Topics are listed alphabetically. Click on a link to see the answer.
Q: How should I handle end-of-season bonuses?
A: For some crops it is traditional or advantageous to offer an "end of season" bonus to employees if they work through the end of the season (as determined by the employer). There are several common reasons employees fail to qualify for the bonus, including:
- The crew leader leaves early to find additional work
- The employee is fired within a few days of the end of the season
- An employee does not work at the end of the season due to absence
Possible solutions for these situations include:
- Not offering a bonus
- Developing a specific written policy describing who sets the end of the season and under what circumstances employees receive bonuses
- Documenting all disciplinary actions to help support your decisions should an employee be terminated prior to the end of the season
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Compensation
Q: Do employers have to pay employees who are found to be illegal? A recent incident in Yakima was in the media where an employer claimed he didn't have to pay his employees because he used E-verify three months after hiring them and the employees were found to not have valid documents. Did he have to pay them or not?
A: Yes. At least four different laws require employers to pay employees for work performed, even if the employee is found to have been an illegal alien. State contract law, the federal minimum wage act, the state minimum wage act and the Migrant and Seasonal Worker Protection Act all require the payment of wages for work performed regardless of the immigration status of an employee.Under state contract law, a violation would result in double damages. (RCW 49.52.070)
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E-Verify
Q: I am an employer that hires both field and packinghouse workers. Can I use the E-Verify system only for the packinghouse workers?
A: If you have one hiring site that employs both field and packinghouse workers, you cannot use E-Verify for only one group of employees. Doing so would be a violation of USCIS regulations and could lead to allegations of discrimination.
Employers who use E-Verify are required to sign a Memorandum of Understanding (MOU) with USCIS and the Social Security Administration. Within the MOU is an agreement to use E-Verify for all new employees, and a provision that specifically prohibits "selective verification."
If, however, you have two hiring locations -one for field workers and another for packinghouse workers- you could choose to sign an MOU for only one hiring site and use E-Verify only at that location. The sites would need to be physically separated, with each having its own personnel staff handling the hiring and employment authorization verification processes.
With two separate hiring sites, you may need to demonstrate that you are not discriminating by treating employees differently. If questioned, you could state that the nature of the work is different, the location of where it is performed is different, and the hiring site is different. In the case of packinghouse workers, the hiring generally occurs in the same location where they work. In the case of field workers, hiring is often done in the field where it is difficult to use a computer to conduct E-Verify verification.
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Farmworker Housing
Q: How can I use the Infrastructure Loan Program?
A: Qualified growers may apply for the Farmworker Housing Infrastructure Loan Program administered by the State of Washington Department of Community, Trade and Economic Development (CTED). This program provides specialized loans for the building or repair of the infrastructure needed for farmworker housing.
Applicants must meet these qualifications:
- Housing must be used for seasonal occupancy by migrant and seasonal farmworkers.
- Housing must be located on land owned or controlled by the borrowing grower.
- Housing must be owned, operated and managed by the borrowing grower.
- Housing must be located within the state of Washington.
- Housing must meet Department of Health Temporary Worker Housing licensing standards.
- Housing must meet all applicable codes and regulations.
The following terms apply to the loan:
- Loans may be made for the repair of infrastructure for existing housing or for the installation of infrastructure for new housing.
- Housing must be kept in use as licensed temporary farmworker housing for the term of the loan, normally 15 years.
- The grower must match loan funds at least dollar for dollar. (The grower match may include dollars spent on construction or repair of housing.)
Loans are commonly used for (but are not limited to) these purposes:
- Drinking water supply and treatment
- Electrical wiring
- Engineering services for septic and water
- Excavation and grading
- Foundations and tent pads
- Gravel for site or access road
- Hook-up to existing water, sewer or electric
- Permits related to eligible costs
- Propane systems
- Septic systems
To apply for a loan, contact Pat Arnold at CTED. She will schedule a site visit and help you get started with the application process.
Patricia L. Arnold, Farmworker Housing Specialist
Washington State Department of Community, Trade and Economic Development
P.O. Box 124, Trout Lake, Washington 98650
Phone: 509-395-2341 or 800-796-0422
Fax: 509-395-2818 Cell: 509-480-9803
Email: PatriciaA@cted.wa.gov
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Q: Who regulates farmworker housing?
A: Farmworker housing in Washington state is regulated in part by at least five agencies, including the Washington State Department of Labor and Industries (L&I), the Washington State Department of Health (DOH), the U.S. Department of Labor (DOL), Employment and Training Administration (ETA) and the Washington State Employment Security Department (ESD).
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Q: Do all farmworker housing sites require licensing?
A: No, not all temporary worker housing sites require licensing. If you provide housing for 10 or more people or you have five or more dwelling units, you are required to be licensed by the Department of Health. Smaller housing sites do not have to be licensed but are subject to the same Temporary Worker Housing rules and must comply with L&I regulations.
