Date: May 28, 2014 In this issue ON-DUTY MEAL PERIODS: WHAT EMPLOYERS SHOULD KNOW Did you know? It is illegal for an employer to fire or discriminate against anyone who complains about a violation of the wage and hour laws or reports a violation to the Labor Commissioner. Source: Contact Info 1420 Rocky Ridge Dr. #260 Roseville, CA 95661 Tel: (916) 782-8555 Fax: (916) 782-8565 SLG Mobile No matter where you are, stay connected with the latest news and alerts with SLG mobile. ON-DUTY MEAL PERIODS: WHAT EMPLOYERS SHOULD KNOW The foreman starts his workday at least 1 hour before (5:30 a.m.) the general laborers (6:30 a.m.) because he has to transport people. He then takes his lunch with the general laborers (11:00 a.m.) and is not allowed to leave. Is this legal? No. Generally, California law provides that every employer shall authorize and permit all employees to take a thirty (30)-minute meal period after no more than five (5) hours of work. If the employee is not relieved of all duties during the thirty (30)-minute meal period, the meal period shall be considered an on duty meal period and counted as time worked. The on-duty meal period is permissible only when (1) the nature of the work prevents the employee from being relieved of all duty; (2) the employee and the employer agree in writing to an on-the-job meal period; (3) the written agreement states that the employee may revoke in writing at any time; and (4) the employee is paid for the meal period. Moreover, the employee must still be provided with the opportunity to eat the meal. The parties may not agree to on-duty meal period because it is desired or helpful. In the example above, the employer is in violation of the law for several reasons. First, if the foreman starts work at 5:30 a.m., he must be provided with a meal period no later than 10:30 a.m. Second, the foreman is not relieved of all his duties because he is not allowed to leave the employer's premises. Therefore, his meal period is considered an on-duty meal period. The employer may lawfully provide an on-duty meal period if it can satisfy the nature of the work exception along with the other requirements. California courts have not defined what constitutes the nature of the work exception. However, the Department of Labor Standards Enforcement (DLSE) issued several opinion letters addressing when the exception may apply. (Note: DLSE opinion letters are not binding on California courts, but may serve as persuasive material). DLSE letters make clear that the showing necessary to establish the nature of the work exception is high. Whether the exception applies must be made on a case by case and day by day basis.  DLSE provides a list of non-exhaustive factors that should be considered in deciding whether the exception applies: 1. The type of work; 2. The availability of other employees to provide relief during the meal period; 3. The potential consequences to the employer if the employee is relieved of all duty; 4. The ability of the employer to anticipate and mitigate these consequences such as by scheduling the work in a manner to allow the employee to take an off-duty meal period; 5. Whether the work product or process will be destroyed or damaged by relieving the employee of all duty. According to DLSE, some examples that fit this exception are a sole worker in an all-night convenience store, a sole security guard stationed in a remote location or a position requiring continuous operation of machinery, which requires monitoring. However, DLSE declined to apply the nature of work exception to late-night shift managers at fast-food restaurants because other employees are on duty and could cover for the manager with no economic hardship for the employer. In the above example, the foreman is not allowed to leave the employers premises presumably because he is needed to supervise or to address any issues. Nonetheless, the foreman will not meet the nature of the work exception because other crew members are present at the same time and can be trained to provide the necessary relief. It is also unlikely that the employer will suffer any economic harm if the foreman takes an off-duty meal period. Therefore, the employer above is in violation of the law because the foreman does not meet the nature of the work exception. Counsel to Management: DLSE sets an impossible standard for the nature of the work exception. Most of the employees will be unable to meet the exception. Therefore, if possible, the employers should not provide on-duty meal periods. If you have any questions regarding on-duty meal periods, please contact The Saqui Law Group. ________________________________________

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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.).