California Employers Now Required to Submit OSHA 300A Electronically to Fed-OSHA

May 15th, 2018

In January 2017, federal OSHA implemented a requirement that all employers in states regulated by Fed-OSHA participate in an annual electronic filing process to better track injury and illness data. Initially, employers in states (like California) who participated in a state-sponsored OSHA plan in lieu of Fed-OSHA were indicated to be exempt from the filing requirement unless the individual state adopted the requirement. However, on April 30, 2018, the U.S. DOL issued an OSHA Trade Release amending the requirement to extend to all states, including those who subscribe to a state-sponsored OSHA plan.

Affected California employers are advised to submit their 2017 Cal/OSHA 300A data through the Fed-OSHA portal by the July 1, 2018, deadline. Updates regarding the 300A reporting requirements can be found here. The classes of business who must comply with the electronic reporting process include:

  1. Any business with at least 250 employees.
  2. Any business with 20 to 249 employees who falls into one of several classifications including agriculture. (A complete list of the affected classifications can be found here.)

For instructions regarding the electronic filing process, please see federal OSHA’s ITA website.

Western Growers Insurance Services is also here to help. We offer one-stop access to insurance products, guidance and resources to help you identify and mitigate risk, provide a more competitive benefits program and navigate the continuously evolving insurance market. If you need a safety consultation, worksite assessment or staff safety training, please contact Ken Cooper, WGIS Director of Risk Strategy, at [email protected] or (949) 379-3858.

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Immigration, Trade and Farm Bill Hot Topics during D.C. Board Meeting

May 18th, 2018

Western Growers’ Board of Directors met with nearly 30 key legislative representatives and regulatory officials in Washington, D.C., this week to vocalize the need for immigration reform and hear updates about U.S. trade actions and the farm bill renewal. The Board spent Tuesday speaking with members of the Senate, while Wednesday was dedicated to having discussions with House representatives. 

“It was fortuitous that we came at a time when issues of great importance to WG members were being voted on, such as the farm bill,” said Tom Nassif, WG president and CEO. “The face-to-face candid conversations with legislators and regulators were insightful.”

Throughout the meetings, WG members urged legislative representatives to put forth a solution that would help secure a reliable workforce for the fresh produce industry. Specific examples of how the lack of labor and water and the continual increase in regulations are detrimentally affecting WG members’ ability to produce the fruits and vegetables for the nation and world were described to each legislator. WG members also inquired about the status of NAFTA and current trade discussions with China.

The farm bill was at the forefront of most of the discussions in the House, as it is slated to be voted upon this week. WG members stressed the importance of including more funding for more research and development programs since it is not currently a priority in the farm bill as written.

“Despite the fact that all legislators are keenly aware of our issues and concern, there is still a high degree of uncertainty surrounding our issues and nothing is getting done,” said Craig Reade, chairman of WG and partner at Bonipak Produce.

Separately, a small group of WG members and staff traveled to the Federal Motor Carrier Safety Administration to receive clarification on exemptions and special rules as they relate to the electronic logging device and discuss how this new regulation can work for fresh produce growers.

Additionally, some WG members were joined by the Arizona and California Leafy Greens Marketing Agreement, Produce Marketing Association and United Fresh Produce Association to speak with the U.S. Food and Drug Administration (FDA) about the recent romaine outbreak. FDA provided the group with an update on the outbreak, and collectively, the five produce organizations decided to launch a task force to look into new ways to strengthen preventative controls.

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Produce Research Symposium to Highlight Ag Water Safety

May 22nd, 2018

Western Growers’ members are invited to learn about the latest produce food safety research findings during the 2018 Center for Produce Safety (CPS) Symposium on June 19 – 20 in Charlotte, North Carolina.

Produce industry leaders, government officials and food safety research scientists will gather to learn about topics such as irrigation water advancements; identifying surrogates for human pathogens that can be used to validate the efficacy of preventive controls; implementing science-based preventive controls that minimize contamination risks; and more.

Additionally, there will be Lightening Sessions where CPS will preview research programs that are in their initial stage of development. Leading investigators will speak about research objectives, preliminary findings and where the research is headed next. Click here for full program details.

