Recent Blog Posts

Yellow yield sign with text stating "Minimum Wage Increase Ahead."
By: Jeffrey K. Lewis, Friday, December 03rd, 2021

As 2021 winds down, it is always good to plan for the new year.  Part of that planning includes making sure, as an employer, you are compliant with any updates to current law as we turn the calendars to 2022.  One law that is changing next year, is Ohio’s minimum wage law.  Beginning January 1, 2022, the Ohio minimum wage will rise to $9.30, up from the current $8.80, for non-tipped employees.  However, as an agricultural employer, the law provides some exemptions to paying federal or state minimum wage. In this post, we review minimum wage requirements, agricultural exemptions to minimum wage, and who qualifies for the agricultural exemptions. 

Ohio versus federal minimum wage.  As discussed above, Ohio’s minimum wage will rise to $9.30 for non-tipped employees but federal minimum wage will remain at $7.25.  An agricultural employer is required to follow both state and federal laws, but when the two sets of laws differ, there may be some confusion about which one applies.  Normally, federal law reigns supreme and usually preempts, or overrides, state law.  But in this case, the federal law sets the floor for minimum wage.  This means that employers across the country that are subject to the Fair Labor Standards Act (“FLSA”) cannot pay less than $7.25 per hour to their employees.  However, if a state law requires that employers pay their employees more than the federal minimum wage, then the employer must meet the state’s minimum wage standard.  Thus, Ohio employers must pay the Ohio minimum wage, unless an exemption applies. 

Ohio’s “small employer” exemption. Starting in 2022, Ohio employers that grossed less than $342,000 in 2021 are not required to pay Ohio’s $9.30 minimum wage.  Instead, those employers are required to pay the $7.25 federal minimum wage to their employees, unless another exemption applies. 

Ohio and federal agricultural exemptions.  Under both Ohio and federal law, agricultural employers are exempt from paying the federal or Ohio minimum wage to their employees if any of following apply: 

  1. The employer did not use more than 500 man-days of agricultural labor during any calendar quarter during the preceding year. 
  2. The employee is the parent, spouse, child, or other member of the employer’s immediate family. 
  3. The employee: 
    1. is employed as a hand-harvest laborer; 
    2. is paid on a piece-rate basis; 
    3. commutes daily from their permanent residence to the farm; and 
    4. was employed in agriculture for less than 13 weeks during the previous calendar year. 
  4. The employee is: 
    1. 16 years of age or younger; 
    2. employed as a hand-harvest laborer; 
    3. paid on a piece-rate basis; 
    4. employed on the same farm as their parent or legal guardian; and 
    5. paid the same piece-rate wage as employees over the age of 16. 
  5. The employee is engaged in range production of livestock. 

500 man-days exemption.  The “man-days” exemption was intended to exempt small and family-sized farms.   A “man-day” is any day during which an employee performs at least one hour of agricultural labor.  To calculate a “man-day”, an agricultural employer needs to keep track of the number of people who worked each day and for how long.  500 “man-days” is roughly equal to having seven employees working for at least one hour each, five days a week during a calendar quarter.  It is also not just full-time employees that are counted towards the 500 “man-day” exemption, temporary and seasonal workers also count towards the “man-day” exemption.  

Family member exemption.  An agricultural employer is not required to pay family members the minimum wage.  This family member exemption applies to employees engaged in agriculture and are either the parent, spouse, child or other member of the employer’s immediate family.  However, not every blood relative is considered “other immediate family.”  According to the U.S. Department of Labor, the following will be considered as part of the employer’s “other immediate family”: stepchildren, foster children, stepparents, and foster parents.  Other family members, including siblings, cousins, nieces, nephews, uncles, and aunts do not count as immediate family members.  

