University
of CaliforniaUniversity
of CaliforniaSteve's Selected Notes from Ag-Busnet -- August, September, October 2001
Contents:
The meeting was spurred, in large part, by my September 15th article in California-Arizona Farm Press entitled "Contractors seek negative image change," and coordination was carried out by Al Macias, a Fresno-area farm labor contractor, and founder of the nonprofit organization "Labor Contractors Round Table."
In the spirited meeting, contractors shared their views of the industry, and agreed that the time had come to initiate state-wide actions to: (1) gain a greater voice with law makers, (2) educate contractors in all aspects of employment-related regulation and business management, (3) formalize education efforts with some form of "certification" system, and (4) negotiate group discounts on vehicles, other equipment, fuel, supplies, worker apparel, and other inputs. We learned the Salinas "Custom Harvester Association" had already launched a group purchase discount program, safety training services, and contractor bonding assistance, and has a website.
I volunteered to coordinate what I have named the "Federation of Farm Labor Contractor Associations," and host-plan a December meeting. For information, contractors may contact me at (559) 456-7560 or call Al Macias at (559) 903-4514.
Child Labor Rules in Spanish
Myriam Grajales-Hall, UC Riverside, has recently translated one of my earlier newsletters "California Child Labor Laws" to Spanish. This is now a combined English-Spanish 6-page Word document available by request to Yolanda Murillo, Program Assistant. Also available from Yolanda is a newsletter "California Agricultural Labor Relations Act," (in a 6-page nutshell) in English.
Wage Order Questions Crop Up
A local attorney called concerning her new client, a crop duster, whose ground workers were being paid under agricultural Wage Order 14 (overtime after 10 hours per day). A California Division of Labor Standards Enforcement (DLSE) inspector recently said they (the workers) should have been paid (over the past 3 years?) under Wage Order 4 for workers in "professional, technical, clerical, mechanical, and similar operations" (overtime after 8 hours per day).
Carl Borden, Attorney, California Farm Bureau Federation, and Legal Reviewer, Farm Employers Labor Service Newsletter, points me to a note in this (10 pound) "Enforcement Policies and Interpretations Manual" I just received. Seems the deputy's case is "solid," and some of the aerial applicator's mixer-loaders may be due extra overtime pay.
Carl said: "However, the IWC classification issue is problematic, based on the DLSE's enforcement position as stated in this excerpt from a Note to IWC Order 14 on page 144 [in the Manual cited]: Employees directly engaged in the on-farm application of chemicals by a commercial agricultural service are under Order 14, but other employees of a company which is also in the business of selling chemicals are under Order 7; if the firm only contracts to apply the grower's materials or facilitates obtaining chemicals only incidentally, its non-farm employees are under Order 4.
Thus, the DLSE treats ground-crew employees who work only at their employer's facility and who don't go to the farms being serviced as not being employed in an agricultural occupation under Order 14.
The DLSE' s position is consistent with that taken under the federal Fair Labor Standards Act in determining whether an employee of an independent contractor is employed in agriculture under section 3(f) of the FLSA and thus exempt from entitlement to time-and-a-half for hours worked over 40 in a workweek. As the U.S. Department of Labor notes in its Interpretive Bulletin at 29 C.F.R. § 780.136:
[P]ilots and flagmen engaged in the aerial dusting and spraying of crops are examples of the types of employees of independent contractors who may be considered employed in practices performed "on a farm." . . . Even though an employee may work on several farms during a workweek, he is regarded as employed "on a farm" for the entire workweek if his work on each farm pertains solely to farming operations on that farm. The fact that a minor and incidental part of the work of such an employee occurs off the farm will not affect this conclusion. Thus, an employee may spend a small amount of time within the workweek in transporting necessary equipment for work to be done on farms. . . . Other employees of the above employers employed away from the farm would not come within section 3(f). For example, airport employees such as mechanics, loaders, and office workers employed by a crop dusting firm would not be agricultural employees. . . . (Emphasis added.)"
Thanks again Carl, for your valuable service to ag-busnet readers.
HR and National Emergencies
A reader has shared with me the following, that I find informative.
