WG Annual Meeting: Know Before You Go

October 31st, 2023

The Western Growers 2023 Annual Meeting is right around the corner at the Grand Hyatt Kauai! In anticipation, we have included important information below to help guests prepare for a fun and safe event.  To view the Detailed Schedule, Featured Guest Bios, and more, please visit https://wgannualmeeting.com/

Registration

Collect your Name Badge, Official Program, Annual Meeting materials, and purchase additional event tickets at the Registration and Service Desk located at the Circle of Life area in the hotel.  Please wear your badge to all events.

And don’t forget, it’s not too late to register if you haven’t already. Please visit the Annual Meeting website so we can see you in Kauai!

Self-Parking: Complimentary 

Self-parking is provided as a courtesy to all guests of the Grand Hyatt. The self-parking lot is to the left of the main entrance.

Valet parking is available for $35 per day.

Dining

Restaurant reservations encouraged both at the hotel and off property for dinners outside of the program.  We recommend making reservations prior to arrival.  See here for suggestions: Poipu Restaurants

Airport Transportation

Uber, Lyft and Taxi services are available outside baggage claim at the airport. Call the hotel concierge to book shuttles to local restaurants and shopping.  Complimentary welcome lei for all guests upon arrival at the hotel!

App Information

The official Western Growers Annual Meeting 2023 mobile app is now available for download! Visit the Apple App Store or Google Play Store and search for Western Growers. Download the app and then check-in.

To get started:

  1. Download the app for iPhone/iPad or Android
  2. If you have an iPhone/iPad, click here to download the app.
  3. If you have an Android, click here to download the app.
  4. Create an account by clicking on the profile icon in the top right corner.
  5. Check-in and start enjoying all the in-app features.

Already have the app? Be sure to update it for the latest information.

Weather and Attire

November temperatures in Poipu can range from 69 °F to 84°F. Please note that non-mineral sunscreens harm the reefs and are banned in Kauai.

Attire for all daytime events is Hawaiian casual. Hawaiian casual includes trousers and collared shirts for gentleman, and trousers, skirts, blouses or dresses for ladies. Please do not wear jeans during meetings.

The Party with the Partners “Party under the Palms” calls for Hawaiian casual. The event is outdoors at the Ilima Gardens. Prepare for windy breezes. Flat shoes recommended for dancing on the grass.

Hawaiian Family Games attire is sporty swimwear.

The Award of Honor Dinner will be evening resort attire, sport coats optional and no ties required.

Golf Tournament – WG Growers Cup 

Poipu Bay Golf Course

Attendees participating in the Golf Tournament on Wednesday -putting contest 7 a.m., shotgun start 8 a.m.  Exit the main entrance of Grand Hyatt, turn right, and follow signs for Poipu Bay Golf Course.

Breakfast will be available at the course, and the tournament will be followed by lunch adjacent to the clubhouse.

Pickleball Classic 

The inaugural tournament will be held at the Hyatt tennis courts on Wednesday at 7:45 a.m.  Beginners are welcome.

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F3 Coalition Promotes Agtech Adoption by Growers

October 31st, 2023

The Fresno-Merced Future of Food Innovation (F3) – the recipient of a $65.1 million grant from the U.S. Economic Development Administration for workforce development – brought growers and stakeholders together this week to drill on down on what agtech skills and certifications growers need in the Central Valley workforce.

Western Growers is a supporter of the F3 grant, and several members and WGCIT residents participated in roundtables at the Oct. 30 event at the Harris Ranch Inn & Restaurant. Speakers included:

  • Dennis Donohue, Executive Director, Western Growers Center for Innovation and Technology
  • Neill Callis, Turlock Fruit Company
  • Joe Del Bosque, Del Bosque Farms
  • Cesar Guillen, HMC Farms
  • Drew Ketelsen, HMC Farms
  • Chris, Thiesen, Burro Robotics
  • Jose Aguilar, LahakX Drones

Other supporting entities at the event included West Hills College and UCANR. More information about the F3 grant can be found here.

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WG and Wharf42 Debut Biologicals Accelerator Platform10

October 31st, 2023

Platform10, an international accelerator to promote biologicals development and implementation, was unveiled on Oct. 31 by Western Growers and Wharf42.

