On the Coming of El Niño

September 1st, 2015

It’s music to many desperate ears:  El Niño is coming!

Meteorologists are almost uniformly predicting a major El Niño event this coming winter.  El Niño refers to a weather phenomenon that features warming waters in the tropical Pacific combined with a shift in prevailing winds that can send a steady stream of warm and wet storms into California in winter and spring.  The 1997-98 water year was an El Niño year, resulting in an onslaught of massive rain storms that overwhelmed the state’s water infrastructure, unleashing floods and mudslides.

For drought-weary farmers, the thought of having to cope with flood waters is more exciting than frightening.  But we shouldn’t get too excited yet:  Scientists caution that not every El Niño event produces major rains.  Meteorologist Bob Henson recently wrote that while El Niño “shifts the odds,” it “doesn’t guarantee the roll of the meteorological dice in any particular winter.”  Nor would a one-year El Niño soaker be enough to end the drought, so great is our water deficit.

Another cautionary note has to do with El Niño’s aim.  Experts worry that El Niño will channel massive storms into Southern California but leave Northern California dry.  Southern California’s limited storage reservoirs would be quickly overwhelmed while the state’s major reservoirs in the north would miss out.

Still, what may be in store for California is an historic El Niño winter that produces massive rain amounts, little snow in the Sierra Nevada mountains (the state’s “biggest reservoir”), and the opportunity to refill reservoirs north and south, if we allow the system to work better.

This brings me to my first call to action:  The federal and state agencies that have their hands on California’s system of reservoirs, aqueducts and pumping facilities must be prepared to act on the opportunity.  During this drought, the Endangered Species Act limitations on the Delta pumping facilities have cost farms and cities hundreds of thousands of acre feet of water that could have been stored in San Luis Reservoir near Los Banos.  The precious gift of brief storm runoff should have been accepted, but too much of that water was directed out to sea.

I know it is heresy to call for suspension of the Endangered Species Act, even for a few days, but this drought is a national emergency.  In national emergencies, laws and regulations are suspended in order to protect human life and the health of our economy.  In this national emergency, massive flood waters produced by El Niño storms should not be viewed solely as a flooding threat but also as water supply relief.  The state and federal project pumps in the Sacramento-San Joaquin Delta should be operated not at their ESA-limits during El Niño flooding, but at their design limits.  Capture as much flood water as possible during a flood, then return the pumps to ESA-limits when flood waters recede.  San Luis Reservoir—the storage facility for water pumped by the state and federal projects—is the largest off-stream reservoir in the nation, with more than 2,000,000 acre feet of capacity.  It is now holding just 25 percent of its capacity.  The Delta pumps were designed to move up to 30,000 acre feet per day to San Luis; for nearly a month during storm runoff events last December and January, even though far more water was flowing into the Delta than the pumps could have captured at their design capacity, they weren’t even operated at their ESA-permitted capacity of 22,000 acre feet per day for more than a day or two.  That’s crazy.

Here’s another bit of political incorrectness:  The horribly complicated and stifling red-tape that prevents the state from building exhaustively-studied new dams and reservoirs should be cut and the projects should be expedited.  When the Northridge earthquake struck Southern California in 1994 and major freeways collapsed, the state declared an emergency, waived the usual environmental red tape and got the freeways rebuilt so traffic could flow and Southern California’s economy could recover.  The sense of urgency was so great that the badly-damaged Santa Monica freeway was rebuilt in less than three months.  The Governor has declared a drought emergency, but we haven’t seen the same sense of urgency extended to our water infrastructure.  With climate change creating warmer winters with less snow and briefer but more intense rain events, additional storage is a must, both for water supply and flood protection.  We should expedite the raising of Shasta Dam as well as the construction of Sites and Temperance Flat reservoirs.  They have been studied to death, they are feasible and needed, and we have wasted too much time.

So it is perfectly appropriate to hope that El Niño comes to California this winter, and that his aim is good.  But if federal and state officials in control of our existing water infrastructure fail to operate it opportunistically and build new infrastructure to meet the emergency that confronts us, California will suffer the harm that El Niño can bring without reaping any of its benefits.

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GENETIC ENGINEERING: A Fresh Look at the Technology

September 1st, 2015

This summer, in a small way, genetically modified fresh produce got a bit of a makeover, with a larger transformational effort planned for the future.

Since the first genetically modified fresh crop hit the market more than two decades ago with the Calgene Flavr Savr tomato, the pro-GMO movement has not done particularly well.  While it has gained quite a foothold in the agronomic sector with many different Round-up ready varieties in corn, soybean, canola and the like, the concept has not caught on in the fresh produce sector.  Public opinion and perception has largely stifled progress.

In fact, Carly Scaduto, senior communications manager for Monsanto, said that firm, which is most closely associated with the GMO concept, has no current GMO breeding programs underway for the fresh produce industry.  The company does sell GMO varieties of fresh market zucchini and sweet corn, but both were the result of work that had already been done for the agronomic sector and not specific research for those fresh market varieties.  Scaduto said it was cost effective, for example, to take the work on genes developed for field corn and insert it into sweet corn.  The Performance Series Sweet Corn is both Round Up-ready and has a genetic trait that make its resistant to root worm.  Comparatively, the GMO zucchini has virus-resistant genes inserted.

Like most of the advantages in the GMO agronomic crops, these traits are good for the grower but really don’t do much for the consumer.  The same can be said for the genetic modifications that have allowed the Hawaiian papaya industry to survive.  A disease was threatening that industry until varieties were genetically modified to resist that disease.  The consumer has benefited by having continued access to more papayas, but that’s not a tangible benefit.

“Golden Rice” continues to be the goose that one day may lay the golden egg.  The Golden Rice Project has successfully inserted a gene into rice varieties that greatly increases their vitamin A content with the main goal of decreasing blindness in some of the world’s poorest countries, where vitamin A deficiency is a huge problem.  Unfortunately, public perception continues to block the use of these varieties in most of the countries where they could do the most good.

The public perception problem runs deep.  At the recent Forbes AgTech Summit in Salinas, speaker Sara Menker, founder and CEO of Gro Intelligence, unwittingly articulated the issue better than most.  She said the problem with GMOs is a problem of perception rather than reality.  She readily admitted that it is a public relations problem as no one from the pro-GMO side counteracts the negative comments made by the anti-GMO folks.  But then she quickly added that she prefers non-GMO food.  The anti-GMO folks have done such a great job of vilifying the process that even one who knows better feels compelled to align with the anti-movement publicly.

Scaduto of Monsanto said that while that giant firm sells GMO seed, it does not market the products and believes that is the domain of those growing and marketing the food to publicly promote it.  The company is supportive of voluntary labeling as it believes the consumer should have a choice.  But voluntary labeling is far different than active promotion.  Another agro-giant, Syngenta, initially developed the Golden Rice seed but pulled out of the project a decade ago, almost certainly because of the negative publicity.

But now there are a couple of possibilities of some positive marketing to go along with GMO fresh produce.

 

The INNATE Potato

Simplot Plant Sciences has developed a non-browning potato through genetic engineering and it is beginning to proactively market that item as a superior product.  Doug Cole, director of marketing and communications for Simplot Plant Sciences, said the advantage of a non-browning potato is huge for the consumer and especially for the foodservice industry.  Anyone who has cut a potato knows that after a relatively short time, it starts to brown, which annoys consumers as well as foodservice operators.  Cole said imagine the efficiency of being able to peel and cut a potato at source and deliver it in that fashion to a foodservice operation, which can use the product at their leisure.  The same benefit will be evident to consumers as they peel the potatoes and note less bruising, browning or black spots.

Simplot received clearance from the Food and Drug Administration in March to use the Innate technology in various potato varieties.  The company is currently working with growers and retailers to bring to market several popular potato varieties with improved traits that benefit consumers, food producers and growers.  The Innate potato’s value proposition is that it has fewer black spots from bruising, stays whiter longer when cut or peeled and has lower levels of naturally-occurring asparagine, resulting in less acrylamide when cooked at high temperatures.  Innate potatoes are also less prone to pressure bruising during storage, resulting in less potato waste and potentially millions of dollars in savings to growers every year.

Cole said market research has shown that these tangible benefits will be accepted by the majority of consumers.  He noted that research shows that consumers react positively when told of these positive traits and informed that the genetic engineering involves turning off the browning gene.  He said Innate potatoes will be sold in limited test markets this summer and then reach a much broader market in spring of 2016.  Cole said Simplot believes the value proposition is strong, and it is urging growers and marketers to “accurately promote and market these exclusive features on relevant packaging.”  The firm believes it is in their best interest to promote these advantages because they have created a better potato.  How much money the giant company will put behind an effort to proactively market GMO potatoes is unknown, but it could be a game-changer.

 

The ARCTIC Apple

Traveling a similar course, albeit a bit slower because of the nature of tree crops, is Okanagan Specialty Foods.  This Canadian firm has developed the Arctic apple, which also is a genetically modified variety with the value proposition of “turning off the browning gene.”

