Upgrade Your Managers’ Toolbox Today

February 1st, 2023

Instilling confidence in management leaders creates a strong, efficient and stable organization. That level of confidence is rooted in having the right tools and knowledge about management techniques and ever-changing employment laws.

With a wide array of options, Western Growers University offers educational resources that are dynamic and interactive. These online training courses are designed to ensure information retention, and the up-to-date content about federal and state regulations means managers will be able to make more business-centered decisions and establish new standards that are backed by the best training available.

  • Active Shooter Response
  • Americans with Disabilities Act (ADA)
  • Bystander Intervention
  • Creating a Positive Work Environment
  • Diversity, Inclusion & Sensitivity
  • Drugs and Alcohol in the Workplace
  • Employment Law Essentials
  • Family Medical Leave Act (FMLA)
  • Managing Difficult Employees
  • Microaggressions in the Workplace
  • Preventing Discrimination and Harassment
  • Preventing Discrimination and Harassment
  • Unconscious Bias

To learn more, click on the Supervisors Complete Workplace Culture Package or request a complimentary demo by reaching out to [email protected].

Voices of the Valley: Stuart Woolf – Agtech from Apple Computers to Almonds

February 7th, 2023

In this episode of Voices of the Valley, Stuart Woolf, President and CEO of Woolf Farming Company, shares his interest, knowledge and utilization of agtech, which started in 1982 with his first Apple computer computations.

Woolf is the second generation of growers who keeps his feet grounded in the present while looking the future: “One thing my Dad did – which I thought in retrospect was really kind of genius – he looked at the crops that were predominantly being grown out there in the mid-’70s and it was a lot of cotton, grain, melons, those kinds of things, and he thought ‘You know, I don’t want to be beholden to farm programs and support payments and all that.’ So he really started to focus on crops that were unique to California like almonds and pistachios where we had global competitive advantage. He narrowed it down to a handful of items that turn out to be highly mechanized, we had a global advantage, we enjoyed a better return per acre foot on those crops.”

That inclination to see the big picture and how it relates to success over time means a focus on innovation. Of the topics that are on his radar ─ water, labor shortages and soil health to name a few ─ Woolf says there is one area of innovation he and his team have an eye on: data processing. His take makes this episodes a must listen for any grower, innovator, or environmental health advocate.

Click here to listen to this week’s episode of Voices of the Valley.

 
 
 
 

Western Growers Legal Insights Newsletter – Get the Latest Legal News and Information

February 7th, 2023

Staying up to date with legal requirements and regulatory changes is imperative to running a successful organization. The Western Growers Legal Insights Newsletter is a valuable weekly resource highlighting legal and legislative updates and best practices affecting Western Growers’ members.

Subscribers of the newsletter receive regular updates on new employment laws and cases, labor bill progression, localized news, H-2A updates, and HR guidance and best practices.

Sign up for the Western Growers Legal Insights Newsletter here to receive timely and relevant legal updates delivered directly to your inbox each Friday.

Western Growers’ 2022 Compensation and Benefits Survey Now Available

February 8th, 2023

The Western Growers’ 2022 member-exclusive Compensation and Benefits Survey is now available for purchase.

This Compensation Survey is the only compensation survey that’s specific to the California and Arizona specialty crop industry. The survey includes information regarding base pay, bonuses and total compensation data for 90 different job titles.

With this data, members have the information needed to make crucial decisions to keep compensation offers current and competitive to recruit and retain top-tier talent for their organization.

Unlike previous surveys, this entire version is available for a one-time only price: $1,000. The survey includes compensation for executive, sales and marketing, field, plant office and plant jobs. As always, the survey is free to those who contributed information.

Please click here to purchase this valuable resource, and email Sr. Vice President, Human Resources Karen Timmins at [email protected] if you contributed information and want to access your copy.

Note: The survey data was compiled and tabulated by a trusted third party, Industry Insights, Dublin OH.

U.S. Government Upholds Countervailing Duties on Spanish Olives and Protects American Olive Growers

February 13th, 2023

On Jan. 12, 2023, the U.S. Government decided to implement the World Trade Organization’s ruling related to countervailing and antidumping on Spanish olives to account for the affect that European Union subsidies has had on Spanish ripe olive prices.

This action from Washington D.C. has safeguarded olive growers in the U.S. and upheld the protective purpose of the laws in place to protect American industries. “If it weren’t for the U.S. Government’s ongoing antidumping (AD) and countervailing duty (CVD) orders on Spanish olives, American table olive production and hundreds of family farmers and allied American jobs would be in serious jeopardy,” said Michael Silveira, Chairman of the Olive Growers Council of California.

This enforcement gives California olive growers the time to reinvest in new farming techniques to best utilize emerging technologies that address the best way to utilize resources. “The olive case, together with our industry-led investments, is a great example of how to break the cycle of unfair foreign trade practices and rebuild high-quality, environmentally-friendly American production and American jobs,” said Dennis Burreson, a California olive grower and Vice President of Field Operations and Industry.

