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Turkey looking straight into camera.
By: Jeffrey K. Lewis, Esq., Wednesday, November 24th, 2021

Did you know that female turkeys can lay a fertilized egg without mating?  This process is called parthenogenesis, a type of asexual reproduction that can also occur in other types of animals including invertebrates, fish, and lizards.  In turkeys, this process always produces a male chick.  The likelihood of an embryo from parthenogenesis surviving to chick-hood is small, but possible.  

In this edition of the Ag Law Harvest and in the spirit of Thanksgiving, we are thankful for the opportunity to present to you the newly proposed definition of “waters of the United States”, Kansas’s battle to protect agricultural facilities, and food labeling cases from across the country.  

EPA and Army Corps of Engineers propose rule to establish the definition of “waters of the United States.”  The EPA and Army Corps of Engineers announced proposed rule to return the definition of “waters of the United States” (“WOTUS”) to the pre-2015 definition with a few updates to reflect Supreme Court decisions.  In 2020, the Navigable Waters Protection Rule went into effect and interpreted WOTUS to include: “(1) territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than jurisdictional wetlands).”  On January 20, 2021, President Biden signed Executive Order 13990 directing all executive agencies to review and address any federal regulations that went into effect during the previous administration. After reviewing the Trump Administration’s Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections.  The new rule proposed by the agencies seeks to interpret WOTUS to include: (1) traditional navigable waters; (2) interstate waters; (3) the territorial seas and their adjacent wetlands; (4) most impoundments of WOTUS; (5) tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard of the significant nexus standard; (6) wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and (7) “other waters” that meet either the relatively permanent standard or the significant nexus standard.  The agencies will be taking comment on the proposed rule for 60 days once the rule is published in the Federal Register.  

Kansas Attorney General asks Supreme Court to review Kansas “Ag Gag” Law.  Derek Schmidt, Attorney General of Kansas, has asked the United States Supreme Court to review the Kansas Farm Animal and Field Crop and Research Facilities Protection Act (the “Act”) which criminalizes the unauthorized access to agricultural facilities without consent of the owner of the facility with the intent to damage the business of the facility.  Under the Act, consent is not effective if it is “[i]nduced by force, fraud, deception, duress or threat.”  Earlier this year, the 10th Circuit Court of Appeals found the Kansas law to be unconstitutional by violating the free speech clause in the First Amendment of the United States Constitution and prohibited Kansas from enforcing the Act.  Now, Derek Schmidt has petitioned the Supreme Court to review the Kansas law arguing that the Act does not violate the First Amendment because the Act regulates conduct not speech.  The Attorney General goes on to argue that even if trespass by deception were to be considered a form of speech, it is a form of speech that is not protected by the First Amendment.  The Attorney General reasoned that the Act protects a private property owner’s right to exclude and that the First Amendment does not provide a license to violate a person’s property rights.   

Oklahoma’s meat labeling law on trial.  Earlier this month, the Plant Based Foods Association and the Tofurky Company (“Plaintiffs”) filed an amended complaint challenging Oklahoma’s Meat Consumer Protection Act (the “Act”) alleging that the Act violates the dormant commerce clause, the due process clause, and the supremacy clause of the United States Constitution.  Plaintiffs allege that the Oklahoma law “institutes a protectionist trade barrier” that is contrary to and preempted by federal law.  According to Plaintiffs, the Act “forbids plant-based meat producers from using meat terms unless they include a disclaimer on their product labels in the same type size and prominence to the ‘name of the product’ that their plant-based products are not actually meat derived from animals.”  Plaintiffs argue that the Oklahoma law would require plant-based meat producers to develop Oklahoma specific labels or abandon the Oklahoma market which is essentially interfering with interstate commerce and in violation of established federal law. This case is set for trial in 2022.  But, this is not the first time the Oklahoma law has been challenged on constitutional grounds.  Plant Based Foods Association and Upton’s Naturals Company also filed suit alleging the Oklahoma law violated the First and Fourteenth Amendments of the Constitution.  However, a Federal District Court in Oklahoma denied an injunction to prevent Oklahoma from enforcing the law.  The court found that the disclosure requirement in the Act is reasonably related to Oklahoma’s interest in preventing the confusion or deception of consumers.  The court reasoned that the commercial speech at issue could potentially be misleading to reasonable consumer.  The court argued that “the possibility of deception flowing from the use of meat-related terms for the plant-based products is self-evident from the natural inference a consumer would draw from the meat-related terms used.”  This not the end of the battle for the Oklahoma law, there will likely be appeals to higher courts to help settle the dispute. 

