Tag Archives: Farm Labor

Raimondo & Associates, ALC is pleased to share an announcement regarding Anthony Raimondo.

As many of you know, Mr. Raimondo made a significant effort on behalf of clients to hold an enemy of California agriculture, California Rural Legal Assistance, Inc. (CRLA), accountable for repeated and ongoing violations of federal regulations regarding the grants they receive from the federal Legal Services Corporation (LSC).  

Mr. Raimondo made repeated reports of CRLA’s legal violations to the LSC Inspector General, and provided assistance to an ongoing federal investigation into CRLA misconduct. In retaliation for these efforts, CRLA sued Mr. Raimondo in federal court, falsely accusing him of seeking to have their undocumented clients removed from the United States. The case was initially dismissed by the federal court, and revived on appeal by the Ninth Circuit, ultimately being settled by an insurance company before any litigation on the merits. Mr. Raimondo maintained his innocence throughout and has always denied these allegations.  

After Mr. Raimondo successfully represented Silvia Lopez and the Gerawan workers in defending their civil rights against an assault by the United Farm Workers Union and the California Agricultural Relations Board, the UFW retaliated by filing State Bar charges based on the same baseless allegations of misconduct that were in the federal court lawsuit. Ultimately, the State Bar prosecuted Mr. Raimondo based on these false allegations, seeking to revoke his license to practice law. 

Mr. Raimondo continued to insist that the charges were unfounded, and fought the case for several years, culminating in a trial before a State Bar judge in May 2021. On August 12, 2021, the judge issued a 41-page decision that completely exonerated Mr. Raimondo, and dismissed all charges against him.  

Throughout this process, a large number of clients and colleagues offered support, loyalty, and even testimony at the trial to aid Mr. Raimondo in defending these specious slurs against his character. He will forever be humbled and grateful for the loyalty and trust his clients, colleagues, and friends showed him throughout this long and difficult battle. He is grateful to the judge who gave him a fair trial, and worked hard to understand the issues and the evidence in a very complex and unusual case.   

At Raimondo & Associates, ALC we look forward to many more years of providing the most passionate advocacy we can on behalf of our clients. We are not afraid to put ourselves in harm’s way to protect our clients, and each and every client can expect this level of commitment from our firm. 
Thank you to all of our valued associates, friends and clients.

APRIL 23, 2021 – NEW CHANGES TO FARM LABOR CONTRACTORS’ LICENSES AND LICENSING PROCESS

The Division of Labor Standards and Enforcement (“DLSE”), will be launching a new application platform on May 10, 2021.

If you have an existing application pending in the old system then you will be permitted to finish the process in the old system. 

For those New Applicants applying for the first time the new FLC numbers are different than current numbers. 

For those that are renewing, you get to keep your old FLC number and you are able to merge the information from the old system to the new platform.

The new system will also allow room for more upload space (attachments) and provides a section for Applicant and Processor Information so that both the FLC and Processor are up to date with defect items or any additional request from the DLSE. 

The only item that the FLC, not the Processor, will receive will be the Issuance Certificate (License).

Exams are being outsourced to a third-party company that will administer exams on their system (Expected Launch Date August 1, 2021), which can handle more than one hundred exams being taken simultaneously. 

Applicants who applied last year and have been waiting for an exam and whose file now shows closed for inactivity, the application and exam fees ($794) will be carried over to the new system upon request.  The transfer will not happen automatically. It is important to request that the DLSE reopen your file before it can be merged into the new system (approximately June 1, 2021) so that you have plenty of time to resubmit. 

Finally, please keep in mind that if you were given an extension that you make sure to request a continuation of that extension at least two weeks prior to the expiration of the extension, as the DLSE will not automatically provide extensions.

Additionally, the U.S. Department of Labor’s Wage and Hour Division has begun to implement new WHD-issued certificates.  The changes are largely cosmetic, but will still continue to have an “expiration date” or “valid dates” for growers and farm workers to check when ensuring the certificate is current.  The new format and design changes have no effect on an FLC or FLCE’s responsibility to show these cards to prove that they are registered with the U.S. Department of Labor, as required by the Migrant and Seasonal Agricultural Worker Protection Act. Currently registered FLCs and FLCEs need not take any action at this time.  Their current Certificate of Registration remains valid until its expiration date unless revoked by the Department.  Any certificates you renew will be issued in the new format.

