New Legal Services Program Offered to FELS Subscribers

Farm Employers Labor Service subscribers can now get legal assistance from two of California's leading labor-law firms under a new group legal services program.

FELS, a California Farm Bureau Federation affiliate, has signed an agreement with the law firm of Barsamian, Saqui and Moody and Western Growers Law Group, under which agricultural employers can seek legal help on employment issues.

"We're excited about this new program and the ability to offer our FELS subscribers direct access to experienced attorneys who have been at the forefront of representing agricultural employers throughout the state," said CFBF and FELS President Bill Pauli. "We aim to provide greater value to FELS subscribers, and this new agreement fits with our commitment of quality service to them."

FELS, which operates from the California Farm Bureau offices in Sacramento, has served agricultural employers with management consulting, information and training materials since 1970. FELS Executive Vice President George Daniels said current and new FELS subscribers can use the new program.

"We will set up hotlines so that subscribers can obtain legal advice quickly and affordably as issues arise," added Daniels. "This program offers members well-recognized expertise in all areas of labor law."

Each FELS subscriber is entitled to one free hour of legal consultation annually on labor and employment matters. Additional legal services would be provided at a discounted rate.

Barsamian, Saqui and Moody is based in Fresno and has offices in Sacramento, Salinas and Visalia. Western Growers Law Group is based in Irvine and has offices in Bakersfield, Calexico, Sacramento and Salinas.

Growers and others interested in becoming FELS subscribers should call (800) 753-9073 or (916) 561-5670.

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ALRB May Throw Out Coastal Berry Election Results

A strawberry workers' election hailed as a major victory for opponents of the United Farm Workers union may eventually be reversed following Oct. 14 findings by the top administrator of the Agricultural Labor Relations Board, officials confirmed.

The action comes after a staff determination that nearly 100 violations of law may have occurred during recent elections involving some 1,500 strawberry workers, ALRB spokeswoman Norma Turner and farm experts said.

A hearing on the issue is set to start Dec. 7 at the ALRB's Salinas office, Turner said. If the hearing officer concludes sufficient evidence supports UFW claims of violations that were severe enough to have affected the outcome of the election at Watsonville-based Coastal Berry, then the five-member ALRB board could get the case by March 2000, Turner said.

The ALRB itself is composed of five gubernatorial appointees charged with overseeing representation elections and resolving unfair labor charges involving farm laborers in California.

The issue here centers around activities that allegedly occurred at Coastal Berry in mid-1998 and late last spring.

After having boycotted a 1998 election that had been called for by a committee of Coastal Berry employees, the UFW last May petitioned for a new election. That election could be held because the ALRB, with three vacancies having been filled at the last minute by Gov. Gray Davis, had thrown out the 1998 election.

The May 1999 election and a June runoff election-the latter of which is now at stake-were embarrassing disappointments for the UFW and its four-year campaign, said to have cost hundreds of thousands of dollars.

The majority of workers in the June runoff chose to be represented by a rival union known as the Coastal Berry of California Farmworkers Committee. It was the UFW's first defeat after 18 straight union victories since 1996.

"What this means is the ALRB may set aside the election and give the UFW still another opportunity to organize Coastal Berry workers," Rob Roy, president of the Ventura County Agricultural Association, said after hearing that ALRB executive secretary Antonio Barbosa had scheduled the hearing. "My concern now is the track record of Barbosa and the mind-set of this board. I'm afraid they won't give due deliberation, and that Barbosa is allowing the UFW every opportunity to have this election set aside."

Another concern is that Davis, a Democrat whose election victory last year began with early support and hefty financial contributions from organized labor, in January may appoint a pro-UFW member to the ALRB when the term of Republican Gov. Pete Wilson-appointee Michael Stoker expires. The new member will be the fourth appointed by Davis.

Among the nearly 100 election objections made by the UFW and set for hearing:

Supporters of the anti-UFW effort warned employees that Coastal Berry would disc the strawberry fields, resulting in a loss of jobs if the UFW won the election.

Numerous examples of foremen and supervisors either showing an anti-UFW bias with pins or emblems or more direct verbal threats.

Several examples of violence where anti-UFW workers attacked UFW supporters.

UFW supporters were isolated and denied reasonable access to UFW organizers, partly through creation of an "atmosphere of fear."

Coastal Berry granted increased pay and benefits to employees and announced that for the first time workers would receive double-time pay for working on Memorial Day, constituting an inducement to vote against the UFW.