Western Growers is a proud platinum sponsor of the symposium.

EVENT DETAILS

2018 CPS Research Symposium

Date: 06/19/2018 ‐ 06/20/2018

Location: Charlotte Marriott City Center (100 West Trade Street, Charlotte, North Carolina)

Cost:

  • Industry: $625
  • Academia: $575
  • Government: $575

RSVP: Click here to register.

For more information or to register, visit the 2018 CPS Research Symposium website.

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Wildfire and Hurricane Indemnity Program Helps Producers Recover Who Were Hit Hard by 2017 Natural Disasters

May 8th, 2018

Some of the most significant natural disasters took place in 2017 during times that were crucial for farming production. The 2017 Wildfire and Hurricanes Indemnity Program (WHIP) will provide extra help to growers hit hardest during hurricane Harvey, Irma and Maria or any of the major wildfires over the year. The new U.S. Department of Agriculture disaster program will utilize $2.36 billion that Congress appropriated through the Bipartisan Budget Act of 2018 to help agricultural operations in at least nine states.

Here are the eligibility requirements:

  • Eligible Producers – Eligibility will be determined on an individual basis, using the level of insurance coverage purchased for 2017 for the total crop acres on the area for which the WHIP application is made. Eligible producers who certify to an average adjusted gross income of at least 75 percent derived from farming or ranching, including other agriculture and forestry-based businesses during the tax years 2013, 2014 and 2015, will be eligible for a $900,000 payment limitation with verification. All other eligible producers requesting 2017 WHIP benefits will be subject to a $125,000 payment limitation.
  • Hurricane Recovery – A crop, tree, bush or vine must be located in a primary disaster county with either a Presidential declaration or a Secretarial designation due to a 2017 hurricane. Crops, trees, bushes or vines located in other counties may also be eligible if the producer provides documentation the loss was caused by a 2017 hurricane.
  • Wildfire Recovery – Any crop, tree, bush or vine damaged by a 2017 wildfire is eligible.
  • Acreage Reporting – For the applicable crop years, all producers are required to file an acreage report and report production (if applicable).
  • Crop Insurance – Both insured and uninsured growers are eligible to apply for WHIP. However, all producers opting to receive 2017 WHIP payments will be required to purchase crop insurance at the 60 percent coverage level, or Noninsured Crop Disaster Assistance Program at the 60 percent buy up coverage level if crop insurance is not available. Coverage must be in place for the next two applicable crop years to meet program requirements.

If you need to enroll in crop insurance, please contact Western Growers Insurance Services’ Gretchen Rooney-Adan at (530) 305-7800 immediately. The sign-up period for the 2017 WHIP program will only be available through July 16, 2018. Additional information on WHIP is available on FSA’s 2017 WHIP webpage.

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CA Water Commission Moves Closer Toward Awarding Prop 1 Water Storage Funding

May 8th, 2018

The California Water Commission last week reviewed and finalized determinations of eligibility among 11 water storage projects competing for $2.7 billion in bond funds authorized by voters in 2014.

WG submitted comments in August 2017 to the Commission in support of both the Sites Reservoir and Temperance Flat Reservoir projects and testified in support of these projects during the Commission’s meetings last week. Sites Reservoir, an off-stream facility that would store excess flows from the Sacramento River north of the Delta, would add up to 1.8 million acre feet of capacity, while Temperance Flat Reservoir, which would be located on the San Joaquin River, would create an additional 1.26 million acre feet of water storage.

The commissioners ultimately determined that the Sites project is eligible for $1 billion in bond money; the project’s proponents had applied for nearly $1.4 billion. Temperance Flat was deemed eligible for only $171 million, far short of the proponents’ application for just over $1 billion. Two other projects – expansion of Los Vaqueros Reservoir in the East Bay area and expansion of the Pacheco Reservoir in Santa Clara County – were deemed eligible for 100 percent of the proponents’ applications ($459 million and $484.5 million respectively).

