L.A Jury Deals a Harsh Verdict in Sexual Harassment Case

June 10th, 2022

Think that sexual harassment litigation has left the spotlight? Think again. Late last week a Los Angeles jury awarded two plaintiffs one of the largest damages awards in recent history: $464.6 million dollars ($440 million of which was punitive damages).

Two Southern California Edison employees were found to have been forced out of their jobs after complaining about repeated sexual and racial harassment – directed at themselves and other coworkers – at an Edison South Bay office where they worked. Both employees claim within a relatively short period of time after lodging their complaints they experienced retaliatory conduct (e.g., retaliatory complaints against their own behavior and threats of retaliation linked to the reporting). Painted as an organization that simply did not take the complaints seriously (e.g., pretending the problem was limited to a few bad actors and ignoring a culture where harassment and discriminatory conduct was normalized), Edison officials say they will seek a new trial and attempt to overturn the verdict.

This latest verdict follows a trend in employment cases where jury verdicts continue to inch toward unprecedented levels. It also stands as a stark reminder that employers should continue to take seriously complaints of harassment (based on sex or any protected classification) in the workplace.

California employers have an affirmative duty to “take reasonable steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace.[i] This includes:

  • Providing a clear and easy to understand anti-harassment, discrimination and retaliation policy.
  • Modeling – from the top down – appropriate workplace behavior.
  • Conducting prompt, thorough and fair investigations.
  • Following through with prompt and fair remedial action.

It is also important to remember the California employer’s duty to prevent sexual harassment includes training all employees on preventing sexual harassment and abusive conduct in the workplace. Employers with five or more employees must provide:

  • One hour of interactive training and education on sexual harassment to all non-supervisory personnel.
  • Two hours of interactive training and education on sexual harassment to all supervisory personnel.

Other factors important to fulfilling mandated training obligations include:

  • Providing training once every two years and within six months of assuming a supervisor or non-supervisory role.
  • Providing training on preventing abusive conduct and practical examples of harassment based on gender identity, gender expression, and sexual orientation.

Anti-harassment training may be virtual or in-person but must be conducted by qualified instructors. Western Growers members can find information on employee training by visiting the Western Growers University and reviewing the Department of Fair Employment and Housing’s Harassment Prevention Guide.


[i] Cal. Govt. Code Sec. 12940(k).

Ocean Shipping Reform Act Approved by Congress, Ready for President Joe Biden’s Signature

June 14th, 2022

On June 13, the U.S. House passed S. 3580, the Ocean Shipping Reform Act with overwhelming bipartisan support. This bill – which passed earlier this year with bipartisan support in the U.S. Senate – will crack down on unreasonable practices by container shipping lines, bolster U.S. enforcement against uncompetitive carrier practices and improve transparency for exporters.

Western Growers has proactively supported OSRA throughout its progression in the House and Senate. Western Growers President and CEO Dave Puglia issued the following statement:

“Western Growers is very pleased to see Congress pass the Ocean Shipping Reform Act, which will help ensure fairer shipping practices and standards for our agricultural exports. The ongoing supply chain and port challenges are restricting our farmers’ ability to reach overseas opportunities. This bill provides much-needed improvements to the maritime shipping environment, which has increasingly become too unpredictable and costly for our exporters to remain competitive. We remain committed to pushing back against unreasonable rejections and other actions that are harmful to our shippers.

I appreciate the bipartisan efforts in both chambers to move this bill forward. WG especially applauds the efforts of Reps. John Garamendi and Dusty Johnson, who were instrumental in setting this important legislation in motion and have been unwavering in their support of our farmers.

I look forward to swift enactment of the bill, as well as immediate and strong action by the Federal Maritime Commission to wield its new authorities on behalf of U.S. exporters.”

Since Fall 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, as well as skyrocketing freight rate costs.

2023-’24 WG Board of Directors Nomination Ballots Go Out This Week

June 7th, 2022

Nomination ballots to elect Western Growers’ Board of Directors to a two-year term (2023 and 2024) are scheduled to be emailed to all Regular Members the week of June 6, 2022. Our secure online voting platform focuses on privacy, security and verifiability—all of which are paramount to hosting an honest election. 

The nomination ballot is the first step in a two-part process. It lists prospective candidates from your district for inclusion on the official ballot. The official ballot will be emailed to you in late August so you may vote to fill the allotted board of director seats.

As a regular member of Western Growers, your participation in the process of electing the board of directors is critical to our continued relevancy and influence. It is through your involvement in this process that board members are elected to serve your district and the entire membership on the key issues facing our industry. 

If you do not receive the election nomination email in your inbox by June 9, 2022, please check your SPAM folder or contact Kim Sherman at (949) 885-2265. 

Shipper Feedback Requested on PACA Modernization

June 8th, 2022

The Perishable Agricultural Commodities Act (PACA), enacted in 1930, is a law that authorizes the regulation of the buying and selling of fresh and frozen fruits and vegetables in interstate and foreign commerce while suppressing unfair and fraudulent trading practices. While many aspects within the produce industry have evolved, e.g., farming practices, food safety integration, and digital utilization to name a few, the laws in place to regulate the fresh produce sector haven’t necessarily kept pace with the 21st century.

