OGS 2021 Sets Keynote with Next Generation of Organic Leaders

November 2nd, 2021

The keynote presentation at the 2021 Organic Grower Summit, presented by Western Growers and OPN, will be moderated by WG President and CEO Dave Puglia and feature panelists Keith Barnard, Senior Vice President of Sales and Sourcing, Mission Produce; Bianca Kaprielian, CEO and Co-owner, Fruit World; Mike Valpredo, President and Co-founder, Country Sweet Produce.

“Next Gen: A Conversation with the Next Generation of Organic Leaders” will explore how these young leaders see the landscape of organic fresh produce today. OGS will take place December 1-2 in Monterey, Calif.

“As the future of the organic fresh produce industry rests with the next generation of growers and producers, they will face a wide array of opportunities and obstacles. While the sales and consumption of organic fresh produce items continues to grow, challenges from labor, water, regulations, and other hot button issues await these new leaders. It is important we hear their viewpoints and perspectives as it relates to the future of organic production and growth of our industry,” said Tonya Antle, co-founder of the Organic Produce Network.

OGS will take place at the Monterey Hyatt Conference Center. All Western Growers members will receive a $100 discount off the full event price. Click here to register.

Take Survey to Shape Future of Harvest Automation

November 2nd, 2021

Growers are facing a multitude of threats, including chronic labor shortages and mounting regulatory and marketplace demands. Western Growers believes that harvest automation will be essential to helping growers adapt to these unprecedented challenges.

The Global Harvest Automation Initiative aims to automate 50 percent of the fresh produce harvest within 10 years through a series of projects involving growers, automation startups and key industry players.

To accomplish this, WG needs your input to help establish baseline data on the current impact of automation in the fresh produce industry. This data will be valuable in attracting additional innovation, talent and funding to the harvest automation space.

All responses are confidential and data from the research will be reported only in the aggregate. Your company may be contacted by the project team for additional follow up. Survey closes on Monday, November 29, 2021.

CLICK HERE TO TAKE THE SURVEY

For questions, contact Walt Duflock at [email protected].

Final 2021 Digital Edition of WG&S Magazine Now Available

November 17th, 2021

The November/December 2021 edition of Western Grower & Shipper magazine is now available both online and in print. Click here for the digital version of the magazine, which features Mark Nickerson of Prime Time on the cover.

Additional features in this issue include:

The Farmworkers Behind the Greens

Western Growers honors the journey of skilled fieldworkers across California and their professional growth in our industry. Full story.

Western Growers Celebrates 95th Anniversary

Founded as the Western Growers Protective Association in 1926, Western Growers has evolved to meet the needs of grower-shippers in California, Arizona, New Mexico and Colorado. Full story.

Vic Smith to be Honored at OGS

The longtime Western Growers Board Member will receive the Organic Grower of the Year award at the Organic Grower Summit in Monterey, Calif. Full story.

Building Marian Regional Medical Center’s Crisis Stabilization Unit

Thanks to the fundraising prowess of several Western Growers members, the Santa Maria hospital improved its capacity to assist those in acute mental health crisis. Full story.

Maximizing Traditional and New Media to Cut Through the Clutter

Western Growers is blending social media and traditional outlets to communicate about the vital issues that impact our members. Full story.

New California Employment Laws for 2022

A comprehensive look at the laws that are coming into effect on Jan. 1, 2022 that will impact the agriculture industry. Full story.

CLICK HERE TO DOWNLOAD THE WG&S NOVEMBER/DECEMBER 2021 EDITION.

To view past editions of the magazine, click here. For questions about WG&S Magazine, please contact Stephanie Metzinger at [email protected]

Fifth Circuit Issues Temporary Stay of Fed/OSHA ETS

November 12th, 2021

Announced November 5, 2021 and set to take effect January 4, 2022, OSHA’s newly announced COVID-19 Emergency Temporary Standards (ETS) are facing multiple legal challenges across the country. The same day the new ETS rules were announced, employers from supermarkets, restaurants, staffing agencies and others filed suit in Federal Court (Fifth Circuit) alleging OSHA has exceeded its authority and that the ETS rules are unconstitutional. One day later, the court issued an order staying the new rule.  

The newly enacted ETS will require employers of 100 or more workers to ensure they are fully vaccinated no later than January 4, 2022.  Workers not vaccinated by that date will be required to undergo weekly testing and wear a mask in the workplace. An exception exists for those who work exclusively in “outdoor employment” (e.g., farmworkers) and those who work remotely or have no contact with co-workers.  

Because similar challenges were filed in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits, the cases will be consolidated and transferred to a single circuit court in accordance with federal law.i It is likely the current stay order will remain in place while litigation is pending. States such as California and Arizona that assume responsibility for developing and enforcing occupational safety and health standards have 30 days to adopt and enforce state OSHA standards that are at least as effective as the new federal OSHA’s requirements. 

