Working in Rainy Conditions

January 13th, 2023

With the recent onset of unprecedented rainstorms, with yet another major front moving in this week and next week, planting and harvesting activities will be severely constrained.

Below are a few important recommendations to consider before engaging in agricultural operations due to excessive rain or flooding in your fields.

First and foremost, before you decide to conduct any type of field operation during the next two-week period, members are advised to check the daily weather forecast for rain conditions that will be occurring on the following workday.  If excessive rain conditions are expected, it is recommended that you contact workers to not appear at work until otherwise requested to report.

Secondly, in those instances where employees report to work, but cannot begin or continue work because of excessive rain conditions or flooding, employees are to be immediately excused from work to return home.  In such instances, there is no reporting time pay required under Section 5 of Wage Order 14-2001 (Reporting Time Pay).  However, whenever workers are required to report to work and are not released completely from the workplace, but are required to standby until weather conditions improve, such standby time is to be paid at no less than the applicable minimum wage rate. 

Third, working in excessive rain conditions can create workplace safety problems, as well as potential workers’ compensation claims for slips and falls in muddy or flooded rows.  Therefore, the decision to work under such conditions should only be undertaken after you have evaluated all of the potential safety factors of working in a particular field. 

Lastly, the perennial question is whether employees working in excessive rain conditions should be provided with boots and raincoats.  In other words, personal protective equipment (“PPE”). 

For example, in IWC Wage Order 14-2001, Section 9 (Uniforms and Equipment), Section (B), states that tools and equipment which are required by the employer, or which are necessary to the performance of a job must be provided and maintained by the employer.  The standard also states that “This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board.”

In referring to the Cal/OSHA regulation, Title 8 C.C.R., Section 8414 with respect to personal protected equipment, subdivision (a) states “Whenever employees are exposed to hazards in the workplace, and where engineering or administrative controls are not effective in eliminating the hazards, personal protective equipment shall be provided.”  A workplace hazard refers to “a situation within the workplace that has the potential to cause injury or adverse health effects for people…”  [Safeopedia]

Also, under Section 8414, subdivision (f)(3) (Body Protection), the Cal/OSHA regulation states that “Acceptable rubber boots and raingear shall be provided and used where wet conditions are encountered.”  [Emphasis added]

Thus, it appears that rubber boots and raingear must be provided where rain (wet) conditions are encountered in the workplace by the employees.  This conclusion is underscored by the general statutes on workplace protection of employees.  [Labor Code Sections 6401-6402.] 

Section 6400(a) states “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.”  Furthermore, Section 6402 states “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes, which are reasonably adequate to render such employment and place of employment safe and healthful.  Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”  [ See also, Section 6403.]

Based upon the foregoing, it would appear that the Cal/OSHA safety regulation pertaining to personal protective equipment (PPE) does require the use of rubber boots and raingear where wet conditions are encountered.  The regulation does not state whether these conditions must appear inside a commercial packinghouse, as opposed to a rain-soaked field with muddy and flooded rows.

Nevertheless, one could reasonably anticipate that employee advocacy organizations may argue that such protective equipment would be required when the workplace is subjected to such torrential rains.

If PPE is required by the employer, the employer is required to maintain it and may require a reasonable security deposit for its return at the end of the season.  On the other hand, it is best to avoid these issues by not working in such inclement weather, unless absolutely required due to market or other demands.  In such instances, the use of raingear is recommended to be provided.  Under no circumstances should workers be required to work in open fields when there is thunder and lightning present or within earshot!

Authored by Robert P. Roy, General Counsel, Ventura County Agricultural Association. Reprinted with permission.

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DHS Announces Streamlined Deferred Action Request Process for Noncitizen Participants in Labor Investigations

January 19th, 2023

The U.S. Department of Homeland Security (DHS) has announced a streamlined, expedited process for considering deferred action requests from noncitizen workers who are victims of, or witnesses to, labor violations. The streamlined process is effective immediately.  

Deferred action may be granted by DHS to temporarily defer deportation proceedings against a noncitizen. A noncitizen granted deferred action is considered lawfully present in the United States while the deferred action is in effect and may be eligible for employment authorization. If deferred action is approved, it may be granted for a period of up to two years, and longer if subsequent renewal requests are approved. 

Other changes include a website single intake point for all reports to submit requests to be processed on a case-by-case basis.  

More information, including an FAQ page, is available here on the DHS website. 

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Digital edition of January/February issue of Western Grower & Shipper Magazine is Now Available

January 24th, 2023

By Ellie Amesse

The January/February issue of Western Grower & Shipper Magazine is now available. Print copies should be in your mailbox soon, and the digital issue can be accessed here. 

This issue is all about agricultural technology and equipment. The cover story is titled “Robots on the farm: how farm workers have safer, better-paying jobs thanks to tech.” This story talks about the role technology plays in the ag labor force. Quoted in this article is HMC Farms Vice President Drew Ketelsen. 

The “President’s Notes” column features a piece by Western Growers president and CEO Dave Puglia, called “The water crisis is devastating for California’s farms. It’s time for a crisis-level response.” This opinion article is a response to California’s drought conditions and water policies. 

The issue also features a piece on the innovation and development of autonomous tractors, called “How California let Arizona take the driver’s seat when it comes to using autonomous farm vehicles.” This article contains thoughts from Walt Duflock, VP of Innovation for Western Growers, and Joani Woefl, president and CEO of Far West Equipment Dealers. 

Western Growers celebrates the 38 years of service of David Zanze as he announces his retirement as executive vice president of Western Growers Assurance Trust and president of Pinnacle Claims Management. 

The issue ends with a collection of photos of the furry friends of Western Growers employees and members. 

