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June 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.

Preparation Is Key for I-9 Audits

Jun 27, 2011

Here’s valuable advice on what to expect before – and after – a “silent raid” by Immigration and Customs Enforcement.

 
GregCofftaPhoto webBy Greg Coffta, Cornell University’s Northwest New York Dairy, Livestock and Field Crops team
 
More and more dairy farms across the country are feeling the chilling effect that ICE (Immigration and Customs Enforcement) can have on a business’s operations. 
 
Increasingly over the past 18 months, ICE has been conducting what is commonly known as a “silent raid,” instead of the traditional worksite raid on undocumented employees. The “silent raid,” or I-9 audit, involves a thorough inspection of the employer’s HR documents, principally I-9 forms and payroll information. The audit can lead to serious consequences for employers and employees alike.
 
Many farms that I work with have been the subject of an audit and its consequences, leaving them in a scramble to solve multiple problems simultaneously. Compliance with paperwork requirements is often the first problem. Employers will have to go through the paperwork with a fine-toothed comb to make sure it is free of violations.  
 
Another problem is ensuring that managerial staff is uniformly prepared if approached by an ICE agent. Finally, and perhaps the most enduring, is the problem of losing competent and experienced employees. Usually an audit will result in a list of employees who do not have valid documentation, and therefore have to produce the documentation or discontinue employment.
 
As ICE audits become more and more common, dairy farms should be preparing themselves for the inevitable. First, and of course, seek out legal counsel and representation that you can trust. Try to find a person who is experienced in legal matters regarding immigration and labor. This person can help you avoid the pitfalls that employers can commit when preparing for an audit. They could also help develop an on-farm protocol for employees to follow if an ICE agent visits the farm. If and when an audit does come to pass, you will surely want that person’s number on-hand.
 
It is good practice to have a meeting with all employees, especially managerial staff, to prepare them for dealing with ICE agents. All employees should be trained to tell ICE agents that the company has a very specific protocol for dealing with any matter of concern, and that the agent will have to wait to speak with the designated person. 
 
Along with that, have a designated person or two on staff who has been counseled by your legal representation. Employees shouldn’t be interviewed by, or give any documentation to, ICE without first conferring with the designated person. 
 
It is also a good idea to keep all I-9 forms and supporting documents in a separate, stand-alone folder. It is prudent to keep information for all farm employees, not just those you think may be in question, in this file. (On a side note, remember that an employer is not required to keep copies of documents that employees present for the I-9 form, but if you do it for one you should do it for all.)  If an audit does come to pass, the folder can be given to ICE for the audit.
 
Initially ICE will require the I-9 forms and supporting documents, but later it may request payroll information, a list of current employees, articles of incorporation and business licenses. Submitting paperwork that is not initially necessary for the audit, submitting paperwork without making a copy and/or giving ICE access to the all of documents in the office are all pitfalls that you should consider.
 
Along with the preemptive preparation of personnel and paperwork, it is important to know about the process of an I-9 audit and about your rights. Although no search warrant is required for an audit, ICE is required to give a notice three days prior to inspection. This will be presented in the form of a letter called the Notice Of Inspection (NOI).
 
After the audit, ICE will provide the results. Ideally, there will be no discrepancies, no violations, no citations and no problems, and the employer will receive a simple Notice of Inspection Results letter, which tells that the farm is compliant. 
 
Realistically, ICE will give out notices to the employer. The most common notices include:
·                     Notice Of Suspect Documents
·                     Notice of Discrepancies
·                     Notice of Technical or Procedural Failures
·                     Warning Notice
·                     Notice of Intent to Fine 
 
These different types of notices will indicate the severity of the problem and what the employer should do to comply. A Notice of Intent to Fine is perhaps the most severe, but a Notice of Technical or Procedural Failure could result in the discontinuation of many employees. 
 
For more detailed information on ICE’s process, visit this link, which is ICE’s own “Form I-9 Inspection” overview: http://www.ice.gov/doclib/foia/dro_policy_memos/formi9inspectionoverview.pdf.
 
In my experience, the loss of a handful of key employees is the most painful and dramatic of the consequences of an audit. After losing those employees, farms have struggled for months to find a way to replace them. Even a year after an audit, some farms are still feeling the effects of losing the employees because they have searched the limited human capital of the surrounding area and haven’t been able to find an adequate replacement. 
 
Although you’ll never know if an audit will come to pass, and therefore never know if you’ll need to replace employees fast, there are ways to be prepared for this eventuality. 
 
First, cross-train your employees and cross-train their positions. Having a team of malleable employees ready to shift into new responsibilities is extremely helpful in the short-term. Another preventative measure is to speak with another area dairy farm to set up a plan for “renting” employees for a short time. If you are going to lose a significant number of good employees, it’s likely you’ll have to use both of these strategies.
 
It is my hope that changes will soon be made that will enable a realistic program for dairy farmers to hire on a team of employees without having to worry about the issue of ICE, just as most other agriculture operations do with H2-A and other Department of Labor programs. For the time being, preparation is critical, as well as staying abreast on the issue both nationally and locally.
 
