Congratulatory Ads, Tables for Award of Honor Recipient Carol Chandler Now Available for Purchase

October 5th, 2021

Western Growers will give Chandler Farms’ Carol Chandler its highest honor, the Award of Honor, during the 2021 Annual Meeting that is being held between Nov. 7 – 10 in San Diego. You can join us in celebrating Chandler by purchasing a congratulatory advertisement or by reserving a table to receive preferred seating at the ceremony, which will be held at the Fairmont Grand Del Mar.

A half- page ad in the Award of Honor Dinner Program costs $250, while a full-page ad is priced at $500.

A Gold Circle table, which seats 10, can be purchased for $5,000. This will guarantee a reserved table towards the front of the room. If anyone wishes to attend the Award of Honor ceremony and not the entirety of the Annual Meeting, WG can create a single ticket badge so they can attend.

The deadline for placing advertisements and purchasing a table is Oct. 20, 2021. To take advantage of sponsorship opportunities, run a congratulatory ad in the Award of Honor Dinner Program, or purchase a table for the Award of Honor Dinner please contact Kim Sherman at [email protected] for more details.

More information about the Western Growers Annual meeting can be found at wgannualmeeting.com.

Best Practices: Performance Reviews Formats

October 1st, 2021

As discussed here, performance reviews, or employee evaluations, are an important tool for supervisors and managers to strengthen employees’ performance and acknowledge high achievers. Continuing our best practices discussion for effective performance reviews we provide the following tips on performance review formats. 

The two major styles in writing reviews are a narrative style and a rating system. The narrative requires the manager or supervisor to write out comments about the employee and the job performance in response to a broad question. The rating system “grades” the employee on various factors. Many companies find a combination of narrative and ratings to be effective. How much of each kind will be used is a decision left up to management. Each has advantages and disadvantages. For example, narratives such as “describe employee’s performance in regard to quality” provokes the supervisor or manager to write their own thoughts about the performance. If periodic discussions are conducted throughout the year with the employee are documented and specific, this will be easier for the supervisor to do. These thoughts tend to be job specific, obviously, and relate to the company’s performance standards.

The downside is that many supervisors will feel unsure about how to express themselves or what to write about. In the ratings section, the supervisor may find it easier to check a box or circle a number; but the information tends to be generic and less specific. The employee must be able to relate to the information in a review, to correct behavior or continue doing a good job.

Oftentimes a company will utilize a format that asks for a rating and then provides space for a written explanation or substantiation of the rating. It is essential that the rationalization be specific and factual, so the employee understands what is being discussed. Typically, employee review forms end with an overall rating of the employee’s performance. This can be extremely helpful in summarizing the other aspects of the review to a conclusion. The employee then leaves the review process with a clear understanding of their overall performance regarding the standards of the job. Managers and supervisors must be aware, though, that the entire review should point logically to this conclusion. If the overall rating does not make sense when compared to other ratings and comments, confusion results. This is to be avoided as it may lead to the employee finding other reasons for the rating (e.g., discrimination, favoritism, etc.).

It is important to keep in mind, however, that even though both the supervisor and employee expect a review to include a “rating” of the employee, this is not the only purpose for an employee evaluation. Another key component is to engage in a dialogue with the employee to assist the employee in improving performance and developing their skills.

The evaluation form and procedure can also incorporate the “team” concept. Since very few employees work entirely independent of others, the supervisor may want to include a rating or narrative on the team as a whole. This also fosters an incentive for everyone in the work group to do their part so that the “team” is successful.

Any form used should be provided to the employee. Sometimes employees are asked to do a “self-evaluation” which can identify whether the supervisor and employee are focusing on the same issues. In any event, the employee should know the criteria for the review so that they can engage in a discussion with the supervisor.

Reimagining Work and Workplaces

October 1st, 2021

Pre-pandemic workplace thinking emphasized the traditional ‘brick and mortar’ office as critical to productivity, culture and recruiting efforts. A year of pandemic induced need quickly integrated videoconferencing technology and other forms of digital collaboration into our work lives creating unique and non-traditional work environments.

As businesses across the nation begin to contemplate the great ‘return to work’ much of what we consider to be traditional – in a workplace context – is being questioned.  As your organization looks ahead, consider the following as you reimagine what the future might hold for your workplace:

Rethink How Work is Performed
Given the fast pace of complying with ever-changing COVID-19 regulations and health and safety protocols, many businesses simply transplanted existing work processes into a virtual environment; attempting to mimic existing processes. While this may have worked in some business contexts, it may have failed for others.

Looking ahead, consider identifying the major components of your business with the assumption that remote work will continue in one form or another. Assess each component asking yourself (and others) which parts of this process require a physical presence from start to finish? Are there some parts of the process that can be performed remotely and others that require in-person interaction? Can the best parts of in-person and remote work co-exist with these major components of your business?

