C. Bryan Little Joins FELS

A labor-affairs specialist with extensive experience in both government and agriculture has been named chief operating officer of Farm Employers Labor Service.

C. Bryan Little will oversee FELS programs to help farm employers comply with labor laws and enhance employee safety and productivity.

Little will also serve as director of labor affairs for California Farm Bureau Federation, representing members on legislative, congressional and regulatory issues involving immigration and labor policy. FELS is an affiliate of CFBF; both organizations are based in Sacramento.

“Hiring and retaining enough skilled, legal employees is a top priority for many family farmers and ranchers,” California Farm Bureau President Doug Mosebar said. “Bryan Little brings an ideal combination of talent and experience to work for meaningful immigration reform while promoting the health and safety of farm employees.”

Little has served with the U.S. Department of Labor since Dec. 2001, most recently as deputy assistant secretary for occupational safety and health. In that role, he managed activities including emergency response, training and education, and public and congressional affairs for the Occupational Safety and Health Administration.

Before joining the Bush administration, Little was senior director for governmental affairs for American Farm Bureau Federation in Washington, D.C. With AFBF, he focused on labor and employment issues. He also co-chaired the Agriculture Coalition for Immigration Reform, an organization working to achieve federal reforms that assure a stable, legal workforce for farms and ranches.

Little earned a bachelor’s degree in political science and public administration from James Madison University in Harrisonburg, Va.

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ICE Continues Targeted Enforcement

In 2008, Immigration and Customs Enforcement plans to continue targeted worksite enforcement efforts while reaching out to employers to comply with immigration laws, Assistant Secretary of Homeland Security Julie Myers said at a Jan. 17 American Bar Association Homeland Security Law Institute conference.

Myers, who heads ICE within the Department of Homeland Security, said because ICE is about five years old, it is a good time to assess how to move forward with worksite immigration enforcement despite the failure of Congress to enact comprehensive immigration legislation.

"We don't have access to Social Security Administration information about the top 20 employers with the highest rates of non-matching Social Security numbers," she said. "The tax laws prevent us from getting that information from SSA," so ICE doesn't target employers in that way, she said.

Instead, ICE engages in a "risk-based approach" to worksite enforcement and will continue to use this tactic, Myers said. "We target the worst of the worst employers" who hire illegal immigrants as a part of their business model, she said.

Several types of activity are typical of "egregious" employers, Myers said. "Money laundering, tax evasion, and schemes where employers use mobile check-cashing services to pay workers are all common," she said. In many of these situations the Department of Justice can bring federal charges, she said.

ICE "won't bring criminal charges against employers who accidentally hire an illegal alien," Myers said. Criminal charges are brought against those employers who are "paying workers off the books, ripping up W-2s, and otherwise making an illegal workforce part of the structure of their business," she said.

The risk-based approach to targeting employers who hire illegal immigrants is one method of curbing illegal immigration, Myers said. However, criminal cases against employers "won't be enough" and we need a "culture of compliance with immigration laws," she said.

IMAGE, a partnership program between a participating business and ICE promoting the use of best practices, is one method to create a culture of compliance, Myers said. ICE will continue to promote this program in 2008, she said.

IMAGE – ICE Mutual Agreement between Government and Employers – began in July 2006. IMAGE creates a binding partnership between a participating business and ICE, promoting the use of screening tools, best practices, and continuing education to determine employment eligibility based on immigration status, according to ICE's Web site.

Further, in 2008 there will be "a lot more I-9 inspections of employers," Myers said. ICE has the authority to audit the Forms I-9 (Employment Eligibility Verification) of any employer.

The IMAGE program and the increased inspections foster among companies best practices that have a "long-term business benefit," she said.

Myers said one additional expected development in compliance is that employers who violate immigration law and settle claims with ICE will be required in many settlements to "invest money to make sure they are in compliance with the law going forward."

(Source: National Council of Agricultural Employers Newsletter, Washington D.C.)

