187: Labor and Employment Law Tips from a Lawyer

When it comes to labor and employment, the best thing that you can do is be proactive, says Anthony P. Raimondo, Attorney, and Founder of Raimondo Miller A Law Corporation. Anthony covers the importance of accurate, individualized timekeeping, not just a work schedule. Today, there is software that supports both employers and employees. Right from your tablet or smartphone, you can track clock ins and outs, verify that the employee received their breaks, and even provide telehealth. Anthony provides an update on current union laws, what you need to know whether you use a management company or farm labor contractor, and how growers of any size can stay up to date with recent laws.

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Transcript

Craig Macmillan 0:00

And with us today is Anthony Raimondo, he is an attorney and founder of the law firm of Raimondo and Miller in Fresno, California. And we're going to talk about some legal and regulatory things that are affecting growers all over the nation in the west coast and local states. Thanks for being here, Anthony.

Anthony Raimondo 0:15

Thank you for having me.

Craig Macmillan 0:17

You've been interviewed and have written and have appeared widely and have had a number of interesting insights. And there are a couple of things that I picked up on from looking at when your interview is that I really for me, it spoke to me personally, because I was in the vineyard side of things for a long time. And that's the issue of timekeeping. I'd love to talk a little bit about the kind of exposure legal exposure that a grower might have around timekeeping, which on the surface sounds like a very simple thing and in the field turns out not to be a very simple thing. And also what kind of practices a grower might get into trouble for what some ways growers can protect themselves? What kind of what kind of experience do you have in this topic?

Anthony Raimondo 0:49

It's something that we deal with quite a bit, we deal with both the compliance aspect of things kind of that front end planning of how do we do things to stay out of trouble. But we also deal with the defense side, a lot of the litigation that's going on right now is class action or collective action litigation, where you have one or a couple of workers who stand in for the entire workforce, over a period of years alleging a range of different wage and hour type violations. And a lot of those things really come down to timekeeping.

Craig Macmillan 1:22

Gotcha. Now, what we used to do back in the day was people would show up, and the management would show up, and we had a clipboard with an eight and a half by 11 piece of paper. And we sign people in and check them off. And then we basically looked at our watches and said, Okay, we're starting at 9:05. And then everyone at work, then we check what time we came back for lunch, etc. It seems like that would work perfectly well. But we did have some issues with folks along the lines that that kind of disputed how accurate that was, or those are the kinds of things that get people kind of in trouble kind of backward, or what's the source of some of these complaints?

