As we discussed a few months ago, inspections from the U.S. Department of Labor were expected to increase during this past ginning season, and it has certainly come to pass. On the Wage and Hour side, there has been a significant increase in the number of inspections in Texas, as well as in the Southeast.
From what we can tell, the emphasis of the Wage and Hour inspections has not changed significantly. They are looking at daily and weekly overtime calculations for H-2A and non-H-2A employees alike. It is important to be sure your payroll folks are very familiar with the overtime rules and how they work. The most common problems we see in this area deal with the proper payment of daily overtime during the 48-hour overtime weeks. If you are experiencing longer ginning seasons, it is important to keep track of how many 48-hour weeks you have used. The limit is 14 weeks each year.
We have also seen continuing problems with having the proper information on pay stubs. The Migrant and Seasonal Agricultural Worker Protection Act has specific requirements for the information that must be shown on each pay stub. The two items that seem to give gins the most problems are the employer address and Employer Identification Number. Some of the common payroll programs available to small businesses have a hard time displaying these two items on the paystub.
You can get them included, but it may take a few phone calls with the software help desk. It is important to understand that they are required. If your paystubs do not currently include this information, it would be a good idea to get this issue corrected before you see an inspector. You also need to be sure the last four digits of the employee Social Security number is on each pay stub. This is generally less of a problem for most payroll programs, but worth double checking on your payroll.
OSHA In-Person Inspections
We are seeing more in-person inspections by Occupational Safety and Health Administration this year, after a few years of mostly virtual inspections. As with Wage and Hour inspections, the subject of the inspections has not really changed.
Almost all our inspections are in response to an accident. Make sure you have all the proper safety policies in place, and that you train all your workers in these policies. Be sure to document every training session, and have each worker sign an attendance sheet for each training session. This gets harder to do as the ginning season drags out and as you have to replace workers in the middle of the season.
If you do get inspected, these types of documents are critical to your ability to show that each and every worker is properly trained. Your ginners association has a full set of policies and training materials available for their members. Be sure you are using these documents in your training efforts.
COVID Emergency Temporary Standard
COVID continues to be a major workplace issue. The CDC has released new recommendations that can be found at https://bit.ly/3GKE6t9. They have shortened the quarantine period to five days, and in some cases exposed workers do not have to quarantine. While the quarantine time has been shortened, they have also complicated the guidelines. They now have different recommendations depending on whether you are vaccinated, boosted or neither. If you have not checked these recommendations in a few months, it would be good to refamiliarize yourself with these guidelines.
As I write this, the OSHA COVID Emergency Temporary Standard is in place but being reviewed by the Supreme Court. The ETS currently affects employers with more than 100 workers, so most cotton gins will not be affected by the standard. If you do have over 100 workers, the standard is currently in place, but stay tuned for changes. If this rule goes forward, we believe implementation will be extremely difficult. The two biggest issues will be workers who do not want to be vaccinated and a likely shortage of testing materials for unvaccinated workers. In addition, the logistics of tracking and reporting will be a significant challenge.
Regardless of whether the Supreme Court issues a stay to the rule, we probably will be dealing with a proposed permanent OSHA standard for COVID soon. This work is already beginning, and the main thing we will be watching for is the final threshold for employees. If OSHA proposes lowering the employee threshold, this could be a major problem for small employers.
The Supreme Court ruling will probably have a significant effect on the final standard in addition to the ETS. The effect on the final standard will depend on the substance of the Supreme Court ruling. If, for example, the Supreme Court rules that OSHA has over-stepped its authority by regulating COVID in the workplace, that could be a major setback for the ETS and any final rule. If they merely rule that the stay must remain in place while the lower courts look at the ETS, then that will stop the ETS, but the effect on the final rule may be minimal.
As expected, the DOL continues to increase enforcement and develop additional new rules. As a ginners’ association, we are keeping a close eye on these and other rules as they make their way through the process. We will keep you all informed as things change.
J. Kelley Green, TCGA director of technical services, contributed this article. Contact him at kelley@tcga.org.
Cotton’s Calendar
Some listed events may be canceled or postponed due to COVID-19. Please verify the status with the individual organizations.
May 19: PCCA Board of Directors Meeting, Lubbock, Texas
June 3-7: Cotton Growers Warehouse Association Annual Convention, Sheraton Grand Hotel, Nashville, Tennessee
June 16: PCCA Board, Delegate Body & Marketing Pool Committee Meetings, Lubbock, Texas
June 18: North Carolina Cotton Growers Billy Carter Cotton Cup, The Links at Cotton Valley, Tarboro, North Carolina
June 23-26: Warehouse Association of America Annual Convention, The Greenbrier, White Sulphur Springs, West Virginia
July 14: Plains Cotton Growers Quarterly Board Meeting, FiberMax Center for Discovery, 1121 Canyon Lake Drive, Lubbock, Texas
July 21-24: Southern Southeastern Mid Year Board Meeting, Ritz Carlton, Amelia Island, Florida
Aug. 4-6: American Cotton Producers Meeting, Hyatt Regency, Newport Beach, California
Aug. 18: PCCA Board, Delegate Body & Marketing Pool Meetingss, Lubbock, Texas
Aug. 25-27: 2021 Mid-Year Board Meeting, Peabody Hotel, Memphis, Tennessee
Sept. 15: PCCA Board of Directors & Annual Membership Meetings, Lubbock, Texas
Oct. 13: Plains Cotton Growers Quarterly Board Meeting, FiberMax Center for Discover, 1121 Canyon Lake Drive, Lubbock, Texas
Oct. 20: PCCA Board, Delegate Body & Marketing Pool Committee Meetings, Lubbock, Texas
Nov. 17: PCCA Board of Directors Meeting, Lubbock, Texas
Dec. 15: PCCA Board, Delegate Body & Marketing Pool Committee Meetings, Lubbock, Texas