DHS Publishes SSA No-Match Regulation

The Bush administration has announced a series of steps it will take to "improve border security and immigration within existing law." Of special interest to agricultural employers is the Department of Homeland Security's issuance of a safe-harbor rule for employers receiving so-called no-match letters from the Social Security Administration.

Inserted in this newsletter is a review of the new regulation by Carl Borden, Associate Counsel of the California Farm Bureau Federation. FELS has also posted information regarding the new rule at:

http://www.fels.org/Data/InsForms/No-Match-Summary.htm.

The regulation goes into effect September 14, 2007.

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EEEC, DLSE Target Businesses

The Economic and Employment Enforcement Coalition (EEEC) is a multi-agency task force designed to root out California's underground economy. EEEC targets businesses that avoid labor, tax and licensing laws, safety and health regulations and carry no workers' compensation insurance for their employees.

EEEC investigators have been busy conducting enforcement sweeps the past two months. Inspections have targeted businesses in agriculture and construction, car washes, and businesses operating illegally. The results of the recent sweeps by industry are in the chart below.

In addition to the EEEC inspections, the Division of Labor Standards Enforcement (DLSE) conducted a four-month investigation of San Bernardino restaurant owners. The investigation found numerous violations of state labor laws at five restaurants including gross under-reporting of payroll taxes and failures to pay proper minimum wage and overtime, as well as failures to provide itemized wage-deduction statements, meal periods and rest periods, and illegally employing minors.

California Labor Commissioner Angela Bradstreet said, "We will conduct detailed payroll audits and will seek back wages and penalties totaling hundreds of thousands of dollars."

Investigators found that most of the restaurants employed from eight to 10 workers who typically had to work 12 hour days, six days a week, for less than minimum wage, without overtime-premium pay, meal periods, or rest periods in violation of California labor law.

Investigators issued citations on site totaling $36,750 for failure to provide itemized deduction statements and one $500 citation for a lack of work permit for a minor.

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Ag Accent Reports on Union Activity & Legislation

Each month for over 35 years, the Agricultural Action Committee has covered in its monthly newsletter Ag Accent agricultural labor issues in California. FELS has been given permission by Don Curlee, editor of Ag Accent, to post issues of that publication on the FELS Web site.

Here are titles of articles that ran in the June and July issues of Ag Accent:

• Gallo Sonoma Workers Dump the UFW

• Card Check Approval by Legislature Expected

• Access Petitions Abound

• Plot Thickens for Wasco Rose Grower

• UFW Faces Another Major Membership Loss

• Binding Arbitration Hits 30-year-old D'Arrigo Case

• Vote Scuttling Legislation Moves Rapidly

• Congress Bungles Immigration Reform Hope

These stories can be found at: http://www.fels.org/AgAccent.

Agricultural employers are encouraged to subscribe to Ag Accent to keep this valuable service active. An annual subscription is $100. Send subscription orders to:

Agricultural Action Committee
P.O. Box 34
Clovis CA 93613

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Supervisor Harassment Training Regulations

The Fair Employment and Housing Commission has finalized the promulgation of its regulations interpreting the Fair Employment and Housing Act in regards to supervisor sexual harassment training (Gov. Code section 12935)

The Commission's sexual harassment training and education regulations submitted to the Office of Administrative Law have been approved. The regulations will, after notice to the Secretary of State and publication, become effective on August 17.

On July 18, the Office of Administrative Law approved the Commission's sexual harassment training and education regulations. The text of the regulations is, with one minor grammatical change to Section 7288.0, identical to the version adopted by the Commission on April 23. A link to the final regulation can be found at: www.fels.org/find#0708.

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Heat-Illness Prevention Reminder from Cal/OSHA

One of the best defenses against heat related illnesses and fatalities is for employers to allow their workers to adjust to changes in weather (known as acclimatization), according to the Labor and Workforce Development Agency's Division of Occupational Safety and Health (Cal/OSHA). Giving new employees time to adjust to working in hot weather by gradually increasing their exposure and physical activity likely reduces the risk of heat related issues.

"We see a trend in the data that points to acclimatization as an important factor in the prevention of heat illness," said acting Cal/OSHA Chief Len Welsh. "It is especially critical to be vigilant with new workers."

According to Cal/OSHA data, the risk of dying from heat illness appears to be highest for employees who had just started working in extreme heat.

