Contracts
Earlier today, the U.S. Department of Labor (“DOL”) announced a proposed rule intended to provide greater clarity for both workers and employers on how to determine whether a worker should be classified as an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”) and other related laws.
Issued on February 26, 2026, the proposal – titled “Employee or Independent Contractor Status Under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act” – would rescind the Biden era rule (the “2024 Rule”) and replace it with a framework very similar to what we saw adopted in 2021 during the first Trump administration (the “2021 Rule”).
Level One: Ancient Origins
Under the FLSA, the central question in determining worker classification is whether the individual is economically dependent on the operation, indicating employee status, or is truly “in business for themselves,” which supports independent contractor status. This distinction matters because workers classified as employees are entitled to FLSA protections, including minimum wage and overtime requirements.
While agricultural employers may benefit from certain exemptions under the FLSA, the analysis does not end there. Many state labor laws look to the FLSA’s definition of “employee” when deciding whether their own wage and hour protections apply. In some cases, state laws impose broader requirements and offer greater protections than federal law. Independent contractors, by contrast, are not covered by FLSA wage and hour protections and generally exempt from state labor law requirements.
Classification of a worker is vitally important because misclassification can come with harsh consequences. If misclassification is discovered, whether through a DOL investigation, a worker complaint, or a lawsuit, the employer may be required to pay back wages, civil money penalties imposed by the DOL, and any attorneys’ fees and court costs should the matter end up in litigation. Beyond wage-and-hour issues, misclassification can trigger additional liability under other federal and state laws. This might include civil claims for unpaid payroll taxes, unemployment insurance contributions, or workers’ compensation violations, as well as potential criminal penalties in extreme cases of willful or repeated noncompliance.
Level Two: Trial by Fire
As originally enacted, the FLSA does not lay out a precise test for distinguishing an employee from an independent contractor. Over time, the DOL looked to the courts to develop a workable standard for making such determinations. Through those decisions, the “economic realities test” emerged and became the framework for evaluating whether a worker should be classified as an employee or independent contractor.
The economic realities test is a “totality of the circumstances” approach, meaning that no single factor controls the outcome. Instead, all relevant factors must be considered and weighed together to assess the true nature of the working relationship. Those factors include:
- The nature and degree of control;
- The individual’s opportunity for profit or loss;
- The permanency of the work relationship;
- Whether the work being performed is an integral part of the employer’s business;
- The worker’s investment in facilities and equipment; and
- Skill and initiative.
For decades courts and the DOL have applied these factors, or slight variations of them, to determine worker status under the FLSA. Over time, however, application of the test varied across jurisdictions, with some courts placing greater emphasis on certain factors than others. This inconsistency led to differing and inconsistent interpretations of worker classification around the country.
Level Three: The 2021 Rulebook Rewrite
In 2021, the DOL attempted to address the inconsistent and often subjective application of the economic realities test by issuing a formal independent contractor rule. This 2021 Rule marked the agency’s first effort to create a more standardized framework for distinguishing between employees and independent contractors.
The 2021 Rule used a variation of the economic realities test but explicitly gave greater probative value to “two core factors.” The two core factors are:
- The nature and degree of control over the work; and
- The individual’s opportunity for profit or loss.
The Department did not eliminate the other factors of the economic realities test; those factors remained part of the analytical framework under the 2021 Rule. However, the DOL did determine that the two “core factors” carried the most weight when determining whether an individual is economically dependent on an employer. The DOL further explained that when both core factors pointed toward the same classification, there was a “substantial likelihood” that the resulting classification was the correct classification.
Level Four: The 2024 Reset
In early 2024, the DOL published another rule, repealing the 2021 Rule and reverting back to a totality of the circumstances analysis of the economic realities test in which there are no core factors, and all factors are weighed evenly. The 2024 Rule went into effect on March 11, 2024.
Level Five: 2026 Counterattack
The latest proposed rule would reinstate the framework of the 2021 Rule, with several targeted adjustments designed to provide clearer guidance and promote more consistent interpretation/application of the test. The stated goal is to reduce uncertainty and, in turn, lower the risk of misclassification claims or enforcement actions that can disrupt day-to-day operations.
In addition to reinstating and slightly modifying the 2021 Rule, the proposal would also apply the independent contractor analysis to the Family and Medical Leave Act (“FMLA”) and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”), each relying on the FLSA’s definition of “employ.”
In its proposal, the DOL explained that the 2024 Rule failed “to provide effective guidance on how different factors in its multi-factor balancing test should be weighed or applied together.” The DOL contends that it’s two core factor economic realities test is just a result of decades and decades of case law. The Department indicates that after reviewing numerous judicial decisions, “the Department determined that courts tended to focus on two economic reality factors – control and the opportunity for profit or loss.” Thus, the DOL determined that in effect, judges were giving greater weight to these two factors to determine a worker’s classification under the FLSA.
