University
of CaliforniaUniversity
of CaliforniaSteve's Selected Notes from Ag-Busnet -- April 2001
Meal and Rest Periods
Carl Borden, California Farm Bureau Federation attorney, and George Daniels, Vice President, Farm Employers Labor Service (FELS), have kindly contributed two articles from recent issues of "Farm Employers Labor Service Newsletter" that follow. Their comprehensive information related to meal and rest periods in California agriculture is very much appreciated. -- Steve Sutter
FELS Article #1 December 2000 Meal and Rest Periods
Beginning Oct. 1, 2000, an employer must pay an employee one hour of pay at the employee's regular rate of pay for each workday that a meal period or rest period is not provided to the employee. Exception: For agricultural occupations covered by Industrial Welfare Commission (IWC) Order 14, this new penalty is effective Jan. 1, 2001.
Agricultural employees--especially those paid on a piece-rate basis--often choose to skip authorized rest and meal periods. However, in light of this new penalty, the practice of break-skipping could subject employers to huge liabilities. Former employees, for example, may claim their foreman had coerced them into skipping rest or meal periods.
Rest Periods ... The IWC orders uniformly provide: Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of 10 minutes net rest time per 4 hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than 3? hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
Use of the words authorize and permit and repeated use of the word authorized signal that the employer's duty is merely to ensure each employee has a real opportunity to take rest periods. Employers are not required to force employees to take them. However, as employers have the inherent power to control when employees may and may not work, an employer may decide to require employees to take rest periods For example, an employer may decide that employees must take rest periods for reasons of employee health and safety, or to avoid any claim by employees that they are not really allowed to take breaks.
Meal Periods ... All IWC orders except IWC Order 14 provide:
(A) No employer shall employ any person for a work period of more than 5 hours without a meal period of not less than 30 minutes, except that when a work period of not more than 6 hours will complete the day's work the meal period may be waived by mutual consent of the employer and employee.
(B) An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.
The employer's duty as to meal periods markedly differs from that as to rest periods. The meal-period language flatly bars an employer from allowing anyone to work in excess of the specified time limits without a meal period (unless the conditions allowing its waiver apply). In other words, employers generally must require employees covered by all IWC orders (other than IWC Order 14) to take their meal periods.
In sharp contrast, IWC Order 14's meal-period provision uses the same authorize and permit language as in the rest-period provisions of all IWC orders: Every employer shall authorize and permit all employees after a work period of not more than 5 hours to take a meal period of not less than 30 minutes, except that when a work period of not more than 6 hours will complete the day's work the meal period may be waived by mutual consent of employer and employee.
As under the rest-period provisions of the IWC orders, an employer apparently meets its duty as to meal periods for agricultural employees covered by IWC Order 14 merely by ensuring that each employee has a real opportunity to take them. Employers are not required to force agricultural employees to take them. (Of course, consistent with the discussion above under "Rest Periods," an employer may decide to require employees to stop working during meal periods.)
Bill Marrs, an attorney familiar with the issue, recently recalled the origin of the different wording in IWC Order 14. He said that when the issue was being considered in the 1970s by the committee drafting the language of IWC Order 14, a representative of agricultural employers successfully sought the inclusion of the authorize-and-permit language so as to specifically give agricultural piece-rate employees the option of skipping authorized meal periods. In this way, a farm worker can continue to earn piece-rate wages through what would otherwise be his meal period and then stop work for the day sooner than he would otherwise.
The IWC orders further provide: Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. While the authorize-and-permit language may not legally compel employers to insist that employees take their breaks, a representative of the state agency that enforces these rules warns that its inspectors look closely at situations where employees don't take breaks.
Tom Grogan, Assistant Chief Labor Commissioner, said investigators of the Division of Labor Standards Enforcement (DLSE) become suspicious when employees report they don't take meal or rest periods. While their employer may claim that such periods are authorized, the employees may say they in fact feel pressured by foremen or co-workers on their crew to work through them. This could expose the employer to liability. So, Grogan warned, employers who don't require employees to take the breaks to which they are entitled run the risk of claims by employees and enforcement agents that they weren't really allowed to take them. He also noted these points:
1. Exemptions Eliminated: Before Oct. 1, 2000, section 14 of the IWC orders provided a process for seeking an exemption to the meal-period and rest-period requirements. Section 14 allowed the Labor Commissioner to exempt on a case-by-case basis up to four different provisions in the Orders--those requiring rest and meal periods being two of them. Section 14 has been deleted from the recently-revised orders, he noted. This, he said, signifies the IWC intends to require meal and rest periods. Thus, even the Labor Commissioner may not exempt an employer from having to provide meal and rest periods, much less the employer and employee mutually agreeing to waiving them beyond the extent the orders specifically allow them to be waived.
