Volume 7, Number 1, Winter-Spring 1998

TIPP Preparation for California Ag Employers

Stephen R. Sutter

Stemming from the Governor's Farm Worker Services Coordinating Council is a labor law enforcement program called the "Targeted Industries Partnership Program" (TIPP). Since 1993, the primary participating agencies have been California's Division of Labor Standards Enforcement (DLSE), the U.S. Department of Labor (DOL) Wage and Hour Division, the Employment Development Department (EDD) UI Tax Division, Cal/OSHA, and occasionally the California Highway Patrol, the Internal Revenue Service, and other agencies. Following is a "partial preparation guide" for agricultural employers.

1. Instruct front-line supervisors on procedures you want them to follow in the event of an unannounced TIPP inspection. Based on a 16-point DSLE TIPP "Inspection Protocol," dated August 15, 1994, inspectors will first ask for the owner. If he or she is unavailable, inspectors will ask for the manager or person in charge. The protocol directs inspectors to "wait a reasonable time until the owner or manager shows up," and to "ask the employer for permission before interviewing his or her employees. If the employer hangs around, inform him or her that you wish to interview the employees in private . . . Do not tell the employer not to appeal a citation, or that it is useless to appeal the citation." Make note of the names and agencies of all members of the inspection team present.

2. U.S. DOL Wage and Hour officers are now coordinating their inspection programs with the Immigration and Naturalization Service (INS). Both agencies have agreed to share information on employer sanctions enforcement and compliance. Wage and Hour officers now have the authority to issue warning notices to employers found in violation of Form I-9 employment eligibility verification requirements, and they will refer all "suspected substantive hiring violations" to the INS. Wage and Hour officers who "walk in" must inform employers that they have a right to 3 days' notice before inspection of I-9s.

3. Cal/OSHA inspectors cooperating with the TIPP program normally review an employer's written injury and illness program and training records, first aid cards, first aid kit, provision of field sanitation facilities and notification, air tank permits, warning horns on industrial tractors and forklifts, and compliance with a multitude of other "safety orders," including the prohibition of "driverless" tractors. Cal/OSHA requires that the English and/or Spanish poster "Safety and Health Protection on the Job" (Rev. 1-96) be posted where notices are normally posted. Request Cal/OSHA posters on (415) 972-8844. Agricultural employers should also order "Access to Medical and Exposure Records," S-11, S-11S, "Emergency Telephone Numbers," S-500, "Operating Rules for Industrial Trucks and Forklifts," S-503, S-503S, and "All Tractors, Farm and Industrial," S-504, S-504S.

4. Employers must post OSHA Log 200 "Summary of Annual Injuries and Illnesses" during February, except those employers who had 10 or fewer employees at any time during the calendar year covered. Request Cal/OSHA Log 200 and instructions on (415) 972-8641.

5. Employers must have workers' compensation insurance, post a workers' compensation informational poster, and distribute a copy of the poster's contents to employees. Workers' compensation posters and brochures are available from your insurance carrier. Also request to see and keep a copy of your farm labor contractor's (FLC's) workers' compensation insurance certificate.

6. Post appropriate California Industrial Welfare Commission wage order poster(s), a pay-day notice (DSLE 8), and Minimum Wage Notice MW-98. Request these posters on (415) 975-2080. The wage order posters detail overtime, meal period, break, and provision of tools requirements, all of which you could be cited for violating. Wage Order 14 covers employers engaged in agricultural production, including harvesting; Wage Order 13 covers establishments packing only products grown on the same farm; Wage Order 8 covers establishments whose main service is preparing agricultural products for distribution (growers preparing products for market for other growers, in addition to their own, wineries, cotton gins, and fresh fruit/vegetable packing companies).

7. The U.S. DOL Wage and Hour Division requires that employers of migrant and seasonal farm workers post Notice WH-1376 "Migrant and Seasonal Agricultural Protection Act" (MSAWPA). "Worker Information - Terms and Conditions of Employment," WH-516 English and WH-516S Spanish, are optional forms to disclose information to migrant and day-haul workers upon recruitment, and to seasonal workers other than day-haul workers upon request. Employers employing 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding year must post "Family and Medical Leave Act" WH-1420 (English) and/or WH-1420S (Spanish). Request DOL Wage and Hour posters on (916) 979-2040 (Sacramento), (213) 894-2700 (Glendale), or (415) 975-4510 (San Francisco).

8. Assure that employees who handle pesticides receive pesticide-specific training before they are allowed to handle a particular pesticide for the first time. Give annual refresher training on general pesticide safety to applicators and other handlers. Activate a written training program for applicators and other handlers as prescribed by the California Department of Pesticide Regulation. County Agricultural Commissioners provide various leaflets in English and Spanish related to general pesticide safety and regulatory requirements.

