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July 2010, Volume 16, Number 3

California: Overtime, DLSE, Joint Liability

Senate majority leader Dean Florez wants farm workers to have the same overtime wages as nonfarm workers, 1.5 times their usual wage for hours worked after eight a day or 40 a week. SB 1121 would remove the 1941 exemption that allows California farm employers to limit overtime pay to farm workers employed more than 10 hours a day or 60 hours a week. California is the only state that requires overtime for farm workers.

Farm employers oppose SB 1211, estimating that it would raise their labor costs by 10 percent. It is hard to predict overtime costs. During the week of July 12-18, 2009, farm employers reported to USDA that the 170,000 workers they employed directly worked an average 46 hours a week, significantly more than the 40 hours worked by the total 875,000 farm workers hired directly by US farmers in July 2009 (additional workers are brought to farms by FLCs). The UFW has not taken a position on SB 1211.

Florez previously authored state laws that required the installation of seat belts in vans that carry farm workers, increased health and housing services for migrants, tightened licensing standards for farm labor contractors, and imposed restrictions on pesticides to prevent drift.

DLSE. In 2009, California's Department of Labor Standards Enforcement inspected 9,000 workplaces and issued 4,500 citations for violations of state labor laws. Almost half of the citations issued were for failure to have workers' compensation insurance, and a quarter were for failing to issue itemized wage statements to workers.

About 10 percent of the DLSE inspections were in agriculture, 950, but a lower share of citations, 200, were issued to farm employers. Over half of the agricultural citations were for failure to provide workers' compensation, a quarter were for paying workers in cash, and an eighth were for the employment of under-age workers.

The US Equal Employment Opportunity Commission in June 2010 sued Madera-based Mid-Valley Farm Labor Services for allowing a male supervisor to sexually harass and retaliate against two female workers employed in a Sonoma County vineyard in Spring 2008. According to the EEOC, when the women refused his advances, they were fired.

Joint Liability. The California Supreme Court, in Martinez vs Combs, ruled May 20, 2010 that corporate buyers and officers of farm produce cannot be held liable if one of their farmer-suppliers goes bankrupt and does not pay wages to farm workers, even if the corporate buyer is integrated into the farming operation by making loans to the farm employer and buying the produce.

Some 180 berry pickers employed by Isidro Munoz were not paid in May 2000. The workers sued Munoz, who went bankrupt, as well as Apio Inc. and Combs Distribution, the buyers of Munoz's berries. Munoz signed contracts that are standard in the berry industry for farmer-sharecroppers. Apio advanced money to Munoz, who grew the berries, harvested them, and delivered them to Apio, which had "an undisputed . . . right of entry" onto Munoz's land to inspect the strawberries "at any time."

Munoz said he did not understand the contract he signed because it was in English. Munoz leased land from Apio and grew berries under Apio supervision? field staff told him when and how much to pick, and pickers put berries into Apio boxes. Unpaid pickers sued Munoz as well as Apio and Combs, asserting that Apio and Combs "suffered or permitted" berry pickers to work because they knew Munoz would have to hire berry pickers to fulfill his contracts with them.

The California Supreme Court ruled that Apio and Combs were not joint employers because they supervised the crop but not the workers; Munoz was deemed their sole employer. Munoz, the Court stressed, had the exclusive power to set wages and to hire and fire berry pickers. The Supreme Court ruled that even though Apio and Combs field representatives visited Munoz's fields, their presence did not create an employment relationship.

Munoz harvested berries for several buyers. Some speculated that, if Munoz grew berries for only one buyer and went bankrupt, the Supreme Court may have found a joint employer relationship, as in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989).

Housing. The Bureau of Indian Affairs tried to close the Desert Mobile Home Park (Duroville) on the Torres-Martinez Desert Cahuilla Indian Reservation in Thermal, California, but a federal judge in April 2009 allowed Duroville to remain open for two years while the 300 mobile homes that house up to 4,000 Mexican-born farm workers was renovated. Duroville opened in 1989, when Riverside county cracked down on substandard housing.

About two-thirds of Duroville residents are Purepechas, indigenous people from Michoacan, Mexico; many are unauthorized. Most earn less than $10,000 a year picking fruit and vegetables in the Coachella Valley. Riverside County is building 800 new housing units, including 400 at the Mountain View Estates near Duroville, for low-income residents.

News reports in May 2010 reported that some San Joaquin Valley farm workers were living in abandoned homes and camping in orchards that had been removed? low prices and less water contributed to the removal of some orchards and vineyards.

Manuel Cunha of the Nisei Farmers League said that there were too many farm workers: "Now that the construction industry is tremendously down, those workers (are) looking for jobs in agriculture. So you have two groups competing for agriculture jobs, but they aren't there."

Napa county operates three farm labor centers with 180 beds. They struggled to attract farm worker tenants despite subsidized rents, paying $12 a day for room and board when the total cost was almost $30 a day.

David Kelly, "Illegal trailer park grows into a community," Los Angeles Times, June 5, 2010. Marc Lifsher, "California lawmaker hopes to win one more for farmworkers," Los Angeles Times, June 3, 2010. Jacob Simas, "Down and Out in California's Fields," New America Media, May 12, 2010.

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