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April 2012 Volume 18 Number 2
California: Heat, FLCs, Overtime
Heat. The UFW is urging enactment of AB 2346, a bill that would allow farm workers to sue employers to enforce heat-safety regulations. Supporters liken the sue-the-employer provisions for failing to provide water and shade to "a citizen's arrest."<< back
The regulations require farm employers to: 1) make available at least a quart of water per worker per hour; 2) provide access to shade for at least five minutes for workers suffering from heat illness; 3) train workers and their supervisors about heat illness; and 4) have a written plan to deal with workers suffering from heat illness.
California enacted heat-safety regulations as an emergency measure in 2005 and made them permanent in 2006. The UFW sued the California Division of Occupational Safety and Health (Cal-OSHA) in 2009, alleging that the state was not enforcing heat-safety regulations. Cal-OSHA conducted 1,070 heat-related inspections in 2009, and reported only one-heat-related farm worker death between 2009 and 2011, compared with six between 2005 and 2008.
The UFW says that Cal-OSHA investigated only a third of the 75 heat-related complaints it submitted in 2011 and issued only three citations. Ellen Widess of the state Division of Occupational Safety and Health (Cal/OSHA) promised stepped up enforcement of state labor laws in summer 2012, including heat-stress regulations that require training, water and shade.
Farm Labor Contractors (FLCs). Sun Pacific Farming of Bakersfield laid off 2,100 workers employed to produce table grapes and kiwis in March 2012 and said it will hire workers as needed via labor contractors. Sun Pacific, whose acreage has been declining, said that 70 percent of its seasonal workers are provided by FLCs, and that the change means that 100 percent will be supplied by FLCs.
Sun World International in March 2011 made a similar change from direct hiring to obtaining seasonal workers via FLCs.
The state Division of Labor Standards Enforcement in February 2012 announced the creation of a Criminal Investigation Unit to investigate cases of workers' compensation violations, theft of labor, payment of wages with bounced checks, unlicensed farm labor contractors and garment manufacturers, child labor violations, and kickbacks on public works projects.
Overtime. California requires employers to pay 1.5 times the usual wage to farm workers employed more than 10 hours a day or 60 hours a week. AB 1313 would make overtime regulation in agriculture the same as that in the nonfarm economy, that is, require premium pay after eight hours a day or 40 hours a week.
Federal labor law does not require premium pay for overtime in agriculture. Three states, Hawaii, Maryland, and Minnesota, require premium pay after farm workers are employed above a weekly hours limit, but not for overtime on a daily basis. Governor Arnold Schwarzenegger in July 2010 vetoed a similar bill that would have removed special overtime regulations for agriculture.
FLSA. DOL invoked the "hot goods" enforcement provisions of the Fair Labor Standards Act to block the shipment of strawberries that were picked by FLC Jorge Castro Farms at Pezzini Berry Farms in Salinas in Fall 2011. Pezzini sold the berries to Cal Pacific Specialty Foods, where DOL held up shipments of about 10,000 pounds of berries until FLC Castro paid back wages to the pickers and penalties for allowing a 13-year old to pick during school hours.
The back wages arose from FLC Jorge Castro charging workers for housing and failing to disclose the charges at the time of recruitment.
California Rural Legal Assistance sued Calandri SonRise Farms of Lancaster, California in April 2012, alleging that Calandri failed to pay minimum wages to onion harvesters. The CRLA suit, which seeks class-action status, alleges that "Workers were made to live in squalid, makeshift camps on the edges of the onion fields, [they] ? resorted to bathing in irrigation reservoirs and other unsafe places because their employer-provided housing lacked running water or adequate toilet facilities." Calandri denied the charges.