Aug 28, 2014
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Labor Matters

RSS By: Dairy Today: Labor Matters, Dairy Today

Experts cover today’s key dairy labor issues and offer fool-proof techniques to optimize employee performance, sat­isfaction and longevity.

A New Pressure on Employers from Feds: I-9 Discrimination

Aug 25, 2014

U.S. Department of Justice is increasingly scrutinizing employer I-9 practices for discrimination against immigrant workers.

Anthony Raimondo 2010 06 photo

By Anthony P. Raimondo, attorney

Agricultural employers continue to struggle with compliance under a hopelessly broken immigration system that criminalizes employers for hiring the workers who are available and willing to work, and criminalizes immigrant employees who just want to work and try to make a better life for their families.

As Congress continues to fail to act on immigration, the pressure on both employers and employees in agriculture continues to grow. Now, a new pressure has been added.

The U.S. Department of Justice is increasingly scrutinizing employer I-9 practices for discrimination against immigrant workers. Conduct such as failing to provide the I-9 instructions with the form, specifying which documents are needed (i.e., "bring your drivers’ license and Social Security Card"), or requesting more documents than required (i.e. a Permanent Resident Alien Card and a Social Security Card) can lead to allegations of discrimination.

When completing an I-9, employees are entitled to choose to present any one document from List A, or any List B document and any List C document. An employer may not refuse to accept documents that reasonably appear genuine on their face and then request other documents from the employee. It is very common for employers to take a Permanent Resident Alien card (List A) and also take a Social Security Card (List C). If a List A document is provided, no further documents are necessary.

It appears that the federal government may be taking a greater interest in document abuse and immigration discrimination cases. In April 2014, a Dallas-area concrete company agreed to pay $115,000 in civil penalties, undergo training on the anti-discrimination provisions of immigration law, revise its internal policies, and be subject to government oversight for one year to resolve a federal government investigation. The investigation started because of a referral from the U.S. Citizenship and Immigration Services (USCIS), likely because of information uncovered in an I-9 audit. The government concluded that the company subjected non-citizen new hires to unlawful demands for specific documentation, while U.S. citizens were permitted to present their choice of documentation. The employer also selectively utilized E-Verify to confirm the employment eligibility of individuals they knew or believed to be non-U.S. citizens or foreign born.

"Employers cannot create discriminatory hurdles for work-authorized non-U.S. citizens or naturalized citizens in the employment eligibility verification process, which includes the E-Verify program," said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. "The Department of Justice is committed to protecting U.S. citizens and all work-authorized immigrants from document abuse."

In June, the Department of Justice negotiated a settlement with a Colorado janitorial company that resolved claims of immigration related discrimination. Specifically, the company required more documentation from non-citizens than was required of citizens. The settlement included payment of more than $50,000 in civil penalties and $25,000 back pay to compensate individuals who may have lost wages due to the discriminatory practices. The government also demanded the right to monitor the business’s employment eligibility verification process for one year.

Of greatest concern, the DOJ found in a separate investigation that a nursing home engaged in document abuse because required lawful permanent resident aliens to present a new green card after the old one expired, even though such reverification is unlawful.

Permanent residents have permanent work authorization in the United States that does not expire when the cards expire, much like a citizen’s work authorization does not lapse when a passport expires. While a permanent resident alien card must be valid at the time of hire, the form does not needed to be updated when the card expires. The nursing home also required permanent residents to produce proof of citizenship if they became naturalized citizens, even though this practice is prohibited by law. The case was settled for $14,500 in civil penalties, training on the anti-discrimination provision of the INA, establishment of a back pay fund, and two years of government oversight.

Employers must be sure to understand how the I-9 works, what documents are required (and what are not), and should make sure that employees processing new hires are properly trained. A great resource is the USCIS "I-9 Handbook for Employers" (Form M-274), available at Employers must be careful not to specify what documents are needed, and must be careful not to re-verify documents that do not require re-verification.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559) 432-3000.

What Could Obama Do?

Aug 21, 2014

With Congress stalemated on immigration legislation and little reason to expect a good legislative window before 2017, all eyes are on the President.

