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IN THIS ISSUE
Mandatory
Arbitration Agreements Rejected
How to Check
Social Security Numbers
Ag Wages are Exempt from
State Income-Tax Withholding
FLC
Family Punished for Hiring Illegal Aliens
UFW Concedes to Wage
Cuts
Union
Membership in U.S. Hits 60-Year Low
UFW
Negotiates with Furniture Manufacturer
Eye
Protection at Issue in Cal/OSHA Case
Immigration Revision Didn't
Provide Much for Aliens
Non-Immigrant
Visa Program Advanced
Farm
Bureau Sues OSHA Over Ergonomics Standards
MSPA
Suit May Allege State Wage-Law Violations
INS
to Hire More Than 800 Immigration Inspectors
Personnel-File
Inspection Law Amended
Prep-Time Back Pay
Sought
DOL
Implements Child-Labor Action Plan
Drug-Testing Rules
Modified
Safety Sheet -
Lockout/Tagout
Mandatory Arbitration Agreements Rejected
Just when employers thought it was safe to require their employees to sign pre-dispute arbitration agreements, along comes the U.S. Equal Employment Opportunity Commission (EEOC) and the United States District Court for the Central District of California in a case that should make employers think twice, says attorney Wayne Hersh.
In EEOC v. Luce, Forward, Hamilton & Scripps, LLP, the court granted the EEOC a permanent injunction enjoining the law firm from requiring or asking employees to agree to arbitration of their Title VII claims as a condition of employment. The firm was also barred from attempting to enforce any previously executed agreements to arbitrate Title VII claims.
Hersh says he is "sure there will be more on this story, but for now, employers beware!"
How to Check Social Security Numbers
Steve Sutter, University of California Cooperative Extension Area Personnel Management Farm Advisor, reminds employers they can check employee social security numbers by calling the Social Security Administration (SSA) at 800-772-6270.
Up to five names and social security numbers may be checked per call. Employers needing more numbers checked may call SSA repeatedly.
Sutter adds that SSN and name verification is coming to the Internet. The SSA's Bill Brees said: "We now expect to make Internet name/SSN verification available on our Web site next spring."
Ag Wages are Exempt from State Income-Tax Withholding
Wages paid to agricultural employees that are subject to FICA (Social Security) withholding are also subject to mandatory federal income-tax withholding.
In contrast, California Unemployment Insurance Code section 13009(a) exempts from mandatory withholding for state income-tax purposes wages paid for agricultural employment.
However, California law provides for voluntary withholding from agricultural wages for state income taxes. An employer and employee are deemed to have made such an agreement where the employee has prepared and filed with the employer Internal Revenue Service Form W-4, and the employer then withholds as instructed by the form. That agreement may be terminated upon written notice of either party given to the other.
California Employment Development Department Form DE-4 may also be used for this purpose. A copy of Form DE-4 may be obtained from http://www.edd.cahwnet. gov/de4.pdf.
FLC Family Punished for Hiring Illegal Aliens
The daughter and brother-in-law of prominent Stockton farm labor contractor Luis Bautista were fined and placed on a year's probation Jan. 25 for conspiring with Bautista "to regularly, repeatedly, and intentionally hire illegal aliens."
U.S. Magistrate Judge Peter A. Nowinski fined Francisca de Inocencio $8,000 and Francisco Figueroa $2,000. De Inocencio, 30, and Figueroa, 63, pleaded guilty to the misdemeanors in October.
De Inocencio is the registered owner and office manager of F. Bautista Farm Labor, but her father runs the company, according to Assistant U.S. Attorney Camil Skipper. Figueroa handles the payroll, the prosecutor said.
Bautista, 67, pleaded guilty in December to "harboring illegal aliens" and is scheduled to be sentenced Feb. 21. He admitted renting a house he owns in Stockton to employees of F. Bautista Farm Labor even though he knew they had entered the U.S. illegally. He acknowledged his purpose was to shield workers from detection by immigration authorities.
Source: The Sacramento Bee
After threatening to close San Mateo County's largest commercial farm, Money's Mushrooms said it has reached a tentative agreement with union leaders to keep the farm open should its 400 employees agree to pay cuts and benefit downgrades.
"Our workers want to keep their jobs," said Efren Barajas, executive vice president of United Farm Workers. "They are going to have to make adjustments, but I'm confident that will happen."
Neither side would say how severe the wage losses might be.
Current wage figures were not immediately available. But representatives of both sides agreed the concessions are rare and surprising.