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Industry Pushes to Block Kroger-Albertsons Planned Merger

January 25th, 2023

Western Growers joined with the California Fresh Fruit Association and Colorado Fruit & Vegetable Growers Association to recently submit comments to the Federal Trade Commission (FTC) on the proposed merger of grocery giants Kroger and Albertsons. While the companies’ investors might see a profitable upside, farmers have good reason to be concerned this deal, worth nearly $25 billion, is bad for producers. The two retail giants combined would account for 15.6 percent of the U.S. grocery market share, second only to Walmart at 21 percent. Kroger says the deal would help it better compete against Walmart Inc. on prices. Industry’s comments make the case that the deal, if granted approval by the FTC, will harm suppliers of fresh produce by decreasing competition since the newly combined megastore would have significantly more leverage over the growers and shippers that feed the nation, causing reduced farm profits and farmworker jobs.

 

Does the Merger Violate Antitrust Laws?

The FTC and Justice Department each have jurisdiction to determine if it violates antitrust law, though the FTC has historically scrutinized mergers involving grocery chains and has taken the lead in reviewing this deal. The government’s policy on antitrust mergers & acquisitions review has shifted after decades of a relatively permissive stance to a markedly more interventionist, activist policy, under the Biden administration. On Dec. 6, the FTC asked Kroger for more information on the deal, known as a second request, potentially dragging out the antitrust review process for the merger by months or even years.

Kroger and Albertsons are the first- and second-largest supermarket chains in the U.S. Viewing the field of competition through that limited lens would likely compel the FTC to block the deal. However, expanding consideration of the food retail market to include other types of stores that sell groceries, such as Walmart (21 percent market share), Costco (7 percent), online-grocer leader Amazon, among other smaller regional players, could help tip the scales in favor of approving the merger.

To preemptively address the antitrust regulators’ concerns that the merger will stifle competition in markets where they have overlapping stores, Kroger and Albertsons announced that it will offload up to 375 Albertsons locations to a separate company controlled by Albertsons shareholders. The FTC demands divestitures and other concessions to promote competition, but such measures can backfire.

When Albertsons and Safeway merged in 2014, Haggan, a grocery chain based in the northwest with just 18 locations, acquired 146 former Albertsons and Safeway stores. But less than a year later, the over-extended Haggen went bankrupt, closing many of the stores it purchased and selling other stores through the bankruptcy proceedings at a lower price to supermarket bidders including…you guessed it, Albertsons. The spectacular failure of the Albertsons-Safeway merger is a cautionary tale, with concerned lawmakers referring to it repeatedly in the context of scrutinizing the Kroger-Albertsons deal.

 

Increased Scrutiny

At a Senate Judiciary hearing in November, nearly a dozen lawmakers grilled Kroger and Albertsons CEOs on the potential impacts of the mega-merger. They raised concerns about food inflation, lost employee bargaining power and lost jobs if the deal is approved. Industry groups, labor unions and consumer groups have also weighed in, noting that the merger will increase already rising food prices boosted by high inflation.

Western Growers urges the FTC to block Kroger from acquiring Albertsons. A Kroger-Albertsons mega-buyer would imbue the new behemoth with exceptional buying power capable of further squeezing its suppliers. The inevitable result will be further shrinking already skinny farm margins, lost farmworker jobs and earnings, and higher food prices. The merger is bad for just about everyone who is not a Kroger or Albertsons investor.

Western Growers’ letter to the FTC can be viewed in the News section on wga.com.

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Education is Key to Successful Advocacy

January 25th, 2023

At the time of this writing, the 2022-2023 two-year legislative session has been called to order in Sacramento. This represents a changing of the guard from one formal legislative season to another and, this year, a sea of change in the number of new legislators who are coming to California’s capitol. In fact, approximately a quarter of the legislature is now made up of new faces. This is both exciting and challenging for those of us who advocate at the Capitol. It’s truly enjoyable to meet the new members and learn about their previous life experiences in addition to their specific policy goals.

We have many issues to cover with Sacramento’s new arrivals. WG’s advocates meet with the new offices to walk through the basics of growing, harvesting and bringing a crop to market. We touch on just about everything: tax policy, land use, water supply and quality, and the list goes on. We do this to educate the Sacramento Capitol community about the uniqueness of California agriculture. This educational process is dynamic and happens throughout the entire legislative process. Legislative bills and agency rulemakings are constantly moving, so we must move quickly to discuss with officials whether the proposed policy will either have a positive or negative impact on the industry. It’s one of the most important aspects of our role and requires that WG staff stay up to speed on how our growers are operating and what they see as future opportunities as well as barriers for their business operations.

WG’s advocacy is important. Case in point, only two of the new assemblymembers who posted introductory videos on their official websites mentioned water as one of their three policy goals. This is perhaps unsurprising given that great attention has been given lately to education, healthcare, climate and social justice. However, a stable water supply is a key ingredient of the agricultural economy and is an essential component of the success or failure of the greater California economy. WG staff will certainly be focused on educating members about the water problems and opportunities facing our growers.

We will also be providing insight about California’s unique process of regulating the sale and use of crop protection tools. California is the only state with a department (CA Department of Pesticide Regulation) that regulates the sale and use requirements of crop protection products. These regulations are above and beyond the federal regulations that have previously deemed these products to be safe and effective for use per the label requirements.

Every legislative session has its own unique themes that drive policy goals and the eventual outcome of which bills are passed and ultimately signed into law. The 2023-2024 legislative session will not be an exception. A severe state budget deficit of at least $24 billion is expected for the coming fiscal year. This is a conservative estimate that doesn’t factor in the impact on the state budget should we enter a recession. Less revenues coming into the state’s coffers means that the usual fighting over the uses of those monies will be even more contentious and complicated. WG staff will be on the lookout for attempts to create new or raise existing fees in order to offset revenue losses.

The year ahead will clearly have its challenges. WG staff look forward to those conversations as we fiercely advocate for an amazing industry.

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Updates from the WGCIT

January 25th, 2023

The Western Growers Center for Innovation and Technology was created to link Western Growers members with innovators in the agtech space. Below are news updates from the Center’s startups:

AgNote

Now AgNote can intelligently estimate your crop harvest dates! One of the newest additions in AgNote’s farm management software is Harvest Date Estimation. It takes only a single click to turn the Harvest Date Estimation on for each crop. Users can choose for which row or vegetable crops they wish to see the Estimated Harvest Date. Once the Harvest Date estimation is turned on, the estimated harvest date will show up in crop management areas and many reports, which are available in AgNote—and there is even a dedicated report for Estimated Harvest Dates. AgNote allows users to schedule reports to be emailed out on a user’s selected schedule. Estimated Harvest Date report, once scheduled, will be emailed out only if there are any upcoming harvests in the next 30 days. You can learn more about AgNote’s features on agnote.com.

