University
of CaliforniaUniversity
of CaliforniaSteve's Selected Notes from Ag-Busnet -- January 2001
Contents:
WPS Train-the-Trainer
A pesticide Train-the-Trainer Workshop, the first conducted by Farm Employers Labor Service, will be conducted Tuesday, February 27, 2001, at the CATI Conference Room, California State University, Fresno. The full-day workshop will certify attendees as trainers of both pesticide handlers and fieldworkers. Workshop attendees will receive the "Train-the-Trainer Program for Fieldworkers and Pesticide Handlers Manual containing materials and information in both English and Spanish. Attendees will also receive a certificate of completion and their names included on the Department of Pesticide Regulation's list of qualified instructors for training pesticide handlers and agricultural fieldworkers.
Continuing Education Credit: PCA, QAL, QAC and private applicator continuing education credits pending approval.
The workshop is sponsored by AgSafe, CSUF Center for Agricultural Business, CSUF California Agricultural Technology Institute, and Farm Employers Labor Service. There is a fee. For more information, call (559) 278-4405. As required by CDPR, class size is limited.
The 9th Annual Foreman Training (in Spanish) will take place
in Modesto, February 20-22, 2001. The cost is $50 per participant,
and includes lunches for all three days. Those who pre-register early
only pay $38 per participant. Topics will include interpersonal communications,
handling difficult performance and disciplinary challenges, conflict management,
listening skills, and supervisory power and abuse of authority (including
avoidance of sexual harassment). For more information call Elizabeth
Resendez at 209-525-6800 or check out Gregory Billikopf's meeting
Website at: http://www.cnr.berkeley.edu/ucce50/ag-labor/7event.htm
Amnesty It's Not -- But
Newspaper headlines like "new life breathed into (1986) amnesty program?" have mislead a number of readers. In any event ...
To benefit from the "late amnesty" provisions of the new "Legal Immigration and Family Equity Act," a person has to "already be a class member" in one of three late amnesty lawsuits. An unauthorized immigrant can not simply step forward today and say "I've been here since before 1982." The filing deadline was September 30, 2000, and these folks will know who they are, and will have at least obtained temporary employment authorization from INS. (Many of these temporary employment authorizations obtained in earlier years have now expired.)
But, what the media has paid little attention to -- that could help thousands here in the San Joaquin Valley -- is a new temporary "V" visa for unauthorized spouses and minor (under age 21) children of lawful permanent residents whose priority date is over three years old (inside or outside the country) and, very important, whose immigrant petition was filed prior to December 21, 2000, the date of the Act's enactment. They would be granted "V" visas along with immediate employment authorization and protection from "removal." (The INS believes a lot of these people are already here.) The V visa is going to give people work authorization quite a few years earlier than under former law.
Unauthorized immigrants in the category above (V-visa) may want to reconsider any plans to leave the country for a while. Why? Because they may be putting their upcoming V visa "status" in jeopardy. If caught by INS at the border, they may be subject to the "bar" from coming back to the U.S. for 3 or 10 years. However, if you stay here, the "bar" does not apply. (Sound logical?)
There are no regulations on the V visa program yet (May, maybe?). Stay tuned. But, agricultural employers can be letting employees know about the upcoming "V" visa.
Side bar ... If a U.S. citizen marries someone here illegally,
he or she should file for an adjustment of his or her status with INS (Form
I-130) on or before April 30, 2001, otherwise they'll have to send
their spouse back to Mexico (or other country of origin) to get a visa
to immigrate. (On a lighter note, should I be "advising" certain
folks to marry before April 30th?)
Supervisor Drug/Alcohol Training
A caller from Mendota called to ask if there are Fresno area classes (2 hours drug - 2 hour alcohol), as required by DOT, for supervisory personnel at firms employing commercial truck drivers. Can anyone help, please?
A reader corrected me ... "Steve, the DOT regulations only require only one hour on drugs, and one hour on alcohol awareness (a combined total of two hours). A Substance Abuse Professional should be able to provide the training or a qualified referral. The gentleman should refer to the Federal Motor Carrier Safety Regulations for guidance on this training."
Another replied ... "You may have caller contact TLC (safety consultants) in Fresno at 276-6207. They've offered the "Reasonable Suspicion Training" (monthly) for supervisors in the past."
