Tracking ICE's Enforcement Agenda

Detention Watch Network is concerned about the exploding enforcement that leads to the ever-increasing detention and deportation of immigrant families. A report by Rita Espinoza, Tracking ICE's Enforcement Agenda, was originally created to document immigration raids but has expanded to include data on the detention and deportation of immigrants.

Some of the language used throughout the document is that of the government, specifically the Bureau of Immigration and Customs Enforcement (ICE).

Much of the data was compiled from the ICE Web site, though it has been supplemented with data from the media, congressional reports and various other sources.

As the raids continue daily and ICE operations expand, it is difficult to document this information completely, and thus, this remains a working document.

The report is intended to help advocates and organizers in exposing the links between operations like the highly publicized Swift meat-packing raids and the hidden world of detention where immigrants are then held and processed for deportation.

The report is posted online at http://www.ilw.com/articles/2007,0626-black.pdf. A hyperlink to that site, labeled "Tracking ICE's Enforcement Agenda," is at www.fels.org/find#0707.

(Source: American Immigration LLC, www.ilw.com)

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Pesticide Training Records

It is important to train pesticide handlers and field workers in pesticide safety as required by Department of Pesticide Regulation rules, found in title 3, California Code of Regulations, sections 6724 and 6764.

Here is the record keeping requirement for section 6724(e), Handler Training: "The date and extent of initial and annually required training given to the employee and the job to be assigned shall be recorded. This record shall be verified by the employee's signature and retained by the employer for two years at a central location at the workplace accessible to employees."

Under section 6764, fieldworker training doesn't require a record. Here is what section 6764(c) says about training records for fieldworker training: "An employee who holds a valid personal pesticide license or certificate issued by the department, a valid verification of training card issued under the authority of the U.S. Environmental Protection Agency, current documented pesticide handler training pursuant to Section 6724, or other valid certificate of pesticide training approved by the director is considered to be trained for the purposes of this Section."

Despite this, employers are encouraged to record pesticide safety training for field workers.

The person who provides Pesticide Safety training to a field worker and issues an EPA "Worker Protection Standard Training Worker Verification Card" is responsible only to provide accurate and thorough information to the trainee.

The person who performs the training is certifying, by issuing the card, that the worker "has completed the Agricultural Worker pesticide safety training as required by the Federal Worker Protection Standard."

Samples of a training record and of a verification card are posted online at www.fels.org/find#0707.

Since the Federal Worker Protection Standard requires handler training only once every five years and the California DPR rules require annual training, the Federal WPS handler card is not valid in California.

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Mexican Consulate Establishes Safety Hotline

The Mexican Consulate in Atlanta has established a help line for Hispanic workers who are concerned about safety and health hazards at their worksite or about other work-related issues under the jurisdiction of the Department of Labor.

Bilingual consulate employees have been trained by the Labor Department to screen calls and connect workers with appropriate department staff for assistance.

Since December, 90 percent of the callers have been construction workers.

The hotline was set up under an alliance between the Mexican Consulate, OSHA and Georgia Tech Research Institute's Safety, Health and Environmental Technology Division. The goal of the agreement is to reduce injuries, illnesses and fatalities among Hispanic workers.

(Source: By Katherine Torres, Occupational Hazards)

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Dairy Workers Get Payout

Workers at a Laton dairy will share in a $275,035 settlement from a lawsuit over allegations of labor-law violations. A judge gave preliminary approval for a settlement in the class-action lawsuit against the dairy.

California Rural Legal Assistance attorneys represented the three plaintiffs who had worked at the dairy and more than 60 milkers and other workers who are part of the class-action suit.

The workers alleged they were not paid overtime despite having worked seven days in a row, were not allowed meal breaks, and lacked safety equipment.

In recent years it has become common for the CRLA to file suits against agricultural employers based on the state's unfair competition law, found in Business and Profession Code section 17200 et seq.

