Stuart Woolf Takes Over as Chair of Western Growers

February 8th, 2024

As Albert Keck passed the gavel representing the position of chair of the board to Stuart Woolf at the 2023 Western Growers annual meeting in Kauai, Hawaii, in November, it was more than a handoff of the role. It was a clear view into how deep the bench is in the Western Growers board for leadership.

Though a new chair of the board may mean a different tone in guidance, the collaborative and unified nature of the board will keep to a proactive trajectory set by Keck ─ and the many who came before him ─ to keep Western agriculture fit for the bobbing and weaving needed to stay productive in a dynamic industry. “I’m not looking to suddenly change the course of anything,” Woolf said. “I’m looking to build and bolster the path we’re on. I feel like I’m very aligned with the organization and its overall mission.”

Stuart is President and CEO of Woolf Farming & Processing, a family-owned operation primarily focused on the production and processing of agricultural commodities. Woolf was involved with the establishment of two related entities: Harris Woolf California Almonds and Los Gatos Tomato Products. Harris Woolf is a processor and handler of raw almonds and Los Gatos manufactures bulk tomato paste for industrial users. Woolf is deeply connected within agriculture from his experience serving as Chairman of the California League of Food Processors, the Almond Board of California and the UC President’s Commission of Agriculture and Natural Resources. Along with his position on the Western Growers board, Woolf currently serves on the boards of the California Chamber of Commerce and the recently established California Agave Council.

The Western Growers Family of Companies is vast and complex. Any member of the board has a lot on their plate just understanding the dynamic and varied needs of the companies. At the helm of it all, Woolf has his attention on a few clear objectives: “I’m interested in reviewing the overall health and sustainability of the organization, which I wish to maintain and build upon. This means reviewing the strategic plans for our business units, investing in the best and brightest, maintaining strong financials, establishing key metrics, etc. In addition, I would like to see the influence of our advocacy to grow by aligning with more like-minded ag interests.”

Advocacy on a state and federal level has long been a priority and core purpose of Western Growers, and its importance won’t waver with Woolf at the lead. Our regulatory challenges are not going away with mandates associated with water rights, labor, environmental, pest control and plastics (to name a few). “We must remain vigilant in making the case for reasonable business environment for those of us who grow our nation’s food.” The Chair of the Board of Western Growers has a formidable group of government affairs experts at the ready both in represented states and in Washington D.C.

In a recent article, Western Growers President & CEO Dave Puglia said, “We are all agriculture.” All Western Growers members’ large-scale challenges converge through the association, strengthening the amplification of the one voice made from the many. “A thing that I really like about advocacy and the policy work we do, it benefits all members big and small,” Woolf said. “It doesn’t differentiate.”

While advocacy is one of the pillars of the organization, it also engages strategically to address its members’ long term challenges. For example, Western Growers has created the Center for Innovation and Technology (CIT). CIT now has over 100 startups and 35 sponsors connecting innovators and our members. We’re using the power of “the many” to meet the needs of an industry where individual efforts may be harder to come by. According to Woolf, “Western Growers investment at the CIT are poised to pay real dividends in regard to mechanizing harvesting and weeding in a world of uncertain, high-cost labor.”

Food Safety is another area of focus for the organization. The organization is working with regulators to ensure their efforts generate better outcomes for both suppliers and consumers. Data analysis determining the root causes of food borne illness and how to track and prevent them as opposed to solely relying on broad-based recalls that punish all producers, is a step in the right direction. Greenlink® is a Western Growers sponsored initiative to enhance prevention and better fact-based responses.

Western Growers is unique in offering these kinds of solutions. “I love the idea that this organization positions itself strategically to address issues directly pertinent to its members as well as the ag industry at large. More often, adaptation comes from innovators and entrepreneurs, not from trade associations. I’m excited to have been asked to lead such a dynamic organization with members I’m proud to rub shoulders with.”

Woolf will hold the gavel for the next two years, and there is no doubt that there will be both successes and challenges within those two years. Members of the Western Growers Association can trust that Woolf will handle the time with resilient, confident and capable leadership. “I’m always amazed at the work that’s being done at Western Growers…yet if there was one area that I would really like to see a mark improvement on, its simply telling our story better. We need to do a better job ‘tooting our own horn’ highlighting what we bring to the table for not only our members, but the industry at large.”

Along with the change inboard leadership that moves Woolf to the Chair of the Board seat, the other officers of the Association are: Vice Chair Rob Yraceburu, President of Wonderful Orchards; Treasurer Neill Callis, General Manager, Turlock Fruit Co.; Executive Secretary, Don Cameron, Vice President and General Manager of Terranova Ranch; and Puglia. Rounding out the Western Growers Executive Committee are Past Chair Keck and EC Members at Large Ryan Talley of Talley Farms and Catherine Fanucchi of Tri-Fanucchi Farms.

Posted in January / February 2024 Issue | No Comments »

Traceability New Regulation: Is Two Years Plenty of Time?

February 1st, 2024

In September 2020, the Food and Drug Administration (FDA) published “Requirements for Additional Traceability Records for Certain Foods” (the Traceability Rule or FSMA Rule 204), proposing regulations mandating the establishment and sharing of food production-related records to shorten the FDA’s investigations of outbreaks when they occur. After extending the original comment period until February 2021, the agency took several months to review stakeholder feedback, and the rule was finalized in November 2022. By January 20, 2026, all companies that are subject to the rule will be required to have a traceability plan in place, assign traceability lot codes and maintain records of various critical tracking events as defined in the rule. The rule comes with its own terminology that, as defined by the FDA, may or may not currently be used by or familiar to the fresh produce sector.

