Legal Issues Gain Complexity Matching Modern Times
By Tim Linden I t’s a complicated world with far more nuances than a generation ago, which has led to a matching of complexity in the legal issues that agricultural firms face. Battles with farmworker unions dominated the ag legal scene a generation ago. Today, the issues that companies deal with are
Resnick. “The industry is currently coordinating its response to the challenges as several lawsuits have been filed.” Mike Saqui of The Saqui Law Group was even more blunt, calling it the number one issue facing ag employers and argued that it will be a bigger problem than the fight over non-productive time (NPT) that the industry faced several years ago. That battle resulted in California legislation
wide ranging with 2018 bringing particular focus on liability when fires occur, wage and hour issues, and whether company-provided travel time should be compensated. Many standard business issues such as patent and trademark work were also in the forefront, while dealing with union activity fell down the list of concerns in terms of frequency of action. Jason Resnick, vice president and general counsel for Western Growers, said wage and hour issues continue to be a major focus of every employer as employee advocates continually look for missteps that can turn into class action lawsuits.
(AB1513) that mandated compensation to piece rate employees for rest and recovery periods and other non-productive time. In August, Saqui and several other attorneys held an informational session
in Salinas, CA, explaining the issue and rallying support around the fight against it. Coalescing under the banner California Farmers for Fairness, the group’s flyer noted: “This is a real threat for all ag employers as it will increase employer liability, require a significant increase in compensation, and impact meals, breaks and overtime while decreasing employee production just as new overtime requirements and minimum wage increases are about to take effect. Any settlement or legislative fix will open the floodgates to increased litigation as predatory attorneys will move quickly to file claims against ag employers throughout California.” The group noted that hikes in minimum wage are already causing ag employers’ labor costs to skyrocket and urged all ag employers and farm labor contractors to defend the industry against this challenge. While the Royal Packing decision would seem to have settled the law where it comes to resident employees that have the option of getting to work in many different ways, the H-2A laborers might be able to make a different argument. Terry O’Connor, who is an ag labor law attorney with Noland, Hamerly Etienne & Hoss in Monterey, CA, said attorneys for the H-2A workers could argue that those employees have no other options and must take the company-provided transportation to work. Resnick would not concede that point but he does caution employers to examine their own circumstances when making decisions with regard to paying for travel time. He said employers should give special attention to H-2A workers and also workers that must travel great distances and spend multiples hours in a company bus because a field is many miles away. In another area of legal concern, O’Connor said “waiting time”
LEGAL ISSUES FACING AG
Companies have to be diligent in their adherence to regulations as even inadvertent activity dealing with overtime, lunch breaks and rest periods can turn into very costly mistakes. He said an area of particular concern this year is compensation for travel time when a firm provides the transportation. Resnick explained that the California Supreme Court addressed the issue in an ag-specific case in 2000 titled Morillion vs. Royal Packing Co. “Basically the court determined that if the transportation is voluntary it is not compensable,” he said. “But if it is mandatory, the workers must be compensated for their travel time.” In that case, Royal Packing required workers to assemble at a meeting place and then board a bus that would take them to the field to begin their work. Royal Packing did not want cars in the field so they mandated this transportation mode. The court ruled that the workers would be on the clock beginning at the time they were required to be at the meeting place. “The industry has been guided by that precedent ever since,” Resnick said. Most companies offer transportation to the field as a courtesy but do not require workers to use the company-provided bus ride. Resnick said typically the buses have a notice posted that informs the workers that riding the bus is voluntary and not mandatory. That concept is currently being challenged by worker advocates, especially when it comes to H-2A workers, in which case the providing of transportation to the workplace is mandated by the Department of Labor regulations governing the temporary worker program. “We are in the early stages of this issue,” said
18 Western Grower & Shipper | www.wga.com SEPTEMBER | OCTOBER 2018
Made with FlippingBook flipbook maker