Seeking COVID-19 Clarity

July 1st, 2022

The Ninth Circuit Court of Appeals has certified to the Supreme Court of California the following questions:

  • If an employee contracts COVID-19 in the workplace and brings the virus home to a spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?
  • Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

The Supreme Court’s opinion in the case of Kuciemba v. Victory Woodworks, (March 9th Cir. 2022) should help in answering these long-standing and far-reaching questions concerning COVID-19 workplace liability.

The Facts
Former employee Kuciemba alleges Victory Woodworks (Victory) knowingly transferred workers from an infected construction site to Kuciemba’s jobsite without following safety procedures required by the City of San Francisco’s “Shelter in Place” Health Order issued March 2020. Kuciemba alleges that as a result of this negligent practice, and because he worked in close contact with these employees, he contracted COVID-19 and inadvertently brought the virus into his home where his wife was exposed. Considered ‘high-risk’ due to age and health factors, Mrs. Kuciemba was hospitalized for more than a month after contracting COVID-19 and was kept alive on a respirator.

The Procedure
The   district   court   granted   Victory’s   motion to dismiss, finding that Mrs. Kuciemba’s claims against her husband’s employer were barred by California’s derivative injury doctrine and, in the alternative, that Victory did not owe a duty to Mrs. Kuciemba.  An appeal to the Ninth Circuit and subsequent certification to the California Supreme Court followed.

The Future
The Supreme Court called out the importance of certification on this issue, noting there is currently no controlling precedent and the fact that this case presents issues of significant public importance for the State of California. Specifically, the Court will determine:

  • The scope of an employer’s liability in a personal injury action for the spread of COVID-19, the application of the public policy exception to an employer’s general duty of care[i] in the context of a pandemic; and
  • Whether California’s derivative injury doctrine applies to injuries derived in fact from an employee’s workplace injury.

Answers to these questions of first impression will undoubtably have a huge impact on employers as COVID-19 cases continue to spike here in California giving weight to the idea that the one predictable thing about COVID-19 seems to be its unpredictability.

It is important that employers continue to monitor and comply with Cal/OSHA, California Department of Public Health, local health department and Center for Disease Control COVID-19 protocols. Members with questions concerning COVID-19 compliance should contact Western Growers.

[i] Cal. Civ. Code § 1714(a)

 

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EEOC Issues Guidance on Preventing Discrimination in Hiring Practices

July 1st, 2022

If you are an employer utilizing algorithms and artificial intelligence to assist in your hiring practices, you’ll want to review the recently published guidelines offered by the Equal Employment Opportunity Commission (EEOC).

Many employers are increasingly using hiring technologies to help in new employee selection. The following are examples of technology used by employers: 

  • to show job advertisements to targeted groups
  • to decide if an applicant meets job qualifications
  • to hold online video interviews of applicants
  • to use computer-based tests to measure an applicant’s skills or abilities; and
  • to score applicants’ resumes

Many of these technologies use algorithms[i] or artificial intelligence[ii] built into their software to assist in searching resumes or evaluate an applicant’s skills and abilities. While technology can be a useful tool, it can also result in unlawful discrimination against certain groups of applicants, including those with disabilities.

Both state and federal laws protect against discrimination in the workplace based on protected classifications. The California Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act of 1965 both prohibit discrimination based on protected classifications. Additionally, at the federal level, the Americans with Disabilities Act (ADA) and its amendments, prohibit discrimination in the workplace based on an individual’s actual or perceived disability.

Specifically, these prohibitions extend to employer practices when it comes to selecting, testing or promoting employees. Employers who choose to use hiring technologies are responsible for ensuring that such use does not cause unlawful discrimination because of an actual or perceived disability.

Like many aspects of state and federal law, an employer cannot delegate its compliance responsibilities to a third party, in this case, the provider or creator of the technology it uses to enhance its hiring practices. This means that even where an employer does not intend to discriminate, its use of a hiring technology may still lead to claims of unlawful discrimination. A classic example is where the employer uses a hiring technology to compare applicants to current successful employees. Such evaluations can easily overlook or discount employees or applicants with disabilities as this segment of the workforce has typically been overlooked and in some cases excluded from certain types of jobs.

To lessen the risk associated with hiring technologies employers should consider the following:

  1. Carefully evaluate all information used to build-out a hiring technology. Consult with the creator/seller of any third-party platform used to supplement or assist in the organization’s hiring practices making sure issues associated with exclusion have been addressed.
  2. Make sure that the qualification standards used to evaluate applicants/employees is job-related and consistent with business necessity. Avoid using subjective criteria when evaluating applicants or employees.
  3. Remember that employers have a duty to provide reasonable accommodations that will allow applicants or employees with disabilities to meet qualification standards, unless doing so would be an undue hardship (e.g., undue hardship is always something more than mere inconvenience).
  4. Employers should monitor and conduct internal hiring audits to determine how current hiring practices/technologies are being used and whether they are disproportionately impacting those with disabilities (or those falling into any other protected classification such as race, gender or national origin).
  5. Notify applicants of the use of technology; how it is being used and how the applicant will be evaluated.
  6. Provide clear instructions on how applicants/employees can request a reasonable accommodation.  

