A Lesson in Arbitration

April 11th, 2024

The recent California case Vazquez v. Sanisure, Inc., provides an important lesson on one of the basic premises of arbitration; an arbitration agreement is tied to the underlying contract containing it and as such it can be revoked on the same grounds as exist for the revocation of any contract.

Initially hired by the company in 2019, employee Vazquez signed, as part of the hiring process, an agreement to “utilize binding arbitration as the sole and exclusive means to resolve all disputes that may arise from or be related in any way to [her] employment.” The agreement also included a class or collective action waiver and noted that any changes to the agreement could only be made in writing.

Vazquez terminated her employment in May 2021. Four months later she negotiated a new employment offer and returned to work. During negotiations the parties did not discuss whether Vazquez would be required to sign a new arbitration agreement or whether claims related to her employment would be subject to arbitration. Vazquez’s second stint of employment ended in July 2022.

In October of that year, Vazquez filed a class action suit alleging a failure to provide accurate wage statements during her second stint of employment. The employer requested Vazquez submit her claims to binding arbitration in accordance with the arbitration agreement she signed when initially hired in 2019. This attempt to compel the matter to arbitration was denied and a subsequent appeal was filed.

Ultimately, the Court of Appeal upheld the lower court’s denial finding that while an employer and employee can agree to arbitrate claims related to their employment relationship, termination of that relationship can revoke the arbitration agreement.

What Does It All Mean?

An arbitration agreement, absent language to the contrary, is applicable only to the current employment relationship. Under such circumstances, subsequent employment requires the parties to enter into a new arbitration agreement that will govern the renewed/subsequent employment relationship.

In other words, when there is no evidence that the parties agreed to arbitrate claims arising from a subsequent employment relationship, any claims arising solely from that subsequent relationship are likely not subject to arbitration.

 

 

 

 

 

 

 

 

Cal/OSHA Issues FAQs for Workplace Violence Prevention

April 11th, 2024

California Senate Bill 553  amended the California Labor Code to create new requirements for addressing workplace violence. These new requirements include a July 1, 2024 effective date for employers to establish and implement an effective Workplace Violence Prevention Plan (WVPP).

As discussed here, to assist employers in meeting this regulatory deadline, the California Division of Occupational Safety and Health (Cal/OSHA) released its downloadable Model WVPP. In addition to its model WVPP, Cal/OSHA has developed and recently released its Frequently Asked Questions about Workplace Violence Prevention in General Industry.

The FAQs cover topics such as:

  • Definition of terms related to workplace violence
  • Employer applicability (exceptions to specific employers or circumstances)
  • WVPP
  • Violent Incident Log
  • Training
  • Recordkeeping
  • Enforcement deadlines and future standard proposals and adoption

Key clarifications include:

  • Initial training on employer WVPP must be provided by the July 1, 2024 effective date; and
  • Employers are responsible for making sure their WVPP is not generic, but “specific to the hazards and corrective measures for each work area and operation.”

Employers should also be aware that Cal/OSHA continues to work toward developing new regulations on workplace violence prevention in accordance with SB 553. In addition, statutory mandates require Cal/OSHA to develop and submit a workplace violence prevention standard to the Occupational Safety and Health Standards Board no later than December 31, 2025. Thereafter the Standards Board is required to adopt the standard no later than December 31, 2026.

Keep updated on regulatory progress by visiting Cal/OSHA’s Advisory Meetings webpage.

 

 

Stuart Woolf Talks Almonds on this Week’s Voices of the Valley

April 9th, 2024

Almonds have been cultivated for thousands of years, and as it turns out, California is the largest producer of almonds globally, accounting for more than 80% of the world’s almond production.

In this episode of Voices of the Valley, Stuart Woolf, President and CEO of Woolf Farming & Processing and Chair of the Western Growers Board of Directors, joins Western Growers Communications Managers Michelle Rivera and Kara Timmins to talk about the wonderful world of almonds!

Listen to the full episode here.

To Be Disfavored by Sacramento

April 3rd, 2024

Sometimes we might feel that we are alone in California. The state legislature and regulatory agencies – spurred on by myriad special interests on the left, ranging from labor unions to environmental activists and others – moves from one new mandate on agriculture to another without pause and lacking any interest in the economic consequences to come.

But we are not alone, as the Wall Street Journal noted in a recent editorial that spotlighted Chevron’s decision to write down many of its California assets due to “continuing regulatory challenges.” It isn’t a small thing, given the economic output of Chevron and its competitors in California’s energy – rich regions, particularly Kern County.