Redesign Where Work is Performed
Traditional office space – the mixture of private offices, cubicles, meeting rooms and shared dining/relaxation areas – rarely reflects specific business priorities. Working from an assumption that at least some work will continue to be performed remotely, businesses could reimagine existing workspaces to reflect this new reality.

If collaboration is the primary use of existing workspace, why not have the space reflect that purpose? If workspace need only be provided for those who cannot or choose not to work remotely, would it be better to provide smaller working spaces closer to where those employees live? A workplace that incorporates videoconferencing, in-person, and remote workspaces, where work is allowed to be performed simultaneously in various locations, provides the best of what the traditional and modern workplace has to offer.

To reimagine the workplace of the future means meshing the boundaries between traditional work concepts and digital opportunities with the goals of maintaining productivity, improving the workplace experience, collaboration, and culture. This is the perfect time for workforce leaders to reinvent the workplace and redefine what it means to provide a safe work environment that enhances the employee experience, improves productivity, and reduces costs.

How will you reimagine your workplace?

WG Sponsored-Organic Grower Summit Announces Featured Workshops

October 12th, 2021

Join Western Growers for the Organic Grower Summit 2021 on December 1-2 for a series of educational sessions and workshops aimed at improving the bottom line for organic farmers. 

OGS 2021 recently announced details on three featured workshops:

  • “Organic Grower Perspectives on the Challenges of Scaling” – this session will explore how organic growing operations can navigate the changing marketplace to better fill the supply chain and offer products on a mass scale
  • “Building Resilience through Organic Farming Systems” – an in-depth workshop on soil health practices and strategies employed in organic production systems that can build resilience to climate shock
  • “Innovative and Compatible Ag Inputs for Today’s Organic Grower” – an examination of how organic growers can best utilize approved bio inputs in the most efficient and effective manner for their crops and bottom line.

These three workshops will accompany a number of other riveting information sessions on the ever-changing organic production opportunities and challenges as well as keynote presentations from influential and preeminent speakers. Click here for the full schedule. 

As part of Western Growers sponsorship of the event, all Western Growers members will receive a $100 discount on the general attendee registration. Exhibitor booth registration is also now open. All startups in the Western Growers Center for Innovation & Technology are eligible for a discount on the booth registration. Register for the event or purchase an agtech startup booth at https://www.organicgrowersummit.com/registration/.

EVENT DETAILS:
Organic Grower Summit 2021
Date:
December 1-2, 2021
Register: Registration for both General Attendee Registration and Exhibitor Booth Registration is available at https://www.organicgrowersummit.com/registration/

  • General Attendee Registration Rates:
    • Western Growers Members: $395
    •  General Attendee: $495
    • One-Day Pass for Thursday, December 2: $295
       
  • Exhibitor Booth Registration Rates:
    •  WGCIT Innovation Alley Pavilion Table (include 1 registration): $1,000
    • 8×10 Booth (includes 3 registrations): $3,900

For questions, contact Walt Duflock at (949) 345-5997.

Gordon Chang to Keynote PAC Lunch at Western Growers 2021 Annual Meeting

October 12th, 2021

Attorney and author Gordon G. Chang will deliver the keynote at the PAC Lunch Nov. 8 at the Western Growers 2021 Annual Meeting. Chang lived and worked in China and Hong Kong for almost two decades, most recently as Counsel to American law firm Paul Weiss in Shanghai. Previously he was a Partner at the Hong Kong law firm Baker & McKenzie.

Chang is the author of “The Great U.S. – China Tech War,” “Losing South Korea,” “Nuclear Showdown: North Korea Takes on the World” and “The Coming Collapse of China.” He has appeared before the House Committee on Foreign Affairs and the U.S. – China Economic and Security Review Commission.

The Western Growers 2021 Annual Meeting will take place from Nov. 7-10, 2021 at the Fairmont Grand Del Mar in San Diego. For more information, please visit www.wgannualmeeting.com/.

 

Best Practices: Managing Vacation Benefits

October 7th, 2021

In today’s competitive job market, a generous benefits package can be an essential tool for attracting and retaining top talent. Still reeling from the impacts of an unprecedented pandemic, workers are now, more than ever, focused on their well-being and achieving a greater work-life balance. In fact, a recent Deloitte study found 80% of those who responded ranked “well-being” as a top trend. To aid in recruiting and retention efforts a growing number of employers are initiating or revising current vacation benefits policies. Below are a few key points to keep in mind to ensure your vacation policy is legally compliant. 

Employers are not required by law to provide employees with paid vacation; it is a non-mandatory benefit. However, once an employer elects to provide paid vacation to its employees, there are some important guidelines that must be followed.

