In the past week or two Texas has had some serious accidents. From what we understand they all could have been prevented by properly locking out the power. We’re in the middle of gin season for most of our area. This is when we tend to let our guard down. Please don’t let that happen in your gins. Take some time to review the SAFETY ALERT below and share with your employees. The ALERT is in English and Spanish. While we haven’t seen any of this sort of injury this year in the Southeast and we pray we don’t, we all need to pay attention to the little things. Lets all have a safe gin season. Click on the images to download the PDF.
Over the past few weeks several gins have contacted us regarding the increasing time it is taking to get classing from the classing office. Many more of you have contacted the classing office directly. We and they are listening.
We have been in regular communication with Memphis just as many of you have been with your local office. Darryl Earnest sent out this letter to all stakeholders to give everyone an update. Please click on the image and download the letter. They are dealing with all of the same issues we are all dealing with this year… that is lack of seasonal labor and parts supply chain problems. Darryl asked that we share this with all of you as well. Give us a call if you have any questions.
As I mentioned in last weeks article, the OSHA Emergency Temporary Standard (ETS) situation changes nearly every day. And that is indeed the case. Since I last wrote about this, the Fifth Circuit Stayed enforcement and implementation of the rule pending other cases.
The Circuit was the first to put an emergency stay on the rule on November 6. A week later it had heard arguments from both sides and said the stay would remain until a full hearing and final decision was made. That decision will likely come from the court selected to hear all the cases that have been filed as a consolidated case. Which court that will be is to be determined later this week.
Since multiple cases have been filed in multiple courts of appeals, OSHA as requested that they be consolidated. The move means the US Judicial Panel on Multijurisdictional Litigation will draw single court to hear the joint case. The lottery is currently scheduled for tomorrow the 16th of November.
Since this court has completely stayed the enforcement and implementation of the rule, this means that the December and January deadlines are likely not going to remain as they are. The court will likely lay out a time for arguments shortly after being selected but will give time for the litigants to work on their briefs as a group. While last week we expected to the process would be done by Thanksgiving, it seems pretty unlikely and not by the December 4 deadline.
What should you be doing Now.
I would still try to figure out whether the 100 employee minimum has any chance of touching you. If you MAY be under this rule, I would go ahead and be looking at making the decision on vaccine mandate or vaccine plus testing and get those decisions out of the way. If you will NOT be affected by this rule, as written, remember that OSHA is seeking comments on a permanent rule. They seem to have every intent on making this permanent and as broad as possible.
Just because the rule may not directly apply to you, you should have policies and procedures in place to help minimize the spread in your operation and/or housing. Whether you require vaccines, help people get vaccinated by working with a local health department or whatever, require masks, or whatever, you should be doing the steps necessary to keep your whole gin from going down at once. If you have an outbreak your goal is to keep it from taking the entire crew or office out. (That’s a lot easier said than done but that’s the goal.
You probably heard that last Friday, November 5, the occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) for Covid-19. This new standard, as the name implies, is a special type of rule that OSHA has the Authority to publish under certain very narrow circumstances. It applies to nearly every employer that has over 100 employees. We’ll try to document some of the things you need to know now and what you should be doing in the near future.
An Emergency Temporary Standard is an exception to the ‘normal’ rule or standard development process. Under the certain circumstances such as a grave danger, OSHA can issue rules that go into effect immediately instead of proposal, comment, response, issue process that normally takes place. These standards are meant to be ‘stop-gap’ to address an issue that is an immediate threat that would endanger a lot of workers if the normal rule making process were to take its normal 1-2 year time. When they issue an ETS they must begin the process of a permanent standard soon and that is normally a six-month sunset. From what I’ve read that can be extended or a new ETS issued at the end of six months.
Who is affected?
The rule went into effect on November 5 with the publication in the Federal Register. It was immediately challenged, more on that later. The rule is a General Industry rule (Section 1910) but also affects agriculture (Section 1928) under certain circumstances. As a purely agricultural employer (only have Sec. 1928 rules apply) and have fewer than 11 field workers AND do not provide housing, you are not covered by the rule. BUT if you have 11 or more workers doing field labor, OR provide housing for temporary workers (MSPA, or H-2A for example) then the rule applies… maybe
If you are covered by the rule (nearly everyone is) then you need to look at the number of employees you have in aggregate. There are legal terms for this but essentially if you have 100 employees across your company or sister companies that share ownership and control, in total, you will have to implement the programs outlined in the rule. If you’re not sure, consult an attorney.