VofV Podcast: Tom Mulholland and the Bottom Line of Agriculture – Productivity

February 14th, 2023

Tom Mulholland sees California agriculture through the wide lens of his multigenerational farm. As a fourth-generation citrus grower, Mulholland knows his lifetime commitment to Mulholland Citrus is one part of the whole that belongs to his family.

“Generational pass-downs are remarkable,” Tom says. “The fact of it is that you have to have something that’s of interest… and we have the best opportunity to [show that] feeding people is so important,” he said in this episode of Voices of the Valley.

As CEO of Mulholland Citrus, he shares his effusive excitement about the intricacies of growing the kind of citrus that brings joy to people. Listen to this week’s episode to share in his devotion to the growth of the industry, horticulture, mechanics and, most importantly, family.

Click here to listen to this week’s episode.

Walt Duflock: FIRA USA — If World Ag Expo and World Agri-Tech had a Baby

February 14th, 2023

(Before I start, I have to once again invite everyone to see one of the coolest event promo videos ever — thank you to my WG colleague Cory Lunde for his great editing work in putting this video together! If you are looking for something to get you fired up about AgTech automation — and who isn’t? — watch this video! And it goes without saying, but I have to say it — there will be rodeo clowns involved at FIRA USA 2023!)

Back to back weeks in Toulouse, France and Tulare, USA have convinced me that the format we are adopting for FIRA USA is the best event format for the most important activity at a specialty crops automation event — starting and advancing conversations between growers and AgTech companies. It may sound obvious, but a lot of events focus on other things for various reasons (sponsor dollars, organization agendas, and trying to attract a larger audience chief among them). When we launched FIRA USA last year in Fresno, we wanted to take the best aspects of two shows, focus the effort on one specific group of crops, and try and find an audience of AgTech companies and growers. The goal was to bring the specialty crop AgTech automation community together for some great content, some great demos, and start a bunch of great conversations. We found a willing audience on both sides — startups enjoyed being part of a focused event where most of the attendees were looking for their type of solution, and growers were also interested in attending a show that focused on one type of solution.

When you think of Tulare and the World Ag Expo, you think about an event for all ag products — dairy, livestock, Midwest crops, and specialty crops are all well represented and you better pack comfortable shoes if you want to see all of them because you will be putting some miles on to get across all the exhibitors in 3 days. Back from a one-year COVID hiatus in 2021, World Ag Expo re-appeared in 2022 and quickly got back to most of it’s former glory. The 2022 crowd was great, not quite at full capacity, but everyone was glad to have the event back and a chance to re-connect with people you didn’t get a chance to see much of in person for a couple of years. The old adage (and 80s song lyrics from Cinderella) is true — sometimes you really don’t know what you’ve got ’til it’s gone (or was it Joni Mitchell) — and Tulare proved it in 2022. World Ag Expo in 2023 is next week and should have a bigger crowd and more companies in attendance. It turns out seeing ag equipment live is one of the best ways to create curiosity and questions from an audience. Tulare does this really well — that is the essence of what we hoped to capture for specialty crops for FIRA USA.

 

World Agri-Tech in San Francisco is an entirely different affair. You’re paying $500/night for a lot of nights in San Francisco at the Marriott Marquis — for Tulare it’s only a special event like World Ag Expo that can convince people they should pay $500 for a Courtyard in greater Tulare that’s not even that close to the event venue. Tulare is about the outdoors, walking for miles over a long day, learning about the latest equipment offerings, and getting some great BBQ and peach cobbler. World Agri-Tech has really high-end food and a lot of presentations that have you sitting theater style listening to some of the brightest AgTech and investor minds talking about what’s here now but more about what could (should? must?) happen for later. Tulare is $20/ticket — World Agri-Tech is $2,500 — and nobody should wonder why farmers don’t go to World Agri-Tech. At $2,500 a ticket and $500/night, the average farmer shakes that off faster than they shake off a trip to the mall. At World Ag Expo, exhibitors talk with and to farmers. At World Agri-Tech, presenters talk about farmers, and not always in a nice way.

So those are two of the flagship ag shows that have very different audiences, locations, and objectives. You get forward looking conversations over Michelin quality food in the urban environs of San Francisco with some really smart and uber-educated elites (you don’t have to ask them about where they went to school — they’ll let you know) that some of us call “Davos for agriculture” (but that was before Davos took a bit of a hit — a re-brand might be in order). You can also get the latest and greatest AgTech toys all in one place with people who built them and can answer almost any question you have with an increasing number of launch events to really show off the latest stuff — is it Disneyland for Farmers or CES for agriculture? You decide — but it’s pretty darn cool to have that much AgTech in one place, and even though John Deere keeps announcing cool toys at the real CES in Vegas, I think the notion of having one central launch event in February in Tulare is good for ag and good to get some media attention.