On another subject, workplace challenges are upon us as a result of the terrorist attack. While I'm not an HR specialist, I work with HR managers who are discussing the current issues. Since the National Reserves have been called up, some employers are having to review how to handle HR issues for absentee employees. Others are trying to determine what's fair with employees who were stranded from work in the days following the terrorist attack. If your company has had to tackle these issues but as yet has no answers, you may want to refer to this article on the California Chamber of Commerce web site.
Colleague Howard Rosenberg, UC Cooperative Extension Specialist, noted recently ...
Steve, thanks to you and your reader who suggested the fine Chamber
of Commerce article. Another source of help on workplace implications
of the September attacks and new war is the Bureau of National Affairs.
BNA has put together a terrific collection
of information and resources. Main links from that page include
Questions and Answers About Military Leave Obligations, Helping Employees
Cope: A Supervisors' Checklist, Summaries of State Military Leave Laws,
and State Tax Relief Comparison Chart. Additional links there bring
up management checklists, policies and forms, examples of employer initiatives,
federal and state compliance information, other government documents, industry
perspectives (not ag, however), news stories, and more. I'm adding
a reference to it on the APMP what's new page.
-Howard
Colleague Gregorio Billikopf, Area Farm Advisor, recently noted to his email list ...
Click Here for a free poster you can print and post from the FBI, that deals with bioterrorism, bombs, and other threats.
Immigration News
Earlier this month, the INS implemented the "V" Nonimmigrant Provision of the Life Act. English and Spanish press releases, dated September 7, 2001 are the agency web site. The press release links to implementation procedures published in the Federal Register.
By one estimate, about 500,000 spouses and "minor" children of legal permanent residents could benefit from the V visa program, primarily by receiving an employment authorization document. That could lead, for such beneficiaries, to a valid social security number, and (in California) a drivers license. According to a local INS official I spoke with earlier this year, there could be "tens of thousands" of individuals in San Joaquin Valley homes and schools who could benefit from "V" visa status.
Free Payroll Tax Seminars
A San Francisco reader followed up a call recently ... (I've noted his offer.)
"Steve,
Thank you for taking my call today. I would like to let you know that EDD Tax Branch conducts payroll tax seminars for employers throughout the State. We also have speakers prepared to give presentations at any event and on a variety of payroll tax topics. All of our presentations are free of charge. We also partner with the IRS in order to give the employer a complete presentation on their payroll tax requirements. Our presentations can last any amount of time up to six hours including the IRS information. We can give presentations on any topic from the basic payroll tax reporting requirements up to making independent contractor vs., employee determinations, including the tax consequences. We can also tell employers how to protect their Unemployment Insurance tax rates.
Please see our web site for details of some of our regularly scheduled events. If you feel any of this information would be helpful to your clients please give me a call at the number below to arrange for a speaker.
Thank you,"
"Potable" Water
How's the water in Watsonville? A reader asks ...
"Hi Steve
An ag client in Watsonville said his workers did not like the water
from the faucet and requested bottled water to drink in the field.
Is he "required" to provide bottled water for his workers, instead of regular,
everyday water that comes from a faucet? Please advise.
Thanks,"
Thoughts or suggestions, anyone?
First, field workers may not "dictate" the source of potable water that (California) employers are required to provide. However, word often gets around the community, and employers may want to listen to their requests. Many responses on this ... first a representative of a "nice" employer ...
"Steve, RE: WATER ISSUE ... Our Watsonville operations installed a "super" filtration system and the water was good. Some of our employees would even bring their water jugs from home to fill up, but to some it still didn't seem to taste 'good enough'. After discussion we agreed to provide bottled water, and you know for the cost, it was worth it because our employees were very happy that we agreed to their request and we thanked them for their input to improve our workplace conditions.
Also, if the water tastes better it encourages them to drink more
especially on hot days when it's more critical to take in fluids.
You have to weigh the pros and cons and perhaps a few dollars spent on
bottled water may not break a company, but your return on happy employees
is worth more than what you spend, especially if the message that you care
enough about your people is delivered properly to EE's."
_____________________________________________
Another reader says ..."Hello, Steve ... A suggestion could
be that the Ag. client have the water tested, have some of the key employees
present when it is tested, as well as when the results are returned. I
have a suspicion that the faucet water issue could be a cover for another
deeper concern. It would seem that more questions need to asked. If the
bottled water request is resolved, will it be something else later?"
