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At recent conferences on agricultural labor, business management, and tax strategy, I’ve heard inspiring stories from producers, advisors, and industry leaders about farm growth, innovation, and bringing new people into farming. These discussions focused on practical steps for long-term success and supporting both new and expanding operations. 

One reoccurring topic, however, surfaced repeatedly and raised some red flags: the use of volunteers on farms. 

While the offer of free help may seem like a win, especially when operating on razor thin margins and time constraints, it can create serious legal and financial risks for farming operations. 

Ohio and federal laws are clear: generally, for-profit businesses cannot rely on volunteers or “free labor.” Even if the individual willingly offers their free time without pay or signs a written agreement stating they expect no compensation, such arrangements do not override the law.  

What the Law Says

The U.S. Department of Labor (“DOL”) enforces the Fair Labor Standards Act (“FLSA”), which establishes key protections including minimum wage, overtime pay, and related standards for workers. 

The FLSA defines “employ” very broadly as “to suffer or permit to work.” This expansive wording is often seen as deliberate, designed to extend coverage to as many workers as possible under the law’s protections. 

That said, the FLSA is clear that genuine volunteers are not employees. However, this volunteer exception applies only under specific circumstances and to certain types of organizations. Individuals may freely donate their time to public service, religious, or non-profit organizations. 

By contrast, the FLSA generally prohibits individuals from providing “volunteer” services to for-profit businesses. The DOL explains that the ultimate goal of a for-profit business is to make a profit and the law will not allow those types of organizations to exploit volunteers, or free labor. 

Non-profit, public service, and religious organizations, on the other hand, are not driven by profit but by a beneficial purpose for the public. For this reason, the law will allow those organizations to utilize volunteers.

There are only narrow circumstances in which a for-profit business may utilize volunteers, and those typically arise when the business sponsors or hosts a public service or charitable event. In such cases, individuals may donate their time to advance the public, religious, or humanitarian purpose, provided the activity does not result in a financial or commercial benefit to the business. 

Key Risks of Misclassifying “Volunteers”

1. Workers’ Compensation and Liability Issues. If a “volunteer” is injured while working on the farm, they may be left with significant and unexpected medical expenses. As those costs begin to accumulate, the injured “volunteer” may start to explore what legal options are available to help ease the financial burden of their good deed.
   
   After a quick online search, the injured “volunteer” may choose to file a workers’ compensation claim hoping that, after an investigation and any necessary hearings, the Ohio Bureau of Workers’ Compensation (“BWC”) and the Ohio Industrial Commission determine the volunteer was misclassified and should have been treated as an employee. If that finding is made, the BWC may provide coverage to the injured worker, and then seek reimbursement from the farm for costs such as medical expenses, lost wages, and unpaid premiums.
   
   Additionally, a farm general liability policy may not cover claims involving misclassified workers or other employment-related disputes. Most policies exclude injuries sustained by individuals who qualify as employees because those claims are typically addressed through workers’ compensation. If a worker is ultimately deemed to be an employee, the situation likely reverts to the scenario described above, or the farm may find itself in court arguing that the injured “volunteer” does not meet the legal definition of an employee. Furthermore, most policies have an “intentional acts” exclusion and if the insurance provider finds that misclassification was deliberate or part of a fraudulent effort to avoid employer obligations, coverage is most likely not going to exist. 

2. Wage and Hour Violations. If a former “volunteer” later asserts they should have been compensated, whether following a personal dispute with the farm owner or after sustaining an injury, the DOL or a court may reclassify that individual as an employee. Such a determination can expose the farm to liability for back wages, unpaid overtime (where applicable), interest, civil penalties, attorneys’ fees, and, in more serious situations, potential criminal penalties. 

3. Tax and Payroll Non-Compliance. Employees give rise to payroll tax obligations, including Social Security, Medicare, and unemployment insurance. Failure to properly withhold and remit these taxes can result in state and federal tax audits, penalties, and potential personal liability for the farm business. 

The Bottom Line

What may seem like generous community support can quickly turn into a costly liability. The goodwill behind a “volunteer’s” intentions does not override the law’s protections for workers. And, practically speaking, when circumstances deteriorate, individuals facing financial strain are far more likely to raise these issues when they feel they have little left to lose.

In most cases, the prudent path is clear: for-profit farms cannot rely on volunteers. Protecting your operation from unnecessary legal and financial headaches is worth far more than short-term “free” labor and helps lay a stronger foundation for long-term growth and stability.  

