Organic Broadcaster

Understand employment law to get farm help you need

By Kelli Boylen

For farms to grow, farmers often need to hire additional labor, turning farmers into employers. As employers, farmers must know and follow employment laws.

“There are a lot of legalities,” said Ariel Pressman, who recently farmed at Seed to Seed Farm, a 13-acre certified organic vegetable farm located near Balsam Lake, Wis. If you follow the laws, you can avoid enormous risks, he added.

“Keep people happy and keep them safe,” said Rachel Armstrong, founder and head of Farm Commons, a nonprofit legal education organization dedicated to empowering farmers with business law. Armstrong grew up on a dairy farm and is now an attorney specializing in ag business.

Armstrong and Pressman shared their insights about employment law for farmers at the 2019 MOSES Organic Farming Conference.

Seeking Applicants
Pressman encouraged farmers to set a reasonable budget and spend money advertising open positions. “A good job description is meaningless unless it’s seen by the right applicants.”

He recommended placing job postings on multiple venues, and tracking which venues bring you the most applicants so you know where to best spend your money in the future.

When hiring employees, it is against federal law discriminate on the basis of:
• Race, color, or national origin
• Religion
• Sex, disability
• Age or genetic information

State law may protect against discrimination on additional grounds such as sexual orientation.

Armstrong discouraged checking out potential employees on social media. The easiest way to avoid being accused of discrimination is not having information about someone’s race, religion, or other protected status, she explained.

Pressman said that while it is not ok to ask someone their age, you can ask if the person can lift a certain amount of weight if the job requires lifting. It is not ok to ask if someone has a disability, but you can ask if they are capable of working up to 10 hours a day in all types of weather. You cannot reject someone because they do not have a car or a driver’s license to get to and from work, but you can require they have reliable transportation. It is not ok to inquire if someone has children, but it is ok to explain your late and absentee policy and ask if that would be an issue for an applicant.

When in doubt remember that any requirements of an applicant must only relate to their ability to do the job, they both cautioned.

“In general, it is only ok to ask things that are specific to the job,” Pressman said. It is acceptable to ask someone you hire to obtain a doctor’s ok that he or she can physically perform the job, but only if you make that a requirement for all new hires.

Make a list of questions to ask all candidates, and avoid “trick” questions, he said. Ask situational questions in an interview; instead of asking how someone deals with stress, ask the applicant to tell you about a time they felt stressful and how they dealt with that.

Onboarding
“The number one reason for quitting a job is that the job was not what the person expected,” Pressman said. A good first step to keep employees happy is writing a brief, to-the-point job description that details every aspect of the job. This should always include the specific wage, hours and seasonal commitment. He advised against saying “pay based on experience,” recommending instead to state what the base pay is and that wages may be higher based on skills.

He noted that within the first few weeks of employment many people decide how long they want to work there and how much effort they are going to put in.

“Remember communication is incredibly important,” he added. Be sure to check in with a new employee often and make sure to answer all of his or her questions.

“Recruitment is expensive, it is important that employees feel they are treated fairly,” Armstrong said.

Although an employee manual is not required legally, Armstrong and Pressman said the establishment of consistent, clear policies will make life easier for you and your employees. They did caution, however, to keep in mind that an employee manual should not accidentally create a contract, but it should instead be a good reference to make sure things are understood by the employee. Armstrong said a poorly written contract can cause issues so it is important to do it well.

A free sample employee manual is available on the Farm Common website at farmcommons.org/resources/sample-farm-employee-handbook.

Worker Classifications
Employers sometimes prefer to classify those working for them as an independent contractor because it is not required to pay workers compensation or take out taxes. In general, farm independent contractors set their own schedule and are hired for a project, are not permanent and aren’t performing core tasks. Farmers cannot direct the means or tasks the independent contractor uses to accomplish a broad objective, Armstrong said.

Armstrong used the example of hiring someone to keep a vegetable field weed-free. If the farmer directs how the work is done and when it will be done, that person likely should be classified as an employee. If a farmer hires someone to keep the field weed-free and says they don’t care when the person works or how the job gets done, the hired person supplies their own tools and offers that same service to others, then that person is likely an independent contractor.

If you are hiring someone as an independent contractor be sure they understand they are not covered by worker’s comp and that you are not taking taxes out of their payment.

If you misclassify someone, Armstrong explained, you can be responsible for back wages, back taxes, and penalties.

Legally, the definition of employing someone is to “permit” a person to work for your operation, so an intern has the same minimum wage, overtime, and salary rules in most cases. The only exceptions to this are when it is an educational environment designed for the student’s benefit; there must be no displacement of paid workers and no or little benefit for the employer.

The presenters noted that waivers or agreements with interns cannot override the law.

“If you have interns who are not paid, be very careful,” Pressman cautioned.

Another classification to be aware of is the H-2A Temporary Agricultural Worker program, the federal program that allows farmers to bring foreign nationals to the U.S. to fill temporary agricultural jobs.

It’s a great way to get qualified farm workers, Pressman said, but there is a lot of paperwork, and the government closely monitors the program to avoid exploitation of the migrant workers. Workers must be temporary (not year-round), and must be provided free housing, meals, workers comp, and at least the equivalent of minimum wage. Using this program may be too expensive for smaller operations, but may be a good option for larger farms that need a reliable option for field work and harvesting.

Minimum Wage
Many states do not require a minimum wage for farms, but this only applies to farm labor, not value-added, processing, or ag-tourism. That said, Armstrong added that paying a livable wage can help in the long run by retaining reliable, trained employees.

Salaries or per-piece payments are not a way to skirt minimum wage, she said. An hourly wage can go up or down based on salary or per-piece, but it must always be above minimum wage for each hour worked if the minimum wage is required.

Workers Compensation
Workers Compensation was originally set up to protect employers, Armstrong said. Generally, employees are prohibited from suing a farmer who is carrying workers compensation for the employee’s work-related injuries.

Compensation laws vary from state to state, so it is important to learn about the laws for your location. Some states require it for agricultural employment and some do not. Even if you aren’t legally required to have it you still need insurance for worker injuries.

Rates differ for different sized farms, Pressman said. Covering up to $100,000 worth of wages costs his farming operation about $5,000 annually. Workers Comp insurance can be purchased through many insurance companies.

It is possible to purchase a different type of insurance to cover employees, but Pressman said those types of policies typically result in the injured person having to sue the insurance company for payment. “I thought it ethically better to purchase workers’ comp,” he says.

Asking employees if they have their own health insurance is not a good option. Some private insurance companies will not cover injuries at work. Being injured on the job often can result in lawsuits; health insurance policies may not cover lost wages or permanent disability.

Resources
There are many free resources for agricultural employers online at www.farmcommons.org, including guides to managing risks of interns and volunteers, classifying your workers, knowing the basics of farm employment laws, and OHSA and migrant worker fact sheets.

 

Kelli Boylen is a freelance writer who lives on a homestead in Iowa.

 

 

From the March | April 2019 Issue

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