Colorado Governor Signs Sweeping Ag Labor Bill

June 29th, 2021

On June 25, 2021, Colorado Governor Jared Polis signed into law SB21-087, a bill that includes a host of sweeping agriculture labor law reforms. 

Styled by sponsors Senators Jessie Danielson and Dominick Moreno as establishing an “Agricultural Workers’ Bill of Rights,” the new law provides overtime and meal and rest periods for agricultural employees. It also prohibits the use of the short-handled hoe – an implement that has been banned in California, Arizona, New Mexico and Texas.  

While Colorado farmers have long paid agricultural employees not less than the state minimum wage, the new law removes the exemption of agricultural labor from state and local minimum wage laws. The bill also tasks the Director of the Division of Labor Standards and Statistics in the Department of Labor and Employment to promulgate rules to establish the overtime pay of agricultural employees by January 31, 2022.  

The new law also authorizes agricultural employees to organize and join labor unions; engage in protected, concerted activity; engage in collective bargaining, among other things. In addition, the legislation creates the Agricultural Work Advisory Committee to study and analyze agricultural wages and working conditions. Lastly, the bill creates various rights, remedies, and private rights of action for aggrieved agricultural employees. 

The Colorado Fruit and Vegetable Growers Association was heavily engaged in expressing the industry’s concerns with the more problematic aspects of the bill during the committee hearing process through the time the bill landed on the Governor’s desk. Some of those concerns were heeded resulting in improvements over prior versions of the bill.

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Western Growers Launches AgTechX Ed Initiative with CDFA Secretary Karen Ross

June 2nd, 2021

Statewide workforce readiness campaign to cultivate agricultural workforce equipped with skills needed to navigate new on-farm technology

IRVINE, Calif. (June 2, 2021) – Western Growers (WG) has teamed with Karen Ross, California Department of Food and Agriculture (CDFA) Secretary, to launch a statewide initiative aimed at developing a future workforce with the skills and knowledge to navigate emerging on-farm technology.

The AgTechX Ed initiative will bring together universities and colleges, farming and agricultural partners, and technology companies across California to transition the agriculture workforce to master rapidly developing agricultural technology (agtech).

“As we face chronic and worsening labor shortages, escalating labor costs and legislative mandates, and dwindling access to water, crop protection tools and other inputs, the rapid development and deployment of technology is our best hope to preserve California’s farmland and regional agricultural economies,” said Dave Puglia, Western Growers president and CEO. “AgTechX Ed is an exciting and critical initiative that can help advance the tech-expert workforce we must have to continue producing healthy California-grown foods.”

The initiative will be anchored by four AgTechX Ed events in key rural areas across California. Each event will feature a dialogue between leading farming and technology companies around the specific skills they need in their workforces, along with training opportunities available in their organizations. Additionally, local California Community Colleges and California State Universities will be on hand to share how they are revamping their curriculum and adding new educational pathways in an effort to build tomorrow’s agtech workforce.           

The linchpin of each event will be a keynote conversation and networking session with Secretary Ross who will provide insight into the importance of partnerships between industry, government and academia to adapt education to the changing needs of agriculture.

“To rise to the occasion of feeding a global population of 10 billion people in the next 30 years with fewer resources and labor, we need to start investing in preparing tomorrow’s agricultural workforce today,” said Ross. “Education starts in the classroom, and that’s where agriculture prominently needs to be. As the development of technology rapidly accelerates, initiatives such as AgTechX Ed lays the foundation for new tech-based education training platforms that will build an adequately trained workforce.”

The first AgTechX Ed event will be August 25–26, 2021, at Reedley College. The remaining events will be held in Imperial Valley, Monterey County and the greater Sacramento area. In addition to the events, AgTechX Ed will facilitate internship/apprenticeship opportunities, job shadow programs and regional career mixers. The initiative will also build on existing WG workforce development programs that encourage youth to pursue careers in agriculture, including Careers in Ag and Junior AgSharks.

Registration for AgTechX Ed at Reedley College will be available later this summer at www.wga.com. 

