presented at Robert J. Cabral Agricultural CenterStockton CAApril 13, 2015

byCarl Borden, Associate CounselCalif. Farm Bureau Federation & Farm Employers Labor Service

Topics Paid Sick Leave The Devolution of Piece-Rate

Compensation Law in California Getting Workers from a Farm Labor

Contractor AB 60 Driver’s License Issues

Paid Sick Leave(PSL)

Assembly Bill 1522 Author: Lorena Gonzalez (D-San Diego) Signed into law: September 10, 2014

January 1, 2015 But:

Use by an employee of PSL is delayed to 7/1/15. So too, according to a DLSE FAQ, is an

employee’s entitlement to accrue PSL▪ Despite the provision that “[a]n employee shall accrue

paid sick days … beginning at the commencement of employment or the operative date of this article, whichever is later.”

Leaving only the duties to post a PSL notice and give a revised WTP disclosure by 1/1/15.

All employers with employees in California will have to offer PSL—no exceptions.

All employees are covered, except Those covered by a CBA with certain

provisions. Providers of in-home supportive services. Airline flight-deck or cabin-crew members.

Two Methods Accrual Upfront or Advance

An employee working on or after 7/1/15 in California for at least 30 days within a year of beginning employment will accrue PSL at a rate of 1 hour for every 30 hours worked.

Hours of service for accrual purposes are counted starting on the first day of employment.

Overtime-exempt professional, executive or managerial employees are deemed to work 40 hours per week.

Employee is entitled to use PSL beginning on the 90th day of employment.

Employee may use PSL as it is accrued.

Employee determines amount of PSL to use.

An employer may not require an employee to provide a substitute as a condition of using PSL.

Employer may Set a reasonable minimum increment (not to

exceed 2 hours) for PSL use.▪ DLSE FAQ: For partial days, your employer can

require you to take at least two hours of leave…. Limit use of PSL to 24 hours or 3 days in each

year of employment. Limit total accrual of PSL to 48 hours or 6 days▪ provided that an employee’s rights to accrue and use PSL under this

section are not otherwise limited.▪ Does this mean PSL use can’t also be limited to 24

hrs/3 days?

An employee may choose to use the greater of the 2 limits (i.e., 3 days or 24 hours).

Example 1 Employee would have otherwise worked 10

hours on each of 3 days. Employee may in a year of employment take

each 10-hour day as 1 of his 3 days of PSL▪ As long as he has at least 30 hours of PSL in

his PSL “bank.”

Example 2 Part-time employee works 6 hours a day. P/T employee may take in a year of

employment four 6-hour days of PSL, totaling 24 hours.

He isn’t limited to taking three 6-hour days. This seems consistent with the principle

that an employee may use PSL to cover only as many hours as he would have otherwise worked on that day.

Unused PSL need not be paid when employment ends. But such PSL must be reinstated for a

former employee who is rehired within 1 year.

And nothing stops an employee from using PSL in the last few days of employment.

According to a DLSE FAQ: Employee works only 60 days one year. Returns to the same employer within one

year and works another 60 days. Employer does not have to allow employee

to use PSL before working 90 days. But the PSL accrued in year 1 is restored to

employee upon return in year 2. Upon working 30 days in year 2, employee

has 90 days of employment and may start to use PSL.

An employer must grant PSL upon an employee’s oral or written request for Diagnosis, care or treatment of a health condition

of, or preventative care for, the employee or employee’s family member (child, parent, spouse, registered domestic partner, grandparent, grandchild, sibling) or

Seeking or receiving protection, medical attention, assistance, counseling or preventative measures related to the employee’s status as a victim of domestic violence, sexual assault or stalking.

No provision allows employer to require employee to submit documentation of need.

PSL use is paid at the employee’s hourly wage rate Unless in the 90 days of employment

before taking PSL the employee▪ Had different hourly pay rates▪ Was paid by commission or piece rate or▪ Was a nonexempt salaried employee. In any of those cases, the pay rate is

calculated by dividing the employee’s total wages (excluding OT pay) by the employee’s total hours worked in the full pay periods of those prior 90 days.