Anthony Raimondo 1:56

Well, those things have for a long time been in place and have for a long time have been an issue and a lot of it comes down to accuracy. So when you have what we call a daily cruciate, which is very traditional way of keeping a field where like you say, on a clipboard or something similar, we have a list of people's names. And you know, maybe the upper right corner, we have a start time and a stop time and everybody's name gets filled in on that list, with the total number of hours. And if there's piecework what units they produced at, et cetera. Well, way back in time, one of the very first lawsuits I dealt with in my career in agriculture was in a table grape operation, where they had a similar method of timekeeping. But what they actually did is they would cut the bottom off of one of the grape boxes, and the former for the crew would flip that over and draw a grid on the back of it, write, everybody's name on it, and would write the in and out types, as well as grid information and the total hours for each worker. So everybody had the same in and out time, because it was all being kept collectively. And in a deposition of one of those foreman, the plaintiff's attorney asked the foreman, how he prepared these cardboard time records. And he said, Well, you know, we come when the crew arrives, I get there a little bit before the crew and I draw the grid on the back, you know, I write the start time, and I write the stop time. And it was a very big aha moment for the plaintiff's attorney, because, of course, what she honed in on is that he's writing that start and stop time before any of those happen. Right? Because he's writing the start and stop time at the beginning of the day, what he's writing is the schedule of the crew, not the actual events that happen, we really need to have individualized time records, right, because somebody always shows up late, somebody always leaves early, having a crew of 10, 15, 20, 30 people where everybody has the same in and out time, really isn't terribly reliable, because it might generally be so that this is what happened here. There are they work together, they work the same. But as I mentioned, people show up late people leave early, somebody gets sick, somebody gets hurt, these things all happen, where those individual variations are what led to the accuracy of it, and also those records being kept contemporaneously. And what we've seen over the years, this accelerate in recent years, which I'm happy about, is the increasing use of technology as a solution. And I really think one of the most important thing for growers to do is to embrace technology as a solution. And it's not just about the legal compliance aspect of things. Some of the timekeeping solutions they have out there are fantastically advanced now. So, you know, we can have foremen now keeping time on a tablet. We have in some of the types of ag operations I deal with. We have harvesters who have individualized, it's almost like a nametag that they wear where they're in and out time can be kept visually, there's like it's like an electronic pen. They swipe that with the clock people in and clock people out there in and out times for their meal breaks recorded. We have devices where employees can clock in and out individually by cell phones if their smartphones. And by the way, a lot of those can be used for other types of risk management, a lot of the software that's out there now will ask the employee when they clock out at the end of the day, did you have any injuries today? Did you get your meal period today? It's your rest period today. They can be programmed to answer a series of questions that deal with a lot of our risk management issues not only related to things like Wage and Hour liability, but related to workplace safety related to workers compensation, this technology can have a multitude of different benefits, I have one client that I represent, and more started to do this sort of thing, who has even gone to using remote technology, what they really found, like medical triage out in the field. So they have a telemedicine link set up with a monitor out in the field where if a worker is injured, or report some type of illness or injury, they can actually connect remotely to medical providers who can evaluate that injury very quickly. And a lot of times, what they've done is they've reduced their workers comp claims, because they can deal with the small things. First Aid incidents out in the field which aren't reportable to workers comp, rather than the treatment gets delayed, response gets delayed. And then something that could have been dealt with as a first aid accident in the moment now becomes a medical visit down the road, which just creates cost for everybody. So there's a lot of technology out there as an industry need to embrace.

Craig Macmillan 6:21

That's really interesting, because I think that actually is a benefit for both workers and for management.

Anthony Raimondo 6:25

Absolutely.

Craig Macmillan 6:26

If I have confidence that my hours are getting counted accurately, I'm more confident, more secure. If I'm being asked, you know, did these things happen? It does cause me to reflect and say yes or no or whatever. That's it, I think it's really cool. And these are things can be done on a tablet can be done on a phone remotely. Obviously,

Anthony Raimondo 6:41

There's there's a variety of different ways to do this. There are even methods for where there is no internet connection, or there's no cell phone signal. You know, a lot of our folks are in areas where signals are. We've seen for years and years, especially in like the strawberry industry. And some of the other areas of the industry I deal with, they have these, you know, we call them pens, but they're these big data devices. And they will actually save the data on that device. And that can be brought to an office after the is over dropped off the data downloaded. And you can preserve your data, even when you don't have a connection where the tablet or cell phone works. So there's a wide variety of technological solutions available. And I think you're absolutely correct. The best thing about a lot of these solutions is they really are win wins for both the workforce and the employees. You know, it's an it's an interdependence in the industry, the employees need the job and the income, the employer needs the employees to be able to get the work done to produce the product, we can have solutions that work for everybody and benefit everybody.

Craig Macmillan 7:39

That's fantastic. This is new to me. So I'm really glad to hear that this kind of thing is happening. I want to switch gears a little bit here. There's been some changes, I believe in the agricultural Labor Relations Act or the way that it works. Regarding unionization, can you tell us a little bit about that and what the implications might be?

