Agricultural Personnel Management Program
University of California

Steve's Selected Notes from Ag-Busnet -- June-July 2001

Contents:

• Contractors Trying to Change Negative Image, 7/20/01
• "Field Talk" - A New Newsletter, 7/10/01
• Tipp Inspection Protocol, 7/05/01
• Child Labor Question, 6/15/01
• Reporting Work-Connected Injuries in California, 6/14/01
• Documents Illustrated by FELS, 6/05/01
• Bad SSNs and Workers Comp Section 132a, 6/1/01

In the San Joaquin Valley, the number of farm workers employed by farm labor contractors has risen nearly 50 percent in the last decade, making this segment of agricultural employers the fastest growing group in the total farming industry by far.  In Fresno, Tulare, and Madera counties alone, the number of farm labor contractors, based on government reports, jumped from 329 in 1997 to 385 in 1999.

I noted these figures at a Reedley restaurant while presiding, by request, over a meeting of the "Labor Contractorâs Round Table."  Attending as a guest was Rod Stark, Secretary-Treasurer, Fresno County Farm Bureau, who listened, and discussed with members some of the issues and challenges facing today's farm labor contractor.  Jodie Reyna, Associate Editor, The Reedley Exponent, also attended that evening, as did 12 of the 21 contractor members.

The "Labor Contractor's Round Table" was initiated in 1997 by current president Al Macias, a Fresno farm labor contractor of over 20 years.  The group's primary mission is "improving our image," along with business management education, including cost accounting, and labor and safety law compliance.  As the farm labor contracting industry in California continues to become more regulated, the Round Table will also serve as one more industry "voice" on pertinent legislative proposals.

Group insurance rates and some legal support are also planned as services for this non-profit organization.  The Labor Contractor's Round Table recently opened an office at 1592 11th St., Suite D, Reedley, CA 93654.  For information about the group, contact Al Macias at (559) 903-4514.

Of interest to the contractors was my outline of proposed AB 638 that has been put over to the 2002 legislative session.  The bill would require mandatory written contracts between growers and contractors specifying, among other things, the amount, method, and timing of payments.  Although no vote was cast, I sensed the consensus of the group was favor of such mandatory agreements, in part as a remedy for occasional slow or no payment experienced by some members.

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A reader in the media pointed out to me a weekly ag business email subscription provided free by California Grower magazine.  It's called "Field Talk" at http://www.rinconpublishing.com/. I've found it of interest.  Topics and issues include farm labor and the environment, among many others.

From a recent issue, I've clipped a sample story titled "Clean Water Act Muddying the Waters."  It follows.

"If you see irrigation district workers in your area dragging chains through canals or scooping out algae with backhoes you can be sure that it's the Clean Water Act at work. Ever since a federal court ruled that to comply with the CWA irrigation districts must have a state discharge permit before using herbicides to clear weeds and algae from canals, most IDs have stopped using herbicides while trying to get the permits needed. In the meantime, growers with drip or micro-sprinkler systems are seeing their irrigation systems clog with algae. They are turning to well water, preferring to pay the pumping costs rather than pay for new irrigation systems."

In my own follow up with an area irrigation district manager, I learned that the (9th District) federal court ruled March 12, 2001 in Headwaters, Inc. vs. Talent Irrigation District that discharges of aquatic pesticides to waters of the United States require coverage under a NPDES (USEPA) permit.  The ruling stems from litigation following a 1996 spill of the herbicide Acrolein into an Oregon brook that killed thousands of game fish.  Now some irrigation districts in California and other western States will be affected.

Following a public hearing July 19th, the State Water Resources Control Board will consider adoption (under emergency conditions) of a proposed Statewide general permit that irrigation districts or groups of districts can use for their pollutant discharge permit applications.

"Field Talk" also concludes with a "Meeting Planner."  Although private applicators and other pesticide certificate and license holders in California have asked the editor to include whether meetings listed have approved continuing education hours, a calendar of all approved meetings is maintained by the Department of Pesticide Regulation at http://www.cdpr.ca.gov/docs/license/classes.htm.  It is updated each Friday.

