Volume 8, Number 1, Winter-Spring 1999
Earl Hall, a San Joaquin Valley FLC for 33 years, and Jim Bogart, President and General Counsel of the Grower-Shipper Association of Central California, offered their perspectives on some of the legal risks faced by agricultural employers. They focused most on the potential liabilities for labor law violations that growers may face as joint employers when doing business with contractors.
Regulations issued in 1997 by the U.S. Department of Labor, Wage and Hour Division, purported to clarify the "joint employment" definition under the Migrant and Seasonal Agricultural Worker Protection Act and the Fair Labor Standards Act. Whether or not clearer than the old definition, in Bogart's opinion, the new one broadens the range of circumstances in which growers are to be considered joint employers of an FLC's employees. The agency maintains, though, that there is no automatic presumption of joint employment between growers and FLCs; situations are judged case by case.
The joint employment doctrine can crop up in litigation beyond wage issues, according to Bogart, and there is no telling for sure when it will apply. Lawyers argue among themselves, and courts with courts, about what constitutes joint employment. The complex of legal theories used to determine it "is a mess," he said. Relationships among the grower, FLC, and worker may be examined with respect to the old "right to control" test, an "economic realities" test, and more. Different agencies sometimes use the same terms to mean different things. Both Bogart and Hall believe that written agreements between growers and contractors, although still uncommon, are wise to have. Bogart pointed out that representatives of regulatory agencies are willing to participate in seminars with industry associations throughout California.
Do factors leading to employee complaints, poor work, high absenteeism and turnover, and government audits stem from within the firm or outside? "Both," said Bogart. Compliance with basic employee-protective regulations goes a long way, though, in keeping many of these problems under control. He mentioned that age discrimination and sexual harassment complaints with the California Department of Fair Employment and Housing have become increasingly frequent.
Growers face increased risks of being penalized for an FLC's failure to pay the minimum wage to workers on their property and for an FLC's record-keeping violations. Farmers should also be aware of potential joint liability for contractors' Cal/OSHA workplace safety and Cal/EPA pesticide safety violations. Hall said, "Growers should make sure their FLCs are knowledgeable about employment laws," including record-keeping requirements for workers paid piece rates. "These workers must earn at least the minimum wage equivalent throughout the payroll period. Calculations can be done by computer programs."
Hall recommended that growers verify contractors' written injury and illness programs and required pesticide safety training by qualified trainers. Growers have the right to spot-check weekly payroll records that FLCs are required to provide them by interviewing a few workers, and in doing so they do not run the risk of being considered to be involved in the contractor's business.
A contractor who is in compliance with employment-related regulations can reduce the risk to a grower-customer to almost zero, Hall asserted. "When they're in compliance, you don't have to look over your shoulder."
Hall stressed the importance of growers paying contractors on time, "because contractors must pay their workers every week." Some contractors have gone to the IRS with complaints about a grower's slow payment, on the basis of this leaving them with insufficient funds to meet the payroll period's employment tax obligation.
Farm worker transportation is an increasingly important area of joint liability potential for growers. Hall estimated that about 90 percent of FLC employees are transported by passenger van. These vans should generally be inspected by the California Highway Patrol each year; and drivers should be licensed and have insurance. Employers should consider offering help to crew bosses who wish to become FLCs or transporters for a fee, Hall said.
Checking on whether the contractor has both a valid state FLC license and current workers' compensation coverage is important. Hall pointed out that some growers mistakenly accept a federal FLC registration certificate as evidence of compliance with the state's more stringent licensing requirements. Risks of joint grower-FLC liability are higher if the contractor does not have a valid state license. To verify that a license is valid, call 415/975-2069. How can growers find "a good FLC?" Hall suggested checking with neighbors, UC farm advisors, and local representatives of the California Labor Commissioner's office.