Nonetheless, employers should begin contemplating what steps may need to be taken if the ETS is allowed to move forward. For example, what policies/procedures will need to be put into place to track vaccination status, how will testing protocols be implemented, and whether to pay for weekly testing for employees who choose not to get vaccinated.  

OSHA has provided additional information through their recently published Frequently Asked Questions

Members with questions about OSHA’s ETS should contact Western Growers. 

Best Practices: The Culture Challenge

November 12th, 2021

Company culture can help build a solid organization and create significant change during even these trying times. Research finds that a strong culture can drive positive organizational outcomes, create long-term value, and prove a significant liability when out of line with legal responsibilities.  

Company culture is more than just a fancy marketing slogan or inspirational words printed in the company’s handbook. Culture is goals expressed through organizational values, beliefs, and shared assumptions. Culture is elusive in that it lacks the concrete precepts that guide successful leaders; strategy formation and growth fundamentals. Culture lives in the silent behaviors, mindsets and social patterns that permeate the workplace. What starts off with the best intentions over time is shaped and reshaped through both conscious and unconscious actions. Many times, these actions have unintended consequences as they are diluted and influenced by shifting priorities and workforce turnover. But, what if culture can in fact be measured; used as a framework to create, manage, and encourage realignment when it starts to go awry?  

Below are a few tips for maximizing cultural value and minimizing its inherent risks. 

Understand what culture is and what it is not. A businesses culture reflects its values, ethics, visions, behaviors and the overall work environment. It is what makes each company unique and impacts everything from retention to public image. Culture is not a checklist of stagnate ideals expressed but not pursued or ever realized.   

Culture is the silent language of the corporate environment. There is purpose and energy in pursuing a common goal. Whether the goal is creating higher sales or a more diverse workforce, aligning inherent values, drives and needs can electrify internal strategy changing opportunities and demands and enhancing the work experience for all employees.  

Focus and then prioritize the company’s cultural emphasis. An organization that can harness the collective focus of its workforce in developing a cultural focus has a greater likelihood of building a solid organization and creating significant change. Start by looking beyond the nature of the business (e.g., type of business, its size, industry, or location) and think about what drives your workforce. Is it creative innovation, collaboration, diversity, flexibility, or a need to drive change and find purpose? Use this knowledge to focus and then prioritize your company’s cultural agenda.  

Top-down integration drives accountability and can minimize risk. A perception that company policies, processes, and procedures do not apply to upper management can have a domino effect on everything from accountability to enforcement. When the implementation and preservation of corporate culture is relegated down the corporate chain it can easily and quickly become secondary to business concerns. The risk? Culture at its lowest and most disinterested level. 

Creating a lasting and effective workplace culture requires buy-in at the highest levels, persistence, guidance, and enforcement. Workplace leaders at every level can drive and, in some circumstances, realign positive cultural changes.  

Reimagining The Way We Work

November 12th, 2021

With the boundaries between work and home irrevocably blurred by the ongoing COVID-19 pandemic, we find ourselves asking, will the workplace ever return to “normal?” If current trends are any indication, the answer is more than likely, no. Forever changed by one of the greatest disruptions to work in generations, workers across the nation – and the companies that employ them – are looking to innovation and possibility as a means of reinventing the once traditional work environment.  

While it is nearly impossible to predict what this “new normal” might look like, there does seem to be a consensus on the issue of productivity and productivity metrics. Mainly, whether current metrics – the ability to track worker data and activity – really tell the whole story when it comes to remote or hybrid work. Data researchers such as Microsoft suggest it does not. As you and your organization look to the future, consider the following suggestions for expanding current productivity metrics beyond data and activity tracking.  

Be Flexible. Consider the best that traditional office and remote work options have to offer and combine the most effective options to create a positive and productive hybrid experience. For example, determine which aspects of a task or assignment require group engagement (e.g., brainstorming, or problem-solving) and those that can be performed solo or in a remote environment; assign in-office and remote workdays accordingly.  

Be Innovative. Encourage employees to manage remote schedules in a way that works best for their personal situation and circumstances. Focus on what must be accomplished and allow workers the flexibility to determine when and where they feel most productive when it comes to accomplishing the task at hand. Discuss new norms for communicating and meeting. Consider a short training on useful virtual meeting etiquette (e.g., how to use remote features and assign a ‘chat monitor’ to enhance and streamline communication) as well as new formats for hybrid virtual/in-person meeting attendance (e.g., how to effectively engage with virtual attendees).  

Be Creative. Think outside the box when it comes to bridging the gap between remote and in-office work. To assist in cross-pollination of ideas and innovation, encourage relationship building with those outside the workers’ traditional sphere of influence. For example, encourage the practice of logging into remote meetings early to allow for a period of reconnection, sharing ideas, and engaging in small talk. 

Innovation, creativity, and the flexibility to see beyond traditional notions of what it means to “work,” are key elements in reimagining the workplace of the future. How we expand and shape these elements will set new standards of productivity and success – for the here and now – and in generations to come. The possibilities for change are endless.