So with FIRA USA, we said (with our partners GOFAR and UC ANR) three things (and we added a fourth later):

1.     Focus on specialty crops — dairy tech and livestock tech and corn and soy tech are cool (and they are — who doesn’t like a 400 HP shiny tractor with awesome just as shiny attachments and what cattle rancher can look at virtual fences and not smile after putting up miles of fence line for grazing rotations as a lad — raising my hand), but let’s just do the fruits, nuts, and vegetable crowd and see how many people will come to our little soiree (we actually didn’t call it that, but the GOFAR team is French and we like to collaborate …)

2.    Bring the content — we wanted the great content of World Agri-Tech with the brightest minds, but we wanted it focused on just specialty crops. Let’s go deep on automation solutions for some of the key areas where the labor challenges (both availability and increasing cost) are most acute — planting, spraying, weeding, thinning, and harvesting. Most importantly, focus on the grower’s needs and their problems and the economics needed to solve them. Cool robots are only really cool when they solve the problem and they do it at economics that are interesting to the grower. The best weeding robot in the world won’t have any buyers if they’re charging $1,000/acre (it has to be far lower — likely $200–250/acre — which will go up as labor costs increase but that’s close to market rate with a slight trend towards $250/acre). Similarly, the best harvest robot in the world won’t sell unless there’s a clear path for the harvest happening at somewhere near the cost of a human crew picking the same food. So the content should come with a grower seal of approval (or not) because what the growers in the audience value most is real world testimonials from growers that have used and purchased the product or service. Think of it as World Agri-Tech level content with the growers as a constant reality check.

3.    All about the robots — after talking with and surveying hundreds (probably thousands at this point) startups and growers, one thing was apparent before FIRA 2022 and is still true. One of the most common events that moved a sales process forward towards a closed sale is a real live in person conversation while they are able to see the robot live in either an expo or (even better) a demo setting. Whether it was at World Ag Expo or an AgTech X event at a community college like Hartnell or Imperial Valley College, the chance to look a startup team in the eye and talk about their cool robot while they see it in action is one of the best sales advancement techniques ever. So we wanted to make a lot of these conversations possible and we wanted to do it at scale in multiple formats. We did this by creating two days of exhibitor opportunities and one day of in-field demonstrations. This took the best of World Ag Expo with a specialty crop focus and allowed growers to see it all in one place for three days at FIRA USA in Fresno in October of 2022.

4.    Bring the event to the farmers — we explicitly decided that FIRA USA would not be in any place like San Francisco. That was fine and on brand for World Agri-Tech — not for FIRA USA. Our first event was in Fresno, and the second event this year will be in Salinas. These are agriculture towns and communities, and that makes a statement that we want growers to attend. Tickets are not $2,500 and growers get talked to and with, not at and about. Growers and robots are the center of attention for one obvious reason — nothing happens for startups until growers see the solution, believe in the solution, and buy the solution. Everything else is noise. The plan is to put FIRA USA in different places with a Fresno/Salinas vibe, not a San Francisco vibe (and it’s not just SF — we wouldn’t hold it in downtown Los Angeles either!) As I said at the spring 2022 press event in Fresno announcing FIRA USA, “I know World Agri-Tech and it’s a great event, but let me clear. FIRA USA is not World Agri-Tech!” (Fresno area press seemed to enjoy that quote.) But we do like the same type of great content, and we like it delivered where farmers will see it.

So FIRA USA 2022 went very well and with our GOFAR friends we plan on 2023 being even better. We learned a lot about some format changes with World FIRA in Toulouse this week. The GOFAR team changed the format from an inside event format with panels and presentations to focus on outdoor formats, and the event went well with the new changes. Lessons learned in Toulouse are going to help us make FIRA USA 2023 even better.

1.     Everything in one place — in 2022 we had two days of presentation content and exhibitor area at the Fresno Convention Center, and one day for in field demos and it took some logistics work to make it happen. We had 10 buses going all over Fresno for roughly 4 hours of demos. With the Salinas location at the rodeo grounds that leverages the Sherwood Community Center, the two formats are now all in one place and it’s an easy walk between theater style presentations, the exhibitor area, and the demo area. We want less movement time and more easy time for growers and innovators to see each other and the robots.

2.    Robot extravaganza — on Day 1, our big kick off event will be a 3-hour live robot extravaganza suitable for all ages. For 3 hours in the stadium, a rodeo-style announcer will interview startups and growers that use their products for the good, the bad, and the ugly of AgTech adoption — why don’t field trials always go well, why does it take growers so long to buy, and what does a good customer integration look like will all be prominent topics. Fans in the audience will have a chance to see all of the robots, the founders that invented them, and the growers that are using them. Along the way, they will also hear from some of the schools that are training the next generation of AgTech workers and some of the researchers that are putting the future tech products together in the labs. Lots of video, lots of sounds, lots of reality checks from growers — and lots of kids in the audience. We will be working with FFA and 4-H programs to get as many K-12 kids in the extravaganza audience as possible. This will be a fast-paced event with lots of content — we are really excited to launch this new format in Salinas. Rumor has it there will be rodeo clowns engaging with the robots and an audience participation voting system that will produce a winner that will receive … a big belt buckle like the ones the bull riding champions get at actual rodeos!

