January 2024 - Western Growers Association Western Growers Association

A New Way for FDA

January 1st, 2024

My interactions with the California Department of Motor Vehicles – the dreaded DMV – have been increasingly hassle-free and efficient recently, even with some complicated transactions. Maybe it was just luck, but it feels like real change has taken hold in the DMV. Could it be that the person appointed by Gov. Gavin Newsom in 2019 to modernize and improve this calcified bureaucracy – a Silicon Valley entrepreneur named Steve Gordon – has made real reform a reality?

I doubt that the relatively new Commissioner of the U.S. Food and Drug Administration (FDA) would appreciate the DMV comparison, because the scope and responsibilities of the FDA are entirely different. But there are some significant parallels.

Dr. Robert Califf was confirmed as the new Commissioner of the FDA in early 2022, following a close Senate vote. Having served as Commissioner once before – for about one year during the Obama Administration – one might wonder what could possibly motivate a highly accomplished cardiologist in his early seventies to return to lead a public agency beset by controversy and criticism from voices across the spectrum.

Almost immediately, Dr. Califf requested an independent analysis of the FDA’s Human Foods Program (HFP) from the respected Reagan-Udall Foundation for the FDA. Implicit in his request was an admission that the agency’s convoluted structure and perhaps its culture were failing to enhance the safety of America’s food supply even as the ability to detect the presence of pathogens in fresh produce and other food items has dramatically increased with technology advances.

The report – labeled an “operational evaluation” – was clear and compelling in urging a reform of FDA’s Human Foods Program, beginning with an unsurprising call for additional funding for “the best technology, staff, and unrivaled infrastructure to advance its mission.” Beyond resources, the panel pointedly observed that the Food Safety Modernization Act (2011) “was meant to move food safety towards prevention rather than reaction but making the regulatory paradigm shift envisioned has yet to be realized.” The panel called out cultural deficiencies and diffused decision-making authority that undermine the needed shift from an enforcement-first approach to food safety to one that emphasizes collaboration, both internally and with industry, to facilitate the shift to a more effective focus on prevention.

For some FDA veterans, much of the content of the Reagan-Udall report had to be tough to read, and that’s where I think things could get interesting. Bureaucracies are notoriously resistant to change, especially when that change is seen as being imposed by the political appointees at the top of their organizational chart. Having worked for seven years as a political appointee of a large state agency (the California Attorney General’s Office), I saw firsthand the myriad ways public employees, shielded by civil service laws, could thwart the policies and directives of the person elected by the voters to lead that agency.

I have no way of knowing whether the reform outline suggested by Reagan-Udall, or at least those elements now embraced by Commissioner Califf, will be thwarted by recalcitrant FDA employees. It certainly helps that Califf has a broad coalition of interests backing him up. Western Growers has been collaborating for about a year with an odd-bedfellows coalition of organizations that have aligned on this FDA reform agenda, ranging from consumer, environmental and food safety groups to industry associations.

By all accounts, Califf is committed to reform and has clarity as to what a prevention approach to food safety could deliver: A constantly improving and safer food supply based on collaboration and trust between the regulators and the regulated. The recent appointment of Jim Jones as FDA Deputy Commissioner for Human Foods appears to confirm Califf’s seriousness about this. Jones, a 30-year veteran of the U.S. EPA, served on the Reagan-Udall expert panel, and has already travelled to Salinas to meet with industry members.

Many have pointed to the example of the airline industry. In the 1990s, the industry began a collaboration with the Federal Aviation Administration to evolve from enforcement-first to transparent data sharing and system-wide safety improvements that dramatically reduced airline safety incidents. Tim York, CEO of the California Leafy Greens Marketing Agreement, has been an especially effective advocate for a version of that model.

In a meeting last year, Califf pointed to a slightly different example. As a young pioneer in open heart surgeries, Califf witnessed incredibly rapid improvements in health outcomes following open heart surgeries thanks to an information and data sharing model that the medical industry and its regulators adopted in the 1970s. As a relatively new and risky procedure, there was much to learn from every adverse experience, and the rapid and transparent sharing of those experiences, with a no-blame framework (excepting for negligence) among cardiologists, researchers and public health authorities, led to rapid improvements in open heart surgery techniques and patient outcomes.

The stakes are similarly high this time, as the fresh produce industry and the FDA together face the difficult challenge of further reducing the incidences of foodborne illness outbreaks.

Turning a ship as big and unwieldy as the FDA won’t be easy but for the sake of consumers and every aspect of the fresh produce supply chain, we need to help Robert Califf succeed. If the California DMV can be reformed, anything is possible.