The wife of an anti-UFW foreman urged employees to sign her petition "so the union will stay away."

Another issue set for hearing is whether employees at the company's Oxnard and Watsonville worksites should be placed in the same or separate bargaining units.

Coastal Berry officials did not return calls requesting comment. George Daniels, executive vice president of the Farm Employers Labor Service, said it was a shame workers who wanted to avoid UFW representation may see their desires thwarted.

Daniels also predicted that setting aside the election results may lead only to yet another election, and possibly to more violence.

"If the (anti-UFW) committee really did do something that was wrong, such as coercion and intimidation, then setting the election aside is appropriate," Daniels said. "But if this is going to be a political decision rather than one based on law, I see no justice in that."

UFW spokesman Marc Grossman, predicting the election results would be discarded, said the UFW originally filed evidence citing 234 possible violations of law and that they speak for themselves.

Carl Borden, associate counsel for California Farm Bureau Federation, said the proceeding deserves watching to see how the ALRB will handle such a high-profile case in which the UFW has so much invested.

According to Howard Rosenberg, an extension specialist focusing on labor issues for the University of California, Berkeley, the recent strawberry election took place on an unusually level playing field. It was perhaps even tilted in favor of the UFW by Coastal Berry's current ownership, which initially expressed support for the UFW two years ago, although it later tempering that to a neutral position.

Despite those conditions, the UFW still received only 46.5 percent of the vote.

(Source: Ag Alert^®)

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EEOC: Job-Bias Laws Protect Illegal Aliens

The Equal Employment Opportunity Commission has announced it will extend broad anti-discrimination rights to illegal immigrants for the first time, a policy some critics said could be hard to enforce and others contended would encourage illegal immigrants.

The EEOC said Oct. 26 that undocumented workers who are dismissed or suffer other discrimination due to their race, sex, age or religion should enjoy the same remedies as legal workers. Those remedies include back pay, punitive awards and even reinstatement; the latter, however, would be applied only if the employee has become eligible to work in the United States.

The new policy faces several enforcement problems--among them being illegal aliens are often too scared to file discrimination complaints with the EEOC and are likely to have difficulty obtaining official work documents.

The EEOC said it issued the new policy because it wanted to ensure that employers who knowingly hire illegal aliens are not free to discriminate against them without facing any penalty. But critics of the Clinton administration's immigration policies attacked the decision, insisting that extending remedies like reinstatement and back pay to illegal immigrants would only encourage more of them to enter the United States.

"This whole policy is creating an atmosphere hostile to removing illegal immigrants from the labor force," said Daniel Stein, executive director of the Federation for American Immigration Reform, a Washington-based group pushing for stricter limits on immigration. "The EEOC is putting itself in the position of a mother superior seeking to gather and protect the undocumented flock."

EEOC Chairwoman Ida Castro asserted that without the new policy, unscrupulous employers would be encouraged to hire illegal immigrants with an eye to exploiting them. She said the policy will discourage such discrimination and exploitation by guaranteeing illegal immigrants the same anti-discrimination protections enjoyed by U.S. citizens and lawful immigrants.

"If you let employers just breach civil rights requirements for a group of workers such as undocumented workers, then you're indirectly supporting the hiring of this group and the violation of our laws," Castro said.

Several critics suggested the Clinton administration pushed the EEOC to embrace this new policy as a way to boost support for Vice President Al Gore's presidential campaign among three important Democratic constituencies: labor union, minorities and immigrants. The AFL-CIO, which endorsed Gore last month, has pushed hard for the EEOC to adopt this policy, arguing that failure to enforce discrimination laws for illegal immigrants encouraged employers to hire them and undercut workplace conditions for all workers.

Administration and EEOC officials said politics had nothing to do with the new policy.

AFL-CIO general counsel John Hiatt said the labor federation has long pushed for this policy partly because of concerns that failing to crack down on discrimination against illegal workers can create an atmosphere that allows discrimination against legal workers as well.

The new policy continues a trend by which the government has extended more and more protections to illegal immigrants. They are covered by minimum-wage and occupational-safety laws. And the National Labor Relations Board has ruled that employers who knowingly hire illegal immigrants are prohibited from dismissing them because they support unionization.

Attracted in part by contingency and attorney fees, some lawyers have moved aggressively to file suits charging that employers have violated minimum-wage laws by underpaying undocumented workers. Some business groups voiced fears that lawyers might seek to do the same by filing discrimination claims for undocumented workers.

