The Top Three Mistakes Your Previous Broker Made When They Sold You Product Recall Insurance—and How to Fix Them

July 15th, 2023

By Chad Klein, Sales Executive, WGIS

It is a common misconception that product recalls are covered under a general or product liability policy. Those coverages do a good job of covering bodily injury and property damage, but generally exclude contamination and recall events. This is referred to as the sistership liability exclusion. The addition of a product contamination or product recall policy protects a company’s bottom line by covering the direct costs of recall, but transferring the risk is only one part of closing the recall exposure gap.

Every company with products on the market, regardless of size, should establish solid product risk management policies and procedures for handling a recall or contamination event.

Insurance for first-party losses caused by product tampering and contamination incidents are broadly labeled as product recall insurance. Product recall policies help to cover the additional costs of a recall, including product loss, costs to withdraw the product from market, product disposal, product testing, overtime wages and crisis management—costs that can be devastating because they arise at a time when a company’s revenues are typically hit hardest.

Here are the top three mistakes your broker may have made when they sold you Product Recall Insurance:

  • They don’t fully understand your company’s exposures and what steps you take to reduce foodborne contamination. Your company was generically presented to underwriting and did not receive best-in-class rates and terms. We use a proprietary process to uncover and outline how you actively prevent contamination in order to present you in a way where underwriters fight to win your business.
  • Your broker doesn’t understand product recall insurance, so they use a third party to source coverage. You don’t have an advocate at the table who will add and delete the specific endorsements in order to design a policy that responds to your company’s specific needs. Work with a subject matter expert who has partnered with underwriters to design and build policy tailored for the fresh produce industry.
  • Your broker didn’t vet the crisis consultant team and has no in-house product recall claims experience. In the event of a claim or incident, you receive poor advice that causes the increased cost to the claim and damage to your brand. Partner with a broker who has a relationship with proven crisis consultation providers and has a tested internal claims team to guide you during the event. That broker would be Western Growers Insurance Services. We’ve spent the last eight years building institutional expertise and capabilities for the agriculture and food industries.

For more information, please contact me, Chad Klein, at [email protected].

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EEOC Revises Its ‘Know Your Rights’ Workplace Discrimination Poster

July 28th, 2023

The Equal Employment Opportunity Commission (EEOC) has updated its “Know Your Rights” poster to include information about protections under the Pregnant Workers Fairness Act (PWFA). The updated poster now includes an expanded definition of sex discrimination including childbirth and related medical conditions and expands protection information related to an employee’s rights when it comes to requesting pregnancy accommodation.

The EEOC recommends employers remove the old poster and begin displaying the new poster “within a reasonable amount of time.” Free copies of the updated posting can be downloaded from the EEOC’s website. The notice is currently available in English and Spanish only.

The PWFA took effect June 27, 2023 requiring covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. This law builds upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act.

For additional information on the PWFA:

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OSHA Announces New National Emphasis Program (NEP)

July 28th, 2023

The Occupational Safety and Health Administration (OSHA) has announced a new National Emphasis Program (NEP) aimed at reducing or eliminating hazards during warehousing and distribution center operations. NEP programs are implemented by OSHA when the agency feels the seriousness and prevalence of hazards associated with certain types of operations warrant additional federal oversight.

OSHA will be using data compiled from 2017-2021 averaged incident rates of nonfatal occupational injuries and illnesses by industry[i] – including farm product warehousing and storage – to select specific businesses/sites for inspection. Inspections will focus on workplace hazards common to these specific industries including:

  • Powered industrial vehicles operations
  • Material handling/storage
  • Walking-working surfaces
  • Means of egress; and
  • Fire protection.

Heat and ergonomic hazards will also be considered and documented during each inspection and a health inspection opened if the presence of heat and/or ergonomic hazards is revealed.

Businesses subjected to an inspection within the last three years related to the hazards addressed by the current NEP will be exempt from additional inspection. Businesses should keep in mind that NEP-related inspections may be combined with other OSHA sanctioned inspections.

State Plans are also required to participate in NEPs but have the option of adopting (within six months) an identical or different emphasis program that is at least as effective as the current OSHA directive. State plans have sixty days from the NEP effective date to notify OSHA of their intent to adopt the NEP or offer notice of an existing (or impending) equally effective program.

What to Do When OSHA Comes Knocking

When faced with an unannounced OSHA, Cal/OSHAor ADOSH workplace inspection, employers may – without risk of penalty:

  • 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.