 

Agrology

With the impact of climate change accelerating, farmers require new technologies to maintain yields and implement regenerative practices. That’s why Agrology and Active Impact Investments recently announced an investment partnership to drive the market growth of Agrology’s Regenerative and Predictive Agriculture Platform. Active Impact Investments invested in Agrology’s SEED round to scale the startup’s climate technology solutions for growers. “26 percent of global emissions come from food production, and the agriculture sector is concurrently one of the most acutely impacted by climate change. Agrology has the dual benefit of helping farmers adapt to a changing climate, to remediate soil degradation through regenerative agriculture while also increasing margins and profit,” said Mike Winterfield, Founder and Managing Partner of Active Impact Investments. In addition to Active Impact, Skyview Ventures and Phoenix Venture Partners joined the round, along with additional syndicate participants.

 

Agtools

Agtools has entered the SAP, SAP.iO y Endeavor Accelerator, providing unparalleled access, curated mentorship and technical guidance to integrate the product, and go-to-market with SAP’s 400,000+ customers. In addition, Agtools won the Radicle Inclusion Challenge presented by Nutrien, out of 130 participants in 40 countries during the World Food Prize in Des Moines. Nutrien is the world’s largest provider of crop inputs and services to the agriculture industry. Agtools was selected as winner of the Supply Chain Innovation Summit Award sponsored by Accenture held in Chicago on October 4-5, 2022 for assisting the financial supply chain from farm to fork to improve their financial positions while simultaneously reducing food waste and accountability for ESG performance.

 

Bluewhite

New WGCIT member Bluewhite drives the growth of resilient farms through pioneering technology and a friendly user experience. The Bluewhite mission is to build resilient farms by maximizing the grower’s productivity and reducing their operational cost. It equips existing fleets with autonomous technology, an easy-to-use platform, and end-to-end service, supporting their journey to a more profitable and sustainable farm. Since 2017, Bluewhite has partnered with growers worldwide to support their continual progress in growing farm profitability, productivity and safety. Bluewhite’s diverse team of engineers, farmers, technicians and field operators hold decades of experience in autonomous technologies and share the same values: fellowship, love of the land and innovation.

 

CalCom Energy

CalCom Energy is a 100 percent employee-owned, full-service energy solutions provider based in California’s Central Valley. Our team has led the deployment of over 150+ MW of solar generation and energy storage capacity across the food system value chain. Through our core offerings and service-oriented partnerships, CalCom Energy is committed to helping our customers increase efficiencies, meet climate targets and continuously improve operations.

 

Carbon Robotics

Carbon Robotics, a leader in AI-powered robotics, empowers farmers to operate more efficiently by building innovative agriculture tools. The company’s revolutionary, high-precision laser-weeding technology leverages sophisticated AI deep learning technology, computer vision, robotics and lasers to reduce weed control costs by 80 percent and improve crop yield and quality. In February 2022, Carbon Robotics launched the LaserWeeder, a pull-behind robot that seamlessly attaches to the back of tractors and utilizes Carbon Robotics’ laser-weeding technology to identify weeds and target them for elimination. To learn more about Carbon Robots, please see the feature in this issue of Western Grower & Shipper magazine.

 

Dexer

Dexer delivers data at the speed of voice. The voice-activated and highly customizable data collection app does not require internet service while it delivers timely and structured data—the kind that machines and sensors just can’t record. Focused on improving the ease and speed of remote and repetitive data collection, the app was built to enhance accuracy at the point of entry and has proven useful for everyone from researchers and crop scouts to food safety professionals and insurance agents. Dexer streamlines data collection by inputting the information directly into customized forms while providing immediate voice playback that enables real-time error handling and enables 100 percent accuracy. Eliminating duplication of entry, increasing speed for decision making and adding consistency in how the data is shared are a few key highlights of the solution. Dexer provides clean, structured data that is ready for import by the customer into their existing systems. Unlike voice-to-text applications currently found on devices, Dexer creates data entry requirements, along with built-in knowledge of specific industry terms, to help customers consistency collect and interpret data.

 

FarmWise

For vegetable growers who face increased growing costs and new regulatory pressures, FarmWise builds innovative systems to streamline farm operations and increase food production efficiency. FarmWise’s first product, the Titan, is an automated mechanical weeder powered by AI and robotics. The machine detects vegetable crops from weeds and uproots weeds, moving blades with sub-inch accuracy. FarmWise has collected over 500 million plant images, from lettuce to broccoli. The company has been running a commercial automated weeding service for the past three seasons in Salinas Valley and the desert. Leveraging thousands of hours of learnings out in the field and precious feedback gathered from the most prominent growers in the U.S., FarmWise is gearing up to release its next-generation weeder early next year. The product will be launched at the World Ag Expo in February.

 

Inteligistics

Inteligistics brings end-to-end solutions to monitor and improve efficiency for logistics, supply chain and cold chain management for companies producing and selling perishable products. InteliView is the digital information hub that takes data from a variety of sources, such as IoT devices, third-party sensors, API integrations and user input to be analyzed and presented on a cloud-based platform. Customers can monitor KPIs, highlight and remedy anomalies and analyze shelf life and ROI. For example, in a recent project of over 2,000 loads of avocados, InteliView algorithms were able to accurately predict quality and shelf-life based on time and temperature during transit. Geofences were created to trigger arrival and departure of pallets, track holding times, and inform stakeholders about the load location and status in the supply chain, leading to significant cost savings, operational improvements and more product sales. For more information on Inteligistics and its InteliView platform, visit inteligistics.com.

 

LahakX

LahakX received a write-up in Agri Business review, which can be read in its entirety here: https://precision-farming.agribusinessreview.com/vendor/lahakx-autonomous-agricultural-spraying-with-swarms-of-drones-cid-42-mid-12.html

An excerpt is below: A new paradigm shift is taking root in the agricultural sector of Monterey County, California. The once predominant manual and aircraft-based agricultural spraying methods are making way for more effective, drone-based, autonomous spraying.

