the Fall 2015
TAMPA, FL 33634
OVERTIME continued on page 5
for Produce Sellers
A federal judge in North Dakota blocked the Obama
administration’s water rule hours before it was due to
Judge Ralph Erickson of the District Court for the
District of North Dakota found that the 13 states suing
to block the rule met the conditions necessary for a
preliminary injunction, including that they would likely
be harmed if courts didn’t act and that they are likely to
succeed when their underlying lawsuit against the rule
The decision is a major roadblock for the Environmental
Protection Agency (EPA) and the Army Corps of Engineers, who were planning to begin enforcing the Waters
of the United States rule, expanding federal jurisdiction
over small waterways like streams and wetlands. The
Obama administration says it will largely enforce the
regulation as planned, arguing that the decision only applies to the 13 states that requested the injunction.
The 13 states that filed for the injunction include Alaska,
Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota,
South Dakota, and Wyoming.
“Once the rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject
to the scope of the Clean Water Act,” Judge Erickson
wrote in his order.
“While the exact amount of land that would be subject
to the increase is hotly disputed, the agencies admit to
an increase in control over those traditional state-reg-ulated waters of between 2.84 to 4.65 percent. Immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters,” he
continued, calling the Obama administration’s interpretation of its jurisdiction “exceptionally expansive.”
Judge Erickson decided that the regulation is not
“likely” to stand up to full court consideration.
In a statement shortly after the ruling, the EPA was defiant and said that the injunction only applies in the thirteen
states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New
Mexico, North Dakota, South Dakota and Wyoming.
Following the EPA statement, 29 states with farmers and
others, are also suing.
The U.S. Department of Labor published a notice on
the Obama administration’s pending regulations to
raise the salary threshold at which eligible workers
qualify for overtime pay.
Many business owners around the country are concerned that some of their exempt employees will now
be eligible for overtime under the new salary threshold or will have to be switched to hourly pay. Any of
your employees that currently qualify as exempt from
overtime eligibility because their annual salary is
greater than $23,660, and because their primary duties
fall under the executive, administrative and professional (EAP) exemption included in the original Fair
Labor Standards Act of 1938 may be affected.
The National Labor Relations Board (NLRB) announced a broad new standard for determining
whether two businesses are “joint employers” for
purposes of collective bargaining. Under this new
standard, joint employment now exists even where
one company only has the right to exert indirect or
potential control over the terms and conditions of
another company’s employees.
Browning-Ferris Industries, or BFI, owns a recycling
facility and employs unionized workers. It contracts
with a non-union staffing company to provide additional workers at its recycling plant. Although the
contract between the two separate businesses provides
that the staffing company is the sole employer of
the temporary workers, BFI maintained the right to
control several terms and conditions of employment.
While BFI contended that it did not exercise this
right on a regular basis or in any meaningful way, this
became irrelevant for the Board’s purposes.
For the past 30 years, the NLRB has held that two
companies would only be considered joint employers
USDA blasts EPA
The EPA’s proposal to protect bees from pesticide
exposure in farm fields is unrealistically restrictive,
wrote the acting head of the Agriculture Department’s
pesticides policy office.
The proposal, released in May, would prohibit 76
pesticide ingredients from being sprayed when honeybee hives are brought to farms under pollination
contracts. Though the office is generally supportive of
the agency’s efforts to protect pollinators, the blanket
ban on foliar sprays could be a significant economic
burden to growers, wrote Sheryl Kunickis, director
of USDA’s Office of Pest Management Policy, which
often works with EPA on pesticide issues.
“USDA has concerns with proposed prohibitions and
encourages a thorough evaluation of adverse effects
reports associated with contracted pollination services
to best understand where protection improvements
can be made, rather than in enacting a complete pro-
hibition in crop protection materials based on LD 50
toxicity ratings for individual bees without consider-
ation of mitigating best management practices. USDA
also encourages the Agency to consider the negative
economic impacts this proposal may have on numer-
The NDP Party Leader Thomas Mulcair introduced
payment protection for produce farmers and sellers in
Canada similar to the trust protection offered by the
Perishable Agricultural Commodities Act (PACA) in
the United States.
The lack of payment protection in Canada is the number one issue for fresh fruit and vegetable growers and
sellers across Canada. The industry has long advocated
for a PACA-like trust in Canada. The highly perishable
nature of fresh produce makes the industry uniquely
vulnerable during bankruptcies, risking financial ruin
for those affected. The situation became more urgent
when the U.S. revoked Canada’s preferential access to
PACA protections on October 1, 2014, making exporting a much riskier enterprise for Canadian companies,
who currently send 40% of all produce grown in
Canada to the U.S.
Produce sellers in the U.S. have PACA, which ensures
that growers and sellers are paid should a buyer go
bankrupt or simply refuse to pay for the product they
receive. The U.S. revoked Canada’s special access
due to its lack of similar trust protection and the lack
of progress in fulfilling the Regulatory Cooperation
CANADA continued on page 28
By Timothy Cama - 8/27/15 ASAE Association Policy Update – July 2015