Farm Employment Update Bryan Little Farm Employers Labor Service February 20, 2015

Farm Employment Update

Bryan LittleFarm Employers Labor Service

February 20, 2015

What’s on the Agenda Today?•Paid Sick Leave Mandate (AB 1522)•Revisions to Heat Illness Prevention Standard•AB 60 Drivers Licenses and implications for employers•What’s going on with immigration reform?•Refresher – Injury & Illness Prevention Programs

Paid Sick Leave Mandate – AB 1522

•All employers with employees in California will have to offer PSL—no exceptions.•All employees, except those covered by a collective bargaining agreement providing for sick leave, and a few others, are covered.


•An employee working on or after 7/1/15 in California for at least 30 days within a year of beginning employment will accrue PSL at a rate of 1 hour for every 30 hours worked.•Hours of service for accrual purposes are counted starting on the first day of employment.•Overtime-exempt professional, executive or managerial employees are deemed to work 40 hours per week.


•Employee is entitled to use PSL beginning on the 90 th day of employment and may use PSL as it is accrued.•Employee determines amount of PSL to use, but employer may set a minimum increment of 2 hours for use of PSL.


•Employer may limitUse of PSL to 24 hours or 3 days per year.Total accrual of PSL to 48 hours or 6 days.

•An employer may not require an employee to provide a substitute as a condition of using PSL.


•Unused PSL need not be paid when employment ends.

But such PSL must be reinstated for a former employee who is rehired within 1 year.


•An employer must grant PSL upon an employee’s oral or written request for

Diagnosis, care or treatment of a health condition of, or preventative care for, the employee or employee’s family member (child, parent, spouse, registered domestic partner, grandparent, grandchild, sibling) orSeeking or receiving protection, medical attention, assistance, counseling or preventative measures related to the employee’s status as a victim of domestic violence, sexual assault or stalking.


•PSL use is paid at the employee’s hourly wage rateUnless in the 90 days of employment before taking PSL the employee

Had different hourly pay ratesWas paid by commission or piece rate orWas a nonexempt salaried employee.

In any of those cases, the pay rate is calculated by dividing the employee’s total wages (excluding OT pay) by the employee’s total hours worked in the full pay periods of those prior 90 days.


•Instead of using the so-called accrual method with its accrual-rate, carry-over and accrual-cap provisions, an employer may offer PSL on an advance or upfront basis.•Under this alternative, an employee receives 24 hours or three days of paid sick leave for each year of employment, calendar year or 12-month basis.


•As of 1/1/15, employers mustPost in a conspicuous place information about the PSL mandateGive employees a revised version of the new-hire disclosure notice required by Labor Code section 2810.5 that includes information about the requirements of AB 1522.

DLSE has issued a template of both a poster and notice illustrating the proper information and format. An employer need not use the DLSE documents, but documents used by an employer must convey the same information.


•An employer must•Provide an employee with written notice that sets forth the amount of PSL (or paid time off leave the employer provides in lieu of PSL) available to an employee on either the employee’s itemized wage statement or other document.•Keep records of hours worked and PSL accrued for 3 years and make these records available to the Labor Commissioner for inspection.


•An employer may not deny leave to or take adverse employment action against an employee seeking to use PSL.•The Labor Commissioner may order rein- statement, back pay, payment of sick days unlawfully withheld and administrative penalties.

AB 60 Drivers License•AB 60 required DMV to issue a new type of driver’s license to otherwise qualified applicants who cannot prove lawful presence in the U.S.

Front: FEDERAL LIMITS APPLYBack: This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.

AB 60 Drivers License•An AB 60 license is visually distinctive.•An employer seeing one will be on notice that the employee’s employment eligibility is in doubt.

•That’s because an AB 60 license will be issued only to applicants who declare they cannot prove lawful presence.

AB 60 Drivers License•An employer’s failure to take reasonable steps to resolve such a discrepancy is evidence the employer had “constructive knowledge” that an employment-ineligible employee lacked eligibility.•Thus an employer would have to question the employee about the discrepancy.

AB 60 Drivers License•An employer’s failure to take reasonable steps to resolve such a discrepancy is evidence the employer had “constructive knowledge” that an employment-ineligible employee lacked eligibility.•Thus an employer would have to question the employee about the discrepancy.

