The U.S. Department of Labor (DOL) says that it has found a number of inefficiencies in the H-2A temporary agricultural labor visa program, and the department has a solution: change the program’s rules. The DOL has proposed a number of administrative rule changes that it believes will make the approval process move along quicker, relieve burdens on U.S. farms, and create a more level playing field with regards to pay. Before we talk about the rule changes, let’s recap what the H-2A program is.
H-2A is a visa program for seasonal agricultural laborers from other countries.
Labor shortages have plagued farms across the United States for decades. Congress first created a visa program for non-immigrant labor in the early 1950s, but it wasn’t until 1986 that Congress established the H-2A visa program for temporary agricultural workers. Under this program, farmers may apply to employ H-2A workers on their farm on a temporary or seasonal basis for up to a year, but may apply to renew the worker’s visa for up to three total years.
In order to hire H-2A workers, an employer must certify in an application to the DOL that there are not enough qualified domestic workers willing and able to perform temporary and seasonal agricultural labor. In order to prove that there is not enough domestic labor, the farmer must demonstrate an effort to advertise the available work in the local area.
Further, the farmer must demonstrate to the DOL that employing foreign workers will not negatively affect the wages and working conditions of similarly employed U.S. workers. In other words, a farmer can’t hire foreign labor because it’s cheaper. A farmer is expected to pay the foreign workers the same as the farmer would pay domestic workers, based upon the higher of the DOL’s Adverse Effect Wage Rate, minimum wage, or prevailing wage.
What does the Department of Labor seek to change?
The DOL proposes to make several changes to the H-2A program’s administrative rules. Some of these changes update the rules to reflect what is already happening, while some make slight changes to the program’s overall scope.
- Mandate e-filing. The DOL currently allows farmers to submit their applications online or in hard copy, but reports that 4/5 of applications are completed online. A review by the DOL has found that online applications get completed more quickly, have fewer errors, and reduce costs relative to hard copy submissions. Under the new rule, the DOL would require all applications to be completed online, unless the farmer has a disability or does not have internet access.
- Allow e-signatures. The DOL currently requires farmers to sign a hard copy of their applications and either scan the document into the application or mail it. Under the new rule, the DOL would accept e-signatures as equal to handwritten signatures.
- Subdivide the adverse effect wage rate based upon specific agricultural occupations. In the previous section, we noted that the farmer must pay the foreign workers the same as he or she would pay domestic workers. One way to determine that wage is to use the DOL’s Adverse Effect Wage Rate. Currently, the DOL has one rate for a state or region based upon the combined numbers for field and livestock workers. Under the new rule, the DOL would use Farm Labor Survey data to subdivide agricultural occupations in order to ensure that higher paying occupations, such as supervisors of farmworkers and construction laborers on farms, use an Adverse Effect Wage Rate that properly reflects the wages of those higher paying occupations, rather than one general rate for all agricultural workers.
- Update the methodology for calculating prevailing wage standards. Another way to calculate the minimum wages of H-2A laborers is to base their pay off of the prevailing wage. The current method of calculating the prevailing wage, which has not been updated since 1981, requires in-person interviews of employers. Under the new rule, the DOL would eliminate the in-person requirement and allow states to collect data using more modern methods.
- Incorporate guidance letters regarding animal shearing, commercial beekeeping, custom combining, and reforestation occupations into formal rules. When asked for an interpretation of its rules and policies, a federal agency may issue a guidance letter to the person seeking an interpretation. These guidance letters are not necessarily binding, and have no general application beyond the person seeking the interpretation. By incorporating the guidance into a formal rule, the interpretation holds the force of law. The DOL identified these occupations as unique relative to other agricultural occupations, and created a special set of procedures to obtain H-2A laborers to work these types of jobs.
- Expand the definition of “agriculture” to include reforestation and pine straw activities. Currently, reforestation and pine straw occupations are only available for H-2B applications, which are for non-agricultural occupations. Under the new rule, these activities would be eligible for the agricultural based visa.
