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April 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.

Be Prepared for Government Inspections

Apr 25, 2011

Today, it’s not a matter of if but when your business faces a government inspection. Dairies and other businesses should have protocols in place to handle inspections and investigations, whether they’re from OSHA, DOL or ICE.

Anthony Raimondo 2010 06 photoBy Anthony P. Raimondo, attorney
In a time of increased enforcement activity from a range of government agencies, dairies and other businesses should have protocols in place to handle inspections and investigations.
These investigations can take a variety of forms. For example, state and federal Occupation Safety and Health agencies have the right to enter and inspect businesses to confirm compliance, as well as to investigate after accidents. State agencies such as the California Labor Commissioner and the U.S. Department of Labor (DOL) have authority to enter and examine time and payroll records and other materials both in random inspections and in response to complaints. Immigration and Customs Enforcement (ICE) can conduct raids and audits to enforce immigration laws. Both state and federal tax authorities can conduct audits and inspections to make sure that payroll taxes are properly paid.
Regardless of the agency involved or its purpose, a government inspection protocol should have the following general features:
  • There should be a designated person at the business who is in charge of handling government visits. This should be a person who can remain calm and be diplomatic with government agents but has the backbone to stand up for the business if the agency tries to overreach and exceed its right of access. This person should have cell phone access to the attorneys for the business.
  • The designated person should be trained on what the different agencies’ right of access is. For example, ICE can conduct I-9 audits, but must give three days’ written notice. If ICE wants to conduct a raid to search for particular evidence or people, it can proceed unannounced but must have a search warrant. DOL can inspect payroll records without advance notice, but if it wants to audit I-9s, it must give the same three-day notice that ICE gives.
  • When visited by government personnel, on-site employees should be trained to greet the agents politely and inform them that only the company’s designated person has authority to provide access. Ask the agents for business cards, and contact the designated person. Offer coffee, water and other refreshments if possible. There is no reason to antagonize, and the process will go much easier if the agents are treated well.
  • The designated person should have a response time of no more than 10 or 15 minutes. During this time, it is essential to verify that the agents are who they claim to be, and that they have the right to see whatever it is that they are looking for.
  • Management and supervisory employees must not allow themselves to be interviewed unless the business’s attorneys are present. Their statements can bind the business legally, and the business has a right to its attorneys for such interviews.
Most government agents will understand that you are running a business. As long as you behave reasonably, they will work with you so that you can provide copies of any requested documents to their office or schedule a mutually convenient time for an inspection. If a rogue agent shows up and is belligerent and uncooperative, do not provoke a confrontation. Simply document the behavior and collect witness statements to demonstrate the misconduct. This will give your attorneys the tools they need to address the misconduct without making things worse for the business.
In the current environment, it is not a matter of if your business faces a government inspection, it is a matter of when they show up. As with all areas of business, understanding your rights and being prepared will put you in the best position to address an inspection while minimizing its impact and disruption of the business.
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, Calif., at (559)433-1300.

OSHA, ERTK -- They Aren’t Just Found in Alphabet Soup

Apr 17, 2011

There are increasing reports of OSHA inspections on dairy farms in the Midwest, so it may only be a matter of time before your farm is on the inspection list of one or more alphabet soup agencies.


ChuckSchwartau photoBy Chuck Schwartau, University of Minnesota Extension

As kids, many of us enjoyed alphabet soup for lunch.  Today, when we see a lot of letters that look a bit like alphabet soup, most tend to cringe rather than salivate. 

“OSHA” is a pretty well recognized set of letters representing the Occupational Safety and Health Administration. OSHA is charged with protecting the health and welfare of workers from a wide range of hazards. Farms are generally subject to the same rules as every other employer.

What farmers should note, however, is that by rule, employers with less than 10 employees are technically “under the radar” of OSHA, so they’re unlikely to be inspected. What can change that situation for a farm is an injury to an employee that may trigger an OSHA investigation. That can happen regardless of the business size. 

If OSHA audits your farm, there are several things they may ask to see. Among key items will be your Employee Right to Know (ERTK) program. So -- what is it and how do you comply? An ERTK is a plan for training your employees about the hazards that may be encountered on your farm, the potential consequences of the hazards and how to deal with them on the farm.  An ERTK don’t have to be costly to develop and implement, but it does need someone who pays attention to the details and makes sure the process is followed on the farm.

Following are several key points:

A. Training shall be made available by, and at the cost of, the employer.

B. Records of training must be maintained by the employer, retained for five years.

C. Information and training programs may relate to specific exposure hazards; the common hazards; or to the hazards of a complete production operation, whichever is more effective. Specific information on individual hazardous substances or mixtures and harmful physical agents must be available in writing for employees' use.

D. Once training has been completed, an employer may request the employee to sign a statement that the employee has been trained as required by specific sections of law.