Commissioners clearly struggled with the staff analysis of the Temperance Flat application, particularly a Department of Fish and Wildlife (DFW) finding that the application failed to demonstrate that the project would provide increased cold water benefits for spring run Chinook salmon. The bond act (passed as Proposition 1 in 2014) requires that ecosystem improvements for the Sacramento-San Joaquin Delta constitute at least half of a storage project’s public benefits, and the DFW’s position severely undercut the project’s viability. Despite discomfort among several commissioners, the staff recommendation was approved. Click here to view public benefits and eligible funding amounts for all applicants.

The Commission will release recommendations on May 25 for the remaining component scores: relative environmental value, resiliency and implementation risk. They will make final decisions on those scores at the commission’s June 27-29 meeting, and preliminary award decisions will be made in July.

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Western Growers Serves as Tech Sponsor for 2018 Organic Grower Summit

May 8th, 2018

For the second year in a row, Western Growers will serve as the Ag Technology Sponsor for the Organic Grower Summit (OGS). As the tech sponsor, WG will be hosting “Tech Alley” where budding entrepreneurs will line the exhibit hall and demonstrate their cutting-edge technologies that will significantly help farmers reduce issues faced on the farm.

“Following the success of our involvement in last year’s OGS, Western Growers is excited to again participate as the Ag Technology sponsor of this event bringing together various facets of organic growing and production. Our involvement in this visionary event reaffirms our commitment to driving innovation across all segments of the fresh produce industry,” said Matt McInerney, senior executive vice president for Western Growers, in a press release.

The Organic Grower Summit, which was launched last year, brings together organic growers, producers and processors for two days of education, information and networking opportunities with the organic production supply chain and service providers. The event also includes a series of educational sessions, keynote presentations, variety of meal functions and a trade show floor. To learn more about WG’s participation in the 2017 OGS, read “ORGANIC GROWER SUMMIT: First-time Event Draws Enthusiastic Crowd” in a recent edition of WG&S Magazine.

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What is Considered Timely Notice for an Effective Rejection?

May 9th, 2018

There needs to be timely notification in order to have an effective rejection by your customer, the receiver.  While, you as the shipper, may have an obligation to take back the shipment, keep in mind that if it is later determined the rejection was wrongful, your customer could be held liable for the original contract price and incidental expenses, less any resale proceeds received by you.

So is timely notification an important component in achieving an effective rejection?

  • For an effective rejection, the receiver must give notice within a reasonable time. For truck shipments this means 8 hours after your customer is given notice of arrival and produce is made accessible for inspection.

There are some exceptions to the 8 hour rule, those being, when the shipment arrives after business hours, including non-work days or when an inspector is not available. In the situation where the shipment arrives after hours or a non-work day, the non-working hours are not included in calculating the 8 hours.  If an inspector is not available, the 8 hour period is extended until the inspection is made, plus 2 hours after the report is made available to your customer.

Your customer, however, is not relieved from the responsibility of giving you notification.  Your customer must inform you during the initial 8 hour time period after arrival that:   

  • The load arrived with a problem
  • An inspection has been requested
  • Your customer intends to reject the shipment as soon as an inspection can be made, depending on the inspection results

Failing to notify you of any problems until after the inspection is completed, and following the expiration of the initial 8 hours, a subsequent rejection by your customer would be procedurally ineffective, and as such, your customer is deemed to have accepted the commodity.

As stated in the beginning, however, regardless whether you, as the shipper, has breached the contract of sale, you have a positive duty to take back the rejected goods where there is an effective rejection.

Although an effective rejection may have been established, based on timely notification, it does not necessarily make it a rightful rejection. So in the next blog we will go into more detail on handling a rejection.

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WG’s Kawamura, Donohue to Speak on Ag High-Tech Revolution

May 10th, 2018

Western Growers’ A.G. Kawamura and Dennis Donohue will join California Department of Food and Agriculture (CDFA) Secretary Karen Ross for a discussion on the high-tech revolution in agriculture during “The Power of AgTech: Disruption on the Farm” Luncheon on May 22. Kawamura, former CDFA secretary, is owner of Orange County Produce and a member of WG Board of Directors, and Dennis Donohue, former Mayor of Salinas, serves as the lead of Western Growers Center for Innovation & Technology.