Offering Vacation Benefits
Under California law, once accrued, vacation time is considered wages. This is because vacation time is earned as work is performed. Vacation time cannot be forfeited for any reason including termination. Because vacation is considered a discretionary benefit, employers retain the right to: 1) control when an employee begins accruing vacation benefits; 2) control when an employee may take vacation time; 3) cap the amount of vacation an employee may accrue; 4) make certain classifications of employees eligible and others not; and 5) determine the accrual rate. Lastly, because vacation pay is considered wages it must be paid out upon termination.

Arizona law no longer expressly includes vacation pay in its definition of “wages.” However, prior to its 2016 statutory amendments, wages due at separation included vacation pay if the employer had a policy or practice of making such payments.

As discussed here, Colorado has recently made important changes to existing laws regarding earned but unused vacation benefits. These changes have brought Colorado into alignment with both Arizona and California laws prohibiting “use-it-or-lose-it” vacation-related policies. All three states require an employer who chooses to offer vacation pay benefits to pay out any accrued/earned, but unused vacation pay upon separation of employment.

How Vacation Is Accrued?
Many agricultural operations provide a vacation benefit structure that pays out accrued vacation time in money at the end of their fiscal year. This allows the employer to offer vacation as a benefit, but not have to worry about employees wanting to take time off during the busy season. Employers have the flexibility to decide what percentage of the employee’s gross wages will be given to them in vacation pay. In addition, many companies split the season into two “periods” and calculate the vacation pay differently depending on the “period” of the year. For example, a company may pay 2% of gross wages during the first 6 months of the season (or the first 500 hours worked); and then pay 4% during the second 6 months (or any hours over 500).

For salaried employees, the accrual method is usually a certain number of days per year. For example, if an employee receives one week of vacation per year, that employee is accruing 5 days over a twelve-month period. If that employee were to leave four months into their employment (without taking any vacation time), the company would owe that person 1.6 days. The calculation is that five days over 12 months is 0.4 days per month, times the four months the employee worked. Although the Labor Commissioner of California has stated that technically vacation is accrued daily, weekly and/or monthly calculation may suffice.

Members who have questions regarding implementation of vacation pay benefits policies should contact Western Growers.

UC Davis Report Reveals Economic Impact of November 2018 Romaine Outbreak

October 19th, 2021

The agricultural sector lost more than $280 million as a result of the Nov. 2018 E. coli incident in romaine lettuce, according to a report published by the University of California at Davis.

According to the study, processors and shippers lost an estimated $20.6 million as a result of having to pull harvested product from the supply chain and another $37.3 million as a result of product that could not be harvested or sold.

Grocery retailers suffered an estimated loss of $25.7 million due to price changes and having to pull product; food service operators lost $1.2 million. Losses incurred by suppliers of inputs, such as labor and materials, make up the rest of the amount, which could range as high as $350 million in total because of the elasticity of this pricing, the report said.

The full study, by UC Davis professors Rachael Goodhue, Kristin Kiesel, Richard Sexton and postdoc scholar Ashley Spalding, is available here.

The report comes on the heels of Western Growers’ partnership with scientific modeling and data analytics service Creme Global to create a comprehensive food safety data-sharing tool. This tool will allow participating growers to autonomously and anonymously improve and enhance food safety management and proactively develop new strategies for outbreak prevention. For more information, please contact Western Growers SVP, Science De Ann Davis at [email protected]

 

DHS Extends Updated Form I-9 Procedures

October 7th, 2021

U.S Immigration and Customs Enforcement (ICE) has extended its new employee Form I-9 compliance flexibility regulations until December 31, 2021.

Initial flexibility regulations temporarily exempted employees hired on or after April 1, 2021 – working exclusively in a remote setting due to COVID-19-related precautions – from ICE’s physical inspection requirements associated with completion of its Form I-9. The new flexibility requirements extension will remain in effect until such employees are no longer working remotely on a “regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”

These flexibility requirements apply only to employers and workplaces that are operating remotely. For newly hired employees who are physically present at a work location, no exception applies. Employers should continue to monitor U.S. Department of Homeland Security and ICE websites for additional updates and changing regulations.

Members who have questions concerning Form I-9 compliance should contact Western Growers. 

Last Chance to Register for the Western Growers 2021 Annual Meeting

October 28th, 2021

It’s the final few days to sign up for the Western Growers 2021 Annual Meeting, as the deadline to register for the event at the Fairmont Grand Del Mar in San Diego is Nov. 1.

The Annual Meeting will be held from Nov. 7 -10, and there are numerous can’t-be-missed educational opportunities and social events.

Keynote speakers include entrepreneur Magatte Wade; columnist, author and lawyer Gordon Chang and economic liberty, private property rights and free speech litigator Timothy Sandefur.

Two informational panels will be held: “On a Dry Horizon: Water and Agriculture in the West” and “Replace or Rejuvenate? The Future of Vertical Farming in Fresh Produce Production.”