UPDATE: Fifth Circuit Stay Puts OSHA ETS Enforcement on Hold

November 19th, 2021

After conducting an expedited review of OSHA’s November 5, 2021, Emergency Temporary Standard (ETS) the Fifth Circuit Court of Appeals reaffirmed its initial stay Order preventing OSHA from enforcing the ETS as planned starting January 2022.

The Court made several interesting findings in its November 12, 2021, Order, deeming the ETS “fatally flawed” and contradictory in its application; in its own words, both “overinclusive” – in that it applies to all employers and employees in all industries without differentiation – and “underinclusive” – as it fails to mandate protections for workforces of less than 100 employees.  The Court also found OSHA’s promulgation of the ETS “grossly exceeds [its] statutory authority.” The Court’s opening remarks outlined the “emergency” nature of OSHA’s historic rulemaking abilities, noting “in its fifty-year history, OSHA has issued just ten ETSs.”[i]

Whether or not the November 12, 2021, stay becomes permanent will depend on how things progress once all pending legal challenges are consolidated and transferred to a single circuit court in accordance with federal law.[ii] There is also a strong possibility of further delays as it is likely that any final Court of Appeals ruling will seek U.S. Supreme Court review. Pending the outcome of these legal developments, OSHA has “suspended activities related to the implementation and enforcement of the ETS.”

California Developments
The Fifth Circuit’s stay has also put things on hold in California. Cal/OSHA’s Standard’s Board has announced that it will not discuss changes to the existing Cal/OSHA COVID-19 ETS at its upcoming November 18, 2021, Board meeting. The Board was to consider a Horcher proposal (a verbatim adoption of the federal ETS) at the November meeting, but instead will wait until more information is available pending the outcome of developing federal litigation on the issue. In the interim, Cal/OSHA ETS adopted in June 2021 will remain in effect.

What’s Next?
With so much uncertainty surrounding the outcome of the vaccine mandate, impacted employers are encouraged to begin contemplating what steps may need to be taken if the ETS is allowed to move forward. For example, what policies/procedures will need to be put into place to track vaccination status, how will testing protocols be implemented, and whether additional sick time will be provided for those who experience vaccination side-effects.

For the most up-to-date information visit OSHA’s website and review their recently published Frequently Asked Questions.

Members with questions about OSHA’s ETS should contact Western Growers.


[i] Six of these ten ETS mandates were challenged in court with only one surviving judicial scrutiny.

[ii] The U.S. Court of Appeals for the Sixth Circuit has won the multi-district lottery and will hear consolidated complaints from the Fourth, Fifth, Sixth, Ninth, and Tenth Circuits.

Colorado Depart. Of Labor and Employment Ends 2021 Rulemaking Session

November 19th, 2021

Colorado’s Department of Labor and Employment (CDLE) ended its 2021 legislative rulemaking session on November 10, 2021 with the publication of three final rules:

The January 1, 2022, effective date for each of these final rules impacts employers across the state.

No more “use it or lose it” provisions
As discussed here, Colorado’s Supreme Court’s landmark ruling in June 2021 made clear that an employer must pay an employee earned, but unused, vacation pay upon separation from employment. To assist in implementing this new standard, the updated Rules provide additional clarification on the issue of whether employer policies providing for the forfeiture of broader paid time off (PTO) policies would be permissible when they provide for leave available for reasons other than vacation.

The Rules clarify that “[v]acation pay” now means “pay for leave, regardless of its label, that is usable at the employee’s discretion.” This now makes clear that any policy or agreement providing for the forfeiture of accrued PTO is an unlawful employment practice. Employers concerned about the amount of PTO or vacation time an employee may accrue may want to consider capping the amount of PTO or vacation an employee may accrue; keeping in mind that these types of accrued leave cannot be forfeited.

Paid Sick Leave: Pay Rate
The Rules also provide clarity on how pay under the newly implemented Healthy Families and Workplaces Act (HFWA) should be calculated. Specifically,

  • Bonuses need not be included in the HFWA pay rate
  • Pay rate is determined based on “the employee’s pay over the 30 calendar days prior to taking leave” or the length of the employee’s employment, whichever is shorter
  • Pay rate for employees with variable hourly rates should be calculated by adding all the wages for the period referenced above, and then dividing that amount by the total number of hours worked for that period.

Changes: COMPS 38 AND PAY CALC Order
COMPS 38 includes two significant changes from prior COMPS:

  • Places minimum wage amounts and salary thresholds for certain exempt positions into the 2022 PAY CALC Order; and
  • Creates a new “highly compensated” employee exemption.

The new 2022 PAY CALC Order provides updated minimum pay and income levels for minimum wage earners and specific exempt positions along with future adjustments in an easily readable table format.