It’s not news that we’re enjoying some of the highest cotton prices in some time. It’s been a long time since dollar cotton has been in our vocabulary. Add to that a lot of farmers are now hauling their own cotton to the gin, and we’re in a lot less control over where and how cotton is staged in the fields. This is a set-up for potential problems.
Gin’s coverage of cotton in the field or on the yard normally have block or grouping limits and often a yard limit as well. With cotton being well over a dollar, it takes a lot fewer modules than it did previously to hit those limits. Limits often vary from policy to policy and gin to gin and can be bought up depending on the company. For example, some companies start at $50,000 for a limit for in-field storage but most are in the $75,000 range. That’s about 30–40 round modules at $600 per bale ($1.20/lb cotton). How in field cotton is valued and the limits you have will give you an exact number to stay under.
You have similar situation on your yard. You have block limits and separation minimums between blocks. There is also normally a yard maximum as well. All of those limits can be bought up most of the time but may come with other contingencies that you have to agree to.
The point of all of this is that we recently heard about a significant in-field loss that occurred late last week. It occurred to us that as farmers stage their own cotton for hauling to the gin or for the gin to come get, it would be prudent to remind them as to the limits on coverage and separation requirements. It would also be a good idea to review your own coverages and the way your yard is laid out to make sure your blocks aren’t exceeding your limits.
Please take some time to review these issues in your own policy and stay in contact with your insurance agent to make absolutely sure you know what your limits are and are in communication with your producers so they don’t put undue risk out there. Just a few things to add to this season’s complications.
During our State Unit Meetings in September, we told the attendees that the Wage and Hour division had stopped their regional targeting program for gins. Instead the Atlanta region which covers most of the SE has a general emphasis program on agriculture. At that time, we weren’t sure if that would add pressure to gins or take some off. Well we’re getting a better picture.
In recent weeks a number of gins in NC and GA have gotten notices and begun the Wage and Hour investigation process. The process is similar to any other Department of Labor investigation like OSHA. There is an opening conference, request for information, interviews, inspections and a closing conference.
Fisher and Phillips wrote a great article on how to handle these investigations. This article is HERE.
If you’re wondering what they’re looking for, I was recently on a call with the National Council of Ag Employers where Whitney Ford of the Wage and Hour division outlined a number of issues they are focusing on this year in Agriculture. A lot of these issues deal with Farm Labor Contractors. First is the issue of Joint Employership. If the farmer and the Farm Labor Contractor have joint control over the workers, then the farmer can be in a joint employment situation and be held accountable for the sins of the FLC. This can happen in H-2A situations also when the FLC is using H-2A Labor. Also dealing with FLC’s when an FLC has certain violations, they are debarred from the program. They often show back up with a new name or a family member as the licensed FLC. This becomes a game of whack-a-mole AND when combined with the joint-employer situation may put a farmer (or ginner) who uses an FLC in a bad predicament.
She also mentioned what is known as “corresponding employment” for the H-2A employers where US workers have to be offered the same or better conditions of employment than the H-2A workers. The argument is that if the better working conditions and pay were given offered to domestic workers, they would have applied for the jobs. The same thing goes for hours on the H-2A contract. Often there is a wide discrepancy between the hours on the contract and the hours worked. For example if the H-2A contract is for 40-50 hours and the work is really 60-80+ then domestic workers may have also applied knowing they would have made more money. (no I don’t make these arguments up)
Ms. Ford also discussed inbound transportation cost reimbursement, housing issues, inspections on housing conditions and much more.
If you have had an inspection this year and have not let us know about it, please shoot me an email at dusty at southern-southeastern.org so we can track this better. For example in NC Wage and Hour hit a lot of sweet potato producers and then moved to gins with at least six gins that we know of getting investigated so far.