Anthony Raimondo 7:55

Yeah, I'm gonna qualify this because some of it is very much in flux, because there are some regulatory activity going on the agricultural labor relations board in terms of the implementation of the new law. So let me back up and give you what what used to be the case. So you can have context for what the what the changes that has been made, historically, our going back to 1975, when the when the Act was first implemented, what are the things that was going on prior to the ACA was this kind of wild west world of unionization, and there was a big struggle between the United Farm Workers and the teamsters as to who was going to represent workers out in the field, it was very, very contentious. It was one of the things that led to the passage of the agricultural Labor Relations Act, because sometimes that contentiousness even broke out into violence between the competing unions, but what happened was, there was a perception amongst some growers that the teamsters made would be easier for them to deal with or more favorable for them to deal with than the United Farm Workers Union. So a lot of growers that before the law passed would sign contracts with the with the Teamsters, in order to keep the UFW United Farmworkers out. So one of the things that Cesar Chavez actually insisted on when the act was developed was that the only way for a union to gain the right to represent workers in agriculture be through a secret ballot election. In our Federal Labor Law employer believes there has evidence that a majority of their workers want a union, they can simply recognize the union and say, okay, the people want you. Let's sit down and negotiate. Chavez didn't want that because he was afraid that growers would actually voluntarily recognize the union, the teamsters union to cut the UFW out of the equation. So there was this insistence have to have secret ballot elections, because secret ballot elections will actually show truly who the workers want to represent them. So the way the process has worked ever since and is a union has to get a majority of workers to sign what are called authorization cards, which are just little cards that say they want to be represented by the union. They would turn those into the agricultural labor relations With a petition document that answered certain qualifying questions, and if all of the requirements were met for an election, including a majority of workers are expressing a desire to have the union, the agricultural Labor Relations Board would send personnel out to the field, they'd set up a ballot box in a voting booth, you know, much like we would do in an in person election in the political world, and the workers would vote in their secret ballot election, yes or no whether they want a union. Ballots would be counted. And assuming there were no irregularities in the election, that result would be certified. And if the union won that election, they would become the representative of the employees of that employer. What has happened over the years is that the UFW has become extremely ineffective when it comes to organizing farm workers. They simply cannot win elections. And in recent years, they really organizing has been dead, because every time even when they try to organize workers, they either fail, or they end up losing the election. Even if they can get a majority of those cards to get an election, they lose the election. And in the last 10 year, there have been far more elections to actually vote the UFW out from workers who no longer want their representation than there have been elections to vote the UFW . The combination of this pattern. And a few years ago at a large farm in the San Joaquin Valley called Groveland farms. I was involved in this because what happened there was the union and won an election back in the 90s, and had never had a contract there. They kind of went away for a long time, and no one had heard from them. The I want to say 16 ,17 years of no contact between the company, the union, all of a sudden the union pops up and says we still represent these workers, we want to have a contract, the workers found out about it, they didn't want the union. And a group of these workers came to me and I ended up representing these workers for five years on a pro bono basis, we forced an election to be held, the state did not want to count the ballot for those elections, we had to litigate that ultimately, we won that litigation. And 85 plus percent of the workers had voted against the union. And that no, that company remains a non non union. As a reaction to that you now have a law where that was just passed, it took effect January one of this year, that really were for practical purposes removes the secret ballot election from this scenario. Now, there are two alternatives under the law, what they call a labor peace election and a non labor peace election. These aren't really elections, a labor peace election is something that we're probably never going to see because it requires a grower to sign and file a document with the state that says that they will never oppose union representation amongst their workers, growers just simply do that, if that happens, there's a mail ballot process that will happen where the union can gain representation rights to these mail ballots. But I really don't think it's ever going to happen. What really the law is, is now if a union gets a majority of workers to sign something like authorization cards, some document that says, we want the union, instead of that triggering an election to happen, that's now going to lead to a union certification, and the union will gain the right to represent the workers without election. Let me backup. So what we will see happen now is the union representation process. And this is really the meat of this law is where previously a union having worker sign authorization cards or some other similar document, expressing a desire to be represented by the union. Historically, that would mean let's have an election and find out what these workers really want. And by the way, as I mentioned earlier, in a vast majority of circumstances, the union would have an overwhelming majority of those cards. But when presented with a secret ballot, the workers would vote against the Union. But now, those authorization cards alone will be enough for the Union to become certified as the representative of the workers, which will create a duty to bargain by the grower to negotiate a collective bargaining agreement with the union. And it's important for growers to understand, especially in the wine industry, because there's such a prevalent use of vineyard managers and farm labor contractors. When you have a foreign labor contractor, under this law, the farm labor contractor doesn't exist, those employees are attributed to the grower. So it's not like if the union comes in, the grower can get rid of one farm labor contract or hire another one be free of the Union, the union will still be there that attaches to the grower not to a labor contractor. And for these purposes, in a majority of situations, even a vineyard manager would be considered a farm labor contractor. Under the law. There are some circumstances where a vineyard manager can actually stand in the shoes of the grower. But those are really where you have like an absentee landowner and a vineyard manager that has a long term history of managing the particular property such that the vineyard manager really is acting as the grower. But in most circumstances where there are vineyard managers and farm labor contractors, the union obligation will attach to the grower not to that manager not to that contract.

