Arizona Pays Off Debt and Cuts Taxes in FY22 Budget

July 1st, 2021

The Arizona Legislature passed, and Governor Ducey signed, the Fiscal Year 2022 budget earlier this week. Under Arizona’s budget, nearly $1 billion in debt is paid off and another $1 billion is appropriated to help reduce the state’s pension liabilities.

The Arizona Department of Agriculture received increased funding for Plant Services Division salary increases, State Agriculture Laboratory Scientist position and equipment, salary increases for 12 Agriculture Lab Positions, funding for cloud services migration, and more.

The budget also implements the first steps towards a 2.5% flat tax, which will be phased in over three years beginning on January 1, 2022.

For tax year 2022, single filers will pay a tax rate of 2.55% for taxable income of up to $27,272 and 2.98% on taxable income above $27,272. The income bracket for individuals filing as married couples or heads of household is twice that amount, or $54,544.

Further rate reductions beyond the 2.55%/2.98% rates will be contingent upon the state receiving more revenue than forecasted. The “trigger” target is set at $12.8 billion in FY 2022 and $13.0 billion in FY 2023 and each year thereafter.

If the state receives more than the FY 2022 trigger level, the rates will be reduced to 2.53%/2.75%, beginning in 2023. If the state receives more than $13.0 billion in FY 2023 or any subsequent year, the rate will be reduced to a single 2.5% rate in the following tax year.

The budget also includes a 4.5% rate cap for taxable income beginning in 2021 above $250,000 for single filers, and $500,000 for individuals filing as married couples or heads of household. Absent the cap, the combined rate would be 6.48% in 2022 due to the passage of Proposition 208.

For full details within the FY22 Arizona Budget, please click HERE.

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Are You Ready?

July 1st, 2021

Many local minimum wages increases are set to take effect across California on July 1, 2021. To assure continued compliance with applicable wage and hour laws, employers must be complaint by the July 1st effective date. Here are a few tips to get you up-to-speed:

Determine if your business is located within a city or county’s jurisdiction. Whether an employer is subject to the pending increase depends on whether the business is located (or does business) within the city or county where the increase is taking effect. Check your city’s or countiescounty’s online resources to help determine if your business is located within the city’s or county’s jurisdiction.

Employees who travel or those working remotely may be impacted. Many local wage ordinances assert jurisdiction over employees who “work” within the city or county limits (e.g., City of Los Angeles and Santa Monia both assert jurisdiction over individuals who work within the city for at least two hours per week). This jurisdictional control can be asserted even when the employer is located outside the city or county. Employers who have employee who travel into or work within a location subject to an increase should be checking to determine if such employees are subject to the increase.

Update all wage statement protocols. Employers should make sure that any increase in minimum wage rates are correctly reflected on the employee’s wage statement. This may require an internal audit or a call to your businesses third-party payroll provider. This is important as employers remain liable for wage statement violations made by third-party representatives. 

Update workplace postings and new employee hire notices. Mandated workplace postings must be updated as necessary. Most jurisdictions provide easy online access to workplace posting notices free of charge. Wage notices required under Cal. Labor Code section 2810.5 must also be updated to reflect any new minimum wage increase.

For information on which cities/counties are set for a July 1st increase, check out the UC Berkeley Labor Center’s helpful inventory of city and county minimum wage information.

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Initiating the Interview Process

July 1st, 2021

No matter the employer’s hiring protocols—conducting interviews, contacting references, or initiating background checks—it is up to the designated hiring team to determine which applicant(s) will be selected for review and ultimately hired. The first step of this process is to initiate a review of the pool of applicants and delete those who clearly do not have the requisite skill or experience.

The following are some suggestions for making good hiring decisions:

  • Attitude is generally more important than skill.
  • Don’t hire just because you “like” someone.
  • Look to fill gaps in the strength of the organization.
  • Seek diversity in the workforce.

The interview process presents a further opportunity to gather information about a candidate. This is an effective tool as it allows the employer to ask specific questions, pursue a particular line of questioning, or clear up any misunderstandings from the application. What follows are tips and suggestions to assist in preparing for and conduct a successful interview.

  • Be familiar with the skills required for the job (e.g., job description) and knowledgeable about any other information relevant to the position (e.g., start date, hours, pay periods, applicable benefits).
  • Review the applicant’s resume, cover letter, and reference information.
  • Prepare interview questions in advance.
  • Consider using a “rating sheet” to record notes and impressions.[1]
  • Always be prepared to start on time.

Check in with us next week for best practices and tips on conducting an effective interview.

