Agricultural Personnel Management Program
University of California

Steve's Selected Notes from Ag-Busnet -- June 2000

Contents:

• Avian Biosecurity 6/26/00
• I-9s in Personnel Files?  6/22/00
• I-9 Reverification -- Seasonal Exception 6/22/00
• Advice if Employee Reports (s)he has Hepatitis C  6/18/00
• Policy for Avian Biosecurity 6/16/00
• Astute Contractor Asks About State License Application Form 6/15/00
• Growers and FLCs Reach Out for Info on Registration 6/15/00
• Fresno County Policy on Pesticide Complaints 6/13/00
• Equal Time Given Re: Van Driver Education Advice 6/12/00
• Managing Pesticide Drift 6/12/00
• When Worker Reports Hepatitis C 6/9/00
• Agricultural Research Service Newslink Available 6/9/00
• California Pesticide Civil Penalty Report Online 6/9/00
• Here's a Guide to Agricultural Heat Stress 6/6/00
• Beginner's Kit for Small Ag Employers 6/6/00
• Local Grower asks about Educating Van Drivers 6/1/00

In a June 16 email to ag-busnet, I noted the growing number of poultry companies with written sanitation policies that include provisions prohibiting any employee from maintaining any "outside bird interests" at their homes -- to prevent the transmission of disease organisms (viruses) into and between facilities housing the company's live products.  An agricultural attorney sent me this cautionary note.
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"This is exactly the type of situation employer groups warned against in opposing last year the addition of subdivision (k) to California Labor Code section 96 by Dick Floyd's AB 1689.

That provision authorizes the Labor Commissioner to take assignments of "Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises."

Raising birds at home is "lawful conduct occurring during nonworking hours away from the employer's premises." Therefore, under this statutory provision, an employee could file with the Labor Commissioner a claim for loss of wages because of the employee's discharge for raising birds at home.

(Discharge for moonlighting is one of several other areas employer representatives fear may be covered by Labor Code section 96, subdivision (k).)

Further, requiring an employee to allow an employer to inspect the employee's residence arguably violates the right to privacy guaranteed by Article I, Section 1, of the California Constitution."
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Despite this new employee protection in the Labor Code, it's unlikely many California poultry firms will abandon the disciplinary components of their Avian Biosecurity Policy.  The "heads up" from this reader, though, is appreciated.

One (in place) bio-security policy I was sent (company name blacked out) is silent about visiting an employee's home, but it's interesting to note the company says, in part, "the keeping of game (fighting) cocks is particularly dangerous and will not be allowed."

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The I-9 records should be maintained by the employer in a separate I-9 file, apart from the other personnel records.  A separate I-9 file will make it easier for an employer to put in place a system for reverification of employment eligibility for those employees for whom reverification is required, and to discard those I-9 forms no longer required to be maintained by the employer (one year after an employee leaves, or 3 years from the date of hire, whichever is longer).

A separate I-9 file preserves the privacy of the other information in an employee's personnel file.  And keeping the I-9 in the personnel file provides information to the employee's supervisor regarding citizenship status (and age) that should be irrelevant to the person's employment.

Finally, a separate I-9 file will make an INS audit smoother (quicker), and probably keep the officer in a better mood.  The only form I can think of an INS investigator would be interested in is IRS Form W-4 on which the social security number is required.  (The Social Security Administration policy is to cooperate with INS investigators seeking to "identify aliens and their location.")  If and when a revised Form I-9 is issued by the INS, employees will see clearly on the form that the social security number is "(optional)."

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A local reader wrote:

Steve:

It is my understanding that employers are required to retain Form I-9 for 3 years after an employee's hire or rehire date or 1 year after an employee's separation (IRCA of 1986). Then, the forms can be destroyed. Is my interpretation of the law correct?

Also, I understand we are to re-verify a returning employee's eligibility, then complete Section 3 of the form accordingly. In our industry, employment is seasonal so employees come and go several times during the same calendar year. If we are to follow the re-verification requirement every time, it becomes tedious and labor intensive, and in many cases, impossible to comply. Is there an exception to the rule that you know off?