- Reduce the time an employer must allow a domestic worker to apply for a job to 30 days. Currently, the DOL requires a farmer to hire all eligible, willing, and qualified U.S. workers who make themselves available to work until the half way point in the H2-A contract period. This means that if a farmer has H-2A laborers working under a six-month contract, then the farmer must hire any eligible, willing, and qualified domestic worker during the first three months of the contract. Under the new rule, the farmer would only have to leave such opportunity open to domestic workers for 30 days.
- Allow an employer to stagger the entry of H-2A labor. Sometimes a farmer does not need all of the H-2A labor to arrive at once, but rather needs some to start on one date and then others to start on a different date. Currently, this would require the farmer to submit an application for each date on which the farmer needs H-2A labor. Under the new rule, the farmer would be able to submit one application but stagger the start dates of his or her workers over the course of 120 days. This 120-day clock begins on the day the first H-2A workers enter the U.S.
For more information about the proposed changes, visit the proposed rule’s entry on the Federal Register HERE.
The public may submit comments until September 24, 2019.
As part of the public rulemaking process, the DOL is seeking public input on the proposed rule changes. Members of the public may submit written comments to the DOL until Tuesday, September 24, 2019.
You may submit a comment online (visit https://www.regulations.gov/) or by mail (send to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210). When mailing comments, be sure to include the rule’s Regulatory Information Number (RIN): 1205-AB89.
When kids head back-to-school, it's time for farmers to do some homework and recall the rules that apply to youth working on farms during the school year. Once school is in session, Ohio labor laws place restrictions on the times of day and number of hours that youth under the age of 18 can work on a farm. The laws don’t apply to parents, grandparents, or legal guardians, however. For other farm employers, be aware that the laws vary according to the age of the minor and some require written parental consent. Here’s a quick refresher:
16 and 17 year olds
- Cannot work before 7:00 a.m. on school days, with the exception that they can work starting at 6:00 a.m. if they were not working past 8:00 p.m. the night before.
- Cannot work after 11:00 p.m. on a school night, which means a night when the minor has school the next day.
- No daily or weekly limits on the number of hours the youth can work.
14 and 15 year olds
- Cannot work during school hours while school is in session.
- Cannot work before 7:00 a.m. or after 7:00 p.m., but can work until 9:00 p.m. from June 1 to September 1 or during any school holiday or break lasting more than 5 weekdays.
- Cannot work more than 3 hours during a school day or more than 8 hours during a non-school day.
- Cannot work more than 18 hours in a week while school is in session, unless the job is part of a work education program such as vocational training or work study.
12 and 13 year olds
- The same time restrictions and daily and weekly hour limits for 14 and 15 year olds (above) apply to 12 and 13 year olds, but there is no exception to the 18 hour weekly limit for vocational training or work study programs.
- Employer must obtain written parental consent for the youth to be working, unless the youth’s parent or legal guardian also works on the same farm.
Under 12 years old
- Can only work on a farm where employees are exempt from the federal minimum wage, which includes a farms of an immediate family member or a “small farm” that used fewer than 500 “man days” of agricultural labor in any calendar quarter the preceding year. A “man day” is a day during which an employee performs agricultural work for at least one hour.
- Exception to the above: local youths 10 and 11 may hand harvest short-season crops outside school hours for no more than 8 weeks between June 1 and October 15 if their employers have obtained special waivers from the U.S. Secretary of Labor.
- The same daily time restrictions and daily and weekly hour limits for 14 and 15 year olds (above) apply to youth under 12 years old, but there is no exception to the 18 hour weekly limit for vocational training or work study programs.
- Employer must obtain written parental consent for the youth to be working.
