Register Today for the Agricultural Water Systems Workshop

May 8th, 2024

Join Western Growers Science, in partnership with the UC Davis Postharvest Research and Extension Center, on May 28 – 29, in Salinas, Calif. for the Agricultural Water Systems – Identifying, Preventing, and Managing Food Safety Risks workshop.

The workshop will delve into a range of topics related to water management and safety. Experts will explore why risk assessments are critical for growers and the produce industry, what agricultural water sampling entails, how to how to properly conduct high-volume filtration and how to employ best practices for post-flood remediation of wells and distribution systems. Live field demonstrations will also be conducted.

Register for this exclusive opportunity to enhance your knowledge and contribute to advancing food safety practices in agriculture. Seating is limited, so reserve your spot today!

What: Agricultural Water Systems – Identifying, Preventing, and Managing Food Safety Risks workshop

When: May 28th – 29th

Where: Salinas, CA

For questions about this event or the Western Growers Science Program, please reach out to Joelle Mosso at [email protected].

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Agriculture Energy Savings Action Plan (AESAP) Services and Incentives Available

May 7th, 2024

Growers often experience extreme water and energy demands, resulting in heavy financial burdens. The Agriculture Energy Savings Action Plan (AESAP) services agricultural electrical and gas customers in the Pacific Gas & Electric (PG&E) service area and employs energy efficient practices to reduce costs to growers and boost their bottom line.

Program Offerings Include:

● Rebates

● Custom Incentives

● Common Energy-Efficient Projects

For more information and to see if you qualify for assistance, please visit https://agenergysavings.com/.

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USDA to Increase Rates for Specialty Crops Inspection Grading, Audit Services

May 7th, 2024

The U.S. Department of Agriculture’s Agricultural Marketing Service (AMS) has announced its 2024/2025 fee rates for voluntary grading, inspection, certification, auditing and laboratory services for a variety of agricultural commodities, including fruits, vegetables and specialty crops.

According to the USDA, these increases reflect direct and indirect costs of providing services. Direct costs include the cost of salaries, employee benefits, and, if applicable, travel and some operating costs. Indirect or overhead costs include the cost of Program and Agency activities supporting the services provided to the industry. The formula used to calculate these rates also includes operating reserve, which may add to or draw upon the existing operating reserves.

These new rates go into effect on October 1, 2024 and have been published in a Federal Register Notice.

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Kim Stuart Retires from Western Growers; Cory Lunde Takes Over Membership Department

May 6th, 2024

After 7½ years as the head of our Membership Department, Kim Stuart embarked on a well-deserved, yet bittersweet, retirement at the end of April. During her time at Western Growers, Kim brought professionalism and discipline to the department and elevated our association’s profile within the fresh produce industry. Our task now is to honor her contributions and build on the great work she has accomplished.

Effective May 1, Cory Lunde was promoted to Vice President, External Affairs. In this role, he will oversee the Membership Department and a newly organized Association-focused Marketing and Communications Department, in addition to continuing his work in public affairs and with our political action committees. Cory can be reached at [email protected].

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NLRB General Counsel Encourages Expansion of ‘Make-Whole’ Remedies

May 2nd, 2024

An April 8, 2024, Memorandum issued by National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo (General Counsel), advises regional offices to push the NLRB to pursue “the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.”

A key focus of the memo is the General Counsel’s expansive directive to ensure make-whole remedies are pursued on behalf of all employees, regardless of whether they are identified during an unfair labor practice investigation or not. Finding “mere rescission of an overboard, unlawfully promulgated, or unlawfully applied rule or contact term” not enough to expunge discipline imposed under such unlawful provisions and fails to make impacted employees whole, the General Counsel encourages the NLRB to undertake broader enforcement efforts. This includes seeking relief for any employee disciplined or subject to legal enforcement due to an unlawful work rule or contract term.

Of major concern is that the directive comes on the heels of several other expansions including the NLRB’s restrictive standard for analyzing employer work rules.

What Does It Mean?

Expanded enforcement efforts will put pressure on employers to justify disciplinary efforts. Employers will need to be able to demonstrate not only that the conduct in question violated an internal work rule, but that the work rule itself does not violate any National Labor Relations Act protected activities.

