Payment Protection
for Produce Sellers
in Canada
Proposes an
Overtime Rule
Federal Judge
Blocks EPA’s
Water Rule

A federal judge in North Dakota blocked the Obama administration’s water rule hours before it was due to take effect.

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 is decided.

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.

NLRB Sets
Controversial Joint
Employer Ruling

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
bee proposal

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