Please provide your opinion on this subject. Also, I'm very interested to know what others in the industry are doing to comply, if you have any knowledge regarding their I-9 Form Policy.  Thanks, Steve.
            ____________________________________________________________

In general, an employer must complete an I-9 any time an individual is "hired" for employment.  Some situations, however, do not constitute a "new hiring" which would require an employer to complete a new Form I-9 for the employee if a Form I-9 has previously been completed.  An employer will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times.  An employee is considered to be continuing in his or her employment if the employee is engaged in seasonal employment.

The employer must maintain the I-9 form for all current employees.  And yes, for employees whose employment has ended, the employer must maintain the I-9 form for at least 3 years from the date of hire, or for one year after the employment has ended, whichever is later.

Periodically review the I-9 file to eliminate I-9s (and copies of the verification documents presented by the employee, if the employer has decided to make such copies) no longer required to be maintained because of the passage of time.

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Thank you to UC's Jim Myers.
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Steve: I asked Julia Faucett to take up this question. Here is her response:

"RE: the question referred to me about a reader of the listserve operated by the USDA Agricultural Research Service: "I was wondering, do you know what should be done if an employee reports that he/she has been diagnosed with Hepatitis C?"

I queried an international infectious disease expert and offer the following commentary about Hepatitis C (HCV):

1. It would be good for the employer to recommend that the HCV infected farmworker seek follow up medical care and patient education.

2. If supervisors or other workers are exposed on their mucous membranes or through an open wound of their own to the HCV infected worker's blood or body fluids (because the infected worker has cut him/herself, for example, and a supervisor assists him with first aid, but gets the worker's blood into an open wound of his own), the area should be washed with soap and water and the employer should consider baseline and follow-up testing of the newly exposed worker. There is no post-exposure prophylaxis (e.g. preventive treatment once exposure has occurred) for HCV. In such an exposure one would need to consider Hepatitis B (HBV) and HIV as well. The best way to approach this would be have the worker report to a local ER. The ER clinician could then assess the worker for risk of transmission for these exposures. If the ER clinician needs guidance, s/he could call the national PEPLINE 1-888-HIV-4911. Hepatitis C is most commonly transmitted via needle injection or needle sticks or blood transfusion -- it is not airborne nor is it transmitted through casual contact.

3. The expert reports he is not aware of transmission through food products or other surfaces and would not worry about this."

Julia Faucett, RN, PhD
Associate Professor & Director,
Occupational & Environmental Health Nursing Program
University of California
San Francisco, CA 94143-0608
Telephone: 415-476-3221
Fax: 415-476-6042

Hopes this helps.

James M. Meyers
School of Public Health
University of California
Berkeley, CA 94720
Phone: 510-643-5310
Fax: 510-642-5815
AERC Web Page @ http://ag-ergo.ucdavis.edu

Owner's note:  How common is the disease?  Approximately 4 million Americans are infected with HCV.  About 30,000 new cases of Hepatitis C are estimated to occur each year in the U.S., but only 25 to 30 percent of the people that are newly infected with this virus are diagnosed by a doctor.  The number of new cases of Hepatitis C infections that occur each year has been declining since its peak in 1989.

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A reader wrote recently

"We are a local poultry company working to advance our biosecurity level at our farms.  We would like to implement a policy that prevents our farm employees from owning avian species at home due to the possibility that they may bring a contagious avian virus to work and contaminate one or several of our farms.

I have addressed this to our attorney and to another colleague, but both were unfamiliar in this area.  Do you or anyone have any input on this?"

It's a growing practice in the poultry business, I've learned, to ask employees:

"Are there any poultry or birds kept at your house, apartment or duplex?"

"Would you allow us the opportunity to visit you?   If  No, explain"

"Do you understand that failing to follow this company's sanitation and biosecurity policies may be grounds for termination?"

Contact Yolanda Murillo at ymurillo@ucdavis.edu for a one-page (14 question) "Employee Biosecurity Questionaire" in English and Spanish, and training log.

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A recurring California farm labor contractor question clarified ... In a May 17 post, I asked "would a farm labor contractor violate any section of the California Labor Code by employing someone to perform farm labor contracting activities who has a lapsed, suspended, or revoked California farm labor contractor license?"  These activities are "supervise, recruit, solicit, hire, furnish, employ, pay, transport or otherwise direct or measure the work of agricultural employees."