______________________
_______
An anonymous health department representative says ..."Steve, I know you don't use names so please don't use mine, you can say a health department employee says...I am not speaking to requirements as I do not know if in the circumstance it would be required but I would want to know the following: IF the response is that providing bottled water is NOT required and the tap water is OK and the employer can continue to serve the tap water. I would want to find out from the employees why don't they like the water in particular...is it taste?... smell?...temperature? Perhaps the employer has already tried this avenue, you know, listening to employees. I would also like to know if the tap water is provided from an approved source. That should be a given pero en la vida no hay recompensa.
Is the water being provided from a small water
system (Group A Transient Non Community or Group B---and I don't know if
CA has Group B) I would make darn sure it is in compliance with the drinking
water standards and be sure any tests are current. Employer does not want
to say "I don't have to so I won't provide you bottled water" and then
find out there is chemical or bacteriological contamination."
_________________________
____
Ex-farm worker, now a risk management director adds ... "The regulations
(section 3457, Title 8) indicate that the employer is to provide potable
water... "The water shall be fresh and pure, suitably cool, and in sufficient
amounts...." How to define "fresh and pure"? good question.
I'd say have the client provide the same water given to his workers to
his/her family members...children, grandchildren, nephews, nieces, etc.
If these 'testers' fine the water tastes fine, then no problem, give the
same water to the workers. If the relatives make faces, indicate
the water tastes crummy, etc, then maybe the water source should be changed.
The client can also have local environmental health dept test the water
for impurities. The results can be provided to the employees..."
_________________________
__________
At a greenhouse ... it's 25 cents a gallon ..."We had a similar situation
where our employees did not like the taste of the water from our drinking
fountains. What we did to resolve it is install a drinking water vending
machine, next to the lunchroom (we work in greenhouses). If they
don't like the water from the drinking faucet the can pay a quarter for
a gallon of water. When the original machine was installed the water
company provided a large number of empty gallon containers for use.
Since we have had the water machine we have not had any further complains
about the taste from the faucet."
______________________________________ ___
Now ... for the "bottom-line" ... "Steve, I doubt he's "required" as he's complied with the law, assuming the water he supplied is potable. But let's look at it a different way.
1) If his workers are migrants, their experience with tap water may not be what ours is, and have been taught bottled water is safer.
2) If his workers have access to bottled water in the field, they needn't fear they will be penalized for stopping and going to get water, so will drink what they need to stay hydrated.
3) If his workers have access to bottled water, they are more likely to stay hydrated, preventing injuries and working more efficiently as a result.
4) If these workers are only allowed access to water during
"break time" either as policy of as a result of 2) above, then
a) if there's a workers' comp
claim arising from a dehydration situation, he'll likely lose the
case
b) if there's an OSHA investigation
of it, he'll likely be fined
c) if CRLA picks up the case,
he'll likely be adjudged as not really having provided access to clean
water.
Bottom-line: Bottled water is relatively cheap compared to the consequences of not providing it. Consider it a risk management tool. Besides, it's a small, human accommodation to the folks that make money for you."
Carl Borden, California Farm Bureau Federation attorney, and FELS newsletter legal reviewer, provides this helpful and thorough assessment ... and ... relocates Cal/OSHA's "potable" water definition ...
(As I was drafting the response below to your first message on this
subject, I too discovered that Title 22, California Code of Regulations,
Section 64401(b)-the section referenced by the field sanitation regulation-no
longer defines the term potable water. Here's my full response, including
what I discovered about section 64401, which was amended long ago and no
longer
deals with drinking water.)
Title 8, California Code of Regulations, section 3457, sets field sanitation requirements for agricultural workplaces in California. Paragraph (c)(1) of that regulation provides in part:
(A) Potable water shall be provided during working hours and placed in locations readily accessible to all employees. Access to such drinking water shall be permitted at all times.
(B) The water shall be fresh and pure, suitably cool, and in sufficient amounts, taking into account the air temperature, humidity, and the nature of the work performed, to meet the needs of all employees.