In a comment letter to the California Energy Commission, one of the agencies with regulatory authority over energy production in the state, Andy Walz, President of Chevron’s Products Division, itemized the many state policies that have been layered on top of the state’s energy producers, drawing a conclusion that should be obvious to anyone who passed Economics 101:

California’s policies have made Chevron’s investments in its home state riskier than investing in other states, with projects being lower in quality and higher in cost. Chevron alone has reduced spending in California by hundreds of millions of dollars since 2022–California’s policies have made it a difficult place to invest so we have rejected capital projects in the state. Such capital flight reflects the state’s inadequate returns and adversarial business climate.

Walz goes on to note that Chevron has rejected and canceled capital projects – job – creating investments – due to “permitting challenges” and emphasizes that while the state’s policymakers may be attempting to drive petroleum production out of the state, its hostile policies will force companies like Chevron to reduce investment across their California portfolio, renewable energy included. That can’t be what Sacramento really wants, but that’s what happens when public policy is disconnected from economic reality.

Why would California legislators and regulators consign many thousands of their fellow Californians who work in energy – related industries to a bleak future of job cuts, regional economic stress and community disruption? Again feeling it necessary to memorialize the obvious, Walz writes that California’s “arbitrary attacks on a disfavored industry…signal to every industry, entrepreneur, manufacturer, and employer that California is closed for business.”

What struck me as I read all of this was the fact that without too much creative editing, one could easily swap out the words “Chevron” and “energy” and insert “farming” and “agriculture.” The result would be an accurate reflection of the truth of the indictment of California’s hostile policies “on a disfavored industry,” as Walz put it.

As with the energy industry, California presents natural advantages that attracted investment from the earliest days of our state’s history. That might lead policymakers in Sacramento to believe that because the land can’t move and the state’s Mediterranean climate exists nowhere else in the U.S., farming won’t leave. But the capital it takes to operate in California can be deployed elsewhere, and we’ve been seeing that increasingly in recent years.

With advancing plant breeding technologies, what is grown fresh in California can often be grown fresh in other states and countries and delivered to consumers with little or no difference in appearance, freshness and quality. And other places in the world present a very attractive offer: Ample water, labor and land along with national and regional governments that welcome agriculture investments and the jobs they create.

It is probably a safe bet that agriculture will continue to be a substantial contributor to California’s economy for now and perhaps for many years to come. The question is whether that contribution will increase or decrease, and if a decrease, what that means to real people in places like the Central Valley, the central coast and the desert regions.

We are left to posit two questions to California’s public policymakers: Is agriculture “disfavored” as a matter of public policy, and if so, why on earth would any government do that, and, do you understand the consequences you are forcing onto millions of Californians who are directly and indirectly intertwined with agriculture?

It’s not too late to turn this around. All it takes are elected leaders with the courage to reset their party’s relationship with the Californians who produce healthy foods for the world.

U.S. Court of Appeals Refuses to Enforce NLRB Finding of Unfair Labor Practices

April 4th, 2024

A U.S. Court of Appeals for the District of Columbia has refused to enforce a National Labor Relations Board (Board) finding of unfair labor practices calling out the Board’s rational as “nonsense.”

In the case Stern Produce Company Inc., v. NLRB the Court found the employer’s actions had not created the impression of surveilling union organizing activity nor risen to the level of retaliation against an employee for participating in unionization efforts.

The actions at issue were: 1) a text message sent by a supervisor to one of the company’s truck drivers letting him know that covering up the truck’s inward facing camera – even during a lunch break – was against company policy; and 2) the company’s issuance of a written warning (as opposed to a verbal warning) to another driver for the first-time offense of using “disparaging or abusive words, phrases, slurs, and negative stereotyping” in violation of company policy.

Initially deemed by an Administrative Law Judge (ALJ) as evidence insufficient to create an impression of surveillance and actions not motivated by union animus, the original ALJ decision was reversed by the Board.

On appeal to the D.C. Circuit, the decision was again reversed, with the Court calling out the Board’s explanation for its reversal concerning the text message as “nonsense…unsound… and misguided.”  The Court also found the Board’s reasoning concerning the company’s anti-union animus insufficient to support the allegation of retaliation. Specifically, “an employer’s simple animus” and “general hostility” toward the union are insufficient on their own to support a claim of anti-union animus; there must be something more to connect the employer’s animus to the adverse action.

What Does It All Mean?

