2019 Wage Surveys Are Now Available

 For the second year in a row, WAPA has conducted a wage survey amongst the membership and compiled the results in an easy to read report.  Specific member information is left off of the overall report, and averages are calculated amongst the positions listed.  If you would like a copy, please feel free to reach out the Association’s Director of Technical Services, Chris McGlothlin, at (559)-455-9272 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..  We would ask that this information only be shared amongst current WAPA members, as it is a report detailing averages of WAPA’s member facilities.  Thank you to those that participated this year!

UPDATE: Social Security Administration Confirms They Will Take NO ACTION for Employer’s Who Do Not Comply with No-Match Letters

 By: Michael C. Saqui and Gregory Blueford

As we previously reported, in conjunction with Chris Schulte of CJ Lake, LLC and Rob Roy of Ventura County Agricultural Association, the Social Security Administration (“SSA”) began mailing Educational Correspondence (“EDCOR”) notifications to employers who submit at least one 2018 W-2 with a SSN mismatch or no-match. These notices differed from previous mismatch/no-match letters as they did not include names or SSNs. Instead, employers were only notified that they submitted W-2s with mismatched SSNs and the raw number of W-2 forms the employer submitted that do not match.

The key question that employers had been asking about receiving these letters was, naturally, “What action should I be taking?” There were differing opinions on what steps employers are required to take, one of which was to recommend that employers follow the direction of the EDCOR letter and login to the SSN Business Services Online portal to get the actual names of the employees at issue and take steps to verify the reason as to the mismatch of specific employees.

Taking a more employer-centric approach, Dowling Aaron, CJ Lake, LLC and VCAA put our collective mind power, legal experience and resources together and took the complete opposite approach, recommending that employers should NOT login to the BSO portal and only verify their own records in-house and report to the SSA based on those records.

Yesterday, we received word that our recommendation was correct. In a letter from SSA Acting Commissioner Nancy A. Berryhill to Congressman Jim Costa, the SSA confirmed that the EDCOR mismatch letters are only educational in nature and that the SSA will not take any action, nor are there any SSA-related consequences, for employers’ non-compliance with the EDCOR mismatch letters.

COUNSEL TO MANAGEMENT:

The SSA’s letter to Congressman Costa is attached here for your full review. As outlined in the original guidance from Dowling Aaron, CJ Lake, LLC and VCAA, employers should take the following steps when receiving EDCOR mismatch or no-match letters:

*  Employers should NOT login to the BSO to get the actual names of mismatched employees to avoid the possibility of establishing constructive knowledge that the employer was hiring unauthorized workers;

*  Employers should, at very most, only take the following steps:

   -   Review the names and SSN information submitted by the employer to SSA;

   -   Provide any necessary corrections to SSA on the Form W2-C within 60 days of receiving the no-match, and/or;

   -   Respond to SSA that the employer has confirmed that the names and SSN information provided match the information provided by its employees.

*   Take no further action and to not retain the letter in your files.

The SSA further confirmed in their letter that they are not sharing information with the Department of Homeland Security/ICE and are specifically forbidden to do so under the law and that there are no immigration or work-authorization conclusions to be drawn from the letter.  Among the other interesting tidbits in the letter is that the SSA has mailed out 577,349 letters as of April 26, 2019 which covers the mismatches for tax year 2018 and that the SSA will mail out the remaining letters in the fall. Thus, employers should expect a second wave of these letters coming out later this year.

Again, employers should only check their own records for accuracy and should NOT login to the BSO system. However, if employers do receive mismatch/no match letters that do specifically identify employees, there are different requirements that must be undertaken, which are outlined in our original recommendation.

Thank you again to Chris Schulte of CJ Lake, LLC and Rob Roy of Ventura County Agricultural Association for their hard work and assistance on this matter. Contact The Saqui Law Group, a division of Dowling Aaron Incorporated should you have any further questions on this issue or receive a mismatch/no match letter which specifically identifies employees.