Craig Macmillan 14:59

Interesting. And so the implications for this are that people may organize or be organized. And the, the quality of the decision is a little bit questionable that kind of what the takeaway is?

Anthony Raimondo 15:16

Yeah, I think it's very prone to fraud. It's very prone to deception. I've been doing this for a long time in a lot of different industries. And I've been involved in a lot of different union elections, and employees sign these cards for a lot of different reasons. Sometimes it's because they truly want a union. Other times they don't understand what it is that they're signing. Other times they're pressured into signing, sometimes there is outright fraud. There's a lot of different issues with this. But one of the big issues I think, to keep in mind, which is disturbing about this law, is that if you look at the history of federal labor law, going back to the 1930s, and the National Labor Relations Act, which governs unionization in all industries except agriculture, there's a principle there that underlies union elections. And the idea is that the workers should hear a vigorous debate on both sides of the question of unionization of why they should or why they shouldn't vote for the Union. And then do do when a democracy when we need to make decisions about our collective future, go to a ballot box and vote by secret ballot, where nobody knows what your vote was. And you have that freedom to say yes or no, based on your own choice. Not somebody coming up to you, under some circumstances, that you're not worrying, we can't identify and saying, hey, sign this thing. Like I said, I've seen deception, I've seen coercion, I've seen outright fraud, some number of them may be genuine, but there's just no way of knowing has no way of controlling it. And the workers are not going to hear both sides of the debate before they make that decision. They're going to hear only from the union, they're going to sign these documents. And in many cases, the decision will be made and the issue will be over before the grower or the employer even has a chance to present why they think the workers don't need a union. It's already illegal to threaten workers against unionization, it's illegal to coerce them in any way. But there is fundamentally in the core of labor relations law a right of free speech, where we have until recently viewed it as healthy for workers to hear a vigorous debate and a vigorous campaign on both sides from both the union and from the employer, and then make their decision at the ballot box. That is what's been taken away from workers, which is very, very disturbing to me. And when I represented the workers, at Gerawan Farms, the lady who was kind of the spokesperson for the worker effort made a really great statement actually, in a TV interview that always stuck with me and sticks with me to this day, the UFW charges dues that are 3% of the workers wages. And she looked at the camera TV interview and said, I think I can use that 3% For my children better than the UFW can.

Craig Macmillan 18:02

Yeah, I can see that that's gonna be an interesting situation coming up here in the future. This is kind of a related question. Many employer employee conflicts, I think where the some of this connected to can be resolved around some kind of effective, transparent internal grievance process where you can handle things internally to address people's concerns or whatever the grievances or whatever, in your experience, what does an effective internal grievance process look like?

Anthony Raimondo 18:29

Well, it's something that I think is very important, as you mentioned, for labor relations purposes. And now I'm just talking about the general relationship between an employer and its workforce, there are always going to be issues that arise. And for a healthy business, what you really want is workers to be able to come forward with those concerns, and communicate them where you can respond in a way where you can come to an agreement about what should be done. And it may it doesn't mean you just say yes to everything. But it means that the workers understand that their voice is heard. And if the answer is no, they understand why the answer is no. So what that really means is number one, you need personnel involved who are bilingual, we operate in what is a primarily Spanish speaking industry. So we need folks who who are bilingual who can educate with the workers. This typically is done through an HR department if you have an effective HR department, but they have to be visible to the people out in the field and known to the people so they need to get out of the office, go out and visit with the crews introduce themselves to the crews, to the workers themselves, not just to the foreman and make sure that people know who they are and know them by name, that they have contact information that is out there to the workers so the workers know how to reach them, and that the workers understand the process that operates outside of the normal chain of command and it doesn't have to go through their foreman or through their supervisor because if it goes to the foreman of the supervisor, what happens if the problem for the employee is the foreman or the supervisors?

