affirmative action in order to remedy an unfair labor practice, it is well established that the ALRB’s authority is not unlimited. The Board’s authority has always been remedial; i.e., to correct the alleged bad acts of the employer and make the employee whole for losses incurred due to the employer’s actions, such as back pay and reinstatement of employment. In making its order to impose civil penalties under Labor Code section 226.8, the ALRB determined it has authority to impose Labor Code section 226.8 civil penalties for the following reasons: 1. Section 226.8 provides for the assessment of penalties by any of the LWDA’s departments, divisions, commissions, boards, or agencies; 2. The imposition of penalties under section 226.8 are obligatory in that it provides that if a determination of willful misclassification is made, “the person or employer shall be subject to a civil penalty” (emphasis added); 3. It is the ALRB’s position that the determination that there has been a Labor Code section 226.8 violation is a standalone violation which it may enforce aside from unfair labor practices case and that the ALRB’s limitation to remedial remedies is limited to remedies under unfair labor practice violations; 4. As a footnote, the Board opined that, even in unfair labor practice cases, the Board has authority to assess civil penalties as a remedial (nonpunitive) remedy because the “primary purpose [of civil penalties] is to secure obedience to statutes and regulations imposed to assure important public policy objectives.” What this means for employers Although the Board looked at a multitude of reasons in finding a willful misclassification, it nonetheless held that misclassification simply due to deficient paystubs is enough to find an unfair labor practice. What other non-affirmative actions of an employer constitute misclassification may differ in each case, but for now, employers must ensure they are properly classifying employees and issuing legally compliant paystubs to their workers as required under Labor Code section 226. This decision is also a huge reminder that the Board will take every inch of “authority” that it feels entitled to, including imposing penalties as punishment for unfair labor practices, which is a radical deviation from the Act, Board authority and years of Board precedent. Cinagro has announced that it will be appealing the imposition of civil penalties under Labor Code section 226.8 as the Board lacks authority to impose such penalties, which are punitive rather than remedial or compensatory. WG will keep you posted on the outcome of the appeal on this issue. The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 for individual responses to questions or concerns regarding any given situation.
Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications)
1. Publication Title
2. Publication Number
3. Filing Date
Western Grower & Shipper
0 0 4 3
3 7 9 9
08/23/2022
_
4. Issue Frequency
5. Number of Issues Published Annually 6. Annual Subscription Price
$18.00
Bi-Monthly
6
Contact Person Dave Puglia
7. Complete Mailing Address of Known Office of Publication (Not printer) (Street, city, county, state, and ZIP+4 ® )
15525 Sand Canyon Avenue Irvine, Orange County, CA 92618
Telephone (Include area code)
(949) 863-1000
8. Complete Mailing Address of Headquarters or General Business Office of Publisher (Not printer)
15525 Sand Canyon Avenue Irvine, Orange County, CA 92618
9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor (Do not leave blank) Publisher (Name and complete mailing address)
Editor (Name and complete mailing address) Tim Linden 17 Loma Linda Court, Orinda, CA 94563 Dave Puglia 15525 Sand Canyon Avenue, Irvine, CA 92618
Managing Editor (Name and complete mailing address)
10. Owner (Do not leave blank. If the publication is owned by a corporation, give the name and address of the corporation immediately followed by the names and addresses of all stockholders owning or holding 1 percent or more of the total amount of stock. If not owned by a corporation, give the names and addresses of the individual owners. If owned by a partnership or other unincorporated firm, give its name and address as well as those of each individual owner. If the publication is published by a nonprofit organization, give its name and address.) Full Name Complete Mailing Address
15525 Sand Canyon Avenue, Irvine, CA 92618
Western Growers Service Corp.
11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities. If none, check box None Full Name Complete Mailing Address
12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) (Check one) The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes: Has Not Changed During Preceding 12 Months Has Changed During Preceding 12 Months (Publisher must submit explanation of change with this statement) PS Form 3526 , July 2014 [Page 1 of 4 (see instructions page 4)] PSN: 7530-01-000-9931
PRIVACY NOTICE: See our privacy policy on www.usps.com.
