presented at
Robert J. Cabral Agricultural Center
Stockton CA
April 13, 2015
by
Carl Borden, Associate Counsel
Calif. Farm Bureau Federation & Farm Employers Labor Service

Topics
 Paid Sick Leave
 The Devolution of Piece-Rate
Compensation Law in California
 Getting Workers from a Farm Labor
Contractor
 AB 60 Driver’s License Issues
Paid Sick Leave
(PSL)

Assembly Bill 1522
 Author: Lorena Gonzalez (D-San Diego)
 Signed into law: September 10, 2014


January 1, 2015
But:
 Use by an employee of PSL is delayed to 7/1/15.
 So too, according to a DLSE FAQ, is an employee’s
entitlement to accrue PSL
▪ Despite the provision that “[a]n employee shall accrue
paid sick days … beginning at the commencement of
employment or the operative date of this article,
whichever is later.”

Leaving only the duties to post a PSL notice
and give a revised WTP disclosure by 1/1/15.


All employers with employees in California
will have to offer PSL—no exceptions.
All employees are covered, except
 Those covered by a CBA with certain provisions.
 Providers of in-home supportive services.
 Airline flight-deck or cabin-crew members.

Two Methods
 Accrual
 Upfront or Advance



An employee working on or after 7/1/15 in
California for at least 30 days within a year of
beginning employment will accrue PSL at a rate of
1 hour for every 30 hours worked.
Hours of service for accrual purposes are counted
starting on the first day of employment.
Overtime-exempt professional, executive or
managerial employees are deemed to work 40
hours per week.




Employee is entitled to use PSL beginning on
the 90th day of employment.
Employee may use PSL as it is accrued.
Employee determines amount of PSL to use.
An employer may not require an employee to
provide a substitute as a condition of using
PSL.

Employer may
 Set a reasonable minimum increment (not to exceed 2
hours) for PSL use.
▪ DLSE FAQ: For partial days, your employer can require you
to take at least two hours of leave….
 Limit use of PSL to 24 hours or 3 days in each year of
employment.
 Limit total accrual of PSL to 48 hours or 6 days
▪ provided that an employee’s rights to accrue and use PSL under
this section are not otherwise limited.
▪ Does this mean PSL use can’t also be limited to 24 hrs/3 days?


An employee may choose to use the greater
of the 2 limits (i.e., 3 days or 24 hours).
Example 1
 Employee would have otherwise worked 10 hours
on each of 3 days.
 Employee may in a year of employment take each
10-hour day as 1 of his 3 days of PSL
▪ As long as he has at least 30 hours of PSL in his PSL
“bank.”

Example 2
 Part-time employee works 6 hours a day.
 P/T employee may take in a year of employment
four 6-hour days of PSL, totaling 24 hours.
 He isn’t limited to taking three 6-hour days.

This seems consistent with the principle that
an employee may use PSL to cover only as
many hours as he would have otherwise
worked on that day.

Unused PSL need not be paid when
employment ends.
 But such PSL must be reinstated for a former
employee who is rehired within 1 year.
 And nothing stops an employee from using PSL
in the last few days of employment.

According to a DLSE FAQ:
 Employee works only 60 days one year.
 Returns to the same employer within one year
and works another 60 days.
 Employer does not have to allow employee to use
PSL before working 90 days.
 But the PSL accrued in year 1 is restored to
employee upon return in year 2.
 Upon working 30 days in year 2, employee has 90
days of employment and may start to use PSL.

An employer must grant PSL upon an
employee’s oral or written request for
 Diagnosis, care or treatment of a health condition of,
or preventative care for, the employee or employee’s
family member (child, parent, spouse, registered
domestic partner, grandparent, grandchild, sibling) or
 Seeking or receiving protection, medical attention,
assistance, counseling or preventative measures
related to the employee’s status as a victim of
domestic violence, sexual assault or stalking.

No provision allows employer to require
employee to submit documentation of need.

PSL use is paid at the employee’s hourly wage
rate
 Unless in the 90 days of employment before taking
PSL the employee
▪ Had different hourly pay rates
▪ Was paid by commission or piece rate or
▪ Was a nonexempt salaried employee.
In any of those cases, the pay rate is calculated by
dividing the employee’s total wages (excluding OT pay)
by the employee’s total hours worked in the full pay
periods of those prior 90 days.


