Four Water Storage Projects Pass Initial California Water Commission Milestone

December 16th, 2021

In the face of strong opposition from the environmental and tribal communities, the California Water Commission  deemed four groundwater storage and reservoir projects feasible on Dec. 15, a key hurdle to construction set forth in Proposition 1, the 2014 water bond.

The four projects – Kern Fan Groundwater Storage Project, Pacheco Reservoir Expansion Project, Sites Project, and Willow Springs Water Bank Conjunctive Use Project – remain eligible for funding under the $2.7 billion Water Storage Investment Program (WSIP) created by Proposition 1. Combined, the projects, if completed, would add 2.77 million acre-feet to California’s water storage capacity. 

The local water districts backing these projects will now proceed to permitting and other tasks that must be complete before they are eligible to receive final funding awards from the Commission.

The Kern Fan Project would develop a regional water bank to recharge and store up to 100,000 acre-feet of unallocated Article 21 water available from the State Water Project (SWP) operation in the Kern County Groundwater Sub-basin of the San Joaquin Valley Groundwater Basin. Recovery and use of the stored water would provide public benefits in the form of an emergency water supply, intermittent temporary wetland habitat, and pulse flows to aid Chinook salmon. Construction is expected to begin next year. 

The Pacheco Reservoir Expansion Project would enlarge an existing reservoir located in southeast Santa Clara County from 6,000 to 140,000 acre-feet. Public benefits include year-round reservoir releases to Pacheco Creek to provide steelhead habitat, water deliveries to south-of-Delta refuges in below normal water years, and approximately 97,000 acre-feet to be available in response to a drought emergency, earthquake disruption, or Delta disruption. Construction is expected to begin in early 2025. 

The Sites Project would construct a 1.5 million acre-foot off-stream surface storage reservoir in the Sacramento Valley west of the town of Maxwell. Public benefits include water deliveries to the Sacramento National Wildlife Refuge Complex and to the Yolo Bypass to benefit Delta smelt, incidental storage to capture flood flows, and increased opportunities for recreation at the proposed Stone Corral and Peninsula Hills recreation areas. Construction is expected to begin mid-2024. 

The Willow Springs Water Bank Conjunctive Use Project is proposed as a conjunctive use and reservoir reoperation project that would leverage 500,000 acre-feet of existing groundwater storage facilities and operate conjunctively with the SWP. Public benefits include pulse flows to increase emigration of juvenile Chinook salmon, and up to 215,000 acre-feet of water for emergencies such as a Delta disruption. Construction is expected to begin late 2022. 

At the previous two Commission meetings, three other WSIP projects – the Chino Basin Conjunctive Use Environmental Water Storage/Exchange Program, Los Vaqueros Reservoir Expansion Project and the Harvest Water Program – all met the statutory deadline and remain eligible for WSIP funding.  

“I believe there is nothing more important right now than building out properly vetted water storage projects that will serve our state and its citizens for generations to come,” said Commission Vice-Chair Matt Swanson.  

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Lower Colorado River Basin Partners Announce New $200 Million Conservation Effort

December 16th, 2021

Earlier this week, water agencies from Arizona, California and Nevada, along with the Department of the Interior, announced a new effort to invest up to $200 million in projects over the next two years to keep Lake Mead from dropping to critically low levels. The agreement, signed during the Colorado River Water Users Association’s annual conference this week, aims to add 500,000 acre-feet of additional water to Lake Mead in both 2022 and 2023 by conserving water across the Lower Colorado River Basin. The additional water would add about 16 feet total to the reservoir’s level, which continues to reach record low levels.

The new agreement, known as the “500+ Plan,” was agreed to by the Bureau of Reclamation, Arizona Department of Water Resources, Central Arizona Project, The Metropolitan Water District of Southern California, and the Southern Nevada Water Authority. Over the two years the agreement covers, ADWR committed up to $40 million, with CAP, Metropolitan and SNWA each contributing up to $20 million. The federal government plans to match those commitments, for a total funding pool of $200 million.

Some of the specific conservation actions and programs that will be implemented through the 500+ Plan have already begun, while others are still being identified. The MOU includes conservation efforts in both urban and agricultural communities, such as funding crop fallowing on farms to save water, including the recent approval of a short-term agricultural land fallowing program in California, or urban conservation to reduce diversions from Lake Mead.