2. Meal-Period Exceptions: The IWC orders allow only two exceptions to their requirement for an off-duty 30-minute meal period that is not counted as hours worked. The first is where the workday can be completed within six hours, and the employee and the employer mutually agree to waive the meal period. The second is "when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to."
Grogan noted that if neither exception applies, then an employer may not overlook the employee's refusal to take a 30-minute meal period. He added that the "on-duty" meal period exception may be used only in rare, extreme situations. For example, as piece-rate work in and of itself does not prevent an employee from being relieved of all duty, the exception doesn't apply to that situation.
3. Rest Period Exception: The IWC orders allow one exception to their rest-period requirement: Where the total hours worked on a workday is less than 3? hours.
4. Record Keeping: The IWC orders state: "[E]very employer shall keep accurate information with respect to each employee including the following: Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. . . ."
To comply with this rule, an employer must either stop all work and have employees take a uniform meal period, or require employees (or supervisors) to record for each workday the time employees stopped for a meal and the time when work resumed. Otherwise, employers will face two violations: one for record keeping and a second for failure to provide a meal period. Truck drivers, like piece-rate employees, are also prone to skipping meal periods. But unless an exception applies to them, they too must either take and record a half-hour meal period or be paid an hour's wages at their regular pay rate.
FELS Article #2 -- April 2001 Meal-Period Wording in Order 14 Corrected
Seventeen orders of the Industrial Welfare Commission (IWC) set minimum standards for employment in different industries and occupations in California. One area covered by each order is meal periods. The IWC recently amended certain provisions in some of its orders. The orders were then posted on the IWC's Web site at http://www.dir.ca.gov/IWC/WageOrderIndustries.htm
Each order as posted--including Order No. 14-2001 (Agricultural Occupations)-- contained the same wording for the meal-period requirement, as follows: No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of employer and employee.
That wording was erroneously included in Order 14-2001 as posted on the IWC's Web site. The meal-period requirement in Order 14 has always been different from the wording found in the other orders, and the IWC did not act to amend it. Order 14's meal-period provision reads:
Every employer shall authorize and permit all employees after a work period of not more than 5 hours to take a meal period of not less than 30 minutes, except that when a work period of not more than 6 hours will complete the day's work the meal period may be waived by mutual consent of employer and employee. (Emphasis added.)
After spotting the error, Western Growers Law Group attorney Bill Marrs contacted California Farm Bureau Federation attorney Carl Borden. They brought the error to the attention of the IWC's executive office, which then received from IWC member Barry Broad acknowledgment that the longstanding meal-period wording in Order 14 was not changed and should continue to appear in that order. The error has been corrected, and the proper wording now appears in Order No. 14-2001 as posted on the IWC's Web site.
The difference between the two provisions is significant. Under the wording used in the orders other than Order 14, an employer generally may not require or allow an employee to work more than 5 hours without taking a 30-minute meal period--even if the employee would rather skip it.
In contrast, the wording in Order 14 merely requires an employer to authorize and permit employees to take a meal period. Thus, an employee may choose whether to take an authorized meal period. For example, an agricultural piece-rate employee might choose to take a 5- or 10-minute break to eat (or no break at all) instead of the authorized 30-minute meal period.
However, agricultural employers should be very careful in this regard. Employers must impress on employees that they are authorized and permitted to take meal periods and that each employee has the right to take them, even if his co-employees choose not to. If one or more employees (or, more likely, former employees) bring and prevail in an action alleging they weren't really allowed to take their meal periods, then the employer would face a penalty for not providing them their meal periods. The penalty due each employee would be one hour of pay at the employee's regular rate of pay for each day the employee was not permitted to take a meal period.
To avoid such disputes and for other reasons, an agricultural employer might want to require employees to take their meal periods. The employer, after all, has the prerogative and power to control when employees work (or don't work). In that case, an employer should consider adopting a policy to that end.
Driver's License for Tractor Drivers?
An ag-busnet reader asks ... "Steve, I have heard from other agricultural employers that 'tractor operators' who occasionally use public roadways (usually to travel from field to field) are required to have a drivers license. What can you tell me about this? I know there are equipment requirements such as lights, etc. but did not know about the license requirement. If such requirement exists, can you direct me to the rule or regulation. I'm assuming it would be a vehicle code section. Would appreciate your response. Thank you..."