Pepperidge Farm sued over “Golden Butter” cracker label.  Hawa Kamara decided to file a lawsuit against Pepperidge Farm, Inc. after purchasing “Golden Butter” crackers at a local Target store in New York. According to the ingredients list attached to Kamara’s complaint, the crackers were made with butter but also included vegetable oils.  Kamara asserted that the presence of vegetable oils makes the “Golden Butter” packaging misleading and/or deceptive because a reasonable consumer would conclude the crackers were “all or predominantly made with butter.”  A Federal District Court in New York, however, did not find the packaging misleading or deceptive.  The court reasoned that “the packaging accurately indicated that the product contained butter, and the ingredients list confirmed that butter predominated over other oils and fats.”  Further, the court argued that a reasonable consumer could believe the “Golden Butter” labeling described the product’s flavor and not the ingredient proportions.  Ultimately, the court decided to dismiss the case against Pepperidge Farm because Kamara’s complaint did not plausibly allege that the “Golden Butter” packaging materially misrepresented the ingredients in the crackers.  

 

Thank you for reading and we hope that everyone has a happy and safe Thanksgiving!! 

Ohio Statehouse Veteran's Day Parade 2021
By: Peggy Kirk Hall, Thursday, November 18th, 2021

Cannons were firing down at the Statehouse recently in honor of Veteran’s Day and so were a few pieces of legislation.   It’s time to check in with the Ohio legislature for a look at proposals that impact agriculture.  Here’s our summary.

New proposals

S.B. 257– Income tax credit.  Sen. Frank Hoagland (R-Adena) introduced this bill on October 27, 2021.   It proposes a refundable income tax credit of up to $5,000 for qualifying donations of cash, services, real property, and personal property to a township, which must approve the donation.   The bill was referred to the Senate Ways and Means Committee on November 10.

SJR 3 – Constitutional right to hunt and fishSenator Sandra O-Brien (R-Ashtabula) is the primary sponsor of this proposal to amend Ohio’s Constitution introduced in late September.  It proposes a constitutional right for the people of Ohio to hunt, fish and harvest wildlife and to do so using traditional methods, subject only to laws that promote wildlife conservation and management and preserve the future of hunting and fishing.  The proposal also states that hunting and fishing shall be a preferred means of managing and controlling wildlife n Ohio and that the amendment would not limit trespass or property rights laws.  SJR 3 received its second hearing before the Senate Agriculture and Natural Resources Committee on November 16, 2021.  If it passes both the Senate and House, the measure would be placed on the general ballot in November 2022 for a vote by Ohio residents as is the required process for amending the Constitution.

Bills on the move

H.B. 440/S.B. 241– Agricultural Linked Deposit Program.  Part of Ohio Treasurer Robert Sprague’s “Ohio Gains Initiative” is to make revisions to the Agricultural Linked Deposit Program (Ag-LINK) that provides loans to farm operators and agribusinesses at reduced interest rates.  The bills would allow agricultural cooperatives to apply for the loans and would remove the $150,000 loan cap and allow the Treasurer to determine loan limits according to current conditions.  The companion bills received a second hearing in the Senate Financial Institutions and Technology Committee on November 16 and in the House Financial Institutions Committee on November 17.

