Reference Toolbox – Vineyards Employment
HIRING & TERMINATION
Employers have certain responsibilities under immigration law during the hiring process. All U.S. employers must properly complete Form I-9 for every individual they hire for employment in the United States. This includes citizens and noncitizens.
U.S. law requires companies to employ only individuals who may legally work in the U.S. – either U.S. citizens, or foreign citizens who have the necessary authorization. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. You can find out how to enroll and more information about the program by clicking here.
The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. A U.S. employer, a U.S. agent as described in the regulations, or an association of U.S. agricultural producers named as a joint employer must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf. Please read carefully through the H-2A program. For more information and qualifications consult the U.S. Dept. of Labor's fact sheet #26.
The H-1B program This nonimmigrant classification applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability. H-1B specialty occupations may include fields such as science, engineering and information technology. For more information about the H-1B program, visit the H-1B Specialty Occupations Web page.
The hiring process is one of the essential ways employers can learn more about their prospective employees. Interviews help in determining if the relationship will be productive. While conducting this interview employers must be cautious about which subjects are appropriate to discuss and which may be interpreted as discriminatory. Even if that is not the employers intent, avoid statements and questions that could be construed as discrimination or form a false basis for a job offer acceptance.
Under state and federal law, it is illegal to discriminate against someone (applicant or employee) because of that person's protected class. These may include: race (including characteristics like hair texture and protective hairstyles including braids and locs), color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Learn more here: BOLI : Discrimination at Work : For Workers : State of Oregon.
When making personnel decisions, including hiring, retention, promotion, and reassignment, employers sometimes want to consider the backgrounds of applicants and employees. There are detailed rules and restrictions about all types of background checks, including but not limited to those inquiring into medical, genetic, criminal, credit history, and other information. The rules differ depending on the circumstances—including the timing of the check, who conducts the check (such as a third party vendor), the purpose for the inquiry and its relation to the position, and otherwise.
Keep in mind that even if the background check itself complies with local, state and federal laws, employers further cannot conduct background checks or use the information obtained in a manner that denies equal employment opportunity to anyone on a protected basis, by intent or by unlawful disparate impact. This means that an employer is expected to guard against discrimination whether intentional or unintentional.
If making a hiring or employment decision related to criminal convictions, the EEOC outlines relevant factors to consider: (1) the nature and severity of the crime, (2) the time elapsed since conviction or release from incarceration, and (3) the nature of the job. EEOC Background Check Guidance
Effective Jan. 1, 2019, Oregon’s Equal Pay Law expands equal pay protections of ORS 652.220 beyond gender to include other protected classes, and makes it an unlawful employment practice (1) to discriminate on the basis of a protected class in compensation; (2) to pay different compensation to any employee of a protected class for “work of comparable character” to others without meeting a specific exception; (3) to screen job applicants based on current or past compensation; or (4) to determine compensation for a position based on current or past compensation of a prospective employee. The new EPL prohibits employers from asking about a prospective employee’s current or past compensation history, and also expands equal pay protections beyond gender to include race, color, religion, sexual orientation, national origin, marital status, veteran status, disability or age.
Among other things, the state law requires that two individuals performing comparable work be paid the same compensation, unless meeting one or more of eight statutory exceptions. The law defines “compensation” broadly to include wages, salary, bonuses (including hiring bonuses), benefits, fringe benefits, and equity-based compensation. Employers who perform an equal pay analysis may identify issues to address, and also become eligible to avoid some of the more expensive possible damages in the event of a lawsuit.
Consult these 6 Steps to Prepare for Oregon’s Equal Pay Law and Oregon’s Pay Equity Act – New Regulations Issued | Employment Advisor | Davis Wright Tremaine (dwt.com)from Davis Wright Tremaine and BOLI’s pay equity technical assistance page for more information.
Payroll taxes are the state and federal taxes that you, as an employer, are required to withhold and/or to pay on behalf of your employees. All employers with paid employees working in Oregon must register for a business identification number (BIN) to report and pay Oregon payroll taxes. Register online for a BIN using the Oregon Business Registry or by submitting a Combined Employer's Registration form. You must register before issuing any paychecks.
Oregon withholding taxes are due the same time as your federal taxes. Unemployment, transit taxes, and the Workers' Benefit Fund assessment payments are due the last day of the month following the end of the calendar quarter. Oregon Quarterly reports are due: 1st quarter, due Apr. 30; 2nd quarter, due Jul. 31; 3rd quarter, due Oct. 31; 4th quarter, due Jan. 31.
