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UFW GUILTY OF FAILING TO PAY ITS EMPLOYEES FOR HOURS WORKED!!

Yes, you are reading this correctly.  The Union that made its name on protecting the rights of Agricultural workers will have to pay out over $885,000 in back pay and another $235,000 in penalties.  The Union is going to appeal, but many of you will find this gratifying.  There is not much more to report on this right now, but this could be a turning point for politician who fall over themselves to align with this organization that only represents about 3% of the agriculture workers in California.  Perhaps we will see our politicians using a little more common sense.  Or, maybe we are hoping for too much.  Still, the irony of this story is not lost on agricultural employers everywhere.

YOU CANNOT COMBINE REST PERIODS!

For some time now we have been advising our clients that they must separate 10 minute rest periods into each half of the day as per the wage orders.  Now there has been the first court trial after the Brinker decision to address the issue of combined rest periods.  Below is an edited version of an article from HRCalifornia white paper sponsored by the California Chamber of Commerce.  There is contact information on the bottom if you wish to read the full account but the important information is here:

California Court Affirms Rest Break Timing Requirement

A California court recently affirmed that, in general, rest breaks cannot be combined (Rodriguez v. E.M.E., Inc., 2016 WL 1613803 (2016)).

Relying on the California Supreme Court’s guidance in Brinker Restaurant Corp. v. Superior Court, the appellate court ruled in Rodriguez that “rest breaks in an eight hour shift should fall on either side of the meal break, absent factors rendering such scheduling impracticable.” The court acknowledged that unusual or exceptional circumstances may permit variation from the norm.

The Rodriguez case is one of the first since Brinker to expand on the issue of rest-break timing. In Rodriguez, the court ruled that whether the company can show that unusual circumstances justify its practice of combining rest breaks into a single 20-minute break before the meal period is an issue that cannot be decided on a motion to eliminate the case before trial (known as a motion for summary judgment).

The Rodriguez court remanded the case to a lower court so the issue can go before a jury.

General Guidance

The court relied on the Wage Orders, Division of Labor Standards Enforcement opinions and the Brinker decision to reaffirm the general rule that rest periods should fall in the middle of work periods and separated by the meal break “insofar as practicable” — which the court interpreted to mean “to the extent feasible.”

Following the Brinker guidance, the timing of such breaks in an eight-hour shift is that one rest break should fall on either side of the meal break.

Limited Departure From the General Rule

Now we know the general rule. But when is a departure from the permissible schedule allowed? According to the Rodriguez court, a departure from the general rule is allowed only if the departure can meet the following two-prong test:

1.   The departure will not unduly affect employee welfare; and
2.  The departure is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule.

A departure from the preferred schedule that is “merely advantageous” to the employer will not meet the above test. Instead, the employer must show that the preferred schedule imposes a material burden and that departure from the norm is necessary to alleviate that burden.

In coming up with this rule, the court noted that the overall intent of California’s Wage Orders is to protect employee health and welfare.

Combined Breaks

The court also rejected the notion that employers are allowed to combine rest breaks, as the company in this case did. Again, the court reiterated the preferred schedule of one rest break on each side of a meal break.

A company has no right to combine rest breaks as a matter of law.

However, unusual or exceptional circumstances may permit a combined rest break. The court noted that there was only one circumstance that the former Industrial Welfare Commission had discussed allowing a combined rest break: where the business requires shifts in which the meal period occurs soon after the employee reports to work. The Rodriguez court noted that those facts were not before it.

Note: Employers are advised to consult legal counsel if they think they have a situation that allows them to depart from the general rule of a rest break on each side of a meal break.

Question for a Jury

In this particular case, the employer submitted declarations from employees that the combined rest break wasn’t harmful to them and that they preferred it.

The company also submitted evidence that the combined rest break was necessary because the nature of the production process meant that the employees needed a long time to prepare for the break and also time to resume activities after break. The company claimed that a departure from the preferred rest break schedule enabled the company to avoid material economic losses due to lost production time preparing for breaks and resuming activities after.

However, the employee who brought the case submitted his own declaration claiming that employees lost little or no work time in taking breaks, countering the argument that employees following the preferred break schedule would place a material burden on the company. Because of this declaration, the employer was not able to get rid of the case before trial, and further proceedings will be necessary.