Craig Macmillan 19:54

Right, right.

Anthony Raimondo 19:57

We have a process that is outside of that immediate chain command that if necessary, can go straight to the top of authority at the company to address problems and get problems solved. I've seen it be successful. I mean, I'll give you a great example is a longtime client of mine, who is a labor contractor has a very active HR department and they are extremely engaged. And one of the attorneys who works for me actually went with one of the HR representatives out to a location where the company was providing the staffing and providing the employees. And when they got out of the out of the car at the location, the employees were all waving to this HR person and greeting her by name, hi, hi, great to see you. Like they all knew her and they were comfortable. And there was this relationship and dialogue back and forth. So that workers would feel comfortable if there was an issue or there was a concern, you know, anything from Hey, our wages are too low, our equipments not safe, we don't have what we need, the forman it is abusing us, our time records are not correct. Anything that it might be, as an employer, you want those things to come to you. Because then you can solve them. If they don't come to you, they're gonna go somewhere else where there may not be a solution, whether it's a union, a government agency and attorney, but situations where the problem will actually become exacerbated and may not even get solved. Whereas if you have an effective process to understand what's going on on the ground, you can confront those issues and solve those problems before they become bigger problems. When employees have that avenue to communicate and resolve workplace issues internally with the company. It goes a long way. You know, employees go to union because they feel like they don't have a voice in their workplace. And they feel like there are problems that simply cannot get resolved without bringing in that third party. When they feel like they can solve problems internally, they're going to solve that they're going to use that process and they're not going to reach out to that union. They're they're much more resistant to it, because they have to pay for the Union. Why? Why pay a third party, something that you can do for yourself if you feel like you can.

Craig Macmillan 22:05

And possibly have something resolved quickly, effectively and amicably. And I think that's, I think that's absolutely right. I think that human components, huge really, really important. Sometimes we get into our own little boxes, and when the little boxes are not talking to each other when people can actually talk to each other.

Anthony Raimondo 22:21

I think we underestimate the importance of the the relationship aspect of every part of business, including the employer employee relationship.

Craig Macmillan 22:30

Yeah, exactly, exactly. We're getting close to run out of time. But there's one more thing I wanted to ask you, again, you have so much experience in this area. The farming operations vary tremendously in terms of their size, especially when maybe not especially but certainly in the vineyard industry. It seems like it's nearly impossible for a small grower to stay on top and stay compliant with constantly changing and expanding regulatory landscape. They have a lot to do, and they don't have a lot of staff to do it. Given the regulatory burden on a cultural operations. Do you have any advice for small growers and how they can successfully navigate the environment stay on top of these things?

Anthony Raimondo 23:03

I think there's a number of things that people can do. For example, on our website, raimondomiller.com, you can sign up for email, where we put out a lot of information about new laws or new regulations as they come out. And that's completely free. We work I've worked for a long time with the dairy industry where there's a lot of small farms as well as in the wine industry, where we have a lot of smaller employers. And one of the things that we strive to do as a firm is to establish relationships with industry associations, I do a lot of speaking of for different industry associations. And if there's any folks from those kinds of associations listening right now I do those things for free. I've never charged anybody for those things. Were on any topics that anybody wants, we can give updates, we can give other information out one on one and I travel, travel just about anywhere to do that. In a couple of weeks, I will be heading down to Temecula to speak to some wine groups, wine growers down there, which I do, then big event down there called great days, which I do every year. It's a wonderful, wonderful event and a great way to get information out. There are times where we have made relationships with industry associations where they're smaller farmers, where the association will pay our law firm to essentially provide advice consulting input, discounted services to farming operations. You know, we've we've made arrangements with associations where we do things like employee handbooks and other risk management devices on a significantly discounted rate and provide free consultation to their members and those kinds of things can be worked out. I think one of the things that's different about our firm is that we really do strive to be able to work with folks within the industry to make resources and information and advice available to the smallest farmers.