Until now, growers needed to do manual spraying, but this method took a lot of time and management attention. For commodity crops, fixed-speed aircraft was a go-to for growers, owing to their ability to cover larger areas faster. But aircraft flying back and forth 10 feet above the ground leads to significant fuel and chemical waste. Growers wanted a spraying approach that would combine the speed of aircraft-based spraying and the accuracy and low-cost of manual spraying.

LahakX, an agri-robotics technology company, delivers exactly this with its autonomous spraying drone technology designed for quick, precise and variable spraying.

 

PickTrace

PickTrace, winner of the 2022 AgTech Breakthrough award for Labor Management Solution, is the only all-in-one labor management suite for agriculture. With PickTrace Onboarding, users can rapidly hire/rehire employees, generate and digitally store their I-9 and W-4 documents and bulk import employees’ data from PickTrace into their payroll system. Time and productivity is effortlessly tracked in real-time, enabling you and your team to feel confident in your payroll compliance. PickTrace recently increased its presence in Salinas, Calif. and Yuma, Ariz., focusing on delivering an exceptional customer experience, optimized field processes and operationalized data.

 

Probelte

The opening of Probelte’s new American subsidiary broadens the company’s future, bringing biotechnological solutions based on selected microorganisms and their application in crop management to the U.S. With more than 50 years in the sector and 20 years developing microorganisms-based solutions, Probelte’s commitment to this movement goes through digitalization, a new milestone in developing specific techniques that help farmers.

In 2020, after a change in the company’s strategy and vision, Probelte turned all its attention to the U.S. to offer its comprehensive solutions to American farmers and growers. Since 2021, the company has been working closely with American experts, developing efficacy studies for various high-value crops: berries, avocados, leafy vegetables, almonds, grapes and citrus.

With the opening of the new subsidiary, Probelte launches one of the most strategic projects in its history. In tandem with North Carolina State University, the company is developing a project to build predictive modeling for Botrytis forecasting and personalized application of biotechnological treatments on crops. As in other countries, Probelte will remain by the side of agricultural producers, attending to their needs and involving them in developing more sustainable and specifically adapted comprehensive solutions.

 

Verdant Robotics

Verdant Robotics announced the close of a $46.5 million Series A funding to scale its advanced robotic technology and accelerate broad adoption of its regenerative and precision ag solutions. Lead investor Cleveland Avenue was joined by DCVC Bio, Future Ventures, SeaX Ventures and all existing investors, including Autotech Ventures, Cavallo Ventures and AgFunder, making the series one of the largest investments in ag robotics to date. “Increasingly, consumers are demanding food that meets the trifecta of good for me, for my community and for the planet,” said Don Thompson, Founder and CEO of Cleveland Avenue, LLC. “Verdant offers next-level precision that growers—and our global food supply—need to meet these demands, not only in the next 20 years but in the next five.” From its inception, Verdant’s mission has been to work side-by-side with farmers to solve their biggest future challenge—a shortage of farm labor—all while ensuring its robotic solution enables more growers to access regenerative and precision practices supporting soil health, water conservation, carbon sequestration and nutrient-dense crops.

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Western Growers Co-Sponsors 2022 Organic Grower Summit

January 25th, 2023

This year the Organic Grower Summit in Monterey, Calif. on Nov. 30-Dec. 1, 2022 again provided growers with firsthand knowledge and information in areas ranging from agtech to food safety to sustainability.

The Grower of the Year was awarded to Jeff Huckaby, President of Grimmway Farms, headquartered in Bakersfield, Calif. During Huckaby’s 25-year tenure at Grimmway, the company’s organic program grew from several hundred acres to more than 40,000 acres of certified organic ground.

Among the panels that took place:

• The keynote presentation, “Grower Roundtable: The State of Organic Growing” was moderated by Western Growers President and CEO Dave Puglia, and featured Tom Nunes V, President of The Nunes Company; Michael DuPuis, Quality Assurance and Public Relations Coordinator at Divine Flavor; and Brie Reiter Smith, Vice President of Product Leadership at Driscoll’s. “While consumption of fresh organic produce continues to climb, domestic growers face an unprecedented array of regulatory and marketplace challenges that threaten future growth,” Puglia said. “The leaders on this panel will share valuable insight into the state of the organic industry and strategies for turning obstacles into opportunities.”

• The panel “Less Chemistry and More Biology” was moderated by Dennis Donohue, the Director of the Western Growers Center for Innovation and Technology in Salinas, Calif. Panelists include Pam Marrone, Advisor, Bioceres Crop Solutions; Don Cameron, Vice President and General Manager of Terranova Ranch; and Denise Manker, Director of Global Agronomic Development, Biologics, Bayer CropScience.

• Walt Duflock, VP of Innovation at Western Growers hosted “Meet the AgSharks,” where NutJobs, SWAN Systems and En Solucion presented their cutting-edge innovations in a reprise of the AgSharks competition at the Annual Meeting.

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WG Updates: Anniversaries, Employee Recognition and Pets

January 27th, 2023

Congratulations to our members who have recently celebrated milestone membership anniversaries! Our latest issue of Western Grower & Shipper Magazine recognizes members celebrating big anniversaries.

Our latest magazine issue also highlights two exemplary WG employees: Janet Darling and Sarah Secrist. Janet and Sarah were recently honored as recipients of the Employees’ Choice Award, a WG program where employees select and honor fellow team members for their exemplary work and embodiment of the outward mindset.

To close out the magazine, we’ve shared photos of a few of the farm dogs and barn cats of Western Growers members and employees. If you’d like to feature your furry friend in a future publication, send their photo to Senior Manager, Media and Content (and Pet Photo) Strategy Ann Donahue at [email protected].

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New Federal Law Provides Additional Protections to Pregnant Workers

January 6th, 2023

On December 29, 2022, President Biden signed into law two new Bills offering additional protections for pregnant and lactating workers.

