Author Archives: ccgga

UPDATE: Social Security Administration Confirms They Will Take NO ACTION for Employer’s Who Do Not Comply with No-Match Letters

UPDATE: Social Security Administration Confirms They Will Take NO ACTION for Employer’s Who Do Not Comply with No-Match Letters

 By: Michael C. Saqui and Gregory Blueford

As we previously reported, in conjunction with Chris Schulte of CJ Lake, LLC and Rob Roy of Ventura County Agricultural Association, the Social Security Administration (“SSA”) began mailing Educational Correspondence (“EDCOR”) notifications to employers who submit at least one 2018 W-2 with a SSN mismatch or no-match. These notices differed from previous mismatch/no-match letters as they did not include names or SSNs. Instead, employers were only notified that they submitted W-2s with mismatched SSNs and the raw number of W-2 forms the employer submitted that do not match.

The key question that employers had been asking about receiving these letters was, naturally, “What action should I be taking?” There were differing opinions on what steps employers are required to take, one of which was to recommend that employers follow the direction of the EDCOR letter and login to the SSN Business Services Online portal to get the actual names of the employees at issue and take steps to verify the reason as to the mismatch of specific employees.

Taking a more employer-centric approach, Dowling Aaron, CJ Lake, LLC and VCAA put our collective mind power, legal experience and resources together and took the complete opposite approach, recommending that employers should NOT login to the BSO portal and only verify their own records in-house and report to the SSA based on those records.

Yesterday, we received word that our recommendation was correct. In a letter from SSA Acting Commissioner Nancy A. Berryhill to Congressman Jim Costa, the SSA confirmed that the EDCOR mismatch letters are only educational in nature and that the SSA will not take any action, nor are there any SSA-related consequences, for employers’ non-compliance with the EDCOR mismatch letters.

COUNSEL TO MANAGEMENT:

The SSA’s letter to Congressman Costa is attached here for your full review. As outlined in the original guidance from Dowling Aaron, CJ Lake, LLC and VCAA, employers should take the following steps when receiving EDCOR mismatch or no-match letters:

*  Employers should NOT login to the BSO to get the actual names of mismatched employees to avoid the possibility of establishing constructive knowledge that the employer was hiring unauthorized workers;

*  Employers should, at very most, only take the following steps:

–   Review the names and SSN information submitted by the employer to SSA;

–   Provide any necessary corrections to SSA on the Form W2-C within 60 days of receiving the no-match, and/or;

–   Respond to SSA that the employer has confirmed that the names and SSN information provided match the information provided by its employees.

*   Take no further action and to not retain the letter in your files.

The SSA further confirmed in their letter that they are not sharing information with the Department of Homeland Security/ICE and are specifically forbidden to do so under the law and that there are no immigration or work-authorization conclusions to be drawn from the letter.  Among the other interesting tidbits in the letter is that the SSA has mailed out 577,349 letters as of April 26, 2019 which covers the mismatches for tax year 2018 and that the SSA will mail out the remaining letters in the fall. Thus, employers should expect a second wave of these letters coming out later this year.

Again, employers should only check their own records for accuracy and should NOT login to the BSO system. However, if employers do receive mismatch/no match letters that do specifically identify employees, there are different requirements that must be undertaken, which are outlined in our original recommendation.

Thank you again to Chris Schulte of CJ Lake, LLC and Rob Roy of Ventura County Agricultural Association for their hard work and assistance on this matter. Contact The Saqui Law Group, a division of Dowling Aaron Incorporated should you have any further questions on this issue or receive a mismatch/no match letter which specifically identifies employees.

Glyphosate Update

On Tuesday, April 30th the EPA released their Proposed Interim Registration Review Decision for glyphosate, an important step in the registration review process. The EPA responses contains several key comments, including:

“The EPA conducted an independent evaluation of the carcinogenic potential of glyphosate and has determined that glyphosate is “not likely to be carcinogenic to humans.” The agency’s cancer classification is based on a thorough weight-of-evidence review of all relevant data and is in accordance with the agency’s 2005 Guidelines for Carcinogen Risk Assessment.”

“EPA’s cancer evaluation is more robust than IARC’s evaluation. IARC’s evaluation only considers data that have been published or accepted for publication in the openly available scientific literature. As a result, IARC only considered a subset of the studies included in the EPA’s evaluation.”

