University
of CaliforniaUniversity
of CaliforniaSteve's Selected Notes from Ag-Busnet -- March 2001
Contents:
"Personal Protective Guides for Pesticide Handlers" Booklet
A limited supply of "Personal Protective Guides for Pesticide Handlers" is available. Originally produced by the USEPA and USDA as a series of brochures in 1995, the (out-of-print) set has been combined into a single booklet as a courtesy by the UC Agricultural Personnel Management Program. The illustrated booklet (in English) covers protective clothing, gloves, eyewear, respirators, proper selection, use and maintenance of gear, heat stress management, and interpreting PPE statements on pesticide labels. The 29-page document is an excellent supplement to the Department of Pesticide Regulation's PSIS leaflet series.
To recover printing and postage, send payment of $4, payable to "County of Fresno," to Steve Sutter, UC Area Farm Advisor, 1720 S. Maple Ave., Fresno, CA 93702.
Records Retention
A reader requests ...
"Would you please reprint the records retention requirements for safety training and various other employment records. I'm sure many of your newsletter readers would benefit from this reminder. I'm sure there's many folks like me who sometimes lose track of just how long they should hang on to what. Thank you."
Sure. In some cases, I'll have to distinguish between pesticide safety and "other" safety, as jurisdiction for the former is Cal/EPA, and Cal/OSHA administers the later.
Generally, documentation of safety and health training must be maintained for at least one (1) year, except for pesticide handler "training papers," which must be kept for 2 years. (Documented safety trainings less frequent than monthly raises a "red flag" to many Cal/OSHA inspectors, which could become a building block to citations.)
For pesticide handlers, Material Safety Data Sheets (MSDSs) for pesticides used, training program, and pesticide use records must be kept for 2 years. For organophosphate and carbamate pesticides with the signal word "DANGER" or "WARNING," the retention period of "exposure (and other medical supervision) records" is 3 years. Exposure records, in this case, would be pesticide name, the date applied, and the name of the applicator. See PSIS-8 at http://www.cdpr.ca.gov/docs/whs/psi2menu.htm
Cal/OSHA, on the other hand, deems MSDSs to be employee "exposure records." For non-pesticide materials, "Material safety data sheets shall be retained as necessary to comply with the provisions of section (Safety Order) 5194 (in other words, for all materials currently in use)." However, "where material safety data sheets are destroyed, a record of the identity (chemical name if known) of the substance or agent, where it was used, and when it was used shall be retained for at least 30 years."
Annual OSHA "Log 200" (and supporting Form 101) of reportable injuries and illnesses must be completed by employers with over 10 employees, and retained 5 calendar years.
Pesticide safety instructors who issue EPA training verification "blue" cards to field workers must retain records of the cards they issue for 5 years.
On to payroll ... Workweek records (including those of your farm labor contractor) that show each worker's hours (along with piece-rate units, if applicable) by day, with gross pay, deductions, and net pay for the pay period should be preserved 3 years (U.S. Wage and Hour). Records of starting and quitting times are appreciated by both U.S. Wage and Hour officers and deputy California Labor Commissioners.
Retain INS Form I-9 for three years after the date employment begins or 1 year after the person's employment is terminated, whichever is later.
Caveat ... Before heading for the shredder, consider recommendations of your legal and tax adviser. One CPA firm, for example, advises its business owners and managers to retain bank statements and canceled checks (and presumably the documents that support those that are deductible) for 7 years (important checks permanently). Barring fraud (or non-filing), this is consistent with the maximum of several IRS periods of "limitations." Accident reports and claims, and expired contracts and leases should also be retained 7 years, according to these experts.
Employee personnel records after termination? Their advice is 3 years.
A California attorney writes ... "Payroll records, personnel records, written contracts and documents pertaining to written contracts should be kept for at least four years.
Reason: The statute of limitations for claims brought under either the California Unfair Competition Act (Business and Professions Code sections17200 to 17209) or a written contract is four years."
Another comments and asks about I-9 ...
"Steve,
I recently called the INS Hot line (800) 357-2099 to inquire about
retaining the I-9 forms for the " 3 years after employment begins". I needed
clarification if it meant only 3 years. I was told that we need to keep
them on file for as long as they are employed and 1 year after employment
ends. They are in the process of revising the handbook. I imagine I was
not the only one that needed clarification.
I am also waiting for a response about where the original I-9 forms
should be stored. We have a branch office where hiring is done and we would
like all originals to be stored in the main office. Has anybody else had
to deal with this situation?"
My reader from INS in Washington D.C. comments first on I-9 storage, then clarifies the retention rule with examples. (Her responses to immigration-related posts are appreciated.)
