Update: Legislature sends heat-illness bills to the governor; overtime bill fails


Issue Date: September 5, 2012
By Christine Souza

In the final hours of its 2011-12 session, the state Legislature approved two bills opposed by agricultural groups that would allow private enforcement or impose stricter penalties related to the state heat illness prevention standard.

Both bills were sent to Gov. Brown before the Legislature concluded its session on Friday. Agricultural organizations said they would ask the governor to veto the bills.

A third labor-related bill that would have affected overtime pay rules for agriculture failed on the last day of the legislative session. Assembly Bill 1313 by Michael Allen, D-Santa Rosa, needed 41 votes to pass the Assembly in a final vote. The bill fell six votes short, failing 35-33.

One of the heat-illness bills, AB 2346, which passed the Assembly by a 42-33 vote and the Senate by a 21-12 vote, would allow workers to sue employers for violations of the heat standard and make farmers and ranchers jointly liable for violations of their farm labor contractors.

California Farm Bureau Federation Director of Labor Affairs Bryan Little, who also serves as chief operating officer of the Farm Employers Labor Service, said AB 2346, by Betsy Butler, D-Los Angeles, "creates new risks for farm employers to be exposed to 'bounty-hunter' lawsuits brought by predatory lawyers."

He said the bill's joint-liability provision for a single type of occupational safety violation "makes no sense, when farmers already must exercise due diligence to make sure they are hiring licensed farm labor contractors who have met state-imposed standards for knowledge of state labor regulations like the heat illness prevention standard."

The lawsuit provisions of AB 2346, known as "a private right of action," create "bad policy," Little said, because the state agency charged with enforcing the heat regulation "is already making a huge effort to enforce their standard and outreach to employers to enhance compliance."

Also headed for the governor's desk is AB 2676, by Charles Calderon, D-Whittier, an effort to expand heat illness penalties. The bill passed the Assembly, 45-28, and the Senate, 24-12.

AB 2676 would require farm employers or farm supervisors to provide employees with continuous and ready access to an area of shade sufficient to allow the body to cool, even when temperatures are moderate.

It also requires potable water that is suitably cool and available in quantities sufficient to allow employees to drink one quart of water per hour throughout their work shift. A violation of this law would be a misdemeanor punishable by potential jail time and monetary fines. If an injury results from the failure to provide shade and water, the fines would be increased.

As introduced, AB 2346 would have written into the Labor Code for only agricultural employers an unworkable version of the Cal/OSHA Heat Illness Prevention Standard, which has applied since August 2005 to all employees working outdoors. It included provisions to require shade with seating or insulating ground covering within 200 feet and water within 10 feet of every worker.

As amended on Aug. 21, all of those types of requirements were deleted from AB 2346, but the measure would still increase farm employers' litigation exposure with "bounty-hunter" lawsuit provisions allowing workers to sue employers for damages where a violation of the Cal/OSHA standard had a "direct relationship" on employees' health or safety.

Agricultural organizations criticized a revision to the bill seemingly meant to narrow farmers' exposure to litigation in the form of a "repeat offender" restriction. That status would result from the commission on any two days in a three-year period of a violation as minor as a failure to remind employees to drink plenty of water throughout a shift during high-heat conditions.

Under the bill, once a farmer or farm labor contractor is labeled a repeat offender, there is no way to escape that status, and a farmer becomes a repeat offender simply by using a farm labor contractor who is a repeat offender. Moreover, no court or agency needs to have previously made a repeat offender finding; the mere allegation in a lawsuit is enough to trigger that status if it is ultimately proved in that same suit.

AB 2346 would impose per-employee, per-day civil penalties of up to $200,000.

The overtime bill, AB 1313, would have required payment of one-and-one-half times an agricultural employee's regular rate of pay for hours worked after eight hours in any day or 40 hours in a week, and double-time for hours worked after 12 hours in a day. Under current law, farm employees in California receive overtime for work beyond a 10-hour day or on the seventh day worked in a week.

"Requiring overtime after eight hours a day or 40 hours a week ignores the realities of working on a farm, and could actually have reduced the take-home pay for farm employees because many farm employers would have reduced the hours available to workers to control costs," CFBF President Paul Wenger said.

Wenger, who testified at a legislative hearing on the overtime bill, noted that California is one of the few states that provide overtime provisions for agricultural employers. He said farmers cannot control the weather or market conditions, and policymakers recognized this reality when they created the 10-hour workday in agriculture.

Farm organizations conducted an extensive advocacy campaign during the final week of the legislative session to convince legislators that the overtime bill should be defeated, and Wenger said outreach by county Farm Bureaus and individual farmers and ranchers had proven decisive.

"Our Farm Team alerts generated more than 8,500 opposition letters," he said, "and we thank all those who took the time to contact their legislators. Farmers and ranchers made the case that the bill would have harmed both farmers and their employees."

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.