Plaintiffs' attorneys use that law to extract large settlements from employers - often thousands of dollars. The law, which was intended to prevent landlords from cheating tenants out of deposits, has been interpreted liberally. A violation of the Labor Code or an Industrial Welfare Commission order or Cal/OSHA safety regulation is considered an unfair business practice. The theory is that by violating an employment standard, an employer is giving itself a competitive advantage. Attorney fees alone can cost an employer hundreds of thousands of dollars.

(Source: Bethany Clough, The Fresno Bee, bclough@fresnobee.com)

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Packer Revisits Its "No-Match" Policy After Two-Day Walkout

Smithfield Packing Co. has agreed to re-evaluate immigration policies at its Tar Heel, N.C., plant after a two-day walkout by hundreds of its employees in protest of the firing of 58 immigrant workers.

Smithfield spokesman said company officials reached an agreement with employees after meeting with employees and Catholic church representatives. Smithfield agreed to rehire the 58 employees and not retaliate against others who had walked off the job to protest the company's immigration policy and the firings.

Hundreds of workers at Smithfield's Tar Heel plant participated in the walkout. Between 250 and 300 employees had walked off as part of the protest while a spokesman for the United Food and Commercial Workers said as many as 1,000 employees participated. UFCW has sought to represent the plant's employees.

Pittman said the workers who were the subject of the protest had been laid off at the direction of the federal Department of Homeland Security's Immigration and Customs Enforcement (ICE). He said Smithfield participates in the ICE Mutual Agreement Between Government and Employers (IMAGE), a federal pilot program announced in July.

As part of its participation in the IMAGE program, a Social Security number check was run on all Smithfield employees. The company was required to inform workers whose names did not match with their Social Security numbers that they could not be employed if the discrepancy were not addressed.

Smithfield had informed 114 employees of the approximately 5,000 who work at the Tar Heel facility that their names and Social Security numbers did not match. Of those workers, "time had run out" on 58 and they were laid off, he said. The affected employees had been given 14 days to address the "no-match" issue.

As part of the agreement, the company will re-employ the 58 workers and provide them with more time to address the no-match issue. Company officials were working with federal regulators to determine how much time employees could be given to resolve the Social Security no-match issue.

The same immigration policy is being implemented at all Smithfield facilities and workers at other locations also have been laid off, Pittman told BNA. "What we did was what we had to do" as participants in the IMAGE program.

However, Gene Bruskin, director of UFCW's "Smithfield Justice Campaign," said the company has misinterpreted federal immigration policy.

"The IMAGE program only applies to new hires," he said. UFCW was "pleased" about the agreement, Bruskin said. "For the first time since this plant was opened in 1994, the company set up a mechanism to resolve a dispute," he said.

But, he added, UFCW doubts a fair representation election could be held at the facility after the NLRB ruled in May 2006 that the company had committed many unfair labor practices during organizing campaigns in 1994 and 1997.

(Source: Field Report, Dec. 2006 Vol. 42, Iss. 12, National Council of Agricultural Employers, Washington D.C.)

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Excelsior Farming Employees Vote to Decertify UFW

Employees of Excelsior Farming in Hanford voted April 27 to decertify the United Farm Workers union as their collective-bargaining representative.

The union challenged the decertification vote, alleging the employer had committed unfair labor practices before the election, including foremen letting petitions be circulated during working hours.

An Excelsior spokesperson said the vote was 239 in favor of decertification and 59 opposed. The spokesperson said that at the root of discontent with the union was a contract that called for payment of $7.50 an hour to hourly workers, which matches the state minimum wage.

In 2004, workers at Excelsior failed to remove the union as their bargaining representative. A decertification election conducted then resulted in 135 votes against and 195 for the union.

John Warmerdam, general manager of Excelsior, said he has no doubt that this vote will stand. "There was no illegal activity on the part of the company, it was a legal election, and we wouldn't stand for it being done any other way.