Tags: President’s Notes
Posted in January / February 2024 Issue, News | No Comments »

Plastic Packaging Update

January 24th, 2024

Many of you in the industry have paid attention to retailer calls, reflective of consumer trends, to change plastic packaging in the produce aisle. It’s no surprise that you have heard that packaging needs to use less plastic and that the plastic used should have more recycled content and be recyclable. What should come as a surprise is the plastic proposal that the Environmental Ministry in Canada has put forward during the late summer. In the proposal, the Canadian government would like to see plastic effectively banned from use in the produce aisle. The proposal states that produce in Canada should be sold in bulk, or in non-plastic packaging, and that 75 percent of produce should be sold that way by 2026 and 95 percent by 2028.

Canada is the United States’ largest produce partner, and we sell half of all our exports to our northern neighbor, so when we saw that proposal, we moved aggressively. Your Western Growers team quickly began to survey our members to understand the potential impact that the proposal might have on them. We also engaged packaging companies and packaging experts to understand packaging alternatives. What we learned shocked us: the proposal would effectively mean whole categories of produce would stop being shipped to Canada. Berries need a clamshell to be transported thousands of miles from California to Toronto. Cherries and grapes need plastic packaging. Baby carrots can’t be shipped. And well, bagged salads without a bag just don’t work. We also learned that non-plastic alternatives, namely fiber, literally do not exist to replace plastic. Thus, hundreds of millions, if not billions of dollars of produce sales, are potentially at stake if this proposal goes forward without amendment.

After filing comments opposing the proposal with the Canadian government, one of the first phone calls we made was to the Canadian Produce Marketing Association (CPMA). Their growers would obviously be impacted by this proposal too, so they were fired up. CPMA knows the terrain, they know Ottawa, and so for the last six months, we have been working hand and hand to fight this proposal.

Since filing those comments opposing the proposal, we have been extremely assertive in our approach. We have spoken with the environmental and agricultural ministries in Ottawa about the proposal, as well as the Canadian embassy in Washington, and laid out our concerns. We have also sought help from American government agriculture, food safety and trade experts and asked for their help to open up bilateral talks with the Canadians to make changes to the proposal. Finally, at the end of November, we participated in a meeting with the Prime Minister of Canada and raised this issue directly.

We hope that these efforts have moved the Canadian environmental ministry to be more thoughtful around plastics, and we intend to keep pushing in early 2024 until a more reasonable packaging proposal can be found. However, make no mistake—whether this proposal is amended or not, the issue of plastics is something that everyone in our industry will need to face. Consumer trends point to growing interest in removing excessive plastic from the food supply chain. We know a significant portion of retailers respond to consumer trends, so we should expect to see more interest in reducing plastic packaging and making that packaging more sustainable. We hope that retailer proposals will be more reasonable and practical than what the Canadian environmental ministry proposed in the summer of2023, but this is not an issue that will go away and thus Western Growers will be working on it.

Tags: Politics
Posted in January / February 2024 Issue | No Comments »

The Importance of Compensation Benchmarks

January 26th, 2024

I have it on very good authority that Google makes all its people decisions supported by science and data. After years of HR work, particularly on the topic of compensation, I’m still a fan of the art and science approach to managing comp. That said, there is no replacement for the peace of mind that comes with making significant spend decisions backed by reliable data. There is no other way to effectively and consistently manage employee compensation.

All strategic decisions relative to workforce planning, recruiting, business growth (particularly with new innovation and technology), company core competencies (including leadership) and promoting or hiring is best done with reliable data.

Greg Manns at Industry Insights has become an important vendor partner to WG. He is a self-described geek for data, particularly pay data. Greg is the man behind the curtain who captures the raw pay and benefits information painstakingly submitted by WG members who participate in our annual compensation and benefits survey. Greg and his team compile and deliver the aggregate results and turns it out in the form of survey reports that are easy to understand and digest for WG members.

Greg shared recent Industry Insights survey results where employers were asked about their major concerns and issues. The results are not surprising as leaders overwhelmingly responded with finding qualified candidates and keeping them as their two highest-rated concerns.

Having good reliable data is a start. Having a strategy for compensation management and a plan to attract and retain is another task altogether. Most WG members do NOT use a system of salary ranges or broadbands to manage pay in a proactive, calculated, preplanned manner.

“If you are trying to be fair, or just simply competitive, you can’t make good decisions on compensation without good data,” said Bob Gray, former Chair of the WG Board. “And the more data the better, since the competition for talent is intense and the right offer is essential.”

How does an organization literally plug pay data into a manageable, sustainable format? It takes good job descriptions to start. Then the job description is compared and contrasted to highly reliable pay data. The Estimated Market Value (EMV) is plugged into a range with other jobs with similar survey outcomes. Ranges are consistent percentages across and between midpoints. The EMV rules in this structure.

Take for example this hypothetical accounts payable clerk located in Central Valley with an employer of $150M in annual review. The location and size of the organization are critical data cuts to prevent an employer from paying too much or too little for a job. Our data suggests a starting base, annual salary of $46,467. Note: nearly all WG members pay a bonus in good years. As such, base pay and bonus is referred to as total cash compensation (TCC). We also provide this information in the annual survey.