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Registration Open for AgTechX Food Safety Technology Event Feb. 2 in Yuma

December 21st, 2021

The Western Growers Center for Innovation &Technology is teaming with the Center for Produce Safety and Yuma Center of Excellence for Desert Agriculture to host AgTechX Food Safety in Yuma, Ariz. on Feb. 2, 2022.

The event kicks off a yearlong initiative aimed at food safety technology acceleration to improve the toolkit of rapid diagnostics and prevention technologies. The event will take place at the Four Points by Sheraton Yuma from 1 p.m. – 5:45 p.m.

AgTechX Food Safety will include panels on industry issues, regulatory views and food safety innovation, including the introduction of the AgTechX Food Safety Cohort of Agtech Companies.

Please register here for the event: https://pages.agtechxfs.com/yuma-02-02/

EVENT DETAILS:

AgTechX Food Safety at Four Points by Sheraton Yuma

  • Date: Tuesday, February 2, 2022, from 1 p.m. to 5:45 p.m.
  • Location: Four Points by Sheraton Yuma (2030 S. Ave 3E, Yuma, AZ 85365)
  • Cost: FREE
  • RSVP: Register at https://pages.agtechxfs.com/yuma-02-02/

For more information, contact Dennis Donohue at [email protected] or (831) 594-4883.

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$27.5 Million Remains in Healthy Soils Incentives Program Funding

December 21st, 2021

The CDFA’s Healthy Soils Incentives Program has received almost $40 million in requests out of a total potential grant package of $67.5 million.

Applications will be accepted on a rolling basis until 5 p.m. of Feb. 25, 2022 or until available funds are expended. More than $4 million in funding requests were received last week, and the CDFA urges applicants to not delay in submitting their request.

For more information on the grant funding, please e-mail [email protected].

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Western Growers to Roll Out Two Agtech Initiatives at World Ag Expo in Tulare

December 30th, 2021

Western Growers will have a booth in the Corteva building at the World Ag Expo on February 8-10, 2022, and will be sharing some big news:

  • Launch of Harvest Automation Report: WG will officially reveal the Harvest Automation report – the industry’s first in-depth look at how harvest automation is performing in fields, with detailed looks at the issues and startups solving some of the toughest challenges.
  • U.S. Launch of FIRA USA (California Ag Robotics Forum): WG will announce details about the California Ag Robotics Forum – a 3-day conference, which will be in Fresno from October 18-20, 2022, dedicated to specialty crop robotics and automation solutions. The event will include a full day on R&D, a full day on commercialization, and a full day of in-field demos.

For more info on World Ag Expo, click here.

For more details on WG’s plans for the Expo, click here.

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Silenced No More Act: What It Really Means For Employers

December 3rd, 2021

California’s AB 331 was signed into law on October 7, 2021 and is known as the Silenced No More Act (Act). The Act expands existing laws prohibiting disclosure of factual information related to actions in the workplace associated with claim(s) (civil or administrative) that include allegations of sexual assault (e.g., sexual harassment, workplace harassment/discrimination based on sex, or retaliation). The Act clarifies and expands existing prohibitions; going beyond settlement agreements and including harassment/discrimination based on any protected classification (e.g., race, religion, disability….).

As with most attempts at clarification, AB 331 is causing more head-scratching confusion as opposed to less. Does the Act prohibit an employer from offering a general waiver of claims in a separation/severance agreement? Does the Act allow for confidentiality with respect to the amount paid in a severance agreement? Are there any additional steps an employer must take when entering into a separation/severance agreement? Below are a few key points employers should understand about the Act:

  • Starting January 1, 2022, employers offering non-disparagement or “any other document” (e.g., separation/severance, confidentiality agreements) having the “purpose or effect” of denying an employee the right to disclose information about harassing or discriminatory conduct will be in violation of the Act.

It is important to note there is a distinction between waiving the right to bring a claim for such conduct and waiving the right to disclose such conduct. A fine line it may be, but a line, nonetheless. This distinction is important as it is what allows employers to include a general release or waiver of claims in an employee separation/severance agreement.

  • Employers offering non-disparagement or “any other document” (e.g., separation/severance, release of claims/settlement, confidentiality agreements) restricting an employee’s ability to disclose information related to conditions in the workplace must include the following language in their agreements: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

Again, noting the distinction between waiving a right to sue the employer vs. preserving the right to discuss or disclose information about unlawful acts such as harassment or discrimination.

