New Year marks start of new laws and regulations

By Caleb Hampton

The start of another year has brought with it new laws and regulations that affect agricultural production in California. As of Jan. 1, new policies related to water, air quality, endangered species and other issues that impact farmers have taken effect. 

This year, agricultural employers must comply with a slew of new state labor laws signed by Gov. Gavin Newsom. 

Employers will need to be cautious about voicing political opinions to employees and avoid discouraging employees from unionizing during required workplace meetings. 

Senate Bill 399, authored by state Sen. Aisha Wahab, D-Hayward, prohibits employers from discussing with employees their “opinion about religious or political matters,” including whether or not employees should form unions. 

The law is aimed at banning so-called “captive audience meetings,” which supporters of the law say can be used to intimidate workers from exercising their right to unionize. Opponents of the law criticized its potential infringement on employers’ right to free speech. 

“The measure’s scope is broader than advertised by its proponents because of the wide range of topics an employer is prohibited from talking to employees about, and the communication impacted by the bill might not be limited to employee meetings,” said Bryan Little, chief operating officer of Farm Employers Labor Service and a senior director of policy advocacy for the California Farm Bureau.

Meanwhile, three new state laws affect the way agricultural workers can use paid and unpaid time off, giving workers more flexibility and greater access to certain types of leave. 

Under Assembly Bill 2123, authored by Assembly Member Diane Papan, D-San Mateo, employers can no longer require that employees use as much as two weeks of vacation time before taking paid family leave, the state funded program that partially replaces wages for workers who take time off to care for a newborn child or family member. 

AB 2499, authored by Assembly Member Pilar Schiavo, D-Chatsworth, allows workers to use paid sick time to perform jury duty. It also allows employees to take protected unpaid leave if they or a family member are the victim of a “qualifying act of violence.” The leave must be related to at least one of several “prescribed purposes relating to” the act of violence.

SB 1105, authored by state Sen. Steve Padilla, D-San Diego, allows agricultural workers to use paid sick days to avoid working in hazardous conditions such as extreme heat, flooding or wildfire smoke. Extreme conditions would only trigger the new law if the weather event is declared a local or state emergency. 

The new law, however, does not in practice require agricultural employers to make significant changes because employers were already not allowed to request proof from employees that paid sick leave was being used for the purposes authorized by paid sick leave laws.

As of Jan. 1, farm labor has become more expensive. At the federal level, farm employers who hire foreign guestworkers through the H-2A visa program must pay the workers a higher wage after the U.S. Department of Labor announced it was raising the Adverse Effect Wage Right, or AEWR, for the program.

The AEWR is the minimum hourly rate for agricultural guestworkers. In California, the rate increased from $19.75 to $19.97, surpassed only by Hawaii’s wage rate for H-2A workers.

In November, California voters narrowly rejected a ballot proposition that would have raised the overall minimum hourly wage for all nonexempt employees in the state from $16 to $18. However, minimum wage in California still increased Jan. 1, rising to $16.50. 

This is the first year that California’s agricultural overtime law, which was enacted in 2016, is completely phased in, with small-scale farmers joining other agricultural employers in being required to pay overtime to employees who work more than 8 hours in a day or 40 hours in a week.

According to a study by researchers at the University of California, Berkeley, the agricultural overtime law has caused an overall loss in earnings for farmworkers due to employers restricting hours to avoid paying overtime. 

There are new policies that affect the penalties the California State Water Resources Control Board can implement for unauthorized water diversions and late reporting. 

AB 460, authored by Rebecca Bauer-Kahan, D-Orinda, increased fines the SWB can impose for unauthorized diversions from $1,000 per day to $2,000 per day, while the penalty for failing to report flood flow diversions increased from $500 per day to $1,000 per day. The penalty for violating a curtailment order increased from $500 per day to $10,000 per day—a 20-fold increase—and $2,500 per acre-foot of water diverted. 

Additionally, under a regulatory change by the SWB, water rights holders face new fees this year if they are late to report their annual water diversions, which must be submitted each year between Oct. 1 and Jan. 31. After a 30-day grace period this year, beginning March 2 late fees will begin to accrue.

Implementation of California’s Sustainable Groundwater Management Act reaches a milestone this year. Under the landmark legislation, the Department of Water Resources will conduct periodic evaluations of the Groundwater Sustainability Plans submitted by Groundwater Sustainability Agencies.

For GSAs in critically overdrafted basins, the first five-year review of their plans will happen this year.

Another law whose phase-in reaches completion this year, affecting small-scale farmers for the first time, is a near total ban on open agricultural burning in the eight counties in the San Joaquin Valley Air Pollution Control District. The law, enacted in 2003 and postponed several times, aims to improve air quality in the San Joaquin Valley. 

Open burning has long been the cheapest and easiest way to dispose of orchard and vineyard removals. In 2018, the air district launched a funding initiative called the Alternative to Open Ag Burning Incentive Program, offering farmers grants to offset disposal costs. The program continues to accept applications, with higher compensation rates for smaller farms. 

Already in effect since October are new protections for an owl commonly found on California farms. The California Fish and Game Commission listed the Western burrowing owl as a candidate for threatened species status. Burrowing owls live in grasslands, deserts and agricultural lands across California. 

As a candidate species, under state law the burrowing owl is afforded the same protections as a threatened species. They cannot be “taken,” meaning killed or captured, although the California Fish and Game Code provides a take exemption for routine and ongoing agricultural activities. When an accidental take occurs, it must be reported to the California Department of Fish and Wildlife within 10 days. 

(Caleb Hampton is an assistant
editor of Ag Alert. He may be contacted at champton@cfbf.com.)