The body needs to adapt gradually to exertions in the heat and humidity. According to Cal/OSHA heat illness prevention data, most people adjust to the weather or acclimate within four-to-14 days of regular work levels. "It is imperative to monitor your employees at all times during hot weather and allow those who are new to working in hot weather to gradually adapt to the daily routine," said Welsh.

Raising awareness is a key in preventing heat illness. The Heat Illness Prevention Standards require mandatory training for employees and supervisors that includes information on acclimatization, drinking one quart of water per hour and taking cool-down breaks, among other actions.

In addition to the requirements outlined in the heat illness prevention regulations (section 3395 of Title 8), employers may consider starting the work day early and pacing work activities for their workers. Other prevention techniques include increasing the number of water and rest breaks on hot days and encouraging the use of a "buddy system" to monitor employees in the field.

Employees who work indoors should take the same precautions as those who work outdoors in extreme heat, and follow similar measures under (section 3203 of Title 8) their employers' Injury and Illness Prevention Program.

For other resources or more information on heat related illness prevention, free workshops and training materials visit Cal/OSHA website at: http://www.dir.ca.gov/heatillness.

The above Web site link can also be found at www.fels.org/find#0708.

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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.

Display New Federal Minimum Wage Poster

On May 25, President Bush signed a spending bill that, among other things, amended the federal Fair Labor Standards Act to increase the federal minimum wage in three steps: to $5.85 per hour effective July 24, 2007; to $6.55 per hour effective July 24, 2008; and to $7.25 per hour effective July 24, 2009.

In California, that increase may have received little notice, as the increased federal minimum wage is still lower than the California minimum wage. However, it is important not to overlook the need to post the new federal minimum wage poster. If your company is ever inspected by an EEEC team, for example, one of the things that they look for is to see if you have all of the correct posters displayed.

Contact your poster supplier to obtain the new poster, or you can download it from the U.S. Department of Labor website. The English version is at http://www.dol.gov/esa/whd/flsa/index.htm, while the Spanish version is at http://www.dol.gov/esa/regs/compliance/posters/flsaspan.htm.

The poster replaces your current federal minimum wage poster and should have been posted by July 24, when the first step of the increase took effect.

While employers are not required to post a Spanish translation of Industrial Wefare Commission (IWC) Order 14 (Agricultural Occupations) it is now available online at:

http://www.dir.ca.gov/IWC/IWCArticle14-Spanish.pdf

The above website links can also be found at www.fels.org/find#0708.

(Source: Ron Barsamian & Patrick Moody)

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Immigration Update: H-2A

With the failure of Congress to pass comprehensive immigration reform, including the AgJobs provisions, and the continuing difficulty in finding sufficient workers during peak agricultural periods, we have been receiving numerous questions about the current H-2A guest-worker provisions, as well as questions and concerns about changes to regulations on and enforcement of Social Security number no-match situations. This article provides a brief overview of the H-2A program as it now exists.

The H-2A temporary agricultural visa is a non-immigrant visa that allows foreign nationals to enter the United States to perform temporary or seasonal agricultural labor or services. Given estimates that more than half of America's agricultural workers are undocumented immigrants and subject employers to increased enforcement of immigration laws, the use of the H-2A visa is becoming a more viable alternative for securing sufficient workers. It is not a particularly easy program to establish, however.

Generally, an employer must satisfy two criteria to hire non-immigrant workers when filing an application to use H-2A workers:

1. The employer must show that able, willing, and qualified US workers are not available at the time and place needed. The employer must document substantial efforts in recruiting US workers, and the recruitment must continue even after an H-2A program is established, or at least until half the program period (the season or time period for which H-2A workers are being secured) has been completed; and

2. The employer must show that an adverse effect on wages or working conditions of similarly employed US workers will not result from the employment of foreign workers. Generally speaking, the employer will meet this burden because of the requirement to pay wages equal to or higher than is paid to other workers in the same type of work either at the prevailing rate or what is known as the "adverse effect wage rate."

Employers must also pay for the H-2A workers' transportation to the place of work from their temporary housing, provide the housing (for those who do not commute from the border) and three meals a day (or facilities for cooking throughout the day), and pay the transportation costs of the workers to their next employment location or back to their host country. Workers' compensation insurance must also be secured for all H-2A workers. Workers are guaranteed 75% of the work for the period, and any terminations of employment, even for cause, must include a notification to the local job service agency in order to stop liability for continuing wages and costs.

