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March 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.

Can Individual State Laws Provide Dairy Producers Hope on Immigration Issues?

Mar 28, 2011

The growing number of individual state actions and the recent recommendation from the Dairy Industry Advisory Committee might actually spur Congress to move on immigration.

Miltner photo   CopyBy Ryan Miltner, attorney
When it comes to legislation dealing with immigration, individual state legislatures are doing far more than Congress.
In recent months, a number of states have voted on bills aimed at addressing illegal immigration. In some instances, the legislation has passed. In others, the measures have either stalled or been defeated. The most interesting aspect of these state-based attempts at regulating immigration is not the content of the laws themselves, but the fact that so many states are involved in legislating on a topic that is predominantly a federal issue.
Under our Constitution, laws defining who is or is not a citizen of the United States and who may or may not enter the country are matters for determination by the national government--not the individual states. The principal rationale for national supremacy on the issues of citizenship and immigration is uniformity. Just imagine the problems that would arise if an immigrant was legal in one state, and illegal in another.
But in today’s environment, where many citizens are increasingly frustrated and angry about the federal government’s actions (or lack thereof) on immigration, many states have taken the matter into their own hands. 
The first real state action was in Arizona, where the state legislature enacted a law that required all employers to utilize the national E-Verify database to check the status of newly hired workers.  Arizona employers that did not use E-Verify and hired workers that were later determined to be illegal faced mandatory suspensions and revocations of their business licenses. The conflict with federal laws arises because the federal government does not make E-Verify use mandatory--only compliance with Form I-9 requirements.
Other states have passed their own versions of Arizona’s E-Verify law, and Arizona’s later legislation regarding the requirement that law enforcement check the documents of suspected immigrants has been heavily documented and discussed. Utah just passed its own version of a comprehensive immigration reform package. But ultimately, all these actions may be moot. 

In December, the United States Supreme Court heard arguments on whether the Arizona E-Verify legislation was constitutional. Based on the questioning from the justices during oral argument, the decision will be a close one, although many followers expect the law to be struck down. Regardless of the ultimate decision, it is likely that individual states will continue to seek their own solutions to this national problem.
Tamar Jacoby is the CEO of ImmigrationWorks USA, an association of business owners (including farms and farm organizations) advocating for comprehensive federal immigration reform.  In an op-ed article in the Los Angeles Times on March 25, 2011, Ms. Jacoby wrote that the growing number of individual state actions might actually spur Congress to move on immigration: “In the short run, a crop of state bills would send a powerful signal to Washington.  . . . And eventually, if enough states joined in, they would create a situation so intolerable that even Washington couldn't ignore it.”
For dairy producers, someone in Washington does understand and has been listening. The USDA Dairy Industry Advisory Committee finalized its report to the USDA Secretary earlier this month. Among its 23 recommendations was one directed squarely at the need for clarity on immigration. The committee recommended, “The Secretary should use his influence with other agencies and Congress to provide a legal means for dairy farms to employ year-around long-term immigrant labor. Provide assurance that existing farm laborers have the opportunity to obtain permanent resident status.”
Perhaps between the actions of the individual states and reports like those of the Dairy Industry Advisory Committee, dairy producers can be guardedly optimistic about Congress eventually moving forward on immigration reform. 
Ryan Miltner is an agricultural and estate planning lawyer in private practice. His agricultural practice is focused on dairy policy and the economic regulation of the dairy industry. The opinions in this article are his own observations prepared for Dairy Today and do not necessarily reflect the opinions of any of his clients. Contact him at

Great Employees through Great Management

Mar 21, 2011

Misunderstandings and mistakes have led to good employees leaving the job, and also good managers being taken advantage of by employees.

