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July 2012, Volume 18, Number 3

California: Heat, UI

Heat. The Farm Worker Safety Act (AB 2346) would allow farm workers to sue employers for failure to provide shade and water and make farmers responsible for violations of heat-stress regulations committed by farm labor contractors on their property. AB 2346, which would apply only to farm workers, requires shade within 200 feet of workers, drinking water within 10 feet of workers, and mandatory paid 15-minute breaks every two hours when the temperature is 80 or above.

The California Assembly approved AB 2346, which was sponsored by the UFW, on a 41-27 vote on May 31, 2012. Supporters liken the sue-the-employer provisions of AB 2346 for failing to provide water and shade to "citizen arrests."

Opponents, who say that many of the provisions of AB 2346 are unrealistic, say that the bill is an effort to show that the UFW is relevant. The Farm Bureau complained that AB 2346 would require farm employers to have sufficient cold water for all workers available at the beginning of the day (rather than replenishing the water as it was drunk), require the provision of shade facilities regardless of the outside temperature within 200 feet of workers, and require employees suffering from heat-stress to be transported in air-conditioned vehicles.

There were 13 heat-related farm worker fatalities between 2005 and 2011. On June 1, 2012, a 56-year-old farm worker collapsed and died in Coalinga after pruning pomegranate trees in 100-degree temperatures.

California enacted heat-safety regulations as an emergency measure in 2005, made them permanent in 2006, and strengthened them in 2010. They require all employers with outdoor employees to: 1) make available at least a quart of water per worker per hour; 2) provide access to shade for at least five minutes to workers suffering from heat illness, and ensure that shade is available for up to a fourth of the workers when the temperature exceeds 85 degrees; 3) train workers and their supervisors about heat illness and monitor new hires; and 4) have a written plan to deal with workers suffering from heat illness.

The UFW and NGO Public Counsel are suing Cal-OSHA for failure to enforce the 2006 heat-safety regulations. The suit alleges "a severe and pervasive pattern of not enforcing" the heat-safety regulations, citing 140 cases where inspectors discovered violations but did not issue citations. The California Court of Appeal in December 2011 refused to declare the current regulation inadequate or order the state to provide more protection to prevent heat-related illnesses.

DOL's Occupational Safety and Health Administration, which reported 4,000 heat illnesses and 40 heat-related deaths across the US in 2010, promised a campaign in 2012 to emphasize "water, rest, shade" for outdoor workers in summer. The major targets of heat-safety regulations are construction and farm workers, but OSHA plans to target other outdoor workers as well.

California Rural Legal Assistance in June 2013 sued Camarillo-based Chuy and Sons Labor Inc, alleging that two workers who quit picking bell peppers in Riverside county when the temperature was 111 were not allowed to return to work the next day.

UI. Farm employers pay less into unemployment insurance than jobless farm workers collect in UI benefits, even though half of farm workers are believed to be unauthorized and not eligible for UI benefits. There are several potential explanations for the gap, including fraud.

In May 2012, five men in the Yuba City area were arrested for UI fraud. They became farm labor contractors beginning in 1989 and sold wage credits to local workers. Workers with these wage credits then claimed UI or disability benefits from the Employment Development Department, prompting an investigation when many of the older workers reported very high piece-rate earnings. EDD estimates that there may have been 2,000 fraudulent UI and DI claims for over $5 million in 2011.

Sexual Harassment. Giumarra Vineyards agreed to spend $350,000 to settle an EEOC suit that involved a woman who was harassed by a co-worker and was fired after she and several colleagues complained to managers. The women were Tarascan (P'urhepecha) and Zapotec Indians from southern Mexico employed by Giumarra's Edison facility. Giumarra, which employs a peak 3,000 workers to pick and pack table grapes, will provide training in the language of its workers and├┐promised no retaliation for complaining of harassment.

Human Rights Watch released a report in May 2012 asserting that female farm workers are routinely abused by their supervisors and co-workers. The report concluded that "some farmworker women see these abuses as an unavoidable condition of agricultural work." HRW said that sexual harassment arose from the "imbalance of power" on farms.

HRW based its report on interviews with 52 farm workers and 110 attorneys, social service providers, law enforcement officials and others. Estimates of the share of female farm workers who suffer abuse range from 50 to 80 percent.

HRW reported 1.4 million crop workers and 429,000 livestock workers. It estimated that 72 percent of the crop workers were foreign-born and a quarter were women.

Breaks. The California Supreme Court in April 2012 ruled that employers must offer workers legally mandated lunch and rest breaks, but employers are not required to ensure that workers take them. A class-action suit was filed against Brinker International, the parent company of Chili's and other restaurants, in 2004 on behalf of 59,000 employees, some of whom complained of missed breaks.

California employees are entitled to 10 minutes of paid rest time per four hours worked, and those who work more than five hours a day are normally entitled to a 30-minute unpaid meal break. The California Division of Labor Standards Enforcement (DLSE) sued Brinker in 2002 for not providing required rest breaks and reached a $10 million settlement. The employee class-action suit was certified in 2006 but set aside in 2008, when an appeals court ruled that the Brinker suit dealt more with individual issues than a class action.

The California Supreme Court ruled that, before dismissing the employee class-action suit, courts must first determine whether employers provided required breaks. The Brinker decision holds that employers must offer rest breaks, but they do not have to ensure that employees take them. Worker attorneys said that they can show that over 95 percent of Brinker employees did not get rest breaks.

Landscaping. DOL in June 2012 launched an enforcement initiative in Southern California's landscaping industry. DOL says that large landscape developers and contractors increasingly subcontract work to smaller companies that often further subcontract the work of landscape construction and maintenance, lawn services, and tree planting and trimming services.

Competition between these layers of contractors holds down wages and results in some immigrant workers not being paid the minimum wage or overtime. DOL found violations of the FLSA at three-fourths of the landscaping companies that were investigated around the US in FY10 and FY11.