"In the past, there have been union charges that were dismissed ... and I expect this to go the same way."

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Interpersonal Negotiation Skills Seminar Available Online

The very thought of negotiating sounds intimidating, yet we are all experienced negotiators. Any time we come to an agreement on anything, we do so through negotiation. Some of this happens somewhat subconsciously, while other situations are difficult enough that much planning and effort are required. Nowhere is this truer than in interpersonal negotiation, especially if tensions are running high.

A free 90-minute seminar is available for you to listen to in your pickup or at home or to share with your employees, as you see fit. The audio seminar is aimed at helping individuals improve their skills negotiating with business partners, employees and family members.

After it has been downloaded, the audio seminar must be uncompressed (or unzipped). It can then either be played on a computer or MP3 player or burnt onto CD-Rs. (Two CD-Rs are needed; choose the MUSIC option rather than the DATA option when prompted). The only way to obtain these files is to download them directly from the Web. This is a public service of the University of California.

To download, click on the link within the yellow row, titled NEGOTIATION SKILLS AUDIO, go to www.fels.org/find/#0707 or http://www.cnr.berkeley.edu/ucce50/ag-labor/7labor/13.htm.

(Source: Gregorio Billikopf Encina, University of California Farm Advisor, 209-525-6800 gebillikopf@ucdavis.edu)

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The following article was provided courtesy of Barsamian & Moody, The Employers' Law FirmSM, one of two law firms participating in the Group Legal Services Program for FELS subscribers. It is intended to provide employers with current information on labor and employment law. Its contents should neither be interpreted nor construed as legal advice or opinion. Please consult with Barsamian & Moody in Fresno at (559) 248-2360 or toll-free at (888) 322-2573 for individual responses to questions or concerns about any given situation.

Former Women's Volleyball Coach Awarded Millions

By Patrick Moody

A Fresno County jury awarded former Fresno State University women's volleyball coach Lindy Vivas $5.8 million dollars in a lawsuit she brought against the university.

Vivas alleged the university refused to renew her contract in retaliation after she had filed a complaint with the U.S. Department of Education Office of Civil Rights about the university's alleged failure to comply with Title IX, a federal law that requires the university to distribute funds and services equally between male and female sports programs. She further alleged that the university had discriminated against her because it perceived her to be a lesbian.

The university, which is facing lawsuits by its former women's basketball coach Stacey Johnson-Klein and former associate athletic director Diane Milutinovich, adamantly denied Vivas' allegations. It contended it had based its decision not to renew her contract upon Vivas' failures to schedule more Top 25 opponents, increase attendance, and improve the volleyball program.

At trial, witnesses called by Vivas' attorney presented testimony that the athletic director, Scott Johnson, had stated he wanted to get rid of lesbians in the athletic department and that university president John Welty hated lesbians because his wife had left him for a woman. There was also testimony that university administrators, including Johnson, had partaken in a potluck luncheon advertised as celebrating "Ugly Women Athletes."

Vivas testified she was the winningest volleyball coach the university had ever had, that her last season's average attendance was at an all-time high and in the top 30 of all volleyball programs in the country and had set an all-time individual home attendance record for the university.

The university got Vivas to admit that she had never heard any university official refer to her as a lesbian. Another witness testified that president Welty had promoted her to his second in command of the entire university after she had told him she was a lesbian.

An athletic department secretary testified she had heard Milutinovich tell women's softball coach Margie Wright to "play the equity card and you can't be refused." The university introduced a number of documents in which Johnson had written to Vivas congratulating her and showing support for the volleyball program.

The university also introduced documents showing that it had encouraged Vivas to schedule more Top 25 teams but that Vivas did not do so. The university contended Vivas wanted to schedule lesser opponents to pad her win-loss record.

After nearly a month of trial, Vivas' attorney asked the jury to award her $4.1 million. The jury deliberated for several days before returning with a surprise verdict awarding her $5.8 million. The jury specifically found that Vivas had engaged in protected activity under Title IX and complained about gender discrimination and that the university had retaliated against her by not renewing her contract.