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No Change in No-Match Rule

The Dept of Homeland Security (DHS) on March 26 released a Supplemental Proposed Rule (SPR) for the No-Match Rule it had issued on Aug. 15.

This rulemaking addresses three issues cited in the order of the U.S. District Court for the Northern District of California that blocked the No-Match Rule. The SPR provides a more detailed analysis of how DHS developed its No-Match policy and will help responsible employers ensure they are not employing unauthorized workers.

The rule does not create new legal obligations for businesses. Rather, it outlines steps an employer may take in response to receiving a letter from the Social Security Administration indicating an employee’s name and Social Security number reported to SSA by the employer do not match SSA’s records.

By following the steps in the No-Match Rule, which comprise various actions to resolve the no-match within 93 days of the letter’s receipt, an employer will get a safe harbor preventing DHS from using the no-match letter against it in an enforcement action.

DHS invites public comment on the SPR through April 25.

The SPR addresses the three findings of the court. These are:

1.  DHS did not justify the change in its position on no-match letters: The first finding was that DHS did not provide sufficient analysis of the change in its position that a no-match letter, by itself, might be sufficient to put an employer on notice, and thus, provide constructive knowledge, that employees listed in a no-match letter were not eligible to work in the United States.

The SPR addresses this issue by describing the extent of unauthorized employment in the U.S. based on various studies and the clear connection between no-match letters and unauthorized employment in the U.S. DHS concludes that no-match letters do not deter employers from hiring or retaining undocumented workers

 DHS also refers to a number of opinion letters issued by the General Counsel of the now-defunct Immigration and Naturalization Service in response to employer inquiries about their obligations upon receipt of no-match letters, concluding that many law-abiding employers are confused as to their legal duties in that instance. The SPR acknowledges the tension between employer concerns about employing unauthorized workers and discrimination charges if they take adverse action.

DHS concludes that the final no-match rule was issued to remedy this confused situation by "reminding employers of their obligation under the INA to conduct due diligence upon receipt of SSA no-match letters and by formally announcing DHS's view that employers that fail to perform reasonable due diligence upon receipt of SSA no-match letters or DHS suspect document notices risk being found to have constructive knowledge of listed employees' illegal work status."

Simply put, DHS contends the "totality of the circumstances" test of determining of constructive knowledge is not a "bright line" test and that its rule does employers a favor by providing predictability through a clear set of recommended procedures that, if followed, would ensure employers they would not face charges from DHS.

Thus, DHS concludes its rule was a reasonable change from its prior informal agency letters to the public.

2. DHS did not have the authority to interpret anti-discrimination law: DHS's final rule stated employers that applied the rule’s safe-harbor procedures uniformly to all employees without regard to citizenship status or national origin would not be found to have engaged in unlawful discrimination.

The court questioned DHS's authority to interpret a rule on the anti-discrimination provisions of the Immigration and Nationality Act, which are under the jurisdiction of the Department of Justice (DoJ), concluding that DHS appeared to have exceeded its authority.

DHS contends it was restating the law under DoJ’s authority, rather than interpreting it and that the rule had been subject to review during an interagency process.

In response to the court’s concerns, DHS rescinded its comments on the effect of its rule on the INA’s anti-discrimination provisions or defenses employers would have if they followed its safe-harbor procedures. Instead, it simply directs employers to visit the website of DoJ's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) or seek answers through OSC's toll-free employer hotline.

This change in the rule is adverse to the interest of employers. It leaves them in the same confused state that existed before DHS issued its rule. Rather than being able to rely upon DHS's rule providing a defense to discrimination claims if it were followed, employers now will have to rely on an OSC Web site or informal telephone communications with OSC employees. Neither source of information will provide a legal defense and is inferior to the guidance provided in the original rule.

The SPR is silent on the question of whether DoJ will issue a rule addressing this issue.