Early Insights on Produce Safety Rule Inspections

Produce Safety Rule (PSR) Inspections began in April of this year for large farms over $500,000 in average annual sales over the last three years. The California Department of Food and Agriculture (CDFA) Inspectors have been conducting inspections throughout the state for commodities that are currently in harvest. The PSR inspections are approximately 3-5 hours long, depending on the operation size. The inspections are broken down into three parts: introductions, walk through, and exit interview. You can find additional information on CDFA’s website here.

Be prepared and ready to show the required documentation. We have learned, of the inspections that have occurred the most frequent finding has been the lack of documentation or missing elements in the documentation. Although a food safety plan is not required we highly recommend having a plan that collects all the necessary documentation!

If you have any questions or need a food safety plan, please contact our Director of Food Safety Priscilla Rodriguez at (559) 455-9272.

WAPA Meets With USDA ARS in Albany

This past week Association President/CEO Roger A. Isom and Director of Technical Services Christopher McGlothlin toured the USDA ARS Western Regional Research Center in Albany.  The purpose of the visit was to discussed tree nut related research, in particular tree nut drying research.  Other topics included food safety, navel orangeworm sterile insect technology using x-rays, and bioproducts research using tree nut byproducts such as hulls, shell and sticks.  WAPA met with Center Director Dr. Tara McHugh, Research Engineer Dr. Rebecca Milckzarek, and Dr. Zhongli Pan, from UC Davis, and formerly with USDA ARS.  The emphasis was on alternatives to drying for walnuts, but was also discussed for almonds as new potential harvesting techniques are developed that may necessitate the need for drying.  WAPA is working with USDA ARS to bring a larger group of stakeholders to the facility later this summer to get further these discussions on pertinent research to the tree nut industry. 

Glyphosate Update

On Tuesday, April 30th the EPA released their Proposed Interim Registration Review Decision for glyphosate, an important step in the registration review process. The EPA responses contains several key comments, including:

“The EPA conducted an independent evaluation of the carcinogenic potential of glyphosate and has determined that glyphosate is “not likely to be carcinogenic to humans.” The agency’s cancer classification is based on a thorough weight-of-evidence review of all relevant data and is in accordance with the agency’s 2005 Guidelines for Carcinogen Risk Assessment.”

“EPA’s cancer evaluation is more robust than IARC’s evaluation. IARC’s evaluation only considers data that have been published or accepted for publication in the openly available scientific literature. As a result, IARC only considered a subset of the studies included in the EPA’s evaluation.”

“The Agency’s cancer evaluation for glyphosate is also more transparent. EPA’s draft cancer evaluation was presented to a FIFRA SAP for external peer review. EPA solicited public comment on the carcinogenic potential of glyphosate as part of the SAP process, which is well-documented with an agenda, transcript, meeting notes, and final SAP report. EPA responded to the SAP report, addressed panel recommendations, and made revisions to its cancer assessment that were transparent and provided to the public. EPA also solicited public comment on its full human health and ecological risk assessment for glyphosate in February 2018. In contrast, IARC meetings are not accessible to the public. Its deliberations are closed, its process does not allow for public comments to be submitted for consideration, there are no materials provided in advance of the meeting, and IARC’s reports are final without an external peer review.”

"The EPA has not identified any new information received during the public comment period which ended on April 30, 2018 that would result in changes to the conclusion of its cancer assessment. The agency’s cancer conclusion is consistent with other regulatory authorities and international organizations, including the Canadian Pest Management Regulatory Agency, the Australian Pesticide and Veterinary medicines Authority, the European Food Safety Authority, the European Chemicals Agency, the German Federal Institute for Occupational Safety and Health, the Joint FAO/WHO Meeting on Pesticides Residues, the New Zealand Environmental Protection Authority, and the Food Safety Commission of Japan.” 

In addition to the posting of the proposed decision, the EPA also issued strong comments in an interview with the Des Moines Register and in an official press release. The press release includes comments from EPA Administrator Andrew Wheeler and U.S. Secretary of Agriculture Sonny Perdue.

A 60-day public comment period will follow as a next step and then EPA will respond to the comments and issue the Interim Review Decision. That decision will not become final until EPA conducts an Endangered Species Act assessment. There is no set timeline for the final decision. 

