Free Admission
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All APMP Newsletter subscribers welcome
Thursday, July 18, 1996, 8:30 a.m. to Noon
Veterans Memorial Hall, Corner of Pine and Tunnell, Santa Maria, CA
Sponsored by UC Cooperative Extension, the Agricultural Personnel Management Association, and the Santa Barbara County Farm Bureau
8:30 - 8:45 Labor Law Update, and Worker Transportation Rules
Steve Sutter, UC Personnel Management Farm Advisor
8:45 - 9:30 Compliance with the Migrant and Seasonal Agricultural Worker Protection Act and Minimum Wage
Esther Leiss, U.S. Wage Hour Officer
9:30 - 10:15 Wage Orders, FLC Licensing, and the Targeted Industries Partnership Program
Thomas Nagle, Deputy Labor Commissioner
10:15 - 10:30 BREAK
10:30 - 11:10 Cal/OSHA Safety Programs and Other Compliance Issues
David Strickler, Cal/OSHA Officer
11:10 - 11:50 Pesticide Worker Safety Standards
Joe Karl, Deputy Ag Commissioner
11:50 - Noon Wrap Up
1 Hour Continuing Education Units (CEUs) for QALs, QACs, and PCAs Requested (Laws & Regs).
In conversations, U.S. Wage Hour Officers keep pointing my attention to the federal "hot goods" rule. In the same breath they lament compliance problems in Californiaís garlic, onion, and strawberry industries, and in pruning activities.
A Wage Hour sponsored compliance forum was held in May in Five Points, CA, in cooperation with UC Cooperative Extension, "as a pilot outreach and educational project to draw closer to voluntary labor law compliance in the garlic industry." We looked at the hot goods rule.
The Fair Labor Standard Act, Section 12(a), bars producers, manufacturers, or dealers from shipping or delivering for shipment in commerce any goods that have been produced on a farm or other U.S. establishment where "oppressive child labor" was employed within 30 days prior to the removal of the goods from that establishment. Goods produced in such establishments cannot be shipped in commerce even if oppressive child labor was not used to produce those particular goods.
This child-labor component of the hot goods rule does not apply to purchasers "acquiring goods in good faith in reliance on a written assurance from the producer, manufacturer, or dealer the goods were produced in compliance with federal child labor provisions, and who acquired the goods without notice of any child labor violation."
Of equal weight, Section 15(a)(1) of the FLSA makes it unlawful "to transport, offer for transportation, ship, deliver, or sell in commerce, with knowledge that shipment or delivery or sale thereof in commerce is intended," any goods in the production of which any employee was employed in violation of minimum wage, overtime, or any other U.S. Department of Labor regulation.
Bottom line is the U.S. Department of Labor could halt commerce
in selected industries upon discovery of violations of child labor,
wage and hour, recordkeeping, transportation, housing, provision
of tools, and other regulations protecting harvest and packing
workers ó unless educational efforts "prove positive."
The Fresno-based IRS "Ag Design Team" was formed in 1994 "to address the problem of an estimated $200 million in unpaid agricultural employment taxes in the San Joaquin Valley." In employer seminars, Officer Jerry Satterberg has mentioned Internal Revenue Code Section 3505, that allows penalties against growers who pay farm labor contractors commissions they know are not enough to enable the FLC to make timely employment tax deposits. The growerís liability would be the taxes owed, with interest, limited to 25 percent of payments to the FLC.
In speaking with Satterberg June 13, 1996, I learned his team has unearthed cases of FLCs not paid any commission; only the net wages they said would let workersí checks clear the bank. He anticipates "administrative sanctions shortly" against several growers in these classic, "calculating" Section 3505 violations.
In other news, applications for a California FLC license now include IRS Form 8821 to assure applicants have filed and paid all employment and income taxes due. Californiaís Labor Code prohibits growers from using the services of an FLC without first making reasonable inquiry to ensure the FLC has a valid state license.