This new directive will also result in expanded investigation efforts as regional personnel look beyond the charging party and named employees to any individual potential impacted by the alleged unlawful labor practice. Subsequent findings will then dictate whether regional personnel push the NLRB for expanded enforcement efforts.

An internal audit of workplace rules and other employment agreements (e.g., confidentiality, arbitration, and severance agreements) will ensure employers rely on lawful rules/agreements and in turn lower the risk of actions that could run afoul of NLRB protections.

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EEOC Releases Updated Enforcement Guide on Harassment

May 2nd, 2024

The Equal Employment Opportunity Commission (EEOC) has finalized a new anti-harassment resource titled Enforcement Guidance on Harassment in the Workplace. Originally released for comment in 2017 the guidance was finalized November 1, 2023.  

The updated guidance reflects notable changes in the law since 2017 including the U.S. Supreme Court’s decision in Bostock v. Clayton County, the #MeToo Movement and emerging issues such as virtual or online harassment. The guide provides several updated examples reflecting a wide range of scenarios, incorporates updates on current case law and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment.  

Specifically, the new guidelines define sex-based harassment to include the following conduct: 

  • insulting remarks regarding sexual orientation or gender identity; 
  • physical assault due to sexual orientation or gender identity; 
  • forced “outing” of an individual (the disclosure of an individual’s sexual orientation or gender identity without permission); 
  • harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; 
  • misgendering (repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity); and 
  • denying access to sex-segregated facilities consistent with the individual’s gender identity, such as bathrooms and locker rooms. 

    The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against applicants or employees because of a protected classification (e.g., race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.) Most employers with 15 or more employees are covered by EEOC laws (20 employees in age discrimination cases).  

    The updated guidance resource should prove to be a useful tool in assisting employers in providing a harassment-free workplace. Employers should review the updated guidance and audit current anti-harassment policies/procedures and training protocols to assure alignment with current practices.  

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    U.S. Supreme Court Sets New Title VII Standard

    May 2nd, 2024

    The U.S Supreme Court, in resolving a split among various Circuit courts, set a new standard for the amount of harm a plaintiff must demonstrate to bring an employment-related discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII).

    Over the years various Circuit courts have applied differing levels of the requisite harm required to show discrimination, resulting in an ever-shifting threshold. In the case Muldrow v. City of St. Louis, the Court found that only a showing of “some” harm because of a wrongful employment decision is sufficient to plead/prove discrimination under Title VII.

    Muldrow involves a transfer situation. Sergeant Muldrow of the St. Louis Police Department alleged a discriminatory transfer from one job to another because of sex. Muldrow was a female plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. After refusing a new Division commander’s request that she transfer out of the unit so he could replace her with a male police officer, Muldrow was transferred to a uniformed job elsewhere in the Department. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. After the transfer, Muldrow no longer worked with high-ranking officials in the Intelligence Division, instead supervising the day-to-day activities of neighborhood patrol officers. She also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts.

    A lower court ruled – and the Eighth Circuit upheld – that Muldrow had to – but could not – show that the transfer caused her a “materially significant disadvantage.” On appeal, the U.S. Supreme Court’s ruling found that an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.

    What Does It All Mean?

    Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of sex or another protected classification.

    The words, “discriminate against” have been found in other of the Court’s opinions to refer to “differences in treatment that injure.” This is why the ‘terms, conditions, or privileges of employment’ aspect of the statute are interpreted broadly to include not just obvious actions such as termination but other actions such as those experienced by Muldrow (e.g., changes in working conditions that impacted her career and career potential).

    While the facts in Muldrow concern a transfer from one position to another, its holding has broader implications. The Court’s plain reading of the statute’s requisite ‘harm’ now makes clear that all plaintiffs – regardless of the type of adverse employment action[i] alleged – will have a much lower bar when it comes to proving harm. Nonetheless, employers should keep in mind that a seemingly lower standard of harm does not mitigate the requirement that an adverse employment action be made because of the employee’s membership in a protected class.

    Employers should carefully consider business decisions that impact an employee’s position, title, benefits or wages and document the legitimate non-discriminatory reasons underlying the action taken.

