The bulk of the poster's content remains focused on employee rights. "The poster text remains 95% the same from previous versions," the OSHA spokeswoman wrote. But the new language advises workers that their employers must hang the poster. It also adds the word "retaliation" to a section on employer intimidation. And a new section tells workers, "You must comply with all occupational safety and health standards issued under the OSH Act that apply to your own actions and conduct on the job."

The new poster is available online at http://www.osha.gov/Publications/poster.html.

(Source: The Hill, Washington, D.C, by Jeffrey Young)

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Materials of Trade Regulations

The U.S. Department of Transportation (DOT) regulates the transporting in commerce of substances or materials that pose an unreasonable risk to health, safety and property. Employers that transport such items must comply with the Hazardous Materials Regulations issued by the Pipeline and Hazardous Materials Safety Administration.

Because of the limited hazard they pose, certain hazardous materials transported in small quantities as part of a business are subject to less regulation. These materials are known as Materials of Trade (MOT). MOT are hazardous materials, other than hazardous waste, that are carried on a motor vehicle. The regulations that apply to MOT are found in 49 CFR Section 173.6. They include:

• general knowledge of MOT regulations;

• quantity limitations;

• packaging requirements; and

• marking and labeling requirements.

With the exception of tanks containing diluted mixtures of Class 9 materials, no more than a combined gross weight of 200 kg (440 lbs) of MOT can be transported on a vehicle. Size limits for individual packages apply of MOT.

For more information, visit http://hazmat.dot.gov/pubs/pubs.htm, or email training@dot.gov. A pamphlet titled Does Your Hazmat Training Measure Up? is available at http://hazmat.dot.gov/ training/measure_up.pdf. The Hazardous Materials regulations are posted at http://www.myregs.com/dotrspa/

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Agricultural Labor Management Web Page

During the week of March 12, the University of California Agricultural Labor Management Web site at http://www.cnr.berkeley.edu/ucce50/ag-labor/ crossed the 2 million hit mark, while the Spanish site, Administración Laboral Agrícola, will cross the 1 million mark sometime in April.

The Web site has won both national finalist and national awards from the National Association for County Agricultural Agents (NACAA).

Among the Web page highlights are several free resources available, including:

• Labor Management in Agriculture: Cultivating Personnel Productivity, 2006 NACAA national publication award. You can download in PDF format a free copy of this book or of any chapter that interests you. The Spanish version of the book, Administración Laboral Agrícola: Cultivando la Productividad del Personal, is also available as a free download.

• Research papers on topics related to worker productivity and conflict management, among others

• Short articles

• Agricultural Labor Management Bulletin Board, with conversations about issues related to agricultural productivity

• Dairy Incentive Pay (4th Edition)

• Conflict management and mediation book, which may be downloaded in either English or Spanish.

• Helping your workers learn English MP3 files. And, files to help you learn Spanish.

This is a public service of the University of California.

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Congress Expected to Boost Focus on Worker Safety

According to the National Safety Council, now that control of Congress has passed from Republicans to Democrats, profound changes are expected in the oversight of federal agencies that regulate worker safety and health.

The Senate Health, Education, Labor and Pensions Committee and the House Education and Labor Committee - the primary congressional panels providing oversight to agencies that include OSHA, the Mine Safety and Health Administration and NIOSH - will be more aggressive in their scrutiny of worker safeguards under new Democratic leadership, according to observers.

Sen. Edward Kennedy, D-MA, the new HELP Committee chairman, outlined a litany of priorities in November 2006, including a promise to strengthen worker safety through reintroduction of his Protecting America's Workers Act, which had been scuttled in the Republican-controlled Senate. Kennedy said his legislation would bring more workers under agency regulatory umbrellas, give families a role in safety investigations, strengthen protections for whistleblowers and increase penalties for repeated safety violators.

In the House, Rep. George Miller, D-CA, is taking over the chairmanship of the House Education and Labor Committee in the 110th Congress. Miller has been the senior Democrat on the committee since 2001.

Both Miller and Kennedy indicated they expect to work closely in their respective committees to push workplace safety legislation, including increased funding for OSHA. Under the Democrats, leaders at OSHA and MSHA also will be compelled to make more frequent visits to Capitol Hill to explain their agencies' policies.

While enforcement of safety laws in California is handled by Cal/OSHA, any changes imposed by federal OSHA will eventually be imposed on California employers.

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Immigration Enforcement and Class Action Litigation

Enforcement actions took center stage in the closing months of 2006. In the single largest enforcement action by the federal government, a total of 1,282 workers were recently arrested for alleged immigration violations at six Swift & Company meat packing plants.

