A Lesson from the California Supreme Court on Compensable Time

March 28th, 2024

A recent California Supreme Court ruling clarifies California’s Industrial Welfare Commission (IWC) Wage Order (WO) requirements entitling employees to at least minimum wage compensation for all “hours worked.”

In the case Huerta v. CSI Electrical Contractors , the Court focused on three specific questions centered on the applicability of the term ‘hours worked’ as found in WO #16.  Although WO #16 does not govern agriculture, the term ‘hours worked’ is similarly defined in all wage orders regardless of industry. The Court’s findings are therefore worth taking note of as they can be applied to similar situations across a wide array of industries/occupations, including agriculture.

Questions Addressed by the Court and its Findings:

1. Compensability of Time Spent Undergoing Employer-Mandated Exit Procedure:

  • The first question addressed by the Court was whether employee time spent on the employer’s premises awaiting/undergoing employer-mandated exit procedures is compensable as “hours worked.”
  • The Court found that employees awaiting/undergoing such procedures (e.g., time spent waiting to scan identification badges, performing vehicle inspections and then exiting a security gate) are entitled to compensation for “hours worked” as that term is defined under the applicable WO.
  • With limited exception, across all WO’s, ‘hours worked’ is defined as “the time during which an employee is subject to the control of an employer and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

2. Compensability of Travel Time:

  • The second question before the Court concerned ‘employer-mandated travel’ under WO #16 as well as ‘hours worked.’ The question was whether time spent on the employer’s premises in a personal vehicle, driving between a Security Gate and the employee parking lots, while subject to certain rules from the employer, is compensable as ‘hours worked’ or as ‘employer-mandated travel’?
  • The Court found that travel time between the Security Gate and employee parking lots is compensable as “employer-mandated travel” under section 5(A) of Wage Order No. 16 under certain circumstances (e.g., if the Security Gate is the first location where the employee’s presence is required for an employment-related reason). However, ordinary workplace rules (such as those under WO #14) imposed during travel do not render this time as “hours worked.”

3. Compensability of Unpaid Meal Periods:

  • The third and final question was whether time spent on the employer’s premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities, is compensable as ‘hours worked’ within the meaning of the WO or under California Labor Code Section 1194, when that time was designated as an unpaid ‘meal period’ under a qualifying collective bargaining agreement?”
  • According to the Court, even if covered by a collective bargaining agreement providing for unpaid meal periods, time is compensable if the employer prohibits the employee from leaving the premises or designated area during the meal period, thereby preventing the employee from engaging in personal activities.

What Does It All Mean?

No matter the WO at issue, the Court’s ruling emphasizes the need to ensure that employees are accurately compensated for all hours worked, including time spent undergoing exit procedures and traveling between multiple sites on the employer’s premises. To accomplish this goal, agricultural employers should familiarize themselves with WO #14 covering agricultural occupations (or WO’s #8 [Industries Handling Products After Harvest] and #13 [Industries Preparing Agricultural Products for Market, on the Farm]); their definitions, rules governing hours and days of work, minimum wage requirements, reporting time pay, meal and lodging rules, and meal/rest period mandates.

Cal/OSHA Indoor Heat Regulation Limbo – What Now?

March 28th, 2024

As discussed here, on March 22, 2024, the Cal/OSHA Standards Board took an unexpected step by unanimously approving an indoor heat illness prevention regulation. The approval has left California employers in a precarious state of limbo. What happens next?

Over the next 30 working days, the California Office of Administrative Law (OAL) must review the rulemaking record to ensure agency requirements to pass the rule were satisfied. Depending on the outcome of this review it will either approve the rule for filing with the Secretary of State or reject it and send it back to be re-introduced for a revote.

What Does it All Mean?

Despite a likely circuitous route to finalization, preparation is the best course of action.  The best place to begin is to become familiar with the proposed rule. A few key points are outlined below.