The next installment of Farm Office Live will be held March 13, 2026 from 10:00 – 11:30 am. Farm Office Live is a monthly webinar focused on timely farm management and legal issues. This month, we will dive into a timely set of topics designed to help you navigate current industry challenges. Topics include:

• Special guest Dr. Ian Sheldon.  In a prerecorded session, Dr. Sheldon will discuss how the conflict in Iran is impacting global fertilizer availability and shipments, oil prices, inflation rates and crop choice for farmers.
• A discussion among the legal team on current trends and developments regarding data centers
• A legislative update
• Federal farm program updates
• A look at upcoming programs and events 

In addition to Dr. Sheldon, this month’s presenters include Ellen Essman, Peggy Hall, David Marrison, Robert Moore, Eric Richer and Barry Ward.

Registration is required but provided at no cost. To register, go to go.osu.edu/farmofficelive.  

By: Carl Zulauf, David Marrison, and Seungki Lee, Ohio State University

This article summarizes information in the US Federal Register of January 12, 2026 that addresses the addition of up to 30 million new commodity base acres effective for the 2026 crop year, making them eligible for ARC (Agriculture Risk Coverage) and PLC (Price Loss Coverage) benefits.  One purpose of this article is help you formulate questions.  Please direct them to FSA (Farm Service Agency) as specifics matter and this article summarizes what are often detailed procedures and rules. 

Owners Make Base Allocation Decisions, Producers Elect and Enroll

FSA does not have discretion to alter this.

New base acres are automatically added to eligible farms unless an owner requests to not add them.  FSA is under no obligation to notify other owners if a base allocation rejection is filed 

Farmers who have not reported plantings to FSA in the past will be allowed to do so and thus have new base acres.  Acres already reported to FSA cannot be modified.

 Eligibility for New Base Acres

1. At least one current covered commodity (see list at the end of the article) must have been planted or have been prevented from being planted because of drought, flood, or other natural disaster or condition beyond the farmer’s control in at least one year during 2019-2023.

Planted plus prevent planted acres are “planted and considered planted” (P&CP) acres.  P&CP is limited to the initial planted or prevent planted crop, except for crops planted in an FSA approved double-crop sequence.  Otherwise, a subsequent planting is not P&CP acres.

and

2. For an individual FSA farm, total P&CP acres must exceed total 9/30/2024 base acres for all covered commodities, excluding unassigned generic cotton base.  Total P&CP acres are:

2019-2023 average (all 5 years) of P&CP acres for covered commodities plus lesser of

a. 15% of total FSA farm acres

Total acres equal total cropland acres minus acres enrolled in a federally funded conservation program that restricts production of agricultural commodities except CRP (Conservation Reserve Program).

or  b. 2019-2023 average (all 5 years) of eligible noncovered commodities P&CP FSA farm acres.

Eligible noncovered commodities are all other crops except

1. current covered commodities 
2. tobacco (consistent with other Commodity Credit Corporation programs),
3. cannabis that does not meet the definition of hemp,
4. commodities reported as tree, bush, vine, grass, idle, or fallow,
5. cover crops reported as cover crops, and
6. CRP and other conservation program acres ineligible for dual payments.

Notes:

Eligibility of hay acres varies.  Alfalfa and other mixed forage acres reported as hay on an FSA acreage report are eligible non-covered commodities.  Grass hay acres are not eligible.  It is suggested you check with FSA if you had hay acres during 2019-2023.

Forage and silage acres of a current covered commodity are eligible as the covered commodity. 

Sugar cane and sugar beets are eligible non-covered commodities.

 

New Base Acres = [(Total P&CP acres calculated as above) plus (unassigned generic base acres) minus (total base acres as of 9/30/2024)]

Unassigned base acres (see note at the end of the article) are converted first to covered commodity base acres, on an acre-for-acre basis.  If unassigned base exceeds allowable new base, the difference remains unassigned base.

A current FSA farm with base acres but does not qualify for new base retains its current base acres.

 

Assignment of Base Acres and Base Yields

No new covered commodities are created.  New base acres are added to base acres of current covered commodities planted on an FSA farm over crop years 2019-2023 using this ratio:

[(2019-2023 average (all 5 years) of a given covered commodity P&CP acres) to (2019-2023 average (all 5 years) of all covered commodities P&CP acres)]

Other than under an established practice with FSA of double cropping covered commodities, an owner must elect what covered commodity on the same acre is used.

An FSA farm’s current PLC yield is used for any new base acre.  If the farm has no PLC yield for the covered commodity, average PLC yield for the county in which the farm is situated or a yield for a similarly situated farm is used.