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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Pinnacle Claims Management, Inc. Expands Services to Include Health Care Delivery

June 8th, 2021

IRVINE, Calif. (June 8, 2021) – Pinnacle Claims Management, Inc., part of the Western Growers Family of Companies (WGFC), has announced it will facilitate patient care as a managing services organization at the Cedar Health and Wellness Center located in Oxnard, California. This continued venture in the health care delivery of Pinnacle further enhances its patient-centered mission to serve both its members in the agricultural community, as well as its non-agricultural clients.

“We’re excited to have this opportunity to enhance our personal connections with our clients and members,” said David Zanze, president of Pinnacle Claims Management. “Although we serve multiple industries, we are providing a specific solution in Oxnard for the agricultural community which will enable us to react quickly to any changes we see in both the agriculture and health care industries.”

As a managing services organization, Pinnacle will provide the necessary administrative infrastructure, scale and technology at the Oxnard clinic and to select providers in California in order for its partners to function successfully in their relationships with contracted payers and regulators. Pinnacle’s ultimate goal is to provide the highest quality of care at an affordable price and to alleviate the burden of health care administration and compliance on its physician partners, allowing them to focus on patient care.     

This initiative is a key milestone for the organization and reinforces its commitment as a leader in the health care industry. Pinnacle was established more than 20 years ago and has since provided a full suite of comprehensive health benefits services to employers. These services include third-party administration, pharmacy benefit management, reinsurance, e-payment solutions, and health management and wellness. As part of the WGFC, Pinnacle also serves the needs of Western Growers members with health administration services for the association’s health plan.

About Pinnacle Claims Management, Inc.:
Pinnacle Claims Management, Inc. is a leading, all-inclusive third-party administrator (TPA) that provides a full suite of comprehensive health benefits administration services to self-funded employers in all industries. These services include third-party administration, pharmacy benefit management, reinsurance, e-payment solutions, and health management and wellness.

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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National Coalition Presses for Water Supply Infrastructure

June 9th, 2021

IRVINE, Calif. (June 9, 2021) – Citing an “acute and critical need” magnified by another all-too-familiar drought, a national coalition representing thousands of Western farmers, ranchers, water providers, businesses and communities urged Senate leaders yesterday to take action to address the shortcomings of aging water infrastructure.

In a letter to Chairman Joe Manchin and Ranking Member John Barrasso of the Committee on Energy and Natural Resources, the coalition said federal investment in a diversified water management portfolio that serves a broad range of water uses must be included as essential infrastructure in the next legislative package.

The coalition includes more than 220 organizations from 15 states that collectively represent $120 billion in agricultural production—nearly one-third of all agricultural production in the country—and many of the local and regional public water agencies that supply water to more than 75 million urban, suburban and rural residents.

The coalition warned that changing hydrological conditions and an expanding population in the West raise serious concerns about the future viability of the nation’s water infrastructure. To keep water flowing to farms, ranches, cities and the environment, the coalition said substantial federal investment is needed to bolster deteriorating storage and conveyance facilities and build new ones.

“This funding will assist in addressing critical safety needs, develop new infrastructure, invest in smart water technology and conservation, and improve forest and water ecosystems. Additionally, it will spur economic recovery and prepare us to meet the water needs of the next generation in the face of a changing climate,” the coalition letter said.

As part of a comprehensive water management portfolio, the coalition identified 1) more than $13 billion in Bureau of Reclamation water infrastructure needs over the next 10 years, including storage and conveyance, dam safety, rural water, water-smart technologies, and water recycling and reuse projects; 2) $34 billion for USDA to undertake forest restoration, watershed protection and flood prevention projects; and 3) $1.75 billion for Army Corps of Engineers water storage projects and environmental infrastructure.

The coalition concluded the letter with a call for Congress to streamline regulation and permitting processes, along with other reforms, to ensure the timely construction of federal water projects as part of President Biden’s jobs and economic recovery plan.

Click here for the letter to Chairman Joe Manchin and Ranking Member John Barrasso.

Click here for the list of 2022-2032 Western water infrastructure needs.

Click here for a list of signatories to the letter.

About Association of California Water Agencies:
The Association of California Water Agencies (ACWA) is a statewide association of public agencies whose more than 450 members are responsible for about 90% of the water delivered in California. For more than a century, ACWA’s mission has been clear: to help members promote the development, management and use of good quality water at the lowest practical cost and in an environmentally responsible manner.

About California Farm Bureau:
The California Farm Bureau works to protect family farms and ranches on behalf of nearly 32,000 members statewide and as part of a nationwide network of more than 5.5 million Farm Bureau members.