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By Craig J. Regelbrugge, National Co-chairman, Agriculture Coalition for Immigration Reform

With Congress stalemated on immigration legislation and little reason to expect a good legislative window before 2017, all eyes are on the President. He and his spokespeople have said that he intends to do what he can, "within the law," to improve the situation. Various industries are engaging in various ways, and many legal experts believe he could do quite a few things, each with its own attendant risks and benefits.

Agricultural employers of all types and political stripes have a lot of skin in this game. After all, a majority of the labor force is believed to have papers that wouldn’t stand up to a forensic investigation. But they’re the only ones applying for the work. The existing visa program, H-2A, is an unresponsive and bureaucratic mess. Some industries, like dairy, are virtually excluded from using it anyway, because neither the work nor the workers fit the definitions of temporary or seasonal. Without a doubt, we need legislation to fix the myriad shortcomings of the current system. But perhaps more limited measures could help. What’s possible?

First, without any fanfare, the Administration could shift enforcement priorities to stuff that really matters. At a time when all eyes should be on smugglers and cartels, we’ve seen considerable resources wasted on harassing farmers and their workforce, which was hired after showing papers that appear genuine, the legal standard. Homeland Security officials should only be auditing farms when there’s evidence of criminal wrongdoing, not randomly or on the basis of shadowy, anonymous tips from a disgruntled competitor, worker or neighbor.

Secondly, the Administration could provide some relief from deportation for some of the workforce. The default position is said to be to expand the Deferred Action for Childhood Arrivals (DACA) policy to unauthorized immigrants who have been here for a long time (maybe 10 years or more) or have U.S. citizen children. Such expansions might affect a considerable number of farm workers. The carrot would be legal authorization to work, but there would be no particular incentive to remain in agriculture. How many would take the risk of coming forward and essentially putting themselves on a deportation list? Would they stay on the farm or leave?

Farm worker advocates would like to see such policies extended to all experienced farm workers. After all, we’ve got a labor shortage now, and anything that stabilizes the workforce might help. Some legal analysts believe a better approach than deferred action to address this issue would be the use of "parole authority," an option that essentially allows for the waiving of normal immigration rules for specific individuals when it is deemed to be strongly in the public interest.

The other obvious area for possible action would be to improve the existing visa programs, in agriculture’s case, H-2A. Technically, it’s possible. Most of the cumbersome and unrealistic rules and restrictions of the current program are regulatory in nature, not in statutes passed by Congress. So the Administration could engage in a systematic rulemaking effort to achieve many of the goals of the bipartisan agricultural stakeholder agreement that became part of S.744, the comprehensive immigration bill that passed the U.S. Senate in June, 2013.

But despite strong support from many in Congress, including more than a few Senate Democrats, no one is expecting serious effort in this area. After all, Obama will likely listen to labor unions and worker advocates, and they have little interest in improving the visa program to admit more workers in the future.

Action of some sort is expected as early as September. It remains to be seen what the President will do, and whether it will be done in one step or several. But with House Republicans pretty much immobilized, it might be the only action we see for a while. Let’s hope it does more good than harm!

Based in Washington, D.C., Craig Regelbrugge is co-chairman of the Agriculture Coalition for Immigration Reform, and vice president for government relations with the American Nursery and Landscape Association. Contact him at or at 202-434-8685.

Which Robotic Milking Traffic System Is the Best?

Jul 21, 2014

How to decide whether the "free flow" or "guided flow" method is right for your dairy.

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By Greg Larson, MIone multi-box robotic milking system expert with GEA Farm Technologies

Of the many decisions that must be made when converting to a robotic milking system, choosing a cow traffic flow method will be one of the biggest decisions made.

There are two basic approaches to cow traffic in robotic milking systems – "free flow" or "guided flow." Both can work extremely well. As evidence, there are herds in the United States achieving production of 90 pounds per cow per day using each of these systems.

The choice between the two is a matter of herd goals and priorities; facility accommodations; and cost considerations.

Free flow promotes cow choice

As the name implies, free-flow traffic systems allow cows to operate on their own instincts. They choose how often they visit the robot, visit the feed bunk and rest in the free stalls. As a result, the cows usually eat smaller, more frequent meals, which can promote rumen health and a stable energy-balance. Ample resting time and low stress promote healthy feet and legs and a strong immune system.