In an effort to spread the importance of agricultural technology, Western Growers has partnered with the Silicon Valley Business Journal to help host this luncheon. California’s agricultural industry is currently experiencing its own high-tech revolution—everything from using software to help with planting and cultivating to launching drones to aid with soil analysis.

During the event, which will be moderated by Donohue, Ross and Kawamura will offer an overview of the latest agtech developments and the impact technology with have on the future of farming.

EVENT INFORMATION

“The Power of AgTech: Disruption on the Farm” Luncheon

Date: Tuesday, May 22, 2018

Time: 11:30 AM – 1:30 PM

Location: Morgan Hill Community & Cultural Center (17000 Monterey Road, Morgan Hill, CA 95037)

Price: $60/ticket. Cost includes lunch.

RSVP: Click here to register

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Innovation that Grows Healthier Plants Discussed During May 22 Tech Talk

May 11th, 2018

Join us on May 22, 2018, for a Tech Talk that will showcase a new type of environmentally-friendly organic fertilizer that dramatically improves plant vitality. Grower’s Secret, an agtech company working out of Western Growers Center for Innovation & Technology, will share how their plant growth energizer products result in bigger and healthier plants; improve resistance to pests and disease; reduce crop cycles; and increase the shelf life of fruits and vegetables.

Grower’s Secret manufactures and distributes organic fertilizers for organic growers and farmers. During the Tech Talk, the Grower’s Secret team will share how its organic plant growth enhancer—which is patented in nearly 160 countries— can increase uptake efficiency and optimize crop performance. The team will also speak about four other products offered that help plants grow quickly; increase seed and fruit production; and improve plant quality and appearance.

For more information about Grower’s Secret, visit their website and join us for the Tech Talk on Tuesday, May 22, 2018 at 3pm PST.

EVENT INFORMATION

Grower’s Secret Tech Talk®

Date: Tuesday, May 22, 2018

Time: 3:00 PM – 4:00 PM PST

Location: Online or in-person.

Online: You will be emailed a link when you register.

In-person: Western Growers Center for Innovation & Technology (150 Main Street, Suite 130, Salinas, CA 93901)

RSVP: To attend, please register here.

Tech Talks, which are offered at no cost, are hosted by the Center to introduce WG members and the community to the latest innovations. Share your thoughts about Tech Talk or agtech on Twitter with @WG_CIT or join the conversation: #agtech. 

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Mitigating Damages on a Wrongful Rejection

May 23rd, 2018

In the last blog (What is Considered Timely Notice for an Effective Rejection?) as indicated by the title, we discussed what constitutes a proper, timely and effective rejection by your customer.  Unfortunately, your customer may not always follow the PACA guidelines when it comes to rejecting a shipment.

So while you, as the shipper, have a positive duty to take back rejected goods if, as explained in the previous blog, an effective rejection is made, there are times, no doubt, that a receiver will reject a shipment even though he or she may not be able to establish that a breach of contract has occurred.

In this scenario, without merit, your customer (the buyer) is rejecting a load of produce – what should you do?  You, as the shipper, have an obligation to minimize the overall loss by arranging to conditionally move the shipment, and have it promptly sold for the account of whom it may concern.  Since there is a dispute about contract compliance at destination, you need to immediately place your buyer on notice that the rejection is unwarranted, and that by moving the shipment you are not accepting the buyer’s ineffective rejection.  Further, advise your buyer that the shipment is being moved and sold for your buyer’s account in order to mitigate damages, with all losses from the original sale becoming the responsibility of that buyer.  It is imperative that you act promptly on protecting the load to mitigate damages.  There will be ample time after the produce is sold for you to manage (argue) the claim for this being an improper rejection.  At the time of the disputed rejection you should always strive to take the emotion from the immediate situation and do what is right in a stressful situation.