According to the CDLE’s Statement of Basis, Purpose, Specific Statutory Authority, and Findings, moving the pay and income levels to the PAY CALC Order should alleviate the need for an annual update to the COMPS Order where the only changes are related to pay and income levels. It is also hoped that this revision will improve accessibility to key information such as minimum wage and exemption salary changes.   

The new highly compensated employee exemption will apply where an employee:

  • Is paid 2.25 times the rounded annual salary for the executive, administrative, or professional salary limit in the PAY CALC Order (for 2022, this amount is $101,250)
  • Customarily and regularly performs any one of the exempt duties and responsibilities of an executive, administrative or professional employee; and
  • Whose primary duties are office or nonmanual work[i]

COMPS 38 also reflects recent changes in minimum wages laws applicable to agricultural workers. Starting in 2022 the minimum wage for agricultural workers will be $12.56 (state minimum). Agricultural workers will remain exempt from overtime requirements where certain pay and break requirements are met and can be exempt from minimum wage requirements if paid a minimum salary of $515 per week.

Lastly, COMPS 38 takes a monumental step – in keeping with California’s newly ended legislative session – in eliminating an employer’s ability to pay those with disabilities less than minimum wage.

The end of another legislative session is also the perfect time to remind Colorado employers that they must comply with CDLE posting requirements.


[i] This exemption differs from the Fair Labor Standards Act highly compensated employee exemption in that it requires an employee’s primary duty to be office/nonmanual work; manual labor position do not qualify regardless of pay.

Best Practices: New Hire Reporting Obligations

November 19th, 2021

Running a business is a complex venture; even before you add personnel into the equation. Failing to consider various state, federal, and local employment-related laws can lead to serious problems for employers and their business operations. Noncompliance poses its own substantial risk including ‘bet the farm’ litigation scenarios. Below is a brief reminder of new hire reporting obligations for Arizona and California employers.

Arizona
All Arizona employers are required to report newly hired (and re-hired) employees to the Arizona New Hire Reporting Center within 20 days of their hire date. No employer is exempt. Much like California’s New Employee Registry, the Arizona New Hire Reporting Center facilitates the child support income withholding process. Employers may report online at az-newhire.com, by mail or fax. Some payroll services may also offer reporting services. Arizona provides two reporting methods to assist multistate employers.

California
All California employers are required to report the hiring of new employees to the California Employment Development Department’s (EDD) New Employee Registry within 20 days of their first day of work regardless of whether the employee resides in or outside the state of California. Employees rehired after at least 60 consecutive days of separation from the business must also be reported. Multistate employers may report all new hires in one state but must also notify the federal Department of Health and Human Services’ Office of Child Support Enforcement.

The New Employee Registry assists the state in tracking child support obligations. Penalties may be assessed for employers who fail to report, intentionally fail to report, or file false or incomplete reports.

Members with questions concerning new hire reporting obligations should contact Westerns Growers.

Download WG’s Annual Meeting Mobile App

November 4th, 2021

The mobile app for the Western Growers 2021 Annual Meeting in San Diego is now available for download. The app will serve as a one-stop-shop for all event activities, allowing guests to see who is attending, review the agenda, learn more about the speakers/panelists, share event images, connect with peers and more.

To get started:

  1. Download the app:
  2. Click “open.”
  3. Create an account by clicking on the profile icon in the top right corner.
  4. Click “sign up with email” and follow the guide set-up prompt.
  5. Check-in and start enjoying all of the in-app features.

Still have last year’s app? Be sure to update it for the latest information!

A special thank you to Bank of America for sponsoring this year’s mobile app.

Annual Meeting Returns After Yearlong Hiatus

November 11th, 2021

This week, more than 500 farmers and agricultural stakeholders gathered at the Fairmont Grand Del Mar in San Diego for the Western Growers 2021 Annual Meeting.

The four-day event was filled with educational featured sessions, exciting networking events, riveting keynote addresses and more. Below are a few of this year’s highlights:

  • Albert P. Keck II, President of Hadley Date Gardens, Inc., was named the 2022 Chairman of the Board.
  • Carol Chandler, Partner of Chandler Farms, received the Award of Honor for her extensive contributions to the ag community.
  • Ryan Talley, Partner at Talley Farms, was recognized for his two exemplary years of service as the Western Growers Chairman of the Board.
  • 3Bar Biologics walked away from Western Growers/S2G Ventures’ AgSharks® Competition with a $250,000 equity investment offer to take its microbe technology from development to market.

All event images are now posted on Western Growers’ Facebook page and can be accessed here.

For a brief event recap through live tweets, visit WG’s Twitter page here. A full Annual Meeting recap will be included in the January/February 2022 edition of the Western Grower & Shipper Magazine, which is slated to hit mailboxes mid-January.

Workforce Development and Food Safety are the Focus of 2022 AgTechX Events

November 24th, 2021

Save the date for the first two AgTechX events in 2022: AgTechX Ed in Imperial Valley on January 26 and AgTechX Food Safety in Yuma, Ariz. on February 2.