The process for making application can be tedious, requiring written applications and fees being paid at least 45 days before the season in which the workers are needed. Because of the need for Department of Labor approval of the application, which requires verification of the information submitted by the employer, 45 days should be considered the minimum. Again, recruitment for US workers must be ongoing during this time.

Employers should secure the services of attorneys who specialize in immigration, and most notably have experience in setting up H-2A programs. Again, it is not a simple route for securing labor, but it is one which may become more necessary unless and until new legislation is passed by Congress.

Some relief appears to be forthcoming even if Congress fails to act on comprehensive immigration reform and/or AgJobs. At the time of this writing, it was announced that the President has directed the Department of Labor to review the regulations implementing the H-2A program and to institute changes that will provide farmers with an orderly and timely flow of legal workers. What these changes will entail and how streamlined it will make the current process is unknown. Of more concern at the present time is how long it will take DOL to formulate any changes.

(Source: Ron Barsamian & Patrick Moody)

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CRLA Invading Private Property

California Rural Legal Assistance (CRLA) is a taxpayer-funded organization that provides legal services to low income individuals. CRLA has long targeted agricultural employers for litigation, and aggressively searches for employees to be plaintiffs in its lawsuits.

Employers are reporting that CRLA has been sending its staff people to numerous farms and fields, where they demand entry to inspect bathrooms, posters and the like, looking for technical violations of the many regulations that govern the workplace. Frequently, CRLA staff will interview workers as they look for ways to file a lawsuit against the employer. In many cases, CRLA personnel have allowed the employers' supervisors to assume that they are from a government agency and have a right to inspect field operations.

In the past year such visits have taken place throughout Kern and Tulare counties, but this is a well-established CRLA tactic throughout the State.

It is imperative that employers are aware that CRLA is no different from any private attorney, and has no right to enter on to private property without the property owner's permission. All employers should refuse CRLA staff access to their property, and they should not allow CRLA to interview employees.

What It Means For Employers: All employers should have a single designated point of contact for any outsider who wishes to conduct visitation or inspection. Supervisors must be trained to send all visitors to the main office, where the designated person can take control of the situation. Actual government inspectors (such as those from the California Labor Commissioner for example) have a right to access all places of employment, but they should only do so with an employer escort, pursuant to established procedures. The CRLA is not an actual government agency, and should not be treated as such.

(Source: Ron Barsamian & Patrick Moody)

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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.

Counselor's Corner

English Only Rules • First Aid Kits & Medications • Job Injury & Pesticide Exposure

Question (English Only Rule): Our farm has a small business office. It is staffed with several clerical employees and several sales people. The office staff is supervised by an office manager. Two of the clerical employees speak both English and Spanish, while the rest of the office personnel speak only English. The two bilingual employees speak Spanish to each other. From the tone of their conversations, they seem to be bickering with each other. We think those two employees wouldn't bicker if they knew their co-workers could understand what they're saying to each other. So, may we institute an English-only rule in the office in the hope of discouraging the employees from bickering? If not, what other action should we take to get them to stop?

Answer: California law prohibits English-only policies except in rare circumstances, and the law will not allow an English only policy in this situation. The better approach is to meet with the employees as a group for a team building exercise, and to follow up with diversity training to build better bridges between English speaking and Spanish speaking employees. This approach will demonstrate the employer's commitment to EEOC principles, and will protect against employees feeling singled out.

Question (First Aid Kits & Medications): Each of our supervisors carries a first-aid kit in his pickup cab. The kits have been approved by our consulting physician as required by Cal/OSHA regulations. The physician approved including over-the-counter medications such as pain relievers (e.g., aspirin or Ibuprofen), salt tablets and antacids. Our workers' comp representative told us it is unwise to provide over-the-counter medications to our employees. What do you recommend?

Answer: According to Cal/OSHA, the medications can be included as long as the consulting physician provides written approval for inclusion of the medications. However, most insurance companies will object to the inclusion of medications, even over the counter medications, because they fear liability if an employee has an allergic reaction. For practical purposes, the employer should avoid keeping any medications in the first aid kit for this reason. You should make sure all supervisors are properly trained in first aid, CPR, and the procedure for summoning emergency medical help. When employees work in remote locations, supervisors must be able to give directions to emergency personnel.