Jennifer Armen, director of business development for the firm, said biotechnology has been employed “to silence the expression of the PPO enzyme which causes browning in apples.”  Besides presenting a better piece of fruit, she said the lack of browning, which changes the fruit nutritionally, results in the apple retaining more vitamin C after it is cut than a regular apple.

Initially, the company has developed an Arctic Granny Smith and an Arctic Golden Delicious.  These apples can be sliced and packaged without the use of preservatives.  Armen said that research has shown that children will eat 70 percent more apples when they are presented in a sliced fashion.  “We see this as a way to invigorate these apples varieties,” she said.  “The non-browning gives opportunities for many new uses.”

Okanagan’s Arctic apples have also been approved for growing and distribution by the FDA, but because it takes much longer to grow an apple than a potato, they will not be commercially available for a couple of more years.  However, the firm is also doing market research and Armen said consumers are reacting favorably when the value proposition is explained.  She said in one research survey, 51 percent of consumers said they were somewhat or extremely likely to purchase genetically modified, non-browning apples.  “When we explain how they are modified that figure jumped to 59 percent,” she said.

Okanagan Specialty Foods is a subsidiary of Intrexon, a multi-national company in the biotechnology realm using the science in a variety of food, health and environmental products.  Like Simplot, it has the financial muscle to put some promotional weight behind a GMO product.

Armen concedes that not all consumers will purchase genetically modified apples, but not all consumers purchase any product, she said.  Okanagan believes that a market does exist for Arctic apples and the firm is rock solid behind the concept.  She said two-thirds of consumers told researchers that if an apple was non-browning they would be more likely to purchase it.

The key will be whether retailers are willing to take a chance and sell and promote these items.  These two companies are betting that consumer perception can be changed and success will follow.

 

Future Opportunities Explored

And they are not alone.  A recent story in the consumer press noted that Del Monte is working on a cancer-fighting pink pineapple, and there are also GMO efforts to produce heart-healthy purple tomatoes and less fatty vegetable oils.

The belief is that as the value proposition is more clearly explained to consumers, they will embrace these products.  In a national wire story, Michael Firko, who oversees the USDA’s regulation of genetically modified organisms, said: “I think once people see more of the benefits, they will become more accepting of the technology.”

Reportedly, Fresh Del Monte Produce Inc. has engineered a pink pineapple with lycopene, an antioxidant compound that gives tomatoes their red color and has shown cancer-prevention properties in many different research studies.  USDA has approved importation of the pineapple, which would be grown only outside of the United States; it is pending FDA approval.  In addition, a British company is reportedly planning to apply for U.S. permission to produce and sell a genetically modified purple tomato variety with high levels of anthocyanins, compounds found in blueberries that some studies show lower the risk of cardiovascular disease and cancer.

With regard to agronomic crops, some of the major companies are currently developing modified soybean, canola and sunflower oils with fewer saturated fats and more Omega-3 fatty acids.  And there is also work ongoing to develop a genetically engineered orange tree that could potentially resist citrus greening disease.

Many believe that genetic engineering of crops will become an absolute necessity at some point as the world population continues to grow with no increase in arable land.  Has its time come?

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Labor Law: NLRB’s General Counsel Resurrecting Broader Joint Employer Standard

September 1st, 2015

By Michael C. Saqui

 

The National Labor Relations Board’s (NLRB) General Counsel is attempting to bring back the dead by advancing a joint employer standard that hasn’t been used in 30 years. This threatens not only big franchisors like McDonald’s, but also processing plants, coolers and companies that use temp agencies, farm labor contractors, or other labor suppliers.

Even if a company exercises little to no control over the employees provided to it, it may still wind up being forced to collectively bargain with a union or answer to unfair labor practice charges alleged against their labor supplier.  The NLRB is also attempting to circumvent any employer input into unionizing temporary workers.  This is a dramatic overreach by an unelected panel appointed at the behest of the Obama Administration.

This obviously creates much greater exposure for employers than under the National Labor Relations Act (NLRA) than any time in the last three decades.  This broad expansion of the zone of liability is reflective of a trend across various levels of government showing the government’s need and desire to have more than one party hooked in as the employer for a union’s ultimate money grab.

To add to the confusion, no single standard for joint employer exists and each bureaucracy has its own special test.  The California Department of Labor Standards Enforcement looks to see how wages are paid to the employee.  The California Employment Development Department focuses on the right of the principal to control the manner and means of accomplishing tasks.  The United States Department of Labor uses an economic realities test.  The California Franchise Tax Board uses a common law test.

Each government agency is drastically pushing the boundaries of what constitutes a joint employer.  The motivation for this is obvious: the more employers and other parties in the supply chain get roped in, the more pockets the unions and their allies in government can reach into.  The noose is tightening around companies that use labor contractors or franchise out their operations.  If this new standard advanced by the general counsel takes hold, it could be an end to the franchise and farm labor contractor system as we currently understand it.

Efficiency and productivity are clearly values that the government has found should come second to red tape and the pocketbooks of union lawyers.  Under our current system, an employer can generally count on avoiding liability for franchisee or farm labor contractor’s conduct by making sure to avoid involving themselves in the human resources function.  Employers are free to exercise control over marketing, signage, pricing, training of managers, hours of operation and methods of preparing their products.

Problems generally arise where the employer gets involved in issues of employee discipline, hiring, firing, compensation rates and work schedules.  This attempt to force a new standard on employers also has the NLRB looking at how they deal with unionization of temporary workers supplied by staffing agencies.

In an obvious attempt to expand the dues paying base for unions, the NLRB is considering bringing back another 15-year-old standard from a case called M.B. Sturgis.  The current rule requires that both the contracting employer and the staffing agency consent to any election.  It is intended to eliminate the confusion that might result from having a contracting employer and a staffing agency bargain separately with multi‐employer bargaining units made up of employees solely employed by the contracting employer and jointly employed by both the contracting employer and the staffing agency.  Under M.B. Sturgis, the right of employers to refuse to be involved in that kind of nonsense is stripped away.  In the general counsel’s view, a client employer is a joint employer anytime they wield sufficient influence over the working conditions of another entity’s employees such that meaningful bargaining could not happen without them.

The two cases to watch are McDonald’s USA, and Browning‐Ferris, both currently pending before the NLRB.  Following a wave of organizing in the fast food industry in late 2012, the general counsel’s office has pursued upwards of 90 cases of unfair labor practices against McDonald’s Franchises alleging McDonald’s USA is a joint employer.

Browning‐Ferris Industries (Case 32‐RC‐109684) involves a client employer who used a company called Leadpoint to supply its workers.  Browning‐Ferris did not have power to recruit, hire, fire, pay, benefits, and gave only minimal instruction on what it wanted done.  Leadpoint had its own human resources department.

Under the old joint employer analysis and as the NLRB regional director under the General Counsel originally decided, Browning‐Ferris was not a joint employer.  However, the Teamsters appealed and the General Counsel agreed that the wrong standard was used in determining a joint employer.  Under the new standard urged by the General Counsel, there should be no distinction on whether a client employer directly or indirectly controls the workers, but rather whether the “industrial realities” make it an essential entity necessary for meaningful bargaining. 

The NLRB invited amicus briefs and the Equal Employment Opportunity Commission (EEOC) has also pushed for this less strict standard for finding a joint employer.  The NLRB has started to use this standard in at least one case, Freshii Development, LLC.  In that case, it appears that even under the new standard, a franchisor that exercises great control over business operations, but avoids the human resources function, can still avoid joint employer liability.  Freshii dictated the franchisee’s business systems, equipment, business formats, methods, procedures, pricing, ingredients, designs, layouts, trade dress, standards, signage, prescribed staffing levels, appearance, service, and job functions. Freshii made it very clear that its sample employee handbooks, job advertisements, and interview questions it provided to franchisees were completely optional.  When franchisees came to Freshii asking for advice on how to handle labor organizing efforts, Freshii stayed out of it, providing no advice.  When its franchisee fired those employees for organizing, Freshii took no action.  Other than passive monitoring, reporting, and initial training of managers and employees at the opening of a franchise, Freshii took no action pertaining to management of individual employees or employee policies.  Even under the new analysis urged by the General Counsel, the NLRB found Freshii was not a joint employer. 

However, this is hardly the last word on Freshii or any of the cases mentioned.  With the high stakes involved and the funding behind the union and their allies in government, this issue will almost certainly make its way through appeals and the Courts. Client employers and franchisors need to be keenly aware of what parameters of the business they are allowed to control, and what parts to stay away from should they wish to avoid exposure.  However, depending on how this new standard is applied, employers’ only option may simply be to accept that they may need to dial back how they dictate business operations or alternatively, take an even more active role in compliance to minimize liability.