With the industry’s increased use of e-commerce and value-added network platforms (e.g. iTrade and SPS Commerce) for supply chain management and electronic data interchange (EDI) transmissions, it is more important than ever to ensure shippers are complying with the PACA Trust provisions to ensure they’re protected. 

Western Growers Trade Practices Department has seen examples of members’ PACA Trust rights being jeopardized due to modernization.  For example, as we previously reported, sellers may unwittingly forfeit PACA Trust protection by leaving the below verbiage off each EDI transmission.

Western Growers is seeking confidential grower/shipper feedback on the challenges with PACA in today’s digital world, and suggestions for how the PACA regulations may be improved or updated. Please reach out to WG’s Trade Practices Manager, Bryan Nickerson, at 949.885.2392 or [email protected]

Please Check Your Email for the Western Growers Board of Directors Ballot

June 21st, 2022

Nomination ballots to elect Western Growers’ Board of Directors to a two-year term (2023 and 2024) were emailed to all Regular Members on June 10 and again on June 20, 2022. Our secure online voting platform focuses on privacy, security, and verifiability — all of which are paramount to hosting an honest election. 

The nomination ballot is the first step in a two-part process. It lists prospective candidates from your district for inclusion on the official ballot. The official ballot will be emailed to you in late August to vote to fill the allotted board of director seats.

As a regular member of Western Growers, your participation in the process of electing the Board of Directors is critical to our continued relevancy and influence. It is through your involvement in this process that board members are elected to serve your district and the entire membership on the key issues facing our industry. 

Please complete your electronic nomination ballot no later than June 27, 2022. 

If you are the voting representative for your company and do not see the election nomination email in your inbox, please check your spam folder. If you have not received the nomination email or if you have any questions, please contact Kim Sherman at (949) 885-2265. 

The Western Growers Transportation Program Welcomes the Return of Industry Veteran Lauren Singh

June 30th, 2022

The Western Growers Transportation Program (WGTP) is an exclusive benefit for our Western Growers members. Through C.H. Robinson, this personalized program meets the needs of the most challenging supply chains, providing high quality service coupled with the latest logistical technology to optimize distribution patterns and lower delivered costs.

WG is thrilled to welcome Lauren Singh back to the WGTP. She previously oversaw the WGTP and Monterey Commercial Transportation team, and in her new role of WGTP / CHR Transportation Director, Lauren will now oversee the strategy, account management and execution of WGTP. Her team specializes in complex produce supply chains and aims to provide an industry-leading experience for all Western Growers members.

Lauren’s background began in farming, growing up on her family’s dairy farm in Moss Landing, Calif. and spending summers helping with the animals and daily chores. Lauren started at C.H. Robinson in 2009 as an intern while finishing her degree in agri-business at CSU Monterey Bay. In her previous time at WGTP, she graduated from the Key Account Sales Program as well as the Leadership Networking Circle. In 2019, she transitioned to Robinson Fresh selling into Trader Joe’s warehouse and distribution network.

Her hobbies include traveling, spending time with family and friends, and keeping up with the many household projects she likes to get herself into.

For over a decade, the WGTP has offered turnkey supply chain solutions to its member shippers. These best-in-class services include truckload, LTL, intermodal, refrigerated warehousing and forward distribution. Shippers receive access to national surge capacity, guaranteed customized pricing options, transportation performance analytics and individual account management.

By enabling shippers to realize improved logistics efficiency through management of spend, carrier performance and market risk, the WGTP is a unique member benefit that provides a substantial competitive advantage.

In addition, C.H. Robinson has introduced their technology platform Navisphere to the WGTP. This platform incorporates features uniquely suited to small and mid-sized shippers. These features include:

•   See and manage their shipments

•   Request rate quotes

•   Book and track loads

•   View and print documents, including bills of lading, proofs of delivery, weight tickets and inspection reports

•   Manage accounts payable

•   Generate customized transportation performance and expense reports

To develop or expand your individual logistics program and learn more about the WGTP please contact Lauren below:

Lauren Singh
WGTP / CHR Transportation Director, C.H. Robinson
(831) 392-7061
[email protected]

Comment Period to Revise LGMA-Approved Guidelines Now Closes June 15

June 2nd, 2022

The comment period closing date associated with revisions on Pre-harvest Product Testing in the LGMA-approved guidelines has been extended to June 15, 2022 to grant interested parties additional time to draft proposed revisions to the metrics or submit comments. Western Growers will host a web discussion to publicly present and discuss all proposed changes and comments received during the comment period. The webinar date will be confirmed once the comment period concludes.

Stakeholders interested in submitting proposed revisions through this process can submit comments until June 15, 2022 at LeafyGreenGuidance.com.

