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January 2020, Volume 26, Number 1

California: H-2A Workers, Laws

Delano, California-based Munger Brothers, the largest US blueberry producer, agreed in a November 2019 settlement to pay $2.5 million to H-2A workers who were underpaid and to pay $1 million in civil money penalties because Munger preferred H-2A workers over US workers and put the H-2A workers in substandard housing. An H-2A worker died in 2017 at a Munger farm in Sumas, Washington, leading to a $150,000 fine for not giving workers sufficient meal and rest breaks. Munger is barred from the H-2A program for three years, and is not allowed to use labor contractors to obtain H-2A workers for three years.

Rancho del Mar Inc., Better Produce Inc., and C.J.J. Farming Inc recruited H-2A workers in Oaxaca to pick strawberries. Some of the workers alleged that their transportation was not reimbursed. A federal judge allowed the workers to proceed with a class-action suit against the employers.

A Mexican H-2A worker employed by Elkhorn Packing and working at D'Arrigo Brothers in 2016 and 2017 alleged that he was underpaid. A federal judge in October 2019 ruled that, even though Elkhorn H-2A workers signed agreements to arbitrate any employment disputes, the Elkhorn arbitration agreements were invalid because they were signed at the end of a working day in a hotel parking lot.

Fresh Harvest, the largest H-2A user in California, is adding 112 beds in seven 2,000-square-foot buildings that will each house 16 workers and have kitchen and dining areas. The current El Rancho Toro farm worker housing complex on the 40-acre site has 200 beds, and the expansion will house over 300 farm workers. Tanimura and Antle built farm worker housing in Spreckels, as did the Nunes Brothers in Boronda.

Beginning January 1, 2020, California employers may not require their employees to sign mandatory arbitration agreements. An estimated two-thirds of California employers, and 55 percent of US employers, require new hires to sign mandatory arbitration agreements.

California's minimum wage rose to $13 an hour for employers with 26 or more workers January 1, 2020. The minimum wage will continue rising by $1 an hour each January 1 until reaching $15 an hour January 1, 2022, after which the minimum wage will rise with the cost of living.

AB 1897, effective in 2015, reinforces the liability of employers for violations of labor law committed by the labor contractors they use to obtain workers, especially if the client employer knows or should know that the contractor is not receiving sufficient funds to comply with labor laws. Inventory Professionals provided 64 workers to take stock at 300 Grocery Outlet and Trader Joe's stores, and did not pay them overtime wages even though they worked 65 hours a week. Grocery Outlet and Trader Joe's are each liable for $826,000 due to contractor Inventory's violations.

Most California farm workers are unauthorized. As they age, farm workers have more health problems, including diabetes, high blood pressure and obesity. Farm work has long been considered more dangerous than many other jobs because of farm machinery and chemical usage.

California is considering regulations to govern farm work at night, including mandating high-visibility safety vests and requiring front- and rear-facing lights on tractors and other equipment. The state is considering requiring light towers and battery-operated headlamps for workers.

AB 1783 requires farmers who receive state subsidies to build or refurbish housing used by H-2A guest workers to allow a affordable housing organization to manage the housing. AB 1783 also makes it easier for farmers to obtain permission to build up to 36 beds in a group quarters or 12 units designed for use by a single family or household on their land. Few farmers are likely to accept state subsidies for such housing, since many want to build dorms for H-2A workers.

Giacomazzi Dairy in Hanford, the oldest dairy west of the Rockies, went out of the dairy business in October 2019, blaming low milk prices. Giacomazzi is replacing cows with nut trees.

Raiteros are vans that offer transportation to and from the fields for $5 to $10 a day. A raitero with three vans each transporting seven workers and charging them $10 a day earns $210 a day or $1,260 a week in cash income. Some raiteros become unlicensed FLCs, offering to bring workers to a farm for $150 a day and giving the workers $100 a day, thus making money on both rides and work.

Calvans is an alternative form of farm worker transportation. Volunteer drivers are given vans that satisfy safety requirements, and charge riders for gas to get the workers to and from the fields. Some farm employers pay gas costs for their employees in order to attract workers.