The next topic in the Agricultural & Food Law Consortium’s webinar series on July 25, 2018 is “Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses” featuring attorney Misty Wilson Borkowski of Cross, Gunter, Witherspoon & Galchus, P.C., in Little Rock, Arkansas. Ms. Borkowski, who dedicates her practice to immigration law, will discuss the latest developments in the laws and regulations that agricultural businesses must comply with when hiring foreign agricultural workers. The webinar is intended to benefit all involved with the hiring of foreign agricultural workers, including producers, farm labor contractors, and attorneys.
The financial stability of farming operations throughout the United States is heavily dependent on the proper employment of foreign agricultural workers. Understanding the law and regulations applicable to the hiring of those workers can be a daunting task, even for those operations that regularly use foreign agricultural workers. For example, U.S. farmers who have H-2A workers or are considering utilizing the H-2A Visas for foreign agriculture workers must comply with U.S. Department of Labor and Immigration laws and regulations with regard to recruitment, hiring, paying, withholding taxes, housing, transportation, and related matters.
The free webinar will take place on Wednesday, July 25, 2018 at Noon EST. Go to this link for log on information.
OSU’s Agricultural & Resource Law Program is one of four partners in the Agricultural & Food Law Consortium, a national, multi-institutional collaboration designed to enhance and expand the development and delivery of authoritative, timely, and objective agricultural and food law research and information. The Consortium hosts a series of webinars on timely and important agricultural and food law topics which are freely available to the general public and designed to be appropriate for non-attorneys as well as attorneys. For a listing of upcoming webinars and access to past webinars that have been archived, please click here.
Are you using the correct version of the I-9 Form to verify that your new employees are eligible for employment? Employers must now use only the revised July 17, 2017 version of Form I-9 for employment eligibility verification for new hires.
The U.S. Citizenship and Immigration Services (USCIS) made a few revisions on the July 17, 2017 version of the I-9 Form. Employers can now accept an individual's Consular Report of Birth Abroad (Form FS-240) as an acceptable document for employment authorization under List C. The instructions for the new form also reflect the name change for the office that enforces anti-discrimination provisions of the Immigration and Nationality Act. The office is now called the Immigrant and Employee Rights Section, which replaces the previous Office of Special Counsel for Immigration-Related Unfair Employment Practices.
Beginning January 22, 2017, employers must use a new version of Form I-9 for employment eligibility verification of new hires. The U.S. Citizenship and Immigration Services (USCIS) revised Form I-9 last November and gave employers a short grace period for making the conversion to the new form, dated 11/14/16. The new form is available on the USCIS website at https://www.uscis.gov/i-9.
Employers will notice several improvements to the new I-9:
- The instructions are now separate from the form and include specific guidance on each section.
- The form is much more computer-friendly, with drop-down lists, calendars, on screen prompts and instructions for each field, a "start over" button and easy access to full instructions.
- The employer may now list more than one preparer and translator who assisted in completion of the form.
- In the first section, the employer must list only "other last names used" rather than "other names used."
- A new "additional information" box provides space for the employer to note important information for the employer's purposes such as additional documents presented, employee termination dates or form retention dates.
Employers must complete a Form I-9 to verify the identity and employment authorization of every individual hired for employment. For more information, see our previous post on Form I-9, and visit the USCIS's "I-9 Central" at https://www.uscis.gov/i-9-central.
A recent decision by the Ohio Court of Appeals examines the issue of employer liability for a worker’s harmful acts. The Twelfth District Court of Appeals clarified when an employer could be liable for injuries caused by a worker’s violent behavior, whether the worker is an independent contractor or an employee.
Worker’s violent behavior leads to a lawsuit
The Spurlocks hired Mr. Hogeback to perform carpentry worker when renovating their farmhouse into a bed and breakfast. While working for the Spurlocks, Hogeback got into an altercation with an employee of a construction company that was also performing work on the Spurlock property. Mr. Jackson, who was visiting the site to inquire about work, stepped in to prevent the fight and was injured by Hogeback.