 

Limits

An FSA farm’s total base acres cannot exceed the FSA farm’s total acres.

New US base acres are capped at 30 million.  If the US cap is effective, an across-the-board, pro-rated reduction is applied to all eligible new base acres.

 

FSA New Base Acre Examples (from US Federal Register, Volume 91, Number 7, 1/12/2026, pages 1045-1046)

2019–2023 Planting History:  25 acres planted to a covered commodity (CC) each year, 25 acres planted to an eligible non-covered commodity (ENCC) each year.

Case I: Current Base Acres = 0

5-year Average Planting History (25 acres (5-year sum of CC P&CP Acres divided by 5) + (lesser of 7.5 acres (15% of total acres) or 25 acres (5-year sum of total ENCC P&CP acres divided by 5)) = 32.5 acres

Maximum potential new base acres = 32.5 [32.5 (5-year average planting history) minus 0 (current base)]

Case II: Current Base Acres = 10

5-year Average Planting History (25 acres (5-year sum of CC P&CP Acres divided by 5) + (lesser of 7.5 acres (15% of total acres) or 25 acres (5-year sum of total ENCC P&CP acres divided by 5)) = 32.5 acres

Maximum potential new base acres = 22.5 [32.5 (5-year average planting history) minus 10 (current base)]

 

Notes:

Current Covered Commodities:  barley, canola, corn, crambe, dry peas, flaxseed, grain sorghum, large chickpeas, lentils, mustard seed, oats, peanuts, rapeseed, long grain rice, medium/short grain rice, temperate japonica rice, safflower, seed cotton, sesame seed, small chickpeas, soybeans, sunflower seed, and wheat.

Unassigned Base Acres:  The 2014 Farm Bill made base acres of upland cotton as of 9/30/2013 ‘‘generic base acres.’’  They were not eligible for ARC and PLC benefits.  The Bipartisan Budget Act of 2018 authorized seed cotton as a covered commodity.  Under this authorization, if a covered commodity, including seed cotton, was not planted or prevented from being planted on the farm during the 2009-2016 crop years, “generic base acres” became “unassigned base acres.”  They are not eligible for ARC or PLC benefits.

 

Earlier today, the U.S. Department of Labor (“DOL”) announced a proposed rule intended to provide greater clarity for both workers and employers on how to determine whether a worker should be classified as an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”) and other related laws. 

Issued on February 26, 2026, the proposal – titled “Employee or Independent Contractor Status Under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act” – would rescind the Biden era rule (the “2024 Rule”) and replace it with a framework very similar to what we saw adopted in 2021 during the first Trump administration (the “2021 Rule”). 

Level One: Ancient Origins 
Under the FLSA, the central question in determining worker classification is whether the individual is economically dependent on the operation, indicating employee status, or is truly “in business for themselves,” which supports independent contractor status. This distinction matters because workers classified as employees are entitled to FLSA protections, including minimum wage and overtime requirements.  

While agricultural employers may benefit from certain exemptions under the FLSA, the analysis does not end there. Many state labor laws look to the FLSA’s definition of “employee” when deciding whether their own wage and hour protections apply. In some cases, state laws impose broader requirements and offer greater protections than federal law. Independent contractors, by contrast, are not covered by FLSA wage and hour protections and generally exempt from state labor law requirements. 

Classification of a worker is vitally important because misclassification can come with harsh consequences. If misclassification is discovered, whether through a DOL investigation, a worker complaint, or a lawsuit, the employer may be required to pay back wages, civil money penalties imposed by the DOL, and any attorneys’ fees and court costs should the matter end up in litigation. Beyond wage-and-hour issues, misclassification can trigger additional liability under other federal and state laws. This might include civil claims for unpaid payroll taxes, unemployment insurance contributions, or workers’ compensation violations, as well as potential criminal penalties in extreme cases of willful or repeated noncompliance.  

Level Two: Trial by Fire
As originally enacted, the FLSA does not lay out a precise test for distinguishing an employee from an independent contractor. Over time, the DOL looked to the courts to develop a workable standard for making such determinations. Through those decisions, the “economic realities test” emerged and became the framework for evaluating whether a worker should be classified as an employee or independent contractor. 

The economic realities test is a “totality of the circumstances” approach, meaning that no single factor controls the outcome. Instead, all relevant factors must be considered and weighed together to assess the true nature of the working relationship. Those factors include: 

1. The nature and degree of control; 
2. The individual’s opportunity for profit or loss;
3. The permanency of the work relationship; 
4. Whether the work being performed is an integral part of the employer’s business; 
5. The worker’s investment in facilities and equipment; and 
6. Skill and initiative. 