For additional information on how algorithms and artificial intelligence can impact hiring decisions:

Members with questions about the use of technology in hiring and promoting employees should contact Western Growers.

[i] A set of predetermined steps used by a computer to accomplish a task.

[ii] Using a computer to complete a task usually performed by a person.

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California Agricultural Neighbors Releases Four Key Food Safety Action Items After Yearlong Discussion

July 5th, 2022

Beginning in January 2021, the agricultural community in the Salinas Valley came together in an effort known as California Agricultural Neighbors (CAN).

Led by the California Department of Food and Agriculture (CDFA) and the Monterey County Farm Bureau (MCFB), CAN provided a roundtable opportunity to foster collaboration and discuss enhanced neighborly food safety practices when various agriculture operations such as leafy green fields, cattle ranches, vineyards and compost sites are adjacent to one another.

The following are major actions arising from the one-year CAN process. Western Growers will engage directly with the CDFA on next steps, including serving on the steering committee that will support implementation of the action plan.

Action 1: Foster Neighbor-to-Neighbor Interactions and Conversations

1.1 Sharing California Agricultural Neighbors (CAN) glossary of terms to foster a common understanding.

1.2 Collaborating with partnerships in CAN Outcomes Table that foster a culture of awareness in specific categorical areas.

1.3 Creating a Discussion Template to support neighbor-to-neighbor dialogue.

Action 2: Build a Research Roadmap for the Salinas Valley based on the following processes:

2.1 Introduction of pathogenic E. coli to host populations, and re-in­troduction into the environment in a cycle that leads to continuing exposure and outbreaks.

2.2 Amplification of pathogenic E. coli within host populations, follow­ing introduction, and through conditions that may allow for regrowth in growing lands and adjacent lands.

2.3 Survival and persistence of pathogenic E. coli under various condi­tions that do not allow for amplification, but which do allow more time for transport opportunities and intersection with leafy green crops.

2.4 Mechanisms of movement and transport of pathogenic E. coli across the landscape, including by air, water, animals, and machinery.

Action 3: Create a Quantitative Microbial Risk Assessment (QMRA) Framework

3.1 Assess the current state of sponsored research underway and supported by various entities.

3.2 Apply a QMRA framework to organize the data and ongoing research efforts to help prioritize research needs based on identified knowledge gaps where there is little to no working knowledge to populate the QMRA.

Action 4: Build and Maintain Capacity to Transfer Knowledge from Research into Applied Practice

4.1 Research Capacity. Right-size the needed depth and breadth of experts to fully support farmers, ranchers, and agri­culture neighbors in the Salinas Valley. Experts will need to have a multidisciplinary approach to collectively foster food safety, food security, and environmental sustainability with a One Health goal of achieving target health outcomes.

4.2 Research Funding Sources. Typical and non-typical funding sources and partnerships need to be pursued to support produce-specific research efforts. Researchers from allied fields of study / specializations should be actively engaged, particularly specialists in climate and weather patterns that might impact produce safety in the Salinas Valley and re­searchers who are able to study wildlife populations, migration patterns, and STEC carriage rates.

4.2 Capacity to Transfer Knowledge. Agricultural extension partners at land-grant universities, particularly including histor­ically Black State colleges and universities and Tribal colleges, are valuable partners in providing research capacity and translating research findings into applied, science-based recommendations to industry. Non-traditional partners such as industry trade organizations should continue to be encouraged to fulfill this role.

The entirety of the CAN report can be found here.

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Arizona Governor Signs Historic Bill That Makes an Unprecedented $1 Billion Investment to Secure Arizona’s Water Future

July 7th, 2022

Arizona Gov. Doug Ducey signed B1740 yesterday, investing $1.2 billion over three years to fund projects that will bring additional water to the state to secure Arizona’s water future, improve existing water infrastructure and implement effective conservation tools. The projects will help ensure that Arizona families, businesses and agriculture continue to have adequate long-term water supplies.

Western Growers staff worked with stakeholders, legislators and the Governor’s office to ensure current water resource allocations are protected for existing agricultural uses and agriculture will be represented during the selection process for future projects. SB1740 represents the most significant water legislation since the state implemented groundwater protections in 1980. SB1740 appropriates more than $1 billion to the Water Infrastructure Finance Authority (WIFA) and expands it with new responsibilities to provide loans and grants to water providers and entities for the purposes of importing water into Arizona, conservation, efficiency and reuse, and new technologies.

At the signing Gov. Ducey said: “Today, we are taking a bold step to do what the men and women of Arizona hired us to do — position our state for success today, tomorrow and for generations to come. This legislation is crucial for our continued growth and prosperity. It will ensure Arizona remains a land of opportunity for families and for businesses large and small. As we’ve done over the past seven and a half years, we came together, brought everyone to the table and delivered for the people of this great state. And by doing so, we are leaving Arizona better and stronger than we found it. I want to thank Senator Sine Kerr and Representative Gail Griffin for sponsoring this legislation and consistently leading on Arizona’s most pressing issues. I also want to thank: Senate President Karen Fann, House Speaker Rusty Bowers, and Leaders Rebecca Rios and Reginald Bolding. It is because of all your efforts that this passed with overwhelming bipartisan support.”