Employed in agriculture.  Ohio law closely resembles, if not mirrors, FLSA requirements when it comes to agricultural exemptions to minimum wage and overtime requirements.  But, to qualify for the agricultural exemptions discussed above, an employer must have employees that are employed in “agriculture.”  Under the FLSA, “agriculture” has two distinct branches, primary agriculture and secondary agriculture.  Employees engaged in primary agriculture are considered to be employed in agriculture for that workweek.  Employees engaged in secondary agriculture are only considered to be employed in agriculture if the activities are performed by a farmer or on a farm in connection with the farming operations.  

What is considered primary agriculture?  Primary agriculture “includes farming in all its branches” and are those activities traditionally viewed as agricultural, including: 

  • Cultivating and tilling the soil; 
  • Dairying;    
  • Producing, cultivating, growing, and harvesting agricultural or horticultural commodities; and 
  • Raising livestock, bees, fur-bearing animals, or poultry. 

Activities that qualify as primary agriculture do not necessarily have to take place on a farm.  For example, someone employed in a hatchery that is located in an industrial complex is engaged in a primary agriculture activity (raising poultry) and is considered to be employed in agriculture.  On the other hand, even though an activity takes place on a farm, it does not necessarily mean it is considered to be a primary agriculture activity.  For example, courts have determined that employees of Dairy Farm A are not engaged in a primary agriculture activity when they process milk produced by Dairy Farm B.  

What is secondary agriculture?  Secondary agriculture includes all activities, including forestry or lumbering operations, that may not themselves be considered agricultural practices but are necessary to agriculture.  For an activity to be considered secondary agriculture it must meet two requirements: 

(1) the activity must either be performed by a farmer or on a farm; and 

(2) the activity must be incidental to or in conjunction with such farming operations. 

Secondary agriculture includes preparing an agricultural product for market, delivering agricultural products to storage, to market, or to carriers for transportation to market.  

Any activity that is performed by a farmer’s employees, is also considered to be “performed by a farmer.” Moreover, an activity is considered “incidental to or in conjunction with” farming activities if the work being performed is: 

(1) An established part of agriculture; 

(2) subordinate to the farming operations of the farm; and 

(3) not an independent business. 

Mixing it up.  After understanding what work is considered agricultural, it is important to understand the impact of an employee performing both exempt and non-exempt work.  If an employee does both exempt and non-exempt work in the same week, then the employee loses their exemption status and must be paid according to federal/Ohio minimum wage and overtime requirements.  However, if an employer can separate the employee’s exempt and non-exempt work into separate weeks, then the employer would only have to pay the employee federal/Ohio minimum wage and overtime for those weeks that the employee performed non-exempt work.  

This especially important to agricultural employers that also engage in agritourism activities.  Having a farm employee perform work related to an agritourism activity does not qualify for the agricultural exemptions under federal/Ohio law.  Agricultural employers should be careful when assigning their employees tasks.  Assigning tasks outside the realm of agriculture will subject the employer to the provisions of federal and state minimum wage and overtime laws.

Overtime.  Agricultural employers are exempt from paying their agricultural employees an overtime wage rate.  This exemption applies to all agricultural employees, not just small farm employees or immediate family members.  

Conclusion.  Determining whether your employees qualify for an agricultural exemption can be a complex issue, with multiple layers of analysis.  It is always best to ask an attorney to help clarify whether your employees are considered to be “employed in agriculture” and thus qualify for the agricultural exemptions to minimum wage and overtime laws.  Further, it is always a good idea to seek a lawyer’s counsel every so often to help make sure your operation is continuing to be compliant with labor and employment laws.  

References and Resources

29 U.S. Code Chapter 8 – Fair Labor Standardshttps://www.law.cornell.edu/uscode/text/29/chapter-8

29 U.S. Code §206 - Minimum wagehttps://www.law.cornell.edu/uscode/text/29/206

29 CFR Chapter 5 – Wage and Hour Division, Department of Labor https://www.ecfr.gov/cgi-bin/text-idx?SID=9215c26baf64464cdfbd4073e46247d3&mc=true&tpl=/ecfrbrowse/Title29/29chapterV.tpl