Money's Foods U.S. owns the 17-acre mushroom farm near Pescadero, just north of the boundary between San Mateo and Santa Cruz counties.
The company filed for Chapter 11 bankruptcy protection in November and shortly afterward told employees it planned to close the farm because the cost of union labor was too expensive.
"We did not think we would come to an agreement with the union that would lead to profitability. That's why we gave notice to close. I want to stress it was not used as a negotiating ploy."
Source: The San Jose Mercury-News
UFW Negotiates with Furniture Manufacturer
Bakersfield furniture maker Guy Chaddock & Co. is negotiating with the United Farm Workers union for a contract covering its employees.
The National Labor Relations Board on Nov. 30 certified the UFW to represent Chaddock's employees, said Tony Bisceglia, NLRB assistant to the regional director in Los Angeles.
On Nov. 10, company employees voted 191-99 to be represented by the UFW.
The UFW has never before represented non-agricultural employees at the bargaining table.
Source: The Bakersfield Californian
Union Membership in U.S. Hits 60-Year Low
The percentage of American workers belonging to unions fell in 2000 to 13.5 percent, its lowest point in six decades.
In releasing its survey of union membership last month, the Bureau of Labor Statistics also found the number of union members declined by 200,000 last year to 16.3 million, a discouraging development at a time when labor is straining to reverse the decline.
Economists offered several explanations, including retirements by union members, layoffs of many unionized workers due to foreign competition, and the failure of unions to organize enough new members to offset those losses.
Last year's membership decline was a blow to union leaders after they had boasted of an apparent turnaround in 1999. That year, union membership rose by 240,000, its largest increase in more than a decade. Further, the percentage of workers in unions remained steady at 13.9 percent, giving unions hope that they had arrested a steady decline in that percentage.
Despite small jumps and declines from year to year, the overall unionization rate has fallen compared with recent decades. Last year's 13.5 percent rate was down from 20 percent in 1983 and a peak of 35 percent in the 1950s.
Source: The New York Times
Eye Protection at Issue in Cal/OSHA Case
A Cal/OSHA citation against a Riverside County grower--although dismissed for insufficient evidence--serves as a reminder to grape and tree-fruit growers of the importance of providing their employees with appropriate eye protection.
During a targeted-industry sweep, a Cal/OSHA inspector observed that two of 16 employees in a vine-pruning crew were not wearing eye protection. The inspector therefore fined the grower $650. The grower appealed.
At the appeal hearing, two employees testified they had been provided eye protection and instructed on how to use it. The CalOSHA Appeals Board Administrative Law Judge assigned to hear the case vacated the citation and penalty. In light of the conflicting evidence, he concluded that Cal/OSHA had not met its burden of proof.
The employer was cited under General Industry Safety Order (title 8, California Code of Regulations) section 3382(a), which requires employers to provide face or eye protection for employees working in locations where they risk receiving eye injuries.
"Employer does not dispute the fact that eye protection is required while pruning vines," the ALJ wrote, "but appeals because eye protection is provided, and it believes that eye protection was in use at the time of the inspection."
Immigration Revision Didn't Provide Much for Aliens
Since the close of the 106th Congress, rumors have flown throughout the nation about recently-passed or pending changes in federal law that would let farmworkers gain legal status to work and reside in the United States.
The immigration changes in the omnibus appropriations bill passed in December did not make any apparent change in the law to confer legal status on farmworkers.
Dishonest immigration law practitioners may be misleading farmworkers to believe they can gain legal status under the bill's terms.
The classes of workers who can qualify for the benefits conferred under the legislation are relatively limited and generally apply to illegal immigrants who are related to a visa holder, green-card holder, or citizen.
Non-Immigrant Visa Program Advanced
During their trip to Mexico last month, Sen. Phil Gramm (R-TX) and a number of other senators visited with Mexican President Vincente Fox about immigration issues concerning the U.S. and Mexico.
They discussed how it might be possible to create a visa program that accommodates Mexico's needs to employ its population and satisfy the U.S. economy's need for workers.
On Jan. 11, Sen. Gramm's office released a statement characterizing his discussions with President Fox as "preliminary," with the idea to be the "subject of further talks and refinement in the coming weeks as I continue meeting with senators, the incoming Bush administration, and other interested parties."
Sen. Gramm apparently envisions this program as one to admit workers for employment "primarily but not exclusively in service and agricultural areas." His statement outlined his proposal to Fox as follows:
• Workers would be admitted to the United States for a one-year period, after which they would have to return to Mexico.