However, the DOL emphasizes that even when the two core factors point toward the same classification they are not “controlling.” Their combined weight may still be outweighed by other considerations, making it “necessary to consider both [core and non-core] factors.” In short, the test that the DOL seeks to readopt is not intended to be applied “in a mechanical way that precludes consideration of all relevant facts and factors.”
Some other modifications proposed by this new rule include:
- Clarification on how an employee’s economic dependence on an employer differs from the relationship between independent businesses working together.
- Highlighting that worker classification hinges on dependence for the work, not on how much money the worker makes.
- Modifying the real-world examples used to apply the proposed 2026 framework to avoid potential ambiguity in the law; and
- Emphasis on the fact that the actual practice of the worker and potential employer is more relevant than what may be contractually or theoretically possible.
You can read the proposed rule here.
Boss Level Unlocked: Power Up with Public Comment
Ever wished you could help shape the rulebook? Well, now’s your chance!
The proposed rule kicks off a 60-day public comment period, closing April 28, 2026. You can submit a comment on the proposed rule to help provide greater clarity or protections for your specific industry or area of interest.
You might be wondering, “Can my comment really make a difference?” The answer: absolutely! Agencies are required to consider all substantive comments, and those that are unique, evidence-based, and grounded in real-world experiences are far more likely to influence the final rule than generic statements along the lines of “this is good” or “this is bad.”
If you have noticed gaps or issues that the DOL has not addressed in this proposal, now is the perfect time to bring them to light. Don’t miss the opportunity to make your voice heard, you never know, your input could truly change the law!
Comments can be submitted at https://www.regulations.gov (Docket No. WHD-2026-0001). Once comments are closed, the DOL will review and consider those comments, make any final modifications, and publish the final rule.
As always, as we learn more about this proposed rule and any final rule, we will keep you up to date.
Tags: FLSA, Independent Contractor, Department of Labor, DOL, Fair Labor Standards Act, Employee, Worker Classification
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September 1 is fast approaching, and it’s an especially important date for landowners who lease cropland under an existing lease that does not address when or how the lease terminates. In those situations, September 1 is the deadline established by Ohio law for a landowner to notify a tenant that the landowner wants to terminate the lease. If the landowner does not provide notice by September 1, the tenant operator has a legal argument that the lease continues for another lease term because it was not terminated by the deadline.
Here are a few important provisions about the statutory termination law that are important to understand:
- The September 1 termination date applies only to leases that do not address when or how the lease ends--such as a verbal lease or a written lease that lacks ending date or termination provisions. If a crop lease does include a termination date or a deadline for giving notice of termination, the statutory termination date law does not affect or change those agreed upon terms.
- The September 1 termination date applies only applies to crop leases. It does not apply to leases for pasture, timber, farm buildings, horticultural buildings, or leases solely for equipment.
- To meet the law's requirements, a landowner must give the notice of termination in writing and deliver it to the tenant operator by hand, mail, fax, or email on or before September 1. While the law does not specify what the termination must say, we recommend including the date of the notice, the identity of the lease property being terminated, and the date the lease terminates. The statutory termination law states that the date of termination will be the earlier of the end of harvest or December 31, unless the parties agree otherwise.
- Tenant operators of leased land are not subject to the September 1 termination deadline—the law applies only to the landowner. Even so, it’s important for tenant operators to understand the new law because the law intends to protect a tenant if a landowner attempts to terminate a lease after September 1. In those instances, the law gives the tenant a legal argument that the lease should continue for another term because the termination notice was provided past the statutory termination deadline.
Put leases in writing to avoid the statutory termination law. This law illustrates the importance of having a written farm lease that includes termination and renewal provisions. The parties can agree in advance when the lease terminates or renews as well as how and when to provide notice of termination or renewal of the lease. Clearly written and detailed terms provide certainty for both parties and reduce the risk of lost inputs, lost rents and profits, and litigation due to a “late” termination. For resources on written farm leases, visit aglease101.org and refer to our farmland leasing resources in our ag law library.
Read more about the statutory termination law in our law bulletin and refer to Ohio's “termination of agricultural leases” law in Section 5301.71 of the Ohio Revised Code.
Tags: leases; farm leases; verbal leases; statutory termination; september 1
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As we await the 2025 harvest and think ahead to 2026 farm leases, now is a good time for our annual Ohio Farmland Leasing Update. We've scheduled the webinar for Friday, August 15, 2025 at 10:00 a.m. as a special edition of our Farm Office Live webinar series.
