Employment Law in Agriculture

CENTRA Session for January 10, 2011Dr. Shannon L. Ferrell, Department of Agricultural Economics

Our program this morning• What every producer needs to know

– Employee verification (I-9)– Wage and hour issues– Workers comp– Worker safety

• Proposed revisions to child labor regulations affecting agriculture

SHAMELESS PLUG!!!

Coming soon to a PODS near you!

E-1028:The Oklahoma Farm and

Ranch Employment Handbook

Employee verificationForm I-9

• Section 1 of the form is completed by the employee (though the employer can help if needed).

• Section 2 of the form is completed by the employer after reviewing the documents presented by the employee to confirm employment eligibility.

• Employer just has to retain the form – you don’t have to submit it to anyone.

Reviewing Documents• The employee has two options:

– Show you one of the documents on List AOR– Show you BOTH

• A document from List B AND• A document from List C

• Test: do the doc(s) – Reasonably appear genuine and– Reasonably appear to relate to the person

Am I supposed to be a document expert? I mean, I’ve watched CSI...

• The basic rule is that you have to examine the documents presented and determine:–(1) Does the document reasonably

appear genuine, and–(2) Does the document reasonably

appear to relate to the person presenting it?

Keeping I-9 Forms• Basic rule: You have to keep an

employee’s I-9 for the longer of these two periods:– 3 years after the date their employment

begins OR– 1 year after their employment is terminated.

• I-9’s can be kept in hardcopy, electronic storage... Lots of options so long as it can be kept, retrieved, and protected against tampering.

The Payoff

D-

Hours and Wages• The basic presumption is that the wage and hour

restrictions will apply to an employee unless an exemption applies.

• For right now, federal minimum wage = $7.25• If a non-exempt employee works over 40 hours

in a week, they have to be paid 1 ½ times their normal wage.

• Always bear in mind that there are a ton of exceptions for production agriculture.– I said PRODUCTION AGRICULTURE – not

agribusinesses.

It’s all about the Benjamins…OK – so it’s all about the Georges.

• The basics:– Non-exempt employees must be paid at least

$7.25/hr for up to 40 hours of work per week. – If a non-exempt employee works more than

40 hours per week, they must be paid 1 ½ times their normal wage rate.

But, of course, there’s the farm exceptions…

• Agricultural employees are exempt from the minimum wage and overtime requirements if any of the following are met:– The farm used less than five hundred man-days of

labor last calendar quarter. • Man-day: any day in which an employee worked for at least

one hour,– You’re the kid or spouse of the employer.– You’re engaged in hand-harvest labor and are paid on

a piece-rate basis.– You’re principally engaged in the range production of

livestock.

Maximum Hour Standards• Most employees have no cap on the hours

they work (until you run up against occupational safety rules) so long as they get paid 1 ½ time their normal wage rate for the hours worked over 40 hours in a week.

• If a farm has less than $500,000 in gross sales, all of its employees are exempt from the overtime requirements

Insurance / Workers Compensation

• There is no requirement for employers to provide employees with health insurance, but...

• Oklahoma Workers Compensation Act requires compensation be paid to employees for injuries arising out of an in the course of their employment.

Workers Compensation• Oklahoma does require workers compensation

coverage for all employers with only limited exceptions:

• Agricultural payroll exception: If you had a payroll for agricultural employees in the last calendar year of less than $100,000, then your agricultural employees are exempt.

• Agricultural employees that do not do any work with mechanized equipment are exempt (regardless of payroll).

Work Environment• Employer is required to

"furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

• Be aware of OSHA standards for machinery, chemical handling, and silos/storage areas.

• Also be aware of limitations for youth.