The average, median, upper and lower quartile gives the employer the flexibility to decide to pay the long-tenured, preferably high-performing individual in the upper quartile. Those just starting out in their careers or have just begun learning the skills and growing capabilities should be paid in the lower quartile. This is a highly defensible position particularly in California where we remain cognizant of the Pay Equity Law. It also lends to the necessity of job descriptions in that they should exist and be very clear about how many years’ experience one should have to command certain pay.

Salary ranges address the challenge of managing pay in a linear, planned fashion. Additional benefits make up the total remuneration of compensation (such as 401(k)/ retirement), health benefits, all monetary and nonmonetary benefits. These matter too. But what employers commit to paying should be supported by a comp strategy and plan.

Small print: if you’ve never created salary ranges or broadbands, please seek professional assistance. All members should be contributing to the WG compensation and benefits survey, (the survey is free to those who contribute data, which is simply unheard of in the pay survey industry). The 2024 WG compensation and benefits launches January 2024 goes through mid-April, results ready in late June 2024. Western Growers Financial Services offers a beautiful 401(k) retirement plan in the form of a Multiple Employer Arrangement (MEP) where WG files the 5500 (for employers with more than 100 participants in the plan) for you, offers great investment options and helps with 404(c) compliance.

Tags: Human Resources
Posted in January / February 2024 Issue, News | No Comments »

Farming, the Final Frontier

January 10th, 2024

After 17 successful years of working for NASA as a project manager and systems engineer, Neill Callis ended up taking his career to the unlikeliest of places—agriculture. How on earth does that happen, one has to ask? It wasn’t exactly rocket science, according to Callis. All puns aside, Callis explained that both jobs, while presenting different buckets of challenges, require a similar set of skills.

“What I found, and people laugh at me all the time for saying this, is that are a lot of similarities with what I needed to be successful in my last career and what I needed to be good at in farming,” Callis said. “You need an array of project management skills, including resource management, budget management, fiscal management and people management.”

After earning a degree in political science from Elon University in 1997, Callis sharpened these skills when he began his career working for the Universities Space Research Association, a NASA contractor in Washington D.C. He then moved to the Bay Area in 2003, spending the next decade working at NASA’s Ames Research Center on the SOFIA mission (an airborne telescope installed in a Boeing 747SP) in Mountain View, where Callis would meet his wife Hilary Smith, the great-granddaughter of the renowned James “Cantaloupe” Smith, who founded Turlock Fruit Company more than 100 years ago.

After their eldest child was born in 2011, the couple considered a change that would add to their quality of life. “We were living in San Francisco and commuting back and forth to Mountain View, and we were wondering how we were going to do this. The Bay Area can be a tough place,” Callis said.

It was around this time that Callis was presented with, quite literally, a career-changing opportunity when his father-in-law asked him to join the family business. Turlock Fruit Company, founded in 1918, is a four-generation family farming company known for its variety of sweet-tasting melons. “He had been looking at several opportunities that were opening up,” Callis said. “His father was 82 years old at the time, who by the way is 94 years old and still working today.”

Keeping true to his methodical nature, Callis agreed to do a stealth internship to calculate the risks and rewards of this potentially new career and ultimately jumped in with both feet. “It was a big change because I was giving up my own career that I had built and was now working with several generations of business owners who have grown this business from the ground up,” he said.

What helped him make the decision was joining his father-in-law at a Western Growers Annual Meeting. “It opened my eyes to not just seeing what farmers were doing, it was about becoming a part of a really important industry that has an effective voice through Western Growers and the people who are assembled as part of the organization,” he said. “There are growers of all sizes, and everyone is pulling on the rope the same way, tugging on the tough issues together, and that’s an amazing thing to see. That was not something that I saw in my years as a NASA contractor.”

Today, Callis works with three generations of Smiths at Turlock Fruit Company—his grandfather-in-law, Don Smith, who is a past Chairman of Western Growers, and was active in Western Growers’ success in convincing Congress to create the PACA Trust; his father-in-law, Steve Smith, who served on the Western Growers board and executive committee for several years until 2012; and his brother-in-law, Alec Smith, who is carrying on the Smith family commitment to grow the highest quality fruit.

Callis was first elected to the Western Growers board in 2019 and was most recently reappointed to serve a second term as Treasurer of the Board. For the upcoming term, Callis said he’s looking forward to tackling water management and immigration issues. “There’s a lot happening in our space, and things are changing very rapidly. I’m very anxious to find comprehensive solutions that benefit not just farmers, but everyone,” he said. “I don’t think anyone does a better job than Western Growers. The board has done a great job of nurturing the next generation of talent, even for non-native farmers like me, or in-law farmers, if you want to put it that way.”

Posted in January / February 2024 Issue | No Comments »

ALJ Narrows Focus to Process Issues Amidst Rising Tensions

January 2nd, 2024

In the latest development of the case involving the first card check certification in California, the Administrative Law Judge (ALJ) has made a crucial ruling that the scope of the hearing is limited to issues of process. This decision comes amidst ongoing tensions between the employer, DMB Packing Corporation and the United Farm Workers (UFW) union.

