My company depends on ag workers. What are some things that I need to be concerned about?

Q.     My company depends on ag workers.  What are some things that I need to be concerned about?

A.     Below are seven issues every employer of ag workers should consider:

1. Wage and Hour claims –  Agricultural employers are particularly susceptible to claims where an employer pays employees on a piece-rate basis, meaning the employees are paid per task or shift.  A fairly recent case found that employees must be paid for their time at work even when they are not engaged in piece-rate work.  These non piece-rate hours must be paid at least minimum wage, and these hours and wages should be clearly documented on the employee’s wage statement.  Also, this issue presents itself in situations where employees fail to reach at least minimum wage for each specific hour they work.  For example, if a piece-rate task is paid $50, but it takes the employee 8 hours to perform this task, this is a violation of the law.  As such, employers must carefully track employees’ time, hour by hour, and be cognizant of nonproductive hours (such as paid breaks, meetings, thawing, packing, cooling, etc.)

2. Immigration compliance – A recent law permitted undocumented immigrants to apply for drivers’ licenses.  However, California law also makes it illegal to discriminate against employees who present these licenses for employment.  But, what makes this confusing is that those licenses cannot be used to establish eligibility to work when completing the I-9.  Therefore, employers still need to require employees to provide documentation and follow the federal I-9 process to determine employees’ authorization to work.

3. Heat illness prevention – A fairly new regulation regarding heat illness prevention puts new burdens on employers.  Most notably the new regulations changed the minimum temperatures dictating when and how shade must be provided.  For additional information on heat illness, see our recent blog post further discussing the issue.

4. Employee Housing – Generally, if you provide housing for at least 5 employees, a permit for employee housing is required.  This permit can be obtained from the Department of Housing and Community Development.  There are fees associated with the permit — approximately $200 for issuance and $27 per employee housed.  Also, there is a lengthy list of requirements regarding the condition of the housing, which will be subject to inspections.  The permit must be obtained at least 45 days prior to housing the employees.

5. Concerted activity – Both the National Labor Relations Board (NLRB) and the Agricultural Labor Relations Board (ALRB) have recently taken a broader view of their jurisdiction.  While traditionally these agencies focused on unionizing, “concerted activity” has a much broader definition.  Both agencies derive their jurisdiction as a means to protect “concerted activity.”  As such, agricultural employers need to be careful not to take adverse employment actions against employees who are discussing working conditions.  There can be a delicate line between complaints and protected speech (e.g. concerted activity).  If the employer crosses that delicate line, an employee may file a claim with the NLRB or ALRB.

6. Joint Employer – A recent law makes an employer jointly liable with a labor contractor for wages and workers’ compensation violations.  Employers must now pay special attention to ensure that their labor contractors are complying with all laws.  They may also want to consider indemnification agreements in any contract.  In the end, agricultural employers who originally thought they had assigned the ultimate responsibility for those workers to a labor contractor may find themselves nonetheless a party to a lawsuit – and ultimately liable!

7. Sexual harassment and discrimination – While not new, these claims continue to be filed.  Because of the nature of agricultural work, employees are often not in a central location, and therefore, supervision can be difficult.  Employers are strictly liable for sexual harassment committed by their supervisors, as well as conduct that is severe and pervasive.  As such, agricultural employers must choose their supervisors carefully, have clear policies prohibiting such conduct, and conduct all necessary training.  Also, remember that discrimination can be alleged even between employees from the same country.  It is not uncommon to have discrimination claims brought by employees from different regions in the same country or different countries in the same area of the world.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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