The Pregnant Workers Fairness Act (PWFA)

The PWFA prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. Under the PWFA, a qualified employee is an employee/applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.

Specifically, the PWFA makes it an unlawful employment practice for an employer with 15 or more employees to:

  • Fail to provide a reasonable accommodation(s) to a qualified employee unless the accommodation(s) would impose an undue hardship on the company’s business operation(s).
  • Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through an interactive process.
  • Deny employment opportunities because the company would be required to make a reasonable accommodation(s) for a qualified employee.
  • Require an employee to take paid/unpaid leave where another reasonable accommodation can be provided. 
  • Take adverse action in terms, conditions, or privileges of employment against a qualified employee who requests or accepts a reasonable accommodation(s).

There is much about the PWFA that will be familiar to employers as many of its requirements echo that of the American with Disabilities Act (ADA; as amended) and state law. As such, employers should review existing accommodation policies to ensure compliance extends to PWFA-related conditions and include the PWFA in training for all Human Resources and supervisory personnel.

Expect additional compliance resources in the coming months as the PWFA requires the Equal Employment Opportunity Commission to provide examples of reasonable accommodations that must be provided to affected employees unless the employer can demonstrate that doing so would impose an undue hardship.

The PWFA was signed into law on December 29, 2022 and becomes effective June 27, 2023.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act).

The PUMP for Nursing Mothers Act (the Act) expands workplace protections for employees with a need to express breast milk. Specifically, it expands the requirement that employers provide certain accommodations for such employees by requiring coverage for all employees. All employers are subject to the Act however, an exemption exists for employers with fewer than 50 employees if the Act’s “requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

The Act provides that an employer will not be required to compensate an employee utilizing break time for the purposes of expressing breast milk unless the employee is not completely relieved of work duties during the break period or as otherwise required by Federal or State law or municipal ordinance. The Act also extends the current accommodations period (e.g., a reasonable break time for an employee to express breast milk) from one year to two years.

A safe-harbor provision within the bill requires – under certain circumstances[i] – that an employee must first notify the employer of its alleged noncompliance and allow the employer 10 calendar days to comply with the Act before making a claim against the employer.

Employers should be mindful that nothing in the Act impacts compliance obligations under existing federal, state or local laws governing an employee’s need to express breast milk. With many states providing existing protections for lactating employees, employers should review current policies to assure compliance with Act mandates. Additional training for Human Resources and all supervisory personnel will also help with compliance efforts and reduce the risk of inconsistent practices.

The Act was signed into law on December 29, 2022 and goes into effect April 28, 2023.

[i] The safe-harbor provision does not apply where an employer has discharged the employee for requesting an accommodation under the Act or has indicated it does not intend to comply with the Act.

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Lack of Training/Compliance Oversight Leads to FCRA Violation

January 13th, 2023

Many employers find it worthwhile to check the references, job history, personal character, criminal conviction history or credit history of an individual prior to making the decision to hire or promote. This can be done through an in-house investigation using public records or by an outside third-party consumer-reporting agency (CRA).

Initiating background checks and calling an applicant’s references are typical screening methods. However, if not performed in accordance with state and federal laws they can expose an employer to legal and financial risk. The recent case of Hebert v. Barnes & Noble, Inc.[i] provides a cautionary tale.

Under the federal Fair Credit Reporting Act (FCRA) an employer is required to provide a job applicant or employee with a specific standalone disclosure notifying the individual that the prospective or current employer may obtain a consumer report when making hiring or promotional decisions. [ii]  In the Herbert case, it was alleged that Barnes & Noble willfully failed to provide job applicants adequate notice of their consumer rights because it provided a disclosure that included extraneous unrelated information. In overturning an initial verdict in the employer’s favor, the 9th Circuit Court of Appeal citied an overall lack of training and compliance efforts as evidence of a willful failure to comply with FCRA mandates.

Barnes & Noble argued the extraneous language in its disclosure was included inadvertently due to a drafting error. The Court considered this inadvertence to be part of a larger problem; that the company had either failed to properly train its employees on FRCA compliance or lacked sufficient compliance controls to help avoid such mistakes.

The Herbert cases drives home a very important point about how seriously all employers should abide by FCRA mandates. California employers using a CRA to conduct a background check that includes job, personal or credit history, must follow both state and federal rules concerning notice, disclosure, and consent requirements such as:

  • Providing a clear and conspicuous written disclosure (in a separate, standalone document) to the applicant or employee that includes:
    • The purpose of the investigation
    • Identity of the CRA conducting the investigation or providing the report and a box for the individual to check to receive a copy of the report
    • Statement that defines the nature and scope of the investigation
    • The identifying basis for the report under Cal. Lab. Code Section 1024.5
  • Providing the applicant or employee with a summary of rights under federal and state law
  • Obtaining written authorization from the applicant or employee prior to procuring the report
  • Providing a copy of the report to the applicant or employee upon request[iii]
  • Certify to the CRA all required disclosures have been made (e.g., that the employer will comply with procedures by which an applicant or employee can obtain or be provided with a copy of the report; and that the employer will not use the report in violation of any applicable federal or state law or regulation)

[i] 78 Cal. App. 5th 791 (2022)

[ii] The term ‘consumer report’ is broad and includes all types of consumer reporting such as information about an individual’s credit, character, personal attributes, lifestyle, and reputation.

[iii] If credit information is obtained, the employer must request that the CRA send a copy of the report to the applicant/employee at the same time it is sent to the employer.