Craig Macmillan 24:48

That is wonderful. Yeah,

Anthony Raimondo 24:50

There's the big guys but the big guys have resources to get what they need, you know, in terms of human resource consulting, in House lawyers, outside law firms. It's really I think the little guys we've got to watch out for in this industry. And most of my career, I've represented family farms and family businesses. And that's kind of the niche that we fit into. If folks are out there, and they're looking for these types of resources, reach out to me. And let's, let's get an introduction with your local association. And let's see if we can work something out where we can provide some time and some resources to making sure that even the smallest members of those associations have access to the information and the resources that they need.

Craig Macmillan 25:29

So there is some support out there, small growers, not in isolation. It sounds like we've got places to go and people to talk to you. And I think it's really great going to the associations, because people will go to those meetings, they're very interested in those topics might draw them to those meetings. So I really appreciate the work that you folks are doing on that kind of wrapping up here. What is what is one thing that you would tell grape growers, just in general, regarding any of these types of issues, HR issues, other labor related things?

Anthony Raimondo 25:57

I think that being proactive is extremely important and understanding what risk management tools are out there for you and what you can do to protect yourself and what is a very difficult and complicated legal and regulatory environment. You know, we started off talking about technology and things like timekeeping, I think stuff like that is really valuable. employee handbooks are really, really important contracts between growers and vineyard managers and labor contractors in writing. You know, a lot of agriculture historically has been done on a handshake basis. And I kind of wish we still lived in that world, but we don't live in that world anymore, need to have written agreements, arbitration agreements for employees are a very powerful risk management tool that we'd love to see folks expand the use of, and it's a very, very inexpensive way to reduce risk. Insurance strategies are really important. There's a lot of great information out there through insurance brokers, for example, most of the insurance brokers that I know in agriculture provide a ton of free help with Cal OSHA compliance. In fact, when when farmers, mostly small farmers call me and they want help with Cal OSHA compliance. Usually, the first place I send them is their insurance broker, because a lot of those guys will do that stuff for free. So understanding what you what you get for free and what it makes sense to pay for it, how much it makes sense to pay for it is a valuable tool. But employee handbooks are important written policies are important training is important. And figuring out how to get those things in a way that is the most cost effective, especially for a small farmer is is really important. And it means not being afraid to reach out and ask questions. And I always take calls from farmers, my cell phone rings, anytime a day. And I'll try to help folks find those kinds of resources. And, you know, I don't want folks to be afraid to call me I'm not going to charge you for a phone call. If you're calling me asking me, How can I get access to some of these resources, I'll try to point you in the right direction, figure out where you can find resources at a cost and with a strategy that works for you. But what I don't want you to do is stick your head in the sand and just be reactive instead of proactive we can in this environment. If we work together. And we reach out, ask for help ask questions. Be proactive.

Craig Macmillan 28:12

That is great advice. And I think we would all be wise to think about that. It's hard to be proactive sometimes. But the benefits are many, many, many, many, many times greater than the downsides that you might think you're going to run into where can people find out more about you? You've already mentioned, your willingness to talk to people.

Anthony Raimondo 28:32

We have a website at WWW. Raimondomiller.com. I'm happy to give out my cell phone number. It's not secret. I'll put it out right here on the air. It's Area code 559-801-2226. Anybody's welcome to give me a call anytime and say, Hey, I heard you on the podcast. I got a couple of questions for you. I'm happy to take those calls. If for some reason you can't reach me, leave me a voicemail. It's rare that I go more than a couple hours without responding to somebody's phone call. I've represented dairy and livestock guys for years. So you know my phone doesn't turn off until they turn the cows off, which is never so never. I'm always happy to talk to farmers and I'm always happy to see what I can do to help. So feel free to give me a call. Feel free to the website.

Craig Macmillan 29:14

We appreciate it very much. So I guess today has been Anthony Raimondo is an attorney and founder of Raimondo Miller law firm in Fresno, California. Anthony Hey, thanks for being here. This is a really great conversation. I'm glad you take the time.

Anthony Raimondo 29:28

Wonderful. Thank you for having me. I really appreciate the opportunity.

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