For employers with indoor work areas where the temperature equals or exceed 82 degrees Fahrenheit when employees are present, the proposed rule would add the following requirements:

  • Cool-Down Areas: The term “cool-down area” in the regulation is used in lieu of the term “shade” to clarify that a cool-down area can be indoors or outdoors. This area must be maintained at a temperature below 82 degrees, blocked from direct sunlight, and shielded from other high radiant heat sources. In addition, employers will be required to allow and encourage employees to take preventative cool-down rests when they feel the need to do so to protect themselves from overheating.
  • Provision of Water: This requirement to provide water in indoor cool-down areas is to harmonize with existing drinking water requirements for outdoor hear illness protection and to ensure quick access to drinking water as a means of controlling heat illness. Specific water quantities are provided to ensure quantities sufficient to maximize the effectiveness of drinking water as a measure to prevent heat illness.
  • Training: This provision requires that supervisory and nonsupervisory employees be provided certain information before beginning work, including:
    • The role environmental and personal risk factors play in exacerbating the risk of heat illness;
    • A description of the employer’s procedures and employees’ rights;
    • An explanation of the importance of drinking small quantities of water frequently;
    • The importance of acclimatization and close observation;
    • The signs and symptoms of heat illness along with the appropriate first aid and the importance of immediately reporting signs and symptoms;
    • The employer’s procedures for responding to possible heat illness and for contacting emergency services; and
    • The employer’s procedures for ensuring that clear and precise directions are provided to emergency responders.
  • Emergency Response Procedures: Emergency response procedures must include maintaining effective communication; responding to signs and symptoms of possible heat illness; contacting emergency medical services; and ensuring that clear and precise directions to the work site are provided to emergency responders.
  • Observation During Acclimatization: Requires close observation of all employees where no effective engineering controls are in use to control the effect of outdoor heat on indoor temperature during a heat wave. The regulation identifies the trigger temperature or heat index that requires close observation of an employee who has been newly assigned to a work area, or work involving the use of clothing that restricts heat removal, or a high radiant heat area.
  • Heat Illness Prevention Plan (HIPP): Employers must establish, implement, and maintain an effective HIPP that is available in both English and the language understood by the majority of the employees and be available at the worksite to employees and to representatives of Cal/OSHA upon request. At a minimum, the HIPP must include:
    • Procedures for the provision of water and access to cool-down areas;
    • The assessment and control measures of work areas;
    • Emergency response procedures; and
    • Close observation during acclimatization.

Lawsuit Challenges USCIS Fee Hikes

March 28th, 2024

A recent legal challenge has been mounted against the U.S. Citizenship and Immigration Services (USCIS) over its decision to significantly hike immigration filing fees, a move that could impose considerable financial burdens on H-2A employers. The new rule, set to take effect on April 1, 2024, introduces a 15% increase for unnamed H-2A workers, raising the filing fee from $460 to $530 per petition. More strikingly, the fee for named H-2A workers will see a 137% surge, jumping from $460 to an unprecedented $1,090 per petition, with a limit of 25 named workers for each H-2A petition. Smaller entities, including businesses with 25 or fewer employees and nonprofit organizations, face a more modest increase; the fee for unnamed H-2A workers remains at $460, while named H-2A worker petitions will incur an 18% fee increase to $545 per petition. Additionally, a new $600 Asylum Program Fee will be levied on certain employment-based immigration petitions, including H-2 petitions.

The lawsuit, spearheaded by several industry groups, aims to halt the implementation of the new fees, arguing that they were established without proper rulemaking procedures and impose unjust financial burdens on specific petitioner categories.

As of this writing, the fee increases are scheduled to go into effect on April 1. As the legal proceedings unfold, a ruling is expected that could delay or modify the impending fee increases.

Pinnacle Kicks Off Broker Success Summit Series in Fresno

March 27th, 2024

More than two dozen brokers gathered at Pinnacle Claims Management’s Broker Success Summit in Fresno this week. The event, held at the Table Mountain Casino Resort, was designed to connect and empower brokers with tools and strategies to grow their business and learn more about the benefits of partnering with Pinnacle.

Presenters included Kyle Gerdts, VP of Sales and Account Management for Pinnacle; Don Anderson, VP, Pharmacy Benefit Management & Clinical Services for PinnacleRx Solutions; Martin Lutzeier, Regional Vice President, Anthem Blue Cross; and Kelly Liebman, Senior Vice President of Sales, Rightway Healthcare.