The popular AgSharks competition will see agtech startups vie for a $250,000 investment in front of industry judges.

And don’t forget the Award of Honor Dinner, which this year will honor Chandler Farms’ Carol Chandler.

The event will wrap up with the traditional Golf Tournament & Lunch at the Grand Del Mar Golf Course.

For more information and to register, please go to wgannualmeeting.com.

Change to Cal/OSHA ETS Self-Quarantine Requirements

October 7th, 2021

On September 21, 2021 Cal/OSHA updated its current emergency temporary standards (ETS) FAQs to incorporate newly released guidance from the California Department of Public Health (CDPH).

One of the most notable changes is the relaxing of existing quarantine requirements for unvaccinated, asymptomatic workers. The updated ETS now offers alternative quarantine periods for asymptomatic unvaccinated workers that is more in keeping with CDPH recommendations.

Impacted workers now have the option to end quarantine either 10 days after exposure or 7 days after exposure with a negative COVID test. There is one caveat: The diagnostic specimen must be collected for testing at least 5 days from the date of exposure. Employers must also keep in mind that if they prevent an employee from complying with the shorter quarantine period the longer ETS quarantine period will still apply.

We will continue to monitor ETS updates and revisions and report on them in this space. Members with questions about the ETS or CDPH recommendations should contact Western Growers.

Vaccination Information and HIPAA in the Workplace

October 12th, 2021

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) has been a source of workplace confusion since it was signed into law by  President Bill Clinton on August 21, 1996.[i] What is HIPAA and how does it apply in a workplace setting are among the most asked questions.

HIPAA is a federal law that protects a patient’s sensitive health information from being disclosed without their consent or knowledge. The U.S Department of Health and Human Services (HHS) created the HIPAA Privacy Rule as a means of implementing specific protection requirements of HIPAA. These privacy requirements address the disclosure and use of an individual’s health information by those entities subject to HIPAA rules.

One of the major goals of the HIPAA Privacy Rule is to ensure individual health information is protected while allowing necessary information to be disclosed in an effort to promote quality health care for the individual and at the same time protect the health and well-being of all citizens. The confusion – from a workplace perspective – stems from a general misunderstanding of the types of individuals and organizations subject to the HIPAA Privacy Rule.

Who is considered a “covered entity” under the HIPAA Privacy Rule?
The following are the types of individuals and organizations considered to be a “covered entity” under the HIPAA Privacy Rule:

  • Healthcare Providers: This includes any healthcare provider who electronically submits health information in connection with certain transactions (e.g., claims, benefit eligibility inquiries, referral authorizations).
  • Healthcare Clearinghouses: These are entities that process nonstandard information received from third parties into standard format or data content, or vice versa.
  • Health Plans: These are entities that provide or pay the cost of medical care. This can include employer-sponsored group health plans but does not include group plans with fewer than 50 participants administered and maintained solely by the employer.
  • Business Associates: These include a person or organization (not a member of a covered entity’s workforce) who uses or discloses individually identifiable health information as a means of performing or providing functions, activities, or services for a covered entity (e.g., claims processing, data analysis, utilization review and billing).

If your workplace does not fall into one of the above categories, the HIPAA Privacy Rule requirements do not apply.

Other Applicable Privacy Regulations
While a specific workplace may not qualify as a “covered entity” for the purposes of HIPAA Privacy Rule requirements, other federal, state or local privacy laws may apply. For example, California’s labor laws require an employer to maintain the confidentiality of employee medical documents and information (e.g., records relating to workers’ compensation claims, health insurance claims, and disability or medical leaves).

HIPAA, COVID-19 and Vaccination Information
The onset of COVID-19, coupled with a subsequent rise in employer mandated vaccination requirements, has brought the issue of medical privacy and existing confusion associated with HIPAA Privacy Rule requirements to the forefront of nearly every workplace in America. So much so, that HHS recently updated its HIPAA COVID-19 guidance to provide additional clarification.[ii]  A few key points are outlined below.

Inquiries About Vaccination Status
Nothing prevents a covered or exempt entity from asking whether a customer, client, or employee has received a COVID-19 vaccination. As discussed here, a business may lawfully require workers to be vaccinated as a condition of coming into the workplace. Naturally, this allows an employer to question its employees about their vaccination status. Since HIPAA applies only to covered entities and does not regulate what a covered entity requests from patients or visitors (only what information is collected, stored, and discriminated) even a covered entity may ask about an individual’s vaccination status.

Specifically, the HIPAA guidance notes that the HIPAA Privacy Rule does not apply when an individual: 1) is asked about vaccination status by an employer or another individual; 2) asks another individual about their vaccination status; or 3) asks a company whether its workforce is vaccinated.