Planning and Preparing

Do not wait until the Traceability Rule enforcement date; prepare now. As we start 2024, two years may seem like a long time, but if companies are judiciously planning and preparing to be compliant, this time will be used to:

  1. Determine the information customers are going to need and the systems they use to accept that information.
  2. Determine the information needed from suppliers and the systems they use to log that information.
  3. Assess the records currently kept and the existing recording-keeping systems.
  4. Analyze the information shared within the supply chain and identify missing data.

During a recent Western Growers webinar, Andrew Kennedy, Principal Traceability Advisor with New Era Partners, and Minos Athanassiadis, Vice President at iFoodDS, reviewed common challenges and questions around implementing the Traceability Rule. Kennedy, who as a former FDA employee helped to write the proposed rule, outlined steps companies can take to prepare for rule compliance. An important recommendation was to follow a methodical and systematic approach to making decisions that assess the adequacy of existing recordkeeping systems as well as suppliers and customers’ information requirements and systems. Both speakers encouraged companies to do their homework and talk with their suppliers and customers first before buying new systems and/or services.

As a reference, New Era Partners/iFoods created an infographic that depicts a Food Traceability Rule Timeline and suggests a path to compliance, which includes four elements: Learn, Plan, Do and Review.

Learn means reading and understanding the Traceability Rule as well as conducting a gap analysis to see what information is missing within the supply chain. Plan means the development of a food traceability plan and developing a budget for its implementation. Do refers to having executing or implementing the traceability plan, and Review refers to assessing results, a gap analysis and periodic reviews to determine the level of compliance.

Companies that have implemented the Produce Traceability Initiative (PTI) requirements, as many on the supply side have done, are already on the path to compliance with Rule 204. Although not all Rule 204 requirements align with PTI, much of the information required by the rule is captured in the PTI-compliant case label. During the webinar, Kennedy reviewed a PTI-compliant case label and explained the elements that pertain to and align with the rule’s requirements, such as the barcode’s GTIN and internal batch or lot code, which together provide the information required in the rule’s “traceability lot code.” The PTI website includes resources, such as electronic sortable spreadsheets; a traceability implementation guide is in the works. PTI leadership is currently focused on updating its best practices related to capturing and sharing data with trading partners.

Becoming compliant with the Rule

In August 2023, Western Growers published a guidance document to help companies comply with the Traceability Rule. The guide covers: 1) which foods are and are not covered by the rule, 2) how to determine which requirements apply to you, 3) the information you are responsible for collecting and sharing, 4) how data and information will move through the supply chain, and 5) sharing information and data with the FDA. In addition, the FDA has numerous online resources available that provide an overview of the rule, highlight key features and elements, list the foods covered by the rule, review exemptions and modified requirements, and provide examples.

What is important to remember?

The Traceability Rule assigns different entities slightly different responsibilities depending on whether they are engaged in harvesting, cooling, initial packing, first land-based receiving, receiving, transforming or shipping foods on the Food Traceability List. Although “growing” is not a CTE, farms that do not engage in other activities such as harvesting, cooling or initial packing, are nonetheless required to maintain a traceability plan. FDA explicitly did not mandate that traceability records be maintained in a specific format, and covered entities are permitted to choose their preferred storage method. That said, the rule still requires traceability records to be provided in an electronic, sortable spreadsheet within 24 hours when it is necessary to address a threat to public health. For this reason, while it is not required, companies may decide it is worthwhile to store the information electronically.

For questions related to this regulation and WG resources, contact us at [email protected].

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Posted in January / February 2024 Issue | No Comments »

NLRB’s New Joint Employer Rule Deadline Extended…Again.

February 29th, 2024

As discussed here, on October 26, 2023, the National Labor Relations Board (Board) issued a new Final Rule affecting joint employment under the National Labor Relations Act (NLRA). The new rule rescinds the prior Rule enacted in 2020 and puts forth a new test expanding the circumstances under which an employer is deemed a ‘joint employer.’

As discussed here, the new rule was set to take effect December 26, 2023, but the deadline was pushed to February 26, 2024 after a lawsuit filed by the United States Chamber of Commerce challenged the rule as being unlawful as well as “arbitrary and capricious.” In another legal twist, on February 22, 2024, a judge in the Eastern District Court of Texas issued a stay in the case further extending the rule’s effective date to March 11, 2024.

It is unknown at this time whether this ruling will be further challenged.

Employers should continue to keep in mind that the NLRA joint-employer rule is not the same rule applied by the U.S. Department of Labor for purposes of the Federal Labor Standards Act.

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NLRB Ruling Provides Lesson on Protected Concerted Activity

February 29th, 2024

A recent National Labor Relations Board (NLRB) decision provides an important perspective on the boundaries of what constitutes “mutual aid and protection” under Section 7 of the National Labor Relations Act (NLRA).

In the recent case Home Depot USA, Inc. (Home Depot), the NLRB reversed an Administrative Law Judge decision that found the employer had not violated employee Section 7 rights when it enforced its uniform policy and required employees to remove ‘BLM’ – the Black Lives Matter acronym – from their uniforms.[i]

In a 3-1 decision reversing the prior ruling, the NLRB found that the employer’s actions had violated Section 7 rights because adding the acronym to their uniforms – an act viewed as being undertaken for mutual aid and protection – was a logical outgrowth of concerns expressed by employees in support of themselves and others who had made allegations of race discrimination over the preceding months.

Section 7 protects employees when they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Individual motivations are irrelevant in terms of determining the scope of Section 7 protections; what is crucial is that the purpose of the conduct relate to collective bargaining, working conditions and hours, or other matters of ‘mutual aid or protection’ of employees.

In defending its position, Home Depot first argued that adding the BLM acronym violated its uniform policy. This argument was found to be unpersuasive because it could not show how adding the acronym was any different from the other ways employees were encouraged to personalize their work uniforms.[ii] Other arguments associated with non-specific threats to the safety of employees and the public as well as allegations that the acronym had the potential for controversy were also ineffective. When it comes to assessing the potential for controversy, the NLRB has long held that the lawfulness of the exercising of rights under the NLRA, including issues as controversial as union-button wearing, does not depend on its acceptance by others.