AgTechX Ed:

The AgTechX Ed Summit at Imperial Valley College will be comprised of three panels and several keynote addresses covering topics including: industry issues and skill identification; education and workforce development strategies; and current and future workforce needs on the farm.

AgTechX Food Safety:

The Western Growers Center for Innovation Technology, Center for Produce Safety and Yuma Center of Excellence for Desert Agriculture have partnered to host AgTechX Food Safety. This event—which will feature panels on industry issues, regulatory views and food safety innovation—officially launches a year of food safety acceleration for rapid diagnostics and prevention technologies focused on growing technology to improve the food safety tool kit.

Registration for both events will open shortly. Stay tuned to Spotlight for ongoing event updates.

For questions, contact Dennis Donohue at [email protected].

Spinach Outbreak Investigation Update

November 16th, 2021

The U.S. Food and Drug Administration (FDA) and the Center for Disease Control (CDC), in collaboration with state and local partners, are investigating illnesses in a multistate outbreak of E. coli O157:H7. As of Nov. 15, 2021, 10 people have been infected with the outbreak strain of E. coli O157:H7 across seven states. Illnesses started on dates ranging from October 15 to October 27, 2021.

A Whole Genome Sequencing analysis of baby spinach collected from the home of an ill person is underway to determine if the strain of E. coli O157:H7 present in the product sample matches the outbreak strain. Thus far, FDA has traced supply chains for this product back to a small number of farms in two different geographic regions and is deploying investigators along the supply chains of interest.

FDA and state partners are working with the firm to determine if additional products could be affected. This is an ongoing investigation and additional information will be provided as it becomes available.

RESOURCES:

USDA Wants to Reimburse You for COVID Expenses, Deadline Nov. 22

November 16th, 2021

Did you spend money to make sure your workforce was safe from COVID? USDA has a program that you might be eligible for to reimburse you for some of those expenses. The deadline to apply for the USDA Pandemic Response and Safety Grant is next Monday, Nov. 22, 2021 and the USDA is asking specialty crop producers to apply through their portal at: https://usda-prs.grantsolutions.gov/usda.

$650 million in grants will be made available through the grant program to small businesses in certain commodity areas, including specialty crop producers, distributors and farmers markets. Small businesses and non-profits can apply for a grant to cover COVID-related expenses, including personal protective equipment, retrofitting facilities for worker and consumer safety, shifting to online sales platforms, transportation, working housing and medical costs.

Since the start of the COVID-19 pandemic last year, Western Growers and several of its industry allies have repeatedly pressed USDA to provide this kind of assistance to growers who have incurred significant expenses to provide for worker safety.

Fresh produce operations require the most labor out of any other commodity group, so our members had rapidly built up personal protective equipment (PPE) supplies, enhance hygiene and sanitation procedures, install infrastructure like plexiglass and designated employee areas to ensure social distancing, and ramp up worker training to ensure awareness of COVID guidance.

Away from the fields and packing houses, growers also made concerted efforts to secure additional housing and transportation to ensure continued social distancing and quarantining options.

The minimum funding request is $1,500 and the maximum is $20,000. The deadline to apply for the grant is 11:59 p.m. PT on Nov. 22, 2021. For more information, the PRS help desk can be reached at (301) 238-5550 or via e-mail [email protected].

Click here to apply for the USDA Pandemic Response and Safety Grant.

OSHA Rolls Out COVID-19 Vaccine and Testing ETS for Large Employers

November 4th, 2021

The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) imposing strict requirements on large employers (those with 100 or more employees) to comply with President Joe Biden’s COVID-19 vaccine mandate or face stiff fines. Large employers will have until Jan. 4, 2022, to ensure that employees are either fully vaccinated or subject to weekly testing and mask-wearing. Fully vaccinated means that the employee has received two doses of the Moderna or Pfizer-BioNTech vaccine, or one dose of the Johnson & Johnson vaccine. The OSHA rule is expected to be immediately challenged in court by states and business groups that oppose the mandate for a variety of reasons including concerns expressed by Western Growers President and CEO Dave Puglia in a letter to the Administration

Specifically, the ETS requires covered employers to do the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet the required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer). This requirement applies to all covered un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements due to a disability or a sincerely held religious belief.
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including agriculture. Employers with 100 or more employees on the Nov. 5, 2021, effective date are covered by the ETS for the duration of the standard. If an employer has fewer than 100 employees on Nov. 5, the standard will not apply unless and until the employer subsequently hits the 100-employee threshold for coverage, at which time the employer would then be expected to come into compliance with the ETS’s requirements. Once an employer is covered by the ETS, the ETS continues to apply regardless of fluctuations in the size of the employer’s workforce, for the duration of the ETS.

