Respiratory Safety Rules for Pesticide Workers Amended

The California Department of Pesticide Regulation (DPR) has amended sections 6000, 6720, 6738 and 6793, and adopted section 6739, of Title 3, California Code of Regulations (CCR). The regulatory action pertains to respiratory protection worn by employees working with pesticide materials.

In brief, the action revises the written respiratory-protection program that employers must establish where a pesticide label, restricted materials permit, or regulation requires employees to use respirators in the workplace.

DPR patterned the amended and new sections after Cal/OSHA's respiratory rules in section 5144 of Title 8, CCR. 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., entering a confined space to apply a pesticide) are still within the jurisdiction of Cal/OSHA.

The new regulations go into effect on Jan. 1. A summary of the new regulation was reported in the March 2007 issue of FELS Newsletter and is posted online at

http://www.fels.org/news/news 0703.htm#_1_6

To help in compliance with the new regulations, DPR has revised its publication Generic Guidelines for Development of a Respiratory Protection Program in Accordance with Department of Pesticide Regulation Requirements. A link to that document is posted online at www.fels.org/find#0709.

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ICE Campaign

No, the ICE in this article doesn't refer to the federal agency Immigration and Customs Enforcement. Rather, it's an acronym for In Case of Emergency.

We all carry our mobile phones with names and numbers stored in their memories but no one, other than ourselves, knows which of these numbers belong to our closest family or friends. If you were to be involved in an accident or fell ill and became unconscious or otherwise incapacitated, the people attending to you would have your mobile phone but wouldn't know whom to call.

Yes, there are hundreds of numbers stored, but which one is the contact person in case of an emergency? Hence the ICE (In Case of Emergency) campaign. The concept of ICE is catching on quickly. It is a method of contact during emergency situations. As cell phones are carried by the majority of the population, all you need to do is store the number of a contact person or persons who should be contacted during emergency under the name ICE.

The idea was conceived by a paramedic who found that when he went to the scenes of accidents, there were often mobile phones with unconscious or incoherent patients, but he didn't know which number to call. He therefore thought it would be a good idea for there to be a nationally recognized name for this purpose. In such a situation, emergency service personnel and hospital staff could quickly contact the right person by simply dialing the number you stored under ICE. For more than one contact name, simply enter ICE1, ICE2 and so on.

Some say it is an idea that could make a difference in an emergency.

(Source: Van G. Tanner, Desert Empire. Desert Empire is a full service agency, offering Homeowners, Personal Auto, Group & Individual Medical policies.)

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Employers Must Use Revised EEO-1 Form

Beginning with the survey due Sept. 30, covered employers must collect and report data about their employees on a newly revised Employer Information Report, better known as the EEO-1 Report. The EEO-1 Report provides a workforce breakdown by job category, as well as by employee race, ethnicity and gender.

Among those who must annually file an EEO-1 Report are employers with 100 or more employees and federal government contractors with 50 or more employees that are prime contractors or first-tier subcontractors with contracts, subcontracts or purchase orders amounting to $50,000 or more.

The new EEO-1 Report has several changes. As revised, it prefers employee self-identification of race and ethnicity, as opposed to visual identification by employers.

It includes a new category for "two or more races," and it divides the category of "Asian or Pacific Islander" into two new, separate categories, namely "Asian" and "Native Hawaiian or other Pacific Islander." Further, the new EEO-1 Report classifies Hispanics and Latinos as "ethnic categories" for which employers do not need to report race data.

The new EEO-1 Report includes a significant change in job categories. It splits the category of "Officials and Managers" into two levels based on responsibility and influence in the organization.

The first tier is now called "Executive/Senior Level Officials and Managers." It encompasses those who plan, direct and formulate policy, set strategy and effectuate the overall direction for the enterprise. In large organizations, this would include those managers within two levels of the CEO.

The second tier of officials are slotted in the "First/Mid-Level Officials and Managers" category. These are the managers who implement policies, programs, and directives of Executive and Senior Level Management. It also includes those who report directly to the middle managers such as supervisors and operational managers who are responsible for directing employees arid the day-to-day running of the business.

Finally, certain business and financial occupations were moved from the Officials and Managers category to the Professionals category.

Covered employers must resurvey their employees before the next filing due in Sept. 2008, and the EEOC suggests that employers start the process as soon as possible.

Links to the new form and instructions on how to use it are posted online at www.fels.org/find#0709.