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Ag Needs Voice in Water Discussions

September 1st, 2015

By Robert Shuler

We know that agriculture must have water to produce food and fiber.  Whether it’s vegetables or livestock, cotton or strawberries, agriculture cannot survive without water.

These are obvious statements that all of us in agriculture understand very well.  Sadly, the public and many political decision makers don’t understand this fact.

Especially these days.

It should go without saying that agriculture must be considered and be at the table whenever water is discussed.  Instead, what we find is that while agricultural water usage is almost always on the table when water is being discussed, agricultural must consistently insist, if not demand, that we have a seat at the table rather than being on the table during water discussions.

We frequently express our frustration with the lack of understanding among the public about agriculture.  Throw water into the mix as you try to educate the public and the level of understanding becomes even more murky.

Water is something that is absolutely required for all life.  That’s true whether it’s for humans living in a city, livestock grazing in a pasture, or crops growing in a field.  Now magnify the public’s lack of understanding of our industry and our use of water through the lens of the public’s comfort, convenience or even survival.  You can see that the public’s lack of understanding can easily overwhelm and outweigh our understanding of the absolute necessity of this essential agricultural input.

Agriculture must be at the table to protect our businesses as well as to continue to feed and clothe society.  The opportunity to be at the table during water discussions has presented itself many times in California and Arizona

Thirty-five years ago when the Arizona Groundwater Management Act of 1980 was adopted, our industry was at the table and agricultural water usage was the target.  Among other things, the act established a timeline for reduction and elimination of groundwater pumping in certain areas of the state by creating Active Management Areas (AMAs) and irrigation non-expansion areas.

Because agriculture was at the table, the ability to farm within AMAs using groundwater was maintained.  No new farmland could be put into production within an AMA.  However, lands that have been certified, based on historic water use, could continue to be irrigated with groundwater.

Western Growers and its members are at the table as current water issues are being debated and decided in Sacramento.  Western Growers and its members are leading the effort in Washington D.C. to address water challenges in the western United States.

Today, public sentiment regarding water is being aroused in the media on a regular basis.  Articles, blogs, and other forms of communication describe the problems, define the issues, and suggest solutions.  Often this occurs without adequate or any input from agriculture.  Some suggest agriculture should no longer be preserved in the arid Southwest.  Some suggest that large populations should not be living in the Southwest because of the lack of sufficient water.

Well-respected water authority, former Senator Jon Kyl from Arizona, is calling for new leadership and planning on water issues in Arizona.  Arizona Governor Doug Ducey is considering statewide meetings to discuss water challenges.  Others are demanding a “Citizens Advisory Panel” to provide advice to regarding an overhaul of Arizona’s water laws and institutions.

In anticipation of these discussions, an Arizona Agricultural Water Summit is being called for this fall.  Western Growers and its members will be at the table.  As our colleague AnnaMarie Knorr has so passionately and clearly articulated:

“The Arizona Agricultural Water Summit is designed for Arizona’s agricultural water users to have a conversation—a conversation about water.  A conversation about public attitudes related to agriculture and its use of water in Arizona (including research results from the most comprehensive Arizona agricultural water survey of public attitudes about agriculture and water in Arizona’s history); a conversation about what regional needs or insecurities exist; a conversation about how the various segments and locales of agriculture see their water future; a conversation to understand the needs, fears or desires of various segments; and a conversation about how we might develop a stronger coalition of agricultural water users which means listening and speaking to each other.”

As she notes, when the public and politicians call for change, agriculture needs to speak with a common voice or at least with an understanding of, and respect for, where the differences in agriculture exist.  Otherwise we are doomed to failure or at the very least, to being considered a minor, unimportant player and not allowed a seat at the table, as our livelihood is being dissected and disseminated.

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Groundwater Management: Phase 2: Adjudication Reform

September 1st, 2015

By Russell McGlothlin

 

The enactment of the Sustainable Groundwater Management Act of 2014 (“SGMA”) was a bold first step toward managing California groundwater.  SGMA requires local agencies to elect to be “groundwater sustainability agencies” or “GSAs” to develop “groundwater sustainability plans” or “GSPs” for the state’s most at-risk basins.  If local agencies fail to timely comply with SGMA’s requirements, the act allows the state to intervene and promulgate a plan for the basin.  GSPs must curtail the adverse consequences of groundwater overdraft, such as subsidence, seawater intrusion, and long-term supply depletion, within 20 years of the plan’s adoption.

Despite its merits, SGMA is an incomplete remedy to California’s groundwater management problems.  The legislature left key issues unresolved.  The act does not provide for a determination of groundwater rights and how they relate to pumping allocations and obligations to fund basin replenishment and management.  SGMA also does not does not set definitive criteria for determining a basin’s sustainable yield and resolving other technical matters that inform the amount of groundwater that may legally be pumped from a basin and who is allowed to do so.  Further, SGMA does not establish a procedure to resolve disagreements over which local agency or combination of agencies will assume the role of the GSA.  These difficult issues must either be resolved through negotiation or litigated through groundwater basin adjudication.

Historically, roughly two dozen groundwater basins in California have been adjudicated and are now managed pursuant to court-administered management plans.  Once complete, adjudications typically afford efficient and sustainable groundwater management by limiting cumulative groundwater production to the basin’s “safe yield,” establishing programs to enhance available yield, comprehensively adjudicating groundwater rights, and creating discrete individual pumping allocations.  Adjudications also allow for voluntary transfers of pumping allocations and maintain the court’s continuing jurisdiction to oversee the management plan and to adapt the plan over time.  The significant downside of historical groundwater basin adjudications has been the time and expense required to complete them; some adjudications last several decades or longer.

The potential delay in processing of an adjudication is inconsistent with SGMA’s goal of achieving sustainable groundwater management within 20 years.  The adjudication process must be sustainably streamlined.  In his signing statement for SGMA, Governor Brown promised to introduce legislation to reform the adjudication process.  In July 2015, the Brown Administration released its proposal.  The Administration’s proposal borrows heavily from the provisions in AB 1390 (Alejo), a pending bill to reform the adjudication procedure which was promulgated by the California Farm Bureau with input from the Association of California Water Agencies and other stakeholders.  Another adjudication reform bill carried by Senator Pavley (SB 226) was amended on August 10, 2015 to incorporate much of the Administration’s proposal.

Many aspects of the Administration’s proposal and AB 1390 are similar and appear to have broad support within the water management community.  Each proposal includes provisions to:

•  Ensure that adjudications comprehensively cover all groundwater rights within the basin;

•  Establish an efficient method to serve all potential groundwater claimants, including all landowners overlying the basin, whether or not they are current pumpers;

•  Deem adjudications as complex litigation;

•  Limit or eliminate peremptory judicial challenges and establish special judicial assignment procedures;

•  Authorize the court to set trial phases, stay the litigation to allow for progress on a GSP or other settlement initiatives, and appoint special masters;

•  Require litigants to make early factual disclosures concerning groundwater pumping and use, among other disclosure requirements;

•  Require parties to submit direct testimony in writing; and

•  Create special features to encourage the parties to pursue settlement and specific procedures for the court to review proposed settlement stipulations.

 

AB 1390 and the Administration’s proposal differ in the location of the new law in California Code. AB 1390 would place the reform provisions in the Code of Civil Procedure whereas the Administration’s proposal places the reforms in the Water Code as a new chapter within SGMA.  Other notable differences include provisions in the Administration’s proposal that would:

•  Allow the state to intervene as a party in adjudications;

•  Empower the court to adopt a preliminary injunction limiting groundwater production while the adjudication proceeds;

•  Authorize a court to “subordinate” dormant (unexercised) overlying rights of landowners in a manner similar to subordination of riparian rights within a comprehensive stream adjudication; and

•  Expressly allow the court to join individuals claiming rights to divert from surface water sources that are interconnected with the basin’s groundwater supply.

 

The two proposals also differ with respect to how a final judgment in an adjudication action would relate to SGMA’s GSP requirements.  The Administration’s proposal would allow an approved stipulated judgment to avoid SWRCB enforcement under Chapter 11 of SGMA, but only if any existing GSA and the Department of Water Resources (DWR) both concur that the stipulated judgment is consistent with SGMA’s objectives.  The Administration’s proposal should be revised in this respect.  As written, it would allow a GSA and DWR to determine compliance with the law over a court’s determination, effectively inverting the checks and balances between the judicial and executive branches of government.  While it is entirely appropriate that a GSA and DWR both participate in proceedings to inform the court of their views of consistency between an adjudication judgment and SGMA objectives, the ultimate determination of legal sufficiency must rest with the court.  If a court determines that an adjudication judgment sets forth a management plan that will achieve sustainable groundwater management in the same caliber as a GSP under SGMA, the judgment should govern the basin and a separate GSP should not be required for the basin.  A contrary result would risk incongruous management directives between the judgment and a GSP, leading to an unworkable result.