Following the presentations, attendees were invited to engage and interact with several kiosks and displays that showcased a Rightway Healthcare prototype, a Price is Right Edition for Pinnacle’s Mexico Cross-Border program, analytics reporting dashboard Springbuk and a PinnacleRx Solutions Savings Calculator. Brokers also had the opportunity to preview Pinnacle’s latest Self-Funding Design Lab, giving them the ability to craft tailored solutions to optimize plans, visualize cost-savings and maximize value for their clients.

Pinnacle will be holding additional broker events in Arizona and Southern and Northern California in the coming months.

For more details on future events, please contact Kyle Gerdts at [email protected].

California Ag Coalition Lodges Objections Regarding New H-2A Notice

March 21st, 2024

The California agricultural community, represented by Western Growers and a coalition of labor law attorneys and agricultural associations, has formally expressed their concerns regarding the Department of Industrial Relations’ (DIR) new Supplemental Notice related to the H-2A visa program. The letter submitted by the coalition focuses on several pivotal issues that could significantly impact both employers and H-2A workers in the agricultural sector. Below is a summary of the principal concerns raised by the coalition.

Compensable Travel Time: The coalition is concerned about the interpretation and enforcement of compensable travel time under the new notice. The language in the Supplemental Notice about what constitutes compensable travel time is inconsistent with state law and could lead to confusion and potential legal disputes.

Meal Periods: The provision of meal periods as outlined in the Supplemental Notice misstates the law on the requirements for providing meals.

Paid Sick Leave: The requirements for paid sick leave as described under the new notice are potentially more onerous than required and exceed state mandates.

Provision of Meals: The specifications for the provision of meals to H-2A workers, as detailed in the Supplemental Notice, are another point of contention. The coalition is concerned that the requirements as stated in the notice potentially conflict with the U.S. Department of Labor’s interpretation of the H-2A regulations.

Housing Rights: The coalition also raised significant concerns regarding the housing rights of H-2A workers as outlined in the new notice. The Supplemental Notice states that H-2A employees are “tenants” utilizing H-2A housing, which is contradicted by state law.

Listing of NGOs: The Supplemental Notice inappropriately lists several non-governmental organizations (NGOs) as resources, including UFW, CRLA, and other organizations that are adversarial to agricultural employers, and is not an element required by AB 636, the law that was enacted to require the notice.

In addition to the letter, the Coalition submitted proposed revisions to the template notice that incorporates the changes requested in the letter.

We extend our gratitude to Rebecca Hause-Shultz from Fisher Philips, Carl Borden of the California Farm Bureau, Carmen Ponce with Tanimura & Antle, Jeanne Malitz from MalitzLaw, Jason Resnick of Western Growers, and Rob Roy, Ventura County Ag Association, for their invaluable contributions and collaborative efforts in addressing this critical issue, and many others who supported this effort.

To date, no response has been received from the DIR. Pursuant to AB 636 which amended Labor Code section 2810.5, commencing March 15, 2024, an employer of an H-2A employee admitted “shall comply … by giving workers a copy of the template developed by the Labor Commissioner…” (emphasis added). As of now, it is recommended that H-2A employers provide the current Supplemental Notice unless and until it is amended.

Best Practices: OSHA Complaints/Inspections

March 21st, 2024

Representatives of the U.S Occupational, Safety and Health Association (OSHA) as well as Cal/OSHA and Arizona’s ADOSH are authorized to inspect the workplace whenever they have reason to believe an employee may be in danger due to employment hazards.  Complaints of workplace hazards can manifest in several ways, but employee complaints are the most common. Below are a few key points when it comes to understanding employee-initiated OSHA complaints and how to handle inspection visits.

Employee Initiated Complaints

Employees have the right to submit complaints if they encounter safety or health hazards in the workplace. These complaints often involve ongoing issues that affect employee well-being. Common safety and health hazards include:

  • Unsafe Working Conditions: Employees can report hazardous conditions such as faulty equipment, inadequate safety measures, or lack of proper training.
  • Health Risks: Complaints related to exposure to harmful substances, poor ventilation, or inadequate personal protective equipment fall under this category.
  • Physical Hazards: These include risks like slippery floors, electrical hazards, or unsafe machinery.
  • Ergonomic Concerns: Employees can complain about uncomfortable workstations, repetitive strain injuries, or improper lifting techniques.