In other enforcement developments, two officials of a fence company were sentenced to prison terms and fined for knowingly hiring illegal workers, and two former Polish citizens were also sentenced to prison terms and fined for allegedly using leasing companies to provide hundreds of undocumented aliens to work for unsuspecting companies in the U.S. Collection of workers' back wages through enforcement actions by the U.S. Department of Labor (DOL) rose in fiscal year 2006, with increases expected next year.

The close of 2006 also included several positive developments on the litigation front. While lawsuits against agricultural growers under the Racketeer Influenced and Corrupt Organizations Act (RICO) continue to escalate, the U.S. Supreme Court significantly raised the bar for RICO claims in a recent decision that will limit plaintiffs' ability to bring successful RICO suits.

In another positive development, a federal court in New York denied class action certification to plaintiffs with regard to their various employment law claims against poultry companies. Notably, the court based its decision on a favorable Second Circuit Court of Appeals (Second Circuit) ruling that will make it more difficult for employees to bring class actions employment lawsuits against employers.

Conclusion: Recent developments in both government employment-related immigration compliance enforcement actions and privately brought RICO lawsuits serve as a reminder of the importance of establishing and maintaining effective hiring and employment policies. They also serve as a reminder of the importance of congressional passage of comprehensive immigration reform to provide clarity to the confused immigration employment standards and to reform the current H-2A program and regularize the undocumented workforce in the U.S.

(Source: National Council of Agricultural Employers)

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PTO Use May Not Be Required During Paid FMLA Leave

Leave taken under the federal Family and Medical Leave Act (FMLA) is generally unpaid. The FMLA generally provides employers with the right to require employees to use vacation and sick leave (or other paid leave) during FMLA-covered leave.

But some rather badly written U.S. Department of Labor (DOL) regulations restrict the employer's right to do that when leave is not "unpaid." When an employee receives benefits such as under a temporary disability leave benefit plan, the leave is not "unpaid," and the employer may not require the employee to use vacation or sick pay.

The Seventh Circuit Court of Appeals recently applied that regulation in Repa v. Roadway Express, Inc. The effect of the decision is that California employers may not require employees to use vacation, sick or other paid leave when the employee is receiving state disability, paid family leave, or workers' compensation benefits.

The DOL regulations are at http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.207.htm. More information on this can be obtained on the Web site of Shaw Valenza LLP at http://shawvalenza.com.

(Source: Jennifer Brown Shaw, Esq., Shaw Valenza LLP, 520 Capitol Mall, Suite 630, Sacramento, CA 95814, (916) 326-5150 jshaw@shawvalenza.com www.shawvalenza.com)

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Immigration Compliance Tips

The Swift & Co. meat packing raids by federal immigration agents last December are an example of the "tough stance" against those who employ illegal aliens, said Michael Chertoff, Secretary of the U.S. Department of Homeland Security (DHS). "In fact," Chertoff added, "I'm pretty much going to guarantee we're going to keep bringing these cases."

That should cause any employer concern, especially considering that Swift & Co. voluntarily participated in the DHS Basic Pilot Program to confirm whether a prospective employee's name matches a legitimate Social Security number.

How do employers protect themselves? Employers can't eliminate themselves as targets, but employment lawyers ate suggesting they implement rigorous Form I-9 compliance, a consistent approach to addressing Social Security Administration (SSA) "no match" letters, and develop a raid-response plan.

Employers should have one or two qualified employees trained in Form I-9 compliance. Do not allow multiple employees to fill out Forms I-9, but give the trained employees responsibility for handling Form I-9 responsibilities to maintain consistency.

Have a second person review any Form I-9. This "secondary review" is important to demonstrate the employer's good faith in seeking to comply with the law and will often catch errors early. Examine original documents only. The employee chooses which documents to show the employer. Do not ask for specific documents.

Social Security "no match" letters: SSA sends "no match" letters to employers reporting employee Social Security numbers that don't match information in SSA records. The letter doesn't mean the employee isn't eligible to be employed. In fact, the letter states: "This letter does not imply that you or your employee intentionally gave the wrong information about the employee's name or Social Security number. Nor does it make any statement about an employee's immigration status." Receiving the letter does not constitute "actual or constructive knowledge" that the employer has hired an illegal alien. For these reasons, an employer should not take any immediate action against the employee, but does need to do something.

The employer should first review its own records and the Form W-2 it submitted to the SSA. A common error is transposing or improperly recording a number. If the employer's records do not match, corrections should be submitted to the SSA.