Tent housing is only approved for the cherry harvest using DOH-approved tents. If you provide tent housing during the cherry harvest for one or more workers, you are required to be licensed by the Department of Health.
To ensure adequate time for inspections, apply for a license at least 45 days prior to occupancy.
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Q: How do I get a license for my farmworker housing?
A: The first step is to submit an application and pay the appropriate fees for a Temporary Worker Housing License from the Department of Health. DOH also requires approved water sample tests to be submitted for verification. An on-site inspection will then be conducted. DOH will issue a license if the facility is in compliance with the law and rules. If violations exist, corrections must be satisfactorily addressed before a license will be granted.
You can call the Washington State Department of Health at 1-800-771-1204 or visit the DOH Website www.doh.wa.gov and search for "Migrant Farmworker Housing" for complete information and instructions on licensing. On the DOH Website you can also find a guide to help you prepare your camp for inspection. Search for the publication "Is Your Temporary Worker Housing Camp Ready for an Inspection?"
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Form I-9
Q: On an I-9 form, is the date of hire the same day that work starts?
A: Employers may hire in advance of the day employees actually start working and may complete I-9 forms on the date of hire-in advance of actual work taking place. However, hiring in advance of the actual start date runs the risk of hiring employees who don't show up when work actually starts. Employers are required to maintain all I-9s originally filled out and if I-9's were completed for employees who were hired but never showed up for actual work, the employer would end up with I-9s on employees for whom there are no payroll records. This situation might require an explanation in case of an I-9 audit.
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Q: How long should an employer keep I-9s?
A: Employers should keep I-9s three years after the date of hire or one year after termination, whichever is later. This means that an employer should have an I-9 for every employee who is currently employed. ALL I-9s must be kept for a minimum of three years from the date of hire!
Generally speaking, I-9s should be destroyed as soon as employers are no longer legally obligated to keep them. This eliminates the possibility of being cited by ICE or DOL for an incorrect I-9 that is no longer required to be kept.
Below is a handy table put together by Pasco Immigration attorney Tom Roach:
Q: What is a Worker Information Notice?
A: A Worker Information Notice (WIN) is essentially a contract between the employer and the worker. Because it is a legal document, the Washington Growers League suggests that the document be prepared by an attorney so that the rights of the employer and the employee are both protected.
Information required on the Worker Information Notice includes:
- Wages to be paid
- Crops and kinds of activities on which the workers may be employed
- Period of employment (can be approximate)
- Place of employment
- Transportation, housing or other employee benefits to be provided and costs to be charged (if any) to the employee
- Existence of any strike, work stoppage, slow down, or interruption of operations by employees at the place of employment
- Existence of any "kick back" arrangements with any establishment in the areas of employment for the sale of goods and services to workers
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Q: How is recruiting defined under MSPA?
A: Under MSPA, recruitment means: "To hire or secure the services of the worker, and/or any pre-employment discussion of the terms of the working conditions affecting employment." If you discuss the rate of pay, number of hours worked, starting and stopping times, etc., you are discussing the terms and conditions of employment and are therefore recruiting.
Note: "Migrant" workers are workers employed in agricultural labor or employment of a seasonal or temporary nature who are required to be absent overnight from their permanent place of residence in order to work. "Seasonal" workers are workers employed in agricultural labor of a seasonal or temporary nature who are not required to be absent overnight from their permanent place of residence in order to work.
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Q: Who is exempt from MSPA?
A: MSPA is a broad act covering most agricultural employers. You are exempt only if you can meet all of the exemption requirements for the particular exemption you are claiming.
To qualify for the Family Business Exemption, the farm must be owned 100 percent by an individual or his/her immediate family member, the owner or immediate family members must be the only ones who recruit, hire, employ, furnish or transport the employees, and the owners must recruit, solicit, hire, employ, furnish or transport agricultural workers only for their own operations.
The Small Business Exemption applies if the employer did not use more than 500 man-days of agricultural labor in any calendar quarter of the preceding calendar year. Members of the employer's immediate family do not count. Supervisors and foremen who do agricultural work do count.
When recruiting is performed within a 25-mile intra- state radius of the employer's permanent place of residence and is limited to no more than 13 weeks per year total, the employer qualifies for the Short-Term Local Exemption.
This law is very complicated. If you are not sure whether you are exempt, call the Washington Growers League for assistance.
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Q: What are the most common MSPA violations?
A: Some of the most common violations of MSPA include:
Recruitment and hiring violations
Written notice of certain terms and conditions of employment (the Worker Information Notice) must be provided to all migrant workers at the time of recruitment or hiring, whichever comes first. Written notice must be available to seasonal workers upon request.