Senate Bill 1740 gives the Water Infrastructure Finance Authority (WIFA) additional authority and tools that will empower the state to be proactive in bringing in new water sources. WIFA will continue to finance the design and construction of water and wastewater infrastructure projects using federal and state funds. Now with the expansion, WIFA will pursue augmentation and conservation projects with a new board structure appointed jointly by the Arizona Legislature and Gov. Ducey. 

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CA Supreme Court Issues Final Ruling on Employer/Staffing Agency Privity

July 8th, 2022

Resolving a conflict in the Courts of Appeal, the California Supreme Court held that an employee’s settlement of their Labor Code and Unfair Competition lawsuit against a staffing agency did not bar them from then alleging the same claims against the staffing agency’s client in a later action. (Grande v. Eisenhower Medical Center)

Background

Plaintiff Grande was assigned through a temporary staffing agency (Flexcare) to work as a nurse at Eisenhower Medical Center (Eisenhower). Grande was a named plaintiff in a class action lawsuit against Flexcare alleging wage and hour violations under the Labor Code and violation of the Unfair Competition Law.  Flexcare settled with the class including a release of all claims from Grande. The hospital was not a party to that initial lawsuit and the settlement did not name the hospital as a released party. Nonetheless, Grande then sued Eisenhower alleging identical wage and hour violations.

 Eisenhower argued that Grande was prohibited from bringing suit against Eisenhower because she had settled and subsequently released all claims in the prior suit. The Court of Appeal disagreed, criticizing the reasoning of a published opinion that found claim preclusion on similar facts, and the Supreme Court granted review to resolve the conflict. Ultimately, the Supreme Court found that Eisenhower was not a released party under the Flexcare settlement agreement and had no protection against the subsequent suit as it had no “privity” with Flexcare nor was it a party in the prior litigation.

The CA Supreme Court Decision

The California Supreme Court’s holding centered on privity[i]. The Court found that judgments, “bind not only parties but also “those persons ‘in privity with’ the parties.”” According to the Court, for Eisenhower’s affirmative defense of claim preclusion to be successful it must have been a party to the prior action or in privity to a party.

Eisenhower argued it was in privity to FlexCare, but the Court found privity “requires the sharing of an identity or community of interest, with adequate representation of that interest in the first suit, and circumstances such that the nonparty should reasonably have expected to be bound by the first suit.” No such privity was found between Eisenhower and FlexCare because they had different legal interests. The Court further found that claim preclusion could not be based on a claimed indemnification or agency relationship between litigants.

The Significance of The Court’s Decision:

Employers utilizing staffing agencies should review those contracts to ensure indemnification and notice obligations are clearly stated and enforceable. Conversely, staffing agencies will want to reconsider how they settle future claims in situations where their clients are not named litigants. Clients of staffing companies who settle cases where the plaintiff(s) worked should ensure the release expressly names the client or specifies a group of clients of the staffing agency. This will be especially important should they have indemnification obligations to such clients.

[i] A legal term referring to a connection between parties to a contract. Questions of privity typically arise when a litigant attempts to use a judgment against someone who was not party to that judgment.

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EDD Offers Small Business Grants for PFL Assistance

July 15th, 2022

California’s Paid Family Leave (PFL) program – offered through the California Employment Development Department (EDD) – allows California workers to take paid leave to bond with a new child (through birth, adoption, or foster care) or to care for a seriously ill family member. PFL provides eligible employees with up to 8 weeks of wage replacement benefits when an employee is off work for certain qualifying reasons regardless of business size.

Businesses with employees utilizing PFL may experience increased costs such as those associated with training existing staff or hiring additional staff to cover the duties of the employee on PFL as well as additional marketing, recruitment and other foreseeable training costs. To assist small businesses in offsetting these increased costs the California Employment Training Panel and California Labor and Workforce Development Agency have funded a grant program for small employers. 

The Paid Family Leave Grant Program offers small businesses (e.g., those with 1-100 employees) who have at least one employee utilizing PFL (on or after June 1, 2022) the opportunity to apply for grants up to $2,000 per employee on PFL to offset the increased costs associated with the employee being out on leave.

Additional information on the PFL Grant Program, including Program FAQs, can be found on EDD’s PFL Grant Program website. 

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Colorado’s Law Restricting Non-Competes Becomes Effective August 10, 2022

July 8th, 2022

Passed in May 2022, Colorado’s HB22-1317 – also known as the Restrictive Employment Agreements Act (Act) – becomes effective August 10, 2022.

The Act places further limits on the enforceability of non-compete and customer non-solicitation restrictions.   Changes also include new notice requirements, expanded penalties, and restrictions about choice of law and venue. HB22-1317 will not be enforced retroactively.