Instead of using the so-called accrual method with its accrual-rate, carryover and accrual-cap provisions, an employer may offer PSL on an advance or upfront basis.

Under this alternative, an employee receives 24 hours or three days of paid sick leave for each year of employment, calendar year or 12-month basis.

An employer may provide sick leave through its own plan or establish different plans for different categories of employees.

But the plan(s) must either Satisfy the law’s accrual, carryover, and

use requirements or The full amount of leave must be put

into an employee’s leave bank at the start of each year.

As of 1/1/15, an employer must Post in a conspicuous place this information

about the PSL mandate:▪ That an employee is entitled to accrue, request, and

use PSL;▪ The amount of PSL provided;▪ The terms of use of PSL;▪ That retaliation or discrimination against an employee

who requests and/or uses PSL or prohibited; and▪ That an employee has the right under the PSL law to

file with the Labor Commissioner a complaint against an employer who retaliates or discriminates against an employee.

As of 1/1/15, an employer must Give employees hired on or after 1/1/15

a revised version of the new-hire disclosure notice required by LC section 2810.5 that includes information about the requirements of the PSL law.

Notify employees hired before 1/1/15 of changes to terms and conditions of employment that relate to PSL within 7 days after the change.

DLSE has issued a template of both a poster and individual notice illustrating the proper information and format.

An employer need not use the DLSE documents, but documents used by an employer must convey the same information.

An employer must Provide an employee with written notice

that states the amount of PSL (or PTO leave the employer provides in lieu of PSL) available to an employee on either the employee’s itemized wage statement or in a separate writing.

Keep records of hours worked and PSL accrued for 3 years and make these records available to the Labor Commissioner for inspection.

An employer may not deny leave to or take adverse employment action against an employee seeking to use PSL.

The Labor Commissioner may order rein- statement, back pay, payment of sick days unlawfully withheld and administrative penalties.

As amended on 3/26: Eligibility: An employee must work for

the same employer for 30 or more days within a year from the start of employment.

An employer may use an accrual method other than providing 1 hour PSL per 30 hours worked, as long as an employee accrues at least 24 hours of PSL or PTO off by the 120th calendar day of employment, each calendar year, or each 12-month basis.

An employer may limit total accrual of PSL to 48 hours or 6 days▪ provided that an employee’s rights to accrue and

use PSL are not limited other than as allowed under this section.

The PSL pay rate for an employee who receives different hourly rates in the pay period when the PSL is taken is calculated in the same manner as the regular rate of pay for purposes of overtime premium pay.

DLSE FAQs dir.ca.gov/dlse/Paid_Sick_Leave.htm

Templates dir.ca.gov/DLSE/dlse.html Scroll down to “Labor Commissioner Posts Template

etc.”

The Devolution ofPiece-Rate

Compensation Law in California

Before the advent of minimum-wage (MW) laws, employers could compensate employees by paying for each piece produced, with no minimum pay guarantee based on hours worked.

Under MW laws, an employer must compensate an employee at no less than MW for all hours worked. An employee not producing enough

pieces to make MW for all hours worked must still be paid at no less than MW.

Under the Fair Labor Standards Act, an employee’s piece-rate (PR) earnings may be averaged over all hours worked—both productive and non-productive—in a workweek to determine whether MW is met.

PR earnings in excess of those needed to cover MW for piece-producing time (PPT) thus may be applied to cover the MW owed for non-piece-producing time (non-PPT).

• IWC orders, § 3(B): MW must be paid for all hours worked in the payroll period.

• IWC 3/7/47 meeting minutes: [T]he piece worker’s earnings for the entire day, including rest period time, must be not less than the required minimum wage.

DLSE used to allow averaging. To determine if employees paid by the

piece or commission are receiving the minimum wage, divide total earnings in the pay period by the total hours—ALL hours worked—in the pay period.▪ DLSE Manual (9/89) § 10.81

• DLSE’s acting chief counsel opined that CA law does not allow averaging. Op. Ltr. 2002.01.29.

