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October 2014, Volume 20, Number 4

California: Sick Leave, Cal-OSHA, FLCs

SB 1522, the Healthy Workplaces, Healthy Families Act of 2014, was signed into law in September 2014. SB 1522 requires employers to give employees at least three sick days a year and will cover 6.5 million private and public sector employees in California beginning July 1, 2015. Employees accrue paid sick days at the rate of one hour for every 30 hours worked, so that a full-time worker employed 40 hours a week would accrue 8.6 days of paid sick leave a year.

Employees who are not covered by a collective bargaining agreement accrue three days of paid sick leave after being employed for 90 days to use to care for themselves or a family member such as a child, spouse, domestic partner, grandparent, grandchild or sibling.

Cal/OSHA. California's Division of Occupational Safety and Health has enforced workplace health and safety laws in the state since 1973. In July 2006, after several farm workers died of heat-related illnesses, Cal/OSHA adopted the first Heat Illness Prevention Standards to prevent heat-related work illnesses, including mandatory training of supervisors and workers about heat illness, minimum levels of water and shade for workers, and rest breaks for workers.

In summer 2014, Cal/OSHA proposed tighter regulations to protect workers employed outdoors, including a requirement that water be within 400 feet of workers, that shade for all workers be available within 700 feet when temperatures exceed 80 degrees, and that workers have 10-minute recovery periods every two hours when temperatures exceed 80 degrees. Currently farmers must provide shade for a quarter of workers.

Cal-OSHA reported 19 confirmed heat-related work fatalities in California since 2007, including two in 2011, three in 2012 and four in 2013, and 293 work-related heat illnesses during the same seven-year period. Between 2007 and 2013, agriculture and construction each accounted for six heat-related work fatalities, but there were more work-related heat illnesses in agriculture, 52, than in the next leading industries, firefighting with 27 and construction with 26.

Garrett Brown, special assistant to ex-Cal/OSHA chief Ellen Widess, created a web site critical of the agency, Inside Cal/OSHA Brown argues that Cal/OSHA had 170 field inspectors as of the end of 2013, which he considers too few since there are 250 California Fish & Game wardens to protect wildlife. Cal/OSHA reports that workplace injuries are declining, which Brown thinks may be deceiving.

FLCs. California in 2003 amended its Labor Code (Section 2810) to require contracts "with a construction, farm labor, garment, janitorial, security guard, or warehouse contractor" to "include funds sufficient to allow the contractor to comply with all applicable local, state, and federal laws or regulations governing the labor or services to be provided." The purpose of the law is to improve labor law compliance among contractors who often hire immigrant and low-skilled workers to perform work for the entity making the contract.

Businesses that use contractors, including farm employers, can protect themselves from charges that they aided non-compliance by contractors with written contracts that include 10 elements, including the name and license number of the contractor, proof that the contractor has workers compensation insurance, vehicle IDs if contractors transport workers, the number of workers and wages paid, and the commission paid to the contractor.

AB 1897, effective January 1, 2015, makes employers with 25 or more workers jointly liable with the contractors they use to ensure that workers receive the wages due them and workers compensation benefits. "Client employers" will be jointly liable with FLCs for compliance with wage and workers compensation laws.

SB 477, effective January 1, 2016, prohibits foreign labor contractors from charging workers recruitment fees, requires contractors to disclose employment conditions to workers, requires labor contractors to register with the California Labor Commissioner, and prohibits employers from using unregistered contractors.

SB 1087, approved by the Legislature and signed into law by Governor Brown, requires FLCs, their supervisors and their employees to attend an hour of sexual harassment training and imposes more penalties if contractors or supervisors commit sexual harassment against employees. Persons found by a court or administrative process to have committed sexual harassment would be barred for three years from obtaining contractor licenses.

Critics of SB 1087 note that few farm workers file sexual harassment charges with the US Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing. Proponents say that sexual harassment is widespread in agriculture, and that farm workers are afraid to complain.

The Napa Valley Grapegrowers' Farmworker Foundation graduated 65 farm workers from the second year of its two-night-a-week and four-week English classes in July 2014. The NVGFF said that half of the workers who participated had employers who compensated them while they took English classes, and three-fourths of employers planned to recognize graduates with wage increases, promotions or gift certificates.

Drakes Bay Oyster in October 2014 agreed to cease its operations in the Point Reyes National Seashore by the end of 2014. The $1.5 million-a-year operation in Drakes Estero was purchased in 2004 by the Lunny family, which knew that the lease to operate ended in 2012. However, the Lunny family assumed that the lease would be renewed, and enlisted allies to resist the US Department of the Interior. The US Supreme Court refused to hear the Lunny's appeal of the shutdown order.

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