This case has now been remanded, and we will see if the employer can prove that its departure from the general rule was justified. Or the case may be appealed to California’s Supreme Court. In the meantime, this published decision is good law.

Best Practices
Comply with break timing requirements. Provide the preferred schedule of one rest break falling in the middle of the work period before the meal period and one rest break falling in the middle of the work period after the meal period.
If you think your company has unique burdensome circumstances that would allow you to depart from the preferred schedule, consult legal counsel. It can’t be stressed enough: meal and rest break claims continue to be a source of costly litigation, penalties and fines.
Review your policies to make sure they are compliant with the preferred rest break timing.
Educate managers about their obligations relating to meal and rest periods and discipline managers who do not follow policy.
You may use this contact for more information from the California Chamber of Commerce Services: hrcalifornia.service@calchamber.com

UFW IS SANCTIONED WATCHDOG FOR CAL\OSHA

An settlement was reached between the families of 2 farmworkers who have had heat-related deaths over the past couple of years.  The UFW was also engaged in suing the State of California for not aggressively pursuing violators of the heat-illness regulations.

Since those deaths, Cal\OSHA has raised the standards again as we saw with this year’s roll-out of the program in May.  However, that was not enough.  So, in reaching a resolution to the lawsuits, Cal\OSHA has agreed to sanction the UFW as an official Watchdog.  Also, they have agreed to aggressively increase the inspection and overview of agriculture workers in the State over the next few months.

What this means to every farm and ranch owner is that  you better go back and review your training and if you are AT ANY POINT not in compliance, you should fix it now or face a real possibility of stiff fines and further inspections.  It may also be time to watch your neighbors as well.  When they are not in compliance, that draws attention to all locations around them.  With UFW on board, they are just looking for a good reason to get onto your property and organize your workers.  With the new rules regarding organizing meetings set down by the NLRB and our generous State officials, it could be a very long and difficult Summer.

UPDATE

The California Farm Labor Contractor’s Association sent out the following statement to it’s members:

Beware of Strangers – Control Access to Fields!

Dear CFLCA Members and Others:

Most of you are aware that Cal OSHA recently settled an old lawsuit filed by UFW charging inadequate enforcement of the Heat Illness Prevention standard. That settlement included a memorandum of understanding in which Cal OSHA is required to investigate any reports by UFW staff of non-compliance found among agricultural employers. UFW is now sending representatives to fields under the guise of educational outreach to workers on heat illness prevention. They have been active in the Fresno region. Employers are advised that UFW representatives have NO RIGHT to enter your fields, unless they have filed their Notice of Intent and if access has been granted by the ALRB. The grower would have to receive a copy of the notice. Without such notice, UFW representatives should be asked to immediately leave your premises. Click here for a copy of the questionnaire UFW reps are asking employees to complete. It seeks information regarding employer compliance with the standard. It might be used as evidence against the employer for a violation of the rules. Please train all workers to tell any visitors they must wait to talk to the supervisor. And train all supervisors to check all visitors for identification. For Cal OSHA and other enforcement agencies, the supervisor should advise the government agent to wait while the supervisor calls the designated person (safety/HR/Employer) authorized to allow visitor access to the field. All non-authorized visitors, including UFW and CRLA representatives should be respectfully directed to leave the private property.

More comments from HR Mobile Services, Inc.:

Your best defense is good compliance.  Make sure you have plenty of COOL water available, with disposable cups if you use Igloos.  Make sure you have someone refilling the buckets regularly and that they have ice to keep it cool. You must have adequate shade and seating for your employees who are outside and under HIGH HEAT situations.  You must institute the “buddy system”, your supervisors need to monitor all employees hourly, and more frequent breaks are needed.  Employees are allowed cool-down periods also.  New employees must be monitored and oriented to the high heat for their first 2 weeks at work, to allow them to adapt.

If you have any questions, you may contact your loss prevention specialist at HR Mobile Services, Inc.

Governor Brown signs more Worker’s Rights bills

Beginning January 1, 2014, employers cannot fire an employee who is a victim or domestic violence, stalking or sexual assault. Employers are also directed to make a “reasonable” effort to protect victims at the workplace.

This also means you must allow them time off of work to attend court dates in these cases.

On another bill the governor signed, employers cannot retaliate against workers who protest unfair work conditions. However, you can protect yourself with proper policies in place and adhering to your policies. As long as you apply your policies consistently and fairly to all, you will be in good shape.