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Governor Announces Appointments

Gov. Arnold Schwarzenegger announced these appointments:

Angela Bradstreet, 52, of Sausalito, was appointed Labor Commissioner, chief of the Division of Labor Standards Enforcement (DLSE) in the Department of Industrial Relations, which in turn is within the Labor and Workforce Development Agency.

Since 1981, Bradstreet served with the law firm of Carroll, Burdick & McDonough as managing partner and vice chair of the firm's employment group. Before that, she was a research attorney for the San Mateo County Superior Court from 1980 to 1981.

Bradstreet created the No Glass Ceiling Initiative to advance more women into partnership and management positions in law firms, corporate legal departments and legal departments in the public sector. She is past president of the San Francisco Bar Association, California Women Lawyers and Queen's Bench.

This position requires Senate confirmation. The compensation is $134,000. Bradstreet is a Democrat.

Robert Jones, 60, of San Francisco, was appointed deputy secretary of policy and enforcement for the Labor and Workforce Development Agency. Since 2005, he served as chief counsel for the DLSE and as acting labor commissioner.

From 2000 to 2005, he owned Jones Law Group, an employment and labor counsel firm. Before that, Jones was partner in the law firm of Guichard, Jones & Tarkoff from 1998 to 2000.

This position requires Senate confirmation. The compensation is $139,500. Jones is a Democrat.

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Farm Manager Sentenced to Jail for Employee Death

The managing partner of a Salinas nursery was sentenced to 180 days in jail and ordered to pay $150,000 to the family of a worker killed when the brakes failed on a company truck.

The nursery manager was sentenced after pleading no contest earlier to felony manslaughter in the 2005 death of a nursery worker. The manager was also placed on three years' probation.

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Bush Administration Immigration Crackdown

A fact sheet, A Record of Achievement on Border Security and Worksite Enforcement, reports on the Bush Administration's increased border security and enforcement of employment practices.

A link to this fact sheet is posted online at www.fels.org/find#0709.

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Fruit Stands and Packing Operations Are Not Agricultural

A farmer asked if his employees who hand pack fruit in his roadside fruit-sales stand are deemed agricultural employees. Carl Borden, California Farm Bureau Federation Associate Counsel, replied:

The answer differs under federal and California wage-and-hour laws.

Federal Law: Employees packing and/or selling in their farmer-employer's fruit stand fruit grown only by their employer are "employed in agriculture" under the Fair Labor Standards Act's secondary meaning of "agriculture." They are thus exempt from the FLSA's generally applicable requirement that an employee be paid 1½ times his regular rate of pay (RRP) for hours worked over 40 in a workweek.

California Law: California's Industrial Welfare Commission has issued 17 orders regulating the wages, hours and working conditions of employees. Those orders are industry or occupation specific.

IWC Order No. 14 covers persons "employed in an agricultural occupation." It requires the payment of 1½ times an employee's RRP for hours worked over 10 in a workday and for the first eight hours worked on the seventh consecutive day of work in a workweek, and twice the employee's RRP for hours worked over eight on the seventh consecutive day of work in a workweek. Order 14 employees include those involved in the production of fruits and vegetables, including field packing not involving a moving packing plant.

The employees at issue here are not agricultural employees under Order 14. Employees packing fruit in a permanently fixed structure (such as a fruit stand) or establishment on a farm are covered by IWC Order No. 13. It requires the payment of 1½ times an employee's RRP for hours worked over eight in a workday or over 40 in a workweek and for the first eight hours worked on the seventh consecutive day of work in a workweek, and twice the employee's RRP for hours worked over 12 in a workday and over eight on the seventh consecutive day of work in a workweek.

Employees selling fruit in a fruit stand are covered under IWC Order No. 7 (Mercantile Industry). Its overtime-pay provisions are the same as those under Order 13.

However, because the California Division of Labor Standards Enforcement, headed by the Labor Commissioner, tries to limit the number of IWC orders that apply to an employer's employees, it's likely that the DLSE would regard all employees working in the fruit stand as being covered by either order 13 or 7, depending on what activity (packing or selling fruit) predominates there. But as the overtime-pay provisions are the same under both orders, it won't make a material difference.

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Foreign-Labor Certification Performance Report Released

The Employment and Training Administration of the U.S. Department of Labor issued a performance report for the period Mar. 28, 2005 - Sept. 30,2006. A link to that report is posted online at www.fels.org/find#0709.

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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.