Find these tips and best practices useful? Check out Western Growers newly updated Personnel Procedures Manual (PPM) The PPM is an information-packed employer tool that provides helpful guidance for employers navigating the employer/employee relationship from pre-employment to termination. Click the PPM link below for more information.

[1] Using a rating system is an acceptable interview tool but the information written down should NEVER include comments

based on protected classifications (e.g., comments on age, race, sex, gender, national origin etc.).

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No More “Use-it-or-Lose-it” for Colorado Employers

July 1st, 2021

The Colorado Supreme Court recently (June 14, 2021) issued a landmark ruling that an employer must pay an employee’s earned but unused vacation pay upon separation from employment. The ruling goes even further to provide that any agreement or policy forfeiting unused vacation pay is void as a matter of law. Like many states Colorado law does not mandate that an employer provide vacation pay. However, like many other states, Colorado law is now clear that once an employer chooses to offer vacation pay benefits, they cannot be forfeited once earned.

The court’s analysis focused on its finding that vacation pay does not have to be vested to be “earned and determinable” and therefore is not subject to forfeiture under the Colorado Wage Claim Act. Concluding that its Wage Act applies to all vacation pay, owed upon separation, as return for services rendered or work done by an employee, the court noted the purpose of the Act – to protect employees against “exploitation, fraud, and oppression” was satisfied.

What does this mean for Colorado employers? Some critical steps to consider:

  • Review and revise handbook and benefit policies to ensure compliance (e.g., remove any existing “use-it-or-lose-it” language).
  • Develop new separation procedures to ensure proper payouts of earned but unused vacation pay.
  • Initiate training for all staff involved (at any level) with separations and wage and hour compliance.

Employers should keep in mind that the court’s ruling does not impact Colorado’s Healthy Families and Workplaces Act which does not require unused paid sick leave to be paid out at separation.

Growers seeking further information about their duty to payout earned but unused vacation at separation should contact Western Growers.

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Cedar Health and Wellness Center – New Appointment Line

July 8th, 2021

Western Growers Assurance Trust (WGAT) has made it easier and more convenient for members to schedule appointments at Cedar Health and Wellness Center locations in Santa Maria, Salinas and Watsonville. You can reach the Cedar Health & Wellness Center Appointment line, powered by Everside Health, at 866-443-2202.

When calling to schedule your appointment, please include the following:

  • Clinic location
  • Reason for your visit
  • Name and date of birth
  • Preferred date and time for your appointment
  • Your phone number (in the event your appointment needs to be rescheduled)

The new appointment line is available during the following hours:

  • Monday, Tuesday, Wednesday, and Thursday | 4:00 am – 6:00 pm
  • Friday  | 4:00 am – 3:00 pm
  • Saturday  | 6:00 am – 11:00 am

Please note that Cedar Health and Wellness Center phone number in Oxnard will remain unchanged. If you’d like to schedule an appointment at our Oxnard location, please call 805-200-3610.

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New EEOC Guidance on Gender/Sex Discrimination Protections

July 8th, 2021

On June 15, 2021 the EEOC released its updated guidance on protections extended to LGBTQ+[1] workers under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits a private employer from discriminating against any employee because of a protected classification (e.g., race, color, national origin, and sex).

The EEOC’s latest guidelines revision was prompted by last year’s US Supreme Court holding in the case of Bostock v. Clayton County Georgia (June 15, 2020) The Court’s ruling in Bostock broadened Title VII’s prohibition against discrimination because of an individuals “sex” to include discrimination because of sexual orientation or transgender status. Title VII applies to employers with 15+ employees and specifically prohibits discrimination in the “terms and conditions and privileges of employment” at all stages of the employer/employee relationship (e.g., hiring, work assignments, promotions, and termination).

Specifically, employers may not discriminate against any employee on account of their sex. This includes discrimination based on perceived customer preferences or requirements that employees conform to traditional gender dress standards. Title VII does not prevent an employer from maintaining separate restrooms, changing or locker rooms. However, employees must be allowed to use the facility that corresponds with their gender identity which may or may not differ from the gender assigned at birth.

The issuance of newly updated guidelines is always an opportunity to review existing policies/procedures to ensure your business is in compliance with these and other mandated protections.

[1] The acronym LGBTQ+ is an every growing and expanding term intended to be inclusive of people of all genders and sexualities. As such the acronym is often seen in many variations (e.g., LGBTQ+, LGBTQIA+) The letters refer generally to the following: Lesbian, Gay, Bisexual, Trans, Queer, Intersex, Asexual. The + is an inclusive symbol to cover different and varying subsects.