Overall, there appears to be substantial consensus on many aspects of adjudication reform, and a bill is likely to pass this year.  Provided that the critical issue of harmonizing groundwater adjudication judgments and SGMA, noted above, can be resolved appropriately, the result will be the second necessary step for a complete legal framework to achieve sustainable groundwater management in California

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ACA Reporting

September 1st, 2015

The clock continues to tick and the reporting requirements associated with the Affordable Care Act (ACA) are just around the corner.  You may be ahead of the curve and already have your solutions in place.  Or, you may still be asking questions and trying to gain clarity.  Questions we have heard from customers include:

I am confused as to whether my company should be filling out the 1094b and 1095b or C’s…

•    The answer to this question rests in whether you are a large or small group based on your applicable large employer status.

(Refer to the Ag Employers Guide to Health Care Reform or http://www.wgat.com/news/2015-employer-mandate-explained for more on this topic)

Are we considered a self-insured employer?

•    The plans available under WGAT are self-insured plans.  Under ACA reporting, the plan sponsor of a self-insured plan is responsible for the reporting.  But there is an exception for MEWAs (yes, WGAT plans are under a MEWA).  Employers with self-insured plans from a MEWA are responsible for the reporting.

If not, then do I just not file anything for 2015?

•    Not filing for 2015 will likely result in potential for penalties unless you qualify for a special exemption.

I’ve heard that the insurance carrier will do the 1094b and 1095b—does this mean I’m off the hook?

•    For employers that qualify as small groups and are with fully insured plans, the carriers will be providing the employees with the 1095b forms and filing copies of these with the 1094b to the IRS.

•    WGAT will be providing small group enrolled employees with these forms and filing to the IRS (unless you opt out).  A mailing with more details will be coming out in the near term.

Three dates to keep in mind with respect to ACA reporting:

•    Forms due to the employees (1095b or 1095c) are due on the last day of January.

•    Filing paper forms with the IRS (this is the 1094 with copies of 1095s issued) is due by the last day of February.

•    Filing electronic submissions is due by the last day of March. (Entities filing more than 250 forms MUST file electronically.)

Not to confuse matters, but recent IRS documents state:

•    “You will meet the requirement to file if the form is properly addressed and mailed on or before the due date.  If the regular due date falls on a Saturday, Sunday, or legal holiday, file by the next business day.  A business day is any day that isn’t a Saturday, Sunday, or legal holiday.”

Earlier this month, the IRS made an announcement that contained revised draft instructions and revised forms along with instruction for the application of a 30-day extension to the filing deadlines.

For more information, see IRS publications:

•    Instructions for Forms 1094-B and 1095-B (2015)

•    http://www.irs.gov/pub/irs-dft/i109495b–dft.pdf

•    Instructions for Forms 1094-C and 1095-C (2015)

•    http://www.irs.gov/pub/irs-dft/i109495c–dft.pdf

Collectively, your tax professionals, Human Resources staff and benefit providers will be needed to facilitate your reporting needs.  WGIS remains committed to helping our members anticipate and prepare for this upcoming requirement.  For more information on this topic, contact your account manager with WGIS or call 800-333-4WGA.

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Could Nanotechnology Benefit Your Business?

September 1st, 2015

Nanotechnology was a subject of interest at the recent International Association for Food Protection (IAFP) conference in Portland, OR.  While research on this technology began about a decade ago, recent developments hold particular promise for the fresh produce industry.

In the not-so-distant future, applications of nanomaterials may allow us to increase crop yields without expanding land use or inputs.  Also, nanotechnology may soon allow us to inactivate pathogens without compromising the quality of our fresh produce.  With its broad array of potential applications on the farm and in the processing plant, nanotechnology is an emerging field that requires our immediate and continuing attention.

Nanotechnology may still be unfamiliar to many people, but the term simply refers to any type of science, engineering or technology that is conducted at a nanoscale.  How big is a nanoscale?  The unit of measurement used in nanotechnology—nanometers—is so small that it cannot be seen with a regular microscope.  To put its size into perspective, a freckle on your face one millimeter wide is equal to one million nanometers.  Because of the size of nanomaterials, they behave differently than their full-sized counterparts, making it possible to enhance the properties associated with such materials.  A number of different fields are exploring the use of nanotechnology, including medicine, biotechnology, energy, cosmetics, aeronautics and agriculture.

The tremendous potential of nanotechnology has attracted considerable resources into research and development.  Since 2001, the U.S. government has invested $22 billion into nanotechnology research.  In 2014, the National Institute of Food and Agriculture—an agency within USDA—announced $3.8 million in grants to universities to study the role of nanotechnology in food security, food safety, nutrition and environmental protection.

Many researchers are exploring the use of nanotechnology in the agricultural sector.  Current trends point to the efficacy of nanotechnology in the areas such as disease management and crop protection.  While specific applications are still uncertain, nanomaterials in agriculture aim to reduce the use of chemicals in plant protection, enhance the absorption of nutrients in fertilization and increase yields through more efficient water and nutrient management.  The benefits of nanotechnology as diagnostic devices and in the field of plant breeding are also being explored.

Furthermore, current research from several universities holds promise for impactful outcomes in other areas, including reducing the risks related to foodborne pathogens.  A recent research project conducted by Harvard’s Center for Nanotechnology and Nanotoxicology revealed that Engineered Water Nanostructures (EWNS), tiny water nanodroplets generated by electrospraying of water, possess unique properties that have the ability to inactivate pathogens by destroying their membrane.  In the study, EWNS was demonstrated to be effective against E. coli, Salmonella, and Listeria.  The researchers, Drs. Georgios Pyrgiotakis and Pallavi Vedantam, believe this technology can not only significantly decrease the prevalence of foodborne pathogens but also extend the shelf life of fresh produce.  Currently, they are evaluating where this technology may be deployed and assessing the scalability of this technology to operational levels.  While the final outcome remains to be seen, this use of nanotechnology holds significant potential for the fresh produce industry.

Another novel approach to applying nanotechnology to the agriculture industry involves using nanomaterials as regulators of crop growth.  In her recent study, Dr. Mariya Khnodakovskaya of the University of Arkansas demonstrated that carbon-based nanomaterials can activate seed germination and plant growth resulting in higher yields.  While further research is required, including studying the long-term impacts of consuming plants exposed to carbon-based nanomaterials, Dr. Khnodakovskaya’s findings may be a significant factor in the “growing more with less” équation.

Developing a better understanding of nanotechnology and its long-term effects is a top priority for many government agencies and university researchers.  The U.S. Food and Drug Administration (FDA) is currently monitoring nanotechnology developments and is working to ensure that there is a robust research agenda to help assess the safety and effectiveness of products using nanotechnology.  To ensure the protection of the public health, FDA performs safety assessments for nanotechnology as part of its evaluation process.  The agency has also created a Nanotechnology Task Force charged with determining regulatory approaches that encourage the continued development of innovative, safe, and effective FDA-regulated products utilizing nanotechnology materials.

Do you see nanotechnology as part of the future of your business?  Is nanotechnology a game changer if economically feasible?  Join this conversation by providing your comments and feedback to our blog: http://www.wga.com/sci-tech/agknowledge

 

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ACA Requires Calculation Work For Full Time & Seasonal Employees

September 1st, 2015

Dear Jon,

We have 60 full-time employees year-round and for about six months of the year we employ 250 seasonal employees.  The seasonal employees typically work 40-60 hours a week.  We have two different seasons: March through May and September through November.  We offer a health benefit plan to our full-time employees; do we need to worry about these seasonal employees?  Could we be penalized for failing to offer coverage to seasonal employees?

Seasonal Employee Concerns in Salinas

 

Dear Seasonal,

You may, in fact, have an employer mandate problem and be subject to tax penalties in 2015 for failing to offer coverage.  Depending on the manner in which you’re identifying full-time employees you may be failing to offer coverage to employees that are considered full-time under the law.

The general rule under the Patient Protection and Affordable Care Act (“ACA”) in 2015 is that large employers with 100 or more full-time employees and equivalents are required to offer minimum essential coverage to substantially all full-time employees and dependents and the coverage must be affordable and meets minimum value.  If an employer fails to do this, they will potentially owe a tax penalty.  In 2016, employers with 50 or more full-time employees and equivalents will be required to comply.  Tax penalties are not automatic, rather they are triggered when a full-time employee goes to a health insurance exchange and qualifies for subsidized health coverage.

An employer who fails to offer coverage to substantially all full-time employees is subject to the “A Penalty” of $2,000 multiplied by all full-time employees minus the first 80 full-time employees.  The “minus the first 80 full-time employees” is thanks to some transitional relief for 2015 only.  This reverts to minus the first 30 full-time employees in 2016; the ACA’s original requirement.

An employer who fails to offer coverage that meets the law’s requirements (e.g. is unaffordable or not minimum value) is subject to the “B Penalty”—which is the lesser of the “A Penalty” or $3,000 multiplied by each full-time employee that gets a subsidy.  Thanks to transition relief, the definition of substantially all in 2015 is 70 percent of full-time employees.  In 2016 and beyond the definition of substantially all reverts back to 95 percent of full-time employees (the original text of the law).