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New Colorado Wage Theft Protections Take Effect Jan. 2023

January 19th, 2023

Colorado’s SB 22-161 took effect January 1, 2023, with increased penalties for wage theft and the late payment of wages. Key updates and modifications pertaining to the payment of wages and state enforcement procedures are as follows:

  • Changes the penalties for failure to provide requested information to the division of labor standards and statistics in the department of labor and employment (DLSS) or hindering/obstructing the DLSS or other person authorized in accessing an employer’s premises from a misdemeanor criminal offense to a daily penalty of not less than $50.
  • Requires an employer to:
    • Provide notice to an employee, within 10 days after the employment terminates, before deducting from wages or compensation any amount of money or property the employee failed to return or repay upon termination of employment; and
    • Pay the employee the deducted amount within 14 days after the employee returns or repays the money or property if the employee did so within 14 days after notice is provided.
  • Imposes automatic penalties of the greater of 2 times the amount of the unpaid wages or $1,000 on an employer that fails to pay all past-due wages within 14 days after a written demand or civil or administrative action for the past-due wages is sent to or served on the employer.
    • If the failure is shown to be willful, the employer is subject to penalties equal to the greater of 3 times the amount of unpaid wages or $3,000.
    • Makes a second or subsequent failure/refusal to pay wages of the same or similar type within the 5 years preceding a claim is considered per se willful.
  • Requires an employee to dismiss their claim if an employer makes a full legal tender of all amounts demanded in good faith within 14 days after a written demand, administrative claim or civil action is sent or served.
  • Allows recovery of attorney fees, an additional fine of 50% of the amount of past-due wages, and a penalty of the greater of 50% of past-due wages or $3,000 from an employer that fails to pay an employee past-due wages within 60 days after the determination in favor of the employee.

SB 22-161 also adds additional enforcement concerning the awarding of attorney’s fees, certified filings, administrative liens/levy’s and civil action relief (e.g., back pay, reinstatement or front pay).

Employers seeking to avoid liability for potential wage and hour violations should consider initiating quarterly or annual internal audits of current wage and hour practices. Early detection of wage and hour issues will help mitigate the impacts of any potential costly mistakes.

 

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EEOC to Hold Public Hearing on Use of AI in Hiring and Assessment

January 19th, 2023

The Equal Employment Opportunity Commission (EEOC) is continuing its 2022 Technical Assistance Initiative – addressing compliance with Americans with Disability (ADA) requirements when using artificial intelligence (AI) and other software in hiring and assessing employees – with a public hearing set for January 31, 2023.

The Technical Assistance Initiative, better known as the Artificial Intelligence and Algorithmic Fairness Initiative was undertaken by the EEOC to ensure that the use of software, including AI, used in hiring and other employment decisions complies with the federal civil rights laws that the EEOC enforces. In connection with the Initiative, the EEOC published a guide for employees, Tips for Workers: The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence that can also assist employers in avoiding potentially discriminatory conduct when utilizing AI in hiring or assessing employees.

The Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier public hearing will include a panel discussion concerning civil rights implications of automated systems and how these technologies can further the interests of accessibility, diversity, equity and inclusion. The live in-person hearing begins at 10am EST and will be livestreamed with telephone listening options. 

 

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U.S Dept. of Labor Adjusts OSHA Civil Penalties for 2023

January 19th, 2023

The U.S. Department of Labor (DOL) recently published its final rule adjusting civil monetary penalties assessed or enforced by the Department for any Occupational Safety and Health Administration (OSHA) violations associated with a workplace safety and health inspections. The DOL is required by law to annually adjust its civil penalty levels for inflation no later than January 15th of each year.

The new penalty assessments went into effect January 16, 2023. The minimum and maximum amounts are as follows:

Type of Violation

Penalty Minimum

Penalty Maximum

Serious

$1,116 per violation

$15,625 per violation

Other-Than-Serious

$0 per violation

$15,625 per violation

Willful or Repeated

$11,162* per violation

$156,259 per violation

Posting Requirements

$0 per violation

$15,625 per violation

Failure to Abate

N/A

$15,625 per day unabated beyond the abatement date [generally limited to 30 days maximum]

A full summary can be found here.

California’s Division of Occupational Safety and Health (DOSH or Cal/OSHA) was created with the enactment of the Occupational Safety and Health Act in 1973 to ensure safe and healthful working conditions and to encourage employers to maintain these conditions.

The State of Arizona established their Occupational Safety and Health Act in 1972. The Industrial Commission of Arizona (Department which administers the Act) has adopted the federal standards for General Industry, Agriculture, Access to Employee Medical Records and Injury & Illness Recording & Reporting Requirements for both private and public employers (with a few specific exceptions).

Employer Responsibilities (OSHA, Cal/OSHA, ADOSH)

  • Know safety and health standards and apply to your industry/operations.
  • Ensure employees are aware of their rights and responsibilities.
  • Inspect working conditions and assure conformity to applicable safety and health standards.
  • Report accidents resulting in a fatality, or serious injury or illness within 8 hours.
  • Record certain work-related fatalities, injuries, or illnesses (if you have more than 10 employees).
  • Effectively train employees as required by specific regulations and communicate them in a language that they understand so that employees safely carry out duties and responsibilities.
  • Ensure employees safely use and maintain tools and equipment.
  • Warn employees of potential hazards.
  • Provide employees (or their authorized agents) access to their medical and exposure records.
  • Prevent discrimination against employees who exercise their rights under State or Federal law.
  • Post required posters, summaries, citations, etc. in a prominent place.
  • Comply with all applicable standards/safety orders.
  • Establish, implement, and maintain an Injury & Illness Prevention Program (California only).

Employer Rights

  • Ask for and receive proper identification from an inspector prior to a workplace inspection.
  • Refuse to allow an inspector access without a warrant.
  • Contest a warrant.
  • Limit the scope of an inspection to what is contained in the warrant.
  • Accompany the inspector during the inspection.
  • Have an opening and closing conference.
  • Contest a fine.

There is no penalty for exercising these rights which may assist in the reduction of potential liability and future litigation. Employers seeking to exercise their rights should contact legal counsel. 

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CRD Issues Updated Pay Data Reporting FAQs

January 26th, 2023

The California Civil Rights Department (CRD) has released new FAQs to assist employers with their pay data reporting obligations. While the FAQs are available now, updated resources for the 2022 Reporting Year will be available on the California Pay Data Reporting Portal by February 1, 2023.  

The California Equal Pay Act prohibits an employer from paying its employees less than that of the opposite sex for equal work. Equal Pay Act mandates were strengthened with the signing of the California Fair Pay Act (SB 1162) which, starting January 1, 2023, requires employers to disclose additional pay data, provide pay ranges for posted positions and increase pay transparency for applicants and employees. As discussed here, the statute also extends record retention requirements for wage and other employment related records from two to three years after termination of employment (as opposed to after creation of the record.) 