What Does it All Mean

Although the NLRB’s Home Depot decision seems to broaden existing limits on what constitutes concerted activity, it does stop short of an expansion that would see the protesting of civil rights issues on the job as inherently concerted under Section 7. Instead, with Home Depot’s fact-based emphasis, the NLRB seems to signal a move toward a more case-by-case focus when it comes to deciding future civil-rights focused complaints.

Key Take Away

As we head into an election year and with union organization activities on the rise, it is important for employers to proceed with caution and seek legal counsel before strictly enforcing any company policies that outright prohibit or could be perceived as prohibiting potentially controversial messages.

 

[i] Home Depot uniforms consist of an orange apron worn over the employee’s clothing.

[ii] Employees are encouraged to personalize their aprons by adding written messages, images, and other elements. Mentioned in the case were examples of extensively personalized aprons with large, colorful, and expansive designs, including LGBTQ Pride symbols, the Pan-African flag colors, holiday symbols, and insignia and slogans of professional or college sports teams.

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EEOC Announces Opening of 2023 EEO-1 Data Reporting Period

February 29th, 2024

The Equal Employment Opportunity Commission (EEOC) has announced that its 2023 EEO-1 Component 1 data collection will open on Tuesday, April 30, 2024. The deadline to file the 2023 EEO-1 Component 1 report is Tuesday, June 4, 2024.

Private employers subject to Title VII of the Civil Rights Act of 1964 (Title VII) and employing 100 or more employees during an employer-selected pay period in the fourth quarter (i.e., October 1 through December 31) of the reporting year (i.e., 2023) have a mandatory legal obligation to submit and certify an annual EEO-1 Component 1 report containing required workforce demographic data to the EEOC.

The EEOC’s EEO-1 Component 1 online Filer Support Message Center will also be available on Tuesday, April 30, 2024, to assist filers with any questions they may have regarding the 2023 collection.

All updates about the 2023 EEO-1 Component 1 data collection, including the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 EEO-1 Component 1 Data File Upload Specifications, will be posted to www.eeocdata.org/eeo1 as they become available. The EEOC anticipates posting the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 Data File Upload Specifications by Tuesday, March 19, 2024.

 

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Don’t Break What Works

February 2nd, 2024

We are all familiar with the phrase, “If it ain’t broke, don’t fix it.” It’s a catch-all phrase that attempts to capture the understanding that your time should be spent focusing on the truly important matters that need urgent resolution. A closer look at the usage of this phrase also infers that most tasks take time and that the outcome should be worth the effort given. It’s not an extraordinary piece of insight, yet it’s one that seems to be escaping the mindset of many government leaders in California these days. It seems they are more in line with, “Let’s break what already got fixed.”

The concept of dismantling what already works has profound consequences on both our personal and business lives. This is not to say that innovation, creativity and new concepts are not important. They absolutely are. Progress is important for everyone. I’m talking about the almost constant and intentional throwing of a wrench into the engine of business and agricultural operations that routinely occurs in Sacramento. We see this in many policy areas including labor, sustainable pest management and air quality goals. It causes great uncertainty for growers in managing their current operations let alone making strategic decisions on three-to-five-year farm plans. Growers especially should have reasonable expectations about the costs that they will be incurring for new requirements that are being mandated by legislators and regulators. Even if cost is not a factor, will the new requirement allow for us to continue to grow the safe and nutritious food that our communities expect to be available on the shelves? These are not easy questions to answer but they need to be.

This is very relevant because, at the time of this writing, the state budget for 2024-2025 is likely to be in a severe deficit due to revenue declines. How severe? A total of $68 billion severe! For context, the total state budget passed for the 2022-2023 fiscal year was $310 billion. There will undoubtedly be many budget cuts this year to ongoing programs as well as discontinuing one-time spending. There area slew of programs that should be reconsidered. There are also many that WG advocates will be vigorously fighting for.

Going back to the basics of what works is really important given what might be some unescapable realities of the next state budget. We will be advocating to reduce pressures on our growers with the goal of ensuring that California agriculture remains vibrant and successful. California should, at a minimum, pause further implementation of the California Air Resources Board Advanced Clean Fleet regulation. Affirmation should be given that current sustainable pest management goals only work if alternatives have been identified, registered, deemed effective, and are efficient. Additional labor costs should be mitigated; at least don’t add further burdens. The inflation rate may have started to decline, but overall prices are still high. Consumers and businesses are all feeling the pinch.

Focusing on the basics is not “lazy.” It’s a recognition of what is required at a particular moment in time. In learning about how to handle flight emergencies in my early days of flight school, my instructor would always say, “Fly the plane first.” The clear message was to focus on immediate priorities and be careful not to make errors that could lead to unnecessary complications. Our leaders should follow the same principal. Recognize what has historically worked and take the proverbial foot off of the legislative/regulatory gas pedal in order to give our economy, our businesses and our consumers the time to manage those challenges that have been laid at our feet.

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Posted in January / February 2024 Issue | No Comments »

The Psychology of Foodborne Pathogen Testing

February 28th, 2024

Much of today’s society involves measurement, data collection and ultimately comparison amongst others to see how we stack up. We are either too heavy, too thin, our blood pressure too high, GPA too low, or we have too few followers on our social pages. In short, we have driven ourselves toward a constantly growing need to collect, evaluate and judge what success looks like based on measurable data points and how those outcomes compare to others. The trend toward data collection penetrates all facets of our daily lives, and in food safety, we are increasingly adopting measurement and data analysis to make further advancements in reducing pathogen risks for consumers. The convergence of economical computation, developments in artificial intelligence (AI) and progressively more sensitive and affordable diagnostic testing have created a promising new frontier in pathogen risk detection and management, and excitedly, one that offers the ability to be less reactive to one that is far more predictive and preventative. Data collection and analysis offers the ability to more efficiently realize the full value of our testing and food safety efforts; aggregating mass quantities of data from an entity, or an entire industry, provides new insights into the ecosystem where we manufacture food, and allows us to make even more informed decisions. In short, food safety data analysis and data sharing welcome the advent of a far more preventative food safety paradigm.

