Back wage measure for farm workers challenged

A law that would have settled disputes between growers and farmworkers over lost wages could come unraveled, after two fruit growers persuaded a federal court to review whether it is constitutional.

Gerawan Farming Inc. and Fowler Packing Co. contend that state legislators deliberately crafted provisions in Assembly Bill 1513, signed last year by Gov. Brown, to exclude them from protections afforded to companies that agree to compensate “piece work” laborers for their time spent on breaks, training, and other nonproductive activities.

Those provisions denied the growers their constitutional right to equal protection under the law, they argued.

A U.S. District Court rejected that claim, but on Friday, a three-judge panel of the U.S. 9th Circuit Court of Appeals asked the court to reconsider.

The move is unlikely to change much for growers who may have opted to repay workers by a Thursday deadline.

The author of the bill, former Assemblyman Das Williams (D-Santa Barbara), touted the legislation as a grand bargain that would shield growers from penalties and lawsuits and compensate workers who had struggled for years to recoup payment for time not spent picking and packing.

Williams justified the carve-outs as aimed at placating labor interests, including the United Farm Workers union, who might “blow up” the deal because it would protect “bad actors.”

Appeals Court judge Paul J. Watford, however, suggested during a November hearing that a political bargain “doesn’t strike me as a rational reason” to create a class of citizens that would be excluded from protections afforded to everyone else.

“These are bizarre carve-outs, I’ll grant you that; everyone looking at them will kind of scrunch up their face,” Watford said during a Nov. 16 hearing.

At issue are two last-minute provisions that in effect excluded the two companies.

The first excludes any company that was sued over back wages before March 1, 2014. It applies to Gerawan, which had been sued by the UFW three weeks before that cutoff.

Fowler, which would have been protected under the March deadline, was in effect carved out by a second exemption setting a limit of April 1, 2015. Any party sued before that date over wage theft related to allegations of fictitious or “ghost” workers is exempted.

A class action suit filed against Fowler two weeks before the April cutoff date includes those allegations.

A third exemption relates to any wage claim “asserted in an amendment to a claim” before July 2015.

Delano Farms was sued by the UFW and other parties in 2009. Those plaintiffs requested permission to amend their complaint three weeks after the carve-out was added to the bill, and eight days before the July deadline, according to court records.

The request to amend the complaint was rejected by a U.S. District Court three months later.

“We have been unable to find other cases which fit squarely within the time parameters,” said David Schwarz, attorney for the growers, who said the provisions were “an act of retribution” on behalf of the UFW.

UFW attorney Mario Martinez could not be reached for comment.

Pressed by Judge Richard Clifton to justify the cutoff dates, Deputy Atty. Gen. Thomas Patton acknowledged there was “scant” evidence in the legislative record to explain the dates.

“I think the Legislature did not want to disrupt pending litigation,” Patton said. “I think that’s a legitimate reason.”

Patton said the state Labor and Workforce Development Agency had found only two court cases, one of which had been resolved, that would exempt any other company from the safe harbor provisions.

Clifton puzzled over why a provision for allegations of wage theft based on “ghost employees” had anything to do with the bill’s intention of recovering pay for idle time.

“There’s no requirement that there be proof that these ghost names were used,” Clifton said “Suppose that the grower established that he didn’t engage in wage theft?”

Patton said the ghost employee issue could affect how employers calculate how much they owed to actual workers, because the formula would be based on an average across a payroll that includes fictitious workers.

Clifton seemed unconvinced. “The explanation that seems to scream out is that [the provision] is part of the gerrymander,” Clifton said. “It permits the denial of safe harbor to certain parties.”

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