Vehicle Code Section 36300 does say "Any person, while driving or operating an implement of husbandry incidentally operated or moved over a highway is not required to obtain a driver's license. (Vehicle Code Section 36300). "Incidentally," is likely spelled out some in VC 36005(k) which says implements of husbandry include "Any vehicle which is operated upon a highway only for the purpose of transporting agricultural products and is in no event operated along a highway for a total distance greater than one mile from the point of origin of the trip."
However, there are exceptions even to this narrow "incidental" exception. An important one is using a farm tractor "to draw a farm trailer carrying farm produce between farms or from a farm to a processing or handling point and return," in which case possession of a driver's license is required.
Furthermore, the driver of any implement of husbandry must possess a valid class C driver's license when operating a "combination of vehicles" (tractor plus implement, for example) at a speed in excess of 25 miles per hour, or tractor-towing even for short distances on a public highway such implements as a spray or fertilizer rig, or trap wagon. A trap wagon is a trailer or semitrailer used exclusively in agricultural operations to fuel, service, or repair implements of husbandry, and may be equipped with tools, spare parts, lubricating supples, or fuel tanks. (VC 36305, 36005)
In light of all these roadway restrictions, some agricultural employers may want to consider making possession of a valid California driver's license a job requirement for tractor drivers.
References: California Vehicle Code and "Farm Employers Labor Service Newsletter," April 2001.
ETA Form 750 and April 30 "Deadline"
I'm getting calls from agricultural employers who are being presented with Form ETA 750 "Application for Alien Employment Certification" by former and current workers. The form can be downloaded from http://workforcesecurity.doleta.gov/foreign/step.asp Some unauthorized immigrants are paying consultants from $300 to $5,000 for immigration services, perhaps thinking, mistakenly, that the LIFE Act enacted in December was an amnesty program. Catholic Charities and other low-cost social service providers are virtually, if not totally, "swamped" these days -- but mostly with family reunification or "V" visa applications due by April 30.
Employer-sponsored foreign labor certification requires NO application fee, and consultants are not required in the process. A California worker can send Form ETA (parts A & B) directly to Foreign Labor Certification, P.O. Box 269070, Sacramento, CA 95826-9070. Their number is (916) 464-3400. For peace of mind, an application should be sent certified.
Is there any employer liability in completing Form 750 to give these workers what may only be a "long shot" to a green card? Al French, USDA Labor Affairs Coordinator, said ... "There doesn't seem to be any liability to sponsoring an employment based petition provided you are willing to offer the alien a full-time permanent job and go through the process to get the Department of Labor to certify that no U.S. worker is available for that job. You shouldn't expect to employ the alien for several years, as a sponsor, you obviously know the alien is not a legal resident.
The (employer sponsorship) application does not provide work authorization for the alien nor does it protect aliens from deportation. Employment-based sponsorship of aliens will continue after April 30. The LIFE Act did not change that. It just lets aliens, by paying a $1,000 penalty (to INS), file their papers in the U.S. rather than at a consulate in their native country."
Some consultants have advised unauthorized workers they need two sponsoring employers, presuming, I guess, that two seasonal jobs add up to a "full-time" permanent job. (Interesting.)
Agricultural employers in San Diego, El Centro, and perhaps Fresno, may have a hard time convincing the DOL of a worker shortage, but certain unauthorized workers see this as at least a slim chance to get a green card down the road. Evidently, these workers are not unauthorized spouses, or an unauthorized minor child (under age 21), of a lawful permanent resident -- who could then apply for a "V" visa, which would protect the applicant from "removal."
A worker advocate attorney said earlier, "Immigrants should be counseled to consult with an immigration attorney before applying for relief under 245-i or any other immigration program." That may be good advice for employers too.
Fieldworker Pesticide Safety Training
A reader asks ... Do growers have to train workers who do not apply or handle chemicals and do not have any early entry situations?
YES, on February 4, 1997, the California Department of Pesticide Regulation sent to County Agricultural Commissioners final regulations that incorporated the (1992) federal Worker Protection Standard requirements in the California Code of Regulations (CCR). Employers should consider book marking http://www.cdpr.ca.gov/docs/inhouse/calcode/chapter_.htm
Click on "Pesticide Worker Safety" Section 6700-6795. I've reproduced below Section 6764.
6764. Fieldworker Training.
(a) The employer shall assure that each employee assigned to work in
a treated field has been trained within the last 5 years,
in a manner the employee understands,
before beginning work in the treated field.
