NEWS & ISSUES

Updated Fair Employment and Housing Council Employment Regulations Regarding Religious Creed and Age Discrimination

Please find the attached summary developed by staff at Kahn, Soares and Conway.  If you have any questions, please feel free to reach out to the Association at chris@agprocessors.org or by phone at (559)-547-0288.

Background
On April 14, 2020, the Fair Employment and Housing Council (“FEHC”) finalized a rulemaking action that implements, interprets, and makes specific the employment provisions of the Fair Employment and Housing Act (“FEHA”), most notably clarifying what pre-employment practices are now prohibited. The newly amended language clarifies what constitutes employment discrimination based on religious creed or age by including examples of disparate impacts and providing details regarding pre-employment inquiries, job applications, and advertisements. This action becomes effective July 1, 2020.

FEHC Amendments
The following list summarizes the FEHC’s amendments to the originally proposed text:

  • Antiquated, lengthy language replaced “minorities” with a more modern rendering: “an individual who is a member of an underrepresented protected class covered by [FEHA]”
  • Amends age discrimination to apply to individuals age 40 and older
PRE-EMPLOYMENT INQUIRIES AND SCHEDULE INFORMATION
  • Circumstances clarified regarding permitted pre-employment questions relating to the physical fitness, medical condition, physical condition, or medical history of applicants
  • Clarification that an application request for information related to schedule and availability for work may not be used to ascertain an applicant’s religious creed, disability, or medical condition
    • Ex: “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?”
  • Renders online application technology that limits or screens out applicants based upon age a potential FEHA violation
    • Must include a mechanism for the applicant to request an accommodation
    • Clarifies that the prohibition against applications separated or coded includes both manual or electronic separating and coding
    • Entry of age in order to access or complete an online application or the use of drop-down menus that contain age-based cut-off dates now prohibited
ESTABLISHING AGE DISCRIMINATION
The new language establishes age discrimination if a facially neutral practice has an adverse impact on applicants or employees age 40 and older; in other words, age discrimination does not have to be intentional.
  • Business necessity affirmative defense properly rendered (i.e. “job-related and consistent with business necessity”), including in the context of layoffs or salary reduction efforts
  • A plaintiff may now show that “an alternative practice could accomplish the business purpose equally well with a lesser discriminatory impact.”
RECRUITMENT AND ADVERTISING
  • Examples of unlawful requirements regarding age discrimination in recruitment: maximum experience limitation, requirement that candidates be ‘digital natives’[1], requirement that candidates maintain a college-affiliated email address
  • Eliminates the need to infer intent when analyzing the lawfulness of advertisements
    • Examples of unlawful language: “…young, college student, recent college graduate, boy, girl, or other terms that imply a preference for employees under the age of 40.”
    • Examples of prohibited inquiries: “requests for age, date of birth, or graduation dates, excepting where age is bona fide occupational qualification.”
Recommendation
Requests for information that could lead to the disclosure of an applicant’s age are not unlawful, but any inquiries that deter or limit applicants based on age or religious creed are unlawful. Therefore, we recommend that employers review all application forms – provided in paper or via website and including application software or technology – hiring materials, questionnaires, job postings, and any other marketing materials used for recruitment and advertising. All pre-employment materials should be revised according to the above provisions in order to be in compliance with the newly amended regulations regarding religious creed and age discrimination. All updates or revisions must be implemented prior to July 1, 2020.For questions regarding the FEHC amendments, please reach out to Chris McGlothlin at chris@agprocessors.org, or by phone at (559) 547-0288.

Cal/OSHA Issues New Guidance on Workplace Safety Related to COVID-19 for Agriculture

This week, Cal/OSHA has released new guidance and checklists for Agriculture and Livestock, and for Food Packing and Processing.  This new guidance is intended to support a safe, clean environment for workers in these areas.  The update now mandates a “written worksite specific plan” for these operations to protect workers.  Included in the guidance is information on what is required in the written plan, training topics, individual control measures, cleaning and disinfecting protocols, and physical distancing guidelines.  To assist our members in this area, staff is currently developing a template plan, inspection checklist, training materials and developing a supervisorial training webinar the Association will be conducting in the very near future.