Subsection (b) of that regulation provides in part:
"Potable water" means water that meets the standards for drinking purposes found in Title 22, California Code of Regulations, Section 64401(b).
Section 64401was amended after the field sanitation regulation was adopted and no longer defines potable water. The law librarian of the Office of Administrative Law provided me with the version of 64401(b) as it read when the field sanitation regulation was adopted. It read:
Primary drinking water standards contained in these regulations are based upon the National Interim Primary Drinking Water Regulations, 40 CFR Part 141. . . .
Those federal EPA regulations, which set maximum permissible levels for many contaminants, are far too lengthy and detailed to be reviewed here. (Frankly, I did not take the time to read them myself.) But in a nutshell, the primary drinking water standards set by those regulations are designed to ensure that water is safe to drink. The secondary standards focus on water aesthetics (taste/smell/appearance). Here is the EPA's explanation.
The U.S. Environmental Protection Agency (EPA) has established National Primary Drinking Water Regulations that set mandatory water quality standards for drinking water contaminants. These are enforceable standards called "maximum contaminant levels" or "MCLs", which are established to protect the public against consumption of drinking water contaminants that present a risk to human health. An MCL is the maximum allowable amount of a contaminant in drinking water which is delivered to the consumer .
In addition, EPA has established National Secondary Drinking Water Regulations that set non-mandatory water quality standards for 15 contaminants. EPA does not enforce these "secondary maximum contaminant levels" or "SMCLs." They are established only as guidelines to assist public water systems in managing their drinking water for aesthetic considerations, such as taste, color and odor. These contaminants are not considered to present a risk to human health at the SMCL.
So, as long as the water offered to employees meets the health requirements under the EPA's primary standards, it is potable under California's field sanitation regulation-even if it has poor aesthetics.
Nonetheless, I do agree with other respondents to your question who suggested it still may be a good idea to provide employees with an alternate supply of water with good aesthetics. It may be a relatively inexpensive way of not only showing your workforce you care about and value them but of encouraging them to drink copious amounts of water for health reasons. (Whether it's paying more than the minimum wage, providing insurance benefits or the like, many successful employers often do more for their employees than what the law requires.) Bottled water may not be the only feasible alternative. A filtration system, if feasible, may cost less in the long run.
Abundance of Posters Publication
Representatives of a community-based organization, a government agency, and a major grower's association have all asked this year that I consider updating my 1990 newsletter (revised 1997) "Abundance of Posters and Leaflets Required in Agricultural Employment."
This revised (Word) document is now available from Yolanda Murillo.
Several private agriculture-based organizations market the full (and laminated) collection of posters.
More Help on Bonus Overtime
In July, we were discussing computation of the "regular rate" for overtime purposes when non-discretionary bonuses are paid. Carl Borden, attorney with California Farm Bureau Federation, and legal reviewer of the Farm Employers Labor Service Newsletter, contributes ...
"The DLSE has opined on the subject. Like the Feds, the DLSE says a non-discretionary bonus must be included in the regular rate computation. (I think the [landscape contractor] writer just got a break from a [California] DLSE staffer who didn't know better.) The following quotes are from the DLSE Enforcement Policies and Interpretations Manual (rev. Oct. 1998):
18.6 Calculation of "regular rate of pay" where bonus is involved. When calculating the regular rate of pay for purposes of overtime calculation under the IWC Orders, non-discretionary bonuses must be calculated into the formula.
33.1.2.1 Sums which must be used in computing "regular rate of pay": In determining what rate of pay to use in calculating the premium pay which must be paid, DLSE will use the procedures employed by the U.S. Department of Labor to the extent that those procedures are consistent with the California law.
33.1.2.3 Sums which need not be computed in determining "regular rate": Sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production , or efficiency. (discussed in 29 C.F.R. 778.212)
Steve, if you don't have a copy of the DLSE Enforcement Policies and Interpretations Manual, you should see if you can get one, given the work you do."
Carl later shared with me the response he received from the Division regarding any agency plans to place the Manual at their web site, or hard copy availability to members of the public. They said ...
"Although I agree that it should be; at the present time, the manual is not available on-line. It is available for sale through our headquarters. The cost is $110.00 which includes shipping and handling ($100.00 if you want to pick it up at 455 Golden Gate Ave, San Francisco, 9th floor). Send check to: DLSE H.Q., P.O. Box 420603, San Francisco, CA 94142. I'm told that at some (possibly remote) date in the future, they will attempt to get it on-line."