“Growers are up against mounting pest and disease challenges due to climate change, reduced efficacy, and diminishing availability of traditional pest control tools,” said Peter Wren-Hilton, Founder and CEO of New Zealand-based consultancy Wharf 42. “The specialty crop industry in particular requires new crop input technologies due to governmental regulations and consumer demands. Bio-based and novel pest control options to address existing and anticipated gaps in pest management are sorely needed to ensure that our growers are properly equipped with the tools to address these challenges.”

At the outset, Platform10 is targeting five key initial specialty crops with high-priority diseases:

Leafy Greens: INSV, Pythium, Thrips
Tomato: Beet leafhopper, Thrips and / or Tomato spotted wilt virus
Grape: Mealy bug, Powdery mildew, Botrytis
Strawberry / Other berries: Lygus bug, Macrophomina, Phytophthora
Citrus: Citrus thrips, Red scale

Eligible product companies to join Platform10 are those:

  • addressing the control of pests and diseases in the above crops where current traditional chemical solutions are at risk or have been removed;
  • seeking replacements for fumigants, where pest resistance is a serious problem;
  • working on there are residue/MRL issues;
  • dealing with food channel buyers or export markets are asking to reduce or replace a particular chemical pesticide;

Please download the Platform10 RFP in order to apply and join the accelerator.

The concept for Platform10 was developed at the 2023 Salinas Biologicals Summit; the 2024 edition of the conference will be held on June 25-26, 2024. More information about attending the 2024 Summit can be found here.

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OSHA Announces Most Frequently Cited Workplace Safety Standards for FY2023

October 31st, 2023

For the 13th year in a row, the U.S. Occupational Safety and Health Administration’s (OSHA) indicated that citations related to fall protection topped their most frequently cited workplace safety violation list.

According to the preliminary list released Oct. 25, 2023 at the National Safety Council’s Safety Congress & Expo, the full list of top violations for the 2023 fiscal year, which ended Sept. 30, 2023, include:

  • General fall protection, with 7,271 violations;
  • Lapses in hazard communication, with 3,213 violations;
  • Ladders, 2,978;
  • Scaffolding, 2,859;
  • Powered industrial trucks, 2,560;
  • Lockout/tagout, 2,554;
  • Respiratory protection, 2,481;
  • Fall protection training requirements, 2,112;
  • Personal protective and lifesaving equipment, eye and face protection, 2,074;
  • Machine guarding, 1,644.

For more helpful information or workplace safety training to assist you with your safety program, please contact Western Growers Insurance Services.

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

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Civil Rights Department Offers Free Webinar Series

October 27th, 2023

California’s Civil Rights Department has announced the release of a new monthly “Civil Rights 101” webinar series. The series is free and focuses on addressing discrimination in both housing and employment. The series supports both employers and employees and is geared toward educating employers, hiring managers, human resource professionals, workers, job seekers, tenants, housing seekers, landlords, property managers, housing providers and the general public of their civil rights and responsibilities under the law.

The webinars are set to take place every third Wednesday from 11 AM to 12 PM PT. Register for the upcoming November 15th ‘Employment Discrimination 101’ program and access additional resources by visiting California CivilRights. Sign up for email alerts about upcoming CRD webinars here.

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California Amends its Healthy Workplaces, Healthy Families Act

October 26th, 2023

California’s newly signed SB 616 amends the state’s Healthy Workplace, Healthy Families Act of 2014 (HWHFA) by increasing accrual/frontloading paid sick leave mandates from 24 hours (3 days) to 40 hours (5 days) and increasing cap amounts to 80 hours.

Currently, with certain exceptions, the HWHFA entitles an employee to paid sick days if the employee works in California for the same employer for 30 or more days within a year from the commencement of employment. Employers are prohibited from retaliating against employees who use paid sick days or imposing specific conditions on the use of paid sick days (e.g., requiring the use of paid sick days for specified health care and situations).

SB 616 not only increases the number of paid sick days available to employees, but also extends the use of paid sick days to employees covered by a valid collective bargaining agreement.

Key provisions of the newly expanded HWHFA include:

  • Raising the employer’s authorized limitation on the use of carryover sick leave to 40 hours or 5 days in each year of employment.
  • Redefines “full amount of leave” to mean 40 hours or 5 days.
  • Allowing eligible employees, subject to an employer’s existing paid leave or paid time off policy, to earn at least 40 hours or 5 days of sick leave or paid time off within 6 months of employment.
  • An increase in the total allowable accrual to 80 hours or 10 days.
  • The preemption of local ordinances that contradict the HWHFA when it comes to provisions on, among other things, compensation for accrued, unused paid sick days upon specified employment events, the lending of paid sick days to employees, written notice requirements, the calculation of paid sick leave, reasonable advance notification requirements, and payment of sick leave taken.