Here are the new Guidance Documents and General Checklists:

• COVID-19 Industry Guidance: Agriculture and Livestock
• Cal/OSHA COVID-19 General Checklist for Agriculture and Livestock Employers
• COVID-19 Industry Guidance: Food Packing and Processing
• Cal/OSHA COVID-19 General Checklist for Meat, Dairy, or Produce Packing or Processing

Stay tuned for more information!

Governor Newsom Issues Executive Order on Workers’ Compensation

On May 6, 2020, Governor Newsom announced he signed an Executive Order to expand the scope of workers’ compensation benefits during the COVID-19 Pandemic. This was in response to front line workers and others in the essential workforce contracting the virus and movement by the Legislature to expand workers’ compensation coverage through legislation.
The Governor announced the Executive Order will do the following:

1.  The Executive Order is retroactive to March 19 and extends for 60 days from today’s announcement.
2.  Employees working outside the home that test positive for COVID-19 or are diagnosed positive by a physician or surgeon licensed by the California Medical Board within the time period of the Executive Order are presumed to have contracted the disease at the workplace. If it is a diagnosis, the diagnosis must be confirmed by a positive test within 30 days.
3.  The presumption applies to all employees directed to work outside the home by their employer. It is not limited to essential employees.
4.  The presumption is rebuttable by the employer, however, the time for the employer to deny a claim is reduced from the current 90 days to 30 days.
5.  The rebuttable presumption is in effect for 60 days from May 6, 2020, but coverage continues after the 60 day expiration date.
6.  Temporary disability payments begin only after the employee uses all other state or federal sick leave benefits.
7.  Re-testing is required every 15 days during first 45 days of temporary disability payments.
8.  The Department of Industrial Relations will not require or accept a “no beneficiary” death benefit.

We suggest you reach out to your individual workers’ compensation insurance provider to determine how the Executive Order will impact your business and the procedure to follow should you have an employee test positive for COVID-19.
A link to the Executive Order can be found here. For any questions regarding the Executive Order, please reach out to Louie Brown at lbrown@kscsacramento.com.

CCGGA Annual Meeting Cancelled

Due to the ongoing situation with COVID-19 and the uncertainty surrounding the end of the “Shelter in Place” order, the Board of Directors of the California Cotton Ginners and Growers has voted unanimously to cancel the 2020 Annual Meeting scheduled for May 13th in Visalia.  The annual financial audit, yearly financials and board actions will be considered at the June 3rd Board Meeting in Fresno.   Details on that meeting will be forthcoming when the COVID-19 crisis eventually comes to a close.

Association Weighs in Against Workers Comp Proposal

The Association joined several other agricultural organizations in expressing opposition to a potential Governor’s Executive Order to address COVID-19 under workers compensation that could place a massive economic burden on California businesses even in cases where it had nothing to do with work.  We are hearing that Governor Newsom is considering the following:

1) Creating a conclusive presumption – i.e., no ability to dispute that an injury was work related – for anyone deemed “essential” on the attached, very expansive list applying during the COVID-19 response time, including all farm workers, restaurant workers, workers in food processing, workers in transport, laundry services, cannabis shops, and health care workers. This would allow millions of workers in the state of California to get workers’ compensation funds from employers regardless of whether they contracted COVID-19 at work or otherwise.

2) Extending the definition of an injury to “exposure” to COVID-19 even without symptoms or actual illness.  This would create payments from business for individuals with no injury at all.

3) Adding additional costs to business for temporary housing to quarantine workers recommended for quarantine, regardless of actual illness.

4) The ability to have a presumption of injury arise, without any formal testing, if a doctor of any type able to treat in workers’ compensation (chiropractors, orthopedists, podiatrists), concludes someone has COVID-19.  This is very similar to the primary treating presumption that tripled rates for business in the early 2000 period.

Unfortunately, one company, State Compensation Insurance Fund, has already adopted some of these provisions in advance of any directive.  Nonetheless, the Association remains opposed and will continue to fight this and other regulatory burdens being place on the agricultural industry even during these unbelievably critical times.