Some of the Act’s key changes are listed below: 

Certain restrictions on non-competes and non-solicitation of customers remain enforceable if they meet specific requirements:

  • Non-compete agreements must be: 
    • No broader than reasonably necessary to protect an employer’s legitimate interests in protecting trade secrets.
    • Entered into with a worker or prospective worker who, at the time the noncompete is entered into and at the time it is enforced, earns an amount of annualized cash compensation equivalent to or greater than the threshold amount for highly compensated workers (e.g., $101,250 or more annually).
  • Customer non-solicitation must be:
    • No broader than reasonably necessary to protect the employer’s legitimate interest in protecting trade secrets.
    • Entered into with a worker who earns 60 percent or more of the threshold amount for highly compensated workers (e.g., $60,750 or more annually).
  • Confidentiality agreements/provisions must:
    • Be relevant to the employer’s business.
    • Not prohibit disclosure of information:
      • Arising from the worker’s general training, knowledge, skill or experience, whether gained on the job or otherwise.
      • Readily ascertainable to the public; or
      • A worker otherwise has a right to disclose as legally protected conduct.

All restrictions must also be reasonable in scope and location.

Notice Requirements

Notice must be presented:

  • “[I]in clear and conspicuous terms [state] the language in which the worker and the employer communicate.”
  • To current workers at least 14 days before the earlier of either:
    • The effective date of the noncompete agreement; or
    • A change of the condition of employment providing consideration for the agreement.
  • To applicants before they accept the offer of employment.

To be valid, the notice must be separately signed. This means the notice cannot be included within the restrictive covenant document(s). Violation of the notice requirement will void the restrictive covenant agreement and subject the employer to significant penalties (e.g., $5,000 for each impacted worker or prospective worker, injunctive relief, actual damages, and attorneys’ fees and costs).

Choice of Law and Venue

Workers who primarily live or work in Colorado at the time of termination cannot be required to adjudicate a restrictive covenant agreement outside of Colorado. The same circumstances prevent an employer from designating another state’s laws as governing the agreement for enforcement purposes. However, the enforceability of this provision is questionable in light of the Supreme Court’s decision in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, 571 U.S. 49 (2013).

Next Steps

Before the August 10, 2022 effective date, employers should begin a review of existing restrictive covenant agreements/provisions for compliance. This internal audit should also include a review of the company’s current protocols/processes for presenting and discussing restrictive covenant documents with current and prospective workers. Given the significant penalties associated with noncompliance, employers should consult legal counsel before making any changes to existing restrictive covenant agreements.

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It’s Getting Hot Out There

July 15th, 2022

As summer temperatures start to climb employers are encouraged to review and comply with Cal/OSHA heat illness standards for all outdoor places of employment. Heat illness is defined under California law as, “a serious medical condition resulting from the body’s inability to cope with a particular heat load, and includes heat cramps, heat exhaustion, heat syncope and heat stroke.”

Heat Illness Prevention Procedures:
Agricultural employers are specifically required to comply with high-heat procedures by taking the following four steps:

Training

  • Train all employees and supervisors about heat illness prevention.

Water

  • Provide enough fresh water so that each employee can drink at least 1 quart per hour, or four 8-ounce glasses, of water per hour, and encourage them to do so.

Shade

  • Provide access to shade and encourage employees to take a cool-down rest in the shade for at least 5 minutes. Workers should not wait until they feel sick to cool down.

Planning

  • Develop and implement written procedures for complying with the Cal/OSHA Heat Illness Prevention Standard.

Heat Illness Prevention Plan (HIPP)
California employers are also required to develop and implement effective procedures for complying with the requirements of California Code of Regulations Title 8 Section 3395 to develop and maintain a HIPP. An employer’s HIPP must be in writing and include the following:

  • Procedures for providing sufficient water
  • Procedures for providing access to shade
  • High-heat procedures
  • Emergency response procedures
  • Acclimatization methods and procedures

The HIPP must be provided in English and in the language understood by the majority of employees. The HIPP must be available to employees at the worksite, and to representatives of Cal/OSHA upon request. An employer’s HIPP may be integrated into an existing Injury and Illness Prevention Program (IIPP).

Useful Compliance Resources:
CA Dept. of Industrial Relations Heat Illness Prevention eTool
CA Dept. of Industrial Relations Heat Illness Prevention Resources

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New Mexico’s Paid Sick Leave Law Now in Effect

July 8th, 2022

As reported here, beginning July 1, 2022, the New Mexico Healthy Workplaces Act (“HWA”) requires employers with at least one employee to provide all employees (i.e., full-time, part-time, seasonal, and temporary employees) up to 64 hours of paid sick leave. The HWA makes no exception for small employers but does exclude public employers.

The HWA mandates one hour of accrued paid sick leave for every 30 hours worked, capped at a total of 64 hours. Paid sick leave hours can be provided via the accrual method or by frontloading the full 64 hours at the beginning of each year. Each employer is free to define the “year” period in which paid sick leave must be used (e.g., calendar year, fiscal year, or a rolling 12-month period).