The intent of food safety systems is to prevent exposure and negative health consequences from any agent in a food that may cause consumer risk (e.g., bacteria, viruses, heavy metals, chemical contaminants). A simple concept, yet a complicated effort since hazards are generally unable to be seen by the naked eye, and usually present at very low prevalence rates. Prior to the development of molecular pathogen detection methods, such as polymerase chain reaction (PCR), if microbiological testing were to be used, food safety professionals relied upon laboratories’ abilities to select for and grow bacteria from foods or food processing environments. These cultural methods had multiple steps, could be costly due to the many specialized materials and skilled labor required, and generally took days or weeks to complete. For highly perishable food products, such as fresh produce and meat, cultural methods were simply not an option as results were obtained after shipping, and potentially after consumption. Over the past couple of decades, rapid pathogen methods, such as PCR, have served as revolutionary tools in food safety risk assessment since they offered fast, highly sensitive and economical techniques that allowed for timely results and increased detections by using genomic test targets (i.e. DNA/RNA gene detections). With more robust tools, food safety professionals have increasingly incorporated pathogen testing for bacteria and other microorganisms into their programs to better understand products’ and processing environments’ risks. Each year, the food industry is reporting incorporating more testing into its overall food safety plan, highlighting the growing demand for information to assess current practices and improve food safety outcomes.

As we approach food pathogen testing, or any quality testing, the most valuable test taken is the one where we “fail,” the test that identifies the pathogen or defect. However, designing a system to find failures doesn’t feel very intuitive, and subconsciously testing programs that report a high number of negatives can feel far more comfortable since it affirms that systems are functioning as expected and our efforts are successful. Herein lies a challenge for food safety professionals. Our biggest food safety successes come from designing systems that identify failures (i.e., pathogen detections), and failures by their nature, can create uncomfortable management situations. The drive for acceptable test results has been ingrained in us since childhood. At an early age, we learn the need to perform well on testing since grades not only dictate an individual’s potential by determining the schools one can gain admission to, but, more concerningly, grades are often interpreted to be reflections of intellect and worth. The pressures of performing well on testing create systems designed to advance those who score well but do not necessarily learn well. It’s summed up well in the common saying, “You hit the target and missed the point.” Given the pervasive social pressures to score well, it is not unexpected that it can be difficult to observe and process testing failures in any system, and this behavior should be taken into consideration as more efforts are invested in testing and analysis systems for food safety. The successful incorporation of food pathogen testing and the subsequent use of detection data sets to better understand and predict risk first requires building social networks that normalize and encourage finding failure.

Negative test results in food safety testing generally mean one of two things: (1) there is no prevalence of the target in the system or food, or (2) the sampling design and/or testing are not able to detect the target. For the first scenario, testing for a target that is not a risk for that food or environment doesn’t make any food safety or financial sense. If a target has been identified as a potential risk and thereby is being tested for, it is most likely because the target has been previously associated with illness or negative outcome (i.e. regulatory requirement). If a hazard has been known to occur, infrequently detecting the target with testing may occur from sampling design insufficiencies, limitations in the testing methodology or a combination of both. The second scenario is generally much harder to diagnose and interpret since it can be influenced by numerous factors that require investigation. Irrespective of the technical reason why few positives are detected, a related issue when analyzing testing programs is that negatives on samples are rarely questioned since they support the preferred outcome and expectation. In general, negative samples lead one to interpret that the process is under control and that all food safety efforts “pass the test.” Positive feedback in this scenario is the receipt of a negative test result. Quite simply, in food safety, a negative dataset is very comfortable, but ultimately not very valuable in reducing risk to consumers since it is only when detections are found that we modify behavior (e.g. destroy product, conduct additional sanitation, etc.). The change in behavior, and not the test result, is what would reduce risk in the system.

Evolving to a preventative, risk-based food safety paradigm is an exciting concept and one that food safety professionals have anxiously been waiting for. Receiving a call from regulators or public health officials that your product has been linked to an outbreak is one that no person or company wants to receive; it is the worst fear and ultimate signal of failure. One illness has always been one too many. While the improvement of testing technology and computational power creates the technical infrastructure for the shift toward risk-based management and preventative food safety, it is critical that the industry not overlook the need to establish a food safety culture where receiving failing results has been normalized and encouraged. Shifting goals to manage risks and not absolutes ultimately requires mentally accepting that there is some level of residual risk that we may have, especially in systems without processing interventions, and that testing programs with zero to few detections should not be the goal. Testing and analysis only contribute to reducing risk when information is learned from the81result. Detections teach us and allow us to focus behaviors to drive residual risks continually lower. A perfect score from pathogen testing is generally not the signal of a healthy system, but a testing program that may require attention and optimization to detect the targets. Regardless of how large the testing program is, negative test results provide no motivation for behavior change over time, and thereby do nothing to reduce risk to consumers. This is counterintuitive since many testing efforts require enormous financial and labor resources to execute; they surely are not easy. Alongside advancements in testing and analysis tools, data-sharing platforms are also being developed to help support broader and faster learning by providing an opportunity to see not just how one product, plant or industry performs, but to create enhanced visibility about how they perform relative to other operations. The increased visibility via data-sharing may further exacerbate inherent sensitivities toward observing detections, and the food industry and regulatory agencies must focus on building a social and regulatory framework that incentivizes finding failing test results. The advent of preventative, risk-based food safety management is an exciting and revolutionary time for the food industry. As the world connects through data analysis, new insights into the interrelatedness of our food and production ecosystems will offer new understanding and strategies for producing the safest, most sustainable food system possible.