Because HHS does not have the statutory authority to regulate employers,[iii] the HIPAA Privacy Rule does not apply to employment records nor does it regulate what protected health information can be requested by an employer. Again, while HIPAA may not apply, other state or local laws may impact what information an employer can request and how that requested information must be maintained.

Inquiry Limits
There are HIPAA Privacy Rule limits that impact the exchange of vaccination-related information between an employee’s healthcare provider and the employer. As a rule, a doctor’s office is prohibited from disclosing an individual’s personal health information (HIPAA Privacy Rule limitations) directly to an employer. This prohibition includes disclosure of an individual’s vaccination status. A covered entity can only disclose an individual’s vaccination status under the following conditions:

  • Using an employee signed HIPAA compliance authorization form presented to the employer; or
  • For medical surveillance, if certain, specific requirements are met.

Members with questions about privacy protection or managing employee records should contact Western Growers.


[i] Information provided by U.S Center for Disease Control and Prevention.

[ii] HHS released its updated guidance information on September 30, 2021.

[iii] 45 CFR 160.103; 65 FR 82426, 82592 (December 28, 2000); 67 FR 53182, 53192 (August 14, 2002).

Best Practices: The Ongoing COVID-19 Workers’ Compensation Presumption

October 12th, 2021

Enacted September 2020, SB 1159 codified and superseded Gov. Newsom’s Executive Order No-62-20. The statute applies to California employers with five or more employees and employees who test positive for COVID-19 during an outbreak at their place of work on or after July 6, 2020. As the state continues to recover from the impacts of the COVID-19 pandemic it is worth keeping in mind that this statute’s rebuttable presumption remains in effect until January 1, 2023.

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.

Members with questions about COVID-19 mandates should check out Western Growers COVID-19 Resources for additional information.

The Compensation Trap

October 12th, 2021

Starting January 1, 2022, California employers risk criminal charges for the intentional theft of wages.[i] An intentional theft of wages in an amount greater than $950 for one employee, or $2,350 for two or more employees will subject an employer to a criminal charge of grand theft. Given the severity for failing to pay workers for all time owed, it is important to be mindful of some of the more common wage mistakes that can land an employer in serious trouble. Provided below are a few important reminders.

Payment of Wages for All Time Worked
In California, employers must pay nonexempt (i.e., hourly) employees for all hours worked. In the past, certain small amounts of time (e.g., opening the facility or locking) up were considered “de minimis” (i.e., too trivial or minor to merit consideration) and were not counted as hours worked. However, the California Supreme Court has made clear that even time considered “de minimis” must be compensated when the work performed  is done on a regular basis or as part of the job.

However, because the Court is unclear as to what might be considered de minimis, it is recommended that employees be paid for all time worked, including short periods of time for required pre/post duties; even if it is a small amount of time and/or doesn’t occur regularly.

Reporting Time (Time Spent Waiting)
Under California law, employees must be paid for all hours worked. This would include hours for which the employee is subject to the control of the employer even when hired to do nothing, merely wait around, or check in to find out whether they must report to work that day. IWC Orders for packing/processing and agricultural employees provides that if an employee is required to report for work at a scheduled time, and does, but is not put to work or works less than half of their usual day, that employee will receive reporting time pay.

Reporting time pay is 1.5 the normal hours worked at the regular rate for that employee at a minimum of 2 hours and a maximum of 4 hours. If an employee is required to report for work a second time, and works less than 2 hours, the employee must be paid for 2 hours at their regular rate of pay.

Reporting time pay is waived if the reason for stopping work is:

  • At the recommendation of civil authorities
  • When employees’ or the employer’s property is threatened
  • When public utilities fail; or
  • Due to an act of God or other causes not within the employer’s control.

According to the Division of Labor Standards Enforcement, if employees are required to wait out a weather delay, they must be paid for all time that they are restricted to the premises or worksite. Even if employees are relieved of all duties except for waiting for the weather to clear up, they must be paid their regular rate if they aren’t free to leave during that time.  The U.S. Wage & Hour Division takes the position that employees being told to wait at the nearby WalMart while crops are thawing are considered under the control of the employer, and must be paid for that time.

Reimbursement of Expenses
California employers are required to indemnify (i.e., reimburse) employees for all necessary expenditures or losses incurred by the employee as a direct consequence of the performance of their duties.

While it is yet unclear how this new criminal penalty will be interpreted or enforced, employers should take this opportunity to analyze and audit current compensation policies and practices. Increased training on internal policies and California law will also reinforce the seriousness of tight compliance. Most importantly, employers needing to take corrective measures after conducting an internal audit or review should contact legal counsel to ensure compliance with current laws.

Members with questions about wage and hour practices should contact Western Growers.


[i] AB1003 signed by the Governor September 27, 2021, effective January 1, 2022.

Religious Accommodation – Are There Limits?

