"CAUSE" Calls for "Farm Worker Bill of Rights"

The Central Coast Alliance for a Sustainable Economy, or CAUSE, make headlines recently in Santa Barbara County with it's call for a "farm worker bill of rights."  CAUSE, a self-described social justice advocacy organization, grew out of "living wage" movements in Santa Barbara and Ventura counties in the early 2000s.

CAUSE's call for action by Santa Barbara County demands the county undertake a number of new responsibilities, like creating a special coordinator in the District Attorney's office for sexual assaults of farmworker, a county-run inspection program for field sanitation facilities, and grants from the county to farm worker service organizations to provide training to farm workers.  

Some of CAUSE's demands are already covered by California and Federal law:

"Curbing Extreme Overwork:" 

•  Protect pregnant women from pesticide exposure my mandating job status protected unpaid pregnancy leave:  All U.S. and California workers enjoy the protection of the federal Family and Medical Leave Act and the California Family Rights Act.  FMLA and CFRA mandate 12 weeks of job-protected leave for all workers after the birth or adoption of a child.  Additionally,  California State Disability Insurance (SDI) provides partial wage-replacement insurance for workers who suffer a loss of wages due to a medically-disabling condition resulting from pregnancy or childbirth.
• Require real rest breaks by defining breaks as beginning when a work reaches a break area…: California's Wage Order 14 stipulating working conditions for agricultural workers requires that that farm workers receive "ten minutes of net rest time per four hour (work) period (or major fraction thereof)"..., and the Heat Illness Prevention standard (HIP) requires net-10 minute rest periods every two hours whenever the temperature exceeds 95 degrees, as well as provision of water for all workers at all times and shade for all workers on a break a meal or rest break.

"Cracking down on Wage Theft:"

•  Several recent laws passed by the California Legislature are aimed by protecting workers from wage theft, including full disclosure to workers of their wages and deductions required on every paycheck stub, empowering the Labor Commissioner to enforce local wage laws, empowering the Labor Commissioner to place liens on the property of employers found to have not properly paid wages.  Penalties under the Labor Code for failure to promptly pay wages are substantial, including as much as 30 days of a workers’ pay over and above any unpaid wages, as well as other penalties ranging from $1000 to $5000, criminal prosecution, and civil liability under California’s Private Attorneys’ General Act (PAGA).

"Protecting Health & Safety:"

• Provide grant funding for worker safety training:  California employers are required by state law to provide training for workers to perform their jobs safely, to provide training on heat illness under the HIP standard, and other specific task training like safe use of forklifts and tractors.  The U.S. Department of Labor and numerous other organizations also provide grant funding for local private and charitable organizations to provide additional training, and many agricultural and other community-based organizations also provide training and health screening services for farmworkers, like cholesteral and blood pressure screening.
•  Inspect farms for clean bathrooms: Cal/OSHA already vigorously enforces the Field Sanitation Standard, which calls for toilet facilities, wash water, soap and paper towels.
• Aid victims of sexual assault: California provides extensive protection to prevent sexual assault and to aid victims; all employers are required to provide sexual harassment training to supervisors every two years; farm labor contractors are required to training their supverisory personnel annually, and to train workers on their rights and protections from sexual harassment at least annually upon hire.

Much of what CAUSE is demanding from Santa Barbara County is already being done by the state or by agricultural employers in compliance with state and federal law.  Unfortunately, organizations like CAUSE periodically seek headlines to satisfy their liberal donor base, even if their demands have already been largely met.

FED OSHA Issues Ag Safety Fact Sheets

The federal Occupational Safety & Health Administration, the national counterpart to California's Cal/OSHA, has issued three new fact sheets on ag safety:

• All-Terrain Vehicle Hazards during Farm Work;
• Preventing Farm Vehicle Backover Incidents; and,
• Protecting Workers from Tractor Hazards.

The issuance of these fact sheets does not create any new compliance obligations for California agricultural employers.  A positive effect of their issuance may be allowing farm employers to learn more about best practices for use of vehicles; vehicle accidents are among the most common types of accidents in agricultural employment.  A possible negative effect of the issuance of these fact sheets is that their existence may bolster an OSHA General Duty Clause violation (the federal OSH Act imposes a general obligation on employers to provide a workplace free of recognized hazards) or Cal/OSHA Injury & Illness Program violation citation for failing to identify and abate a hazard. 

LAWSUIT FILED TO INVALIDATE PIECE-RATE SAFE HARBOR CARVE-OUTS

FELS has provided eNews readers with regular updates on the passage and implementation of AB 1513, legislation to provide clear guidance to employers using piece-rate compensation and to provide a “safe harbor” for employers who did not compensate piece-rate employees as required by 2013 California appellate court decisions in the Bluford and Gonzales cases.  Those cases provided employees had to be compensated separately from piece-rate producing time for rest, recovery, and other non-productive time. 