Employees who believe they have faced retaliation from their employer for raising safety or health concerns can also file complaints with OSHA. Retaliation may take various forms, such as:

  • Adverse Employment Action: If an employer takes adverse actions (such as termination, demotion, or reduced hours) against an employee for reporting hazards, it constitutes retaliation.
  • Intimidation: Threats, harassment, or creating a hostile work environment due to safety complaints are unacceptable.
  • Reduced Benefits or Pay: Retaliatory measures may include reducing benefits, pay, or denying promotions.

Handling Inspection Visits

OSHA inspectors often visit workplaces unannounced, typically during regular hours. Employers are advised to establish inspection procedures due to the unpredictable nature of these types of visits. Here are a few key steps to effectively interact with inspection officers:

  1. Upon arrival, instruct all employees to direct the inspector to a designated representative.
  2. Inform the inspector to wait for the company’s designated representative, typically the safety coordinator or plant manager. All managers should be notified of the inspector’s presence.
  3. If the designated representative is unavailable within 30 to 60 minutes, inform the inspector. Respectfully suggest rescheduling the inspection.
  4. If the representative is available, allow the inspector to conduct the opening conference. An employee representative may also attend.
  5. During the opening conference, ask the reason for the inspection and attempt to limit its scope.
  6. The inspector will initiate the investigation after the opening conference.
  7. The designated representative should accompany the inspector throughout the inspection, except when the inspector wishes to speak to employees privately.
  8. Employees should always answer inspection-related questions courteously and directly.
  9. The inspector may take samples and photographs; with trade secrets subject to confidentiality provisions.
  10. Keep a record of the inspection’s scope, interactions, and observations.
  11. Request a closing conference after the inspection. Multiple company representatives should attend.
  12. Prepare a report of the inspection marked “For Legal Review” and send it only to legal counsel for attorney-client privilege. Keep copies confidential.

What Does It All Mean?

Employers should strive to take employee complaints seriously and address safety and health concerns promptly. At every opportunity encourage open communication, provide proper training, and create a safe work environment to prevent hazards and potential retaliation.

Remember, a proactive approach to safety benefits both employees and the organization.

“Uncharted Territory”: The Controversial Passage of Cal/OSHA’s Indoor Heat Standard

March 21st, 2024

In a surprising turn of events, the Cal/OSHA Standards Board took an unexpected step by unanimously approving an indoor heat illness prevention regulation, despite being advised to delay the vote. This decision thrust the Board into what Autumn Gonzalez, the Board Chief Counsel, described as “uncharted territory.” The backstory to this circus of a hearing is as intriguing as the decision itself.

The controversy began when the California Department of Finance (CDF) withdrew its endorsement of certain sections of the Standardized Regulatory Impact Assessment, which is essential for the enactment of any new regulation. The withdrawal specifically targeted sections evaluating the financial impact on public institutions and, by extension, the taxpayers.

This development set the stage for a dramatic series of events at a meeting in San Diego, where labor advocates and activists were anticipating the ratification of the regulation they had long championed. Their response to the unexpected setback was swift and disruptive. Protesters vocally and noisily expressed their disapproval, bringing the meeting to a standstill until law enforcement intervened. Then an exasperated Board Chair, David Thomas, gaveled out and called the meeting “adjourned.” Later, after a number of citizens had departed the venue, the Board reconvened.

The Board decided to proceed with the vote over CDF’s objections. That decision plus the vote having taken place after the Chair struck the gavel to adjourn the meeting has raised significant questions about its legality. The future of the regulation remains uncertain. An emergency meeting of the Board might also be on the cards to finalize the standard before the current rulemaking period concludes in April. If not resolved by then, Cal/OSHA would be forced to return to square one on a regulation that has been in development since 2012, with the possibility that the fiscal analysis resubmission could extend beyond the April deadline.

Despite the regulatory hurdles and contentious atmosphere, the indoor heat illness prevention standard was passed. However, questions linger about its effect and the implications of the Board’s unconventional decision.