3.    Get the kids engaged — it’s not just the extravaganza. We want kids to be there — so anyone wearing an FFA coat (the blue corduroy jackets) or a 4-H uniform gets into FIRA USA for free! We want these kids to see the robots, to ask questions, and to get excited about the possibility of a career in ag or AgTech. Students were a big part of World FIRA and they will be a big part of FIRA USA 2023 — can’t wait to see all the blue coat FFA students and green 4-H hats in Salinas in September figuring out which robots will be more fun to work with for their first AgTech job!

4.    More face time with the robots — just like World FIRA, FIRA USA will build in as much time to interact with the robots as possible. So we will have parts of all 3 days where the robots are being demoed and the exhibit area will be outdoors as well and very close to the live demonstration area. Our goal is to have 6 or more hours per day of robot time available. There will be live demos and exhibits on all 3 days.

So those are the highlights as we wrap up World FIRA, head to Tulare, and begin planning for FIRA USA. FIRA USA is the perfect mix of Tulare and World Ag Expo with San Francisco and World AgriFood. It’s focused on specialty crop automation. It has world class content for 3 days on just that segment of agriculture, developed by growers and with grower feedback. It has great AgTech demos and exhibitors for 3 days — you can watch panels, see exhibitors, and watch demos all without leaving the grounds. This year we make it even better with the Robot Extravaganza, which provides the whole event in a 3-hour format for everyone to attend on day 1. As I said in the title, FIRA USA is exactly what you would get if World Ag Expo and World AgriFood had a baby — it’s a pretty good looking infant and we’ll see if it can avoid those pesky “Terrible 2s” as it approaches it’s second year and how it likes walking. 

This blog was original published on the Medium site of WG’s VP of Innovation Walt Duflock.

Governor Gavin Newsom Signs Executive Order Addressing the State’s Water Supplies

February 14th, 2023

After a long stretch of drought in 2020 and 2021 followed by a surge in rainfall in early 2023, California Gov. Gavin Newsom issued an executive order on Feb. 13, 2023 to protect the state’s water supplies from the impacts of extreme weather.

In this executive order, Newsom calls for a need to adapt to the sequence of the dry and wet cycles that are becoming more common and creating a revolving situation of inefficient water utilization: “California must adapt to a hotter, drier future in which a greater share of rain and snowfall during the wetter months will be absorbed by dry soils, consumed by plants, and evaporated into the air, leaving less water for communities, species, and agriculture.”

Newsom acknowledges the work that the agricultural community has done to use water efficiently: “Californians continue to make progress conserving water, with urban water users conserving 17.1 percent statewide in December 2022 compared to December 2020 and agricultural producers continuing to invest in more efficient irrigation.”

The executive order focuses on replenishing groundwater reserves with storm water runoff by expediting permitting of recharge projects.  However, the restriction on new well permits and modifications to current wells that would increase the amount of water that has been taken in the past will continue.

The Governor wants conservation measures to continue but also allows the State Water Board to consider modifying requirements for reservoir releases or diversion limitations to maximize water supplies north and south of the Delta while protecting the environment.

This Executive Order also modifies May 10, 2021 and July 8, 2021 Proclamations as well as Executive Order N-7-22.

Click here to read Newsom’s full executive order.

Additional Information:

May 10, 2021 – Governor Newsom Expands Drought Emergency to Klamath River, Sacramento-San Joaquin Delta and Tulare Lake Watershed Counties

July 8, 2021 – As Drought Conditions Intensify, Governor Newsom Calls on Californians to Take Simple Actions to Conserve Water

March 28, 2022 – Executive Order N-7-22

New Higher H-2A Wage Rate for Wine Grape General Vineyard Workers for CA North Coast

February 2nd, 2023

The California Employment Development Department (“EDD”) recently submitted a new Domestic Agricultural In-Season Wage Report to the Department of Labor (“DOL”),  which sets a new Prevailing Wage of $19.65 for H-2A agricultural workers engaged in general vineyard work (i.e., pre-harvest activities) in wine grapes.  The new prevailing wage for such H-2A activities applies to the North Coast of California wage reporting area which covers Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, Sonoma, and Trinity counties.  

H-2A employers are required to pay the highest of the Adverse Effect Wage Rate (“AEWR”), the agreed-upon collective bargaining wage, the Federal minimum wage, the State minimum wage, or the prevailing wage.  Typically, the applicable wage is the AEWR, which is $18.65 as of January 1, 2023. However, “Wine Grape, General Vineyard Workers” in the North Coast must now be paid the prevailing wage of $19.65 to their H-2A workers and their domestic workers in corresponding employment. 

DOL posts prevailing wage rates approved by the Office of Foreign Labor Certification (OFLC) Administrator on the Department’s Agricultural Online Wage Library (AOWL), available here.  DOL encourages employers to check the prevailing wage information posted in the AOWL when preparing a Form ETA-790A, H-2A job order for submission, and periodically after receiving temporary labor certification, to determine the current prevailing wage rate applicable to the employer’s job opportunity. A prevailing wage rate remains valid for one year from the posting date or until replaced with an adjusted prevailing wage rate, whichever comes first.  

