Date: Sep 14, 2017
Magazine:
WG&S: September/October 2017

Decades ago, the advent of labor challenges caused production agriculture to “lawyer up.” Today, the issues are different, but labor, more often than not, is the reason growers and shippers need legal representation.

Years ago, it was union elections in which legal labor experts were needed. Jason Resnick, vice president and general counsel at Western Growers, said now lack of labor and issues surrounding wage and hour laws are the main drivers of the need for legal representation involving the workforce. “We are seeing a lot of challenges regarding wage and hour violations, such as meal and rest period claims.”

He added that claims for failure to properly pay overtime is also often the cause of litigation. In each of these cases, plaintiff attorneys are bringing civil actions and employers are often being hit with significant financial settlements.

Mike Saqui of The Saqui Law Group, Roseville, California, said wage and hour violations are still prevalent and a huge boon for what he called “carpetbagger” attorneys who swoop in and can get a quick pay day. The class action suits can pick apart wage and hour regulations, find a discrepancy and result in a substantial award, of which the attorney gets his negotiated cut.

Saqui warned employers to be vigilant in their adherence to the letter of the law. He said a spate of lawsuits caused most employers to make sure their wage and hour compensation was in sync with regulations. “Then we saw meal breaks come to the forefront and now worker transportation lawsuits are popping up.”

Saqui said the bottom line is that employers must be diligent and make sure they are following every aspect of labor laws, not just those that appear to be the favorite of plaintiff lawyers. He said eventually all aspects of a company’s pay policies will be challenged if they are not in compliance.

Resnick said another area of labor garnering a great deal of interest is securing foreign workers under the Department of Labor’s H-2A program. “Our H-2A work has more than doubled over the last couple of years and it continues to keep us very busy.”

Western Growers Legal Services LLC. helps growers navigate the H-2A application process. Saqui said securing temporary foreign workers is basically a necessity in these times of labor shortage. The shortage situation has been exacerbated by fears created by the current administration’s emphasis on undocumented immigrants.

Jeanne Malitz of Malitzlaw Inc., San Diego, California, said that so far, working through the H-2A application process under the Trump Administration has been fairly similar to what occurred under the Obama Administration. She noted that while the appointed leaders of DOL have changed, those working the applications themselves are the same people and are basically faced with the same rules and regulations. She did note that executive orders have been signed that create more barriers to both documented and undocumented entry into the United States, but, as of yet, they haven’t had much impact. “Right now, applications are going through and taking about the same time that they did before, but the legal community is concerned.”

The civil servant career employees, she said, must follow the direction given by the appointed leaders. There is concern that long term there will be a shift in focus toward enforcement and away from granting H-2A applications. “We are just starting to see some emphasis on beefing up I-9 enforcement. Last week we had our first I-9 audit in agriculture in Southern California in a very long time.”

The I-9 form is the documentation that each employer must collect from employees showing that they have the legal right to work in the United States.

Resnick said the toughest issue surrounding H-2A applications continues to be the housing component. Employers must house these temporary foreign workers at no charge in units that meet all the regulations. That’s a difficult hurdle to jump and requires lots of effort and legal work.

Saqui said another interesting issue surrounding labor that cropped up this summer was rolling strikes in the Salinas Valley. He said that because of labor shortages, field workers, for the first time that he can recall, were making more per hour than workers in vegetable processing plants. He said the labor actions resulted in increased wages for many of the workers.

Jeffrey Gilles of L + G, LLP, Salinas, California, said his firm has been deeply involved in the nitrate issue in the Salinas Valley. The firm is working with other stakeholders to stay litigation with regard to the nitrate issues as they work to pass SB 623, the Safe and Affordable Drinking Water Fund. “It is an interesting approach,” he said. We are working collaboratively with the State Water Control Board to work out a solution to this problem. It has taken a good deal of our time over the past 18 months.”

Gilles’ law firm has also been one of the leading ag law firms to deep dive into cannabis law. “We have been working on it for the past five years,” he said. “We have three attorneys working full time on cannabis.”

He explained that the firm’s involvement is similar to efforts it made in the past to represent organic growers. “Our clients are involved so we are involved.”

He said the legal issues are similar to its other ag legal work and cover areas such as permits, transactional work, investment and R&D (research and development) contracts. Five years ago when the firm first got involved in cannabis issues, Gilles said he did hear from some in the legal community—mostly judges and colleagues—questioning why his firm was operating in the cannabis arena. “But I didn’t get much push back from clients,” he said. “Ag clients are typically good business people. They just look at it as a business.”

While he expects the cannabis industry to have an impact in Salinas, he said it is not actually fighting for ground or a competing in the sense that other crops are. The crop is being grown under glass and the total acres expected to be devoted to cultivation are relatively small.

Another attorney, Mike Saqui, said he has fielded legal questions and done a little bit of HR (human resource) work for some labor contractor clients involved in the cannabis industry. “My clients decide what crops they are involved with and I’ll be involved with anything they are involved in.”

Saqui believes cannabis will eventually be like any other commodity and treated as such by the ag community.

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