One fear expressed by some business executives is that if they hire illegal immigrants without knowing they are undocumented and later dismiss them upon learning of that status, the angered workers might file discrimination suits, charging they were fired due to their race or sex.

EEOC officials said they adopted the new policy after encountering examples of what they termed "horrific discrimination" against illegal immigrants.

"Unauthorized workers are especially vulnerable to abuse and exploitation," Castro said. "It is imperative for employers to fully understand that discrimination against this class of employees will not be tolerated."

Frank Sharry, executive director of National Immigration Forum, a Washington-based group that promotes immigrant rights, praised the EEOC, saying, "This new policy says if you're working, we're not going to be complicit in giving employers an open door to using your illegal status to hit workers over the head with discrimination."

(Source: New York Times)

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H-2A Reform: Workers Need to Know the Facts

In an effort to get information about their proposed reforms of the H-2A program and adjustment of status for undocumented farm workers directly to them, agriculture's key Senate H-2A reform supporters have prepared an open letter to farm workers.

The letter has important information workers should know about this proposal. The letter also calls on workers to discuss this proposal with both members of Congress and community and church leaders. A copy of the letter, written by Senators Gordon Smith (R-OR) and Larry Craig (R-ID), is enclosed with this month's issue of the FELS Newsletter.

So far, most so-called farm-worker advocacy groups in Washington, D.C., have either opposed agriculture's H-2A-reform/status-adjustment proposal or have been silent. If enough farm workers are educated about the benefits they would reap from the proposal, that problem would be resolved quickly.

The letter can also be e-mailed in a PDF format, readable by an Adobe Acrobat reader and printable from any PC. E-mail FELS at fels@cfbf.com and ask for the PDF file.

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Guest-Worker Bill Introduced

Lawmakers on Oct. 27 formally unveiled an agricultural "guest-worker" plan that has been long in the making but still faces a rocky road.

The measure, which would allow farm workers illegally in the country to achieve legal status, is dividing Central Valley lawmakers and getting a cool reception from some members of Congress whose backing is thought to be critical. Supporters conceded they cannot get anything passed until next year, even as they stressed the urgency of their cause.

"We desperately need it," said Rep. George Radanovich, R-Mariposa. "This year, we were fortunate, but that was because of a light crop and workers not going up to the Pacific Northwest."

The measure, introduced in the Senate and to be followed by a counterpart in the House of Representatives, is supposed to ease what farmers have long contended is a labor shortage that has led to a reliance on undocumented immigrants.

Radanovich and Rep. Gary Condit, D-Ceres, will be backing the guest-worker bill to be introduced by Rep. Richard Pombo, R-Tracy. The last time Pombo tried moving such a bill, in 1996, it lost on a 242-180 vote. Since then, the proposal has been changed with the help of California Farm Bureau Federation and Valley groups such as Fresno-based Nisei Farmers League.

As introduced in the Senate, the measure would allow illegal immigrants who can prove they have worked in agriculture 150 days or more in the past year to obtain what amounts to temporary legal status. They could keep returning to the U.S. for five years as long as they worked in farming. After the five years, they could apply for a green card granting them permanent resident status.

Backed by dozens of farm groups, the legislation would radically overhaul an existing temporary worker program. Known as the H-2A program, it would allow growers much easier access to foreign workers in the event of a labor shortage.

Senate backers of a guest-worker program last tried to attach the proposal to a must-pass spending bill but drew a veto threat from President Clinton. This time, said bill co-sponsor Sen. Bob Graham, D-Fla., the proposal will go through the standard congressional hearing process. The bill's other sponsors are Senators Gordon Smith, R-Ore., and Larry Craig, R-Idaho.

(Source: The Sacramento Bee)

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Ergonomics Standard Approved by Court

The ergonomics standard adopted by the Cal/OSHA Standards Board--with one exception--meets the requirements of law, California's Third District Court of Appeal ruled Oct. 29.

The court added, however, that the regulation's exemption for employers with nine or fewer employees is not valid and struck it from the regulation. It is estimated that as many as 80% of the state's employers would have been put beyond the standard's reach by the exemption.

Compliance under the ergonomics standard is triggered where two or more employees have incurred a repetitive motion injury (RMI) under these conditions:

(1) Work-related causation. The RMIs were predominantly caused (i.e., 50% or more) by a repetitive job, process, or operation;

(2) Relationship between RMIs at the workplace. The employees incurring the RMIs were performing a job process or operation of identical work activity. Identical work activity means the employees were doing the same repetitive motion task, such as but not limited to word processing, assembly or, loading;

(3) Medical requirements. The RMIs were musculoskeletal injuries that a licensed physician objectively identified and diagnosed; and

(4)Time requirements. The RMIs were reported to the employer in the last 12 months.

