Agricultural Personnel Management Program
University of California

Steve's Selected Notes from Ag-Busnet -- January, February, & March 2002

Contents:

• California's Lactation Accommodation, 3/19/02
• ALRA Question, 3/15/02
• Dairy Job Descriptions, 2/11/02
• SSA Inspector General Still Looking at Agriculture, 2/5/02
• Farm Labor Vehicle Instructor Update, 2/5/02
• Pesticide Drift Rules to Tighten?, 1/29/02
• Field Sanitation and Checklists, 1/18/02
• FLC Classes, 1/15/02
• Timely Note From SSA, 1/3/02

California's Lactation Accommodation Law

RE:  New Lactation Accommodation Legislation

Have you heard any info on how this new legislation affects ag?  I read through the Dept. of Health Services letter that was sent out to employers, the Legislative Counsel's Digest (I downloaded from the Internet) and can find nothing to pinpoint how this would affect female field employees in ag.  This Bill "would exempt an employer from its requirements if the employer's operations would be seriously disrupted by providing break time to employees desiring to express milk"............

The statute (AB 1025), effective in 2002, leaves the terms "seriously disrupt" and "reasonable efforts" (to provide a private place where a mother can express and store breast milk) undefined.  However, a "toilet stall" is not an allowable "private room or other location" to accommodate lactation.

This reader, however, has given us a heads up to consider updating employee handbooks, if any, and to consider what locations that can be "reasonably" provided to employees who wish to avail themselves of the statute's benefits.

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"Hi Steve,
Question.  NLRB does not allow employers to hold information meetings within 24 hours of an election.  What is the rule for the ALRB?
thanks"

I phoned the Visalia ALRB regional office (559-627-0995) and learned that informational meetings can occur right up to the election day, but "campaigning" is prohibited at the voting site.  (Votes tend to be early, pre-6 a.m.)  I suppose the parties could "agree" to a 24-hour rule.

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An ag-busnet reader points another reader (interested in dairy job descriptions) to: http://www.ianr.unl.edu/pubs/dairy/g1224.htm

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Will we someday see an agricultural "task force" of SSA, IRS, and INS in the field?  (That would make California's multi-agency TIPP program -- for some employers -- seem like a relatively mild experience.)

Recently, Al French, Labor Affairs Coordinator, USDA, pointed his readers' to a report issued by the Social Security Administration's Office of Inspector General:  "Obstacles to Reducing Social Security Number Misuse in the Agriculture Industry"

Although the "Management Advisory Report" is advisory only, and is now a year old, the OIG has a process "by which we go back and forth with the agency," according to an OIG deputy director I spoke with recently.  Any ongoing "disagreements" between the OIG and the SSA, or "non-responsiveness" by SSA, are reported semi-annually to Congress for consideration, and the OIG has an ongoing dialogue with certain Congressional committees.

Based on my look at the report, several conversations, and review of SSA's latest version of the "Code V" letter to employers, it appears the SSA, for confidentiality and other reasons, continues to "resist" these two OIG recommendations:

• Seek legislative authority to provide SSA with the tools to require chronic problem employers to use EVS (Employee Verification Service).

• Collaborate with the INS to develop a better understanding of the extent that immigration issues contribute to SSN misuse and growth of the ESF (Earnings Suspense File).  Additionally, reevaluate its application of exiting disclosure laws or seek legislative authority to remove barriers that would allow the Agency to share information regarding chronic problem employers with the INS.

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A new "behind the wheel" farm labor vehicle instructors guide has been distributed to state certified instructors, according to Lee Craw, Instructor Coordinator for the California Department of Education.  In order to now teach behind the wheel, instructors must have received and use the new guide.

A special class was conducted by the Department of Education in December to go over the new guide.  "Only nine (current) instructors showed up for that class," said Craw.  In subsequent outreach classes, another half dozen instructors "at most" received the new guide, he said.

Soon, the California Highway Patrol will not accept "T-01" training cards issued by trainers not on the list of those that have received the new guide.  That short list is now being made up.  Concerned instructors or their agricultural employers should contact John Green, California Department of Education at (916) 375-7100.

A new medical form is also out.  It indicates that a farm labor vehicle driver must now be examined by an M.D. or D.O. (Doctor of Osteopathy).  The exam can no longer be done by a physician's assistant.

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Current agricultural worker protection regulations require a pesticide label statement "Do not apply this product in a way that will contact workers or other persons either directly or through drift."  Each year, though, states receive about 2,500 complaints of drift from individuals, and the agency believes many incidents are unreported.

