Avoiding Harvest Headaches: Planning for your Workforce

Avoiding Harvest
Headaches: Planning for
your Workforce
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Business Models for Hiring Your Workers
 “Volunteers”
 “Independent Contractors”
 Direct Employees
 Farm Labor Contractors
 Vineyard Management Company
 Other
Someone (worker, attorney, agency, court)
may believe YOU are the liable employer.
Know the legal risks
regardless of your
model
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Your Farm Labor Contractors
Someone getting labor for someone else needs an FLC license
Requiring a License
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For compensation…recruits, solicits, supplies or
employs workers to perform labor for another
in the production of or harvesting of farm products
Bids or submits contract offers for the production
or harvesting of farm products
Subcontracts with another for the production or
harvesting of farm products
Employee of an FLC who does the covered work
needs indorsement license
YES if contractor handles hiring and payroll and is the worker’s employer
YES if contractor simply recruits and supplies and that’s it
YOU? Farmer who sends worker to neighbor farm (if condition of employment or
receives compensation from neighbor farmer)
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Exemptions from FLC Licensure
NO licensure needed if work is performed:
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on land or leased by the farmer AND
•
by the owners or immediate families
or permanent employees
Check licensure exemptions carefully
(solicit day-haul work without lodging, etc.)
BOLI Farm Labor Handbook:
http://www.oregon.gov/boli/WHD/FFL/pages/w_ffl_handbook.aspx
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Your Duties (FLC)
Person using FLC has duties, including:
•
Prior to allowing work to begin on any
contract or agreement, you must:
o
Examine the license/permit and ID
the contractor as the same person
in the photo
o
Retain a copy of the license/permit
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Risks (FLC)
Use of unlicensed FLC = BOLI penalty up to $2k per violation
Knowing use of unlicensed FLC = personal liability held jointly
with FLC for:
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Unpaid wages, damages and attorney fees
Retaliation for complaining about wages
Failure to provide certain working conditions
Other acts and omissions
Knowing means: actual knowledge or should have known
Should have known means: knowing facts/circumstances
which with a reasonably diligent inquiry would put person on
notice of act/omission – including person who has means to
inform self but elects not to do so.
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A Word About Non-Employees – “Volunteers” and
“Independent contractors”
UNPAID HELP – Volunteers (and Interns)
Rule: For-profit employers generally may not use unpaid volunteers to
perform work—even where the individual donates his or her services
without expecting compensation.
•
The law assumes someone performing work will be paid.
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A written waiver is not an exemption from the law.
•
Enforcement actions are usually complaint-driven, but BOLI/agency
could initiate.
•
Do not open your doors to the general public to “volunteer” during busy
periods.
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A Word About Non-Employees – “Volunteers” and
“Independent contractors”
Risks include:
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Wage and hour requirements: claims for wages,
overtime, meal and rest breaks;
Workers’ compensation issues (insurance
violations or claims from an injured individual) or
possible liability if that person injures someone;
Claims of discrimination, retaliation, harassment
or violation of other employment laws;
Agency scrutiny of the business, including
providing wage records and time spent
responding to investigators when business is
busiest.
More
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A Word About Non-Employees – “Volunteers” and
“Independent contractors”
INDEPENDENT CONTRACTORS
•
Using a 1099, signing an IC contract, existence of a FLC license – these do not
ultimately control
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Economic realities of situation control
o Multiple factors, fact-specific to each
circumstance
o Key: Who directs and controls work
o Also: Who bears profit & loss risk, who
invested in equipment/materials,
whether service requires special skill, duration of working relationship, etc.
•
DO NOT look at factors with a goal to “fit them” – presumption is employee
unless clearly IC
•
Risks: again, wage and hour claims, accommodation and protected class
protections, and more
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“But That is Someone Else’s Employee!” …. AND Yours?
Joint: two or more people/companies employ this person at the same time for the same job
Joint employment is not your decision
Agency and plaintiffs look for joint employment
•
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Payroll/admin functions to other company does not alone control
Realities of situation control

Multiple, fact-specific factors
 Who directs and controls the work (direct or indirect)
 Who has hire/fire/discipline/pay authority, what is duration of working
relationship, are activities integral part of business, etc.
 Fed test/MSPA: is the worker economically dependent on this company?
o
FLC can be an employee of the farmer, making FLC’s employees the
farmer’s employees
Risks: shared liability (e.g. harassment complaint response, final paycheck, MSPA violations, etc.)
BEHAVE as if you will be deemed a joint employer but
TAKE STEPS to minimize the finding of joint employment
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Employee Handbook - Who Do You Give It To?