Our team will address economic and legal information that affects Ohio farmland leasing, including the latest information on these topics:
- Cash Rent Outlook – Survey Data and Key Issues Impacting Change
- Legal Issues and Requirements for Terminating a Farmland Lease
- Drafting Farm Leases for Drainage Tile Improvements
- Leasing the Pore Space Beneath Your Farmland
- Farmland Leasing Resources
Our speakers for the webinar include:
- Barry Ward, Leader, OSU Production Business Management
- Peggy Kirk Hall, Attorney, OSU Agricultural & Resource Law Program
- Robert Moore, Attorney, OSU Agricultural & Resource Law Program
There is no cost to attend the Ohio Farmland Leasing Update, but registration is necessary unless you're already registered for the Farm Office Live webinars. To register, visit go.osu.edu/register4fol.
Tags: farm leases, farmland leasing, farmland leasing update, Webinar, farmland leasing webinar
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As we await the 2025 harvest and think ahead to 2026 farm leases, now is a good time for our annual Ohio Farmland Leasing Update. We've scheduled the webinar for Friday, August 15, 2025 at 10:00 a.m. as a special edition of our Farm Office Live webinar series.
Our team will address economic and legal information that affects Ohio farmland leasing, including the latest information on these topics:
- Cash Rent Outlook – Survey Data and Key Issues Impacting Change
- Legal Issues and Requirements for Terminating a Farmland Lease
- Drafting Farm Leases for Drainage Tile Improvements
- Leasing the Pore Space Beneath Your Farmland
- Farmland Leasing Resources
Our speakers for the webinar include:
- Barry Ward, Leader, OSU Production Business Management
- Peggy Kirk Hall, Attorney, OSU Agricultural & Resource Law Program
- Robert Moore, Attorney, OSU Agricultural & Resource Law Program
There is no cost to attend the Ohio Farmland Leasing Update, but registration is necessary unless you're already registered for theFarm Office Live webinars. To register, visit go.osu.edu/register4fol.
Tags: farm leasing, farmland leasing update, farmland leasing webinar, farm leases
Comments: 0
“Do your due diligence” is the lesson learned from a recent Ohio appeals court decision in a case alleging that a seller fraudulently induced a buyer in a real estate transaction. The Seventh District Court of Appeals rejected the buyer’s claim, stating that the doctrine of caveat emptor or “let the buyer beware” negated the fraudulent inducement argument because it placed a duty on the buyer to examine all “conditions open to observation.” The court reasoned that the buyer could not blame the seller for fraud because the buyer had the duty to examine public records that provided accurate information about the property.
The case
The conflict arose from the purchase of 143 acres of land in Belmont County, negotiated by two attorneys representing the parties. The buyer was present throughout the negotiations and read all of the e-mail correspondences between the two attorneys. The parties agreed to a purchase agreement, the buyer ordered a title search for the property, and the purchase took place. The buyer later learned, however, that a third party held an easement and right-of-way on the property. The easement allowed surface activities such as locating pipelines and well pads and restricted some development activities by the buyer.
After learning of the easement, the buyer filed a lawsuit claiming fraudulent inducement by the seller. A fraudulent inducement claim arises when someone uses a misrepresentation to persuade another to enter into an agreement. The buyer argued that the seller was fraudulent because the seller’s attorney never mentioned the easement during the purchase negotiations. The trial court agreed and determined that through misstatements and concealment, the seller had committed fraud that was “aggravated, egregious and/or reckless.”
The Court of Appeals disagreed. The court explained that, despite the seller’s actions, the doctrine of “let the buyer beware” obligated the buyer to investigate and examine “discoverable conditions” about the property. The easement was discoverable, as it had been recorded in the county public records. Because the easement information was readily available and the buyer had the opportunity to investigate it, the buyer could not successfully claim fraudulent concealment, the court concluded. According to the court, the buyer could not justify reliance on the seller’s omissions about the easement when the easement itself was a public record that was available to the buyer.
What does this decision mean for property transactions?
We’re back to “do your due diligence.” For property purchases, due diligence is the process of investigating and evaluating the property before finalizing the sale. A purchase agreement should include adequate time for due diligence after initial terms are agreed upon. During the due diligence period, a buyer can take a number of actions to evaluate whether or how to proceed with the purchase, such as:
- Complete visual and physical inspections of the land and buildings.
- Verify who holds ownership interests in the property.
- Determine if there are any easements, deed restrictions, covenants, severed mineral rights, pipelines, leases or other types of legal interests and limitations.
- Identify zoning and access regulations that apply to the property.
- Investigate environmental issues.
- Identify availability of water and utilities.
Additional inquiries might be necessary, depending on the type and intended use of the property. Hiring an attorney and other professionals can ensure that due diligence is thorough and tailored to the type of property at issue.
The time and cost of due diligence might be painful, but the doctrine of “let the buyer beware” demands it. As the Court of Appeals stated, “a seller of realty is not obligated to reveal all that he or she knows. A duty falls upon the purchaser to make inquiry and examination.”
Read the Seventh District’s opinion in Durr Farms, LLC v. Siltstone Resources, LLC on the Ohio Supreme Court’s website at https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2025/2025-Ohio-1942.pdf.
