The undercover taping of animal abuse at farms in Ohio and Pennsylvania earlier this year has been one of those proverbial wake-up calls.
Not only must dairy operations revisit their animal handling policies, it serves as a dire warning that employees might not be who they say they are. Take note: The undercover videographer who taped the alleged abuses in Pennsylvania was the same person who months later taped the Ohio incident.
A closer vetting of new hires is absolutely essential in protecting your dairy from a similar incident, says Eric Hobbs, an attorney with Michael Best & Friedrich LLP, based in Milwaukee, Wis. Hobbs specializes in labor and employment issues.
While the chances of actually hiring someone who is an undercover animal rights videographer are probably remote, delving into a job applicant’s previous work record and references is only sound business, Hobbs says.
“Absolutely check references. There are some shocking statistics on the high percentage of resumés and job applications that have puffery or outright lies about previous employment and education,” he says. “Checking references thoroughly is time-consuming. But you want to vet each applicant really well. It’s easier not to hire than it is to fire.”
Previous employers might give you only “name, rank and serial number”—that is, that the employee did indeed work for them, and start-to-quit dates. Many employers believe they cannot legally give you more, or decline to do so for fear they could be sued by a previous employee for giving a bad reference.
But if an employee was disruptive or had other issues, some previous employers may subtly signal that there were problems. If there were major problems—for example, if a former employee sexually assaulted a coworker on the job and there is a risk that he or she might do so again—the employer could be held legally liable in some states for not disclosing this information to you, Hobbs says.
During the employment interview, it is perfectly legal to ask whether the applicant is or ever was a member of an animal rights group. If the answer is yes, you can then ask how deeply involved the applicant is (or was) in the organization.
Mere membership in an animal rights group is not a “protected characteristic” under
employment law, as are race, gender, sexual orientation, religion, veteran status and union membership, Hobbs says. Sympathy with animal rights efforts, however, can be an outflow of a person’s religious convictions. But if you feel uncomfortable hiring an applicant who is sympathetic to animal rights causes and he or she has not tied that sympathy to a religious
conviction, you have every legal right not to hire the person.
At the same time, if a person denies ever being a member of an animal rights group and you hire that person and later learn otherwise, the lie is grounds for dismissal. “So it’s good to ask the question, because you are creating a record in the employment interview that you can use later
if you need to,” Hobbs says.
Hobbs also recommends having a written job application that every applicant completes. Again, asking whether the applicant is a member of an animal rights organization should be on the form. “Having something in the individual’s handwriting is even better than having a record of admission or denial during an interview,” Hobbs says.
A Google search of the applicant is also perfectly legitimate. In fact, Hobbs says, it could well be a good idea. “The Internet is a virtual gold mine for employers because it is a great way to find out more about a potential employee,” he says. “You also can require that the applicant tell you what name he or she goes by on Facebook and that applicants confirm you as a friend if you invite them.”
If you decide to do an Internet search of the applicant, “check the Facebook page immediately to ensure that the applicant doesn’t remove material he realizes all of a sudden it wouldn’t be good for you to see,” Hobbs says. “It’s amazing what people will say on Facebook.”
The downside to a Google or Facebook search is that you might learn things about the applicant that you do not want to know because it is not relevant to the job the person has applied for. A search might also reveal a protected characteristic of the applicant that you do not need to be aware of—such as membership in a religious organization, union or association of people with disabilities.
If you later discipline or terminate the person, he may claim that you discriminated against him based on his membership in the protected class you learned he was part of during the application process.
If you decide not to hire an applicant because he or she is, or might be, a member of an animal rights group, that is your right. Whether you should share that decision with neighbors or a trade association is another matter.
“If you’re literally just suspicious of the person but have no reliable basis in fact that you can point to for that suspicion, defamation could be a problem,” Hobbs says.
“But facts are facts,” adds David Crass, an attorney and colleague of Hobbs. “If in the interview or on the job application the person said he was not an animal rights supporter but his Facebook page says ‘yes,’ that information can be shared. For your protection, take a screen shot of the Facebook page and file it with the application.”
POLICY MANUAL MUST-HAVES
For both ethical and legal reasons, your employee manual should include a section on animal care and handling.
“Adopt a zero-tolerance policy on animal abuse,” says David Crass, an attorney with Michael Best & Friedrich, based in Madison, Wis. Also require that any abuse by other employees must be reported immediately to a senior manager.
“Then you need to train employees in appropriate animal handling techniques, and police employees on the policy,” he says.
If an employee is caught videotaping another employee abusing an animal without telling you about it, that employee has violated the policy because he or she did not immediately report the abuse. That failure could be cause for termination.
Personal cell phone and camera use should also be covered in the policy manual. There is no limit on what employers can prescribe, Crass says. You can prohibit any use of a personal cell phone, requiring employees to leave phones in their vehicle.
“In fact, you’re more likely to run afoul of the law if you don’t prohibit use, one of your employees talks and drives, and then causes an accident,” Crass says.
Some dairies provide two-way radios to their employees for on-farm communication. The employees simply check a radio out when they start their shift and return it when they’re done for the day.
Other operations have dairy-issued cell phones without camera or recording capability, and prohibit texting or talking while driving vehicles or operating equipment.