October 21st, 2021

It is considered an unlawful employment practice for an employer to discriminate against an employee/applicant because of a conflict between the person’s religious belief or observance and any employment requirement unless providing the accommodation would result in an undue hardship.

Employers who receive religious based accommodation requests – including those made in response to vaccination mandates – must engage in a timely good faith interactive process and consider any available reasonable accommodation including:

  • Any available reasonable alternative means of accommodating the religious belief or observance.
  • The possibilities of excusing the person from those duties that conflict with the person’s religious belief or observance; or
  • Permitting those duties to be performed at another time or by another person.

Religious belief or observance includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and after a religious observance, religious dress practice and religious grooming practices. A religious belief may also include a refusal to receive a vaccination because of a sincerely held religious belief that, “my body is my temple.” This is true even if the employer observes the employee acting in a manner contrary to that belief (e.g., drug use or excessive alcohol consumption).

What about sincerely held religious beliefs that conflict with the individual’s stated religious affiliation? For example, it is feasible that a professed Catholic may still refuse the COVID-19 vaccination on religious grounds even though the Vatican deems use of the vaccination “morally acceptable.” On the other end of the religious spectrum are Atheist beliefs; protected under the law because they are viewed as “taking a position on divinity.” Federal law (e.g., Title VII) reminds us that the “definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.” 

No matter the nature of the professed belief, observation, or practice, it is recommended that employers receiving a request for religious accommodation begin the accommodation process with the assumption that the employee’s request is based on a sincerely held belief, practice, or observance. However, if during the interactive process, the employer becomes aware of facts providing an objective basis for questioning either the religious nature or sincerity of a particular belief, practice or observation, they would be justified in requesting additional supporting information.  

The Equal Employment Opportunity Commission (EEOC) provides the following guidance to its investigators:

  • Begin with the individual’s statements. What belief, observance, or practice does the individual claim conflicts with the employment requirement? Does the individual’s response seem credible? Is the individual able to answer questions about the nature and tenets of the religious belief, and/or any associated practices, rituals, clergy, observances, etc., in order to identify a specific religious belief, observance, or practice, or determine if one is at issue, which conflicts with the employment requirement?
  • Religious beliefs are unique to the individual, evidence from others is not always necessary. Nonetheless, if the individual believes that oral statements, affidavits or other documents from their religious leader or others identified as being knowledgeable about the religious belief, observance, or practice would bolster support for the request, it might be helpful to consider such additional information.

Finally, in determining if a religious accommodation can be made, the employer must determine whether the specific accommodation requested by the employee or the only accommodation that the employer can identify causes an undue hardship. The determination of whether a specific accommodation would pose an undue hardship is fact-specific and may change over time.

In all situations, employers should try to maintain a fresh perspective and keep in mind the intensely personal nature of adherence to a religious belief by evaluating each request on a case-by-case basis.

NOTE: Accommodating an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public. Employers are not required to provide accommodations that would result in a violation of antidiscrimination or civil rights laws.

As with all anti-discrimination provisions, employers are prohibited from retaliating against individuals who seek religious based accommodations.

Members with questions about providing religious accommodations should contact Western Growers and seek legal counsel before denying such a request. 

Check – No Check

October 28th, 2021

With the COVID-19 threat unresolved, companies nationwide are on the horns of a dilemma on several fronts; decisions about how to return to work and whether to mandate employee vaccination are just the tip of the iceberg. New concerns about verifying the authenticity of vaccination cards are slowly edging their way to the top of a very slippery slope.

In an ideal world, having a fully vaccinated workforce is the safest way to return to the office, even in a hybrid situation. But how does one go about verifying the vaccination status of even the smallest workforce? The honor system, tech-based verification tools, or team member verification? The possibilities are wide-ranging and offer varying degrees of surety depending on the company’s risk management comfort levels.

Employing the “what’s the other guy doing” method of problem solving doesn’t really offer much insight as even the largest employers are divided on their approach to vaccination verification. Companies like AT&T, Twitter, Pinterest, and Lyft are all opting for the honor system. These companies have placed the burden of providing valid vaccination records squarely on the shoulders of their employees with little oversight. Taking the view that without standardized methods for proving or disproving the validity of vaccination cards it is best to rely on the integrity of the individual. Others such as Google, Salesforce, and the San Antonio Spurs are going the tech route and relying on third-party authentication providers such as ReturnSafe and One Medical.

Both methods have their pros and cons. Third-party verification technology offers the benefit of administration and can assist in separating and securely storing employee health data apart from other company records, as required by all employers. Third-party verification also comes with a price tag; how hefty depends on the number of services utilized. On the other hand, the honor system relies on individual integrity and the knowledge that violations of the company code of conduct could result in dismissal and/or criminal charges.[i] It also has far-reaching implications for whether employees feel safe at work.