Sick leave may be used by employees for absences due to various reasons outlined in the Act, some of which include family members’ illness or injury and reasons relating to domestic abuse and sexual assault. Accrued and unused sick leave may carry over but remains capped at 64 hours per 12-month period. As an alternative, employers may frontload available leave time.

There are limitations within the HWA on incremental use and the employer’s ability to require an employee to arrange for their replacement during the period of absence. Employers may request certification of the need for leave, whether the request is received orally or by written request, if the employee’s request uses at least two consecutive workdays of leave time. Employers should be cautious in requesting certification making clear it should not provide an explanation/diagnosis of any medical condition or abuse, assault or staking situation.

The HWA does take into consideration an employer’s existing paid time off policy (PTO) if it provides the minimum number of hours required by the statute. Any existing PTO must provide for time off for the same reasons and requirements as set out in the HWA. Employers subject to a collective bargaining agreement (CBA) should review the CBA to determine if PTO may be use for the same reasons and requirements as set out in the HWA.

Other employer requirements include notifying employees of their rights under the HWA (written or electronic) as to how leave is accrued/calculated, how it may be used, protections against retaliation for exercising rights under the HWA and how to file a complaint to address violations. Employers must maintain records of hours worked and leave used for a period of four years. 

Employers who have not yet implemented paid sick leave policies/procedures or revised existing PTO policies should do so immediately as failure to comply with the HWA may result in fines and possible civil action.

Members with questions about HWA should contact Western Growers.   

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California Department of Food & Agriculture Extends Grant Program Deadline

July 22nd, 2022

The California Department of Food and Agriculture (CDFA) is extending its application deadline for its 2022 Beginning Farmer and Farmworker Training and Workforce Development Program (BFFTP). Grant applications will now be accepted until August 15, 2022.

The BFFTP grant program was funded through the 2021 California general fund budget. The program provides support to organizations to seeking to enhance or expand beginning farmer and farmworker training/apprenticeship programs.

Overall program goals include ensuring that resources are dedicated to strengthening support for socially disadvantaged and/or beginning farmers and ranchers in the first ten years of business, and for farmworkers who need skills training to provide job sustainability. A secondary goal of the program is to build and grow regional networks to ensure that organizations can provide adequate support and training opportunities for those most underserved in the agriculture industry.

BFFTP Additional Resources:

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Federal District Court Finds Pre-Shift COVID Screening Time Not Compensable Under FLSA

July 22nd, 2022

A federal district court in California has answered another important COVID-related legal question.  In a case of first impression, the question before the Court was whether time spent by hourly employees receiving pre-shift COVID screening was compensable under the Fair Labor Standards Act (FLSA). (Pipich v. O’Reilly Auto Enterprises, LLC)

Plaintiff, a non-exempt truck driver, filed a collective action claim alleging that the time he and fellow co-workers spent participating in employer required daily COVID health screening conducted on employer’s premises was compensable under the FLSA. The total time spent in the screening process often exceeded five minutes, which included waiting time. Under the FLSA, time spent in pre-shift activities is only compensable if it is “integral and indispensable” to the employee’s “principal activities or activities which [the] employee is employed to perform.”

Noting the Department of Labor’s regulations that “[t]he `principal’ activities referred to in the statute are activities which the employee is `employed to perform,'” the Court found that, “[p]laintiff’s job duties included loading and transporting automobile parts from the distribution center to stores throughout the southern California region.” And that, a “pre-shift COVID screening is not the “principal activity or activities which [the] employee is employed to perform.” In other words, the employer did not hire the employees to undergo health screenings, but instead to load and transport products to stores.

While the Court’s decision may close the loop on another federal-level pandemic-related open question – making it clear that the compensability of time spent in employer-mandated COVID-19 screening activities outside of regular working hours are not compensable under the FLSA – it is likely the situation would be viewed differently under California law.

Under California law, employers are liable for all the time the employee is subject to the control of the employer. In the past, certain small amounts of time (e.g., opening the facility or locking up) were considered “de minimis” (i.e., too trivial or minor to merit consideration) and were not counted as hours worked. However, the California Supreme Court has made clear that even time considered “de minimis” must be compensated when the work performed is done on a regular basis or as part of the job. However, because the Court is unclear as to what might be considered de minimis, it is recommended that employees be paid for all time worked, including short periods of time for required pre/post duties (e.g., employer-mandated COVID-19 screening); even if it is a small amount of time and/or doesn’t occur regularly.

Members with questions about the compensability of COVID-related screening activities outside of regular working hours should contact Western Growers.

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EEOC Updates COVID-19 Guidance

July 22nd, 2022

The Equal Employment Opportunity Commission (EEOC) has recently updated its COVID-19 guidance for employers. The updates reflect a broader understanding of how COVID-19 has evolved and takes into greater consideration evolving public health guidance.

