Farming labor contracts

License to Till: Farm Labor Contractor Obligations Have Increased

California requires Farm Labor Contractors (FLCs) to be licensed by the State.  Licensing requirements include taking an exam, maintaining a farm labor contractor bond, promptly paying earnings to agricultural employees based on clearly stated rates of pay, and other responsibilities.  From time to time the legislature expands the responsibilities of FLCs.  Those responsibilities have grown yet again in 2018.

FLC responsibilities were expanded back in 2015 to include requirements for sexual harassment training.  A requirement in this area that was added in 2018 is that such training must now be in the language understood by the employee, which of course might not be English.  While this change has received some amount of publicity, other requirements have come into effect that should not be overlooked.  Civil penalties may now be imposed if an FLC fails to perform or comply, or misrepresents performance or compliance, with any of the following:

The FLC’s supervisorial employees have been trained at least once for at least two hours each calendar year in the prevention of sexual harassment in the workplace.

All new non-supervisorial employees, including agricultural employees, have been trained at the time of hire, and have been trained at least once every two years, in identifying, preventing, and reporting sexual harassment in the workplace.

The minimum requirements of sexual harassment prevention training include (among other things): an internal complaint process of the employer available to the employee; the legal remedies and complaint process available through the California Department of Fair Employment and Housing; directions for how to contact the Department of Fair Employment and Housing; and educating employees that the law protects employees against retaliation for reporting sexual harassment.

At the conclusion of the training, the trainer must provide each employee with a copy of the Department of Fair Employment and Housing’s pamphlet (DFEH-185), and a record of the training on a form provided by the Labor Commissioner that includes the name of the trainer and the date of the training.  The FLC must keep a record for three years with the names of all employees who have received sexual harassment training.

Each violation can be punished by a penalty of $100.  The penalties can multiply for each violation relating to a one trainee, and also for failures to comply for multiple trainees.

Note also that in an application for an FLC license or renewal, the California Labor Commissioner must now deny the application if the statement shows unpaid wages, unless the FLC applicant submits a bond or cash deposit to guarantee payment of the wages, or a notarized accord demonstrating satisfaction of the obligation.

FLCs and growers must contend not only with the California Labor Commission, but also with the U.S. Department of Labor.  In February of 2018, a Central Coast contractor was fined $168,082 for housing workers in “inhumane” conditions.  The FLC was providing overcrowded housing for 22 workers with only one shower and sink, and a restroom infested with insects.  The Department of Labor found that the FLC provided such housing to agricultural workers during the lettuce and cauliflower harvests in Monterey County during the summer of 2017, and imposed the fine.

Grower Dilemmas and Alternatives

A developing scarcity of agricultural workers has been particularly acute in California’s wine-making industry.  One consequence of this is that even the most diligent FLC must contend with the fact that illegal immigrant farmworkers are presenting increasingly sophisticated fraudulent documents.  The scarcity of workers has been attributed to several factors, including increased border security, competition from other industries (construction and hospitality in particular), as well as to the costly and time-consuming application processes for the H-2A visa, work permits and for green cards.  In light of these developments, growers are naturally inclined to retain FLCs to handle their staffing needs.

Under California law, however, even when FLCs are true independent contractors and the grower has little power over the day-to-day work, a grower can sometimes still be found to be a “joint employer,” with direct legal responsibilities to farmworkers.  In such cases courts will consider the nature and degree of the grower’s control over the operations, the investment in equipment or materials required for the work, the degree of permanency and duration of the working relationship, and the extent to which the services rendered by the farmworkers are an integral part of the grower’s business.

In light of the various challenges presented, FLCs are best advised to carry insurance that will cover claims that they made mistakes in handling their various obligations.  Growers are best advised to require FLCs to carry such insurance, and to require that the FLC add the grower’s name as an insured on such insurance policies.

(The authors thank Santa Clara University law student Linnea Doan for research for this article.)

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Alan Haus Bio

David Tate, Esq. & Alan Haus, Esq.