"As for place of storage, US immigration law does not prescribe it. For instance, federal law does not require that I-9 records be kept inside or outside of personnel files. As for place of storage, the only requirement is that the employer provide I-9 files (both active and subject to retention requirements) for all employees related to the worksite where an official request for production of those documents is made, within 3 days of the request. The original documents, as opposed to photocopies, may be requested, since the government takes the position that it owns the originals. Obviously, if documents are stored off site or in individual personnel files, for example, assembling (and transmitting) them to the site where the request was made may be difficult or impossible. It is for this reason that we recommend that original documents be stored at the worksite, with copies included in personnel files, at company HQ, etc., if the employer wishes."
Now her response regarding retention of Form I-9 ...
RULE FOR RETENTION OF FORMS I-9
Examples:
1. Employee hired on November 1, 1993, who terminated employment
on July 5, 1994
2. Employee hired on March 27, 1987, who terminated employment
on May 19, 2000
Step one:
Identify hire date and add 3 years = [date A]
Example 1. 11/1/93 + 3 years = 11/1/96
Example 2. 3/27/87 + 3 years = 3/27/90
Step two:
Identify termination date and add 1 year = [date B]
Example 1. 7/5/94 + 1 year = 7/5/95
Example 2. 5/19/00 + 1 year = 5/19/01
Step three:
Compare dates [A] and [B]
Example 1: Compare 11/1/96 and 7/5/95.
Example 2: Compare 3/27/90 and 5/19/01.
Step four:
Determine the later of date [A] or [B] in each case. The later
of the two becomes retention date for the corresponding Form I-9.
Example results:
11/1/96 is later than 7/5/95, so 11/1/96 is the retention
date for this employeeâs I-9
5/19/01 is later than 3/27/90, so 5/19/01 is the retention
date for this employeeâs I-9
NOTE: In general, the retention date for short term employees will be hire date plus three years. The retention date for long term employees will be termination date plus one year.
Eye Protection at Issue in Cal/OSHA Case
Reprinted, by permission, from Farm Employers Labor Service (FELS) newsletter, February 2001.
A Cal/OSHA citation against a Riverside County grower -- although dismissed for insufficient evidence -- serves as a reminder to grape and tree-fruit growers of the importance of providing their employees with appropriate eve protection.
During a targeted-industry sweep, a Cal/OSHA inspector observed that two of 16 employees in a vine-pruning crew were not wearing eye protection. The inspector therefore fined the grower $650. The grower appealed.
At the appeal hearing, two employees testified they had been provided eye protection and instructed on how to use it. The Cal/OSHA Appeals Board Administrative Law Judge assigned to hear the case vacated the citation and penalty. In light of the conflicting evidence, he concluded that Cal/OSHA had not met its burden of proof.
The employer was cited under General Industry Safety Order (Title 8, California Code of Regulations) section 3382(a), which requires employers to provide face or eye protection for employees working in locations where they risk receiving eye injuries.
"Employer does not dispute the fact that eye protection is required while pruning vines," the ALJ wrote, "but appeals because eye protection is provided, and it believes that eye protection was in use at the time of the inspection."
A reader asks ...
"Are you aware of any place where I could find out "who" must wear safety glasses and "when"? I work in a greenhouse environment."
OK list ... suggestions?
Greenhouse safety glasses ... Although a score of you reminded me of pesticide label (and/or California) mandated eye protection, a Hawaii reader (and pesticide regulator) replied ...
"It goes beyond the question of pesticides. I've known people who have suffered eye injuries from moving potted plants. Many companies require safety glasses of all workers all the time to protect from flying debris, foliage, branches and whatever."
And from northern California, a reader said ...
"Steve,
I've been managing greenhouses for 18 years and I'm not aware that there is any "must" regarding eye protection in greenhouses unless pesticide applications are involved. Of course it's common sense to use them in situations where debris or dust is stirred up, where sharp branches protrude at eye level, or any other situation that may jeopardize one's sight. Also many MSDS labels require eye protection too (i.e.. strong acids or bases)."
Another reader suggested I contact Cal/OSHA in Fresno ...
A local Cal/OSHA Consultation engineer said "when you have a General safety order (such as 3382(a)), the employer has to determine (assess) if the (hazard) exposure is there." He also pointed out that "if you're cruising along, and you don't think the exposure is there, then for whatever reason an employee does get hurt ... it's almost (always) a citable situation." If you think it's warranted, "it's probably not a bad idea."
Protective eye wear is now more "stylish," comfortable, and many models have very little, if any, distortion. Buy glasses that are made of impact-resistant polycarbonate, or that are labeled as meeting ANSI (American National Standards Institute) requirements.
Salvadoran Immigrants
The INS will begin accepting applications today (March 9, 2001) for "Temporary Protected Status" (TPS) for eligible Salvadorans. The application period will end on September 9, 2002. During this period eligible Salvadorans can apply for permission to work in the United States. The processing of an employment authorization card "may take approximately 90 days," according to the agency.
An alien who is a national of El Salvador is eligible for TPS benefits if the alien: (1) arrived in the U.S. prior to February 13, 2001, and continuously resided in the U.S. since that date; (2) has been continuously physically present since March 9, 2001; (3) is admissible as an immigrant; and (4) registers for TPS. The TPS is estimated to cover as many as 150,000 potential applicants.