E. Frequency of training.

  1. Training must be provided to an employee prior to initial assignment to a worksite.
  2. Additional training must be provided relating to hazardous substances to which employees might be exposed.
  3. Training must be provided at intervals of not greater than one year. Maintenance of a private applicator's certification or commercial applicator's license fulfills the annual training requirement.
  4. Employees performing the same or similar job assignments for more than one employer during the current growing season need only be trained once.

F. An employer may be required to demonstrate how their training program meets the requirements of the law.

G. The employer shall maintain current information for training or information requests by employees.

These are only the basics of an ERTK program. Specifics and guides for complying with the rules can be found in “An Employer’s Guide to Developing an Employee Right-To-Know Program.” This guide is available from OSHA in an online format from sites such as http://www.dli.mn.gov/OSHA/PDF/ertk_gi.pdf. This is on the Minnesota Department of Labor and Industry website, but other states and the federal OSHA website should have the same guide available.

One other thing to remember is the training needs to be understandable by all your employees, so on many farms this will mean two offerings -- one in English and one in Spanish. There may be extra cost to secure a Spanish-speaking trainer, but not conducting and documenting the training may also result in a significant fine for non-compliance. Taking the positive step will probably be much less costly.

Finally, take time for a safety inspection on your farm. Involve your employees as well as your own time. There are increasing reports of OSHA inspections on dairy farms in the Midwest, so it may only be a matter of time before your farm is on the inspection list of one or more alphabet soup agencies.

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.

Immigration Reform: View from the Front Lines of the D.C. Budget Wars

Apr 13, 2011

2011 will be dominated by the federal budget, making it tough for any other message to be heard. But immigration reform advocates cannot just walk away.

Erich Straub   CopyBy Erich Straub, attorney
On April 6, 2011, I traveled to Washington D.C., to advocate for immigration reform. Because I live in Wisconsin, I met with representatives from my state. Accompanying me was another immigration attorney and a dairyman named John, who is a Democrat. Our group met with a total of five congressmen. Another group of Wisconsinites, including a Republican dairyman named Tim, met with the other members of the Wisconsin delegation, including our state’s two senators. 
Based on these meetings, here are my observations on the state of immigration reform on Capitol Hill, specifically as it relates to dairy.
Budget Obsession
We had our meetings just two days before the deadline for the federal government to shut down if a budget agreement could not be reached. The mood was very tense.
This is the fourth time in recent years that I have traveled to D.C. to meet with the Wisconsin delegation on immigration reform, and I have never seen the congressional staffers so distracted. I say “staffers” because, for the first time in my experience, not a single elected representative met with our group personally. Was this a not-so-subtle signal to us about the importance of our issue? Our group did not take it that way because it was clear from the television monitors in each office that our elected officials were consumed with committee meetings and floor debates on the budget.
The budget crisis was averted, literally, at the 11th hour just two days later. So what does this all mean for immigration reform? The lesson that I took away is that 2011 is going to be dominated by the budget and will make it a tough year for any other message to be heard. 
But reform advocates cannot just walk away—if we do not raise our voices, we risk losing ground amidst the budget rancor. The budget wars will eventually end, and our elected officials need to understand that the nation’s broken immigration system should be at the top of the list of issues to tackle next.
Impressionable Freshman
Before traveling all the way to D.C., our group understood that the immigration reform message would be overshadowed by the budget. One of the reasons we decided to go to D.C. anyway was to speak to the new members of our delegation who did not yet have a track record of voting on immigration. Like most of the nation, the freshman delegates from Wisconsin were from the Republican Party. After meeting with the staffers for two of them, I came away cautiously optimistic that they would support the Agricultural Job Opportunities, Benefits and Security Act, or “AgJOBS.”
AgJOBS creates a route for undocumented workers to file for temporary lawful residence or a “blue card.” These same workers could eventually qualify for lawful permanent residence and citizenship. The bill would also streamline the H-2A visa process, currently the only avenue available for the agricultural industry to obtain “seasonal” foreign workers. Significantly, AgJOBS would make the H-2A visa available for the first time to dairy. Under the current H-2A rules, dairy workers are not eligible because they normally do not meet the definition of seasonal.
If immigration reform is ever going to be accomplished in Congress, our representatives have to reach common ground. After meetings at the offices of two of Wisconsin’s freshman delegates, I am more convinced than ever that AgJOBS is an area of common ground for both parties. Dairy needs to push harder than ever for this bill, particularly with new members of Congress.
All Politics Is Local
For the last three years, I have traveled with dairy producers to advocate for immigration reform in Washington, D.C., and I cannot overstate how critical their voices have been. D.C. may have the highest concentration of lawyers in the world, and an immigration lawyer can only have a limited impact when advocating with elected officials. 
The dynamic is completely different when dairy producers step forward and tell their stories. You are not just another lawyer—you are constituents, business owners, and often the neighbors of our elected officials and their staff. Your voice is critical in this debate.
I was again reminded of this fact during my recent trip. During one meeting, the two attorneys in our group were having a passionate discussion with a staffer about what the phrase “securing the border” really meant. After the discussion had gone on for some time, Tim, the dairyman in our group, had had enough and finally interjected: “You know, you guys need to just get together and finally decide what it means, because at the end of day, I still have to milk my cows.”
Sometimes the simplest argument is the best.
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, and in 2008, the Milwaukee Business Journal described him as a “national leader on the federal immigration issue.” Contact him at estraub@straubimmigration.com.