About Family Farm Alliance:
The Family Farm Alliance is a powerful advocate for family farmers, ranchers, irrigation districts, and allied industries in seventeen Western states. The Alliance is focused on one mission – To ensure the availability of reliable, affordable irrigation water supplies to Western farmers and ranchers.

About National Water Resources Association:
National Water Resources Association advocates federal policies, legislation, and regulations promoting protection, management, development, and beneficial use of water resources. The association is dedicated to achieving sustainable water supply for all beneficial uses in an economical and environmentally responsible manner.

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 half of America’s fresh organic produce.

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Incentivizing Vaccines for a Safe & Healthy Workforce

June 3rd, 2021

The incentivizing of a safe and healthy nation has finally reached the fields and offices of America. For months communities across America have tried their hand at encouraging those who have not yet received a COVID-19 vaccination to step up and out of their comfort zones. Restaurants, bars, local governments – offering everything from shots of alcohol, Krispy Kreme donuts, to a $1 million dollar lottery – have been hard at work hoping to entice more people to get vaccinated. And now, with the EEOC updating its COVID-19 Technical Assistance information, employers too can (within legal limitations) provide incentives to employees to confirm their vaccination status or receive vaccinations within the community or from the employer. 

Key points from the May 28, 2021 updated guidance are outlined below:

  • It is not a violation of federal EEO laws for an employer to require all employees physically entering the workplace to be vaccinated for COVID-19. However, initiating such a policy requires complete compliance with reasonable accommodation provisions of the ADA, Title VII of the Civil Rights Act of 1964 and other EEO considerations. California employers must also be mindful of Fair Employment and Housing Act reasonable accommodation mandates.

    Employers should also keep in mind that a policy – neutral on its face – may have a disparate impact on some individuals or demographic groups who may face greater barriers to receiving COVID-19 vaccinations than others, and that some employees may be more likely to be negatively impacted by a vaccination requirement than others.​

  • It is not a violation of federal EEO laws for an employer to offer incentives to employees who voluntarily provide documentation (or other reasonable confirmation) of vaccination obtained from a third party in the community (e.g., pharmacy, health care provider, or public clinic). However, employers seeking to obtain vaccination information from their employees, must remember to follow state and federal guidelines for safeguarding employee medical information. It is also important to follow state and federal laws prohibiting discrimination, harassment or retaliation against employees based on a physical/mental disability or medical condition. 
     
  • Employers providing vaccines to their employees may also offer incentives to encourage vaccination if the incentives are not coercive. According to the EEOC, “[b]ecause vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”
     
  • According to EEOC, employers may provide COVID-19 educational material to employees and their family members to inform and educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. Cal/OSHA’s revised Emergency Temporary Standards (ETS) would require the dissemination of such information to employees.

For more information on the EEOC’s updated Technical Assistance information, checkout these EEOC FAQs (Updated vaccination FAQs found at K.1.)

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Employer Milestones: Summer 2021

June 3rd, 2021

The start of the pandemic lockdown saw employers facing a whirlwind of activity as they scrambled to create remote work rules, initiate masking and social distancing mandates and adapt to rapid fire legislative changes. As employers across the state begin contemplating “back to work” protocols it looks like another flurry of activity is on the horizon. We have outlined below several important milestones that California employers must be aware of as we head into Summer 2021.

  • Cal/OSHA Emergency Temporary Standards (ETS): Cal/OSHA’s revised proposed ETS regulations are set for a Cal/OSHA Standards Board vote on June 3, 2021. Employers should anticipate a June 15, 2021 implementation of the revised regulations and be prepared to comply. The proposed regulations can be viewed here ahead of the June 3, 2021 Standards Board meeting. (See “Cal/OSHA Standards Board Publishes New, More Cautious ETS Revisions” in this issue)
  • Beyond the Blueprint: As of June 15, 2021 California, businesses – in all sectors – listed in the state’s Blueprint Activities and Business Tiers Chart will be allowed to return to usual operations (with limited exception). However, employers will still be required to adhere to current California Department of Public Health guidelines for face coverings and Center for Disease Control travel and travel advisory recommendations. Employers subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (EST) must continue compliance as discussed above.
  • CalSavers Retirement Savings Program (CalSavers): Originally signed into law January 1, 2017 and set to become active June 1, 2021, CalSavers provides employees who do not have access to an employer provided retirement benefit program a convenient, voluntary retirement savings alternative. Employers with five or more employees who do not currently offer an employee retirement savings program must take steps to assist employees in accessing CalSavers benefits. Eligible employers are required to comply with registration deadlines as follows:
    • More than 100 employees: September 30, 2020 (Deadline has passed.)
    • More than 50 employees: June 30, 2021
    • 5 or more employees: June 30, 2022