In a call back from David Gurley, Licensing Attorney, Division of Labor Standards Enforcement, it was confirmed there is no specific code section that says, in effect, "do not hire (as a contractor) a revoked or denied farm labor contractor to perform farm labor contracting activities."  The Code is "somewhat grey," he said.  He admitted I had "pinpointed the problematic area," but the Legislature or organizations would have to see a need for such a prohibition.

But, because of the concern of some contractors, the DLSE will not "ignore" new FLCs who (they learn) are sons, daughters, parents, or cousins of contractors recently revoked or denied.  Evidently that's a large part of what they're looking for with the new question 21 on the FLC application.

If an investigator determines it's the revoked or denied dad running the contracting business, instead of the newly-licensed daughter, the daughter's license is then in jeopardy.  One contractor I work with has suggested that the state contractor's license include a photograph.

Without a specific Code section to work with, Gurley has recently used an innovative approach (that he says is working).  The daughter signs a "stipulated agreement" to the effect that if it's found that revoked or denied dad is just using the arrangement as a subterfuge to evade the licensing requirement, she automatically loses her license.

Gurley also said the agency's policy of fingerprinting, IRS check, and character affidavits for new farm labor contractor (and day hauler) applicants are good background checks to "assess character, competence, and responsibility."

It's interesting to note, though, that if a quasi-governmental transit authority (funded, in part, with federal and/or state grants) wants to get involved in area farm worker transportation, they will (under current law) be considered State "day haulers."  It's generally unknown that someone in the agency would have to step forward for fingerprinting, IRS check, and character affidavits.

Proposed AB 602 (Florez) would, in it's present form, "disconnect" the day hauler licensing from the farm labor contractor licensing which, if not as stringent in requirements, could bring many of the "thousands of (unlicensed) transporters out there" into the system -- and perhaps facilitate some public involvement in California farm worker transportation.

The provisions to separate day haulers from contractors were lined out of proposed AB 602 on July 5, 2000.

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All in a day ... a large Valley grower's comment and question ...

"Ag-busnet has really been great."

He then said:

"Also, several contractors have expressed their concerns and unhappiness regarding the DOL's processing of their federal registration certificate.  Apparently, there's been a tremendous delay in the processing of these certificates and many contractors are left in limbo.  Recently, I contacted the San Francisco office and spoke with Ramon Lopez (at 415-975-4521).  I inquired about the registration status of a contractor we wanted to use but did not get anywhere.

At the state level, there's an excellent data base where license updates are posted.  I'm unaware of one at the federal level.  Do you know if they have one?  If so, please provide their link.  If not, what can contractors do?  Is it permissible for growers to hire contractors just with the confirmation letter indicating that their application was received?

Would appreciate your thoughts on this issue.  Thanks, Steve"

Thank you very much for bringing this to my attention.  I sympathize with your concerns as a grower seeking to comply.  I hope the following message will ease the worries felt by your contractors, and some others on this growing list.

In defense of Ramon, who I spoke with shortly after I got your message ... he is one of a 2 or 3-person processing unit who said this has been (and still is) a "hectic" year because of the loss of a long-time co-worker (to a promotion) -- with a list of 10,000 FLC registrants, that is growing.  Despite his present workload, he will respond to all callers.  The current backlog, he estimated, is 2 months.

The sudden surge in applicants, he thinks, may be related to increases in the number of federal enforcement officers working in California fields.  And there's 16 more on the way for the Western Region, I later learned.

I also learned later in the day that Ramon will soon be getting 3 new (bilingual) co-workers.

In regard to electronic status verification of registrations, the DOL did have an 800 number in Washington, DC to verify registration status, but then the registration process was "decentralized" to the regions.  I agree, it would be most useful to have the list and registrant's status in a searchable data base at some web site.  Various agencies could probably use such a tool in "cooperative" enforcement work.  The DOL in the Western Region has just recently provided the list in computerized form to their local Wage and Hour officers.

Yes, the on-line State FLC list (containing 1,100 license holders) is a good one.  I commend whoever initiated it.