  • The Act requires an employer offering a separation/severance agreement to notify employees that they have the right to consult legal counsel regarding the agreement and will be allowed at least 5 business days to do so.
  • The Act remains inapplicable to settlements negotiated to resolve claims filed in court, before an administrative agency, in an alternative dispute resolution forum, or through an employer’s internal complaint process.

Employers can manage termination risk by being aware of the distinctions outlined above and:

  • Updating all non-discouragement, severance/separation or confidentiality agreements in accordance with Act mandates.
  • Including a provision in separation/severance agreements that asks departing employees to specifically represent, warrant, and confirm that they have been properly paid for all hours worked, received all wages, salary, commissions, bonuses, and other compensation due, and/or have not made any claims or allegations to the Employer related to instances of workplace harassment or discrimination based on any protective classification. This type of provision should also include specific language notifying the employee that they cannot sign the agreement if any of these representations are untrue and reminding them of their right to disclose information about unlawful acts in the workplace (i.e., to the employer, to state/federal agencies).

Members with questions about the implications of AB 331 should contact Western Growers. 

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Lessons In Arbitration

December 3rd, 2021

A recent California Court of Appeal case (Najarro v. Horizon Personnel Services, Inc., (Oct. 2021)(“Najarro”)) brings to light a few key issues employers should keep in mind when offering arbitration agreements to their employees.

  • Arbitration agreements should not contain language that has the purpose or effect of waiving the employee’s right to bring a representative action under the California Labor Code Private Attorney General Act of 2004 (PAGA). The employer in Najarro included such a provision, even though “an employee’s right to bring a PAGA action is unwaivable.”[i] The court found the inclusion of this purported waiver to be substantively unconscionable,[ii] even though the plaintiffs had not attempted to bring a PAGA action.
  • Arbitration agreements must be signed by both parties – employer and employee – to be valid. This lack of mutuality was also cited by the Najarro court as being substantively unconscionable. The employer in Najarro not only failed to sign the arbitration agreement, but it failed to even identify itself; referring generically to the “Company” without identifying a specific person or contracting party.
  • Employees asked to sign arbitration agreements that incorporate specific arbitration rules (i.e., rules promulgated by a particular arbitration company such as JAMS or the American Arbitration Association) should be provided with a copy of those rules at the time they are asked to sign the agreement. While the Appellate Court remanded the issue of procedural unconscionability to the lower court, it did find that the employer’s failure to provide such rules “established at least some degree of procedural unconscionability.” The failure to provide such rules can be deemed oppressive in that it prevents an employee from engaging in a full review of documents fundamental to resolving their claims.
  • Employees should be given an opportunity to review and understand what they are being asked to sign. Actions such as refusing to explain what the employee is being asked to sign, statements made to pressure an employee into signing, misrepresenting the agreement as an “unimportant” document, failing to encourage employees with limited education to seek outside review of the agreement before signing, were found by the Najarro court to constitute fraud in the execution of a contractual document.

Members with questions concerning arbitration agreements should contact Western Growers for additional guidance.

[i] Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 383.

[ii] For a court to exercise its discretion to refuse to enforce a contract or clause as “unconscionable” both procedural and substantive unconscionability must be present.

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Sixth Circuit OSHA/ETS Status Report

December 10th, 2021

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

Since winning the Appellate Court lottery the Sixth Circuit has been very busy setting a briefing schedule and ruling on various motions filed by OSHA: motion to dissolve the current stay (responses and replies due December 10, 2021), motion to expedite the court’s briefing schedule (denied) and a petition to transfer the case back to the Fifth Circuit (denied). Given the Court’s current briefing schedule it is likely any decision rendered by the Court will delay ETS original January 4, 2022 deadlines. It is also likely that any decision regarding the ETS will be subject to further appeal thereby delaying existing deadlines even further.

Western Growers will continue to monitor developments and provide insights and guidance as litigation on the ETS progresses in the Sixth Circuit.  Members with questions about OSHA ETS or Cal/OSHA ETS should contact Western Growers.

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Minimum Wage Increases for 2022

December 10th, 2021

As we look forward to the New Year employers in all Member states should be aware of applicable minimum wage increases as well as the continuing phase-in of California agriculture overtime provisions.