Importantly, the requirements of the standard do not apply to the employees of covered employers who do not report to a workplace where other individuals such as coworkers or customers are present or while working from home or employees who work exclusively outdoors. This includes the testing requirements of the ETS. However, even though such employees are not required to comply with the vaccination or testing requirement of the ETS, they are counted when determining the size of the employer’s workforce. Also, the employees of a farm labor contractor or staffing agency are not counted for purposes of determining the size of the host company (e.g., the grower), but are counted as employees of the FLC or staffing agency.

The ETS requires covered employers to elect either full vaccination or weekly testing for their employees within 30 days. Within 60 days — by Jan. 4, 2022 — they must implement the mandate. Covered employers who are found to be willfully noncompliant with the ETS mandate could face fines of up to $14,000 per violation, with the potential for business being cited multiple times.

The ETS does not require employers to pay for testing, though it does require employers to pay for the time it takes employees to get tested (up to 4 hours) and for time needed to recover from vaccine side effects.

The Biden Administration estimates the new requirement will impact more than 80 million workers in the private sector.

OSHA is offering a number of resources to help employers comply with the ETS including a webinar, frequently asked questions and other compliance materials.

Western Growers Members Prevail in Arbitration Agreement Appeal

November 5th, 2021

Elkhorn Packing Co. is a farm labor contractor for California-based vegetable grower D’Arrigo Brothers, Co., both Western Growers members.  Elkhorn employee Martinez-Gonzalez signed employment paperwork that included arbitration agreements as part of Elkhorn’s new hire orientation process.  Martinez-Gonzalez sued Elkhorn and D’Arrigo Brothers in federal court alleging violations of federal and state labor and wage laws. When Elkhorn asserted the case must be resolved by arbitration, the district court held that the arbitration agreements were invalid and unenforceable because of purported undue influence and economic duress by the employer.

The Ninth Circuit Court of Appeals reversed and remanded to the district court to determine whether Martinez-Gonzalez’s allegations were covered by the arbitration agreements. Under California law, the doctrine of economic duress can be used to rescind an agreement. In this case, the doctrine did not apply because the court found Elkhorn did not commit a wrongful act, reasonable alternatives were available to Martinez-Gonzalez, and Martinez-Gonzalez could still vindicate his interests in arbitration.  Martinez-Gonzalez alleged that as a Mexican resident, he was dependent on Elkhorn for housing and had already started work when presented with the arbitration agreements.  While “not ideal,” the court said the actions were a “far cry” from being considered “oppressive” under California law where: the timing and place of the orientation did not show that Martinez-Gonzalez’s will was overborne; and the lack of time to consult with attorneys or read the agreements did not improperly induce Martinez-Gonzalez’s signatures since Elkhorn did not interfere with his ability to use either option  Since the agreements were not mandatory and Martinez-Gonzalez could not be terminated for refusing to sign, he could have refused to sign or revoked the agreement.. Given the totality of the circumstances, the court panel held that the district court clearly erred in finding undue influence.

In dissent, one judge found the majority disregarded the district court’s factual findings following trial and the “clear error” standard of review.

Congratulations to the successful counsel in this case:

D’Arrigo Bros. Co., of California, Defendant, represented by Geoffrey F. Gega, Law Offices of Geoffrey F. Gega (Member of Western Growers Ag Legal Network)

Elkhorn Packing Co., LLC, represented by Regina Silva, Atkinson, Andelson, Loya, Ruud & Romo

Martinez-Gonzalez v. Elkhorn Packing (9th Cir. 19-17311 11/3/21)

“Joint Employer” Decision – Major Victory for H-2A Employers

November 5th, 2021

On October 15, 2021, the U.S. District Court for Los Angeles, issued a substantial (79-page decision) case brought by the CRLA Foundation against two Santa Maria based Growers and Marketer Defendants who sold their strawberry products on a non-exclusive basis. 

By way of historical background, the CRLA Foundation filed a class action civil lawsuit against two Santa Maria strawberry growers, Higuera Farms, Inc., Cuesta Farming Company, Inc. and Big F Company, Inc. alleging wage and hour violations.  The three farmers filed for bankruptcy and went out of business.  Not to be undone, the CRLA filed a third amended complaint adding the two Marketing Defendants, Better Produce, Inc. and Red Blossom Sales, Inc.  The Court granted the Motion and held a bifurcated bench trial on the issue of the Marketer Defendant’s liability as joint employers under Federal and State laws, and as client employers as defined by Labor Code Section 2810.3.  All remaining issues were to be tried at a later date. 

Representing the interests of Red Blossom Sales was Effie Anastassiou, a well-known litigation and contract law attorney in California who has represented many packing houses, processors, farmers and marketing organizations.  Rob Roy, VCAA’s General Counsel, served as the consultant on the issues of the application of Federal and State laws on joint employment, as well as the expert witness on Labor Code Section 2810.3. 

Following briefing by all of the parties, the Court issued the extensive 79-page decision finding in favor of both Red Blossom and Better Produce on all of the issues raised by the CRLA with regard to “joint employment” and “Labor Code Section 2810.3.”  It was the first case in California to decide the application of Section 2810.3 within the agricultural industry.