Because it had long been assumed that averaging piece-rate earnings over hours worked met the minimum wage requirements, Bluford and Gonazles created massive litigation exposure for employers using piece-rates because the statute of limitations for claims of undercompensation is four years.  Dozens of lawsuits had been filed and many settled with massive wage, damage and penalty awards after Bluford and Gonzales were handed down.   AB 1513 provided a safe harbor that permitted employers to make back-wage payments to piece-rate compensated employees and escape penalty and damage liability.

However, AB 1513 also included limitations making the safe harbor relief unavailable to several employers locked in piece-rate litigation.  Two of those employers brought suit in United States District Court for the Eastern District of California on Jan. 22, alleging these restrictions on the availability of the AB 1513 safe harbor violate their constitutional rights.

Fowler Packing Company and Gerawan Farming allege that provisions of AB 1513 that do not allow the safe harbor to apply to any non-productive wage and hour claim brought before March 1, 2014 illegally excluded Gerawan Farming from safe harbor relief.  They also claim that the provision of AB 1513 excluding “claims for paid rest or recovery periods or pay for other non-productive that were made in any case filed prior to April 1, 2015” illegally excludes Fowler Packing from safe harbor relief.

The plaintiffs claim that the date restrictions for availability of safe harbor relief in AB 1513 amount to a violation of their constitutional rights to their detriment and to the detriment of any of their employees who might have benefited from back-pay payments made under the AB 1513 safe harbor.

You can read the filing in the case at this link.

ALRB Initiates Educational Access Rulemaking

On Dec. 3, the Agricultural Labor Relations Board (ALRB) decided to proceed with a proposed regulation allowing the Board to give its staff the right to trespass on farmers’ property for the purpose of educating farm workers about their rights under the Agricultural Labor Relations Act (ALRA).  The Board, and particularly Board Chairman William Gould, are convinced that on-site workers education during working hours (though as envisioned by the Board, access will occur during the lunch period) is necessary because farm workers have no other means available to them to learn about their rights under the Act.

The next step in the regulatory process will be a proposed regulation, followed by a minimum 45-day comment period, a likely public hearing, and a final regulation unless the comments and hearing convince the Board to change its proposal.  In that instance, an additional comment periods will be provided to allow comment on any revisions.

The idea for an “access regulation” grows out of the Chairman’s belief that conditions of farm workers have not changed since the inception of the ARLA, when the Board gave itself the power to allow labor unions to trespass on farmers’ land for the purpose of educating and organizing workers.  The Board’s interest in an educational access regulation led to hearings across the state last summer, preceded by a meeting of an “ad-hoc” group of farm employer, farmworker advocate, and union stakeholders.

Hearings on the notion of an access regulation last summer revealed a belief on the part of many farmworker advocates that material conditions of farm workers have changed little since the early days of the Ceasar Chavez-led unionization drives of the 1970s, when the agency gave unions the right to trespass on farmers land to rally unionizing workers because they could supposedly be reached nowhere else.

This image ignores the reality that many farm workers have settled out of the migrant worker stream and into communities around the state, many living permanently or semi-permanently in homes and apartments.  Cell phone ownership and usage is nearly universal, and farm workers readily make use of these telecommunications resources to find nearby employment for incrementally greater compensation, sometimes leaving farmers without a labor force in mid-harvest.

Proponents of educational access express concern that labor unions have brought relatively few cases before the Board, or its Administrative Law Judges, in recent years and take this as a sign that workers must not know about the existence of the Board or the ALRA.  While this may be more an indication of the United Farm Worker’s (UFW) ineptitude as a labor union that organizes workers, negotiates contracts, administers grievances, and otherwise does the hard work of being a labor union, the fact is the ALRB has not been totally moribund.  Agricultural management attorneys across the state report handling dozens of cases in recent years where worker have brought complaints to the ALRB or its agents alleging infringement of their ALRA-protected rights to protected concerted activity, where those workers work together to improve their wages or working conditions.

One of the reasons cited by the Board to justify educational access is the prevalence of non-Spanish (or non-English)-speaking farm workers, who speak languages indigenous to Mexico and other Central American countries.  Yet the Board is unwilling (or unable) to explain how it either intends to employ enough interpreters to accommodate this huge variety of languages, or how to even know which interpreter to bring when it undertakes educational access.

The Board believes it’s past efforts at using media have been unsuccessful, thought those efforts have not sought to use these indigenous languages, the existence of which the Board seems only now to be aware.  Community service organizations have been providing health fairs, educational services and other means that ALRB could easily “piggy-back” on to deliver education to workers about their ALRA-protected rights.

Early indications are that educational access will be triggered by a petition of two or more workers to the ALRB.  One wonders if these two workers have the wherewithal to contact the Board or one of its regional offices to initiate an educational access action, why can’t the Board use that contact as a means to educate those very workers about their ALRA-protected rights?  In like manner, the Board is toying with a “firewall” that will isolate it’s educational activities from it’s enforcement activities.  Given the Board’s limited resources, it’s doubtful the Board will be able to find, recruit and train staff who’s only responsibility will be worker education.