Consistency in enforcement and discipline will be key components of an employer’s risk mitigation plan as it is likely we’ll see further expansive rulings by the Board.

Next Steps

A key takeaway from Stern is the emphasis the Court places on the employer’s consistent enforcement of its own policies and its reasonable justification for deviating from its progressive disciplinary policy. A few key points:

  • Make decisions according to company rules, policies, and procedures to assure consistency and avoid potential claims of discrimination.
  • Strive to be professional and maintain a professional working environment. Don’t allow personal feelings to influence the treatment of employees.
  • Observe the following by basing all decisions and actions as to all employees on:
    • Company policy and procedure.
    • Work performance, including quantity of work, quality of work and conduct at work.
    • Past practices in the same circumstance.
  • Don’t allow degradation of the work environment through lack of enforcement when it comes to overtly rude or unprofessional behaviors.

USCIS Fee Increase Lawsuit Denied

April 4th, 2024

A US district court has turned down a request to delay the start of new immigration fee increases scheduled for April 1. This request was made by a coalition of business groups and an EB-5 investor from Canada. They wanted to hold off on the new charges until their legal case was sorted out.

On January 31, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule in the Federal Register, revising fees for most immigration applications and petitions effective April 1, 2024. From April 1, 2024, fees for H-2A petitions will rise by 15% for unnamed workers and 137% for named workers, with the latter’s fee hitting $1,090 per petition and a 25-worker cap per petition. Smaller businesses and nonprofits face smaller increases, with a notable new $600 fee for certain employment-based petitions. Also, regarding Form I-129, Petition for a Nonimmigrant Worker, only the 04/01/24 edition will be accepted on or after this date, with no grace period for updates or fee adjustments.

On March 29, 2024, the District Court declined to issue a temporary restraining orders, so the April 1 effective date remains unchanged, and there is no grace period.

OSHA Finalizes Controversial Rule Authorizing Third-Party Representation During Inspections

April 4th, 2024

The federal Occupational Safety and Health Administration (OSHA) has finalized a new rule allowing workers to designate a third-party representative to accompany any OSHA inspector during a facility inspection. Because the rule does not require the representative to be a company employee or the facility to be unionized, the opportunity for union representatives to fill the role is concerning. As such, ahead of the rules effective date of May 1, 2024, employers should understand their rights when it comes to OSHA inspections. Below are a few key points:

1. Federal and State Rights. The new rule provides that “the representative(s) authorized by employees may be an employee of the employer or a third party.” The rule also authorizes a third party who – based on their relevant knowledge, skills, experience, language or communication skills – can assist OSHA during the inspection. However, neither of these provisions changes an employer’s Constitutional protections provided under Fourth Amendment or state property rights.

Such rights – absent a warrant – allow an employer to control how OSHA enters its property and the areas that may be accessed during an inspection. Insisting the inspector obtain or produce a warrant is well within an employer’s rights. However, doing so carries its own risks and rewards making it important for employers to seek legal counsel before making such a request.

Employers also retain the right to secure access to areas of the worksite containing trade secrets or other confidential information. This includes limiting access by non-OSHA personnel and insisting that any photos in these areas be marked as “trade secret.”

2. Update or Review Existing Inspection Procedures. Every worksite should have a written plan outlining the procedures that must be followed when an OSHA inspector arrives. Plans should designate a primary (and secondary) supervisory employee to act as the company’s contact person for the inspection. This individual will be responsible for accompanying the investigator throughout the inspection, except during interviews with non-supervisory personnel who do not request a manager’s presence. The contact person does not necessarily need to be the company’s safety manager, but the individual does need to be trained on inspection procedures and must be ready to take notes and their own photos, samplings and tests alongside those taken by the inspector.

3. Understand the Practicalities of an Inspection. OSHA Inspection plans should include a few practical tips and reminders such as:

  • Before an inspection begins it is permissible for the contact person to request that the inspector detail the scope of the inspection (e.g., the complaint(s) alleged, and the area(s) impacted).
  • It is permissible for inspectors to be accompanied by a company representative throughout the entire inspection. The company contact should be trained and confident in the knowledge that it is their job not only to accompany inspectors but to get them from one area to the next by the most expedient route. There is no requirement to allow access to areas considered outside the scope of the inspection.
  • It is permissible to prohibit interviews of managers or supervisors on the day of the inspection. Interviews cannot be flatly refused or postponed indefinitely, but nothing requires they be conducted on the day of the inspection.
  • On the day of the inspection employers are allowed to limit documentation provided to just the company’s OSHA 300 logs, 300A summaries, 301 forms, and relevant safety data sheets. Other documents may be required but need not be provided absent advanced notice.
  • Hazardous activities should be put on hold during the inspection.