If you pay your federal taxes electronically, you must also pay our Oregon combined payroll taxes electronically. You can choose to pay Oregon tax electronically even if you don't meet the federal requirements. Visit the payments webpage for electronic options. The Oregon Employment Department's website and in the Employer Tax Information Program Handbook contain more information.
The two main federal payroll taxes on wages are known as Federal Insurance Contributions Act (FICA) taxes: Social Security and Medicare. Employees and employers both have to pay FICA taxes. Employees usually have them withheld from their paychecks, while employers pay them in addition to any other taxes they owe. There is a third federal payroll tax, which is the Federal Unemployment Tax Act (FUTA) tax. Those self employed will need to pay the Self Employment Contributions Act (SECA) tax.
Oregon employees are engaged in "at-will" employment. This means that generally, unless they have a contract or agreement that says otherwise, Oregon employers may discharge an employee at any time and for any reason, or for no reason at all. Most employers choose to reserve the right to employ at will with specific language in personnel policies. To maintain at-will status, it´s wise for employers to indicate that policies are merely guidelines and are not to be construed as a contract. Declaring and retaining at-will status provides an employer greater flexibility in the workplace, but being an at-will employer is not a cure-all or a substitute for establishing clear policies, keeping thorough documentation, and applying consistent disciplinary practices.
Since organizations that employ individuals at-will may still be called upon to defend various types of employment claims in court or before state or federal agencies, prudent at-will employers will maintain records showing a legitimate business reason for any important personnel action.
Strict requirements apply to the payment of final wages to departing employees.
- If an employee quits with less than 48 hours’ notice (not including weekends and holidays) their paycheck and any wages owed are due within five business days or on the next regular payday, whichever comes first.
- If an employee quits with at least 48 hours’ notice, their final check is due on their last day of employment.
- If an employee is terminated (whether called “let go” or “fired” or otherwise), their final paycheck is due by the end of the next business day.
- If an employer and worker mutually agree to terminate the relationship, the check is due by the end of the following business day.
- There are specific rules about manner of payment (paper check, direct deposit, delivery and otherwise), which employers should understand.
Employers that fail to timely pay final wages when they are due risk substantial penalties and costs. First, the statutory penalty wage is calculated as eight hours at the employee’s regular rate of pay, for each day that final wages go unpaid up to 30 days. With certain exceptions, employers may limit this liability to 100% of unpaid wages by paying final wages within 12 days of written notice from the employee that wages remain due. In addition, an employee who hires an attorney may recover their attorney fees and costs from the employer.
Oregon law also provides a $1,000 civil penalty for willful failure to pay wages at termination as well as costs, interest and attorney fees.
Under Oregon law, when employment of seasonal farmworkers terminates, wages are due immediately. However, if a seasonal farmworker quits without giving at least 48 hours notice, wages are due within 48 hours or at the next scheduled payday, whichever is earlier.
The Fair Labor Standards Act (FLSA) defines employment very broadly, i.e., "to suffer or permit to work."
For-profit employers generally may not use unpaid volunteers to perform work even where the individual donates his or her services without expecting compensation.
- The law assumes someone performing work will be paid.
- A written waiver is not an exemption of the law.
- Enforcement action is usually complaint driven, but the Bureau of Labor and Industries could initiate.
- Do not open your doors to the general public to "volunteer" during busy periods.
Because the law may deem a volunteer to actually be an employee, risks that arise when allowing unpaid volunteers or trainees at crush include:
- Workers' compensation issues (insurance violations or claims from an injured individual) or possible liability if that person injures someone else.
- Wage and hour requirements: claims for wages, overtime, meal and rest breaks.
- Claims of discrimination, retaliation, harassment or violation of other employment laws.
- Agency scrutiny of your business, including providing wage records and spending time responding to investigators when business is at its busiest.
Consult this DOL Fair Labor Standards Act Advisor for more information.
The rules that apply to the employment of minors in agriculture depend on the age of the young worker and the kind of job to be performed. The Secretary of Labor has declared that certain jobs in agriculture are too hazardous for anyone under 16 to perform.
Minors age 16 and above may work at any time in jobs not declared hazardous by the U.S. Secretary of Labor or state law, while younger minors may be limited in hours and/or require written parental consent or government approval, or meet other requirements.