Since issuing the SPR, the OSC has issued “Antidiscrimination Guidance for Employers Following the DHS Safe-Harbor Procedures.” It is available at:

http://www.ilw.com/immigdaily/news/2008,0331-osc.shtm

3. Regulatory flexibility analysis: An agency issuing a rule must conduct a regulatory flexibility analysis that considers whether the rule would have a substantial economic impact on the economy, and on small businesses in particular. This is a procedural step that must be undertaken independent of the rule’s substance.

It focuses on the compliance costs that small businesses might encounter as a result of the rule. DHS concluded its final rule would not impose any new burdens or compliance costs on employers because it was only clarifying existing duties and not creating new ones.

The court, however, concluded the no-match rule created new compliance obligations for employers, was mandatory and not voluntary, and would impose compliance costs on employers. Addressing those conclusions, the SPR presents an economic analysis of the rule’s impact on businesses and invites public comment on its conclusions.

Further, the SPR interprets these two provisions in the final rule:

1. "Prompt Notice" The SPR clarifies the provision in the final rule that states an employer must give "prompt" notice to an employee listed on a no-match letter after it has checked its records and cannot resolve the no-match. The SPR defines the term "prompt” to be within five business days after the employer completed its internal record review.

DHS suggests that an employer need not wait five days before giving notice and that immediate notice to the employee of the no-match problem may be the most expeditious way to resolve the problem.

2. Effect of No-Match Letters on "Grandfathered" Employees: The Immigration Reform and Control Act of 1986 required employers to verify the work authorization of newly hired employees. However, it "grandfathered" employees hired before its enactment date from the verification requirement.

The SPR addresses the question of whether a "grandfathered" employee who appears in a no-match letter is subject to the final rule. It concludes that such an employee is exempted from the rule because of the "grandfather" provision.

Conclusion: The injunction against the final No-Match Rule was largely based on procedural issues, rather than on the underlying legal basis of the safe-harbor procedures set forth in the Aug. 2007 final No-Match Rule. The SPR seeks to overcome the court’s objections by addressing each of the court’s three findings that resulted in the injunction.

The one clear setback stemming from this review is DHS's rescission of the defense to discrimination claims it articulated would be available to employers that followed its rule. As a result, employers will continue to remain in an uncertain state as to their discrimination liability if they follow the No-Match Rule. This defeats in great part DHS's articulated rationale for issuing the rule in the first place, as well as in the SPR, to provide "bright line" compliance guidance to employers.

With the exception of the two minor clarifications related to the rule’s substance on “prompt” notice and "grandfathered" employees, the SPR does not alter the substance of or procedural compliance steps for employers set forth in the Aug. 2007 final rule.

After the 30-day public comment period closes on April 25, DHS will reissue a final rule. Meanwhile, it remains to be seen how the rule’s reissuance will affect the litigation now stayed.

Employers likely will have to wait several more months before the status of the final No-Match Rule is determined.

(Source: NCAE Alert Memorandum, Washington, D.C.)

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 Overtime Exemptions for Truck Drivers

Both the federal Fair Labor Standards Act (FLSA) and orders of the California Industrial Welfare Commission (IWC) exempt from their overtime premium pay requirements employees covered by federal or state laws regulating certain motor-carrier employees.

Federal Provisions: Specified employees (generally, drivers and their helpers, loaders and mechanics) covered by the federal Motor Carrier Act of 1935 are exempt from overtime pay under the FLSA.

Exempt truck drivers under the FLSA are those who haul property or passengers in interstate commerce. The Motor Carrier Act applies whenever the load or delivery is on its way out of the driver's state of domicile, while the driver is out-of-state, and during the return trip within the domicile state.

State Provisions: Drivers covered by the California Motor Carrier Safety Act are exempt from the overtime-pay provisions of the IWC orders. However, they are limited to a maximum number of hours on duty.

The state exemption applies only to the truck driver and not to a non-driver who rides along for any other purpose, such as to help load or unload the truck.