But should an employer exercise these rights? Here are a few things to consider:

Demand = Delay. Inspections are premised on the (low threshold) reasonable belief that a violation will be discovered. A standard that is easily met if a workplace injury/death has been reported, a referral has been made to OSHA concerning a possible hazard, or a complaint has been filed. Inspectors will not be put off or dissuaded by a demand to produce a warrant. There is also the possibility that such a request will pique the interest of inspectors and result in a more thorough inspection.

Warrant = Broader Scope. An inspector who appears without a warrant provides the employer an opportunity to negotiate regarding the proposed scope of the inspection. Requesting a warrant may inadvertently result in a broadening of the scope of the inspection. For example, out of an abundance of caution or based on a belief the employer has something to hide, an inspection triggered by a complaint concerning a specific location could easily be expanded by a reviewing judge to include other locations or an entire facility.

Demand = More Time. As discussed above, demand equals delay, which might not always be such a bad thing; especially when the inspection comes as a surprise. Exercising your right to request a warrant can give you some extra time to review training records and to conduct your own site inspections. It also gives you the opportunity to consult with legal counsel.

Negotiation = Compromise. Compromise is always an option. As discussed above, demanding a warrant may create more problems than it solves, but opening a dialogue with the inspector may allow you to better manage your risk. Information is key. Instead of sending the inspector off to procure a warrant ask what prompted the inspection (e.g., injury/fatality, random inspection, complaint). Once you determine the basis for the inspection, initiate a dialogue about limiting the extent of the inspection to just that reason (e.g., if the reason was that an employee gave a complaint about a particular guard on a specific machine, try to limit the inspection to that machine). If you feel representation is necessary, simply ask for a short delay to allow you to contact your legal counsel or designated representative, or respectfully suggest the inspection take place on another day.

Keep in mind that inspectors will almost always review required safety posters, safety records (including training records); and, in California, the employer’s Injury & Illness Prevention Program.

Given the unpredictable nature of OSHA, Cal/OSHA and ADOSH inspections it is best to consider all available options and take the approach that will help minimize overall risk and convey a cooperative (within in reason) attitude.

 

[i] OSHA has created a master list of targeted establishments using specifically identified NAICS codes: 491110 Postal Service (Processing & Distribution Centers only); 492110 Couriers and Express Delivery Services; 492210 Local Messengers and Local Delivery; 493110 General Warehousing and Storage; 493120 Refrigerated Warehousing and Storage; 493130 Farm Product Warehousing and Storage; 493190 Other Warehousing and Storage.

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DHS Announces New Form I-9

July 28th, 2023

The U.S. Citizenship and Immigration Services (USCIS) and Department of Homeland Security (DHS) have announced the release of a new version of the Form I-9. Employers are required to use Form I-9 to verify the identity and employment authorization of all employees.

A newly released final rule and Federal Register notice amends existing employment eligibility verification regulations by making significant changes to Form I-9 and its instructions, including allowing employers who participate in E-Verify – and are in good standing – the option to conduct document verification electronically and through live video call interaction.

Beginning August 1, 2023, employers who participate in E-Verify will now be able to use a newly added checkbox on the Form I-9 to indicate that an employee’s documentation was examined using a DHS-authorized alternative procedure (e.g., remote verification). In addition to the alternate procedures’ checkbox, the new Form I-9 has been reduced to two sections and two supplements:

  • Section 1: Collects, at the time of hire, identifying information about the employee (and preparer or translator if used), and requires the employee to attest to whether the employee is a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
  • Section 2: Collects, within three days of the employee’s hire, identifying information about the employer and information regarding the employee’s identity and employment authorization. The employee must present original documentation evidencing the employee’s identity and employment authorization, which the employer must review.
  • Supplement A (Preparer and/or Translator Certification for Section 1): Completed when employees have preparers and/or translators assist them in completing Section 1 of Form I-9.
  • Supplement B (Reverification and Rehire (formerly Section 3)): Primarily used to verify the continued employment authorization of the employee. This Supplement is completed prior to the date that the employee’s employment authorization and/or employment authorization documentation recorded in either Section 1 or Section 2 of the form expires, if applicable. This Supplement may also be used if the employee is rehired within 3 years of the date of the initial completion of the form and to record a name change.

Other significant changes to the form and its instructions include:

  • Reduction of Sections 1 and 2 to a single-sided sheet.
  • Removal of Sections 1 and 3 into separate standalone supplements (A and B referenced above).
  • Ensuring the ability to fill out the form on tablets and mobile devices.
  • Revised Lists of Acceptable Documents to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation.
  • Streamlined steps taken to complete each section of the form.
  • Instructions for use of the new checkbox for employers who choose to examine documentation under an alternative procedure.

Click here for a complete list of all changes.

The new alternate review procedures and updated Form I-9 will be available for use beginning August 1, 2023. [i] The prior version of Form I-9 (Rev. 10/21/19) continues to be effective through October 31, 2023.