NOTE: A CalSavers information packet must be provided to all newly hired employees at the time of hire. Employees are required to review and acknowledge receipt of the information packet at the time of hire. More information on CalSavers can be found here.

  • Minimum Wage Increases: Many local minimum wage ordinances include scheduled increases set to take effect beginning July 1, 2021. The UC Berkeley Labor Center’s Inventory of City and County Minimum Wage Ordinances is a great resource to check your location for any upcoming wage increases.
  • Distracted Driving License Points: Violating existing hands-free cell phone driving laws is currently punishable by a fine. Starting July 1, 2021, a second violation within 36 months of a prior conviction for the same offense will result in a point being added to the driver’s record. This includes violations for talking or texting while driving without using a hands-free device.

This heightened penalty is a strong reminder of how important driver safety should be taken when it comes to overall risk management. Consider the following tips if you have employees who drive for company business:

  • Audit existing cell phone and company driving policies (e.g., does either policy require the use of hands-free devices, prohibit the use of cell phones/electronic devices while driving, require employees to immediately report violations).
  • Send out a quick reminder about your company’s existing cell phone and company driving policies to all employees who drive for company business.
  • Address safe driving practices at your next Safety Meeting

2019/2020 EEO-1 Component 1 Data Collection: Employers subject to EEO-1 data collection reporting should have received notice that the 2019 and 2020 EEO-1 Component 1 data collection is now open. Employers have until July 19, 2021 to submit two years of data. The latest filing updates and additional information can be found on the EEOC’s newly launched EEO-1 website.

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Some Things Remain

June 22nd, 2021

While many COVID-19 requirements are changing, others remain the same. Below are a few important reminders of statewide mandates that – for the foreseeable future – remain in effect.

California’s COVID-19 Supplemental Paid Sick Leave (SPSL) law remains in effect until September 30, 2021. As a reminder, employees are entitled to SPSL when an employee is:

  • Advised by health care provider to self-quarantine due to concerns related to COVID-19.
  • Attending an appointment to receive a COVID-19 vaccination.
  • Experiencing symptoms associated with receiving a COVID-19 vaccination such that the employee is unable to work (e.g., in the office or remotely).
  • Experiencing COVID-19-related symptoms and is seeking medical treatment.
  • Caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine.
  • Caring for a child whose school or place of care is closed or unavailable for COVID-19-related reasons.

Employers subject to local paid sick leave ordinances should be aware that such benefits may require leave be provided beyond the September 30, 2021, statewide cutoff.

Employers should also be aware that the workers’ compensation presumption codified by SB 1159 remains in effect until January 1, 2023.  The statute applies to California employers with five or more employees and employees – including farmworkers – who test positive for COVID-19 during an outbreak at their place of work on or after July 6, 2020. For additional information on COVID-19 outbreaks review Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) FAQ’s

The statute establishes a rebuttable presumption of an industrial injury or illness where the employee’s positive test occurred during a period of outbreak at the employee’s place of employment. Evidence controverting the presumption may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection. The statute also places a burden on employers to notify their claims administrator within 3 days of being made aware of an employee positive test. The claims administrator is then charged with determining if an “outbreak” has occurred. SB 1159 remains in effect until January 1, 2023.

In addition, while the COVID-19 Prevention Emergency Temporary Standards (ETS) was recently amended, many of the original ETS requirements remain in place, including the following:

  • An effective written COVID-19 Prevention Program.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of outbreaks.
  • Providing notification to employees of exposure and close contacts.
  • Requirements to offer testing after potential exposures.
  • Requirements for responding to COVID-19 cases and outbreaks.
  • Quarantine and exclusion pay requirements.
  • Basic prevention requirements for employer-provided housing and transportation.