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Counterfeiters Faking "Fraud-Proof" ID Cards

Counterfeit versions of supposedly fraud-proof permanent residence--or "green cards"--have already surfaced in the United States, barely a year after the first new document was issued, Congressional investigators said.

Richard Stana, associate director of justice issues at the General Accounting Office (GAO), said the fakes aren't sophisticated enough to fool employees of the Immigration and Naturalization Service. But, he added, they look genuine enough to employers, especially when presented by job seekers with a Social Security card.

Stana said the appearance in Los Angeles of bogus versions of green cards shows the aggressiveness of counterfeiters who also are producing authentic-looking versions of other immigration papers and of Social Security cards.

The new type of green cards--complete with holograms, digital photos and other high-tech "fraud-proof" features--were first issued in April 1998.

Stana urged Congress to speed production of a new Social Security card designed to thwart fraud. He said illegal immigrants who have fake green cards could not get jobs in the United States without Social Security cards, and that production of counterfeit-resistant Social Security cards would make it more difficult for them.

In its report, the GAO said issuing counterfeit-proof Social Security cards for the 277 million persons who now hold them could cost $4 billion. The cost would increase to $9.2 billion if new cards were embedded with computer chips to make the cards capable of holding identification data as well.

(Source: The Washington Times)

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Some Applicant References Can Be Read In Two Ways

Prior employers can often provide valuable information about job applicants. Sometimes, however, you may need to read between the lines of their responses.

Take, for example, this list of ambiguous (and unintentionally humorous) recommendations:

I most enthusiastically recommend this candidate with no qualifications whatsoever.

In my opinion you would be very fortunate if you could get this person to work for you.

I would urge you to waste no time in making this candidate an offer of employment.

All in all, I cannot say enough good things about this candidate or recommend him too highly.

I am pleased to say that this candidate is a former colleague of mine.

We have worked together on many projects, and I have always marveled at his ability to be in the right place at the right time.

Based on my limited knowledge of the current job market, you would be hard-pressed to find anyone available with his qualifications.

After 10 years in this business, I have never seen anyone better than this man at quickly and succinctly defining problems.

If I were asked to choose a highly-motivated task force from all the people with whom I have worked, the candidate you are considering would be among them.

I do not feel qualified to make any judgment about the candidate you are interviewing, but in my opinion he would be an excellent choice for the job.

Everyone in this firm's top management knows of the contribution this man made to the bottom line.

When the job is done and the project evaluated, no one ever questions whether he held up his end.

Considering the position you are trying to fill, I can say without reservation that this person is an obvious candidate.

I can assure you that, based on my knowledge of his qualifications for the position you are seeking to fill, no one would be better for the job.

Have no doubt: the impact this person will have on your organization will be dramatic.

(Source: W. Landon Heffner, Vice President, Monrovia Nursery)

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IRS Assigns ID Numbers to SSN-Ineligible Dependents

In 1996, the Internal Revenue Service (IRS) began assigning individual taxpayer identification numbers (ITINs) to aliens who are not eligible for social security numbers (SSNs) but who nevertheless need identification numbers for tax purposes.

An ITIN is a tax-processing number for certain nonresident and resident aliens and their spouses and dependents. It should be used only for income-tax purposes.

ITINs do not entitle aliens to social security benefits or the earned income tax credit.

They do not create any immigration status nor any right to work in the United States.

An ITIN is available only to individuals who cannot obtain a SSN. All work-authorized aliens are entitled to an SSN and should file Form SS-5 or otherwise apply for an SSN as part of the visa process.

An alien should apply for an ITIN on IRS Form W-7, Application for IRS Individual Taxpayer Identification Number. The W-7 Form may be obtained from an IRS office, a U.S. consular office abroad, or the IRS website: www.irs.gov.

It generally takes five to six weeks to receive an ITIN.

Aliens who must file a U.S. tax return or are listed on a tax return as a spouse or dependent and who cannot obtain a valid SSN must apply for an ITIN.

The ITIN must be furnished on all tax returns, tax statements, and other tax-related documents.

If a dependent SSN/ITIN is missing, any tax exemption will be denied.

By: Littler Mendelson^®, Business Immigration Horizon