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As we head into 2018, agricultural companies should be mindful of a few laws and trends that are likely to affect their operations in the near future and going forward. 

AB 1066 – Phase In of Overtime for Farmworkers

For decades, agricultural employers in California were only required to pay overtime wages to farmworkers if they worked more than 10 hours in a single day or on the seventh consecutive day.  There was a general understanding that the 8 hour day/40 hour workweek model adopted in other industries was not particularly suited to the realities of agriculture, particularly given the brevity of the harvest season for most commodities.  That all changed, however, with the passage of AB 1066 in late 2016. 

As we head into 2018, it is critical that agricultural employers are prepared for the phasing in of AB 1066’s overtime requirements.  AB 1066 will ultimately require employers to pay agricultural workers overtime pay for working more than 8 hours in a day or 40 in a week and double pay for working more than 12 hours in a day.  Specifically, as detailed in the table below, starting in 2019 for larger employers the new legislation will lower the 10-hour-day threshold for overtime by a half an hour each year until it reaches the now standard 8-hour workday by 2022. This phase out of the overtime exemption is delayed by three years for employers of 25 or less employees. As a result, the new law will put California farmers at an even greater competitive disadvantage compared to the vast majority of other states who continue to exempt farmworkers from overtime requirements.  

26 or more employees

25 or less employees

Hours per day after which time-and-a-half pay owed 

Hours per week after which time-and-a-half pay owed 

2019

2022

9.5

55

2020

2023

9

50

2021

2024

8.5

45

2022

2025

8

40

 

 

 

 

 

 

 

 

 

 

Gig Economies – Independent Contractor Misclassification Lawsuits

Although not directly affecting the agricultural industry, the success of business like Uber and Lyft and the growth of "gig" economies will likely impact ag in a number of ways.  We have seen lawsuits dealing with the classification of workers of “gig”-type businesses.  Uber drivers filed yet another lawsuit last year in California for wage violations due to their alleged misclassification as independent contractors rather than employees.  Employees are entitled to different compensation and benefits such as overtime pay and meal and rest periods to which independent contractors are not.  The attention “gig” business are receiving are drawing more and more attention to the use of independent contractors by the legislature, federal and state agencies, and private attorneys.  Accordingly, agricultural employers who may utilize some number of independent contractors to fulfill certain labor needs should periodically examine and reevaluate their relationships with any independent contractors.  When it comes to the independent contractor classification, the key test is control – the more an employer dictates exactly how a person does their job, the more likely the worker is an employee rather than an independent contractor.  There is no danger in classifying a worker as an employee, as it is the favored classification and there are no penalties for misclassifying in that direction. 

Cal/OSHA Increased Penalties

In 2016, the federal Occupational Safety and Health Administration (“OSHA”) announced increased civil penalties for violation of OSHA standards, with penalties to be readjusted annually to account for inflation.  Cal/OSHA was provided six months to make sure their penalty structure was at least as effective as OSHA’s.  Cal/OSHA failed to meet that deadline, although it did pass a law (SB 96) to increase Cal/OSHA penalties.  Effective September 14, 2017, Cal/OSHA civil monetary penalties were increased to match the OSHA 2016 levels.  The maximum penalty for general or regulatory violations was raised from $7,000 to $12,471. The maximum penalty for serious/willful did not change, as it already exceeded OSHA’s 2016 rate.  Finally, the penalty for willful or repeated violations was increased to $124,709.  Cal/OSHA’s penalties will increase again in January 2018 as the federal OSHA rates increase.  However, those amounts have not yet been announced.

Given the uptick in penalties, we would not be surprised to see increased activity by Cal/OSHA.  Any workplace that has moving equipment, forklifts, Harvest Pro machines, and field-pack machines should ensure that all such machinery is carefully guarded and that workers have been properly trained on the servicing an repairing of such moving machinery and Lack-out/Tag-out procedures. We highly recommend that employers invite Cal/OSHA consultation into the workplace for a free safety consultation or ask their workers’ compensation carriers to perform such consultations.

AB 1732 Clarification on Single-User Restrooms

Beginning March 1, 2017, AB 1732 required all single-user toilet facilities in any business establishment, place of public accommodation, or government agency to be identified as all-gender toilet facilities.  Following the AB 1732’s passage, there was uncertainty in the agricultural industry as to what was required in the field, as AB 1732 appeared to directly conflict with a Cal/OSHA regulation, which requires separate toilets in the field for each gender. In response, the Department of Industrial Relations (“DIR”) released a FAQ that aligned with Cal/OSHA’s requirements and clarified that AB 1732 only applies to single-user restrooms with “flush” toilets, meaning that non-flush toilets (i.e. “porta-potties”) which are commonly used in the field are not subject to AB 1732’s “all-gender” decal requirement.  Therefore, employers with workers in the field should continue to comply with the applicable CAL/OSHA regulation requiring separate toilets for each gender.   However, any single-use bathrooms with “flush” toilets must be properly identified and employers must ensure that employees of different genders and identities are permitted to use any single-use bathroom.  

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