Cal/OSHA Enforcement Push Continues
The California Department of Industrial Relations’ Division of Occupational Safety and Health is continuing its vigorous enforcement efforts in agricultural workplaces. In recent weeks, FELS has received reports of Cal/OSHA enforcement activity in the counties of Kings, Monterey, Solano and Yolo.
Following through on statements made by Cal/OSHA Chief Ellen Widess at a June stakeholders’ meeting in Riverside and as reported in the July issue of FELS Newsletter, her agency is scrutinizing employers' compliance with the Cal/OSHA Heat Illness Prevention (HIP) standard. The agency’s major enforcement activities include:
- "High Heat" sweeps, where the National Weather Service has issued warnings, watches or special weather statements indicating extreme heat; and
- "Backyard" sweeps, on a semi-regular basis near regional Cal/OSHA offices.
- Citations are readily issued where:
- An employers has not provided water "as close as practicable" to employees;
- An employer has not provided shade for at least 25 percent of a crew’s employees as close as practicable to them (but no more than a 2½-minute walk from them) when the temperature exceeds 85 °F;
- An employer has failed to provide for adequate communication so that supervisors can determine if their crew members might be suffering from heat illness; and
- Supervisors cannot timely provide to a Cal/OSHA inspector a written copy of the employer’s HIP compliance plan.
FELS Can Help:
As high temperatures continue in early fall, don’t be surprised to see ongoing Cal/ OSHA enforcement activity. To help you comply with the HIP standard and protect your employees, FELS has posted compliance resources online at www.fels.net/find.
Employee Notice of NLRA Rights To Be Required
Ag-Only Employers Exempted
On Aug. 30, the National Labor Relations Board issued a Final Rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice. The rule takes effect on Nov. 14.
Copies of the notice will be available by Nov. 1 on the NLRB website and from NLRB regional offices.
Similar postings of workplace rights are required under other federal workplace laws, and the 11-by-17-inch notice is similar in content and design to a notice of NLRA rights that must be posted by federal contractors under a Labor Department rule.
The notice of rights will be provided at no charge by NLRB regional offices or can be downloaded from the NLRB website and printed in color or black-and-white. Also available will be translated versions, which must be posted at workplaces where at least 20% of employees are not proficient in English.
Employers must also post the notice on an intranet or an internet site if personnel rules and policies are customarily posted there.
Only employers covered by the National Labor Relations Act will have to comply with this new requirement. Employers with employees who are exclusively employed in “agriculture” as defined under the Fair Labor Standards Act are exempt. “Agriculture” includes farming in all its branches, including such “primary” operations as cultivating and tilling the soil, producing, cultivating, growing and harvesting agricultural or horticultural commodities, dairying, and the raising of livestock, bees, fur-bearing animals or poultry, as well as “secondary” practices performed either by a farmer or on a farm as an incident to or in conjunction with those primary farming operations. “Secondary” agriculture includes the packing by a farmer of commodities produced by only that farmer.
Michigan Dairy Farmers Plead Guilty to Employing Illegal Aliens, Fined $2.7 Million
A Michigan dairy farm and its two owners pleaded guilty on June 28 to charges of employing illegal aliens, following an investigation by the Homeland Security Investigations directorate of U.S. Immigration and Customs Enforcement.
Johannes Martinus Verhaar and Anthonia Marjanne Verhaar own Aquila Farms LLC, a dairy operation based in Bad Axe. Court records revealed that from about 2000 through 2007, the dairy employed 78 different illegal aliens, who constituted almost 75 percent of its workforce over that time period. Aquila Farms failed to determine the employment eligibility of its work force, as required by federal immigration laws.
"Criminal charges and fines are among the government's most effective tools to ensure employers maintain a legal workforce," said Brian Moskowitz, special agent in charge of ICE HSI in Detroit. "The charges and significant fines here represent HSI's firm commitment to holding employers accountable."
According to the investigation, of the 78 illegal aliens hired by the Verhaars, some were hired on multiple occasions using different names or Social Security numbers despite the Verhaars' being notified by both the Social Security Administration and ICE that its employees were not authorized to work in the United States. The defendants encouraged or induced the illegal aliens to reside in the United States by providing them with employment and free housing on the farm, away from scrutiny by ICE and the surrounding community.
As part of the agreement reached with the government, the Verhaars pleaded guilty to hiring illegal aliens, a charge that carries a term of imprisonment of up to six months and a $3,000 fine per hire. Aquila Farms pleaded guilty to harboring illegal aliens, a felony that carries a statutory maximum penalty of five years imprisonment and additional fines. The Verhaars and Aquila Farms agreed to pay fines and a payment in lieu of forfeiture totaling $2,734,000.
The case was initiated based on a lead by the Michigan State Police and investigated by ICE HSI special agents. The Huron County Sheriff's Office assisted with the investigation. Assistant U.S. Attorney Janet Parker, Eastern District of Michigan Northern Division, is prosecuting this case.
Source: ICE Press Release, June 28, 2011
Manage Workers’ Comp Claims to Your Advantage
Workers' compensation insurance premiums probably take a big bite out of your bottom line. Employers can't eliminate workers' compensation insurance, and they sometimes feel like they are dependent on their workers' comp carrier. As a result, many employers fail to give much thought or effort to managing their worker's comp costs. There are a few simple steps you can take to minimize your worker's comp expense:
- Get your entire management team involved. Workers' comp should never be the sole responsibility of Human Resources staff or your Safety Coordinator. Your managers need to understand that workers' comp premiums are a significant cost to the company that diminishes the bottom line, and your safety programs influence how much of the bottom line is diminished. Help them understand how your workers’ comp premiums are determined, and what makes your "X-Mod" go up or down.
- Manage claims actively. The longer a claim remains unresolved, the more expensive it's ultimately going to be. Make certain every claim is resolved as quickly as possible. Be certain supervisors and employees understand their responsibilities are with respect to reporting accidents that will lead to claims and providing information to the insurer as the claim moves through the process, and follow up promptly when there are questions. Review claims frequently to ensure any outstanding claims you have are moving expeditiously.
- Talk to your insurer. You can influence your premiums, so don't simply accept that rate your insurer gives you at renewal time. Ask what you can do to reduce your premiums, and let them know what you’re already doing that they may not be aware of, like your safety programs.
- Ask your insurer to review the experience rating and explain to you why it is what it is, for better or worse. Review your situation to make sure employees are assigned proper rate classifications. If you've had layoffs, particularly in high-rate classifications, make sure your insurer is aware of that.
- Make them want you. Insurers aren't running a charity; they're in business to make money. They do better with companies with few or no claims than with those with numerous claims. A strong safety program is the best tool you have to reduce your workers' comp costs. With a good safety and a good claims record, you will have options to shop among insurers to get the best available rates.
This article is provided courtesy of the Farm Employers Labor Service (FELS), an affiliated company of the California Farm Bureau Federation. FELS provides labor-management consultation, union avoidance, human resources education, compliance materials and products and workplace safety and health training for agricultural employers throughout California and Oregon. For more information about FELS, please contact FELS Chief Operating Officer Bryan Little at 800-753-9073, at firstname.lastname@example.org or visit FELS’ website: www.fels.net.