Instead of using the so-called accrual method
with its accrual-rate, carryover and accrualcap provisions, an employer may offer PSL on
an advance or upfront basis.
Under this alternative, an employee receives
24 hours or three days of paid sick leave for
each year of employment, calendar year or
12-month basis.


An employer may provide sick leave through
its own plan or establish different plans for
different categories of employees.
But the plan(s) must either
 Satisfy the law’s accrual, carryover, and use
requirements or
 The full amount of leave must be put into an
employee’s leave bank at the start of each year.

As of 1/1/15, an employer must
 Post in a conspicuous place this information about the
PSL mandate:
▪
▪
▪
▪
That an employee is entitled to accrue, request, and use PSL;
The amount of PSL provided;
The terms of use of PSL;
That retaliation or discrimination against an employee who
requests and/or uses PSL or prohibited; and
▪ That an employee has the right under the PSL law to file with
the Labor Commissioner a complaint against an employer
who retaliates or discriminates against an employee.

As of 1/1/15, an employer must
 Give employees hired on or after 1/1/15 a revised
version of the new-hire disclosure notice required
by LC section 2810.5 that includes information
about the requirements of the PSL law.
 Notify employees hired before 1/1/15 of changes
to terms and conditions of employment that
relate to PSL within 7 days after the change.


DLSE has issued a template of both a poster
and individual notice illustrating the proper
information and format.
An employer need not use the DLSE
documents, but documents used by an
employer must convey the same information.

An employer must
 Provide an employee with written notice that states
the amount of PSL (or PTO leave the employer
provides in lieu of PSL) available to an employee on
either the employee’s itemized wage statement or
in a separate writing.
 Keep records of hours worked and PSL accrued for 3
years and make these records available to the
Labor Commissioner for inspection.


An employer may not deny leave to or take
adverse employment action against an
employee seeking to use PSL.
The Labor Commissioner may order reinstatement, back pay, payment of sick days
unlawfully withheld and administrative
penalties.

As amended on 3/26:
 Eligibility: An employee must work for the same
employer for 30 or more days within a year from
the start of employment.
 An employer may use an accrual method other
than providing 1 hour PSL per 30 hours worked,
as long as an employee accrues at least 24 hours
of PSL or PTO off by the 120th calendar day of
employment, each calendar year, or
each 12-month basis.
 An employer may limit total accrual of PSL to 48
hours or 6 days
▪ provided that an employee’s rights to accrue and use
PSL are not limited other than as allowed under this
section.
 The PSL pay rate for an employee who receives
different hourly rates in the pay period when the
PSL is taken is calculated in the same manner as
the regular rate of pay for purposes of overtime
premium pay.

DLSE FAQs
 dir.ca.gov/dlse/Paid_Sick_Leave.htm

Templates
 dir.ca.gov/DLSE/dlse.html
 Scroll down to
“Labor Commissioner Posts Template etc.”
The Devolution of
Piece-Rate Compensation Law
in California

Before the advent of minimum-wage (MW)
laws, employers could compensate
employees by paying for each piece
produced, with no minimum pay guarantee
based on hours worked.

Under MW laws, an employer must
compensate an employee at no less than MW
for all hours worked.
 An employee not producing enough pieces to
make MW for all hours worked must still be paid
at no less than MW.


Under the Fair Labor Standards Act, an
employee’s piece-rate (PR) earnings may be
averaged over all hours worked—both
productive and non-productive—in a
workweek to determine whether MW is met.
PR earnings in excess of those needed to
cover MW for piece-producing time (PPT)
thus may be applied to cover the MW owed
for non-piece-producing time (non-PPT).
• IWC orders, § 3(B): MW must be paid for all
hours worked in the payroll period.
• IWC 3/7/47 meeting minutes: [T]he piece
worker’s earnings for the entire day,
including rest period time, must be not less
than the required minimum wage.

DLSE used to allow averaging.
 To determine if employees paid by the piece or
commission are receiving the minimum wage,
divide total earnings in the pay period by the total
hours—ALL hours worked—in the pay period.
▪ DLSE Manual (9/89) § 10.81
• DLSE’s acting chief counsel opined that CA
law does not allow averaging. Op. Ltr.
2002.01.29.
 DLSE Manual: An employee must be paid at
least MW for hours worked during which the
employer’s directions preclude the employee
from earning PR compensation. § 47.7.
 Example: Employer must pay at least MW for time
spent by a PR employee in a meeting at the
employer’s direction. § 47.7.1.