Proposed changes must be submitted online and meet LGMA criteria to be considered. Proposals should be 1) comprehensive, 2) accompanied by a statement on how proposed changes will enhance food safety, and 3) include a clear and straightforward scientific basis or rationale, including citations of relevant research if available.

For additional information, contact WG’s Science department at [email protected].

Comment Period to Revise LGMA-Approved Guidelines Closes Tomorrow

June 14th, 2022

The comment period closing date associated with revisions on Pre-harvest Product Testing in the LGMA-approved guidelines closes June 15, 2022. Western Growers will host a web discussion to publicly present and discuss all proposed changes and comments received during the comment period. The webinar date will be confirmed once the comment period concludes.

Stakeholders interested in submitting proposed revisions through this process can submit comments until June 15, 2022 at LeafyGreenGuidance.com.

Proposed changes must be submitted online and meet LGMA criteria to be considered. Proposals should be 1) comprehensive, 2) accompanied by a statement on how proposed changes will enhance food safety, and 3) include a clear and straightforward scientific basis or rationale, including citations of relevant research if available.

For additional information, contact WG’s Science department at [email protected].

Western Growers Leads Discussions of Food Safety Innovation at 2022 CPS Research Symposium

June 23rd, 2022

The Center for Produce Safety’s 13th Annual Research Symposium was held June 21-22, 2022 in La Jolla  Calif.

Western Growers President & CEO Dave Puglia moderated a segment that considered the question: “What can the produce food safety community learn from the airline industry?”

The discussion opened with an interview between Randy Babbitt, the Principal of Babbitt & Associates, LCC and FAA Administration and Tim York, CEO of the California LGMA, to discuss how culture change can lead to an acceptance of data sharing and analysis to advance safety. Following that, there was an industry panel with Vic Smith, CEO of JV Smith Companies; Tony DiMare, President of DiMare Fresh; Paul Kneeland, Vice President of Gelson’s Markets and Gillian Kelleher, CEO of Kelleher Consultants LLC.

Among the takeaways:

  • Communication and collaboration are essential when it comes to data sharing because transparency and willingness from all parties can promote change.
  • The fresh produce industry should foster a transparent relationship based on data sharing, and assess current barriers to data sharing including diverse food safety cultures and buying dynamics namely cost-driven purchases that place the economic burden of data sharing on primary producers
  • To do something similar to what the airline industry did, we must incentivize and move from a punitive approach to a collaborative process.
  • Trade associations and others stakeholders can play a significant role in education and outreach.
  • In addition to fresh produce operations, retailers and regulatory bodies need to be on board to ensure the implementation of a new, smarter approach to food safety that includes data analytics and promotes a positive food safety culture.
  • Either sift through the data or sift through the wreckage – the wreckage being a foodborne outbreak in this case.
  • CRM (Crew Resource Management), which can empower people to report and take decisive action when things aren’t as they should be
  • Incentivize people/operations to take action by “taking them off the hook,” i.e. remove punitive barriers.
  • Foster engagement between team members and departments, so people can get to know each other. 
  • Technological improvements played a key role in improving the airline industry, including a novel approach to data sharing.
  • Building trust between stakeholders and even industry members is key.

In addition, Western Growers’ Senior Vice President, Science, De Ann Davis facilitated a discussion of how CPS research findings related to Cyclospora cayetanensis can be applied to produce operations. Panelists included Natalie Dyenson, Vice President of Food Safety & Quality, Dole Food Company; Trevor Suslow of Trevor Suslow Consulting; and Jim Brennan, President of SmartWash Solutions.

Discussion points included:

  • If your operation is presented with a positive test for C. cayetanensis, reach out to a trusted subject matter expert or Western Growers for help with interpretation and next steps.
  • C. cayetanensis detection methodology hasn’t kept pace with epidemiological advances.
  • To confirm the presence of C. cayetanensis in a sample, more than one testing methodology must be applied.
  • C. cayetanensis may not be endemic to the United States as previously thought since the methods used to detect C. cayetanensis in previous research were insufficient in confirming the presence of C. cayetanensis
  • We have no molecular data for the nine species of C. cayetanensis found in the U.S. This limits the applicability of current molecular detection methods. The use of human specific markers to detect fecal contamination may be valuable until improvements in molecular detection methods are made.
  • The best prevention is consistent adherence to GHPs and GMPs. 

For more coverage of the event, please visit the Western Growers Facebook page this afternoon.

USDA Announces Assistance for On-Farm Food Safety Expenses for Specialty Crop Growers

June 28th, 2022

The USDA will provide up to $200 million in assistance for specialty crop producers who incur eligible on-farm food safety program expenses to obtain or renew a food safety certification in calendar years 2022 or 2023.

For each year, the new Food Safety Certification for Specialty Crops program (FSCSC) covers a percentage of the specialty crop operation’s cost of obtaining or renewing their certification, as well as a portion of their related expenses.

To be eligible for FSCSC, the applicant must be a specialty crop operation; meet the definition of a small business or very small business; and have paid eligible expenses related to the 2022 (issued on or after June 21, 2022) or 2023 certification.