Unless an exemption applies, most employers are subject to both state and federal minimum wage laws. However, local city and county minimum wage ordinances may require an employer to pay a higher minimum wage for employees working within their local jurisdiction. As such, employers should keep this rule in mind: When faced with conflicting employment law standards, an employer must follow the standard that is most beneficial to the employee.

Arizona
Effective January 1, 2022 Arizona’s minimum wage will increase to $12.80 per hour. Generally, unless an exemption applies, an employer may not pay less than the minimum wage for all hours worked, regardless of the frequency or basis of payment (e.g., hourly, salaried, commissioned, piece rate, or any other basis). Wage rate posters much be displayed prominently in a place accessible to employees. Updated wage and hour notice posters (Spanish and English) can be found on the Industrial Commission’s Labor website.

California
Effective January 1, 2022 California’s minimum wage will increase to $14.00 per hour for small employers (25 employees or less) and $15.00 per hour for large employers (26 employees or more). Unless an exemption or higher minimum wage applies, all employers must pay employees the state minimum wage. California has several local city and county minimum wage requirements. Review the UC Berkeley Labor Center’s detailed list of local minimum wage ordinances for additional guidance.

Agricultural employers in California should also be mindful of the continued phase-in of agricultural overtime provisions. In 2016 California initiated a plan to phase-in agricultural overtime to the same basis used in most other California industries. The multi-year phase-in schedule continues in 2022 for large employers (26 or more employees).

As of January 1, 2022, a large employer must pay overtime of 1.5 times the employees’ regular rate of pay for any hours worked over 8 hours per day or 40 hours per week. This is the last phase-in for large employers. Click here for important information on calculating the regular rate of pay. Updated wage and hour notice posters (Spanish and English) can be found on the Department of Labor Standards and Enforcement website.

Colorado
Effective January 1, 2022 Colorado’s state minimum wage will increase to $12.56. Colorado’s minimum wage increased significantly and automatically between 2017 and 2020 in connection with wage legislation passed in 2016. A new proposed rule for minimum wage (measured by the Consumer Price Index used for Colorado) is now published for public comment each September. This year’s comment period closed on November 3, 2021 establishing the new minimum wage for 2022. Cities in Colorado are empowered to establish local minimum wage rates. However, only Denver has so far established its own minimum wage.

Employers covered by COMPS Order #37 are required to post the applicable wage and hour notice poster. An updated poster can be found on the Department of Labor and Employment website. 

New Mexico
Effective January 1, 2022 New Mexico’s state minimum wage will increase to $11.50 per hour. Employers will see further automatic increases through January 1, 2023. Generally, unless an exemption applies, an employer may not pay less than the minimum wage for all hours worked. New Mexico has several local city and county minimum wage requirements. Review the Department of Workforce Solutions website for a detailed list of local minimum wage ordinances. Employers in the state must also display wage and hour notice posters. Updated posters can be found on the Department’s website.

Members with questions about pending minimum wage increases should contact Western Growers. 

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Wage and Hour Reminders For The Holidays

December 10th, 2021

With the holiday season upon us it is important that employers understand wage and hour obligations associated with holiday pay and the impact of holiday closures.

California law makes no special provision for holiday pay; holidays, like Saturdays and Sundays, are treated like any other workday. As always, the focus in California is on making sure employees are paid for all hours worked – including overtime – irrespective of the “day” the work is performed. There is no statutory provision mandating an employer provide holiday pay to an employee when a holiday happens to fall on a regularly scheduled workday.[i] However, there is also nothing that prevents an employer from offering holiday pay as a benefit or though the collective bargaining process.

The same applies in other of our member states (Arizona, Colorado, and New Mexico) where the focus is also on assuring payment of wages for all hours worked and the correct calculation of overtime.[ii]

It is also important to note that holidays can impact the timely payment of wages. Under California law, if the holiday falls on the company’s regularly scheduled payday, employers may shift the payment of wages to the next business day after the holiday. The California Secretary of State’s website provides a listing of state holidays. Bank holidays can vary from state to state. Employers outside of California should check which Bank holidays may impact the payment of wages in their states.

[i] Employers who provide holiday pay should keep in mind that they are not required (under state or federal law) to factor in hours paid for the non-working holiday when calculating overtime for the pay period.