Hourly employees were not paid for certain
nonproductive time (NPT), e.g., travel time.
Employer argued it hadn’t violated MW law
because employees’ hourly wages for each
workweek were high enough to cover their
previously uncompensated NPT.
2nd DCA rejected use of FLSA averaging model
to compute whether MW is met under CA law.
 Court: The minimum wage standard applies to each
hour worked by respondents for which they were not
paid.

2nd DCA applied DLSE’s and Armenta’s
“no-averaging” position to PR employees.
 Auto service techs paid PR for repairing vehicles.
 Employer: PR earnings covered all of their hours
worked, including time spent waiting for vehicles
to repair and doing other tasks at their employer’s
direction.
 Court: Techs should have been paid, in addition to
their PR earnings, at least MW for their non-repair
work time.
 Court did not rule on “mandatory rest breaks.”

3rd DCA applies Armenta’s “no-averaging”
position to PR employees’ rest periods.
 Truck drivers claimed their CBA’s PR compensation
system did not compensate them for rest periods.
 Court: A piece-rate compensation formula that does
not compensate separately for rest periods does not
comply with CA MW law.
 Court did not distinguish between rest periods
taken at employer’s direction and those taken at
employee’s discretion.
▪ Exceeds DLSE position that MW is due where
employer’s directions preclude the employee from
earning PR compensation.



CA Supreme Court denied employers’
requests for review in both Gonzalez and
Bluford.
The Superior Court in every county must
follow Gonzalez and Bluford.
Thus:
Separate compensation at no less than MW
is due for a PR employee’s non-PPT
regardless of the amount of
the employee’s PR earnings.



Maybe not! MW might be inadequate.
Bluford noted: Rest periods are considered
hours worked and must be compensated. …
Under the CA MW law, employees must be
compensated for each hour worked at either
the legal MW or the contractual hourly rate….
Employers’ legal counsel thus concluded that
rest periods taken by PR employees must be
compensated at MW or, if applicable, an
hourly rate promised by their employer.

Labor Commissioner/DLSE: [T]he hourly rate
payable to piece-rate employees during rest
periods is the hourly piece-rate wage
calculated by dividing the total weekly piecerate earnings by the total hours of piece-rate
work performed in the week.
 Memorandum dated Nov. 1, 2013, from Julie A. Su,
Labor Commissioner, et al., to DLSE Staff, p. 5.
Additional Compensation for Rest Periods taken by Piece-Rate Workers
Example: Piece-rate Employee works 40 hours, 5 days a week with two 10-minute rest
periods taken on each workday, and earns $320 in a particular workweek
Total hours worked for the week = 40 hours
Total Length of Rest Periods Taken during the week: 100 minutes ( which is derived from
two 10-minute rest period taken per day X 5 days a week)
100 minutes ÷ 60 (1 Hr) = 1.667 as total hours for rest period taken
Hours spent on making pieces : 40 hrs - 1.667 hrs = 38.333 hours
Rate of Pay for Rest Period taken:
$320 (weekly piece amount made) ÷ 38.333 (hours spent on making pieces) = $8.35 per
hour
Additional compensation employer must pay for rest period taken : 8.35 x 1.667 hrs
= $13.92
Total wages this piece-rate worker shall be paid:
$320 (piece amount made) + $13.92 (payment for rest periods taken) = $333.92.


The LC bases her position on the provision in
the rest-period section of the IWC orders that
precludes any “deduction from wages” during
an IWC-order rest period
[T]his provision contemplates that the wage
rate being paid to the employee immediately
prior to the rest break will continue to be paid
not only after the rest break but during the rest
break as well.


SB 1360 applies this “no deduction from
wages” provision to cool-down rests
mandated by Cal/OSHA’s Heat Illness
Prevention standard.
While she may not as yet have opined on it,
certainly the LC would take the position that
cool-down rests taken by a PR employee
must also be compensated at the employee’s
average hourly piece-earning rate for the
workweek in which they were taken.