The Court went through an exhaustive analysis of the history of joint employment under the Fair Labor Standards Act and the Migrant and Seasonal Protection Act with regard to the relationship between the Marketing Defendants and the Grower Defendants.  With respect to Red Blossom, Red Blossom leased out land to one of the Grower Defendants and was paid back out of the profits from the sales of the strawberries.  Grower Defendants performed all of the usual functions as agricultural employers including the hiring of the workers, payment of wages, providing wage and employment conditions and benefits, planting, tending cultivation, irrigations, weeding, fertilizing and growing the strawberry crop. 

Red Blossom would take a certain percent commission on the selling of the berries.  It would pay for the packaging and shipping and cooling of strawberries but then deducted them from the Grower Defendant’s sale proceeds.  Red Blossom which maintained a major lease of agricultural lands, subleased 91 acres in subleases to Big F and 90 acres to Higuera Farms.  Red Blossom maintained some limited control such as ensuring that the Grower Defendants adhered to stringent food safety requirements which required strict compliance with all laws relating to food safety.  Red Blossom also required its food safety policy to be posted in the fields; required Higuera and Big F crew leaders to complete daily logs indicating the blocks harvested, which would then be crossed referenced with pesticide and fertilizer application records; conducted internal audits of the growers which required inquiry into potential flooding, contamination and worker hygiene, hired a third-party to conduct auditing the operations to complete an annual audit for which Red Blossom paid, including a number of other safety regulated food safety related issues. 

With regard to the “joint employer” analysis under the Migrant Seasonal Worker Protection Act, Plaintiffs argued that the Marketer Defendants were “agricultural employers who failed to pay wages owed to Plaintiffs (agricultural workers) and failed to abide by the terms of the working arrangement under the H-2A regulations.  After an extensive analysis of the case law, as well as regulatory and non-regulatory factors under MSPA, the Court concluded that neither Better Produce nor Red Blossom were joint employers with the Grower Defendants.

Of importance to the agricultural industry is the Court’s analysis of each and every regulatory and non-regulatory factor supported by numerous facts in the Court record.  This clearly demonstrates that the decision was based upon a “preponderance of the evidence taken”.  This may have positive impact should the Plaintiffs decide to appeal the case to the 9th Circuit Court of Appeals. 

Next, the Court analyzed the plaintiff’s legal arguments under California laws.  This included analysis under the case of Martinez v. Combs and related cases.  The Court concluded that the Plaintiffs had not met their burden to establish joint employment liability under California law.  The Court noted that there was no evidence shown of even an indirect power to discipline workers, and enforce working conditions or alter wages, hours or working conditions.  The Marketer Defendants did not “suffer or permit” Plaintiffs to work, because they had no direct or indirect authority to hire, fire or otherwise prevent Plaintiffs from working.

Lastly, the Court addressed the novel issue of Labor Code Section 2810.3 which requires that a “labor contractor” and “client employer” share civil liability for a labor contractor’s failure to pay wages.  According to the Court, the Plaintiffs must demonstrate (1) the Grower Defendants were “labor contractors” and (2) that the Marketer Defendants were “client employers”.

It should be noted that in its motion to include the marketing organizations in the Plaintiffs’ third amended complaint, CRLA Foundation [claimed] that the Grower Defendants were acting like “labor contractors” even though they were aware of the fact that the Department of Labor had issued H-2A certifications to each Grower Defendant as “single site employers”, not as farm labor contractors.

In evaluating the application of Section 2810.3, the Court noted that there was no evidence of a traditional or formal labor contractor relationship whereby the Marketer Defendants paid the Grower Defendants a fee in return for the Grower Defendants providing labor.  Nevertheless, the Plaintiffs contended that the Grower Defendants were labor contractors, irrespective of any formal or traditional relationship.  The Grower Defendants responded that they were not labor contractors because they were neither licensed nor paid to “supply” workers. 

None of the parties before the Court could cite to any case law to shed light on the definition’s scope as this was the first time a Court had addressed this issue.  However, after an exhaustive analysis of the history of this law and the facts of the relationships between the parties, the Court concluded that the Grower Defendants were not “labor contractors” for purposes of Section 2810.3. 

Nevertheless, given the ambiguity in the legislature’s definition of the term and lack of authority on the matter, the Court proceeded with an additional analysis.  Once again, the Court analyzed the requirements of the term “client employer” in Section 2810.3, as well as the definition of “regular and customary work.”  After an additional analysis of the wording, as well as the legislative history, the Court concluded that neither of the Marketing Defendants were deemed to be a “client employer” in that the Marketing Defendants had not been provided workers to perform labor within their usual course of business from a labor contractor.  