29 C.F.R. §§ 780 et seq. – Exemptions Applicable to Agriculturehttps://www.ecfr.gov/cgi-bin/text-idx?SID=09461535e9555139c7d6471d1b26598d&mc=true&node=pt29.3.780&rgn=div5#se29.3.780_1103

Ohio Constitution, Article II, Section 34 – Minimum Wagehttps://codes.ohio.gov/ohio-constitution/section-2.34a

Ohio Department of Commerce, 2022 Minimum Wage Poster, https://www.com.ohio.gov/documents/dico_2022MinimumWageposter.pdf

Ohio Revised Code Chapter4111 – Minimum Fair Wage Standards, https://codes.ohio.gov/ohio-revised-code/chapter-4111

U.S. Department of Labor Wage and Hour Division, Field Operations Handbook Chapter 20 – Agriculture: Related and Seasonal Exemptionshttps://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch20.pdf

U.S. Department of Labor Wage and Hour Division, Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act (FLSA)https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs12.pdf

Turkey looking straight into camera.
By: Jeffrey K. Lewis, 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, 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, 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.

Hippopotamus in water.
By: Jeffrey K. Lewis, Friday, October 29th, 2021

Did you know that Hippopotamuses cannot swim?  It’s true.  When hippos submerge themselves underwater, they don’t swim back up to the surface, instead they walk along the bottom until they reach shallow water.  That is unless the hippo decides to chase you out of its territory, then it will gladly run, jump, and charge right at you. 

Like the hippo, this week’s Ag Law Harvest is a little territorial.  We bring you recent Ohio court decisions, a federal order allowing Colombian hippos to take the testimony of Ohio residents, and the Ohio Department of Agriculture’s directives as it ramps up its fight against Ohio’s newest pest.

Well, well, well.  A recent Ohio case demonstrated the complex issues a landowner can run into when dealing with an oil and gas lease.  The Plaintiff in this case owns land in Hebron, Ohio and brought suit against his neighbors and the Ohio Department of Taxation claiming that he was not the owner of a gas well located on his property or that he was responsible for paying taxes and maintaining the well under Ohio law.  The Hebron, Ohio property at issue in this case passed through many hands before becoming the property of the Plaintiff.  One of the prior owners was a man named William Taggart (“Taggart”).  As mentioned earlier, the property also has a gas well which was subject to an oil and gas lease.  The oil and gas lease passed to multiple parties and ended up with Taggart while he owned the Hebron property.  After having both the property and the oil and gas lease, Taggart deeded the property to Plaintiff’s parents which eventually passed onto Plaintiff.  Plaintiff argued that he is not the rightful owner of the well because the last person that was assigned the oil and gas lease was Taggart, making him the owner of the well.  The Fifth District Court of Appeals disagreed.  The court found that Plaintiff’s parents registered as owners of the well under Ohio Revised Code § 1509.31 which requires a person to register a well before they can operate it.  Further, the court determined that when the oil and gas lease was assigned to Taggart the rights of the landowner and the lessee merged, essentially making Taggart the only individual with any property interest in the well.  Relying on § 1509.31, the court found that when the entire interest of an oil and gas lease is assigned to the landowner, the landowner then becomes responsible for compliance with Chapter 1509 of the Ohio Revised Code.   Therefore, when the property passed to Plaintiff’s parents, they became the owners of the well and were responsible for making sure the well was in compliance with Chapter 1509.  Because this responsibility passed onto Plaintiff, the court found Plaintiff to be liable for the taxes and ensuring that the well is compliant with Ohio law.  The court also denied Plaintiff’s attempt to argue that Taggart was the responsible party because the oil and gas lease was still in effect due to the fact that Plaintiff’s neighbors use the gas well for domestic purposes.  The court found that the oil and gas lease had expired by its own terms, pursuant to the habendum clause contained within the lease.  A habendum clause essentially defines the property interests and rights that a lessee has.  The specific habendum clause in this case stated that the lease would terminate either within three years or when the well no longer produced oil and gas for commercial purposes.  The lease at issue was well beyond the three-year term and, as the court found, the lease expired under Taggart because the well no longer produced oil or gas for commercial purposes.  The use of the well for domestic purposes did not matter.  The Fifth District ultimately held that because Plaintiff could not produce any evidence to show that another party had an interest in the well, Plaintiff is ultimately responsible for the well.   