Tags: property law, contract law, due diligence, buyer beware, caveat emptor, easement
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Traditional communication methods are a thing of the past. With instant access to email, social media, text messages, websites, and video calls, digital communication is now the primary way individuals and organizations connect. In this digital age, emojis have become a key form of expression. Traditional contracts, once reliant on handwritten signatures, have now expanded to include electronic signatures under federal and state law. But can a simple thumbs-up emoji or smiley face be seen as legally binding consent in a contractual agreement? Recent legal trends suggest that in certain circumstances, the answer may be yes. Producers should be aware of the potential legal risks emojis pose when negotiating a contract through digital communications.
Legal Landscape of Electronic Signatures
- Federal E-Sign Act: The Electronic Signatures in Global and National Commerce Act (“E-Sign Act”), enacted in 2000, ensures that electronic records and signatures are legally valid, provided they meet certain requirements. The law explicitly states that electronic contracts and signatures cannot be denied enforceability solely because they are digital. Under the E-Sign Act, an electronic signature is broadly defined as any “electronic sound, symbol, or process” associated with a contract and executed with intent.
- Ohio’s UETA: Ohio has adopted the Uniform Electronic Transactions Act (“UETA”), which complements the E-Sign Act and provides additional guidance on electronic contracts within the state. UETA establishes that electronic signatures and records hold the same legal validity as their paper counterparts (with limited exceptions), as long as both parties have agreed to conduct transactions electronically. Like the E-Sign Act, UETA does not explicitly address emojis. However, given its broad definition of electronic signatures, emojis could qualify if used with the intent to agree to contract terms.
- Industry Standards: Additionally, certain industries may have standards that deal with digital communications. For example, within the grain trade, a responsive emoji texted to a purchaser might be deemed sufficient “confirmation” under the National Grain and Feed Association’s (“NGFA”) Grain Trade Rules. These rules require written confirmation, which can be sent via postal mail, courier, or electronic means. Since the rules do not expressly exclude emojis as a form of electronic communication, their validity remains an open question.
Judicial Treatment of Emojis and Digital Communications in Contract Law
While Ohio courts have yet to issue a definitive ruling on emojis as contractual acceptance, there is case law that addresses the issue of digital communications and the use of emojis to create a legally enforceable contract.
- International Case Law: Although not a binding legal precedent, a notable case outside the U.S. has gained international attention. In South West Terminal Ltd. v. Achter Land & Cattle Ltd., the court addressed whether a farmer’s thumbs-up emoji in response to a contract image constituted acceptance. The court ruled that a legally binding contract was formed and held the farmer liable for breach. (See our original post on the South West case here). In December, a Canadian appellate court upheld this decision, finding that Achter Land & Cattle intended to enter into a contract with South West Terminal and that both parties had communicated and agreed upon the essential terms.
- U.S. Case Law: While no U.S. case law directly addresses whether a contract can be formed by the use of emojis as the court does in the South West case, there are examples of U.S. courts interpreting digital communications and the use of emojis within other traditional legal frameworks.
- CX Digital Media, Inc. v. Smoking Everywhere, Inc.: The court held that an instant message exchange effectively modified a contract that contained a “no-oral modification clause.”
- In RE Bed Bath & Beyond Corporation Securities Litigation: The court ruled that a “full moon face” emoji contained within a tweet could plausibly mislead stockholders and could be a securities violation in some contexts.
- Lightstone Re LLC v. Zinntex LLC: The court determined that a factual dispute remained as to whether a thumbs-up emoji constituted a valid contract, preventing it from granting summary judgment on that basis (though summary judgment was granted for the plaintiff on other grounds). The court acknowledged that “even if such an electronic signature in the form of an emoji can create a valid contract, there still must be a meeting of the minds and an intent to be so bound.”
- Battle Axe Construction, LLC v. Hafner & Sons, Inc.: An Ohio court ruled that a series of emails met the requirements of Ohio’s Statute of Frauds, which requires certain contracts to be in writing.
- N. Side Bank & Trust Co. v. Trinity Aviation, L.L.C.: An Ohio court determined that a series of emails between the parties included the necessary elements to form a legally enforceable contract.
What does this all mean?
In summary, there is no clear answer (either in Ohio or nationwide) on whether an emoji can serve as an electronic signature and signify acceptance of a contract. However, as can be seen from the list of cases above, there is legal precedent establishing that digital communications can create a legally enforceable contract.
If the issue of whether an emoji qualifies as an electronic signature arises, Ohio courts will likely consider the broad definition of electronic signatures under federal and state law. They will also evaluate the context of the digital communication between the parties, assessing whether all elements of contract formation are present and whether a party intended to accept the contract by sending an emoji.
How should you manage your digital communications?