Employers are not technically required to pay this new rate until they have received written notice from the Chicago National Processing Center (“NPC”) but the new wage rate is retroactive to the date it went into effect, which in this case was November 8, 2022. Employers who have paid less than the increased wage after November 8, 2022 will have to issue new checks for the difference between the AEWR and the prevailing rate and issue corrected wage statements. Failure to timely provide corrected wage statements may trigger substantial waiting time penalties for separated workers. 

 

 

Share Your Voice: Farm Bill Public Listening Session at World Ag Expo

February 8th, 2023

By Tracey Chow

Glenn “GT” Thompson (R-Pennsylvania), chair of the U.S. House Committee on Agriculture, and Rep. David Valadao will host a listening session Tuesday at the World Ag Expo to gather public feedback on the 2023 Farm Bill. 

They will be joined by other members of the Committee and the California Congressional delegation to hear from growers, agribusinesses, and other key farming stakeholders on what the biggest challenges and needs are for the region and state. WG encourages any and all members to attend and ensure the fresh produce industry has a strong presence in these important discussions.

Date: Tuesday February 14

Time: 10:00 AM – 12:00 PM

Location: World Ag Expo – International Agri-Center, Heritage Complex Banquet Hall (map)

Attendees are encouraged to fill out this form prior to the event and to limit potential remarks to two minutes.

What the Farm Bill Means for Fresh Produce

The Farm Bill is the foundational law for nearly all U.S. agriculture and food programs. The typically five-year bill governs many areas of federal support that the fresh produce industry benefits from, including research funding, crop insurance, international market development, and organic certification. With the Farm Bill set to expire this year, Western Growers and its partners have released the Specialty Crop Farm Bill Alliance’s 2023 Farm Bill Recommendations, which lays out the collective industry’s top priorities and requests to Congress.

Please contact Tracey Chow ([email protected], 202-704-7312) for more information.

New 2023 Meal Charge and Subsistence Rates for H-2A Workers

February 9th, 2023

The U.S. Department of Labor’s Employment and Training Administration has announced the allowable meal charges and reimbursement for travel subsistence for H-2A and H-2B workers, which was published in the Federal Register on February 9, 2023.  The new rates are effective immediately.

Allowable Meal Charge

H-2A employers must offer and provide each H-2A worker three meals per day or provide the workers free and convenient cooking facilities. If an employer elects to provide the meals to the H-2A workers, the job offer must state the charge, if any, to the worker for the meals. The updated maximum allowable meal charge in 2023 is $15.46 per day, up from $14.00 per day.  An employer is not permitted to charge a worker more than $15.46 per day unless the Certifying Officer approves a higher charge, upon presentation of evidence justifying the higher charge.

Reimbursement for Travel-Related Subsistence

H-2A employers must also pay travel and subsistence costs, including the costs of meals and lodging, incurred by H-2A workers during travel to the worksite from the place of departure in the H-2A workers’ home country, and from the place of employment to the place from which the worker departed to work for the employer, as well as any such costs incurred by the worker incident to obtaining a visa authorizing entry to the U.S. for the purpose of H-2 employment.

For 2023, the standard meal and incidental expense rate remains $59.00 per day (when receipts are provided), unchanged from 2022. For meals for less than a full day, the employer may limit the meal expense reimbursement, with receipts, to 75 percent of the maximum reimbursement for meals, or $44.25. If a worker does not provide receipts, the employer is not required to reimburse above the minimum standard of $15.46 per day.

An H-2A employer is responsible for providing, paying in advance, or reimbursing a worker for the reasonable costs of daily travel-related subsistence between the employer’s worksite and the place from which the worker has come to work for the employer, if the worker completes 50 percent of the work contract period. The employer must provide (or pay at the time of departure) the worker’s return costs upon the worker completing the contract or being dismissed without cause.

Additional information about H-2A meal charges and subsistence can be found on DOL’s website.

For questions about the H-2A program or assistance filing H-2A applications, contact WG’s Sr. Vice President and General Counsel, Jason Resnick ([email protected]).  

Save the Date: 2023 Employment Law Update Webinar – March 8, 2023

February 15th, 2023

Please join us for a webinar in which Western Growers attorneys will provide a comprehensive review of  the new California and Federal employment laws and cases that will impact employers in 2023 and beyond.

Jason Resnick, Sr. Vice President & General Counsel, and Teresa McQueen, Corporate Counsel, will be conducting a content-packed webinar to update organizations about the latest changes on the following topics:

  • Wage & Hour Updates
  • New Card Check law
  • New Discrimination and Harassment laws
  • New Health & Laws including new COVID-19 Workplace Standard
  • New Rules for Arbitration Agreements
  • Expansion of the California Family Rights Act
  • PAGA and general caselaw update

Wednesday, March 8, 2023

10:00 a.m. to 11:30 a.m. PST

Click here to reserve your spot.