Qualified employers – those with 100+ employees (including those with at least one employee in California) – must provide pay and other data information annually to CRD. Pay data reports for the 2022 Reporting Year are due by May 10, 2023.  

Below are a few key issues addressed in the updated FAQs:  

  • Deadline change: Pay data reports covering the 2022 Reporting Year are due by Wednesday, May 10, 2023. Subsequent year filings will be due on the second Wednesday of May. 

  • Labor contractor worker reporting: Reporting employers must file a separate “Labor Contractor Employee Report” that covers workers hired through labor contractors, including farm labor contractors, in the prior calendar year.  

  • Mean and median rates: Employers must calculate and report the mean and median hourly rate of payroll employees and/or labor contractor employees.  

  • Increased penalties for nonfilers: CRD may obtain a monetary penalty against any employer that fails to file a required report, as well as against any labor contractor that fails to supply necessary data to a client employer.  

The CRD has published aggregate results from the 2020 Reporting Year (downloadable infographics and data files aggregated at the statewide level, by industry, and by metropolitan area). The 2021 aggregated results will be published in 2023. Employers are encouraged by the CRD to review these results as they assess their own pay data reports in light of California’s anti-discrimination and equal pay laws. 

Although the deadline for reporting is still months away, employers should begin preparing now by gathering and reviewing relevant data including reviewing the new FAQs and marking their calendars for February 1st to make sure they have access to the latest forms and resources.  

 

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Cal/OSHA ETS Remains in Effect Pending Approval of Non-Emergency Regulation

January 26th, 2023

As discussed here, California’s Occupational Safety and Health Standards Board (Cal-OSHA) voted on December 15, 2022, to adopt non-emergency COVID-19 Prevention regulations. The non-emergency regulation was to replace the current emergency temporary standards (ETS) which were set to expire on December 31, 2022.  

The regulations were anticipated to take effect January 1, 2023 through December 31, 2024 once approved by the Office of Administrative Law (OAL). To prevent gaps in enforcement, the Cal/OSHA Standards Board recently submitted a certificate of compliance allowing the COVID-19 Prevention Emergency Temporary Standards to remain in effect while the OAL conducts its 30 working-day review, which could slip into February.  

Employers should continue to adhere to the ETS pending OAL approval of the COVID-19 Prevention Non-Emergency Regulation.  

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It’s That Time of Year: Cal/OSHA Form 300A Postings

January 26th, 2023

Cal/OSHA is reminding all covered California employers to post their 2022 annual summary of work-related injuries and illnesses, including those related to COVID-19, in a visible and easily accessible area at every worksite.  

The Form 300A summary must be posted each year from February 1 through April 30.  

Covered employers are those meeting the following requirements:  

  • California employers with 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations. 

  • California employers with 20 to 249 employees in the specific industries listed in Appendix H of Cal/OSHA’s regulations regarding occupational injury and illness records. 

Agriculture is a specific industry listed in Appendix H which means any employer with 20+ employees must: 1) post the Form 300A summary as indicated above; and 2) electronically submit Form 300A illness and injury data by March 2, 2023.  

Instructions and form templates can be found on the Cal/OSHA Recording Keeping Overview page on the Cal/OSHA website. Employers required to record work-related fatalities, injuries and illnesses must record a work-related COVID-19 fatality or illness like any other occupational illness. To be recordable, an illness must be work-related and result in one of the following: 

  • Death 

  • Days away from work 

  • Restricted work or transfer to another job 

  • Medical treatment beyond first aid 

  • Loss of consciousness 

  • A significant injury or illness diagnosed by a physician or other licensed health care professional. 

If a work-related COVID-19 case meets one of these criteria, then covered employers in California must record the case on their 300, 300A and 301 or equivalent forms. Employers are required to complete and post the Form 300A even if no workplace injuries occurred. 

Form 300A records must be maintained at the worksite for at least five years. Records must also be produced to Cal/OSHA upon request. Additional information on Electronic Reporting Rulemaking can be found on the Cal/OSHA website.  

 

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Western Growers Responds to the FDA’s Proposed Reforms to the Human Foods Program

January 31st, 2023

IRVINE, CALIF. (Jan. 31, 2023) – Following the release of the Food and Drug Administration’s proposed reforms to the Human Foods Program, Western Growers SVP of Science, De Ann Davis, issued the following statement:

“Western Growers applauds the Food and Drug Administration Commissioner and senior leadership for taking these first important steps to strengthen the Human Foods Program. We appreciate the Commissioner’s consideration of the recommendations of the independent expert panel convened by the Regan-Udall Foundation, as well as the voices of many diverse but united stakeholders in the need to improve the program’s culture of prevention, responsiveness and transparency. The fresh produce supply chain needs a strong and engaged FDA to support our nation’s growers and their commitment to continuous improvement of safety, affordability and accessibility of these highly nutritious foods.

In 2011, with the passage of the Food Safety Modernization Act (FSMA), the intent of the U.S. Congress was clear: The FDA is to prioritize preventive actions over reaction. We are encouraged by the announced changes, and believe that the addition of a Deputy Commissioner; the creation of an Office of Integrated Food Safety Systems Partnership; a Center for Excellence in Nutrition and a Human Foods Advisory Committee will help support a prevention agenda.

As the Agency considers its next steps, we draw their attention to these critical needs for produce safety:

  • Increased state support and authority to assure a strong, sustained prevention agenda for farms
  • Realized commitment to all the pillars of the agency’s stated New Era of Smarter Food Safety
  • Investment in approaches that will rapidly improve a domestic grower’s ability to build upon their food safety prevention strategies, including improvement of the agency’s focus on applied research, outreach, transparency, technical assistance and education.

Based on today’s announcement, we believe the Commissioner and the Agency’s senior leaders are focused on right things to advance the Human Foods Program and perform its Congressional mandate more efficiently and effectively. We remain committed to working with the agency as changes are implemented.”