Tips for Conducting a Successful Training Session for Your Dairy’s Hispanic Employees

Apr 04, 2011

Providing pizza in a comfortable meeting environment and limiting information to six points are among ways to ensure successful training.

Chahine photo   CopyBy Dr. Mireille Chahine, University of Idaho
Training and development of employees is very important to dairies of any size. In order to have a good job performance, it is crucial for the Hispanic worker to understand why he/she is following a certain procedure. Training builds the morale of the employees, improves their performance, and ultimately positively affects the financial situation of a dairy. It also inculcates a sense of team work and collaboration.
Persons with the necessary language skills, people skills, and knowledge must conduct the training session. It is generally not a good idea to have a worker from the dairy do translations or training sessions, especially if he/she was not hired to do such a job. Asking a worker to translate for other fellow workers could create an environment of animosity in the workplace as it is perceived by some workers as favoritism.  
If you decide to ask a dairy employee to be a translator, make sure the employee is fluent in both languages and is correctly translating your message. I was recently on a dairy where an employee was distorting the instructions he was supposed to relay and was asking employees to do part of his job (he did not know I was fluent in Spanish). This does not mean that this always happens. Just be careful. 
Here are some tips that could be followed to ensure a successful training:
  • The environment in which the training/meeting is delivered is as important as the training itself. When possible, the training session should be conducted in a clean, well-furnished conference room. A nice, clean, and comfortable environment makes the participants more receptive to learning.
  • Provide ethnic food, ethnic desserts or pizza along with non-alcoholic cold beverages.
  • Schedule extra help to temporarily replace the workers who are being trained. Do not rush workers into finishing the training session. It might be a good opportunity for the owner to fill in for the workers in doing some tasks. I had the experience to work with a dairy owner who, on the day of the training session, teamed with other members of his family and milked for a couple of hours while his milkers were attending a training session. By doing this, he showed his employees that he respected their jobs and that he was willing to step in their shoes and get the job done while they were learning.
  • Achieve trust by arriving early and scheduling some time to talk to the workers, either individually or in small groups. Show sincere interest in your audience. Ask Hispanic workers about their families. Family ties are very important in the Hispanic culture, and the workers will appreciate it when you ask about their families.
  • Allow informal conversation among trainees before the training session starts.
  • Make clear prior to starting that any person can ask ANY question he or she wants. Make sure to stress to them that there is no such thing as a “stupid” question. 
  • Avoid staring in your trainees’ eyes without smiling. Hispanics find too much eye contact to be intimidating and a sign of disapproval. Avoiding complete eye contact could signal, however, a lack of confidence.
  • Expressing satisfaction and appreciation for a job well done is THE tool to motivate your audience. 
  • A receptive audience is the key for a successful training session. Be truthful, however, in your comments; otherwise you’ll appear to be manipulative. 
  • Begin by clearly defining the objective of your presentation. What will the trainees have learned after the session is completed?
  • Use an attention-getting statement or question to capture the attention of the participants. For example, ask them if they would like to participate in the success of the dairy where they are working or explain to them how important their job is for the success of the dairy.
  • It is important to capture the attention of the participants so they can remember for a longer time the information you are presenting to them. People forget 38 % of a presentation in two days, 65 % in eight days, and 75 % in 30 days. Make your presentation fun, by including visual aids, jokes, funny pictures etc.
  • Base your presentation on sound science.
  • Do not overwhelm your audience with excessive information. 
  • Do not cover more than six key points in one session.
  • Make sure you are verbally explaining any written material being presented.
  • Clearly explain to employees WHY they must follow a certain procedure.
  • Involve your audience in the presentation by asking questions to make sure they understand you.
  • If Spanish is not your native language, do not be scared. Hispanic workers appreciate the fact that you are doing your best to communicate with them in their native language.
  • Learn how to read the faces of the people you are training. Many times you can feel whether your audience has questions. If you feel there is something they do not understand, STOP and repeat the explanation.
  • Do not single out the performance of one worker by criticizing him/her.
  • Be sensitive to the body language of your audience. When you notice that they are losing interest, stop and give them a break.
  • End your presentation by reiterating and reinforcing a maximum of four to six key points that you would like the participants to remember.
  • Ask four to five questions to make sure they understood the key points of the session.
  • Allow enough time for the trainees to ask questions.
  • Listen with an open mind to the employees’ suggestions and concerns. They could help you identify weakness areas on the dairy.
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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