4. Weigh – in Advance – the Risk of Refusing Access to Third-Party representatives. Before finalizing an inspection plan, employers should discuss with their legal counsel the risks associated with refusing to allow third-party representatives access alongside OSHA inspectors. Allowing the OSHA inspector but not third-party representatives could be interpreted by the OSHA inspector onsite as a complete refusal; even where the employer makes clear the prohibition applies only to the third-party. Even a perceived refusal could have the effect of requiring the inspector to obtain a warrant before proceeding. Since there are various risks associated with requiring a warrant before inspection, the issue should be discussed with counsel.

Having an inspection plan takes the guesswork out of OSHA inspections and gives designated company contacts the confidence they need to manage all aspects of the inspection from the outset and ensure the process goes as smoothly as possible.

Lawsuit Challenges DOL Independent Contractor Rule

April 4th, 2024

The U.S. Chamber of Commerce, alongside other business groups, has initiated legal action against the Department of Labor’s (DOL) latest regulation concerning the classification of workers as either employees or independent contractors. Filed on March 5 in the U.S. District Court for the Eastern District of Texas, the lawsuit challenges the rule that took effect on March 11, which revises the criteria used by the Wage and Hour Division to distinguish between employees and independent contractors under the Fair Labor Standards Act of 1938. This new rule is a departure from the definitions set by the 2021 final rule.

As discussed here, the contentious rule introduces a six-factor test for determining a worker’s status, focusing on aspects such as the worker’s chances for profit or loss, the permanency of the worker-employer relationship, and the degree of control exerted by the employer over the worker, among others.

Acting Labor Secretary Julie Su contends that this rule is intended to safeguard workers, particularly those most vulnerable to exploitation, by ensuring accurate classification. However, the U.S. Chamber of Commerce argues that this new rule muddies the waters, creating “confusion and uncertainty” in the classification process and potentially limiting the freedom of individuals to operate as independent contractors—a choice many make for the sake of flexibility, autonomy, and the chance to be their own boss.

On March 21, a resolution (H.J. Res. 116) to overturn the rule received approval from the House Education and the Workforce Committee and is currently up for review by the entire House. However the resolution is expected to face challenges in the Senate, which is under Democratic control.

U.S. Senators Laphonza Butler and Susan Collins Introduce the Specialty Crops Security Act of 2024

April 19th, 2024

On Thursday, the Specialty Crops Security Act of 2024 (S. 4168) was introduced by U.S. Senators Laphonza Butler (D-Calif.) and Susan Collins (R-Maine), which increases funding for the Specialty Crop Block Grant Program (SCBGP) and ensures specialty crop farmers have a say in how the funding is spent.

According to the press release, this legislation will “increase the United States Department of Agriculture’s (USDA) Specialty Crop Block Grant (SCBG) program authorization from $85 to $100 million per year and expand opportunities for specialty crop stakeholders to provide input into how program funding is used by state departments of agriculture.”

Speaking on the value of this act, Western Growers President & CEO Dave Puglia stated, “The Specialty Crop Block Grant Program is one of the few sources of dedicated federal funding for the fresh produce industry. This program can provide our specialty crop growers with opportunities for food safety research, workforce development and water supply innovation. To be effective, the Specialty Crop Block Grant Program must be as responsive to growers as possible. Western Growers supports the Specialty Crop Security Act, which will ensure the program can sufficiently meet the needs and priorities of our members.” Western Growers will advocate for S. 4168 to be included in Congress’s reauthorization of the Farm Bill, which is due this September.

In the announcement, Senator Butler commented on the importance of California growers and the need for their voice: “California’s farmers produce nearly half of the country’s specialty crops and they deserve a seat at the table when state departments of agriculture make decisions about how to allocate funding that directly impacts them.”

The full bill text can be found here.

How to Make Future Salary Decisions within Context and with Confidence

April 17th, 2024

Human Resources departments require tools and information to support their organizations. These decisions can strengthen a corporate structure for years to come.

For the agricultural industry to stay competitive, it requires specialized insight to make data-based decisions. The Compensation Survey is an annual report created with collective contributions from Western Growers members to support other growers.

The circuit of participation and utilization of this information strengthens the process and the industry with every additional contributing company.