Although digital communications and contracting are legally recognized, using emojis as evidence of contract formation remains challenging. Emojis can be ambiguous and open to interpretation. For instance, the fire emoji might signal excitement in one context but destruction in another. One party may interpret it as confirmation of a contract, while the other may intend it as a rejection of negotiations. This type of ambiguity will continue to pose an ongoing issue if emojis are allowed to be used as electronic signatures.
To help minimize the risk of misinterpretation when negotiating contracts digitally, consider these best practices:
- Avoid emojis – While it may seem simple, refraining from using emojis helps prevent confusion over contract formation and reduces the risk of an emoji being interpreted as an electronic signature, lowering the chances of disputes or litigation.
- Clarify intent if emojis are used – If the other party includes emojis in negotiations, follow up to ensure their intent is clear and unambiguous. Additionally, consider finalizing digital negotiations with a formal written contract.
- Establish employer guidelines – Employers should implement internal policies outlining how employees engage in contractual discussions via text, email, or social media to ensure clarity and consistency.
Final Thoughts
As digital communication evolves, so too will legal interpretations regarding its use. The federal E-Sign Act and Ohio’s UETA provide a robust framework for recognizing electronic agreements, and courts may uphold emojis as valid expressions of contractual intent under the right circumstances. Nevertheless, the safest approach remains to use traditional contractual language alongside any digital expressions. When in doubt, always put it in writing—words continue to reign supreme in contract law.
Tags: contracts, electronic signature, digital communications, digital contracting, grain contracts, contract law, contract formation
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The U.S. Department of Agriculture Agricultural Marketing Service (USDA) is asking the agricultural community to weigh in on a new program aimed at the voluntary carbon market in the U.S. The agency has published a Request for Information seeking input on what the agency should consider in developing rules for the new “Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program.” The purpose of the new program, created by the passage of the Growing Climate Solutions Act last year, is to facilitate farmer, rancher, and private forest landowner participation in voluntary carbon markets by: (1) publishing a list of widely accepted protocols designed to ensure consistency, reliability, effectiveness, efficiency, and transparency of voluntary credit markets; (2) publishing descriptions of widely accepted qualifications possessed by covered entities that provide technical assistance to farmers, ranchers, and private forest landowners; (3) publishing a list of qualified technical assistance providers and third-party verifiers; and (4) providing information to assist farmers, ranchers, and private forest landowners in accessing voluntary credit markets.
Farmers haven’t engaged in the voluntary carbon market to the extent some predicted several years ago, when “carbon agreements” began circulating through the agricultural community. A carbon agreement is a private contract that compensates a farmer for adopting practices that sequester carbon, with one ton of sequestered carbon creating a “carbon credit.” Those who pay farmers for the carbon credits can retain the credits or trade the credits through a carbon market. The owner of the carbon credits can use the credits to offset their greenhouse gas emissions, with the goal of reducing their “carbon footprint.”
According to USDA Secretary Vilsack, “high-integrity voluntary carbon markets offer a promising tool to create new revenue streams for producers and achieve greenhouse gas reductions from the agriculture and forest sectors. However, a variety of barriers have hindered agriculture’s participation in voluntary carbon markets and we are seeking to change that by establishing a new Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program.” In its Request for Information, the agency seeks responses to eight questions:
Question 1: How should USDA define the terms “consistency,” “reliability,” “effectiveness,” “efficiency,” and “transparency” (see 7 U.S.C. 6712(c)(1)(A)) for use in protocol evaluation?
Question 2: What metrics or standards should USDA use to evaluate a protocol's alignment with each of the five criteria to be defined in Question 1? What should USDA consider as minimum criteria for a protocol to qualify for listing under the Program?
Question 3: In general, after a new protocol is published, how long does it take for a project to use the protocol and be issued credits ( i.e., what is the lag time between protocol publication and first credit generation)?
Question 4: Which protocol(s) for generating voluntary carbon credits from agriculture and forestry projects should USDA evaluate for listing through the Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program?
Question 5: Additional information for any protocol(s) identified under Question 4.
Question 6: How should USDA evaluate technical assistance providers (TAP)? What should be the minimum qualifications, certifications, and/or expertise for a TAP to qualify for listing under the Program?
Question 7: Should the qualifications and/or registration process be different for entities and individuals that seek to register as a TAP?
Question 8: What should be the minimum qualifications and expertise for a third-party verifier to qualify for registration under the Program?
The agency will accept comments on the questions until June 28, 2024.
Part of a broader policy initiative
USDA announced the Request for Information on the same day that Secretary Vilsack, Energy Secretary Granholm, and Treasury Secretary Yellen, published a Joint Statement of Policy and Principles for Voluntary Carbon Markets, which outlines seven principles for the government’s approach to advancing “high-integrity voluntary credit markets,” summarized in a White House Fact Sheet:
- Carbon credits and the activities that generate them should meet credible atmospheric integrity standards and represent real decarbonization.