DLSE Manual: An employee must be paid at least MW for hours worked during which the employer’s directions preclude the employee from earning PR compensation. § 47.7.

Example: Employer must pay at least MW for time spent by a PR employee in a meeting at the employer’s direction. § 47.7.1.

Hourly employees were not paid for certain nonproductive time (NPT), e.g., travel time.

Employer argued it hadn’t violated MW law because employees’ hourly wages for each workweek were high enough to cover their previously uncompensated NPT.

2nd DCA rejected use of FLSA averaging model to compute whether MW is met under CA law. Court: The minimum wage standard applies to

each hour worked by respondents for which they were not paid.

2nd DCA applied DLSE’s and Armenta’s “no-averaging” position to PR employees. Auto service techs paid PR for repairing

vehicles. Employer: PR earnings covered all of their hours

worked, including time spent waiting for vehicles to repair and doing other tasks at their employer’s direction.

Court: Techs should have been paid, in addition to their PR earnings, at least MW for their non-repair work time.

Court did not rule on “mandatory rest breaks.”

3rd DCA applies Armenta’s “no-averaging” position to PR employees’ rest periods. Truck drivers claimed their CBA’s PR

compensation system did not compensate them for rest periods.

Court: A piece-rate compensation formula that does not compensate separately for rest periods does not comply with CA MW law.

Court did not distinguish between rest periods taken at employer’s direction and those taken at employee’s discretion.▪ Exceeds DLSE position that MW is due where

employer’s directions preclude the employee from earning PR compensation.

CA Supreme Court denied employers’ requests for review in both Gonzalez and Bluford.

The Superior Court in every county must follow Gonzalez and Bluford.

Thus: Separate compensation at no less than

MW is due for a PR employee’s non-PPT

regardless of the amount ofthe employee’s PR earnings.

Maybe not! MW might be inadequate. Bluford noted: Rest periods are considered

hours worked and must be compensated. … Under the CA MW law, employees must be compensated for each hour worked at either the legal MW or the contractual hourly rate….

Employers’ legal counsel thus concluded that rest periods taken by PR employees must be compensated at MW or, if applicable, an hourly rate promised by their employer.

Labor Commissioner/DLSE: [T]he hourly rate payable to piece-rate employees during rest periods is the hourly piece-rate wage calculated by dividing the total weekly piece-rate earnings by the total hours of piece-rate work performed in the week. Memorandum dated Nov. 1, 2013, from Julie

A. Su, Labor Commissioner, et al., to DLSE Staff, p. 5.

Additional Compensation for Rest Periods taken by Piece-Rate Workers

Example: Piece-rate Employee works 40 hours, 5 days a week with two 10-minute rest periods taken on each workday, and earns $320 in a particular workweek

Total hours worked for the week = 40 hours

Total Length of Rest Periods Taken during the week: 100 minutes ( which is derived from two 10-minute rest period taken per day X 5 days a week)

100 minutes ÷ 60 (1 Hr) = 1.667 as total hours for rest period taken

Hours spent on making pieces : 40 hrs - 1.667 hrs = 38.333 hours

Rate of Pay for Rest Period taken: $320 (weekly piece amount made) ÷ 38.333 (hours spent on making pieces) =

$8.35 per hour

Additional compensation employer must pay for rest period taken : 8.35 x 1.667 hrs= $13.92

Total wages this piece-rate worker shall be paid: $320 (piece amount made) + $13.92 (payment for rest periods taken) = $333.92.

The LC bases her position on the provision in the rest-period section of the IWC orders that precludes any “deduction from wages” during an IWC-order rest period

[T]his provision contemplates that the wage rate being paid to the employee immediately prior to the rest break will continue to be paid not only after the rest break but during the rest break as well.

SB 1360 applies this “no deduction from wages” provision to cool-down rests mandated by Cal/OSHA’s Heat Illness Prevention standard.

While she may not as yet have opined on it, certainly the LC would take the position that cool-down rests taken by a PR employee must also be compensated at the employee’s average hourly piece-earning rate for the workweek in which they were taken.