More rules on employing minors can be read in this factsheet by the U.S. Department of Labor. Also consult the Bureau of Labor and Industry's technical assistance page on employment of minors for Oregon-specific requirements.
Oregon law has changed significantly in the past few years under the Oregon Workplace Fairness Act (OWFA). That law requires every Oregon employer to have a compliant anti-harassment and anti-discrimination policy, and to distribute and make available at specific times, including upon hire. BOLI publishes a template policies in English and Spanish here.
The OWFA also regulates other conduct. For example, it prohibits employers from entering agreements with employees that have the purpose or effect of limiting discussion of discrimination or harassment including sexual assault—these provisions may previously have been included in an employment agreement, confidentiality/nondisclosure agreement, or other document, but are no longer lawful. The OWFA also regulates whether certain confidentiality, nondisparagement, and no-rehire provisions may be included in a severance, separation or settlement agreement. Including a provision that violates the OWFA in an agreement is an unlawful employment practice, for which employees or former employees may sue for damages (economic and emotional distress), punitive damages, and attorney fees and costs.
WAGE & HOUR
The FLSA is the federal law which sets minimum wage, overtime, record-keeping and youth employment standards for most employment, including agricultural employment. Consult these U.S. Department of Labor resources for more information:
- Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act (FLSA)
- Fact Sheet #40: Overview of Youth Employment (Child Labor) Provisions of the Fair Labor Standards Act (FLSA) for Agricultural Occupations
Note that Oregon law provides overlapping rules, some of which are consistent and some of which are stricter. For more information, see BOLI’s website.
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record-keeping. The MSPA also requires farm labor contractors to register with the U.S. Department of Labor (DOL). Consult these resources for more information:
- Fact Sheet #49: The Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
- Form WH-516 (Worker Terms and Conditions Form)
- Eligible (MSPA registered) farm labor contractors
Under MSPA, agricultural employers and farm labor contractors must keep complete and accurate payroll records for all workers; in addition, farm labor contractors must give any other farm labor contractor, agricultural employer, or agricultural association to whom they supply workers, copies of payroll records for each worker supplied to that particular contractor, employer, or association.
For information on record-keeping requirements, visit this link
Oregon minimum wage is higher than the federal minimum wage, and Oregon employers must comply with state law. Beginning July 1, 2023, the minimum wage rate is indexed to inflation based on the Consumer Price Index (CPI), a figure published by the U.S. Bureau of Labor Statistics. The state has provided a color-coded map and a summary to illustrate the region-by-region rate, but note that locations in Clackamas, Multnomah, and Washington counties that are outside the urban growth boundary are “standard” rate, not “urban” rate. Read more on this in our DWT minimum wage advisory or on the BOLI FAQ page.
In 2022 the Oregon Legislature enacted HB 4002 putting into placed overtime pay for agricultural workers. For calendar years 2023 and 2024, overtime must be paid to agricultural employees who worked more than 55 hours in a workweek. For calendar years 2025 and 2026, employers are required pay overtime for more than 48 hours per workweek. Starting January 1, 2027, overtime is paid to employees who work more than 40 hours per workweek. Overtime is 1.5 times the rate of regular pay. A "workweek" is a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or seven consecutive 24-hour periods. When piece rate is paid, wage rates are determined by dividing total piece-rate wages by the total number of hours worked in each workweek.
HB 4002 allows employers to claim a tax credit equal to a percentage of the overtime pay. More information can be found on the Dept. of Revenue site.
When an employer classifies an employee as “exempt” from minimum wage and/or overtime, it is up to the employer to establish that the employee meets the criteria for exempt status. There are three categories of "white collar" employees that may qualify for exempt status: executives (supervisors), administrative managers and professional employees, as well as other possible exemptions. Both federal and state regulations require that employees must satisfy all of the duties tests and also be paid a genuine salary to be classified as exempt employees. For information on what satisfies the exempt criteria follow this link.
Effective Jan. 1, 2019, Oregon’s Equal Pay Law expands equal pay protections of ORS 652.220 beyond gender, and makes it an unlawful employment practice (1) to discriminate on the basis of a protected class in compensation; (2) to pay different compensation to any employee of a protected class for “work of comparable character” to others; (3) to screen job applicants based on current or past compensation; or (4) to determine compensation for a position based on current or past compensation of a prospective employee. The new EPL prohibits employers from asking about a prospective employee’s current or past compensation history, and also expands equal pay protections beyond gender to include race, color, religion, sexual orientation, national origin, marital status, veteran status, disability or age. The law defines “compensation” broadly to include wages, salary, bonuses, benefits, fringe benefits, and equity-based compensation.
