September 11, 2019

Labor is Again at the Forefront

While there has always been a need for lawyers in the business of farming, it was clearly issues surrounding labor in the 1960s and ‘70s that led to rapid increase in the number of attorneys who practice in this sector.

In fact, elsewhere in this issue, Attorney Mike Saqui reveals that he is very proud to have served the industry during a time that featured the “greatest generation of ag lawyers.” Many of these lawyers started at Western Growers and spent their early years defending employers in the on-going employer-employee conflicts. Early on, it was all about unionization and contract negotiation. In recent years, workplace regulations, especially surrounding wage and hours laws, have been the focal point of many law practices.

Today, Western Growers Vice President and General Counsel Jason Resnick said securing a workforce has moved up the ladder as the top issue for many Western Growers members. “We are doing a lot of work in H-2A,” he said, referring to the U.S. Department of Labor (DOL) program that is designed for agricultural employers to bring a specific number of foreign workers into the country for a temporary and defined period. “We have had a significant increase in the number of applications that we have filed,” he said. “At any given time, we have dozens of applications in process”

Resnick said the need is obvious as there is an acute labor shortage for farmworkers across the country. The Western Growers legal team has filed most of its applications for companies in California, Arizona and Colorado. With increased experience, he said navigating the H-2A regulations has become easier but the rules are still burdensome and there are lots of hoops that employers need to jump through—not the least of which are the housing and transportation requirements.

But Resnick is hopeful that proposed changes by DOL can modernize and streamline the process. He said one of the new proposed rule changes would allow employers to stagger the entry of the applied for workforce. Currently, all workers must come into the country and start working on day one of the work period. Of course, unlike the manufacturing of widgets, agricultural production often ramps up over time with the need for more laborers as the season progresses. “The current regs are not flexible,” he said. “This change and some others would add some much needed flexibility.”

While Resnick appreciates the current effort to tweak the H-2A regulations, he said the ag industry still needs legislative reform with a fundamental change in the law if agriculture is to meet its labor needs. “We are still hoping for an ag labor bill this year,” he said repeating a mantra that the industry has been chanting for the past two decades.

Labor and employment law has long been the forte of Ron Barsamian of Barsamian & Moody, a Fresno, CA-based law firm. On this August day, Barsamian was in the midst of contract negotiations between his winery client and the union representing the workers. He said the negotiations were a welcome respite from the litigation work he is typically involved in representing employers in wage and hour disputes. That work tends to be ongoing as there is seemingly always a plaintiff’s lawyer somewhere filing an action against an employer for what Barsamian sees as unintended minor violations.

While, he said there has been very little union organizing activity during the past year—and nothing that has been successful—there are still many union contracts in effect that are constantly being renewed involving negotiations. He said this winery negotiation was progressing and he hoped to wrap it up soon.

Barsamian has also noted an increase in H-2A applications and is hopeful the potential streamlining of the regulations will help solve the ongoing labor shortage in agriculture.

He said another issue that has recently surfaced involved the sending of “no match letters” by the Social Security Administration (SSA). These letters from the SSA to employers informs them that they have a number of employees working under social security numbers that do not match SSA records. The letter, which doesn’t actually list the problem employees and numbers, asks the employer to reconcile their records with SSA records. Barsamian said an employer should not assume that a “no match” means an employee is an undocumented worker. “There are a lot of reasons there is no match, including simple clerical errors,” he said.

While some employers have been advised to take no active role in solving this issue, Barsamian gives his clients different advice. “Do what the letter asks you to do,” he said. “Go online to the Social Security website and get a list of which workers are impacted. Do not fire any workers, but let them know there is a mismatch and let them address it. If they do nothing, you might remind them down the road. Take no further action. If there is a problem this will allow you to say that you acted in good faith.”

Of course, not all ag law revolves around labor. There are many other far-ranging issues. For example, the Bryan Cave Leighton Paisner firm, which is an international firm, is involved in many different areas. Its agricultural work has recently been focused in areas as diverse as product recall and gene editing.

Attorneys Jennifer Jackson, (partner and co-leader of Commercial Disputes Practice Group) and Robert Boone (partner and global leader of Class Action Practice Group) filled in Western Grower & Shipper on the latest legal activity in the product recall arena. Not surprisingly, Boone said the major issues revolve around liability and how companies should protect themselves up and down the supply chain in the event of recall. While liability for harm to consumers will often be determined in court or through negotiations, where the obligations lie along the supply chain for defending lawsuits and paying for damages is typically resolved through contractual obligations.

In a typical fruit or vegetable recall, they said there can be many different firms that touch the product on the way from the field to the fork. And there are many different opportunities for contamination along the way. Boone said all participants upstream and downstream should have a clear legal understanding of the warranties, guarantees and obligations as the product moves from one stop on the supply chain to the next. He said these obligations should be addressed by contract.

He said that companies should have long-standing contracts examined to make sure they cover all the bases. In doing this kind of work, what he often finds is inconsistencies in the contract or among several contracts along a supply chain that cover the same transaction. He added that sometimes there are conflicts within a single contract. He acknowledged that most lawyers are going to find something they believe they can improve in any contract, but he indicated the review is still a worthwhile endeavor.

In the past, there have been issues surrounding the voluntary nature of recalls and the ability to collect on an insurance policy for example, when no smoking gun is ever found. From Boone’s experience, that is no longer an issue. He said while most produce recalls are technically voluntary, in reality the company has no choice but to participate once pathogens are found, governmental agencies get involved and a company’s product is suspect. He did say there can be litigation issues concerning the scope of a recall and the damages incurred because of it. He indicated that an insurance company, for example, could argue against widespread damages if they believe a recall was much broader than it should have been.

Whether a company should have recall insurance, he said is more of an economic decision than a legal one. A company has to determine for itself how much financial risk it wants to take.

Frank Plescia, who is senior director of state government affairs for Bryan Cave, discussed the concept of gene editing and new regulatory issues that could be arising in this arena. He said this is a new field and his law firm is currently working with Western Growers and other stakeholders discussing problem areas and what may emerge as this technology is adopted in agriculture.

At this point, the USDA has ruled that gene editing does not produce a genetically modified organism (GMO) when it involves the manipulation of genes within a species. The GMO issue arises when genes from another species are inserted as part of a gene manipulation process.

Plescia said Secretary of Agriculture Sonny Perdue has made it clear that when plant breeders use new techniques to develop new varieties there will not be additional regulations as long as traditional plant breeding techniques could have achieved the same results over time.

He said the biggest issue surrounding gene editing at this time appears to be the need for an educational effort. The perception about GMO products is well known and food researchers everywhere are understandably apprehensive about using a breeding technique if it becomes associated with that concept. Plescia said public perception is key in the adoption of this gene editing process.

He expects ongoing rule-making processes by U.S. federal agencies to affirm the previous policy statements by Secretary Perdue that the agencies will treat gene-edited products the same way they treat food products resulting from traditional plant breeding methods.