[ii] All states remain subject to the Fair Labor Standards Act, which also does not require premium pay for hours worked on holidays.

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Minimum Wage Increases Take Effect Jan. 1, 2022

December 14th, 2021

Effective Jan. 1, 2022, the minimum wage in California will increase to $15 per hour for large employers with 26 or more employees; it will increase to $14 for small employers with fewer than 25 employees.

The amount for small employers will increase again on Jan. 1, 2023 to $15 per hour.

State law requires that California workers be paid the minimum wage; in addition, some cities and counties have a local minimum wage that his higher than the state rate. Employers should keep this rule in mind: When faced with conflicting employment law standards, an employer must follow the standard that is most beneficial to the employee. Review the UC Berkeley Labor Center’s detailed list of local minimum wage ordinances for additional guidance.

Agricultural employers in California should also be mindful of the continued phase-in of agricultural overtime provisions. In 2016, California initiated a plan to phase-in agricultural overtime to the same basis used in most other California industries. The multi-year phase-in schedule continues in 2022 for large employers (26 or more employees).

As of Jan. 1, 2022, a large employer must pay overtime of 1.5 times the employees’ regular rate of pay for any hours worked over 8 hours per day or 40 hours per week. This is the last phase-in for large employers. Click here for important information on calculating the regular rate of pay.

Employers are required to post information on wages, hours and working conditions at a worksite area accessible to employees. In addition, employers must ensure that the wage rate is displayed on the employee’s pay stub and that employees are paid at least the minimum wage even when employees are paid at the piece rate.

Updated wage and hour notice posters (Spanish and English) can be found on the Department of Labor Standards and Enforcement website.

In other member states:

Arizona
Effective Jan. 1, 2022 Arizona’s minimum wage will increase to $12.80 per hour. Generally, unless an exemption applies, an employer may not pay less than the minimum wage for all hours worked, regardless of the frequency or basis of payment (e.g., hourly, salaried, commissioned, piece rate, or any other basis). Wage rate posters much be displayed prominently in a place accessible to employees. Updated wage and hour notice posters (Spanish and English) can be found on the Industrial Commission’s Labor website.

Colorado
Effective Jan. 1, 2022 Colorado’s state minimum wage will increase to $12.56. Colorado’s minimum wage increased significantly and automatically between 2017 and 2020 in connection with wage legislation passed in 2016. A new proposed rule for minimum wage (measured by the Consumer Price Index used for Colorado) is now published for public comment each September. This year’s comment period closed on November 3, 2021 establishing the new minimum wage for 2022. Cities in Colorado are empowered to establish local minimum wage rates. However, only Denver has so far established its own minimum wage.

Employers covered by COMPS Order #37 are required to post the applicable wage and hour notice poster. An updated poster can be found on the Department of Labor and Employment website. 

New Mexico
Effective Jan. 1, 2022 New Mexico’s state minimum wage will increase to $11.50 per hour. Employers will see further automatic increases through January 1, 2023. Generally, unless an exemption applies, an employer may not pay less than the minimum wage for all hours worked. New Mexico has several local city and county minimum wage requirements. Review the Department of Workforce Solutions website for a detailed list of local minimum wage ordinances. Employers in the state must also display wage and hour notice posters. Updated posters can be found on the Department’s website.

Members with questions about pending minimum wage increases should contact Western Growers. 

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EEOC Clarifies When COVID-19 May Be A Disability

December 17th, 2021

As discussed here, on July 26, 2021 the Biden Administration released a package of guidance and resources designed to assist employers facing new accommodation challenges relating to employees with “long COVID”. Today, the Equal Employment Opportunity Commission (EEOC) released additional guidance on how the Americans with Disabilities Act (ADA) defines disability and how that definition applies to COVID-19.  

A few key points from the update:

  • “In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.”

  • “An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.” 

  • “Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. But, employers can choose to do more than the ADA requires.” 

  • “An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.” 

Employers should keep in mind that while they may choose to do more than the ADA requires, doing so will raise the company’s standards of accommodation going forward for all employees. In other words, the company will no longer be held to statutory standards, but rather the higher standards set by the company. This is also true for state protections such as California’s Fair Employment and Housing Act (FEHA).  

