California Association of Winegrape Growers

1
California Association of Winegrape Growers

• Myths Regarding Mismatched Social Security
  Numbers
• What You Should Do Relative to Mismatched SSN's
• AgShip is Coming (Agricultural Safety and Health
  Inspection Program)
• Key Employment Requirements for Agricultural
  Employers

2
Pre-Test This is going to be two easy

• 1. What are the minimum number of people a
  supervisor must supervise to be considered an
  exempt executive employee?
• 2. When an employee reports for work and no work
  is provided, what is the minimum number of hours
  you can pay the employee?

3
Pre-Test, Continued. Isnt this two easy?

• 3. How many garnishments must an employee incur
  before you can terminate the employee? Does that
  include any type of garnishment?
• 4. To be considered an exempt employee how many
  multiples of the minimum wage must the employee
  be paid?

4
Myths Regarding Mismatched Social Security Numbers

• Employee is an unauthorized alien
• Social Security will report employee to INS
• You must re-verify INS Form I-9 (See I-9)
• IRS will assess 50 penalty
• According to SSA, You must check SSN's
• Employee must resolve mismatch within 90 days
• Must discharge employees with bad SSNs

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What to Do Regarding Mismatched SSN's

• Verify records with employee's SSN
• Complete W-2c on those Improperly Reported to SSA
• Copy all employees' SSN
• Check returning employee's SSN
• Send SSA a letter confirming your actions
• Develop company policies

6
SSN Mismatch is Tip of the Iceberg"

• Garnishments
• Questionable labor supply
• Employees requesting Alien Labor Certifications"

7
New IWC Wage Orders

• Minimum Wage, 6.25 (6.75 1/1/02)
• Exempt Employee Salary, 2X Minimum Wage
• IWC Order 8 13 vs. Order 14

8
New Rest and Meal Period Requirements

• Must Allow and Permit Meal Period
• Provide 30-minute meal after 5 hours
• Unless workday completed with 6 hours
• Unless nature of work makes it unpractical
• Must record in and out time of meal period
• Meal period penalty, one hour of pay at RRP
• Provide a 10-minute rest period per 4 hours
• Rest period penalty, one hour of pay at RRP

9
AgShip is Coming

• Increase inspections by 25
• Increased penalties
• Looking for
• Field Sanitation/Heat Stress
• Equipment Hazards (Driverless Tractors, ROPS)
• Stooped Labor
• Skin Hazards
• Electrical Hazards

10
New and Wild Laws

• Non-supervisory liable for harassment
• Independent Contractor Reporting
• Victims of Domestic Violence
• Farm Labor Contractors
• Increased bonding requirements
• Eight hours of Continuing Education

11
New FLC Requirements

• Higher bonding requirements
• Under 500,000 payroll 25,000
• 500,000 - 2,000,000 50,000
• 2,000,000 and over 75,000
• Continuing Education Units
• Farm Labor Contractor Special Enforcement Unit

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Broader Definition of Disabilities

• Definition of Persons with Disabilities
• Limits "in any way" a major life activity
• Mitigating Measures Not Considered
• Limits Post-offer medical examinations
• Must use "Timely, Good Faith, Interactive
  Process" with Employee to determine "reasonable
  accommodation

13
Summary of Key Labor Requirements

• Workers' Compensation
• Employer must have a workers' compensation
  insurance policy or be permissibly self-insured
• Workers' compensation notice and given to
  employees
• Notice insures 30-day control of medical services

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Summary of Key Labor Requirements

• Unemployment Insurance
• Employment Development Department registration
  number
• Federal Taxes
• IRS employer identification number
• Employment Eligibility Verification
• Must verify work eligibility on INS Form I-9
• Keep I-9 3-year minimum, 1 year or after
  employment ends, whichever is greater

15
Child Labor

• Minors below age 12 may not be in Agricultural
  Zone of Danger
• Agricultural Zone of Danger near moving
  equipment, unprotected chemicals or water hazards
• Permits to Work and Permits to Employ must be on
  file for at least 3 years
• Limits on hours of work must be observed (see
  back of permit)

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Child Labor (Continued)

• Minors below age 18 may not mix or load certain
  pesticides
• Minors below age 16 may not work in hazardous
  agricultural occupations near moving machinery
• Minor children notice must be posted
• Hot Goods - Company who benefits from illegal
  minor's employment can have product destroyed!

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Farm Labor Contractors (FLC)

• FLC's payroll records must be kept 3years
• Joint employer - Both Grower FLC's are liable
  for FLC's violations
• FLC must be federally registered and state
  licensed
• Must register with County Agricultural
  Commissioner
• Should provide workers' compensation certificate
  of insurance

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If Transportation Authorized

• Vehicle Mechanical Inspection Form WH-514 for
  each vehicle
• Doctors Certificate for each driver
• CHP Farm Labor Vehicle inspection
• Driver licenses of each FLCs driver on file
• Farm Labor Vehicle drivers have Class B license
  with Farm Labor Vehicle endorsement
• Liability Insurance Policy Form MBCU 3298 on
  file

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Posters and Notices

• Federal Minimum Wage poster
• Cal/OSHA Safety and Health Protection on the
  Job Form No. 200 others as applicable, based
  on activities
• Industrial Welfare Commission (IWC) Order 14 (ag
  occupations) Other IWC orders as applicable
• 4 (e.g., clericals of an employer whose only
  other employees are covered by Order 14
• 8 (commercial packing)
• 13 (grower own packing)
• Migrant and Seasonal Agricultural Worker
  Protection Act poster