The other labor laws that typically apply to youth doing agricultural work on a farm continue to apply throughout the school year. For example, employers must maintain records for youth employees, provide a written agreement of compensation and a statement of earnings on payday, and a 30 minute rest period if the youth works more than five consecutive hours. An employer can’t assign any youth under the age of 16 with a “hazardous” job or task unless the youth is 14 or 15 and has a certificate of completion for tractor or machine operation. Further information about these and other laws that apply to youth under 18 working on a farm is in our new Law Bulletin, Youth Labor on the Farm: Laws Farmers Need to Know, available here.
August turned out to be a very busy month for food law. We’re again reading headlines about the definition of meat and debates over cage-free egg laws. We’ve also come across some interesting criminal actions involving organic labeling fraud and undocumented workers at poultry processing plants. And yet again we have a Roundup update, but fortunately for Bayer, the target of the latest lawsuits are Home Depot and Lowe’s. So without further ado, here’s our latest gathering of agricultural law news you may want to know:
Tofurkey cries foul against state definitions of meat. The maker of edible vegetarian products designed to replicate the taste and texture of meats is fighting back against state labeling and advertising laws that require products labeled as “meat” to be made of meat. Tofurky filed a lawsuit in federal court in Arkansas to stop the state from enforcing such laws, which is similar to a lawsuit it filed in Missouri and yet another company filed in Mississippi. Livestock advocacy groups succeeded in having 12 states pass laws restricting the ability of food producers to refer to their products as meats if those products contain no meat. Livestock advocacy groups argue that the labeling practices are confusing and misleading to consumers, while companies like Tofurky argue that they have a constitutional right to describe their products with meat terminology. On its website, Tofurky lists beer brats, jumbo hot dogs, “slow roasted chick’n,” “ham style roast,” and more. None of the products contain meat.
Organic food fraud puts farmers in jail. A federal judge sentenced a 60-year-old Missouri farmer to serve 10 years and 2 months in prison after being convicted of wire fraud, which is the federal crime of committing financial fraud through the use of a telecommunications wire across state lines. This includes placing a phone call, sending an email, or advertising online in the furtherance of the fraudulent scheme. Another three farmers were also sentenced to prison for terms ranging from 3 months to 2 years for their participation. The fraud involved a decade-long scheme to mix traditional corn and soybeans with a small amount of organic grains and then label everything as certified organic. The grains were mostly sold as animal feed to producers and companies selling organic meat. Organic products generally are sold at a high premium, and the volume of goods in this scheme resulted in the farmers receiving millions of dollars from consumers that was fraudulently obtained. The lengthy prison sentences reflect the farmers’ intentional misrepresentation and mislabeling. In other words, it was not an accident.
Oregon joins California and Washington to make the west coast cage-free. States continue to battle over whether eggs should come from cage-free hens or caged hens. When we last discussed the topic HERE in May, the governor of the state of Washington had just signed his state’s cage-free requirement into law. Iowa, the nation’s leading egg producing state, has gone the other way in trying to limit cage-free egg production. Now, Oregon is set to ban the purchase or sale of eggs and egg products from caged hens starting in 2024. However, Oregon’s law exempts eggs and egg products from caged hens if the sale occurs at a federally inspected plant under the Egg Products Inspection Act or if the caged hens were at a commercial farm with a flock of fewer than 3,000 hens. You can read the text of the bill HERE.
Immigration and Customs Enforcement raids poultry processing plants. Federal immigration officials have alleged that managers at five Mississippi poultry processing plants knowingly hired undocumented aliens who are not authorized to work in the United States. Fines for individuals or companies proven to have actual knowledge that they hired undocumented workers can reach up to $3,000 per undocumented worker. Individuals may also face prison time. According to news reports, ICE arrested 680 possibly undocumented workers during its August 7th raids in Mississippi. In their applications for the search warrants, the investigators alleged that the companies hired undocumented workers who were wearing GPS ankle monitors as they await deportation hearings, reported Social Security numbers of deceased persons, and used different names at different times.