What This Means For Employers

The decision, which the university has vowed to appeal, clearly shows the unpredictable nature of a jury trial. Not only did the jury side with the plaintiff 100%, but it then chose to award her $1.7 million more than the $4.1 million she had asked for. Juries obviously can be very vindictive, especially when they feel an employer retaliated against an employee who had complained about discrimination.

Another issue is that according to the Fresno Bee, Vivas' attorney stands to receive 40% of the award, which is a very powerful incentive for plaintiffs' attorneys to bring more and more cases.

It is imperative that employers take issues of harassment and discrimination very seriously and all reasonable steps to prevent claims, including having a well-publicized anti-discrimination/harassment policy with a clear complaint procedure, as well as conducting training for all supervisors on how to prevent harassment and discrimination, and how to properly deal with it if a complaint arises.

They must also take all complaints seriously, conduct prompt and thorough investigations, and take all appropriate actions indicated by the results of the investigation.

Finally, employers must zealously guard against any type of retaliation or run the risk of being hit with a substantial award by an angry jury.

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The following articles were provided courtesy of Saqui & Raimondo, Counselors to Management, one of two law firms participating in the Group Legal Services Program for FELS subscribers. They are intended to provide employers with current information on labor and employment law. Their contents should neither be interpreted nor construed as legal advice or opinion. Please consult with Saqui & Raimondo at (831) 443-7100 in Salinas, (916) 782-8555 in Sacramento, or (559) 449-8585 in Fresno, for individual responses to questions or concerns about any given situation.

S&R Counselors' Corner
Sexual Harassment Allegation - Dismissing Long-Time Employee - Fighting - Age Discrimination

By Michael Saqui & Anthony Raimondo

Question: While she was on a medical leave, a 20-year employee e-mailed her manager, accusing another co-worker (non-supervisor) of sexual harassment. We were just at a point of dismissing her because of poor performance. Several months ago, her manager told her he would give her some time to improve her production, but her performance still hasn't improved. Now we want to dismiss her. What should we do?

Answer: This question presents a great example of why employers must make good documentation practices a regular part of discipline and supervision.

Employees who know their time is running out due to poor performance often use complaints of discrimination and/or harassment, workers' compensation claims, vocal union support, or other "protected activities" to protect their position. Discharging an employee right after he or she has complained of harassment suggests unlawful retaliation, especially if there is no documentation of the performance problems that led to the discharge.

But it is not illegal to fire an employee for poor performance where the employee coincidentally complained of harassment or started wearing a union button. It is only illegal to fire an employee because he or she complained of harassment or engaged in some other protected activity.

The employer can protect its ability to discharge by having detailed documentation of performance problems, with specific direction to the employee to either improve in particular areas or be discharged. In such a case, documentation provides two benefits.

First, the documentation shows a history that justifies the discharge even where the employee has complained of harassment. This history shows that the employer is discharging the employee for poor performance, not because of protected activity. Ideally, the employer will have documentation that other employees with similar performance problems faced the same disciplinary consequences, thus showing that the current disciplinary decision is consistent with past practice.

Second, the documentation may undermine the employee's credibility in that it suggests the employee, hoping to avoid being fired for poor performance, concocted the harassment complaint.

Question: An older employee, about 68 years of age and who has worked for the company for about 20 years, has recently begun to irritate other employees. Yesterday, she physically attacked another employee who had provoked the attack. We'd like to dismiss her but fear she'd accuse us of age discrimination. How should we handle this situation?

Answer: Once again, documentation and a history of consistent discipline is essential. A physical attack on another employee is very serious and should be treated as such by the employer. The employer's Employee Handbook should have a policy stating that there is zero tolerance for violence in the workplace. Other than immediate self-defense, no conduct justifies a violent response in the workplace.