That’s one of the reasons the report is free to those who supply compensation data.

All data is collected by the third-party company Industry Insights, so all information remains confidential.

The opportunity to participate is closing at the end of April. If you’re in a management or human resources role, this report will tell you where the industry stands on compensation ranges for roles like executive, sales and marketing, plant and office and field workers.

If you want more information on how to participate, email [email protected], Karen Timmins at [email protected] or visit agsalary.com.

Western Growers Next-Gen Ag Students are Ready for Internship Opportunities

April 16th, 2024

Are you ready to hire an intern?

In a coordinated effort between Western Growers and growers to identify key skill needs within fresh-produce agriculture, students throughout California have completed industry-specific college-level coursework. Students who have acquired the number of credits to qualify for internships are now ready for opportunities. Western Growers is also offering to offset internship costs by reimbursing $3,000 of a hired intern’s salary (about 40%).

Find the WGA Member Internship Request form here.

For more information, contact Carrie Peterson at [email protected] or (209) 602-4288.

Using Telematics to Bolster Fleet Safety Culture

April 10th, 2024

In the realm of commercial driving, telematics continues to emerge as a vital tool for enhancing safety on our roads. However, it’s crucial to recognize that while telematics offers valuable insights into driver behavior and vehicle performance, it alone cannot transform driver habits. A holistic approach as part of a comprehensive fleet safety program is necessary, one that integrates telematics with tailored driver training and proactive intervention strategies.

Tailored driver training emerges as a cornerstone in this comprehensive approach to commercial driving safety. By addressing specific risks and challenges encountered across different vehicle types and industries, training programs empower drivers with the skills, knowledge and awareness needed to make informed decisions on the road. Moreover, collaboration among stakeholders—including fleet managers and drivers—is essential to effectively leverage telematics data and implement intervention strategies that address risky behaviors and improve compliance with safety standards.

Ultimately, the true potential of telematics in enhancing safety within the commercial driving sector lies in its integration with comprehensive training and proactive intervention strategies as part of an employer’s fleet safety program. By combining data-driven insights with targeted training and collaborative efforts, employers can create a safer environment on our roads. Telematics, when used judiciously as part of a broader approach, holds the promise of revolutionizing safety in commercial driving, paving the way for a more secure and efficient future.

With April 2024 being designated as Distracted Driver Awareness Month by the National Safety Council (NSC), it’s an opportune time for employers to review and update their existing vehicle fleet safety programs and consider how telematics might bolster their vehicle safety efforts. Employers interested in exploring telematics or dashcams as a solution to supplement their fleet safety program should contact Western Growers Insurance Services to discuss available options.

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 Risk Strategy for Western Growers Insurance Services, at [email protected].

Lieutenant Governor Eleni Kounalakis Meets with Western Growers Board of Directors

April 9th, 2024

California Lieutenant Governor Eleni Kounalakis met with the Western Growers Board of Directors at the board meeting held in Sacramento, Calif. on April 8, 2024.

Kounalakis spoke to the Board during lunch before the group went to meet with legislators at the Capitol.

Pictured: Stuart Woolf, President and CEO of Woolf Farming & Processing and Western Growers Board of Directors Chair;
Eleni Kounalakis, Lieutenant Governor of California; and Dave Puglia, President and CEO of Western Growers

 

The Western Growers Board of Directors also had the opportunity to meet with California’s Natural Resources Secretary Wade Crowfoot on April 9, 2024.

The Board welcomed CDFA Secretary Karen Ross to dinner, where she delivered remarks about the resilience of California agriculture.

CONTACT Webinar The Traceability Rule: How to Prepare and What to Expect from Buyers on April 16

April 11th, 2024

CONTACT will be hosting The Traceability Rule: How to Prepare and What to Expect from Buyers webinar on April 16, 2024, from 12:30-2:00 p.m. PDT.

The webinar will feature Natalie Hunter and Erik Larsen, traceability advisors with New Era Partners.

This event is free to attend and will be held on Zoom. Register here.

 

Megan Kavanaugh from Bio S.I. Talks About the Amazing World That Exists in the Soil on Voices of the Valley

April 3rd, 2024

A farmland landscape may not make many people think of a place rich in scientific research and discovery, but it should!

In this episode of Voices of the Valley Megan Kavanaugh, VP of Science and Agronomy at Bio S.I., talks about the life and activity happening in the soil with Western Growers Jeana Cadby, Director of Climate and Sustainability, and Kara Timmins, Communications Manager.

Listen to the full episode here.