Amending a contract doesn’t always erase the past.  Two companies (“Plaintiffs”) recently filed suit against a former managing member (“Defendant”) for allegedly using business funds and assets for personal use during his time as managing member.  The primary issue in this case was whether or not an arbitration clause in the original operating agreement is enforceable after the operating agreement was amended to remove the arbitration clause.  Defendant’s alleged misconduct occurred while the original operating agreement was in effect.  The original operating agreement would require the parties to settle any disputes through the arbitration process and not through the court system.  However, shortly before filing suit, the original operating agreement was amended to remove the arbitration provision.  Plaintiffs filed suit against the Defendant arguing that the arbitration provision no longer applied because the operating agreement had been amended.  Defendant, however, argued that his alleged misconduct occurred while the original operating agreement was in effect and that the amended operating agreement could not apply retroactively forcing him to settle the dispute in a court rather than through arbitration.  The trial court, however, sided with the Plaintiffs and allowed the case to move forward.  Defendant appealed the trial court’s decision and the Ninth District Court of Appeals agreed with him.  The District Court found that the amended operating agreement did not expressly state any intention for the terms and conditions of the amended operating agreement to apply retroactively.  Further, the court held that Ohio law favors enforcing arbitration provisions within contracts and any doubts as to whether an arbitration clause applies should be resolved in favor of enforcing the arbitration clause.  The Ninth District reversed the trial court and found that the dispute of Defendant’s alleged misconduct should be resolved through arbitration.  

Animal advocates claim victory in pursuit of recognizing animals as legal persons.  A recent order issued by a federal district court in Ohio allows an attorney for Colombian Hippopotamuses to take the testimony of two expert witnesses residing in Ohio.  According to U.S. law, a witness may be compelled to give testimony in a foreign lawsuit if an “interested person” applies to a U.S. court asking that the testimony be taken.  The Animal Legal Defense Fund (“ALDF”) applied to the federal court on behalf of the plaintiffs, roughly 100 hippopotamuses, from a lawsuit currently pending in Colombia.  According to the ALDF, the lawsuit seeks to prevent the Colombian government from killing the hippos.  The interesting thing about this case is that hippos are not native to Colombia and were illegally imported into the country by drug kingpin Pablo Escobar.  After Escobar’s death the hippos escaped his property and relocated to Colombia’s Magdalena River and have reproduced at a rate that some say is unsustainable.  In Colombia, animals are able to sue to protect their rights and because the plaintiffs in the Colombian lawsuit are the hippos themselves, the ALDF argued that the hippos qualify as an “interested person” under U.S. law.  After applying for the authorization, the federal court signed off on ALDF’s application and issued an order authorizing the attorney for the hippos to issue subpoenas for the testimony of the Ohio experts.  After the federal court’s order, the ALDF issued a press release titled “Animals Recognized as Legal Persons for the First Time in U.S. Court.”  The ALDF claims the federal court ruling is a “critical milestone in the broader animal status fight to recognize that animals have enforceable rights.”  However, critics of ALDF’s assertions point out that ALDF’s claims are a bit embellished.  According to critics, the order is a result of an ex parte application to the court, meaning only one side petitioned the court for the subpoenas and the other side was not present to argue against the subpoenas.  Further, critics claim that all the federal court did was sign an order allowing the attorney for the hippos to take expert testimony, the court did not hold that hippos are “legal persons” under the law.  