Gonzalez and Bluford pose significant
time-monitoring and time-recordkeeping
problems for employers using traditional PR
compensation plans.
How do you identify and accurately record
non-PPT to ensure it is properly compensated
and that you have records sufficient to prove
it was compensated fully and correctly?
 You must do so to avoid or defend against claims
for non-payment or underpayment of wages.

While Gonzalez and Bluford did not touch on all
of these, any on-the-clock time an employee is
not producing pieces should be counted as
non-PPT.
 Traveling between work sites
 Attending meetings (e.g., safety meetings)
 Attending job training
 Doing warm-up calisthenics
 Donning and doffing personal protective
equipment or protective clothing
 Waiting for
▪ The arrival of bins, boxes or other containers in which
harvested crops are placed
▪ The repair or replacement of equipment necessary to
produce pieces
▪ Weather or other environmental conditions to
change so that piece-production work can start or
resume
▪ A bin, bucket or box to be counted
 Walking between a work station and rest area
 Taking rest periods under an IWC order
 Taking cool-down breaks under Cal/OSHA’s Heat
Illness Prevention standard

Traditional PR
 Separately track PPT and non-PPT.
 Check that the employee’s PR earnings yield at
least MW for all PPT on that workday.
▪ If they don’t, pay the difference so the employee’s
wages cover the MW due for that PPT.
 In addition, pay the employee at least
▪ MW for all non-PPT except for
▪ IWC-order rest periods and Cal/OSHA HIP cooldown rests: Consider paying average hourly piecerate wage.
 Pay premium overtime rates for hours worked
over 10 in a workday or on the 7th consecutive
workday worked in a workweek.


Not recommended
An itemized wage statement must show all
applicable hourly rates in effect during the pay
period and the corresponding number of hours
worked at each hourly rate by the employee.
 Labor Code § 226, subd. (a)

An employer must keep accurate information
of total hours worked in the payroll period and
applicable rates of pay.
 IWC orders, § 7(A)(5)

Thus an employer must keep and report to an
employee an accurate record of the total
hours worked by the employee in each
payroll period at each applicable rate of pay.

So an employer may not (over)estimate and pay
at least MW for non-PPT.
 Rather: Non-PPT must be accurately recorded.

But even if non-PPT were to be consistently
overestimated and overpaid, an employer
would have no records to prove that all nonPPT was counted and separately compensated.
 Solid records of non-PPT and separate payment for
it show compliance.


Pay an hourly wage of at least MW for each
hour worked, plus an incentive bonus.
The per-piece rate under this approach is less
than what the employer paid under a
traditional PR plan.
 Because the employee’s base pay is being
guaranteed on an hourly basis, the price paid for
each unit is less than under a traditional PR plan.
 But bonuses can be set to produce a similar result.


Under a traditional PR plan, Employee A
works 10 hours, earning $120 for filling 120
boxes at $1 per box.
Under a minimum HW+PB, Employee A is
paid $9/hour for each hour worked, no matter
what he is doing, plus an additional 25¢ for
each box filled.

Total earnings for the day are also 120
 10 hours x $9/hour = $90
 120 boxes x 25¢ per box = $30
 $90 + $30 = $120

Under the PB offered in this very simple
example and factoring in the guaranteed
HW, slower employees earn at a higher perpiece rate than faster employees. Example:
 Grossing $120 for producing 120 boxes
($90 + $30), Employee A earns at a rate of
$1 per box ($120 ÷ 120 boxes)
 Grossing $112.50 for producing 90 boxes
($90 + $22.50), Employee B earns at a rate of
$1.25 per box ($112.50 ÷ 90 boxes)


Faster workers would view that result as
unfair and cause them to grumble, protest or
quit
To avoid that result, consider:
 Paying a bonus only to those employees whose
production exceeds a specified minimum number
of units per hour
 Setting production tiers, with higher per-unit
bonus pay for each higher tier

You determine an employee must produce
10 boxes an hour to cover his employment cost
 Including producing at least a small profit for you

Producing only 10 boxes per hour means no
bonus pay
 But the employee can keep his job because he is
meeting your minimum production standard

You determine the fastest employee can safely
and satisfactorily produce 20 boxes per hour

You then set this compensation plan:
 An employee is paid $9 an hour while on the clock
 In addition, an employee is paid a bonus based on
the employee’s total hours worked in a workday
as follows:
▪ 10 or fewer boxes per hour: No bonus
▪ First Tier: 11 – 15 boxes per hour: $2 per box for the
11th – 15th boxes on average per hour
▪ Second Tier: More than 15 boxes per hour: $2.20 per
box over the 15th box on average per hour