For decades courts and the DOL have applied these factors, or slight variations of them, to determine worker status under the FLSA. Over time, however, application of the test varied across jurisdictions, with some courts placing greater emphasis on certain factors than others. This inconsistency led to differing and inconsistent interpretations of worker classification around the country.  

Level Three: The 2021 Rulebook Rewrite 
In 2021, the DOL attempted to address the inconsistent and often subjective application of the economic realities test by issuing a formal independent contractor rule. This 2021 Rule marked the agency’s first effort to create a more standardized framework for distinguishing between employees and independent contractors. 

The 2021 Rule used a variation of the economic realities test but explicitly gave greater probative value to “two core factors.” The two core factors are: 

1. The nature and degree of control over the work; and 
2. The individual’s opportunity for profit or loss.

The Department did not eliminate the other factors of the economic realities test; those factors remained part of the analytical framework under the 2021 Rule. However, the DOL did determine that the two “core factors” carried the most weight when determining whether an individual is economically dependent on an employer. The DOL further explained that when both core factors pointed toward the same classification, there was a “substantial likelihood” that the resulting classification was the correct classification.

Level Four: The 2024 Reset
In early 2024, the DOL published another rule, repealing the 2021 Rule and reverting back to a totality of the circumstances analysis of the economic realities test in which there are no core factors, and all factors are weighed evenly. The 2024 Rule went into effect on March 11, 2024. 

Level Five: 2026 Counterattack
The latest proposed rule would reinstate the framework of the 2021 Rule, with several targeted adjustments designed to provide clearer guidance and promote more consistent interpretation/application of the test. The stated goal is to reduce uncertainty and, in turn, lower the risk of misclassification claims or enforcement actions that can disrupt day-to-day operations. 

In addition to reinstating and slightly modifying the 2021 Rule, the proposal would also apply the independent contractor analysis to the Family and Medical Leave Act (“FMLA”) and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”), each relying on the FLSA’s definition of “employ.”

In its proposal, the DOL explained that the 2024 Rule failed “to provide effective guidance on how different factors in its multi-factor balancing test should be weighed or applied together.” The DOL contends that it’s two core factor economic realities test is just a result of decades and decades of case law. The Department indicates that after reviewing numerous judicial decisions, “the Department determined that courts tended to focus on two economic reality factors – control and the opportunity for profit or loss.” Thus, the DOL determined that in effect, judges were giving greater weight to these two factors to determine a worker’s classification under the FLSA.

However, the DOL emphasizes that even when the two core factors point toward the same classification they are not “controlling.” Their combined weight may still be outweighed by other considerations, making it “necessary to consider both [core and non-core] factors.” In short, the test that the DOL seeks to readopt is not intended to be applied “in a mechanical way that precludes consideration of all relevant facts and factors.” 

Some other modifications proposed by this new rule include: 

• Clarification on how an employee’s economic dependence on an employer differs from the relationship between independent businesses working together.
• Highlighting that worker classification hinges on dependence for the work, not on how much money the worker makes. 
• Modifying the real-world examples used to apply the proposed 2026 framework to avoid potential ambiguity in the law; and 
• Emphasis on the fact that the actual practice of the worker and potential employer is more relevant than what may be contractually or theoretically possible. 

You can read the proposed rule here.  

Boss Level Unlocked: Power Up with Public Comment
Ever wished you could help shape the rulebook? Well, now’s your chance! 

The proposed rule kicks off a 60-day public comment period, closing April 28, 2026. You can submit a comment on the proposed rule to help provide greater clarity or protections for your specific industry or area of interest. 

You might be wondering, “Can my comment really make a difference?” The answer: absolutely! Agencies are required to consider all substantive comments, and those that are unique, evidence-based, and grounded in real-world experiences are far more likely to influence the final rule than generic statements along the lines of “this is good” or “this is bad.” 

If you have noticed gaps or issues that the DOL has not addressed in this proposal, now is the perfect time to bring them to light. Don’t miss the opportunity to make your voice heard, you never know, your input could truly change the law! 

Comments can be submitted at https://www.regulations.gov (Docket No. WHD-2026-0001). Once comments are closed, the DOL will review and consider those comments, make any final modifications, and publish the final rule.   

As always, as we learn more about this proposed rule and any final rule, we will keep you up to date.