The case has been under scrutiny since the UFW was certified by the California Agricultural Labor Relations Board’s (ALRB)Regional Director following a Majority Support Petition, commonly known as a card check election. DMB Packing Corporation filed objections to the UFW’s certification, primarily focusing on the Regional Director’s acceptance of declarations from 31 workers not on the employer’s eligibility list.

The employer contends that these workers were not eligible as they did not work during the critical period preceding the filing of the Majority Support Petition. Since the UFW barely achieved majority status, the inclusion of these workers’ authorization cards is a pivotal point in the dispute.

In an interesting turn of events, both parties–the employer and the UFW–issued subpoenas to challenge voter eligibility determinations made by the ALRB’s Regional Director. The employer aims to contest names not on their payroll, while the UFW seeks to address names struck by the Regional Director. This move signals a deepening complexity in the case, focusing on the eligibility of workers to participate in the unionization process.

The employer’s argument hinges on the notion that the standards for challenging ballots in an ALRB secret ballot election should be equally applicable to Majority Support Petitions. This perspective underscores a broader debate about the fairness and transparency of unionization processes under the ALRB’s jurisdiction.

Both parties have also raised concerns about the lack of due process in the hearing. The ALRB’s General Counsel previously filed a pre-hearing motion against both parties to exclude farmworker testimony regarding their employment during the eligibility period. This motion has been a point of contention, with the employer arguing that such exclusion lacks transparency and violates their due process rights. The ALJ ruled in favor of the General Counsel, even though both parties (the employer and the UFW) argued that the General Counsel and the Regional Director are not parties to the hearing and should have been banned from making motions.

As the case progresses, it highlights a novel issue before the ALRB: the lack of specific procedures in the amended Act or current ALRB regulations governing the Regional Director’s actions. The outcome of this hearing could set a significant precedent for how such disputes are handled in the future, particularly in the context of the ALRB’s evolving legal landscape.

In summary, the DMB Packing Corporation case represents a critical moment in the interpretation and application of existing ALRB regulations and procedures and the lack of specific regulations or procedures governing the new card check petition process. The decision of the ALJ to limit the hearing to process issues has significant implications for both the employer and the UFW. Meanwhile, the 90-dayperiod to negotiate a collective bargaining agreement, or have one imposed by Mandatory Mediation and Conciliation, is counting down.

Tags: Ag and the Law
Posted in January / February 2024 Issue | No Comments »

CPMA Chair’s Town Hall and Reception Held in Salinas

January 30th, 2024

Western Growers members joined Canadian Produce Marketing Association Chair, Colin Chapdelaine, and CPMA staff at the organization’s town hall and reception in Salinas this morning, January 30^th. The group toured the Western Growers Center for Innovation and Technology with Executive Director Dennis Donohue, and then during the town hall discussed a multitude of topics, including updates on the Canadian market, the upcoming CPMA Convention and Trade Shows, and a buyers panel including interactive discussions on top issues, trends, and the 2024 landscape.

Environment and Climate Change Canada is advocating for a near-elimination approach for plastic packaging that would require 75% of all produce that is currently sold in the supermarkets, to be sold in bulk or non-plastic packing by the year 2026, increasing to 95% in 2028. Regulatory updates including forced labor, supply chain issues, the Safe Food for Canadians Act’s review, and grades & consultations were also on the agenda.

Tags: International Trade
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Legal Series: Succession Planning in the Agricultural Industry Webinar

January 29th, 2024

Do you have a plan in place for transferring your business and its assets to the next generation? We can help get you started.

Join us, February 14 at 11 a.m., for the next installment of the Legal Updates Webinar Series on Succession Planning in the Agriculture Industry. Experts from JRG Attorneys at Law will walk you through:

Options for transferring the agricultural business and the agricultural ground;
Factors in transferring the business to children that work for the business versus those that do not; and
Tax and cash flow considerations in transferring the business and the real estate.

Tags: Legal
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Cal/OSHA Issues Form 300A Summary Posting/Filing Reminder

January 25th, 2024

Cal/OSHA is reminding employers to post their 2023 annual summary of work-related injuries and illnesses, including those related to COVID-19, by February 1, 2024. The Form 300A summary must be posted each year from February 1 through April 30. The annual summary must also be placed in a visible and easily accessible area at each worksite.

Even employers with no workplace injuries during the reporting period are required to complete and post Form 300A.

Employers in California with between 20 and 250 employees in designated Industries, including agriculture, must also comply with electronic submission of workplace injury and illness records requirements by March 2 each year. See federal OSHA’s Injury Tracking Application website for information and instructions on electronic submission.

To be recordable, an illness must be work-related and result in one of the following:

Death
Days away from work
Restricted work or transfer to another job
Medical treatment beyond first aid
Loss of consciousness
A significant injury or illness diagnosed by a physician or other licensed health care professional.