The Oregon Bureau of Labor and Industries will enforce this law beginning on Jan. 1, 2019. Individuals may bring private civil actions against employers beginning Jan. 1, 2024. In a civil action, a court may award compensatory and punitive damages, unless the employer can demonstrate that it completed an equal-pay analysis within three years before the date that the employee filed the action.
All employers with at least 10 employees in Oregon (6 if the employer has operations in Portland) must provide up to 40 hours of paid protected sick time per year. Employers that employ fewer than 10 employees (6 if the employer has operations in Portland) must provide up to 40 hours of unpaid protected sick time per year. Employees generally accrue 1 hour of sick time for every 30 hours worked or 1-1/3 hours for every 40 hours worked (unless choosing to “frontload” hours).
“Sick” leave is broader than the title implies. For example, it includes leave for bereavement, domestic violence, parental care, preventative health care for the employee and defined family members, and public health emergencies including closure of schools or daycare for qualifying public health events. Newer regulations also govern use of sick leave based on evacuation zones, air quality index, and heat index. If an employee is eligible and requests time off for a qualifying event, the employer must provide time off in one-hour increments, cannot require the employee to find a replacement worker to cover the shift, and cannot count the absence against an attendance record. The law further explains rules about notice, doctor notes or verification of leave, and other rules.
More information can be found on the BOLI - Paid Sick Leave page.
The Federal Family Medical Leave Act (FMLA) applies to employers with 50 or more employees in the current or previous year. To be eligible for FMLA leave, employees must have worked for the employer for at least 12 months (not necessarily consecutive), and have worked at least 1,250 hours during the 12-month period immediately preceding the leave. Also, the employer must have 50 employees within a 75-mile radius of the employee’s worksite for the employee to be FMLA eligible.
Oregon FMLA (OFLA) applies to employers with 25 or more employees in the current or previous year. To qualify for leave benefits, employees must have worked at least 180 calendar days and an average of 25 hours a week (except for parental leave, when no weekly average is required). Please refer to the BOLI FAQ page on OFLA for more information.
If a business is covered by both OFLA and FMLA, then as with all laws pertaining to employment, the employer must follow the law most beneficial to the employee. You can order your required poster from this site.
If an employee with a health condition exhausts, or is not eligible for, FMLA/OFLA leave, the employer must still consider requests for leave to determine if it constitutes a reasonable accommodation for a disability. See ADA section below.
In 2019, the Oregon legislature passed HB 2005, which created an insurance program to provide employees with a portion of wages while on family, medical, or safety-related leave. Funding for the insurance comes from both employers and employees. The Oregon Employment Department was charged with standing up a division within the agency called Paid Leave Oregon to administer the program. Employers began submitting payroll contributions to fund the program beginning Jan. 1, 2023 (unless using an approved equivalent plan). Employees were able to begin applying for benefits on Sept. 3, 2023.
Summary of benefit: Up to 12 weeks of paid leave for medical, family or safe leave and leave can be taken by the week or a single day at a time (and in some cases, up to 2 more weeks due to limitations caused by pregnancy, child birth, or other related medical condition, including lactation). Administration of the program is handled by Paid Leave Oregon and employees apply directly with the agency for leave.
- All Oregon employers (regardless of size) must allow employees to take 12 weeks of paid leave for qualifying medical, family or safe leave
- Employees and employers share in making contributions in the form of a payroll tax that are placed into a state trust
- The total contribution that will need to be collected and deposited into Paid Leave Oregon by an employer is calculated by the Oregon Employment Department by November 15 of the year prior. The contribution is based on state average weekly wage, but will not exceed 1% of gross wages paid:
- The benefit to an employee is based on average weekly wages of the preceding year (as defined by that law)
- If you are an employer with 25 or more employees, you must contribute to Paid Leave Oregon (40% of the share and employees pay 60% of the share)
- If you have fewer than 25 employees, you are not required to make contributions, but must still collect the employee’s 60% portion through payroll and you must submit the employee contribution.
