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July 2021, Volume 27, Number 3

California: Covid, FLCs

Cal/OSHA in June 2021 announced that masks are not required in outdoor workplaces regardless of the vaccination status of employees. Employers should know the vaccination status of employees, provide N95 masks, and impose distancing and barriers in the event of a Covid outbreak.

Farmers opposed efforts of the California Labor and Workforce Development Agency to cooperate with NGOs including CRLA to educate farm workers about Covid safety by visiting workers at work. Many employers expressed reluctance to have NGO staff accompany Cal/OSHA and ALRB agents under the $3 million COVID-19 Statewide Agriculture and Farmworker Education Program.

SB 83, enacted in April 2021, requires California hospitality and business services employers to rehire qualified former employees who were laid off due to Covid before hiring new employees. SB 83, in effect through 2024, protects laid-off employees who were employed at least six months in the 12 months before January 1, 2020. AB 3216, which would have required employers to rehire workers laid off during a state of emergency based on seniority, was vetoed. Employers opposed both bills.

The city of Coachella required employers of essential workers to pay them an additional $4 an hour for at least 120 days after February 10, 2021. Farmers sued, arguing that they may be forced to harvest crops at a loss due to the extra $4-an-hour-pay requirement.

Hot temperatures renewed concern about heat stress for farm and other outdoor workers. California and Minnesota have relatively comprehensive heat-safety regulations, while Oregon and Washington adopted emergency heat-safety regulations in 2021. The Asunción Valdivia Heat Illness and Fatality Prevention Act, introduced in March 2021, would require the Occupational Safety and Health Administration (OSHA) to develop enforceable standards to protect workers in high-heat environments by introducing paid breaks in cool spaces, access to water, and emergency response procedures for workers with heat-related illness.

Santa Maria in 2019 enacted an ordinance that requires agricultural employers to obtain city permits to house H-2A workers in areas with single-family homes. Federal and state agencies investigated in 2020 and found that the city ordinance was discriminating against people from a foreign country since almost all H-2A visa holders are Mexicans. A threatened $400,000 fine prompted Santa Maria to repeal the ordinance.

In spring 2020, there were many predictions of farm labor shortages and higher prices for fresh vegetables due to farm workers who live in crowded housing working while sick and spreading Covid. These predictions were largely wrong; there were neither labor shortages nor produce price spikes in 2020.

Some media reports highlighted the efforts of large growers to vaccinate their employees, including the 30,000 vaccinations arranged with the help of the Grower-Shipper Association of Central California. By some estimates, a higher share of farm workers than other residents are vaccinated in many agricultural areas. Federal, state and private funds were spent to reserve housing for sick farm workers that was not used because there were few farm workers with Covid and those who are sick preferred to recover at home.

Senator Melissa Hurtado (D-Sanger) wants the state to give priority to farm workers in the $35 million Universal Basic Income pilot program, citing “drought, extreme heat, the pandemic, and overtime pay rules” as reasons why farm workers need UBI. The pilot program requires local governments to provide matching funds, and allows them to establish eligibility requirements for payments. Hurtado also called for Supplemental Guaranteed Income for farm workers who work six rather than eight hours on days when the temperature exceeds 100F.

West Coast Tomato Growers produces pole-ripened tomatoes (Oceanside Pole) in Oceanside, California with the help of 500 H-2A workers; the company plants a million plants on 750 acres that are picked up to 20 times during the summer months. H-2A workers are paid the AEWR of $16.05 an hour in 2021 and expected to pick 15 to 20 totes (25-pounds) of tomatoes an hour during the peak of the season, and 10 totes an hour at the beginning and end of the season. Packers are expected to pack 60 to 70 boxes an hour.

The Singh family leased land from the Camp Pendleton Marine base to grow tomatoes between 1940 and 2011, when WCTG was formed to produce on non-base land.

The owners of several Greenfield-based FLCs, including PFL Contracting Inc, Future Ag Management Inc, and Future Harvesters and Packers Inc, underreported their payroll by over $17 million to save $1.4 million in workers compensation premiums. An injured worker filed a worker’s comp claim in July 2016 that exposed the underreporting. Between July 2014 and August 2017, the FLCs paid $43 million in wages, but paid WC premiums on $23 million in wages.

California will require sheepherders to be paid overtime wages after January 1, 2022, raising sheepherder wages from $2,134 a month in 2019 to $4,381 a month in 2022 for employers with more than 26 employees; smaller employers have until 2025 to pay the $4,381 a month wage. The California Wool Growers Association says that the state has 3,500 sheep farms with 550,000 sheep, and that most of the 375 herders are H-2A workers from Peru. California is the leading producer of wool and the second-leading producer of lamb meat.

AB 1066 assumes that herders who stay with their sheep work 24/7 or 168 hours a week. The CWGA wants the state to assume that herders work a 48-hour week, which would mean eight hours a week of overtime wages. DOL assumes a 48-hour week when setting the AEWR for sheepherders.

The California Farmer in 1854 asked where the state’s farmers could find farm workers, asserting “Americans will not become [farm workers]…In the south, this is the work of the slave. But California is a free state. Then where shall the laborers be found…The Chinese…are to be to California what the African has been to the south. This is the decree of the Almighty, and man cannot stop it.” Pp87-8

Quoted in House Committee on the Judiciary. Subcommittee on Immigration. 1995. Agricultural guest worker programs. December 14.

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