“The Agency’s cancer evaluation for glyphosate is also more transparent. EPA’s draft cancer evaluation was presented to a FIFRA SAP for external peer review. EPA solicited public comment on the carcinogenic potential of glyphosate as part of the SAP process, which is well-documented with an agenda, transcript, meeting notes, and final SAP report. EPA responded to the SAP report, addressed panel recommendations, and made revisions to its cancer assessment that were transparent and provided to the public. EPA also solicited public comment on its full human health and ecological risk assessment for glyphosate in February 2018. In contrast, IARC meetings are not accessible to the public. Its deliberations are closed, its process does not allow for public comments to be submitted for consideration, there are no materials provided in advance of the meeting, and IARC’s reports are final without an external peer review.”

 

“The EPA has not identified any new information received during the public comment period which ended on April 30, 2018 that would result in changes to the conclusion of its cancer assessment. The agency’s cancer conclusion is consistent with other regulatory authorities and international organizations, including the Canadian Pest Management Regulatory Agency, the Australian Pesticide and Veterinary medicines Authority, the European Food Safety Authority, the European Chemicals Agency, the German Federal Institute for Occupational Safety and Health, the Joint FAO/WHO Meeting on Pesticides Residues, the New Zealand Environmental Protection Authority, and the Food Safety Commission of Japan.”

In addition to the posting of the proposed decision, the EPA also issued strong comments in an interview with the Des Moines Register and in an official press release. The press release includes comments from EPA Administrator Andrew Wheeler and U.S. Secretary of Agriculture Sonny Perdue.

A 60-day public comment period will follow as a next step and then EPA will respond to the comments and issue the Interim Review Decision. That decision will not become final until EPA conducts an Endangered Species Act assessment. There is no set timeline for the final decision.

Tuesday’s comments by the EPA are important and consistent with the findings of regulatory authorities around the world for more than 40 years. Bayer’s official statement can be found online here: https://www.bayer.us/en/newsroom/press-releases/article/?id=123301

Where is the 2019 Cotton Acreage?

Chinese tariffs, depressed cotton prices, but an abundant supply of water have sent mixed messages to cotton growers as they head into the 2019 planting season.  As a result, California is preliminarily only expecting a 1.5% increase in overall cotton acreage for 2019.

According to preliminary planting intentions survey conducted by the California Cotton Ginners and Growers Association this month, the Association is currently estimating approximately 184,000 acres of pima, 17,000 acres of Hazera and 60,000 acres of upland statewide for the 2019 cotton season plus or minus 10%.   This survey is based on surveys from all of the gins in California and things could change when final field surveys are completed by CDFA.  If it plays out, it will represent a 4% decrease in pima acreage and a 25% increase in upland acreage in California as compared to 2018.   Again, this is preliminary, but reflects what all gins are reporting.

Deadline Extension – 2019 Ag Tractor and Mobile Equipment Survey

For the past couple of weeks, the California Air Resources Board (CARB) has been sending out and collecting agricultural equipment surveys from farms, agricultural operators, and first processing facilities.  CARB has partnered with Cal Poly San Luis Obispo to conduct the survey and anonymize the received data, in order to help display the types of equipment being utilized from field to first process.  The survey covers all mobile agricultural equipment including tractors, combines, balers, agricultural use ATV’s, forklifts, and various other equipment.  The data that is collected and organized is utilized to help determine allocation of hundreds of millions in incentive monies targeting the turnover of agricultural equipment from both federal and local air district incentive programs.  The survey submittal deadline has now been extended to May 15th, 2019. 

The survey can be found on Cal Poly’s website by clicking the link below.  If you would like a hard copy, please feel free to reach out to Chris McGlothlin with CCGGA at chris@ccgga.org or by phone at (559) 252-0684.

Cal Poly Ag Equipment Survey Section

California Department of Fish and Wildlife to Consider Listing Four Species of Bumblebees as Endangered

In response to a petition by the Xerces Society, Defenders of Wildlife, and the Center for Food Safety, the Fish and Game Commission (Commission) list four (4) species of bumblebees as endangered under the California Endangered Species Act (CESA).  The California Department of Fish and Wildlife (CDFW) has prepared an evaluation report (Petition Evaluation) for the Petition.  The Commission referred the petition to CDFW.  The four species include Crotch bumble bee, Franklin bumble bee, Western bumble bee, and Suckley cuckoo bumble bee.  After reviewing the Petition and other relevant information, the Department found that “the Petition provides sufficient scientific information to indicate the petitioned action may be warranted. Therefore, the Department recommends the Commission accept the Petition for further consideration under CESA.”