Please be advised that any license holders should always make sure that their licenses are current. If you need assistance with your licensure, please contact our office for advice and guidance. We here at Raimondo and Associates have always been here to help Farm Labor Contractors, and we will continue to do so.

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A special thanks to Porfirio Rios of 4 All Enterprise, Inc., and Gil Molina of CAAL, for this information.

MARCH 29, 2021 – IF YOU ARE THINKING ABOUT STARTING A NEW CORPORATION TO DISCHARGE A DEBT OR COURT JUDGMENT FROM A LABOR CODE VIOLATION, THINK AGAIN – CALIFORNIA JUST TIGHTENED THE RULES.

In 2020, the California Legislature enacted a series of employment reforms that may affect our clients’ businesses.  Of particular importance was AB 3075, which was signed by Governor Gavin Newsom on September 30, 2020, and effective as of January 1, 2021 as Labor Code § 200.3, which expands the applicability of the doctrine of successor liability.

In general, one business entity is not liable for the debts of another business entity. Successor liability, however, is an exception to the general rule and allows a creditor/plaintiff to recover an outstanding debt or legal judgment from the entity who is the “successor” of the entity liable for that debt or judgment.  Most often, this occurs when one entity purchases another entity and assumes all of its debts and judgments, or when two entities merge and form a new, larger entity.  The new law, AB 3075, codified into law as Labor Code § 200.3, expands on the concept of successor liability and its legislative purpose is specifically aimed at preventing business owners who have violated the Labor Code from escaping liability by shuttering one business and forming another. 

The new law provides that “a successor to any judgment debtor shall be liable for any wages, damages, and penalties owed to any of the judgment debtor’s former workforce pursuant to a final judgment.”  It further defines “successor” to apply in situations where any business that “[u]ses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor.” It also includes any business that “[e]mploys as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor.” In addition, it includes “a business in the same industry [that] has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor.

Furthermore, AB 3075 added Sections 1502, 2117, and 17702.09 to the California Corporations Code to require companies to attest in their statement of information filed with the California Secretary of State that no officer, director, or LLC member or manager “has an outstanding final judgment issued by the California Division of Labor Standards Enforcement or a court of law … for the violation of any wage order or provision of the Labor Code.”

The immediate effect of these laws is that the successor entity of any business entity that was dissolved with an outstanding Labor Code violation judgment or order is now liable for the prior entity’s debt, within the applicable statute of limitation.  Thus, if you had a business that ceased operations with an unresolved Labor Code violation judgment, and then the owner, the owner’s family, or the officers of that company started a new business in the same industry, with a substantially similar workforce, the new entity may now be liable for the obligations owed by dissolved entity.

As always, the best way to prevent Labor Code judgments is to actively prevent lawsuits from occurring in the first place by complying with the Labor Code and making sure that adequate documentation is being maintained for each employee.  If you think that you may be subjected to liability due to this new law, please contact Raimondo & Associates to discuss potential liability exposure and options for resolution.

MARCH 25, 2021 – CAUTION: FARM LABOR CONTRACTORS BE ADVISED REGARDING YOUR LICENSES

According to the new Labor Commissioner for the Division of Labor Standards and Enforcement (“DLSE”), Liz Whoo, the current plan for Farm Labor Contractors to renew, and or apply for new, licenses is as follows:

“The Farm Labor Contractor will be required to pay for a new registration period if the period has passed [from pre-Covid 19, February 2020]. What I mean by this is, if the FLC applied in February, and the license period was 03/01/2020-03/01/2021, the FLC will need to pay the registration fee for the period of 03/01/2021-03/01/2022. Exams taken this year will restart the two-year period, and FLC taking the exam this year will not be required to take the exam in 2023. Renewing FLC’s are being prioritized for the pilot program.” – Liz Whoo   

So, what does this really mean? During the Covid-19 period, Farm Labor Contractors were not allowed to take the exams in person, and they received an “extension”. The Labor Commissioner is now affirming that this extension is over, and that the corresponding fees for the new license period shall be due.

Please be advised that any license holders should always make sure that their licenses are current. If you need assistance with your licensure, please contact our office for advice and guidance. We here at Raimondo and Associates have always been here to help Farm Labor Contractors, and we will continue to do so.

A special thanks to Porfirio Rios of 4 All Enterprise, Inc., and Gil Molina of CAAL, for this information

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Raimondo & Associates will continue to monitor these mandates and guidance and provide updates as necessary.