Jackson brought suit against Hogeback and also against the Spurlocks and their business, alleging assault and battery, negligence, vicarious liability and negligent hiring, supervision and retention. A jury ruled in Jackson’s favor for the claims against Hogeback, but the Butler County Court of Common Pleas granted Spurlocks’ request to release all claims against them and not allow the claims to be decided by the jury.
The case goes to the Court of Appeals
Jackson appealed the trial court’s decision in regards to the Spurlocks, arguing on appeal that the Spurlocks were vicariously responsible for Hogeback’s actions as their employee and also that the Spurlocks were directly liable for failing to exercise reasonable care in controlling Hogeback and for negligent hiring, supervision and retention of Hogeback.
The Twelfth District Court of Appeals reviewed the decision to determine whether the trial court had properly relieved the Spurlocks from liability. The court quickly narrowed its focus to the claim of negligent hiring, supervision and retention, holding that the trial court was correct in regards to all other claims against the Spurlocks.
Liability for negligent hiring, supervision and retention
A claim of negligent hiring, supervision and retention can create liability for selecting or allowing a person to work when the employer knows or should have known of the hired individual's violent or dangerous propensities. Under this theory, Jackson had to show that the Spurlocks knew or should have known of Hogeback’s violent propensities and should have foreseen the assault on Jackson.
The court of appeals dispensed with the Spurlocks’ arguments that they should not be liable under this claim because Hogeback was an independent contractor rather than an employee. Liability for negligent hiring, supervision and retention can arise regardless of whether the assailant is an employee or an independent contractor, said the court.
According to the court of appeals, a review of the court record showed that Jackson had presented evidence that the Spurlocks may have had knowledge of Hogeback’s propensity to use physical violence. Testimony that Mrs. Spurlock had stated "this has happened before," and "oh, no, not again" when she learned of the fight; that workers had complained to the Spurlocks about Hogeback’s “aggressive and rude behavior”; and that Mrs. Spurlock had attempted to arrange for the workers who complained about Hogeback to be on the property when Hogeback would not be there all pointed to a possibility that the Spurlocks may have known of and anticipated problems from Hogeback’s dangerous propensities. Given this evidence, the court of appeals concluded that the common pleas judge should have allowed the jury to render a verdict on the issue.
The court of appeals sent the case back to the common pleas court for further proceedings to determine whether there was sufficient evidence on the issue of negligent hiring, supervision and retention.
Implications for employers
We state as a general rule that employers are not usually liable for intentional, harmful acts of an employee when those acts are outside of the employee’s work responsibilities. The Hogeback v Jackson case is a reminder of exceptions to the general rule:
- A successful claim of negligent hiring, supervision and retention can result in employer liability for a worker’s bad acts, which requires proof that an employer knew or should have known about the worker’s dangerous propensities and it was foreseeable that the worker’s behaviors could lead to harm.
- Negligent hiring, supervision and retention can apply even if an independent contractor, rather than an employee, commits the harmful acts.
Employers can reduce this risk of liability by using practices and policies to help prevent the hiring and retention of a person who poses risks of harm to others:
Investigation into a potential employee or independent contractor’s background through these tools:
- Job applications that request detailed information about previous employment, reasons for leaving a job, and employer contact information.
- Reference checks with previous employers and other references.
- Background checks. See the Ohio Attorney General’s information about conducting a background check.
- Drug tests. Ohio law allows for private companies to conduct drug testing on a non-discriminatory basis. The Ohio Bureau of Workers’ Compensation offers a Drug-Free Safety Program for eligible employers.
Detection of and reaction to worker behaviors:
- Monitoring for incidents of unusual, violent or dangerous behaviors.
- Encouraging employees to report dangerous behaviors in other workers.
- Policies for corrective actions to take, including termination, upon awareness of dangerous behaviors.
- Prompt enforcement of all practices and policies.
Read the Court of Appeals decision in the Jackson v. Hogeback case here.
Peggy Hall and Catharine Daniels, OSUE Agricultural & Resource Law Program
It's hay and straw season in Ohio, which creates both a high need to employ youth on the farm and the challenging task of understanding farm youth labor laws.
For example, imagine Farmer X is getting ready to cut hay and has hired Youth Y to help, who is 14 years old. What exactly can Youth Y help with? Can he drive the tractor? Can he ride on the tractor? Does it make a difference whether Youth Y is the son, daughter or grandchild of Farmer X? Are there implications for allowing Youth X to perform farm work that he or she shouldn’t perform?