We have commented in the past about PACA precedent decisions and there are many historical decisions that place a responsibility on the seller to mitigate damages.  So, while becoming engaged in the disposition may seem unfair, it is part of the obligation so you do not contribute to the overall loss by simply turning the rejected load over to a trucker, which is never a good idea.  Always control the situation to finalization.

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Federal Motor Carrier Safety Administration Agricultural Exception Guidance on ELD Utilization

May 31st, 2018

The Federal Motor Carrier Safety Administration (FMCSA) has issued regulatory guidance today to clarify the applicability of the “Agricultural Commodity” exception with the “Hours of Service of Drivers.”

The guidance clarifies the exception with regard to:

  • Drivers operating unladen vehicles traveling either to pick up an agricultural commodity or returning from a delivery point to original origin.
  • Drivers engaged in trips beyond 150 air-mile from the source of the agricultural commodity.
  • Determining the “source” of agricultural commodities under the exemptions.
  • How the exception applies when agricultural commodities are loaded at multiple sources during a trip.

The FMCSA now states that the agricultural exception should apply to all portions of a round trip involving agricultural commodities that occur within the 150 air-mile radius of the source, regardless if loaded or empty or whether the destinations is outside the allotted radius.

The FMCSA now states that the “source” of an agricultural commodity includes more than just the original location at the farm or field. The FMCSA recognizes that further regulatory guidance may be necessary as the industry and enforcement communities adjust to these clarifications. The pick-up location may be any intermediate storage or handling location away from the original source at the farm or field provided the commodity retains its original form and is not significantly changed by any processing or packing.

Regarding multiple pick-up points, the FMCSA states that while multi pick-ups are permissible, the 150 air-mile radius will continue to be measured from the first pick up.

Click here to read the complete guidance issued by FMCSA.

For questions, please contact Ken Gilliland at (949) 885-2267 or Matt McInerney at (949) 885-2263.

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Seven Workshops Left to Help Growers Meet FSMA Training Requirements

May 8th, 2018

This month, Western Growers and AgSafe will be hosting the last of their produce safety workshops to assist California growers in meeting the training requirements under the U.S. Food & Drug Administration (FDA) produce safety regulation.

The FDA’s produce rule requires companies to employ at least one person who has completed the equivalent of this eight-hour class. These classes will be offered in Northern and Central California production areas and will be presented in both English and Spanish.

This eight hour class will cover the following topics:

  • Introduction to Produce Safety
  • Worker Health, Hygiene, and Training
  • Soil Amendments
  • Wildlife, Domesticated Animals, and Land Use
  • Agricultural Water
  • Post-harvest Handling and Sanitation
  • How to Develop a Farm Food Safety Plan

Workshops will be offered for $20. The cost includes lunch, grower training manuals and a certificate of course attendance recognized by the FDA. These workshops are provided through a contract awarded by the California Department of Food and Agriculture to AgSafe, with support from Western Growers.

The available workshops will be held on the following dates:

Click on Date to Register
Classes are from 8:00am – 5:00pm, please arrive early to sign in.

WG and AgSafe started offering these courses in January in an effort to better prepare the specialty crop industry for the new FSMA regulations, and the last seven courses will take place this month. WG also created a FSMA Resource Portal that houses information, resources and tools to assist with the implementation of new regulations. Click here to access the portal.

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Registration Now Open for May 31 ACA Webinar

May 10th, 2018

Do you know how to handle an Employer Mandate Penalty Letter from the Internal Revenue Service (IRS)?

Western Growers will make sure you are prepared during a webinar on Thursday, May 31, 2018. Find out what to do when you receive a 226J Employer Shared Responsibility Penalty letter from the IRS. Additionally, new Affordable Care Act developments that may affect you, your employees and your health plan will be discussed.

TOPICS THAT WILL BE COVERED:

  • Important Affordable Care Act (ACA) updates
  • Reporting best practices and error correction
  • The Pinnacle ACA Dashboard and its new features

WEBINAR DETAILS

Speaker: Jon Alexander (Bio), Compliance Counsel, Pinnacle Claims Management, Inc.

Date: Thursday, May 31, 2018

Time: 10:00 AM – 11:00 AM PST

RSVP: REGISTER HERE

Participation is complimentary

After registering, you will receive a confirmation email containing information about joining the webinar.