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Conducting Compliant Background Checks

July 22nd, 2021

Many employers find it worthwhile to check the references, job history, personal character, criminal conviction history or credit history of an individual prior to making the decision to hire or promote.

This can be done through an in-house investigation using public records or by an outside third-party consumer reporting agency (CRA). Initiating background checks and calling an applicant’s referencesare typical screening methods. However, if not performed in accordance with state and federal lawsthey can expose an employer to legal and financial risk.

The term ‘consumer report’ is broad and includes all types of consumer reporting such as information about an individual’s credit, character, personal attributes, lifestyle, and reputation. Criminal and DMV records are also considered to be consumer reports. And although these types of reports are typically written, information transmitted orally can also be considered a consumer report. Consumer reports are used by employers for purposes of employment, promotion, reassignment, or retention.

State laws differ when it comes to limiting an employer’s inquiry into an applicant or employee’s credit history. This article discusses best practices under Arizona’s Consumer Reporting and Fair Credit Reporting statutes as well as federal Fair Credit Reporting Act (FCRA). These laws govern the employer’s ability to obtain consumer information through in-house investigations and its use of information obtained through third-party consumer reporting agencies (CRA).

If an employer uses a CRA to conduct a background check that includes job, personal or credit history, it must follow both state and federal rules concerning notice, disclosure, and consent requirements. In Arizona that includes:

  • Providing a clear and conspicuous written disclosure (in a separate, standalone document) to the applicant or employee that includes:
    • The purpose of the investigation
    • Identifying of the consumer reporting agency conducting the investigation or providing
    • the report; and
    • Statement that defines the nature and scope of the report
  • Providing the applicant or employee with a summary of rights under federal and state law
  • Obtaining written authorization from the applicant or employee prior to procuring the report[i] 
  • Providing a copy of the report to the applicant or employee upon request[ii] 
  • Certify to the CRA all required disclosures have been made (e.g., that the employer will comply with procedures by which an applicant or employee can obtain or be provided with a copy of the report; and that the employer will not use the report in violation of any applicable federal or state law or regulation)

Check in with us next week for additional best practices and tips on conducting background checks in Arizona.

Find these tips and best practices useful? Check out Western Growers newly updated Personnel Procedures Manual (PPM) The PPM is an information-packed employer tool that provides helpful guidance for employers navigating the employer/employee relationship from pre-employment to termination. Click the PPM link in the body of the newsletter for more information.

[i] Employers should be aware that the practice of obtaining authorization through the use of an “I agree” checkbox contained within an online job application may be challenged in court.

[ii] If credit information is obtained, the employer must request that the CRA send a copy of the report to the applicant or employee at the same time it is sent to the employer.

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Jennifer Abruzzo Confirmed as General Counsel of the National Labor Relations Board

July 29th, 2021

On July 21, 2021, Jennifer Abruzzo was confirmed by the U.S. Senate (51-50) to a four-year term as General Counsel of the National Labor Relations Board (NLRB). Previously serving as Deputy General Counsel and Acting General Counsel for the NLRB during the Obama administration, Ms. Abruzzo most recently served as Special Counsel for Strategic Initiatives to the Communication Workers of America (CWA), the country’s largest communications and media labor union. Ms. Abruzzo’s confirmation signals yet another strong pro-union shift under the Biden administration.

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Conducting an Effective Interview

July 8th, 2021

By asking the right questions employers can gain a wealth of information about the job candidate and their qualifications for the position sought. Interviewing also allows an employer to compare potential candidates with one another so that it can choose the applicant that best fits its needs. Below are some tips and suggestions for conducting a successful interview.

  • Make the Applicant Comfortable: Start the interview by sharing with the applicant a little about your background with the company, your role in the interviewing and hiring process, and some general information about the company. Once the applicant is comfortable, switch things up and let the applicant do most of the talking (e.g., 70%-80%). The easiest way to accomplish this is to start asking the applicant open-ended questions.
  • Ask Open-ended Questions: Always begin your questions with such words as “what,” “why,” “how,” “when,” etc. Avoid questions that can be answered with a “yes” or “no” answer. Using open-ended questions will encourage the applicant to provide complete and substantial responses. During the interview ask questions based on what you know are desired attributes or experiences for the job.  Open-ended questions are also helpful in clearing up any questions you may have about the applicant’s resume, cover letter or application.
  • Focus on Behavior Based Questions: Behavior based questions are designed to elicit responses from the applicant that showcase their successes, problem solving abilities, work style and habits. Such questions might include asking the applicant to share an example of a difficult situation they faced at work and how they reached a resolution.
  • Allow the Applicant to Ask Questions: Be sure to allow time during or at the end of the interview for the applicant to ask their own questions. An important aspect of the selection process is being able to gauge the applicant’s interest in the company and the position. Finding out what’s on the applicant’s mind will also provide the employer further insights into how the individual processes information and what piques their interest.