Now the question I know is your most important.  "Would U.S. Wage and Hour officers fine a grower (or contractor) $1,000 if the contractor only has a receipt of application letter?"  "Unlikely," said Ramon.

That answer wasn't clear enough for me, nor would it be clear enough for you, I suspect.  That prompted me to pursue "the top" in San Francisco.  Since I've worked very cooperatively (in education, I hasten to add) with the U.S. Wage and Hour Division for 13 years, it only took about the same number of minutes of telephone work to reach Diane Reese, who oversees U.S. Wage and Hour officers in the Region, and the registration processing unit as well.

So, here's the answer you've waited for.  After posing the same question I asked Ramon, she declared a definite yes (even for first-time applicants).

Not only can contractors use the federal receipt of application letter to operate (even after this unusual logjam is cleared) they can also use it to renew their California license with the DLSE processing office in San Francisco.

And contractors can get a same-day federal receipt of application letter, by traveling to the DOL office in San Francisco.  Fortunately, these contractors already have their letters.

By the way, reader ... Diane Reese thought your suggestion that the federal registration list become a searchable database on the Internet is "a great idea!"  I suspect we'll see some developments in coming months.  And I'm glad she wants to work with the University of California in future outreach.

Thanks for your confidence. ... Steve

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Following is an explanation of Fresno County's policy on pesticide complaints by Doug Edwards, Deputy Ag Commissioner.

Steve,

Perhaps it would have some value to explain our policy on complaints.  This office investigates ALL complaints about pesticide use.  The quality of the investigation and therefore the value of the result is entirely dependent upon the accuracy and completeness of the information we obtain.  The more the complainant is willing to be involved in the process, the better job we
can do and the greater likelihood that we will be able to successfully prosecute the offender. It is therefore our desire to meet with and interview the complainant so that we can gather adequate information upon which to base the rest of the investigation.  It is also often necessary to go back and get further information to clarify the situation as further data becomes available.  Be that as it may, we will pursue any information to the extent that we can under any circumstances.  There are also two levels of anonymity.  An anonymous complaint is one in which we don't know who the complainant is.  Or a confidential complaint is one where we know the complainant, but we keep this information from the subject of the complaint. We can work with either situation.  As to testifying at a hearing, we can't MAKE anybody testify, but if we didn't observe the violation, and the violation can't be proven by some other means such as residue analysis or documentation, the only direct evidence we can obtain is the testimony of the person who observed the violation.

Hope this helps.  By the way, I would greatly appreciate it if you would refer your "reader" to me.  At the very least I want to find out who was doing the dusting so we can go talk to them and conduct a little education.

Thanks,

Doug

Steve's Note:  Evidently the grower did receive a visit.  He dusts sulfur in the middle of the night now.

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Hands off the Van Drivers? ... On June 1, I posted a note, the gist of which was, in my opinion, growers and contractors should get involved in "encouraging" van drivers to have their vehicles CHP inspected, and pursue a commercial class B license, if required.  I've been so busy it's only now that I give equal time to an opposing reader viewpoint, which I appreciate receiving.

"Steve,
If I could comment on this please.  I was a workers compensation claims examiner for 10 years and specialized in handling agricultural accounts because of my bilingual skills.  I managed accounts for both labor contractors and growers.  I often had claims from injured employees who were injured in van accidents.  Often their lawyers would sue both the van driver and the labor contractor and/or the grower.  Often, the contractor/grower would be held partially liable, even if total liability lay with the independent van driver, who the contractor/grower didn't even know.  We advised our contractors/growers to stay as far away from managing or being involved with the van driver as possible in order to not be held liable.

In one case four years ago, there were 15 passengers in the van, 10 were severely injured and one fatality.  Our policyholder had a lot to loose if he was found liable for those injuries.  If the policyholder had had any control over the driver's licensing, manner in which he did his job, or what he drove, then the driver would have been considered an employee and thus anything he did or caused to happen would be the contractor/grower's responsibility.  The van driver had been carrying water to the fields for the contractor, so the contractor had to pay out hundreds of thousands of dollars.

So my only thought to you and your viewers is that they contact their insurance agents about this subject before getting too involved with those van drivers."

Since then, two contractors have come to my "defense."  A small contractor said "may as well get involved, we would be sued anyway."  A large contractor said "let's be part of the solution, not part of the problem."