AB 60 Drivers License•Our best advice in the short-run – if you’re offered an AB 60 drivers license as a List B document (verifying identity):

Ask the employee why he is offering an AB 60 drivers license;An AB 60 drivers license is intended for people who cannot prove legal presence (a major part of being legally eligible to work);The employee undoubtedly claimed to be legally eligible to work in the U.S. on Section 1 of the I-9;The employee must have plausible explanation for the discrepancy between his reason for using an AB 60 drivers license and his claim to be legally eligible to work in the U.S.

Heat Illness Regulation•The Cal/OSHA Standards Board approved a major revision of the Heat Illness Prevention Standard yesterday;•The revised standard will become effective on May 1.

Heat Illness RegulationMajor Changes:

•Provide shade at all times when the temperature exceeds 80⁰ Fahrenheit (the present standard requires provision of shade for all workers when the temperature exceeds 85⁰);•Shade required for all workers who may be taking heat illness –related break or IWC-mandated meal and rest breaks;•Required only to provide shade to workers who remain onsite for the meal break (instead of providing for an entire crew, many of whom may choose to eat their meal elsewhere.

Heat Illness Regulation•Workers on a heat illness–related break must be monitored for signs of heat illness and not be permitted to return to work for at least five minutes;•A worker with signs of heat illness must be provided appropriate first aid or emergency services;•Observation of employees during “high-heat” periods (when the temperature exceeds 95⁰ Fahrenheit) is required to permit a single supervisor to observe at most 20 employees, or implement a “buddy system” where workers monitor one another;•One or more employees must be authorized to call for emergency medical services;•Mandatory pre-shift meetings during high-heat periods to review heat illness requirements and procedures;

Heat Illness Regulation•Agricultural employees: mandatory net-ten minute “preventative cool down rest period” every two hours when the temparature exceeds 95⁰ Fahrenheit; •Can be concurrent with IWC-required rest periods;•Requires an additional 10 minute rest break at the eighth hour of an shift exceeding eight hours and an additional break at the 10th hour of a shift exceeding 10 hours.•Acclimatization (close observation and adjustment of workload if needed) is now required in any “heat wave,” defined by the agency as any situation where the predicted high temperature will be at least 80⁰ Fahrenheit and is at least 10 degrees higher than the average high daily temperature in the preceding five days.

Heat Illness Regulation•FELS will be presenting training on the revised Heat Illness regulation in early April;•Stockton, Fresno, Bakersfield, Ventura, and Rohnert Park;•Watch the FELS Newsletter, AgAlert and communications from your county Farm Bureau for details.

Immigration Reform Developments

•Congress is deadlocked, and playing the “blame game” on immigration reform;•Funding for the Department of Homeland Security is caught up in a political battle between the White House and Congress over the President’s executive orders expanding deferred deportation for people brought to the U.S. illegally as children, and for parents of minors who are citizens or permanent resident aliens.

Immigration Reform Developments

•A federal judge in Texas recently ruled the President’s orders are invalid; the President is planning an appeal;•In the meanwhile, the House is holding hearings on legislation to impose e-Verify without creating a workable guestworker program for agriculture and other industries that will be impacted.

Remember IIPPs?•Required July 1, 1991;•Every employer must have an effective Injury and Illness Prevention program (IIPP);•Must be in writing and include:

Identity the person with authority and responsibility for implementing the Program;Include a system for ensuring that employees comply with safe and healthy work practices.

•Also include:recognition of employees who follow safe and healthful work practices;training and retraining programs; disciplinary actions, or any other way of ensuring employee compliance with safe and healthful work practices.

Features of a Successful IIPP•Include a system for communicating with employees;

Readily understandable by affected employees;Encourage employees to inform you of hazards at the work-site without fear of reprisal.

•You can do this with: Meetings; Training programs; Posting and written communications; Means of anonymous notification by employees about hazards.

Features of a Successful IIPP•Inspections: indentify and evaluate work place hazards;

When the Program is first established;Inspections to identify and evaluate hazardous conditions and unsafe practices;Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard, and;Whenever the employer is made aware of a new or previously unrecognized hazard.

