AGRICULTURAL PERSONNEL MANAGEMENT
NEWSLETTER

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Browse back issues of this Newsletter on our APMP website (http://are.berkeley. edu/APMP/). Click on "APM Newsletter."

New Advisor ... The statewide UC Agricultural Personnel Management Program welcomes Brian Linhardt, Area Personnel Management Farm Advisor, now serving the Sacramento Valley from Cooperative Extension's Oroville office. Call Brian on (916) 538-7201 -- or e-mail bklinhardt@ucdavis.edu.

A WPS "Trainers of Fieldworkers" Workshop ... will be conducted in English May 29, 1997 at the UC Cooperative Extension office in Hanford, CA. The workshop will start at 8:00 a.m. and conclude at Noon. A $14.00 fee will be charged for materials. Pre-registration is required. Call Steve Sutter on 209-456-7560.

The training program developed by Sutter was approved by the California Department of Pesticide Regulation on April 7, 1997. Training programs for prospective fieldworker pesticide safety trainers are now offered through two of the UC Division of Agriculture and Natural Resources' statewide programs; the Integrated Pest Management (IPM) Program and the Agricultural Personnel Management Program (APMP).

WORKER SAFETY PENALTIES REPORTED ... California's Department of Pesticide Regulation issues an annual "Agricultural Civil Penalty Report," a public document disclosing, for each enforcement case, the company's name, the California Code of Regulations (CCR) Section(s) violated, and the proposed and final penalties assessed by the county ag commissioner. Request a copy on 916-445-3920.

Worker safety fines are often imposed after an injury/illness investigation, or after routine inspections where "substantive" violations with possible or actual health hazard or effects are evident. Ag commissioners generally take a compliance action (warning only) in cases of first-incident "general" violations which don't directly threaten health, property, or the environment, which may simply be "true paperwork oversights."

Based on penalty actions for the year ended June 1995, the "top 4" CCR Sections violated within "Subchapter 3 - Pesticide Worker Safety" were: (1) Section 6738 (Personal Protective Equipment), (2) Section 6724 (Handler Training), (3) Section 6726 (Planning Emergency Medical Care for Employees Handling Pesticides), and (4) Section 6736 (Work Clothing, Coveralls). The same ranking occurred in both of the 2 previous fiscal years.

* For a copy of my new 29-page booklet California Pesticide Worker Safety Regulations - Revised 1997, (CCRs 6700-6795) send $4 payable to "County of Fresno," to APMP, 1720 S. Maple Ave., Fresno, CA 93702. Write "Pesticide Regs". on the margin of the check.

The DPR has their Pesticide Safety Information Series leaflets on-line at http://www.cdpr.ca.gov/docs/whs/psismenu.htm. Leaflets A-8 and A-9, revised 11/20/96, are also available at County Ag Commissioners' offices.

* Fieldworker Pesticide Safety Instructors Guide Available ... In California, employers must ensure that each employee assigned to work in a "treated field" has been trained (within the last 5 years) in certain fieldworker pesticide safety topics before working in a treated field. There is no training grace period in California. A treated field is a field that has been treated with a pesticide or had a restricted entry interval in effect within the last 30 days. Qualified California fieldworker trainers may find my new 24-page Pesticide Safety Fieldworker Instructors Guide helpful. Others must send $4 payable to "County of Fresno," at APMP, 1720 S. Maple Ave., Fresno, CA 93702. Write "Guide" on the check margin.

STRICT GROWER LIABILITY FOR FLC FEDERAL WAGE VIOLATIONS? ... In a blockbuster move, the U.S. Department of Labor (USDL) recently clarified, and perhaps broadened, the "joint employment" definition under the Migrant and Seasonal Agricultural Worker Protection Act and the Fair Labor Standards Act. What strikes me as important is that "economic dependence" is now the "touchstone of analysis of joint-employment relationships".

The USDL received 91 public comments, 28 opposed to the regulatory revisions and 63 generally supportive. The National Council of Agricultural Employers opposed the revisions, contending the new regulatory language effectively establishes a strict liability test for joint employment. The USDA also suggested the proposed tests for "economic dependence" would create a strict liability standard under MSPA.