Small Farm Survival Talk
Late last month (July 2001) ... Dr. John Ikerd, Agricultural Economics Professor Emeritus, University of Missouri (formerly a colleague of mine in North Carolina), stepped to the podium to deliver the keynote opening address at USDA's National Small Farms Conference in Memphis, TN. A day later he delivered his remarks in the conference closing session. As I watched him approach the podium for the second time, I wondered (to myself) if he could actually "trump" his own earlier insightful and motivating address.
I didn't have to wonder for long. He opened "To put the survival of small farms in perspective, we need to begin with the issue of survival for "all farms" -- the survival of American Agriculture."
As a courtesy, I offer a copy of his talk (9-page Word document). Request "Survival Strategies for Small Farms" from Yolanda Murillo. (I especially recommend it as reading for young farmers and potential farmers.)
News Item - AB423
I've just learned from the office of California Assembly Speaker Robert Hertzberg that the Governor did sign AB 423, a bill sponsored by the United Farm Workers of America. The bill elevates contractor license verification responsibilities for growers (copies to be retained 3 years), and includes major raises in fines (beginning in 2003) for knowingly and willfully failing to pay required wages, or causing such failure to pay wages. Also farm labor contractors will have the responsibility to "verify licenses" of those they "subcontract" with to provide "contractor-like services."
Question Re: Irrigator Travel
A California farm worker's daughter writes ...
"Mr. Sutter, I was referred to you by [a representative of USDA] on a question that I can't seem to find the answer to. It is as follows: Should a farm laborer (irrigator to be exact) be reimbursed by his employer for using his own personal vehicle and purchase of gasoline when using the vehicle for his employment? The employer does not furnish his employees with vehicles or gasoline, and a vehicle is needed being that some of the fields are sometimes 50 miles away from the base. I'm just trying to see if my father's employer is breaking any labor laws. The way I see it my father is paid minimum wage and then has to use some of that money to purchase gasoline that he uses during his job and the wear of his vehicle. It has been going on for years now and feel it's not right and just.
Please, help me find an answer or direct me to someone who can help. Your response will be greatly appreciated."
She's asking if there's any basis for a "claim" with the local office of the California Labor Commissioner. Never having had this particular question, I forwarded her message (via fax) to Al Weaver, Senior Deputy Labor Commissioner in Fresno, along with a statement that "others in the farming community would also like to know." Here's the message he left me later that day.
"Good afternoon Mr. Sutter (pronounced correctly), this is Al Weaver at the State Labor Commissioner's office in Fresno. You had faxed over a question for me regarding reimbursable costs for a person who was employed as an irrigator. There is a provision in the California Labor Code - Section 2802 - which provides for reimbursement for those kinds of expenses, and you can file a claim in this office to recover those expenses, however, there's a statute of limitations which goes back for three years."
Labor Code Section 2802 is online . "Check" Labor Code. "Keyword" is 2802.
New Farm Labor Bus Driver Instructor Guide
Jim Garrity, Instructor/Coordinator, California Department of Education, asked me to pass this along to those of you who may know farm labor bus driver instructors who may need to know.
Recently the California Department of Education revised the book which Farm Labor Bus Driver Instructors must use to train an original applicant to obtain a special driver certificate to drive a farm labor bus.
Even after 36 meetings across the State to distribute the latest edition of the Instructor's Behind-the-Wheel Guide for California's Bus Driver's Training Course, some of the existing farm labor instructors may have been unaware of the meetings conducted in their area. Instructors who have not kept the Department aware of address changes would not have received a letter.
For those who were unable to attend or otherwise missed the meetings, make-up meetings are planned in 2001 (October 30, November 7, November 20, December 11). Those not attending will be classified as able to teach classroom only. A new data base will be provided to each field office of the California Highway Patrol with instructions not to accept Training Certificates (Form TO1) for behind-the-wheel training signed by instructors whose names do not appear in the latest database.
For information, call (916) 375-7100. Instructor Bulletin 08-01 (on make-up training) is online.