Court Rules Employers Must Dialogue With Employees With "Perceived Disability"

A California appellate court decided that a California employer perceiving that an employee has a disability has two duties under the Fair Employment and Housing Act (FEHA), even though the employee does not have a disability: 1) a duty to have an "interactive dialogue" with the employee about the need for potential accommodations, and 2) the duty to provide reasonable accommodation to the employee.

The case, Gelfo v. Lockheed Martin Corp., involved an employee with a work-related back injury. The employee was laid off as part of a reduction in force but was later recalled and trained for a new job as a plastic-parts fabricator. The employee felt he could do that work but, on the advice of his attorney, did not give the employer his fit-for-duty report from his doctor.

When the employee completed the class, he was offered a job as a fabricator, but the offer was revoked two days later when the company found out he had work restrictions. The employee assured the company he felt fine and could do the work, but the company did not hire him because, based on the original work restrictions, its workers' compensation doctor did not believe he could perform the essential functions of the job.

The employee asked the employer to reconsider, saying he had a report from his doctor saying he could perform the job, but the company did not rehire him, saying it could not accommodate the employee's existing restrictions.

The Court of Appeal ruled that the employee's suit could proceed, and it remains to be seen whether the employer will be held liable.

What This Means For Employers: Where an employee is regarded as having a disability, the employer must engage in an interactive process with the employee to determine what, if any, accommodations are necessary for the employee to perform the job's essential functions. In addition, even if the employee is not disabled, the employer must make reasonable accommodations for the employee's perceived disabilities.

This decision separates the FEHA (state law) from the federal Americans with Disabilities Act (ADA). The Ninth U.S. Circuit Court of Appeals has ruled that the ADA does not require reasonable accommodation for employees who are not actually disabled. Kaplan v. City of North Las Vegas (9th Cir. 2003) 323 F.3d 1226.

Nonetheless, California employers must carefully document their efforts to accommodate employees with potential disability issues and be sure that no reasonable accommodation is available if they refuse to accommodate an employee's disability.

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Employment Termination Checklist

As we all know, having employees means that sooner or later, an employer is going to have to discharge an employee or an employee will quit. Not only does the employer have to deal with the emotional aspect of a termination situation, but as with almost every area of employment, there are legal considerations to take into account when the employment relationship ends, whether voluntarily or involuntarily. To help in this regard, the following is an outline of the necessary documentation to use at the end of the employment relationship.

An employer must provide the following items to each employee upon termination of the employment relationship:

1. Final Paycheck (this must include all compensation due and owing, including wages/salary, accrued vacation, any employer provided severance package, etc.);

2. Notice to Employee of Change in Relationship, in writing ;

3. For Your Benefit (EDD Form No. 2320) (this form provides information regarding the State's job training services, unemployment insurance, and disability insurance); and

4. Health Insurance Premium Payment Notice (this is a form put out by the State Department of Health Services regarding eligibility for potential State payment of insurance premiums).

Keep in mind that the timing of the final paycheck depends on whether the employee quits or is fired, and if he or she quits, how much notice was provided. When an employee quits voluntarily and gives at least 72 hours' notice, the employer must provide the final paycheck on the employee's last day of work. When an employee quits but gives less than 72 hours' notice, the final paycheck must be provided to the employee within 72 hours of the notice. When an employer terminates an employee, the final paycheck is due immediately.

An employee, and his or her qualified beneficiaries, who receives health benefits through his or her employer must receive notice as to his or her rights to continue such coverage under either the federal COBRA law, or the state Cal- COBRA law, whichever is applicable (employers with 20 or more employees are covered by the federal law, while employers with 2 to 19 employees are covered by the state law). Most employers rely upon their insurance carrier to provide the proper notices within the allowed time, but the employer will have to notify the carrier of the fact that the employee will be losing coverage.

If the employer provides the required notices itself, it must do so within the allowed time frame.

While not required, an employer should have a terminated employee sign an acknowledgment that he or she has received all of their compensation that is due and owing.

Finally, an employer should at least consider whether it is advisable to seek a release of claims from a terminated employee, to prevent the employee from filing a lawsuit. While not required, obviously, it is sometimes worth the expense of a severance package to avoid the possibility of claims.

What This Means for Employers: Employers need to be aware of the need to provide proper documentation when the employment relationship ends, to ensure they are not opening themselves up to potential technical violations.

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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.

