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October 2012, Volume 18, Number 4

California: Heat Bills, QCEW, FELS

Heat. Since 2005, when there were four farm worker deaths linked to heat-stress and California adopted heat-stress regulations, there have been a total of 14 farm worker deaths linked to heat-related causes. There were no heat-related farm worker deaths in 2009 and 2010, and one in 2011.

Nonetheless, the California Legislature approved AB 2346, the Farm Worker Safety Act of 2012, to require water and shade to be available to farm workers at all times regardless of temperature. Farm workers could sue employers under "a private right of action" if they repeatedly failed to abide by heat rules. Farmers would be jointly liable for violations of heat-stress regulations by farm labor contractors who bring workers to their farms.

Another bill approved by the Legislature, AB 2676, raises the fine for repeatedly failing to provide sufficient shade and water from $1,000 to $10,000. Farmers complained that they could become "repeat offenders" under AB 2676 simply by using a FLC who was a repeat offender to obtain workers. Once deemed a repeat offender under AB 2676, there is no way to remove the label.

Governor Jerry Brown vetoed both heat-safety bills, saying: "I believe enforcement of our heat standards can be improved, [but] I am not convinced that creating a new crime -- and a crime that applies only to one group of employers -- is the answer. Instead, we should continue to enforce our stringent standards for the benefit of all workers in all industries."

On October 2, 2012, a 51-year old farm worker employed by Dole Fresh Vegetables died of a heart attack while harvesting lettuce in 94-degree heat in the Salinas Valley.

Brown signed AB 1675, which created a new fine of up to $50,000 for farm labor contractors who fail to obtain a license from the state Labor Commissioner and comply with employment laws that apply to farm labor contractors. Current law requires FLCs to be licensed, but the state must prosecute unlicensed FLCs for committing criminal misdemeanors. AB 1675 allows the imposition of fines on unlicensed FLCs, with the money deposited in the Farmworker Remedial Account used to pay back wages to workers when FLCs go bankrupt or otherwise do not pay their employees as required.

The California Legislature did not approve AB 1313, which would have required overtime pay for farm workers after eight hours a day and 40 a week, down from the current 10-60 standard. Governor Arnold Schwarzenegger vetoed a similar overtime-for-farm workers bill in 2010.

Public Citizen, which joined the UFW in a suit against Cal-OSHA, petitioned DOL's Occupational Safety and Health Administration in September 2011 to request a national heat-stress regulation. Public Citizen said there were 523 worker deaths and 43,454 serious injuries resulting from extreme heat exposure since 1992. DOL denied the petition in July 2012, saying that its current regulations adequately protect workers from heat stress. California, Minnesota and Washington have heat stress standards for farm and other outdoor workers.

The California Legislature approved AB 889 to require the state Department of Industrial Relations by January 1, 2014 to adopt regulations governing the working conditions, including overtime pay and meal and rest periods, of domestic workers such as in-home health care providers, housekeepers and child care providers. Governor Jerry Brown, citing "consequences both unknown and unintended," vetoed AB 889.

Greenfield farm labor contractor Zavala Farms and Salvador Zavala Chavez were charged in October 2012 with failing to pay the state?s $8 minimum wage to over 150 workers. The California Labor Commissioner sought $1.3 million in unpaid wages, overtime and penalties for the affected workers.

CRLA. The inspector general of the Legal Services Corporation is seeking documents from the California Rural Legal Assistance to determine if CRLA unlawfully solicited clients and engaged in lobbying and political activity. A trial judge in November 2011 ordered CRLA to turn over the requested documents. CRLA appealed to the US Court of Appeals for the DC Circuit, which is considering CRLA's argument that turning over the documents to the inspector general would violate attorney-client confidentiality.

CRLA said it served almost 50,000 people in 2012 from its 22 offices around the state, opening 6,000 housing and labor cases that dealt primarily with violations of fair-housing laws and unpaid wages.