In 10 hours worked, an employee who produces
 100 boxes is paid $90 (90¢/box)
 120 boxes is paid $130 ($90 + $40 First Tier bonus)
($1.08/box)
▪ $2 x 2 First Tier boxes for each of the 10 hours = $40)
 180 boxes is paid $256 ($90 + $100 First Tier bonus +
$66 Second Tier Bonus ($1.42/box)
▪ $2 x 5 First Tier boxes for each of the 10 hours = $100
▪ $2.20 x 3 Second Tier boxes for each of the 10 hours =
$66



No need to monitor, record and separately
compensate for non-PPT
Eliminates claims for unpaid non-PPT
Employees earn MW (or some higher
promised amount) for every hour worked,
regardless of whether they’re producing
pieces, preparing to work, traveling from one
field to another, doing some other non-pieceproducing task or resting

The LC could assert that IWC-order rest
periods and Cal/OSHA HIP cool-down rests
must be additionally compensated by the
employee’s average hourly production-bonus
earnings for the workweek.





Employees are promised at least MW (or some
higher rate) for all hours worked each day.
But a higher hourly rate will be paid for all
hours worked if the employee meets a
specified production goal.
Could have multiple tiers
Could be applied on a crew basis
Benefits
 Simplicity
 Pure hourly rate clearly covers IWC-order rest
periods and HIP cool-down rests




Used by a Salinas Valley grower for its 2014
mixed-lettuce harvest employees.
Based on the average number of totes per hour
produced by each harvester on a crew.
Could be used on an individual employee basis
To determine the average totes per hour per
harvester:
 Divide total number of totes produced by the crew
the number of harvesters in the crew; then
 Divide that quotient by the total hours worked by
those harvesters.


Base pay was $9.50 for each hour worked on
a workday when the crew’s per-member
production averaged less than 18 totes/hour.
The rate would be bumped up to $9.70 per
hour if the crew’s per-harvester production
average for a workday was 18 totes per hour.


From there on up, by tenth-tote/hour/harvester
increments, the hourly rate would rise, typically
by increments of from two to four cents.
Exceptions: The hourly rate jumped by
 27 ₵ at 22.0 totes/hour/harvester
 47 ₵ at 26.0 totes/hour/harvester
 68 ₵ at 30.0 totes/hour/harvester.

At the top end, each harvester’s hourly rate
would be $14.40 if the average production was
31.0 totes/hour/harvester.
Totes/Hr
($)
<18
18.0
18.1
18.2
18.3
18.4
18.5
18.6
18.7
18.8
18.9
19.0
19.1
19.2
19.3
19.4
19.5
19.6
19.7
19.8
19.9
20.0
20.1
20.2
20.3
20.4
20.5
20.6
20.7
20.8
20.9
Rate ($)
Totes/Hr
Rate ($)
Totes/Hr
Rate ($)
Totes/Hr
Rate ($)
Totes/Hr
Rate
9.50
9.70
9.72
9.74
9.76
9.78
9.80
9.82
9.84
9.86
9.88
9.90
9.92
9.94
9.96
9.98
10.00
10.02
10.04
10.06
10.08
10.10
10.12
10.14
10.16
10.18
10.20
10.22
10.24
10.26
10.28
21.0
21.1
21.2
21.3
21.4
21.5
21.6
21.7
21.8
21.9
22.0
22.1
22.2
22.3
22.4
22.5
22.6
22.7
22.8
22.9
23.0
23.1
23.2
23.3
23.4
23.5
23.6
23.7
23.8
23.9
10.30
10.32
10.34
10.36
10.38
10.40
10.42
10.44
10.46
10.48
10.75
10.78
10.80
10.83
10.85
10.88
10.90
10.93
10.95
10.98
11.00
11.03
11.05
11.08
11.10
11.13
11.15
11.18
11.20
11.23
24.0
24.1
24.2
24.3
24.4
24.5
24.6
24.7
24.8
24.9
25.0
25.1
25.2
25.3
25.4
25.5
25.6
25.7
25.8
25.9
26.0
26.1
26.2
26.3
26.4
26.5
26.6
26.7
26.8
26.9
11.25
11.28
11.30
11.33
11.35
11.38
11.40
11.43
11.45
11.48
11.50
11.53
11.55
11.58
11.60
11.63
11.65
11.68
11.70
11.73
12.20
12.23
12.26
12.29
12.32
12.35
12.38
12.41
12.44
12.47
27.0
27.1
27.2
27.3
27.4
27.5
27.6
27.7
27.8
27.9
28.0
28.1
28.2
28.3
28.4
28.5
28.6
28.7
28.8
28.9
29.0
29.1
29.2
29.3
29.4
29.5
29.6
29.7
29.8
29.9
12.50
12.53
12.56
12.59
12.62
12.65
12.68
12.71
12.74
12.77
12.80
12.83
12.86
12.89
12.92
12.95
12.98
13.01
13.04
13.07
13.10
13.13
13.16
13.19
13.22
13.25
13.28
13.31
13.34
13.37
30.0
30.1
30.2
30.3
30.4
30.5
30.6
30.7
30.8
30.9
31.0
14.05
14.09
14.12
14.16
14.19
14.23
14.26
14.30
14.33
14.37
14.40