Cal/OSHA Reviews Multi-employer Worksite Rule

The applicability of Cal/OSHA's controversial multi-employer worksite regulation to so-called "controlling employers" was discussed on Aug. 10 at an advisory committee meeting of the Division of Occupational Safety and Health (DOSH).

Codified as part of Assembly Bill 1127 in 2000, the multi-employer worksite regulation allows DOSH to cite controlling employers (those in control of the worksite) for safety violations created by other employers whose employees are at the site.

The regulation is commonly enforced in the construction industry, but has also been used in agriculture to cite growers for violations created by farm labor contractors. Controlling employers have long objected that they should have a "due diligence" defense if they were not in a position to know about or prevent the violation.

A California Court of Appeal reinforced previous Occupational Safety and Health Appeals Board (OSHAB) decisions in the Overaa Construction case earlier this year when it upheld a citation against a controlling employer, but it did not rule on whether there is a the due-diligence defense.

OSHAB later reversed a previous ruling and gave controlling employers the defense they were seeking in the Harris Construction Co. case.

The agency discussed the applicability of the standard to controlling employers at the Aug. 10 meeting, and employers should watch the situation to see what develops. Although there is no specific deadline for the agency to act, the possible next step could be a proposed regulation establishing a due diligence defense for controlling employers.

COUNSEL TO MANAGEMENT: Many agricultural employers are unaware of the multi-employer worksite regulation, which allows them to be held accountable for safety violations created by other employers working on their land or in their facilities. Although the development of a due diligence defense is an important and promising development, employers must still be cautious if they want to avoid OSHA citations.

Safety responsibilities should be explicitly set forth in a written contract between the controlling employer and any other employers whose employees work in the controlling employer's operations so that the controlling employer can take advantage of the due diligence defense in such cases. And of course, careful documentation of safety practices remains a critical component of any OSHA appeal.

(Source: Michael Saqui & Anthony Raimondo)

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Commission Advance Chargebacks Can Be Lawful

In Koehl v. Verio, Inc., 142 Cal.App.4^th 1313 (2006), a California court of appeal upheld an employer's chargeback of commission advances. Four former sales people sued their employer, an internet service provider, claiming its practice of imposing chargebacks for commissions previously paid, but which failed to vest as wages, violated California law.

The salespeople earned base salaries and an additional commission on sales. While stating that commissions could be paid before the product was delivered and the employer received payment, the contracts specified that the employer could, by taking a deduction from future commissions, recover commission payments it had advanced to the salespeople where the account was closed before billing.

The court ruled that the commissions were not wages, and the employer's practice was lawful. The court noted that in some circumstances, commissions can be wages, but the determination depends upon the contract.

In essence, the payments received were advances on future commissions, and advances are not wages. The key was that the contract required several specific conditions to be accomplished after booking the sale for the commission to be earned.

Another critical fact was that the employees received a base salary, so the reduction in future commission payments through chargebacks did not reduce their standard wage.

(Source: Anthony Raimondo)

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Gallo of Sonoma Employees Vote to Oust UFW

Workers at Gallo of Sonoma voted June 25 to decertify the United Farm Workers of America, returning to non-union status. 

One hundred twenty-five workers voted against union representation, and 95 workers voted to keep the union. There were 12 challenged ballots, which will not be investigated because they will not affect the outcome.  The UFW has claimed that the vote was barred because of its recently negotiated collective bargaining agreement with Gallo and will apparently pursue a legal challenge on that basis.

Once again, this vote demonstrates the inability of the UFW to effectively represent farm workers. The UFW bragged about the Gallo contract when it was signed and used it as an example of what the union had achieved for the workers. Some workers told a Fresno Bee reporter they felt that the union representation was not worth the dues that they were paying.

This situation illustrates why Senate Bills 180 and 650, which would eliminate secret-ballot elections for union representation and are now on Gov. Arnold Schwarzenegger's desk, are bad policy for California. When workers have a free and confidential choice on UFW representation, they usually reject the union. But rather than become a more effective representative, the UFW would rather eliminate the workers' right to vote.

In addition, a particularly disturbing component of SB 180 and SB 650 is that they would allow for "card checks" to establish a union's right to represent the workers but would not alter the requirement for a secret-ballot election to decertify a union. When considering whether to sign SB 180 or SB 650, the Governor should ask the union why card check is good enough to bring the union in but not good enough to get the union out?

Let Gov. Schwarzenegger know you oppose this effort to deny workers their right to vote on their collective-bargaining representative.

(Source: Michael Saqui)

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