Ohio Department of Agriculture announces quarantine to combat the spread of the Spotted Lanternfly.  According to the Ohio Department of Agriculture (“ODA”) the Spotted Lanternfly (“SLF”) has taken hold in Jefferson and Cuyahoga counties.  The ODA announced that the SLF is now designated as a destructive plant pest under Ohio law and that the ODA was issuing quarantine procedures and restricting the movement of certain items from infested counties into non-infested areas of Ohio.  The ODA warns that the SLF can travel across county lines in items like tree branches, nursery stock, firewood, logs, and other outdoor items.  The ODA has created a checklist of things to look for before traveling within or out of infested counties.   Nurseries, arborists, loggers, and other businesses within those infested counties should contact the ODA to see what their obligations and rights are under the ODA's new quarantine instructions.  Under Ohio law, those individuals or businesses that fail to follow the ODA’s quarantine instructions could be found guilty of a misdemeanor of the third degree on their first offense and a misdemeanor of the second degree for each subsequent offense.  For more information visit the ODA’s website about the SLF.

U.S. House Agriculture Committee hearing room
By: Peggy Kirk Hall, Thursday, October 28th, 2021

Infrastructure legislation and the Build Back Better reconciliation bill have consumed Washington lately, but the House Agriculture Committee set those issues aside long enough last week to tend to several other pieces of legislation.  The committee passed five bills on to the House in its committee hearing on October 21.  Here’s a summary of each:

H.R. 5609, the Cattle Contract Library Act of 2021, likely made the biggest splash in the agriculture community.  Sponsored by Rep. Dusty Johnson (R-SD) and 23 co-sponsors on both sides of the aisle, the legislation would address beef supply and pricing transparency issues by requiring:

  1. A mandatory reporting program for packers, who must file information with USDA for:
    • The type of each contract offered to producers of fed cattle, classified by the mechanism used to determine the base price for the fed cattle committed to the packer, including formula purchases, negotiated grid purchases, and forward contracts;
    • A contract’s duration;
    • All contract summary information;
    • Contract provisions that may affect the price of cattle, including base price, schedules of premiums or discounts, and transportation;
    • Total number of cattle covered by a contract that is solely committed to the packer each week within the 6 and 12-month periods following the date of the contract;
    • For contracts where a specific number of cattle aren’t committed solely to the packer, an indication that the contract is an open commitment and any weekly, monthly, annual, or other limitations on the number of cattle that may be delivered to the packer under the contract;
    • A description of contract terms that provide for expansion in the committed numbers of fed cattle to be delivered under the contract for the 6 and 12-month periods after its date.
  2. USDA must maintain the information submitted by packers in a publicly available library in a “user-friendly format,” including real-time notice, if practicable, of the types of contracts that are being offered by packers that are open to acceptance by producers.
  3. USDA must establish a competitive program to award Producer Education Grants for producer outreach and education on the best uses of cattle market information, including the Cattle Contract Library.
  4. USDA must also provide weekly or monthly reports based on the information collected from packers of:
    • The total number of fed cattle committed under contracts for delivery to packers within the 6-month and 12-month periods following the date of the report, organized by reporting region and type of contract;
    • The number of contracts with an open commitment along with any weekly, monthly, annual or other limitations on the number of cattle that may be delivered under such contracts; and
    • The total maximum number of fed cattle that may be delivered within the 6-month and 12-month periods following the date of the report, organized by reporting region and type of contract.

H.R. 4252 proposes additional scholarship funding for students at the nation’s 1890 land grant institutions, which includes Central State University here in Ohio. 
Committee Chairman David Scott (D-GA) is the sponsor of the bill, which would allocate $100 million for scholarships and make the scholarship program permanent. 

H.R. 5608 proposes the Chronic Wasting Disease Research and Management Act, a bi-partisan bill sponsored by Rep. Ron Kind (D-WI) and House Agriculture Committee Ranking Member Glenn Thompson (R-PA).  The act proposes a research program, support for state management efforts, and public education to tackle chronic wasting disease, a fatal neurological disease in deer, elk, and moose.  Those initiatives would receive $70 million each year from 2022 to 2028.

H.R. 4489, the National Forest Restoration and Remediation Act, is also a bi-partisan bill and is sponsored by Rep. Kim Schrier, (D-WA), Matt Rosendale (R-MT), Joe Neguse (D-CO) and Dough LaMalfa (R-CA).  The bill would allow the U.S. Forest Service to use interest earned on settlement funds for clean-up and restoration of damaged forest lands.