GregCofftaPhoto webBy Greg Coffta
Bilingual Dairy Support Specialist
Cornell University, Northwest New York Dairy, Livestock and Field Crops team
For many dairy farm managers, personnel management job duties are often avoided, relegated or overlooked completely. When there is a language and culture barrier, the responsibility can be even more daunting.
Of course, this had led to some caustic situations on the farm, both for getting the job done and for interpersonal relationships. Misunderstandings and mistakes have led to good employees leaving the job, and also good managers being taken advantage of by employees. Misunderstandings and mistakes are unavoidable and are a necessary part of the learning process.
Consider the following examples of mistakes that have been observed on dairies and see if we can take a lesson from them.
Ignorance is bliss -- but not for long
A common phrase stated by the especially aloof manager goes something like, “Well, Juan is one of our best milkers and he has trained the others.” Busy managers can sometimes assume that training of new employees is taking place according to protocol and procedure, especially when a trusted and proven employee is doing the training.
Hoping without ensuring that adequate training is being provided leads to devolution of the milking routine and consequent herd health and milk quality issues. It can also lead to an employee becoming frustrated due to lack of direction or a manager becoming frustrated due to lack of productivity. Most dairy farm owners, managers or operators can probably tell you story of an employee that started off really well, was promoted to work outside the milking parlor, but then became disgruntled and eventually left the farm or was fired.
Don’t assume that if an employee is good in the milking parlor that he/she will automatically be good outside in the barns. An employee who is used to a rote milking procedure will need time to transition to the more independent and variable job of assistant herdsman. Without good direction from the manager, this transition can be very frustrating.
Aside from job readiness, a manager should be keen to some basic employee quality of life issues. Spanish-speaking employees in such rural settings rarely have adequate transportation, so trips to the store and access to other essential services are a challenge. Sure, there may be a third party that provides transportation, but it may be irregular and it may be costly to the employee. Ensure, don’t assume, that the employee is able to access transportation.
Information about life in the community and services (health care, managing utilities, housekeeping, grounds keeping, etc.) are also commonly assumed to be known by employees that come from another language and culture. When managing Spanish-speaking employees, it’s important not to make these assumptions. Ensure that adequate training is taking place and that employees’ needs are being met.
Milking the cows or milking the clock?
Many dairy owners, operators and managers take pride in the team of employees that they have. So proud, in fact, that their pride becomes hubris, and they assume that employees comport themselves as they should when the boss is not around. The manager may also become inattentive to the time clock and to employee job performance.
The problems that arise from this often manifest in the night shifts, when there are few, if any, managers on the farm. Many dairies have taken a closer look at employee performance during these times and have found that milking routines are completely out of order. While some cows go unmilked, the time clock does indeed get milked.
On one farm, the manager discovered that he was paying six employees each an extra of eight hours per week because the employees colluded on punching each other in and out at the shift changes. Records showed this happened for half a year for sure, possibly more. It started out with just two employees, but soon involved others across the second and third shifts. 
Naturally, this unethical behavior is unacceptable from any employee and should be reprimanded. Of course, this problem has been around as long as there has been a time clock. This problem is not endemic to Spanish-speaking employees. However, the owner/manager admitted that he had not been on the farm between the hours of 7 p.m. and 5 a.m. for at least a year, nor had any other manager for that matter. 
Visiting the farm vigilantly and micromanaging are two practices that are reactive and detracting to productivity, and that’s not what’s being suggested here. What is being suggested is that the manager monitors employees more effectively. Periodic review of the timecards along with a random visit to the farm during off hours would have prevented this situation. Note: It is not time-effective to visit every night, or even once a week. Once a month should do it to start, but the key here is a random visit.
Remember, Spanish-speaking employees have been excellent employees for New York’s dairy industry but nonetheless are still employees. Some are aces and some are jokers, many are jacks. Without proper management -- including training, follow-up and monitoring -- you’ll end up losing more hands than you win.
In his role as Bilingual Dairy Support Specialist for Cornell University’s Northwest New York Dairy, Livestock and Field Crops team, Coffta provides training, translations and meeting facilitation as well as management consulting in English to New York dairy farms. He obtained his bachelor’s degree from SUNY College in Brockport with a double major in Spanish and communications. He earned a master’s degree in education from the University at Buffalo. Contact Coffta at

They Told Me I Had to be Competent, but Culturally Competent?

Mar 14, 2011

Increasing numbers of dairy employees are immigrants. Whether you like it or not, you are called upon to be a culturally competent employer.

Duvall, Shaun pro photo 1 11   CopyBy Shaun Duvall
Chris was a lifelong dairy farmer. He grew up milking, managing and cropping. He took over for his parents. It became clear in the mid-1990s that to stay profitable, he would need to expand and hire employees. After doing so, the next challenge was hiring and keeping employees.
After some time, he called me and we worked together to help him become a better employer. Not only did he have to learn to manage people, he had to learn to manage people from a different culture who didn’t speak English well. He traveled to Mexico to the homes of his employees and learned how to be a culturally competent employer.
According to research conducted by Dr. Jill Harrison, UW-Madison, approximately 40% of employees on Wisconsin dairies are immigrants. (Here is a link to her research: I imagine this is true on larger dairies in the U.S. That being the case, you need to know how to do this correctly. Whether you like it or not, you are called upon to be a culturally competent employer. What does cultural competence look, feel like? How do I know if I am competent? And why does it matter?
Let’s begin by defining culture. Paraphrasing from Craig Storti’s book, Figuring Foreigners Out, culture is the characteristic behaviors of a group of people that reflect shared values and beliefs. In other words, your actions are guided by your beliefs. This means that your actions are neutral. They are simply reflections of your values and beliefs.
The same behavior in one culture may reflect a different value in another. For us, looking someone in the eye reflects a belief that it is important to be direct. For other cultures that value showing of respect to an employer (superior), looking one in the eye can mean a challenge or defiance. Same neutral behavior, but very differently interpreted.
If you start to think about this, you can observe many of your behaviors, and then analyze the value or belief that lies behind it. Do the same with your employees. Instead of judging a behavior, simply ask what might be the value or belief behind it? Lots of misunderstandings can be prevented by doing this. (A caveat here: This doesn’t mean that you have to agree. You simply understand.) Expect that your employees do the same. Explain the belief or value behind what you do. Get them to begin doing the same with their actions. 
Secondly, recognize that no culture is better or worse than another. They are different in ways and similar in ways. The important thing is to set aside judgment. Recognize and celebrate the ways we are different but also the things that we have in common: values, beliefs and connecting with others.  Be OK talking about our values and asking about theirs.
Thirdly, recognize the benefit you receive from growing more culturally aware and competent. We have so much to learn from one another. Why waste time and energy working so hard to be different? It is just like learning another language. You never get “stupider” learning another language. Likewise, you only become wiser and a better employer having more cultural competency. Of course, it matters because a better employer/employee relationship means more profitability.
In producer Chris’ words, “It is an investment of time that bears great rewards. Getting to understand little and big things, from differing meaning of gestures, to understanding their concept of an employer, and helping them to reach their potential that pays off richly on my farm, and in my life. I know it does for them as well.”
Puentes/Bridges is a nonprofit organization that, under Shaun Duvall’s direction, promotes cultural understanding, particularly in the dairy industry. Duvall also operates SJD Language & Culture Services, LLC, a translation and interpretation business. For more information, contact Shaun Duvall at or (608) 685-4705.