Covered by the state Motor Carrier Safety Act are drivers of: motortrucks of three or more axles that weigh more than 6,000 pounds unladen; truck tractors; buses; and trailers and semitrailers designed or used to transport more than 10 persons.

The exemption does not apply to an employee who does not drive or operate a truck at all during a workday. Thus, an employee classified as a truck driver and who normally drives a truck is entitled to premium pay for all overtime hours worked in a workday during which he did not drive a truck but did only other tasks.

A detailed discussion of the truck-driver exemption is in the FELS Summary of Employment Requirements for California Agricultural Operations.

A company wishing to avail itself of the truck-driver exemption should consider adding an appropriate overtime policy to its employee handbook. Here is a sample overtime policy:

OVERTIME

You may work overtime only if your supervisor approved it. Nonexempt employees receive overtime pay in accordance with the minimum legal requirements then in effect. As of this handbook’s publication date, those requirements are as follows:

Agricultural Occupations

1. One and one-half times the employee's regular pay rate (RPR) for hours worked over 10 in a workday.

2. One and one-half times the employee's RPR for the first eight hours worked on the 7^th day of work in a workweek, and double the employee's RPR for work after eight hours of work on that 7^th day.

3. Exception: No overtime premium is paid to an employee for any workweek in which the employee works more than half the time as an irrigator.

4. Exception: No overtime premium is paid to an employee for any workday in which the employee drives a covered commercial vehicle intrastate under the state Motor Carrier Safety Act or for any workweek in which the employee is covered under the federal Motor Carrier Act.

Nonagricultural Work

1. One and one-half times the employee's RPR for hours worked over 40 in a workweek.

2. One and one-half times the employee's RPR for hours worked over eight and up to 12 in a workday, and double the employee's RPR for hours worked over 12 in a workday.

3. One and one-half times the employee's RPR for the first eight hours worked on the 7^th day of work in a workweek, and double the employee's RPR for work after eight hours of work on that 7^th day.

4. Exception: No overtime premium is paid to any employee for any workday in which the employee drives a covered commercial vehicle intrastate under the state Motor Carrier Safety Act or for any workweek in which the employee is covered under the federal Motor Carrier Act.

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UFW Files 2007 LM-2 Report

The Labor Management Reporting and Disclosure Act (LMRDA) requires unions to file annually financial reports and file these reports (Form LM-2) with the Department of Labor, Office of Labor-Management Standards (OLMS). Also, each union subject to the LMRDA is required to file an initial information report (Form LM-1) and copies of their constitution and bylaws. The reports are made available to the union members and the public.

The United Farm Workers' Form LM-2 for 2007 is now available at the OLMS website at:

http://www.dol.gov/esa/regs/compliance/olms/rrlo/lmrda.htm.

Based on this recent report, here are the UFW's cash receipts for 2007:

CASH RECEIPTS

Dues and Agency Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  $2,392,282
Fees, Fines, Assessments,
Work Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9,735
Sale of Supplies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79,467
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,201
Rents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,462
From Members for
Disbursement on Their Behalf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,076
Other Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3,688,008

TOTAL RECEIPTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $6,196,231

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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.

President George W. Bush on Jan. 28 signed the National Defense Authorization Act for Fiscal Year 2008 (H.R. 4986), which primarily deals with the budget for national defense matters.

This year's authorization, however, also includes the first expansion of the Family and Medical Leave Act (FMLA) since it was enacted in 1993. Specifically, the law expands the FMLA in two ways:

1. Leave for a "Qualifying Exigency": The amendment adds "qualifying exigency" a new qualifying event for the 12-week FMLA leave entitlement. Unfortunately, the amendment does not contain a definition of what a "qualifying exigency" is.

The Department of Labor is supposed to be publishing regulations that will contain such a definition in the near future. We do know, however, that this is meant to cover situations where the employee's spouse, child or parent is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation.