Over 150 Water and Agricultural Organizations Urge Congress and the White House to Address Western Water Challenges

The Association joined a coalition of 150 organizations representing water and agricultural interests in the western U.S. in urging Congress and President Trump to address aging Western water infrastructure as further measures are considered to help the U.S. economy recover from the ongoing coronavirus crisis.  “The COVID-19 pandemic underscores the importance of safety and stability provided by domestic food production,” the groups stated in separate letters to Congress and the President. “As this crisis has pointed out, a stable domestic food supply is essential and of national security interest. For farmers and ranchers to survive, and for food to continue to be produced here in the American West, a stable water supply is a necessary part of any conversation about our national food security.”  President Trump has stated his belief that renewed efforts to meet the systemic infrastructure demands of the nation will be an important step in combating the long-term impacts of the pandemic.  “We strongly agree,” the organizations stated in the letter to the White House. “In particular, we urge you to advance critically needed investments that address the shortcomings of our aging Western water infrastructure.”  Existing water infrastructure in the West needs rehabilitation and improvement. Most of the federally funded water infrastructure projects that benefit the large cities, rural communities and small farms in the West were built more than 50 years ago. As hydrological conditions in the West change and populations continue to expand, failure to address water security has become increasingly critical.  “Failing to improve water infrastructure and develop supplies will inevitably result in additional conflict as pressure grows to ‘solve’ urban and environmental water shortages,” the groups stated in the letter to Congress. “Moving water away from Western irrigated agriculture will surely contribute to the decline of our national food security.”  The coalition letters emphasize that water conservation, water recycling, watershed management, conveyance, desalination, water transfers, groundwater storage and surface storage are all needed in a diversified management portfolio.

“If and when additional infrastructure funding is discussed as part of a larger economic stimulus package, we need your help to ensure that federal dollars flow to the water infrastructure needs mentioned above,” the letters conclude.

USDA to Purchase Up to $3 Billion in Agricultural Commodities, Issue Solicitations for Interested Participants

As part of President Trump and Secretary Perdue’s April 17th announcement of a $19 billion Coronavirus Farm Assistance Program, USDA today announced that it is exercising authority under the Families First Coronavirus Response Act to purchase and distribute up to $3 billion of agricultural products to those in need. USDA will partner with regional and local distributors, whose workforce has been significantly impacted by the closure of many restaurants, hotels, and other food service entities, to purchase $3 billion in fresh produce, dairy, and meat products. USDA’s Agricultural Marketing Service (AMS) will procure an estimated $100 million per month in fresh fruits and vegetables, $100 million per month in a variety of dairy products and $100 million per month in meat products to provide a pre-approved box of fresh produce, dairy, and meat products to food banks and other non-profits serving Americans in need.

USDA will issue a solicitation in the next two weeks to invite proposals from offerors to supply commodity boxes to non-profit organizations, identified by the offeror, on a mutually agreeable, recurring schedule. USDA will award contracts for the purchase of the agricultural products, the assembly of commodity boxes and delivery to identified non-profit organizations that can receive, store and distribute food items.

An informational webinar for interested participants will be held at 2 p.m. EDT on Tuesday, April 21, 2020, to provide an overview of the program and instructions for submitting offers. Register in advance for this webinar here: https://www.zoomgov.com/webinar/register/WN_hDiBdM_aSYmWps0RiO-UAg. If you are unable to participate in the webinar, a recording will be available.

Email questions to USDAFoodBoxDistributionProgram@usda.gov. To receive updates by e-mail, subscribe online by visiting: “Stay up to date on USDA Food Purchases” available on the AMS Commodity Procurement website.

California Announces Two-Weeks of Paid Leave for Essential Workers In The Food Sector

By: Michael C. Saqui, Jennifer M. Schermerhorn, and Rebecca A. Hause-Schultz

At his press conference today, April 16, 2020, Governor Newsom announced Paid Supplemental Sick Leave for essential workers in the food sector. According to the Governor, this Supplemental leave only impacts employers not already covered by the Families First Coronavirus Response Act (“FFCRA”), for example, those with over 500 employees. The Governor described the Supplemental leave as a “gap” filler.
The California Paid Supplemental Sick Leave is two weeks of supplemental paid leave, for workers who have contracted COVID-19 or are under quarantine or isolation orders. The program was apparently developed as an effort with the Governor, John Grant, of UFCW Local 770 and Ron Fong, President and CEO of the California Grocers Association.

Why Can An Employee Take the Supplemental Leave?
The Executive Order, available here, orders that “Food Sector Workers” are entitled to “COVID-19 Supplemental Paid Sick Leave” for any of the following reasons:

  1. The Worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The Worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  3. The Worker is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Who is a “Food Sector Worker”?