Whichever route your organization chooses to take it is important that employees understand the implications of falsely verifying their vaccination status. A review of your current handbook is important to ensure it contains a code of conduct or similar provision that prohibits employees from engaging in fraudulent conduct and puts them on notice of the disciplinary consequences of violating the policy.

Members with questions about checking the validity of employee vaccination cards should contact Western Growers.


[i] The use and forgery of a government seal – such as the ones on the CDC vaccination card – is illegal under federal law and carries penalties of $5,000 or up to five years in prison.

Best Practices: Workplace Privacy

October 28th, 2021

Advances in technology have created new concerns for workplace privacy. Automated systems, email and instant messaging technology have helped employers reduce operating costs and increase efficiency. These systems have also increased the employer’s risk when it comes to protecting information shared during the employment relationship.

The Right to Privacy
The U.S. Constitution does not explicitly provide for the right to privacy. Nonetheless, federal courts have acknowledged individuals do have certain rights to privacy, but only as to state, not private, actions (e.g., private citizen vs. state actor as opposed to private citizen vs. private citizen).

The California constitution does provide an express provision on the right to privacy, in both public and private settings. State law actions such as allegations of “unreasonable intrusion into an individual’s private affairs” also protect certain privacy interests of the employee as an individual. Finally, certain statutory actions, provide protections for private information and activities concerning employees.

Obtaining Private Information
Most private information is provided to employers voluntarily by the employee or applicant for purposes related to employment (e.g., obtaining the job, securing benefits, etc.). However, there are restrictions on the type of information that can be requested, in what form, and whether authorizations are required.

For information that is not voluntarily provided, the primary determinant as to what constitutes an invasion of privacy is whether the employer’s need for the information outweighs the intrusion on the employee’s privacy. For this reason, employees should be given advance notice as to what information may be needed to diminish or eliminate the employee’s reasonable expectation of privacy.

Medical Examinations
In addition to certain prohibitions on questions regarding a physical or mental disability and the timing and type of medical exams that may be required for employment as a result of the Americans with Disabilities Act (ADA) and similar state statutes, privacy concerns may also limit an employer’s right to an employee’s medical status and history. Employers have specific duties to maintain the confidentiality of medical-related information it receives in connection with workplace testing protocols (e.g., drug testing, pre-employment exams, fitness for duty exams), and keep such information separate from employee personnel files.

Using & Maintaining Private Information
Even without legislation, employers should make every effort to minimize use and disclosure of an employee’s private information (e.g., social security numbers and medical records). Procedures should be put into place to prevent unauthorized disclosures.

In California, statutory provisions require businesses, including employers, who have access to personal information (which includes a name with a social security number, driver’s license number, certain financial information or medical information; or a user name or email address in combination with a password or security question/answer) to take reasonable measures to prevent unauthorized disclosure of such information; destroy such information by a means that will make it unreadable or undecipherable; and disclose any breach in its computerized data system which could result in unauthorized access to such personal information.

Arizona has similar legislation requiring notification of any breach in the security of the computer system on which there is personal data.

MRL Compliance is Crucial to Export Success

October 7th, 2021

Due to recent Maximum Residue Limits (MRL) violations on export shipments of various fresh produce commodities, Western Growers reminds its members that while the United States may have established tolerances on a particular crop protection compound other countries’ threshold limits may be lower or non-established.

MRL violations can trigger enhanced surveillance or test-and-hold protocols on perishable exports – not just on the individual shipper but sometimes on the entire exporting sector.

Both direct exporters and their grower-suppliers should review MRL requirements of the importing country to ensure compliance. Additionally, compound approval and MRLs are always subject to change, so it is important to track them frequently. Please refer to the Global MRL Database on our International Trade Assistance webpage.

It is essential that exporters communicate regularly with the individual growers and their field personnel about the need to select fruits, vegetables or tree nuts for harvest that will ensure compliance with the importing countries’ MRLs, including the review of spray records to confirm the dates and amounts of application. Growers should also consider moving up the timeframe of compound applications to ensure there is enough time for them to dissipate to acceptable residue levels.

Western Growers recommends that exporters adhere to the following procedures:

  1. Require your supplier (grower/packer) to provide a complete list identifying any pesticide/fungicide that has been applied either pre-harvest or post-harvest.
  2. Compare the list of pesticides/fungicides applied by the supplier against the database for the importing countries’ residue limit.
  3. Provide your supplier with the database information to ensure the shipment will comply with importing countries’ residue tolerance.
  4. Confirm that your supplier acknowledges that they have reviewed the appropriate database and is familiar with the residue tolerances of both the United States and that of the importing country prior to releasing the lot for shipment.

Please contact Tracey Chow at [email protected] or 202-704-7312 for more information.