To avoid giving applicants false hope or misleading information, it is important to standardize a format for ending interviews. A short script should be prepared in advance that reminds the interviewer to thank the applicant for their time and interest and explains the employer’s next steps, including a timeframe for notifying candidates, and any further steps the applicant needs to take.

Check in with us next week for best practices and tips on recruiting.

Find these tips and best practices useful? Check out Western Growers newly updated Personnel Procedures Manual (PPM) The PPM is an information-packed employer tool that provides helpful guidance for employers navigating the employer/employee relationship from pre-employment to termination. Click the PPM link below for more information.

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Reminder: Wildfire Safety Compliance

July 15th, 2021

In anticipation of another heavy wildfire season employers are reminded that wildfire smoke and subsequent cleanup efforts present unique workplace hazards.

In California, Cal/OSHA mandates protective equipment (e.g., N95 masks) as a wildfire season necessity in areas where the current Air Quality Index (current AQI) for airborne particulate matter 2.5 micrometers or smaller (PM2.5) is 151 or greater[1], and where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

Wildfire smoke – composed of harmful chemicals and small matter particulate – can significantly impact the health of outdoor workers. When it comes to air quality, employers must:

  • Take steps to ensure worker safety (e.g., relocation, modify procedures, amend schedules)[2].
  • Provide PPE equipment as necessary (e.g., NIOSH-approved N-95 masks).
  • Check AQI for PM2.5 levels throughout each working shift.
  • Notify workers if the AQI for PM2.5 rises above 151 or greater and enact emergency protective measures.
  • Notify workers if the AQI for PM2.5 is higher than 500, distribute N-95 masks and implement a respiratory protection program.

Developing and maintaining a wildfire emergency plan allows an employer to quickly address health and safety issues associated with wildfire smoke and cleanup. Cal/OSHA mandates the following:

  • Training employees on how to protect themselves from wildfire smoke inhalation[3].
  • Identifying (in advance) all feasible worksite modifications and changes to quickly act to reduce exposure to wildfire smoke (e.g., relocation, safety procedures, scheduling).[4]
  • Training supervisory personnel on modification/change procedures.

Employers should remember to follow Cal/OSHA COVID-19 Prevention Emergency Temporary Standards when relocating workers to indoor locations.

Visit the CA Department of Industrial Relations Worker Protection from Wildfire Smoke and Worker Safety and Health in Wildfire Regions webpages for additional information on protecting workers from the hazards of wildfire smoke and cleanup. Additional resources can be found by visiting the U.S. Dept. of Labor OSHA Wildfires webpage.

[1] An exception exists where workers are exposed to a current AQI for PM2.5 of 151 or greater for a total of one hour or less during a shift.

[2] This includes implementing a system for communicating wildfire smoke hazards in a language and manner readily understandable by workers.

[3] Cal/OSHA mandates effective training that includes information found in subsections e and Appendix B of Cal. Code of Regulations Section 5141.1

[4] Cal. Code of Regulations Section 5141.1 subsection (f).

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Employing Minors In The Workplace

July 29th, 2021

In the face of the current workforce shortage, many employers are revisiting current policies requiring employees to be at least 18 years of age and expanding job opportunities to young workers. Employers considering such policy changes should keep in mind state and federal child labor laws ensure minors receive access to safe occupations that do not jeopardize their health, well-being, or educational opportunities. Federal child labor laws tend to be stricter than most state laws and must be applied in all circumstances where they provide greater protection including the payment of wages.

Employing Minors—Arizona

The Arizona Department of Labor enforces and administers the state’s Youth Employment Laws. The federal Fair Labor Standards Act (FLSA) under the Wage and Hour Division of the U.S Department of Labor, also regulates the employment of minors. Employers faced with differing state and federal laws must apply the law most protective of the minor. State laws regulate the hours a minor can work and prohibit certain occupations in which they can be employed. Severe limitations placed on the hours and type of work that can be performed by minors under the age of 16 make their employment impractical.