Specialty crop operations may receive assistance for the following costs:

  • Developing a food safety plan for first-time food safety certification
  • Maintaining or updating an existing food safety plan
  • Food safety certification
  • Certification upload fees
  • Microbiological testing for products, soil amendments and water
  • Training

The definition of small or very small business is as follows:

  • A small business means an applicant that had an average annual monetary value of specialty crops the applicant sold during the 3-year period preceding the program year of more than $250,000 but not more than $500,000.  
  • A very small business means an applicant that had an average annual monetary value of specialty crops the applicant sold during the 3-year period preceding the program year of no more than $250,000.

FSCSC payments are calculated separately for each category of eligible costs. A higher payment rate has been set for socially disadvantaged, limited resource, beginning and veteran farmers and ranchers. Details about the payment rates and limitations can be found at farmers.gov/food-safety

The FSCSC application period for 2022 is June 27, 2022, through Jan. 31, 2023, and the application period for 2023 will be announced at a later date. FSA will issue payments at the time of application approval for 2022 and after the application period ends for 2023. If calculated payments exceed the amount of available funding, payments will be prorated.

Interested specialty crop producers can apply by completing the FSA-888, Food Safety Certification for Specialty Crops Program (FSCSC) application. The application, along with other required documents, can be submitted to the FSA office at any USDA Service Center nationwide by mail, fax, hand delivery or via electronic means. Producers can visit farmers.gov/service-locator to find their local FSA office. Specialty crop producers can also call 877-508-8364 to speak directly with a USDA employee ready to assist.

Producers can visit farmers.gov/food-safety for additional program details, eligibility information and forms needed to apply.

Phase One of USDA’s Emergency Relief Program Available for Those With Federal Crop Insurance

June 7th, 2022

The U.S. Department of Agriculture (USDA) announced that commodity and specialty crop producers impacted by natural disaster events in 2020 and 2021 will soon begin receiving emergency relief payments totaling through the Farm Service Agency’s (FSA) new Emergency Relief Program (ERP) to offset crop yield and value losses. The total pool of funds available for all of agriculture is roughly $10 billion. Payments to crop producers will be done in two phases.

Phase 1

In phase 1, existing Federal Crop Insurance or Noninsured Crop Disaster Assistance Program (NAP) data is the basis for calculating initial payments. The USDA estimates that phase one ERP benefits will reach more than 220,000 producers who received indemnities for losses covered by federal crop insurance and more than 4,000 producers who obtained NAP coverage for 2020 and 2021 crop losses.   

ERP covers losses to crops, trees, bushes, and vines due to a qualifying natural disaster event in calendar years 2020 and 2021. Eligible crops include all crops for which crop insurance or NAP coverage was available, except for crops intended for grazing. Qualifying natural disaster events include wildfires, hurricanes, floods, derechos, excessive heat, winter storms, freeze (including a polar vortex), smoke exposure, excessive moisture, qualifying drought, and related conditions.  

For drought, ERP assistance is available if any area within the county in which the loss occurred was rated by the U.S. Drought Monitor as having a: 

  • D2 (severe drought) for eight consecutive weeks; or
  • D3 (extreme drought) or higher level of drought intensity. 

Lists of 2020 and 2021 drought counties eligible for ERP is available on the emergency relief website

To streamline and simplify the delivery of ERP phase one benefits, FSA will send pre-filled application forms to producers where crop insurance and NAP data are already on file. This form includes eligibility requirements, outlines the application process and provides ERP payment calculations. Producers will receive a separate application form for each program year in which an eligible loss occurred. Receipt of a pre-filled application is not confirmation that a producer is eligible to receive an ERP phase one payment. If you have not received forms or are uncertain about your status then reach out to your local county FSA office.

Phase 2

The second phase of both ERP and ELRP programs will fill gaps and cover producers who did not participate in or receive payments through the existing programs that are being leveraged for phase one implementation. When phase one payment processing is complete, the remaining funds will be used to cover gaps identified under phase two.  Rules and procedures for phase 2 have not yet been announced but once they are we will notify all WG members.   

Additional USDA disaster assistance information can be found on farmers.gov, including the Disaster Assistance Discovery Tool, Disaster Assistance-at-a-Glance fact sheet, and Farm Loan Discovery Tool. For FSA and Natural Resources Conservation Service programs, producers should contact their local  USDA Service Center. For assistance with a crop insurance claim, producers and landowners should contact their crop insurance agent.   

California Holding Workshops to Develop a Statewide Pesticide Application Notification System

June 7th, 2022

The California Department of Pesticide Regulation will hold three public workshops on June 27, 28 and 29, 2022 to collect feedback to inform the next phase of design and development for the state’s pesticide application notification system.

The workshops will be hosted online via Zoom and facilitated by the UC Davis Center for Regional Change. Each workshop will follow the same format, including a brief overview of the proposed design for the statewide notification system and an opportunity for the public to provide input. The information collected during the workshops will further inform the design of the statewide notification system.