For more information, contact Jon Alexander at (949) 885-2330.

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FSMA Implementation Guides, On-Farm Readiness Reviews Now Available

May 15th, 2018

Western Growers has developed FDA Food Safety Modernization Act (FSMA) implementation guides to assist Western Growers member in understanding and complying with the new food safety laws.

Members can access the implementation guides for the following rules:

Additionally, in preparation for official Produce Safety Rule on-farm inspections beginning in 2019, the California Department of Food and Agriculture is now offering a series of non-regulatory on-farm readiness reviews. These are designed to give farmers a better understanding of what they can expect from a routine produce safety inspection. To learn about the steps and requirements to schedule an on-farm readiness review, visit https://www.cdfa.ca.gov/producesafety/educate.html.

On-farm readiness reviews will also be available soon in Arizona and Colorado, most likely this summer. For updates and more information, visit the Arizona Department of Agriculture website and the Colorado Department of Agriculture and Colorado State University Extension joint website.

For additional resources about FSMA or for more information, visit Western Growers’ FSMA Portal at https://www.wga.com/fsma. The newly-launched portal houses information on the new FSMA rules, industry webinars to better understand each rule, compliance dates and more.

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California Supreme Court Makes it More Difficult to Classify Workers as Independent Contractors

May 1st, 2018

On April 30th, the California Supreme Court issued a unanimous opinion on how the Industrial Wage Orders govern independent contractor versus employer status in California.  The case will make it much more difficult for companies to prove that independent contractors are properly classified.

Companies engage independent contractors for a variety of reasons including avoidance of wage and hour obligations, taxes, and other obligations owed only to employees. Using independent contractors can promote workforce flexibility while saving substantial costs. However, the consequences for misclassifying an employee as a contractor can result in significant financial exposure, including liability for unpaid back pay and overtime, taxes, employee benefits and monetary penalties.

Since the 1989 S. G. Borello & Sons, Inc. v. Dep’t of Indus. Relations case, in California a flexible “multi-factor” or “economic realities” test usually determined whether a worker was properly classified as an employer or independent contractor.

However, yesterday in Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court adopted a substantially more narrow “ABC test” for assessing whether a worker is an employee or independent contractor.

The ABC test begins with a presumption of an employment relationship, which the company can only overcome by showing:

  1. That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  2. That the worker performs work that is outside the usual course of the hiring entity’s business; and
  3. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

This decision is one of the most significant California wage and hour cases in years. Businesses now have the burden of defending their classification of workers as independent contractors under a new rigid standard. California employers should reevaluate their independent contractor relationships to ensure they are compliant with new case law and mitigate exposure to costly misclassification litigation.

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Western Growers Files Amicus Brief in U.S. Supreme Court ESA Case

May 3rd, 2018

Western Growers recently filed an amicus brief in support of petitioners in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, an Endangered Species Act case pending in the U.S. Supreme Court. Petitioners challenge a final rule issued by the U.S. Fish and Wildlife Service designating critical habitat for the dusky gopher frog, which was upheld by a divided panel (voting 2-1) of the United States Court of Appeals for the Firth Circuit. The gopher frog is endemic to areas of Mississippi and Louisiana. The Service designated certain areas as “critical habitat” for the species that are uninhabitable.

In upholding the Service’s determination, the Fifth Circuit deferred to the agency’s legal and technical determinations. Western Growers argued in an amicus brief filed together with the Coalition for a Sustainable Delta and San Luis & Delta Mendota Water Authority that the court went too far by affirming an agency decision to designate areas as “critical habitat” that are not, in fact, habitat for the species.

The case has important implications because, if upheld, it would stand for the proposition that the Service can designate any area as habitat for any endangered or threatened species so long as the area could someday be transformed into habitat.

Previously, Western Growers filed an amicus brief (successfully) supporting review of the case by the Supreme Court.  Western Growers and the Coalition are represented in the litigation by Paul S. Weiland and Robert D. Thornton with Nossaman LLP.