Employers should begin updating current paid sick leave policies ahead of the January 1, 2024 compliance date. It is also important to note that the state’s increase in paid sick leave may still fall below the amount(s) required by certain municipalities. Employers should consult counsel or check local municipalities websites to determine if their policies remain compliant.

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A Cautionary Tale for Employers Who Request Pre-Employment Medical Exams

October 26th, 2023

Variety store retailer Dollar General recently agreed to settle an Equal Employment Opportunity Commission (EEOC) lawsuit for violations of the Americans with Disabilities (ADA) and Genetic Information Non-Discrimination Acts (GINA). The $1 million dollar settlement is a cautionary tale for those employers who require applicants to pass pre-employment medical exams. It is also an important reminder that employers remain liable for the acts of third-party vendors who assist in screening applicants.

According to the lawsuit, after making job offers to work at its Bessemer, Alabama Distribution Center, Dollar General required applicants to pass a pre-employment medical exam during which they were required to divulge past and present medical conditions of family members such as cancer, diabetes, and heart disease. The EEOC further alleged that the retailer used qualification criteria that screened out qualified individuals with disabilities. For example, rescinding job offers to applicants whose blood pressure exceeded 160/100 or who had less than 20/50 vision in one eye, even when those impairments did not prevent the applicants from safely performing the job.

Dollar General’s actions highlight what can happen when concerns about an individual’s ability to perform a physically demanding job exceeds legal boundaries. For example, protecting applicants/employees from discrimination based on an actual or perceived disability and from answering invasive questions about medical conditions of their grandparents, parents or children.

Employers who use pre-employment medical exams should keep the following key points in mind:

  • Employers requiring pre-employment medical examinations must be sure that assigned medical examiners do not request family medical histories and that medical opinions of an applicant’s personal physician are always considered when/if presented.
  • Employees involved in the hiring process should be familiar with state and federal laws governing an employer’s duty to engage in a timely, good faith interactive process to determine if a reasonable accommodation is needed.
  • Employers are prohibited from denying employment solely based on stereotypes about the abilities of individuals with certain impairments.
  • Employers should comply with all notice/posting mandates advising applicants/employees of their rights, including how to file a charge of discrimination with the appropriate state or federal authority.

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California Health Care Employers Face New Minimum Wage Law

October 20th, 2023

Governor Newsom recently signed SB 525, a law set to bring significant changes to the health care industry in California. The law, effective from June 1, 2024, introduces a higher minimum wage for a wide range of health care employees and grants them the right to enforce these wage requirements through legal action.

SB 525 casts a wide net, encompassing various health care employees and facilities with few exceptions. A “covered health care employee” is defined as anyone working in a facility providing patient care, health care services, or related support. This includes not only medical professionals like nurses and doctors but also support staff such as janitors, housekeepers, clerical workers, and even independent contractors if they have a contract with a health care facility and the facility controls their wages and working conditions.

The law applies to a broad range of health care facilities, including integrated health care delivery systems, hospitals, clinics (including rural health care clinics, specialty care clinics, certain licensed community clinics) and more. The minimum wage requirements will vary depending on the type of facility.

Starting from June 1, 2024, the minimum wage rates for health care employees will increase annually, with different schedules for various types of facilities. The rates are categorized into three stages with the first stage setting wages as follows:

 

Health Care Facility Employer Hospitals Clinics Skilled Nursing Facilities Others
First Stage $23.00 per hour from June 1, 2024 to May 31, 2025 $18.00 per hour from June 1, 2024 to May 31, 2033 $21.00 per hour from June 1, 2024 to May 31, 2026 $21.00 per hour from June 1, 2024 to May 31, 2026 $21.00 per hour from June 1, 2024 to May 31, 2026

 

The law also sets standards for salaried employees. Covered employers must ensure that salaried employees earn a least 150% of the health care worker minimum wage or 200% of the state minimum wage, whichever is higher.

Recognizing the financial impact on employers, SB 525 establishes a waiver program. Covered employers can apply for a one-year temporary pause or an alternative phase-in schedule for the minimum wage requirements if they can demonstrate that compliance would adversely affect their operations. The waiver program details will be provided by the Department of Industrial Relations by March 1, 2024.

