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Young girl driving a lawn mower
By: Peggy Kirk Hall, Monday, June 14th, 2021

Written by Peggy Kirk Hall and Jeffrey K. Lewis

School is out and youth employment is in.  As more and more youth turn to the job market during summer break, now is a good time to review the laws that apply to youth working in agricultural situations.  Here’s a quick refresher that can help you comply with youth employment laws.  For additional details and explanation, refer to our law bulletin on “Youth Labor on the Farm: Laws Farmers Need to Know.

  1. The agricultural “exemption” applies only to your children and grandchildren.  Many farmers know that there are unique exemptions for agricultural employers when it comes to employment law.  Youth employment is no different.  In Ohio, youth employment laws do not apply to children working on a farm owned or operated by their parent, grandparent, or legal guardian.   This means that your children, grandchildren, and legal guardianship children working on farms you own or operate may perform tasks that are considered “hazardous,” receive a wage less than federal and state minimum wage and work longer hours.  Keep in mind that this exemption does not apply to youth who are your cousins, nieces, nephews, and other extended family members—those family members are subject to youth employment laws. 
  2. Lawn mowing and similar tasks are special.  Ohio Revised Code § 4109.06(9) explicitly states that youth engaged in “lawn mowing, snow shoveling, and other related employment” are not subject to Ohio’s youth employment laws.  This means that farms may hire youth to mow the grass and do similar tasks around the farm without having to comply with labor laws regarding working hours and wage requirements. 
  3. Treat youth like adults for verification, workers compensation and taxes.  The law doesn’t deal with youth uniquely when it comes to Form I-9 employment verification, workers compensation coverage, and withholding taxes.  A farm employer must complete these same requirements for youth employees.
  4. Don’t start them too young.  Minimum working age is a tricky area of law.  Federal law allows youth under the age of 14 to be employed as long as certain requirements are met, such as having written parental consent and limiting work hours and tasks.  States may preempt federal law by being more restrictive.  Ohio law, however, doesn’t address youth under 14 and doesn’t explicitly permit or prohibit them from being employed.  Be aware that the Ohio Department of Commerce has stated that it interprets this silence in Ohio law as a prohibition against employing youth under 14.  This creates a compliance risk for employers who want to employ a youth under 14, as Ohio may deem that a violation of state law.  Before hiring youth under 14 for jobs other than the specifically exempted tasks of lawn mowing, snow shoveling or similar work, consult with your attorney.
  5. Keep younger youth away from “hazardous” jobs.  State and federal laws are clear on this point:  youth under the age of 16 cannot perform “hazardous” tasks.  This restriction includes operating heavy machinery with moving parts, working inside silos and manure pits, handling toxic chemicals, working with breeding livestock, sows and newborn calves, and other dangerous tasks.  An exception is that 14- and 15-year-olds may operate tractors and other machinery if they have a valid 4-H or vocational agricultural certificate of completion for safe tractor and machine operation.  See the complete list of prohibited hazardous tasks in our law bulletin on “Youth Labor on the Farm: Laws Farmers Need to Know.” 
  6. Don’t make them work too early or too late.  During the summer months, youth between 16 and 18 years of age may work as early or as late as needed.  Youth under the age of 16, however, may not start work before 7 am or work past 9 pm.
  7. Give the kids a break.  If youth are working longer hours, you must give them a break from working.  All youth under the age of 18 must receive a 30-minute break for every 5 hours worked.
  8. Know how much to pay.  If a farm grossed less than $323,000 in 2020, the employer must pay employees the federal minimum wage of $7.25 per hour. If the farm grossed more than $323,000 then the employer must pay employees the Ohio minimum wage of $80.  Two exemptions allow a farmer to pay less than both the federal and state minimum wage to youth.  If the farm is owned or operated by a youth’s parent, grandparent, or legal guardian the minimum wage requirements do not apply.  Second, if the farm is a “small farm,” which means that the farm did not use more than 500 man-days of agricultural labor during any calendar quarter of the preceding year, then the farm is not required to pay the federal or state minimum wage to any youth employed on the farm.  
  9. Sign a wage agreement.  This requirement catches many employers off guard.  Ohio law requires that before any youth can begin work, the youth and the employer must sign a wage agreement.  Be sure to keep this signed agreement with the youth’s employment records.  A sample wage agreement from the Ohio Department of Commerce is available here
  10. Do your recordkeeping.  Just as you would with other employees, maintain a file on each of your youth employees.    The file should include the youth’s full name, permanent address, and date of birth, the youth’s wage agreement, and any 4-H or vocational agricultural certificates.  Also keep time slips, payroll records, parental consent forms, and name and contact information of youth’s parent or legal guardian.