The report cites several factors or threats affecting the ability of all the petitioned species to survive and reproduce and they fall into four main categories: 1) present or threatened modification or destruction of their habitat; 2) competition; 3) disease; and 4) other natural and human-related factors, including pesticide use, genetic factors, and climate change.  Within these categories, agriculture is highlighted many times as posing a threat.  Under habitat destruction, agricultural conversion of lands is cited as a contributor to loss of habitat.  Within the category of competition, the report highlights threats from other species of bees, “particularly of other bee species imported and managed to pollinate crops or produce honey” as a direct threat by reducing pollen and nectar resources.  Under “other factors” the report specifically highlights the use of herbicides and pesticides as having “several negative impacts on native bumble bees, including degrading habitat and removing floral resources, causing direct mortality and sublethal effects, reducing population success and survival rates, and increasing disease risk.

What does all this mean?  The Department now has 12 months to produce a peer-reviewed report based upon the best scientific information available that advises the Commission whether the petitioned action is warranted.  Finally, the Commission, based on that report and other information in the administrative record, then determines whether or not the petitioned action to list the species as threatened or endangered is warranted.  If listed, this will put even more pressure on the use of pesticides and herbicides in agricultural settings.  This will have to be closely monitored over the next several months.

California Employer Update Notices

The updated notices have been released by the Department of Fair Employment and Housing (DFEH) and the Employment Development Department (EDD).  Effective April 1, 2019 the DFEH requires all California employers to post the NEW Family Care and Medical Leave and Pregnancy Disability Leave poster.  This notice was previously named Family Care and Medical Leave (CFRA) and Pregnancy Notice and only employers with 50 or more employees had to post. This new updated notice has a revision date of March 2019 and all employers with 20 – 49 employees must post and employers with 50 or more employees must update their exiting notice.  Please be sure to update your bulletin board(s).  Click this link to print in English/Spanish.

In addition, the EDD has updated two pamphlets: California Paid Family Leave and Disability Insurance Provisions, both have a revision date of March 2019.  These pamphlets are to be provided to new employees and to employees either taking a covered leave of absence or a non-work-related disability leave.  Click this link to print in English/Spanish.

Association Opposes Nighttime Lighting Requirements

his past week the CalOSHA Standards Board held a public hearing on the proposed Nighttime lighting requirements for agricultural operations.  The Association attended the hearing and spoke in opposition to the proposed requirements.  The Association specifically noted the lack of accidents supporting such requirements, and specifically commented on the Board’s flawed economic analysis, which said that you could meet the lighting requirements by purchasing some cheap “rechargeable” lighting masts for only $200, and that you would only need one to comply.  The Association specifically referenced light measurements data submitted to CalOSHA during the Advisory Committee process that demonstrated it would take more than one, and that the “rechargeable” light mast only received the discounted price if you bought in bulk from China.  Proponents of the proposed changes cited alleged accidents and cases of sexual harassments, but did not provide documented proof.  The Standards Board is expected to vote at next month’s board meeting.  Joining the Association in opposition, was the California Farm Bureau Federation, California Association of Winegrape Growers, and the California Poultry Federation.

CCGGA Hotel Registration Deadline – MONDAY

The last day to secure your hotel reservation for the CCGGA Annual Meeting at The Cliffs Hotel and Spa is Monday, April 22nd. The CCGGA Annual Meeting will be held May 15th-17th in Pismo, CA including a welcome reception, Annual Golf Tournament at Avila Beach and Golf Resort, Annual Meeting Dinner featuring comedian Greg Warren and an informative business meeting on Friday covering the latest industry issues. Attendees will received updates from Association staff, USDA-AMS, researchers from the cotton ginning laboratories, National Cotton Ginners Association, National Cotton Council, Supima, Cotton Incorporated, University of California Cooperative Extension and much more. Additionally, attendees will receive critical updates on water, crop protection tools, including paraquat and glyphosate, as well as a Sacramento Update from George Soares.

Registration forms can be filled out and returned to our offies with a check (1785 N. Fine Ave. Fresno, CA 93710) or you may register, sponsor and pay online at www.ccgga-events.com . Forms must be returned by Wednesday, April 24th. Accomodations can be made by calling The Cliffs Hotel and Spa at (805) 773-5000. In order to receive the group rate of $199/night, identify that you are with California Cotton Ginners & Growers Associaiton group.

If you have any questions, please contact our offices at (559) 252-0684.

Tentative Agenda

Regular Member Registration

Associate Member Registration

Social Security Mismatch and Immigration: Where do we go From Here?

Attached is information regarding employers and Social Security “no matches,” courtesy of The Saqui Law Group, a division of Dowling Aaron. Click the button link below for the flyer or follow the direct link for more information: http://www.laborcounselors.com/news-resources/news/20-immigration/581-social-security-mismatch-and-immigration.

For the full six page advisory document click here: http://www.laborcounselors.com/files/Newest_Social_Security_Briefing_l_Final_4122019.pdf

Social Security Mismatch Flyer