H.R. 5589, the Pyrolysis Innovation Grants Act, is dubbed as a “green technology bill” by sponsors Rep. Josh Harder (D-CA), Rep. Jimmy Panetta(D-CA) and Rep. Jim Costa (D-CA).  The proposal would invest $5 million per year through 2027 for USDA pilot projects in pyrolysis, a process that reduces greenhouse gas emissions from burning nut shells by converting the shells into fuels, nutrients, and other commodities.

By: Barry Ward, Friday, October 22nd, 2021

Farmland prices have strengthened in recent months and there are a number of key fundamentals that will likely continue to support land values in the near term. High crop prices and margins along with last year’s COVID-19 related government payments and continued low interest rates have all contributed to stronger land markets. Higher production costs and recent minor decreases in crop prices may decrease profit margins this next year and take some strength out of the market but farmland will likely continue to see increases in value through the end of this year and into the next year. Similar factors have impacted cash rental markets in Ohio and will likely continue to pressure rental rates higher in the near term.

Recent data from the United States Department of Agriculture National Ag Statistics Service (NASS) August Land Values 2021 Summary shows Ohio Farm Real Estate increasing 3.9% from 2020 to an average of $6,600 per acre in 2021. Ohio Cropland (bare cropland) showed an increase of 5.3% from 2020 to 2021. Average Cropland value is $6,800 per acre in 2021 according to this survey. Pastureland value in Ohio increased 2.1% to $3,440 per acre in 2021. Average cash rents in Ohio increased 2.6% in 2021 to $160 per acre according to this survey. The National Ag Statistics Service (NASS) also summarizes average cash rental rates by county available through Ohio NASS: www.nass.usda.gov/Statistics_by_State/Ohio/Publications/County_Estimates/2021/OH_2021_cashrent_CE.pdf

Each year, Ohio State University Extension (The Ohio State University College of Food, Agricultural, and Environmental Sciences) conducts an Ohio Cropland Values and Cash Rents Survey. The Ohio Cropland Values and Cash Rents study was conducted from January through April in 2021. The opinion-based study surveyed professionals with a knowledge of Ohio’s cropland values and rental rates. Professionals surveyed were rural appraisers, agricultural lenders, professional farm managers, ag business professionals, OSU Extension educators, farmers, landowners, and Farm Service Agency personnel.

Ohio cropland varies significantly in its production capabilities and, consequently, cropland values and cash rents vary widely throughout the state. Generally, western Ohio cropland values and cash rents differ from much of southern and eastern Ohio cropland values and cash rents. The primary factors affecting these values and rents are land productivity and potential crop return, and the variability of those crop returns. Soils, fertility, and drainage/irrigation capabilities are primary factors that most influence land productivity, crop return and variability of those crop returns.

Other factors impacting land values and cash rents may include field size and shape, field accessibility, market access, local market prices, field perimeter characteristics and potential for wildlife damage, buildings and grain storage, previous tillage system and crops, tolerant/resistant weed populations, USDA Program Yields, population density, and competition for cropland in a region. Factors specific to cash rental rates may include services provided by the operator and specific conditions of the lease.

According to the Western Ohio Cropland Values and Cash Rents Survey, cropland values in western Ohio are expected to increase in 2021 by 3.8 to 5.3 percent from 2020 to 2021 depending on the region and land class. Cash rents are expected to increase from 3.6 to 3.9 percent depending on the region and land class. For the complete survey research summary go to: https://farmoffice.osu.edu/farm-management-tools/farm-management-publications/cash-rents

This survey and the results are reflective of the thoughts of survey participants in early 2021. Recent farmland sales would lead us to believe that farmland value has likely increased more than the 3.8 to 5.3 percent that the summary indicates for 2021. Continued high crop prices along with relatively strong predicted yields throughout much of Ohio have lent more strength to farmland markets in Ohio.

