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December 2011 Archive for 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.

Double-Check Your Documents

Dec 30, 2011
Anthony Raimondo 2010 06 photo
Anthony Raimondo

Attorney Anthony Raimondo wants dairy producers to be clear about employment laws and immigrant labor.

“They need to be taken seriously,” says Raimondo. “The undocumented worker is not the only one at risk,” Raimondo says.

Speaking at Dairy Today's Elite Producer Business Conference in November, the California-based attorney shared information on U.S. Immigration and Customs Enforcement (ICE) employment policy and requirements.

According to Raimondo, employer obligations under immigration law mean:

• It is unlawful for any person or entity to hire, recruit or refer for a fee an alien for employment in the U.S. knowing that person is not authorized to work here.

• It is also against the law to continue to employ an alien while knowing that person is, or has become, unauthorized for employment.

• An employer has an affirmative defense if he or she complies in good faith with the verification process set forth in the statute, typically referred to as the I-9 process.

• “Knowledge” indicates not only actual knowledge but also “constructive knowledge.”

Constructive knowledge, Raimondo says, is awareness of certain facts or circumstances that would lead a person exercising reasonable care to know about a certain condition. Constructive knowledge that an employee is not authorized to work includes, but is not limited to circumstances where an employer:

  1. fails to complete the I-9 form;
  2. has information available to him or her that would indicate that a person is not authorized to work; or
  3. acts with reckless and wanton disregard for the legal consequences of allowing another individual to introduce an unauthorized alien into the employer’s work force or to act on its behalf.

 

• Knowledge that an employee is unauthorized may not be inferred from an employee’s appearance or accent, nor may it be inferred from mere suspicions or rumors.

Dairy employers should correctly fill out I-9 forms:

• Section 1 must be filled out by the employee before performing any work. The preparer/translator certification must be signed by anyone who assists. The employee is not required to provide his or her Social Security number.

• Section 2 (document verification) must be completed within three business days of starting work.  Make sure all new hires are provided with a copy of the list of acceptable documents shown on the back of the I-9 form. The same person who sees the documents must sign the certification. Record all document information.

• Documents must be originals that “reasonably appear genuine on their face.” If so, they must be accepted. Employers cannot specify which documents to produce.

“All new hires must be given the list of acceptable documents,” Raimondo emphasizes. (See sidebar) “You cannot require an employee to provide a Social Security card.”

Raimondo also wants dairies to carefully verify the documents submitted by employees.

• Make sure the employee presents original documents. “Copies are not acceptable,” he says.

• The law does not require you to copy employee documents. “If you keep copies, you are giving ICE an opportunity to second-guess your judgment on whether the document appeared genuine, except that ICE will be looking at a copy when you were looking at an original,” says Raimondo.
Copies are often of poorer quality than originals, and may not look the same. “Whoever fills out the I-9 for the employer has to certify that the documents appeared genuine under penalty of perjury, and that is enough,” he adds.

• Employees must produce one document from List A, or one from List B and one from List C. “Make sure you know the difference between them, and the purpose for each,” advises Raimondo. List A documents prove identity AND authorization to work. List B documents prove identity only. List C documents prove work authorization, but do not show identity.

• Errors, typos, and white-out-– let your mistakes be seen. “There is no reason to make ICE suspicious about what you might have blacked out,” says Raimondo.
 

Immigration Prosecutions Continue in the Dairy Industry

Dec 26, 2011

Enforcement of immigration laws against employers remains a priority for ICE, and these recent actions indicate that the dairy industry is squarely in the government’s sight. 

 
Anthony Raimondo 2010 06 photoBy Anthony Raimondo, attorney
 
On Nov. 8, 2011, Immigration and Customs Enforcement (ICE) officials announced that the owners of Aquila Farms, LLC, a Michigan dairy farm, were sentenced to three years probation and ordered to pay employer sanctions fines of almost $3 million for hiring unauthorized workers and harboring illegal aliens.
 
ICE alleged that the dairy employed 78 different unauthorized workers from January 2000–October 2007. The key allegation was that the dairy owners failed to fully and accurately complete I-9 forms for new hires.
 
ICE discovered that some employees were hired more than once using different names or Social Security Numbers. ICE also used mismatch notifications from the Social Security Administration to support the claim that the dairy owners knew the workers were undocumented.  According to ICE, the owners encouraged or induced the illegal aliens to reside in the U.S. by providing employment and free housing on the farm, which helped conceal them from anyone who might get suspicious and report them to the authorities. Under the plea agreement, the dairy accepted a $2.7 million dollar fine, and the owners face up to six months in prison.
 