FLSA recap: Averaging of PR wages is
allowed under the federal FLSA to determine
whether MW is met in a workweek.
 Thus no separate pay for non-PPT is required
under the FLSA.

But USDOL reportedly has been citing ag
employers under the Migrant and Seasonal
Agricultural Worker Protection Act for not
paying covered employees for their non-PPT!

USDOL rationale
 Ag employers must disclose in writing to migrant
ag workers upon recruitment and to seasonal ag
workers upon request [t]he wage rates (including
piece rates) to be paid (among other information).
 Where the disclosure states
▪ both a PR and an hourly rate, or
▪ only a piece rate but the employer has posted a
required MW notice,
USDOL asserts that hourly wages are due (in
addition to PR earnings) for hours worked during
which the employer prevented employees from
earning PR.

To help avoid this result, the disclosure
should state that an employee’s PR earnings
for a workweek cover all hours worked by the
employee in that workweek.
 But it’s not yet clear whether USDOL will accept
this approach.
Getting Workers from
a Farm Labor Contractor (FLC)


Migrant & Seasonal Ag Worker Protection Act
(MSPA)
A person (other than an ag employer, ag ass’n. or
an employee of either) who, for money or other
thing of value, performs any farm labor
contracting activity.
 Farm labor contracting activity means recruiting,
soliciting, hiring, employing, furnishing or
transporting any migrant or seasonal agricultural
worker.


Agricultural employer owns or operates a
farm, ranch, etc.
Contractor who performs for a fruit-grove
owner all farming operations required before
harvest is an ag employer, not an FLC
(operates a farm).
 A fruit-grove contractor is not exempt from
federal FLC registration if engages in FLC
activities for others and is not otherwise exempt
▪ E.g., FLC activities performed only within a 25-mile
intrastate radius of FLC’s permanent residence for
less than 13 weeks per year


Labor Code §§ 1682 – 1682.5
A person
 Who, for a fee, employs workers to render
personal services in connection with the
production of any farm products to, for or under
the direction of a third person, or
 Who recruits, solicits, supplies or hires workers on
behalf of an employer engaged in the growing or
producing of farm products, and who, for a fee,
provides in connection therewith one or more of
these services:
▪ Furnishes board, lodging, or transportation for them;
▪ Supervises, times, checks, counts, weighs, or
otherwise directs or measures their work; or
▪ Disburses wage payments to them.


A person who performs the services specified
on the prior slide only within the scope of his
employment by the employer on whose
behalf he is so acting and not as an
independent contractor is not an FLC.
In contrast to the USDOL under the federal
MSPA, the DLSE regards as FLCs virtually all
contractors who provide workers in
performing farming operations for a fruitgrove or vineyard owner.

A day hauler is an FLC.
 A day hauler is a person
▪ employed by an FLC to transport, or
▪ who for a fee transports,
by motor vehicle, workers to render personal
services in connection with the production of any
farm products to, for or under the direction of a
third person.


Inspect FLC’s CA license; appears to be genuine?
Get a copy of the license.
 Keep it for at least 3 years after the end of the
contract.