In any event, I will pose the issue (does noninvolvement insulate) to all three of the attorneys (all from different firms) next week at the FLC conference, as my reader suggested.  (One of the three handled the above case.)  Stay tuned.

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The first item in a sulfur application check-list in the leaflet "Sulfur Best Application Practices," issued recently by the Coalition for Urban/Rural Environmental Stewardship (CURES) is:

Check wind speed and direction.

On Friday June 2nd, at 6 (and 7) pm, the wind at Fresno Airport was "about" 10 mph from the NW, according to a National Weather Service official I spoke with in Hanford, CA.

During that hour, a Fresno County ag-busnet reader (a new homeowner whose house is SE of a certain vineyard) went outside to see what all the equipment noise was.  She saw a tractor-applicator combination driven at relatively high speed -- making an impressive overhead cloud of dust and "stuff that stunk."  The duster still spewed "stuff" during rapid row turns, she said.

My reader (who called early the following Monday) was angry, knowing it was a pesticide, and concerned about what was being applied as she observed the dust cloud over neighborhood homes.

Although I've delivered a number of pesticide talks to California growers, commercial applicators, and field worker trainers, I wasn't certain about pesticide complaint procedures.  So, on behalf of my reader, I decided to be a "first-time caller."

In my call to next door, I was surprised to learn a "third party" complainant (homeowner in this case) has to bear in mind they "may" have to appear in an administrative hearing, and face their grower-neighbor.

For what? -- a $150 to $400 administrative penalty, maybe?  My reader decided to back away.  Little wonder that complaints from California's public are so rare.  Well ... at least the chief inspector knows where one of my readers lives.

Generally, it's the county agricultural commissioner's staff that have to spot violations and, in some cases, take samples.  And they respond to accidents.  See Saturday's (6/10/00) The Fresno Bee article "24 South Valley farmworkers treated for pesticide exposure."  The case involved Tulare County farm workers (near Porterville) sickened by an aerial orchard treatment of a Lorsban/Omite mixture "1/4 to 1/2 mile away."

I wonder what the wind speed was.
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Side-Bar ... A CAL/OSHA enforcement officer I spoke with later agreed my case seemed to point to a "flaw" in the way complaints related to pesticide applications are handled.  In contrast, Cal/OSHA will respond to a written and signed complaint concerning a workplace, and protect the identity of the complainant.  One way they attempt to do this is to conduct a thorough wall-to-wall inspection -- only half way through do they "discover" the specific problem.

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The grower who asked what should I do if an employee reports that he/she has been diagnosed with Hepatitis C gets this response from a grower-packer:

"Unless you are sharing a needle or exposing yourself to the person's blood, it is no problem.  Maintain a good bloodborne pathogen program.  An outbreak of the information may prove more deadly than the virus -- violating an employee's medical confidentiality is illegal.  It may be a FMLA issue or ADA concern (consult counsel)."

Readers may want to order a "Bloodborne Pathogens Resource Package" at Cal/OSHA Consultation's order site: http://www.dir.ca.gov/databases/edtraintest/public3.html

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-- Ag-busnet readers,

Here's a sample post from USDA's ARS who may wish to subscribe to.
________________________________________________________________

ARS NEWSLINK: Web links to stories issued June 5-9
___________________________________________

ARS News Service
USDA Agricultural Research Service
June 9, 2000
___________________________________________

E. COLI IN MEAT: A new way to detect E. coli O157:H7 and other microbes could help the industry improve meat safety. (6/5) http://www.ars.usda.gov/is/pr/2000/000605.htm

HONORS: 61 ARS scientists receive awards from Secretary Glickman at USDA's annual award ceremony. (6/5)
http://www.ars.usda.gov/is/pr/2000/000605.2.htm

SUNFLOWER FREELOADER: Scientists seek a genetic cure for broomrape, a parasitic weed that could threaten the U.S. sunflower crop. (6/6) http://www.ars.usda.gov/is/pr/2000/000606.htm

HENRY A. WALLACE: ARS' largest facility now bears the name of this forme Vice President, USDA Secretary and corn geneticist. (6/6) http://www.ars.usda.gov/is/pr/2000/000606.2.htm

