Tips for the Farmer Who’s Hiring

If you are adding to the payroll, don’t be caught unaware. Study up on these critical employment issues. This web-exclusive version includes links to resources for American and Canadian farmers.

By James M. Allen | Photos By Jamie Cole

When it comes to managing employment issues, most businesses have plenty of regulatory hoops to jump through. Farmers, however, have their own special maze of regulations to navigate.

While it’s not a complete review of each regulatory category, we offer the following employment checkup as a project—a primer of sorts—on the statutes that follow. We’ve also included a few online resources from which you can gather more information, which includes select Canadian regulations.

Please keep in mind, however, that your state or province may have its own specific laws and regulations that set additional standards. When in doubt, consult a human resources expert or legal counsel.

Dave Fussell

Dave Fussell

While compliance can involve bureaucratic obstacles, there are reasons for each of these regulations. Still, they can require employers to devote considerable time and other resources to their implementation. They can also cut both ways. Dave Fussell, owner of Duplin Winery in North Carolina, found this out the hard way.

“Several years ago, we had some folks who we caught stealing some stuff from us. Once we let those folks go, they brought up issues that weren’t true.”

The former employees brought discrimination claims, but eventually the winery prevailed. Fussell credits proper documentation that supported his action.

“I’m sure there are things that we don’t do right, but we have a very good team of people who do their very best. The folks working with us are just as important as our customers, because they’re the ones who have gotten us where we are today.”

Changes to Worker Protection Standard (WPS)

In 1992, the Environmental Protection Agency issued this regulation, which was meant to protect agricultural employees from a number of pesticide-related hazards. In February 2014, the EPA proposed major changes to the WPS, including increasing the frequency of mandatory training from once every five years to annually, expanding the posting requirement and prohibiting the use of pesticides by children under the age of 16, with an exception for family farms.

These changes could have a significant impact on farms of all sizes, particularly for growers of fruits and vegetables. The increase in training would “be much more costly to enforce than the EPA seems to think,” says Frank Gasperini, executive vice president of the National Council of Agricultural Employers (NCAE).

The new regulations if enacted, may go into effect as early as first quarter 2015, but according to EPA documents, compliance with certain provisions—including the additional pesticide safety training content, and pesticide safety information and new signs for posting—would not be required until two years after the publication date of the final rule.

For more information: http://www.epa.gov/pesticides/health/worker.htm

Seasonal, Immigrant and Guest Worker Issues

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Any employer who hires migrant or seasonal workers must meet certain minimum requirements when dealing with these employees, including, among other things, written disclosures and postings describing the terms and conditions of employment, and paying wages when due. If you provide housing or transportation, you must ensure that these meet federal and state health and safety standards. The MSPA also requires farm labor contractors to register with the U.S. Department of Labor (DOL).

For more information: http://www.dol.gov/whd/mspa/

Form I-9. Required for all employees to complete, Form I-9 verifies an employee’s eligibility to work in the U.S. These forms must be maintained by employers for three years after the date of hire or at least one year after the employee leaves—whichever is longer.

Homeland Security’s Immigration and Customs Enforcement (ICE) regularly conducts inspections of employers for compliance. “When we have I-9 audits, those operations are really put in a competitive disadvantage,” says Kimberly Clarke, an attorney who specializes in agricultural employment issues and is a partner at Varnum, LLP, in Grand Rapids, Mich.

Audits are typically performed on a random basis, but can eliminate workers’ eligibility, putting farm operations in a bind, especially if the audit takes place at critical times, such as planting or harvest. Even worse, says Clarke, “There is really no avenue to correct the status.”

For more information: http://www.uscis.gov/i-9

E-Verify. E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm eligibility.

For more information: http://www.uscis.gov/e-verify

H-2A. Allowing a foreign national entry into the U.S. for temporary or seasonal agricultural work, the H-2A program, administered by DOL, is the primary foreign guest worker program for agricultural employers. “People still use it because they don’t have a choice, because they can’t get domestic workers, and so they’re forced to try to work with the program,” says Ray Prewett, president of NCAE. “But it is very, very cumbersome.”

To qualify for the H-2A program, an employer must show it has open positions of a temporary or seasonal nature for which there are not sufficient U.S. workers available who are willing and able to do the work. The employer must also show that this employment will not adversely affect the conditions or wages of U.S. workers.

For more information: http://www.uscis.gov/working-united-states/temporary-workers/h-2a-agricultural-workers/h-2a-temporary-agricultural-workers

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

USERRA protects the jobs of veterans returning from active military service. An employee who leaves his or her position to perform military service is entitled to return to the position and its benefits. That means if the employee would have received a raise or a promotion, he or she is entitled to that upon return. Administered by DOL, USERRA also prohibits discrimination for military service.

For more information: http://www.dol.gov/compliance/laws/comp-userra.htm

Anti-Discrimination Laws

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, Amendments Act (ADAAA), and the Age Discrimination in Employment Act (ADEA) are the trinity of federal laws that prohibit discrimination against an employee. More specifically, Title VII prevents discrimination based on gender, race, color, national origin or religion, or retaliation for filing a claim or voicing opposition to perceived discrimination. The ADAAA provides essentially the same protections for individuals with a disability and entitles qualified individuals with a disability to a reasonable accommodation. The ADEA protects employees over the age of 40 from discrimination, harassment and retaliation.

For more information:
Employer’s Guide to Discrimination Laws http://www.eeoc.gov/employers/index.cfm

Employer’s Guide to Amended Americans with Disabilities Act https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-546.aspx

Age Discrimination in Employment Act http://www.eeoc.gov/laws/statutes/adea.cfm