These questions are important to consider before hiring minors to work on your farm this summer. In a series of blog posts, we will discuss various aspects of federal and state regulations applying to minors working on farms. First up in this post is the issue of what type of work the law allows you to assign to youth workers on the farm.
The relationship of the minor you are hiring is important because the law treats your own children and grandchildren differently than non-related children working on your farm. If the minor you hire is your own child or grandchild, the law allows you to have the child do any type of job, including agricultural jobs considered "hazardous" under state and federal labor laws. Step children, adopted children, foster children and other children for whom you are the guardian are also exempt from the hazardous jobs regulation.
For other children, age matters
For other youth who are not your own child or grandchild, the type of work you may assign the child depends upon his or her age. "Other children" includes strangers, students, neighborhood children, friends, nieces, nephews and any other relatives. Only the older youth may perform "hazardous" farm work, as follows:
- 16 and 17 year olds – May perform any type of farm job including agricultural jobs considered hazardous.
- 14 and 15 year olds – May not perform any job listed as hazardous unless the child holds a 4-H or vocational agriculture certificate of completion for tractor operation or machine operation and the employer keeps a copy of the certificate on file with the minor employee's record.
- 12 and 13 year olds – May not perform any job listed as hazardous; may only perform non-hazardous jobs if with written consent for employment from a parent or guardian or if the child is working on a farm that also employs the child's parent or guardian.
- 11 year olds and younger – May not perform hazardous jobs. May only perform non-hazardous farm work if a parent or guardian gives written consent and if the child will be working on a farm where employees are exempt from minimum wage requirements. A farm is exempt from minimum wage if the farm had 500 or fewer man-days of agricultural labor in the preceding calendar year; a man-day is any day where a worker performs at least one hour of agricultural labor.
What jobs are "hazardous"?
Ohio has adopted the federal government's determination of "hazardous" activities for youth, which is based upon the risk of harm posed by an activity. Your own child or grandchild may perform hazardous tasks at any age, but other youth working on the farm must be at least 16 years of age to participate in these "hazardous" tasks:
- Operating a tractor with over 20 PTO horsepower, or connecting or disconnecting an implement or any of its parts to or from such tractor.
- Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines: 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.
- Working on a farm 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.
- Felling, bucking, skidding, loading, or unloading timber with a butt diameter of more than 6 inches.
- Working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a height of over 20 feet.
- Driving a bus, truck or automobile when transporting passengers or riding on a tractor as a passenger or helper.
- 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.
- Handling or applying (including cleaning or decontaminating equipment, disposal or return of empty containers, or serving as a flagman for aircraft applying) agricultural chemicals classified under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135 et seq.) as Category I of toxicity, identified by the word “poison” and the “skull and crossbones” on the label or Category II of toxicity, identified by the word “warning” on the label.
- Handling or using a blasting agent, including but not limited to dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord.
- Transporting, transferring or applying anhydrous ammonia.
Going back to our example of Farmer X and Youth Y, if Youth Y is Farmer X’s child or grandchild, then the child would be permitted to drive the tractor to cut the hay because the hazardous restrictions do not apply. However, if Youth Y is not Farmer’s X’s child or grandchild, then he would not be permitted to drive the tractor because it is considered a hazardous job that 14 year olds may not perform, unless Youth Y holds a 4-H or vocational agriculture certificate of completion for tractor operation.
What if I violate the "hazardous" jobs regulations?
Under Ohio law, you can be found guilty of a third degree misdemeanor for allowing a minor under the age of 16 to perform a hazardous job on your farm; penalties are up to a $500 fine and 60 days in jail for each violation. Additionally, if the child is injured while engaged in an illegal hazardous activity, you could be assessed with an increased workers' compensation premium.
How can I comply with the law? To ensure that you don't violate the labor regulations on hazardous jobs for youth, take a few precautions to protect both you and your child employee:
- Verify the child's age and keep records of your verification.
- Know the list of agricultural work that is considered hazardous.