Minors working in Arizona are not required to obtain government work permits. Minors between the ages of 16 and 18 are employable if the occupation in question is not deemed hazardous under state or federal law. Minors under 17 years of age working in agriculture are prohibited from employment as motor vehicle drivers or outside helpers and may not be involved in the operation of “power-driven hoisting apparatus” (e.g., forklifts, cranes). Minors between 16 and 17 years old may drive on the job so longs as the total drive time does not exceed two hours per day or 25% of their workday and is limited to not more than fifty or more miles per day. However, since federal law prohibits 16 and 17 year olds from driving on the job, employers should consult counsel before employing such minors in any job that requires them to drive.

Exceptions to the state’s occupational restrictions are as follows:

  • When youths are employed by a parent or relative and that person owns at least 10% of them company and is actively engaged in the daily operation of the organization.
  • When youths are employed in career education programs, vocational or technical training school programs.
  • When youths are employed as apprentices and registered by the Arizona Bureau of Apprenticeship and Training.
  • When youths are employed under the 4-H Federal Extension Service or the United States office of education vocational agriculture training programs.
  • Those employing more than 25 employees (e.g., larger employers) and those employing 25 or fewer employees (e.g., small employers).

Employing Minors – California

California employers must comply with both state and federal laws regulating the employment of minors. Severe limitations placed on the hours and type of work that can be performed by children under the age of 16 make their employment impractical. With some exceptions, California has adopted federal agricultural occupational prohibitions for minors under the age of 16. The U.S. WHD’s Child Labor Bulletin provides detailed information on FLSA provisions applicable to minors employed in agriculture. The California Department of Industrial Relations also provides a very helpful table summarizing its child labor laws.

With limited exception, all California minors under the age of 18 must have a permit to work. Employers seeking to employ minors must possess a valid Permit to Employ and Work. The Permit is typically issued by authorized individuals at the minors’ school or from the school’s superintendent when school is not in session. Minor Work Permits are also typically issued by the individual’s school officials. Work Permits must be renewed on an annual basis.

Employing Minors – Colorado

Colorado employers must also comply with both state and federal laws and as noted above, apply the law most protective of the minor worker. Colorado’s Youth Employment Opportunity Act (CYEOA) sets state standards for the employment of workers under the age of 18. Minors in Colorado are limited by the hours and days they are allowed to work and must obtain a work permit to perform work during school hours. For more information and exemptions to the CYEOA visit the Colorado Department of Labor’s Youth Law homepage.

Employing Minor – New Mexico

Following state and federal laws, New Mexico provides guidance on employing minors through the New Mexico Department of Workforce Solutions (NMDWS). In conjunction with federal labor laws, New Mexico regulates the hours, days and types of jobs youth workers are allowed to perform. Work permits are also required for those under 18 years of age. For additional information visit the NMDWS.

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CDC and CDPH Updates Current COVID Mask Protocols

July 29th, 2021

An increase in COVID-19 cases across the nation has prompted the Centers for Disease Control and Prevention (CDC) to recommend everyone – including fully vaccinated individuals – once again wear masks in indoor public settings where transmissions are considered “substantial” or “high.” To determine your regions level of community transmission (state/county or metro areas) checkout the CDC’s COVID-19 Data Tracker.

Recent investigations of outbreaks of the Delta variant (the predominate variant in the United States) prompted the CDC’s latest interim public heath recommendations. The CDC is now recommending fully vaccinated individuals in non-healthcare settings protect themselves and others by:

  • Wearing a mask in public indoor settings if they are in an “area of substantial or high transmission.”
    • The CDC suggests that fully vaccinated people might choose to wear a mask, regardless of transmission level, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease or if someone in their household is unvaccinated.
  • Getting tested 3-5 days following a known exposure to someone with a suspected or confirmed case of COVID-19, regardless of whether they have symptoms, and wear a mask in public indoor settings for 14 days after exposure or until they receive a negative test result.

The California Department of Public Health issued the same guidance as CDC the next day. While CDC and CDPH recommendations are not mandatory, they do carry significant weight. Employers should expect changes to OSHA directives at the state and federal levels in the coming days and weeks. To ensure compliance with updating state and local guidelines, employers should also continue to monitor state and local public health announcements. Communicating with employees is also key.

Reminding employees that federal, state, and local guidance is based on varying transmissions rates may help workers understand the fluid nature of public health guidelines. This may also help to avoid confusion or distraction caused by changes in workplace protocols due to fluctuating state/community transmission rates.

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EEO-1 Update

July 8th, 2021

The Equal Employment Opportunity Commission (EEOC) has recently announced a new filing deadline for Employer Information Reports (EEO-1). The new deadline is Monday, August 23, 2021.  Due to the impacts of COVID-19 this reporting period will include both the 2019 and 2020 EEO-1 Component 1 forms.