While we are all anxious to put some, if not all things COVID-19 behind us, employers must remain steadfast in continuing to manage risk levels associated with these lingering COVID-19-related obligations.

Growers seeking further information about their continuing COVID-19 obligations, should contact Western Growers.

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Western Growers Center for Innovation & Technology Hosts An Open House Next Week

June 8th, 2021

The Western Growers Center for Innovation & Technology (WGCIT) invites all agtech startups and Western Growers members to a special “open house” on Wednesday, June 16, 2021.

As a hub for collaboration, the WGCIT encourages networking and mingling between entrepreneurs and farmers during the event. The event will also feature WGCIT staff sharing updated about Western Growers and the latest innovation initiatives. 

EVENT DETAILS

Western Growers Center for Innovation & Technology’s 2021 Open House

What: Reception featuring Twisted Roots Wine by farmer Josh Ruiz

When: Wednesday, June 16

Time: 3:30 p.m. – 5:30 p.m.

Details:

  • Open House
  • Reception featuring Twisted Roots Wine by owner/winemaker Josh Ruiz
  • WGCIT/WG Update at 4PM

Where: Western Growers Center for Innovation & Technology (150 Main St #130, Salinas, CA 93901)

RSVP: http://evite.me/wS67zzuNcN

For questions, contact Emily Lyons at [email protected] or (831) 272-0661.

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Western Growers Statement on Cedar Point Nursery v. Hassid

June 23rd, 2021

IRVINE, CA (June 23, 2021) – In a 6-3 decision, the U.S. Supreme Court today struck down the California Agricultural Labor Relations Board (ALRB) rule that gave union organizers the right to physically access farm property to solicit support for unionization. The Court held that the regulations were a state-sponsored taking of property rights without the just compensation guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution.

In response to the decision, Western Growers President and CEO Dave Puglia issued the following statement:

“This is a simple property rights case. States cannot take private property without just compensation, and property owners have the fundamental right to exclude trespassers. We applaud the Supreme Court for protecting the notion of private property rights as envisioned in our Constitution. We also commend Cedar Point Nursery, Fowler Packing Company and the Pacific Legal Foundation team for seeing this case through to its unequivocal conclusion.”

About Western Growers:
Founded in 1926, Western Growers represents local and regional family farmers growing fresh produce in California, Arizona, Colorado and New Mexico. Western Growers’ members and their workers provide over half the nation’s fresh fruits, vegetables and tree nuts, including half of America’s fresh organic produce. Connect and learn more about Western Growers on Twitter and Facebook. 

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National Ag and Labor Groups Push for Senate Action on Immigration Reform

June 16th, 2021

Western Growers President & CEO Dave Puglia joined Agriculture Secretary Tom Vilsack, Senators Michael Bennet (D-CO) and Mike Crapo (R-ID), and leaders from major farm and farmworker organizations this morning to spur Senate action on the agricultural labor crisis.

During the roundtable session, which took place in the Senate Agriculture, Nutrition and Forestry Committee Hearing Room, Puglia and other national ag and labor leaders stressed that farmers and farmworkers need certainty to continue producing an abundant, safe and affordable domestic food supply, and that securing a reliable and skilled agricultural workforce is essential to the future viability of America’s family farms and long-term prosperity of farmworker communities.

Looking to build on the momentum created by the passage of the Farm Workforce Modernization Act in the House, the group stressed the need for immediate action and encouraged Secretary Vilsack and Senators Bennet and Crapo to pursue a meaningful bipartisan legislative solution to protect America’s food supply.

The following individuals attended the Agricultural Immigration Reform Roundtable:

Tom Vilsack, U.S. Agriculture Secretary

Michael Bennet, Colorado Senator

Mike Crapo, Idaho Senator

Dave Puglia, President & CEO, Western Growers

Chuck Connor, President, National Council of Farmer Cooperatives

Zippy Duval, President, American Farm Bureau Federation

Rob Larew, National Farmers Union

Tom Stenzel, President & CEO, United Fresh Produce Association

Kam Quarles, CEO, National Potato Council

Teresa Romero, President, United Farm Workers

Arturo Rodriguez, President Emeritus, United Farm Workers, former Board Chair UFW Foundation

Bruce Goldstein, President, Farmworker Justice

Reyna Lopez, Executive Director, Pineros y Campesinos Unidos del Noroeste

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Central Arizona Project to Offer Water Users Shortage Briefing

June 17th, 2021

On Thursday, June 24 from 9am-11am, the Central Arizona Project will be holding a briefing on the likely upcoming water cuts to their system.