USDL noted that strict liability as used by dissenting commenters appears to mean "per se" liability. "Per se liability in this context means that agricultural employers/associations are responsible for violations committed by a farm labor contractor if they merely retain or benefit from the services of the FLC."

The NCAE asserted the USDL "seeks to discourage agricultural employers from using farm labor contractors, thereby driving FLCs from the labor market, disrupting the agricultural labor supply, and empowering unions to substitute for FLCs in providing labor to employers."

The USDL responded, in part, by saying "no FLC will be precluded by anything in the proposed regulation from pursuing his/her business." The agency also said that there is no presumption of automatic joint employment. "There are circumstances which do not constitute joint employment." For example, a grower may sell his/her entire crop to a harvesting company, which becomes responsible for harvesting and transporting the crop to storage or market; or a grower may turn his/her entire harvesting operation over to a farm labor contractor, who makes all the meaningful decisions regarding the harvesting of the crops and provides his/her own materials and equipment needed in the harvest, such as with custom harvesters.

Another example is where a grower secures the services of an FLC and sets out ultimate performance standards for the job, but then has no right to control or further involvement in the work or the employment, all of which are in the FLC's hands. The FLC and his/her employees are free to schedule work under any other contracts. The FLC provides all the equipment, tools, and resources necessary to complete the job for which his/her services were retained and to manage all aspects of the workers' employment. The FLC has the financial and managerial ability to conduct his/her business without the involvement or assistance of the grower and undertakes all the responsibilities commonly performed by an employer. This and similar arrangements are not uncommon in agriculture, says USDL. "In such situations an application of the economic dependence analysis is unlikely to result in a determination the grower is an employer or joint employer under the MSPA."

The following factors (not intended to be an exhaustive or quantitative checklist) are now used by USDL to determine if a joint-employment relationship exists:

• Whether the agricultural employer has the power, either alone or through control of the FLC to direct, control, or supervise the worker(s) or the work performed (such control may be direct or indirect, taking into account the nature of the work performed and a reasonable degree of contract performance oversight and coordination with third parties);
• Whether the agricultural employer has the power, either alone or in addition to another employer, directly or indirectly, to hire or fire, modify the employment conditions, or determine the pay rates or the methods of wage payment for the worker(s);
• The degree of permanency and duration of the relationship of the parties, in the context of the agricultural activity at issue;
• The extent to which the services rendered by the worker(s) are repetitive, rote tasks requiring skills which are required with relatively little training;
• Whether the activities performed by the worker(s) are an integral part of the overall business operation of the agricultural employer;
• Whether the work is performed on the agricultural employer's premises, rather than the premises owned or controlled by another business entity; and
• Whether the agricultural employer undertakes responsibilities in relation to the worker(s) which are commonly performed by employers, such as preparing and/or making payroll records, preparing and/or issuing pay checks, paying FICA taxes, providing workers' compensation insurance, providing field sanitation facilities, housing or transportation, or providing tools and equipment or materials required for the job (taking into account the amount of the investment).

INS UPDATE ... The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 alters employer sanctions, anti-discrimination, and document fraud rules. The number of acceptable documents for I-9 employment verification will be slashed (to less than 10) for hirings on or after a date set by INS (no later than September 30, 1997.) Until then, employers should continue using the 11-21-91 version of Form I-9. New INS Form I-766 has joined acceptable (List A) documents, and will eventually replace Form I-688A.

Employer liability is now more limited if only "technical" paperwork errors were made and a good faith effort to verify work eligibility was made. Demonstrating substantial compliance would likely require that employers include at least certain "core" information on the I-9 (employer's and employee's signatures and information establishing the employee's identity and work eligibility).

New anti-discrimination rules require that an employer's act in asking for more or different documents than required for work verification was done with intent to discriminate. Blanket requests during verification and reverification for specific documents or more documentation than is required by law are still unlawful.