The workshops will be held at the following times:

Monday, June 27 1 p.m. – 3 p.m.
Tuesday, June 28 10 a.m. – noon
 Wednesday, June 29, 6 p.m. – 8 p.m.

Registration is not required to attend. Spanish interpretation will be provided at all workshops. A copy of materials presented during the workshops will be made available on DPR’s website following the workshops.

DPR began developing the statewide notification system in mid-2021, after the state budget allocated $10 million to DPR for system development.

For more information and updates on statewide notification, please visit DPR’s website.

California Appellate Court Rules Bees are Protected “Fish”

June 2nd, 2022

A California Court of Appeal has ruled that bumblebees are eligible for protection as threatened or endangered “fish” under the California Endangered Species Act (CESA). The opinion reversed the trial court’s ruling in favor of Western Growers and six other agricultural groups. The trial court had concluded that the CESA, which extends to fish, mammals, birds, amphibians, reptiles and plants does not extend to insects. That view is shared in previous positions taken by the Office of Administrative Law, the Office of the Attorney General, and the California Department of Fish and Wildlife.

Writing for the court of appeal, Associate Justice Ronald Robie, said that “[a]lthough the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish [as defined in the CESA] is not so limited.”

The court of appeal was not persuaded by evidence that when the California legislature overhauled the CESA in 1984, it considered adding insects and plants to the categories of protected species and expressly decided to add plants, but not insects. The reports of the legislative committees that produced the CESA bill language plainly stated that insects cannot be listed as threatened or endangered species.

The decision could complicate ongoing efforts to manage farmland to protect wildlife and feed the nation and the world.

Western Growers and the agricultural coalition are carefully reviewing the decision and considering our options.

The case is Almond Alliance of California et al. v. Fish and Game Commission et al, Xerces Society For Invertebrate Conservation et al, intervenors; California Court of Appeal, Third Appellate District, No. C093542.

WGU and WGIS Highlight the Dangers of Mental Distress, Stress and Fatigue in the Workplace

June 9th, 2022

By Anna Bilderbach and Ken Cooper

We all know the dangers of substance use on the job. Did you know that mental distress, stress, and fatigue are also impairing?

Faced with labor shortages, supply-chain problems, and growing economic concerns, today’s leaders face an unprecedented uphill battle to grow their businesses. Employers are evaluating how these ongoing challenges affect workers with higher degrees of mental distress (anxiety), stress, and fatigue (burnout). The American Institute of Stress reported that 83 percent of US workers suffer from work-related stress, resulting in almost a million workers calling out daily and costing businesses up to $300 billion yearly in production loss. Employers across America are beginning to take proactive measures to create a mental health-friendly workplace, reduce potential workplace injuries, and protect its most valued resource—the workers.

Employees may suffer from mental impairment, a hidden risk that prevents them from being their best and safely completing tasks. In the past “mental health” carried a negative stigma, provoking workers to hide their struggles from others, distracting them from common safety measures, and leaving their condition unaddressed. The results? Higher turnover, greater absenteeism, and lower performance.  A worker’s mental health varies from person to person; anxiety, stress, and fatigue may manifest themselves in different ways and for reasons, such as:

Mental Distress (Anxiety)

Cause: Not related to an underlying condition

  • Persistent/excessive worry that does not go away, even when stressor is gone
  • Restlessness
  • Nervousness
  • Exaggerated tension about daily life

Stress

Cause: Triggered by external adversity

Short-term:

  • Work deadline
  • Financial problems

Long-term:

  • Inability to find work
  • Chronic illness
  • Family challenges
  • Lack of connection

Fatigue (Burnout)

Cause: How someone is managed

  • Unfair treatment at work
  • Micromanaged
  • Unmanageable workload/deadlines
  • Lack of role clarity/expectations/support
  • Toxic team dynamics
  • Serving a toxic handler
  • Growing role complexities
  • A sense of lack of control or ability to make decisions

It is no secret that a worker’s anxiety, stress, and fatigue directly impact their employer. The American Psychology Association reported that nearly 59 percent of workers have experienced an increase in work-related stress, including a lack of interest, motivation, difficulty focusing, and a general lack of effort, making them more prone to workplace injuries. In addition, workers are experience physical and emotional issues as they struggle to navigate through the pandemic and the constant workplace changes, social unrest, and political division, such as:

  • Mental Stress (Anxiety) and Stress

    • Anger / Irritability

    • Constant Sense of Urgency

    • Difficulty Concentrating

    • Fatigue / Insomnia

    • Muscle Tension / Digestive Troubles

    • Sadness / Excessive Stress

    • Reactive / Overreactive Emotions

  • Fatigue (Burnout)

    • Emotional Exhaustion / Disengagement

    • Blunted / Distant Emotions

    • Sense of Helplessness

    • Motivation is Lost or Diminished

    • Feelings of Depression

    • Emotionally Tolling

    • Exasperated

Physical and mental fatigue can increase the likelihood that an employee will experience a work-related injury. According to the National Safety Council, 13 percent of workplace injuries can be attributed to forms of fatigue. One specific area where fatigue can be especially problematic for worker safety is fleet safety.  Physical and mental fatigue can add additional distraction to the already extensive list of distractions facing employees operating vehicles and other mobile machinery.