And George Daniels, in Sacramento, said ... "Steve
We have a set of videos that comply with the 1 hour drug and 1 hour alcohol training requirement. We also have a training manual for an extra fee. Here is a description of the products:
Supervisor Reasonable Suspension Training Videos: This set of two supervisor training videos explains the D.O.T. alcohol and drug rules and coaches you and your supervisors on the right way to recognize and challenge drug use in the workplace. Use of the program will meet both the 60 minutes of drug education required under D.O.T. regulations and the 60 minutes of alcohol training required as of January 1, 1995. Includes dramatizations of 16 real-life situations that supervisors are likely to encounter while confronting irregular behavior of drivers. Includes Instructor's Guide. In English only." For ordering information go to www.fels.org/catalog1.htm
George Daniels
Farm Employers Labor Service
2300 River Plaza Drive
Sacramento, California 95833
(800) 753-9073
www.fels.org - www.fels.net
Payment on Layoff
A reader from Mecca (California) just asked "how soon do I have to pay workers upon layoff?"
Based on my reading of California Labor Code Section 201, immediately,
unless they are involved in seasonal "curing, canning or drying of any
variety of perishable fruit, fish or vegetables," in which case up to 72
hours is deemed reasonable by the Labor Commissioner.
INS LIFE Act is not Amnesty
Several readers have called about reinstatement of Immigration and Nationality Act Section 245(i).
One asked, "Does anyone have a feel for how 245i might affect agriculture?"
Probably limited consequence. Section 245(i) is not amnesty for all persons unlawfully in the U.S. says the INS in an advisory at http://www.ins.usdoj.gov/graphics/publicaffairs/advisories/LIFEadv.htm. Note advisories (English and Spanish) on the "Legal Immigration and Family Equity Act" also link to fact sheets.
The Act, passed December 21, 2000, will expedite (with a $1,000 payment) legal residents' efforts to gain legal status for spouses and other family members who are already here (unauthorized) in the U.S., and may breath new life into certain 1986 amnesty claimants' chances for legal status.
The INS issued information related to the "Legal Immigration and Family Equity Act" in Spanish at: http://www.ins.usdoj.gov/graphics/publicaffairs/pachron.htm A New York reader and I think the INS should have clarified what is meant by "application for labor certification."
Washington, D.C. and UC Davis readers clarified key provisions ...
* 245(i) Temporary Restoration
The new legislation provides a temporary restoration of INA section
245(i).
Section 245(i) permits certain classes immigrants who are eligible
for lawful
permanent residence status (a green card) to be granted such status
without
leaving the U.S. (upon payment of a $1,000 fee). * * *
Immigrants who can adjust status without leaving the U.S. are not
subject to
these three and ten year bars. The new legislation will apply
to immigrants
who were physically present in the U.S. on December 21, 2000 (the
date of
enactment of the legislation), and who have a relative petition
or a labor
certification application filed on their behalf before April 30,
2001. An
immigrant who meets these requirements will be "grandfathered" into
245(i)
eligibility, and will be able to adjust his or her status without
leaving the
U.S. once the visa becomes available, even if that does not happen
for many
years.
________________________________________________________
Steve--FYI--more at http://migration.ucdavis.edu
Legalization. On December 15, 2000, Congress approved the Legal Immigration and Family Equity Act (LIFEA) that: (1) allows an estimated 400,000 unauthorized foreigners to apply for legalization if they can prove they entered the US before January 1, 1982; (2) establishes a new V-visa program for an estimated 500,000 family members of legal immigrants who have been waiting for the INS to deal with their applications for greencards for at least three years; and (3) re-establishes the 1994-98 245(i) program for four months, until April 30, 2001, which may enable 200,000 unauthorized foreigners in the US awaiting immigrant visas to pay a $1,000 fine instead of having to leave the US and obtain their immigrant visas at a US consulate abroad.
Senator Phil Gramm (R-Texas) led those opposed to a broader legalization, saying: "I am as strongly committed to immigration as you can be committed to immigration. But I draw a bright line -- it is as bright as the morning sun -- and it is on one issue: People should come to America legally."
About 2.7 million unauthorized foreigners were legalized in 1987-88
under IRCA. However, hundreds of thousands argued that their applications
were rejected, or they were discouraged from filing applications, because
the INS interpreted the general amnesty program to require "continuous
US residence" too strictly. The new legislation will permit an estimated
400,000 who were continuously in the US between January 1, 1982 and May
4, 1988 to file late IRCA-amnesty applications. The spouses and children
of these late IRCA-applicants may also remain in the US.
Providing I-9 to EDD Voluntary
Hello Steve:
Thank you for returning my call regarding the inquiry you received from
your customer who questioned if the Employment Development Department (EDD)
has the authority to request a copy of a former employee's Employment
Eligibility Verification, Form I-9, from the employer and other related
questions.
Your customer wrote:
"A terminated employee (fired) applied for EDD benefits. A representative of the EDD office called and stated that the INS has a discrepancy with the information provided by the former employee. EDD has requested a copy of the I-9 form. I have several questions:
1. Does the EDD have entitlement to receive the I-9?
2. Should we send this via fax or would we be out of bounds?
3. If EDD benefits are denied based on the I-9 form would we
be liable?