     

    [i] An ‘adverse employment’ action refers to any action taken by an employer impacting the terms, conditions or privileges of employment (e.g., termination, undesirable transfer, reduction in hours, refusal to promote, unjustifiably bad performance review).

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    FDA Publishes the Final Rule on Agricultural Water

    May 2nd, 2024

    On May 2 the U.S. Food and Drug Administration (FDA) announced the release of the Final Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption Relating to Agricultural Water. The entirely of Final Rule is available at the Federal Register.

    This Final Rule replaces certain pre-harvest agricultural water requirements for covered produce in the 2015 produce safety rule. Table 3 – located on page 44 of the Rule- includes a Summary of Changes Made to Subpart E Requirements since the 2015 Produce Safety Final Rule.

    The Final Rule now contains these key requirements for pre-harvest water:

    • Replacing the microbial quality criteria and test requirement in the 2015 final rule. The focus of the Final Rule will be on conducting pre-harvest assessments for hazard identification. This includes evaluation of:
      • Water System: Location of the water source ground or surface water, type of delivery system, protection against contamination
      • Water Practices: Application of water (spray vs. drip irrigation)
      • Crop characteristics: Suspensibility for adhesion and internalization.
      • Environmental conditions such as heavy rain or extreme weather.
      • Impacts from adjacent land use
    • Inclusion of a requirement to test pre-harvest agricultural water in certain circumstances for generic coli to help inform agricultural water assessment.
    • A requirement to expedite the implementation of mitigation measures for known or reasonably foreseeable hazards related to certain adjacent land uses.
      • These must be implemented promptly, and no later than the same growing season as the assessment or reassessment.
    • Inclusion of additional mitigation measures
    • Requirement management review of pre-harvest agricultural water assessments
    • Adding a definition of agricultural water assessment and agricultural water system.

    Compliance Dates:

    • For very small farms: Two years, nine months after the effective date of the Final Rule
    • For small farms: One year, nine months after the effective date of the Final Rule
    • For all other farms: Nine months after the effective date of the Final Rule

    Additional resources pertaining to the rule can be found here:

    FDA Constituent Update

    FSMA Final Rule on Pre-Harvest Agricultural Water

    FDA Fact Sheet

    The Western Growers Science Team will share additional resources surrounding the Final Rule in the next few days. For additional information or questions, contact WG Science at [email protected].

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    USDA Strategy Aims to Detect, Mitigate, and Prevent Invasive Fruit Flies

    May 1st, 2024

    Invasive fruit flies pose a significant threat to U.S. agriculture, particularly for fresh fruits and vegetables. Recognizing the urgency of the situation, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), has unveiled a comprehensive 5-year strategy to combat the threat of invasive fruit flies and measure its progress. Here is what growers need to know about the “Fruit Fly Exclusion and Detection Program Fiscal Years 2024-2028 Strategy” (FFED):

    Prioritized Goals: The FFED Program prioritizes strengthening domestic surveillance, emergency response, sterile insect technique and international import efforts. Focusing on these key areas will enhance early detection, timely mitigation and preventive measures against invasive fruit flies.

    Financial Support: APHIS received $103.5 million in additional funding from the Commodity Credit Corporation to address invasive fruit fly programs in California and elsewhere. This funding allows APHIS to go beyond regular appropriations and expand their efforts in combating fruit flies.

    Addressing Outbreaks: APHIS coordinates quarantines and collaborative eradication and education efforts with state agricultural departments to eliminate and prevent the spread of fruit flies.

    Impact on Growers: Implementing proactive management strategies outlined in the FEED Program can help growers mitigate risks and protect their crops from fruit fly infestations.

    Collaboration: The FFED Program emphasizes collaboration between federal and state partners. Sharing knowledge and leveraging scientific advancements will develop effective and sustainable solutions for managing invasive fruit flies.

    The APHIS FFED Program represents a pivotal step toward protecting U.S. agriculture from the threat of invasive fruit flies. Growers are encouraged to stay informed and participate in this collective effort to combat invasive pests and ensure the sustainability of U.S. agriculture.

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    The California Agricultural Leadership Foundation Hosts 2024 Alumni Conference

    May 1st, 2024

    The California Agricultural Leadership Foundation (CALF) will be hosting its 2024 Alumni Conference this June in conjunction with the 2024 International Leadership Alumni Conference (ILAC).