Appellate Court Rejects Employee’s “I Don’t Recall Signing” Defense to Arbitration Agreement

February 15th, 2023

California employees have taken to challenging the enforceability of employment arbitration agreements by claiming that they do not recall signing it, even when the agreement contains their signature and, therefore, should not be required to arbitrate their claims.  In Iyere v. Wise Auto Group, a California Court of Appeal recently shot down this argument, holding that employee’s declaration that “I don’t recall” signing the arbitration agreement was insufficient to challenge the authenticity of their handwritten signatures.  The Court reversed the trial court’s denial of the employer’s motion to compel arbitration on this ground and rejected the trial court’s holding that the arbitration agreements at issue were unconscionable. 

This decision involved the employee’s handwritten signature. However, in an era where many companies are moving to electronic signatures on arbitration agreements, employers must ensure there are proper safeguards in place to be able to prove the employee electronically signed the document.  California courts have tossed out arbitration agreements in cases where employers were not able to adequately explain how their electronic signature technology works and how they can ensure the e-signature attached to the arbitration agreement is actually that of the employee who allegedly signed it. 

The Iyere decision may help employers seeking to enforce arbitration agreements when employees attempt to dodge their handwritten signed agreement to arbitrate by submitting a declaration that merely states, “I do not recall signing.” Employers using e-signature technology should ensure that they can prove to the satisfaction of a reviewing court that their technology cannot be compromised and that a document bearing an employee’s e-signature was in fact “signed” by that employee.  

DOL issues guidance of FMLA and FLSA Coverage for Remote Workers

February 15th, 2023

The U.S. Department of Labor (DOL) issued a field assistance bulletin (FAB) on Feb. 9 clarifying how the Fair Labor Standards Act (FLSA) and how the Family and Medical Leave Act’s (FMLA’s) hours-of-service eligibility requirement apply to nonexempt remote workers. 

The DOL also concurrently published an opinion letter clarifying that eligible employees with serious health conditions who require reduced work schedules may use available FMLA leave indefinitely. 

While  the FAB (FAB 2023-1) doesn’t change the FLSA or the regulations, but it does provide employers with context on how the DOL views FLSA compliance with regard to remote workers. For example, the bulletin states that breaks of 20 minutes or less – for example, time taken to use the restroom, get a cup of coffee, or stretch – is compensable and counted as hours worked. The FAB notes that bona fide meal breaks of 30 minutes or more are not counted as work time when a nonexempt employee is completely relieved from duty. Regarding break time for pumping breast milk, employers must provide an appropriate place for an employee to pump breast milk when the employee is working offsite, such as at a client worksite. However, employers are not required to pay nursing employees for breaks taken to express milk under the FLSA, though state laws may require such compensation. For example, in California, Under the statute, the lactation break, should run concurrently with other break times already provided to the employee if possible. If the lactation break time does not run concurrently with required rest break times, the lactation break time is unpaid. 

According to the FAB, when an employee works from home, the employee’s worksite for FMLA eligibility purposes is the office to which the worker reports or from which assignments are made. If 50 employees are employed within 75 miles of the worksite, the employees meet that FMLA eligibility requirement. 

The FAB goes on to say that for employees who do not have a fixed worksite, the worksite is the site to which they are assigned as their home base, from which their work is assigned or to which they report. 

Meanwhile, the DOL also issued Opinion Letter 2023-1-A, stating that employers should consider their legal obligations under the FMLA and the Americans with Disabilities Act (ADA) when considering an employees’ requests to work a reduced schedule.  The letter reminds employers that they cannot reject a request for a reduced schedule under the FMLA by arguing that such a request should be addressed under the Americans with Disabilities Act Amendments Act. Finally, the letter reminds employers that an employee is entitled to 12 workweeks of leave per 12-month leave year, which may exceed 480 hours of allowable FMLA time. 

9th Circuit Rules AB 51, California’s Ban On Forced Employment Arbitration Agreements, Is Preempted

February 16th, 2023

The 9th U.S. Circuit Court of Appeals has ruled that AB 51, the law that makes it a crime to require job seekers and employees to sign agreements for arbitration of workplace disputes is preempted by federal law.  Accordingly, California employers can compel employees to sign mandatory arbitration agreements as a condition of employment. In the 2-1 decision, the Ninth Circuit panel ruled on Feb. 15 that the Federal Arbitration Act preempts AB 51. 

“Because the FAA’s purpose is to further Congress’s policy of encouraging arbitration, and AB 51 stands as an obstacle to that purpose, AB 51 is therefore preempted,” wrote Judge Sandra Ikuta for the majority. 

The 9th Circuit had partially upheld parts of AB 51 in 2021, but upon reconsideration withdrew the opinion and granted a rehearing in Chamber of Commerce v. Bonta

With AB 51 ruled unenforceable, California employers may continue to use mandatory arbitration agreements for the time being. The state could ask the full Ninth Circuit or the U.S. Supreme Court to review the decision, though it is highly unlikely the Supreme Court would reject the panel’s ruling in the case. Further, employers should keep in mind that even executed mandatory arbitration agreements are unenforceable if they are either procedurally or substantively unconscionable. Therefore, employers are strongly encouraged to consult with legal counsel for any policy or practice related to the use of mandatory arbitration agreements, including the drafting and review of the agreements. 