Equivalent Plan: Employers can apply for approval to use their own equivalent plan to provide benefits that are equal to or greater than those provided by the state paid leave program. Employers with an approved equivalent plan still report wages through payroll reports, but they are not required to pay contributions. To apply for approval of an Equivalent Plan, go here. For more information about Equivalent Plan requirements, see the Paid Leave Oregon’s Equivalent Plan Guidebook.
FMLA/OFLA: The PFMLI program does not replace or take away from eligible employees' rights under the federal Family and Medical Leave Act ("FMLA"), the Oregon Family Leave Act ("OFLA"), or Oregon's paid sick time law; employers must ensure that they are meeting their obligations under each.
Employers of all sizes are prohibited from discriminating against an individual because of disability or because of disability-related conduct. In addition, employers with six or more employees must comply with Oregon accommodation provisions (the federal ADA applies to employees with 15 or more employees but again, employers must comply with the law most generous to employees). Common issues including completing the “interactive process” to identify potential “reasonable accommodations” for limitations imposed by a disability. This specifically includes requests for a leave of absence, which is one potential form of accommodation. Oregon’s Bureau of Labor and Industries (BOLI) offers technical assistance on disability rights. Another resource document from Davis Wright Tremaine is available here: Beyond FMLA
Oregon requires employers to carry workers’ compensation insurance for their employees (with some narrow exceptions). The Workers’ Compensation Division provides several tools to help employers with their workers’ compensation coverage and enable the public to find information on coverage and claims, one being the Employer Overview. Oregon has a voluntary competitive market with many companies approved to sell workers’ compensation insurance.
Some ways to buy coverage include:
- Contact an insurance agent. You may first want to contact the agent who handles your business, home owner, or automobile insurance. Your agent may be able to place your workers’ compensation coverage with the same company or write a business package that includes workers’ compensation coverage.
- Call the Small Business Ombudsman.
- Use the Oregon Division of Financial Regulation to find more information on workers compensation, tools for employers and employees.
All employers in Oregon that are required to provide workers' compensation coverage must display a Notice of Compliance poster in a central gathering area, such as a breakroom. Employers should automatically receive a Notice of Compliance poster when they first get coverage or change coverage providers. Posters can also be ordered here.
Oregon law requires employers to provide meal and rest periods to all “non-exempt” employees. A covered employee whose work period is at least six hours long is entitled to receive at least a 30-minute unpaid meal period. Once the work period becomes 14 hours or longer, the employee is entitled to a second 30-minute meal period. Timing matters: if a work period is at least six hours but less than seven hours, the meal period is to be taken during the third or fourth hour worked, but if the work period is more than seven hours and less than 14 hours, then the meal period is to be taken during the fourth or fifth hours worked. In any case, the meal break must be a full, uninterrupted 30 minutes completely free from duty. Employers are required to ensure their employees take this break, which may include training or discipline for employees refusing to take timely breaks.
As to rest periods, a covered employee whose work period is at least two hours and one minute long must receive one paid ten-minute rest period. If the work period is at least six hours and one minute long, that employee is entitled to two paid ten-minute rest breaks; additional breaks become required as the work period becomes longer. The rest periods should be taken, to the extent feasible, approximately in the middle of each four-hour work segment “or major part thereof” (which means more than two hour segments). Rest periods may not be added to the meal period, or taken at the beginning or end of the shift in order to reduce the overall work period length.
The rules are slightly different for minors (employees under 18). All minors receive rest breaks of 15 minutes instead of 10 minutes, and meal periods may also differ by age.
Additional rest breaks are required to be provided by employers to express milk for a child 18 months of age or younger. Employers with ten or fewer employees who can establish a qualifying “undue hardship” may be excused from providing such breaks, but employers should check with legal counsel for determining they can demonstrate undue hardship. Employers are also required to make a reasonable effort to provide a private location (not a public restroom or toilet stall) where the employee can express milk, and meet other requirements. For more information, see: BOLI : Breaks to express breast milk : For Workers : State of Oregon.
The law allows for exceptions in unusual, unanticipated circumstances beyond the employer´s control, such as an unforeseeable equipment failure or an act of nature. In such rare case, the employer must pay the employee for the entire 30 minute period. Employers who believe they qualify for an undue hardship to providing periods may review the information and notice requirements at this link: BOLI : Meals and breaks : For Workers : State of Oregon.
For more information on Meal and Rest Breaks in agriculture please visit the BOLI FAQ.