H.B. 397– Agricultural lease law.  We expected this bill to be reported out of the House Agriculture and Conservation Committee in its fourth hearing on November 17, 2021, but the committee held off on a vote.  The bill would establish a statutory notice of termination date for verbal and written crop leases that don’t address termination.  It would require a landlord who wants to terminate the lease to provide written notice of termination of the next lease period by September 1 of the current lease period.

H.B. 321– Revisions to auction law.  The Ohio Auctioneers Association and Ohio Department of Agriculture collaborated on this bill, which updates Ohio’s laws regarding auctioneer licensing and auction regulation.  The bill removes barriers to entry for new auctioneers by eliminating the apprenticeship requirement replacing it education at approved institution prior to sitting for the auction exam.  It also allows the Ohio Department of Agriculture to have regulatory authority over internet auctions, currently exempt from regulatory oversight and makes changes to auctioneer licensing, testing, and continuing education requirements.  The House Agriculture and Conservation Committee approved the bill on November 17.

H.B. 175 – Deregulate certain ephemeral water featuresThis highly controversial bill that passed the House largely along party lines on September 29, 2021, received its first hearing before the  Senate Agriculture and Natural Resources Committee on October 26, 2021.  The proposal would exclude “ephemeral features” from water pollution control programs and define an “ephemeral feature” as a surface water flowing or pooling only in direct response to precipitation, not including wetlands.  Environmental interests are urging the Senate to drop the bill.

H.B. 95:  Income tax credits for beginning farmers.  In the “bill I’ve reported on the most this year” category, HB 95 is inching steadily forward.  It would allow individuals to be certified as beginning farmers and create two income tax credits, one for owners who sell land and agricultural assets to certified beginning farmers and one for beginning farmers who attend approved financial management programs.  The bill passed the House back in June,  and finally received its first hearing before the Senate Ways and Means Committee on October 26, 2021.

S.B. 47– Overtime pay exceptions.  This proposal passed the Senate September 22, 2021 and had its first hearing before the House Commerce and Labor Committee on October 26, 2021.  It proposes two exceptions from employer overtime pay requirements:  traveling to and from a worksite and preliminary and postliminary tasks performed outside of work hours that are not at the direction of the employer.

S.B. 210– Postnuptial Agreements.  This proposal to allow spouses to voluntarily enter into a “postnuptial” agreement and to amend or terminate a prenuptial agreement passed the Senate on November 16, 2021.  Ohio is one of only four states that does not recognize postnuptial agreements that change a couple’s legal relations, such as inheritance rights, property division, and spousal support.   This bill would change that, and would also allow spouses to voluntarily agree to modify a prenuptial agreement.

Passed legislation

H.B. 215– Business Fairness Act.  A response to COVID-19 closures, the Business Fairness Act would allow a business subject to Department of Health orders to limit or cease operations during a pandemic, epidemic, or bioterrorism event to remain open.  To do so, the business must comply with all safety precautions required for “essential” businesses that are not ordered to close and must not be under an order to limit or cease operations that are based upon circumstances uniquely present at that business.   The measure passed the House on May 6 by a wide margin and passed Senate on November 16, 2021 with a unanimous vote.  It now goes on to Governor DeWine.

 

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Blue sturgeon swimming in river.
By: Jeffrey K. Lewis, Esq., Friday, November 12th, 2021

Did you know that white sturgeon are North America’s largest fish?  The largest white sturgeon on record was caught in 1898 and weighed approximately 1,500 pounds. Sturgeon is the common name for the species of fish that belong to the Acipenseridae family. The largest sturgeon on record was a Beluga sturgeon weighing in at 3,463 pounds and 24 feet long.  Talk about a river monster!  Swimming right along, this edition of the Ag Law Harvest brings you some intriguing election results from across the country, pandemic assistance for organic producers, and a lesson in signatures. 