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H-2A Roundtable Sessions to be Held Throughout June

May 11th, 2018

H-2A roundtable discussions will be held in Salinas, Sonoma and Napa throughout June to delve into topics including H-2A compliance, implications and best practices. Jason Resnick, Western Growers’ vice president and general counsel, will be among the labor experts who will provide insight on how best to navigate and stay in compliance with the H-2A temporary ag visa program.

The roundtables, which are hosted by the Agricultural Personnel Management Association, will cover the following topics:

  • Hot Topics and Best Practices
  • H-2A Certification Issues and Trends
  • H-2A Compliance Issues and Trends
  • Issues at the Border
  • H-2A Implications for Human Trafficking
  • H-2A Implications for Workers’ Compensation
  • Avoiding Pitfalls and Landmines of the Program

Confirmed speakers are as follows:

  • Jason Resnick — Vice President and General Counsel, Western Growers
  • Ruben Lugo, Western Region Ag Enforcement Coordinator — DOL, Wage and Hour Division
  • Jennifer Amore, Chief of Immigration and Farm Labor — DOL, Wage and Hour Division, Washington DC
  • Nicole Delahanty, Sr. Advisor for the Immigration and Farm Labor — DOL, Wage and Hour, Washington DC
  • Brian Pasternak, Director of Programs—Office of Labor Certification — DOL ETA, Washington DC
  • Cesar Ponce, Codes and Standards Administrator I — CA Department of Housing and Community Development
  • Roman Diaz, Manager — Agricultural Services Unit — EDD
  • Brenda Wherry, Foreign Labor Analyst — EDD (Salinas & Sonoma sessions)
  • Rosalba Chavez, Foreign Labor Analyst — EDD (Napa session)
  • Honorable Pamela Foust, Workers’ Compensation Judge (Ret.), Consultant — Zenith Insurance Company
  • Michael Saqui — Attorney, The Saqui Law Group
  • Jeanne Malitz — Attorney, Malitz Law

EVENT DETAILS

H-2A Roundtable

DATES:

June 19: Salinas Sports Complex / Rodeo Grounds, 1034 N Main St., Salinas, CA 93906 **(SOLD OUT)**

June 20: Sonoma County Farm Bureau, 3589 Westwind Blvd., Santa Rosa, CA 95403

June 21: Napa Valley College (Student Activity Center/Lounge/Rm 900), 2277 Napa Vallejo Hwy, Napa, CA 94558

SCHEDULE:

8:00 a.m.: Registration/Continental Breakfast

8:30 a.m. – 3:30 p.m.: Presentations

12:00 p.m. – 1:00 p.m.: Lunch (provided)

RSVP: Participation is complementary. RSVP required by June 15, 2018. CLICK HERE TO REGISTER

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U.S. Supreme Court Upholds Class Action Waivers in Employment Arbitration Agreements

May 22nd, 2018

The U.S. Supreme Court has issued a highly anticipated decision on the issue of whether class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA).

The Supreme Court’s opinion in three consolidated cases (Epic Systems Corp. v. Lewis; Ernst & Young LLP. v. Morris; NLRB v. Murphy Oil) resolves a split among the circuit courts on whether class or collective action waivers contained in employment arbitration agreements violate the National Labor Relations Act (NLRA). The Ninth Circuit (which covers California and Arizona) and Seventh Circuit had ruled that class action waivers violate the NLRA, while the Second, Fifth and Eighth Circuits held that such provisions do not violate the NLRA.

In a 5-4 decision authored by Justice Neil Gorsuch, the Court held that neither the FAA nor the NLRA made arbitration agreements’ class-action waivers unlawful.

In light of the Supreme Court’s opinion, employers can continue to utilize arbitration agreements as a condition of employment.  However, the California Supreme Court has held that employees may still bring “representative actions” under the Private Attorneys General Act, which can expose employers to substantial penalties and attorneys’ fees for violating specified Labor Code violations.   

