Five Important Labor Law Changes for California’s Farm Workers

California is one of the major agricultural states in the United States, with about 69,400 farms in operation across 24.3 million acres of land.

The state also leads the way in agricultural cash receipts, generating nearly $50 billion in 2018, which represents 13.4 percent of the national total.

To meet future challenges and demands, the sector is gradually adopting more advanced farming practices and employing new farming technologies such as soil mapping, moisture sensors, and precision agriculture. However, in our rush for innovation, we should also keep a close eye on the constantly evolving landscape of California farm labor laws. Not only will this improve workforce morale, and consequently, productivity, adherence to such changes will also ensure we do not run afoul of the state's Labor Enforcement Task Force.

We’ve prepared below a primer on the five key regulatory changes which farm owners and employers should be cognizant of.

1. Minimum wage increase

The passage of SB 3 (Leno, Chapter 4, Statutes of 2016) by the state legislature on March 31, 2016 made California one of the first states in the country to create a definite pathway to raise the minimum wage to $15 an hour. However, to ensure that employers in the state can prepare for the financial impact, the hike was spread over a period of between five and six years (depending on a company’s number of employees), as outlined in the tables below.

The bill, which was codified into Sections 245.5, 246 and 1182.12 of the Labor Code, will impact the 422,320 holders of agriculture jobs in Californian farms.

A couple of escape clauses are built into the bill to give the Governor the opportunity to pause any scheduled increase if the state’s job growth figure is in the negative or if there is a deficit in excess of one percent of the state’s current budget. Thus far though, the Governor has yet to exercise any pauses to the scheduled increases.

2. Overtime for agriculture labor

California’s agricultural sector was previously exempt from complying with federal overtime laws included in the Fair Labor Standards Act (FLSA) of 1938. Under existing legislation, overtimes only kick in once workers exceed a daily 10 hours and weekly 60 hours cap.

However, in September 2016, the state legislature passed the AB-1066 Agricultural workers’ assembly bill which stipulates that all hourly employees must be paid overtime of 1.5 times their regular rate whenever the labor tracking record of companies show that they have worked more than eight hours per day or 40 hours per week.

In addition, a farm labor worker must also be paid twice his or her hourly rate after working 12 hours a day or eight hours after working for seven consecutive days in one workweek. Similar to the minimum wage schedule, the implementation of the overtime rule was also staggered, as outlined in the tables below.

A follow-up bill, codified into Chapter 1 [500 - 558.1] of the Labor Code, also requires employers to provide their employees with meal breaks, elimination of the one day off in seven exemption enjoyed by farm employers and other benefits many of us tend to take for granted.

Employers who outsource hiring to, or enter into a farm labor contract with employment agencies – typically temporary workers during harvesting season – are required to ensure that such agencies possess enough funds to meet their financial obligations to the workers. Under California Labor Code Section 2810, failure to do so will make them jointly liable for any violations.

These series of legislations will effectively place workers in the agriculture sector on equal footing with employees from other industries.

3. Heat Illness Prevention Training

According to the California Division of Occupational Safety and Health (Cal/OSHA), the lack of Health Illness Prevention Training is the second highest cause of citation in the state. Since a farm field labor regularly spends his or her day out under the sun, the implementation of a Heat Illness Prevention Training is critical towards ensuring worker safety. This is particularly concerning during harvesting season during the summer months when temperatures will skyrocket. Under Cal/OSHA’s Heat Illness Prevention standard, employers must

• Designate one or more employees to manage the implementation of the standard on-site
• Develop a written standard operating procedure which complies with Cal/OSHA’s guidelines
• Conduct training for all employees, including supervisors, about heat illness prevention
• Supply sufficient fresh water to ensure every employee is able to consume at least 1 quart of water every hour
• Provide access to shade with a temperature of at least 80 degrees Fahrenheit
• Facilitate a compulsory cooldown of 10 minutes every other hour. The cooldown period should not be deducted from meals or break times

Failure to comply with any aspect of the regulation could lead to a $25,000 fine (maximum) per citation.

4. Sexual Harassment Training

In the immediate aftermath of the #MeToo Movement in October 2017, the California legislature designed, amended and subsequently passed a series of bills meant to improve safeguards against workplace harassment as well as to protect employees who have already become victims. The three most notable legislations are:

• Senate Bill No. 1300: The bill prohibits employers from incentivizing or punishing employees, whether in the form of monetary gain or career advancement, to cease any legal action or sign a non-disparagement agreement against any illegal acts committed in the workplace, which may include sexual harassment. The bill also places strict limits against defendants seeking damages, costs and attorney fees from victims.

• Senate Bill No. 1343: The bill mandates that every employee must attend a one-hour session of sexual harassment training within six months of working for a company with five or more employees. Thereafter, employees must attend refresher training sessions at two-year intervals. Employees in supervisory positions are required to attend two-hour-long sessions. The deadline for the training was originally penciled for January 1, 2020. However, following appeals, the state has agreed to delay the deadline to the following year.

• Assembly Bill AB-1867: This bill compels companies with 50 or more employees to maintain a record of all sexual harassment complaints for a period of 10 years. This requirement was designed to help law enforcement agencies detect any unlawful pattern of behavior involving employees or companies.

Incidences of sexual harassment for women in California are five percent higher compared to the national average.

5. Changes to Protect Undocumented Migrant Farm Workers

It is estimated that approximately 50 percent of California’s eight hundred thousand farmworkers are undocumented migrants. These workers play a vital role in the success of the state’s agricultural sector.

However, studies have shown that they are regular targets of discrimination and abuse by employers. Even temporary H2A workers do not experience the kind of challenges they regularly face. Simply replacing these workers with H2A labor is not practical, since there are only 140,000 H2A agricultural worker visa holders in the country.

Should we just accept that undocumented farmworkers do not have labor rights? Or should we try to create an environment where all workers enjoy fair and just working conditions? An environment where certain workers are no longer vulnerable to the machinations of their employers?

Thankfully, the legislators in California have voted with their conscience and enacted multiple legislations to protect said workers. Perhaps the most important piece of legislation is Assembly Bill No. 263, which protects workers against retaliation, particularly over their undocumented status, when filing complaints for non-payment of wages. Employers found guilty of this offense may have their business license suspended or face a fine of up to $10,000.

A follow-up legislation, Chapter 3.1 Unfair Immigration-Related Practices, creates a mechanism where any civil penalty will be channeled to the Labor Commissioner instead of the state before being distributed back to the original victim.

Another important legislation is Assembly Bill No. 450. This bill prohibits employers from allowing Immigration and Customs Enforcement (ICE), in the absence of a warrant, to access non-public zones with the intent of detaining workers. SB 54, meanwhile, restricts ICE’s access to public buildings while unauthorized workers are pursuing claims of violations against their employers.

Conclusion

Shortage of workers is probably the biggest problem facing farm owners in California today. According to the California Farm Bureau Federation (CFBF), over 50 percent of farm operators in the state have failed to find the required number of workers for the last five years.

This isn’t particularly surprising since farm work is hard. It doesn’t help that the pay is low and hours are long, and overtime and fringe benefits are scarce.

However, farm operators who adhere to the new set of guidelines and legislations introduced by the state will be able to create a more rewarding and fulfilling workplace. This will eventually encourage more people to work on farms, and the retention rate will soar.

It isn’t an exaggeration to say that these changes will be beneficial for our farmers and farmlands in the long run.