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California’s SB 848 Creates new “Reproductive Loss” Leave

October 20th, 2023

Starting January 1, 2024, California employers with five or more employees will be required to provide qualifying employees with five days of leave following a ‘reproductive loss.’

SB 848 makes it unlawful for a covered employer to refuse to grant Reproductive Leave (“Leave”) following a miscarriage, failed surrogacy, stillbirth, unsuccessful “assisted reproduction” (i.e., artificial insemination or embryo transfer), or failed adoption[i]. Additionally, the statute provides:

  • Qualified employees are those who have been employed for at least 30-days prior to the commencement of the Leave.
  • A leave cap of 20 days within a 12-month period for those who suffer more than one loss within the same time period.
  • Continuous or intermittent Leave that must complete within three months of the reproductive loss. However, if, prior to or immediately following a reproductive loss event, an employee is on or chooses to take leave pursuant to any protected state or federal leave, the Leave must be completed within three months of the end date of the other qualifying leave.
  • Leave may be unpaid, unless the employer’s policy states otherwise, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available.

The statute also protects employees exercising their rights under the statute against harassing, discriminatory or retaliatory conduct and mandates employer confidentiality

[i] As defined by the statute.

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AB 1076 Creates Noncompete Notice Requirement

October 20th, 2023

Just to drive home the point that California is serious when it says noncompete agreements are unenforceable, Governor Newsom has signed yet another bill on the subject.

As discussed here, on September 1, 2023 Governor Newsom signed into law SB 699, a statute firmly establishing the state’s position when it comes to prohibiting restrictive covenants. On October 13, 2023, the Governor signed AB 1076 further codifying the state’s position as it relates to noncompetes.

The new statute makes clear that, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void” (Emphasis added). And should there be any doubt as to how the language of the statute should be construed, the statute itself mandates it “shall be read broadly…to void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored, that does not satisfy an exception.”

By February 14, 2024, all California employers will be required to send an individualized notification to all current and former employees – employed after January 1, 2022[i] – who were required to enter into a noncompete agreement or whose contracts for employment included an unlawful noncompete provision, notifying them such agreements/provisions are void.

Notices must be sent to the individual’s last known physical and email addresses. Failure to comply will place an employer in violation of California’s Unfair Competition law and its penalty provisions.

A few recommended next steps for employers:

  • Immediately begin a retroactive review of all employment contracts (in state or out of state).
  • Once you have identified contracts impacted by AB 1076, begin compiling contact information and drafting individualized notifications.
  • All notices should include reference to the specific agreement at issue, including identifying the impacted provision(s), and clearly state that due to the change in California law governing noncompete agreements/provisions, the company will no longer enforce or attempt to enforce such agreements/provisions.
  • Seek counsel if you are unclear or unsure whether any of your company’s employment agreements entered into as of January 1, 2022 contain unenforceable noncompete language.

[i] Regardless of where they currently reside.

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U.S. Specialty Crop Coalition Endorses Legislation Addressing Nutrition, Organics

October 18th, 2023

FOR IMMEDIATE RELEASE

MEDIA CONTACTS:

Christina Morton, Florida Fruit & Vegetable Association, [email protected]

Ann Donahue, Western Growers, [email protected]

Mark Szymanski, National Potato Council, [email protected]

Siobhan May, International Fresh Produce Association, [email protected]

 

WASHINGTON, D.C. (October 18, 2023) – The Specialty Crop Farm Bill Alliance (SCFBA), a national coalition of more than 200 specialty crop organizations representing growers of fruits, vegetables, dried fruit, tree nuts, nursery plants and other products, this week endorsed nutrition and organic bills that cover key policy priorities outlined in the group’s 2023 Farm Bill recommendations:

  • Fresh Produce Procurement Reform Act, introduced by Senator Sherrod Brown (OH) and Reps. David Valadao (CA-22) and Rosa DeLauro (CT-03), would direct USDA to implement a fresh produce purchasing program utilizing local and regional supply chains to distribute perishable fruits and vegetables to nutrition-insecure populations.
  • Continuous Improvement and Accountability in Organic Standards Act, introduced by Reps. Dan Newhouse (WA-4), Jimmy Panetta (CA-19), Salud Carbajal (CA-24), David Valadao (CA-22) and Chellie Pingree (ME-1), would amend the Organic Foods Production Act of 1990 to provide a streamlined and predictable process, informed by direct stakeholder input and based on the best available data, to review and revise organic standards implemented by the USDA when necessary.