If the employer's records are accurate, the employer should provide a copy of the no-match letter to the employee, with instructions to check his or her Social Security card and inform the employer of any name or Social Security number differences. The instructions may give the employee a reasonable amount of time to contact the SSA to resolve any discrepancies. Employers should recognize that the SSA is not always able to immediately respond and the employee may need more time to resolve the issue.

An employee is not required to show a Social Security card to the employer, and the employer should not ask for it. If the employee discovers a discrepancy or discloses a reason for a discrepancy, such as marriage or divorce, that information should be submitted to the SSA.

If the employee confirms that his or her name and Social Security card are correct, the employer should inform the SSA that the employer has confirmed the employee's information. If the employee admits that he or she does not have employment authorization, the employer must terminate employment. The employer does not have an obligation to report the former employee to the immigration authorities or SSA.

If the employee refuses to follow up with the SSA or does not follow up with the employer as to progress in resolving a discrepancy, the employer should contact an attorney to discuss subsequent action. Termination of employment based on receipt of no-match letters may give rise to a discrimination claim by the terminated employee.

An employer has no duty to audit remaining employees' Social Security numbers and should under no circumstances conduct an audit based on an employee's national origin or other protected-class status.

Responding to an investigation: Immigration or U.S. Department of Labor officials should provide an employer with three days' notice if they plan to review Form I-9 files. This is a brief opportunity for the employer to audit those files and make any corrections as outlined above. If officials find violations, they may issue fines or warning notices. Even at this stage, employers often can negotiate a settlement.

Once a review has been completed, employers should not assume the investigation is resolved; it may be only the beginning. Immigration and Customs Enforcement (ICE) can obtain warrants and conduct a search of the employer's workplace, including seizing Forms I-9. Criminal charges can follow. Or, ICE may consider its investigation a criminal matter from the beginning and conduct a raid of the employer that involves the SSA, Internal Revenue Service, Federal Bureau of Investigation, U.S. Postal Service and U.S. Attorney's Office.

If the government is at the door, the employer should immediately contact its attorney. While awaiting the attorney's arrival, the employer should review the warrants and obtain a list of all agencies involved. Most important, the employer should decline to answer any questions until receiving legal counsel.

ICE Best Practices: ICE has announced a new IMAGE program as an alternative to employers who agree to adopt a series of "Best Employer Practices." These employers also agree to sign an agreement with ICE, start the program with a full-blown Form I-9 audit, and then ensure the accuracy of their hiring and wage reporting by using the Social Security Verification System and the Basic Pilot Employment Verification System Program of the U.S. Customs and Immigration Service (USCIS).

While the entire program is not workable for agriculture at this time, farm labor contractors should consider adopting some of the Best Employer Practices, because any federal immigration reform will likely require these same actions.

1. Use the USCIS Basic Pilot Employment Verification Program for all hiring.

2. Establish an internal training program, with annual updates, on how to manage completion of Form I-9 (Employee Eligibility Verification Form), how to detect fraudulent use of documents in the I-9 process and how to use the Basic Pilot Employment Verification Program.

3. Permit the Form I-9 and Basic Pilot Program process to be conducted only by individuals who have received this training-and include a secondary review as part of each employee's verification to minimize the potential for one individual to subvert the process.

4. Arrange for annual Form I-9 audits by an external auditing firm or a trained employee not otherwise involved in the Form I-9 and electronic verification process.

5. Establish a procedure for reporting to ICE any violations or discovered deficiencies.

6. Develop a protocol for responding to no-match letters received from SSA.

7. Establish a "tip line" on which employees can report activity relating to the employment of unauthorized workers, as well as a protocol for responding to employee tips.

8. Establish and maintain safeguards against the verification process being used for unlawful discrimination.

9. Establish a protocol for assessing contractors' and subcontractors' adherence to the best-practices guidelines.

10. Submit an annual report to ICE to track results and assess the effect of participation in the IMAGE (ICE Mutual Agreement between Government and Employers) program. IMAGE is designed to build cooperative relationships between government and businesses to strengthen hiring practices and reduce the unlawful employment of illegal aliens. The initiative also seeks to increase industry compliance and corporate due diligence through federal training and employer education. The program requires employers to submit to a Form I-9 audit by ICE and to confirm the Social Security numbers of existing employees through the Social Security Number Verification Service (www.ssa.gov/employer /ssnvs pamphlet.htm; www.ssa.gov/emplo yer/ssnvs_handbk.htm).