Employers are required to retain Forms I-9 for as long as an individual works for the employer and for the required retention period after the termination of an individual’s employment (i.e., either 3 years after the date of hire or 1 year after the date employment ended, whichever is later).

Employers are also required to make employees’ Forms I-9 available for inspection upon request by DHS officers, the Immigrant and Employee Rights Section (Department of Justice’s Civil Rights Division), and the Department of Labor. Failure to ensure proper completion and retention of Forms I-9 may subject an employer to civil money penalties, and, in some cases, criminal penalties.

Starting on August 1, 2023, employers may download the new Form I-9 (Rev. 08/01/23) from the USCIS website or order paper versions of Form I-9 online.

[i] Employers who do not participate in E-Verify have until August 30, 2023 to perform all required physical examination of identity and employment authorization documents for those individuals hired on or after March 20, 2020, and who have received only a virtual or remote examination under the COVID-19 temporary flexibilities.

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Webinar: Demystifying FSMA Rule 204 — Supply Chain Traceability

July 20th, 2023

The United States Food and Drug Administration (FDA) published the final rule Requirements for Additional Traceability Records for Certain Foods which implements Section 204(d) of the FDA Food Safety Modernization Act (FSMA). FSMA Rule 204 contains a number of complex provisions, that include additional supply chain traceability and recordkeeping requirements for entities who manufacture, process, pack and/or hold foods on the Food Traceability List. While the final requirements of Rule 204 do not go into effect until January 20, 2026, Western Growers suggests that companies proactively review their processes, plan and prepare to meet anticipated compliance dates.

The Demystifying FSMA Rule 204: Supply Chain Traceability webinar will highlight the overview and compliance with Rule 204. This event will provide:

  • An overview of the requirements of FSMA Rule 204
  • Tips to help companies for compliance with Rule 204
  • A showcase of some available resources to help companies assess their current situation and implement the agency’s traceability requirements.

Register here to join us on Wednesday, August 16th from 11:00am- 12:00pm PST.

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Newsom Unveils Free Legal Services For Undocumented Farmworkers

July 20th, 2023

Governor Gavin Newsom announced a new $4.5 million pilot program to provide free immigration legal assistance to farmworkers actively involved in state labor investigations. The new program includes case review services, legal advice, and representation by an attorney at no cost.  Eligibility for this pilot program’s free legal services is limited to those with a case under review by the Labor Commissioner’s Office, Cal/OSHA, or the ALRB. This state-based pilot program coincides with a Biden Administration policy change on deferred action for undocumented individuals who are victims of, or witnesses to, violations of labor rights across the country. The new program will be administered through a partnership between the State Labor Agency and the Department of Social Services. Funding for the pilot is provided by existing budgeted resources and is expected to begin later this year.

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H-2A Program Growth 2023

July 20th, 2023

The H-2A program, designed to facilitate the employment of seasonal and temporary agricultural workers, has experienced remarkable growth in recent years, and that growth has only accelerated over the past and current fiscal year.

In Fiscal Year 2023 (FY23), the Department of Labor (DOL) certified a remarkable 13,500 applications to fill 212,000 jobs with H-2A workers in just the first two quarters. This represents a significant increase from the previous year, where 12,000 applications were certified to fill 193,000 jobs. These numbers indicate a substantial growth rate of 10 percent, underscoring the program’s expanding opportunities for both employers and workers. When it comes to the distribution of H-2A certifications, Florida and California lead the way, with 14 percent and 12 percent of certifications, respectively, in the first half of FY23.

The growth of the H-2A program at large underscores the growth of Western Growers H-2A Services and its significance in helping Western Growers’ members to meet their labor demands. For more information about how Western Growers H-2A Services can help your organization leverage the H-2A program to mitigate labor shortages, contact Jason Resnick ([email protected])

 

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CA Attorney General Announces CCPA Investigative Sweep

July 20th, 2023

California Attorney General Rob Bona announced earlier this week that his office has initiated an investigative sweep – through inquiry letters sent to large California employers – requesting information on businesses compliance efforts under the California Consumer Privacy Act of 2018 (CCPA). According to the Attorney General’s office, the inquiry letters are being sent as a means of “learn[ing] how employers are complying with their legal obligations” under the CCPA.

The Attorney General’s announcement concerning investigative efforts came just weeks after a last-minute ruling, by a County of Sacramento Superior Court stayed enforcement of CCPA and California Privacy Rights Act (CPRA) regulations until March 29, 2024.