The employer should immediately suspend the aggressor and initiate an investigation that proceeds promptly. During the investigation, the employer should get statements from witnesses and obtain sworn declarations where possible. Both of the employees who were involved should be interviewed, and any witnesses they identify should be interviewed as well.

Once the employer has reviewed all of the evidence, it can discharge the employee for an act of violence - even as a first offense (assuming that any other first act of violence by an employee was similarly punished).

Depending on the circumstances, the victim who provoked the attack may face discipline or discharge depending on the severity of the conduct that led the attack. In addition, the employer may consider a workplace violence restraining order. Such orders can often defuse a potentially violent situation by reminding the participants that the employer takes workplace violence seriously, and at minimum protect the employer from accusations later that it did not take the threat seriously.

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SB 180: The UFW's Anti-Democratic "Solution"

By Michael Saqui & Anthony Raimondo

The United Farm Workers of America and its allies in the state Legislature are pushing to pass Senate Bill 180 (Migden), which would result in a major change to the Agricultural Labor Relations Act. A major feature of the ALRA is that the only way for a union to obtain the right to act as the exclusive collective-bargaining representative of an employer's agricultural employees is by winning a secret-ballot election conducted by the Agricultural Labor Relations Board.

In contrast, under the National Labor Relations Act, which covers most industries other than agriculture, an employer can choose to voluntarily recognize a union without an election, as long as the union has given the employer proof that a majority of the employer's employees support the union.

The ALRA's "elections-only" approach was something the UFW demanded when the ALRA was created in 1975: The union claimed that voluntary recognition let employers make "sweetheart" deals with company-friendly unions. Since then, a wide range of ALRA decisions and court opinions have recognized that secret-ballot elections are the best way to determine whether employees truly want union representation.

After building a truly abysmal record at winning elections, the UFW has now decided that it is the election process, not the union itself, that is the problem. Under SB 180, a union could obtain the right to represent an employer's employees through a "majority signup election."

Under this procedure, a union that submits to the Agricultural Labor Relations Board authorization cards signed by a majority of an employer's employees would become their collective-bargaining representative. If the union were to fail, the ALRB would notify it of the problem and give it another 30 days to come up with more cards. Remarkably, the union could fill out all of the information on the cards except for the employee's signature!

This process is nothing more than a way for the UFW to avoid the fact that most workers do not want it to represent them and have expressed that choice at the ballot box.

In most cases, the UFW submits authorization cards signed by an overwhelming majority of the workforce but loses an ALRB election conducted a week later. This is because the union often lies when its organizers solicit for signatures on the cards, telling employees that the cards are to support drivers' license legislation or immigration reform.

Also, unlike voting, the signing of an authorization card is a public act that exposes the worker to peer pressure from pro-union co-workers and coercion from aggressive organizers.

SB 180 has other features of concern to agricultural employers, including:

• A legal challenge filed by an employer to a "majority sign up" would not relieve the employer from its obligation to bargain with the union nor delay the running of the 180-day period before the employer can be forced into mandatory contract arbitration.

• The ALRB could order a penalty of up to $20,000, in addition to any other remedies, against an employer that "willfully or repeatedly" interferes with employee rights while a union is seeking representation or after a union is certified.

• An employer found to have discriminated against an employee for supporting a union while it is organizing or after its certification would be ordered by the ALRB to pay the employee twice the amount of back pay as additional damages.

• An employer that fails to negotiate in good faith with a union would be assessed a minimum "make whole" remedy of three percent of the employee's gross wages per year, or the cost of living increase, whichever is greater, plus interest at the legal rate.

• Unfair labor practices alleged to have occurred during or immediately after organizing campaigns are given priority.

This bill shows how far the UFW will go to obtain the right to represent workers. The union has very little regard for the true desires of the workers and only wants the outcome to go in their favor.

All employers should contact their legislators to express opposition to this bill.

Employers should prepare now to implement proactive campaigns that will protect them from union organizing.

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