FERN FIGHT: An Australian moth could be the first insect used to battle Old World climbing fern, an invasive weed threatening the Everglades and other U.S. ecosystems. (6/7) http://www.ars.usda.gov/is/pr/2000/000607.htm

TOMATO WEED WHACKERS: In tests of a potential natural alternative to methyl bromide, helpful fungi killed four different weeds in tomato plots. (6/8) http://www.ars.usda.gov/is/pr/2000/000608.htm

BROCCOLI V. COLON CANCER: Specially-grown broccoli dramatically reduced early stages of colon cancer in rats. (6/9)
http://www.ars.usda.gov/is/pr/2000/000609.htm
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* NEWSLINK is the weekly e-mail pointer for web links to stories issued each workday by the USDA-ARS. To subscribe or unsubscribe, send Internet e-mail to majordomo@ars-grin.gov. Leave the subject blank. Type as the message body "subscribe ars-newslink" or "unsubscribe ars-newslink" (without quote marks).

* To subscribe to the daily ARS News Service, send Internet e-mail to majordomo@ars-grin.gov, leave the subject blank, and type as the message body "subscribe ars-news" (w/out quotes).

* Get the latest ARS news at http://www.ars.usda.gov/is/pr/thelatest.htm

* Feedback and questions to ARS News Service at isjd@ars-grin.gov

* ARS Information Staff, 5601 Sunnyside Ave., Room 1-2251, Beltsville MD 20705-5128, (301) 504-1638, fax 504-1648.

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The latest (July 1, 1996 through June 30, 1997) California Agricultural Commissioners' "Administrative Civil Penalty Report" is at: http://www.cdpr.ca.gov/docs/dprdocs/cvlpnlty/9697/indx9697.htm. Although all of the links provide information of interest, click on "By Case Number" for the finer details.

Pesticide-related fines levied for the year by California's 58 county agricultural commissioners totaled $197,432 in 665 cases (average $297 per case.)  A majority of cases were outside agriculture (structural pest control, schools and government agencies, landscape operators, and golf courses).  Statewide, two unlicensed maintenance gardeners were fined.

Some agricultural counties, including Stanislaus and San Joaquin, had no penalties levied.  The numbers of warnings issued by county agricultural commissioners, generally for paperwork problems, are not tallied in the report.

Since "violators" are identified by company name, California ag-busnet readers can peruse the document to see if any neighbors (or favorite maintenance gardeners or golf courses) were fined.  Note the case numbers are sorted by a county acronym.

The State's 5 cases labeled "failure to prevent substantial pesticide drift to nontarget areas" were all agricultural (2 were aerial) and occurred in Fresno and Tulare Counties.  Fines levied ranged from $150 to $400.  An unlicensed Pest Control Operator in Fresno County received a $100 fine!
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Note: The reason I mention drift is a piece I'm working on concerning a recent experience of an (anonymous) Fresno reader.  That event also spurred this writing.

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A reader in San Diego wrote:  "Steve: I recently saw a publication you prepared titled "A Guide to Agricultural Heat Stress."  Our county agricultural commissioner's office has duplicated it and sends copies to growers. I also just sent a copy to Xxxxxxxx in Carlsbad, CA and realized that the publication is not an ANR (Agriculture & Natural Resources) leaflet.  I think you should consider publishing the information as a state leaflet."

Good suggestion.  In the meantime, ag-busnet readers and others are welcome to email Yolanda Murillo at ymurillo@ucdavis.edu. She'll email the Guide to you as a Word attachment. The document ends with 2-page English and Spanish safety "paycheck stuffers."  Thanks Yolanda.

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A UC reader in Siskiyou County, CA (near Oregon) wrote: Steve, A new small-scale grower called me and they wanted information about labor laws.  They only have about 40 acres and 2 of which are in various vegetables.  They wanted to hire a part time field worker but were concerned about ag labor laws and liability.  Do you have any generic information for small-scale producers.

Thank you very much and I look forward to hearing from you.
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    A lengthy piece -- but this is one of my "repeat" walk-in questions.  Now I have hard copy. _____________________________________________________________________________

Many small farm operators can't afford to pay someone to keep their records, calculate business income or loss, subtract taxes from wages paid certain workers, and complete required government forms.  Operators of small farms often rely on a family member to do many of these things, with some help from low-cost advisors.

