UFW Campaign on Piece-Rate Wages

The November 10 edition of the Fresno Bee reports that the United Farm Workers union is beginning an “awareness” drive today (apparently with press conferences in Monterey, Sonoma, Madera, Fresno, Kern and Ventura counties) to inform workers they are owed unpaid wages for non-productive time under AB 1513, legislation passed by the California Legislature and signed by Governor Brown earlier this year.

According to UFW, AB 1513 may entitle workers to $8 or more per day for unpaid “unproductive” time they may have worked between July 1, 2012 and December 31, 2015. According to UFW, “the total amount of back pay employers will owe California farm workers over the last three and one-half years will easily reach millions of dollars.”

You can see the UFW's campaign flyer here.

AB 1513 (Williams, D-Carpinteria) clarified that rest and heat illness recovery periods are to be paid at either a rate computed by dividing an employee’s total compensation for a work week, excluding compensation for rest and recovery periods and overtime premium pay by the total number of hours worked by the employee, excluding rest and recovery periods or the minimum wage. AB 1513 also provided that other non-productive time when workers are not working to produce work that is piece-rate compensated must be separately compensated at the minimum wage.

AB 1513 also provided a “safe harbor” allowing employers to avoid penalties and damages for past failure to separately compensate rest and recovery periods and non-productive time and failure to compensate rest and recovery periods at the average rate of compensation for the work week. The safe harbor requires employers to either pay actual wages owed to piece-rate employees for non-productive time and rest and recovery periods, or pay employees 4% of their gross wages for each workweek they earned piece-rates between July 1, 2012 and December 31, 2015.

AB 1513 was precipitated by California appellate court decisions in Bluford v. Safeway and Gonzales v. Downtown LA Motors, in which the courts affirmed that California law requires separate compensation for rest and recovery periods and other non-productive time. The situation was exacerbated by opinion of Labor Commissioner Julie Su that rest and recovery periods should be paid at the average rate of piece-rate compensation.

You can read more in-depth information about AB 1513 and the piece-rate safe harbor on California Farm Bureau's AgAlert website.

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.

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.

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.

CA Controller Jumps on "Wage Theft" Bandwagon

State Controller John Chiang, who is seeking election on November 4 as California State Treasurer, announced a new pilot program on October 23 -- called "Operation Pay-Up" -- to aid victims of putative "wage theft" committed by employers. Working in conjunction with the state Labor Commissioner's Office and non-profit The Wage Justice Center, the Controller's pilot project addresses the growing number of low-income workers who are owed millions of dollars in back wages unlawfully withheld by exploitive businesses. Between 2008 and 2011 alone, the magnitude of the problem was an estimated $390 million.

IRS Bars Employers From Dumping Workers on Exchanges

From the New York Times, May 26, 2014:

WASHINGTON — Many employers had thought they could shift health costs to the government by sending their employees to a health insurance exchange with a tax-free contribution of cash to help pay premiums, but the Obama administration has squelched the idea in a new ruling. Such arrangements do not satisfy the health care law, the administration said, and employers may be subject to a tax penalty of $100 a day — or $36,500 a year — for each employee who goes into the individual marketplace.

Department of Rehabilitation Releases DVDs to Train Employers Regarding Employees with Disabilities

The California Department of Rehabilitation, in partnership with the Department of Fair Employment and Housing and others, recently released two new DVDs designed to (1) assist employers recruit, hire, and retain employees with disabilities and (2) provide small business owners with helpful tips on welcoming customers with disabilities.

Labor Commissioner Issues 2014 Minimum Wage Notice

According to Julie A. Su, California Labor Commissioner, DLSE has issued a new minimum wage notice for 2014.

The new notice can be found under "Employer requirements" then "Notices and posters" and under the subheading "Minimum wage" on the Department of Industrial Relations website www.dir.ca.gov/DLSE/dlse.html. Su said in an email communication, "We developed that in December so that employers could post a single poster for all of 2014 and 2015. We will also make a note on the IWC orders that statutory changes have affected the minimum wage and all calculations based on the minimum wage so the minimum wage notice trumps the rate listed in each wage order separately. It will be very costly to reprint all of them so we've updated the notice and hope that it will work."