California employers should also be aware that FEHA protections for applicants and employees who are disabled (or perceived to be disabled) are far broader than federal ADA protections. In other words, if the effects of long COVID would limit (as opposed to “substantially limit”) a major life activity such as work, it will likely trigger an employer’s obligation to engage in the interactive process to determine if a reasonable accommodation will allow the employee to perform the essential functions of their job absent any undue hardship to the employer. 

Members with questions about their responsibilities under the FEHA or ADA should contact Western Growers.  

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Sixth Circuit Lifts OSHA ETS Stay

December 23rd, 2021

On December 17, 2021 the U.S. Court of Appeals for the Sixth Circuit lifted its stay of OSHA’s Emergency Temporary Standards (ETS). This means that all employers with 100 or more employees will be subject to the new federal OSHA ETS protocols.

New compliance deadlines reflecting OSHA’s discretion in compliance enforcement have been set giving impacted employers exercising reasonable, good faith efforts time to initiate the new standards. This means so long as employers are exercising reasonable, good faith efforts to comply with the ETS, OSHA will not be issuing citations for noncompliance with any procedural ETS mandates until January 10, 2022 and will not issue citations for failing to comply with testing requirements until February 9, 2022.

While the lifting of the stay has prompted the filing of petitions for review by the U.S. Supreme Court, there is no indication as to whether the high Court will elect to review the Sixth Circuit’s decision. OSHA has expressly stated that the ETS preempts conflicting state or local laws. Nonetheless, the issues raised by petitioners to the Sixth Circuit have yet to be decided; this includes whether the ETS in fact preempts state or local laws restricting or impacting the employer’s ability to mandate vaccinations or testing requirements.  For a discussion on how the Federal ETS affects California employers, see our article The Impacts of Federal ETS on State ETS Mandates.

Following federal ETS requirements, impacted employers should begin (or resume) developing vaccination/testing policies and collecting proof of vaccination data. Members with questions about the impacts of the federal OSHA ETS should contact Western Growers.

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The Impacts of Federal ETS on State ETS Mandates

December 23rd, 2021

On December 16, 2021 – one day before the Sixth Circuit lifted its stay of the federal OSHA ETS – Cal/OSHA announced it had readopted its previously issued Emergency Temporary Standards (ETS). Confusion ensued.

The newest version of the Cal/OSHA ETS goes into effect January 14, 2022.[i] This deadline is unimpacted by the ongoing litigation surrounding the federal OSHA ETS and its extended deadlines.

Federal ETS mandates are unenforceable by any state with a State Plan (i.e., any state, such as California, with their own OSHA approved occupational safety and health plan) until they have been formally adopted by the state. A process that cannot happen until the ongoing litigation involving the current federal ETS is concluded. This means Cal/OSHA will continue to enforce its own ETS standards until such time as federal ETS litigation concludes, and a Cal/OSHA board vote can be scheduled. It is unclear at this time when the Board will convene for a vote.

An overview of the Cal/OSHA ETS is provided below:

  • Effective January 14, 2022, fully vaccinated employees or those who have recently recovered from COVID-19 after close contact, do not need to be excluded from the workplace. However, they must wear a mask and maintain social distancing while in the workplace for a period of 14 days.
  • Employees exempted from wearing a face covering due to medical or disability-related conditions must maintain social distancing and be either fully vaccinated or tested weekly during paid time and at no cost to the employee.
  • Employers must make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before a close contact incident occurred, even if they are asymptomatic.
  • During outbreaks and major outbreaks, employers must make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.
  • Timeframes for employees returning to work after close contact are revised consistent with current California Department of Public Health guidelines:
    • Employees may return to work 10 days after the close contact if the employee wears a face covering and maintains 6 feet of separation from others for 14 days.
    • Employees may return to work 7 days after the close contact if the person tested negative for COVID-19 using a COVID-19 test with the specimen taken at least five days after the last known close contact; and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of close contact.

Additional clarification is provided regarding the following:

  • The term “worksite” now clearly excludes the employee’s personal residence, locations where an employee works alone, and remote work locations chosen by the employee.
  • The definitions for “COVID-19 test,” “Face coverings,” and “Fully vaccinated” have been revised to more consistently reflect federal OSHA definitions.

Additional key changes can be found in the December 17, 2021, edition of Spotlight.

Members with questions regarding compliance with federal or Cal/OSHA ETS should contact Western Growers.