In your case, the first step is to analyze your employer size.  An employer must determine the number of full-time employees and equivalents employed in the prior calendar year.  If an employer employed 100 or more full-time employees and equivalents in 2014, it is considered a large employer subject to the large employer mandate in 2015.  Because of a one-time transitional relief rule, employers may use a consecutive six month period of time in 2014 to determine large employer status in 2015.  This transition rule does not apply in 2016 (unless further relief is provided by regulators) and employers will use the entire prior calendar year to determine employer size, that is, the entire calendar year of 2015 for 2016 and so on for future years.

To determine employer size you simply count full-time employees and full-time equivalents working for you every single month of the year (or for 2014 only, a selected consecutive six month period), add them up and divide by 12.  If you have 100 or more you’re subject to the employer mandate in 2015.

You mentioned that you have 60 full-time employees working year-round and 250 seasonal employees who work 40-60 hours a week.  If you have seasonal workers who are working more than 120 days or four months during a calendar year; you will be required to count them for purposes of determining employer size.

In your question, you stated your seasonal employees work from eight to 10 months of the year.  You will be required to count these individuals (you may also owe them an offer of coverage if they qualify as full-time employee, see below).

You have 60 full-time employees and 250 employees you’re referring to as seasonal who work at least 40 hours a week for six months.  To calculate your large employer status you must add up all full-time employees and full-time equivalents employed during each month during prior calendar year month and divide by 12 (or for 2015 only you may use a consecutive six month period in 2014).

In your case, from your question it appears that all of your employees are full-time employees despite the fact that you’re referring to them as seasonal.  A full-time employee is one who works at least 30 hours a week or 130 hours a month.  See the accompanying Table 1.(In hard copy but not reproduceable online)

From January through February, June through August and in December you employ 60 full-time employees.  From March through May and September through November you employ 310 full-time employees.  Over the course of calendar year 2014 (and during any consecutive six month period) you employ an average of 185 full-time employees.

Now that we’ve identified you as a large employer for 2015; the next step is to identify full-time employees or those individuals to whom you are required to offer coverage or potentially pay tax penalties.  Based on the above description, you’ll likely note that it appears I’ve already discussed full-time employees, which I have but only for purposes of determining employer size.  Employers actually have additional flexibility under the ACA to identify and define full-time employees.

To identify full-time employees, employers may use two methods: the monthly measurement method or the look-back rules.  The monthly measurement method requires an employer (after a permissible waiting period) to offer substantially all full-time employees, those working 30 hours a week or 130 hours a month, the opportunity to enroll in qualifying health benefits coverage or potentially pay a tax penalty (as explained above).  The monthly measurement method is the default rule that applies unless the employer affirmatively implements and documents the use of the look-back rules.  The monthly measurement method does not differentiate between seasonal employees and full-time employees.  If an individual is working at least 30 hours a week he or she is full-time.

The look-back rules, on the other hand, allow an employer to measure certain employees over a period of time between three and 12 months to determine whether they qualify as full-time employees during the measurement period.  If they qualify during the measurement period, they will earn coverage for a subsequent time period called a stability period.  These measurable employees include variable hour, seasonal, and part-time employees.  Individuals hired as full-time employees, on the other hand, must be offered coverage after a waiting period of no longer than 90 days.

In your case, the employees you’ve described in your question appear to fall into the definition of seasonal employees: a seasonal employee is one who is hired into a position for which the customary annual employment is six months or less and for which the period of employment begins each calendar year in approximately the same part of the year, such as summer or winter.

You could have utilized the look-back rules to measure your seasonal employees to determine whether they qualify as full-time.  However, you did not and may as a consequence, face serious tax penalties.

In your case, you explained the scenario depicted in Table 2..(in hard copy but not reproduceable online)

As a large employer, you are required to offer coverage to substantially all or 70 percent of your full-time employees in 2015 (in 2016 this reverts the ACA text’s 95 percent requirement).  You’ve failed to offer coverage (so far this year) to substantially all of your full-time employees potentially subjecting yourself to the A Penalty.  The $2,000 multiplied by all full-time employees minus first 80 (reverts to minus first 30 in 2016).  If a single full-time employee obtains subsidized coverage in a given month you may be subject to penalty for that month.  For simplicity’s sake, assume at least one full-time employee received subsidized coverage in 2015; you may face a penalties for each month in which you failed to offer coverage to substantially all full-time employees.

From the table above, you’ve failed to offer coverage to substantially all of your employees in six out 12 months.  If a full-time employee is receiving subsidized coverage that month (as we assumed above) you’ll face penalties calculated each month as follows:

•    For March through May and September through November you could be penalized for every full-time employee each month because you fail to offer coverage to substantially allfull-time employees during these months. Here’s the A Penalty calculation:

o    (310 – 80) x 6/12 of $2,000 = $230,000

 

Please note that the $2,000 (and the $3,000 B Penalty) will be adjusted for inflation year over year.  The penalty amount is in addition to the costs you’ve incurred for offering coverage to your other employees and the penalty is not tax deductible.

If you are interested in learning more about the penalties and seasonal employees, download the Ag Employer’s Guide to Health Care Reform available to all WGA members.  You can find it here:  http://bitly.com/aghcrguide.  For more information about this article or if you have other questions about health care reform contact our Health Care Reform team today at [email protected] or 800-333-4WGA. Write to Dear Jon at [email protected].  For more information and resources on Health Care Reform, visit www.wgat.com/health-care-reform.

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DOL Says Most Independent Contractors Are Employees

September 1st, 2015

In recent years, the U.S. Department of Labor, the Internal Revenue Service and their state agency counterparts, have been cracking down on independent contractor misclassification – that is, classifying workers as independent contractors rather than employees.

Employers sometimes elect to classify certain workers as contractors because contractors are believed to be cheaper than employees while giving the employer more flexibility.  Contractors are not entitled to benefits, such as health insurance and 401(K), and the employer is not liable for paying state and federal employment taxes, unemployment insurance and workers’ compensation for contractors.

The line between an independent contractor and an employee has traditionally been blurry.  There are a multitude of legal standards that courts use and no one factor is dispositive.  As part of its continuing efforts to target misclassification of employees, the U.S. Department of Labor has issued guidance on the proper classification of employees and independent contractors.  The guidance makes clear that the agency will view most workers as employees.

The DOL directs employers to focus on the broad definition of “employ” under the Fair Labor Standards Act (FLSA) and the “economic realities” test.  Under this test, employers should determine whether the worker is “economically dependent” on the purported employer (and thus its employee), or is really in business for him or herself (and thus is an independent contractor).

 

The “Economic Realities” Test

The guidance summarizes the six-factor “economic realities” test:

1.  Is the Work an Integral Part of the Employer’s Business?

If the worker performs the type of work that is core to the employer’s business, this weighs in favor of finding an employee relationship.  On the other hand, if the worker provides a service to the employer’s business, this factor weighs in favor of an independent contractor relationship.

2.  Does the Worker’s Managerial Skill Affect the Worker’s Opportunity for Profit or Loss?

An independent contractor typically has the opportunity for profit or loss of capital investment based on managing the project.

3.  How Does the Worker’s Relative Investment Compare to the Employer’s Investment?

Independent contractors usually supply their own materials, pay for many, if not all, of their own expenses, and are not typically trained by the company.  Even if a worker has made an investment (in tools, supplies, etc.) that investment must be significant when compared to the investment of the purported employer.

4.  Does the Work Performed Require Special Skill and Initiative?

The worker who provides only specialized skill is more likely an employee while the worker who provides specialized skill, offers services to a number of customers, markets his or her services, and makes decisions about materials is more likely an independent contractor.

5.  Is the Relationship between the Worker and the Employer Permanent or Indefinite?

Independent contractors are usually hired to perform a discrete project during a set period of time with a starting and ending date.

6.  What is the Nature and Degree of the Employer’s Control?

Independent contractors usually have a formal, written agreement in place describing the independent contractor relationship, setting the price or fee for the final product and the terms of the project.  And unlike most employees, contractors are not usually terminable “at will” and are not subject to company policies and procedures, or other terms and conditions of employment.  Importantly, the guidance notes that flexible work arrangements are common forms of employment and the fact that an individual works from home or controls the hours of work is not indicative of independent contractor status.

According to the DOL, each factor must be examined and analyzed in relationship with the others and in light of the overall focus on economic dependence and providing “broad coverage” for workers.  Additionally, no single factor should be deemed determinative—in particular, according to the guidance, the “control” factor should not be given “undue weight.”

 

Penalties, Taxes, and Back Wages, Oh My!

Employers found to be misclassifying employees as independent contractors face severe penalties and damages.  The DOL is empowered to award back pay and liquidated damages, and to assess civil money penalties of up to $10,000 for instances of minimum wage and overtime violations; a second conviction may result in imprisonment.