CALIFORNIA COVID-19 UPDATE

  1. SPECIAL NOTICE TO FARM LABOR CONTRACTORS AND OTHER EMPLOYERS OF FOOD WORKER RE THE GOVERNOR’S EXECUTIVE ORDERS ISSUED 4/16/20;
  2. SBA HAS RUN OUT OF MONEY TO SUPPORT THE PAYCHECK PROTECTION PLAN; AND
  3. LATEST GUIDANCE RE TAX CREDITS

Given the daily changing legal landscape, we strongly encourage employers to reach out to Raimondo & Associates with questions regarding specific situations. We are closely monitoring these developments. Because of these frequent developments, and the need to adapt the general guidance below to specific circumstances, employers should consult counsel regarding specific circumstances.

At a general level, the legal rules and guidance we summarize below should not be applied in a manner that would prevent employers from taking reasonable, common-sense steps to protect the health and safety of employees, customers, vendors and their communities. There are many nuances and fact-specific elements that make individualized legal counsel on these questions of critical importance.

Q: What is COVID-19 Supplemental Paid Sick Leave and who does it apply to?

Governor Newsome signed Executive Order N-51-20 on Thursday, April 16, 2020, in which he granted additional paid sick leave to food sector workers. Employers with 500 or more employees in the United States (as determined in accordance with 29 CFR 826.40(a)(1)-(2)) must now provide food sector workers with 80 hours of paid sick leave in addition to all other leave requirements, if the employee is unable to work because (1) Federal, State, or local quarantine or isolation orders related to COVID-19; (2) the worker is advised by health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or (3) the worker is prohibited by the employer from working due to health concerns related to the potential transmission of COVID-19.

Like the FFCRA’s Emergency PSL, employees using the COVID-19 Supplemental PSL must be compensated for the average hours the employee would have been scheduled to work, paid at the higher of (1) the employees regular rate of pay during the last pay period; (2) the state minimum wage; or (3) the local minimum wage to which the employee is entitled. 

This order defines Food Sector Workers as anyone who is subject to Industrial Wage Commission (IWC) Wage Order 3-2001 § 2(B); IWC Wage Order 8-2001 § 2(H); IWC Wage Order 13-2001 § 2(H); or IWC Wage Order 14-2001 § 2(D); the employee works for an employer that operates a food facility; or the employee delivers food from a food facility for or through an eligible employer. The employee must be an Essential Critical Infrastructure Worker and the employee must leave their residence in order to perform work for or through the eligible employer. 

Eligible employers are exempt from the Executive Order if, as of April 16, 2020, the employer provides leave payable for the reasons listed above, and that would compensate the employee in an amount equal to or greater than required by the Order. 

The Labor Commissioner will provide a model notice for employees by April 23, 2020.

Q: Is the SBA still accepting applicants for the Paycheck Protection Plan?

The Small Business Administration (SBA) released a statement this morning that it is no longer able to accept applications for the Paycheck Protection Plan (PPP), as the program has run out of the allocated budget of $349 billion. Congress and the Secretary of the Treasury are attempting to reach a decision on how to further fund the program, though neither have released details of any proposed options. We will provide an update when additional information is available.

Q: I have an employee who has reported that they have some COVID-19 symptoms. Do I have to provide Emergency Paid Sick Leave? 

It depends. In order to qualify for EPSL because the employee is experiencing symptoms of COVID-19, the employee must also actively seek diagnosis. The bar is likely rather low for what counts as “seeking diagnosis” but it is still an important step the employee must take. The employee does not need to actually take a test to confirm COVID-19, they simply must seek a diagnosis from a health care provider. 

Q: I have fewer than 50 employees and cannot afford to provide Expanded FMLA and EPSL for my employees. How can I get the exemption? 

Employers with fewer than 50 employees seeking potential relief from Expanded FMLA and EPSL payments must show that they cannot afford to pay the employees while operating at minimal capacity. This is important because it will make successfully claiming this provision exceedingly difficult. If an employer is able to take provisions to reduce its costs while still providing the required benefits, the employer will not likely qualify for an exemption. Employers must therefore keep very good records to show that they qualify for the exemption. 

Q: Has the IRS provided any further guidance on the FFCRA Tax Credits?

The IRS has amended its previous guidance and has stated that the FFCRA tax credits will be set against only the quarterly federal income tax and Medicare taxes to defray cost of leave. It has clarified that the payroll taxes available for retention no longer include the employee’s share of Social Security and Medicare taxes nor the employer’s share of Social Security taxes.