Satterberg reported 279 FLC license renewal "contacts"
since December 1995. Of these, 162 (58 percent) had no problem.
The remaining 117, however, owed taxes totaling $8.3 million.
Sixty delinquent FLCs either paid in full or installments, handing
the IRS $1.2 million. The other 57 "didnít call back."
Contact the IRS Ag Design Team on (209) 499-6168.
Under California wage orders, tools required by an employer, or needed to do a job, must be provided by an employer to workers whose wages are less than two times the minimum wage. The employerís cost of furnishing them are not treated as credits against the minimum wage. Should the employee wish to use his own tools, he must waive his right to employer-provided tools by signing a statement to that effect.
A farm labor contractor in a Targeted Industries Partnership Program inspection in March 1996 was cited for breaking this rule. He was ordered to do a self audit for the prior 3-year period "for the purpose of compensating all workers who were not provided tools during this time period." Results and the compensation amounts were to be provided to the Labor Standards Enforcement Division within 15 working days.
When tools are provided by the employer, California employment law permits the employer to require that the employee post a reasonable security deposit for the return of such items or, with prior written consent of the employee, may deduct the cost of such items from the employeeís final pay check if an item is not returned to the employer. The employer must issue a receipt for the deposit, and no deduction may be made for normal wear and tear.
If certain employees wish to use their own tools, the employer should have these employees sign a statement to the effect that although the employer may be required to provide tools, they agree to waive this right in order to use tools they already own.
To handle deposits on tools, an employer should establish a single interest-bearing account in the name of all the employees contributing to it, so that when an employee leaves, he or she receives a prorated share of interest in addition to the original deposit amount. Simply "holding" the money in a company payroll checking account is not allowed.
Under federal law, the cost of furnishing required tools of the
trade is generally not treated as wages paid for purposes of determining
compliance with minimum wage requirements, and "deduction"
of these costs from wages is illegal if the deduction reduces
the wages to less than the minimum wage.
The US EPA will hold two public meetings in California to solicit information from growers, workers, and others regarding regulations designed to protect agricultural workers and pesticide handlers. The meetings will help EPA evaluate the impact and performance of the Worker Protection Standard.
Meetings are designed to give an opportunity for those directly
affected by EPAís Worker Protection Standard to relay their
experiences after the regulationsí first full year of implementation.
By reaching out to those on the front lines and for whom these
regulations are intended to provide health protection, EPA will
better understand how the program is working and where improvements
should be made. Meetings (registration at 5 p.m., program at
7 p.m.) are July 23, 1996 in the Fresno area (Portuguese Hall,
Easton), and July 25, 1996 in Salinas (Community Center).
A NOTE FROM THE JUNE PARLIER AG EMPLOYERS SEMINAR ... The minimum
vehicle insurance requirements under the Migrant and Seasonal
Agricultural Worker Protection Act have been revised. Effective
May 16, 1996, an FLC, agricultural employer, or agricultural association
who provides transportation only, and who may or may not charge
a transportation fee, must have at least $100,000 of vehicle liability
coverage for each "seat" in the vehicle. The new insurance
levels should provide adequate protection for farmworkers while
lowering the minimum insurance levels for most transportation
providers, presumably making coverage more available and affordable.
PRINTED MATERIALS FROM PARLIER SEMINAR ON SALE ... For
a 4-page summary of current motor vehicle safety and insurance
requirements for farmworker transportation, a 28-page "Farm
Labor Vehicle CHP Safety Inspection Checklist and Supporting Regulations,"
a partial list of State Certified Farm Labor Vehicle Driver Instructors,
and more, send $5, payable to "County of Fresno." Mail
to APMP, 1720 S. Maple Ave., Fresno, CA 93702. Request "June
Special." Iíll add a 4-page writing "This MSDS
Is For You," prepared for Pesticide Applicators Professional
Association talks in Pasadena, Santa Maria, and Fresno (July 30, 1996).