Eggplant cooling and packing on a farm: Wage Order 14 vs. 13

STATE OF CALIFORNIA PETE WILSON, Governor
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
LEGAL SECTION
45 Fremont Street, Suite 3220
San Francisco, CA 94105
(415) 975-2060

MILES E. LOCKER, Chief Counsel

September 14, 1998

Manuel Cunha, Jr., President
Nisei Farmers League
5108 Clinton Way, Suite 115
Fresno, CA 93727

RE: Khouri Farms

Dear Mr. Cunha:

This is in response to your letter of August 5, 1998, to Labor Commissioner Jose Millan,
requesting an opinion as to whether Wage Order 13-80 or 14-80 applies with respect to the
cooling, packaging, labeling and sizing or eggplant at a facility located on the premises of the
grower's farm. The facts set forth in your letter state that the eggplant is picked in the field,
where it is placed into large tubs, which are transported to a central location on the farm. The
eggplant is then placed in cold water to lower the temperature for the purpose of preventing
further ripening. Due to the nature of the specific crop, which cannot be picked before it is
ripe, the arrest of the ripening must occur virtually simultaneous with picking. Your letter
further states that once the eggplant has been slightly cooled, it is wrapped with moistened
paper, placed into boxes, and then transported to cold storage. Your letter does not specify
whether the cold storage facilities are also located on the premises; whether post-storage
processing (labeling and sizing) would be subject to Wage Order 13 or 8 would depend on the
location. You request an opinion as to whether the water immersion, wrapping and repacking
constitute a continuation of the harvesting process prior to "first processing" regulated by
Wage Order 14, as opposed to

"any operation performed in a permanently fixed structure or establishment on the farm, or on
a moving packing plant on the farm, for the purpose of preparing agricultural, horticultural,
egg, poultry, meat, seafood, rabbit or dairy products for market when such operations are done
on the premises owned or operated by the same employer who produce the products referred
to herein..." Wage Order 13-80 Section 2(C). California Code of Regulations, Title 8, Section
1130, Paragraph 2(C).

As you know, the purpose of Wage Order 13-80 is to cover employees engaged in preparing
agricultural products for market, on the farm, as the title indicates. The determining factor is
not, however, whether the products are immediately thereafter available for purchase, either
retail or wholesale. Rather the distinction is whether the preliminary post-harvest acts are
contiguous thereto, such as field sorting and packing. In the instant fact situation as described
by your letter, the water immersion takes place contemporaneous with the field packing of the
vegetables. Moreover, the arrest of continued ripening is akin to removing the vegetables from
the vines to discontinue growth. Thus the water immersion and wrapping would be covered by
Wage Order 14.

Clearly, the post-cooling labeling, sizing and packing, if performed on the farm are subject to
Wage Order 13. If these activities are performed off the premises, Wage Order 8 would apply.
See Informational Guidelines on Interpretation of the IWC Orders, which states that final
grading and packing for shipment, are covered by Order 13.

Since there are many different fact situations in this industry, many of which are specific not
only to the type of crop but also to the operations of the individual farm, each such situation
must be analyzed on its own facts, consistent with the underlying principles set forth
hereinabove.

I hope this responds to your question. If you have any further questions, please do not
hesitate to contact me.

Very truly yours,

Miles E. Locker
Chief Counsel

cc: Jose Millan
Tom Grogan
Greg Rupp
Nance Steffen