Best Practices: Tips for Creating a Legally Binding Employment Arbitration Agreement

February 2nd, 2023

Arbitration is the process of resolving disputes outside the court system. Employment arbitration agreements can be used to ask employees to agree to individually arbitrate employment-related claims and waive their right to bring any class or collective claims in court.  In an employment arbitration, each party (the employer and the employee) presents their side of the dispute to a private arbitrator (or panel of arbitrators) jointly selected by the parties’ utilizing procedures set forth in the arbitration agreement. The arbitrator then decides the merits of the case, fashions an appropriate remedy, and issues an opinion which the parties have voluntarily agreed to accept. 

Below are a few key tips to creating a legally binding arbitration agreement:  

Contract Formation: To create a legally binding arbitration agreement there must first be an understanding between the parties that results in the formation of a contract. This first step is satisfied if the parties enter into a mutually binding agreement. In other words, both sides (the employer and the employee) must be bound by the agreement to arbitrate and its terms.  

Unconscionability: When deciding issues of enforceability, the court will focus its determination on whether there are facts to support allegations of “unconscionability.” A contract law term used to describe a defense against the enforcement of a provision of a contract (such as an arbitration agreement), unconscionability focuses on the presence of terms that are excessively unfair to one party. An arbitration agreement must be both “procedurally unconscionable” and “substantively unconscionable” to be unenforceable and the two factors are weighed together to assist the court in reaching its decision. 

The weight of evidence of procedural and substantive unconscionability affects enforceability of the arbitration agreement—the more procedurally unconscionable the agreement is, the less substantive unconscionability is needed to render it unenforceable and vice versa. The amount of procedural or substantive unconscionability needed to invalidate an arbitration agreement varies depending on the legal jurisdiction (e.g., California applies a sliding scale while in other jurisdictions a showing of either alone may suffice.)  

Notice, Review, and Consent: Typically, claims of unconscionability focus on the means or method by which the employer secured the employees contractual consent to the arbitration agreement. The best means of defending against claims of unconscionability is to focus on notice, review, and consent. For prospective employees this means notifying applicants in writing, early in the hiring process, that signing an arbitration agreement is a condition of employment.i If the decision is to require current employees to sign an arbitration agreement, it is equally important they receive advance notice and the opportunity for review. 

The employer’s ability to demonstrate—if challenged—that the employee knowingly agreed to arbitrate their claims and waive the right to a civil court trial is an important defense tool. If the agreement is presented with the expectation of a pen-and-ink signature, the employer must be careful to make sure each employee’s signed agreement makes it into the personnel or arbitration file. If the agreement is presented for electronic signature the employer should require username and password access; a place for the employee to electronically sign the document; and check-the-box acceptance. Employers relying on electronic signatures should check with their e-document provider to determine how documents are stored and accessed for verification and later use.ii 

Applicable Rules and The Cost of Arbitration: Unless the employee is considered a “highly compensated executive,” most arbitration agreements will require the employer to bear the full cost of the arbitrator’s fees and expenses. Other agreements require the employee to pay the initial arbitration filing fees, in keeping with what an employee would pay to bring a lawsuit in civil court. Employers should consult with legal counsel in their respective jurisdiction to determine whether fee sharing provisions can be included in the arbitration agreement. 

If the arbitration agreement designates the use of a specific arbitration group (e.g., American Arbitration Association or JAMS) to conduct the arbitration, a copy of (or link to) that entity’s procedural rules must be provided to the employee. 

New Disability Guidance From the EEOC

February 2nd, 2023

The U.S. Equal Employment Opportunity Commission (EEOC) has updated and re-released the resource document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act.” The document explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees who are deaf or hard of hearing or have other hearing conditions. 

The newly updated resource outlines how certain pre- and post-job offer disability-related questions can violate the ADA, describes easy-to-access technologies that can make providing a reasonable accommodation for a hearing disability free or low-cost, addresses employer concerns about safety, and shares realistic scenarios of potential discrimination, harassment and retaliation. As a sign of the times, the new resource also provides new or updated examples that reflect available technologies. 

It is important for employers to remember that denying employment opportunities based on stereotypical assumptions or the presumption that an employee/applicant is disabled because of a physical/mental impairment is discriminatory and violates EEO laws.  

Cal/OSHA COVID-19 Prevention Non-Emergency Rules Adopted

February 9th, 2023

As discussed here, the California Occupational Safety and Health Standards Board voted on December 15, 2022 to adopt non-emergency COVID-19 prevention regulations. A certificate of compliance allowed the existing COVID-19 Prevention Emergency Temporary Standards (ETS) to remain in effect while the state’s Office of Administrative Law conducted its 30-day review. The newly adopted regulations took effect February 3, 2023 and will remain in effect until February 3, 2025.[i]

The newly adopted regulations maintain some of the same requirements found in the ETS and provide for several new provisions ostensibly aimed at making it easier for employers to provide a safe and healthy workplace while remaining flexible in adapting to any changes in guidance provided by the California Department of Public Health. The non-emergency regulations apply to most workers in California not covered by the Aerosol Transmissible Diseases standard.