    In addition to connecting hundreds of industry leaders from the U.S. and abroad, this event will feature sessions and a valuable lineup of speakers including Dr. Jeffrey Amstrong, Secretary Leon Panetta, and more!

    If you are interested in attending, please click here or reach out to Jodi Litz at [email protected].

     

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    DOL Releases Final Farmworker Protection Rule

    April 26th, 2024

    The U.S. Department of Labor has released the “Improving Protections for Workers in Temporary Agricultural Employment in the United States” final rule, effective June 28, 2024. This rule seeks to enhance protections for temporary agricultural workers in the H-2A program by introducing several changes that will impact H-2A employers. Below is a summary of some of the key changes. 

    1. Worker Empowerment and Advocacy: Workers can now advocate for better working conditions, and there are expanded anti-retaliation protections. 
    2. Employer Accountability: Greater employer accountability regarding the recruitment process and transportation safety, including mandatory seat belts in vehicles. 
    3. Increased Transparency: Employers must disclose detailed information about recruitment chains and provide updates on any delays in work start dates. Requirements for transparency in job opportunities and worker terminations are also covered. 
    4. Immediate Wage Adjustments: Employers must adjust wages to the latest Adverse Effect Wage Rates (AEWRs) immediately after they are published, ending the current 14-day grace period for wage rate changes. 
    5. Guest Rights in Housing: Workers can invite guests to their employer-furnished housing outside of work hours. However, the proposal allowing labor organization access has been withdrawn after significant concerns raised by Western Growers and other commenters. 
    6. New Disclosures: Employers must disclose recruitment agreements and identity details of persons involved in the hiring process. This information must be kept current and available for audits. 
    7. Regulation Updates: Revisions to Employment Service regulations to prevent employers deemed noncompliant by the Employment Service from accessing these services. 
    8. Termination Protections: New rules set out the conditions under which a worker can be terminated “for cause.” 
    9. Compulsory Seatbelt Usage: Implementation of a rule requiring the use of seat belts by agricultural workers during transport. 
    10.  New Provisions for Delayed Work Starts: If work start is delayed, employers must notify workers and provide compensation for up to 14 days or offer alternative work. 
    11.  Prohibitions on Document Withholding: Clear prohibitions against employers taking or keeping workers’ travel documents without consent. 
    12.  Single Employer Test: Introduction of a test to determine if entities are considered a single employer based on management, operations, labor relations, and financial control criteria. 

    The association is reviewing these provisions in detail and will provide further updates.  

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    U.S. Supreme Court Sets New Title VII Standard

    April 25th, 2024

    The U.S. Supreme Court, in resolving a split among various Circuit courts, set a new standard for the amount of harm a plaintiff must demonstrate to bring an employment-related discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII).

    Over the years various Circuit courts have applied differing levels of the requisite harm required to show discrimination, resulting in an ever-shifting threshold. In the case Muldrow v. City of St. Louis, the Court found that only a showing of “some” harm because of a wrongful employment decision is sufficient to plead/prove discrimination under Title VII.

    Muldrow involves a transfer situation. Sergeant Muldrow of the St. Louis Police Department alleged a discriminatory transfer from one job to another because of sex. Muldrow was a female plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. After refusing a new Division commander’s request that she transfer out of the unit so he could replace her with a male police officer, Muldrow was transferred to a uniformed job elsewhere in the Department. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. After the transfer, Muldrow no longer worked with high-ranking officials in the Intelligence Division, instead supervising the day-to-day activities of neighborhood patrol officers. She also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts.

    A lower court ruled – and the Eighth Circuit upheld – that Muldrow had to – but could not – show that the transfer caused her a “materially significant disadvantage.” On appeal, the U.S. Supreme Court’s ruling found that an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.

    What Does It All Mean?

    Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of sex or another protected classification.

    The words, “discriminate against” have been found in other of the Court’s opinions to refer to “differences in treatment that injure.” This is why the ‘terms, conditions, or privileges of employment’ aspect of the statute are interpreted broadly to include not just obvious actions such as termination but other actions such as those experienced by Muldrow (e.g., changes in working conditions that impacted her career and career potential).

