University of California Cooperative Extension
Fresno, Kings, Madera, and Tulare Counties
Vol. 8, No. 6 -- Circulation 3,237 -- November 1997
Steve Sutter, Area Personnel Management Farm Advisor
1720 South Maple Avenue, Fresno, CA 93710
Phone: (209) 456-7560 (direct line, with answering machine) or (209) 456-7285
FAX: (209) 456-7575
E-mail: srsutter@ucdavis.edu
This year's Dream Team Panel of Speakers includes:
These officials will provide tips and tools for complying with employment laws and regulations, and update us on recent changes and proposed new rules.
Michael C. Saqui, Attorney, and Stephen R. Sutter, UC Area Farm Advisor, will share duties as co-moderators. Panelists will have a brief opportunity to reflect on agricultural compliance issues from their agency's perspective. Most important though are your questions.
Stump the Stars! ... Whether you attend or not, please write down your question(s) for the panel and send to:
I'll direct them to the appropriate speaker (or another agency). For a post-meeting follow-up call (from me), jot your name and phone number under your question; I'll clip that part before directing it to a speaker. Coffee will be ready at 8:30 a.m. Program starts precisely at 9:00 a.m. The seminar is free, but there is a $4 admission fee at the gate. Printed materials will be provided. Your interest -- and our speakers' help -- is appreciated.
SOCIAL SECURITY ADMINISTRATION (SSA) TARGETED OUTREACH ... Employers filing 250 or more W-2's for a tax year are required to file the information on personal computer diskettes or magnetic tape. Names and Social Security Numbers (SSNs) on magnetic media W-2 reports are now being checked against SSA records.
Starting in 1997, the SSA will return the file to the employer without processing it -- if 70 percent or more of the W-2's are "bad" (either the social security number on the W-2 was never issued by SSA, or the social security number is valid, but the name on the W-2 doesn't match the name on SSA's records). The SSA advises the employer by letter to call them to discuss how to get 1996 W-2's processed, and talk over the prevention of future problems. The 1996 W-2 70 percent reject threshold will be lowered for 1997 W-2's.
Employers over the threshold will probably be encouraged to use the SSA's free Enumeration Verification System that allows employers to compare payroll records of employee names and SSNs with SSA's records to verify their accuracy before completing W-2's. Verification can be requested on any worker for whom a W-2 will be prepared -- a current employee, former employee, or new employee after a commitment to hire has been made.
Though not required, each new employee hired should show his or her social security card so that the employer can accurately transcribe their name and social security number to the employee's record.
Although the Internal Revenue Code provides for a penalty of $50 per W-2 for inclusion of incorrect (or missing) SSNs, these regulations are not being enforced at the current time, according to Bill Brees, SSA Regional Magnetic Media Coordinator, San Francisco. That is no guarantee penalties will not be imposed for incorrect 1997 W-2's. If any failure to file a correct information return is due to intentional disregard of filing and correct information requirements, the penalty is at least $100 per W-2, with no maximum penalty.
Also, if earnings are reported on or after January 1, 1997 to the SSA on a social security account number issued to an alien not authorized to work in the U.S., the SSA must report to the INS the "name and address of the alien, and the name and address of the person reporting the earnings and the amount of the earnings."
CAL/OSHA PROPOSES TO CLEAR GROWER AND FLC LIABILITY ISSUES ... Cal/OSHA has proposed new regulations concerning multi-employer worksites to determine the employer citable for safety violations, and to specify legal defenses that would prevent citations from being issued to an employer. The following proposed regulations may interest growers and FLCs, who sometimes share equipment and safety responsibilities.
Section 336.10 Determining of Citable Employer. On multi-employer worksites, both construction and non-construction, citations may be issued only to the following categories of employers when the Division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the Division:
(a) The employer whose employees were exposed to the hazard (the exposing employer);
(b) The employer who actually created the hazard (the creating employer);
(c) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer); or
(d) The employer who had the responsibility for actually correcting the hazard (the correcting employer).
Note: The employers listed is subsections (b) through (d) may be cited regardless of whether their own employees were exposed to the hazard.
Section 336.11 Applicability of Defenses. Prior to issuing any citation to an exposing employer, the Division shall first determine whether available information indicates that the employer meets each of the defenses listed below. If the Division concludes that all 5 defenses have been met, the citation shall not be issued. These defenses are:
(a) The employer did not create the hazard.
(b) The employer did not have the responsibility or the authority to have the hazard corrected.
(c) The employer did not have the ability to correct or remove the hazard.
(d) The employer can demonstrate that the creating, the controlling and/or the correcting employers, as appropriate, were specifically notified or were aware of the hazards to which his/her employees were exposed.
(e) The employer took appropriate feasible steps to protect employees from the hazard, instructed his/her employees to recognize the hazard and, where necessary, informed them how to avoid the dangers associated with it.
Note: Where an extreme hazard is involved, appropriate feasible steps include removing employees from the job, if there is no other way to protect employees from the hazard.
RULES ON TOOLS ... In California, tools required by an employer, or needed to do a job, must be provided by an employer to employees (including mechanics) whose wages are less than 2 times the minimum wage of $5.15/hour ($5.75/hour effective 3/1/98). The employer's costs of furnishing them are not treated as credits against the minimum wage.
An FLC cited for breaking this rule had 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 had to be provided to the Labor Commissioner within 15 working days.
When tools are provided by the employer, California law allows employers to require that an employee post a reasonable security deposit for the return of such items (California Labor Code Section 403) or alternatively, with the employee's prior written consent, may deduct the cost of such items from the employee's final pay check if an item is not returned to the employer. No deduction may be made for normal wear and tear.
If certain employees wish to use their own tools, the employer should have them 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 their own tools.
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.
Cal/OSHA discerns deficiency ... Cal/OSHA's General Industry Safety Orders require, in part, that "the passenger carrying capacity of trucks and buses primarily used to transport employees shall be conspicuously marked on the outside of the vehicle near the door or entrance." The current regulation (Section 3702, amended 1985) does not state that the posted capacity cannot be exceeded.
The California Occupational Safety and Health Standards Board recently proposed to add to Section 3702 "The number of passengers cannot exceed the posted limit." Cal/OSHA inspectors "were not able to cite an employer for overloading a standard nine-passenger van with 24 farm laborers," said Jere Ingram, Board Chairman.
A public hearing on the proposal will be held November 13, 1997, at 10 a.m., in the California State Building Auditorium, 1350 Front St., San Diego, CA. Written comments must be received by November 7, 1997 at the OSH Board, 1300 I St., Ste. 920, Sacramento, CA 95814. Direct inquiries to John MacLeod at (916) 322-3640.
Seminar to Note ... "Evaluating Employee Performance" by Bert Mason, Director, Center for Ag Business (CAB), CSU, Fresno, on Wednesday, December 10, 1997, 10 a.m. to noon, at the CAB Conference Room, 2910 E. Barstow, Fresno, CA. For preregistration and information, call Kimberly Naffziger at (209) 278-4405.
Form I-9 revision pending ... Contained in 1996 Immigration Reform is a revision of the list of documents which may be presented by prospective employees to evidence work authorization and identity. These changes will apply with respect to hirings occurring on or after a date set by the INS, which (after the agency received a 6 month extension) can be no later than March 31, 1998 (more later).
Release from duty ... I'll be vacationing in Hilo, Hawaii from November 26, 1997 through December 9, 1997. Aloha.