- Credit-generating activities should avoid environmental and social harm and should, where applicable, support co-benefits and transparent and inclusive benefits-sharing.
- Corporate buyers that use credits should prioritize measurable emissions reductions within their own value chains.
- Credit users should publicly disclose the nature of purchased and retired credits.
- Public claims by credit users should accurately reflect the climate impact of retired credits and should only rely on credits that meet high integrity standards.
- Market participants should contribute to efforts that improve market integrity.
- Policymakers and market participants should facilitate efficient market participation and seek to lower transaction costs.
The recent USDA announcements once again suggest that there are many issues for farmers considering engaging in the carbon market. Caution is usually warranted when dealing with a new, developing market. For farmers who do want to enter into the carbon market, be sure to refer to our posts on Carbon as a commodity for agriculture? and Considering carbon farming? Take time to understand carbon agreements. The Farmers Legal Action Group also has an excellent publication on Farmers Guide to Carbon Market Contracts in Minnesota, also useful for Ohio farmers.
Tags: carbon market, carbon agreement, VCM, Growing Climate Solutions Act, greenhouse gas
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As April comes to a close, we bring you another edition of the Ag Law Harvest. This month’s harvest brings you laws and regulations from across the country regarding a national drinking water standard, the Endangered Species Act, Ag-Gag laws, noncompete agreements, and pollution.
EPA Finalizes First-Ever PFAS Drinking Water Standards
Earlier this month, the U.S. Environmental Protection Agency (“EPA”) announced a final rule, issuing the “first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful per-and polyfluoroalkyl substances (PFAS), also known as ‘forever chemicals’”. The final rule sets legally enforceable maximum contaminant levels for six PFAS chemicals in public water systems. The EPA also announced nearly $1 billion in new funding to “help states and territories implement PFAS testing and treatment at public water systems and to help owners of private wells address PFAS contamination.” The EPA suggests that this final rule “will reduce PFAS exposure for approximately 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious illnesses.”
Interior Deptartment Finalizes Rule to Strengthen Endangered Species Act
The Department of the Interior has announced that the U.S. Fish and Wildlife Service finalized revisions to the Endangered Species Act (ESA). These revisions aim to enhance participation in voluntary conservation programs by promoting native species conservation. They achieve this by clarifying and simplifying permitting processes under Section 10(a) of the ESA, encouraging greater involvement from resource managers and landowners in these voluntary initiatives. For more information about Section 10 of the ESA visit the U.S. Fish and Wildlife Service’s website.
Kentucky Passes Ag-Gag Statute
On April 12, 2024, the Kentucky legislature overrode the governor’s veto to pass Senate Bill 16 into law. The new law, titled “An Act Relating to Agricultural Key Infrastructure Assets,” expands the definition of “key infrastructure assets” to include commercial food manufacturing or processing facilities, animal feeding operations, and concentrated animal feeding operations. It criminalizes trespassing on such properties with unmanned aircraft systems, recording devices, or photography equipment without the owner's consent. The first offense is a Class B misdemeanor with up to 90 days imprisonment and a $250 fine, while subsequent offenses are Class A misdemeanors with up to 12 months imprisonment and a $500 fine.
Federal Trade Commission Bans Non-Compete Agreements
The Federal Trade Commission (“FTC”) announced a final rule banning noncompete agreements and clauses nationwide. This move aims to promote competition by safeguarding workers’ freedom to change jobs, increasing innovation and the formation of new businesses. Under the FTC’s new rule, existing noncompetes for the vast majority of workers will no longer be enforceable after the rule’s effective date. However, existing noncompetes for senior executives – those earning more than $151,164 annually and in policy making positions – remain enforceable under the new rule. Employers will have to notify workers bound to an existing noncompete that the noncompete agreement will not be enforced against the worker in the future. The final rule will become effective 120 days after publication in the Federal Register.
EPA Announces New Rules to Reduce Pollution from Fossil Fuel-Fired Power Plants
The U.S. Environmental Protection Agency (“EPA”) unveiled a set of final rules designed to decrease pollution from fossil fuel-fired power plants. These rules, developed under various laws such as the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act, aim to protect communities from pollution and improve public health while maintaining reliable electricity supply. They are expected to substantially reduce climate, air, water, and land pollution from the power industry, aligning with the Biden-Harris Administration's goals of promoting public health, advancing environmental justice, and addressing climate change.
Tags: EPA, ag law harvest, ag-gag, FTC, Noncompete Agreements, endangered species act, Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act
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At some point, we have all had to find a notary to get a document notarized. Ohio law requires certain documents like deeds, long-term leases and vehicle titles to be notarized. But, have you ever thought, why do we need to have documents notarized and what are notaries? In this article, we will discuss notaries and the important role they plan in our society.
What Does an Ohio Notary Do?