The CCPA gives consumers more control over the personal information businesses collect about them. Effective January 1, 2023, California businesses subject to the CCPA must not only comply with existing CCPA privacy requirements (e.g., providing notice of privacy practices, fulfilling consumer requests to exercise their rights to access, delete, and opt out of the sale and sharing of personal information) but also privacy protections associated with employee data under the California Privacy Rights Act (CPRA).[i]

Although CCPA enforcement efforts are stayed until March 29, 2024, employers subject to the CCPA/CPRA should continue bolstering compliance efforts especially around employee-related data.

For additional information on CCPA/CPRA compliance:

 

[i] In November 2020, California voters passed Proposition 24, the California Privacy Rights Act (CPRA), which amends the CCPA by extending data privacy protections to employee data (employee data includes data associated with applicants and job candidates).

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California Supreme Court Issues Ruling in Uber PAGA Case

July 18th, 2023

The California Supreme Court has issued its long-awaited ruling in the Adolph v. Uber Technologies, Inc. (Adolph) case.  On July 17, 2023, the Court held that an aggrieved employee – compelled to arbitrate claims under the Private Attorneys General Act of 2004 (PAGA) “premised on Labor Code violations actually sustained by the plaintiff – does maintain statutory standing to pursue PAGA claims arising out of events involving other employees” in court. [i]

According to the Court, to have PAGA standing a plaintiff must be an “aggrieved employee” – that is: (1) someone who was employed by the alleged violator and (2) against whom one or more of the alleged violations was committed. Ultimately, “where a plaintiff has brought a PAGA action comprising individual and non-individual claims, an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate claims on behalf of other employees under PAGA.”

What about Viking River?

As discussed here, the U.S. Supreme Court’s decision last year in Viking River Cruises v. Moriana was viewed by many as a victory for employers. Viking River allowed individual PAGA claims to be compelled to arbitration and required the dismissal of non-individual PAGA claims brought on behalf of others.

One of the most interesting aspects of the Viking River decision was its less than subtle invitation for California courts to, in an appropriate case, have the last word as the final arbiter of what is state law when it comes to standing.[ii]  Taking this invitation to heart, the Adolph court determined it was not bound by the high court’s interpretation of California law. Conceding that the high court’s interpretation would be persuasive authority in cases involving parallel federal constitutional provision or statutory schemes, it nonetheless determined that since Viking River did not interpret provisions or statutory schemes similar to PAGA it was free to interpret California law through a California lens.

Where do we go from here?

The Adolph decision leaves a number of significant unresolved questions. For example, the decision does not address the potential consequences of an arbitration decision that dismisses the “individual” PAGA claim without determining whether the plaintiff is an “aggrieved employee.” This question and others will undoubtedly be addressed in future appellate and California Supreme Court decisions.

In the meantime, the Court’s ruling in Adolph will energize law firms that specialize in PAGA cases and continue to lend support for shakedown lawsuits. The best and likely only hope for PAGA reform remains the California Fair Pay and Employer Accountability Act, which Western Growers helped qualify for the 2024 ballot.

[i] Adolph v. Uber Technologies, Inc., (July 2023) S274671.

[ii] Justice Sotomayor in a concurring opinion stated, “Of course, if this Court’s understanding of state law is wrong, California courts, in an appropriate case, will have the last word.”

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WG Science Webinar: Proposed Changes to the CA LGMA Guidelines

July 12th, 2023

Western Growers will be hosting a webinar on August 8, 2023, from 11:30 a.m. to 12:30 p.m. PDT to allow participants to learn about and have questions addressed regarding California LGMA’s standardized approach to product testing data collection and considerations regarding flooding assessments.

Western Growers is opening a comment period from July 5 to August 4, 2023 at LeafyGreenGuidance.com to gather feedback from diverse stakeholders regarding proposed changes associated with pre-harvest product testing, data collection and flooding assessments.

On June 6, 2023, the California LGMA Advisory Board unanimously approved a proposed metrics/standards change that the CA LGMA Technical Committee put forth. In addition, current information regarding testing after flooding events has raised the need for reviewing best practices related to flooding assessments, specifically soil sampling and testing.

Register Here.

Not Open to Press.

 

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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Learn How the Cotton Candy Grape Is Grown on PBS’s “America’s Heartland”

July 17th, 2023

Grapery’s Cotton Candy Grape – the savior of parents everywhere looking to get more nutritious foods into their children’s diets – takes centerstage in an episode of PBS’s “America’s Heartland” that aired last week.

The show visits the company’s Shafter, Calif. headquarters and interviews Grapery Founder Jack Pandol and CEO Jim Beagle about how they use the fruit’s diverse gene pool to develop new grape shapes and flavor profiles.

“California agriculture has become, in my lifetime, a much more modern and sophisticated business,” Beagle says.