“The U.S. specialty crop industry is crucial to our national economy and the health of our citizens, which is why we are so passionate in our endorsement of policies that strengthen the long-term viability of farmers while driving enormous benefit to the American people,” the SCFBA Co-Chairs said in a joint statement. “We appreciate the leadership demonstrated by our U.S. Senate and House champions in introducing smart proposals aimed at addressing nutrition insecurity and bringing stability to the organic sector.”

The SCFBA was established to advocate for the unique needs of specialty crop growers in the Farm Bill and enhance their overall competitiveness in the face of increasing global competition and regulatory and buyer demands. It is led by Co-Chairs Mike Joyner, President of the Florida Fruit & Vegetable Association; Dave Puglia, President and CEO of Western Growers; Kam Quarles, CEO of the National Potato Council; and Cathy Burns, CEO of the International Fresh Produce Association.

Specialty crop production, including fruits, vegetables, tree nuts, nursery and greenhouse commodities, contributes significantly to the U.S economy, accounting for $64.7 billion in farm gate value and 30 percent of farm cash receipts for crops.

# SCFBA #

The Specialty Crop Farm Bill Alliance is a national coalition of more than 200 organizations representing growers of fruits, vegetables, dried fruit, tree nuts, nursery plants and other products. The Alliance was established to enhance the competitiveness of specialty crop agriculture and improve the health of Americans by broadening the scope of U.S. agricultural public policy. For more information, visit farmbillalliance.com. 

 

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Finalists and Judges Announced for 2023 AgSharks® Pitch Competition

October 16th, 2023

IRVINE, CALIF. (Oct. 16, 2023) – Western Growers and S2G Ventures have announced the three finalists that will compete in the 2023 AgSharks® Competition. AgSharks® is a unique event where startup companies pitch their innovations in front of a live audience of the world’s largest specialty crop producers to win a $250,000 minimum investment.

The finalists are:

  • Climate Robotics, a developer of mobile biochar production systems for commercial agriculture. Biochar is a carbon-negative soil amendment made from waste biomass that helps reverse global climate change. When biochar is applied to agricultural soils, it boosts crop yield, water retention and nutrient retention. Globally, biochar production has the potential to durably sequester up to two billion tons of atmospheric CO2 in agricultural soils every year, while generating valuable carbon removal credits. Climate Robotics’ trailer-mounted systems allows for low-cost, distributed production of high value biochar directly on the farm.
  • Cultiva, a global leader in plant cuticle health technology. Its branded products – Parka® and Kallur® – help growers of specialty crops protect their yield from increasing environmental stresses, including those associated with extreme temperatures and untimely moisture events. Crops protected by Cultiva’s patented technology have reduced incidences of fruit cracking, sunburn, doubling, staining and coloring issues, ultimately improving growers’ overall marketable yield.
  • Provision, a company whose cloud software simplifies compliance for growers in any commodity, helping them meet requirements from customers, regulators and certifications. By replacing cumbersome paperwork and complex technology with an intuitive interface, automated notifications and smart rules, Provision is helping hundreds of growers across three continents save audit time and improve process control. Tailored for small- to mid-sized operations, Provision’s ease of use and customizable data tools put powerful insights within reach from 200 acres to 20,000.

These startups will pitch their inventions to four industry judges and an audience of more than 300 fresh produce farmers and industry leaders during the WG Annual Meeting in Kauai on Nov. 12-15, 2023.

The competition will be hosted by Daryl Shelton, Executive Vice President at RDO Equipment Co., and judged by Briana Giampaoli, head of Marketing and Product Innovation at Live Oak Farms; Audre Kapacinskas, Principal at S2G Ventures; J.P. LaBrucherie, President at LaBrucherie Produce; and Sumeeta Salvador, Associate at S2G Ventures.

AgSharks was first held in 2017, and through the competition, past winners Hazel Technologies, Burro and Nutjobs have since brought their products from development to market. Hazel Technologies has raised over $87.8 million in funding over six rounds and is advancing the industry with sachets that extend the shelf life of fresh produce. Burro raised a $10.9 million Series A round in September 2021, led by S2G Ventures and Toyota Ventures, and continues to help solve farmers’ labor woes with the expansion of its fleet of autonomous robots to farms across the west. Last year, Nutjobs received an AgSharks record $6 million equity investment for their technology transforming nutshell waste into bioplastics.