Employers subject to Title VII of the Civil Rights Act of 1964 (Title VII) (e.g., those with 15+ employees) who also employ 100 or more employees, are required to file an annual EEO-1 Report with the EEOC. This filing requirement also includes most federal government contractors with 50+ employees and a federal contract of $50,000 or more. Employers subject to Title VII with fewer than 100 employees who are owned or affiliated with another company or where there is centralized ownership, control or management (e.g., central control of personnel policies and labor relations) so as to legally constitute a single enterprise with 100+ employees, must also file. Find additional eligibility information here.

Employers subject to EEO-1 filing mandates should visit the EEOC’s newly launched EEO-1 Component 1 website for the latest in filing updates, FAQ’s  and additional information.

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Conducting Compliant Background Checks – Arizona

July 29th, 2021

Fair chance or Ban-the-Box laws restrict an employer from asking about an applicant’s criminal background history in the early stages of the hiring process. And while there is no federal Ban the Box law that applies to private sector employers, the EEOC and the Arizona Civil Rights Division prohibit employers from asking an applicant about an arrest record absent a compelling reason to do so. Many Arizona municipalities (Phoenix, Tempe, Flagstaff, and Tucson) have nonetheless enacted Ban-the-Box laws prohibiting employers from requiring applicants to disclose a criminal background history until after the employer has made a conditional offer of employment. Employers should consult legal counsel about local laws governing the use of criminal conviction histories in the hiring process.

Employers, not subject to local ordinances prohibiting such inquires, may ask about criminal convictions on their job applications (e.g., where, when, final disposition of the case) and seek clarification through the interview process so long as a prior conviction is not an absolute bar to employment.

Criminal records are considered to be consumer reports. The FCRA and Arizona’s Consumer Reporting and Fair Credit Reporting statutes provide specific requirements for the dissemination of criminal history records and the release of criminal background information. See details above concerning the use of consumer reports including notice, disclosure, and consent.

Employers should review local laws or consult with legal counsel before asking applicants to disclose criminal history information.

Check in with us next week for additional best practices and tips on conducting background checks in California.

Find these tips and best practices useful? Check out Western Growers newly updated Personnel Procedures Manual (PPM) The PPM is an information-packed employer tool that provides helpful guidance for employers navigating the employer/employee relationship from pre-employment to termination. Click the PPM link in the body of the newsletter for more information. 

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Change Is On The Horizon

July 15th, 2021

On July 9, 2021, President Biden signed an Executive Order “Promoting Competition in the American Economy” (Order) encouraging the Chair of the Federal Trade Commission (FTC) “to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority…to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Ultimately, the Order seeks to push higher wages and better benefits for workers and to restrict, reduce, and even ban certain types of non-compete agreement; those that may unfairly limit worker mobility.

Restrictive covenants limiting competition in employment (e.g., an individual’s ability to freely move between one employment situation and another unencumbered) have been prohibited in California since the Cal. Supreme Court decision in the case Edwards v Arthur Andersen, LLP.[1] A decision which acted as the catalyst for development of one of the strongest non-competition bans in the country. [2] Many states have followed California’s lead by passing laws restricting the use of non-competition agreements.[3] These laws, like President Biden’s Order, focus on low-wage workers and workers in specific industries found to be more vulnerable than most to anti-competition restrictions.

It is important to note the Order alone does not immediately change existing laws concerning non-compete agreements. It does however signal a watershed change to the overall enforceability of such agreements. Nonetheless, employers outside of California should take the opportunity to review and evaluate the terms of any existing restrictive agreements/language currently in use to ensure its restrictions are reasonable under the circumstances and narrowly tailored. This effort could go a long way to increase the likelihood of enforceability down the road.

When considering the reasonableness of any restrictive agreement/language, employers should consider the reasons behind any existing restrictive agreements/language (e.g., protecting legitimate trade secrets or confidential information such as intellectual property or non-pubic market information relating to the business and/or its customers) and make sure they are explicitly stated and clearly articulated.

[1] 44 Cal. 4th 937 (2008).

[2] With very limited exception, California law prohibits any unlawful restraint of an individual’s profession, company, or company property.

[3] Non-competition laws have been passed in many states including Illinois, Louisiana, Maine, Maryland, Massachusetts, Nevada, New Hampshire, Oregon, Rode Island, Washington and Washington D.C.

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Developing an Effective Recruiting Process

July 15th, 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, saves time as well as money.

Developing a step-by-step recruiting process allows an employer time to identify its workforce needs,decide how to attract and find the best recruits, and ultimately hire the most qualified candidates. Keeping in mind that specific details of the hiring process will be unique to your operation, we have included below some of the most common steps in the recruiting process.

