Date: Nov 01, 2014
Magazine:
November 2014: Drought Diagnosis--Difficult Year Ahead

California Governor Jerry Brown recently vetoed the most hostile bill to agriculture to reach his desk this year, SB 25.  This bill would have expanded mandatory mediation and conciliation (MMC) under the Agricultural Labor Relations Act and would have disenfranchised workers by imposing union representation upon them regardless of whether those workers chose to be represented.

As Tom Nassif said, “Governor Brown made a sound decision in vetoing SB 25.  We are grateful that he saw the fundamental unfairness of this proposal.”

However, the governor also signed numerous bills into law, including AB 1897, the labor union-sponsored joint-employer bill and several others that will impact California employers.  All of the new laws summarized below are effective as of January 1, 2015, unless otherwise noted.

 

Joint Employer Liability (AB 1897)

Existing law prohibits entering into a contract for labor or services with a farm labor contractor (or a construction, garment, janitorial, security guard, or warehouse contractor) if the client employer knows or should know that the agreement does not include sufficient funds for the contractor to comply with laws or regulations governing the labor or services to be provided.  The new law defines a labor contractor as an individual or entity that supplies workers, either with or without a contract, to a client employer to perform labor within the client employer’s usual course of business.  The law defines a “client employer” to mean a business that “obtains or is provided workers to perform labor within its usual course of business from a labor contractor.”  However, excluded from that definition are: (1) businesses with 25 or fewer workers, including direct hires and contracted labor; (2) businesses with five or fewer labor contractor workers at any time; and (3) state and local governments.

While the new law prohibits employers from shifting to labor contractors any of their health and safety responsibilities, AB 1897 would not prohibit employers from agreeing to any otherwise lawful remedies against labor contractors for indemnification from liability created by acts of the labor contractor.  Labor contractors will also have the same opportunity to contract with employers for indemnification. Furthermore, the law provides that any waiver of its provisions is contrary to public policy and unenforceable.

Western Growers members utilizing farm labor contractors and staffing services are advised to scrutinize their contractor’s legal compliance measures, contract terms, and secure adequate insurance, among other measures, to limit their risk for using non-compliant contractors.  It is imperative that client employers utilize reputable contractors with a strong culture of legal compliance.  Unwary employers face the danger of liability for a labor contractor’s failure to meet their legal requirements.

 

Paid Sick Leave (AB 1522)

On September 10, 2014, Governor Brown signed the Healthy Workplaces, Healthy Families Act of 2014 (AB 1522) which provides workers with three paid sick days per year starting July 1, 2015.  The new law requires California employers to provide employees with one hour of paid sick leave for every 30 hours worked.  There is no exemption for agriculture.  Employees under a collective bargaining agreement are exempt if they meet certain criteria.

Under the new law, employees can begin using their paid sick days on the 90th day of their employment for their own health condition, a family member’s health condition, and if the employee is a victim of domestic assault, sexual violence, and/or stalking.  “Family member” is broadly defined to include spouse, registered domestic partner, grandparent, grandchild and sibling.

Employers can limit an employee’s use of paid sick days to 24 hours or 3 days during each year of employment.  Employers are not required to pay unused accrued sick leave at time of discharge.  However, employees that are rehired within one year from the date of separation are entitled to have their previously accrued but unused paid sick days reinstated.

In addition the new law prohibits discrimination or retaliation against employees who request or use paid sick leave and imposes new posting, notice and record-keeping obligations on employers.

Members with an existing sick time or paid time off (PTO) policy that is as generous as or more generous than the new law will be deemed to be in compliance.  However, members without a sick leave or PTO policy are advised to adopt one effective January 1 and to customize the cap, use and accrual options as provided under the new law.