Gonzalez and Bluford pose significant time-monitoring and time-recordkeeping problems for employers using traditional PR compensation plans.

How do you identify and accurately record non-PPT to ensure it is properly compensated and that you have records sufficient to prove it was compensated fully and correctly? You must do so to avoid or defend against

claims for non-payment or underpayment of wages.

While Gonzalez and Bluford did not touch on all of these, any on-the-clock time an employee is not producing pieces should be counted as non-PPT. Traveling between work sites Attending meetings (e.g., safety meetings) Attending job training Doing warm-up calisthenics Donning and doffing personal protective

equipment or protective clothing

Waiting for▪ The arrival of bins, boxes or other

containers in which harvested crops are placed▪ The repair or replacement of equipment

necessary to produce pieces▪ Weather or other environmental conditions

to change so that piece-production work can start or resume▪ A bin, bucket or box to be counted

Walking between a work station and rest area

Taking rest periods under an IWC order Taking cool-down breaks under

Cal/OSHA’s Heat Illness Prevention standard

Traditional PR Separately track PPT and non-PPT. Check that the employee’s PR earnings yield

at least MW for all PPT on that workday.▪ If they don’t, pay the difference so the

employee’s wages cover the MW due for that PPT.

In addition, pay the employee at least▪ MW for all non-PPT except for▪ IWC-order rest periods and Cal/OSHA HIP

cool-down rests: Consider paying average hourly piece-rate wage.

Pay premium overtime rates for hours worked over 10 in a workday or on the 7th consecutive workday worked in a workweek.

Not recommendedAn itemized wage statement must

show all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. Labor Code § 226, subd. (a)

An employer must keep accurate information of total hours worked in the payroll period and applicable rates of pay. IWC orders, § 7(A)(5)

Thus an employer must keep and report to an employee an accurate record of the total hours worked by the employee in each payroll period at each applicable rate of pay.

So an employer may not (over)estimate and pay at least MW for non-PPT. Rather: Non-PPT must be accurately

recorded. But even if non-PPT were to be

consistently overestimated and overpaid, an employer would have no records to prove that all non-PPT was counted and separately compensated. Solid records of non-PPT and separate

payment for it show compliance.

Pay an hourly wage of at least MW for each hour worked, plus an incentive bonus.

The per-piece rate under this approach is less than what the employer paid under a traditional PR plan. Because the employee’s base pay is being

guaranteed on an hourly basis, the price paid for each unit is less than under a traditional PR plan.

But bonuses can be set to produce a similar result.

Under a traditional PR plan, Employee A works 10 hours, earning $120 for filling 120 boxes at $1 per box.

Under a minimum HW+PB, Employee A is paid $9/hour for each hour worked, no matter what he is doing, plus an additional 25¢ for each box filled.

Total earnings for the day are also 120 10 hours x $9/hour = $90 120 boxes x 25¢ per box = $30 $90 + $30 = $120

Under the PB offered in this very simple example and factoring in the guaranteed HW, slower employees earn at a higher per-piece rate than faster employees. Example: Grossing $120 for producing 120 boxes

($90 + $30), Employee A earns at a rate of $1 per box ($120 ÷ 120 boxes)

Grossing $112.50 for producing 90 boxes ($90 + $22.50), Employee B earns at a rate of $1.25 per box ($112.50 ÷ 90 boxes)

Faster workers would view that result as unfair and cause them to grumble, protest or quit

To avoid that result, consider: Paying a bonus only to those employees

whose production exceeds a specified minimum number of units per hour

Setting production tiers, with higher per-unit bonus pay for each higher tier

You determine an employee must produce 10 boxes an hour to cover his employment cost Including producing at least a small profit for you

Producing only 10 boxes per hour means no bonus pay But the employee can keep his job because he is

meeting your minimum production standard You determine the fastest employee can

safely and satisfactorily produce 20 boxes per hour

You then set this compensation plan: An employee is paid $9 an hour while on the

clock In addition, an employee is paid a bonus

based on the employee’s total hours worked in a workday as follows:▪ 10 or fewer boxes per hour: No bonus▪ First Tier: 11 – 15 boxes per hour: $2 per box

for the 11th – 15th boxes on average per hour▪ Second Tier: More than 15 boxes per hour:

$2.20 per box over the 15th box on average per hour

In 10 hours worked, an employee who produces 100 boxes is paid $90 (90¢/box) 120 boxes is paid $130 ($90 + $40 First Tier bonus)

($1.08/box)▪ $2 x 2 First Tier boxes for each of the 10 hours = $40)

180 boxes is paid $256 ($90 + $100 First Tier bonus + $66 Second Tier Bonus ($1.42/box)▪ $2 x 5 First Tier boxes for each of the 10 hours =

$100▪ $2.20 x 3 Second Tier boxes for each of the 10 hours

= $66

No need to monitor, record and separately compensate for non-PPT

Eliminates claims for unpaid non-PPTEmployees earn MW (or some higher

promised amount) for every hour worked, regardless of whether they’re producing pieces, preparing to work, traveling from one field to another, doing some other non-piece-producing task or resting

The LC could assert that IWC-order rest periods and Cal/OSHA HIP cool-down rests must be additionally compensated by the employee’s average hourly production-bonus earnings for the workweek.

Employees are promised at least MW (or some higher rate) for all hours worked each day.

But a higher hourly rate will be paid for all hours worked if the employee meets a specified production goal.

Could have multiple tiersCould be applied on a crew basisBenefits

Simplicity Pure hourly rate clearly covers IWC-order

rest periods and HIP cool-down rests

Used by a Salinas Valley grower for its 2014 mixed-lettuce harvest employees.

Based on the average number of totes per hour produced by each harvester on a crew.

Could be used on an individual employee basis

To determine the average totes per hour per harvester: Divide total number of totes produced by the

crew the number of harvesters in the crew; then Divide that quotient by the total hours worked by

those harvesters.

Base pay was $9.50 for each hour worked on a workday when the crew’s per-member production averaged less than 18 totes/hour.

The rate would be bumped up to $9.70 per hour if the crew’s per-harvester production average for a workday was 18 totes per hour.

From there on up, by tenth-tote/hour/harvester increments, the hourly rate would rise, typically by increments of from two to four cents.

Exceptions: The hourly rate jumped by 27 ₵ at 22.0 totes/hour/harvester 47 ₵ at 26.0 totes/hour/harvester 68 ₵ at 30.0 totes/hour/harvester.

At the top end, each harvester’s hourly rate would be $14.40 if the average production was 31.0 totes/hour/harvester.

Totes/Hr Rate ($) Totes/Hr Rate ($) Totes/Hr Rate ($) Totes/Hr Rate ($) Totes/Hr Rate ($)<18 9.50 18.0 9.70 21.0 10.30 24.0 11.25 27.0 12.50 30.0 14.05 18.1 9.72 21.1 10.32 24.1 11.28 27.1 12.53 30.1 14.09 18.2 9.74 21.2 10.34 24.2 11.30 27.2 12.56 30.2 14.12 18.3 9.76 21.3 10.36 24.3 11.33 27.3 12.59 30.3 14.16 18.4 9.78 21.4 10.38 24.4 11.35 27.4 12.62 30.4 14.19 18.5 9.80 21.5 10.40 24.5 11.38 27.5 12.65 30.5 14.23 18.6 9.82 21.6 10.42 24.6 11.40 27.6 12.68 30.6 14.26 18.7 9.84 21.7 10.44 24.7 11.43 27.7 12.71 30.7 14.30 18.8 9.86 21.8 10.46 24.8 11.45 27.8 12.74 30.8 14.33 18.9 9.88 21.9 10.48 24.9 11.48 27.9 12.77 30.9 14.37 19.0 9.90 22.0 10.75 25.0 11.50 28.0 12.80 31.0 14.40 19.1 9.92 22.1 10.78 25.1 11.53 28.1 12.83 19.2 9.94 22.2 10.80 25.2 11.55 28.2 12.86 19.3 9.96 22.3 10.83 25.3 11.58 28.3 12.89 19.4 9.98 22.4 10.85 25.4 11.60 28.4 12.92 19.5 10.00 22.5 10.88 25.5 11.63 28.5 12.95 19.6 10.02 22.6 10.90 25.6 11.65 28.6 12.98 19.7 10.04 22.7 10.93 25.7 11.68 28.7 13.01 19.8 10.06 22.8 10.95 25.8 11.70 28.8 13.04 19.9 10.08 22.9 10.98 25.9 11.73 28.9 13.07 20.0 10.10 23.0 11.00 26.0 12.20 29.0 13.10 20.1 10.12 23.1 11.03 26.1 12.23 29.1 13.13 20.2 10.14 23.2 11.05 26.2 12.26 29.2 13.16 20.3 10.16 23.3 11.08 26.3 12.29 29.3 13.19 20.4 10.18 23.4 11.10 26.4 12.32 29.4 13.22 20.5 10.20 23.5 11.13 26.5 12.35 29.5 13.25 20.6 10.22 23.6 11.15 26.6 12.38 29.6 13.28 20.7 10.24 23.7 11.18 26.7 12.41 29.7 13.31 20.8 10.26 23.8 11.20 26.8 12.44 29.8 13.34 20.9 10.28 23.9 11.23 26.9 12.47 29.9 13.37