When an employee requests leave for a "qualifying exigency" and the necessity for the leave is foreseeable, the employee must provide the employer with "reasonable and practicable" notice. Additionally, an employer may require that a request for leave for a "qualifying exigency" be supported by a certification that the service member is on active duty or has been called to active duty.

2. Leave to Care for Injured Service Member: The amendment also provides that the spouse, child, parent, or "next of kin" (defined as the "nearest blood relative") of a "covered service member" is entitled to a total of 26 workweeks of leave during a 12-month period to care for a service member who is injured in the line of duty.

"Covered service member" means a service member who is "undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

"Serious illness or injury," in turn, is defined as a condition that may render the service member "medically unfit to perform the duties of the member's office, grade, rank, or rating."

This leave is only available during a single 12-month period, and the 26-week limit would include any leave granted pursuant to the new "qualifying exigency" provision.

While this law was effective upon the President's signature, it is not clear when the provisions which amend the FMLA will be effective. We anticipate that DoL will issue regulations clarifying some of the concepts contained in this amendment in the relatively near future.

Nevertheless, employers must comply with the new provisions regardless of whether the DoL issues any regulations. Thus, employers should review their FMLA policies and determine what revisions will be necessary to comply with the new requirements.

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AB 2716: Paid Sick Leave Law is Pending in Assembly

As we have been anticipating for quite some time now, the California Assembly is considering a bill that would guarantee paid sick leave to all California employees who do not otherwise have access to employer-provided paid sick leave. The bill, AB 2716, was introduced by San Francisco Democrat Fiona Ma.

In an interview with the Associated Press, Ma stated her rationale for the bill as follows: "Healthy workers are productive workers. Studies have found that having paid sick days actually saves money for businesses by reducing turnover, by reducing the spread of illness in the workplace and improving workers' morale and productivity."

According to Ma, about 40 percent of the state's work force, between 5 million and 6 million workers, do not get paid when they stay home sick.

The bill would require employers to provide workers with paid sick leave, accruing at a rate of at least one hour of paid sick leave for every 30 hours worked. All employees who work more than seven days in a calendar year would be entitled to accrue paid sick leave.

Employees would not be entitled to use the accrued sick leave, however, until the 90^th calendar day of employment. Then, once eligible to take the paid leave, employees could use their accrued leave to take time off when they themselves are sick or to care for a sick family member.

The bill states the leave would cover the "diagnosis, care, or treatment of an existing health condition of, or preventative care for, an employee or an employee's family member." Employees could also use the leave to recover from domestic violence or sexual assault.

The bill uses a familiar definition of "family member" that is used in other statues, such as the "kin care" statute, but adds categories such as grandparents and grandchildren, and even siblings.

Then, it goes on to allow employees who do not have a spouse or registered domestic partner to designate some other person for whom they may take time off to care for. The employer would have to provide the employee with a 10-day period each year to designate such a person.

Employers with 10 or more employees would have to provide up to nine days of paid sick leave a year. Employers with fewer than 10 employees would have to give their employees as many as five days leave. Unused leave would roll over to the next year, but would be capped at nine days and five days, respectively, based upon the number of employees.

The Department of Industrial Relations would be responsible for promulgating regulations regarding the paid sick leave, and would be responsible for enforcing compliance with the law. The law would, however, authorize private-party lawsuits alleging a violation of the law, including anti-discrimination requirements, anti-retaliation requirements, as well as posting and record-keeping requirements.

For example, the bill would require employers to show the accrued paid sick leave as a line item on the employee's pay stub. Further, it would create a rebuttable presumption of unlawful retaliation if an employer takes adverse action against the employee within 90 days after the employee files a complaint alleging a violation of this law, participating in an investigation of an alleged violation of this law, or opposing any practice, policy, or act that is prohibited by the bill.

What This Means for Employers: This bill would force employers to provide paid sick leave in a wide variety of situations. It is still pending in the Assembly, however, and could be revised so its provisions would be narrowed in some regard. For that to happen, however, concerned employers need to make their voices heard in the Legislature.

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