  • The Worker is “Essential” Under the Governor’s Stay at Home Order, leaves home to perform work AND any of the following:
  • Any Worker under Wage Order 3 (Canning, Freezing, and Preserving), 8 (Industries Handling Products After Harvest), 13 (Industries Preparing Agricultural Products for Market, on the Farm), or 14 (Agricultural Occupations);
  • Any Worker employed by a food facility operator;
  • Any worker that delivers food from a food facility

How Many Hours Are Full Time vs. Part Time Employees Entitled to? 
Eligible workers are entitled to 80 hours of COVID-19 Supplemental Paid Leave if:

  1. They are “full time” or
  2. The Worker worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks before the Worker took COVID-19 Supplemental Paid Sick Leave.

Eligible workers who don’t fit into the “full time” category above for the amount of paid leave as follows:

  1. If the Worker has a normal weekly schedule, the total number of hours the Worker is normally scheduled for in a two week period; or
  2. If the Worker has variable hours, fourteen times the average number of hours the Worker worked each day in the six months before the COVID-19 Supplemental Paid Sick Leave. If the Worker has worked less than six months, then base the calculation on the entire time the Worker has worked with the employer.

What About Required Paid Sick Leave (PSL) Under Labor Code section 246 (the three-days of PSL)?
This COVID-19 Supplemental Paid leave is in addition to PSL available under Labor Code section 246.

How is the COVID-19 Supplemental Paid Sick Leave Compensated?
The highest of:

  • The Worker’s regular rate of pay for the last pay period;
  • The State minimum wage;
  • The local minimum wage.

There is a CAP of $511 per day and $5,110 in total over the period this Executive Order is in effect.

Can the Employer Require Use of other Paid or Unpaid Leave First?
No. An Employer may not require a Worker to use any other paid or unpaid leave, paid time off, or vacation time before the Worker may use COVID-19 Supplemental Paid Sick Leave.

COUNSEL TO MANAGEMENT:
This is very much a developing story and many questions remain unanswered. We will keep you updated as more guidance becomes available from the Labor Commissioner’s Office. Contact the experts at Dowling Aaron, Saqui Law Group Division, if you have questions about this Executive Order, COVID-19 and your business, or any labor or employment matter.

Governor Announces Paid Sick Leave Benefits for Food Sector Workers Impacted by COVID-19

Governor Gavin Newsom today signed an executive order to support California workers from large employers in the food sector industry impacted by the COVID-19 pandemic with two weeks of paid sick leave, filling a gap left by federal relief that had provided similar paid leave benefits for employers with fewer than 500 workers.  Workers in the food sector, including farmworkers, agricultural workers, and those working in grocery stores and fast food chains, and as delivery drivers, are part of the state’s essential infrastructure workforce, and have continued to work to serve Californians.  Unlike federal law though, there is no tax relief or credit associated with this cost.  The Executive Order applies to Wage Orders 3, 8, 13, and 14, and certain food facilities (such as grocery stores), and those that deliver food to those food facilities.  Additionally, the Executive Order provides health and safety standards to increase worker and customer protection by permitting workers at food facilities to wash their hands every 30 minutes, or as needed, to increase proper sanitation measures.

SBA Approved Lenders for the Paycheck Protection Program (PPP)

With the passage of H.R. 748 (CARES Act) by the Federal Government last week, many are scrambling to take advantage of the billions of dollars dedicated to the Paycheck Protection Program (PPP).  The Association has been in contact with our Associate Membership bank representatives to try and narrow down the list of approved lenders for the PPP.  Many of these providers are encouraging businesses to apply for the PPP with their current bank.  Applicants are flooding banks with applications, and many have taken the policy that current members will take priority.  The list provided below are currently approved to administer PPP loans, however, this list will be updated when our other associate-member banks are included into the PPP program.  Please remember to support those that support the Association and the industry.

Bank Name Phone # Email
Bank of America Victor Thao 559-355-7294 victor.thao@baml.com
Oak Valley Community Bank Jeff Hushaw 209-844-7965 jhushaw@ovcb.com
TCF Equipment Finance Wayne King 209-617-3371 wking@tcfef.com
Comerica Bank Kevin Gilio 559-244-3924 kmgilio@comerica.com