Others survey results in the eastern Corn Belt may be useful in gauging the magnitude of Ohio farmland value change thus far in 2021. The Federal Reserve Bank of Chicago (7th Fed District) surveys ag lenders in their districts each quarter. (The 7th Fed District includes parts of Michigan, Indiana, Illinois, Wisconsin and all of Iowa.) Their survey in July showed the value of good farmland in their district had increased by 14 percent from July 1, 2020 to July 1, 2021. The mid-year survey conducted by the Illinois Society of Professional Farm Managers and Rural Appraisers of their members revealed an increase of 20% in farmland values from the beginning of 2021. While Ohio is not Illinois nor does Ohio sit in the 7th Fed District, these surveys may give some guidance on the level of change in farmland values in Ohio in 2021.

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ATVs in field
By: Peggy Kirk Hall, Friday, October 22nd, 2021

Fall often brings us questions about what a landowner can do when someone harms their crops, fields, and trees.  We’ve heard many stories of hunters, four-wheelers, snowmobilers, timber harvesters and others tearing up hayfields, causing corn and bean losses, harming trees, or taking timber.  Unfortunately, those incidents are not new to Ohio.  Back in 1953, the Ohio legislature enacted a law that addressed these types of problems.  In 1974, legislators revised the law to strengthen its penalty provisions, part of an effort to reform Ohio’s criminal laws.  That law still offers remedies that can help a landowner today.

The reckless destruction of vegetation law.  Ohio Revised Code (ORC) Section 901.51, the “reckless destruction of vegetation law,” is simple and straightforward.  It states that:

“No person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree or crop standing and growing on the land of another or upon public land.”

Note the word “recklessly,” as that’s important to the statute.  Under Ohio law, a person  behaves recklessly if he disregards the risk that his actions are likely to cause certain results, such as harm or injury.  “Heedless indifference to the consequences” is another way to explain the term.  A person who flies through a hayfield on a four-wheeler, taking no precautions to avoid harming the crop, would likely fit this definition of behaving recklessly.  A timber harvester who ignores the marked property line and takes trees on the other side of it could also be behaving recklessly.

Criminal and civil options.  The recklessness element of a person’s behavior is why the law incorporates criminal charges.  A violation of ORC 901.51 is a fourth-degree criminal misdemeanor and could result in a fine of $250 and up to 30 days in jail.  What is useful to landowners, however, is that when legislators amended the law in 1974, they added “treble damages” to allow a harmed party to collect three times the value of the property destroyed.  If the value of hay lost to the four-wheeler was $500, for example, the treble damages provision allows the landowner to collect three times that amount, or $1,500.  Many court cases involve tree situations, and three times the value of a tree can result in a hefty award for the harmed landowner.

Another benefit of the reckless destruction of vegetation law is that a landowner doesn’t have to rely on a criminal charge being brought by local law enforcement.   While local law enforcement could bring a criminal charge against an offender and if successful, could request the treble damages for the landowner.  But if law enforcement does not bring a criminal charge, Ohio courts have held that a harmed party may bring a civil action against the offender and utilize the law’s treble damages provision.  Those treble damages can make it worthwhile to litigate the issue as a civil action.

The next time you’re frustrated by someone destroying your crops, trees and vegetation, the reckless destruction of vegetation law might be helpful.  If you can prove that the person was reckless and indifferent to causing the harm, consider using this powerful little law to remedy the situation.

 

Chamber of the Ohio House of Representatives
By: Peggy Kirk Hall, Thursday, October 21st, 2021

Like the farm fields across Ohio lately, a little dust has been flying down at the Statehouse in Columbus.  Our legislators are back to work and considering several bills that could affect agriculture.  A few bills aren’t seeing much action, though.  Here’s a summary of recent activity and inactivity at the Statehouse.