FLSA recap: Averaging of PR wages is allowed under the federal FLSA to determine whether MW is met in a workweek. Thus no separate pay for non-PPT is required

under the FLSA. But USDOL reportedly has been citing ag

employers under the Migrant and Seasonal Agricultural Worker Protection Act for not paying covered employees for their non-PPT!

USDOL rationale Ag employers must disclose in writing to

migrant ag workers upon recruitment and to seasonal ag workers upon request [t]he wage rates (including piece rates) to be paid (among other information).

Where the disclosure states▪ both a PR and an hourly rate, or▪ only a piece rate but the employer has

posted a required MW notice,USDOL asserts that hourly wages are

due (in addition to PR earnings) for hours worked during which the employer prevented employees from earning PR.

To help avoid this result, the disclosure should state that an employee’s PR earnings for a workweek cover all hours worked by the employee in that workweek. But it’s not yet clear whether USDOL will

accept this approach.

Getting Workers froma Farm Labor

Contractor (FLC)

Migrant & Seasonal Ag Worker Protection Act (MSPA)

A person (other than an ag employer, ag ass’n. or an employee of either) who, for money or other thing of value, performs any farm labor contracting activity. Farm labor contracting activity means

recruiting, soliciting, hiring, employing, furnishing or transporting any migrant or seasonal agricultural worker.

Agricultural employer owns or operates a farm, ranch, etc.

Contractor who performs for a fruit-grove owner all farming operations required before harvest is an ag employer, not an FLC (operates a farm).

A fruit-grove contractor is not exempt from federal FLC registration if engages in FLC activities for others and is not otherwise exempt▪ E.g., FLC activities performed only within

a 25-mile intrastate radius of FLC’s permanent residence for less than 13 weeks per year

Labor Code §§ 1682 – 1682.5A person

Who, for a fee, employs workers to render personal services in connection with the production of any farm products to, for or under the direction of a third person, or

Who recruits, solicits, supplies or hires workers on behalf of an employer engaged in the growing or producing of farm products, and who, for a fee, provides in connection therewith one or more of these services:▪ Furnishes board, lodging, or transportation

for them;▪ Supervises, times, checks, counts, weighs, or

otherwise directs or measures their work; or▪ Disburses wage payments to them.

A person who performs the services specified on the prior slide only within the scope of his employment by the employer on whose behalf he is so acting and not as an independent contractor is not an FLC.

In contrast to the USDOL under the federal MSPA, the DLSE regards as FLCs virtually all contractors who provide workers in performing farming operations for a fruit-grove or vineyard owner.

A day hauler is an FLC. A day hauler is a person▪ employed by an FLC to transport, or▪ who for a fee transports, by motor vehicle, workers to render personal services in connection with the production of any farm products to, for or under the direction of a third person.