Check out the episode by clicking here. Season 17 of “America’s Heartland” is dedicated to specialty crop growers, and a number of Western Growers members will be featured in the coming weeks!

Episodes of “America’s Heartland” can be viewed on your area’s PBS station – check your local listings for exact date and time; more than 90 percent of all PBS stations in the country carry the show – as well as on PBS.org; the PBS standalone app; “America’s Heartland’s” website and YouTube; as well as weekly on RFD-TV. “America’s Heartland” is a production of Sacramento’s PBS KVIE.

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Western Growers Mourns the Passing of Luther J. Khachigian

July 17th, 2023

The Western Growers Family of Companies mourns the passing of former board member Luther J. Khachigian, long-time farmer and agricultural advocate, who passed away on June 20, 2023. He was 87 years old.

A life in agriculture started early for Luther; he was born on his family’s 60-acre grape and walnut farm in Visalia, Calif., later earning a bachelor’s degree from the University of California, Davis in Pomology and Agriculture. He began his first nursery venture more than 60 years ago after leasing a one-acre strip of land from his father.

Luther was a fierce advocate of the food and agriculture industry, holding a number of positions that included nine years on the Western Growers Association Board of Directors; a term on the California Fruit Tree, Nut Tree, and Grapevine Improvement Advisory Board; eight years as Chairman of the Board for the California Grape Rootstock Commission; and member of the Advisory Board of the U.C. Agricultural Issues Center.

He was also a respected and accomplished businessman, which allowed him to extend financial support to politicians and a number of charities and organizations throughout his life. As a proud Armenian, Luther helped start a grape nursery in Armenia with the Armenian Technology Group. He also supported and contributed to the Armenian Eyecare Project and the underwriting of the John Ohannes Khachigian Regional Eye Center in Gyumri, Armenia, which provides quality eye care access in that remote region.

Luther is survived by his brother, Kenneth Khachigian and sister-in-law, Meredith, his son, Luther Khachigian II and daughter-in-law, Tracy, and his caring companion and fiancé, Claudette Mekalian. Western Growers extends our deepest condolences to Luther’s family, friends and colleagues.

Contributions in Khachigian’s memory can be made to: the Armenian Eye Care Project, 100 W. Foothill Blvd. Suite 203, San Dimas, CA, 91773.

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California Delays Enforcement of New Privacy Laws

July 13th, 2023

California employers have been given a reprieve on enforcement efforts under the newly enacted California Privacy Rights Act (CPRA) regulations previously set to have taken effect July 1, 2023.

A last-minute ruling on July 3, 2023, by a County of Sacramento Superior Court, has stayed enforcement of the regulations until March 29, 2024. The ruling stems from a challenge to the March 29, 2023 regulations by the California Chamber of Commerce (CalChamber) alleging the newly formed California Privacy Protection Agency (Agency) failed to pass a full set of final regulations in accordance with its stated deadline of July 1, 2022 and therefore could not arbitrarily start enforcement less than one year after passing a set of partial regulations.

Partial Approval

On March 29, 2023 the Agency approved its first set of partial regulations with the Office of Administrative Law approving regulations in twelve of the fifteen areas of regulation contemplated by the California Privacy Rights Act of 2020 (CPRA). The Agency’s enforcement deadline for this first set of regulations was July 1, 2023. It was this shortened enforcement period that prompted CalChamber to file suit.

Focusing on voter intent when passing the CPRA, CalChamber argued that voters “intended for the Agency to issue regulations covering all fifteen mandatory issues by July 1, 2022 thereafter giving businesses one year from the July 2022 adoption date before initiating enforcement efforts. Additional arguments alleged California businesses would also be “unfairly prejudiced” by the Agency’s failure to provide a full twelve-month compliance period. [i]

Effectuating Voter Intent

Agreeing with petitioners, and endeavoring to effectuate voters’ intent, the Court found a plain reading of the statute required the Agency to have published a full set of final regulations by July 1, 2022 with enforcement efforts to commence one year later; evidencing voter intent that there be a gap between the passing of final regulations and enforcement.

On the other hand, the Court also agreed with the Agency’s argument that delaying its ability to enforce any violation of the Act for twelve months after the last regulation in a single area had been implemented would likewise thwart voter intent to protect the privacy of Californians.

Striking a balance between these two positions, the Court stayed the Agency’s enforcement of any Agency regulation under the Act’s enforcement provision[ii] for twelve-months after that individual regulation is implemented.

What does it all mean?

Employers will now have until March 29, 2024 to comply with Agency regulations approved as of July 1, 2023. Subsequently approved regulations must also allow a twelve-month compliance period before enforcement efforts may commence.