California Court Endorses the Use of Salary Agreements

Mar 07, 2011

A recent court decision will have a significant impact on how dairy employers – not just in California but potentially nationwide -- pay their employees.

Anthony Raimondo 2010 06 photoBy Anthony P. Raimondo, attorney

On Feb. 7, 2011, the Second Appellate District (Los Angeles) of the California Court of Appeal issued a landmark decision in Arechiga v. Dolores Press, Inc.  This case will have a significant impact on how dairy employers – not just in California but potentially nationwide -- pay their employees, since it relaxes the overtime rules for salaried non-exempt employees.

Historically, it has been a common practice for dairy employers to pay employees a fixed salary regardless of the number of hours that they work. In California, this practice led to liability with the passage of Labor Code section 515 in 2000 because the Labor Commissioner and the courts have held that such salaries only compensate for an employee’s regular hours. California dairies found themselves exposed to a higher hourly rate, and no credit toward the overtime pay that was owed.  This case represents a complete reversal of prior policies, and gives relief to California dairies in a difficult economy.

Under this new decision, the court held that an employer and an employee can enter into “an explicit agreement” to pay a salary that will compensate for both regular and overtime hours.  Such an agreement must specify the basic hourly rate of compensation on which the guaranteed salary is based, and must be entered into before the work is performed.  The employee must receive at least one and one-half times the agreed hourly rate for overtime hours. 

Specifically, the agreement must be in writing and must include the following: 
1. The days that the employee will work each week;
2. The number of hours the employee will work each day;
3. The guaranteed salary that the employee will be paid;
4. The basic hourly rate upon which the salary is based;
5. That the agreement covers both regular and overtime hours; and
6. That the agreement be reached before the work is performed.

This case sets an important landmark standard for dairy employers to bring their salary pay agreements into compliance with applicable law. Generally, written agreements defining the scope of the employment and the compensation can help protect employers from potential liability, and can ensure that the employment is “at-will,” giving the dairy greater flexibility when problems arise. 

For dairies outside of California, the case sets a good example of how to approach salary agreements in order to reduce the risk of liability. Dairies should be sure to consult with an experienced attorney in their state for guidance regarding particular laws and regulations in their state.

All dairy employers should immediately enter into written agreements with salaried employees regarding the established hourly wage and the intended number of overtime hours to be covered by the salary. Of course, if employees work overtime beyond the salary guarantee, they must be paid for any hours worked in excess of the salary.

But this is the first opportunity in over a decade for dairy employers to gain some relief from California’s onerous wage and hour laws and the way those laws have impacted employers who pay on a salary basis. Employers should have their agreements reviewed by counsel to be sure that they meet the requirements of the law, and that they provide protection in other areas of the employment relationship, such as preserving the at-will presumption.

The major question remains regarding the requirement that the agreement be reached “before the performance of the work.”  At minimum, entering into such an agreement immediately will protect dairies from claims going forward, but may not protect them from claims covering the period prior to the written agreement. In any event, such agreements will be an important way to minimize exposure and at least cut off the growth of future exposure.

For assistance with such an agreement, contact Anthony Raimondo at McCormick Barstow at (559) 433-1300.

Based in Fresno, Calif., Anthony Raimondo is a labor attorney specializing in agricultural labor issues, primarily in the dairy industry. He counsels farmers on legal compliance and labor relations strategies and defends them before courts and administrative agencies. He has run counter-organizing campaigns against the country's most aggressive agricultural unions and has negotiated favorable contracts for unionized employers. He is also the primary labor resource for Western United Dairymen. Contact him at (559) 433-1300 or


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