Verify license with DLSE’s verification unit.
 Keep verification number for at least 4 years.
 Failure to verify: Aggrieved worker can sue the
grower for claims arising from violations committed
by an unlicensed FLC (wages, housing, pesticides,
transportation).

See the FLC’s current valid federal Certificate
of Registration.
 Transportation authorized? (if applicable)
 Housing authorized? (if applicable)
 Recommended: Get and keep a copy of the
certificate for at least 3 years.

Keep for at least 4 years copies of payroll
records given to you by the FLC.

Have a written agreement with the FLC
 Specifying
▪
▪
▪
▪
Services FLC will provide
Compensation to be paid to FLC
That FLC is an independent contractor
That FLC will comply with all applicable laws & regs
 Meeting the requirements of CA Labor Code § 2810
 Requiring the FLC to have workers’ comp insurance
for workers provided by the FLC
 Specifying that the FLC’s WC insurance satisfies
any duty you may have to also have WC insurance
for the FLC’s workers [LC § 3602, subd. (d)(1)]
 Requiring the FLC to have
▪ Comprehensive general liability insurance
▪ Motor vehicle liability insurance
 Directing the FLC to have certificates of those
insurance coverages sent to you
 Indemnifying you for losses and costs you sustain
due to the performance or nonperformance of the
FLC’s duties under the agreement or the law

Verify that
 Vehicles used by the FLC to transport workers




have a current CA vehicle inspection sticker
Vehicle operators have a valid operator’s license
or permit
The FLC posts required notices and posters
The FLC is federally registered (check with USDOL
WHD)
The FLC is paying all wages owed to his
employees and employment taxes for them and
has supporting records

Why do I need do these things? An FLC is an
independent contractor, and as long as I use
only a registered and licensed FLC, I’m not
responsible for the FLC’s violations, right?
 No, it’s not that simple!

It’s fairly easy and common for a grower to be
charged as and found to be a joint employer
of the FLC’s employees.

Factors examined to determine if a grower
and an FLC are joint employers of workers
supplied by the FLC include
 Whether the grower has the power, either alone
or through control of the FLC, to direct, control,
or supervise the workers or the work performed
▪ Such control may be either direct or indirect,
taking into account the nature of the work
performed and a reasonable degree of contract
performance oversight and coordination with third
parties
 Whether the grower has the power, either alone
or in addition to another employer, directly or
indirectly, to hire or fire, modify the
employment conditions, or determine the pay
rates or the methods of wage payment for the
workers
 The degree of permanency and duration of the
relationship of the grower and FLC, in the
context of the agricultural activity at issue
 The extent to which the services rendered by the
workers are repetitive, rote tasks requiring skills
acquired with relatively little training
 Whether the activities performed by the workers
are an integral part of the grower’s overall
business operation
 Whether the work is performed on the grower’s
premises, rather than on premises owned or
controlled by another business entity
 Whether the grower undertakes responsibilities in
relation to the workers that are commonly
performed by employers, such as
▪
▪
▪
▪
▪
Preparing or making payroll records
Preparing or issuing pay checks
Paying FICA taxes
Providing workers’ compensation insurance
Providing field sanitation facilities, housing or
transportation
▪ Providing tools and equipment or materials required
for the job

A client employer has civil legal
responsibility and liability for
 payment of wages or
 failure to secure workers’ compensation
coverage
by a labor contractor for workers supplied by the
labor contractor to the client employer.

Joint employment is not a consideration!

A client employer is a business entity with
 25 or more workers,
 at least 6 of whom are provided by one or more
labor contractors to perform labor within the
entity’s usual course of business.



A client employer may contract for remedies
against a labor contractor for liability created
by the contractor’s acts.
A labor contractor may contract for remedies
against a client employer for liability created
by the client employer’s acts.
A client employer may not shift its own legal
duties or liabilities under workplace safety
laws to a labor contractor.
AB 60 Driver’s License Issues


AB 60 required DMW by 2015 to issue a new type
of driver’s license to otherwise qualified
applicants who cannot prove lawful presence in
the U.S.
Same as a regular driver’s license except:
 Front: FEDERAL LIMITS APPLY
 Back: This card is not acceptable for official federal
purposes. This license is issued only as a license to
drive a motor vehicle. It does not establish eligibility
for employment, voter registration, or public benefits.


