AGRICULTURAL PERSONNEL MANAGEMENT

NEWSLETTER

The second edition of Labor Management Laws in California Agriculture, just off the press from the University of California, is a current, compact, integrated, 190-page guide to the myriad federal and state regulations that apply to labor management in farm businesses. Chapters in this recommended reading cover the employment contract, recruitment and hiring, workplace safety and health, wages, benefits, and payroll taxes, and discipline and discharge.

The book's main purpose, says lead author, Howard R. Rosenberg, Cooperative Extension Specialist, and Director of UC's Agricultural Personnel Management Program at Berkeley, "is to clarify what the laws require, allow, and prohibit, and to provide basic information for use by agricultural managers and workers in everyday decisions, as well as by people who would like to examine the impacts of regulation."

Revised sections in the new edition deliver details of the federal EPA Worker Protection Standard, responsibilities of farm labor contractors and their customers, discrimination and reasonable accommodation under the Americans with Disabilities Act, unpaid leave required by the Family Care and Medical Leave Act, employment of minors, payroll tax withholding and deposits, and workers' compensation.

Labor Management Laws in California Agriculture is available at a discount at some county offices of UC Cooperative Extension, including Fresno County. Send $14, check payable to UC Regents, to Steve Sutter, UC Area Personnel Management Farm Advisor, 1720 S. Maple Ave., Fresno, CA 93702. For information, call (209) 456-7560.

On November 1, 1995, Nora Benavides began work for the University of California as an agricultural safety and health program representative. From an office at 1720 South Maple, she'll serve area farmworker and employer constituents, initially by developing a farmworker motor vehicle safety campaign with media, adults, and youth. Contact Nora on (209) 456-7285.

The California Vehicle Code requires operators of "farm labor vehicles" to have and carry a "Class B" commercial driver's license, endorsed for passenger transportation, a California farm labor contractor or "day haulers" license, and a health certificate issued not more than 2 years prior to the application for the Class B license by a health care professional, which must then be renewed every 2 years.

Federal regulations require Farm Labor Contractor certificates to indicate "Transportation Authorized (TA)" if the FLC hires drivers. Farm labor contractor driver employee (FLCE) certificates must indicate "Driving Authorized (DA)." FLCs who transport for an agricultural employer must have both authorizations on their federal certificate.

A "farm labor vehicle" is a motor vehicle "designed, used, or maintained" for transporting 9 or more farmworkers, in addition to the driver, to and from the place of employment or employment related activities. Excluded are vehicles transporting only the driver's or owner's immediate family.

No person may drive a farm labor vehicle unless it is registered with the DMV and the California Labor Commissioner, and an annual DMV-issued certificate is in it stating the inspected vehicle complied with regulations related to construction, design, and equipment. Farm labor vehicles must be insured, and have a fire extinguisher with at least a 4B:C rating and a first aid kit "appropriate to the number of passengers."

When these farm labor vehicle drivers transport one or more farmworker passengers, a current certificate of driver training course completion issued by the Department of Motor Vehicles (DMV) is required. The driver training course is 20 hours, of which 10 hours is behind the wheel.

To assist the agricultural industry, I've assembled a partial directory of qualified farm labor vehicle driver trainers willing to offer training services for hire in selected areas of California. To request a free copy, call me at (209) 456-7560.

When the driver training course is passed, a CHP examination is required. Applicants for the California Farm Labor Vehicle Driver Certificate must present evidence that they have completed the driver training course developed by the Department of Education before a permanent certificate is issued. Certificate renewal requires 2 hours of additional classroom instruction per year.

California's Vehicle Code requires motor carriers and drivers to comply with federal requirements regarding controlled substances and alcohol use and testing programs for owner-operators and employers, including farmers and custom harvesters. As operators of farm labor vehicles hold commercial (Class B) driver's licenses, they too are subject to the new alcohol and drug testing rules, if the vehicle is designed to transport 16 or more passengers, including the driver [Rick Long, CHP Technical Services Section, Sacramento, 11/17/95].

Commercial vehicle drivers covered by the drug and alcohol testing rules include: full-time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent, owner-operator contractors who are either directly employed by or under lease to an employer, or who operate a commercial motor vehicle at the direction of or with the consent of an employer.

Full pesticide use reporting began in 1990. Regulators, scientists, farmers, legislators, and public interest groups had expressed concern that pesticide regulatory decisions were being made without accurate and detailed use information.

The use report database may be used to resolve pesticide use conflicts with endangered species, in developing plans to reduce emissions of volatile organic compounds, including pesticide products, and in tracking pesticide use in areas susceptible to ground-water contamination.

The Department of Pesticide Regulation (DPR) database may be used to see what pesticides are used on various crops. Based on pesticide use reports, the accompanying table shows the major pesticide active ingredients (AIs) used in 1990-93, in three California crops: broccoli, lettuce, and strawberries. These AIs are used in a multitude of brand/trade names.

The number of active ingredients applied to broccoli, lettuce, and strawberries topped 100 for each crop in 1993. Almost 200 active ingredients were applied to lettuce.

In all three crops, though, the top 15 active ingredients accounted for most of the total pounds of AI used. For over 100 active ingredients used in California's 1993 lettuce production, for example, less than 500 pounds of each were applied to the crop.

For the three crops collectively, total 1993 harvested acreage was up 9.6 percent over the average 1990-92. However, total pounds of pesticide active ingredient applied to these three crops in 1993 were down 12.4 percent from the annual average of 1990-92. It's interesting to note that total pounds of toxicity category 1 and 2 active ingredients contained in the "top 15" ingredient lists were 17.6 percent lower in 1993, perhaps signaling a trend toward use of lower toxicity pesticides.