One resource need that often crops up as a small farm business is established, grows, or matures is hired labor.  Hired farm labor can increase business profits several times its hourly rate.  It's important, though, to get started right, so that chances of serious penalties or other employment-related costs are reduced.

In California, representatives of the Employment Development Department (EDD) are available to field questions related to agricultural job placement, unemployment insurance, labor market information, and when appropriate, refer the public to other service agencies (including cooperative extension).  All states have an employment services (ES) agency under some name, with local offices.  There's an EDD office in "downtown" Yreka.  My reader may want to find out who the agriculture representative is.  Over the years, I've found EDD's (and North Carolina's ESC) personnel most cooperative and helpful.

Most beginning employers (who plan to hire workers directly) seek guidance on required paperwork, employment taxes, and posters.  So, let's take a look at California's key requirements.

 (1) If you hire one or more employees, you must apply once only for a Federal Employer Identification number (EIN), using IRS Form SS-4.  Request on (800) 829-3676 or go to: http://www.irs.gov/prod/forms_pubs/index.html. At the same time, request (or download) IRS Form W-4 for each employee to complete -- and acquire 2 references: IRS Publications 51 "Circular A, Agricultural Employer's Tax Guide" and 225 "Farmers Tax Guide." It's probably more convenient to order IRS publications by phone -- these two are lengthy.

 (2) California's Employment Development Department  also assigns an employer number.  Agricultural employers register with Form DE 1AG.  Click on "California Employment Tax Forms" at our APMP web site at: http://are.berkeley.edu/APMP/zmgtools/posterform/posters.html. Once a completed registration form is completed and mailed, you'll be notified of your EDD identification number by mail.  You will be sent a "California Employer's Guide," Publication DE 44.

 (3) California employers must pay unemployment insurance (UI) taxes and withhold state disability insurance taxes if wages top $100 in any one calendar quarter.  Procedures are described in booklet DE 44.

 (4) Employers must account for withheld employment taxes (including social security), make periodic deposits when these "accounts payable" reach certain levels, and file quarterly and year-end reports specified in the federal and state tax publications cited above.

 (5) All California employers must acquire workers' compensation insurance, even if they hire only one employee.  (The assessed penalty for not having workers' compensation is $1,000 per worker the State inspector counts in the field.)  Generally, workers' compensation carriers want premiums up front, and have "minimum" premiums.  Small employers should get quotes from several companies.  The insurance carrier will provide a workers compensation poster for employees.

 (6) California employers must have a written injury and illness prevention program.  A sample Cal/OSHA "accepted" model I developed in 1990 (also available in Spanish) is at: http://are.berkeley.edu/APMP/zmtools/moretools/iippsutter.html. Cal/OSHA Consultation now has sample model programs in English and Spanish as well (see web site location in (2)).

 (7) California and other U.S. employers and their employees face a blizzard of placards (posters) that a multitude of agencies want posted.  I've yet to hear of an agricultural employer actually fined (warned yes) for absence of a poster.  From the APMP web site above (item 2), new California agricultural employers should, from among the many links, select, download, and post at the work site at least a "beginner's set" that includes the federal "Migrant & Seasonal Worker Protection Act," the California Industrial Commission Wage Order #14 (production agriculture), and Cal/OSHA's poster "Safety and Health Protection on the Job" (which may be requested on (415) 703-5050, or at: http://www.dir.ca.gov/databases/edtraintest/public3.html).

 (8) Employers must choose a workweek.  A workweek is any 7 continuous days, starting with the same calendar day each week.  For example, your workweek could begin each Sunday at midnight.  Farmers generally pay employees weekly.  Federal law requires that seasonal and migrant agricultural workers be paid at least every 2 weeks (weekly if they work for a contractor).  Workers must be informed which day of the week is payday and the time and place they will be paid.  An employer must post this information "in any understandable form."  For example, "PAY DAY NOTICE ... Regular pay days for employees of XXXX Farm shall be as follows: ... "

 (9) Employment eligibility verification for each employee is done by completing INS Form I-9.  Download the I-9 from the same web site shown in (2) above.  A few cooperative extension offices, including Fresno's, stock Form I-9 as a courtesy.