Latest Roundup lawsuit targets retailers Home Depot and Lowe’s. You’ve heard us talk before about the thousands of lawsuits against Monsanto (now owned by Bayer) based on the allegation that the glyphosate in products like Roundup has caused cancer. If you’d like a refresher, you can review our last post HERE. Now, instead of going after the manufacturer, a new plaintiff is going after retailers. Plaintiff James Weeks filed two class action complaints in federal court in California against Home Depot and Lowe’s, alleging that the home improvement giants failed to adequately warn customers about the safety risks posed by using the popular weed killer. Mr. Weeks argues that the labeling leaves the average consumer with the impression that the greatest risk of harm is eye irritation, when in fact the retailers know of the product’s potential carcinogenic properties. As these complaints are class action complaints, Mr. Weeks seeks to claim representative status over all consumers who purchased Roundup products from these retailers, and thereby lead the case against the retailers. It will be interesting to see whether the court certifies these cases as class actions, or if this strategy falls short for the plaintiff. You can read the complaint against Home Depot HERE.
Food giants seek silence from U.S. Commodity Futures Trading Commission. In 2015, the U.S. Commodity Futures Tradition Commission initiated a lawsuit against Mondelez International Inc. and Kraft Heinz Co. for allegedly manipulating the wheat futures market. All parties recently agreed to an undisclosed settlement, and entered into a consent order with the court to close the matter. The agreement apparently included a provision that all parties would refrain from publically commenting about the settlement. However, the federal agency ended up commenting on the settlement by the end of the week in which the agreement was finalized. Mondelez and Kraft Heinz believe that such statements violated the terms of the consent order, although the federal agency contests the allegation. Nonetheless, the confidentiality restrictions make it difficult to know the full details of the settlement. All we know for certain is that there was one.
Federal courts report that Chapter 12 family farm bankruptcies are on the rise. The federal court system releases data every quarter on the number of bankruptcies filed each month in that quarter. The latest numbers for April to June 2019 showed a slight increase in the number of Chapter 12 bankruptcies filed when compared to the same time period in 2018. Nationwide, there were 164 new filings, compared to 135 in the second quarter of 2018. The numbers show a gradual increase in the use of Chapter 12 bankruptcy since 2013, but the numbers are starting to tick up to levels not seen since the Great Recession. Chapter 12 bankruptcy is a special form of bankruptcy that can only be used by family farmers and family fishermen whose total debts do not exceed a certain dollar limit. The current dollar limit is $4.4 million, but there is legislation awaiting President Trump’s signature to increase the limit to $10 million. In large part because of these restrictions, Chapter 12 is one of the least commonly used forms of bankruptcy.
When you don’t want to move, you don’t want to move. That’s the message being sent to Secretary Perdue and the leadership of the USDA by employees of the USDA Economic Research Service (ERS), who recently voted to unionize 138 to 4.
ERS produces research on agriculture and rural economies that is used by policymakers in determining where to prioritize federal money, personnel, and attention. Many universities and agricultural organizations also utilize the data in their own research. Economists and statisticians make up a large portion of ERS’s staff.
The vote comes after months of tension over the fate of ERS. USDA leaders have been seriously discussing moving the headquarters of ERS closer to the farms and rural areas that it is charged with researching, and away from D.C. Recently the USDA announced that locations in Indiana near Purdue University, in Kansas City, and in North Carolina’s Research Triangle Region have been selected as potential relocation sites. However, many ERS staffers have been vocal about not wanting to move away from D.C., either for personal reasons or to protect the prestige of the office within the USDA.
Further, Secretary Perdue had announced plans last year to place the service directly under the USDA’s chief economist, which would put ERS more directly under the watch of administrators appointed by President Trump. Some staffers have expressed concerns that such a move could increase the pressure to analyze data in a particular way, and reduce the service’s independence.