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 gjc53@cornell.edu.

Confianza y Compromiso: ¿Qué Son? (Trust and Commitment: What Are They?)

Jun 17, 2011

Look for ways to develop trust and commitment with your employees. Help them and to be part of their lives. They will pay you back with loyalty, hard work and results.

 

Duvall, Shaun pro photo 1 11   CopyBy Shaun Duvall, Puentes/Bridges

 

We are all beings who thrive on relationships. Whether we like it or not, we are in any number of relationships with all those with whom we deal daily. Somehow, though, we tend to forget that our interactions with our employers/employees are also relationships. We reduce it to an economic transaction- x number of hours of my time for x amount of money. And yet work consumes a significant amount of our day and our lives.

 

How many of you remember or had a first employer who took a personal interest in you as a young person? How many of you had a first employer who didn’t take a personal interest in you? I ask you, how different are your memories of that employer? Unless I am wrong, you probably worked harder for the employer who cared about you than you would have for someone who didn’t take the time to get to know you.

You are all people who work with cows. My question to you is: How much easier is it to get a cow to do what you want by hitting her or coaxing her? The vast majority of the 40-plus dairy producers with whom I work would say that you can get better results by coaxing and not scaring a cow. Why should we think it is any different with people?

Do not get me wrong. I do not mean that one disregards high standards of performance to be nice. Indeed, the standards are often much higher due to the fact that the employees WANT to perform better for someone who cares about them. I have seen this on many of my farms. When the employer cares and demonstrates that level of trust and commitment, his/her employees return the “favor” by performing at higher levels.

There is an old concept in Mexico about the “patrón,” or employer. In the very best sense of the word (not always practiced there or here), it is someone who commits to his/her employees, doing more than just paying them a check. It is someone who attends his/her employees’ baptisms and quinceañeras, lends them money if there is a need, helps them when they need something. It is part of the “trato,”or the deal. In return, the patron gets an employee for life, someone who is loyal and works his/her best “para quedar bien” (be on good terms) with the patrón. It is my experience that it is on the farms where this is practiced that the production, quality of milk and of life is the best.

Confianza and compromiso mean trust and commitment, respectively. Trust in your employees, be trustworthy to them. Commit at the level you can to help your employees and to be part of their lives, and they will pay you back with loyalty, hard work and results. The respect will be mutual. I am not saying be their “buddy.” Far from it. You are the employer. I am an old teacher. I never could be my students’ friend, but I was always friendly. There is a big difference.

We live in a world of great “disposability” – that which we no longer want, we simply toss. This includes people. I challenge us all to take a different approach. Look for ways to develop trust and commitment. Help your employees reach their potential, help them in the ways that you can. Train them through their mistakes. Earn their trust and you will reap great rewards.

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 shaunjd@tds.net or (608) 685-4705.

Is Human Resource Management the Weak Link at Your Dairy?

Jun 13, 2011

With employment litigation now the fastest-growing area of U.S. lawsuits, turning a blind eye to human resource principles opens your dairy to the threat of costly legal action.

Anthony Raimondo 2010 06 photoBy Anthony Raimondo, attorney

One of the very best traits of the dairy industry is the fact that the industry is dominated by family farms. While the industry takes justifiable pride in the families that populate it, there are times when this strength can become a weakness.  For example, when the term “human resources” is mentioned, many dairymen immediately react with the thought that human resources is a tool for big business, not the family farmer.

Employment litigation remains the fastest-growing area of litigation in the U.S., and turning a blind eye to human resource principles is to ignore the threat that such litigation poses to the family farm. A single lawsuit, by the time it is done, can cost a dairy hundreds of thousands of dollars. In years past, such a risk could be tolerated as part of the general risks of doing business, but in today’s fragile dairy economy, that risk could spell disaster for farm families. 

The degree of human resource management that is needed depends greatly upon the size and circumstances of the dairy. A larger operation might need to dedicate a full-time employee to manage human resource issues, while a smaller farm might be fine simply assigning responsibility to a family member or employee in addition to other duties.  Regardless of how the particular dairy approaches human resource management, there are essential tools that must be in place. Some key ones are:

1. Employee Handbooks.  An employee handbook is a critical tool to protecting the farm from potential claims. Handbooks make established rules and procedures clear and undeniable, and establish the dairy’s expectations for employees. If a dairy is accused of discrimination, it is incredibly valuable to point to a handbook to find the rule that was the reason for the termination. Too often, even dairy producers who recognize the importance of handbooks make the mistake of using generic templates or handbooks created for other businesses as a basis for a dairy handbook.  But agriculture is a unique industry, and dairy is unique with in agriculture. For a handbook to be effective, it must be tailored to the policies and practices of the dairy.