For a deep dive into the California privacy laws, Western Growers members are invited to register for the upcoming seminar “CA Privacy Act: What Employers Need to Know about the CPRA/CCPA” on July 19 at 11:00 a.m. PDT, presented by AALRR partners, Regina Silva and Cathy Lee, and WG’s Jason Resnick.

 

[i] According to Court documents the Court’s finding that the Agency failed to timely pass final regulations as required by the Act was sufficient grounds for the court to rule in Petition’s favor. As a result, the Petitioner’s “unduly prejudiced” argument was not addressed by the Court.

[ii] Cal. Civ. Code § 1798.185, subd. (d).

 

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DOL Publishes Guidance on H-2A Wage Determinations

July 13th, 2023

The U.S. Department has published another FAQ concerning the final rule promulgating regulations establishing a new methodology for determining hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations (i.e., all occupations other than herding and production of livestock on the range) for temporary labor certifications in the H-2A program (the 2023 AEWR Final Rule). The final rule went into effect on March 30, 2023. Below is a summary of the FAQ.

The determination of whether an FLS-based AEWR or an Occupational Employment and Wage Statistics (OEWS)-based AEWR applies to a job opportunity depends on the Standard Occupational Classification (SOC) code assigned to the job. The State Workforce Agency (SWA) and Certifying Officer (CO) review the job opportunity and compare it to SOC code descriptions and other information on the Department of Labor’s Occupational Information Network (O*NET) website. Additional information provided by the employer may also influence the determination of the appropriate SOC code.

Most H-2A job opportunities fall within the SOC codes associated with field and livestock workers (the “Big Six”) and are subject to the FLS-based AEWR. These SOC codes include tasks such as planting, tending, harvesting field crops, tending livestock, and operating farm machinery. Job opportunities classified under SOC codes outside the “Big Six” are subject to an OEWS-based AEWR. Job opportunities that span multiple SOC codes may be subject to the higher AEWR if the duties fall within both FLS-based and OEWS-based categories.

When job opportunities involve driving duties, the SWA and CO consider factors such as the type of equipment, location, and job requirements to determine the appropriate SOC code and AEWR. Depending on the specific details of the job, driving duties may fall under SOC codes subject to either FLS-based or OEWS-based AEWR.

In cases where a job opportunity involves a mix of duties subject to different AEWRs, the higher AEWR will apply to all hours worked by H-2A workers, regardless of the specific tasks performed. Non-H-2A workers engaged in corresponding employment must also be paid at least the applicable AEWR for the time spent in corresponding work.

If a job order includes both harvesting and driving duties, the AEWR determination depends on the structure of the job order(s) and the actual work performed. Various scenarios with driving duties are provided as examples, including filing separate job orders for different duties, assigning the higher AEWR if truck driving duties fall under specific SOC codes, and considering corresponding employment wages for non-H-2A workers.

For questions about the H-2A program or Western Growers H-2A Services, contact Jason Resnick ([email protected]).

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CA Supreme Court Clarifies Employer Liability for Spread of COVID-19 to Employee Family Members

July 13th, 2023

A recent California Supreme Court ruling finds that employers do not owe a duty of care under California law to prevent the spread of COVID-19 to an employees’ household members. However, the Court also held that the exclusivity provisions of the Workers’ Compensation Act do not bar a non-employee’s recovery for injuries that are not legally dependent on an injury suffered by an employee.

In the case Kuciemba v. Victory Woodworks, Inc., (Kuciemba)[i] an employee alleged his employer’s failure to take COVID-19 precautions – required by the County of San Francisco – resulted in his COVID-19 infection and that of his spouse.

The following questions were before the Court: 1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA)[ii] bar the spouse’s negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?

WCA Does Not Bar Spousal Negligence Claims Associated With COVID-19

Certain exclusivity provisions of the WCA limit an employee’s recovery for work-related injuries to the WCA’s so-called ‘compensation bargain.’ Under this bargain, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.  In the bargain, employees are afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, give up the wider range of damages potentially available in tort[iii].

In Kuciemba, the Court found that when it comes to derivative claims – such as injuries suffered by the spouse of an injured employee – the WCA exclusivity provisions did not bar the spouse’s tort claims (for damages suffered due to contracting COVID-19) against the employer because the injury suffered was deemed independent of the employee’s workplace injury. In other words, a family member’s claim for their own independent injury, one not legally dependent on the employee’s injury, is actionable as a tort claim, even if both injuries were caused by the same negligent conduct of the employer.