This case follows the 2011 guilty verdict of a dairy farmer in Benton County, Iowa, who was convicted of engaging in a pattern of knowingly employing illegal aliens. As with the more recent case, the dairy was convicted of harboring illegal aliens because it provided housing for the employees. 
 
In November 2001, the Iowa dairy hired a husband and wife who were undocumented illegal aliens from Mexico. According to reports, the workers provided some documents that led their employer to believe they were legal. The couple were good employees, and a few years later, the dairy hired another member of the family. But the dairy’s health insurance provider refused coverage because the employee’s identity could not be confirmed.
 
Trying to assist the workers, the employer met with an immigration attorney attempting to legalize their status. This effort failed, largely because it is extremely difficult and almost impossible, for a worker who enters the country illegally to legalize his/her status without returning to his/her home country and entering the U.S. legally.  Ultimately, meeting with the lawyer provided ICE with powerful evidence that the dairy owners knew the workers were undocumented.  The dairy was fined $150,000.
 
Enforcement actions are continuing, and a dairy farmer in Chenango County, New York agreed in December 2011 to pay a $3,000 fine for employing undocumented workers.
 
Enforcement of immigration laws against employers remains a priority for ICE, and these recent actions indicate that the dairy industry is squarely in the government’s sight. It is critical that dairy owners do not ignore this problem and pretend it does not exist.  Employers can comply with the law, and can protect themselves from immigration violations, but they must be sure to have proper procedures and protocols in place. 

At minimum, every dairy should take the following steps:
 
  • Understand the I-9 process in detail and study the I-9 form until you are familiar with it.  Make sure you are using the current I-9 form.
  • Read and understand the I-9 “Handbook for Employers” (Form M-274), available at http://www.uscis.gov/files/form/m-274.pdf.
  • Make sure that I-9s are fully and accurately completed for all new hires.
  • Make sure that employees who process I-9s are properly trained.
  • Have a protocol in place to respond to Social Security mismatch notifications.  Do not fire anyone just because you receive one of these letters, but make sure you do not ignore them.
  • Do not allow employees to change their names and Social Security numbers.
  • If an employee admits that he or she is undocumented, immediately fire the person.  Simply ask yourself if you are willing to lose your dairy or even go to prison to protect that person’s job.
  • Seek legal advice immediately if you are audited or investigated by ICE.
 
Dairies can be successful and can have confidence that they are in compliance with the law.  But they must be proactive and committed to the I-9 process.  Otherwise, the consequences can be dire. 
 
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 McCormick Barstow LLP in Fresno, at (559)433-1300.
 

Plan for Employee Safety

Dec 16, 2011

Your employees are important assets to your farming business. You owe it to them to provide a safe workplace. Develop a culture of safety on your dairy.

 
ChuckSchwartau photoBy Chuck Schwartau, University of Minnesota Extension
 
The recent Midwest Dairy Expo included a session focused on being prepared for OSHA. The session covered a lot of ground but still left questions for dairy operators. Safety on the dairy farm is often missed as a topic for regular training and inspections.
 
A dairy farm is unlike most other workplaces because of its complexity. Worker safety is affected by equipment, weather, time of day, livestock handling, interpersonal relationships, season and a host of other factors. All these things are in play at the same time so addressing them can be daunting if one doesn’t have a plan.
 
Awareness
 
Some work areas come to mind quickly when thinking about hazards and safety. A lot of machinery is moving around a dairy farm. There is a joint responsibility for those operating the machinery and those working around it to know where the other is and to anticipate the next move. Along with that goes a machine operator’s responsibility to move slowly enough to give others a chance to respond and those others around need to be aware and avoid putting themselves in perilous positions.
 
Recognize and remind employees of the many different hazards around them every day.
 
Protection
 
How many people think about such things as ear plugs for those around equipment all day to protect hearing? Might your feed technicians be in need of dust masks because they are dumping dry, fine material into feed mixers? These are some of the other factors that need to be considered.
 
In many industries, repetitive action injuries are common and a matter of great concern. A person milking cows for seven, eight or more hours a day is similarly exposed to that repetitive action injury. Look for ways to give breaks to their routine, perhaps by rotating responsibilities or doing some small things to accommodate their work with less stress. 
 
Determine necessary shielding and other protective actions. Have them in place and insist employees use them as appropriate.
 
Training
Is everyone operating machinery thoroughly trained on the equipment they are using? 
 