Maine first state to have “right to food.”  Earlier this month, Maine voters passed the nation’s first “right to food” constitutional amendment.  The referendum asked voters if they favored an amendment to the Maine Constitution “to declare that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing their own nourishment, sustenance, bodily health and well-being.”  Supporters of the new amendment claim that the amendment will ensure the right of citizens to take back control of the food supply from large landowners and giant retailers.  Opponents claim that the new amendment is deceptively vague and is a threat to food safety and animal welfare by encouraging residents to try and raise their own products in their backyards without any knowledge or experience.  The scope and legality of Maine’s new constitutional amendment is surely to be tested and defined by the state’s courts, but until then, Maine citizens are the only ones the in the United States that can claim they have a constitutional right to food.  

New York voters approve constitutional environmental rights amendment.  New Yorkers voted on New York Proposal 2, also known as the “Environmental Rights Amendment.”  The proposal passed with overwhelming support.  The new amendment adds that “[e]ach person shall have a right to clean air and water, and a healthful environment” to the New York constitution.  New York is one of a handful of states to have enacted a “green amendment” in its state constitution.  Proponents of the amendment argue that such an amendment is long overdue while opponents argue that the amendment is too ambiguous and will do New York more harm than good. 

USDA announces pandemic support for certified organic and transitioning operations.  The U.S. Department of Agriculture (“USDA”) announced that it will be providing pandemic assistance to cover certification and education expenses to agricultural producers who are currently certified or to those seeking to become certified.  The USDA will make $20 million available through the Organic and Transitional Education and Certification Program (“OTECP”) as part of the USDA’s Pandemic Assistance for Producers initiative. OTECP funding is provided through the Coronavirus Aid Relief, and Economic Security Act (“CARES Act”).  Producers can apply for expenses paid during the 2020, 2021, and 2022 fiscal years.  For each fiscal year, OTECP will cover 25% of a certified operation’s eligible certification expenses, up to $250 per certification category.  Crop and livestock operations transitioning to organic production may be eligible for 75% of eligible expenses, up to $750 for each year.  Both certified organic operations and transitioning operations are eligible for 75% of eligible registration fees, up to $200, per year for educational events to help operations increase their knowledge of production and marketing practices.  Applications are now open and will be available until January 7, 2022.  Producers can apply through their local Farm Service Agency office.  For more information on OTECP visit https://www.farmers.gov/pandemic-assistance/otecp.    

A signature case.  In 2018 Margaret Byars died intestate survived by her 5 children.  After Byars’s death, one her sons, Keith, revealed that Margaret had allegedly executed a quitclaim deed in 2017 giving her Dayton home to Keith.  The other siblings brought this lawsuit claiming that the deed was invalid and unenforceable because the facts surrounding the execution of the deed seemed a little odd.  In 2017, Margaret was diagnosed with breast cancer and moved into a nursing facility.  Shortly after entering the nursing home, Sophia Johnson, a family friend and the notary on the deed, showed up to notarize the quitclaim deed.  Trial testimony revealed that the quitclaim deed was prepared and executed by a third party.  Margaret did not physically sign the deed herself.  In fact, the trial court noted that the signature looked like the handwriting of the person that prepared the deed and that no one saw Margaret authorize another to sign the deed for her.  Sophia testified that when she showed up to notarize the deed, the deed was already completed and signed.  Sophia also testified that Margaret seemed to intend to transfer the house to Keith and understood the nature and consequences of the deed.  After hearing all the testimony, the trial court concluded that the deed was enforceable, and the house belonged to Keith.  However, on appeal, the Second District Court of Appeals found the deed to be invalid.  The Second District stated that in Ohio a grantor need not actually sign a deed in order to be valid, however, the court concluded that the “signature requirement may be satisfied by another affixing a grantor’s signature on a deed so long as the evidence shows that the grantor comprehend the deed, wanted its execution, and authorized the other to sign it.”  The court concluded that the evidence showed that Margaret comprehended the deed and perhaps even wanted its execution.  But the evidence did not show that Margaret authorized anyone to sign the deed for her.  Because it could not be established that Margaret authorized the preparer or anyone else to sign the deed for her, the Second District court held that that deed was invalid under Ohio law.  This case demonstrates the importance of attorneys and the work they do to make sure all asset transfers and estate planning documents are in compliance with the law to help avoid unnecessary lawsuits and prevent any unintended outcomes.

