5 Tips for California Agricultural Employers

Agricultural employers in California face unique workplace challenges due to the outdoor and seasonal nature of many jobs—but they still must comply with the state's stringent employment laws. Here are some ways that they can help ensure compliance and establish safe working conditions for employees.

1. Note Wage and Hour Rules

Agricultural employers may be particularly focused on wage and hour compliance right now because of upcoming changes to overtime rules, noted Alden Parker, an attorney with Fisher Phillips in Sacramento.

Most workers in California are entitled to overtime pay for hours worked beyond eight in a day and 40 in a week. Under the current law, however, farmworkers in the state are entitled to overtime pay only after working 10 hours in a day or 60 hours in a workweek. They are also exempt from federal overtime provisions under the Fair Labor Standards Act.

As a result of recent legislation, the exception for farmworkers will be phased out beginning in 2019, when most farmworkers will be entitled to overtime pay after working 9.5 hours in a day and 55 hours in a workweek. By January 2022, employers with at least 26 farmworkers will have to pay overtime in accordance to the standard state rules. Businesses with 25 or fewer employees, however, will have an additional three years.

Some wage and hour changes for farmworkers already took effect in 2017. For example, farmworkers are no longer exempt from certain state law requirements regarding wages, meal breaks and other working conditions.

[SHRM members-only toolkit: Complying with California Overtime Payment Law]

2. Look Out for Joint-Employer Issues

Since agricultural work can be seasonal, employers might use outside services to provide workers during the busy times, and those workers typically are not classified as employees, said Monique Ngo-Bonnici, an attorney with Winston & Strawn in Los Angeles. However, businesses might run into joint-employer issues if the service provider isn't following the applicable workplace rules.

For example, California Labor Code Section 2810 prohibits businesses from entering an agreement with a farm-labor contractor if they know or should know that the agreement doesn't include sufficient funds to pay workers in accordance with all the applicable labor laws.

Furthermore, certain businesses may share liability with labor providers for wage payment violations and failure to provide workers' compensation coverage if the work is performed within the usual course of the business and on the hiring entity's premises.

"Harvesting is certainly central to the business," Parker noted. So agricultural businesses should pay particular attention to this law.

"Make sure whoever you are partnering with to provide seasonal workers is reputable and properly vetted, and make sure they are following all the applicable laws," Ngo-Bonnici said.

3. Establish a Heat-Illness Prevention Program

In addition to California's standard meal and rest break requirements, special rules apply for employees who work outside. Providing heat breaks and potable water are essential requirements that everyone in the agricultural industry must understand, Parker said.

Ngo-Bonnici noted that multistate employers might not know that the rules are different in California. Specifically, the California Division of Occupational Safety and Health (Cal/OSHA) requires employers to take the following steps to prevent heat illness in outdoor workers:

• Provide training to workers about heat-illness prevention.
  
• Provide employees with four cups of water per hour and encourage them to drink it.
  
• Provide access to shade and encourage employees to rest for at least five minutes at a time when they feel the need to cool down.
  
• Create written compliance procedures in accordance with Cal/OSHA's Heat Illness Prevention Standard.
  

The California Department of Industrial Relations (DIR) cited a typical example of a violation in which inspectors found farmworkers harvesting crops in 90-degree weather without adequate shade, single-use drinking cups or hand-washing facilities. The employer was fined $24,500. Penalties can add up quickly. Employers might pay up to $25,000 for each serious health and safety violation.

4. Prepare for Sexual-Harassment Training

In light of the #MeToo movement, there have been quite a few bills making their way to the governor's desk that aim to curb workplace sexual harassment. For example, some lawmakers are pushing to expand mandatory sexual-harassment training to all workers at businesses with five or more employees. Currently, businesses with at least 50 employees must provide training to supervisory employees.

"In an industry like agriculture, that's a profound change," Parker said. There are generally just a few managers who oversee a lot of employees at a worksite, so the training would require more coordination and may result in significantly higher costs for employers, he added. Additionally, online training programs might not work in agriculture because the ability to train by computer is limited in field operations.

5. Develop a Documentation System

Employers in all industries must develop documentation systems for time-keeping, disciplinary actions, training and other employment-related activities, but agricultural employers face the challenge of figuring out a system that works in the fields.

"Employers may struggle with documentation in agriculture because of the need to be mobile," Parker said.

In 2017, the state's Labor Enforcement Task Force assessed over $150,000 in initial penalties to agricultural employers, according to the DIR. Proper documentation can help employers to show compliance procedures and speed up investigations, Parker said.