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Ninth Circuit Rules Pandemic Layoffs Trigger Payment of Final Wages

October 13th, 2023

The Ninth Circuit recently held that when an employer conducts a temporary layoff with no specific return date in the normal pay period, the temporary layoff is a “discharge” under the prompt payment provisions of the California Labor Code, requiring the employer to pay all earned and unpaid wages.[1] The decision has significant implications for California employers.

As the pandemic hit in 2020, Hyatt, like many other Californian businesses, faced a severe downturn. Hoping for a swift recovery, they temporarily furloughed/laid off 7,000 employees in March 2020. When the situation did not improve, Hyatt officially terminated these employees on June 27, 2020, paying their unused vacation time then.

The plaintiff, in a class-action lawsuit under the Private Attorneys’ General Act (PAGA), argued that Hyatt violated California law by not promptly paying accrued vacation time during the March 2020 furlough. Non-payment of wages at termination triggers waiting time penalties, accumulating at one day’s wage per day, capped at 30 days.

Initially filed in state court, the case moved to federal court, where a judge ruled in favor of Hyatt, stating that the March 2020 furlough did not demand immediate payment under the California Labor Code. However, the Ninth Circuit reversed this decision, sending it back to the District Court to determine if Hyatt’s non-payment was “willful.”

The Ninth Circuit relied on a non-binding Division of Labor Standards Enforcement (DLSE) opinion letter and an invalidated Policies and Interpretations Manual to make its decision.[2] According to these materials, temporary layoffs without a specified return date within the pay period should be treated as terminations, requiring immediate payment, which should have occurred in March 2020.

The critical issue now is whether Hyatt can convince the District Court that its non-payment in March 2020 was due to a genuine, good-faith dispute. Although Hyatt paid the accrued vacation in June 2020, facing 30 days of waiting time penalties for 7,000 affected employees is a significant concern. The Ninth Circuit recognized that a reasonable, good-faith belief by an employer could mitigate a willfulness finding.

The District Court’s determination on willfulness will be closely monitored. The extraordinary impact of the pandemic, including the near-complete business shutdown in March 2020 due to stay-at-home orders, will play a pivotal role in this case. This ruling highlights the complexities and challenges for both employers and employees in navigating labor laws during unprecedented events like the COVID-19 pandemic.

[1] Harstein v. Hyatt Corporation, No. 22-55276, 2023 WL 6167607 (9th Cir. Sept. 22, 2023)

[2] The California Supreme Court held in Tidewater Marine Western, Inc. v. Bradshaw that a provision in the DLSE manual was a void “underground regulation.” That is, the DLSE issued the manual without going through formal regulatory approval processes.

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EEO-1 Reminder and Non-Binary Filing Tip

October 13th, 2023

The Equal Employment Opportunity Commission’s (EEOC) 2022 EEO-1 Component 1 data collection opens October 31, 2023. The EEO-1 Component 1 report is a mandatory annual data collection for all private sector employers with 100 or more employees and federal contractors meeting certain criteria including having 50 or more employees. Additional reporting details and resources can be found here.

Reporting Tip: Non-Binary Employees

A continually confusing aspect of the reporting process for employers is how to report non-binary employees on the EEO-1 form. Since the current form only provides binary reporting options, employers who voluntarily choose to report demographic data for non-binary employees, must take additional steps.

If you are a single-establishment and choose to report demographic data for non-binary employees, you will report the data in the “Certification Comments” section of the form. Multi-establishment employers will add the data to the “Headquarters or Establishment-Level Comments” section(s).

According to EEOC guidance, any data added to the Comments should be prefaced with the phrase “Additional Non-Binary Employee Data:” (e.g., “Additional Non-Binary Employee Data: 1 non-binary employee in Job Category Administrative Support Workers; Race/Ethnicity: White (Not Hispanic or Latino). 3 non-binary employees in Job Category Professionals; Race/Ethnicity: Employee 1 – Black or African American (Not Hispanic or Latino) / Employee 2 – Hispanic or Latino / Employee 3 – Two or More Races (Not Hispanic or Latino).”)