• Workers would be issued identification cards that would serve as documentation for completion of a Form I-9 for employment purposes.
• Undocumented workers now in the U.S. would be encouraged to participate in the program, but they would have to return to Mexico at the end of the one-year employment term.
• The number of guest workers admitted under the program would be adjusted annually in response to U.S. economic conditions.
• Employers who use the program would not pay payroll taxes for unemployment insurance or Social Security; instead they would fund a program that would provide guest workers with emergency health care.
• Guest workers would fund an IRA-like account from which their medical care would be financed; unused funds would be released to the workers when they leave the U.S.
• Penalties for employing illegal aliens would be substantially increased and enforced.
No legislation has yet been introduced. The positions of the Bush administration and of various farmworker advocacy groups on the concept are unknown.
(Source: Bryan Little, American Farm Bureau Federation, bryanl@fb.org)
Farm Bureau Sues OSHA Over Ergonomics Standard
American Farm Bureau Federation has filed a lawsuit asking a federal district court to overturn the new ergonomics standard adopted by the federal Occupational Safety and Health Administration (OSHA).
The National Council of Agricultural Employers and the American Nursery & Landscape Association joined AFBF in the action.
"Farm Bureau believes it is important to protect employees' safety and health in the workplace, but OSHA's new standard is an unwarranted expansion of federal regulation," said AFBF President Bob Stallman.
"We hope the Bush administration and Congress will take a hard look at OSHA's ergonomics standard," Stallman continued. "Meanwhile, we have taken this action to protect farm and ranch employers against hastily-written and unjustified federal requirements."
Stallman expressed particular concern about a last-minute change made by OSHA. "OSHA had told the public that the new rule would cover general industry employment, such as manufacturing, but not agriculture," Stallman said. "The rule as published, however, does cover a broad range of agricultural activities and therefore subjects many farmers and ranchers to its burdensome and costly requirements."
The ergonomics standard requires covered employers to inform employees about musculoskeletal disorders (MSDs) and to screen jobs for MSD hazards.
If an "action trigger" identifies such a hazard, the employer must undertake a host of extensive and expensive activities.
These include: studying and restructuring the job to remove the hazard; training employees; providing access to specialized health care professionals; and putting employees on restricted duty at full pay or on leave at 90 percent of pay.
Farm Bureau's lawsuit challenges these aspects of the standard, in addition to the decision to apply these requirements to farmers and ranchers. The federal court may issue a decision by the end of 2001.
MSPA Suit May Allege State Wage-Law Violations
Violations of California's wage-payment laws may be claimed in a suit filed under the federal Migrant and Seasonal Agricultural Worker Protection Act (MSPA), a federal district court ruled in December.
In Medrano v. D'Arrigo Brothers, migrant agricultural workers alleged that D'Arrigo Brothers Company of California (D'Arrigo) had failed to pay them wages when due in violation of the MSPA. The claimed wages were for certain work activities that are to be counted as hours worked under California law.
The court held that the MSPA requirement for agricultural employers to pay wages when due is not limited to wages required by federal law. Rather, it also applies to wages due under state law.
The plaintiff farmworkers claim they should have been paid for what they call "compulsory transportation time" and "compulsory exercise time."
D'Arrigo required them to arrive at a specific location each morning to be transported by company bus to the fields.
The bus also transports them back to the same place at the end of each workday. They were forbidden from using any other mode of transportation to get to or leave from the fields.
Also, they claimed they had to engage in "warm-up" exercise activities at the start of each workday.
Their complaint alleged they should have been compensated for the time spent while waiting for the bus, while being transported on it to and from the fields, and while exercising. In support of their claims, they relied on a California Labor Code provision.
D'Arrigo filed a motion to dismiss the suit on the ground that the complaint failed to state a claim. While the complaint alleged violations of the federal MSPA, its real basis was California law. D'Arrigo argued that MSPA's wage-payment requirement encompasses wages due under only federal laws such as the Fair Labor Standards Act (FLSA)--not under state laws.
The court disagreed with D'Arrigo. It held that the requirement is not limited to wages mandated by federal laws but also includes those compelled by state laws.
Because MSPA's provisions do not identify the laws to which the wage provision applies and because there were no cases that addressed this issue, the court had to determine what Congress had intended when it enacted the relevant wage-payment requirement.
The plain language of the MSPA provision allegedly violated by D'Arrigo requires that wages be paid when owed. The court held that "the obligation to pay wages may arise from various substantive sources of law"--not just federal.