An Ohio notary is an official empowered by the state to perform various acts that add an extra layer of security and credibility to legal proceedings. Their primary duties include:
- Verifying Signatory Identity: A notary ensures that the person signing a document is who they claim to be. This involves either personally knowing the person or requesting valid government-issued photo identification and verifying its details.
- Witnessing Signature: The notary observes the signing of the document and attests to their presence during this act. Their signature and official seal serve as evidence of this witnessing.
- Administering Oaths and Affirmations: Notaries can administer oaths, which are formal declarations made under penalty of perjury, and affirmations, which are non-religious oaths. This ensures the seriousness and truthfulness of statements made during legal proceedings.
- Taking Acknowledgments: An acknowledgment is a formal statement confirming that a signer understands the content of a document and willingly signed it. The notary verifies the signer's identity, witnesses their signature, and completes a separate acknowledgment certificate.
Why Do We Need Documents Notarized?
Notarization serves several critical purposes:
- Combating Fraud: By verifying identity and witnessing signatures, notaries help deter fraud by ensuring documents haven't been forged or signed under duress. This adds a layer of security to important transactions, protecting individuals and organizations from potential scams and financial losses.
- Promoting Trust: A notary's seal signifies an independent and impartial witness to the signing process. This official recognition instills confidence in the document's authenticity, especially when dealing with parties unfamiliar with each other.
- Facilitating Legal Processes: Certain legal documents, such as deeds, powers of attorney, and sworn statements, require notarization to be considered valid in court proceedings. The notary's presence strengthens the document's legitimacy and streamlines the legal process.
Who Can Be an Ohio Notary?
To be a notary, a person must meet the following requirements:
- Be at least 18 years old and a legal resident of Ohio, or
- Be an attorney admitted to practice law in the state with a primary practice in Ohio.
- Have no criminal convictions.
All new notaries are required to complete a 3-hour notary class and obtain a background check. Non-attorneys must also pass an exam.
Conclusion
Notaries play a vital role in safeguarding the integrity of legal documents and transactions within the state of Ohio. By verifying identities, witnessing signatures, and administering oaths, they contribute to a more secure and efficient legal system. If you're interested in a rewarding role that upholds trust and protects individuals, becoming an Ohio notary public might be a perfect fit for you.
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In this rendition of the Ag Law Harvest, we bring you some contracts! Over the course of February, there were three Ohio cases that demonstrate the importance of having a written contract, the ability to form a contract through your actions, and the need to make sure specific terms within a contract can be enforceable.
Handshake Agreements Can Be a Double-Edged Sword.
In this case we are introduced to two brothers (the “Plaintiffs”), who were equal partners in a farming business that included buying and selling livestock. As part of their business, Plaintiffs sold cattle to Defendants between 2009 and 2017. The parties did not have a formal contract in place and conducted business on a “handshake agreement.”
The Plaintiffs claim that the Defendants acted as intermediaries, purchasing heifers from them, and reselling them to other dairy farmers or at market. According to Plaintiffs, it was customary for the Defendants to pay for the cattle immediately upon delivery or within 30 days. However, around 2016, Defendants allegedly wrote checks for seven transactions but asked Plaintiffs not to cash them due to insufficient funds. Plaintiffs assert that Defendants never honored these checks, resulting in an outstanding amount of $128,950. Despite Plaintiffs' attempts to collect, Defendants denied owing any money, arguing that Plaintiffs were fully paid through later payments or third-party transactions. This disagreement led to the filing of Plaintiffs' lawsuit.
In February of last year, the trial court granted Plaintiffs summary judgment and awarded them $120,150. Defendants appealed the trial court’s decision arguing that summary judgment was inappropriate because whether or not Defendants owed Plaintiffs any money was in dispute. The appellate court agreed.
In its opinion, the appellate court stated that it was clear that “the trial court weighed the credibility of the parties. . .” The appellate court also made it clear that “[s]ince resolution of the factual dispute will depend, at least in part, upon the credibility of the parties or their witnesses, summary judgment in such a case is inappropriate.” Furthermore, the court noted that because there was no written contract between the parties, the only evidence to demonstrate the particulars and common practices of the handshake agreement comes from the personal knowledge of the Plaintiffs and Defendants. Therefore, because both parties disagree as to whether Defendants owe any money to Plaintiffs, the trial court should not have ruled in favor of Plaintiffs on summary judgment. Consequently, the case is remanded to the trial court for further proceedings, potentially including a trial.
This case shows us two things, the importance of having a written contract and the importance of recordkeeping. The parties to this lawsuit must now argue that their recollection of events is the true and accurate recollection. Both parties will likely be judged by a group of jurors and one party is bound to be out a large sum of money. A written contract could have avoided much of the dispute by including language about the process for payment, record keeping requirements, and other terms and conditions that would have governed the relationship of the parties. Now, because there is no written contract, this case becomes a case of “he said-he said.”