Summer is a hot time to employ our youth and school them about farming and farm-related businesses.  But don’t let legal compliance ruin your summer fun.  If you have youth working on the farm and have concerns about any of the items in this quick overview, be sure to talk with your attorney.  Doing so will ensure that the summer job is a good experience for both you and your young employees.

 

Close up of beef cow.
By: Jeffrey K. Lewis, Friday, June 04th, 2021

As planting season draws to a close, new agricultural issues are sprouting up across the country.  This edition of the Ag Law Harvest brings you federal court cases, international commodity news, and new program benefits affecting the agriculture industry. 

Pork processing plants told to hold their horses.  The USDA’s Food Safety and Inspection Service (“FSIS”) is not going to appeal a federal court’s ruling that requires the nation’s hog processing facilities to operate at slower line speeds.  On March 31, 2021, a federal judge in Minnesota vacated a portion of the USDA’s 2019 “New Swine Slaughter Inspection System” that eliminated evisceration line speed limits.  The court held that the USDA had violated the Administrative Procedure Act when it failed to take into consideration the impact the new rule would have on the health and safety of plant workers.  The court, however, only vacated the provisions of the new rule relating to line speeds, all other provisions of the rule were not affected.  Proponents of the new rule claim that the rule was well researched and was years in the making.  Further, proponents argue that worker safety was taken into consideration before adopting the rule and that the court’s decision will cost the pork industry millions.  The federal court stayed the order for 90 days to give the USDA and impacted plants time to adjust to the ruling.  All affected entities should prepare to revert to a maximum line speed of 1,106 head per hour starting June 30, 2021. 

Beef under (cyber)attack.  Over the Memorial Day weekend, JBS SA, the largest meat producer globally, was forced to shut down all of its U.S. beef plants which is responsible for nearly 25% of the American beef market.  JBS plants in Australia and Canada were also affected.  The reason for the shut down?  Over the weekend, JBS’ computer networks were infiltrated by unknown ransomware.  The USDA released a statement showing its commitment to working with JBS, the White House, Department of Homeland Security, and others to monitor the situation.  The ransomware attack comes on the heels of the Colonial Pipeline cyber-attack, leading many to wonder who is next.  As part of its effort, the USDA has been in touch with meat processors across the country to ensure they are aware of the situation and asking them to accommodate additional capacity, if possible.  The impact of the cyber-attack may include a supply chain shortage in the United States, a hike in beef prices at the grocery store, and a renewed push to regulate other U.S. industries to prevent future cyber-attacks. 

Texas has a new tool to help combat feral hogs.  Texas Agriculture Commissioner, Sid Miller, announced a new tool in their war against feral hogs within the state.  HogStop, a new hog contraceptive bait enters the market this week.  HogStop is being released in hopes of curbing the growth of the feral hog population.  According to recent reports, the feral hog population in Texas has grown to over 2.6 million.  It is estimated that the feral hogs in Texas have been responsible for $52 million in damage.  HogStop is an all-natural contraceptive bait that targets the male hog’s ability to reproduce.  HogStop is considered a 25(b) pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which allows Texas to use it without registering the product.  Commissioner Miller thinks HogStop is a more humane way to curb the feral hog population in Texas and hopes that it is the answer to controlling the impact that feral hogs have on farmers and ranchers.  More information about HogStop can be found at their website at www.hogstop.com

USDA announces premium benefit for cover crops.  Most farmers who have coverage under a crop insurance policy are eligible for a premium benefit from the USDA if they planted cover crops this spring.  The USDA’s Risk Management Agency (“RMA”) announced that producers who insured their spring crop and planted a qualifying cover crop during the 2021 crop year are eligible for a $5 per acre premium benefit.  However, farmers cannot receive more than the amount of their insurance premium owed.  Certain policies are not eligible for the benefit because those policies have underlying coverage that already receive the benefit or are not designed to be reported in a manner consistent with the Report of Acreage form (FSA-578).  All cover crops reportable to the Farm Service Agency (“FSA”) including, cereals and other grasses, legumes, brassicas and other non-legume broadleaves, and mixtures of two or more cover crop species planted at the same time, are eligible for the benefit.  To receive the benefit, farmers must file a Report of Acreage form (FSA-578) for cover crops with the FSA by June 15, 2021.  To file the form, farmers must contact and make an appointment with their local USDA Service Center.  More information can be found at https://www.farmers.gov/pandemic-assistance/cover-crops.

