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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:

  • Control access to your property.
  • Train your supervisors to "greet" anyone seen in the field who is not an employee, and ascertain their purpose in being there.
  • Direct non-employees to the farm office or to a supervisor.
  • Remind employees they are under no obligation to talk to anyone they don't want to talk to.

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:

  • Service: the union must serve the office of the owner, officer,or director of the employer or at the office of the employer with someone apparently in charge of the office or some other responsible person;
  • Time of access: organizers may take access one hour before work begins, one hour after work ends or for a maximum of one hour during the lunch period.

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.   

Independent Contractors

 

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 Poster

The 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

From the US DOL Blog: US DOL Wage and Hour Division clearly announces that Agriculture is, and will likely remain, a targeted business for audits and compliance actions.  Full compliance is the beginning of the job of protecting yourself and your business but perfect (yes perfect, or as close to perfect as any human system can get) is the too often neglected 'rest of the story.' your business depends on both components, full compliance with the spirit of the laws and regulations will not fully protect you if you cannot show proper and complete documentation.

Read more: DOL Inspections and Audit Guidances

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.

Read more: Pre-Season Compliance Checklist