    While the facts in Muldrow concern a transfer from one position to another, its holding has broader implications. The Court’s plain reading of the statute’s requisite ‘harm’ now makes clear that all plaintiffs – regardless of the type of adverse employment action[i] alleged – will have a much lower bar when it comes to proving harm. Nonetheless, employers should keep in mind that a seemingly lower standard of harm does not mitigate the requirement that an adverse employment action be made because of the employee’s membership in a protected class.

    Employers should carefully consider business decisions that impact an employee’s position, title, benefits or wages and document the legitimate non-discriminatory reasons underlying the action taken.

     

     

    [i] An ‘adverse employment’ action refers to any action taken by an employer impacting the terms, conditions or privileges of employment (e.g., termination, undesirable transfer, reduction in hours, refusal to promote, unjustifiably bad performance review).

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    Western Growers Submits Comments on Proposed ALRB Card Check Regulations

    April 25th, 2024

    Western Growers has submitted detailed comments to the Agricultural Labor Relations Board (ALRB) regarding the proposed regulations for implementing Assembly Bill No. 113 (AB 113). Below is a summary of key points in the comments:

    1. Urgency of Finalizing Regulations: Western Growers emphasizes the importance of promptly finalizing the regulations, noting considerable delays since the initial discussions started in mid-2023. The delay has created uncertainty for employers and farmworkers alike, with some petitions lacking a clear legal framework for enforcement.
    2. Right to Revoke Signature: The comments strongly advocate for ensuring that employees can revoke their union support signatures at any point before or during the certification process. This point is highlighted as crucial for safeguarding the rights and freedoms of employees in making their unionization decisions.
    3. Transparency and Informed Consent: The association advocates for ensuring union authorization cards clearly inform workers of the effect of signing the card, including that doing so waives the employee’s right to a secret ballot election.
    4. Limiting Authorization Card Validity: Western Growers proposes limiting the validity of authorization cards to a period directly related to a current worker’s employment to prevent outdated influence by former employees.
    5. Verification of Signatures: The comments propose a dual verification process involving both union and company representatives to ensure the authenticity of signatures on union authorization cards.
    6. Language Accessibility: To foster informed consent, it’s proposed that all authorization materials be available in the languages understood by the workers, accommodating the diverse linguistic needs of the workforce.
    7. Reasonable Extension of Timeframes for Employer Compliance: Adjustments to the timeframes are suggested to better align with operational realities, such as extending the period for employers to submit worker lists and to file objections.

    We will continue to keep our members informed on the progress of these regulations and related matters.

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    NLRB General Counsel Encourages Expansion of ‘Make-Whole’ Remedies

    April 25th, 2024

    An April 8, 2024, Memorandum issued by National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo (General Counsel), advises regional offices to push the NLRB to pursue “the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.”

    A key focus of the memo is the General Counsel’s expansive directive to ensure make-whole remedies are pursued on behalf of all employees, regardless of whether they are identified during an unfair labor practice investigation or not. Finding “mere rescission of an overboard, unlawfully promulgated, or unlawfully applied rule or contact term” not enough to expunge discipline imposed under such unlawful provisions and fails to make impacted employees whole, the General Counsel encourages the NLRB to undertake broader enforcement efforts. This includes seeking relief for any employee disciplined or subject to legal enforcement due to an unlawful work rule or contract term.

    Of major concern is that the directive comes on the heels of several other expansions including the NLRB’s restrictive standard for analyzing employer work rules.

    What Does It Mean?

    Expanded enforcement efforts will put pressure on employers to justify disciplinary efforts. Employers will need to be able to demonstrate not only that the conduct in question violated an internal work rule, but that the work rule itself does not violate any National Labor Relations Act protected activities.

    This new directive will also result in expanded investigation efforts as regional personnel look beyond the charging party and named employees to any individual potential impacted by the alleged unlawful labor practice. Subsequent findings will then dictate whether regional personnel push the NLRB for expanded enforcement efforts.