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Following, shared as a courtesy to the regulated community, is the inspection protocol (code of conduct) for officers involved in the Targeted Industries Partnership Program (TIPP).  As some of you may be caught up in one of these inspection sweeps, here's the officers' inspection rules that the lead agency (California Division of Labor Standards Enforcement) crafted in 1994 when agriculture and the garment industry were first "targeted."  I've been advised by the agency that it is still current.  -SRS

TIPP TARGETED INDUSTRIES PARTNERSHIP PROGRAM
A JOINT ENFORCEMENT AND EDUCATIONAL EFFORT

DIVISION OF LABOR STANDARDS ENFORCEMENT
U.S. DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION
DIVISION OF OCCUPATIONAL SAFETY AND HEALTH

1. When you arrive at the employer's premises, ask for the owner.  If he or she is not available, ask for the manager or person in charge.

2. Introduce yourself.  Present your business card.  Introduce the members of your team, or let the members introduce themselves.  Show your badge only if the employer asks for your identification.

3. Explain the reason for your visit, that you are there to conduct an inspection to verify compliance with federal and state labor and health and safety laws.  Explain, if asked, that we do not divulge our complaint sources.  Inform the employer that you will check for any appropriate license, workers' compensation insurance coverage, time and payroll records, and postings.  Additionally, inform the employer that you will be interviewing the employees.

You should politely explain to the employer that it is not our policy to make an appointment to conduct an inspection.  If an employer denies access to the business premises, you should explain that before you leave, state law requires you to verify worker's compensation insurance coverage, and for a garment of farm labor contractor license, if applicable.

If an employer refuses to open the door, leave and come back later.  Make any appropriate referrals to the city or county Fire Marshall.

If there is an underlying wage complaint, issue an Order To Appear or subpoena for records, if necessary.

If the employer is very hostile, do not get into a confrontation with him or her.  Consult with your supervisor.

If you are asked to wait, it is prudent to wait a reasonable time until the owner or manager shows up.  However, you should visually count the number of employees, or observe anything unusual that is happening.

If an employer still refuses you access, or permit the inspection from going forward, you should contact your supervisor immediately so that an inspection warrant can be obtained that same day.

4. If voluntary consent is given, ask the employer how many employees are working.  Inform him or her that you are going to count the number of employees working.  When a violation is found, make sure that the employees used to sustain the amount of penalty are clearly identified.  For example, in a garment shop, obtain the names of the employees, what kind of machine they are using, and what kind of garment they are working on (manufacturer, label, style #, cut #, and description of the garment ö blouse, pants, dress, color, etc.).

5. Ask the employer to bring you the time and payroll records for review.  As an alternative, you may ask the employer for permission to pull the time records from the rack for review.  If there is a violation, transcribe or make a copy of the time or payroll records of all the employees affected.  When transcribing the time or payroll records, write down the information exactly as they appear on the records.  Do not just make an abstract of the records.  If there is no violation found, make a transcription of a few employeesâ records for your file.

6. Ask the employer for permission before interviewing his or her employees.  If the employer or manger hangs around, inform him or her that you wish to interview the employees in private.

Start the employee interview by introducing yourself, and your duties.  Give each employee a business card.  It is important that you not give the that you are "badmouthing" or soliciting complaints from the employees against the employer.  Do not tell the employees that you know there are problems and may be hesitant to talk now, but they can contact you later to report their employer.  Since the employees are aware of your duties, it is better for them to contact you on their own initiative. You may inform the employees, without accusing their employer, that if they have any problems or questions they may contact you later.

7. Always call the WCIRB or the carrier/producer to verify workers' compensation insurance coverage.

8. Always conduct an exit conference with the employer.  Write out your citations before conducting the exit conference.  Besides giving the citation(s), educate the employer about the applicable laws.  Give the IWC Order, payday notice, a copy of Labor Code Section 226, garment pamphlet, or other relevant literature.  Patiently answer the questions the employer may have concerning his or her appeal rights.

Always give the employer a self-addressed envelope for payment or appeal.

Other Considerations

1. Respect the employer's privacy and property rights.  Do not rummage through the employer's papers or personal items.  If you need something, ask the employer to get it for you.  If you need to use the phone, ask the employer first.  If it is long distance, charge the call to your business phone card.

2. Be respectful, courteous and fair.  Be willing to listen.  Give the employer a chance to explain and try to understand his or her situation or reasons.  Do not argue with the employer, or get into a shouting match.