2. Recordkeeping.  Like it or not, modern society expects businesses to have records. Dairies should have a personnel file on each worker with the employee’s personal information, I-9 form, W-4 form, and other documents related to the employee. I-9 forms should be separately stored so that they can be easily produced in the event of an audit. All dairies should have time clocks and detailed payroll records, especially in California, where wage and hour lawsuits against dairies are an epidemic. If employees break the rules or perform poorly, the action must be documented in the personnel file.  Such records can provide the dairy with the tools to defend itself if accused of discrimination or other wrongdoing. The records also need to be kept for time periods dictated by law.

3. Communication. Dairies are often challenged by the fact that the employees speak predominantly Spanish, while owners often speak only English. It is critical to have an effective means to communicate with workers, and to keep notes to document conversations. Lawsuits and union organizing may end up being about money, but they almost always start with anger and bitterness. One labor dispute started at a California dairy because an employee was upset at being moved from an outside position to a milking position without explanation. With no outlet to voice his complaint, the worker became increasingly bitter, until he ultimately led the charge in a multi-employee lawsuit against the dairy. It is critical to have a clearly explained process for employees to raise their concerns in a way that will ensure that their concerns are heard and addressed. This does not mean giving in to every demand, but it does mean sending the message that the employer is listening, and will explain why the dairy is doing what it is doing. Efforts to resolve employee grievances must be documented so that the dairy can prove the actual chain of events if it has to in litigation.

While not every family farm needs a dedicated human resource department, every farm needs to address human resource management in some manner. Too many dairies are caught up in difficult litigation without the tools to defend themselves. While there is no way to absolutely prevent accusations from being made, effective human resource management will reduce the risk of litigation, and will put the dairy in a position of strength to defend itself if litigation arises.  Family farms remain a treasure in the industry, one that deserves to be protected through implementation of human resource tools.

The goal of this article is to provide employers with current labor and employment law information in a general way.  Individual circumstances vary widely, and consultation with a lawyer is the only way to make sure legal requirements are being met in a given instance.  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.

Employees and Training Are Investments Worth Cultivating

Jun 06, 2011

You need to invest in employees if you want top performance from them and from your farm.

ChuckSchwartau photoBy Chuck Schwartau, University of Minnesota Extension Service
 
Recently I was in a ‘think tank’ group considering new educational programs for dairy farmers. The discussion came around to employee development and whether it is a cost or an investment. Someone in the small group raised the point that he was hesitant to invest too much in training his employees, because they will just get hired away by someone else and then he’d have to start over again. I have to admit, I was caught a bit off-guard by the comment.
I’ve heard that said before, but I thought we had gotten past that notion and had impressed on farmers the value of proper training and development of employees. Apparently we still have a ways to go in that arena.
I can’t help but think back to a retired bank president who once told me with great pride of the number of vice presidents that had gone through his bank. At first glance, one would wonder why he was proud of having so many past VPs. His pride came from the fact each of those previous VPs had gone on to be vice president at larger banks with more responsibility, or even as presidents at some banks. This gentleman took great pride in having been a part of developing that employee to be qualified for even better jobs.
That attitude is reinforced by a quote from Bill Mies, professor emeritus at Texas A&M University. Mies said, “I always felt I’d rather have people working for me that other people were trying to hire than the ones nobody wanted. If I could train them, make them that valuable person that somebody else wanted to hire, I was still getting a better person working for me every day they were here. So we’ve got to put more time and investment into our people.”
Every farm wants that perfect employee who shows up for work early every day, stays late (but never puts extra time on the time card!), does at least 1½ times the work of any other employee, never makes a mistake, and does that all for minimum wage. Unfortunately, there aren’t many of them around-- unless you count yourself!
The point is that you need to invest in employees if you want top performance from them and from your farm. Even employees who come to you with great skills and experience need training from time to time for new tasks, handling new equipment, following new procedures, or even as a reminder of how familiar procedures are supposed to be done. No one is a perfect sponge who retains every message the first time and never forgets any of it. We all know more than we practice, so we need reminding from time to time.
Regular training opportunities help your business perform better. Regular training is a good opportunity to interact with your employees in a positive setting. It shows you care about improving your employees. It open lines of communications that make employees feel more comfortable coming to you with other work-related issues.
Training may take many forms. The most common is a group session focusing a particular topic for everyone to hear or experience. Don’t forget the value of very specific training for an individual or two, though. If you have only a couple of employees who are responsible for a particular task, very focused time with that one or two people can pay big dividends as they become more proficient and gain better understanding of how their job fits into the whole farm system. Maybe you will even want to send those key people to specific off-farm training opportunities. This focused time can also help you, as the employer, assess needs of the employee and goals they have for themselves. You may find the next higher-level hire in this small team training session. 
With this discussion, if you are still concerned about training a person only to have them leave in a short time, consider this statement from Sarah Fogelman, former Kansas State University ag economist: “I don’t worry about hiring a great employee and having him leave in three months. I worry about hiring a bad employee and having him stay for three years.”
I for one would rather hire and develop that good employee, plus treat them well enough they want to stay with me for three years or more.
 
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.
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