I was once working with a program that needed a truck driver. The supervisors found a person on the job who had the proper class of license, so they made him a truck driver. After a harrowing ride with this person driving the truck, I found out he obtained his license driving a passenger van and had never driven a truck in his life. He had never been trained in a truck, and I made sure he never drove the project truck again! 
 
Just because a person has driven a tractor or a skid steer loader doesn’t mean he/she is familiar with the brand on your farm and comfortable operating it. Be sure they have some training and safe practice before you put them to work in your expensive barn and around your expensive livestock. If you aren’t comfortable with their skills, don’t assign them that task.
 
Provide training on a regular basis. Train and re-train to engrain safe practices in everyone’s mind and working routine.
 
Planning
 
Do you have a safety inspection program on the farm? This can be approached in two ways. One is to have a routine inspection on a schedule to look at specific items. The other response is encouraging employees to be on the watch for hazards, even small ones, and report them to the proper person for repairs. Taking care of hazards when they are first identified may prevent major incidents and injuries later. 
 
A safety planning session for your farm might start with an employee meeting where the owners emphasize their concern for a safe workplace in which employees can work with minimal fear of injury. This could also be a time to seek input from employees about hazards or practices they are aware of on the farm that make them uncomfortable. They often know the problems but are afraid to bring them up. If you solicit the input, many will share what they know and see around the farm.
 
Consider outside help to develop a safety plan and inspection process. There are companies that work specifically on safety planning. Ask your liability insurer about such help.
 
Another unlikely source of help is OSHA itself. Some might ask, “Why would I invite OSHA to my farm?” In some states the department of labor and industry (or similar agency) has programs under which OSHA staff will help businesses develop a safety plan and help identify hazards without subjecting the business to citation for violations. The key is to invite them before an accident occurs. They would much rather work with a business to prevent accidents than come to investigate an accident after the fact. Since some states are under federal OSHA operation and others have federally approved state OSHA programs, you will need to check your individual state to learn whether this option is available to your business.
 
Your employees are important assets to your farming business. You owe it to them to provide a safe workplace, and it is good, sound business practice to avoid accidents that could be both financially and emotionally costly to the business. 
 
Chuck Schwartau has been with the University of Minnesota Extension Service for 31 years. As part of the Extension Dairy Team, he focuses on workforce development and management, dairy business organization and risk management. Contact him at cschwart@umn.edu or (507) 536-6301.

Holiday Wish List for the Dairy Industry

Dec 12, 2011

Unfortunately, 2011 has been much more Grinch than Santa as it relates to dairy and immigration. Rather than compile a specific legislative wish list that is likely to die in another congressional committee, I have instead placed my hope in broader, more fundamental changes for 2012.

 
Erich Straub   CopyBy Erich C. Straub, attorney
 
In the spirit of the season, it is time for gift lists, reflections of the past year and resolutions for a new year. If it were simply a matter of sending a letter to Santa, then I would ask for 60 Senate votes for AgJOBS, or better yet, comprehensive immigration reform.
 
But unfortunately, 2011 has been much more Grinch than Santa as it relates to dairy and immigration. Rather than compile a specific legislative wish list that is likely to die in another congressional committee, I have instead placed my hope in broader, more fundamental changes for 2012.
 
An End to Political Vitriol
 
One of the most disturbing developments in the past year was the tone of the immigration issue in the debates for the Republican presidential nomination. It seemed as if each candidate was trying to out-do the other in being harsh on immigrants. One candidate said the fence at the Mexican border should be electrified. Another said there should be no sympathy for "Dreamers"--undocumented children brought to the U.S. by their parents at an early age. Another candidate, considered a favorite for the nomination, saw his chances decline after he was attacked because as governor he had signed a law to help Dreamers with in-state tuition.
 
Despite the ugly rhetoric, there are signs that the tone may be changing for 2012. Recently, Newt Gingrich began rising in the polls and decided to strike a moderate position on the immigration issue. His rivals pounced on him with accusations of amnesty, but his stock has continued to rise. Unlike his rivals, Mr. Gingrich seems to have paid attention to polls showing that upwards of 70% of Iowans favor a moderate approach to immigration reform.
 
No More Arizona-Style Laws
 
In 2010, Arizona enacted a law that mandated E-Verify and other tough restrictions targeting undocumented workers and their employers. Many other states have followed suit, most notably Georgia and Alabama. Proponents have described these laws as “job creation” legislation, reasoning that unemployed citizens would flock to the jobs left behind by undocumented workers.
 