If the decision is made to report non-binary data in the Comments sections, employers must be mindful not to include non-binary-related data in any standard categories within the report (i.e., female/male, job category, race or ethnicity). This means that employees reported in the Comments sections will not be reflected in the totals for each of the individual reports.[i] For example, a single-establishment employer that has a total of 500 employees and is voluntarily reporting 2 of those employees as non-binary in the “Certification Comments” section will show an employee count of 498 employees on the “Single-Establishment Employer Report” (i.e., less the 2 non-binary employees reported in the comments section).

Additional information on reporting data for non-binary employees can be found in the 2022 EEO-1 Component 1 Data Collection Instruction Booklet (See the Reporting by Sex and Reporting by Race or Ethnicity sections).

[i] Non-binary employees are always counted when determining whether the employer meets overall threshold numbers for reporting purposes.

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Colorado Proposes New Rules to Clarify Equal Pay Law

October 13th, 2023

The Colorado Department of Labor and Employment is introducing new Equal Pay Transparency (EPT) Rules to clarify the state’s Ensure Equal Pay for Equal Work Act, set to take effect on January 1, 2024. A public hearing for these proposed rules is scheduled for October 30, 2023, with their implementation also planned for January 1, 2024.

Here are the key points from the proposed rules:

  1. Career Development and Progression: The Act exempted “career developments” and “career progressions” from the requirement for employers to announce job opportunities. The proposed rules specify that these should be based on an employee’s existing job and not linked to a current or expected vacancy.
  2. Application Deadlines: The Act mandated including application closing dates in job postings, causing confusion for evergreen postings and deadline extensions. The proposed rules provide exceptions, allowing ongoing application acceptance without deadlines and extending deadlines if the original deadline was a good-faith estimate.
  3. AINT Hires: The proposed rules extend the duration of Acting, Interim, or Temporary (AINT) hires from six to nine months. No immediate job posting is required for AINT hires if certain conditions are met.
  4. Post-Selection Notice: Employers are required to send a post-selection notice to employees with whom the selected candidate will regularly work. The proposed rules clarify that this means employees who either collaborate or communicate about their work monthly or have a reporting relationship. Employers can provide notice to a broader range or all employees and can do so for multiple selections within 30 days.
  5. Geographic Limits: The proposed rules state that notice requirements for pre-selection, post-selection, and career progression don’t apply to employees who work entirely outside of Colorado.

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Register Now for the Organic Grower Summit on Nov. 29-30

October 11th, 2023

Registration is open for the sixth annual Organic Grower Summit, which will take place on Nov. 29-30, 2023, at the Hyatt Regency Monterey Hotel & Spa in Monterey, Calif.

Presented by Western Growers and the Organic Produce Network (OPN), the Organic Grower Summit (OGS) is designed to provide information vital for organic growers and producers as well as an overview of the opportunities and challenges in organic fresh food production.

The two-day event will include a sold-out trade show floor featuring soil amendment, ag tech, food safety, packaging and equipment exhibitors who will have the opportunity to connect with organic field production staff, supply chain managers, pest management advisors and food safety experts.

Tickets: General registration pricing is $495 for general attendees and $395 for Western Growers and Certified California Organic Farmer (CCOF) members.

This is an event you won’t want to miss. Secure your spot today by visiting https://www.organicgrowersummit.com/registration.

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New Forms I-9 and I-129 Now Available

October 6th, 2023

The United States Citizenship and Immigration Services (USCIS) has updated the Form I-9 and Form I-129.

New Form I-9 (Effective August 1, 2023):

Starting on October 31, 2023, the USCIS will implement the use of a new version of Form I-9, dated August 1, 2023. It is essential for all employers to ensure that they are using the correct edition of Form I-9 to avoid potential penalties. The edition date of the new form is “08/01/23,” which can be found on the bottom left of the page on the form and its accompanying instructions. Using outdated versions of Form I-9 after October 31, 2023, may result in penalties.

New Form I-129 (Effective November 1, 2023):

Starting November 1, 2023, USCIS will only accept the edition of Form I-129 dated “05/31/23”. This form is particularly relevant for employers involved in H-2A and H-2B petitions, which are used to request temporary agricultural labor certifications and temporary non-agricultural labor certifications, respectively. Using outdated versions of Form I-129 may lead to processing delays or other complications in your immigration-related matters.

We encourage you to review and replace any outdated forms in your records promptly to ensure compliance with immigration regulations.