3. Stick to the facts.  Do not make personal comments or remarks.

4. Any citation issued is based on the facts and the law.  Do not be accusatory.  Gather all the evidence first before presenting your findings.

5. It is possible to accept payment of citations or for back wages by check only in the field or in the field office.  Have the employer write out the check and place it in the self-addressed envelope for the TIPP unit.

6. Do not tell the employer not to appeal a citation, or that it is useless to appeal the citation.  You may inform the employer of our policy that the Hearing Officer my not migrate the citation.

7. Always remember that TIPP is an enforcement unit, but we also have an educational component.  Effective enforcement plus education lead to greater compliance.

8. If you are not certain about an issue, or the employer does not accept you determination and tries to argue with you, consult your supervisor immediately.

-August 15, 1994

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A reader called with this proposed situation/question: Minors are employed (and limited to) a building completely away and separate from where almond hulling and shelling is going on.  There are several belts that go through this work area that "bring the almonds down." A couple of these minors (under age 16, let's say 14 or 15) stand beside these belts (for up to 8 hours) and perform ãquality control,ä sorting out small almonds and rocks.  Would this be deemed too "hazardous" by the California deputy labor commissioners and/or U.S. Wage and Hour officers (or school "officials" issuing permits)?

From here ... this looks like another "hair-splitter."  If I were a school permit issuer (and of course not familiar with every industry), I would give a cautious OK and specify in capital letters (perhaps after verifying with the employer by phone) that these "kids" will (1) be prohibited from adjusting or servicing these "conveyors," (2) no moving equipment will be in their "proximity," and (3) that they would be shielded from any dangerous or unguarded chains or gearing.  (And having sorted a few potatoes myself as a farm kid, I'd personally want at least one employee at each belt, more senior, to have quick and easy access to an on/off switch.)

Comments welcome.  One local school permit issuer (based in student records) pointed me to an exhaustive California reference at: http://www.dir.ca.gov/dlse/childlaborpamphlet2000.html#4   I neglected to ask her if she consulted from time to time with the local labor commissioner's office on close calls like this one.  These school officials, some of whom are "self-taught," carry an important responsibility.

-- Several responses, which are appreciated ...

"As a large Florida agricultural employer, we do not employ anyone under 18, period.  As far as I am concerned the almond processor is playing with fire and is asking to get burned."

Probably, as I see now, a prudent policy.  Another reader said ...

"Steve,  No work place is ever without its potential risks.  Even adult workers suffer injuries despite the precautions exercised by employers. Unfortunately, the younger the worker, the less the experience.  Also teenagers/adolescents  seem to have a sense that nothing will hurt them. I have a son who is sixteen and I don't think I'd want him around industrial equipment such as a motorized conveyor system.   However, I have choices as to the type of work I can have my son apply for.  Others do not.

As a small child, and into my teen years, I worked, along with my siblings, in the fields of California.  We worked on ladders and on tree branches harvesting fruit.  There were tractors and forklifts operating in our vicinity.  We didn't have a choice, and fortunately nobody in my family was ever injured.  A 14 year old cousin, recently arrived from Mexico, was a bit too anxious to make American dollars, and spent his summer in a cast after falling from a poorly positioned ladder, he was lucky he broke his arm, and not his neck.

Everybody has to make choices in life.  I'd rather see people make choices for our youth that err on the side of safety.  I'd prefer to keep those kids out of the work area described."

Incidentally, a Cal/OSHA officer sent me an excerpt of duties deemed (State and federal) too dangerous for youth under 16 which said, along another line:

* Working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) from a height of over 20 feet.  (Most commercial citrus trees, I'm advised, are topped off at 12 to 15 feet.)

Also on Monday I received "California Child Labor Laws - 2000" from the local labor commissioner's office (also at www.dir.ca.gov/DLSE/dlse.html) .  Page 58 (hard copy) lists occupational restrictions for 14 and 15-year olds.  Simply put, occupations "involving power-driven machinery" are prohibited.  That, I think, would surely include conveyors.

-- So, based on these comments and further review, I now recommend that California 14 and 15 year olds not be hired for sorting off conveyors, irregardless of shielding.  The almond huller has been so advised.  And tree crop and other growers (and contractors) may want, as a matter of policy, to set a minimum employee age; say 16, or better yet, 18.