According to news interviews, as conversations among the higher level administrators became more serious, many ERS employees felt that they did not have much say in the matter. This sense of helplessness triggered many employees to want to unionize, while some employees have already left in pursuit of other jobs.
The right of most federal employees to unionize is protected under federal law, but the preliminary vote was not the final stop in the process. The vote to unionize had to be reviewed by the National Labor Relations Authority, which governs public-sector labor relations. The American Federation of Government Employees (AFGE) has already begun to represent the roughly 200 workers at ERS. AFGE represents approximately 700,000 employees of the federal government and of the District of Columbia, with just under half of those members paying dues. AFGE is affiliated with the AFL-CIO, which is the nation’s largest federation of labor unions.
The formation of a union does not mean that ERS employees will be able to prevent the changes being proposed at the administrative level. However, it increases the likelihood that ERS employees have a seat at the decision table as a united group. This desire to have a united front and collectively bargain is one of the traditional purposes of forming a union.
Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program
The United States Department of Agriculture (USDA) announced last week that farmers.gov will now feature two new tools. One will help farmers navigate the application process for obtaining temporary agricultural workers under H-2A, and the second will help farmers understand and manage their USDA-backed farm loans. The press release explained that the USDA values the experience of its customers, and that it developed these tools after hearing feedback on the need for simple, technology based resources to help farmers. Unveiled in 2018, farmers.gov allows users to apply for USDA programs, process transactions, and manage their accounts.
Customized H-2A checklists based on the needs of an individual farmer
Many farmers need seasonal or temporary workers for planting, cultivating, and harvesting crops. The seasonal nature of agriculture can make it difficult for farmers to find an adequate supply of domestic labor willing to fill the temporary positions. To relieve this difficulty, the federal government created the H-2A temporary agricultural worker program to allow these farmers to hire workers from foreign countries to supplement the domestic labor market on a temporary or seasonal basis. Farmers must demonstrate that there are not enough U.S. workers able, willing, qualified, and available for the temporary work, and that the H-2A workers will not result in reduced wages for other U.S. workers.
Understanding the H-2A process has long been complex and confusing, but a new tool focused on education for smaller producers includes a revamped website and an interactive checklist tool. The new website explains the basics of the program, includes an interactive checklist tool to create custom checklists, and gives an estimate of the costs of hiring H-2A workers.
The interactive checklist tool is a helpful way for producers to learn about the steps they need to take to obtain the labor that they need. In the past, websites would rely heavily on producers to sift through information and determine the requirements that they needed to follow. Now, the interactive tool asks questions one at a time to generate a custom checklist.
When using the tool, producers will first be asked whether this will be their first time hiring workers using the H-2A Visa Program. If the producer answers yes, they will be asked when they need the labor. If the producer answers no to the first question, they will be asked whether they are extending the contract of workers that they are currently employing. Ultimately, the producer will be asked when they need the labor. At the end of the questions, the tool will provide a checklist that the producer will use to determine what steps he or she needs to take to obtain H-2A labor. The checklists are designed to be easy to understand and to make the process less confusing.
View information about your USDA-backed farm loan online
The USDA offers farm ownership and operating loans through the Farm Services Agency to family-size farmers and ranchers who cannot obtain commercial credit. Farmers.gov now allows producers to view information about these USDA-backed farm loans through a secure online account. Producers can view loan information, history, and payments from a desktop computer, tablet, or smartphone. Producers will need to sign up for a USDA online account in order to create an account profile with a password.
At this time, the program only allows producers doing business on their own behalf as individuals to view this information through farmers.gov. Other entities such as LLCs and trusts or producers acting on behalf of another cannot utilize this tool yet, although the USDA indicates that this is planned for in the future.
The USDA’s press release made clear that the addition of these tools represents a step toward providing better customer service and increased transparency. As only a step, producers can expect more tools and features to be added to farmers.gov in the future. As this happens, we will be sure to keep you up to date about the website’s new bells and whistles.
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.