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March 2024 is National Ladder Safety Month

February 29th, 2024

March 2024 has been designated as National Ladder Safety Month by the American Ladder Institute. This event is intended to raise awareness of ladder safety and decrease the number of ladder-related injuries and fatalities. Safety is everyone’s responsibility!

According to data from the U.S. Bureau of Labor Statistics, thousands of ladder-related injuries occur in the workplace every year. Workplace processes and hazards should be assessed, and corrective actions implemented, to reduce the likelihood of injuries.  Employers can use National Ladder Safety Month as an opportunity to review and revise workplace ladder safety programs and revisit safe ladder practices with employees.

Here are some general considerations for the prevention of ladder-related injuries:

  • Make sure the weight that the ladder is supporting does not exceed its maximum load rating (user plus materials).
  • Keep your body centered between the rails of the ladder at all times. Do not lean too far to the side while working.
  • Do not step on the top step, bucket shelf, or attempt to climb or stand on the rear section of a ladder.
  • Always face the ladder when climbing up or down.
  • Non-slip footwear should be worn at all times when on a ladder.

For more helpful information or workplace safety training, please contact Western Growers Insurance Services.

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

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A Few Things You Should Know About Using Form I-9 Software

February 23rd, 2024

If you are an employer using private sector software products to electronically complete, modify, or retain Form I-9s, you should be familiar with U.S Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER) and U.S. Immigration and Customs Enforcement, Homeland Security Investigations (HSI) requirements for avoiding unlawful discrimination and other Form I-9 violations.

Electronic advances in Form I-9 compliance are an employer convenience. Nonetheless, it is important to keep in mind that using a Form I-9 software program does not guarantee compliance with federal law. Employers using such programs to electronically complete and retain the Form I-9 or participate in E-Verify, remain responsible for ensuring the software program’s compliance with:

  • Form I-9 legal requirements and HSI guidance.
  • E-Verify requirements and U.S. Citizenship and Immigration Services (USCIS) guidance; and
  • Prohibitions against unfair employment practices, enforced by the IER.

Under federal law, all U.S. employers must complete and retain a Form I-9 for each person they hire for employment in the United States.[i]

E-Verify is a USCIS provided voluntary web-based system that compares information from a Form I-9 to government records to electronically confirm an employee’s authorization to work in the United States.[ii]

Below are a few important reminders for those employers using third-party software programs for Form I-9 compliance. Key compliance requirements for administering the Form I-9 remain unchanged when using a software program. These requirements include the following:

  • Making sure that anyone who completes the Form I-9 has access to the most current version(s) of the Form I-9, including Instructions and Lists of Acceptable Documents (edition date 08/01/23)
  • The employee must complete Section 1 before the employer completes Section 2.
  • Employees with only one name must be allowed to enter their name in the last name field and enter “Unknown” in the first name field.

A major compliance requirement for accountability in completing, modifying, maintaining and retaining Form I-9 using a software program includes:

  • Making sure the program follows all electronic Form I-9 requirements relating to the integrity, accuracy, and reliability of the system; security and documentation; indexing; electronic signatures; retention; audit trails; location, retrieval, reading and reproduction abilities; as well as the ability to provide Form I-9 summary files (such as a spreadsheet) containing all the information fields on electronically stored Forms I-9 requested by an inspecting agency.[iii]

Employers participating in E-Verify using customized software to connect to the E-Verify system, must ensure the program complies with the following E-Verify requirements:

  • Providing prospective and newly hired employees with notice that the employer uses E-Verify consistent with applicable E-Verify requirements.
  • Providing Further Action Notices and Referral Date Confirmation letters in both English and relevant translated versions to employees with limited English proficiency.

For more information, including a full listing of HSI/IER compliance recommendations, review the  on the use of Form I-9 software programs.

[i] Employers can find a free, updated, and fillable Form I-9 at www.uscis.gov/i-9.

[ii] Employers enrolled in E-Verify should be familiar with all E-Verify obligations found in the E-Verify Memorandum of Understanding and E-Verify guidance.

[iii] Compliance requirements under 8 C.F.R. § 274a.2(e) – (i).

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Western Growers University: Management Workshop

February 22nd, 2024

Join us for a one-day workshop covering the basics of management and how to effectively manage your employees’ performance. This unique opportunity is a chance to build and refine your skills as a manager.

Effective Employee Performance Management

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.

Who should attend:
Business owners, HR professionals, managers, and supervisors.

Time:
8:00am – 10:00am

Management 101
This course thoroughly explores diverse business facets, crucial employment laws, and the indispensable skills necessary for proficient management. Acquire valuable insights into the qualities of a successful leader and master strategies to dodge common pitfalls encountered when transitioning from an individual contributor to a people manager. Prepared with this knowledge, you will step into your management role equipped with a defined plan, ready to adeptly navigate increased responsibilities and skillfully win your team’s confidence.

Who should attend:
Business owners, HR professionals, managers, and supervisors.

Time:
10:30am – 12:00pm

Details
Friday, February 23, 2024
8:00am – 12:00pm
JDB Pro Inc. dba Central West Produce
3250 Skyway Dr. Ste. 201 | Santa Maria, CA | 93455
2 Courses
English

Member pricing available. Learn more here.

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Direct Threat to Health and Safety – The ADA’s Rare Exception

February 23rd, 2024

The Americans with Disabilities Act of 1990 (ADA) and its amendments makes it unlawful to discriminate in employment against a qualified individual with a disability unless an exception applies. One of the rarest exceptions is one that relieves an employer of its obligation to provide a reasonable accommodation because doing so would create a direct threat to the health and safety of the individual and those around them. A recent case involving SkyWest Airlines illustrates a modern application of this rarest of exceptions.