Individuals who have been convicted in the U.S. of either a felony or two or more misdemeanors committed in the U.S. are not eligible for TPS. Complete news release is at: http://www.ins.usdoj.gov/graphics/publicaffairs/newsrels/tpsregister.htm
AB 423 ... would affect unlicensed transporters, contractors ... (and their employers) ... Assembly Speaker Robert M. Hertzberg, Van Nuys (San Fernando Valley) recently introduced AB 423 related to proposed new requirements regarding California farm labor contractor licensing.
Special emphasis would be aimed at the licensing of "persons contracted by a farm labor contractor who is acting in the capacity of a farm labor contractor." Presumably, this would include "day haulers" who are "employed by a farm labor contractor to transport, or who for a fee transport, 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." Contractors would be required to verify required licenses of these day haulers (or those conducting other contractor activities for the contractor), and retain a copy of the licenses "for a period of 3 years following termination of the contract or agreement."
The bill would also provide that a "grower" has an "affirmative" obligation to inspect the license of any person contracted as a farm labor contractor and to verify that the license is valid, and retain a copy of the license for three years.
The bill would require the Labor Commissioner to establish and maintain a "Farm Labor Contractor License Verification Unit" (presumably 5 days a week) commencing no later than July 1, 2002, to certify the status of the licenses of farm labor contractors to growers and farm labor contractors, upon request.
Operating without a farm labor contractors (or day haulers) license already carries a fine (for the contractor or day hauler) of "not less than" $1,000, nor more than $5,000. AB 423 would provide that any grower or contractor who enters into a contract or agreement in violation of this (licensing) section would "be subject to a civil action by an aggrieved worker for any claims arising from the contract or agreement that are a direct result of any violation of any state law regulating wages, housing, pesticides, or transportation committed by the unlicensed farm labor contractor."
To track the bill's progress, go to http://www.leginfo.ca.gov/ , then click Bill Information, select Assembly, and search for 423. "Subscribe" to the bill to get automatic (electronic) updates.
A reader adds ...
"Steve,
AB 423, as currently proposed, is the exact language from a bill that was vetoed by the governor last year. Last years Bill was AB 2862 (Romero). It must change significantly before the Governor will consider."
Upon inspection, he's absolutely right ... it's virtually identical, word for word. Only the "authorship" changed -- from an Assembly Member to the Assembly Speaker.
INS Responds
Several of you have asked me what response I received from the INS in Washington D.C. to my letter that follows.
TO: INS Office of Business Liaison
FROM: Steve Sutter, UC Area Farm Advisor
In a recent farmer seminar in Stockton, CA, we had a major discussion of "bad" social security numbers (name/number mismatches). One farmer told me of his experience in advising a large part of his seasonal crew that there were problems with social security numbers. They arrived back next day, not only with new social security cards, but also new names!
From an INS perspective, what would you suggest as a prudent course of action for this and other farmers? Your response will be appreciated by many in the agricultural employer community. Thank you.
Response ... "Review bulletins" was the message I received from the INS in a 30-page fax. Although nothing was highlighted, one paragraph did catch my eye.
ãAn employer who discovers that an employee has been working unlawfully (e.g. submitted false documentation) may allow such an employee another opportunity to present acceptable documentation and complete, amend, or note the I-9 form accordingly. However, employers should be aware that if an employee who cannot provide acceptable documentation remains employed, they may be subject to penalties under the law."
California's Pesticide Illness Surveillance Program (PISP)
by Steve Sutter, UC Area Farm Advisor
Cal/EPA receives reports of illness and injury suspected of having been caused by pesticide exposure from several sources. Since 1971, California physicians have had to report to county officers any illness or injury suspected of having been "definitely," "probably," or "possibly" caused by pesticide exposure.
Also, California Department of Pesticide Regulation (DPR) staff review "Doctors First Reports of Work Injury" which are required in the process by which physicians are paid for treating workers injured on the job. Cases are investigated if pesticides are mentioned as a potential cause of the injury.
The table below shows occupational injuries/illnesses (agriculture and non-agriculture) "definitely" or "probably" associated with pesticide exposure reported by California physicians for the periods 1990-94 and 1995-99 for selected "activities." (Non-occupational illness/injuries are less fully reported than occupational cases.) The data show a notable decline in the number of injuries to handlers (particularly eye injuries), but increases in cases related to field residues and drift. For this analysis, "handlers" also include those performing mechanical work on contaminated equipment.
1990 - 94 1995 - 99
|
|
|
|
|
|
|
|
|
|
| Handler |
1488
|
453
|
663
|
2604
|
794
|
289
|
451
|
1534
|
| Field Residue |
9
|
34
|
73
|
116
|
37
|
97
|
195
|
329
|
| Drift |
100
|
21
|
705
|
826
|
62
|
13
|
961
|
1036
|
| All Activities |
1908
|
625
|
2334
|
4867
|
1176
|
469
|
2220
|
3865
|