Bari Weiss to Keynote PAC Luncheon at Western Growers 2024 Annual Meeting

March 19th, 2024

Award-winning journalist and author Bari Weiss will be the PAC Luncheon speaker during the Western Growers 2024 Annual Meeting, which is set for Nov. 3-6 at the JW Marriott Scottsdale Camelback Inn Resort and Spa in Scottsdale, Arizona.

Bari is the founder and editor of The Free Press and host of the podcast Honestly. She is an ardent believer that the free exchange of ideas is central to a democratic society, which ultimately led to her resignation as opinion writer and editor at The New York Times in 2020. Before that, she was an op-ed and book review editor at The Wall Street Journal and a senior editor at Tablet Magazine.

Bari has won several awards, including the LA Press Club’s 2021 Daniel Pearl Award for Courage and Integrity in Journalism, the Per Ahlmark award in recognition of her moral courage and Reason Foundation’s 2018 Bastiat Prize, which honors writing that “best demonstrates the importance of freedom with originality, wit, and eloquence.” In 2019, Vanity Fair called Bari the Times’s “star opinion writer.”

Bari is a proud Pittsburgh native. Her first book, “How to Fight Anti-Semitism,” was the winner of a 2019 National Jewish Book Award.

A premier gathering for agricultural industry leaders, the Western Growers Annual Meeting promises unparalleled networking opportunities, distinguished speakers and world-class entertainment.

Visit the Annual Meeting website at wgannualmeeting.com, where we’ll be adding frequent updates, including registration information, keynote speakers, sponsorship opportunities and more.

Registration opens in May.

Farmworker Unionization Faces Legal Challenge Amidst Allegations of UFW Deception

March 19th, 2024

A dispute has erupted between the United Farm Workers (UFW) and Wonderful Nurseries LLC in Wasco over the unionization of over 600 employees. The Agricultural Labor Relations Board’s (ALRB) Regional Director’s decision to certify the UFW’s majority support petition (card check) has been challenged by Wonderful, alleging that workers were misled into signing union support cards under the impression they were applying for federal benefits.

One hundred forty-eight workers, or over one-third of the workers whose names appeared on “authorization cards,” submitted sworn statements to the ALRB claiming that the UFW misled them about the purpose of the cards they signed. Most of these employees said they believed they were applying for a $600 COVID-19 relief payment for agricultural workers, funded by a USDA grant program, not expressing a desire to join the union. Furthermore, these workers explicitly stated they had no intention of voting for the UFW, accusing the union of deceitfully acquiring their signatures under the guise of facilitating access to the relief funds.

Despite objections from Wonderful and sworn statements from employees wishing to withdraw their purported support for the union, the Regional Director confirmed the UFW’s representation. This decision has sparked considerable debate over the fairness of the card check procedure authorized by Gov. Gavin Newsom in late 2022 and amended shortly thereafter by AB 113. The law enables the UFW to circumvent traditional secret ballot elections, raising concerns about the integrity of the unionization process. The ensuing legal conflict and claims of deceit highlight the validity of earlier worries regarding the protection of workers’ rights and the equitable enforcement of the card check framework.

Previous versions of similar legislation were vetoed by Governor Newsom in 2021, and before him by former Governors Arnold Schwarzenegger in 2009 and Jerry Brown in 2011, due to concerns about undermining secret ballot elections. In his 2021 veto message for AB 616, authored by Assemblyman Mark Stone, Governor Newsom pointed out “various inconsistencies and procedural issues related to the collection and review of ballot cards.” These concerns have manifested in the initial certifications under AB 113, demonstrating the practical implications of the issues Newsom and the former governors highlighted.

Voices of the Valley Available to Stream on YouTube and Spotify

March 13th, 2024

Exciting news for fans of Voices of the Valley! The podcast is back with a fresh new look and is now available for streaming on both Spotify and YouTube.

In this season’s debut episode, “2024 Look Ahead: Agriculture’s Biggest Challenges,” Center of Innovation and Technology Director Dennis Donohue and Environment and Climate Director Jeana Cadby lead a compelling discussion on the industry’s most pressing issues. From addressing challenges in innovation to navigating the complexities of environmental sustainability, this episode provides invaluable insights into the strategies that are driving progress in the agriculture industry.