Any vineyard who works with migrant or seasonal employees and/or Farm Labor Contractor should review all requirements and agreements related to meal and rest periods.
Oregon law provides BOLI with the authority to assess civil penalties against employers of up to $1,000 for each violation of the meal and rest period provisions of the law. Employees may also file civil actions seeking wages, penalties, and attorney fees.
BOLI operates a technical assistance service for employers 8am-5pm Monday-Friday free of charge. It is a confidential number and the information is not shared with other divisions at BOLI: 971-361-8400 or contact BOLI via email: email@example.com.
OregonSaves is the state of Oregon’s retirement savings program that provides Oregonians with an easy and automatic way to save for the future. OregonSaves is available to Oregon workers whose employers do not offer a workplace retirement plan, self-employed individuals, and others who want an easy way to save. Savers contribute to a convenient and portable Individual Retirement Account (IRA) that moves right along with them as they change jobs. Employers that do not offer their own plan must register for OregonSaves and ensure access to this beneficial program for their employees.
A rule addressing protections against the dangers of high heat in the workplace took effect June 15, 2022. Our legal counsel DWT developed this resource for OWA members. Oregon OSHA also developed the following resources to help employers understand and comply with the rule:
- Heat illness prevention online course: Designed to satisfy certain training requirements found in the heat rule, the course addresses such topics as common signs and symptoms of heat-related illnesses, risk factors, how the heat index is measured, and access to shade, drinking water, and other measures.
- Fact sheet about the key requirements of the heat rule: This five-page document highlights the rule’s key overall requirements, offering a reader-friendly summary of what employers and workers need to know about the rule.
- Fact sheet about the heat rule’s rest break schedule options for preventing heat illness: This two-page document provides a quick, easy-to-use overview of the part of the heat rule that addresses rest break schedule options A, B, and C.
A rule addressing protections against the dangers of wildfire smoke in the workplace took effect July 1, 2022. Oregon OSHA has developed the following resources to help employers understand and comply with the rule.
- Wildfire Smoke online course: This online course is designed to satisfy 5 of the 10 training requirements found in Oregon OSHA’s rules to address exposure to wildfire smoke.
- Fact sheet about the key requirements of the smoke rule: This fact sheet describes the key requirements of Oregon OSHA’s permanent rules for protection from wildfire smoke including steps required at at various Air Quality Index (AQI) levels.
- Air Quality Index: The Oregon Department of Environmental Quality developed a fact sheet about using the AQI to determine air quality around the state, using information from DEQ air quality monitoring stations.
- Available in English
“Joint employment” is the situation where two or more companies “employ” a worker for the same job at the same time. Agricultural workplaces, like vineyards and situations where laborers handle equipment on someone else's premises, may draw increased scrutiny from government agencies. Jointly employed workers may come through a variety of staffing models, including farm labor contractors, staffing agencies, vineyard management companies, and leased worker and temporary worker providers. In other cases, joint employees are borrowed from a neighboring vineyard or work for two separate, but related business entities during the same workweek.
Three big takeaways for vineyards and wineries using contracted labor: (1) a government agency, court, or plaintiff’s attorney may believe you are a “joint employer” even if you do not agree; (2) whether you are legally considered a joint employer depends on many factors, including conduct in the field and the parties’ overall relationship; and (3) understanding and taking steps to reduce likelihood of joint employment is critical for those seeking to avoid joint employment finding.
The following DWT materials summarize some joint employment considerations:
- DWT Avoiding Contractual Missteps: Wine and Workers in a World of Wine and Workers
- DWT U.S. Department of Labor Issues Joint Employer Guidance
Resources from the U.S. Department of Labor:
- Eligible (MSPA registered) farm labor contractors
- Fact Sheet 35: Joint Employment Under the Fair Labor Standards Act and Migrant and Seasonal Worker Protection Act
Resource from the State of Oregon:
To find information on what to expect from a Department of Labor investigation, please visit "Enforcement."
The US Department of Labor (DOL) has authority to investigate workplaces to ensure compliance with laws covering wage and hour rules, migrant and seasonal workers, and other topics. A DOL investigation may be the result of a complaint. In addition, the agency targets some businesses or industries for investigation. Each circumstance is different; if a DOL inspector contacts your workplace, we recommend promptly consulting an attorney to get advice on your specific situation. Below is a link from DWT with basic information on what to expect generally in addition to DOL's Fact Sheet #44.