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Appellate Court to ALRB: Count The Gerawan Workers’ Votes

May 31st, 2018

In a unanimous 138-page opinion issued on May 30, 2018, the Fifth District Court of Appeal vacated the Agricultural Labor Relations Board’s (ALRB) decision to dismiss the decertification petition and set aside the election of Gerawan Farming Inc.’s workers and directed the Board to tally the workers’ ballots that it ordered impounded over four years ago.

Western Growers’ President and CEO Tom Nassif praised the court’s decision.

“For over four years, these employees have asked the ALRB for just one simple thing – to have their votes counted. A state appellate court has now ordered the Board to count their votes. Rather than extending the four-plus years of farmworker disenfranchisement by appealing to the state Supreme Court, the Governor should direct his appointees at the ALRB to accept this ruling and tally the farmworkers’ votes without further delay.”

Western Growers, California Farm Bureau Federation, California Fresh Fruit Association and Ventura County Agricultural Association filed an amicus curiae (“friend of the court”) brief in the case.

After the UFW reemerged after a nearly two decade disappearance, the Gerawan workers filed a petition for decertification and an election was held on November 5, 2013, in which thousands of employees cast their votes by secret ballot. However, the ALRB ordered the workers’ ballots be impounded while objections to the election were resolved. After a 105-day hearing, an ALRB Administrative Law Judge found, and the ALRB agreed, that employer “misconduct” so tainted the election results that the election must be set aside.

On appeal, the court disagreed, finding the Board “was apparently so zealous to punish this employer, it lost sight of the importance of the election itself under the ALRA, and embraced a one-sided approach to the issues that unnecessarily disenfranchised the workers without any meaningful consideration of whether the employer’s conduct reasonably impacted the worker’s freedom of choice in the election.”

The court went on to say, “[a]ccordingly, the failure to provide a vote tally should be corrected by the Board, and the tally and size of the margin of victory should be weighed as a significant factor in its reconsideration of the election question on remand.”

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Western Growers’ Statement on Administration’s H-2A Reform Initiative

May 24th, 2018

IRVINE, Calif., (May 24, 2018) – The U.S. Department of Agriculture today released a joint cabinet statement on modernizing the H-2A temporary agricultural visa program. In response, Western Growers’ President and CEO Tom Nassif issued the following statement:

“Any effort to simplify and streamline the federal government’s visa program for agricultural foreign workers – the H-2A program – will be welcomed by our members.

“While we do not know what the end result will be of the process that begins today, we are hopeful it will enable greater utilization of the H-2A program by the fresh produce industry. We would hope this process will lead to changes in several areas of the existing program, including changes that would accomplish the following:

  • modernize and reduce unnecessary cost of recruitment methods;
  • improve the scope and accuracy of prevailing wage surveys;
  • simplify the application process;
  • incorporate greater flexibility for movement of workers to respond to production needs;
  • clarify interpretations of seasonality; and
  • streamline the approval process for housing and transportation.

“While this effort to implement administrative changes is most welcome, key aspects of the H-2A program can only be modified by statute. We have grown accustomed to fluctuations in the program’s processes with each administration. Indeed, administrative improvements undertaken by one administration can be, and are, undone by the next, as was done by the prior administration.

“Though we do support changes to the H-2A program to make the process more efficient, we are concerned with the suggestion that E-Verify would be a part of this proposal. Changes to H-2A should be made to improve the system for the use of all, and any implication that necessary reforms would be limited to those that use E-Verify is concerning.

“This is why we continue to call on Congress to enact immigration reform legislation that provides a workable path to legalization for our existing workforce and creates a new guest worker visa program to ensure ready access to an adequate supply of labor in the future. Only then can America’s fresh produce farmers plan for long-term sustainability.”

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About Western Growers:
Founded in 1926, Western Growers represents local and regional family farmers growing fresh produce in Arizona, California, Colorado and New Mexico. Our members and their workers provide over half the nation’s fresh fruits, vegetables and tree nuts, including nearly half of America’s fresh organic produce. Some members also farm throughout the U.S. and in other countries so people have year-round access to nutritious food. For generations, we have provided variety and healthy choices to consumers. Connect with and learn more about Western Growers on our Twitter and Facebook.

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