In the second episode of the new season, “Do You Really Know Where Your Food Comes From,” listeners join Celeste Alonzo of Junior Enterprises and Western Growers’ Social Media Manager Julia Nellis. This episode sheds light on misconceptions within the fresh produce industry, unraveling the complexities behind food production and distribution.

2024 LGMA Amendment Process Update: Priority Setting

March 13th, 2024

During the month of February, Western Growers facilitated the California LGMA priority setting process. The priority setting process consisted of five main steps:

  1. Selection of the Priority Setting Committee: A committee of nine participants, representing California, Arizona, LGMA staff, industry and academia, was chosen to lead the priority setting process.
  2. Topic Submission: 11 priorities were submitted by stakeholders for evaluation.
  3. Discussion Meetings: In-depth discussions were held to explore each priority’s implications and feasibility.
  4. Priority Voting: Following discussions, the committee voted to determine the most critical priorities.
  5. Priority Selection: Two key priorities have emerged from this process:
    1. Ag Water Standards
      1. Review of Type B to A water standards.
      2. Review variable water quality and sampling standards as they relate to generic E. coli.
    2. Harvesting Equipment Sanitation
      1. Harvest Equipment Sanitation – review key changes (initial process as part of a long-term effort)

For more information, visit leafygreenguidance.com. You can also access the Priority Setting report.

What’s Next?

Priority Working Group: Western Growers will facilitate industry representatives and subject matter discussions to generate comments and propose changes aligned with the selected priorities.

30-day Comment Period: Western Growers will open a 30-day comment period, inviting stakeholders to contribute their insights.

Web-based Discussion: After the comment period, a web-based discussion will be hosted to allow submitters to present their proposals and engage in constructive dialogue.

Save the Date for the 2024 Western Growers Annual Meeting

March 12th, 2024

Mark your calendars! We are pleased to announce the 98th Western Growers Annual Meeting will be held at the JW Marriott Scottsdale Camelback Inn Resort and Spa on November 3-6, 2024.

Set against the stunning backdrop of Scottsdale, Arizona’s expansive desert landscape, this premier gathering for agricultural industry leaders promises unparalleled networking opportunities, distinguished speakers and world-class entertainment.

Please be sure to visit the Annual Meeting website at wgannualmeeting.com, where we’ll be adding frequent updates, including registration information, keynote speakers and more.

New NLRB Joint Employer Final Rule Struck Down by Federal Court

March 14th, 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 rescinded the Board’s prior rule enacted in 2020 (“2020 Rule”) and instead set forth a new test expanding the circumstances under which an employer is deemed a ‘joint employer.’

Legal challenges saw the new rule’s effective date pushed back multiple times from December 26, 2023, to February 26, 2024, and then to March 11, 2024.  On March 8, 2024, a U.S. District Judge of the Eastern District of Texas vacated the new Final Rule finding the Board’s attempt at recission unlawful as well as arbitrary and capricious.  This decision restores the 2020 Rule.

What is the 2020 Rule?

In 2020, the Board issued a final rule (“2020 Rule”) under which one entity can be considered a joint employer of another entity’s employees only if it exercises actual “substantial direct and immediate control” over the employees’ essential terms and conditions of employment (i.e., wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction) in a manner that is not sporadic and isolated. In other words, indirect control – or the reserved but unexercised right to control – is not considered sufficient to establish a joint-employer relationship.

It is unknown 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.

EEOC Releases Data Dashboard for Pay Data Collection

March 14th, 2024

On March 12, 2024 the U.S. Equal Employment Opportunity Commission (EEOC) made available its new  data dashboard featuring the first-time collection of 2017 and 2018 pay data reported by about 70,000 private employers and certain federal contractors with 100 or more employees each year, representing over 100 million workers.

The dashboard contains aggregated employer-level workforce demographic and pay data, reported by pay band. EEOC’s aggregation of the data protects the confidentiality of employees and employers.