(b) The training shall include the following information:
(1) Importance of routine decontamination and washing thoroughly after the exposure period;
(2) Restricted entry intervals and what posting means, including both California and federal field posting sign formats;
(3) Where pesticides are encountered, including treated surfaces in the field, residues on clothing, chemigation and drift;
(4) Routes of exposure;
(5) The hazards of pesticides, including acute effects, chronic and delayed effects, and sensitization effects;
(6) Common signs and symptoms of overexposure;
(7) First aid including decontamination, eye flushing, and obtaining emergency medical care;
(8) Warnings about taking pesticides or pesticide containers home;
(9) The hazard communication program requirements of Section 6761; and
(10) Employee rights, including the right;
(A) To personally receive information about pesticides to which he or she may be exposed;
(B) For his or her physician
or employee representative to receive information about pesticides to which
he or she
may be exposed; and
(C) To be protected against retaliatory action due to the exercise of any of his or her rights.
(c) An employee who holds a valid personal pesticide license or certificate issued by the department, a valid verification of training card issued under the authority of the U. S. Environmental Protection Agency, current documented pesticide handler training pursuant to Section 6724, or other valid certificate of pesticide training approved by the director is considered to be trained for the purposes of this Section.
(d) The information shall be presented in a manner the employee can understand, orally from written materials or audio visually, using nontechnical terms. The trainer shall respond to questions.
(e) The person conducting the training shall be qualified as one of the following:
(1) A California certified applicator;
(2) A person holding any other valid license or certificate of personal pesticide qualification issued by the department;
(3) A person who has completed an "instructor training" program presented by one of the following:
(A) The University of California, Integrated Pest Management Program, after 1/1/93;
(B) Other instructor training program approved by the director.
(4) A California Registered Professional Forester;
(5) A person holding a valid County Biologist License
in Pesticide Regulation or Investigation and Environmental
Monitoring
issued by the California Department of Food and Agriculture;
(6) A farm advisor employed by the University of California Extension Office; or
(7) Other valid trainer qualification approved by the director.
Now, the issue of growers (and contractors) training fieldworkers on pesticide safety, even when no early-entry situation exists in "treated" fields. A reader asks ... Steve, Your reader specifically stated "do not have any early entry situations". The standard says "treated field". This may be semantics but maybe we need, or someone needs, to define "treated field". I was of the belief that only workers with potential exposure via application or reentry needed training.
"Treated field," according to U.S. EPA (and Cal/EPA) means a field that has been treated with a pesticide or had a restricted entry interval in effect within the last 30 days. A treated field includes associated roads, paths, ditches, borders, and headlands, if the pesticide was also directed to those areas. A treated field does not include areas inadvertently contaminated by drift or over spray.
Update - FLCs and Worker Transportation
-- Last week, a reader suggested that I consider updating my March 2000 Newsletter on farm worker transportation, still at http://are.berkeley.edu/APMP/pubs/sutterpubs/news.10.1.mar00.html , and summarize the recent changes related to farm labor contractor licensing. Great suggestion. I've attached it.
-- Steve
Update -- California Legislation Related to Farm Labor Contractors
and Farm Labor Transportation
By Steve Sutter, UC Area Farm Advisor
A number of bills signed into law in the past year or two place emphasis on Californiaâs farm labor contracting industry and worker transportation. This is a summary.
AB 555 ˆ Farm Labor Vehicles · All farm labor vehicles used by a farm labor contractor for the transportation of individuals in his or her operations as a farm labor contractor including, but not limited to, vehicles not owned by that contractor must be registered with the Labor Commissioner. Registration includes the name of the owner and driver of the vehicle, license number and description of the vehicle, and evidence of insurance.
A ãfarm labor vehicleä is any ãmotor vehicle designed, used, or maintained for the transportation of 9 or more farm workers, in addition to the driver to or from a place of employment or employment-related activities.ä
Any person who operates, or any owner or farm labor contractor who knowingly allows the operation of, a farm labor vehicle in violation of annual (CHP) inspection, safety, lighted headlamps, and seat belt requirements is, if convicted, guilty of a misdemeanor.
Each quarter, the California Labor Commissioner must provide the Commissioner of the CHP with a list of all vehicles registered with the Labor Commissioner.
AB 602 ˆ Farm Labor Vehicles · The major component of AB 602 is that by March 31, 2002, all farm labor vehicles must have (factory-installed) forward facing passenger seating in addition to currently required seat belts. Seat belt requirements for ãType 2ä farm labor buses has been deferred until at least January 1, 2007, pending outcome of a federal safety study on seat belts in school and other buses.