The early results have been quite the opposite. In Georgia, 11,000 agricultural jobs went unfilled and crops rotted in the fields. In Alabama, the business community has publically questioned the law after the embarrassing arrests of two foreign Mercedes-Benz executives who were visiting business operations in the state. Most dramatically, Russell Pierce, the state representative who authored the Arizona law, was recalled and defeated by a fellow Republican who advocated a moderate approach to immigration reform.
 
Increased Popular Understanding of the Business of Agriculture
 
In my opinion, one of the greatest obstacles to solving the rural immigration crisis is the lack of understanding of most Americans about how food gets to the grocery store. There is a frightening disconnect that allows the advocates of Arizona-style laws to argue that such legislation will create jobs. Here in my own state of Wisconsin, I am struck by how many of my fellow citizens still hold the belief that their milk comes from a farmer who is sitting on a stool and milking a cow by hand. In order to solve the immigration problem, the dairy industry must redouble its efforts to educate the public and dispel such myths.
 
Is my Santa list too idealistic? I do not believe so. As stated above, there is evidence that the first two items have already started to happen, and dairy producers themselves could have an enormous impact on achieving the last item. I remain optimistic because even the Grinch eventually found the Christmas spirit.  
 
Erich C. Straub is an immigration lawyer who practices in Wisconsin and is listed in The Best Lawyers in America, SuperLawyers, and U.S. News and World Report’s Best Law Firms. Mr. Straub has spoken to audiences throughout the U.S. on immigration, and frequently advises Wisconsin Dairy Farmers on the topic. He has traveled Washington, D.C., to meet with elected officials regarding immigration reform. In 2008, the Milwaukee Business Journal described him as a “national leader on the federal immigration issue.” Contact him at (414) 224-8472 or erich@straubimmigration.com.

The Art of Active Listening

Dec 05, 2011

By becoming a better listener, you will improve your leadership and management skills as well as your ability to resolve conflicts, understand complicated situations, and minimize misunderstandings.

 
Chahine photo   CopyDr. Mireille Chahine, Associate Professor and Extension Dairy Specialist, University of Idaho
 
Listening is one of the most important skills you can work on improving. How well you listen will, without any doubt, impact your effectiveness as a leader, co-worker and/or manager.
 
Studies show that we typically only remember 25% to 50 % of what we hear. This means that when an employee talks to you, you are listening to less than half of his or her conversation. The way to become a better listener is to improve your active listening skills.
 
Wikipedia defines active listening as “a communication technique that requires the listener to understand, interpret, and evaluate what they hear.” It involves listening to your co-workers or employees before even starting to think about how to respond.
 
Acquiring and mastering the ability to actively listen will help you improve your communication skills, as well as your relationships, by improving understanding and reducing conflicts. Most of us, when listening to other people, do not pay close enough attention to what is being said. We continue doing our chores, reading our emails, evaluating the price of milk or, most of the time, thinking about how we are going to answer and what we are going to say next.
 
While actively listening, it is important to focus 100% on the speaker, to observe his or her body language so you can understand where they are coming from and what they are saying, while at the same time attempting to analyze the tone of their voice. Facing the speaker, minimizing internal and external distractions and keeping an open mind will all help you become a better active listener.
 
It is almost impossible to spend 100% of the time listening with nothing else in your mind, but you should strive to spend more time actively listening.  Asking for a couple of seconds to think about your response might give you more time to answer. Getting in the habit of thinking 1 or 2 seconds before answering anyone is a very beneficial skill that shows you are spending time thinking about what your speaker has said and will help minimize interruptions. Acknowledging the speaker by nodding could also be beneficial because it indicates you are listening without necessarily agreeing with the message said.  
 
Asking for clarification is a very important part of actively listening. It will allow you to clarify unclear interpretation and get more information. Paraphrasing the conversation will also allow you to test your understanding of the message, check out your assumptions and will give you more time to evaluate the situation and provide an answer. Remember that our assumptions and judgments can alter what we hear, so defer judgment and do not interrupt with counter arguments.
 
Finally, remember that by becoming a better listener, you will improve your leadership and management skills, as well as your ability to resolve conflicts, understand complicated situations, and minimize misunderstandings. Become a more effective listener. Practice the active listening technique and you will improve your communication skills.
 
Dr. Mireille Chahine is Associate Professor and Extension Dairy Specialist in the Animal and Veterinary Science Department at the University of Idaho in Twin Falls. Contact her at 208-736-3609 or mchahine@uidaho.edu.
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