Is an AB 60 driver’s license a document that
establishes identity for the purpose of the
Form I-9 employment eligibility verification
process?
What effect, if any, does the presentation to
an employer by an employee of an AB 60
driver’s license have on the employee’s claim
of employment eligibility?

Preliminary to the second question, does
DHS regard an employer to whom an
employee presents an AB 60 driver’s license
as having constructive (if not actual) notice of
the significance of that license—
 That is, that it is issued to persons who cannot
submit satisfactory proof of legal presence in the
United States.

What do FEDERAL LIMITS APPLY and this card
is not acceptable for official federal purposes
mean anyway?
 Specifically, do they mean that the license can’t be
used as a Form I-9 List B identity document?

Probably not.
 That is, an AB 60 license probably does qualify as a
List B identity document.

Here’s why:

Form I-9, List B, Item 1:
 Driver’s license or ID card issued by a State …
provided it contains a photograph or information
such as name, date of birth, gender, height, eye
color, and address.
 An AB 60 driver’s license meets all of those
requirements.
 Thus it would seem to qualify as a document that
establishes identity in the Form I-9 process.

USCIS Employer Handbook (M-274), p. 61:
 Some states may place notations on their drivers’
licenses that state the card does not confirm
employment authorization. For Form I-9 purposes,
these drivers’ licenses, along with every other
state’s, establish the identity of an employee. When
presenting any driver’s license, the employee must
also present a List C document that establishes
employment authorization.

Definition of official purpose under the REAL ID
Act and the implementing regulation
 In the Act itself: The term official purpose includes
but is not limited to
▪
▪
▪
▪
accessing Federal facilities,
boarding federally regulated commercial aircraft,
entering nuclear power plants, and
any other purposes that the Secretary shall determine.
 The regulation limits the definition to only the three
named activities.

Maybe not.
 The additional words are to alert federal officials that
the license it is not an acceptable form of ID for any
of the three specified purposes.
 Federal agents are no doubt trained to recognize and
know the significance of those words.
 No such training requirement applies to an employer.
 The additional words give an employer’s
document reviewer no inherent indication that
the license is anything other than a State-issued
driver’s license that establishes identity.
 In contrast, certain phrases may be included on
types of documents generally valid to establish
employment authorization to indicate that a
particular document does not establish E/A.
 That is not the case with the additional words on
an AB 60 driver’s license.


An AB 60 license doesn’t automatically mean its
holder is unlawfully present.
Example 1 (person always lawfully present)
 Her documents are lost or stolen.
 She gets an AB 60 license and then a Soc. Sec. card.
 She applies for job and is hired.
 She uses AB 60 license for ID and SS card for E/A.

Example 2 (person becomes lawfully present)
 Employee uses bogus green card for Form I-9.
 Years later, he gets an AB 60 driver’s license.
 He gets deferred action & E/A under DAPA.
 He presents to his employer his AB 60 driver’s license
to prove eligibility to drive a pickup truck.

These examples mean that an employer should
not instantly conclude that an employee showing
an AB 60 license isn’t E/A.


But an employee’s possession of an AB 60
license prompts the question of his E/A.
Constructive knowledge
 An employer’s failure to take reasonable steps to
resolve a discrepancy between an employee’s
claim of E/A and credible information indicating
otherwise is evidence the employer had
constructive knowledge that an employmentineligible employee wasn’t E/A.

Thus an employer should question the
employee about the discrepancy.

AB 1660 made it a FEHA violation for an
employer to
 Discriminate against a person for presenting an
AB 60 license.
▪ Revised DFEH poster calls it a form of national origin
discrimination.
 Require a person to present a driver’s license
unless
▪ Possessing a driver’s license is required by law or
▪ Is necessary to perform the duties of the position.

Thus questioning an employee about the
discrepancy, or discharging an employee
who cannot adequately explain why he has
an AB 60 license if he is truly employment
eligible, could be argued as discrimination
for presenting that license.


But AB 1660 did not alter an employer’s
rights or obligations under the INA regarding
obtaining documentation evidencing identity
and E/A.
An action taken by an employer that is
required by the INA is not a violation of law.

These latter provisions in AB 1660 should
protect an employer by confirming that the
employer’s actions to comply with this
requirement of federal immigration law is not
a violation of law.
 That is, it is not unlawful discrimination under the
FEHA.
QUESTIONS?