(10) Employees must receive a detailed pay stub showing daily earnings and hours, and pay period deductions, even if paid by cash.  A good guide (which has withstood the test of time, and California requirements as well) is the voluntary form crafted (in 1983) by the U.S. Wage and Hour Division, WH 501 and WH 501(a) (Spanish).  Request a copy at my address below.  (I'd be happy to fax you one to review.)

(11) If any of your employees apply pesticides, or work in treated fields as field workers, be sure to review, complete, and post CAL/EPA Department of Pesticide Regulation's Pesticide Safety Information Series (PSIS) leaflets A-8 (applicators) and A-9 (field workers).  County Agricultural Commissioners enforce safety standards for these workers and supply various leaflets.  You may be cited for failure to post the A-8 and/or A-9.  Links to the leaflets are at the APMP internet site shown in (2) above.

(12) If you plan to provide agricultural employee housing for even one migrant worker, or 5 or more other California agricultural employees, I recommend that you review the booklet "Guide to Federal and State Requirements for Employee/Migrant Housing," prepared by the U.S. Wage and Hour Division and the California Department of Housing and Community Development. (June 1993)  You may contact me for a copy.

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This week's mail included ...

Steve--

We are growers in Xxxxxx.  We just began receiving your emails, and find them to be relevant and informative.  Thanks for putting us on your list.

Regarding the email sent 5/24/00 about the Ag Labor & Employment Summit, my question is this:  Julio Alanez of CHP (California Highway Patrol) says growers "should know" about farm labor vans' use and certification.  Do you recommend that growers require proof of CHP inspection certification, or anything else, for any farm labor van that brings workers to work?  If so, what document(s) should we be requesting/requiring?  Should we get proof of the Class B license?  Are your answers the same if farm labor contractors are used?  Does it make a difference who owns the van, i.e., whether it's owned by the FLC, a worker, or some other person?  Doesn't it make a difference if only family members are in the van?

Thanks in advance for the clarification.  XXXX@XXXX
_______________________________________________

Differing opinions welcome ... here's mine

You're right, when all passengers in the van are members of the driver's immediate family the vehicle is not a "farm labor vehicle" and escapes the inspection certification and class B commercial license and DL-45 certificate requirement.  (But why not get a free CHP safety inspection anyway?)  To my knowledge, cousins do not qualify as immediate family.

My recommendation is that both growers and contractors be involved in educating their employee van drivers, and have some level of safety "enforcement."  A CHP officer I spoke with said "absolutely."

Since it's your employees who are being transported, you could be "riding out in the open," so to speak, if the vans have no seat belts, are not inspected, the drivers don't have the proper class of license and a tragic wreak occurs.  Doesn't seem to matter who the vehicle owner is.  Evidently, if you use a contractor, you are more insulated, legally.

I would go ahead and ask employee drivers to see a current CHP "Inspection Approval Certificate" Form 292 for vehicles designed to carry 9 or more passengers in addition to the driver.  I would encourage van drivers with less seating capacity to get a CHP inspection also.  (They'll get an official decal upon passing these "courtesy" inspections.)  At the same time, ask to see a drivers license.

Have employee drivers call the CHP at (559) 445-6100 for inspection sites and times, and information on how to get the California class B license.  Bilingual officers stand ready to help.

If drivers don't cooperate within a reasonable time, then the call is all yours.  Some contractors, to manage their liability exposure, terminate these non-compliant transporters' employment.  (A few provide employee transportation in employer-owned vehicles -- covered by workers' compensation.)

It's also prudent to let all of your direct-hire workers know that if they are being charged a fee for their ride to work and back to let you know.  Spot check a few of your contractor's employees to see what the situation is in their case.  Insulation is only so good.

If workers are paying a fee, it's likely the driver must have a federal farm labor contractor registration certificate, and a State "day haulers" license.  (There are only two licensed day haulers in California.)  These van drivers (that are direct-hires) could represent future warnings for you from the U.S. Wage and Hour Division or the California Department of Labor Standards Enforcement.  And who wants to be on their books for a follow up inspection?