California Farm Law Update: “Card Verification” Is Here
Governor Newsom just approved “card verification” legislation, making it much easier for California workers to organize into unions and creating headaches for agricultural employers in the state. Newsom’s September 28 signing comes after President Biden issued a statement “strongly” supporting the legislation. But there is good news for employers. Earlier this week, the governor vetoed two bills. The first (AB 857) would have required additional disclosures to H-2A workers. The second (AB 364) would have required additional registration for foreign farm labor contractors. What do you need to know about these three bills?
1. AB 2183 – Farmworker Election Process
Introduced by Assemblyman Mark Stone (D-Monterey), the bill revises the union election process for agricultural workers.
how it was before
Currently, elections are held by secret ballot and are conducted by the Agriculture Labor Relations Board (ALRB). A voting area is designated, each employee presents identification to obtain a ballot and marks their ballot in the privacy of a voting booth. The employee’s choice is kept secret and the ballots are placed in an open sealed box under the supervision of ALRB staff and observers when voting is complete.
All. Under AB 2183, a union can organize without holding an election at a polling place, and instead the new law allows unions to require employees to sign a card authorizing the union to represent them in negotiations. collective. This majority registration process is commonly referred to as “card verification”.
Originally, AB 2183 also described a provision for secret postal voting. This was eliminated by a “supplemental agreement” (RN 22 21856) between the Newsom administration, United Farm Workers (UFW) and the California Labor Federation. The supplementary agreement is expected to be enacted next year.
In a card check election, the union would present permission cards to the ALRB, along with a petition for a non-union peace election. The Board will investigate and review to determine if the union should be certified. No postal voting or in-person secret ballot voting is required.
What about the “ceiling”?
The total number of card verification certifications is limited to 75 until January 1, 2028. After that, AB 2183 is repealed. Undoubtedly, the plan for organized labor is to replace it with something similar or more pro-union.
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AB 2183 outlines a mandatory mediation and conciliation process for employers and unions that find themselves at an impasse in the bargaining process after certification. During this process, a mediator delivers a report to the board that resolves the dispute. The parties can ask the board to review the report. However, if an employer chooses to seek judicial review of the council’s final order, they must post a bond with the council for “the full economic value of the contract”, i.e. the difference between the existing salary of the employee and the economic advantage in the contract. . There are strict deadlines for posting the bond, which creates additional procedural hurdles, and the cost of the bond itself can be prohibitive.
2. AB 857 – Required Employer Disclosures
This bill would have required employers to provide additional information to workers under the H-2A visa program in a written notice in Spanish about specific topics related to their rights under the H-2A program. Importantly, the legislation attempted to add an element of compensable travel time for H-2A workers to and from job sites. Governor Newsom ultimately did not sign the bill and noted in his veto message that the notice requirements differ from those already found in the labor code.
3. AB 364 – Registration of Foreign Labor Contracts
This bill would have established a separate program through the Office of the Commissioner of Labor overseeing the registration of foreign labor contractors in agriculture. Governor Newsom returned this bill without a signature because he noted that it would have created a redundant process, since labor contractors are already required to register with the state.
What should employers do?
Farm employers should expect union organizers, especially the UFW, to step up a gear and start making a big push to organize using card checking. Employers should be prepared with legal counsel ready in the event of UFW activity and have a response plan ready to go now.
We’ll be monitoring any updates offered, so make sure you’re subscribed to Fisher Phillips’ Insight system to get the latest information straight to your inbox. If you have any questions, contact your Fisher Phillips attorney, the authors of this overview, or any attorney in our California offices.