 

Driver’s Licenses for the Undocumented — Clean-Up Legislation (AB 1660)

In 2013, Governor Brown signed AB 60 into law, which authorized the California Department of Motor Vehicles to issue driver’s licenses to undocumented immigrants.  However, the law also made a violation of state law to discriminate against any person who possesses a driving privilege or “DP” license.  Western Growers and others in the employer community were concerned they could run afoul of federal law if they hired or continued to employ an individual who possesses a DP license.  AB 1660 was introduced on behalf of Western Growers as clean-up legislation to correct this issue.  AB 1660 clarifies that the statute does not alter an employer’s obligation to comply with federal immigration law, which would include completing the Form I-9 when hiring new workers.  Further, employers may require employees to possess a driver’s license, if required for work without violating state law.

While the bill does amend the FEHA to make discriminating against individuals carrying a “DP” license  a form of “national origin” discrimination, employers taking action in compliance with federal immigration laws will not be in violation.

 

Sexual Harassment Prevention Training for FLCs (SB 1087)

SB 1087 amends section 1685 of the California Labor Code to prohibit the California Labor Commissioner from issuing new or renewal farm labor contractor license to anyone who has been found by a court or an administrative agency to have committed sexual harassment of an employee within the past three years.  The new law also applies to employers who employed any supervisor, crewleader, majordomo, foreperson, or any other employee of the applicant whose duties include the supervision, direction, or control of any agricultural worker (“supervisorial employees”) whom the employer knew or should have known has been found by a court or an administrative agency to have committed sexual harassment of an employee within the past three years of his or her employment with the employer.

In addition, the new law will increase the training requirement from eight hours to nine hours and must include at least one hour of sexual harassment prevention training.  In addition, the amendment requires that an FLC applicant attest in writing that the person’s supervisorial employees have been trained at least once for at least two hours each calendar year in the prevention of sexual harassment in the workplace, and that all new nonsupervisorial employees, including agricultural employees, have been trained at the time of hire and at least once every two years in identifying, preventing and reporting sexual harassment in the workplace.

The law does have one bright spot.  It specifically provides that a person is deemed not to have knowledge that an employee has been found by a court or any administrative agency to have committed sexual harassment if that employee executes a form that says: “I have not been found to have committed sexual harassment by any court or any administrative agency within the preceding three years.”  The form which provides an affirmative defense for FLCs will be made available on the Labor Commissioner’s web site.

 

“Abusive conduct” Training Requirement (AB 2053)

Since 2005, AB 1825 has directed employers having 50 or more employees to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all California supervisory employees once every two years.

AB 2053 expands this training requirement to include training on prevention of “abusive conduct.”  “Abusive conduct” is defined under the new law as conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.  The statute further provides that abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.  But according to the new law, “a single act shall not constitute abusive conduct, unless especially severe and egregious.”

The statute does not dictate any specific training content, nor does it mandate any specific amount of time be allotted to this component.  However, AB 1825 requires that sexual harassment prevention training to include “information and practical guidance” regarding federal and state laws concerning the prohibition against and prevention of sexual harassment, and the remedies available to victims of such harassment.  The training must be provided by “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation,” and must include practical examples aimed at instructing supervisors.

Covered members are advised to review and revise their anti-harassment training materials and those of their trainers to ensure that prevention of abusive conduct is covered.  Western Growers offers sexual harassment prevention training that includes the new “abusive conduct” component, as do several of the law firms in the Western Growers Ag Legal Network.

 

Discrimination and Harassment Protection for Unpaid Interns (AB 1443)

AB 1443 extends the harassment and discrimination protections of California’s Fair Employment and Housing Act (FEHA) to unpaid interns, volunteers, and apprenticeship trainees.  Under AB 1443, an employer may also be liable for harassment of an unpaid intern by a nonemployee if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.

Western Growers members are advised to update their company policies to include unpaid interns and volunteers into their anti-discrimination and anti-harassment policies and harassment prevention training.

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel
949-885-2253

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Western Growers members care deeply for the food they grow, the land they sustain, the people they employ, and the community in which they live. 

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