Please note that in areas where both state and federal law address a topic, the most generous requirement applies. Examples include higher minimum wage and stricter payroll deduction rules under Oregon law. In other cases, laws may apply only at the federal or state levels (i.e. immigration under federal law and meal/rest breaks or paid sick leave under state law). Therefore, in a Bureau of Labor and Industries (BOLI) investigation, inspectors may be interested in different or additional items than the DOL. Consult the BOLI section below for more information.
BOLI encourages and enforces compliance with state wages and hour laws and terms and conditions of employment, including alleged violations of the minimum wage, overtime, family leave and other related laws. As compared to federal laws, Oregon has a higher minimum wage, stricter payroll deduction rules, stricter final paycheck rules, meal/rest break requirements, and more. Details can be found on the Reference Toolbox Wage and Hour page and the Worker Accommodation page. BOLI investigations are primarily complaint-driven.
Along with the U.S. Equal Opportunity Employment Commission, BOLI protect the rights of workers to equal, non-discriminatory treatment through the enforcement of anti-discrimination laws. Employees may choose or be required to file a charge with the EEOC and/or BOLI before pursuing certain claims in court. Discrimination and harassment claims at the state level can generally be filed in court without filing an administrative complaint. Many employees choose to file state claims through BOLI since there is no charge to the employee. If the employee files a federal claim as well as a state claim, BOLI generally takes the lead under the agencies’ work-sharing agreement. The EEOC generally will not take any independent action for at least the first 60 days after such a complaint is filed. In addition, the agencies can embark on their own investigations without an employee filing a complaint. It is also possible for an agency to pursue a claim against an employer even when the individual employee is unable to do so.
Changes in federal immigration policy enforcement have led many in our wine community to ask what steps they can take to protect their businesses and communicate effectively with their workforces. To cope with new enforcement policies, here are more specific details on resources wine business owners and their vineyard management companies may find helpful:
- To prepare for a possible worksite visit from DHS agencies, particularly Immigration and Customs Enforcement (ICE), winery and vineyard owners are strongly encouraged to contact a lawyer for guidance in auditing their federal forms related to immigrant workers, most importantly the Form I-9. Davis Wright Tremaine notes that the three most likely forms of immigration enforcement actions employers may encounter are worksite raids, work visa program compliance visits, and Form I-9 investigations.
- Because of the expansion of “joint employer” concepts into numerous areas of employment law, growers who rely on vineyard management companies or farm labor contractors should reaffirm that the vendors they work with are following proper Form I-9 compliance practices and not violating the law by hiring or continuing to employ individuals the vendor knows to be unauthorized to work in the U.S.
- Wine business owners can distribute informational resources to workers now, allowing them to prepare themselves for possible questioning from law enforcement. Some materials that we have identified include:
- This bilingual Red Card;
- English and Spanish language “Know Your Rights” fact sheets that answer questions related to a possible encounter with immigration enforcement officers;
- English and Spanish language fact sheets from the Immigrant Defense Project;
- Additional information from the American Immigration Lawyers Association (AILA), which will assist workers to know their rights at home, in public and at the workplace;
- A database of immigration attorneys searchable by location provided by the AILA.
- Oregon Farm Bureau Primer
- I-9 Employer Handbook
The Oregon Occupational Safety and Health Administration (OSHA) operates under a state-plan agreement with federal OSHA. Oregon OSHA investigates workplace accidents; conducts scheduled inspections based on criteria that reflect, among other things, the employer’s history of workplace injuries and illnesses, number of employees, and the employer’s industry; and conducts inspections based upon complaints by employees of unsafe working conditions and referrals from other agencies.
Oregon OSHA offers a free and confidential consultation service that can help you reduce accidents and related costs and help you develop a comprehensive program to manage safety and health. Oregon OSHA consultants will not issue citations or propose penalties for violations of OSHA standards.
The Oregon Employment Department processes workers’ claims for unemployment compensation. The agency contacts the worker’s last employer to verify why the employee was terminated, and gathers information about all employers for whom the worker worked during his or her “base year.” In addition, the Investigations Unit of the Employment Department investigates any allegations of fraud in unemployment insurance claims. In some instances, an investigation is the result of an audit; in other instances, it is based upon a tip from an employee, employer, or other source. An audit may result when an individual the company regards as an independent contractor is terminated and files for unemployment compensation.
The Employment Department also handles Paid Leave Oregon.