What to do if UFW Takes Access?
What should you do you're Served with a Notice of Intent to Take Access by the United Farm Workers (UFW)? UFW has been making heavy use this summer of their rights under the Agricultural Labor Relations Act (ALRA) to take access to farms for the supposed purpose of assessing employer's compliance with the Heat Illness Prevention standard.
Farm Employers Labor Service (FELS, an affiliated company of the California Farm Bureau Federation) is presenting two special programs in conjunction with Kern County Farm Bureau and Fresno County Farm Bureau to help you understand how to handle a situation that may be unfamiliar to many farmers: you've been served with a Notice of Intent to Take Access by a union.
The Agricultural Labor Relations Board's rules allow a union to petition the Board for the right to take access to your farm or ranch for the purpose of meeting and talking with your workers. It is unlawful to impede this process, but the union has to follow certain rules:
The notice must be properly served on you;
The union may only take access as specific times during the day;
The union may not be disruptive or damage your property;
The workers are under no obligation to listen!
Come find out more from Pat Moody of Barsamian & Moody. Pat and FELS work closely with clients to help ensure employers' rights are fully protected, and to make sure workers can fully exercise their right to have union representation, to refrain from having union representation, or to discontinue union representation.
This special program will be offered at:
- Fresno County Farm Bureau, 1274 West Hedges Avenue, Fresno; Friday September 18 at 9 AM. Please contact Fresno County Farm Bureau at (559) 237-0263 to attend.
UFW Claims "Victory" on Tomato Contract; Who Won?
The United Farm Workers Union (UFW) celebrated a new union contract on July 27 to represent 450 tomato harvest workers in the Stockton area, with the UFW claiming 1500 workers represented in the San Joaquin Valley.
The union contract touts an hourly increase of $1.33 for tomato harvesters, but fails to mention that these newly-minted union members will be forced to pay 3% of their earnings to the union in dues. So who really won?
You can see print coverage at this link.
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.