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.

Building a Robust Company Credit Culture: Key Steps and Best Practices

March 4th, 2024

A company’s credit culture defines its approach to credit management throughout the organization, reflecting how decisions regarding credit are prioritized alongside other critical business initiatives. Ensuring timely payments from customers is vital for the success of any sales transaction. However, establishing and enforcing a comprehensive credit policy is often overlooked, leading to challenges in collections and increased bad debt.

As a trusted advisor to members of Western Growers, I frequently encounter situations where businesses lack a formal credit policy, relying instead on ad hoc procedures. In today’s digital age, overlooking the need for a well-defined credit policy is no longer acceptable. To mitigate bad debt experiences, it’s imperative for companies to institute mandatory credit policies, ideally overseen by a dedicated credit manager or designated point person.

Where should you begin? Developing an internal policy for approving customers and setting credit limits is crucial. Utilizing resources like the Produce Blue Book for foundational financial insights, along with tools for predictive analysis, can streamline this process. Additionally, conducting thorough evaluations of customer financials, references, and business practices is essential to assess creditworthiness accurately.

Establishing protocols for ongoing customer reviews is equally important. By consistently adhering to established credit policies, businesses can minimize the risk of bad debt. Here are eleven key considerations to guide your credit assessment process:

  1. Leverage credit reporting agencies and other resources for informed decision-making.
  2. Obtain audited financials and bank references.
  3. Clarify payment practices with customers upfront.
  4. Evaluate the longevity of the customer’s business.
  5. Verify PACA and DRC licensing.
  6. Identify principal owners and officers.
  7. Seek feedback from other suppliers.
  8. Investigate past payment issues involving customer employees.
  9. Consult with other industry peers.
  10. Utilize available trade resources for additional insights.
  11. Exercise caution when information is lacking, prioritizing informed business decisions over immediate sales.

Remember, establishing a disciplined credit culture requires consistent leadership and commitment throughout the organization. Regularly reassessing customer creditworthiness and adapting policies as needed are integral to long-term success. Should you require further assistance in developing or refining your company’s credit policy, please do not hesitate to reach out to me at 949.885.4808 or [email protected]. Investing in a robust credit culture will yield significant dividends by minimizing bad debt and promoting financial stability.

 

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.

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.