Tuesday’s comments by the EPA are important and consistent with the findings of regulatory authorities around the world for more than 40 years. Bayer’s official statement can be found online here: https://www.bayer.us/en/newsroom/press-releases/article/?id=123301

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Governor Signs Ag Overtime Bill

Ignoring the pleas of real farmworkers and the agricultural industry, Governor Edmund G. Brown Jr. today signed AB 1066, the ag overtime legislation. This means that California will have the most stringent trigger of any state in the country for overtime for farmworkers, with 45 states having no overtime protection at all. The Governor signed this bill, supposedly to bring “equality to all workers”, yet taxi cab drivers, commercial fishermen, car salesmen, student nurses, computer programmers, and carnival workers all work without any overtime provisions whatsoever. The Governor signed this ag overtime bill in the same year that minimum wage legislation was also passed that will take California to the highest minimum wage as well as legislation forcing California to adopt additional greenhouse gas regulations for businesses in California. California is the only state in the country subject to such regulations. Today’s signing occurred despite numerous requests by the agricultural industry to meet with the Governor to discuss our concerns. The message is clear. California simply doesn’t care. These provisions will be phased in over the next few years ending with the overtime provisions to be triggered at 8 hours per day and 40 hours per week.

In the Beginning As folks transitioned out of cotton and into tree nuts, the industry recognized the need to have active and effective representation at the local, state and national levels. Having enjoyed such effective representation over the years from the California Cotton Ginners and Growers Associations, these folks yearned for the same representation in the tree nut processing industry. Issues such as air quality, food safety, labor, taxes, employee safety, and environmental concerns are at the forefront, and there is a significant need for an aggressive and dynamic Association to lead the industry into the next decade and beyond. In recognition of this, the Western Agricultural Processors Association was created in 2009. The Western Agricultural Processors Association (WAPA) shares staff and office space with the California Cotton Ginners and Growers Associations taking advantage of a unique and opportunistic situation. WAPA is a voluntary dues organization with four shared staff and one dedicated staff person. Regulatory, legislative and legal issues fall under the purview of this new organization for the tree nut processing industry, which includes almonds, pecans, pistachios and walnuts. From air quality permits to conditional use permits, from regulatory hearings on greenhouse gases to federal legislation on food safety, and from OSHA violations to assisting members on hazardous materials business plans, no issue is too small or too large for WAPA. WAPA has assembled one of the best and most capable staffs in the industry, and the results are already starting to show Membership The Western Agricultural Processors Association represents facilities involved in the processing of almonds, pecans, pistachios and walnuts.Membership in the Association is classified as Regular memberships are limited to almond hullers or processors, pecan and pistachio processors, and walnut dehydrators and processors. Associate memberships are limited to any individual or business entity which is not engaged in agricultural processing, but which provides products or services directly related to the agricultural processing industry. WAPA Associate members include, but are not limited to, commodity brokers, accounting firms, and insurance brokers. Organization The Western Agricultural Processors Association is governed by a Board of Directors, elected by its membership.The Board consists of up to 15 members from throughout the state, and throughout the industry.The Board meets on a quarterly basis and conducts an Annual Meeting in the spring of each year.WAPA, in conjunction with the California Cotton Ginners and Growers Associations, conducts a special training school for its members focused on safety.In combination with the school, the Association holds a Labor Management Seminar for all of the managers. Consulting Services In researching and considering the concept of forming a new organization, the Boards of Directors for the California Cotton Ginners and Growers Associations instructed staff to perform some of the work on a consulting basis first. The point was to determine the workload from consulting and to determine if there was sufficient interest. In November of 2007, the Association began conducting services under consulting contracts for such services as air quality permits and safety plans.The effort has been so successful that demand has progressed outside the tree nut industry into other agricultural processing facilities, including vegetable dehydration facilities, tomato processing facilities, and wheat mills, as well as cotton gins in Arizona.It was determined by the new Board of Directors of WAPA, that WAPA would maintain the consulting services to provide offsetting income to help with the expenses of getting the new organization up and running.Today, WAPA provides for a long list of satisfied clients in the agricultural processing industry, by providing critical services such as air quality, safety, food safety, and environmental issues (Hazardous Materials Business Plan, Spill Prevention Control and Countermeasure Plans, etc.).