    An internal audit of workplace rules and other employment agreements (e.g., confidentiality, arbitration, and severance agreements) will ensure employers rely on lawful rules/agreements and in turn lower the risk of actions that could run afoul of NLRB protections

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    FTC Votes to Ban Most Noncompete Agreements

    April 25th, 2024

    On April 24, 2024, with a 3-2 vote, the Federal Trade Commission (FTC) moved to ban most noncompete agreements for most workers. This move, which follows a proposal introduced in January 2023, was opposed by two dissenting commissioners who argued that the FTC lacks the authority to enact such a rule.

    The Non-Compete Clause Rule explicitly prohibits nearly all noncompete clauses for employees, applying both to future and existing agreements, with some specific exceptions, including:

    1. Current noncompete agreements that involve “senior executives,” (i.e., those making over $151,164 and who are in policymaking roles), however new agreements for such executives will not be allowed;
    2. Noncompete clauses that are part of a legitimate sale of a business; and
    3. Enforcement of noncompete violations that occurred before the rule takes effect is still permitted.

    Furthermore, the rule allows companies to enforce or discuss noncompete clauses if they have a good faith believe the rule does not apply to their situation.

    The FTC also addressed concerns about forfeiture-for-competition clauses, which are typically part of deferred compensation packages for executives. These are included in the broad prohibition, potentially allowing executives to retain unvested stocks after leaving a company, regardless of new employment.

    For existing noncompete agreements, employers are required to inform all current and former employees (except senior executives) that such clauses will not be enforced against them. This notification must occur before the rule becomes effective and is provided in multiple languages by the FTC.

    The rule does not apply to other types of restrictive agreements such as confidentiality and nondisclosure agreements, non-solicitation, non-recruitment, and no-hire restrictions, along with training repayment obligations and garden leave conditions.

    Looking forward, unless Congress or the courts intervene, the rule will become effective approximately 120 days after its publication in the Federal Register, expected around August 21, 2024. It may be subject to repeal under the Congressional Review Act (CRA), particularly as Congress is considering several CRAs. Legal challenges are anticipated based on arguments that the FTC has exceeded its authority and that the rule infringes on state contract laws. Of course, in California most noncompetes are unenforceable.

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    DOL Finalizes Overtime Exemptions Rule

    April 25th, 2024

    On April 23, 2024, the Department of Labor (DOL) announced a significant update to the overtime exemption criteria under the Fair Labor Standards Act (FLSA). This new rule will escalate the minimum salary thresholds needed for certain employees to qualify for overtime exemptions. The DOL is rolling out its new overtime regulation in two phases, with the first salary threshold increase occurring on July 1 and a second on January 1, 2025.

    The update, titled “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees,” will increase the minimum weekly salary for the FLSA’s three white-collar overtime exemptions (executive, administrative, or professional) to $1,128 per week, or $58,656 annually, by January 1, 2025. This is a substantial rise from the previous $684 per week. Furthermore, the threshold for “highly compensated employees” will rise to $151,164 annually, up from $107,432.

    This rule, which follows a proposal from September 2023, marks the first revision of the overtime exemption salary thresholds since 2019. It is expected to increase the number of employees eligible for overtime by redefining nonexempt statuses, thereby potentially changing the scope of job categories that qualify for overtime under the FLSA.

    Notably, the rule sets the new minimum weekly salary at $844 (equivalent to an annual salary of $43,888) starting July 1, 2024, before the January 2025 increase. It also adjusts the compensation for highly compensated employees to $132,964 on July 1, 2024. These thresholds will be updated triennially based on the latest wage statistics.

    As with previous changes, this new final rule could face legal challenges, similar to the objections that thwarted the 2016 attempt to modify the exemption threshold. If the rule survives these challenges, employers will need to reassess their compensation strategies. They might have to either adjust salaries to maintain exemption statuses or consider reclassifying employees who are currently exempt but fall below the new salary thresholds.

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    Applications to Run for the Western Growers Board of Directors Due May 17

    April 25th, 2024

    The Western Growers Board of Directors election process for the 2025-2026 board is now underway. Please note that we are changing the procedure this election cycle. Instead of fielding nominations as we have in the past, we are now calling on interested Regular Member voting representatives to submit a brief application and bio.

    Applications to run for a board seat are due by May 17, 2024.

    This call for board applications was emailed to all Regular Member voting representatives last week. If you are the voting representative for your member company and did not see the call for application email in your inbox, please check your spam folder. If you still are unable to locate the email, please contact Cheryl Hall at [email protected].