California pesticide use reports are detailed. Sixty pounds of garlic were applied to California's lettuce crop as a "pesticide" in 1993 -- along with a fraction of an ounce of strychnine. Over 39,000 pounds of Poly-i-para-methene were applied to lettuce in 1993 as a "spreader-sticker."

If you missed AgFresno's Ag Employers Seminar "Federal Drug and Alcohol Testing Rules Affect Agriculture," November 17, 1995, you can procure the handouts, including a specimen 4-page Guideline, the complete text of federal Department of Transportation "Controlled Substances and Alcohol Use and Testing" regulations (49 CFR Part 382), and a resource list. Send $4 payable to "County of Fresno" to: APMP, 1720 S. Maple Ave., Fresno, CA 93702. Write "AgFresno Special" on the check margin.

Starting January 1, 1996, all employers, including farmers and custom harvesters, with one or more "safety-sensitive drivers" holding a commercial driver's license will be subject to Federal Highway Administration alcohol and drug testing rules -- already in effect for "large" employers with 50 or more such drivers. Tests are grouped as "random, reasonable suspicion, return-to-duty, and rehabilitation followup."

A commercial motor vehicle is a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle: has a gross combination weight of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or has a gross vehicle weight rating of 26,001 or more pounds; or is designed to transport 16 or more passengers, including the driver; or is of any size and is used in the transportation of hazardous materials requiring placards.

"Safety-sensitive" functions include, among other operations, time spent at the driving controls of a commercial motor vehicle, and time unloading or loading, or assisting in the loading or unloading, of a commercial motor vehicle. Performance of safety-sensitive functions is prohibited: while having a breath alcohol concentration of 0.04 percent or greater as indicated by an alcohol breath test; while using alcohol; or within 4 hours after using alcohol.

A breath concentration of .02 is considered a "positive," prohibiting work in safety-sensitive functions for 24 hours. A .04 concentration requires the employee's referral to a "substance abuse professional" (SAP), before return-to-duty.

Employers are responsible for implementing and conducting breath alcohol and urine drug testing programs, using their own employees, contract services, or through "consortiums" providing services to members. Urine specimens must be analyzed for marijuana, cocaine, amphetamines, opiates (including heroin), and phencyclidine (PCP).

Each year, the number of random (confidential) alcohol tests conducted by the employer must equal at least 25 percent of all safety-sensitive drivers. These rules provide for adjustments to the annual testing rate based on violations in specific industries.

Random unannounced drug tests each year must at least equal 50 percent of safety-sensitive drivers. Some drivers may be tested more than once each year; some may not be tested at all, depending on the random selection.

Employers must keep detailed records for specified periods, and provide information on drug use and treatment to safety-sensitive drivers. All supervisors and "officials" with safety-sensitive drivers must attend at least one hour of training on the signs and symptoms of drug abuse, and 60 minutes on alcohol abuse.

Recently I formed, at an area farm labor contractor's request, a "Farm Labor Contractor Advisory Group." Although members acknowledge the shortage of tax and labor law enforcement, worker benefits, and the need to improve FLCs' public image -- the paramount issue has been determining equitable commission rates.

Six of these Fresno-area FLC cooperators have provided personal financial data, on which this initial FLC cost study is based. Three of the FLCs bearing their business records are corporations; three are sole proprietorships.

The three small FLCs, as measured by dollar payroll, averaged $227,384 in payroll in 1994. Wages paid in vineyards averaged $169,659, the balance was in orchard work.

These small FLCs averaged 115 workers at peak employment and operated an average 25 weeks in 1994. The number of grower-customers, averaging 12, ranged from 1 to 27.

The three largest FLCs are more diversified and operate the full year. Payroll in 1994 averaged $5,243,673, composed of $1,663,943 in vineyards, $1,657,673 in orchards, and $1,922,057 in other crops.

The three large firms averaged 767 workers at peak employment. The number of customers, averaging 45, ranged from 26 to 64.

The small FLCs averaged $320,573 in revenue and $317,746 in total expenses in 1994 for an average pre-tax income of $2,827; less than a 1 percent profit rate on revenue. The return to management and net worth ranged from a sizable net loss to a positive 7.5 percent.

Mandatory payroll expenses (social security, unemployment insurance, and workers compensation) combined to average 22.2 percent of payroll for the small FLCs in 1994. Vehicle expenses, depreciation, telephone, advertising, office expenses, bookkeeping/payroll services, business insurance, paper cups, ice, tools, supplies, bank charges, dues, licenses, legal fees, and other expenses averaged 17.5 percent, totaling 39.7 percent over wages paid.

Field sanitation for the small FLCs averaged $2,540 or 1 percent of payroll. Office-related (nonmanagement) salaries/wages, services, phone, and supplies averaged 6.2 percent of payroll.

The large FLCs averaged $7,309,456 in total revenue and $7,135,917 in total expenses in 1994, for a pre-tax net income of $173,539. Net returns to management and net worth averaged 2.4 percent, ranging from 1.8 to 3.0 percent. These are slender margins of return compared to other segments of agriculture.

Mandatory payroll expenses for the large FLCs averaged 22.0 percent of wages paid. Other expenses averaged 14.1 percent for a total of 36.1 percent over wages paid. Office salaries/wages, services, phone, and supplies averaged 3.2 percent of payroll.

These total non-wage cost rates may be regarded as approximations of overall commission rates, inclusive of payroll taxes and workers compensation. Commissions and workers' compensation rates generally vary among crops.

Based on the limited sample, overall cost rates were higher for small FLCs. Although large FLCs had some economies of size, both large and small FLCs generally operated close to break-even, or showed low-profit performance.

Large FLCs providing trucking, packing, and other services contributing returns to overhead, could trim FLC commission rates several points. Such practices could lead to a larger share of the seasonal farm labor market handled by large FLCs. For more information, call me on (209) 456-7560.