PARTNERS

By Vicky Boyd

With the start of 2020 came a number of new state labor laws and regulations and updates to existing rules that will impact agricultural employers and their workers.

Bryan Little, CEO of Farm Employee Labor Services (FELS), recently explained many of the new employer requirements as well as possible labor legislation in the pipeline to a packed conference room at San Joaquin Farm Bureau’s office in Stockton.

Among the laws and regulations he highlighted were Assembly Bill 5, which reclassifies several job categories to employee from freelance or contract; minimum wage and overtime changes; wildfire smoke emergency regulations; and pending night worker in agriculture rules.

Of those, SJFB Second Vice President Jake Samuel said he found AB 5 the most confusing.

“A lot of the farm labor contractors, pesticide, irrigation and custom work we use is going to be up in the air,” said Samuel, who attended the labor law update. “All of these other bills, like the #me-too and discrimination in the work place, it’s hard to keep up with all of that. I like to think we’re in front of it. But it’s always that one little thing that you do that one time that will bite you.”

AB 5 Worker status: employees and independent contractors

Under AB 5, also referred to as the Dynamex decision, workers are presumed to be employees unless the hiring entity meets all three conditions – known as the ABC test. (A) The contractor is free from the entity’s control and direction. (B) The contracted work performed is outside the hiring entity’s usual course of business, and (C) the contractor is customarily engaged in an established trade or business that’s the same as the work being performed.

“The ABC test looks simple, but it isn’t,” Little said. “Under AB 5, you have to meet all three of these conditions to be a contractor instead of an employee. The problem is there haven’t been many cases that demonstrate what this means in the real world.”

A number of professions, such as doctor, dentist, lawyer, accountant, stockbroker, engineer and real estate agent, are exempt from meeting the requirements. Based on an initial review of the legislation, Little said he didn’t believe that farm labor contractors, human relations contractors or safety training companies would fall under the new law.

But an owner-operator of a truck who is hauling ag goods becomes more problematic, he said.

“AB 5 makes it easier for a disgruntled person to sue, claiming misclassification,” Little said. “AB 5 opens up a whole new audience for that type of litigation. Does it impose a new general rule to reclassify your (custom) pesticide applicator as your employee? Should they really be 1099 contractors rather than hired as a part-time employee? I wish I could tell you with some degree of clarity, but we still don’t know yet.”

The Department of Industry Relations has asked for $17.5 million in the governor’s proposed 2020-21 budget to hire 130 additional staff to enforce AB 5, he said.

A number of groups – including Uber, Postmates delivery service and the California Trucking Association – have filed lawsuits challenging AB 5 and seeking to block it. U.S. District Judge Roger Benitez recently granted the trucking group a preliminary injunction, exempting the California trucking industry until the suit is settled.

The California Legislature also is expected to revisit AB 5 this session to modify some parts of the bill, which was originally carried by Assemblywoman Lorena Gonzalez, D-San Diego, Little said.

Minimum wage and overtime

Beginning Jan. 1, the hourly minimum wage increased to $13 per hour for larger employers with 26 or more workers and to $12 for smaller employers with 25 or fewer workers. For larger employers, time and a half overtime will kick in after nine hours worked in a day or 50 hours in a week.

For the smaller employers, overtime kicks in after 10 hours worked in a day, and there is no weekly overtime threshold.

Where it may become complicated, Little said, is determining whether you’re a small or large employer.

According to the Department of Industrial Relations, exempt supervisors, trainees, part-timers, minors and farm labor contractor workers all must be counted when making the determination.

“If their name appears on the payroll, they count,” he said.

If you jump from a small employer to a large one during peak season, you’d not only have to pay the higher minimum wage but you’d also have to comply with the overtime rules for larger employers.

The threshold is by pay period, so if you’re only a large employer during peak harvest season, for example, you technically could return to paying $12 per hour afterward.

“But ask yourself if that’s a good idea,” Little said. “How do you explain that to your employees that you’re cutting $1 per hour?”

Wildfire Smoke Regulation

The emergency smoke regulation under which the state is currently operating stems from the 2017 and 2018 wildfires.

The nonprofit group, WorkSafe: Safety, Health & Justice for Workers, petitioned the California Occupational Safety and Health Administration Standards Board to adopt smoke-related worker protection measures in late 2018. The board took action July 30, 2019.

The emergency regulation was adopted once again in December 2019 and can be adopted one more time as a 90-day emergency regulation. It also can be adopted as a permanent regulation.

“They released a draft of the permanent regulations that I thought was a bit problematic, and other people thought so too,” Little said.

The regulation kicks in when the Air Quality Index reaches 150 for PM 2.5 particulates or is forecasted to reach that level during the workday. It does not apply to other pollutants, such as ozone, which can reach high levels during hot, sunny days in the San Joaquin Valley.

The preferred alternate would be to move the workers inside or to a different location with better air quality. If those options aren’t possible, the employer can provide N95 respirators, which are the simple face masks available online or at big-box home improvement stores.

“You’re to offer and encourage use of the N95 respirator, but fit tests and medical evaluations are not required,” Little said, adding workers don’t have to shave facial hair, either. Employers also will have to provide a brief pre-work training each day during smoky conditions about why wearing the mask is important.

Little recommended starting to stockpile the respirators now because outlets quickly run out when a wildfire erupts nearby. During hot, dusty days, one employee may go through two to three masks per shift.

If the AQI reaches or exceeds 300 for PM 2.5, as it did during the 2018 wildfires, the regulation effectively means all outdoor work will have to stop, said Little, also chief operating officer of the Farm Employers Labor Service.

Information sheets about the smoke regulation as well as other references are available in front of the firewall on the FELS website, https://www.fels.net.

Night workers in ag regulation

The latest version of the night workers in ag draft rule would require employers provide high-visibility clothing to workers, have nightly safety meetings before work and add taillights to all self-propelled equipment working at night if they don’t already have them.

The focus of the rule, titled “Outdoor Agricultural Operations During Hours of Darkness,” has been on lighting around workers. Rounds of negotiations finally settled on allowing employers to use combinations of hands-free portable personal lighting – headlamps – and area lighting for most tasks to reach the illumination goal of 5 candle-feet measured at 30 inches above the ground. The employer would have to furnish the headlamps and batteries.

If workers are using sharp instruments, such as knives for cutting grape clusters, then the lighting requirement is 10 candle-feet. A candle-foot is about 1,000 lumens.

The Cal-OSHA Standards Board has until Feb. 20 to consider the proposed regulations for adoption. If the board meets that deadline, they would become effective no later than July 1.