If you have any questions or require assistance with these updated forms or with H-2A related matters, please do no

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ALRB Regulations Subcommittee Issues Proposed Regulations to Implement Card Check

October 6th, 2023

On September 27, 2023, the Agricultural Labor Relations Board’s Regulations Subcommittee published a report regarding proposed regulations to implement the amendments to the Agricultural Labor Relations Act enacted by Assembly Bill No. 113, which took effect on May 15, 2023. Specifically, the subcommittee’s report includes proposals designed to implement the new “majority support petition” (card check) procedure codified in Labor Code section 1156.37, as well as the new unfair labor practice and mandatory mediation and conciliation appeal bond provisions set forth in the ALRA.[1] The report and proposed regulatory language will be presented to the Board at its October 4 public meeting.

Of note, is the proposed provision which reads:

“Authorization cards or petitions submitted as evidence of majority support also shall identify the name of the agricultural employer to which the cards or petitions pertain and shall clearly state that (i) signing the card or petition is equivalent to a vote in support of the petitioning labor organization; (ii) a signature on the card or petition is valid for one year from the date it is signed; and (iii) a signature on the card or petition may not be revoked.”[2]

A copy of the subcommittee’s report, including the proposed regulatory language, as well as further information concerning this proposed rulemaking also is available on the ALRB’s web site at https://www.alrb.ca.gov/statutes-regulations/rulemaking/ab-113-implementing-regulations/

[1] Labor Code sections 1149.3, 1160.3, 1160.11, and 1164.5.

[2] See Section 20391 (a) (1):

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Western Growers to Continue Reform Efforts with New FDA Foods Coalition

October 30th, 2023

Western Growers is joining the newly launched FDA Foods Coalition, which is made up of consumer advocates, food industry representatives, public health groups and associations supporting state and local regulators. Together the contributing parties will educate policymakers, media and the public about improving the governance of the FDA Human Foods Program.

“Industry needs a strong, unified, and modernized FDA to facilitate innovation, growth, and the production of safe, nutritious foods that are accessible and affordable for all consumers,” said Roberta Wagner, senior vice president of regulatory and scientific affairs at the International Dairy Foods Association and co-chair of the FDA Foods Coalition. “The coalition will continue to advocate that FDA shift away from its traditional reactionary model to a modernized, prevention-oriented oversight model that aligns with industry’s immense efforts to ensure continual improvement and prevent problems from occurring, as exemplified by industry’s ongoing implementation of the Food Safety Modernization Act (FSMA). Industry values FDA’s oversight role in assuring companies produce safe food every day for American consumers, and we look forward to supporting the agency’s Human Foods Program through this coalition.”

Along with Western Growers, the Coalition includes Consumer Reports, International Dairy Foods Association, American Frozen Food Institute, Association of Food and Drug Officials, Center for Science in the Public Interest, Consumer Brands Association, Consumer Federation of America, Environmental Defense Fund, Environmental Working Group, International Fresh Produce Association, Peanut and Tree Nut Processors Association and STOP Foodborne Illness. The Coalition will continue its outreach to other stakeholders that align with this mission.

Click here for the full announcement.

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California Expands Workplace Violence Protection Orders

October 6th, 2023

On September 30, 2023, California Gov. Gavin Newsom signed into law SB 428 providing expanded protection against certain types of workplace violence and harassment.

Existing law allows an employer to seek a temporary restraining order (TRO) to protect employees and their immediate family members from a person who has engaged in violence or a credible threat of violence.

However, when workplace threats fall outside the limited scope of misconduct related to violence or threats of violence, employers have few options for court intervention. SB 428 addresses this limitation by expanding existing TRO protections to include harassment.  Under the new statute harassment is defined as: “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.”

After the statute goes into effect, a workplace TRO may be obtained if an employer can successfully show:

  • Reasonable proof that an employee has suffered unlawful violence, or a credible threat of violence by the respondent, and that great or irreparable harm would result to an employee; or
  • Clear and convincing evidence that an employee has suffered harassment by the respondent, great or irreparable harm would result to an employee, the course of conduct at issue served no legitimate purpose, and issuance of the TRO is not prohibited under the statute.

SB 428 will  not permit courts to issue  TROs for actions constituting constitutionally protected speech, actions protected by the National Labor Relations Act or other laws governing the communications of exclusive representatives of public employees, or other provision of law.

This law becomes effective January 1, 2025.

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