Help wanted sign in front of truck and corn field.
By: Jeffrey K. Lewis, Esq., Thursday, November 04th, 2021

Over the past few months, we have all heard about the labor shortage affecting American employers in various industries all over the country.  Now is as difficult a time as ever to find employees.  As an agricultural employer, it may be easy to relax some of your established policies and procedures when going through the employee recruitment process, especially while navigating the labor shortage.  But, as an employer, you are obligated to comply with state and federal law regardless of the labor climate.  Below we review a few important concepts to help refresh employers of their obligations under Ohio and federal law when they engage in the recruitment process. 

Walking the fine line of job descriptions.  One of the first thing an employer should do when beginning the recruitment process is to define the job qualifications in order to identify the minimum qualifications an employer is willing to accept in a new employee.  However, some care should be taken in this step.  If an employer has unrealistic expectations, it may make it difficult to fill the position.  Then, out of frustration or urgency, an employer will fill the position with someone that does not meet the stated minimum qualifications.  This creates a problem if an employer ends up hiring an employee that does not meet the minimum qualifications after previously rejecting other applicants with similar qualifications.  Those rejected applicants may have a lawsuit for employment discrimination.  On the other hand, if an employer’s written expectations are too low, an employer may have a difficult time defending its decision to reject an individual who met the stated minimum qualifications while the employer searched for someone who met what the employer was really looking for.  An employer needs to be consistent and stick to its stated qualifications when making employment decisions or risk opening itself up to employment discrimination lawsuits.  

Defining the essential functions of the job is essential.  Creating a comprehensive and detailed job description and a list of job qualifications helps employers narrow its applicant pool and provides a basis to make certain employment decisions.  It also helps employers define the essential functions of a job which helps employers stay compliant with Ohio and federal employment laws.  For example, The American with Disabilities Act (“ADA”) makes it clear that an employer does not need to employ someone who cannot perform the essential functions of the job.  This does not mean that every function performed by an employee is “essential.”  The Equal Employment Opportunity Commission (“EEOC”) makes it clear that marginal functions of the job are not “essential.”  Some of the factors that help determine what functions are essential include: 

  • The employer’s judgment as to which functions are essential; 
  • Written job descriptions prepared before advertising or interviewing applicants; 
  • The amount of time spent on the job performing the function; and 
  • The consequences of not requiring the employee to perform the function.    

Job Applications.  Most employers understand it is unlawful to discriminate against employees or potential employees based on race, religion, sex, national origin, age, or disability.  On job applications, however, employers need to be careful when asking what may seem like innocent questions that relate to things like age, religion, national origin, marital status, children, criminal history, U.S. citizenship, medical history, or disability.  Asking these types of questions may lead to a finding that an employer engaged in a discriminatory practice.  For example, it is permissible to ask if an applicant is legally permitted to work in the United States; it is impermissible to ask where someone was born.  It is permissible to ask if someone is able to perform the essential functions of the job; it is impermissible to ask if someone has any health issues that would prevent them from doing the job.  These are just a couple examples of the types of questions an employer is allowed to ask on an application.  Employers should consult with an attorney to make sure that all questions on an application are compliant with state and federal standards.  