In the case, Zimmerman v. SkyWest Airlines Inc., former employee Zimmerman sued the company for allegedly violating the ADA and the North Dakota Human Rights Act claiming a failure to accommodate, disability discrimination, and retaliation. The court ruled a “legitimate, nondiscriminatory reason” existed for the employer’s decision to terminate Zimmerman because he could not effectively communicate while performing his safety-sensitive job.[i]

After disclosing to SkyWest that he was deaf, Zimmerman initially failed to clarify that face-to-face communication was necessary for effective communication; something that could not always be assured in the ramp agent position. After a potentially serious accident was avoided[ii] SkyWest initiated the interactive process to engage with Zimmerman to determine if a reasonable accommodation(s) could be provided that would allow him to remain in the ramp agent position. After multiple conversations, receiving medical clarification from Zimmerman’s healthcare provider, and the employee’s rejection of an offer of a lateral move to an equivalent position that would consistently allow for face-to-face communication, SkyWest terminated Zimmerman because he could not perform the essential functions of his job without accommodation, and he posed a direct threat to employee safety.

What Does it All Mean?

There are many steps that must be taken before an employer can legitimately claim that an individual cannot perform the essential functions of a position with or without a reasonable accommodation. This is especially true when the claim is also based on the fact that continued employment in the position poses a direct threat to the health and safety of the individual and those around them.

The factors considered as a part of an assessment of ‘direct threat’ are 1) the duration of the risk, 2) the nature and severity of the potential harm, 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. In relying on this rare exception, several key points in the Zimmerman case worked in the employer’s favor and should be noted:

  • Despite having failed to initially clarify during the interview process whether Zimmerman could 1) perform the job of a ramp agent; and 2) how he would perform the job, with or without a reasonable accommodation, the employer made every effort to answer these questions once it became aware of the disability-related issues Zimmerman was having in performing the essential functions of the position.
  • During the interactive process the employer conducted an individualized assessment, taking into consideration the factors outlined above, and in cooperation with the employee’s healthcare provider, made a reasoned and well-informed decision; and
  • Once the employer determined that no effective reasonable accommodation would allow Zimmerman to perform the essential functions of the ramp agent job, it proposed a neutral lateral move that would eliminate any safety concerns and allow Zimmerman to continue working. This offer, and rejection of the offer by Zimmerman, were significant to the court.

[i] Hired as a part-time ramp agent, Zimmerman worked for a very short period before it became apparent a previously disclosed hearing disability impacted his ability to perform the essential functions of the job which included being able to effectively communicate with agents on the ramp.

[ii] Zimmerman almost ran over his supervisor with a belt-loader because he was unable to hear her shouts for him to stop.

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Best Practices: Wage and Hour Self-Audit, Part 1

February 23rd, 2024

Ensuring compliance with wage and hour laws is a cornerstone of responsible business management and employment law risk mitigation. This article, forming part of our ongoing series on employment practice self-audits, serves as the first installment of a two-part discussion on best practices for wage and hour compliance.

Defining Work Schedules and Payment Cycles

A crucial initial step involves the explicit definition and communication of work schedules and payment cycles to all employees. In California for example, employers have the flexibility to designate a workday as any consistent 24-hour period and a workweek as any fixed seven-day cycle, provided it is consistent for each employee.

Adherence to Payday Schedules

It’s imperative that paydays adhere to legal deadlines that follow the end of a pay period. Employers are required to establish a consistent payday schedule and, in places like California, must also display a notice detailing the pay schedule’s day, time, and location.

Detailed Wage Statements

Providing employees with comprehensive wage statements each pay period is a legal requirement. In California, for instance, these statements must encompass a range of specifics including gross wages, total hours worked (for non-exempt employees), piece rates if applicable, deductions, net wages, pay period, employee and employer identification details, applicable hourly rates for the pay period, accrued sick leave, and for piece-rate employees, detailed information on rest and recovery periods and nonproductive time. It’s advisable to retain these records for four years and not rely solely on third-party payroll services for record-keeping.

Accurate Employee Classification

Correctly classifying employees as exempt or non-exempt from overtime, and ensuring independent contractors meet certain criteria (like the ABC test in California), is vital to avoid expensive misclassification claims. Proper classification hinges on an actual assessment of an employee’s duties, beyond what’s listed in their job description, and meeting the minimum salary and salary basis requirements.

Overtime Compensation

For non-exempt employees, overtime compensation must align with legal standards, which, in states like California, tend to be more employee-friendly compared to federal law. Remember, overtime is calculated based on a nonexempt employee’s “regular rate” of pay, which means that production bonuses, attendance bonuses, commissions, shift differentials and other forms of non-discretionary compensation must be included.

Preventing Uncompensated Work

It’s essential to explicitly prohibit uncompensated work (i.e., off-the-clock work) as part of the company’s policies, with a focus on training managers to recognize and rectify any such occurrences. Regular audits of timekeeping records are necessary to verify the accurate recording of all hours worked.

By concentrating on these key areas, employers can lay down a robust foundation for legal compliance and mitigate against wage and hour and PAGA claims. Look forward to part 2, where we will explore additional strategies for ensuring wage and hour compliance.

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Western Growers University: Workplace Leadership

February 22nd, 2024

Join us for a one-day workshop covering trust in the workplace and how to have the tough conversations. This unique opportunity is a chance to build and refine your skills as a leader.

Building Trust in the Workplace
This course discusses the foundation for all relationships and trust. It is the basis for effective employee relationships, motivation, teamwork, decision-making, accountability, etc. Learn how to develop skills for building, maintaining, and extending trust to others. Discover thirteen techniques to help you manage your staff more effectively by cultivating healthy, trusting relationships.

Who should attend:
Business owners, HR professionals, directors, and managers.