Ports of Los Angeles and Long Beach Increase to 24/7 Operations, In Response to Unprecedented Supply Chain Congestion

October 14th, 2021

On Wednesday, the White House announced that the Port of Los Angeles and the Port of Long Beach will both be expanding operations to 24 hours-7 days a week. Historically, neither port has operated at that level, despite other ports around the world doing so. With the addition of new off-peak night time shifts and weekend hours, it is anticipated that the number of available hours that cargo can move out of docks and onto highways should double; at the same time, congestion during peak day windows should ease.

In conjunction with the ports’ actions, large retailers and logistic companies have committed to utilizing the expanded hours to move more cargo off the docks and allowing for quicker ship docking and container availability. The International Longshore and Warehouse Union (ILWU) also committed that its members are willing to work those extra shifts, adding the needed workforce capacity to put towards clearing existing backlogs.

It remains to be seen how these operational changes will impact the flow of agricultural exports out of those ports, which are key gateways into crucial Asian markets.

An Ongoing Crisis

For nearly a year, U.S. agricultural exporters have faced extreme challenges getting their products onto ships and out to foreign buyers, including record-breaking congestion and delays at ports, shipping lines’ persistent failure to provide accurate notice of arrival/departure and cargo loading times, excessive financial penalties and other fees, and skyrocketing freight rate costs. Unfortunately, this situation remains fluid with no clear end in sight; based on current projections, we may not see a return to normal until early 2022, all but guaranteeing tough months ahead for those commodities whose peak shipping seasons fall between September and March.

Western Growers Action

Foreign markets are critical to our members, especially those that produce tree nuts and citrus. Earlier this year, Western Growers supported an industry letter that urged the U.S. Department of Transportation to consider its existing powers and determine how it can assist with the transportation needs of U.S. ag exporters in overcoming the current challenges in shipping goods and products. With its allies and the Agricultural Transportation Coalition, WG also pressed the U.S. House Committee on Transportation and Infrastructure to hold a hearing examining this ongoing crisis. It was ultimately held on June 15, marking the first time in many years the committee had looked closely at this issue, and with several Members of Congress calling for stronger action on behalf of U.S. ag exporters. A recording of the hearing can be viewed here.

We continue to press for action from the Administration, as well as state and local officials, to engage the marine transport supply chain – particularly the shipping lines and terminals – to find solutions and relief.

**If your business is having problems with exporting – including high detention/demurrage or other questionable fees, excessive delays or cancellations, and carrier unresponsiveness – please contact Tracey Chow ([email protected], 202-704-7312)

OSHA Seeks Information on Heat Stress for Outdoor and Indoor Workers

October 28th, 2021

On October 27, 2021, the Occupational Safety and Health Administration (OSHA) published an Advance Notice of Proposed Rulemaking (ANPRM) on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” 

The ANPRM provides information on heat stress in both indoor and outdoor workplaces and shares prevention measures. Importantly, OSHA seeks public comment on heat stress in the workplace as well as suggestions for prevention of heat-related injury and illness.

Read OSHA’s ANPRM on heat stress here.

Western Growers will be filing comments on behalf of the membership and welcomes any input from members. Send all suggestions to Jonathan Sarager at [email protected] by December 1, 2021.

WG members also have the option to file comments directly to OSHA by clicking here. All comments are due to OSHA by December 27, 2021.

Review Company Fire Safety Procedures during National Fire Prevention Week

October 5th, 2021

As this week marks National Fire Prevention Week, Western Growers Insurance Services urges all members to revisit their respective fire safety programs and promote fire prevention awareness among employees.

Employers are responsible for providing safe and healthy workplaces for their employees. Some activities to consider conducting during National Fire Prevention Week include:

  • Inspect and test fire detection and/or suppression system(s)
  • Keep exits, fire extinguishers and fire alarms clear from obstructions
  • Provide annual training to employees on the proper use of fire extinguisher
  • Review and update emergency evacuation plans
  • Visually inspect fire extinguishers to ensure they are charged, easily accessible and clearly marked 

In addition to bringing awareness to employees about fire safety at work, National Fire Prevention Week is a good opportunity to provide employees with reminders and tips about fire safety at home. Some tips for at-home fire safety include:

  • Develop a fire escape plan
  • Install smoke and carbon monoxide alarms on every level of the home and in every bedroom
  • Stay in the kitchen when you are frying, grilling or broiling food. If you leave the kitchen for even a short period of time, turn off the stove.
  • Keep a fire extinguisher on every level of the home and in the kitchen and garage

Visit the National Ag Safety Database Fire Safety Resource Website for additional information on fire safety.

For support with fire resources and insurance protection, contact Ken Cooper, Director Risk Strategy for Western Growers Insurance Services, at [email protected]. Western Growers Insurance Services is a full-service insurance brokerage offering a suite of insurance and tailored risk management solutions to agricultural and related industry members.