Just a few
key policies:
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At-Will employment
Wage & hour, meal and rest periods
Anti-harassment
Electronic communications
Attendance and time off
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Hiring
Choosing workers
• Oregon prohibits:
• Credit checks for nearly all
employees
• Criminal background
question on initial
application (2016 –
“ban the box”)
• I-9 Issues
• Drug & Alcohol Policy –
(marijuana in 2015)
Interviewing workers
• EEOC guidelines on
permissible questions
• Avoid: age, national origin,
pregnancy, disability, arrest
record, marital status, etc.
• Do: Job-related, best practice
to ask applicants similar
questions
• No promises of duration or
terms
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On the Job – Overtime and Minimum Wage
Weekly overtime
general rule:
over 40 hours in a workweek = pay overtime
Daily overtime
rule in
manufacturing:
overtime after 10 hours in a workday (and maximum 13 hours
worked in a 24-hour period)
Exception:
Only means only!
employee
performing ONLY
agricultural work
in workweek are
exempt
from overtime
Agriculture = harvesting …. other ag tasks (tilling soil, growing
commodities, etc.) …. performing tasks performed by farmer on a
farm as incident to/in conjunction with farming operations,
including prepping for market, delivery products to storage, or to
market or carriers for transport to market.
Can include office staff if only work on duties integral to farming
operations
(1) OT owed if any non-ag work performed that is not integral to
farming operations
(2) OT owed if worker handles/works on another employer’s
products
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On the Job – Overtime and Minimum Wage
Minimum wage – $9.25 in Oregon
•
Minimum wage exemptions in agriculture
o
Immediate family
o
Hand harvesters & pruners
o

if employed on farms employing fewer than
500 “piece rate workdays” in any calendar
quarter from preceding calendar year

Piece rate workday = any day during which
an employee performed ag labor on piecerate basis for at least one hour
$9.25
Agricultural commuters
 Local hand harvesters commuting daily from
permanent residence, paid on piece-rate
business, and employed in ag for <13 weeks in
prior calendar year
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On the Job – Meal and Rest Periods
General rules unless you qualify for a NARROW exception
(Ag workers exempt from minimum wage are also exempt from meal & rest)
Meals – 30 minutes unpaid and
completely relieved of duties
• Nonexempt workers 18 years and older
who work:
• < 6 hour shift: No meal period required
• 6-7 hour shift: One meal, taken between
end of second and beginning of fifth hour
worked
• 7+ hour shift: One meal, taken between
end of third and beginning of sixth hour
worked
• Second meal period kicks in at 14 hour shift
• If nature & circumstances qualify under the
law to require employee to work during
meal period, must pay that entire time.
Rest – 10 minutes paid
• Nonexempt workers 18 years and older
who work:
• < 2 hours: No rest period required
• 2 – 6 hours: One rest break, taken in
approximate middle of that work
segment
• 6 – 10 hours: Second rest break kicks in
• For every additional 2+ hours worked
after a 4 hour mark, provide another rest
period at middle of that work segment
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Numbers of Meal and Rest Required Based on Length of
Work Period (BOLI’s Chart)
Length of work period
2 hrs or less
2 hrs 1 min - 5 hrs 59 min
6 hrs
6 hrs 1 min - 10 hrs
10 hrs 1 min - 13 hrs 59 min
14 hrs
14 hrs 1 min - 18 hrs
18 hrs 1 min - 21 hrs 59 min
22 hrs
22 hrs 1 min - 24 hrs
Number of rest breaks required
Number of meal periods required
0
1
1
2
3
3
4
5
5
6
0
0
1
1
1
2
2
2
3
3
No tack-ons:
Cannot tack rest period to meal period for longer lunch
Cannot tack any break to end of day to shorten day
Discipline: If worker refuses to take appropriate breaks, issue corrective action
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Meal and Rest Periods
Breast Feeding Mothers: Employers with 25 or more
employees
Unpaid 30 minutes (for every four hours/two hours 1 minute)
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Cannot count travel to location if not close to work area
Can overlap with normal rest break for 10 minute paid/20
minute unpaid
Can allow worker to make up unpaid time – but only upon her
voluntary choice
Reasonable efforts to provide a non-bathroom “private location”
Refrigeration must be offered if personal use refrigerator offered
generally
Ag exemption applies if exempt from minimum wage
Smokers: No extra break required
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On the Job – Protected Sick Leave – Oregon 2016
January 1, 2016 – Oregon employees accrue legally-protected sick leave
Which employers? Anyone with at least one employee working in Oregon
Which employees? Everyone (seasonal, part-time, etc.) UNLESS independent contractor,
immediate family, or other narrow exception
$$ for time off? Unpaid if 1-9 employees, paid if 10 or more employees (different cutoff if
Portland location – paid if 6 or more employees anywhere in state)
How to count: per day average for 20 workweeks in prior Year
Some of the rules:
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Accrue from day 1 for use on 91st day
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Earn 1 hour for every 30 worked for nonexempt (different formula for exempt)
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Use up to 40 hours per year, one-hour increments
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Detailed rules for qualifying absences, call-in procedures, medical verification,
quarterly notice, etc.