Inspect FLC’s CA license; appears to be genuine?

Get a copy of the license. Keep it for at least 3 years after the end of the

contract.Verify license with DLSE’s verification unit.

Keep verification number for at least 4 years. Failure to verify: Aggrieved worker can sue the

grower for claims arising from violations committed by an unlicensed FLC (wages, housing, pesticides, transportation).

See the FLC’s current valid federal Certificate of Registration. Transportation authorized? (if

applicable) Housing authorized? (if applicable) Recommended: Get and keep a copy of

the certificate for at least 3 years.Keep for at least 4 years copies of

payroll records given to you by the FLC.

Have a written agreement with the FLC Specifying▪ Services FLC will provide▪ Compensation to be paid to FLC▪ That FLC is an independent contractor▪ That FLC will comply with all applicable laws &

regs Meeting the requirements of CA Labor Code §

2810 Requiring the FLC to have workers’ comp

insurance for workers provided by the FLC

Specifying that the FLC’s WC insurance satisfies any duty you may have to also have WC insurance for the FLC’s workers [LC § 3602, subd. (d)(1)]

Requiring the FLC to have▪ Comprehensive general liability insurance▪ Motor vehicle liability insurance

Directing the FLC to have certificates of those insurance coverages sent to you

Indemnifying you for losses and costs you sustain due to the performance or nonperformance of the FLC’s duties under the agreement or the law

Verify that Vehicles used by the FLC to transport

workers have a current CA vehicle inspection sticker

Vehicle operators have a valid operator’s license or permit

The FLC posts required notices and posters The FLC is federally registered (check with

USDOL WHD) The FLC is paying all wages owed to his

employees and employment taxes for them and has supporting records

Why do I need do these things? An FLC is an independent contractor, and as long as I use only a registered and licensed FLC, I’m not responsible for the FLC’s violations, right? No, it’s not that simple!

It’s fairly easy and common for a grower to be charged as and found to be a joint employer of the FLC’s employees.

Factors examined to determine if a grower and an FLC are joint employers of workers supplied by the FLC include Whether the grower has the power, either

alone or through control of the FLC, to direct, control, or supervise the workers or the work performed▪ Such control may be either direct or

indirect, taking into account the nature of the work performed and a reasonable degree of contract performance oversight and coordination with third parties

Whether the grower has the power, either alone or in addition to another employer, directly or indirectly, to hire or fire, modify the employment conditions, or determine the pay rates or the methods of wage payment for the workers

The degree of permanency and duration of the relationship of the grower and FLC, in the context of the agricultural activity at issue

The extent to which the services rendered by the workers are repetitive, rote tasks requiring skills acquired with relatively little training

Whether the activities performed by the workers are an integral part of the grower’s overall business operation

Whether the work is performed on the grower’s premises, rather than on premises owned or controlled by another business entity

Whether the grower undertakes responsibilities in relation to the workers that are commonly performed by employers, such as▪ Preparing or making payroll records▪ Preparing or issuing pay checks▪ Paying FICA taxes▪ Providing workers’ compensation insurance▪ Providing field sanitation facilities, housing or

transportation▪ Providing tools and equipment or materials

required for the job

A client employer has civil legal responsibility and liability for payment of wages or failure to secure workers’

compensation coverage by a labor contractor for workers

supplied by the labor contractor to the client employer.

Joint employment is not a consideration!

A client employer is a business entity with 25 or more workers, at least 6 of whom are provided by one

or more labor contractors to perform labor within the entity’s usual course of business.

A client employer may contract for remedies against a labor contractor for liability created by the contractor’s acts.

A labor contractor may contract for remedies against a client employer for liability created by the client employer’s acts.

A client employer may not shift its own legal duties or liabilities under workplace safety laws to a labor contractor.

AB 60 Driver’s License Issues

AB 60 required DMW by 2015 to issue a new type of driver’s license to otherwise qualified applicants who cannot prove lawful presence in the U.S.

Same as a regular driver’s license except: Front: FEDERAL LIMITS APPLY Back: This card is not acceptable for official

federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.