Pre-employment drug and alcohol testing.  There are no laws that prohibit employers from testing its employees for drugs and alcohol.  However, there are laws that regulate the timing of such tests.  To help employers, the ADA separates testing into two categories, “pre-offer” testing and “post-offer” testing.  In the pre-offer stage, an employer may test a potential employee for any illegal drug use but cannot test for alcohol.  Illegal drug use is not protected under the law.  However, employers need to be careful from automatically disregarding all employees that test positive for controlled substances.  A person with chronic back pain may have a perfectly legal reason for having certain substances in their system, especially if they are under a strict pain management program.  Once an employer learns of an employee’s legal justifications for certain controlled substances, an employer cannot use the information as basis to refuse employment, terminate, or discipline an employee.  In the post-offer stage, employers are allowed to test for alcohol.  Testing for alcohol is considered a medical examination, and employers are only allowed to subject their employees to medical examinations once an offer of an employment has been given.  Regardless of which type of testing an employer seeks to use, employers must be consistent in the way they implement such testing.  Testing must be done in a non-discriminatory manner, meaning an employer must make all employees take the same test or forgo any testing at all. 

Background Checks.  Ohio does not prohibit the use of background or credit checks on potential employees.  There are, however, several regulations that relate to employers that use background or credit checks.  First, background and credit checks are subject to the federal Fair Credit Reporting Act (“FCRA”) which requires employers to obtain written consent from the applicant, give the applicant notice of the employer’s intention to reject their application based on the results of the background check, and notify the applicant of any final decision to reject the applicant because of the background check.  Additionally, employers need to be careful about how they handle prior arrests and convictions.  If an employer does decide to reject an application based on any prior arrests or convictions, the employer needs to consider the nature of the job, the nature and severity of the offense, and how much time has passed since the offense.  For example, if a farmer is looking to hire a general farm laborer, a conviction for driving under the influence from 10 years ago may not be sufficient grounds to reject an application.  Unless the position requires the applicant to drive on a consistent basis, the offense may not really be related to the nature of the job.  Furthermore, enough time may have passed that would make it discriminatory to reject an application for this type of offense.  

Interviewing.  Interviews are ripe for potential discrimination claims because they are less structured than applications and insert the “human element.”  When conducting an interview, employers should stick to a script.  A script will help an employer avoid potential discrimination lawsuits and gives the employer the ability to carefully select its interview questions.  When asking questions, an employer is not liable for any information that an applicant willingly provides.  For example, if the questions is “tell me about yourself” and an applicant provides information about a medical condition or their family, an employer cannot be found liable for any discriminatory practices.  An employer cannot, however, use the information to make any employment decisions.  If an applicant is providing too much information, it is best for the employer to quickly move on to the next subject to avoid eliciting any other information that could be used against an employer in a discrimination lawsuit.   

Hiring.  When deciding to choose one applicant over another, employers need to have a fair and equal system in place.  Employers need to be able to point to a specific procedure that demonstrates an employer’s nondiscriminatory reason for choosing on applicant over another.  For example, if one applicant is more qualified than another for a job, it is easy to prove a nondiscriminatory purpose for hiring the more qualified candidate.  If there are two equally qualified candidates, it is even more important to have a nondiscriminatory procedure in place when deciding between the two applicants. For example, an employer could have a policy in place that states if two equally qualified candidates apply for the same position, the candidate that applies first shall be given the job offer.  

New hire reporting.  All employers are required by the U.S. Customs and Immigration Services to verify the identity and employment eligibility of all employees by filing out Form I-9.  Ohio employers are also required by the Ohio Department of Family and Job Services (“ODFJS”) to report the hiring, rehiring, and return to work of paid employees.  The new hire report must be completed within 20 days after the employee is hired or returned to work.  

Conclusion.  In these trying and difficult times, compliance with state and federal regulations may be the last thing on an employer’s mind.  However, these laws are always in effect, regardless of circumstance.  Complying with state and federal laws will only help employers defend any employment decisions and to avoid potential employment discrimination lawsuits. 

References and Resources

Ohio Revised Code Chapter 4112 – Civil Rights Commission

Americans with Disability Act, 42 U.S.C. §§ 12101-12117

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.