While none of the updates constitute major policy changes, they do make clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. Employers making testing decisions are encouraged under the new guidelines to take into consideration various factors such as community transmission levels and types of contacts between employees and others in the workplace. This shift acknowledges that evolving pandemic circumstances will require individualized assessments by employers when determining whether testing is warranted consistent with the requirements of the ADA.[i]

Some key changes to the EEOC’s What You Should Know About COVID-19 and the ADA Technical Assistance FAQs include:

Disability-Related Inquires and Medical Exams:

  • An employer may, as a mandatory screening measure, administer a COVID-19 viral test[ii] when evaluating an employee’s initial or continued presence in the workplace if the employer can show testing is job-related and consistent with business necessity.
  • On the other hand, under the EEOC, antibody testing is considered a “medical examination under the ADA.” Coupled with CDC guidance providing that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; antibody testing should not be used to determine whether an employee may enter the workplace as it does not (for the reasons stated) meet ADA’s “business necessity” standard.

Hiring and Onboarding
Employers may continue to screen job applicants and employees, but must keep in mind the following:

  • An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
  • If an employer screens everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 before permitting entry to the workplace, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.

Employers should remember that this type of screening is limited to the same screening that everyone else undergoes; employers going beyond will be considered to have engaged in an illegal pre-offer disability-related inquiry and/or medical examination under the ADA.

Other areas impacted by the updates include reasonable accommodation, return to work protocols and vaccinations.

The EEOC’s shift in focus to individualized assessments, current transmission rates and other risk factors seems to reflect a return to pre-pandemic standards, but with a better overall understanding of the challenges faced and lessons learned (by the agency and employers) during the COVID-19 pandemic.

Employers with questions about COVID-19-related testing, reasonable accommodation and return to work protocols should contact Western Growers. 

[i] California employers must also be mindful of interactive process and reasonable accommodation responsibilities under the Fair Employment and Housing Act which provides greater employee protection.

[ii] A test to detect the presence of the COVID-19 virus.

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PAGA Repeal Proposition Approved for November 2024 Ballot

July 29th, 2022

The California Secretary of State recently announced that the California Fair Pay and Employer Accountability Act (FPEAA) has qualified for the November 2024 ballot. Nearly 1 million signatures were submitted in support of the Proposition. The FPEAA seeks to repeal California’s controversial Private Attorneys General Act (PAGA) and eliminate Labor Commissioner authority to assist private individuals with wage enforcement actions.

Meanwhile, California PAGA challenges continue with a petition for rehearing pending before the U.S. Supreme Court for Viking River Cruises, Inc. v. Moriana and review recently granted by the California Supreme Court in the case Adolph v. Uber Technologies, Inc. The Adolf decision will be one to watch for as the question before the Court – whether California law allows an aggrieved party who is forced into arbitration to nonetheless maintain standing to pursue the nonindividual aspect of the employee’s PAGA claim – could end up being a countermand to the Viking River holding.

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Best Practices: Workplace Investigations

July 29th, 2022

Many state and federal laws require an employer to investigate employee complaints in a timely manner (e.g., California Fair Employment & Housing Act, Title VII, ADA/ADAAA). Prompt and thorough investigations ensure accurate recollections and give the employer the opportunity to quickly take all appropriate corrective actions.

The first steps taken by an employer in any investigation are crucial. Securing information, maintaining confidentiality, and providing any necessary alleged victim protections are important first steps an employer should take after receiving any complaint. According to the California Department of Fair Employment and Housing (DFEH)[i], to comply with the state’s legal mandate that to, “take reasonable steps to prevent and correct wrongful[ii] (harassing, discriminatory, retaliatory) behavior in the workplace, employers should take the following basic steps:

  • Review all relevant company policies implicated by the alleged conduct.
  • Provide ‘Due Process’ by striving to be fair to all parties during the investigation:
    • Start the interview process by conducting a thorough interview with the complaining party.[iii]
    • Provide the accused party with an equal opportunity to be heard and to tell their side of the story.
  • Follow up these first two interviews with relevant witness interviews and a review of any important or related documents.
  • Consider what other steps might be taken that would allow the employer to gather all the facts (e.g., visit the worksite, review video, take pictures).
  • Reach a reasonable and fair conclusion, based on the information collected, reviewed, and analyzed during the investigation, as to whether a violation of company policy has occurred.

Many state and federal laws require the employer to advise complainants of the outcome of any investigation. This does not necessarily require full disclosure of the exact disciplinary steps taken —or not taken. A general statement indicating a full investigation was conducted and a conclusion reached (e.g., proof of misconduct or no proof of misconduct) and if applicable, that remedial measures have been taken should suffice. This is also an opportunity to follow up with the complaining party to be sure the problem has been resolved and they have not experienced any retaliatory conduct.

[i] DFEH Workplace Harassment Prevention Guide for California Employers.

[ii] Cal. Govt. Code §12940(k)

[iii] All interviews should be conducted in person or remotely as circumstances allow. It is not recommended that interviews be video recorded.

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Summer Wage and Hour Reminders

July 29th, 2022

Employers are required to pay all nonexempt employees in compliance with state, federal and local wage and hour laws. As we head toward the mid-summer months, here are a few key reminders for compliance with state and federal laws governing the payment of wages and overtime pay:

Minimum Wage
California and Arizona state minimum wage rates differ but are higher than the federal minimum wage. Employers must keep in mind that local minimum wage rates may exceed state minimums. In all cases, employers are required to pay the higher of any applicable federal, state, or local minimum wage. Non-exempt employees must be at least a minimum wage for all hours worked including all hours designated as overtime.