All cutting tools or tools with sharp edges carried in a passenger compartment must be placed in securely latched containers firmly attached to the vehicle. All other tools, equipment, or materials carried in the passenger compartment must be secured to the body of the vehicle to prevent their movement while the vehicle is in motion. Under no circumstances can tools, equipment, or materials obstruct an aisle or an emergency exit.
A provision that would have separated farm labor contractor licensing from day hauler licensing was removed from the bill prior to passage.
A ãday haulerä is any person ãemployed by a farm labor contractor to transport or who for a fee transports, by motor vehicle, workers to render personal services in connection with the production of any farm products to, for, or under the direction of a third person.ä
AB 1338 -- A ãFarm Labor Contractor Special Enforcement Unitä in Fresno is ãauthorizedä by passage of AB 1338. Oral testing for the state farm labor contractor license is eliminated. Applicants must answer 85% of the written questions correctly in the exam. The (biennial) examination tests for knowledge of ãcurrent laws and regulations regarding wages, hours, and working conditions, penalties, employee housing and transportation, collective bargaining, field sanitation, and safe work practices related to pesticide use.ä
The exam may only be taken up to 3 times in a calendar year. Evidently, no temporary permit to operate is issued to renewal applicants who, for whatever reason, fail the test.
Licensees (starting in 2001) must participate annually in 8 hours of ãremedialä (continuing) education courses approved by the Labor Commissioner in consultation with Californiaâs Department of Pesticide Regulation, CHP, DMV, Department of Housing and Community Development, EDD, Department of Food and Agriculture, county agricultural commissioners, and Cal/OSHA.
Itâs interesting to note that proposed AB 1680 (Romero) in this current session would, instead, require that the Labor Commissioner conduct these classes, in consultation with the above agencies, and would ãauthorize the Labor Commissioner to charge a fee sufficient to cover the administrative costs associated with the establishment and annual operation of the classes.ä
The annual license fee (excluding $100 examination fee) is $500, and the amount of required bond would be based on the size of the contractorâs payroll. Specifically, for payrolls up to $500,000, a $25,000 bond is required, the bond requirement for payrolls between $500,000 and $2 million is $50,000, and a $75,000 bond is currently required on annual payrolls topping $2 million.
The new laminated license has a picture of the licensee. Growers must be provided with the contractorâs payroll records showing the wages and hours worked for each worker.
The Labor Commissioner is also required to submit a quarterly list of farm labor contractor licensees to the CHP.
AB 2086 ˆ Operating a farm labor vehicle, except as may be necessary to return the unladen vehicle or combination of vehicles to the residence or place of business of the owner or driver, or to a garage, after notice by the CHP to the owner that the vehicle is in an unsafe condition or is not equipped as required by the Vehicle Code. Penalties for violations start at $1,000. The CHP is authorized to impound a farm labor vehicle in the case of a violation of the provisions of AB 2086.
AB 2707 ˆ The Labor Commissioner must ensure that the office maintained in Fresno has suitable facilities and sufficient personnel for the examination and licensing of farm labor contractors and for the processing of complaints against farm labor contractors or any agent of a farm labor contractor. Currently, Lupe Ramirez, Division of Labor Standards Enforcement, may be contacted on (559) 244-5349 or (559) 244-5340.
PROPOSED Bills · A few of the bills growers, packers, and farm labor contractors may wish to follow in the current (2001-2002) session include AB 423 (FLC/day hauler license verification), AB 638 (written ãcontractsä between growers and contractors), and AB 1680 (contractor classes). ãSubscribeä to bills at http://www.leginfo.ca.gov/bilinfo.html.
Prepared 4/6/01. George Daniels, Farm Employers Labor Service, contributed to this report.
Weeding Tools Must be 4 Feet in Length
A new reader asks about weeding tools ... I was able to "relocate" California Title 8 (Safety Order) Section 3456(b), with definitions in Section 3437.
In essence, based on my conversation with a Cal/OSHA consultation specialist, using short-handled tools (less than 4 feet in length) for weeding, thinning, and other similar work while in a kneeling or squatting position is prohibited. Employers must also ensure that workers using long-handled tools are not grabbing the tools from the base (as a short-handled tool) causing them to bend and stoop.
These rules may be confirmed at http://www.dir.ca.gov/Title8/sb7g3al3.html
My reader also asked about overtime in California agriculture. This we covered on ag-busnet in November. My writing, revised to reflect good questions from readers, is "archived" at http://are.berkeley.edu/APMP/pubs/agbusnet/agbustop.html . Click for titles under November 2000.