Topics will include an updated Colorado River report, implementation of Tier 1 reductions and Drought Contingency Plan mitigation, report on Lake Mead conservation activities, and a review of the water ordering process. The briefing will be livestreamed at the CAP website. 

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Arbitration Update

June 10th, 2021

In a recent ruling the Ninth Circuit (covering California and Arizona) upheld a motion to compel arbitration by a non-signatory to an arbitration agreement (Franklin v. Community Regional Medical Center, FKA, No. 19-17570 (9th Cir. 2021)). Franklin, a contract nurse employed by a staffing agency and assigned to Community Regional Medical Center (CRMC), filed a class and collective action against CRMC for state and federal wage and hour violations. The employment contract signed by Franklin and the staffing agency included an arbitration agreement. CRMC was not a signatory to any contracts signed by Franklin.  

The Court applied California law – not typically not seen as arbitration friendly – to find Franklin’s allegations against her temporary assignment employer were “intimately founded in and intertwined with” the contracts she signed and the employment relationship she maintained with the staffing agency and CRMC. Affirming the lower court’s ruling, the Ninth Circuit found that under California law, Franklin could not avoid the contractual obligation to arbitrate her workplace claims by suing a non-signatory defendant.

For those who utilize staffing agencies, Franklin illustrates the importance of understanding how the staffing agencies agreement with its temporary workers impacts the temporary employer. While Franklin provides a strong base from which to argue coverage as a non-signatory, having specific contractual language that encompasses the temporary employer within the arbitration agreement itself provides a much stronger argument for compelling arbitration should the need arise.

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Form I-9 Best Practices

June 10th, 2021

In April 2020, when the Social Security Administration (SSA) announced it was discontinuing its practice of issuing Employer Correction Request Notices (e.g., “no match” letters), many employers in key industries such as Agriculture were relieved. However, relief from the administrative burden and perceived risk such notice created quickly gave way to confusion about ongoing verification responsibilities.

Despite the administrative relief afforded by the SSA’s policy change, employers must still comply with all Form I-9 verification protocols and remain vigilant in initiating and following company policies to protect against employing unauthorized workers. Employers who find themselves in a situation where information provided by the worker conflicts with government databases or other information provided by the employee on internal documents (e.g., job application or Form I-9 documents) should consider the following:

  • Confirm with the employee the accuracy of the information provided. (e.g., check for clerical errors, typos, transposed numbers).
  • Absent any clerical errors, follow up with the employee – in writing – to request clarification and that corrected information be provided within a reasonable time.
  • If the information in question involves the SSA, request the employee contact the agency directly to follow up on any discrepancies.

Employers should remain mindful of federal prohibitions against asking employees for specific additional documents if those presented appear authentic and sufficient for verification purposes.

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Preparing for a Hot Summer!

June 17th, 2021

With summer temperatures on the rise, state and federal Occupational Safety and Health Administrations are reminding all employers to be prepared to protect outdoor workers from heat illness. Heat illness is more likely to occur during the transitional period between spring and summer as temperatures start to climb and workers are not yet accustomed to working at full capacity. State and federal law require employers to monitor outdoor workers assigned to high heat areas. Key prevention measures such as providing water, rest, shade, and training should be implemented as workers begin acclimatizing.

Consider taking the following steps to lower the risk of heat illness associated with high heat and increased humidity:

  • Allow workers time to acclimatize: Provide workers with the opportunity to gradually acclimatize over a specific period (e.g., 4 – 10 days) starting in two-hour increments. This process should be repeated throughout the summer months for workers moving into hotter temperature locations or those recovering from illness.
  • Provide heat management necessities:
    • Water that is fresh, pure, suitably cool and free of charge. Employers should provide water sufficient for each worker to drink at least 1 quart of water per hour.
    • Additional rest opportunities should be provided and encouraged to protect from overheating. Remind workers they should take a cool-down rest in the shade for at least five minutes when they feel the need to do so and not to wait until they feel the effects of heat illness.  
    • Shade should be readily available for workers to cool off at any time, especially when temperatures exceed 80 degrees. Encouraging works to wear wide brimmed hats will also help mitigate heat exposure.
  • Be mindful of high humidity: When it comes to heat illness, high humidity poses as great a threat as high temperatures. Lower temperature, high humidity days, can still lead to dangerous working conditions. Because high humidity slows evaporation it can disrupt the body’s natural cooling mechanism causing internal body temperatures to rise and heat illness to develop.
  • Plan and train: State and federal law require employer to develop and implement effective heat illness prevention plans (must be written in California). These plans should include emergency response procedures and take into consideration the need to train all employees and supervisors on heat illness prevention.  