Overtime or premium pay is required under federal, state, and local wage and hours laws for all hours worked over a specifically mandated number of workweeks or workdays. Employers should become familiar with their state and local minimum wage rates, effective dates, and projected increase dates.

Overtime
As with minimum wage laws, employers must comply with the state or federal overtime laws that are most protective of the employee. Arizona follows federal law under the Fair Labor Standards Act (FLSA) regarding overtime and must pay nonexempt employees at least 1.5 times their regular rate of pay for all hours worked over 40 in a workweek.[i] California law is typically more favorable than federal law and (with limited exception) requires an employer to pay overtime to all nonexempt employees (including nonexempt employees being paid a fixed salary) who work over eight hours per day and over 40 hours workweek as follows:

  • 1.5 times the regular rate of pay for all hours worked over eight hours in a day, up to and including
  • 12 hours in any workday and the first eight hours worked on the seventh consecutive day of work in a workweek.
  • Double the regular rate of pay for hours worked over 12 hours in any workday and eight hours on the seventh consecutive day of work in a workweek.

[i] Arizona employers using a fluctuating workweek method of calculating overtime for salaried nonexempt employees should consult counsel to confirm they are using the appropriate overtime calculation method.

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New Voices of the Valley Episode: Hadley Date Gardens President and Western Growers Chair Albert Keck on the Future of Specialty Crops

July 7th, 2022

Albert Keck, President of Hadley Date Gardens and current Western Growers Chair of the Board of Directors, joins the podcast to talk about his family’s history in farming and how his decades of experience in the industry leads him to believe that the future could be bright for specialty crops. 

“You want to talk about pessimism? When I was a kid all I could hear from the industry was: ‘Only old people eat dates’ and ‘All our customers are dying.’ It was like Eeyore in ‘Winnie the Pooh.’ Everything was negative,” Albert says. “What we’ve found recently, the Millennials – God bless them, for all the hassles they throw on us – they’re all healthy eaters. When I was going up we ate Cheetos and Doritos and hot dogs. And now the young adults want to have healthy food and real food. They are very conscious of what they eat and where it is grown.”

It’s this change in consumer taste that Albert believes will define the coming years for fruit and vegetable growers – if the political landscape can work to empower domestic farmers. “We’re out there banging on the drum to all of our political representatives, saying ‘Hey, you keep throwing stuff at us – the ideals are not necessarily bad, we agree with a lot of the ideals – but we’re in a global marketplace that doesn’t care about those ideals,'” he says. “It seems like more and more a lot of our political system is definitely hamstringing domestic production. And so that’s something we have to contend with as a culture. Are we going to want to grow these crops domestically, or do we just not care?”

Click here to listen to the podcast, and Albert will rejoin the team next week for Part Two of his interview.

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WGIS Reminds Employers of the Steps Required to Prevent Heat Illness

July 7th, 2022

According to the National Oceanic and Atmospheric Administration (NOAA), the United States had its hottest summer on record in 2021, narrowly beating records set during the Dust Bowl era 85 years ago. California, Idaho, Nevada, Oregon and Utah experienced record-high temperatures during the months of June, July, and August. 

With the inevitably of another hot dry summer occurring in 2022, it is imperative to keep outdoor workers safe from heat illness. Unfortunately, each year there are reports of workers being hospitalized, with some becoming fatalities, as a result of heat illness-related incidents.

In 2005, under Gov. Arnold Schwarzenegger, California passed the nation’s first workplace heat illness regulation for outdoor workers, CCR Title 8 Section 3395. This Cal/OSHA regulation applies to all outdoor places of employment to include agriculture, landscaping, construction, and oil/gas extraction industries.

The steps required to prevent heat illness at the work site include:

Water. Access to fresh water in the amount of at least one quart (32 ounces) per hour of work for each employee must be available.

Rest. Whenever workers feel the need to prevent themselves from overheating, a preventive cool-down break period under shade cover is allowed.

Shade. Employers must provide shade coverings when temperature are 80 degrees F and above. Shade coverings and water must be placed as close to the work site as possible.

Plan. A written Heat Illness Prevention Program must be developed and implemented in order to protect outdoor workers during hot periods. This program will need to include high-heat procedures when temperatures are considered critical at 95 F and above.

Training. Supervisors and their employees need to be trained on heat illness prevention. Training should include recognizing signs and symptoms of heat illness, knowing the water and shade requirements, acclimating to high-heat temperatures, and having personnel trained in first aid/CPR for responding to workplace emergencies.  

Best practices for heat illness prevention are to check your local news or reputable internet apps for extreme heat alerts and weather forecasts prior start of shifts to better prepare for exposure to high temperatures. Additionally, advancements in wearable and mobile technologies have made it easier to keep workers connected and aware of high heat alerts and prevention protocols.