Implied Contracts Can Be Formed Based on a Tacit Understanding.
The second case demonstrates that the surrounding facts and circumstances can create an implied contract even when no signed contract exists. In this case Plaintiff, a residential construction company, provided the Defendant-homeowners with two written quotes for roofing and other work at their home. The quotes included various services and specified a 30% upfront payment with the remainder due upon completion of the work. Although the Defendants did not sign or date the quotes, they paid Plaintiff $6,815, which was stated to be a 30% prepayment for the total quoted amount of $22,717.
After completing the roof, Plaintiff submitted a bill to the Defendants for the balance due on the roof. The Defendants took issue with the invoice for two reasons: (1) the price did not match the quotes, and (2) Defendants believed that payment would not be due until all items on both quotes were completed. Ultimately, the parties parted ways and Defendants asked Plaintiff to not return to their home leaving the remainder of the work listed on the two quotes uncompleted.
Plaintiff sued the Defendants alleging breach of contract, seeking payment for the finished roof. The matter proceeded to a bench trial where the trial court found that the two quotes and the 30% payment operated as an implied contract and not an express one. The trial court also held that Plaintiff did partially perform the agreement and should be paid for the roof installation.
The Defendants appealed, arguing that Plaintiff could not recover in this case because Plaintiff only alleged a breach of an express contract and did not seek recovery for breach of an implied contract. The appellate court disagreed. The court noted that under Ohio law there are three types of contracts: (1) express contracts, (2) implied in fact contracts, and (3) implied in law contracts.
The court went on further to explain when the three different kinds of contracts are created. An express contract is created when there is an offer and acceptance of written terms. An implied in fact contract requires a “meeting of the minds” and that “is shown by the surrounding circumstances which [make] it inferable that [a] contract exists as a matter of tacit understanding.” Lastly, with an implied in law contract “there is no meeting of the minds” but the law will create civil liability for a person in receipt of benefits which they are not justly entitled to retain.
The appellate court held that the trial court correctly found there was no express contract between the parties, rather there was an implied in fact contract. The court reasoned that the two written quotes and the 30% prepayment created a tacit understanding amongst the parties. Furthermore, the court concluded that because an implied contract existed amongst the parties, Plaintiff is entitled to recover for the work they did do. Lastly, the trial court noted that Defendants should have been aware that Plaintiff’s breach of contract claim would not only apply to express contracts but also to implied contracts.
Noncompetition Agreement Found to be Unenforceable.
In our final case we are introduced to a salesman that was being sued by his former employer for breach of a non-competition agreement (the “NCA”) after going to work for a direct competitor. Plaintiff, Kross Acquisition Co., LLC (“Kross”), is a basement waterproofing contractor. Kross provides service in southwestern Ohio, southeastern Indiana, and northern and eastern Kentucky. Kross’s former employee Roger Kief left to work for Groundworks Ohio, LLC (“Groundworks”). Groundworks is engaged in substantially the same business as Kross and serves the entire state of Ohio as well as Kentucky, Indiana, and many other states.
Kief began working for Kross in 2017 and signed the NCA. The NCA prohibits Kief from disclosing confidential information and from working anywhere in Ohio or Kentucky for any competing company for a period of two years after leaving Kross. In February of 2022, Groundworks offered Kief an identical position with a start date of March 2022.
Kross filed lawsuit against Kief for failing to adhere to the NCA. The trial court found the NCA unenforceable and granted summary judgment in favor of Kief. Kross filed an appeal arguing that the trial court erred when it found the NCA unenforceable. The appellate court disagreed. The court noted that the following factors are used to analyze whether a noncompetition agreement can be enforceable:
1. Time and space limitations: Whether the agreement specifies a reasonable duration and geographic scope for its restrictions.
2. Sole contact with the customer: Whether the employee is the primary or sole contact with the employer's customers.
3. Confidential information or trade secrets: Whether the employee has access to and possesses confidential information or trade secrets of the employer.
4. Limitation of unfair competition: Whether the covenant aims to prevent unfair competition or if it overly restricts ordinary competition.
5. Stifling of inherent skill and experience: Whether the agreement unreasonably stifles the employee's inherent skill and experience in the industry.
6. Disproportionate benefit to the employer: Whether the benefit gained by the employer from the agreement outweighs the detriment imposed on the employee.
7. Bar on sole means of support: Whether the agreement bars the employee's only means of earning a livelihood.
8. Development of restrained skills during employment: Whether the skills restricted by the agreement were actually developed during the employee's tenure with the employer.
9. Incidental nature of forbidden employment: Whether the forbidden employment is merely incidental to the employee's primary employment with the employer.
Based on the foregoing factors, the court found that the geographic and time limitations “exceeded what is necessary to protect Kross’s legitimate business interests.” Therefore, the appellate court found the NCA unenforceable.
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