Employers that are required to record work-related fatalities, injuries and illnesses must record a work-related COVID-19 fatality or illness like any other occupational illness. If a work-related COVID-19 case meets one of these criteria, then covered employers in California must record the case on their 300, 300A and 301 or equivalent forms.

Instructions and form templates are available for download from Cal/OSHA’s Record Keeping Overview. The overview gives instructions on completing both the log (Form 300) and annual summary (Form 300A) of work-related injuries and illnesses.

Tags: Health and Safety Rules, Human Resources, Legal, Work Place Regulations
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The PWFA and PUMP Act Celebrate One Year Anniversary

January 25th, 2024

The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) mark their one-year anniversary.

The Pregnant Workers Fairness Act (PWFA) requires covered employers (i.e., those with 15 or more employees) 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.” The PWFA applies only to accommodations. Existing laws enforced by the Equal Employment Opportunity Commission (EEOC) (e.g., Title VII of Civil Rights Act of 1964 and the Americans with Disabilities Act) make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions.

Accommodations under the PWFA can be as simple as more frequent bathroom breaks or modifications to no-food policies. The law protects part-time, temporary, and seasonal workers as well as full-time employees in all industries.

The Fair Labor Standards Act (FLSA) protections, as extended by the PUMP Act, requires employers to provide reasonable break time for a nursing employee to express breast milk for their nursing child for one year after the child’s birth each time the employee needs to express breast milk. Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by the employee to express breast milk.

Neither the PWFA nor the PUMP Act replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.

At the APMA Forum’s H-2A Updates Roundtable on Jan. 24th, Ruben Lugo from the U.S. Department of Labor’s Wage & Hour Division emphasized that PUMP Act compliance is now a focus in their agricultural workplace investigations.

Employer resources on PWFA and the PUMP Act compliance include:

EEOC’s series on maternal health;
The EEOC’s new “Know Your Rights” resource;
The Department of Labor’s industry-specific webinar series on the PUMP Act; and
Various additional EEOC resources related to the PWFA.

Tags: Human Resources, Legal, Legislative, Work Place Regulations
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Creating Recovery-Ready Workplaces: A Guide for Employers

January 25th, 2024

Substance abuse disorders can have serious consequences for both employees and employers. Employees who struggle with alcohol or other drug misuse may face health problems, reduced productivity, increased absenteeism, and higher risk of accidents. Employers may incur higher costs for health care, disability, and turnover, as well as potential legal liabilities.

To address this issue, the U.S. Department of Labor (DOL) has developed a Recovery-Ready Workplace Toolkit: Guidance and Resources for Private and Public Sector Employers. This toolkit aims to help employers create a supportive workplace culture that can prevent and respond to substance abuse disorders among employees.

What is a recovery-ready workplace? A recovery-ready workplace is one that recognizes that substance abuse disorders are treatable medical conditions that can affect anyone. A recovery-ready workplace does not tolerate alcohol or other drug misuse by employees, but rather offers them assistance and support to overcome their addiction and maintain their recovery.

A recovery-ready workplace has clear and consistent policies about alcohol and other drug use and testing, in compliance with federal and state laws. A recovery-ready workplace also has performance and behavior standards that hold employees accountable for their work, regardless of whether they have a substance abuse disorder or not.

A recovery-ready workplace does not discriminate against employees with substance abuse disorders, but rather provides them with reasonable accommodations under the Americans with Disabilities Act (ADA) if needed. A recovery-ready workplace also respects the privacy and confidentiality of employees who seek help for their substance abuse problems.

How can employers create a recovery-ready workplace? The DOL’s toolkit offers guidance and resources for employers to create a recovery-ready workplace. Some of the recommended steps are:

Communicate with employees that you care about their well-being and that you are willing to help them with any alcohol or other drug problems they may have.
Identify and address any workplace factors that may increase the risk of substance misuse, such as stress, injuries, peer pressure, or lack of empowerment.
Provide employees with access to treatment and recovery resources, such as Employee Assistance Programs (EAPs), health insurance, or community-based services.
Plan for both treatment and return to work, by offering flexible leave options, adjusting work schedules, or providing support groups or peer mentoring.

In conclusion, the Recovery-Ready Workplace Toolkit by the U.S. Department of Labor is a comprehensive guide that empowers employers to create supportive environments for employees dealing with substance abuse disorders. By fostering open communication, addressing workplace risk factors, and providing access to treatment and recovery resources, employers can not only help affected employees but also enhance overall productivity and workplace harmony.

For more detailed guidance, employers are encouraged to refer to the Recovery-Ready Workplace Toolkit.

