Florida Agriculture Labor Relations Forum — ‘Just here to scare you’

Ag Labor Forum covers multiple areas of concern

Some interesting labor-related developments took place in 1974, including passage of the Right to Work law, which protects freedom of choice in union membership. It also was the first year of the Florida Annual Agriculture Labor Relations Forum. The forum marked its 40th year in Orlando on Sept. 11-12 by offering seminars on eight topics of interest to agricultural employers.

Presented by the Florida Specialty Crop Foundation, the forum helps employers understand complicated workforce regulations, laws and procedures ranging from audits to health care, and transportation to guest-worker visa programs.

In kicking off the event, Frank Gasperini of the National Council of Agricultural Employers gave a nod to the event’s 1970s roots while emphasizing the need for immigration reform. “Who remembers gas lines? Isn’t food more important than oil? Wouldn’t it be bad to be dependent of foreign food?”

Because the food Americans eat is harvested by a non-native workforce, Gasperini said, it’s important to tell Congress that if producers don’t have a legal and viable workforce, Americans will be dependent on foreign food sources. He apologized for not having better news for the group, adding that “small tweaks and litigations may be the only things we can do till 2016.”

Changes coming to the Worker Protection Standard

Dale Dubberly of the Florida Department of Agriculture and Consumer Services discussed changes coming to EPA’s Worker Protection Standard for Agricultural Pesticides. Although the proposed changes are not final, he expects substantive changes because EPA has said the current regulations are not effective. One change he expects is in the pesticide training certification program. “The train-the-trainer program will not be a four-hour course any longer. It will be a two-day course,” he said.

Other major proposed changes in the WPS, Dubberly said, include increased frequency of mandatory training (from once every five years to annually) to inform farmworkers about the protections they are afforded under the law, expanded mandatory posting of no-entry signs for the most hazardous pesticides, and a first-time-ever minimum age requirement with an exemption for family.

Dubberly said the EPA has not announced a definite date for implementation. Public comments were collected until Aug. 18.

FFVA’s Carlton and Synan on the H-2A program

“The big issue is: Do we have enough good, able workers? And the answer clearly is no,” said Mike Carlton, FFVA’s director of labor in the session on the H-2A guest-worker visa program. Carlton said the H-2A program, even with its faults, is the only real option to provide workers you need “usually when you need them.” The benefit of the program is that producers know how many workers will report, it’s legal, and the employer will have a mostly productive work force, he said.

Carlton and Christine Synan, FFVA’s labor relations and workforce coordinator, outlined procedures, important steps to remember and special challenges producers face when using the H-2A program.

Lana Khoury, ombudsman from the Department of Homeland Security’s Office of Citizenship and Immigration Service, offered problem-solving advice and explained the purpose of her office. “The ombudsman’s office has been a godsend to use,” Carlton said.

Navigating ICE-y waters

Kim Thompson, an attorney from Fisher & Phillips in Atlanta, offered advice on E-Verify and Form I-9 compliance. E-Verify is an online system that allows businesses to determine the eligibility of their employees to work in the United States. Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, whether they are citizens or noncitizens.

Thompson said that the U.S. Citizenship and Immigration Service now looks more at employers than at employees, and the goal for the agency is to create a culture of compliance. She stressed the importance of timely completion and accuracy when submitting I-9 forms. She also advised employers to use a new two-page form rather than a dated one-page version.

She also predicted an increase in the use of E-Verify and advised employers to conduct self audits.

Whose employees are they anyway?

Attorneys Ann Margaret Pointer and David Young of Fisher & Phillips told participants that it’s best to figure that “everyone is going to get sued” when it comes to wage and hour issues and determining who the employer is when contractors and others are involved. Their workshop, “Joint Employment: Different Laws/Different Meanings/Different Risks,” emphasized that official definitions of employer are very broad. It’s important to address issues such as who is responsible for providing benefits and what policies apply to which type of worker.

Florida Department of Transportation Update: ‘Basically, I’m here to scare you’

Tracy McQuilken, who recently retired and started her own business after 30 years of experience with Department of Transportation rules and regulations, reminded forum participants of their responsibilities when hiring drivers and maintaining vehicles.

“Basically, I’m here to scare you,” she said. “I know some regulations seem silly, but you have to cross your T’s and dot your I’s.” She said Florida has adopted federal statutes with some differences.  Recordkeeping is of paramount importance, with forms being filled out completely and accurately. Hours worked must be tracked in a log. In addition, accident registers must be filled out and driver information must be on file, McQuilken said.

Government audits: Lessons from the trenches

David Stefany of Allen, Norton & Blue, P.A. outlined government audits and common problems related to each type. Stefany said there is no better time than now to be compliant with laws and regulations. “There have never been this many auditors on the job,” he said.  Audits he covered included Department of Labor Wage and Hour audits, ICE audits, H-2A and fair employment practices audits.

Stefany advised employers to make legal and regulatory compliance an operational priority. He strongly encouraged them to perform self-audits to identify possible problems, establish procedures and designate a person to handle audits. “Make sure it’s the right person, not that one manager with the short fuse.”

Avoiding ‘hours worked’ problems under FLSA

David Buchsbaum handles management-side labor and employment law with Fisher & Phillips, with a focus on wage and hour issues. His presentation covered potential problems when workers come to work early, stay late, and other situations. Workers must be paid under the Fair Labor Standards Act if an employer knew or should have known that a worker was putting in time on the job, whether the work was requested or not. “If they start working before their start time, you have to pay them,” he said.

The name of the game is to avoid lawsuits, he said. “You’ve already lost if you have to pay a lawyer. Do everything right at the outset to not give anyone an opportunity to sue you,” he said. Buchsbaum handled questions involving various situations such as security screenings, on-call work and more.

Affordable Care Act is here

In his presentation, “The Affordable Care Act is Upon Us,” Sheldon Blumling of Fisher & Phillips recounted how someone had rephrased the title of the workshop separating up and on. And he agreed. It’s sneaking up on us.

He emphasized that the final rules are here. He doesn’t believe – although he doesn’t count out – that any additional delays will take place. He advised larger employees to get draft 1094 and 1095 from IRS.gov to see what kinds of records they need to be keeping. “If you have 100 or more employees, you have to be compliant by Jan. 1, 2015,” he said. “You get a year reprieve if you have 50 to 99 employees.” Blumling covered the best ways to count employees and strategies that will or will not work when determining whether an employer has fewer than 100 workers. He also discussed the definition of “seasonal” employees and what counts as customary employment. He also discussed the types of plans employees must offer under the Affordable Care Act.

In addition to FFVA, the event was sponsored by Florida Citrus Mutual, Florida Farm Bureau, Florida Nursery, Growers & Landscape Association, Gulf Coast Citrus Association, Florida Citrus Packers, National Watermelon Association and Florida Strawberry Growers Association.

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