Federal court vacates prior administration’s small refinery exemptions.  The Tenth Circuit Court of Appeals issued an order vacating the EPA’s January 2021 small refinery exemptions issued under the Trump administration and sent the case back to the EPA for further proceedings that are consistent with the Tenth Circuit’s holding in Renewable Fuels Association v. EPA.  The Tenth Circuit held that the EPA may only grant a small refinery exemption if “disproportionate economic hardship” is caused by complying with Renewable Fuel Standards. The EPA admitted that such economic hardship may not have existed with a few of the exemptions granted and asked the court to send the case back to them for further review.  The order granted by the Tenth Circuit acknowledged the agency’s concession and noted that the EPA’s motion to vacate was unopposed by the plaintiff refineries.  

Michigan dairy farm penalized for National Pollutant Discharge Elimination System violations.  A federal district court in Michigan issued a decision affirming a consent decree between a Michigan dairy farm and the EPA.  According to the complaint, the dairy farm failed to comply with two National Pollutant Discharge Elimination System (“NPDES”) permits issued under Section 402 of the Clean Water Act.  The violations include improper discharges, deficient maintenance and operation of waste storage facilities, failing to report discharges, failing to abide by its NPDES land application requirements, and incomplete recordkeeping.  The farm is required to pay a penalty of $33,750, assess and remedy its waste storage facilities, and implement proper land application and reporting procedures.  The farm also faces potential penalties for failing to implement any remedial measures in a timely fashion.  

Crop sprayer on farm field
By: Peggy Kirk Hall, Wednesday, June 02nd, 2021

It’s been a busy spring for legal developments in pesticides and insecticides.  Our last article summarized recent activity surrounding dicamba products.  In today’s post we cover legal activity on glyphosate and chlorpyrifos.   

Roundup award.  The Ninth Circuit Court of Appeals dealt another loss to Monsanto (now Bayer) on May 14, 2021, when the court upheld a $25.3 million award against the company in Hardeman v. Monsanto.   The lower court’s decision awarded damages for personal injuries to plaintiff Edward Hardeman due to Monsanto’s knowledge and failure to warn him of the risk of non-Hodgkin lymphoma from Roundup exposure.  Monsanto argued unsuccessfully that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted the plaintiff’s claim that California’s Proposition 65 law required Monsanto to include a warning about Roundup’s carcinogenic risks on its label.  That requirement, according to Monsanto, conflicted with FIFRA because the EPA had determined via a letter that a cancer warning would be considered “false and misleading” under FIFRA. The Ninth Circuit disagreed that the EPA letter preempted the California requirements.

The Court of Appeals also held that the trial court did not abuse its discretion in allowing the plaintiff’s expert testimony.  Monsanto had challenged testimony from a pathologist whom it alleged was not qualified to speak as an expert.  But the court agreed that the witness testimony met the standard that expert opinions be “reliably based” on epidemiological evidence.

Monsanto also challenged the damages themselves.  The award in Hardeman included $20 million in punitive damages that the district court reduced from $75 million originally awarded by the jury.  While $75 million seemed “grossly excessive,” the appellate court reasoned, $20 million did not, especially considering Monsanto’s reprehensibility, because evidence of the carcinogenic risk of glyphosate was knowable by Monsanto. 

Roundup settlement.  In a second Roundup case, a California district court last week rejected a motion to approve a $2 billion settlement by Monsanto (now Bayer) to a proposed class of users exposed to Roundup or diagnosed with non-Hodgkin lymphoma who have not yet filed lawsuits.  The offer by Bayer in Ramirez, et al. v. Monsanto Co. included legal services, compensation, research and assistance with non-Hodgkin lymphoma diagnosis and treatment, and changes on the Roundup label advising users of a link to non-Hodgkin lymphoma, but would require class members to waive their right to sue for punitive damages if they contract non-Hodgkin lymphoma and stipulate to the opinion of a seven-member science panel about whether Roundup causes non-Hodgkin lymphoma. 

