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Southern Cotton Ginners Association, Inc. 2008 Summer Meeting

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Southern Cotton Ginners Association, Inc. 2008 Summer Meeting

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    1. Southern Cotton Ginners Association, Inc. 2008 Summer Meeting What Gins Can and Must Do on Key Labor and Immigration Issues I-9s, FLSA, MSPA, Discussion of H-2A Options, and a Brief Discussion of OSHA Issues July 29, 2008 / Updated August 4, 2008 Ann Margaret Pointer

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    5. www.laborlawyers.com

    6. Joint Employment and Respondeat Superior Who has your wallet and check-writing authority? Supervisors and sometimes other employees Maybe contractors under joint-employment and other legal theories

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    18. Definitions FLSA & MSPA Employ Includes any activity in which a person is suffered or permitted to work. children people not on payroll head of family

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    21. FLSA Partial Overtime Exemption for Employees Who Provide Certain Services Necessary and Incidental to Cotton Ginning Section 13(h) Not more than 14 workweeks in the aggregate in any calendar year Employed exclusively to provide services necessary and incidental to ginning of cotton in establishment primarily engaged in such ginning If employees paid 1-1/2 times regular rate for hours worked: over 10 in any work day or over 48 in any work week Promised bonuses likely part of regular rate

    22. FLSA Partial Overtime Exemption Commercial Cotton Ginning for Market Section 13(i) Not more than 14 weeks in 52 consecutive weeks For gins in county where cotton grown in commercial quantities If employees paid 1-1/2 times regular rate for hours worked: over 10 in any work day or over 48 in any work week Promised bonuses likely part of regular rate

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    24. FLSA / MSPA / or Applicable H-2A Wage

    25. Definitions MSPA Agricultural Employment Employment in any service or activity included within the provisions of Section 3(f) of the FLSA or Section 3121(g) of the Internal Revenue Code and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state. 29 C.F.R. 500.20(e)

    26. H-2A Definitions H-2A Agricultural Employment Employment in any service or activity included within the provisions of Section 3(f) of the FLSA or Section 3121(g) of the Internal Revenue Code and the pressing of apples for cider on a farm, of a temporary or seasonal nature. 8 U.S.C. 1101(a)(15)(H)(ii)(a)

    27. MSPA MSPA applies to all U.S. migrant and seasonal agricultural workers of H-2A employers, unless the employer is exempt from MSPA.

    28. H-2A U.S. employees of H-2A employers in corresponding employment to H-2A jobs are also covered by and must be provided all benefits, employment protections and rights of H-2A regulations and H-2A job order/contract.

    29. H-2A A practical effect is that all terms and conditions of employment, the H-2A job order/contract and MSPA 516 information must be available and provided to U.S. workers in corresponding employment at the time they are recruited if they are non-local workers and no later than the first day of employment if they are local workers. Plan for compliance in at least English and Spanish.

    30. MSPA / H-2A Incorporate Work Rules into Job Order / MSPA 516 and provide them to workers.

    31. Form WH-516 MSPA Disclosures in Workers Language At the time of recruitment, information contained in this form must be disclosed in writing in the workers language to all migrant and day-haul workers. For seasonal workers, this information must be disclosed when an offer of employment is made, but written disclosure is only necessary when requested. Rodriguez v. Jackson, 110 Lab. Cases 35,137 (D. Ariz. 1987) (spreading the word = recruitment) 29 C.F.R. 500.75 and 500.76

    32. Sample Items Required on MSPA WH-516 Disclosures Sheet The place of employment address and name The wage rates to be paid detailed, including planned deductions The crops and kinds of activities The period of employment accurate/ approximate The transportation and other employee benefits and any costs Worker comp

    33. Overview MSPA Requirements Applicable to Farm Labor Contractors (FLC) An FLC must be registered for all activities in which he will be engaged before he engages in those activities. Basic registration/license to hire, employ, etc., as well as housing, transportation and driving authorization. Metzler v. Lykes Pasco Inc., 972 F. Supp. 1438, 1442 (S.D. Fla. 1997) 29 C.F.R. 500.40-.62

    34. Overview MSPA Requirements Applicable to Farm Labor Contractors (FLC) Copies of all payroll records for each place of employment must be furnished to the grower, processor or packer to whom workers are furnished. Note: Crewleaders have additional responsibilities as well, which are covered below with respect to growers. 29 C.F.R. 500.60(a)

    35. Yellow MSPA Poster Must be posted at the place of employment in a conspicuous place. Generally multiple places. Must be in the workers language. 29 C.F.R. 500.75(c), 500.76(d) and 500.78

    36. Driver, Vehicle Safety and Insurance Requirements Applicable to Migrant and Seasonal Agricultural Workers

    37. Driver, Vehicle Safety and Insurance Requirements Applicable to Migrant and Seasonal Agricultural Workers

    38. Housing Safety and Health Standards Applying to Migrant Agricultural Workers

    41. No retaliation / no blacklisting for complaints, testimony, etc.

    42. OSHA 29 C.F.R. Standards Specifically Applicable to Agriculture Field Sanitation 1928.110 Anhydrous ammonia 1910.111(a) and (b) Labor camps 1910.142 Slow-moving vehicles 1910.145 Logging 1910.266 Cadmium 1910.1027 Hazard Communication 1910.1200 Retention of DOT markings, placards, and labels 1910.1201 Roll-over protective structures 1928.51 Guarding farm field equipment, farmstead equipment, and cotton gins 1928.57

    43. Besides the Specific OSHA Standards Applicable to Agriculture, Do Cotton Ginners Have Other Duties under OSHA? Yes. Under the so-called general duty section of OSHA, often referenced as Section 5(a)(1).

    44. OSHA General Duty Obligations Each employer must furnish employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm . . . .

    45. OSHA General Duty Obligations Under the general duty clause, hazards that are the subject of specific standards for non-agricultural industries CAN result in OSHA citations where the hazard is recognized, has caused or is likely to cause death or serious physical harm, and there is a feasible method to correct or abate the hazard.

    46. OSHA General Duty Obligations Example: Forklifts and the OSHA general duty clause. Although the OSHA standard for forklifts (powered industrial trucks), 29 C.F.R. 1910.178, does not apply to agriculture and was expressly declared inapplicable to agriculture when it was published, agricultural employers have been cited under OSHA for hazards associated with forklift operation under the general duty clause.

    47. OSHA General Duty Obligations What kinds of forklift hazards have been cited as violations of general duty? Failure to train employees operating or working around lifts or to enforce safety rules Failure to conduct safety inspections of lift Operation of lift without non-skid foot pedal Operation of lift that had holes drilled in tines Operation of lift without using seat belt Failure to have regular maintenance schedule, which OSHA concluded created hazard of carbon monoxide poisoning These requirements technically drawn from American National Standards Institute or American Society of Mechanical Engineers standards, not regulations.

    48. OSHA General Duty Obligations OSHA Lesson? Even though only certain regulations apply to agriculture particularly where there are ANSI, ASME, and other professionally developed safety standards, citations may be issued. Moreover, there are OSHA citations that have been issued for failure to operate equipment in accordance with the manufacturers directions.

    49. OSHA General Duty Obligations Practical OSHA Lesson? If equipment or a work practice creates a hazard risk: Keep up with and implement your industrys ways of working safely. Train employees to work safely. Maintain equipment so it can be safely operated.

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