Tags: Legal, Work Place Regulations
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CARB Halts Enforcement of Advanced Clean Fleets Regulation

January 23rd, 2024

On Thursday, Dec. 28, the California Air Resources Board (CARB) issued a notice that it will not enforce its Advanced Clean Fleets (ACF) regulation until the U.S. Environmental Protection Agency (EPA) grants a waiver applicable to those regulatory provisions or determines one is not necessary.

Although the Advanced Clean Fleets regulation has been put on hold, CARB is urging “fleets to voluntarily report and comply while the waiver request is pending and reserves all of its rights to enforce the ACF regulation in full for any period for which a waiver is granted or for which a waiver is determined to be unnecessary, including (but not limited to) the right to remove non-compliant vehicles added to fleets while the waiver request is pending. CARB will also accept requests for the extensions and exemptions available under the ACF regulation during this period.”

How this notice applies to high-priority fleets

CARB will not take enforcement action as to the high-priority fleet reporting requirements or registration prohibitions until U.S. EPA grants a preemption waiver or determines a waiver is not necessary.
Reporting is optional until the waiver is granted or determined to be unnecessary; however, fleets will need to report their fleet as it existed on January 1, 2024, as well as any removals or additions to the California fleet since January 1, 2024, once the waiver is granted or is determined to be unnecessary.
If fleets add internal combustion engine vehicles to their California fleet after December 31, 2023, those fleets should expect to receive the following notice from CARB:

“Any combustion-powered vehicles added into service in California in high priority or federal fleets after December 31, 2023, may be restricted from operating once the U.S. Environmental Protection Agency grants California a waiver for the Regulation pursuant to section 209 of the federal Clean Air Act or determines no such waiver is necessary. Once the waiver is granted or determined to be unnecessary, fleets may need to remove any vehicle from the California fleet that was not eligible to be added to the California fleet after January 1, 2024, or the fleet must elect to comply with the Zero-Emission Vehicle (ZEV) Milestone Option instead of the Model Year Schedule.”

To read the full ACF Regulation Enforcement Notice, click here.

Tags: Transportation
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CDFA Now Accepting Applications for Healthy Soils Program Incentive Grants

January 22nd, 2024

The California Department of Food and Agriculture (CDFA) is making available approximately $12 million in grant funding for Healthy Soils Program (HSP) Incentive Grants.

The program’s objectives are “to increase statewide implementation of conservation management practices that improve soil health, sequester carbon and reduce atmospheric greenhouse gases,” according to a press release by the CDFA.

California farmers, ranchers, business entities, California Native American tribes and non-profit organizations are encouraged to apply. Applicants can request up to $100,000 per project, with priority given to applicants who are considered Socially Disadvantaged Farmers and Ranchers.

The submission deadline for grant applications is Friday, Feb. 9, 2024 at 5 p.m. PST.

The CDFA will hold two online workshops to provide more information on the application process. Participants can register for one of the webinars below:

Tuesday, January 23, 2024, at 3:00 p.m. – 4:30 pm PST
https://us02web.zoom.us/webinar/register/WN_qsjIpbedQ-m8B6UFqOrZgA
Wednesday, January 24, 2024, at 10:30 p.m. – 12:00 p.m. PST
https://us02web.zoom.us/webinar/register/WN_VUI60B10SRy7tVte08td1A

A PowerPoint presentation and relevant materials will be posted on the HSP Incentive Grants webpage for those who are unable to attend.

For more information on eligibility and program requirements, prospective applicants can visit the HSP Incentive Grants website at www.cdfa.ca.gov/oefi/healthysoils/incentivesprogram.html.

Tags: CDFA
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Guidance on Handling a Check Labeled ‘Full and Final’

January 23rd, 2024

It is not uncommon for produce buyers to issue payment checks to sellers for amounts less than the invoiced total, accompanied by restrictive endorsement language. This practice raises critical decisions for sellers, as accepting such checks may impact their ability to collect any remaining balance. Understanding the legal implications is crucial, and this blog aims to shed light on the considerations involved.

Buyers often include language on the back or front memo section of the check, stating, for instance, “This check is full and final satisfaction of all amounts due on invoice number 12345.” The pivotal decision for sellers lies in determining whether this language is legally binding. If the short-pay check amount is close to the invoiced total and the difference is negligible, depositing the check may be a practical choice. Additionally, if the buyer has a history of late payments or financial instability, accepting the check and writing off the remaining balance could be a sound business decision.

In cases where California law applies, certain factors come into play:

Good Faith Payment: The buyer must prove that the payment was tendered in “good faith” as full satisfaction of the claim.
Bona Fide Dispute: There must be a genuine dispute over the amount claimed by the buyer.
Cash or Deposit: The seller must actually cash or deposit the check.
Conspicuous Statement: The check or accompanying communication must contain a conspicuous statement indicating that the payment is intended as full satisfaction of the claim.

There are two exceptions that exist:

Seller Communication: If the seller had previously communicated or memorialized that all disputes must be directed to a specific person or office, and the buyer disregards this, the short-pay check may not satisfy the entire amount.
90-Day Window: The claimant has 90 days after receiving the payment to return the check, indicating non-acceptance as full payment.