9. California's Department of Pesticide Regulation requires that before employees are allowed to handle pesticides, agricultural employers must display a completed "Hazard Communication Information for Employees Handling Pesticides" (PSIS Leaflet A-8, revised 11/20/96) at a central workplace location. Whenever fieldworkers are working in a "treated field," the employer must, at the worksite, display a completed "Hazard Communication for Employees Working in Fields" (PSIS Leaflet A-9, revised 11/20/96). In the event that fieldworkers gather at a central place prior to transportation to the worksite, the A-9 may instead be posted at that central location. PSIS leaflets are available from County Agricultural Commissioners.

10. Assure that before beginning work in a treated field, fieldworkers have within the last 5 years received training as prescribed by California's pesticide regulations (and EPA's Worker Protection Standard). A "treated field" means a field that has been treated with a pesticide or had a restricted entry interval in effect within the last 30 days.

11. For each minor hired, obtain and keep a Permit to Work and Permit to Employ. These work permits are not required for minors employed by parents in agricultural work on premises owned, operated, or controlled by the parent. Be aware that minors (other than your own child) are prohibited from performing certain dangerous work activities under state and federal laws. Minors under age 16, for example, may not operate a tractor of over 20 PTO horsepower or a forklift.

12. Supply the California Employment Disability brochure DE 2515 (English) (Rev. 1-97) or DE 2515S (Spanish) to each new employee when hired as part of orientation (or health and safety training), or to employees leaving work due to pregnancy or nonoccupational disability. Request these publications on (916) 322-2835. California employers must provide for up to 4 months of pregnancy disability leave (or transfer to a less strenuous or hazardous position if such transfer is medically advisable).

13. Employers must provide employees with all of the tools (and equipment) needed to do their jobs, unless the workers are paid more than twice California's minimum wage. If certain employees wish to use their own tools, the employer should have them sign a statement to the effect that although they have the right to use employer-provided tools they agree to waive this right in order to use their own. California law allows employers to require an employee to post a reasonable security deposit for the return of tools (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. Under federal law, any "deduction" for costs of tools is not permitted if the deduction reduces the wages to less than the federal minimum wage.

14. California's Wage Orders mandate that employees be given credit for a minimum amount of work if required to report but put to work for less than half a day. Generally, employers are required to pay at least half of the usual day's wages, but not less than 2 or more than 4 hours' pay.

15. Maintain clear, complete payroll records. Properly filled out, U.S. Wage and Hour Form WH 501 (English) and WH 501a (Spanish) satisfy both federal and California requirements for itemized statements to give to an agricultural employee (including those paid cash) each pay day. Keep for 3 years copies of the employee's itemized statements. Form WH 501 shows the employer's name, address, and employer identification number (EIN) assigned by the Internal Revenue Service, and the employee's name, address, social security number, pay rate, basis on which wages are paid (hour, piece), payment date, pay period, production each day for a piece-paid employee, hours worked each workweek, and hours worked each day. Workers paid piece-rate must earn at least the minimum wage per hour averaged over the employer's pay period (weekly, bi-weekly, daily). Also show the nature and amounts of additions to or deductions from wages each pay period. Generally, employers may not withhold amounts from an employee's wages unless required by law, or if authorized in writing by the employee. Also keep for 3 years a record of each employee's job title and sex.

16. Verify that every farm labor contractor you do business with has a valid California state license. Keep a copy. Call 415/975-2069 to check license status. Also verify that your FLC has a valid federal registration with driving, transportation, and housing endorsements, if applicable. To verify the federal registration, phone 800/800-0235. If an FLC provides worker transportation, copy certificates authorizing transportation activity for all drivers.

17. Some growers are now asking prospective FLCs to authorize disclosure of their federal employment tax status on IRS Form 8821, to limit their potential liabilities for unpaid employment taxes. Consider adopting this practice, especially if you do not already know the contractor. Request information and Form 8821 on (209) 271-6250.

18. Under federal MSAWPA, FLCs are required to furnish to growers each pay period (weekly) copies of payroll records, ideally containing the same information as described in item 15 above. Growers must keep these records for 3 years.

19. Farm labor vehicles (generally vans or buses designed to transport nine or more farm workers, in addition to the driver) must be safety certified, insured with prescribed minimum liability coverage amounts, and operated by drivers with a California Class B commercial driver's license and current "Farm Labor Driver's Certificate" Form DL-45.

20. The U.S. Department of Transportation requires that certain drivers of commercial motor vehicles (including those designed to transport 16 or more passengers, or those used in transporting hazardous materials requiring placarding, or those with a gross vehicle weight rating of 26,001 or more pounds), performing safety-sensitive functions, take part in a "Controlled Substances and Alcohol Use and Testing Program" that includes, in part, random and "reasonable suspicion" testing. Supervisors who are designated to determine whether reasonable suspicion exists to require a driver to undergo testing must receive at least 60 minutes of training on controlled-substance use, and at least an additional 60 minutes of training on alcohol misuse.

21. Employers housing five or more employees must have a permit. The Department of Housing and Community Development, or county health department, inspects "labor camps" prior to and during occupancy to assure a suitable living environment. For information, contact HCD on 800-559-0355. Health and safety regulations enforced under MSAWPA apply to temporary or seasonal housing regardless of the number of migrant or seasonal workers living there.