Free-flow systems also have the lowest cost in the start-up phase because they require the least amount of sorting gates and other equipment. Most retrofitted barns are a free-flow system because it is the most practical to install in existing facilities.

The major drawback to a free-flow system is that you will spend more time "fetching" cows that do not visit the robot often enough. Feeding a high-cost feed concentrate in the robot and more pounds of concentrate per milking is necessary to entice cows to visit. Nutritional balancing also is more challenging, because the higher level of concentrate feeding results in the need to manage a "partial mixed ration" (PMR) at the bunk, versus a more traditional TMR system that dairyman are comfortable balancing.

"Milk-first" adds precision

Most herds using a guided-flow system take a "milk-first, feed-second" approach. Via a system of selection gates, cows are guided up to the robot for milking on a priority basis, ensuring that they are milked at regular intervals, up to four times per day. They then are released to the feeding area after milking.

Because the enticement of feed is not needed to attract cows to the robot, "milk-first" cows consume at least 40 percent less concentrate per day than cows in free-flow systems. This represents considerable savings in purchased feed costs. Guided traffic also allows for more customized feeding groups. After milking, cows can be sorted into different feeding zones based on production level, parity, stage of lactation or other desired criteria. Herds with milk-first barns typically utilize a post-selection system for management and veterinary actions and post-fresh cows.

Rations are formulated for milk-first barns mirror traditional TMR standards. Less purchased concentrate feed also allows producers to maximize their use of home-grown forages for maximum robotic profitability.

The milk-first approach also reduces the labor required to fetch cows that do not visit the robot frequently enough. The milking system also does not tie up cows that visit too frequently and must be refused. However, more timid and subservient cows may not fare as well in a guided system, and cows may spend more time standing in holding pens waiting to be milked.

Weigh your options

To identify the traffic system that will best suit your business model, it is important to identify your goals and priorities, for your dairy enterprise, your personal life and the future. Think about why you are adopting the technology, and what you hope to accomplish with it. You will have more flexibility in your options if you are building a new facility. At the same time, you need to choose your traffic system in advance, because details like barn design, ventilation and manure handling vary significantly between the two systems.

You should visit many other dairies using robotic milking systems as you develop your own plan. Allow for at least 12 months of research before finalizing your robotic milking decisions. And, of utmost importance, be sure to include options in your site plan to accommodate future expansions and the next generations.

For more information, contact Greg Larson, MIone multi-box robotic milking system expert with GEA Farm Technologies at (877) 973-2479, email:, or go to:


Dairy Lawsuits Rise Again

Jun 30, 2014

Protect yourself against the spike in legal claims, especially these three litigation areas.

Anthony Raimondo 2010 06 photo

By Anthony P. Raimondo, attorney

As the industry faced economic crisis through low milk prices and high feed costs, the rush of legal claims against California dairies began to subside as plaintiffs’ attorneys faced difficulty collecting settlements or judgments against financially strapped dairy producers.

However, as the economics of the industry have improved, the attorneys are returning as well, and a new rush of lawsuits has arisen against California dairies. Dairies nationwide should be alert to these trends, as the nation often follows what happens in the West.

The types of claims faced by dairies include the following:

  • Wage and Hour: While federal law provides only for minimum wage for agricultural workers, such as dairy employees, many state laws impose overtime and other obligations on employers. Producers should be aware of their state’s minimum wage and overtime requirements, as well as pitfalls that can lead to liability. For example, in California, employers can credit the value of housing towards minimum wage, but only if there is a written agreement where the employee agrees to the amount of the credit. In addition, while federal laws allow for salaries that cover both regular and overtime hours, states such as California make it very difficult to defend against overtime claims from salaried dairy employees. Producers need to be aware of the wage and hour and recordkeeping requirements for their particular state.
  • Discrimination/Harassment: Dairies have seen a spike in cases alleging discrimination or harassment, often on the basis of race or national origin. Federal agencies are increasingly aggressive about claims of sexual origin or gender identity discrimination, and producers should take care to avoid such claims. Dairies should be alert to prevent teasing or other behavior that can lead to claims of discrimination or harassment. Maintaining written records of discipline and performance can also help defend against claims of discrimination. Producers should be alert to employees who are on extended workers’ compensation leave who then make claims of disability discrimination. Employers must remember that they have an obligation to engage in an interactive process with injured employees to determine what, if any, accommodation is needed to return to work, and whether that accommodation is reasonable or presents an undue hardship to the ranch.
  • Pension Withdrawal Liability: Many dairies were unionized at one time, and have moved or otherwise left the union behind. The law broadly protects financially strapped pension plans, and can impose liability on participating employers to make up the plan’s shortfall when the employer withdraws from participation. Dairies should seek legal advice if they plan to withdraw or have already withdrawn from a multi-employer pension trust, as the exposure to liability can be significant.