•Include corrections unsafe or unhealthy conditions, work practices and work procedures in a timely manner based on the severity of the hazard.

Features of a Successful IIPP•Procedure to investigate occupational injury or occupational illness;•Procedure for correcting unsafe or unhealthy conditions, work practices and work procedures in a timely.

Features of a Successful IIPP•Provide training and instruction:

When the program is first established;To all new employees;To all employees given new job assignments for which training has not previously been received;

Features of a Successful IIPP•Provide training and instruction:

Whenever new substances, processes, procedures or equipment are introduced to the workplace and represent a new hazard;Whenever the employer is made aware of a new or previously unrecognized hazard; and,For supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate direction and control may be exposed.

Features of a Successful IIPP•Keep records of the steps taken to implement and maintain the Program:

Records of periodic inspections to identify unsafe conditions and work practices;Including person(s) conducting the inspection;The unsafe conditions and work practices that have been identified and corrected and how corrected;Action taken to correct the identified unsafe conditions and work practices; Maintain these records for at least one (1) year.

Features of a Successful IIPP – in Plain English

Management Commitment

•Effective injury prevention programs depends on the active involvement of management. •Management commitment is shown by:

on-site monitoring; incentive and accountability for middle managers; and,provision of close-by access to medical treatment.


Problem Identification•Successful hazard reduction and prevention depends on accurate information on the sources and the nature of job-related safety problems. •Without identification and prioritization of specific hazards, prevention is reduced to cautionary advice (i.e.: Be Careful…); •Successful IIPP and general safety programs target specific hazards (e.g., lock-out/tag-out, falls) or a hazard category (ergonomic factors) is targeted.


Problem Identification

•Continuing system for monitoring hazards and injury causes to ensure that this information remained current and accurate. •Effective injury prevention programs are workplace specific.


Engineering Controls

•Engineering controls are the most effective means of reducing and preventing injuries. •The work environment is changed in such a way that improved safety relies on redesigning the work environment to eliminate hazardous tasks, equipment, exposure or the lack of "fit" between the worker and the job. •The most successful IIPP program have featured from hazard-specific controls.


Worker Involvement

•Workers play a critical role in the success or failure of an injury prevention program for two reasons:

First, worker input is necessary for successful job-site hazard analysis and for the design of useful interventions; Second, involvement of workers has provided much of the impetus for change. It is the responsibility of management to encourage positive worker participation in safety.


Education and Training

•Employee and management education is an essential part of each of the industrial safety successes; •Education of workers and managers leads to active worker/manager involvement in the identification and control of hazards in the workplace; •Successful programs do not rely on teaching workers to minimize their exposure to accepted workplace hazards.


Education and Training

•Worker education should focus on the development of the broad goal of safety in the workplace specific hazard identification, preventive improvements, and worker-management interaction about safety issues. •Safety training related to specific tasks is most effective when it is an integral part of basic skills training, with occasional "tailgate" reinforcements.

IIPP Resources•FELS HR Compliance Manual – www.fels.net/supplies•Cal/OSHA Injury and Illness Prevention Program e-Tool: http://www.dir.ca.gov/dosh/etools/09-031/•Cal/OSHA “Guide to Developing Your Workplace Injury and Illness Program:” http://www.dir.ca.gov/dosh/dosh_publications/iipp.html•Cal/OSHA “Model Injury and Illness Prevention Program for Employers with Intermittent Workers in Agriculture:” http://www.dir.ca.gov/dosh/dosh_publications/iipintermitag.html

http://www.fels.net/supplies

http://www.dir.ca.gov/dosh/etools/09-031/

http://www.dir.ca.gov/dosh/dosh_publications/iipp.html

http://www.dir.ca.gov/dosh/dosh_publications/iipintermitag.html

http://www.dir.ca.gov/dosh/dosh_publications/iipintermitag.html

Questions? Comments?Thank you for your time and attention

Bryan LittleFarm Employers Labor Service

2300 River Plaza DriveSacramento, CA 95833

[email protected]

http://www.fels.net/

Documents

Farm Employment Update Bryan Little Farm Employers Labor Service February 20, 2015