Take Control of Your Workforce Sooner Rather than Later
Aug 01, 2011
Avoid labor lawsuits and litigation costs by actively engaging with your employees and proactively managing your dairy to prevent small problems from becoming big ones.
By Anthony P. Raimondo, attorney
Dairy producers are very proactive when it comes to herd health and cow productivity. Dairies carefully monitor their cows for the first sign of ill health and respond quickly with treatment. Diets are monitored and adjusted to maximize animal health. Dairy producers know that if they catch problems early, they can keep a small problem from becoming a big problem.
But when it comes to labor issues, too often dairies wait for a problem to occur, rather than taking the steps to prevent small problems from becoming big problems.
In the dairy industry, owners and managers too often fail to fully engage with the workforce to manage labor issues. As long as the cows are getting milked and there are no obvious problems, the workers are often left on their own to get the work done. But this type of passive management stifles communication and allows small problems to become big problems.
Discrimination lawsuits against dairies are becoming increasingly common. Employees and the lawyers who represent them have come to realize that dairies are often vulnerable to these types of claims.
Recent examples include a dairy mechanic who suddenly quit and then accused the dairy of firing him because of his race. His positive drug test result came in within a few days of his quitting. In another case, a dairy chose to lay off an unproductive worker who had bounced around to a number of jobs and not done well in any of them. The dairy laid him off to save costs. He sued for age discrimination. In another case, a worker suffered a stroke and never contacted the dairy to tell them he was able to return to work. He still did not contact the dairy when they informed him in writing that they were letting him go because of his apparent inability to work. He sued, claiming that the dairy never contacted him to see if he could return to work and accusing the dairy of discriminating against him because of a disability.
What all these cases have in common is that in each case, the dairy had a strong defense. But in each case, the dairy did little to document the performance and disciplinary problems of the employee. In each case, the dairy would have been in a better position if it had been more proactive in managing the employees and documenting the background of the dispute. These dairies spent tens of thousands of dollars in legal fees, and ultimately settled the cases to avoid more legal costs.
Lawsuits are expensive, and one reason almost all of them settle is because of this cost. Even when the defense is strong, the prospect of an expensive trial can be daunting if a case can be settled for less money.
But there are steps that can be taken to prevent this problem, or to give the dairy a chance to get the case dismissed before trial.
The starting point is an effective employee handbook. A handbook tells the employees -- and the world -what the rules and policies are. It’s the foundation of workplace management. The handbook should be dairy-specific (not an office or industrial handbook with the names changed), and should be tailored to the unique features of the particular workplace. Rules violations should be enforced through discipline, and discipline and job performance should be documented in writing. It is not enough to describe a person as a poor worker. To have the upper hand with a court or jury, it is essential to have records that will paint a picture of the worker’s history.
But the true key to prevention is actively engaging with the workforce, and proactively managing the dairy. Waiting for a problem does nothing but ensure that when problems arise, they are bigger than they need to be. The more engaged the farmer is in managing the workforce, the earlier that farmer will recognize developing problems, and the more options there will be to address problems and avoid getting dragged into court. Even if the dairy has to work with a labor attorney to deal with a problem employee, dealing with the problem upfront is far less expensive than dealing with it after the fact in a lawsuit.
Active day-to-day management can protect the farm from expensive and stressful litigation. At the start, taking an active role in managing the workforce may seem difficult, but if a dairy can keep its cows healthy and productive, it can take control of labor challenges as well.
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