Support workers by:

  • Asking what they need (don’t assume)
  • Encouraging them to take time to care for their health (if necessary, review their benefits with them)
  • Providing them with meaningful resources, such as your employee assistance programs
  • Displaying mental wellbeing poster
  • Adjusting policies to allow for more frequent and restful breaks.
  • Demonstrating empathy and proactively assist workers with gaining access to mental health services today.
  • Training managers to look for signs of fatigue

Telematics, a form of vehicle software that combines the features of telecommunications and informatics, can help employers effectively manage and monitor their fleet and increase their focus on driver safety.  In addition to providing opportunities to bolster fleet safety and reduce operational costs, data around general driving behaviors, some telematics solutions provide data-based feedback for employers to take prompt action regarding distracted driving incidents including those related to fatigue. For more information regarding how telematics might benefit your operations, please contact Western Growers Insurance Services.

Western Growers University provides a training on educational and compliance-related topics including supervisory skills, harassment prevention, and leadership development. To learn more about Workplace Burnout and Mental Wellness and other topics, contact Anna Bilderbach, Learning and Development Manager for Western Growers, at [email protected].

Western Growers Insurance Services is a full-service insurance brokerage offering a suite of insurance and tailored risk management solutions to agribusiness and related industry members. For more information or assistance, please contact Ken Cooper, Director Risk Strategy for Western Growers Insurance Services, at [email protected]

June has been designated as National Safety Month by the National Safety Council. This event is intended to increase awareness of workplace safety topics and reinforce our collaborative responsibility to keep each other safe. Safety is everyone’s responsibility!

This article is one of a four-part, weekly series following the topics designated for National Safety Month. 

The topics are:

Week 1: Musculoskeletal Injuries – These are the leading cause of workplace injury and cost billions each year in workers’ compensation and lost productivity costs.

Week 2: Workplace Impairment – We all know the dangers of substance use on the job. Did you know that mental distress, stress, and fatigue are also impairing?

Week 3: Injury Prevention – In 2020 alone, more than four million workplace injuries required medical attention in the U.S. Focus on preventive measures can improve organizational efficiency and reduce costs associated with workplace injuries.

Week 4: Slips, Trips, Falls – A frequent cause of significant workplace injury and associated costs, these types of incidents are often preventable.  

Colorado Labor Department Issues Guidance on Ag Labor Rules in Spanish

June 10th, 2022

The Colorado Department of Labor & Employment’s (CDLE) Division of Labor Standards and Statistics has issued interpretive guidance, or “Fact Sheets” on Colorado labor laws and rules, including a summary of the requirements of the Agricultural Labor Rights & Responsibilities Act (ALRRA).  These updates can be found under INFO #12 in English,  and are now also available in Spanish (INFO #12), (See also, #12A: Overtime and Minimum Wage Obligations for Agricultural Employment; #12B Agricultural Employee Rest Periods, Meal Periods, and Service Provider Access; #12C Heat Protection; Short-Handled Tool & Hand-Weeding/Thinning Limits; Public Health Emergency Protections; and #12D Enforcement: Scope of Coverage; Notice of Rights; Protected Activity & Retaliation; Complaints & Remedies)

Visit Division of Labor Standards ad Statistics | Department of Labor & Employment (colorado.gov), call 303.318.8441 or email the division: [email protected] for questions.

Supreme Court’s PAGA Victory for Employers in Viking River Cruises May Be Short Lived

June 16th, 2022

On June 15, 2022, the U.S. Supreme Court ruled that the California Private Attorneys General Act (PAGA), which allows employees to sue their employer on behalf of the state and seek monetary penalties on behalf of other employees, does not permit them to sidestep arbitration agreements which require such individual actions be brought in an individual arbitration rather than in court. (Viking River Cruises, Inc. v. Moriana). A victory to be sure for California employers, but likely a fleeting one.

In an 8-1 ruling, Justice Samuel Alito, writing for the court, said that the Federal Arbitration Act (FAA), which requires the enforcement of arbitration agreements, trumps the 2014 landmark California Supreme Court decision in Iskanian v. CLS Transp., which held that arbitration agreements purporting to waive the right to bring PAGA claims are unenforceable.

However, the ruling was not the total victory employers were hoping for, as the Supreme Court did not completely overrule Iskanian.  Rather, the opinion states that under its holding, Iskanian’s prohibition on “wholesale waivers of PAGA claims” is not preempted by the FAA, thus allowing for some PAGA claims to be litigated in court. But the rule that PAGA actions cannot be divided into individual and non-individual claims is preempted. Accordingly, Viking was entitled to compel arbitration of Moriana’s individual wage and hour claim.  The court left open the door for the courts or the legislature to amend PAGA so that employees could have standing to bring collective actions in court, and side-step arbitration agreements.