In addition, the DOL may fine employers who repeatedly violate the requirements up to $1,100 per violation.  Under California law, any person or employer found to have willfully misclassified workers as independent contractors is subject to civil penalties of between $5,000 and $25,000 for each violation.

Employers who are determined to have misclassified employees as independent contractors may be liable for unpaid minimum wage, unpaid overtime compensation, meal and rest break violations, and related wage and hour penalties.  In addition, there may be liability for failure to provide health and other benefits, denied medical leave, state and federal taxes, unemployment insurance and claims, and workers’ compensation insurance and claims.

 

What Employers Should Do Now

While the new guidance does not have the force of law, it will be applied by the DOL and may be given deference by courts.  Courts will also likely apply the DOL’s guidance when assessing whether employees are improperly classified.  Accordingly, employers should take this opportunity to review non-employee classifications in light of the guidance.

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Crawford Transitions Storied Firm

September 1st, 2015

The Harold Crawford Company

Bakersfield, California

Member Since 1978

 

Harold Crawford has been an integral part of the Southern San Joaquin Valley produce industry since he moved the headquarters of his Northwest firm to Bakersfield 55 years ago.

Today he still comes into the Bakersfield office on a regular basis and is chairman of the board of the company, but, in fact, he sold the firm to his partners as of January 1 of this year and has basically hung up his boots after a 69-year diverse produce career.

His company’s roots actually predate him as his father, Wesley Crawford, founded The Mutual Fruit and Produce Co, in Tacoma, WA, in 1935.  After selling that firm in 1948, he founded the Wesley Crawford and Son Company the same year.  Harold was the son in that firm which specialized in repacking tomatoes and carrots.  Fresh from achieving a degree at Seattle Pacific University, Harold joined his dad with the goal of learning the produce industry from the ground up.  Unfortunately, baptism by fire was a more apt description as his father passed away in 1950, and the 23-year-old Harold had to take over as president and CEO.

When the company was founded, Wesley put it in the name of the Seattle Pacific University Foundation and pledged that all profits would go to that Christian college.  In fact, over the years those profits were used to build the Crawford Music Building as well as the president’s home.

In 1960, Harold bought the company back from Seattle Pacific for $1, which was the amount his father left him in his will, and moved the firm to Bakersfield.  He changed the name to Gro-Pak Inc. and opened Kern County’s first carrot packaging shed.  “We started the carrot industry in Bakersfield,” he said.  “I was here before Bolthouse and before Grimmway.”

He picked Bakersfield because the weather was right, and both water and land were plentiful.  “We were first to machine harvest carrots for the fresh market,” Crawford said.  “And the first to hydro-cool carrots and the first to have my own ice machine.”

At the time, Holtville in California’s desert was the state’s carrot capital and Crawford recalls that the desert growers and shippers thought he didn’t know what he was doing.  He proved them wrong, and in 1969 Crawford sold his thriving business to Belridge Packing Company and stayed on as sales manager.  In fact, he remained with Belridge for most of the next decade.

By 1978, he was ready to go out on his own once again and the Harold Crawford Co. was formed as a brokerage for retailers and wholesalers around the country.  The firm gradually built up its business and had many key accounts, including buying for the well-known Oregon-based Fred Meyer chain for 22 years until Kroger bought them out.  Crawford’s two sons, Greg and Bryan, were an important part of the company for many years and were integral to its growth.  They chose to leave the company at that time and start their own firms.

In 1995, Crawford formed Harvest Crown Co. Inc. to specialize in the importing of Hawaiian, Thai and Chinese ginger to the United States and Europe.  Over the years, Harvest Crown expanded its product line and has become a full line produce procurement business as well as a marketer of both domestic and off-shore crops.  It prides itself on its meticulous inspections and evaluations of the many crops it purchases for its customers.

In 2007, with an eye toward the future and a succession plan, Harold took on several partners.  In 2012, current CEO Keith Horder joined that team.  In January of this year, the founder of the firm sold his remaining interest to his three partners: Horder, COO Michael Hearn and CFO Celynn Womack.  “We put the plan in place and executed it this January,” said Crawford.  “I am extremely happy that I have left the company in their very capable hands.”

Crawford is equally happy that the change in ownership has not unfavorably impacted the firm’s 4X Trading Member status bestowed on the company 32 years ago by The Blue Book.  Crawford and Horder told WG&S that the new ownership has been operating the firm in the same manner as Crawford did all those years so it was able to keep the rating.  Crawford is also glad the company will continue with the strong moral ethics that it was built upon from the very start.

“It has been a seamless transition,” said Horder.  “Nothing has changed.  We are operating it exactly as it was before.”  The management team still appreciates input from Crawford on a regular basis.

The Harold Crawford Company maintains its headquarters office in Bakersfield, which is also the same home base for Harvest Crown.  In addition, the company has eight satellite offices stretching from Miami in the Southeast to Yakima in the Northwest and many points in between.

Crawford has been a member of Western Growers for 37 years and he said the connection was extremely helpful in the building of his business.  From transportation to PACA representation, he used many WG’s services along the way to his advantage. As Crawford looks back on his seven decades in the business, he credits his faith in God with helping him traverse the many challenges and changes that he faced over the years.

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2015 WG ANNUAL MEETING: Top Chef Shirley Finds Passion in Cooking

September 1st, 2015

Chef Shirley Chung, who is the chef owner of Twenty Eight Modern Chinese Cuisine restaurant in Irvine, Calif., and will be a featured presenter at the Western Growers Annual Meeting in San Diego, did not discover her passion for the culinary arts until her late 20s.  In fact, her restaurant name pays homage to the age she was when she began to pursue her dream.

Born and raised in Beijing, China, Chef Shirley, as she is called, came to the United States at age 17, graduated from college with a business degree and began working in Silicon Valley in the business world.

“But in my late 20s, I decided I wanted to become a chef,” she said.

After being trained in both French and Italian cuisine, she started her cooking career in Napa Valley under Thomas Keller at The French Laundry.  She has since worked and opened restaurants for renowned chefs such as Keller, Guy Savoy, Jose Andres and Mario Batali.  In fact, she open Keller’s Boudin restaurant in Las Vegas about five years ago.  She was a finalist for season 11 Top Chef New Orleans and Top Chef Duel.  Before Top Chef, she was the executive chef for China Poblano.  Under her guidance, China Poblano was nominated for the Best New Restaurant Award by James Beard in 2011.

Initially, her goal in the culinary world was to be a corporate chef, running a restaurant group.  Last year she opened Twenty Eight Restaurant as the first operation she can call her own.  Right now she is focusing on Twenty Eight, but admits to building a plan that can be duplicated.  She calls her style “modern American cuisine with a Chinese soul” and said it is very heavily oriented toward vegetables.  “I love vegetables so much,” she told WG&S.  “They are sexier than protein.  There are so many textures and varieties and so versatile.”

She likes to use fresh produce concentrating on its seasonal aspect, noting that there is no seasonal component for protein.  Growing up in Beijing, Chef Shirley said vegetables were always a very important part of the meal, and she features several vegan dishes on her Twenty Eight menu.  She has not yet determined which vegetables she will play with at the WG Annual Meeting but said the timing offers many options.  “November is unique.  We have a whole lot of vegetables we can choose from, especially in California.  Summer vegetables will still be growing strong and the winter vegetables will have started.”

She is sure to dazzle the crowd with the skills she has developed over the last decade of rubbing shoulders with the best chefs in America.

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2015 WG ANNUAL MEETING: Varney Sees Huge Economic Growth on the U.S. Horizon

September 1st, 2015

Admittedly going against the grain a bit, Fox business commentator and show host Stuart Varney expects to see a dramatic jump in the America economy over the next several years.

“I think we are about to see four to five percent growth on an annual basis,” he told WG&S magazine in mid-August.  “We are going to see a change in policy as the Obama (economic) model is cast aside and a more Reaganite philosophy is adopted with smaller government and lower tax rates.”

The host of the “Varney & Co.” show that airs every weekday from 9 a.m. to noon (Eastern time) on the Fox Business Network predicates his belief on the Republicans winning the White House in the November 2016 election.  He is confident that will happen and believes the stock market will rally in 2016 in anticipation of that election result.

He said the world economy is not in good shape with Europe and Japan still in recession and China headed in that direction.  “The world economy is depending on us.  America has to be the engine for growth.”

Varney said it makes no difference which Republican wins the nomination and eventually the White House, as each of them has a plan for economic growth that is far better than the doldrums he believes we are currently in.  Specifically, he expects the elimination or significant reduction in taxes on foreign profits by American corporations will drive the economic growth that he is forecasting.  He said American companies have billions of dollars in profits parked overseas waiting to be re-invested in the United States.  When the tax rates on these profits are reduced or eliminated, he believes a significant portion of that money will come home and spur our economy.