13. Publication Title
14. Issue Date for Circulation Data Below
Western Grower & Shipper
09/01/2022
15. Extent and Nature of Circulation
Average No. Copies Each Issue During Preceding 12 Months
No. Copies of Single Issue Published Nearest to Filing Date
a. Total Number of Copies (Net press run)
(1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541 (Include paid distribution above nominal rate, advertiser’s proof copies, and exchange copies) Mailed In-County Paid Subscriptions Stated on PS Form 3541 (Include paid (2) distribution above nominal rate, advertiser’s proof copies, and exchange copies)
4271
4284
b. Paid
Circulation (By Mail and Outside the Mail)
0
0
Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, (3) Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS ®
0
0
(4) Paid Distribution by Other Classes of Mail Through the USPS (e.g., First-Class Mail ® )
9
11
Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications)
c. Total Paid Distribution [Sum of 15b (1), (2), (3), and (4)]
4280
4295
16. Electronic Copy Circulation
Average No. Copies Each Issue During Preceding 12 Months
No. Copies of Single Issue Published Nearest to Filing Date
d. Free or
(1) Free or Nominal Rate Outside-County Copies included on PS Form 3541
Nominal Rate Distribution (By Mail and Outside the Mail)
(2) Free or Nominal Rate In-County Copies Included on PS Form 3541
a. Paid Electronic Copies
(3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS (e.g., First-Class Mail)
4280
0
b. Total Paid Print Copies (Line 15c) + Paid Electronic Copies (Line 16a)
(4) Free or Nominal Rate Distribution Outside the Mail (Carriers or other means)
105 4385
95 4380
c. Total Print Distribution (Line 15f) + Paid Electronic Copies (Line 16a)
e. Total Free or Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4)) d. Percent Paid (Both Print & Electronic Copies) (16b divided by 16c Í 100)
105
95
f. Total Distribution (Sum of 15c and 15e)
4385
4380
I certify that 50% of all my distributed copies (electronic and print) are paid above a nominal price.
✔
g. Copies not Distributed (See Instructions to Publishers #4 (page #3)) 17. Publication of Statement of Ownership
62
42
If the publication is a general publication, publication of this statement is required. Will be printed
Publication not required.
✔
h. Total (Sum of 15f and g)
4447
4422
9/15/22
i. Percent Paid (15c divided by 15f times 100) 18. Signature and Title of Editor, Publisher, Business Manager, or Owner in the ________________________ issue of this publication.
98%
98%
Date
* If you are claiming electronic copies, go to line 16 on page 3. If you are not claiming electronic copies, skip to line 17 on page 3.
09/01/2022
Editor
Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications) I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).
16. Electronic Copy Circulation
Average No. Copies Each Issue During Preceding 12 Months
No. Copies of Single Issue Published Nearest to Filing Date
a. Paid Electronic Copies
4280
0
b. Total Paid Print Copies (Line 15c) + Paid Electronic Copies (Line 16a)
4385
4380
c. Total Print Distribution (Line 15f) + Paid Electronic Copies (Line 16a)
d. Percent Paid (Both Print & Electronic Copies) (16b divided by 16c Í 100)
PS Form 3526, July 2014 (Page 2 of 4)
I certify that 50% of all my distributed copies (electronic and print) are paid above a nominal price.
✔
17. Publication of Statement of Ownership
If the publication is a general publication, publication of this statement is required. Will be printed
Publication not required.
✔
9/15/22
in the ________________________ issue of this publication.
18. Signature and Title of Editor, Publisher, Business Manager, or Owner
Date
09/01/2022
Editor
I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).
PS Form 3526, July 2014 (Page 3 of 4)
PRIVACY NOTICE: See our privacy policy on www.usps.com.
30
SEPTEMBER | OCTOBER 2022
Western Grower & Shipper | www.wga.com
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