The following links will take you to the FDA press release and and overview of the Agency’s proposed structure:

https://www.fda.gov/news-events/press-announcements/fda-proposes-redesign-human-foods-program-enhance-coordinated-prevention-and-response-activities

https://www.fda.gov/media/164937/download

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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WGA cares about food safety in our industry and food safety at home. If you have any concerns about food safety compliance or your organization’s food safety plan, please contact Sonia Salas at [email protected].

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Robots on the Farm: How Farmworkers Have Safer, Better-Paying Jobs Thanks to Tech

January 25th, 2023

Science fiction stories about the future generally go one of two ways: A dystopian hell where robots attack us (“The Terminator”) or a dystopian hell where robots attack us in space (“2001: A Space Odyssey.”)

But now it’s time to separate science fiction from fact. As the labor crisis continues in agriculture, with common-sense immigration reform at a standstill and an aging workforce threatening the future supply of skilled labor, technology will be one of the saviors of the industry.

In recent agricultural industry events—from FIRA USA, the first American version of the international ag robotics expo that was held in Fresno, to the Alliance for Food and Farming Safe Fruits and Veggies farm tour across the Central Valley, to the Organic Grower Summit held last month in Monterey, Calif.—the excitement about agtech was tempered by one recurring question: Does automation mean farmworkers will lose jobs?

It’s a humane question, one based in the very worthy concern that individuals’ livelihoods would be eliminated by technology. It’s a variation on the dystopian theme that has populated our pop culture for decades.

The answer, thankfully, is no. In fact, in a scenario that might be counter-intuitive for a layperson—automation doesn’t replace workers, but it will actually improve workers’ quality of life by making their specific jobs easier and giving them better paying opportunities down the road.

At FIRA, Hernan Hernandez, the Executive Director of the California Farmworker Foundation, gave a presentation on exactly this topic, noting that technology collaboration is the key to farmworker economic mobility as well as a way to improve safety on the job.

“When we were asking farmworkers ‘What do you think about these new machines? What do you see? What is the future?’ many of them were a bit scared—but the majority of them said these machines are great and all, but they will never replace us,” he said. “We’ve seen this in our data—a lot of farmworkers support technology. They think it is going to help them….In the Central Valley, the farmworkers’ average age is 45 years old. This is a workforce that, five to 10 years from now, is going to need technology to help them with their day-to-day activities.”

Hernandez says his organization is striving for a “free, fair, prosperous society” and he believes farmworker education to assist with career development is key. To that end, CFF is working with the Fresno-Merced Future of Food Innovation (F3) coalition, which in 2022 received a $65.1 million grant from the U.S. Economic Development Administration—the largest grant ever received in the Central Valley—to accelerate the integration of technology and worker skills.

“One thing that I do want to emphasize is the workforce that we have today knows the fields,” he said. “They’ve lived in the fields, they’ve worked in the fields for 10-, 20-, 30-, 40-, 50 years. They know exactly what the terrain looks like and how to do the work. The one thing I would want to see is more farmworkers being included in the discussions so we can produce better technology that is safe.”

That is exactly what is being done at HMC Farms in Kingsburg, Calif., according to Vice President Drew Ketelsen. “We will always need people—we cannot function without them,” he said. “But technology changes our ever-shifting landscape. Just like in many other industries, some job [categories] are lost and others are gained. There are new positions available in specialized areas in ag because of technology, allowing people the opportunity to pursue careers that didn’t exist five years ago.”

The best comparison to make is to think of what happened to switchboard operators as communications technology improved. Do those kinds of jobs exist in this day and age? Rarely. But did the mobile phone open up a whole new world of better-paying jobs in the same sector? Absolutely. Yesterday’s switchboard operator is today’s app designer.

Ketelsen’s team now operates everything from flying autonomous robots to optical grading and sorting machines to Burro self-driving wheelbarrows to field moisture probes to help HMC’s operations run more efficiently. “Ag technology is present in every aspect of our operation, from field preparation to harvest, packing to shipping, and everything in between,” he said. “Agtech doesn’t always look like a scene from the future, it can be as simple as adding a power system to reduce the manual human effort required of an activity—think of using a power drill rather than a screwdriver. Agtech is not about taking jobs away, it’s about making jobs better for employees.”

And while the cool factor of ag robots is undeniable, there is a very serious business motivation for Ketelsen’s push for technology at his operations.

“If agriculture does not innovate, the job loss will be astronomical. In contrast with slowly losing some jobs to innovation, all jobs will be immediately lost if farm acreage is replaced with non-labor intensive crops, or pulled out of agriculture altogether,” he said. “The concern is about more than jobs, it is also about food security. Two-thirds of all the nation’s fruits and nuts come from California alone. If we cannot find a way to provide healthy and affordable food, everyone will suffer.”

For Chris Rotticci, General Manager at Taylor Harvesting LLC, the fight for automation is on two fronts: to ward off the future inevitable collapse of the ag labor system—and to make sure today’s industry workers stay safe. Why use a ladder when workers can harvest from a mechanized raised platform that moves along the orchard row?

“Here, our emphasis and goal of automation is to improve our ergonomics,” he said. “How do we improve that work environment for the person that is actually doing the work? If we can build convenience into their working environment where they can improve their throughput, that’s a win for everyone.”

And while automation will reveal new ag industry jobs over time, it also helps those workers who are employed today. Skilled labor done more efficiently means more money for the farmworker, Rotticci said. “You get into the compensation side, where it’s either piece rate driven or a tiered bonus system,” he said. “I have safety bonuses weekly for the general labor we have. We have attendance bonuses…we’re shifting skill sets into a higher tier for higher returns.”

So, as it turns out, when it comes to robots in the ag space, the most accurate science fiction tale is actually “The Jetsons.” No, automated harvesters won’t be wearing maid uniforms and carrying feather dusters like Rosey the Robot.

But they will make sure that farm employees have a safer, more efficient, less physically rigorous way to do their jobs, all with the potential for greater career development.

“To continue to do what we love, we have to evolve and adapt and welcome a few robots into our industry,” Ketelsen said.

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