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Cannot deny leave, discipline for absence, or retaliate for taking leave
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Employees can sue in 2016, and BOLI can fine in 2017
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On the Job – Harassment
Racial, Religious,
Gender, etc.
Supervisor
harassment:
• Severe and pervasive,
unwelcome conduct,
offensive to reasonable
person
• For example:
• Derogatory language
and offensive jokes
• Imitating based on
stereotypes
• Uninvited questions or
sharing of a personal,
intimate nature
• If culminates in negative
employment action 
automatic liability for
supervisors
• If not  defense if
employer proves (1)
reasonably act to
prevent and promptly
correct harassment AND
(2) employee
unreasonably failed to
take advantage of those
opportunities
Coworker/customer/in
dependent contractor
harassment:
• Liable if knew or should
have known about
harassment AND failed
to take prompt and
appropriate corrective
action
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On the Job – Harassment
Work with
HR/management
• to conduct a prompt, thorough, unbiased
investigation with follow up, possible discipline, and
appropriate response
Protect yourself:
• written policy, training, prompt investigation &
prompt and effective remedial action
Watch for:
• joint employer issues
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On the Job – Retaliation
• Retaliation may include:
o worse shift, harder job tasks, treating
differently
• Ask: would treatment deter someone
from complaining?
• Follow up / check-ins essential
• Cold shoulder cases
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Ending the Work Relationship
Making the termination decision
DO:
• Be objective
• Know the reason triggering the discharge
• Consider similar situations to watch for
equal treatment
• Allow employee’s side of story
• If “not my employee” -- then act like it
• Watch your communications with the
“real employer” or “independent
contractor”
DO NOT:
• Consider protected class/activity
• Worker complains of unlawful acts –
even if worker is wrong (ORS 659A.199)
• Family relationship (ORS 659A.309)
• Carpool cases
• Worker testifies in a co-worker’s wage
complaint proceeding, etc.
• Gossip or troublemaker?
• BUT also do not ignore the fact of
protected class/activity
• Watch for clues this contributed to your
supervisor’s decision
• Use layoff to deal with performance
issues (generally)
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Ending the Work Relationship continued
Documenting termination reason(s)
DO:
• Write it down
• Can be one line note
• What exactly caused the discharge sufficiently broad to cover everything
considered
• Be accurate
• Do not say “lack of work” if it is
performance
• A changed reason is your worst
nightmare in litigation
• Use the best words:
• Professional, objective tone v. malicious
tone
• Avoid defamatory words (repeated
errors versus incompetent)
DO NOT:
• Use the “wrong” words
• No “whistleblower” language
• No including protected class/activity in
same paperwork.
• The “also…” trap
• Assume the things you write are private
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Ending the Work Relationship continued
Communicating termination reason(s)
DO:
• Communicate the (concise) accurate
reason to the worker
• Tell the Employment Division the (concise)
accurate reason
• No promising to give false reason to UE
• Keep the reason a private personnel
decision and not spread around workplace
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Laws Affecting RIFs
WARN Act – Large employers (100
or more FT) who layoff 33% AND 50
employees in a 30-day period
OWBPA – Releases and Severance
Use caution and seek legal advice
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Paydays and Final Paychecks
Payday at least every 35 days
Accidental
underpayments
without a
dispute:
Small underpayments: can pay next regular payday (best practice: earlier if possible)
Underpayments >5% gross: must pay within 3 business days
No timesheet submitted? Must track and pay anyway (discipline for failure)
Worked OT without authorization? Must pay anyway (discipline for failure)
Tools and
uniforms?
Cannot deduct from wages.
Can require employee to purchase IF:
Makes minimum wage for pay period when purchased (cannot average out) OR
Qualifies for “generic uniform”/streetwear exception
Equipment
breakage,
property
destruction, $
shortage?
Cannot deduct from paycheck (discipline for failure and go to court)
Deductions
Must always comply with Oregon law
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Final Paychecks
Seasonal farmworkers
Pay wages on last day worked
Exception: if worker quits with less than 48 hours’ notice, pay
within 48 hours or next payday, whichever comes FIRST
Other employees
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Discharge or mutual termination → end of next business day
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Best practice: hand it to employee on last day of work
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Quit with < 48 hours notice (business days) → pay within 5
business days or next payday, whichever FIRST
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Quit with 48 hours’ notice → pay on final day worked
Accrued Oregon sick leave (2016): Do not need to pay out
unless your policy says so
Accrued vacation/sick/PTO: If your policy pays out or is
unclear, must pay as wages with final paycheck
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Thank You!
Christie Totten
Attorney, Employment Law
503.778.5298
[email protected]
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