A US EPA draft (proposed) notice to registrants (generally the pesticide manufacturers) could result in new label statements deemed by some farm lobbyists as very troublesome, if not oppressive.  Environmental groups, on the other hand, are concerned the proposed strengthened controls on pesticide spray (and dust) drift don't go far enough to protect human health and the environment.

To this writer, it appears that if the proposals remain substantially unchanged, more pesticide labels, over the next few years, may require no-spray zones (measured in feet from protected sites, to be determined for a particular product) also known as "buffer" zones.  (These no-spray zones would have to be part of the operator's property.)

Along with that, spraying (or dusting) could be limited by label guidance, for example, to times when wind speed "is 3 - 10 mph at the application site [and outside the orchard/vineyard on the upwind side] as measured by an anemometer."  At least one environmental group suggests that the public urge the USEPA to lower the upper limit to 8 mph.

The USEPA "believes it is important to require applicators to measure wind speed at the application site and with an anemometer, an inexpensive instrument for this purpose, in order to obtain an accurate measurement."

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A California reader asks ... "Steve:  Have you heard anything new about the number of employees per bathroom.  One of our FLC's asked us if we had seen a change in the law?

Also, who can give us a list of the exact requirements/paperwork needed from the FLC's when we sign them up?"

There have been no recent changes in the field sanitation standard.  The full standard, including definitions and several narrow exceptions, was crafted in 1992.

Let's discuss the second question.  Most, I think, would agree that a grower who asks for no more than some workers (and the bill) is indeed "flying by the seat of his (or her) pants."  In a court setting, he could quite easily end up "liable or responsible" for the contractor's sins.

For firmer seat padding ... Key information, that a contractor should be able to produce easily, would be: (1) evidence of a current California farm labor contractors license, (2) a current federal farm labor contractor registration certificate (with will show transportation, driving, or housing authorization, if any), (3) a workers compensation policy (that you may want to confirm is paid-up), and (4) copies of specified (weekly) payroll records from the contractor under the federal Migrant and Seasonal Agricultural Worker Protection Act (maintained for three years).  See Subpart C  "Worker Protections" for details.

Checklists ... the recliner models ... Some farm organizations and legal firms with agricultural specialty (which I can't name here) have produced comprehensive checklists for grower members or subscribers to consider reviewing with prospective contractors.  These are very informative, mentioning many items beyond the core basics I've listed above, and are great reference tools you should have.

However, consider diplomacy in "use" of checklists, particularly with contractors with many years of experience in their business.  One long-time contractor was presented a thorough checklist and asked for verification of numerous items.  He considered this excessive (and unnecessary) oversight, and took his business elsewhere.  On the other hand, if you notice the prospective contractor looks a bit puzzled by most of the contents of the checklist, that may be a red flag.

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A reader asks ...

"Steve; I had a labor contractor give me a pamphlet he received in the mail on classes being offered by "The Training Institute" in Fresno.

Classes for the renewal of his license. Is this legit?

Please advise."

The classes have been authorized and approved by Arthur Lugan, State Labor Commissioner, as stated in the flyer.  The Training Institute is associated with the State Center Community College District here in the Fresno area.  These classes are the only ones approved thus far.  For more information, (dates, locations, and fee) you may call (559) 323-4688 or visit The Training Institute website.

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More U.S. industries and employers to be affected ... Beginning this year, any employer will get the Social Security Administrations's "Code V" letter if even a single W-2 mismatches.  This means (1) more employers will be notified of name/SSN mismatches, and (2) industries less vulnerable to mismatch problems (industries other than agriculture, construction, and hospitality, for example) will begin receiving notices from the SSA.  The agency predicts a large number of inquiries by telephone calls and mail/e-mail because of this expansion, and is prepared for that.

The notice language is being updated also, but will still caution employers not to take adverse employment action and will suggest employers verify names and SSN's at the time of hiring.

Bill Brees, SSA Regional Administrator, San Francisco, noted the following to this farm writer.  "As you know, 'suspense' is our accounting term that means we hold the reported earnings in a location that is not associated with any worker because we were not able to find the right worker's record to post it to.  To post the earnings, SSA must have a valid SSN, of course, then the name on the W-2 must match the name on SSA's record for that SSN.  If a match cannot be made with a high degree of reliability, using many different computer tools, the worker's earnings cannot be posted, and the worker does not get the credit she or he worked for and deserves."  He also emphasized that suspense is strictly an accounting tool, "not an enforcement tool, as many people believe."

In recent years, SSA has successfully educated growers and farm labor contractors of the importance of names and SSN's to make sure their employees get credit for earnings.  "Our responsibility to keep lifetime earnings records accurately for workers' financial security in retirement, as well as the possibility of disability or death of the worker before retirement, has led us here," Brees said.

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