Cal/OSHA has created a new COVID-19 Prevention Non-Emergency Regulation webpage with an updated fact sheet, FAQs and an updated COVID-19 Model Written Program[ii].

Check here, for an overview of some of the more notable changes under the new regulations and which ETS regulations continue into 2023 and beyond.[iii]

 


[i] Recordkeeping subsections will remain in effect for three years.

[ii] The model is downloadable and fillable as a Word document.

[iii] Click here to review a comparison draft of the amended regulations and here to view the Standards as presented to the OSHSB.   

February Marks 30 Years of the FMLA. Here is a refresher on FMLA Compliance

February 9th, 2023

On February 5, 1993, then President Clinton, signed into law the Family Medical Leave Act (FMLA). Thirty years later the U.S. Department of Labor is marking the occasion with events across the nation including the launch of a dedicated FMLA website providing new and updated resources.[i]

FMLA requires covered employers to provide eligible employees with leaves or a series of leaves totaling 12 weeks (26 weeks for servicemember care leave) in any 12-month period. Leaves may be taken for an employee’s own serious illness, the birth or adoption of a child, placement of a foster child, the care of a seriously ill family member, or for certain military family leaves with guarantees of job security and certain employment benefits during the leave.

FMLA covers employers who employ at least 50 employees within 75 miles of the employer’s work site (including full-time, part-time, and temporary employees) during at least 20 calendar weeks in the current or preceding calendar year. The 20 weeks need not be consecutive. An employee must have worked for the employer for at least 12 months and at least 1,250 hours over the prior 12-month period to be eligible for leave.

Employees may not lose employment benefits accrued before taking leave.

Important Notice Issues to Keep In Mind When it Comes to FMLA[ii]:

Employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Notice must be provided to the employer:

  • 30 days in advance when the need for leave is foreseeable, or as soon as practicable if the need for leave is foreseeable less than 30 days in advance.
  • As soon as practicable if the need for leave is unforeseeable.

Employers may notify the employee that unreasonable failure to provide proper notice can result in delaying the leave until proper notice is given; if the employee fails to follow the employer’s internal leave rules, absent unusual circumstances, the employer can take appropriate action as long as it is not discriminatory.

Employers are required to notify employees of their eligibility for FMLA leave and rights and responsibilities regarding the leave within five business days of a request for FMLA leave or otherwise becoming aware of a possible need for FMLA leave, absent extenuating circumstances.

Employers can require certification of the need for leave as appropriate based on the type of leave. In most cases this request should be made at the time the employee gives notice of the leave or within five business days (or for unforeseeable leave, within five business days after the leave commences).

NOTE: Employees must provide the requested certification within fifteen calendar days of the employee’s request, unless it is not practicable despite the employee’s diligent, good faith efforts.

If the certification provided is incomplete or insufficient the employee must be given seven calendar days to cure the deficiencies (unless not practicable despite the employee’s diligent, good faith efforts).

Employers (absent extenuating circumstances) must provide a designation notice to the employee as to whether the leave will be counted as FMLA leave within five business days after the employer has enough information to determine whether the leave is being taken for an FMLA qualifying reason (e.g., after certification is received).

Employers can generally request recertification of the continuing need for leave (if leave is for the employee or a family member’s serious health condition) every 30 days if the employee remains absent from work. However, if the minimum duration of the condition is more than 30 days the employer can only request certification when the minimum duration expires, or every six months.

Additionally, a recertification can be requested in less than 30 days if the employee requests an extension of the leave; the circumstances of the prior certification have changed significantly; or the employer receives information that casts doubt on the employee’s reason for absence of the validity of the certification.

NOTE: Employee must provide the certification within the time requested by the employer but no sooner than fifteen calendar days after the employer request (unless not practicable to do so despite the employee’s diligent, good faith efforts).

Click here for additional information.

 


[i] Checkout resources for employers under the “For Employers” tab at the top of the website.

[ii] This timeline is specific to FMLA.

 

Electronic Signatures Could Be Part of Further Amendments To ALRA

February 15th, 2023

A request by the UFCW and Teamsters to allow the use of electronic authorization cards and signatures in a labor organization’s proof of support when engaged in the organization of workers in the cannabis industry has opened the door to speculative use in the broader agricultural worker population.  

A January 23, 2023, memorandum by Board Member Ralph Lightstone to the Agricultural Labor Relations Board (ALRB) proposes referring the issue of the use of electronic signatures for all agricultural workers to a ALRB subcommittee to consider the feasibility of such a proposal and to develop regulatory language. The memorandum notes that anticipated amendments to AB 2183 would naturally include, “among other things, adoption of a form of card check procedure for agricultural employees to select a labor organization as their exclusive bargaining representative.” Click here for additional information on AB 2183.