Date: Aug 01, 2013
WG&S August 2013 - Telling Your Story
Labor litigation has once again moved to the forefront in agriculture.

For years labor litigation defined the practice of most attorneys that specialized in agricultural law.  In fact, many lawyers were drawn to the industry in the ‘60s and ‘70s precisely because of the work dealing with the unionization of workers.

However, as the efforts of labor unions waned, the need for attorneys specializing in labor also dissipated.  Over the years, lawyers practicing law in the agricultural space have created diversified practices dealing with a host of issues including PACA claims, food safety, intellectual property rights, employment law and general business practices.

Labor law took the back seat but once again it’s in the limelight.

“Labor law is definitely coming back,” said Western Growers Vice President and General Counsel Jason Resnick.  “The UFW (United Farm Workers) was dormant for a long while but now they are trying to use a new law to force binding mediation on employers from union elections that were held decades ago.  They basically abandoned the workers 20 years ago and now are trying to come back and complete the negotiations.  If they are successful, this could have huge implications.”

The battleground appears to be a case involving Gerawan Farming of Reedley, Calif.  Longtime WG member and former employee Ron Barsamian of Fresno-based Barsamian & Moody is handling the case.  He explained that the labor-leaning California Agricultural Labor Relations Board has sided with the UFW but Gerawan has continued the battle in court.  “We are raising every argument that there is against this effort,” he said.

The strongest argument appears to be the undisputed facts of the case.  The UFW won a union representation election at Gerawan more than 20 years ago, held one negotiating section and then walked away.  “They abandoned those workers,” Barsamian said.  “The workers working there today are not the same people.  Many of them weren’t even born when that election was held.”

The longtime labor attorney, whose practice now revolves largely around employment law, believes Gerawan will prevail in this case but he expects it to be a drawn out case.  Barsamian agreed that the implications are big as the union abandoned workers from many firms decades ago.  He said if they can go back and force binding mediations on employers without having to have an election in this century, many companies are going to have to fight the fight.


Employment Law

In his employment law practice, it is a lack of attention to detail that tends to trip up employers.  “We are seeing a lot of class action wage and hour cases being filed by the CRLA (California Rural Legal Assistance) and plaintiffs’ attorneys.  Employers have to make sure that employees get the required breaks including a net 30 minutes for lunch.”

Barsamian said that under food safety metrics, many employers are ordering their workers out of the fields for their lunch breaks.  While they are coming and going, the workers are still under the control of the employer so that transportation time does not count.  “Make sure you give them extra time.  It doesn’t seem like much but in a class action suit that can add up and get expensive.  It’s better to err on the generous side (in terms of time off).”

He said employers often lose cases because of the actions of their supervisors.  They have to be trained to know the applicable laws and regulations.  “Many of them don’t know how to properly fill out a time sheet,” he said.  “Get out into the field and know exactly what your supervisors are saying and doing.”


Food Safety Issues

The spinach crisis of 2006 and other earlier recalls have spawned a distinct area of practice for attorneys revolving around recalls and food safety issues.  The Seattle attorney Bill Marler has created quite a name for himself as he represents plaintiffs in food contamination cases.  On the other side of the fence are attorneys all over the country defending employers and working with them on the front end to prevent food safety issues from arising.

One such attorney is Jeff Gilles of Salinas, Calif., based L+G, LLP, Attorneys at Law.  His firm specializes in every aspect of food safety with an extra emphasis on prevention.  For example, when a company opens a new plant, Gilles and his team will work through all the regulations to make sure the plant has all the proper certifications so it is run in a manner to prevent recalls.

When a recall does occur and litigation follows, Gilles said “we are the boots on the ground in Salinas.”  He explained that lawsuits arising from a recall typically are filed in the home state of the allegedly injured person.  As a specialist in food safety issues and based in Salinas, Gilles and his team can help with depositions from the producers.

He added that these types of lawsuits often have a need for legal work throughout the country at the various points along the supply chain as the suspect product traveled from field to fork.  As such, earlier this year, Gilles launched, a website devoted to the defense of product recalls.  The site defines itself as being “composed of an experienced group of foodborne illness defense attorneys, communication consultants and technology experts working together to serve the needs of growers, producers and processors throughout the United States.”

Currently there are a half dozen law firms and several communications experts listed on the site.  “We are going to add more as we move forward but we vet everyone on the site to make sure they are an expert in this field,” he said.

Gilles said the site creates a resource for those needing help in the food safety arena or for anyone hit with a Marler lawsuit.  While the site uses the “leafy greens” moniker because it has become synonymous with food safety concerns, Gilles said the expertise of the attorneys extends to any commodity.

He said law practices in the food safety arena extend to other areas also such as “Hold Harmless & Indemnification” clauses.  While he understands the reluctance of shippers to ignore requests for an HH&I from retailers and other buyers, he said signing such an agreement should be done with great care.  “During seminars I have heard attorneys deal with HH&I’s in a nonchalant way like they don’t matter.  That’s just not true.”

While strict liability law makes it difficult for a retailer to shift all responsibility to the producer, the existence of an HH&I can change the allocation of the cost of a problem and embroil the producer in an expensive lawsuit.  Gilles said producers should not sign an HH&I without running it by a lawyer and attempting to at least limit their own liability.


Intellectual Property Rights

Another area of law that isn’t typically linked to agriculture but does have applicability is intellectual property rights.  The law firm of LaRiviere, Grubman and Payne LLP, which operates from its offices in Monterey, Calif., works in many areas including trademarks, copyrights, patents, and licensing.  David LaRiviere says about 30 percent of the firm’s business involves agricultural firms with wineries being a growth area in recent years — no doubt tied to the emergence of the Salinas Valley as a wine-producing region.

Scott Allen, who is a partner in the firm, said most recently issues surrounding trade secrets have come to the forefront with its agricultural clients.  Specifically, he said the issue has surfaced with regard to new regulations being put forth by California’s regional water quality control boards with regard to ag waivers.  The board governing the Central Coast is requiring growers to file detailed reports on their water usage to qualify for the ag waivers.  “Our clients say their irrigation practices are trade secrets that can give them an advantage over their competitors and they do not want to divulge those secrets.”

Allen said the board has taken the position that the growers should file a full report and the board will determine if the information qualifies as a trade secret and if so, a redacted version will be available for public consumption.  As expected, growers are not comfortable with this concept and are working with the law firm to present their case.

In addition, Allen said the law firm’s team is expert on what constitutes a trade secret and it is working with growers to develop the proper auditing process that will qualify a farming practice as a trade secret.

LaRiviere said his partner Allen is the perfect lawyer for the job “because Scott has two degrees in agronomy” and knows the subject matter from the ground up.

With regard to the increased business the law firm has seen from wineries, LaRiviere said much of the work revolves around the firm’s more typical tasks of trademarks and patents dealing with the development of varietal wines and the labels under which they are sold.

The company also is continuing its work involving trademark infringement overseas.  LaRiviere said, “We have defeated two of them and we have three more in the hopper.”

He explained that opportunists will come to the United States, spot an emerging product at a trade show and then go back to their home country and register the trademark in their own name.  When that product begins to be sold there, the opportunist files his own trademark infringement suit, even though he has no product to back it up.  LaRiviere works with companies to register their trademarks all over the world before the product is released.

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