CALIFORNIA DEFEATS OVERTIME BILL FOR AGRICULTURE AGAIN…..BUT…..

On Friday, there was a heated debate in Sacramento regarding a bill that would remove the exemptions for agriculture workers and bring them into the 8 hour day and 40 hour workweek.

First, a little history:

The Federal Government exempted agriculture workers back in the 1940’s from the FLSA and left the regulation of overtime to the States if they wanted to improve on this standard.  NO OTHER STATE DID…..EXCEPT CALIFORNIA.  In 1976 Jerry Brown (the first time as Governor), signed bills that established the 10 hour day and 60 hour work-week.  This was included in the Wage Orders that were established about 2001, specifically, Wage Order 14 with some agriculture work being moved to the 8/40 schedule with wage orders 8 and 13.

In 2010 and again in 2011, they tried to change the rules to 8/40 but it was defeated again with Governor Arnold Schwarzenegger stating:

“Unfortunately, this measure, while well-intended, will not
improve the lives of California’s agricultural workers and
instead will result in additional burdens on California
businesses, increased unemployment, and lower wages.  In order
to remain competitive against other states that do not have such
wage requirements, businesses will simply avoid paying overtime.
Instead of working 10-hour days, multiple crews will be hired
to work shorter shifts, resulting in lower take home pay for all
workers.  Businesses trying to compete under the new wage rules
may become unprofitable and go out of business, resulting in
further damage to our already fragile economy.”

So again on Friday, we had the arguments for and against.  3  pro-8/40 Assembly members felt it was important to quote Bible Scripture.  While interesting, this is not really the argument.  There were supporters from the usual groups, UFW, Labor leaders on one side and Agriculture employers on the other.  What was missing was those who really represent the interests of the employee.

Right now, a dairy worker generally works 60 hours a week, 10 hours a day.  If you pass this law, that employee will be working 40 hours a week, or 8 hours per day (5 days a week).  Since employers will not want to pay overtime, they will do one of 3 things.  They will change from two 10-hour shifts a day, to 3 8-hour shifts per day.  Or, they will reduce the size of their herds so they can be handled in 8 hours and this will further reduce the number of employees needed.  Finally, they can just close up and go to one of the other 49 states that want to work with agricultural employers.

When you reduce the worker’s income by 20 hours per week, you are not doing them a favor.  In fact, you may be creating a much worse situation.  In order to make up for the lost income (can you afford to lose $200 + per week in your pay?) the employee will have to look for a second income.  This means working at another dairy 2 days a week or working a second shift at another dairy.  This increases the likelihood of injuries due to being over tired, less time with family and most likely they will not have a day off at all.  Right now they get one or two days off a week, but if they have a second job, that will most likely go away.  YOU ARE NOT HELPING A PERSON WHEN YOU REDUCE THEIR HOURS, INCOME AND DAYS OFF.

Though well intentioned, this shows a real lack of understanding of the actual on the ground situation.  Typical of State Legislators, they sit in their Sacramento office and listen to advocates instead of getting their shoes dirty and talking to the actual people involved.  I would extend an invitation to any State Legislator to come and spend a day in our office to see the impact of some of their legislations.  I can guarantee there are at least 10 things that they do not know exist or the impact it has on employers and employees, and the environment.

Meanwhile, contact your representatives directly, not through an organization, and point out to them the tremendous loss to employees if this legislation goes through.  They won’t listen to your problems, but they may listen if you are discussing your employee’s concerns.

OSHA FINALIZES RULES FOR DRUG TESTING AND SAFETY INCENTIVES (UPDATED SEPT 1, 2016)

 

 Edit Sept 1, 2016…The information below has been adjusted since our posting and the new rules go into effect as of November 1, 2016 instead of August 10.

Due to the major changes listed below, HR Mobile Services, Inc. will be adjusting all of our Drug and Substance Abuse Policies to better reflect these changes.

This is from the rewriting of (29 CFR 1904.35(b)(1)(I) and subsequent commentary letter issued by OSHA in May, 2016.

Back in 2006, OSHA issued a paper that took at dim view of Safety incentive programs.  The general idea was that if there were no injuries reported for a month or a quarter, there would be a drawing for prizes such as a TV or gift cards.  While this was done with good intentions that employees would work more carefully so that everyone would have a chance to win valuable prizes, it also had an impact (intended or not) on the reporting of injuries.  The letter went on to point out that an employee could be put under increased peer pressure not to report an injury and that was not acceptable.  The new rule specifically prohibits employers from using incentive programs that discourage injury reporting.  THEY ARE NOT BANNING INCENTIVE PROGRAMS!  Programs could include:

  • –   Providing t-shirts to workers serving on safety and health committees or to celebrate a goal being reached
  • –   offering modest rewards for suggesting ways to strengthen safety and health
  • –   throwing a company or department wide recognition party after the successful completion of safety training

The final ruling goes into effect on Nov. 1, 2016.  The final rule explicitly incorporates “the existing prohibition on retaliating against employees for reporting work- related injuries or illnesses that is already imposed on employers”.  You can bet that lawyers will be quoting this and inquiring into incentive programs when filing a 132-a or EEOC discrimination case.  BE CAREFUL.  If you are not sure of your program, give us a call.

ALSO………..

OSHA has determined that blanket application of a company post-injury drug test policy may not be legal because it may deter an employee from reporting an injury.   Employers are prohibited from using the drug testing as a threat to employees who may want to report and be treated for an injury.

Where this can happen, and you need to address this with your supervisors, is when the supervisor says to the employee, “you can be treated at the clinic, but you know they are going to test you for drugs and alcohol and if they find anything you will be fired”.  That is a threat and is illegal.  You must make sure your people know that comments like this expose your company to major fines.

Further, drug testing after an accident is only allowed when 2 situations are present.  The first is that the injury MUST be associated with an action on the part of the employee that could have been connected to a drug or alcohol impairment.  That is to say, if an employee is stung by a bee, there is no connection to unusual behavior due to being under the influence and so there is no reason to apply a drug and alcohol screening test.  If the employee was swinging a stick at a bee hive and got stung, there may be a good reason to have them tested.  If a tree branch falls on an employee, no test.  If an employee is climbing a tree for fun during lunch, maybe there is a reason for testing.  If an employee has a back strain or a cut due to a missing guard on a piece of machinery, there is not a good reason to drug test.

The second part of this is that the testing should only be done when it can accurately identify impairment caused by drug use.

So, you need to be reasonable in your application of testing employees and you cannot use it as a threat to not report.  You still need to follow DOT rules because they may override some of these situations.  All DOT accidents require post-accident testing and in most cases would meet the standard above in either case.