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Every employer must report immediately to the nearest Cal/OSHA District Office any serious injury or illness, or death of an employee occurring in a place of employment or in connection with any employment.

Immediately means as soon as practically possible but not longer than 8 hours after the employer knows or "with diligent inquiry" would have known of the death or serious injury or illness.  If the employer can show that pressing circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.

Generally, "serious injury or illness" means any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization in excess of 24 hours for other than medical observation or in which an employee suffers loss of any member of the body or suffers any serious degree of permanent disfigurement.

The Fresno Cal/OSHA District Office may be reached on (559) 445-5302.  After business hours, leave a message that you're reporting a serious injury, and the return number to reach you.  Other District Offices in California are listed in the Cal/OSHA poster "Safety and Health Protection on the Job."  The following information is required in a report:

• Time and date of accident.
• Employer's name, address, and telephone.
• Name and job title, or badge number of person reporting the accident.
• Address of site of accident or event.
• Name of person to contact at site of accident.
• Name and address of injured employee(s).
• Nature of injury.
• Location where injured employee(s) was (were) moved to.
• List and identity of other law enforcement agencies present at the accident site.
• Description of accident and if accident scene or instrumentality has been altered.

George Daniels reports ...

Steve,
     A while back you referred to the INS pamphlet "What Color is My Green card." I have posted the pamphlet on the FELS web site at: http://www.fels.org, "Free Resources", "Immigration Documents."

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Another response from a Stockton insurance professional ..."Steve, Your readers are on target when they state that an invalid social security number wouldn't make much difference regarding the validity and compensability of the (workers compensation) claim.  However, providing false documents for an I-9 form, and lying on an application would provide an  employer grounds for immediate termination of the individual.

Terminating an employee because of a workers' comp claim in California generally results in the filing of a section 132(a) claim of discrimination based on a work comp claim.  In such a case as this, the employee would not be terminated for the work comp claim, but for dishonesty and for likely being an illegal/undocumented worker...

The employer may also want to check if the worker has other SS#s they have worked under, so that it can be determined if the employee has filed work comp claims elsewhere.  The claims adjusters can always benefit from ANY significant, or seemingly insignificant, information an employer might have about the injured worker."

This reader's mention of Section 132(a) prompts me to reprint a 1998 newsletter article.  I'm sure the farmer won't mind me repeating his story.

LABOR CODE SECTION 132a - DO YOU KNOW IT? ... California Labor Code Section 132a prohibits discrimination against workers injured in the course and scope of their employment. Employers who fire or in any way discriminate against any employee because he or she receives a workers' compensation award (or files or makes known his or her intention to file for an award) are guilty of a misdemeanor and the employee's compensation "shall be increased by one-half, but in no event more than $10,000." Any such employee "shall also be entitled to reinstatement and reimbursement for lost wages and work benefits."

A farmer called me about this part of the workers' compensation system - trusting I'd share his case with others in the community. While his workers' compensation attorneys fought from 1992 to 1997 what he was convinced and "had video evidence" was a fraudulent claim, he was unaware the Section 132a "clock was running."

After the "injury," the farmer found and presented evidence the former foreman stole company property and added tens of thousands of extra miles to a company vehicle. Meanwhile, the ex-employee filed a claim with the Labor Commissioner for unpaid overtime (claiming he wasn't a supervisor), claimed improper eviction from employer-provided housing with California's Department of Housing and Community Development, and filed a lawsuit claiming the employer failed to accommodate his disability under the Americans with Disabilities Act. The farmer said the former worker told him "I'll have my eye on you the rest of your life."

After finally settling what the farmer called the "collision" part of workers' compensation (medical/disability payments), the judge rendered startling news. Although the foreman "admitted in court he had lied in previous testimony," the judge imposed sizable Section 132a penalties and back pay requirements against the farmer, and ordered that the foreman be reinstated.

The veteran farmer was appalled to learn workers' compensation doesn't insure these Section 132a costs of "improper termination." Having to pay penalties out-of-pocket and reinstate the foreman to supervise operations on his 300-acre ranch 60 miles from headquarters prompted him to appeal the judge's decision. Ultimately, he was relieved of the duty to reinstate the foreman, but this, he said, "also cost me a bundle."

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