Counseling the Livestock Operator To Prevent &

React to Undercover Surveillance

New York State Bar Association Committee on Animals and the Law

“Ag Gag” Laws

March 25, 2015

By Cari B. Rincker, Esq.

Who I Am

• Grew up on a beef cattle farm in Illinois– Advanced degrees in

animal science

• Chair of the ABA, General Practice, Solo & Small Firm Division’s Agriculture Law Committee

• Client bases ranges from livestock producers & food entrepreneurs to mid-size agri-businesses

Preventative Practices for Farms

• Different Stages

– Hiring Practices

– Upon Hiring

– Ongoing Programs

• Protection of Public Image

• Record Keeping

• Reaction to a Breach

Hiring Practices

• Interviewing Practices

• Background Checks

• Notice of Prohibited Devices

Interviewing Practices

• Get to know your job applicants

– Review the resume

– Ask probative questions

– Ask for references

– Ask about educational history

Interviewing Practices

• Check references– Check online and call the

main number for the business vs. relying on the phone number provided by applicant

– Check website to see if legitimate business

– Confirm periods of employment with the reference

Interviewing Practices

• Establish Procedures– Phone interview first

– Then send reference form to applicant

– References should be provided in written format

– Check references

– If no discrepancies, then in-person interview

Interviewing Practices

• If discrepancies are reported at the written stage:– Receive clarification

from the applicant;

– Possible use of a credit reporting agency; or,

– Notify the applicant that employment will not be offered

Background Checks

• Background checks are considered consumer reports

• Farm employers who wish to run background checks must comply with the Fair Credit Reporting Act (“FCRA”)

Background Checks

• Farm employers must provide written disclosure to the applicant “that a consumer report may be obtained for employment purposes.”

– This must be provided before the report is requested

– This disclosure must be a stand-alone document and cannot be included as part of the application form

• Applicant must authorize procurement of the report in writing 15 U.S.C. § 1681(b)(2).

Background Checks

• Farm employers may have to disclose the background check/consumer report to the applicant– Disclosure required by employers who

intend to take adverse action (such as rejection of applicant or termination of existing employment) based on information in consumer report

– In such cases, employer should provide copy of report and written description of applicant’s rights in relation to the report.

See 15 U.S.C.A. § 1681(b)(3).

Background Check

• If adverse action is taken on applicant, a notice must be provided to the applicant or employee providing: – Contact information for

the reporting company;

– Statement that an adverse

action was not a decision of

the reporting company; and,

– Information on the right to

dispute the report.

Background Check• Livestock operations should check the laws on

background checks in their state.– Some state laws may not be preempted by FCRA and may

forbid the use of credit reports for employment purposes• California• Colorado• Connecticut • Hawaii• Illinois• Maryland• Oregon• Vermont• Washington

Notices of Prohibited Devices

• Notice of prohibited devices and acts should be included in the employment application and posted at the workplace.

Notices of Prohibited Devices

If livestock producer is in a state with an “aggag” law, then notice language should match statute

Notices of Prohibited Devices

• Notices should list specific devices that are prohibited, if any, including smart phones, cameras or video cameras.

Notices of Prohibited Devices

Notice should state that permission to make any recording must be made from the employer in writing.

Notice of Prohibited Devices

Notice may designate that any recordings taken on the premises are property of the livestock operation and any recordings must be turned over to the livestock operation

Notice of Prohibited Devices

Livestock operation should make employees aware of the serious nature of any recordings on the premises

Upon Hiring

• Employee Handbook

• Employee Contract/ Independent Contractor Agreement

• Non-Disclosure Agreement

Ongoing Programs

• Regular training on animal handling techniques

• Farms should consider their own undercover surveillance

• Participation in voluntary animal welfare programs and trainings

Training• Depending on the

operation, training on animal handling practices should be done at regular intervals

• When the training concludes, have the employees “sign off” stating that they participated in the training and understand the animal handling practices

This is me taking a blood sampleat the University of Illinois research farm for my masters degree.

Training

• Livestock operations should work with a cooperative extension agent to help develop sound animal handling practices for their operation– New York – Cornell

Cooperative Extension

– Illinois – University of Illinois

– Texas – Texas A & M University I’m with my father on our farm

Farm’s Own Undercover Surveillance

• Make sure the animal handling practices are being implemented properly

• Help ensure proper equipment is available

• To see if employees act differently when the “boss” isn’t around

Participation in Voluntary Training and Animal Welfare Programs

• New York State Cattle Health Assurance Program (“NYSCHAP”)

– Other states have similar programs

• Milk & Dairy Beef Quality Assurance Program

My family’s farm

Voluntary Certification & Third Party Verification Programs

• American Humane Certified by the American Humane Association

• Animal Welfare Approved by the Animal Welfare Institute

• United Egg Producers Certified

• Certified Humane Certification Program from the Humane Farm Animal CareFor more info http://awic.nal.usda.gov/farm-animals/animal-welfare-audits-and-certification-programs/animal-welfare-audits-and-2

Protection of Public Image

• Website

• Social Media

• Community involvement

• Opening barn doors to the public – either virtually and/or farm tours

• Public relations consultant

A Word on Record Keeping

• Farms should consider keeping as much documentation that they can on everything they are doing right to care for their animals each day. This will be useful in court for any defense against animal cruelty charges. – Feeding records

– Veterinary care

– Consultations with an extension specialist

– Observations on body conditions scores

– Training employees or independent contractors on animal handling techniques

– Consider memorializing proper animal handling techniques in the employee handbook

– Videos and photographs

Reaction to a Breach

• Establishing procedures for documenting the occurrence and the actions taken to retrieve employer property are critical. – Policies should establish

efficient mechanisms for

determining the contents

of the recording device and

suspected employees should

not be held longer than

necessary.

Reaction to a Breach

• Get a team put together before an incident.

– Public relations person

– Attorney

Oh, P.S. – I Just Wrote a Book

Cari B. Rincker & Patrick B. Dillon, “Field Manual: Legal Guide for New York Farmers & Food Entrepreneurs” (2013)

Available at http://www.amazon.com/Field-Manual-Legal-Farmers-Entrepreneurs/dp/1484965191

Please Stay in Touch

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New York, NY 10017

(212) 427-2049

cari@rinckerlaw.com

www.rinckerlaw.com

@CariRincker @RinckerLaw

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