Indeed, long before Wednesday’s ruling, Labor-friendly legislators had been scheming on a potential end-around to an anticipated adverse Viking River decision. Democratic state senator Dave Cortese, chair of the senate’s labor committee, said he thinks the Legislature will take action predicting the Supreme Court might offer a roadmap to side-step the Supreme Court’s decision. “Once we have those instructions from the court, the legislation will be crafted to align California law with the best worker protections we can come up with,” said Cortese last April.

In fact, Justice Sonia Sotomayor, in a separate concurring opinion, offered such a roadmap. She wrote that California courts “will have the last word” on which employees have legal standing to assert claims under PAGA, and that “the California Legislature is free to modify the scope of statutory standing under PAGA within state and federal constitutional limits.”

Last month, the law firm of Akin Gump outlined a variety of maneuvers Labor and the California legislature could make to blunt the impacts of a pro-employer Viking River decision. For example, “California could legislate around the decision by granting additional power to the Labor and Workforce Development Agency (LWDA) to oversee PAGA litigation, including, for example, giving it the authority to intervene in a lawsuit at any time. “ Or the legislature could simply amend PAGA to grant standing to employees to bring collective action claims on behalf of the state and similarly situated employees.

Regardless of what the legislature and courts do, employers may be stuck with litigating in court PAGA claims carved out of prior existing arbitration agreements under the Iskanian rule, even though that rule has now been partially overturned by the U.S. Supreme Court. 

That leaves the PAGA-Fix Ballot Initiative (Californians for Fair Pay and Employer Accountability Act) which has collected enough signatures to qualify for the 2024 ballot, as the only viable vehicle to provide employers with true PAGA relief. That is because only a voter-enacted law can prevent the Legislature from circumventing the Viking River decision.

The Viking River case stems from a lawsuit brought by Angie Moriana, a former sales representative for Viking River Cruises, who filed a PAGA claim, seeking to recover penalties for an alleged violation of wage and hour law against her, and on behalf of all other allegedly aggrieved employees based on violations she herself did not suffer. Viking River Cruises argued the claims were subject to individualized arbitration under the arbitration agreement Moriana had signed as a condition of her employment. Relying on Iskanian, the lower state courts held such waivers are unenforceable in PAGA cases.  Viking River Cruises then sought and obtained review by the U.S. Supreme Court.

IRS Raises Mileage Rate for Rest of 2022

June 16th, 2022

On June 9, 2022, the Internal Revenue Service issued an announcement, increasing the optional standard mileage rate – used to deduct eligible business trips in a vehicle on tax returns – for the final six months of 2022 from 58.5 cents per mile to 62.5 cents per mile. The new rate will be effective beginning July 1, 2022 through December 31, 2022.  The old rate of 58.5 cents per mile will remain in effective through June 30, 2022.

The midyear change is unusual, prompted by record high gas prices at the pump.

DOL Announces Public Forums on Independent Contractor Regulations

June 16th, 2022

On June 3, the Department of Labor’s Wage and Hour Division announced that it is reviewing regulations addressing the distinction between an employee and an independent contractor under the Fair Labor Standards Act (FLSA). Independent contractors are not guaranteed the federal minimum wage and overtime pay that covered employees receive under the FLSA. DOL published a final rule on this issue on this issue on January 7, 2021. The rule adopted an economic reality test that considers whether a worker operates their own business or is economically dependent on an employer for work. DOL delayed that rule on March 4, 2021, and then withdrew it on May 6, 2021, but on March 14, 2022, a district court vacated DOL’s decision to delay and withdraw the rule, and the 2021 final rule remains in effect.

DOL plans to engage in new rulemaking on this issue and seeks public feedback. Advocacy seeks feedback on the impact of potential changes to these regulations on small businesses. Interested parties may RSVP to the forums below:

Western Growers Mourns the Passing of Bob Sakata

June 21st, 2022

Bob Sakata, a stalwart of the agricultural community, passed away on June 7, 2022 at the age of 96.

Robert (Bob) Yoshiharu Sakata was born on April 15, 1926, in San Jose, California to Aki Nishimura and Mantaro Sakata. His mother died of pneumonia leaving his father to raise 5-year-old Bob and 3 older siblings. Bob’s father farmed a small plot of land near Centerville, California where Bob learned to love farming. Following the declaration of war against Japan, the United States government interned 120,000 Japanese Americans including Bob and his family. As a teenager, Bob was sent to an internment camp located in Topaz Utah in 1942.

With assistance from his former high school teacher willing to vouch for his conduct and character, Bob garnered an early release from the internment camp by working on a dairy farm located in Brighton, Colorado. Bob lived in the dairy barn valuing the opportunity he was given. In 1944, the dairyman generously loaned him the money to purchase 40 acres of farmland in Brighton. This provided a way for his family to leave the internment camp and relocate to Colorado.