According to the EEOC, employers can use the dashboard across various industries, employers, and individuals to assess generally how their own pay data by sex and race compares to others in their industry, job category, or state.

Results from the time period include:

  • Overall: In 2018, the national median pay band for men was one pay band higher than the median pay band for women ($39,000 to $49,900 compared to $30,600 to $38,900), and in 2017, it was two pay bands higher ($39,000 to $49,900 compared to $24,400 to $30,600).
  • Race and Ethnicity: In 2018, in each race and ethnicity category, women were in a lower median pay band than men of the same race or ethnicity, with Black or African American women and American Indian or Alaska Native women in the lowest median pay band of all groups ($19,200 to $24,400).

CDC Updates COVID-19 Recommendations

March 14th, 2024

The U.S. Center for Disease Control and Prevention (CDC) has updated its recommendations for how people can protect themselves and their communities from respiratory viruses, including COVID-19. The update addresses risks from a range of common respiratory viral illnesses, such as COVID-19, flu, and RSV.

When sick with a respiratory virus, the CDC’s updated guidance recommends staying home and away from others. For people with COVID-19 and influenza, the recommendations suggest returning to normal activities when, for at least 24 hours, symptoms are improving overall, and if a fever was present, it has been gone without use of a fever-reducing medication.

Once normal activities are resumed, CDC encourages additional prevention strategies for the next 5 days to curb disease spread. This includes enhancing hygiene practices, wearing a well-fitting mask, keeping a distance from others, and/or getting tested for respiratory viruses. Enhanced precautions are especially important to protect those most at risk for severe illness, including those over 65 and people with weakened immune systems.

The new CDC guidelines do not apply to healthcare personnel who remain subject to current CDC recommendations, nor does it supersede accommodations required under federal civil rights laws.

As discussed here, similar recommendations were put into effect in California in early January 2024.

Western Growers Science Organizes Nexus of Soil Health and AgTech Field Day at Braga Fresh

March 19th, 2024

Western Growers Science hosted a field day in collaboration with Braga Fresh on the topic of the Nexus of Soil Health and AgTech, which highlighted innovative technologies and fresh produce production practices that elevate soil health. The event was well attended (+85) and facilitated industry ag tech networking as well as highlighted several WG members who are working in this space.

The day included the following events:

The Significance of Soil Respiration as a Pivotal Indicator of the Soil’s Overall Health and Microbial Activity

Speaker: Charlie Dubbe, Agrology

Live Demonstration of spray drone, in field, Wilbur Ellis

Speaker: Elliot Dorenbaum, Wilbur Ellis

Soil Health, Data, and Collaborations, Field Demonstration of Agrology’s Arbiter

Speaker: Charlie Dubbe, Agrology

Demonstration of Veda, field equipment on broccoli

Speaker: Sam Stoffers, Veda Farming

Braga Fresh Healthy Soils Project

Speaker:  Kyle Harmon, Braga Fresh and Pam Krone, CMSF

Sporenado, a Passive Spore Trapping and Detection System

Speaker: Kristine White, Sporenado

Western Growers Work in Ag Tech and Innovation

Speaker:  Ben Palone, Western Growers

Field Automation Advancements for Specialty Crops

Speaker: Nathan Dorn, farm-ng

Biochar and Carbon Sequestration in Agriculture

Speaker: Steve McIntyre, Monterey Pacific

The Nexus of Soil Health and Ag Tech, Panel Discussion

Panelists: Ben Palone, John McKeon, Nathan Dorn, and Parry Klassen

Moderated by Walt Duflock

 

For information about this event or to hear about future events, please email [email protected].

Best Practices: Wage and Hour Self-Audit, Part 2

March 7th, 2024

In this second in our two-part series on wage and hour compliance, we address critical aspects of compliance for every employer’s operational playbook.

Timekeeping Practices

Employers must scrutinize their timekeeping systems, particularly in jurisdictions like California where rounding employees’ time is prohibited. Ensuring time is recorded accurately to the minute is essential for compliance.

 Meal and Rest Period Policies

It’s imperative that meal and rest period policies are not only documented in the employee handbook but also communicated regularly. Reminding employees of their rights ensures these breaks are taken, promoting well-being and compliance.