(Source: Don Dressler, Ph: 949-533-3742, Fax: 949-266-9561, Email: DonDressler1@hotmail.com; Website: DonDressler.com)

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Mexican "Laser Visas"

The Department of State (DOS) has amended its regulations on the issuance of combined Mexican Border Crossing Cards and B-1/B-2 visas, commonly referred to as "laser visas," to require applicants to present a Mexican Federal passport prior to issuance. The laser visa is a laminated, credit card style document, issued to Mexican citizens traveling to the U.S. for temporary business or pleasure.

The laser visa has a number of security features and is valid for 10 years. Applicants for laser visas previously had the option of providing other identity documents to receive a laser visa. DOS believes that requiring Mexican Federal passports before issuance of laser visas will accomplish its goals of furthering national security and ensuring document integrity.

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Mandatory Arbitration Policy Held Unlawful

The National Labor Relations Board (Board) held that a policy contained in a nonunionized employer's employee handbook, which policy required employees to arbitrate all disputes relating to or arising out of an employee's employment with the company or the termination of that employment, was unlawful under the National Labor Relations Act (NLRA). The Board reasoned that the policy might reasonably be read by employees to prohibit the filing of unfair labor practice charges with the Board.

In that case, U-Haul Co. of California, the employer maintained a mandatory arbitration policy as a condition of employment for all employees. The policy specifically covered: "claims for wrongful termination of employment, breach of contract, fraud, employment discrimination, harassment or retaliation under the Americans With Disabilities Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964 and its amendments, the California Fair Employment and Housing Act or any other state or local anti- discrimination laws, tort claims, wage or overtime claims or other claims under the Labor Code, or any other legal or equitable claims and causes of action recognized by local, state or federal law or regulations."

The U-Haul policy made no reference to the NLRA.

The Board ordered the employer to (1) rescind its arbitration policy at all facilities where it was in effect; (2) post a remedial notice regarding the policy at all of those facilities; (3) remove from its files all unlawful waivers of the right to take legal action executed by its employees; and (4) notify in writing each present or former employee who executed such a waiver that this has been done and that the waiver will not be used in any way.

Conclusion: Employers should review their arbitration policy to make sure that it contains some exclusionary language that would prevent it from falling into the same trap. The Board held that the policy needed to expressly notify employees that they were not waiving their right to raise claims with the Board related to the NLRA. This case signals that arbitration policies can give rise to unfair labor practice charges and Labor Code violations.

(Source: The Berger Kahn Labor & Employment Group, eAlert,, Wayne Hersh at (949) 474-1880, x340)

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Anti-"Bullying" Laws

Nobody likes a mean boss. Co-workers naturally do not always like everyone with whom they work. But a recent San Francisco Chronicle article features the possibility of anti-bullying legislation.

The Web site "bullybusters.org" contains a growing list of states taking up "model" healthy workplace legislation.

Anti-bullying laws would mean that someone could claim a "hostile environment" without showing a linkage between the conduct and a protected criterion, such as race, sex or disability.

Rhetorical question alert: Think this could increase litigation? Think opportunistic workers will file suits against managers in retaliation for legitimate decision-making?

What does this mean? The case law currently includes many statements by courts to the effect of: "the law does not guarantee a Utopian workplace," that feuds between employees (unrelated to illegal discrimination) are not actionable, and that anti-discrimination laws are not "civility codes." Well, if anti-bully advocates have their way, all these dicta in judicial opinions will become obsolete.

The devil of course is in the details. Everyone understands that an abusive person in the workplace is not conducive to good morale, can result in higher turnover, and can make going to work unpleasant etc. (More rhetorical questions follow). But when does an "intense" manager or employee cross the line and become a "bully' subjecting the employer to financial liability? And who is going to decide this? A jury at a cost of tens or hundreds of thousands in legal fees? How will managers be able to manage poor performance, convey negative feedback, and even let off a little steam without the fear of legal liability? And then there's the backlash - Won't it be easier just to fire an at-will employee than let the worker build a "bullying" case?

Workers have arguments now and then. Supervisors are responsible for managing productivity, work performance, attendance, and other unpopular subjects which naturally cause hurt feelings. Should managers be legally required to be nice? Should managers hire people based on whether they are likely to be friendly? Incidentally, should an employee be injured by such conduct, there already is a remedy for physical or psychiatric through the workers' compensation laws.

So, let's hope that the advocates of anti-bullying legislation consider the various issues that anti-bullying legislation will raise, and set a relatively high standard for what is a "bully."

(Source: Jennifer Brown Shaw, Esq., Shaw Valenza LLP, 520 Capitol Mall, Suite 630, Sacramento, CA 95814, (916) 326-5150 jshaw@shawvalenza.com www.shawvalenza.com)

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