4. Is this standard procedure for the EDD to request these forms?
By way of follow-up I contacted EDD's Legal Section and EDD's Investigation Division and they have provided the following information in response to the questions raised by your customer.
Questions 1 and 4. Does the EDD have entitlement to receive the I-9? Is this standard procedure for the EDD to request these forms?
Yes. The Director of EDD has broad discretion to administer the
programs established in accordance with the California Unemployment Insurance
Code (CUIC). One area of the Director's responsibility is to investigate
and
prevent fraudulent benefit claims against the Unemployment Insurance
and State Disability Insurance Funds. The Director has delegated
this function to EDD's Investigation Division.
Section 1085(c) of the CUIC requires an employer to maintain information that EDD deems necessary for the proper administration of the program. Title 22, California Code of Regulations, Section 1085-2, lists the required work records. There are other records including the Form I-9 that may be maintained by an employer as part of its employment process. In the course of their official duties, EDD investigators may make inquiries as to the work records maintained by an employer and may ask for copies of any work record.
Question 2. Should we send this via fax or would we be out of bounds?
The information may be transmitted by fax.
Question 3. If EDD benefits are denied based on the I-9 form would we be liable?
Whether a UI claimant is eligible for benefits includes the issue of the claimant's ability to legally work in the United States. When a claim is filed a process exists where EDD confirms the worker's status with the Immigration and Naturalization Service. The employer is not part of that process.
The Department may ask to view the Form I-9, however, there is not a penalty to the employer if the employer does not comply with this request.
I trust the above information has answered your questions and concerns. If you need additional information please contact John Widmer at (916) 654-8031, or by reply e-mail.
Employment Development Department Unemployment Insurance Division-Central
Office MIC-40 Sacramento, CA 95814
A reader replied:
"Steve:
Just a comment on the issue of cooperating with the EDD on
unemployment fraud: There is a tremendous shortage of ag workers in many
parts of the state. This shortage is exacerbated by employees collecting
U/I benefits under one name and working for another company under another.
Many Ag organizations have been working with EDD to stop this fraud and
hopefully impact the worker availability problem. Congress ignores
us when there is 25% unemployment in these ag communities during peak season.
We know these figures are skewed by fraudulent claims. If employers
want help from the government on this problem, ag employers are going to
have to cooperate with these agencies."
A Florida attorney, though, cautions about sharing I-9 info. with state unemployment insurance investigators:
Before an employer provides their I-9's to any governmental agency
they should be aware of the INS regulation at 274a.2 (b) (4) which states
" Any information contained in or appended to the Form I-9, including copies
of documents listed in paragraph (c) of this section used to verify an
individual's identity or employment eligibility, may be used only for enforcement
of the Act".
Are They Headed This Way?
Cal/OSHA Active in Agriculture
A call today leads me to think the Cal/OSHA Enforcement office has made a few "farm visits" in the Sacramento area. These officers, I suspect, may have found some employers still without a written safety program. Attached is a (fill-in-the-blanks) compliance tool I prepared some time ago.
Employers should consider taking advantage of private consultants with long and/or reputable track records in agriculture (that I can't mention here) and the Cal/OSHA Consultation Service (non-enforcement). I find employers still reluctant to invite Cal/OSHA Consultation on-site, but they do have numerous (free) printed resources, checklists, phone consultation, and a video library. Their local number is on the Cal/OSHA poster "Safety and Health Protection on the Job" I presume everyone has.
If you don't, consider ordering it at http://www.dir.ca.gov/DOSH/dosh_publications/index.html
More on Cal/OSHA Consultation is at http://www.dir.ca.gov/DOSH/consultation.html
INJURY AND ILLNESS PREVENTION PROGRAM
It is the policy of to provide safe work conditions for all employees. Our safety program’s success depends on everyone's help. will have authority and responsibility for maintaining the Injury and Illness Prevention Program and will be accountable for safety practices, safety education and training, communicating safety information and fire protection.
Communication and training of new processes, new procedures, new equipment, safety activities, hazards, and safe work practices will be done by a combination of the following:
1. one on one meetings with the employee,
2. training meetings,
3. postings on the bulletin board; or paycheck enclosures.
Supervisors are responsible for getting first aid and medical care, and for filling out all necessary safety related forms. Supervisors will be knowledgeable of the safety and health hazards to which employees under their immediate direction and control may be exposed.
Procedures to investigate occupational injury, illness or exposure to hazardous substances include collecting appropriate information which will lead to a plan to prevent recurrence.
Procedures for correcting unsafe or unhealthy conditions and work practices will consist of either one or a combination of the following:
1. hazard reduction or abatement, 3. personal
protective equipment, or
2. safe guarding,
4. training.