The “usual course of business” means the regular and customary work of a business performed within or upon the premises or worksite of the client employer.  Here, such work was performed by the Grower Defendants on the subleased fields from the Marketing Defendants.  With regard to Red Blossom, the Court noted that the Plaintiffs failed to demonstrate how the “regular and customary” work occurred on Red Blossom’s premises or worksite.  Although the Plaintiffs did introduce some minor evidence that Red Blossom accessed and monitored the subleased land under the circumstances set forth above, the Plaintiffs’ evidence was insufficient to characterize the farmland as Red Blossom’s “premises” or “worksite”.  That was the extent of the evidence in Plaintiff’s favor.  Thus, the Court found that Red Blossom was not a “client employer” under Labor Code Section 2810.3.

Article courtesy of VCAA’s President/General Counsel Rob Roy

California’s Mandatory Employment Arbitration Ban Headed for the Full 9th Circuit Court of Appeals

November 5th, 2021

On December 30, 2019 an Eastern District of California federal court granted a temporary restraining order preventing the state of California from enforcing AB51. The lawsuit filed by the U.S. Chamber of Commerce and the California Chamber of Commerce sought an injunction stopping enforcement of AB 51; a bill that would have outlawed employment arbitration agreements that are required as a mandatory subject of the employee’s employment conditions.

Initially, the U.S. District Court granted the injunction at the request of the employer groups, but a subsequent decision from the 9th Circuit Court of Appeal recently dissolved the injunction.  As a result, in California, requiring employee arbitration agreements on a mandatory basis as a condition of employment is prohibited until such time that the 9th Circuit reverses its three-member panel of judges’ decision, or the U.S. Supreme Court grants a hearing and reinstates the injunctive relief.

According to the 9th Circuit’s current decision, pursuant to the Federal Arbitration Act (FFA), employers can continue to enforce signed arbitration agreements.  However, an employer will violate the California Labor Code if it conditions employment upon the execution of a mandatory arbitration agreement. 

Article courtesy of VCAA’s President/General Counsel Rob Roy

AgVoice: Turning a Perpetual Ag Pain Point into Patented Technology

November 3rd, 2021

IRVINE, CALIF. (November 3, 2021) – Hands-free access to digital technology is a ubiquitous problem in the agriculture industry, said Bruce Rasa, CEO and Co-founder of AgVoice, and his company’s solution to the issue was just awarded a patent three months ago. AgVoice is the world’s first voice-to-data service that allows farmers and the ag specialists that support them to capture fast, accurate in-field insights on-the-go.

In the most recent episode of Voices of the Valley, the podcast hosted by Dennis Donohue, the Director of Western Growers Center for Innovation & Technology, and Candace Wilson, VP of Business Development at GreenVenus, Rasa said overcoming the initial challenges after founding AgVoice – including the seasonality of agriculture and fundraising – was helped by affiliating with Western Growers.

“A big catalyst for us was the AgSharks competition,” he said. “The combination of access to capital from Western Growers and S2G Ventures was massively helpful to us, and still is to this day.” AgVoice received $250,000 in funding in 2017.

Now, Rasa said the technology is expanding to meet the real-world needs of farmers. “I jokingly say that what we’re trying to do is not what Siri does,” Rasa said. “Siri – and Google, and Amazon, too, with Alexa – have taken on very, very hard, broad challenges in ‘What are all consumers thinking?’ and ‘What are those patterns?’ We’ve been very narrow, just focusing on these users’ needs. We support English today, Spanish is up next, and what we’ve learned through our work with Western Growers’ ecosystem is the 10 different dialects of Spanish that are spoken depending on where a person is from in Mexico. There are different nuances that needs to be accommodated.”

Voices of the Valley is produced by Western Growers and its Center for Innovation & Technology. The embed code for this week’s episode is below:

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Bipartisan Infrastructure Bill Delivers Major Water Improvements for West

November 6th, 2021

IRVINE, Calif. (November 6, 2021) – In response to passage of the Infrastructure Investment and Jobs Act by the U.S. House of Representatives, Western Growers President & CEO Dave Puglia issued the following statement:

“Western fresh produce growers and indeed farmers throughout the West have reason to celebrate passage of this bipartisan infrastructure bill. The inclusion of $8 billion dedicated to addressing critical water supply needs will provide significant benefits for family farmers and rural communities across the West experiencing climate change impacts, historic drought, regulatory pressures and wildfire. The funding for additional water, forestry and ecosystem restoration programs is vital to safeguarding our domestic agricultural production and long-term food security.

“We appreciate the good work of our House and Senate champions who understood the need for, and worked tirelessly to secure, substantial investments in Western water supply priorities, including repairing aging dams and canals, building new surface and groundwater storage and conveyance facilities, and funding water conservation and recycling projects.

“Following President Biden’s signature, we urge the Administration to quickly drive implementation of these provisions. Time, like water, is in short supply. We cannot let red tape and activist litigation stall or block the many long overdue projects necessary to repair and enhance our aging water infrastructure and develop reliable new sources of water supply.”  

About Western Growers:

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