The court further held that the provision does not contain any language that restricts it to FLSA or other federal wage laws.
In concluding that a state wage violation can be prosecuted by alleging a violation of the MSPA wage-payment requirement, the court emphasized that MSPA was enacted with a remedial purpose and should be construed broadly.
The effect of the decision, should the plaintiffs ultimately prevail on the wage claims, is to subject the employer to a potential back wage liability in addition to statutory damages of up to $500 per plaintiff under MSPA.
Source: National Council of Agricultural Employers
DOL Implements Child-Labor Action Plan
The outgoing Clinton administration on Jan. 16 announced its National Program of Action to eliminate the worst forms of child labor. Agriculture is prominently included in this plan, which may be found at http://protectingkids.gov/.
The purpose of the action plan is to implement the U.S. obligation under Convention 182 of the International Labor Organization, which the U.S. ratified in Dec. 1999, and applies to all children under age 18.
Convention 182 defines the worst forms of child labor as:
• All forms of slavery and practices similar to slavery.
• The use of children in activities such as prostitution, pornography, drug production and drug trafficking.
• The employment of children in work likely to harm their health, safety or moral well being.
The Action Plan calls for increasing protection for children in agriculture, increasing the minimum-age categories, stronger enforcement with higher penalties, revision of the hazardous occupation orders, safety training, greater protection from pesticides, and more research on the causes of injuries among agricultural youth.
INS to Hire More Than 800 Immigration Inspectors
The Immigration and Naturalization Service (INS) has announced it needs to hire more than 800 immigration inspectors to fill positions nationwide. The new inspectors will join the ranks of a current staff of more than 4,500 who perform more than 500 million inspections of people entering the United States each year.
Starting salary ranges from $20,000 - $25,000 per year, depending on location, with the potential for overtime pay. INS Inspectors are located throughout the United States in a variety of locations such as international airports, land ports and seaports. In addition, inspectors can be assigned to overseas posts. Inspectors may be required to carry firearms.
Personnel-File Inspection Law Amended
California Labor Code section 1198.5 was amended effective Jan. 1 to expand employees' rights to inspect their personnel files.
The new statutory provision allows employees to inspect those files maintained by the employer that pertain to the employee's performance or any grievance about the employee. The contents of such files must be made available for inspection at reasonable intervals, but not when the employee must render services to the employer.
The inspection requirements do not apply to records relating to the investigation of a possible criminal offense or letters of reference. Nor do they apply to records obtained before the employee's employment, materials prepared by identifiable examination committee members, or obtained in connection with a promotional examination.
Source: Wayne A. Hersh, attorney
Several employees at Barber Foods of Portland, Oregon, have filed a lawsuit against the poultry-packing plant, claiming it violated federal labor law by requiring workers to do tasks for which they are not paid.
The claim strikes at the company's reputation as a generous employer that strives to take care of its many foreign-born workers. Barber has 750 full-time employees, 44 percent of whom are foreign-born.
Four employees are named as plaintiffs in the collective-action case that eventually could include hundreds more workers. At stake are millions in wages dating back three years.
The lawsuit, filed Dec. 12 in U.S. District Court, claims the company does not pay its hourly employees for the time they spend while gathering and putting on safety equipment before shifts or while storing it at the end of the day.
Before punching the clock each day, the suit asserts, employees must put on extensive safety equipment, such as gloves, earplugs, safety glasses, a hairnet, a hat, steel-toed boots and a safety belt. They claim they should earn about an hour more of overtime wages per day. They believe the company owes each employee at least $10,000.
The U.S. Department of Transportation announced new rules last year for workers who undergo drug testing as a government-required safety measure.
The new rules were made public on the same day that the Department of Health and Human Services disclosed new evidence of testing laboratories' shortcomings that can mistakenly brand innocent workers as drug abusers, ending their careers.
The most significant of the rules involve so-called validity testing, a relatively new procedure to determine whether a urine specimen is legitimate. Under current rules, transportation workers whose specimens are found to be invalid are assumed to be cheaters. Many are fired without any opportunity for an appeal.
The new rules extend to validity testing two safeguards already in place that affect a worker who tests positive for one of five illegal drugs: cocaine, heroin, amphetamines, marijuana and PCP. A medical review officer, to be hired by the employer, will have the right to cancel the result of a validity test upon finding a medical reason for the illegitimacy of a specimen's testing.
Further, workers will have the right to demand that a second sample of their specimen be tested at a laboratory different from the first.