Deposit of a payment check with restrictive endorsement language carries risks, as it may be considered acceptance of the full debt. Sellers should exercise caution, especially when a significant balance is at stake, and consider consulting with an attorney to navigate the legal intricacies involved in these situations. If you have any questions about payments received, including short payments, please don’t hesitate to contact me at 949.885.4808 or [email protected].

Tags: Produce Insights
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Western Growers University: Effective Employee Performance Management (Spanish)

January 16th, 2024

With competing demands and constant workplace disruptions, your team looks to you for direction, guidance, and inspiration. Discover techniques to help you coach your team more effectively and help move them from feeling threatened to challenged and fulfilled. Equip yourself with tools to help you maximize your coaching style, address performance gaps, and create a more competent and efficient workforce. Learn how to ask guided questions and respond with constructive feedback. Develop a more productive organization by creating a learning environment where employees can thrive and contribute.

Details
Thursday, February 22, 2024
1:00pm – 3:00pm
Virtual Webinar
2 hours
Spanish

Who should attend?
Business owners, HR professionals, managers, and supervisors.
Register Here

Tags: WGU
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California High Court Rules Courts Can’t Strike Unwieldy PAGA Claims

January 19th, 2024

In a landmark decision on January 18, the California Supreme Court ruled that trial courts lack the inherent authority to dismiss claims under the state’s Private Attorneys General Act (PAGA) simply because they are deemed unmanageable.

The ruling is a significant setback for business owners and corporations who had hoped for a decision that would curtail the numerous PAGA claims filed daily in California. Lawsuits under PAGA, often initiated due to minor infractions of California’s labor code, have become a significant nuisance for employers, including those in the agricultural sector. These employers find themselves compelled to agree to substantial settlements to sidestep legal costs and the risk of heftier penalties, even in cases where the proof of illegal behavior is questionable or completely lacking.

The question before the California Supreme Court was whether trial judges have the inherent authority to strike PAGA claims solely because they wouldn’t be manageable at trial. The court’s ruling resolves a split of authority between two courts of appeal that came to opposite conclusions. The Supreme Court has clarified that trial judges do not have this authority.

The ruling has the potential to impact all businesses that have employees in California. Such businesses are interested in compensating their employees properly and setting valid employment policies without incurring undue settlement pressure from being forced to litigate unmanageable representative actions.

To sum up, the verdict of the California Supreme Court reinforces the entitlement of employees to lodge PAGA lawsuits against their employers, irrespective of the intricacy or feasibility of these claims. It seems that unless the electorate approves The California Fair Pay and Employer Accountability Act in November, employers will persistently be troubled by predatory shakedown lawsuits. This proposed legislation would return the adjudication of labor disputes to an impartial authority by authorizing the Labor Commissioner to enforce labor laws and levy fines.

Tags: Legal, PAGA
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The Door Finally Closes on California’s AB 51

January 19th, 2024

On January 1, 2024, a federal district court permanently enjoined the State of California from enforcing AB 51, the law which sought to prohibit the use of employment-related mandatory arbitration agreements.

As discussed here, shortly after enactment AB 51 was immediately challenged and an injunction on enforcement granted by the U.S. District Court. However, the injunction was short-lived as a divided Ninth Circuit Court of Appeals panel reversed the injunction (in part) which prompted the immediate filing of a petition for rehearing by the full court. On August 22, 2022, instead of granting or denying the petition for rehearing, the Ninth Circuit made a surprise decision to withdraw its prior opinion and grant a full panel rehearing. At a February 15, 2023 rehearing, the Court affirmed the original district court ruling which held that AB 51 was preempted by the Federal Arbitration Act (FAA).

The January 1, 2024, order permanently enjoining enforcement brings an end to the AB 51 controversy.

Under the terms of the injunction, the State of California, including the state’s Labor and Workforce Development Agency and Civil Rights Department, are:

“Enjoined from enforcing sections 432.6(a), (b), and (c) of the California Labor Code where the alleged “waiver of any right, forum, or procedure” is the entry into an arbitration agreement that is covered by the FAA, 9 U.S.C. §§ 1-16; and
Enjoined from enforcing section 12953 of the California Government Code where the alleged violation of “Section 432.6 of the Labor Code” is the entry into an arbitration agreement that is covered by the FAA.”

What Does This Mean for Employers?

The Court’s issuance of a permanent injunction makes clear that there are no legal obstacles standing in the way of an employer’s decision to require arbitration agreements as a condition of employment or continued employment in California; so long as the FAA applies and governs the agreement. No appeals or further legal challenges are anticipated.

Employers should consult with legal counsel to confirm if any new or existing arbitration agreements are subject to and governed by the FAA.