Varney told WG&S that his nearly 40-year career as an economic journalist got started quite by chance.  After graduating from the London School of Economics, the British-born Varney decided to see the world.  “For four years, I hitchhiked around the world ending up in Hong Kong.  By pure chance I got my first job in the media.  I then came to San Francisco and by pure chance got a job on one of the first business shows on an American station.”

Soon thereafter he joined CNN as a business reporter, where he stayed for many years.  In 2001, he left CNN to host CNBC’s “Wall Street Journal Editorial Board with Stuart Varney.”  In 2004, he joined Fox News as a business reporter and has appeared on many different shows besides his own.

While he was not willing to specifically discuss the ag economy—noting that it was not his expertise—Varney did reveal that he does own a farm, which he called his pride and joy.  “I am a farmer.  I am a tree farmer in the Catskills (New York) where I have a thousand acres of hardwood timber.”

A dozen years ago, he purchased the land as a getaway from his home in New York City.  “Soon people began asking if they could harvest our trees.”

Varney discovered he had a good mix of high end furniture wood including Black Cherry and Red Oak trees.  He hired a farm manager and seriously began his farming venture.  Some of these trees need to mature 60 to 70 years before they are ready for harvest so this is certainly a long-range project.  Varney said the land is divided into “stands” with Stand 9 ready for harvest this fall.  Each year, he noted that only one to two percent of the trees are harvested in a very selective operation.  “These are high value trees that are very valuable.  We can get $4,000 to $5,000 for one tree.”

Varney will be the featured speaker at the Political Action Committee lunch, which will be held on Monday, Nov. 9, during Western Growers 90th Annual Meeting at the Grand Del Mar in San Diego.

 

Varney’s Annual Meeting Topic

Plain Talk on the Economy

 

“The 21st Century began with America as the role-model for the world.  If you want vigorous growth, low unemployment and consistent gains in prosperity, America’s stake-holder society is the way to go.  And demographic trends, along with our dynamic entrepreneurial culture, suggest America will stay out in front.”

Posted in September 2015 Issue | Comments Closed

California Assembly Member Autumn Burke represents the 62nd District, a largely coastal swath of Los Angeles County

September 1st, 2015

(Editor’s Note: The answers and questions have been paraphrased for brevity and clarity.)

 

Autumn Burke was elected to the California Assembly as a freshman in 2014, which made her part of the first mother-daughter team to ever serve as California legislators.  Her mother, Yvonne Brathwaite Burke, had a distinguished career as a Los Angeles County supervisor, California Assembly member and U.S. Congresswoman.  In 1973, when Autumn was born to Rep. Burke, she became the first child ever born to a sitting female member of Congress.

 

You grew up in a well-known political family with a different childhood than most.  Did it seem extraordinary?

When I was born, my mother was in Congress, so I started out my life traveling back and forth from Washington, D.C.  Sure, that was different, but for me it was normal.  It’s what I knew.

After she left Congress, we did settle in Los Angeles and that is where I grew up and went to school.

 

I noticed that you graduated from college with a degree in Theater Arts.  Was it your plan early on to become an actress?

I started out in college as an anthropology major, but when I discovered I had to go to New Guinea to pursue that career, I switched to theater arts.  I was always interested in the theater and my godmother is a very accomplished actress (Cicely Tyson).  I was interested in the idea of acting and I was good at it.  But I was pretty cerebral and I had lots of other interests.

I began my career in the events business working eight years with the Los Angeles marathon and also worked with the group that put together a NASCAR race in Los Angeles.  From there I worked in real estate as a wholesale lender bundling mortgages.  After that I opened up a consulting business which was involved in small business development.

 

What made you look at the political arena as a potential career?

In my consulting business, I started doing work for a client involving AB 217, which authorizes funding for the use of solar in low-income neighborhoods.  As I looked into it and got more involved in that issue, it became clear to me that the kind of work that could be done as an assembly member interested me.  That was about three years ago and I decided to run for the seat, and I was elected.

 

Did you come into office with any pet issues that you wanted to pursue?

I did.  One of my biggest concerns revolves around education and job training.  Seventy percent of the population of young people will never see the inside of a four-year university.  I have been working with Sen. (Mike) McGuire on SB 148 (The Career and Job Skills Education Act) which allocates $900 million for technical job training that gives these people who are not going to a four-year college a clear path to a career.  The money will be allocated based on the community you are in, so if you are in a district with a Tesla plant, there could be access to education for jobs that prepare you for work in that environment…maybe they need welders.  If you are in an agricultural community, money will be allocated that trains you for a technical job in the agricultural field, which is becoming much more technical.  The goal is to champion job growth for those people not getting a four-year degree.

Another important issue for me is giving low-income people greater access to alternative fuel vehicles.  The western part of my district is very wealthy while the eastern part is very challenged.  I would like to see people in lower income areas have access to some of the greener technology that is available to higher income people.

I am a sponsor of AB 1393, which will help small businesses and individuals afford cleaner vehicles and various green energy investments by providing financial assistance through the Treasurer’s California Pollution Control Financing Authority.  We are looking at ideas such as mitigating the liability when a lender loans to a low income individual who may not have a great credit rating.

 

You have been serving in the Assembly for about seven months now—any surprises?  Is it as contentious as we read about?

I came in to the Assembly with my eyes fairly wide open, so I would not say there have been a lot of surprises.  I was elected at a very good time with a very good freshmen class.  It is less contentious than you think.  The freshmen are especially working very well together and across the aisle.

Maybe the only surprise would be how much “large politics” still plays a role.  I sponsored a very good midwife bill but two giants fought each other over it and it was derailed.  I guess I was a bit surprised how that happened.

 

You have no agriculture in your district, but that is, of course, a very important industry in the state.  Have you had the opportunity to work with the ag industry?

I am very appreciative of the opportunity I have had to learn about agriculture and how incredibly important it is to the economy of our state.  I have sat down with members in the Assembly who represent agricultural districts and have learned about how highly technical agriculture is becoming.  I believe the agricultural industry can benefit from our Job Skills bill that can help train agricultural workers for some of the technical jobs in that industry.

I am in an urban area, but I do know how important agriculture is to California.

 

Agriculture has a couple of issues that are very important to it, most notably the water situation.  Do you believe the Legislature is poised to act to help the state work through its water supply issues?

The Legislature is very aware of the water situation.  It is a definite problem and we are discussing it.  Right now, the water bond is still in the process of being implemented and that is currently how we are dealing with the situation.  As a body we do understand the importance of water to California and it is top of mind.

 

Our members produce some of the finest fresh fruits, vegetables and nuts in the world.  Are you a consumer of our products and what are your favorites?

I absolutely love almonds.  I haven’t always been a big fruit eater, but I definitely understand the need to eat healthier and I have been trying to do that.  I know we need to cut out the French fries and eat more fruits and vegetables.  I’m not really a good cook as I don’t like to take the time that it needs.  But I do like to eat.

 

 

Posted in September 2015 Issue | Comments Closed

Produce Industry Webinar Series on FSMA Final Regulations Begins October 2

September 17th, 2015

With the publication of FDA’s final Food Safety Modernization Act (FSMA) rule for Preventive Controls for Human Food and Animal Feed, the produce industry has come together to provide a FREE series of webinars to help industry members understand the final rules and implications for their businesses.

FDA’s final FSMA regulations will have a significant impact on how the produce industry does business. The first two major FSMA regulations, Preventive Controls for Human Food and Animal Feed, have recently been published and five other major FSMA final regulations are anticipated in the coming months. Understanding which businesses are covered by these regulations and how the provisions of each regulation applies to your specific operation is the first step in being prepared to be compliant with these new regulations. 

In an effort to ensure industry members are well informed and have an opportunity to ask questions directly of FDA about these new regulations, we are inviting you to participate in these webinars. 

The first webinar is on Friday, October 2, 2015, at 1p.m. EDT / 10 a.m. PDT and focuses on “Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food.”

Please click here to register for this webinar or contact Hank Giclas for more information at (949) 885-2205.

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NASA Workshop Highlights Use of Satellite Data in Irrigation Management

September 17th, 2015

This week, the NASA Applied Sciences Program and The World Bank co-sponsored an international workshop on Evapotranspiration Mapping for Water Security in Washington, D.C.. WGs’ Sonia Salas was invited to participate in the workshop and shared her perspectives on the current and potential use of ET in irrigation management. Evapotranspiration (ET) is the sum of evaporation from the land surface plus transpiration from plants and is the primary consumer of fresh water. It can be a great tool to determine when and how much to irrigate.

The workshop was designed to inform participants of ET applications, NASA activities over the next decade and to strengthen partnerships with users of satellite data applications. Bradley Doorn, manager of the NASA Applied Sciences Program, emphasized the importance of getting users involved in the development of applications from the earliest stages of development. He acknowledged the importance of communicating with different stakeholders, building capacity and enhancing coordination to boost the use of NASA processing capabilities and ET data applications in agriculture.