    As a Regular Member of Western Growers, your participation in the board election process is critical to our continued relevancy and influence. We rely on our board members to represent their constituents and the broader fresh produce industry, and to establish the priorities that drive staff and association activities. We hope you will consider running to be the voice for your district.

    The official election ballot will be emailed in late August.

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    California Agricultural Leadership Foundation to Host 2024 Alumni Conference in June

    April 24th, 2024

    The California Agricultural Leadership Foundation (CALF) will be hosting its 2024 Alumni Conference in conjunction with the 2024 International Leadership Alumni Conference (ILAC) this June in Monterey, Calif.

    The conference, called Cultivate Potential, aims to unite hundreds of agricultural leaders from California and other states and countries for an enriching experience of leadership development, socializing and networking opportunities.

    Date:
    June 25- June 28

    Location:
    Monterey Conference Center
    1 Portola Plaza
    Monterey, CA

    There are currently sponsorship opportunities available for organizations wanting to increase their visibility and recognition within many sectors of the agriculture industry. If you’re interested in a sponsorship opportunity or purchasing tickets for the event, click here.

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    Western Growers Women Hosts Arbinger Leadership Training and Retreat in Napa

    April 23rd, 2024

    The Western Growers Women Program gathered at the River Terrace Inn in Napa on April 18-19 for Arbinger Leadership Training and Retreat.

    Besides the two-day training lead by WG’s Training and Development Manager Priscila Cisneros, the itinerary included a winery tour, tasting and dinner at Frog’s Leap Winery as well as a VIP tour of the Culinary Institute of America in Napa.

    Western Growers Women is a networking and professional development organization open to WG members. Not a member yet? Contact Cierra Allen at [email protected] for more information.

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    Guest Blog: 10 Steps to Fight Freight Fraud

    April 22nd, 2024

    I am pleased to have guest contribution from Mrs. June Monroe with the esteemed law firm, Fennemore. June is a Director based out of the Irvine office who works in Agribusiness and Employment Law Practices Groups. June practices employment law, agricultural law, commercial law, secured transactions and general business law, concentrating on federal litigation, in district court and bankruptcy court, to enforce produce suppliers’ statutory rights under the Perishable Agricultural Commodities Act (PACA).

    As always, I’m available to answer any questions or concerns you may have, which I will address in upcoming blog posts. You may contact me at 949.885.4808 or [email protected].

    Freight fraud is on the rise. Again. Shippers and receivers of fresh produce are falling victim to the repeated schemes by unprincipled freight brokers. The most common occurrences: you pay the freight broker, but the freight broker skips town and doesn’t pay the carrier; or the freight broker reassigns the job to another broker, who doesn’t pay the carrier, or even worse, steals the load. In the produce industry, where sales are made at lightning speed to keep up with the transportation of highly perishable commodities, by the time the deception is discovered, it’s often too late. The cause may be a broker’s insolvency, negligence, or willful wrongful acts. The effect is the shipper and receiver can suffer loss of the perishable agricultural commodities and are exposed to liability for double payment for the freight charges.

    The problem is exacerbated by debt collectors buying up freight claims because they assert they have two pockets for recovery: the shipper and the receiver. These debt collectors or law firms representing them send demand letters citing court cases that seem to support double payment from a shipper. These debt collectors do not care if you’re a shipper who prepaid for the shipment by paying the broker. They hedge bets that you, as a shipper, will double pay for a shipment rather than trouble your customer/receiver for an unpaid freight bill.

    Generally, payment of freight charges is the responsibility of the shipper, unless otherwise agreed. Freight payment terms are either freight collect (receiver/consignee pays after delivery) or freight prepaid (shipper/consignor pays before shipment).

    Older versions of the Uniform Straight Bill of Lading included a non-recourse provision, which provided a method for a consignor to avoid liability for freight charges on a collect shipment by entering a signature or endorsement in the box containing the provision (“Section 7” of the bill of lading). If the carrier accepted the shipment for carriage, then the carrier did not have recourse against the consignor for the freight charges in the event the consignee did not pay.