The Occupational Health and Safety Act (OSHA)

• Some of the specific agricultural standards for agriculture:– Requirements for Roll Over Protection Systems (ROPS)

on new tractors.– Requirements for guards on field equipment.– Numerous standards for handling of anhydrous

ammonia.– Standards for provision of water and sanitary facilities.– Standards for seasonal labor camps (29 CFR part 1910).–Grain handling facilities

(29 CFR 1910.272)

Proposed DOL regulatory changesProp: 9/2/2011

• Proposed regulations (and current ones) do NOT apply to:– Kids working on a farm owned or operated by

their parents• WHOLLY owned or COMPLETELY controlled

– Kids working on farm owned or operated by person “standing in place of a parent”• Ex: living with Grandma and Grandpa for summer

• DO apply to kids “employed” by anyone else– “to suffer or permit to work”

Kids under 16 and…Tractors

CURRENT• Cannot operate a tractor of over 20 PTO

horsepower, or connect or disconnect an implement or any of its parts to or from such a tractor;

• BUT… 14 - 15 year-olds can take training course to operate such equipment

Proposed• No horsepower threshold• No tractoring and texting• Must have drivers license to operate tractor on

public roads

Kids under 16 and…Power equipment

Current• Prohibited from operating or working with corn

picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, mobile pea viner, feed grinder, crop dryer, forage blower, auger conveyor, unloading mechanism of a nongravity-type self-unloading wagon or trailer, power post-hole digger, power post driver, or nonwalking-type rotary tiller; trencher or earthmoving equipment, fork lift, potato combine, or power-driven circular, band or chain saw

Proposed• Prohibited from operating all machines,

equipment, implements, vehicles and/or devices operated by any power source other than human hand or foot power

Kids under 16 and…Livestock

Current:• Working in a yard, pen, or stall occupied

by a bull, boar, or stud horse maintained for breeding purposes; a sow with suckling pigs; or a cow with a newborn calf (with umbilical cord present)

Kids under 16 and…Livestock (continued)

Proposed• Prohibited from working on a farm in

a yard, pen, or stall occupied by an intact male equine, porcine, bovine, or bison older than six months, a sow with suckling pigs, or cow with newborn calf (umbilical present)

Kids under 16 and…Livestock (continued)

• Prohibited from engaging or assisting in any husbandry practices likely to inflict pain or result in unpredictable behavior, including:– Branding– Breeding– Dehorning– Vaccinating– Castrating– Treating sick or injured animals– Handling animals with known dangerous behaviors– Poultry catching/cooping– Herding animals in confined spaces– Herding animals on horseback or w/motorized vehicle

Kids under 16 and…timber

Current• Prohibited from felling, buckling, skidding,

loading, or unloading timber with a butt diameter or more than 6 inches;

Proposed• No lower size limit; prohibited from removal and

disposal of tree stumps by other than manual means.

Kids under 16 and…heights

Current• Prohibited from working from a ladder or

scaffold at a height of over 20 feet; Proposed • Roofs, scaffolds, and heights > 6 feet

Kids under 16 and…confined spaces

Current• Prohibited from working inside: a fruit, forage,

or grain storage designed to retain an oxygen-deficient or toxic atmosphere; an upright silo within 2 weeks after silage has been added or when a top unloading device is in operating position; a manure pit; or a horizontal silo while operating a tractor for packing purposes;

Proposed• Working inside any fruit, forage, or grain storage

silo or bin, or manure pit.

Kids under 16 and…pesticides

Current• Prohibited from handling or applying toxic

agricultural chemical identified by the words "danger," "poison," or "warning or a skull and crossbones on the label;

Proposed• Prohibited from any task that may be

performed by a pesticide handler (much broader)

Kids under 16 and…

• Explosives: basically unchanged

• Anhydrous ammonia: basically unchanged

Kids under 16 and… new stuff

• Completely new:– 16-17 year-olds cannot work in farm-product

raw materials wholesale trade industries• Elevators, bins, silos• Feed lots, feedyards, stockyards, livestock

exchanges, livestock auctions – Cannot operate or assist in the operation of a

hoisting apparatus an conveyors that are operated either by hand or by gravity

– Prohibited from all excavation, wrecking and demolition activities

TrainingCurrent • 14 - 15 year-olds can take training course from

Extension, schools, or other organizations to operate equipment

Proposed• Eliminate all programs outside of vocational

educational programs in schools• 90 hour minimum requirement• Applies to more than power equipment

So what?• Read the reg!

– 76 Fed. Reg. 54836-54882• Comments have closed, but that doesn’t

mean it’s over– Contact your farm organization– Contact your Federal Representative or

Senator– Provide safety data – DOL doesn’t care about

economic impacts, they care about safety