Recordkeeping violations
Payroll records and statements must include the actual hours worked and the basis for wages, including number of piece units earned at each rate. Employers are also required to show the basis for calculating payment and the purpose and amount of each deduction. (Also applies to bonus payments.)
Transportation violations
MSPA regulates transportation from work site to work site. Any time an agricultural employee is transported by an employer or employer's agent, rules regarding seats, seatbelts, vehicle safety standards, insurance, and driver qualifications apply.
An employer must furnish proof to the U.S. Department of Labor that the employer's transportation vehicles meet safety requirements and furnish proof that the employer's transportation vehicles are insured ($100,000 per seat with a $5 million cap for each vehicle).
Housing violations
Employers must inspect and certify housing and post or provide written notice of terms and conditions of occupancy before it is occupied by migrant workers. Health and safety standards must be maintained (while occupied) for screens, floors, bedding, vermin control and overcrowding. If space is provided for trailers, state requirements must be met for bathroom, shower and laundry facilities.
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Q: What are the potential fines for violating MSPA?
A: The risks for violating MSPA are high and include criminal and administrative sanctions as well as private right of action. For willful and knowing violations of the law, fines can be up to $1,000 or prison up to one year, or both, for any violation. If convicted for a subsequent violation, fines can be up to $10,000 or prison terms up to three years, or both. Administrative violations may be assessed civil penalties of up to $1,000 per violation of the act or regulation. Private litigation may include the actual damages or up to $500 per plaintiff, per violation.
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Minors
Q: One of my spray applicators wants to decline the cholinesterase monitoring program. Can I just get a declination form and have him sign it?
A: No. Any employee who handles (mixes, loads, applies, cleans up) category I or II organophosphate or N-methyl-carbamate pesticides with the words “DANGER” or “WARNING” on the label for 30 or more hours in any consecutive 30-day period must have cholinesterase training and see a licensed health care provider who explains to him or her the pros and cons of cholinesterase monitoring. If, after talking with the health care provider, the employee still wants to decline participation in the monitoring program, he can sign an opt-out form. The health care provider is required to give the employee a declination form and then provide the signed form to the employer.
Remember:
- You must obtain a signed declination statement from a licensed health care provider for each employee who declines cholinesterase testing.
- Employees may decline cholinesterase testing only after they receive training about cholinesterase-inhibiting pesticides and discuss the risks and benefits of participation with a licensed health care provider.
- An employee may change his or her mind and elect to participate or decline to continue participation in the testing program at any time.
- Make sure the employee receives a copy of the signed declination statement, either through you or directly through the licensed health care provider, within five business days after you receive the declination statement.
- Employers must not discourage participation in cholinesterase monitoring or in any way interfere with an employee’s decision to continue with the monitoring program. Doing so is a violation of state anti-discrimination statutes.
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Privacy
Q: How often does an employee need to be retrained in safety?
A: State regulations require that employers provide employees with an on-the-job review of the practices necessary to perform job assignments in a safe and healthful manner.
For continuously-employed employees, annual training in a particular task may be sufficient. For example: if in January you hire an employee to prune in an orchard and you provide ladder safety training then, and that employee is continually employed until fruit thinning and then harvest, you do not need to provide ladder safety training every time the employee starts a new task requiring a ladder. (Although refresher training can be a good idea.)
If you re-hire employees on a seasonal basis (i.e., pruning, then lay-off, then thinning, then lay-off, then harvest, then lay-off), you must provide training on all hazards they may encounter for the job for which they are hired.
If you re-hire employees for jobs on an annual basis, you are required to provide training on all of the hazards associated with the job for which they were hired, even if they received safety training the previous year.
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Substance abuse policies
Q: Can an employer require drug testing for employees?
A: Yes, employee drug testing is allowed in the following instances:
- Pre-employment: Testing conducted to prevent hiring or employing individuals who use illegal drugs or alcohol in a manner inconsistent with safe and effective job performance
- Post-accident: Testing of employees involved in accidents requiring medical treatment or who engage in unsafe job-related activities that post a danger to themselves or others
- Follow-up: Testing employees as part of after-treatment monitoring or after violating the company’s alcohol and drug policy
- Reasonable suspicion: Testing conducted when there is information about an employee’s conduct that would cause a reasonable person to believe the employee has used or may be impaired by alcohol or drugs
- Random: Testing conducted without suspicion that an employee is using drugs or alcohol. Selection is made by neutral criteria so that all employees subject to testing have an equal chance of being tested
- Safety sensitive: Testing conducted when employee job performance and equipment safety are imperative
If an employer develops a drug testing policy, it’s best to include more than one form of testing – for example, the policy could include random, reasonable cause, post-accident and safety sensitive testing. The employer may choose not to exercise one or more forms of testing, but including them in the policy allows much more control in the event of a problem.
Prior to beginning a drug testing program, contact the WGL office for advice.
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