The first step in any recruiting process is to identify the hiring need. Is the operation looking at expansion efforts, filling a vacated position, or managing existing workloads? Answering this initial question will focus the recruiting efforts as you move through the plan.

The next steps taken will initiate recruitment efforts and depend largely on the position the organization is looking to fill. If the position to be filled is newly created, it is important to clearly identify how the new role integrates with existing operations. Internal teams and employees impacted by the new position should be kept updated on recruitment efforts and estimated timelines. If the hiring need is to fill or expand existing positions, it will be important to consider who will be involved in the hiring decisions, recruitment timelines, and interview schedules. Other important factors to consider at this stage include, how to publicize the open/new position, criteria for candidate screenings, what type of interview process will be utilized, and who will be conducting the interviews.

Once these initial questions are answered, creating or updating the relevant job description(s) is the next step.

With the job description prepared, it’s time to decide where to search for the most qualified candidates.  Apart from internal candidates, publicity efforts will likely include a combination of these resources. While most of these resources rely on interested candidates responding to advertising efforts, employers can take the initiative by actively seeking qualified candidates at job fairs and on social media platforms such as LinkedIn. Caution should be exercised if advertising on websites or social media sites such as Facebook that are not dedicated to job seekers.

Once an employer has decided the best method for sourcing qualified candidates, the next steps include application review, initial screening efforts, interviews, selection, the conditional offer of employment, background/reference checks and final approval.

Check in with us next week for best practices and tips on conducting background checks.

Find these tips and best practices useful? Check out Western Growers newly updated Personnel Procedures Manual (PPM) The PPM is an information-packed employer tool that provides helpful guidance for employers navigating the employer/employee relationship from pre-employment to termination. Click the PPM link in the body of the newsletter for more information.

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Introducing the DiSC Strength Assessment

July 22nd, 2021

Deepen your understanding of yourself and others by attending the “Everything DiSC® Workplace Profile” training on August 23, 2021.

We believe an organization’s true potential lies within its people. Unlock engagement, inspire collaboration, and ignite cultural transformation with the Everything DiSC® Workplace Profile. This course is for everyone in your organization, regardless of title or role. Powered by 40+ years of research, this simple but powerful model describes four basic styles: D, i, S, and C, and serves as the foundation for the Everything DiSC Application Suite.

Each participant receives a 20-page personalized report that measures their preferences and tendencies. The assessment is filled with actionable strategies for improving individual performance. Participants learn to deepen their understanding of how to appreciate the styles and strengths of other people they interact with, from co-workers, to friends and family. These insights lay the groundwork for experiences rich in “Aha!” moments that inspire behavior change. You can expect this customizable solution to meet and exceed your organization’s unique training needs.

Event Details:
When: Monday August 23, 2021 – 8:30AM – 4:30PM PDT
Where: Agricultural Personnel Management Association (APMA), 512 Pajaro St., #7, Salinas, CA 93901
Cost (WG Members recieve a discounted rate): $279.80

REGISTER NOW

Start your organization on the path from personal insight to cultural change today by clicking here to learn more.

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Senate Confirms Julie Su U.S. Deputy Secretary of Labor

July 15th, 2021

Julie Su, former California Labor Commissioner (2011 – 2018) and Secretary for the California Labor and Workforce Development Agency (LWDA), has been confirmed by the U.S. Senate (50-47) as Deputy Secretary of Labor. Known as a recognized expert on workers’ rights and civil rights, employers nationwide can expect Su to continue enforcement efforts on behalf of vulnerable workers. Supported by union and worker advocacy groups Su will join former union leader and Boston mayor Marty Walsh in the number 2 top position at the labor department. 

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National Ag, Water Coalition Applauds Committee Passage of Infrastructure Bill

July 14th, 2021

IRVINE, Calif. (July 14, 2021) – A national coalition representing thousands of Western farmers, ranchers, water providers, businesses and communities applauded passage of the Energy Infrastructure Act today by the Senate Committee on Energy and Natural Resources (ENR), and pressed the full Senate to expeditiously take up the bill on the floor.

“On behalf of Western farmers, ranchers, businesses and residents, we commend Chairman Manchin and the Senate ENR Committee for their commitment to drafting and passing a balanced infrastructure package that includes resources for critical Western water supply needs,” Family Farm Alliance Executive Director Dan Keppen said.

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.

Prior to Senate ENR Committee consideration of the Energy Infrastructure Act, the coalition sent a letter to Chairman Joe Manchin and Ranking Member John Barrasso expressing support for the Western water elements included in Title VIII and IX of the bill.