Employer Has No Duty of Care to Prevent Spread of COVID-19 to Employee Family Members

The requirement of a legal ‘duty of care’ is frequently invoked to generally limit otherwise potentially infinite liability which would follow from every negligent act. Codified in the California Civil Code, this duty of care – even in an employment context – is broad but nonetheless limited.

In Kuciemba, plaintiffs alleged the employer was required “to exercise due care in [its] own actions so as not to create an unreasonable risk of injury to others.” Determining that the “touchstone” of such an “analysis is the foreseeability of [] intervening conduct,” the Court’s response focused on not only the employer’s duty of care but other mitigating circumstances (e.g., conduct of the employee in getting to/from work, varying levels of diligence in masking and avoiding crowds or employing other precautions to prevent illness).

Continuing to focus on the practicalities of a broad interpretation of the employer’s duty of care, the Court envisioned not only “dire financial consequences for employers and a possibly broader social impact,” but also “the potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members,” and the significant burdens that would place on the judicial system and the community.

Taking all this into consideration, the Court’s final ruling that, “an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members,” was not surprising.

Key Takeaways

While an employer may not have a ‘duty of care’ when it comes to preventing the spread of COVID-19 to an employee’s household members, it does still have legal obligations to prevent the spread of COVID-19:

Following state mandated COVID-19 protocols will also help lower an employer’s risk when it comes to defending against an employee’s household member’s individual injury allegedly caused by the employer’s negligence.

 

[i] Supreme Court of California S274191 (July 6, 2023).

[ii] Lab. Code, § 3200 et seq.

[iii] Tort is a legal term meaning a wrongful act or an infringement of a right (absent a contract) leading to civil liability.

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Save the Date: USDA Farm and Food Worker Relief Grant Webinar on July 19

July 11th, 2023

The USDA Agricultural Marketing Service (USDA-AMS) and the California Department of Food and Agriculture (CDFA) invite California agricultural employers to attend a webinar on July 19 on the USDA Farm and Food Worker Relief Grant Program.

The webinar will provide an opportunity for stakeholders to learn more about the program and how it works in California to assist farm and food workers. The webinar will be followed by a discussion and Q&A. All California-based agricultural employers and grant recipient organizations are invited to attend.

Webinar Details

What: USDA Farm and Food Worker Relief Grant Webinar

When: Wednesday, July 19 at 10 a.m. – 11 a.m. PST

Speakers: USDA Under Secretary for Marketing and Regulatory Programs, Jenny Lester Moffitt; and Melissa Bailey and Betsy Rakola, USDA Agricultural Marketing Service

Agenda:

  • Program overview
  • Outreach tools
  • Payment controls and integrity
  • Information sharing and communication

Where:

https://us02web.zoom.us/j/6861325291

Meeting ID: 686 132 5291

Passcode: Cdfa!220

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WG Legal Webinar: CA Privacy Act – What Employers Need to Know About the CPRA/CCPA

July 7th, 2023

This comprehensive webinar covers the new privacy regulations which became operative in 2023, changes to the privacy act from 2020, consequences for failure to comply, how the privacy act is being enforced, and a to-do-list for employers.

Join us on July 19th at 11:00am by registering here.

This webinar is open to WG members only. For more information on how to become a WGA member, please reach out to Kim Stuart at [email protected].

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Protect Outdoor Workers From Heat Illness

July 6th, 2023

As temperatures soar throughout the Southwest, employers must take steps to protect outdoor workers from heat illness by providing water, rest, shade and training. 

In California, Cal/OSHA’s heat illness prevention standard applies to all outdoor worksites. To prevent heat illness, the law requires employers to provide outdoor workers fresh water, access to shade at 80 degrees and whenever requested by a worker, cool-down rest breaks in addition to regular breaks and maintain a written prevention plan with training on the signs of heat illness and what to do in case of an emergency. 

When the temperature at outdoor worksites reaches or exceeds 95 degrees, Cal/OSHA’s standard includes high-heat protections in certain industries, including agricultural operations and transportation of agricultural products. High-heat procedures include ensuring employees are observed regularly for signs of heat illness and establishing effective communication methods so workers can contact a supervisor when needed. 

Employers with outdoor workers in all industries must take the following steps to prevent heat illness: 

  • Plan – Develop and implement an effective written heat illness prevention plan that includes emergency response procedures. 
  • Training – Train all employees and supervisors on heat illness prevention. 
  • Water – Provide drinking water that is fresh, pure, suitably cool, accessible and free of charge so that each worker can drink at least 1 quart per hour, and encourage workers to do so. 
  • Rest – Encourage workers to take a cool-down rest in the shade for at least five minutes when they feel the need to do so to protect themselves from overheating. Workers should not wait until they feel sick to cool down. 
  • Shade – Provide proper shade when temperatures exceed 80 degrees. Workers have the right to request and be provided shade to cool off at any time. 