Tags: Human Resources, Legal
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Second Card Check Petition Certified by ALRB

January 19th, 2024

Last week, an agricultural employer in Fallbrook, California, received a Majority Support Petition (MSP) from the United Farm Workers (UFW). The UFW has now been certified as the collective bargaining representative of the agricultural employees of Olive Hill Greenhouses, Inc. This is the second successful filing of a Majority Support Petition under the ALRB’s new “card check law” (AB 113). The first petition is subject to employer exceptions pending before the ALRB.

WG Ag Legal Network participating law firm Barsamian & Moody has been retained to represent the employer before the ALRB with respect to the election process. According to the ALRB Regional Director’s tally, 47 cards were signed and submitted authorizing the UFW, out of 70 eligible workers.

Under the new “card check law” (AB 113), the union may be certified as the employees’ bargaining representation when a majority of eligible employees sign union authorization cards. Employers should be aware of the obligations outlined in Labor Code Section 1156.37 after receiving a Majority Support Petition from a qualified labor organization seeking to represent a group of agricultural employees, called a bargaining unit. As discussed here, within 48 hours of being served with the petition, the employer must provide a comprehensive and accurate list of currently employed employees in the bargaining unit, including the employees of any farm labor contractors.

Tags: Card Check, Legal, Unionization, Work Place Regulations
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CRD Issues Updated “Workplace Discrimination and Harassment” Poster

January 19th, 2024

Various state and federal laws require employers to comply with certain workplace posting obligations. California employers are specifically required to post the state’s “California Law Prohibits Workplace Discrimination and Harassment” poster.

Given the recent updates to state mandated bereavement and reproductive loss leave and prohibitions on discrimination based on the use of cannabis outside the workplace, the Civil Rights Department (CRD) has published an updated version of this mandated poster.

The updated California Law Prohibits Workplace Discrimination and Harassment poster and other required posters can be downloaded for free from the CRD’s website.

Tags: Human Resources, Legal, Work Place Regulations
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California Department of Public Health Updates COVID Isolation Guidance

January 19th, 2024

The California Department of Public Health (CDPH) has updated its COVID-19 Isolation Guidance protocols. The update includes the CDPH’s recommendations to move away from five days of isolation and instead focus on clinical symptoms to determine when to end isolation.

The CDPH, in connection with health officials across the state, has undertaken a multi-pronged approach to mitigating COVID-19 that includes encouraging vaccination, offering and promoting testing and treatment, and promoting public health practices like mask wearing. Reduced impacts from COVID-19 – compared to prior years – have the CDPH recommending this change as a way of bringing COVID-19 treatment practices into alignment with common practices associated with other respiratory viruses.

Updated CDPH recommendations include the following:

Positive Test:

Symptoms: Stay home if you have COVID-19 symptoms, until you have not had a fever for 24 hours without using fever reducing medication and other COVID-19 symptoms are mild and improving.
- No Symptoms: Follow below recommendactions to reduce exposure to others.
Mask when you are around other people indoors for the 10 days* after you become sick or test positive (if no symptoms). Mask may be removed sooner than 10 days if you have two sequential negative tests at least one day apart. Day 0 is symptom onset date or positive test date.
Avoid contact with people at higher-risk for severe COVID-19 for 10 days.*
Seek Treatment. If you have symptoms speak with a healthcare provider as soon as you test positive. COVID-19 antiviral medicines work best if taken as soon as possible, and within 5-7 days from when symptoms start.

*The potential infectious period is 2 days before the date of symptoms began or the positive test date (if no symptoms) through Day 10. (Day 0 is the symptom onset date or positive test date).

Close Contact:

New COVID-19 symptoms – test and mask right away.
No symptoms – and at higher risk of severe COVID-19 infection – test within 5 days.
No symptoms – and have contact with people who are at higher risk for severe infection – mask indoors when around such people for 10 days. Consider testing within 5 days after the last exposure date (Day 0) and before contact with higher-risk people.

Workplaces remain subject to the Cal/OSHA COVID-19 Non-Emergency Regulations  or in some workplaces the Cal/OSHA Aerosol Transmissible Diseases (ATD) Standard. These regulations automatically incorporate updates issued by CDPH and remain in effect until February 3, 2025.

The new guidelines do not apply to healthcare personnel who remain subject to current CDPH and Cal/OSHA recommendations.

Tags: COVID-19, Health and Safety Rules, Human Resources, Legal, Wage & Hour
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Western Growers Ag Legal Network Directory 2023

January 18th, 2024

Participants in this referral service agree to give Western Growers members a 15 percent discount off of their normal legal services rates.* The WG-member law firms listed below specialize in a wide array of legal issues to fit virtually any need a member may have, from business contracts to labor issues to food safety liability.

WG law firm members who advertise in this issue (September/October 2023 Western Grower & Shipper Magazine) have earned boldface designation and a descriptive phrase explaining their scope of practice.

Atkinson, Andelson, Loya, Ruud & Romo

Regina Silva

4275 Executive Square, Suite 700

La Jolla, CA 92037

Phone: 858-673-2710