Is an AB 60 driver’s license a document that establishes identity for the purpose of the Form I-9 employment eligibility verification process?

What effect, if any, does the presentation to an employer by an employee of an AB 60 driver’s license have on the employee’s claim of employment eligibility?

Preliminary to the second question, does DHS regard an employer to whom an employee presents an AB 60 driver’s license as having constructive (if not actual) notice of the significance of that license— That is, that it is issued to persons who

cannot submit satisfactory proof of legal presence in the United States.

What do FEDERAL LIMITS APPLY and this card is not acceptable for official federal purposes mean anyway? Specifically, do they mean that the license

can’t be used as a Form I-9 List B identity document?

Probably not. That is, an AB 60 license probably does

qualify as a List B identity document. Here’s why:

Form I-9, List B, Item 1: Driver’s license or ID card issued by a

State … provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address.

An AB 60 driver’s license meets all of those requirements.

Thus it would seem to qualify as a document that establishes identity in the Form I-9 process.

USCIS Employer Handbook (M-274), p. 61: Some states may place notations on their

drivers’ licenses that state the card does not confirm employment authorization. For Form I-9 purposes, these drivers’ licenses, along with every other state’s, establish the identity of an employee. When presenting any driver’s license, the employee must also present a List C document that establishes employment authorization.

Definition of official purpose under the REAL ID Act and the implementing regulation In the Act itself: The term official purpose

includes but is not limited to▪ accessing Federal facilities,▪ boarding federally regulated commercial aircraft,▪ entering nuclear power plants, and▪ any other purposes that the Secretary shall

determine. The regulation limits the definition to only the

three named activities.

Maybe not. The additional words are to alert federal

officials that the license it is not an acceptable form of ID for any of the three specified purposes.

Federal agents are no doubt trained to recognize and know the significance of those words.

No such training requirement applies to an employer.

The additional words give an employer’s document reviewer no inherent indication that the license is anything other than a State-issued driver’s license that establishes identity.

In contrast, certain phrases may be included on types of documents generally valid to establish employment authorization to indicate that a particular document does not establish E/A.

That is not the case with the additional words on an AB 60 driver’s license.

An AB 60 license doesn’t automatically mean its holder is unlawfully present.

Example 1 (person always lawfully present) Her documents are lost or stolen. She gets an AB 60 license and then a Soc.

Sec. card. She applies for job and is hired. She uses AB 60 license for ID and SS card

for E/A.

Example 2 (person becomes lawfully present) Employee uses bogus green card for Form I-9. Years later, he gets an AB 60 driver’s license. He gets deferred action & E/A under DAPA. He presents to his employer his AB 60 driver’s

license to prove eligibility to drive a pickup truck. These examples mean that an employer

should not instantly conclude that an employee showing an AB 60 license isn’t E/A.

But an employee’s possession of an AB 60 license prompts the question of his E/A.

Constructive knowledge An employer’s failure to take reasonable steps

to resolve a discrepancy between an employee’s claim of E/A and credible information indicating otherwise is evidence the employer had constructive knowledge that an employment-ineligible employee wasn’t E/A.

Thus an employer should question the employee about the discrepancy.

AB 1660 made it a FEHA violation for an employer to Discriminate against a person for presenting

an AB 60 license.▪ Revised DFEH poster calls it a form of national

origin discrimination. Require a person to present a driver’s license

unless▪ Possessing a driver’s license is required by law

or▪ Is necessary to perform the duties of the

position.

Thus questioning an employee about the discrepancy, or discharging an employee who cannot adequately explain why he has an AB 60 license if he is truly employment eligible, could be argued as discrimination for presenting that license.

But AB 1660 did not alter an employer’s rights or obligations under the INA regarding obtaining documentation evidencing identity and E/A.

An action taken by an employer that is required by the INA is not a violation of law.

These latter provisions in AB 1660 should protect an employer by confirming that the employer’s actions to comply with this requirement of federal immigration law is not a violation of law. That is, it is not unlawful discrimination

under the FEHA.

QUESTIONS?