Is AB 2346 Legislation a Small Step to Disaster?

I smell smoke, so there may be a fire smoldering in the form of new legislation in California that is meant to protect farm laborers from Heat Illness.

According to a news report, “Assemblywoman Betsy Butler (D-El Segundo) has just introduced a bill (AB 2346) she says will add teeth to the current California heat illness regulations. It will allow farm workers to sue their employers if they allege the employers don’t comply with Cal/OSHA Regulations. ”

The bill is meant to “put teeth” into existing Cal-Osha regulations for violators of the Heat Illness and Injury Prevention regulations in Title 8 Section 3395. The problem is how they suggest going about putting teeth into those established regulations. The bill will recognize Farm owners and Farm Labor Contractors as co-employers (a term usually reserved for PEO’s), which would shift some of the onus of employment (as in wage and salary issues, Osha compliance issues, and fair labor standards regulations) back onto the farmer or land owner.

The “teeth” in this bill would be to allow any employee who believes that they were injured as a result of a Farm Labor Contractor’s failure to comply with Cal-Osha’s Heat Illness standard, the right to sue that employer outside the workers’ compensation system. Because of the co-employer link to the farmer that is also in this bill, that would include the right to sue the farmer or landowner under the same grounds.

Although actual text of the bill is not available at present, it appears to be a classic “deep pockets” legislative attempt to force compliance issues back on the farmer. But in reality, this bill may turn many far-reaching issues into contractual relationships and change the role of service providers everywhere. Think about the unintended consequences of this in the trade industries. It is a very short step to think that other industries that must comply with Title 8 Section 3395 would possibly become snared in the same type of liability. Perhaps a building contractor would  become solely responsible for every employee of every subcontractor he used — this would surely eliminate the “Exclusive Remedy of recovery” afforded under current Work Comp case law. It may redefine or eliminate the notion of “Gross Negligence” as we now know it. Waivers of subrogation may be rendered meaningless as a safeguard of protecting contracting companies.

One wonders even about who wrote this bill, as last I checked, there is not one working commercial farming operation anywhere near El Segundo ( http://maps.google.com/maps?hl=en&tab=wl ).

Everything I have heard about AB 2346, whether intentional on unintentional, is ill-conceived. Hopefully the consequences will be thoroughly identified and this legislation will die a quick and painless death. To help that become a reality, please go here http://assembly.ca.gov/assemblymembers and tell them what you think of the proposed legislation.

Once the verbage of the bill is available I will have more thoughts on it, and make it available here through a link to a webinar on the topic.

Here you will find the “Vanilla” summary of the proposed legislation: http://asmdc.org/members/a53/attachments/AB2643FactSheetSpotlight.pdf

Guy Teafatiller

guyt@vanbeurden.com

Vice President | Kingsburg