[i] Cal/OSHA ETS was first adopted in November 2020, readopted with changes in June 2021, and again readopted with additional changes in December 2021.

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Ban-The-Box Enforcement Efforts

December 30th, 2021

The California Department of Fair Employment and Housing (DFEH) has launched an affirmative enforcement effort to identify and correct violations of the Fair Chance Act. California’s Fair Chance or ‘Ban-the-Box’ laws generally prohibit employers with five or more employees from asking about a job applicant’s conviction history before making a conditional job offer and requires specific procedures for considering an applicant’s criminal history after a conditional job offer has been made. The purpose behind Ban-the-Box laws is to ensure employers are considering the individual first and foremost rather than using stereotypes and generalizations to disqualify potential applicants.

The DFEH enforcement initiative kicked off in late October with a one-day online review that found 500 job advertisements containing unlawful statements; those indicating that the employer would not consider any job applicant with a criminal history. Violators are being sent notices to remove the unlawful statements and provided access to new DFEH resources designed to assist employer compliance.

Given the DFEH’s new directive – and its use of technology to assist with enforcement efforts – employers should review all online and print job postings, as well as any online or print job applications, to remove any statements indicating it will not consider anyone with a criminal history.

Members with questions about Ban-the-Box compliance should review the DFEH’s new toolkit of resources and/or contact Western Growers.

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U.S Supreme Court to Rule on OSHA ETS

December 30th, 2021

On December 22, 2021, the U.S. Supreme Court announced it will fast-track oral arguments on challenges to the federal OSHA Emergency Temporary Standards (ETS). As discussed here, the Sixth Circuit Court of Appeals lifted its stay of OSHA’s ETS on December 17, 2021 subjecting all employers with 100 or more employees to its new vaccination protocols.  

The question before the Court centers on Congressional authority for President Biden’s mandate that OSHA act to regulate workplace vaccination protocols. Full arguments before the Court will be held on January 7, 2022 signaling an expedited ruling ahead of the Sixth Circuit’s current January 10, 2022 and February 9, 2022 deadlines.  

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

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Western Growers Celebrates U.S. House of Representatives Passage of the Ocean Shipping Reform Act of 2021

December 9th, 2021

The U.S. House of Representatives passed H.R. 4996, the Ocean Shipping Reform Act of 2021 on December 8 with an impressive 364-60 vote, making clear its support for U.S. farm exporters that are reliant on maritime shipping transport.

OSRA aims to crack down on unreasonable practices by container shipping lines, bolster U.S. enforcement against uncompetitive carrier practices, and improve transparency for exporters.

Western Growers President and CEO Dave Puglia issued the following statement:

“Western Growers is very pleased to see the House overwhelmingly pass H.R. 4996, which will help ensure fairer shipping practices and standards for our agricultural exports. The ongoing supply chain and marine port challenges are restricting our farmers’ ability to reach overseas opportunities. The Ocean Shipping Reform Act of 2021 provides much-needed improvements to the maritime shipping environment, which has increasingly become too unpredictable and costly for our exporters to remain competitive.

I thank Reps. Garamendi and Johnson for their bipartisan leadership on this issue. We look forward to similar swift action from the Senate, and we will continue to engage federal and state officials on additional relief measures to help alleviate this supply chain mess.”

Among other provisions, OSRA will:

  • Ensure that carriers (e.g. container shipping lines) may not unreasonably decline to export cargo if it can be loaded safely, can arrive timely to be loaded, and is destined to a location to which the carrier is already scheduled.
  • Require carriers to provide notice of cargo availability, container return locations, and adequate notice of dates when the export container must arrive at the terminal.
  • Require carriers to provide the exporter with specific information to justify any imposed demurrage-detention charges, provide a reasonable dispute resolution process, and certify compliance with existing federal regulation.
  • Prohibit retaliation by carriers against shippers that file complaints with the Federal Maritime Commission.

Since the fall of 2020, 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 mid-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. WG has also been closely engaged with state officials as they seek to identify relief measures to improve the supply chain situation.

We continue to press for action from the Administration, as well as state and local officials, to engage all supply chain participants to find solutions and relief.

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

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VISION Conference 2022 Spotlights Agtech

December 2nd, 2021

Join the brightest industry-leading minds to advance the future of agtech during the VISION Conference 2022 on January 18-19, 2022, at the Renaissance Phoenix Glendale Hotel & Spa in Arizona.