    The non-recourse provision in the Section 7 box was a safeguard for a shipper because it relieved the shipper/consignor from liability for freight charges on collect shipments, i.e. that the carrier would have “no recourse” against the shipper, because the receiver/consignee had primary liability for payment of freight charges on collect shipments.  Shippers also used the provision to protect it from liability on “prepaid” shipments for additional freight charges after delivery.

    In December 2022, the National Motor Freight Traffic Association published a revised Uniform Straight Bill of Lading and removed the Section 7 box and non-recourse provision. Instead, the back side of the current Uniform Straight Bill of Lading’s terms and conditions states:

    Sec. 7. (a) The consignor, consignee, or shipper shall be liable for the freight and other lawful charges accruing on the shipment, as billed or corrected as specified in 49 U.S.C. §13710, and carrier may require prepayment of the charges prior to delivery and refuse to give up possession at the destination until payment is made, as specified in 49 U.S.C. § 13707(a).

    Put simply, the shipper and receiver bear responsibility for the freight charges if the carrier does not receive payment, unless there is a specifically negotiated agreement stating otherwise.  Shippers and receivers should use a tailored bill of lading (not the revised Uniform Straight Bill of Lading) making it clear who is responsible for freight payment and to have the carrier waive recourse against the appropriate non-responsible party.

    Here are some steps to fight back against freight fraud:

    1. Verify Broker Credentials: Ensure that the freight broker is properly licensed and registered with the Federal Motor Carrier Safety Administration (FMCSA). You can check their USDOT number and MC number on the FMCSA website here  SAFER Web – Company Snapshot (dot.gov).
    2. Require a Bond and Insurance: Verify that the broker has appropriate insurance coverage and bonding. This provides financial protection in case of fraud or negligence. Licensing & Insurance Carrier Search (dot.gov)
    3. Investigate Broker Reputation: Research the broker’s reputation by checking online reviews, asking for references from other clients, and looking for any complaints filed with industry associations or regulatory bodies (FMCSA website here  SAFER Web – Company Snapshot (dot.gov)). In addition, consult with your attorney to research the litigation history of the broker and other public records databases.
    4. Use Established Brokers: Work with well-established and reputable brokers with a proven track record of reliability and honesty in the industry.
    5. Have a Robust Contract with Broker: Consult with your attorney to prepare a robust broker contract that clearly states the broker’s obligations, with hefty indemnification provisions, insurance requirements, and clear payment terms.
    6. Use a Customized Bill of Lading: Use a well-drafted customized bill of lading that includes terms and conditions that accurately state the payment obligation and that require the carrier to waive recourse against the shipper.
    7. Obtain Documentation: Request and review all necessary documentation for each shipment, including insurance certificates, proof of delivery, and bills of lading.
    8. Monitor Shipments: Keep track of your shipments through tracking systems and regular communication with both the broker and carrier. Promptly address any discrepancies or concerns.
    9. Payment: Consider paying only after confirming delivery of the produce.
    10. Report Suspicious Activity or Theft: If you suspect fraud or encounter any irregularities, report them to the appropriate authorities such as the FMCSA or local law enforcement agencies.

    By taking these precautions and staying vigilant, shippers and consignors can reduce the risk of falling victim to freight broker fraud.  Consult with your agribusiness attorney to develop strategies and to customize contracts and other documents to minimize your risks of freight fraud.

    AGRICULTURAL LAW ATTORNEYS

    Fennemore has experienced Agribusiness law attorneys providing expansive range of services to clients, both domestically and internationally, in many areas of agribusiness and agricultural law:  Business & Finance, Business Litigation, Employment & Labor, Food & Beverage, Intellectual Property, Natural Resources/Water Rights, Mergers & Acquisitions, PACA Law, Real Estate, Secured Transactions, and Wills & Trusts.

    We have offices throughout California, Arizona, Nevada, Washington and Colorado. Fennemore’s Agribusiness Team has a long history of assisting clients in every role within the produce industry by providing the practical experience, knowledge and legal expertise that are unique to agribusiness from formation, licensing, contract drafting, compliance, operating challenges to litigation.  Our Agribusiness attorneys are here to help you.

     

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    Written by:
    June Monroe

    Director | Fennemore
    949.430.3420 | jmonroe@fennemorelaw.com

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