Newly introduced bills

H.B. 440 and S.B.241 – Agricultural Linked Deposit Program.  This pair of bills introduced on September 30, 2021 by Representatives Swearingen (R-Huron) and White (R-Kettering) and Senators Cirino (R-Kirtland) and Rulli (R-Salem) is one of three bills in the “Ohio Gains Initiative” offered in partnership with Ohio Treasurer Robert Sprague.  The Initiative proposes three new investment reforms affecting agriculture, health systems, and higher education.  The agricultural proposal in H.B. 440 and S.B. 241 would expand the current Ag-LINK loan program that provides interest rate reductions of up to 3% on operating loans.  The bill would make the loans available to cooperatives in addition to farm operators and agribusinesses and would also remove the $150,000 cap on Ag-LINK loans.  It’s been referred to the House Financial Institutions Committee and the Senate Financial Institutions & Technology Committee.

Bills on the move

H.B. 175 – Deregulate certain ephemeral water features.  The bill addresses “ephemeral features”—surface water that flows or pools only in direct response to precipitation but that is not a wetland.  Under the proposal, ephemeral features would be exempt from water pollution control programs in Ohio, including the  Clean Water Act Section 401 Water Quality Certification Program, as proposed in the federal 2020 Navigable Waters Protection Rule now on hold.  The bill would also eliminate the certification review fee for ephemeral streams.  H.B. 175 passed the House on September 30, 2021, amidst strong opposition.  It awaits review before the Senate Agriculture and Natural Resources Committee.

H.B. 397 – Agricultural lease law.  A proposal to address termination dates and notice provisions for crop leases received its second hearing before the House Agriculture and Conservation Committee on October 12.  H.B. 397 would require a landowner who wants to terminate a crop lease that doesn’t address termination to do so by providing a written notice of termination to the tenant by September 1 of the year the termination would be effective.  Discussion at the committee hearing could result in a broadening of the bill to include pasture leases.

S.B. 47 – Overtime pay.  The Senate passed this bill on September 22, and it has since been referred to the House Commerce and Labor Committee.  The bill exempts certain activities from the requirement for an employer to pay overtime wages.  Under the proposal, traveling to and from a worksite would be exempt from overtime.  Performing preliminary or postliminary tasks and activities outside of work hours that require insubstantial periods of time, such as checking email or voice mail, would also be exempt.  The bill now moves to the House Commerce and Labor Committee.

Bills not moving

Several bills we’ve been watching have not generated continued interest at the Statehouse, including:

  • H.B. 95, the Beginning Farmers bill that would provide income tax credits for beginning farmers who attend approved financial management programs and for owners who sell land and agricultural assets to certified beginning farmers.  It passed the House in late June but was removed from the agenda when first scheduled for a hearing before the Senate Ways and Means Committee on September 28, 2021. 
  • H.B. 30, the bill adding marking and lighting requirements to animal-drawn vehicles, also passed the House in late June but has not seen action since its second hearing before the Senate Transportation Committee on September 22, 2021.
  • H.B. 385, which would prohibit municipalities in the Western Basin of Lake Erie from discharging waste into those waters, fine those who do, and revoke NPDES permits for municipalities owning treatment works or sewerage systems within the Western Basin.  The bill received one hearing before the House Agriculture and Conservation Committee on September 28.
  • H.B. 349, which would place a moratorium on granting permits for a new construction or expansion of a regulated animal feeding facility in the Maumee watershed if the Ohio Department of Agriculture has determined that the phosphorus load in the Maumee River exceeded a specified number.  The House Agriculture and Conservation Committee has not scheduled the bill for a hearing since it was referred to the committee on June 16, 2021.

 

Bills now effective

S.B. 52, the bill addressing large-scale wind and solar facility development in Ohio, became effective on October 11, 2021.  The bill allows county commissioners to prohibit wind and solar developments and to establish restricted areas in the county that are off limit to the developments, gives county citizens an opportunity to place a restricted area designation on the ballot, increases local awareness and engagement in review of a proposed facility, and requires decommissioning plans and bonds for approved developments.  Learn more about S.B. 52 with our law bulletins and videos on the new laws, available in our energy law library.

Hear our next review of state and federal legislation in Farm Office Live on November 17 and 19, 2021.  More information is available here.

 

 

 

 

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