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November 2012 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.

Start the New Year with Focused, Motivated Employees

Nov 30, 2012

Have you met with your team leaders, supervisors and middle managers to define next year’s performance expectations and goals? Or done an individual performance review and discussed opportunities for growth?

Soriano photo 1 12By Felix Soriano, MS, PAS, APN Consulting, LLC

The New Year is almost here. Have you taken time out of your busy schedule to meet with your team leaders, supervisors and middle managers to define next year’s performance expectations and goals? Also, this would be a good time to do an individual performance review and discuss opportunities for growth.

Discuss overall goals and expectations for your dairy first and then discuss specific goals for each area within the dairy that each one of your leaders/supervisors is responsible for. Discuss what needs to be done to achieve those goals, have them participate on that discussion, and finally develop a plan with your team on how to get there.

Finally, have your leaders convey these goals to the rest of the workforce. This can have a tremendous impact in people’s will to excel (motivation) and will help them stay focus on the tasks that will lead to high performance.

Also, if you didn’t do a performance evaluation with each of your leaders yet, this might be the time to do it. I always recommend using the Negotiated Performance Appraisal (NPA) developed by Dr. Gregorio Billikopf. Unlike the traditional approach, the NPA can help you jointly develop a plan for performance expectations and improvement with each employee. It will also allow you to plan on how to achieve those goals individually with each one of your team leaders. For more information on the NPA, read my article called “A useful appraisal tool” at www.apndairy.com.

The negotiated performance appraisal can be a great tool to use once or twice per year as a coaching tool with your employees. You will be able to improve people’s skills, define goals and expectations for them, and develop a succession plan for your operation with your key employees.
Always remember that your employees are your most important resource. They are a key driver of your dairy’s success or failure. Having these types of meetings with them will help you keep them motivated and focused on the tasks that will make your dairy more profitable.

Finally, having an outside consultant participating in these meetings can improve their efficacy. Asking your veterinarian, nutritionist, or consultant to participate can be of great help. The language barrier with some employees may be an issue though, so having someone with experience in running these meetings that can speak the native language of your key employees can be an asset.

Felix Soriano, president and founder of APN Consulting, has more than 10 years of experience working with dairy producers and developing tools and programs to improve dairy performance and profitability. He has a Master of Science degree from Virginia Tech and received an Agricultural Labor Management Certificate from the University of California. Born and raised in Argentina, Soriano can relate and communicate very well with Hispanic employees to help bridge the communication and cultural gap between workers and managers. While working as a manager for a feed additive company, Soriano developed his leadership and supervisory skills. Now based in Pennsylvania, Soriano can be reached at 215-738-9130 or apnconsulting@verizon.net or felix@apndairy.com. Visit his website at www.apndairy.com.

What Does Obamacare Mean for Farmers?

Nov 24, 2012

While the law remains uncertain, here's important employer information for implementing the new healthcare mandate.

By Anthony P. Raimondo, attorney

Anthony Raimondo 2010 06 photoIn 2014, the mandatory coverage provisions of the Affordable Care Act (also known as Obamacare) will take effect. While there remains significant uncertainty about the law because regulations have not been completed, employers should begin to plan now for the implementation of the law.

All employers who offer health coverage must be aware that the law requires that W-2 forms issued for 2012 include the cost of employee health coverage. But 2014 marks the year that the law has its greatest impact on health care coverage.

The basic principles behind the law are, first, a requirement that all individuals secure medical insurance coverage. For those who work for employers with 50 or more employees, the law is designed for the employer to provide coverage, and penalizes large employers who do not offer coverage. For those whose employers do not provide coverage (either large or small employers who choose not to offer coverage), the law establishes a subsidized insurance exchange designed to make coverage available and affordable, and coverage will be available through the exchange for families that meet certain income requirements.

The most significant item taking effect in 2014 is the so-called “pay or play” penalty. Employers with more than 50 full time employees must provide minimum essential coverage that meets an affordability or value test. Employers who do not provide coverage must pay an annual penalty of $2,000 (assessed monthly) for each fulltime employee, but the penalty is subject to reductions and credits that can reduce the obligations on employers, especially those just over the 50 employee threshold. Employers with more than 200 fulltime employees must automatically enroll employees in their health plans, subject to an employee opt out. However, the regulations for this process have not been developed as of yet, and the requirement will not be implemented until regulations are in place.

These penalties are designed to push employers to offer coverage that is both “affordable” and of “minimum value.” Affordable means that the employee’s premium contribution for self-coverage (as opposed to family coverage) must be less than 9.5% of the individual’s household income. Accordingly, employers can avoid the penalty by keeping the premium for employee-only coverage below the 9.5% threshold, even if family plans exceed the threshold. Minimum value means the plan covers at least 60% of medical costs through deductibles, co-pays at the like.

Fulltime employees are those working at least 30 hours a week on average. While there is an exemption available for seasonal employees, who qualifies as “seasonal” has not yet been defined through the regulatory process. However, the statutory structure does allow agricultural employers to plan for how seasonal employees will be handled under the law.

The key for agricultural employers is the definition of a “fulltime employee” and how it is applied to seasonal workers. Under the law, a fulltime employee is one who works 30 or more hours a week on average. The key is how this average is determined. For current employees, the employer will use a “look-back” period as the law takes effect to determine the average hours worked. First, the employer must determine a “standard measurement period.” This look-back period must be at least three months and no more than 12 months long. By using a longer look-back period, such as a year, the employer can avoid the 30 hour per week threshold by including periods of time when the employee was not working due to seasonal inactivity.