Manager Training on Break Administration

Managers should receive training on administering meal and rest breaks effectively, including steps to take when breaks are missed.

Tracking Paid Time Off

The documentation and tracking of vacation, paid sick leave, or PTO must be meticulous. Accurate record-keeping of paid time off is essential

Paycheck Deductions

All deductions from an employee’s paycheck must be scrutinized to ensure they are legally permitted, protecting the employer from potential disputes and legal challenges.

Reimbursement of Business Expenses

Employers must ensure that employees are reimbursed for all necessary business expenses, such as uniforms, mileage, and cell phone use. This practice is not only fair but also mandated by law in many jurisdictions.

By addressing these areas, employers can reduce the risk of litigation and foster a positive workplace culture.

California Updates Mandatory New Hire Pamphlets

March 7th, 2024

The California Employment Development Department has updated its mandatory “For Your Benefit” pamphlet. The publication provides information about programs offered by the EDD for unemployed Californians and must be provided at the time of hire and termination. The publication is provided by the EDD in both English and Spanish.

The California Department of Industrial Relations (DIR) has also updated its mandatory “Time of Hire Pamphlet.” The publication provides mandated information about workers’ compensation benefits and must be provided to all newly hired employees. This publication is also available in both English and Spanish.

 

 

 

 

Cal/OSHA Releases Model Workplace Violence Prevention Plan

March 7th, 2024

As discussed here, on September 30, 2023, California Governor Newsom signed SB 553[i] creating a new workplace violence law. In accordance with SB 553 mandates, starting July 1, 2024, covered employers will be required to implement a Workplace Violence Prevention Plan (WVPP).

To assist employers in establishing, implementing and maintaining an effective WVPP, the California Division of Occupational Safety and Health (Cal/OSHA) has released a Model WVPP. Much like the agency’s model Injury and Illness Prevention Plan (IIPP) and COVID-19 Prevention policy, the model WVPP provides the essential framework to identify, evaluate, and control workplace violence hazards.

The downloadable template allows employers to develop a stand-alone WVPP customized for their own needs. Nonetheless, employers are not required to use the model WVPP, but may create their own, use another WVPP template, or incorporate workplace violence prevention into their existing IIPP as a separate section.

While the use of any template cannot ensure compliance, the model WVPP is a great starting point. Employers are encouraged to review the WVPP even if choosing not to utilize it.

Cal/OSHA has also published two employer-focused workplace violence fact sheets: Workplace Violence Prevention in Agricultural Operations for Employers and Workplace Violence Prevention in General Industry (Non-Health Care Settings).  Each sheet provides important information on:

  • Creating a workplace violence prevention plan
  • Violent incident log requirements
  • Training employees on workplace violence; and
  • Employer responsibilities with workplace violence recordkeeping

Employers with compliance questions should consult with legal counsel ahead of the July 1, 2024 compliance deadline.

[i] Cal. Lab. Code Section 6401.9.

Cal/OSHA Increases Civil Penalties for Certain Violations

March 7th, 2024

The California Division of Occupational Safety and Health (Cal/OSHA) announced increases for civil penalty amounts for 2024. The increases adjust for inflation and ensure Cal/OSHA is consistent with California and federal law.

What You Need to Know

Some of the maximum penalties are going up by as much as $4,983 this year, a smaller increase than in the past.

This annual increase is required by a law enacted by the California Legislature in 2017 that authorizes increases in certain minimum and maximum civil penalties to make them consistent with federal OSHA’s civil penalties. The increase is based on the Bureau of Labor Statistics’ report on the October Consumer Price Index for All Urban Consumers (CPI-U) each year. This year’s adjustment for inflation rate was approximately 3.24%.

For citations issued on or after January 1, 2024, the maximum penalties for violations classified as Regulatory, General, Willful, or Repeat are as follows:

  • The maximum penalty for General and Regulatory violations, including Posting and Recordkeeping violations is $15,873.
  • The maximum penalty for Willful and Repeat violations is $158,727.
  • The minimum penalty for Willful violations is $11,337.

The only maximum penalties that went unchanged are for violations classified as Serious; those penalties remain at $25,000.