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More Posters and Notices

• Employee Polygraph Protection Act poster
• California nondiscrimination poster (5 or more
  employees)
• Federal nondiscrimination poster (15 or more
  employees)

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Minimum Wage

• 6.25/hr (6.75/hr after 1/1/02)
• Piece-rate earnings are averaged over a workweek
  to determine whether minimum wage is achieved
• Housing and Meals Credited Against Minimum Wage
• Employee must authorize in writing
• IWC orders limit credit amounts

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Overtime Premium Pay

• All nonexempt employees, even those paid a salary
  or by piece rate, must receive overtime
• IWC Order 14 (Agricultural Occupations)
• Hours over 10 in a workday and first 8 hours on
  7th day of work in a workweek 1½ times regular
  pay rate (RPR)
• Hours over 8 on 7th day of work in a workweek 2
  times RPR

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IWC Orders 4, 8 and 13 (Non-Ag)

• Over 8 hours in a day, over 40 hour in a week,
  1st 8 hours on 7th day of work in a workweek 1½
  times RPR
• Hours over 12 in a workday and over 8 on 7th day
  of work in a workweek 2 times RPR
• Exceptions
• Irrigators (over 1/2 of time worked in a
  workweek)
• Drivers of certain large trucks (generally,
  weighing at least 6,000 lbs. with 3 or more
  axles)
• Certain part-time agricultural employees (up to 6
  hours in a workday and 30 hours in a workweek)

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Overtime (continued)

• Caution Under FLSA, an employee who during a
  workweek processes, packs or otherwise handles
  after harvest any amount of any commodity not
  produced by his employer must be paid 1½ times
  RPR for all hours worked over 40 in that
  workweek, even if most of the employee's work is
  agricultural.

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Payment of Wages

• Deductions not mandated by law require employee's
  written authorization
• Payroll must be
• At least semimonthly, exceptions
• Boarded lodged employees monthly
• At least weekly for FLC employees
• Immediately upon discharge or layoff
• Within 72 hours after voluntary quit
• Post notice of regular pay days, time and place
• Itemized Statement given to employee with wage
  payment
• Prudent to keep payroll records 4 years

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Reporting Time Pay

• When employee is told and does report to work
• Must pay employee ½ of usual day's pay (at least
  2 but not more than 4 hours)
• For employee who reports for work but is given
  less than ½ of usual day's work
• Exceptions
• Civil authoritys recommendation
• Public utilities power failure
• Act of God or other causes beyond employer's
  control

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Tools and Equipment

• Employer must provide and maintain required or
  necessary tools and equipment for employees
  earning less than twice the minimum wage
• Funds securing return of equipment deposited in a
  joint bank savings account
• Deduction from employee's final pay for lost
  equipment allowed only upon employee's prior
  written authorization and only where loss is due
  to employee's dishonest, willful or
  grossly-negligent act

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Transportation Housing of Workers

• Transportation
• Licensing of drivers
• Vehicle safety standards and inspection stickers
• Housing
• Inspections and permits under state Employee
  Housing Act if 5 or more employees are housed
• Compliance with federal housing standards for
  migrant agricultural workers
• Federal migrant agricultural worker housing poster

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Field Sanitation in hand-labor operations

• Toilet Facilities
• Crew with 1-4 employees one toilet, even if a
  mixed-sex crew
• Crew with 5 or more employees one toilet per 20
  employees of each sex, or fraction thereof
• Toilet paper in suitable holder
• Screened
• Chemical toilet waste water tank must be able to
  hold at least 40 gallons and must contain
  effective odor-control and solid-liquefying
  chemicals
• Keep service maintenance records for at least 2
  years

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Handwashing Facilities

• Handwashing
• One per 20 employees or fraction thereof
• Water tank must be able to hold at least 15
  gallons and be refilled with potable water as
  necessary
• Soap and single-use towels provided
• Sign posted stating This water is for
  handwashing only
• Location
• Located near each other
• Within a ¼-mile or 5-minute walk of employees

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Field Sanitation

• Ventilated and rigidly-constructed, with
  self-closing doors, lockable from inside
• Inside surfaces must be nonabsorbent, smooth,
  readily-cleanable, and light-colored
• Clean and sanitary
• Alternative compliance May provide
  transportation to facilities if (1) employees
  are performing fieldwork for under 2 hours
  (including transportation time) or (2) 4 or fewer
  employees are engaged in hand-labor operations on
  a given day

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Drinking Water Good hygiene practices

• Pure, cool water must always be readily available
• Dispensed by fountain or single-use cups
• Container must be covered, protected and kept
  clean
• Good hygiene practices notice

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Other Safety and Health Requirements

• Written Injury and Illness Prevention Program
• Written Hazard Communication Program
• First-aid kit and person trained in its use

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MSAWPA Disclosure

• Disclose at time of recruitment in writing
• To recruited migrant or day-haul worker
• To a seasonal agricultural worker upon request
• Place of employment
• Wage rates (including piece rates)
• Crops and activities
• Period of employment
• Any benefits and any cost
• WC and UI
• Strike or work stoppage
• Arrangement for sale of goods to workers
• WC carrier and policyholder information

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Thank you!

• George Daniels
• Farm Employers Labor Service
• [phone]
• www.fels.org