For more information on preventing heat illness checkout these helpful resources:

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The Hiring Process: Recruiting

June 22nd, 2021

The goal of effective recruiting is to find the right person for any job opening. Effective recruiting practices that consider the specific needs of the organization with an eye toward limiting potential legal risk, save time as well as money. A well thought out recruiting process allows the employer time to identify its workforce needs, decide how to attract and find the best recruits, and ultimately hire the most qualified candidates. Provided below are a few best practices tips for effective recruiting:

  • Identify the hiring need (e.g., expansion, filling a vacated position, or managing existing workloads)
  • Filling a newly created position? Clearly identify how the new role integrates with existing operations.
  • Filling or expanding an existing position(s)? Consider who will be involved in the hiring process (e.g., hiring decisions, recruitment timelines, and interview schedules).
  • Determine in advance how to publicize the open/new position (e.g., criteria for candidate screenings, what type of interview process will be utilized, and who will be conducting the interviews.)
  • Review and possibly update applicable job description(s).

Check in with us next week for best practices and tips on initiating the interview process.

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The FLSA Agricultural Exemption

June 17th, 2021

The Eleventh Circuit Court of Appeals (Alabama, Florida and Georgia), in deciding Ramirez v. Statewide Harvesting & Hauling, LLC (May 21, 2021), finds under certain circumstances, work performed by farm laborers that is separate from their usual agricultural activities, (e.g., “necessities trips”) may entitle them to overtime pay under the Fair Labor Standards Act (FLSA) when they work more than 40 hours per week.

As part of its contractual and legal obligations, Statewide provided its workers with kitchen facilities and transportation to grocery stores and banks (i.e., necessity trips). These necessity trips, provided by Statewide’s field supervisors, took place away from farming operations on a weekly basis and lasted approximately four hours. Statewide, believing such work to fall under the agricultural exemption of the FLSA, failed to pay earned overtime.[1]

The Court’s analysis focused on the idea that the necessity trips provided by the field supervisors did not meet the FLSA exemption because it found the work was not associated with any particular farm owned by Statewide and was “separate from the agricultural activities” performed “by a farmer or on a farm.” Therefore, any necessity trips that resulted in the field supervisors working more than 40 hours per week, entitled them to overtime pay.

The broader implications of Ramirez, for all employers subject to the FLSA, warrant a review of current wage/hour practices regarding work – such as necessity trips – performed by farm personnel in connection with, but not directly related to, work performed on a farm. This would include activities performed outside of the geographical area that constitutes a farm (e.g., away from farms/fields being harvested or work (not associated with field transportation) beginning/ending at workers’ off-site housing facilities.).

Growers seeking further information about the Ramirez case or the FLSA agricultural exemption, should contact Western Growers.

[1] The agricultural exemption to the FLSA applies to “any employee employed in agriculture” who performs work in connection with: 1) the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities…the raising of livestock, bees, fur-bearing animals, or poultry; or primary farming activities such as work 2) performed by a farmer or on a farm as an incident to or in conjunction with farming operations….”

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Check Out Western Growers Assurance Trust’s Refreshed Website

June 29th, 2021

New look, same great functions.

Western Growers Assurance Trust (WGAT) portal login pages are getting a refreshed look! Starting July 1, 2021, when you visit WGAT Portal sites HealthView for employees, WERC for employers and OPIS for providers, you will see a fresh new look for the login pages. No changes were made to the user navigation or functionality inside these portals, so you can sign into your WGAT account as usual and without interruption.

WGAT’s goal was to make it simple and more convenient for users to find the information they need. This is the first of some planned changes to improve access to our resources and services. WGAT welcomes any feedback along the way.

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