NEWSLETTER
The second edition of Labor Management Laws in California Agriculture,
now on UC's top-seller list, is a current, compact, integrated,
190-page guide to the myriad federal and state regulations that
apply to labor management in farm businesses. This recommended
reading, by Howard R. Rosenberg, covers the employment contract,
recruitment and hiring, workplace safety and health, wages, benefits,
and payroll taxes, and discipline and discharge.
Labor Management Laws in California Agriculture is available
at a discount at Fresno County UC Cooperative Extension. Send
$14, payable to UC Regents, to Steve Sutter, 1720 S. Maple
Ave., Fresno, CA 93702.
In November, President Clinton signed H.R. 1715 amending the Migrant
and Seasonal Agricultural Worker Protection Act to affirm that
where a State workers' compensation law covers a migrant or seasonal
agricultural worker, workers' compensation benefits will be the
sole remedy for such worker's loss under MSPA in the case of bodily
injury or death.
H.R. 1715 reverses the 1990 Supreme Court ruling that held agricultural
workers covered by MSPA could sue for damages over injury or death
under the private right of action provided by law, even though
the workers are covered for those injuries under State workers'
compensation law.
Penalties, though, were raised to $10,000 per plaintiff, up to
$500,000, in the case of injuries and deaths that occur where
certain motor vehicle safety violations are knowingly committed
in the transportation of migrant or seasonal workers. The bill
raises current statutory damages from $500 to $10,000, "to
deter egregious cases" in which a worker is injured or killed
in an accident involving alcohol or drugs, where an employer is
a repeat violator, where the employer willfully makes a vehicle
dangerous, or where an employer uses an unregistered farm labor
contractor.
H.R. 1715 also requires disclosure of information regarding workers'
compensation coverage to migrant or seasonal agricultural workers.
Under current law, any person transporting workers must carry
a minimum insurance amount against loss for damage to persons
or property. Workers' compensation insurance satisfies part of
the requirement if the transporter is also the workers' employer.
If the transporter is not the employer, the transporter must
carry a lofty $1.5 million insurance for carrying 15 or fewer
passengers, $5 million for carrying more than 15 passengers.
The grower or farm labor contractor who employs the passengers
is responsible for having at least $50,000 coverage for property
damage.
H.R. 1715, forged bipartisanly "to reflect farmworker and
grower interests," addresses the current high liability insurance
requirements by giving the Secretary of Labor authority to establish
appropriate levels of vehicle insurance coverage required under
MSPA. Currently the agency must follow ICC-mandated levels, which
have made it prohibitive for those involved in farmworker transportation
to get insurance.
The U.S. Labor Department must now promulgate regulations establishing
the level of insurance that will be required under MSPA. In preparing
a "Notice of Proposed Rule Making," the agency seeks
information necessary in making an informed decision, particularly
data on the ultimate costs of accidents involving farmworkers,
including medical expenses, death benefits, disability payments,
and lost wages.
Other helpful information would include reports of accidents involving
farmworkers within the last 5 years, the premiums paid for current
required insurance by growers or farm labor contractors, the extent
workers' compensation covers transportation accidents, and examples
of safety programs initiated by ag employers or associations to
prevent accidents and keep premiums down. Direct comments to
the U.S. Department of Labor, Wage and Hour Division, 2981 Fulton
Ave., Sacramento, CA 95821, (916) 979-2040.
The Immigration and Naturalization Service (INS) has expanded
emphasis on employer sanctions. The agency's 1,300 investigators
devote at least 60 percent of their time investigating employer
sanctions violations and fraud. Immigration-related investigations
and audits are also done by U.S. Department of Labor Wage and
Hour Officers. These 1,500 inspectors make over 60,000 employer
inspections per year.
Although DOL has access to employers' payroll and time records
in inspections, inspectors generally don't compare payroll records
with I-9s, instead reviewing I-9s for basic compliance. Paperwork
violations are considered "egregious" when I-9s "are
so poorly completed as to evidence a lack of intent to comply,"
or are not certified by the employer.
Although INS randomly picks employers for audit from a data base
of all employers withholding payroll taxes, they are mainly chosen
for inspection based on tips "providing cause for suspicion
the employer has engaged in hiring unauthorized workers."
Usually the INS notes alien registration numbers of employees
stating on Form I-9 they're U.S. permanent residents, and then
verifies those numbers against Service records. If numbers don't
match, INS can inform the employer of the discrepancy by telephone.
Although a telephone call is sufficient notice to the employer
that it needs to inquire further about the named workers' status,
the usual practice is to notify the employer by letter.
The employer can "anticipate" a follow-up visit to assure
that the status of the workers in the notice has been verified,
or the workers' employment has been terminated. The employer
is obliged to do more than just inquire of the worker regarding
her or his status. The employer must require the employee to
promptly submit different employment authorization documentation.
If the worker can't, the employer must terminate employment or
be liable for "knowingly continuing to employ an unauthorized
worker."
In December, I was chosen Central Region Board Member of the
Agricultural Personnel Management Association, representing APMA
members in Fresno, Tulare, Kings, Kern, San Luis Obispo, and Santa
Barbara Counties. Count on me to coordinate educational meetings
in this wide region.