Sadly, as the economics of the industry improve, farmers and other employers must be cautious that the improved conditions also attract attorneys who will target farmers in attempts to divert the flow of income away from the ranch and toward the attorneys. Producers must be proactive to educate themselves and protect against this threat.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559) 432-3000.

Become a SAFER Farm

Jun 12, 2014

As dairy farms grow in size and the number of workers (family and non-family) increases, providing a safe working environment becomes more important.

By Chuck Schwartau, Regional Director, University of Minnesota Extension

As dairy farms grow in size and the number of workers (family and non-family) increases, providing a safe working environment becomes more important.

An Australian program, "The People in Dairy" suggests "SAFER" Principles for farm safety.

See - identify hazards to health and safety on the farm
Assess - decide the risk associated with the hazard
Fix - take appropriate action to control the risk
Evaluate - check to be sure your controls are effective
Record - record actions you take or plan

Seeing hazards is a job in which everyone on the farm must participate. Encourage everyone to be watching for hazards on the farm. Make it easy for workers to report and record hazards as they are seen so someone can Assess them promptly.

An assessment should be conducted to establish the severity of the hazard and determine appropriate action steps -- the Fix...

Action steps don’t always mean expensive fixes or changes. High risk hazards should be eliminated if at all possible, but many hazards can be more simply addressed:

1. Eliminate the hazard when possible. This might mean replacing a product or piece of equipment or totally eliminating it from the farm.

2. Substitution is another option. You might be able to replace the hazard with equipment or a procedure that is less hazardous.

3. Engineering might minimize the hazard. Installation of guards, railings, safety switches or building proper storage units often eliminates or minimizes the hazard.

4. Safe work practices and procedural changes may minimize the risk to workers. A set of well written standard operating procedures (SOP’s) should include practices that avoid or minimize risks.

5. Don’t forget personal protective equipment (PPE). After everything else is done and there is still some degree of hazard, provide proper PPE for workers and insist it be used as it is intended. PPE’s on a shelf, in a cupboard or hanging on a hook are no protection.

Evaluate is the fourth stage of the SAFER program. Check the impact of the Fix that was implemented. It is important for employers to check back and be sure the steps taken have achieved the desired outcome. Did hazard elimination or guarding get done? Were Stand Operating Procedures (SOPs) developed and are they being followed to eliminate or minimize the hazard? Is PPE being used all the time? If any of these questions leave doubt that the hazard has been fully addressed, you know your job of providing a safe workplace isn’t quite done and you need to look again at the action step.

Record all the actions you take or plan to take. This will provide the documentation that would probably be requested if your farm is ever the subject of an OSHA audit.

The most important factor to achieve success is the people on the farm. If the people aren’t willing to work with you on safety, a good safety program will be difficult to implement. If the workers are engaged in the plan development, they are much more likely to implement it.

Suggested steps to worker engagement are:

  • Work with the workers to identify hazards and have them help with assessment.
  • Regularly include health and safety discussions in staff meetings.
  • Record workers’ input and actions taken on any safety items. This step will help demonstrate your effort to comply with regulations.

Be a good role model for your workers. Be sure to practice good safety yourself in everything you do on the farm.

I very deliberately used the term "workers" rather than "employees" because it includes all owners and managers on the farm, as well as non-family employees. A culture of safety on the dairy means everyone needs to take the issue seriously and practice safety all the time. If you don’t work safely all the time, why should anyone else?

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