A health and safety training program to train employees in general safe and healthy work practices and to provide specific instruction with respect to hazards specific to each employee's job will be provided to all new employees and to all employees given a new job assignment, and employees will be trained whenever new substances are introduced to the workplace and represent a new hazard, and whenever the employer recognizes a new or previously unrecognized hazard.
Each employee has to learn and obey safety practices and rules, and use all proper safety devices and protective gear. Disciplinary actions will be taken to assure that employees comply with safe and healthy work practices.
Employees must inform their supervisor, or themselves correct, all safety, health, and fire hazards on discovery. Employees will not be dismissed or discriminated against for informing supervisors or owners about work site hazards. If in doubt about a health or safety matter, employees have a duty to talk it over promptly with their supervisor.
Employees must report immediately any accidents to their supervisor. First aid supplies are easily accessible at . Locations of the nearest doctor and medical facility are posted on the bulletin board.
will conduct inspections to identify and evaluate unsafe conditions
and work practices. These inspections will take place whenever new
substances, processes, procedures, or equipment are introduced to the workplace
and represent a new occupational safety and health hazard; and whenever
new or previously unrecognized hazards become known to
.. These inspections are in addition to the everyday safety and health
checks that are a part of routine duties.
PROGRAMA DE SEGURIDAD
Es la póliza de __________________de proveer condiciones de trabajo seguras para todos los empleados. El éxito del programa de seguridad depende de cada uno de los empleados. _______________ tendrá la autoridad y la responsabilidad de implementar el programa de prevención de accidentes y enfermedades y será responsable por las prácticas de seguridad, entrenamiento, educación y de información con respecto a la seguridad y protección contra incendios.
La comunicación y entrenamiento de procedimientos nuevos, equipo nuevo, actividades de seguridad, riesgos, y prácticas de la seguridad en el trabajo serán hechos de acuerdo a una o una combinación de los siguientes:
1. Conferencias personales entre el supervisor y el empleado.
2. Sesiones de entrenamiento.
3. Anuncios en el tablero de información de la compañía,
o información escrita incluída con los cheques del empleado.
Los supervisores son reponsables de obtener primeros auxilios y cuidado médico, y de llenar todos los cuestionarios necesarios relacionados a la seguridad. Los supervisores tendrán conocimiento sobre los riesgos a que pueden ser expuestos sus empleados con respecto a la falta de sanidad y la seguridad.
Los procedimientos para investigar accidentes en el trabajo, enfermedades o contaminación con substancias peligrosas (pesticidas) incluyen la colección de datos pertinentes que pueden ser útiles en la preparación de un plan definitivo para la prevención de accidentes en el trabajo.
Los procedimientos para corregir situaciones inseguras o insalubres de trabajo y prácticas peligrosas consistirán en la implementación de uno o más de los siguientes puntos:
1. Reducción o eliminación del peligro.
2. Prevención.
3. Uso de equipo protector personal.
4. Entrenamiento.
Un programa de entrenamiento de seguridad y sanidad para proveer instrucciones
específicas con respecto a los peligros de cada trabajo, deberá
ser organizado para nuevos trabajadores, y
trabajadores que han sido asignados a nuevos trabajos. Los empleados
deberán ser entrenados cada vez que se usen productos químicos
nuevos que puedan presentar nuevos peligros y cuando el empleador sea notificado
de un nuevo peligro en el área de trabajo.
Cada empleado debe aprender y obedecer las prácticas y reglas
de seguridad y debe usar todo el
equipo de seguridad y protección. Se tomará acción
correctiva para asegurar que cada empleado siga las reglas de seguridad
y de sanidad indicadas.
Los empleados deben de informar a sus supervisores, o ellos mismos deben corregir todos los peligros de seguridad, sanidad e incendios cuando estos se descubran. Los empleados no podrán ser despedidos o discriminados al informar a los supervisores o a la gerencia acerca de peligros en el trabajo. Si el empleado tiene dudas acerca de cualquier asunto respecto a su seguridad o sanidad, tiene el deber de conversarlo inmediatamente con su supervisor.
Los empleados deben reportar a su supervisor cualquier accidente inmediatamente. Los primeros auxilios pueden ser obtenidos fácil y rapidamente en __________________________ . La dirección del doctor y oficina médica más cercana se pueden encontrar en el tablero de información.
___________________ van a conducir inspecciones para identificar y evaluar
condiciones o prácticas peligrosas de trabajo. Estas inspecciones
deberán realizarse cuando nuevas substancias, procedimientos, procesos,
o equipos presentan un peligro nuevo para la salud en el lugar de trabajo,
y cuando reciban notificación de un nuevo peligro que antes no habiá
sido reconocido. Estas inspecciones son fuera de las inspecciones
diarias de seguridad y sanidad que son rutinas por parte de los supervisores.