In the letter, the coalition notes that changing Western hydrological conditions and expanding populations require immediate federal investments in repairing aging water infrastructure and developing new sources of water supply.

“We support the all-of-above approach taken in the Energy Infrastructure Act, which includes more than $8 billion for Western water projects that expand conservation and recycling efforts, improve ecosystems, fix crumbling dams and canals, and build new storage and conveyance facilities,” Association of California Water Agencies Executive Director Dave Eggerton said.

In addition to the stabilizing the West’s water outlook, the coalition letter states that the infrastructure package represents a historic opportunity to aid in the nation’s economic recovery. Both workers and the economy will benefit from the increased demand for equipment and materials these water projects will require from American companies.

But the time to act is now, according to the coalition.

“As drought conditions move from bad to worse across the West, action is needed,” National Water Resources Association President Christine Arbogast said. “To minimize the fallout from this historic drought and to ensure future generations have access to a safe, reliable and affordable water supply, we call on the Senate to bring the Energy Infrastructure Act to the floor as quickly as possible.” 

Below is a summary of the Western water provisions in Title IX:

  • Aging Infrastructure: $3.2 billion, includes $100 million for certain Reclamation projects suffering a critical failure and $100 million for repairs to certain Carey Act dams
  • Water Storage, Groundwater Storage and Conveyance: $1.15 billion, includes $100 million for new 25% grants for small surface/groundwater storage projects
  • Water Recycling: $1 billion, includes $450 million for new authorized large water recycling project grant program
  • Desalination: $250 million
  • Rural Water: $1 billion
  • Dam Safety: $500 million
  • Drought Contingency Plan: $300 million, includes $50 million for Upper Basin States
  • WaterSMART: $400 million, includes $100 million for natural infrastructure projects
  • Cooperative Watershed Management: $100 million
  • Aquatic Ecosystem Restoration Program: $250 million
  • Watershed Enhancement Projects: $100 million
  • Colorado River Endangered Species Recovery and Conservation Programs: $50 million

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

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 provide comprehensive leadership, advocacy and resources for California public water agencies to ensure a high quality and reliable water supply in an environmentally sustainable and fiscally 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. 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.

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Controversy Laid To Rest: The ‘Regular Rate of Pay’ Dilemma.

July 22nd, 2021

On July 15, 2021, the California Supreme Court decided Ferra v. Loews Hollywood Hotel, LLC. The question at issue: The statutory meaning of the wage and hours terms, ‘regular rate of compensation’ and ‘regular rate of pay,’ and “whether the Legislature intended ‘regular rate of compensation’[i][] to have the same meaning as ‘regular rate of pay’[ii][]such that the calculation of premium pay for a noncompliant meal, rest, or recovery period, like the calculation of overtime pay, must account for not only hourly wages but also other nondiscretionary payments for work performed by the employee.” In a unanimous decision the Court ruled the terms “are synonymous and encompass[] all nondiscretionary payment, not just hourly wages.”

What It Means…

The Court’s determination that the terms are synonymous means that meal, rest, or recovery period premiums (i.e., one additional hour of pay) must be paid using the current calculation for determining overtime using the “regular rate of pay” which factors in all nondiscretionary payments (e.g., bonuses, commissions, piece rate earnings, etc.). Most importantly, the Court’s decision applies retroactively.

To assure compliance with the Court’s ruling employers should consider the following:

  • Immediately audit existing payroll records – going back for the entire statute of limitations period of three years – to determine whether meal/rest breaks or recovery premiums were paid at the employee’s “regular rate of pay” (i.e., factoring in all nondiscretionary payments).
  • If the employer’s audit shows meal/rest breaks or recovery premiums have been paid based on the employee’s “base hourly rate” the employer should consider:
    • Immediately updating existing payroll systems (or contacting their current payroll provider) to adjust to the correct rate of pay (i.e., employee’s regular rate of pay).
    • Initiate a payroll audit process going forward to ensure workers are complying with all wage and hours laws, including meal/rest or recovery requirements. This is especially important for those whose employees are:
      • Paid on a piece-rate or commission basis
      • Earn varying wage rates in a workweek; or
      • Are eligible for non-discretionary bonuses and incentives.
    • Consult with legal counsel to discuss and determine a strategy to reduce the risk of litigation for any retroactive violations.

Growers seeking further information about the implications of the Ferra decision should contact Western Growers.

[i] Cal. Lab. Code section 226.7(c)

[ii] Cal. Lab. Code section 510(a)

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