Cal/OSHA’s Heat Illness Prevention special emphasis program includes enforcement of the heat regulation as well as multilingual outreach and training programs for California’s employers and workers. Details on heat illness prevention requirements and training materials are available online on Cal/OSHA’s Heat Illness Prevention web page and the 99calor.org informational website. A Heat Illness Prevention online tool is also available on Cal/OSHA’s website. 

 

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US Supreme Court Clarifies Undue Hardship Test for Title VII Religious Accommodation

July 6th, 2023

In a unanimous U.S. Supreme Court ruling in Groff v. DeJoy,[i] the Court has clarified decades-old precedent regarding an employer’s obligation to accommodate the religious beliefs of its employees.

The Court found that under Title VII of the Civil Rights Act of 1964 (Title VII), an employer is required to accommodate an employee’s religious beliefs unless doing so would result in substantial increased costs in relation to the conduct of its business. This new “substantial increase” qualifier is a change from the Court’s prior standard which found accommodations imposing a “more than de minimis” cost on employers, to be an undue hardship.[ii]

Under Title VII an employer is required to provide a reasonable accommodation for an applicant/employee’s religious observance or practice unless doing so would create an undue hardship on the employer’s business. Specifically, in Groff, the Court found the employer’s conclusion that forcing other employees to work overtime to accommodate Groff’s religious-based request would not be enough to constitute an undue hardship. Indeed, the Court opined that other options must also be considered. Confusingly, Equal Employment Opportunity Commission (EEOC) guidance already requires an employer to consider more than financial considerations when conducting its undue burden analysis under the Americans with Disabilities Act (ADA). Under the ADA, “undue hardship” means that the proposed accommodation imposes a significant expense or difficulty when factors such as an employer’s size, financial resources, the nature and structure of its operation, and the impact of the accommodation on operations must be considered. It is anticipated that the EEOC will modify its regulations and guidance in light of the Court’s clarification of the “undue hardship” standard articulated in Groff.

Without more information from the Court on what factual findings would constitute a substantial as opposed to a more than de minimis impact, employers should continue to follow EEOC guidance when it comes to providing a religious-based reasonable accommodation and determining what factors can be used to support an undue hardship determination. The following EEOC tips should help:

  • Understand who the law protects – Those who have sincere religious, ethical or moral beliefs.
  • Consider the request. Review each request individually and discuss the request with the applicant/employee to ensure an understanding of the request and to seek input from the individual as to their needs and possible accommodation suggestions.
  • Provide an effective accommodation unless doing so would require substantial increased costs. Current EEOC guidance provides that “factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business.”
  • Be receptive to additional accommodation requests as religious beliefs and work responsibilities may change over time.

 

[i] 600 U.S. ___ (2023).

[ii] The de minimis standard has been applied since the Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

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CDPH Updates COVID-19 Recommendations/Definitions

July 6th, 2023

On June 23,2023, the California Department of Public Health (CDPH) updated its definition of COVID-19 Outbreak as well as its links and recommendations concerning masking.

Updates from the CDPH include:

  • Recommendation to follow updated masking guidelines: Get the Most Out of Masking ​tips and resources guide.
  • Updated definitions regarding isolation and quarantine for persons infected with or exposed to COVID-19 and outbreaks:
  • ​”Close Contact” means the following:
    • ​ In indoor spaces[i] 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during a confirmed case’s infectious period.
    • In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the confirmed case for a cumulative total of 15 minutes or more over a 24-hour period during the confirmed case’s infectious period.
  • “Infectious Period“[ii] is defined as:
    • ​​For symptomatic confirmed cases, 2 days before the confirmed case had any symptoms (symptom onset date is Day 0) through Days 5–10 after symptoms first appeared AND 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
    • For asymptomatic confirmed cases, 2 days before the positive specimen collection date (collection date is Day 0) through Day 5 after positive specimen collection date for their first positive COVID-19 test.
  • “Confirmed Case” is defined as:
    • A person who has received a positive result of the presence of SARS-CoV-2 virus as confirmed by a COVID-19 viral test or clinical diagnosis
  • “Outbreak” is defined ​​as:
    • At least three COVID-19 cases during a 7-day period.

 

NOTE: The COVID-19 Infection Prevention Non-Emergency Regulations  have been updated by Cal/OSHA to reflect these recent CDPH updates, and remain in effect until February 3, 2025.

[i] Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.

 

[ii] For the purposes of identifying close contacts and exposures, symptomatic and asymptomatic confirmed cases who end isolation in accordance with CDPH Isolation and Quarantine Guidance are no longer considered to be within their infectious period.

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