Time:
8:00am – 10:00am

Having Tough Conversations
Are you struggling to give direct feedback and helpful corrections? In this session, you will learn how to structure conversations respectfully and productively. Discover seven tips on how to have difficult discussions that lead to more authentic, meaningful working relationships and increased performance.

Who should attend:
Business owners, HR professionals, managers, and supervisors.

Time:
10:30am – 12:00pm

Details
Friday, March 8, 2024
8:00am – 12:00pm
JDB Pro Inc. dba Central West Produce
3250 Skyway Dr. Ste. 201 | Santa Maria, CA | 93455
2 Courses
English

Member pricing available. Learn more here.

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2024 H-2A Meal & Travel Reimbursement Rates

February 15th, 2024

The Office of Foreign Labor Certification has published its annual update to allowable charges for temporary workers’ meals and for travel subsistence reimbursement, including lodging. These changes apply to all H-2A visa applications received on or after February 13, 2024.

New Allowable Meal Charges: In its job offer to U.S. and H-2A workers, the employer either must offer and state that it will provide each worker with three (3) meals a day or must state that it will furnish free and convenient cooking and kitchen facilities to the workers that will enable the workers to prepare their own meals. If the employer is going to provide the meals to the workers, the job offer must state the charge, if any, to the worker for such meals. The updated regulation stipulates that the allowable charge for meals provided to H-2A workers cannot exceed $15.88. Accordingly, until the Department publishes a new rate or approves a request for a higher amount by an employer, the maximum charge for meals should not be exceeded.

Transportation Subsistence Rates: The job offer must also detail the minimum and maximum daily subsistence amounts for workers traveling to and from the employment site. The established minimum daily subsistence rate for 2024 is set at $15.88, with the maximum rate capped at $59.00. Employers are obligated to cover, advance, or reimburse the subsistence expenses for workers who complete over 50 percent of the work contract period, including reasonable costs for lodging when necessary. Moreover, for workers who complete their contract or are terminated without cause, and have no immediate subsequent H-2A employment, employers must cover the subsistence expenses for the return journey. The reimbursement for transportation and lodging, where required, must reflect the most economical and reasonable costs.

All H-2A cases received on or after February 13, 2024, will have to list the rates below in the application.

For any further clarification or assistance, please do not hesitate to reach out to Western Growers H-2A Services or visit the official Federal Register website for more detailed information.

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Refusal to Engage With Disabled Employee Leads to $1.6 Millon Verdict

February 15th, 2024

A recent case brought by the Equal Employment Opportunity Commission (EEOC) emphasizes the importance of employer obligations to prevent disability discrimination in all aspects of employment including the hiring process. After just two hours of deliberation, a New York jury returned a landmark verdict of $1.675 million against McLane Northeast – a large facility distribution company – for discriminating against a deaf applicant.

The employer was found guilty of violating the Americans with Disabilities Act (ADA) by refusing to further consider a qualified applicant after learning she was deaf and thereafter refusing to hire her for one of two entry-level warehouse jobs.[i] In its defense, the company argued that the applicant was unqualified, failed to inform the company of any disability or request an accommodation. The jury was unpersuaded.

The ADA mandates that the definition of disability is to be construed broadly, in favor of extensive coverage, to the maximum extent permitted by the law.  Under the ADA, an employer may not ask a job applicant to answer disability-related questions, such as if they have a disability, or require them to take a medical exam, before extending a job offer. An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

Laws against disability discrimination (whether state or federal) protect disabled applicants/employees from generalized assumptions that they cannot perform the essential functions of the position sought with or without a reasonable accommodation. In the McLane Northeast case, once the employer became aware of the applicant’s disability during the initial interview it ceased all communications and continually ignored the individual’s resubmitted application. This failure to engage with the applicant was a key mistake that many employers make; presuming an inability to perform without engaging with the applicant or simply refusing to hire an individual with a disability without a showing of undue hardship.[ii]

Bottomline, when it comes to disability accommodation there are no magic words. Once an employer is aware of a disability, they cannot escape liability by placing the burden of engagement on the applicant/employee. They must interact with the individual within the guardrails provided by the applicable state/federal law to determine the true impact, if any, the disability has on the individual’s ability to perform the essential functions of the job sought.

[i] The applicant had a favorable initial interview conducted through a system that allowed the applicant to type in responses to questions that were relayed to the interviewer via a voice translator. At the end of the interview the applicant was told that someone from the company would follow up with her about the position. When no one from the company followed up with the applicant she resubmitted her resume.

[ii] Under the ADA an employer must provide a reasonable accommodation unless doing so would pose an undue hardship on the company,

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CA Court of Appeal Reverses CPRA Regulatory Enforcement Deadline

February 15th, 2024

A California Court of Appeal has reinstated the California Privacy Protection Agency’s (Agency) ability to enforce previously stayed California Privacy Rights Act (CPRA) regulations set to take effect March 29, 2024.

A lawsuit initiated by the California Chamber of Commerce in June 2023 challenged the Agency’s authority to initiate regulatory efforts alleging government overreach, conflicts with existing law, and the imposition of unnecessary burdens upon businesses. As a result, as discussed here, in July 2023, a County of Sacramento Superior Court stayed enforcement of CPRA regulations until March 29, 2024. The Agency immediately appealed and on February 9, 2024, the lower court ruling was overturned.

In overturning the lower court’s ruling, the Court of Appeal held that since there is no “explicit and forceful language” in the text of the CPRA, prohibiting enforcement of the CPRA until (at least) one year after the Agency approves final regulations, the trial court erred in concluding otherwise.

It is unknown whether this decision will be appealed to the California Supreme Court.

What Does it All Mean?

Reversal of the March 29, 2024, deadline allows for immediate enforcement of CPRA regulations.