The new law establishes voluntary toll-free pilot verification programs (to be in place by September 30, 1997) that rely on a database of work-authorized persons. One joint INS-Social Security Administration program will be set up in 5 of the 7 states with the largest numbers of illegal immigrants, and would be voluntary participation on the part of employers, except for those who've violated employer sanctions, who could be "ordered" to take part.

Employers participating in a pilot verification program may quit any time. Some large ag firms may find participation beneficial as a way of demonstrating good faith compliance to the INS. To express interest in pilot program participation, write John Nahan, Director, SAVE Program, INS, Ullico Bldg., 4th Fl., 425 I St., NW, Washington D.C. 20536. Include address, business type, and the approximate number of people employed.

The definition of "falsely make a document for immigration purposes" now includes cases in which an employer knowingly accepts a forged document and so creates a "fraudulent" I-9 form. Employers convicted of employing on a knowing basis 10 or more illegal workers in any 12-month period will have committed a felony.

The number of INS field investigators (currently 1,700) is rapidly increasing. In a conference call with INS officials in Washington, D.C., I learned INS investigators "have always had" the power (if they believed an employer was involved in illegal activity) to "wire" themselves with a concealed tape recorder, or send in people who are wired. Proof of whether or not an individual was hired with knowledge the individual wasn't qualified to work is much easier for INS to "prove up" if the employer, or his foreman, admits it on tape during the hiring process. Under the new law, the INS now has "wiretap" authority (with probable cause and an order from a judge) to eavesdrop on phone lines - but only in connection with alien smuggling investigations. The INS has a toll-free (recorded) information service on 1-800-755-0777.

Minimum wage credits for employer-provided housing are limited ... California's $5 per hour minimum wage vaults to $5.75 next March. A Visalia reader asked about crediting costs of employer-provided housing against minimum wage obligations. State "lodging" wage credits can't top $20 per week for rooms occupied alone; $16.50 for shared rooms. If, for example, a farm worker works 60 hours per week, and the employer provides a shared room, the allowable offset drops the required state minimum wage to $4.72 per hour, but that's below the $4.75 federal minimum wage. Under federal law, costs of furnishing facilities "primarily for the employer's benefit or convenience" can't be included in computing wages for purposes of the federal minimum wage. On April 11, 1997, the Industrial Welfare Commission approved a proposal for an increase in the amount paid for meals and lodging expenses tied proportionally to the increases in the state's minimum wage. The meals and lodging increase becomes effective January 1, 1998, and will go up again when the minimum wage is raised to $5.75 per hour on March 1, 1998 (DIR Press Release #97-24. To subscribe to Internet distribution of the Department of Industrial Relations press releases, send a note with your name, organization or company name and address to info@dir.ca.gov with the words Subscribe/News Release in the body of the message).

Coming Up Soon ... Date to be set... Observing the Agricultural Labor Relations Act in 1997, UC Cooperative Extension Office in Salinas. A comprehensive full-day workshop (with lunch) coordinated by Sonya Varea-Hammond, Monterey County UCCE Director; Howard Rosenberg, UC Agricultural personnel Management Program Director and Specialist, UCB; Jim Bogart, Attorney, Grower-Shipper Vegetable Association of Central California; and Members and Staff of the Agricultural Labor Relations Board. Pre-registration will be required.

Teaming to Teach ... CSUF's Center for Agricultural Business, cooperating with UC's APMP, present "Negotiating the Bermuda Triangle: The Integration of the Americans with Disabilities Act, the Family and Medical leave Act, and Worker's Compensation, Wednesday, May 14, 1997, 10 a.m. to Noon, at the CATI Conference Room, 2910 E. Barstow Ave., Fresno (NW corner, Barstow and Chestnut). Speaker is attorney Michael C. Saqui.

Pre-registration fee for each workshop is $20 (walk-in $30). APMP Newsletter readers deduct a $5 discount. List name, address, phone, names of additional attendees, and send with check payable to "CSUF Foundation" to: CAB, 2910 E. Barstow Ave, Fresno, CA 93740-8009.