This in-person event addresses dynamic recent advances in technology, systems and platforms from farm to retail. VISION 2022 is an interactive, forward-thinking format that engages the entire food value chain, from input to production to consumer. Attendees will participate in a single educational track built around four key pillars:

  • Regenerative agriculture
  • Automation 2.0
  • Connectivity
  • Transparency

Speakers include numerous Western Growers Center for Innovation & Technology residents including Burro and NAIO Technologies. To see the full agenda and to register, click here. 

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Protecting Shipper’s PACA Trust Rights When Invoicing by EDI

December 8th, 2021

Some retail and food service customers may require Electronic Data Interchange (EDI) invoicing and reconciliations of settlements to automate the purchase order process.  EDI is simply a standard electronic format that replaces paper-based documents such as purchase orders or invoices. When invoicing via EDI, it is critical that you have the PACA Trust language on your transmission to preserve PACA Trust protection. 

Sellers may unwittingly forfeit PACA Trust protection by leaving the below verbiage off each EDI transmission. If sales agents omit the verbiage in the transmission, PACA Trust protection can be preserved by physically mailing a hard copy of your invoice or statement, in a timely manner, to your customer, with the PACA Trust verbiage printed on the hard copy.

PACA Trust Language:

The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received. 

Some major retailers have attempted to place the verbiage in the written contract or agreement they have with the shipper, as well as hold harmless agreements, insurance requirements and other items. However, the statute clearly requires the PACA verbiage to be on the seller’s invoice or other billing statement whether in documentary or electronic form, to preserve trust benefits. Therefore, just having an agreement on file stating that the shipper is PACA Trust protected without having the PACA verbiage on the EDI transmission WILL NOT provide protection under the PACA Trust.

It is also important to have clearly defined payment terms, i.e., PACA Prompt, NET 10, etc. on the EDI transmission. If those respective terms differ from prompt payment, make sure you have a dually signed written agreement to your payment terms and the payment term listed on your EDI transmission.

If your firm sends out an EDI transmission for invoicing purposes, I recommend checking to make sure electronic transmissions contain all the necessary language that your paper invoices do, including the PACA Trust language verbatim referenced above.

Shippers are encouraged to contact Bryan Nickerson at 949-885-2392 or [email protected] to make certain that they are properly maximizing rights and remedies under PACA.

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Next Gen of Tech-Savvy Ag Workers is Main Focus of AgTechX Ed at Imperial Valley College

December 14th, 2021

Registration for the AgTechX Ed Summit at Imperial Valley College—which will feature panels and activities aimed at developing the future agtech workforce—is now open. The event will take place on Wednesday, January 26, 2022, from 1 p.m. to 6 p.m., and attendees can register at https://pages.agtechxfs.com/imperialvalleycollege/.

AgTechX Ed at Imperial Valley is the second leg of the AgTechX Ed Initiative – a statewide effort, led by Western Growers and California Department of Food and Agriculture Secretary Karen Ross, to cultivate a future workforce with the skills and knowledge needed to navigate emerging on-farm technology. The first summit was held at Reedley College in August.

Throughout the event, Secretary Ross along with numerous WG members, WG Center for Innovation & Technology startups and renowned industry leaders will share insight and guidance on building a tech-savvy workforce. Key activities include the following:

  • Panel: Industry Issues and Skill Identification

Agtech entrepreneurs, global tech experts and farmers will provide guidance on the hard and soft skills needed to thrive in the current workforce.

  • Panel: Education and Workforce Development Strategies

Educators and academics will detail current and future education and workforce development strategies.

  • Panel: Chief Executive Officers

Leadership from companies throughout the region will delve into strategies and tactics for building a sufficient workforce.

  • Fireside Chat with Karen Ross

Karen Ross, Secretary of the California Department of Food and Agriculture, will have an in-depth discussion on how to cultivate homegrown talent through partnerships between government, industry and academia.

  • Reception

A showcase with Western Growers Center for Innovation & Technology residents and a chance to visit Secretary Ross and panelists.

Click here to view the full agenda and slate of speakers.

EVENT DETAILS:

AgTechX Ed at Imperial Valley College

For more information, contact Dennis Donohue at [email protected] or (831) 594-4883.

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