The LSC inspector general received a complaint in 2005 asserting that CRLA was focusing on "impact work" rather than providing day-to-day legal services for the poor. The government sued CRLA in March 2007 after it refused to turn over documents covering activities between 2003 and 2005 so that the IG could determine if CRLA was engaged in prohibited activities, including the "solicitation of clients, serving undocumented clients, working fee-generating cases and failing to provide basic legal assistance to a variety of demographic groups in need."

QCEW. California has required since 1978 that all employers who pay an employee more than $100 in quarterly wages to pay unemployment insurance taxes on worker earnings. Employers or establishments report the wages paid during each quarter and employment during the pay period that includes the 12th of the month.

The Quarterly Census of Agriculture and Wages (ES 202) allows estimates of average, peak and trough employment by commodity and county. For example, in 2011, an average 16,700 establishments in NAICS 11 agriculture, forestry and fisheries employed an average 389,500 workers and paid them $10 billion, or an average $490 a week.

Average employment is a measure of the number of year-round job slots, not the number of farm workers. During the June and September peaks, farm worker employment exceeds the average for the year. The number of individuals who do farm work for wages sometime during the year is even larger because some farm workers are employed only a short time and may not show up in the QCEW (although their wages are included).

In 2011, agricultural employment in California averaged 389,500, with a peak of 452,800 in June and a second peak of 449,600 in September and a low of 311,700 in January. The peak-trough ratio was almost 1.5, meaning that 50 percent more workers were employed in June than in January. Earlier studies suggest that there are two to three unique workers for each year-round job slot on farms.

Average weekly wages peaked at $525 a week during the fourth quarter and were about $450 a week during the first quarter.

FELS. The Farm Employers Labor Service conducts an annual wage survey through 10 agricultural associations. The 2012 survey reported that the average wage of "general labor two" was about $9.50 an hour (31 farms), rising to $10.10 for "general labor one" (over 100 farms reporting wages paid to workers with more experience). Most job titles had hourly wages of $10 to $13. For example, milkers were paid an average $10.10, pruners $10.80, line irrigators $11.10, and tractor driver two (less experienced) $11.10. Monthly salaries ranged from $2,400 for equipment operator to $2,700 for milkers (eight farms).

Almost half of the respondents used contractors to obtain workers, and they paid an average 40 percent of their labor expenses via contractors.

Benefits were more common for year-round than seasonal workers on the 171 responding farms. Almost half of respondents provided health insurance to year-round workers (including 40 percent for employees and their families), two-thirds provided vacation pay, and over half provided paid holidays, which averaged eight days a year. Almost half of the respondents had some kind of profit-sharing or bonus pay plan for year-round employees and a quarter provided housing and pension benefits.

Only four percent of farms offered seasonal workers health insurance (three percent for employees and family members), four percent offered vacation pay, and 10 percent provided paid holidays, which averaged five days a year. About seven percent of respondents had some kind of profit-sharing or bonus pay plan for seasonal employees, four percent provided housing, and two percent provided pension benefits.

Workers' Compensation. California employers paid $16.2 billion in workers' compensation premiums in 2011. The Workers' Compensation Bureau approved a 12.6 percent rate increase for employers in August 2012 and predicted that employer costs would continue to increase unless there were changes in benefits for injured workers.

Negotiations between employers and unions in summer 2012 aimed to reduce administrative, legal and medical costs enough to increase permanent disability benefits without raising employer costs. Analysts attribute rising costs to injured workers obtaining out-of-network medical treatment at a high cost.

SB 863, signed into law in September 2012, changes how benefits are calculated for injured workers, creates a binding arbitration process to resolve coverage disputes, and eliminates coverage for conditions that often lead to lawsuits, including insomnia and mental health problems.

Turkey producer Zacky Farms filed for bankruptcy protection in October 2012, citing the high cost of corn and soybean feed. The Fresno and Stockton-based firm employs about 1,000 workers to generate about $145 million in annual sales. Zacky hopes to reorganize and stay in business.