- Remember that only your children or grandchildren are exempt from the hazardous jobs regulation; consider nieces, nephews, cousins and other relatives as "other children" who are subject to the hazardous jobs rules.
- Ensure that your child employees know which jobs they may do and which jobs they may not perform.
- Review safety practices with your youth employees.
- For 14 and 15 year olds who have completed a 4-H or vocational agriculture tractor or machinery operation certificate, maintain a copy of the certificate with the employee's records.
Catharine Daniels, Attorney, OSUE Extension Agricultural & Resource Law Program
With the arrival of spring, many agricultural businesses may be looking to hire additional employees. Before putting those new employees to work, employers should take time to ensure a "legal" workforce. One important step is following the Form I-9 Employment Eligibility Verification process. And with the recent release of a new Form I-9, close attention to Form I-9 compliance is extremely important.
What is the purpose of Form I-9? The form aims to verify the identity and employment of every person hired to perform labor or services in return for wages or for anything of value that is given in exchange for labor or services, including food and lodging.
Why worry about Form I-9? Because correct completion of Form I-9 is both a legal mandate and a legal defense. Federal law requires every employer to complete an I-9 form upon hiring an employee. Filling out the form is not optional. Even if the employer knows the new employee, knows of the employee or knows the employee's family--the employer must do a Form I-9 for the employee. Once properly completed, a Form I-9 is the employer's defense against a potential claim of knowingly employing an unauthorized worker.
How does an employer complete Form I-9? Form I-9 compliance requires completion of three sections, as follows:
- Employers must have every newly hired employee complete Section 1 of the form no later than the first day of work for pay. Section 1 requests personal employee information such as name, address, e-mail, phone number, date of birth and social security number and requires the employee to attest to his or her citizenship status.
- No later than the third day of employment, the employer must complete and sign Section 2 of the form. Section 2 requires the employer to physically examine documentation presented by the employee showing identity and employment authorization. There are three lists of acceptable documents; employees may present one document from List A or a combination of one document from List B and one document from List C. Examples of documents include U.S. passports, driver's licenses, social security cards and employment authorization from the Department of Homeland Security.
- Section 3 applies to re-verification and rehires. An employer must complete Section 3 only if the employee is not a U.S. citizen or lawful permanent resident and his or her employment authorization documentation has expired. An employer may complete Section 3 for employees rehired within three years of the date that a Form I-9 was originally completed, or the employer may choose to complete a new Form I-9 for the rehired employee.
What does an employer do with completed I-9 forms? An employer must keep all completed I-9 forms for all current employees and make the forms available to federal officials in the event of an inspection. An employer must keep I-9 records for a certain period of time after employees stop working. This period of time varies; the government provides a chart to help employers identify the appropriate period of time.
Are there penalties for non-compliance? Yes. An employee may be subject to civil penalties for failing to properly complete, retain or make the I-9 forms available for inspection.
When is the new Form I-9 effective? On March 8, 2013, a new Form I-9 was released with revisions. The revised Form I-9 is now two pages long, includes expanded instructions, and has new fields for e-mail addresses, phone number, and foreign passport. Employers should be using this revised form now, but may continue to use the previous Form I-9 until May 7, 2013.
The importance of document inspection. To avoid liability, the employer should properly inspect the employee's documents. The documents must reasonably appear to be genuine and relate to the person presenting them. The employer's duty is to verify the documentation; the job of fully "investigating" whether the employee is authorized to work rests with U.S. Immigration Customs Enforcement. If an employee provides a document that does not appear to be genuine or relate to the employee and the employee cannot present other documentation, then the employer may terminate employment.
Avoiding discrimination liability. Employers should make sure they do not engage in any discriminatory practices when it comes to the Form I-9. At the pre-hire stage, an employer may not ask an applicant their citizenship, nationality, immigration status, type of work authorization, or green card status. After hiring the employee, an employer may not request a particular document for the employee to provide to complete the Form I-9; it is the employee’s decision as to what documents they will provide. An employer also may not request more documents than what are required by Form I-9. Such actions by the employer might result in a discrimination claim.
For complete information about I-9 compliance, check out the "Handbook for Employers - Guidance for Completing Form I-9" on the U.S Citizenship and Immigration Services I-9 Central website.