The judge determined that the settlement would accomplish a lot for Bayer by reducing its litigation and settlement exposure, but it would greatly diminish the future settlement value of claims and “would accomplish far less for the Roundup users who have not been diagnosed with NHL (non-Hodgkin lymphoma)—and not nearly as much as the attorneys pushing this deal contend.”   The court also determined that the benefits of the medical assistance and compensation components of the settlement, to last for four years, were greatly exaggerated and vastly overstated.  The proposed stipulation to a science panel also received the court’s criticism. “The reason Monsanto wants a science panel so badly is that the company has lost the “battle of the experts” in three trials,” the court stated.  Concluding that “mere tweaks cannot salvage the agreement,” the court denied the motion for preliminary approval and advised that a new motion would be required if the parties could reach a settlement that reasonably protects the interest of Roundup users not yet diagnosed with non-Hodgkin lymphoma.

Bayer responded to the court’s rejection immediately with a “five-point plan to effectively address potential future Roundup claims.”  The plan includes a new website with scientific studies relevant to Roundup safety; engaging partners to discuss the future of glyphosate-based producers in the U.S. lawn and garden market; alternative solutions for addressing Roundup claims including the possible use of an independent scientific advisory panel; reassessment of ongoing efforts to settle existing claims; and continuing current cases on appeal.

Chlorpyrifos.  The insecticide chlorpyrifos also had its share of legal attention this spring. Chlorpyrifos was first registered back in 1965 by Dow Chemical but its use has dropped somewhat since then. Its largest producer now is Corteva, who announced in 2020 that it would end production of its Lorsban chlorpyrifos product in 2021.  That’s good timing according to the strongly worded decision from the Ninth Circuit Court of Appeals, which ruled in late April that the EPA must either revoke or modify all food residue tolerances for chlorpyrifos within sixty days. 

The plaintiffs in the case of League of United Latin American Citizens v. Regan originally requested a review of the tolerances in 2007 based on the Federal Food, Drug and Cosmetic Act (FFDCA), which addresses pesticide residues in or on a food.  FFDCA requires EPA to establish or continue a tolerance level for food pesticide residues only if the tolerance is safe and must modify or rescind a tolerance level that is not safe.  Plaintiffs claimed the tolerances for chlorpyrifos are not safe based upon evidence of neurotoxic effects of the pesticide on children.  They asked the EPA to modify or rescind the tolerances.  The EPA denied the request, although that decision came ten years later in 2017 after the agency repeatedly refused to make a decision on the safety of the product.  The Obama Administration had announced that it would ban chlorpyrifos, but the Trump Administration reversed that decision in 2017.

Plaintiffs objected to the EPA’s decision not to change or revoke chlorpyrifos tolerance, arguing that the agency should have first made a scientific finding on the safety of the product.  The EPA again rejected the argument, which led to the Ninth Circuit’s recent review.  The Ninth Circuit concluded that the EPA had wrongfully denied the petition, as it contained sufficient evidence indicating that a review of the chlorpyrifos tolerance levels was necessary.  The EPA’s denial of the petition for review was “arbitrary and capricious,” according to the court.  “The EPA has sought to evade, through one delaying tactic after another, its plain statutory duties,” the court stated. 

More to come.  While the spring held many legal developments in pesticide law, the rest of the year will see more decisions.  The Roundup litigation is far from over, and the same can be said for dicamba.  How will the EPA under the new administration handle pesticide review and registration, and the court's order to address chlorpyrifos tolerances?  Watch here for these and other legal issues with pesticides that will outlive the spring.

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Equipment spraying pesticides or herbicides on farm field
By: Peggy Kirk Hall, Tuesday, June 01st, 2021

Spring is a common time for farmers to deal with pesticides and insecticides, but this spring the legal system has also been busy with pesticides and insecticides.  Important legal developments with dicamba, glyphosate, and chlorpyrifos raise questions about the future of the products, with proponents on both sides pushing for and against their continued use.  In today’s post, we summarize legal activity concerning dicamba.  Part 2 to this series will cover recent developments with Roundup.

Dicamba registration lawsuits.  In April, the federal courts resumed two cases filed late last year that challenge the registration and label of dicamba products made by Bayer, BSF and Syngenta.   The cases had been on hold since February due to the change to the Biden Administration and its EPA leadership.   Center for Biological Diversity v. EPA, in federal district court in Arizona, claims that the 2020 registration of the products should not have been granted because the registration fails to meet the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) standard that a pesticide may not cause “unreasonable adverse effects” to the environment. Relief requested by the plaintiffs includes overturning the registration approvals and also ordering EPA to officially reverse via rulemaking its long-standing policy to allow states to impose local restrictions on pesticide registrations under FIFRA’s Section 24(C).   