Question (Job Injury & Pesticide Exposure): One of our employees told his supervisor that a rash appeared on his arm after he had worked in an area where pesticides had been applied. The employee's doctor told him he shouldn't work in areas where pesticides have been used. We provide health insurance for our employees. This employee, however, hasn't pre-designated his doctor to treat him if he's injured on the job. Must we find another job for this employee? Can we require him to be examined by our company's designated doctor? How could we operate a farming business if all of our employees were to refuse to work in areas where pesticides are used? Help!

Answer: First, review the application history for the fields at issue and make sure that the Company has complied with all pesticide regulations, including observing the applicable re-entry interval and providing pesticide use reports. Remember, pesticide use reports must be accessible to workers without them having to ask for it, even from a receptionist. It is essential that the Company be in complete compliance, because employees have a right under the Labor Code to refuse to work in an unsafe workplace, and employees often file complaints that an employer retaliated against them for refusing to work in unsafe conditions.

The company should send the employee for an examination by its occupational physician to see if there is an industrial component to the injury. If the physician finds any workplace component, the employer should make sure a claim is filed with the workers' compensation carrier. Even if the occupational physician finds no industrial component, the employee has a right to file a workers' compensation claim if he wants to. Once a workers' compensation claim is on file, the treating physician will be determined by the workers' compensation procedures (which may be limited to the established Medical Provider Network (MPN) if such a network is in place).

If the employee goes on a workers' compensation leave, there is no obligation to create a new job for the employee. For practical purposes, modified work should be offered because it is the best opportunity to reduce the cost of claims and to avoid litigated claims. If modified work is offered, it should be offered in writing with a specific time limit on its duration so the employee cannot argue that the position was a permanent transfer, and should set periodic evaluations for transitioning the employee back to their original job or to a job that brings actual value to the Company. Every part of the process should be carefully documented in the event that litigation arises later. The best laid plan includes a broad range of jobs , from the essential to the distantly marginal….such jobs are not intended to be desirable. In fact in some industries the modified work becomes such a "plum" that everyone wants and is willing to legally fight for the job…this is to be discouraged!!!! Modified work can pay less than the employee's regular work, as long as the work is objectively different and pays more than minimum wage.

The employer should require the employee to provide a written work restriction (for this reason it is essential the Employers have written job description) from his doctor so that it can evaluate the specific recommended restriction. This demand should be in writing, but remember, the Company is not entitled to the diagnosis by the personal physician, and may only request the work restrictions.

Under disability discrimination laws, employers must engage in an "interactive process" to determine whether the employee can perform the "essential duties" of any available position for which he is qualified, with or without reasonable accommodation. This requires a documented back and forth with the employee about what he is able to do. For example, in this type of situation a reasonable accommodation might be protective clothing to protect the skin from irritation. If such an accommodation is made, the employer must pay for the protective clothing. But if there is no way to accommodate the employee, and there is truly no position that he is capable of performing, then the employer can terminate the employee.

This process should be carefully documented to show that the employer has engaged in a good faith effort to determine what work an employee can do, as well as what accommodations the employee might need. Employees must participate in the process, so the employer should send requests for current work restrictions in writing to the employee, and should make sure the interactive process is carefully documented. The employer must carefully review the work restrictions, and realistically assess whether the employee is able to perform any available position with or without accommodation, and should carefully analyze whether any requested accommodation is reasonable.

In these types of situations, it is important for the employer to take its time, and proceed methodically through the steps that will ensure compliance with each set of applicable laws. This is not the kind of situation that is going to resolve in an afternoon, and will likely take a documented series of steps to either return the employee to regular duty, or to be sure that there is no position available that the employee can hold.

(Source: Michael Saqui & Anthony Raimondo)

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Regulatory Compliance Info Now at One Web Site

The U.S. government took a major step toward reducing the regulatory burden on small businesses by creating a searchable Web site that includes information on how to comply with the 192,000 federal regulations on the books.

Located at www.fels.org/find/#0708 and http://www.business.gov, the Web site can be searched by keyword, industry, or business topic such as "workplace health & safety." The site also includes links to compliance guides at each agency and officials who can help small businesses with their questions.

The Web site marks the first time the government has organized all of its regulatory information in a way that makes it easy for small businesses to find what they need.

The Small Business Administration, which manages the site, plans to add state and local regulatory compliance information and eventually enable users to customize the site to fit their particular business.

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