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]. 

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New VofV Episode – Albert Keck: It’s Time to Stop Just Preaching to the Choir About Ag

July 12th, 2022

Hadley Date Gardens President and Western Growers Chair of the Board Albert Keck returns to the podcast to talk about what it will take for farmers and rural communities to change the narrative about the realities of earning a living in agriculture.

“We’ve been playing defense for so long…boy, I would love to be able to shift gears and play offense,” Albert says, noting that real-world shortages may be what finally makes the issue come to the forefront. “I don’t love going to the grocery stores and seeing empty shelves. What happens when there is no water?” 

The ramifications of this, he says, could be a way to bridge the perpetual urban and rural divide. “Maybe that’s where our opportunity is as Western growers,” Albert says. “We can capitalize on the fact that consumers in our society realize the supply chain is hanging in the balance.”

Listed to the latest episode of Voices of the Valley here.

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WG Women: Sign Up Today for Two New, Free Training Events!

July 12th, 2022

Two new, free WG Women training events that are happening in the coming weeks – register today and beat the rush!

The first is a virtual Advocacy Training that is occurring on July 19. Our Director of Federal Government Affairs, Tracey Chow, will give an overview of the current legislative slate and give tips on how to most effectively use your voice with our elected representatives.

Please click here to register for Advocacy Training.

The second is an in-person training in Salinas on Aug. 2. Anna Bilderbach, our HR Learning & Development Manager, is offering DiSC – Productive Conflict training. This is an all-day session; we will provide breakfast and lunch as well as a hotel room for the evening of Aug. 1 if anyone requires it. Register soon for this one – attendance is limited and there is a bit of homework you will have to complete and print out before the event itself.

Please click here to register for DiSC – Productive Conflict.

If you have any questions before registering, please contact Western Growers’ Media Relations Manager Ann Donahue at (949) 302-7600 or [email protected]. WG Women programs and events are a member benefit of Western Growers. Please contact Kim Sherman at [email protected] for Western Growers membership information.

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Western Growers to Honor John Harris at the 2022 Annual Meeting

July 14th, 2022

IRVINE, CALIF. (July 14, 2022) – Western Growers will honor California agricultural icon John Harris with the 2022 Award of Honor. The Award of Honor is Western Growers’ highest recognition of achievement and is given to individuals who have contributed extensively to the agricultural community.

With more than 50 years’ experience in ranching, farming, hospitality and thoroughbred horse racing, Harris embodies the diversity of California agribusiness. The Harris Farms Group includes Harris Fresh and the Harris Farms Thoroughbred Division, in addition to the landmark property known to all Californians on the I-5.

“Like his iconic Harris Ranch Inn & Restaurant, which stands as an oasis alongside a remote stretch of road, John is a pillar in California agriculture and the broader Western fresh produce industry,” said Western Growers President and CEO Dave Puglia. “It is safe to say that no one in this industry is more recognized and admired, and not just among his peers but also by community and political leaders throughout California. John’s vision can be seen in all his enterprises, from his ranching and farming businesses to his championship horse racing operations. Beyond his business endeavors, John is a powerful voice for farmers in Sacramento and Washington, D.C., and has dedicated his life’s work to the advancement of California agriculture and the rural communities our industry supports. John is most deserving of the Western Growers Award of Honor and we are excited to present him with our highest recognition at our Annual Meeting in November.”

“I was very flattered to be recognized by my peers,” Harris said of being named the recipient of the Award of Honor for 2022. “I was pleased and proud that they felt like I deserved it.”

Harris was born to a farm family whose operations in California extend back more than a century. He graduated with a degree in agricultural production from the University of California, Davis and then served two years in the U.S. Army. Besides his tenure as CEO and sole shareholder of Harris Farms and his 11 years on the Western Growers Board of Directors, Harris served five terms as president of the California Thoroughbred Breeders Association. The Harris Farms Thoroughbred Division produced California Chrome, the winner of the 2014 Kentucky Derby and Preakness Stakes.

“I’ve been involved with John not only in horses, but in many agricultural enterprises,” said Don Valpredo, President of Donald Valpredo Farming and horse racing legend. “He’s a tireless worker – he uncovers every stone…he’s about as involved and as fair in everything that he does of anyone I’ve ever been involved with.” 

The Award of Honor will join numerous other significant awards Harris has received; in 1988 he was named Livestock Man of the Year by his peers in the ranching industry, and in 2014 he received the Agriculturalist of the Year award from the Fresno Chamber of Commerce. He received an honorary degree of Doctor of Science from the California State University at Fresno in 2019.

Harris’ achievements will be celebrated at the Award of Honor Dinner Gala at the Western Growers 2022 Annual Meeting at the Venetian Resort Hotel in Las Vegas. The 2022 Annual Meeting will be held from Nov. 2-5, 2022. For more information about registration or to take advantage of sponsorship opportunities, please contact Assistant Vice President, Membership Kim Sherman at [email protected].

For more information, please contact:

Ann Donahue

(949) 302-7600

[email protected]

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. 

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