The CPRA amended and expanded the California Consumer Protection Act (CCPA) by, among other things, giving consumers the right to correct inaccurate personal information collected by a covered business and to limit a covered business’s use and disclosure of “sensitive personal information” (e.g., social security number, racial or ethnic origin, religious beliefs, genetic data, precise geolocation) to specific identified purposes.

Employers subject to CCPA regulations should, if they have not already, complete the following steps toward compliance:

  • Inventory and map consumer data (e.g., employee and job applicant data).
  • Understand employer privacy obligations and finalize appropriate notices:
    • Providing notification to applicants, employees, and contractors as to the categories of personal information that is (or may be) collected by the employer.
    • Informing employees of their rights when it comes to access or restrictions on the use or disclosure of certain categories of personal information.
    • Informing employees of their rights when it comes to correcting or deleting personal information (subject to specific exemptions as applicable).
    • Informing employees about their right to request the personal information collected by the employer during preceding 12 months.
  • Add CCPA compliance training to existing supervisor training modules.
  • Given that further rulemaking is underway at the Agency concerning cybersecurity, employers should also begin internal assessments of risk factors associated with any sensitive data collected or maintained (e.g., employment-related data such as social security numbers and leave-related information).

Key to maintaining a privacy-compliant workplace will be the efforts made in keeping up to date with CCPA mandates and making sure they are tailored to the specific data collection and usage of the employer’s business.

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Best Practices: Part 2, Employment Records Self-Audit

February 15th, 2024

Building on our discussion about hiring practices, we now turn our focus to a critical yet often overlooked area: the self-audit of employment records. Proper management of employee files, time records, wage statements, and schedules is not just a matter of organizational efficiency; it’s a cornerstone of legal compliance and risk management.

Maintaining Confidentiality and Retention

First and foremost, it’s imperative that employee files, including time records, wage statements, and schedules, are maintained with the utmost confidentiality and retained for at least four years. This retention period safeguards against potential legal claims and ensures compliance with various federal and state laws. Employers should regularly review their record-keeping policies to ensure they align with current legal standards and best practices.

Standardized Forms for Employee Discipline

To manage employee discipline, write-ups, and attendance issues effectively, it’s crucial for managers to have access to set forms. These standardized documents help ensure consistency and fairness in disciplinary actions and provide a clear record of events, which can be invaluable in the event of disputes or legal challenges.

Documenting Absences and Tardiness

The method of documenting employee absences and tardiness should be clear, consistent, and fair. Whether it’s through digital time-tracking systems or manual logs, the process should be straightforward for employees to follow and for managers to review. This documentation plays a vital role in performance evaluations and can impact decisions regarding promotions, raises, and terminations.

Streamlining Documentation Processes

Ensuring the smooth flow of employee documentation and paperwork to Human Resources or the appropriate manager is essential for maintaining up-to-date records. Employers should establish clear protocols for the submission and review of such documents, which can include everything from H-2A job orders to performance reviews and disciplinary records.

Involvement in Disability and Leave Requests

When it comes to reviewing disability accommodation and leave requests, a collaborative approach is often best. Involving Human Resources, the employee’s direct manager, and possibly legal counsel can ensure that such requests are handled sensitively and in a legally compliant manner. This team approach helps in making informed decisions that comply with the federal Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), and the California Family Rights Act (CFRA) and Fair Employment and Housing Act (FEHA), among other relevant laws.

Conclusion

Conducting a self-audit of your employment records and processes is a proactive step toward mitigating risks and fostering a culture of compliance and respect in the workplace. By addressing these key areas, employers can not only protect themselves against potential legal issues but also build a stronger, more transparent relationship with their employees. Stay tuned for the next article in this series, where we will explore wage and hour issues.

 

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Western Grower & Shipper Magazine’s January/February Digital Edition is Available Now

February 14th, 2024

The January/February digital issue of the Western Grower & Shipper Magazine is available for online viewing.

The cover story “Stuart Woolf Takes Over as Chair of Western Growers” details the transition of leadership as Woolf assumes the role of Chair of the Board, succeeding Albert Keck.

President & CEO Dave Puglia offers insights on new leadership at the U.S. Food and Drug Administration (FDA) in his article “A New Way for the FDA,” noting that the fresh produce industry and the FDA together face the difficult challenge of further reducing the incidences of food borne illness.

Other articles include: “Farming, the Final Frontier,” “A Test is Never Just a Test: The Psychology of Foodborne Pathogen Testing,” “ALJ Narrows Focus to Process Issues Amidst Rising Tensions,” “Don’t Break What Works,” “The Importance of Compensation Benchmarks,” “Plastic Packaging Update” and “New Traceability Regulation: Is Two Years Plenty of Time?”

Find the full digital version of the January/February issue here.

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Western Growers University: Wage and Hour: What you Need to Know to be Compliant (Spanish)

February 13th, 2024

This course will carefully guide you through Fair Labor Standards Act (FLSA) requirements. Understand the specifics of how to classify and pay an employee correctly. Misclassification can lead to costly penalties and expose you to potential class action and PAGA claims. Educate your managers about wage and hour laws, set clear employee expectations, and avoid common miscalculations and record-keeping mistakes. Understand why it is essential to proactively identify potential issues before you face legal consequences.

Details:
Tuesday, March 26, 2024
9:00am – 11:00am
Virtual Webinar
2 hours
Spanish

Who should attend:
Business owners, HR professionals, managers, supervisors, and payroll administrators.

Register Here

Member pricing available.

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Western Growers Women in Coachella Valley

February 13th, 2024

Join Western Growers Women for an in-person event in the Coachella Valley. On Thursday, March 21st we will tour Hadley Date Gardens, enjoy a catered lunch, and attend a presentation by Dr. Tina Huff, of the Birkman Method, on “How to Juggle Multiple Hats”.

This is a not to miss event and a great way to be introduced to the Western Growers Women Program.

More Information

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