In the D.C. district court, American Soybean Association v EPA takes the opposite approach and argues that the EPA exceeded its duties under FIFRA by imposing application cutoff dates of June 30 for soybeans and July 30 for cotton and establishing 310-foot and 240-foot buffer zones for certain endangered species.  The plaintiffs in that suit want the court to remove the cutoff dates and buffer restrictions from the approved dicamba labels.  Manufacturers Bayer, BASF, and Syngenta have intervened in the cases, which both now await responses from the EPA.

Two additional challenges to the dicamba 2020 label approval were consolidated for review to be heard together by the D.C. Circuit Court of Appeals and now await the court’s decision.  National Family Farm Coalition v. EPA originally filed in the Ninth Circuit Court of Appeals,  argues that EPA failed to support its conclusion of “no unreasonable adverse effects” and did not ensure that endangered species and critical habitat would not be jeopardized by approved dicamba use.  On the flip side, American Soybean Association v. EPA alleges that the 2020 label cutoff dates are too restrictive and buffer requirements are too large, which exceeds the authority granted EPA in FIFRA and the Endangered Species Act.  The EPA has filed a motion to dismiss the cases but the plaintiffs have asked to be returned to the Ninth Circuit. 

Bader Farms Appeal.  The$265 jury verdict awarded last year to Bader Farms, which successfully argued that Monsanto was responsible for harm to its peach farms resulting from dicamba drift, is on appeal before the Eighth Circuit Court of Appeals.  Monsanto filed its brief on appeal in March, arguing that the verdict should be reversed for several reasons:  because the court had not required Bader Farms to prove that Monsanto had manufactured or sold the herbicides responsible for the damages, which could have resulted from third party illegal uses of herbicides; because the damages were based on “speculative lost profits”; and because the $250 million award of punitive damages violated state law in Missouri.

Office of Inspector General Report.  The EPA’s Office of the Inspector General (OIG), also played a role in recent dicamba developments.  The OIG is an independent office within the EPA that audits, investigates and evaluates the EPA.  Just last week, the OIG issued a report on EPA’s decision in 2018 to conditionally register dicamba products, allowing them to be used during the 2019 and 2020 growing seasons.  That decision by EPA ultimately led to a legal challenge by environmental groups, a holding by the Ninth Circuit Court of Appeals that the EPA violated FIFRA in approving the registrations, and a controversial order ceasing use of the dicamba products.  The OIG evaluated the EPA’s registration decision making process for the dicamba registration.  The title to its report, “EPA Deviated from Typical Procedures in Its 2018 Dicamba Pesticide Registration Decision” is telling of the OIG’s conclusions.

OIG determined that EPA had “varied from typical operating procedures” in several ways.  The EPA did not conduct the required internal peer reviews of scientific documents created to support the dicamba decision.  Senior leaders in the EPA’s Office of Chemical Safety and Pollution Prevention were “more involved” in the dicamba decision than in other pesticide registration decisions, resulting in senior-level changes to or omissions from scientific analyses to support policy decisions.  EPA staff were “constrained or muted in sharing their scientific integrity concerns” on the dicamba registrations. The result of these atypical operating procedures by the EPA, according to the OIG, was substantial understatement or lack of acknowledgement of dicamba risks and the eventual decision by the Ninth Circuit to vacate the registrations.

The OIG recommended three actions the EPA should take in response to the report:  requiring senior managers or policy makers to document changes or alterations to scientific opinions, analyses, and conclusions in interim and final pesticide registration decisions along with their basis for changes or alterations; requiring an assistant administrator-level verification statement that Scientific Integrity Policy requirements were reviewed and adhered to during pesticide registration decisions; and conducting annual training for staff and senior managers and policy makers to promote a culture of scientific integrity and affirm commitment to the Scientific Integrity Policy.   The EPA had already taken action on the OIG’s first and third recommendations but has not resolved the second. 

Will the OIG Report affect ongoing litigation on dicamba, or lead to additional lawsuits?  That’s a critical question without an immediate answer, and one to keep an eye on beyond this spring.

To read more about legal issues with dicamba, visit our partner, The National Agricultural Law Center and its excellent series on "The Deal with Dicamba."

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Posted In: Crop Issues, Environmental, Food
Tags: dicamba, EPA, FIFRA, Bader Farms
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