More Union Organizers in the Field
The United Farm Workers (UFW) has filed additional Notices of Intent to Take Access (NAs) this week as they continue their purported effort to detect non-compliance with the Heat Illness Prevention standard and report that non-compliance to Cal/OSHA. Under the ALRA, UFW and other unions can seek limited access to farm fields by filing a Notice of Intent to Take Access (NA) with the Agricultural Labor Relations Board (the Board). Union organizers can legally access farm fields on private property once the petition is granted by the Board.
Materials being given to workers by UFW bears the UFW logo and that of Cal/OSHA. The materials include a questionnaire asking workers for identity information as well as asking if they have been provided shade and water at their work site.
Farm employers have certain rights too: Remember that while law enforcement agencies have a legal right to access in the conduct of enforcement, union organizers have no such legal right to access unless granted that right by the Board. If the Board has granted that right to the union, there will be a public record of the union filing an NA, and notice of that will be duly served on the employer.Remember, legally adequate NA requires two actions on the union's part:
Remember that while law enforcement agencies have a legal right to access in the conduct of enforcement, union organizers have no such legal right to access unless granted that right by the Board.
If the Board has granted that right to the union, there will be a public record of the union filing an NA, and notice of that will be duly served on the employer.Remember, legally adequate NA requires two actions on the union's part:
If both conditions are not met, you may ask that person to leave the premises. If that person refuses to leave he is trespassing and is subject to removal at your request by the county sheriff.
However, extreme caution is urged in exercising the right to deny access or the right to have a trespassing union organizer removed. UFW may characterize refusal of access as an attempt to "cover up" non-compliance with the Heat Illness Prevention standard. Moreover, UFW may seek to capitalize on the arrest of a trespassing organizer for publicity purposes.
On July 15, the U.S. Department of Labor issued interpretative guidance describing the Department's now-official view on whether workers should be classified at independent contractors or employees. Unsurprisingly, the Department concluded that many if not most employees now considered independent contractors should in fact be considered employees.
The Department's interpretative guidance cites the "economic realities" test as the cornerstone of its judgements about independent contractor v. employee status, but makes some subtle shifts in how they will interpret the factors of economic reality. For instance, rather than merely relying on a analysis of whether an employee has an opportunity for profit or loss, the Department will analyze whether the employee's managerial skills can result in a profit or loss. In a similar vein, the Department will not look at whether a purported independent contractor has a substantial investment in the business, but the size of that investment relative to that of the employer's investment in the business.
These tests are similar to those applied by California regulators and courts in some respects. It's too soon to tell how big an impact this may have in California, but it's safe to say that labor regulators and courts are become less friendly to classification of workers as independent contractors.
You can view the Department's independent contractor guidance at this link.
Dept. of Fair Employment & Housing Provides New CFRA PosterThe California Department of Fair Employment and Housing (DFEH) has provided a revised poster reflecting changes to its regulations implementing the California Family Rights Act (see New CFRA Regulations Take Effect on July 1 FELS Newsletter, May 2015). You can find the new poster here.
Agriculture Targeted by DOL Wage and Hour Division
Time to Prepare: Pre-Season Compliance Checklist
by: Chris Schulte of CJ-Lake, LLC
Spring is right around the corner, but before your seasonal workers arrive and planting kicks into high gear, now is the perfect time to do a self-check of your HR procedures and records. While there is still snow on the ground for most of the country, take the opportunity to improve your practices and avoid costly audit findings down the road. Know the law, follow the rules, and be able to prove it.