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.
Due to the recent signing of AB1513 there are a lot of people very nervous about Piece Rate pay and the new rules. Please not the article below and then I will add more information below the article. Also, as a reminder, Minimum wage goes to $10 per hour beginning January 1, 2016 in California.
UFW Distributes Minimum Wage and Piece-Rate Leaflet
Article Courtesy of: Rob Roy, President and Counsel, Ventura County Agricultural Association
Please find a leaflet that is being left on employee’s vehicles at worksites or along public roads by representatives of the United Farm Workers of America, AFL-CIO (UFW).
The leaflet seeks to inform agricultural employees as to whether they have heard about the “new wage law.” They also claim that “thanks to the UFW, we have a new law that protects wages for farm workers that work by piece rate.”
The leaflet goes on to say that effective January 1, 2016, it is required that each employee is paid for their non-productive time (e.g., travel time between fields, training, exercises, etc.) based upon the minimum wage. It also states that it is required that your employer allow you to take paid rest periods even though you work by piece rate based upon the average hourly rate earned.
Before December 15, 2016, the leaflet requests that if your employer has not given you retroactive pay, you should demand it for the last four years the employer failed to pay. It goes on to state that you could be eligible for $8 more per day, up to $48 per week.
Lastly, the leaflet asks employees to remember not to sign documents that waive their right to this money. This last reference is to retroactive release agreements between employers and employees to cover retroactive wages not paid such as non-productive time, rest or heat recovery periods or overtime.
There are several misstatements in this leaflet. For example: (1) The UFW was not a party to the negotiation process; (2) Workers cannot demand unpaid wages beyond three years unless they are part of a class action lawsuit with a cause of action for restitution under the California Business and Professions Code; (3) There is no law that currently requires an employer to pay retroactive non-productive time and rest periods. However, AB 1513, which becomes effective on January 1, 2016, permits employers to voluntarily make such payments to avoid potential class action lawsuits.
It should be noted that these leaflets may be passed out with Notices of Intent to Take Access by UFW organizers to your workplace. If the UFW files a valid Notice of Intent to Take Access and files it with the ALRB, they will be permitted to take access to your business operations during three specified periods in the workday. During such periods, they may be able to distribute such leaflets and speak with your employees concerning its content.
Do not attempt to restrain UFW representatives in passing out leaflets to your employees during lawful access. Also, do not question your employees about what the UFW representatives discussed during the access periods.
If UFW organizers are accessing private property to put the leaflets on employee vehicles, you may intercede and inform the organizers that they are on private property, they are trespassing, and ask them to remove the leaflets. To enforce your demand, you should take a photo of the individual placing the leaflet, as well as his/her car and license plate.
If they persist in not leaving your private property, contact the local police or sheriff’s office.
AB 1513 was written to address the issue of unpaid rest periods, which, by law, should be paid. Here is the problem….when an employee is working by piece rate, they are not paid when they are “resting” so the court said the employer must establish an hourly rate to pay the employee when they are not picking fruit or whatever the job is. You cannot establish just a minimum wage for this time because it is not an incentive to take a rest break for less than you are making when you work. So, they created a formula that involves taking the gross amount paid for a week, divided by the hours worked minus the 10 minute breaks and meal periods time. That gives you the hourly rate when they are working. This is the hourly rate you use to pay the rest breaks on a separate line on their pay stub. We strongly suggest that you meet with your attorney and develop a plan for paying any employees who fall into this category.
There is also a ‘safe-harbor” time set up to pay back pay if you owe it, without incurring penalties. This could save you thousands of dollars and again, it is worth a discussion with a good labor attorney to protect your rights.
You may also contact HR Mobile Services, Inc. for a general discussion of this issue before you speak to your attorney. Just give us a call or email.