The workshop was recorded. The recordings are expected to be made available within the week. For more information, please contact Sonia Salas at (949) 885-2251.

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NLRB Adopts New Expansive Joint Employer Test

September 1st, 2015

Last week, the National Labor Relations Board (Board) issued its decision in a long-awaited case on the issue of joint-employer status under the National Labor Relations Act (NLRA). In a 3-2 decision, the Board in Browning-Ferris announced an expansive new standard for determining which companies are “joint employers” of workers paid by labor contractor and franchisees.

Under the Board’s longstanding test for joint-employer status, employers had been deemed responsible only if they had direct control over working conditions. However the old standard is “increasingly out of step with changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships,” the Board ruled. As a result, the Board frequently found no joint employer relationship where the contracting company exerted limited and routine control.

The Board split along partisan lines, rejecting the test that had been in place for 30 years, and instead instituted a broader, less predictable standard. The new standard increases the likelihood of a joint-employer finding, making contracting companies liable for labor law violations committed by third party contractors. Additionally, those companies could now be forced to negotiate wages and benefits with their workers.

Applying the new standard, the Board found that Browning-Ferris was the joint-employer of a group of housekeepers and other workers assigned to work at its facility by a staffing agency, even though Browning-Ferris never actually exercised its authority to control the terms and conditions of the workers’ employment. The Board found a number of facts to be determinative, including:

  1. the contract between Browning-Ferris and its staffing agency required the staffing agency to  staff only employees who met Browning-Ferris’s standard selection procedures and tests;
  2. the contract retained for Browning-Ferris the right to reject any worker;
  3. Browning-Ferris’ supervisors controlled the pace of work by setting production standards and providing directions to the staffing agency’s managers;
  4. the contract prevents the staffing agency from paying its employees more than what Browning-Ferris employees made performing comparable work; and
  5. Browning-Ferris specifies the number of workers that it requires, the timing of shifts and the necessity of overtime work.

Thus, even though Browning-Ferris did not directly dictate the bargaining unit employees’ terms and conditions of employment, the Board nevertheless found joint-employer status because Browning-Ferris indirectly “codetermined” the wages, hours and other conditions of employment for those employees.

According to Western Growers Vice President and General Counsel Jason Resnick, while the decision has no direct impact on laws over which the NLRB does not have jurisdiction, the decision may have ramifications for both unionized and non-unionized employers.

“Browning-Ferris dramatically expands the scope and circumstances upon which a company using staffing agencies can be found liable as joint-employers,” Resnick said. “The new standard is likely to have significance beyond traditional labor law. For example, it would not be surprising if the Department of Labor seizes upon the NLRB’s expanded view of joint employer and begins filing wage and hour claims against companies that use labor contractors and staffing agencies.” Resnick said.

Resnick recommends that companies using third party labor firms to supplement their own staffing needs, including many packinghouse and processing facilities, to examine those contractual relationships and consult with employment law counsel to assess what changes may be made to those agreements to reduce the risk of joint employer liability under the NLRB’s expanded definition.

For more information, contact Jason Resnick at (949) 885-2253.

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Over $22 M Recovered in “Containerboard” Antitrust Class Action Cases

September 1st, 2015

Western Growers’ members that directly purchased linerboard, corrugated boxes and other corrugated containers and materials (“Containerboard Products”) from some of the world’s leading containerboard product manufacturers from 2004 through 2010, stand to share in millions of dollars in antitrust class action settlements collected to date. To participate in the settlement, you must submit a claim once the claims process begins. To assist you, Western Growers has engaged Financial Recovery Strategies (FRS), a leading asset recovery and cost reduction firm, as WG’s exclusive class action settlement claim consultant. WG negotiated a substantial discount for our members for FRS’s class action claims recovery services on the Containerboard case and other class action litigations. Services are done on a contingency fee basis; if no recovery is made, no fees are charged, and FRS covers all expenses.

The Containerboard class action began in 2010 when a lawsuit was filed in a Federal District Court in Illinois alleging that Packaging Corporation of America (“PCA”); International Paper; Cascades Canada, ULC and Norampac Holdings U.S. Inc.; Weyerhaeuser Company; Georgia Pacific LLC; Temple-Inland Inc.; TIN Inc.; and RockTenn CP, LLC (formerly Smurfit-Stone Container Corporation) (collectively, “Defendants”) conspired to illegally set prices of Containerboard Products sold in the United States. So far that class has reached agreements totaling $22.4 million to settle the claims against PCA and Norampac. The Court has granted final approval for these settlements; the litigation is ongoing against the remaining Defendants. It is possible that additional funds may become available to the class as the result of a trial or future settlements. Companies that purchased Containerboard Products directly from one of the Defendants are eligible to participate in the recovery of settlement payments.

Please review and sign FRS’ one-page Authorization Agreement to file and manage your Containerboard claim and/or other class action claims and to have FRS monitor this and other cases to keep you advised of relevant developments.

FRS is not a court-appointed claims administrator or class counsel. Claimants may choose to file claims on their own and not hire FRS to participate in the monetary relief provided by any settlement. Western Growers and FRS believe, however, that there are services that FRS provides that may increase recoveries and that are unlikely to be provided by a claims administrator or by class counsel. For more information about FRS and the services it provides, please visit www.FRSco.com, or call either Steve Rimpici, FRS’s vice president of sales, at (201)853-1236.

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Join Central Valley Farmers and Families at a Rally to “Take Back Our Water”

September 17th, 2015

The following is an invitation issued by the California Water for Food and People Movement, My Job Depends on Ag, and Assemblyman Jim Patterson about a water rally occurring on October 2 in Mendota, California:

Please join The California Water for Food and People Movement, My Job Depends on Ag, and Assemblyman Jim Patterson, at a rally in support of farmers and families who want to send a message to Sacramento and Washington D.C. that our voices must be heard.

The fight for more dam storage and the decisions that put fish over families will be discussed as we amass numbers that cannot be ignored in preparation for a march on Sacramento in January, 2016.

When: Friday, October 2 at 11:00 am
Where: Rojas-Pierce Park, Mendota, CA
RSVP: Call 559-446-2029 or email [email protected]

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Poll – Arizonans’ Approve of Ag’s Use of Water

September 17th, 2015

The Arizona Agriculture Water Summit, an event that brought together over 60 representatives from the farming, ranching and agriculture industry, wrapped up today in Glendale, Arizona. Several staff members from Western Growers participated in the event, the purpose of which was threefold: 1) to provide a forum for conversation about agricultural water users in Arizona; 2) to present the outcome of research and polls conducted on attitudes of Arizona voters on water issues; and 3) to spark future dialogue and coalition building.

During the event, Public Opinion Strategies presented the results of a poll that was conducted among 600 likely Arizona voters. The results show that “Arizona voters clearly understand the relationship between water, food and the farm and ranch families who produce it,” with two-thirds of Arizona voters approving how Arizona farm and ranch families are managing the water resources they use to grow food.

Other findings show:

  • 85 percent of Arizona’s voters are concerned about the availability of water for Arizona’s farms and ranches. Only 14 percent are not concerned.    
  • When survey respondents were presented with solutions to these concerns, they selected “Spending more tax dollars to build water storage dams and pipelines” by a 73 to 23 percent margin.
  • Moving water from Arizona’s farms and ranches is opposed by 63 percent of Arizona’s voters and only supported by 27 percent.

For more information, contact WGs’ AnnaMarie Knorr at (602) 266-6149.

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Appeals Court Ruling Emphasizes Prompt Sexual Harassment Investigations Reduce Liability

September 1st, 2015

A Tennessee Court of Appeals’ ruling emphasizes employers can reduce their liability in sexual harassment lawsuits if they conduct a prompt and reasonable investigation into the allegations. In an opinion issued on July 30, 2015, the Court granted a summary judgment in favor of the defendant in a case where an employee brought suit against the company for sexual harassment and creating a hostile work environment. 

According to a story in the Mondaq Business Briefing, “the Court commended PFG (the employer) on immediately initiating an investigation and placing restrictions on Pearson’s (alleged harasser) contact with Brazemore (plaintiff), which showed that PFG did not knowingly permit intolerable conditions. Further, the “preventative measures” PFG had in place made the constructive discharge claim weaker. These preventative measures included providing employees with the anti-harassment policy at the beginning of employment, required online training on sexual harassment annually, and the sexual harassment policy’s requirement of employees to immediately inform the employer of any conduct believed to constitute harassment.”

For more information on the details of this case, refer to Mondaq’s piece HERE.

Besides highlighting the importance of taking immediate action on allegations such as this, the case also illustrates the importance for supervisors and HR professionals to be properly trained. Western Growers offers training for our members. Our next training will be held in El Centro/Imperial on October 22, 2015 with additional trainings taking place in Santa Maria and Tulare in 2016. Watch for important announcements and registration information on these workshops in upcoming Spotlight editions.   

For more information on our trainings, contact Adriana Robles at (949) 885-2297.

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