Bob graduated from Brighton High School and took a heavy coursework in math and science which he knew would be valuable for modernizing agriculture. He played the drums and made life-long friends through various school activities.

Bob endured numerous hardships as a young man including the untimely death of his father in a car accident, his brother to cancer, and a farming accident that burned 80% of his body. After a year in the hospital Bob was never expected to walk again but through determination and his faith in God, he relearned to walk with the help of crutches and leg braces.

In 1955, Bob was nominated by the Brighton Jaycees for the Outstanding Young Farmers of America award. 14,000 young farmers were nominated, and Bob was selected as one of only four national winners at a ceremony held in Pittsburgh, Pennsylvania.

He met the love of his life, a local farmer’s daughter named Joanna Tokunaga, and they were married in 1956 at the original First Presbyterian Church in Brighton. Together, Bob and Joanna grew Sakata Farms from 40 acres to over 3,000 acres producing sweet corn, broccoli, cabbage, onions, and beans. Bob’s innovation in seed development and consumer packaging changed the sweet corn industry in the 1980’s with the introduction of Sakata Farms Gourmet Sweet Corn.

Bob’s agricultural innovations garnered widespread recognition, including an appointment by President Nixon to the Advisory Board of the Commodity Credit Corporation in 1973 and an invitation to the White House honoring American agriculture. Among the many accomplishments, Bob and Joanna were inducted into the Colorado Business Hall of Fame, Colorado Agriculture Hall of Fame, and received the Colorado Proud Lifetime Achievement Award. Additionally, in 1994, Bob and Joanna hosted Emperor Akihito and Empress Michiko of Japan and in 2001, His Majesty awarded Bob with The Order of the Sacred Treasure, Gold Rays with Rosette, for his work in building mutual understanding and friendship between the United States and Japan. In 2004, the Sakata Family was given the honor of visiting Their Majesties at their private residence in the Imperial Palace, Tokyo, Japan.

Bob served on various boards and commissions including the 27J School Board, First National Bank of Englewood, Bank One Corporation, Cooperative Extension Advisory Board at Colorado State University, Adams County Economic Development Board, Colorado Food Safety Task Force, National Federation of Beet Growers, National Onion Association Board, Japan American Society, as well as local irrigation ditch boards. A true patriot, Bob helped lead a national capital campaign to build the National Japanese American Memorial to Patriotism located in Washington D.C. and attended the unveiling in 2000. In 2021, he attended the grand opening of the Bob Sakata Education Campus located in Brighton.

But more importantly, Bob believed deeply in giving back. In 1959, he joined a small group of Brighton visionaries to help raise local funds to build the community’s very first hospital. He was proud that no federal funds were needed and served on the Board of Directors for 9 years. He was an advocate for local health care and continued to support Platte Valley Medical Center throughout his life. He was a long term member of the Brighton Rotary Club and participated in numerous civic activities. Bob was a member of Brighton First Presbyterian Church for over 65 years, and served in a variety of capacities including elder, capital campaign chair, and pastor search committee member.

Bob felt a deep gratitude to his employees and considered them family. His community of friends across the globe were diverse and he was thankful for them all. He loved spending time with his grandchildren and family and was a devoted husband. He was a man of many accomplishments, and his legacy of generosity, good humor, faith, and family will live on in all he touched. He often said it is “not how high up the ladder you get but who you take with you.”

Bob is survived by his wife Joanna, son Robert (Julie Kerr), daughter Vicki, daughter Lani (Don Dolifka) and grandchildren David Dolifka and Madison Dolifka, and his sister Mistie. He is preceded in death by both his parents, his brother Harry, and sister Fusie.

In lieu of flowers, contributions can be made to Platte Valley Medical Center Foundation, with a note in the memo line “in memory of Bob Sakata”. Checks can be mailed to 1600 Prairie Center Parkway, Brighton, CO 80601. Online donations can be made here.

Western Growers Insurance Services Names Ed McClements Senior Vice President of Large Group Sales

June 1st, 2022

IRVINE, CALIF. (June 1, 2022) – Western Growers Insurance Services (WGIS) is pleased to announce Ed McClements as the new Senior Vice President of Large Group Sales.

McClements has over 45 years of employee benefits experience and 32 years working in the agricultural marketplace. McClements has been immersed in large group sales throughout his career and has a notable history of experience in the design and ongoing operation of customized employee benefit programs for employers with large workforces.

In response to the ever-changing marketplace and the needs of our members, Western Growers Assurance Trust (WGAT) has created a large group strategy and added expertise to the WGIS team to provide value and predictability in employer health benefit costs. In partnership with WGAT, McClements leads new efforts for WGIS by providing analytics and guidance through the employer’s decision-making process when selecting health benefits. This gives our members unprecedented insight into the underlying factors influencing health benefit costs, allows for control of costs and risk mitigation.

This initiative is led by a team of experts, from across the Western Growers Family of Companies, singularly focused to assist and provide insight for our members to make better decisions for their business and their most important asset, their employees, and their families.

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