If the employee is fulltime during the look-back period, then they must be treated as full time for the entire “stability period.” The stability period is a period of time equal to the standard measurement period, but never less than six months. The “stability period” is the period of time looking forward from the determination that was made based on the look-back period. For example, if we look back 12 months, and the employee worked 30 hours per week, then the employee must be treated as fulltime for the next year (stability period) regardless of the actual hours worked during the stability period. An employee who is not fulltime during the look-back period (12 months in this example) can be treated as not fulltime for the stability period, the next 12 months looking forward.

For new employees, employers must make a good-faith determination as to whether the employee will work fulltime (30 hours per week, average). For example, it appears that if current seasonal employees who are similarly situated are not fulltime because of the 12-month look-back period, then the employer can treat the new employee as not fulltime. However, after the employee has worked a complete standard measurement period (three to 12 months), the employer must recalculate the hours worked and determine whether the employee has averaged 30 hours and is thus fulltime.

As discussed above, much of the coverage obligation will be determined by the hours worked and the period used to measure that average. Unfortunately, there remains a great deal of uncertainty about Obamacare as regulations continue to be drafted to implement the law. Agricultural employers should continue to monitor these developments, especially as regulations are developed to address the exemption for “seasonal” employees. But planning for 2014 should begin now, because staffing levels and hours worked will impact the look back-period that could be the difference between providing coverage, facing penalties, or having choices regarding benefits.

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.

On the Safe Side

Nov 18, 2012

How to prepare your dairy for an OSHA audit.

ChuckSchwartau photoBy Chuck Schwartau, University of Minnesota Extension

It’s a long held concept that employers should expect that a fair day’s work and a fair day’s pay go hand in hand. What is sometimes forgotten is that the worker should also expect a safe place in which to do that work. Occupational Safety and Health Administration (OSHA) audits are fairly common in many industries, but in agriculture, they have been rare and often conducted only after a fatal incident. In some regions that is changing, and dairy farms are more often the subject of an OSHA audit.

An audit doesn’t have to be something a farm should fear, assuming the farm has a safety plan in place that meets basic requirements. A complete, detailed plan can take significant time to develop and implement, but basic concepts can be implemented rather quickly and at minimal cost.

An Australian program called “The People in Dairy” suggests “SAFER” Principles for safety:

See - identify hazards to health and safety on the farm
Assess - decide the risk associated with the hazard
Fix - take appropriate action to control the risk
Evaluate - check to be sure your controls are effective
Record - record actions you take or plan

Similar plans are part of OSHA training programs that help industries of all kinds meet the requirements for a safe workplace.

“Seeing” hazards is a job in which everyone on the farm must participate. There are obvious, large hazards on most farms, but there are also many small and insignificant appearing ones that need to be address as well. Make it easy for workers to report and record hazards as they are seen so someone on the farm can “Assess” them promptly.

An assessment should be conducted to establish the severity of the hazard and determine appropriate action steps -- the “Fix.”

Action steps don’t always mean expensive fixes or changes, however. High risk hazards should be eliminated if at all possible, but many hazards can be addressed in different ways. The methods and priorities for controlling risks are often addressed in the following order:

1. Eliminate the hazard when possible. This might mean replacing a product or piece of equipment or totally eliminating it from the farm.
2. Substitution is another option. You might be able to replace the hazard with something else less hazardous that still does the job. The substitution might be equipment or a different procedure.
3. Engineering might minimize the hazard. Installation of guards, railings, safety switches or building proper storage units often eliminates or minimizes the hazard.
4. Safe work practices and procedural changes may minimize the risk to workers. A set of well-written standard operating procedures (SOPs) should include practices that avoid or minimize risks.
5. Finally, personal protective equipment (PPE) is a last measure to be considered. After everything else is done and there is still some degree of hazard, provide proper PPE for workers and insist it be used as it is intended. PPE’s on a shelf, in a cupboard or hanging on a hook are no protection.

“Evaluate” is the fourth stage of the SAFER program. Check the impact of the "fix" that was implemented. It is important for employers to check back and be sure the steps taken have achieved the desired outcome. Did hazard elimination or guarding get done? Were SOP’s developed and are they being followed to eliminate or minimize the hazard? Is PPE being used all the time? If any of these questions leave doubt that the hazard has been fully addressed, you know your job of providing a safe workplace isn’t quite done and you need to look again at the action step.

“Record” all the actions you take or plan to take. This will provide the documentation that would probably be requested if your farm is ever the subject of an OSHA audit.

The most important factor to achieve success is the people on the farm. If the people aren’t willing to work with you on safety, a good safety program will be difficult to implement. If the workers are engaged in the plan development, they are much more likely to implement it.

Suggested steps to worker engagement are:
• Work with the workers to identify hazards and have them help with assessment.
• Regularly include health and safety discussions in staff meetings.
• Record workers’ input and actions taken on any safety items. This step will help demonstrate your effort to comply with regulations.
• Be a good role model for your workers.

I very deliberately used the term “workers” rather than “employees” because the term worker also includes all owners and managers on the farm, not just the people out in the barns day after day. A culture of safety on the dairy means everyone needs to take the issue seriously, and everyone needs to practice safety all the time. If you don’t work safely all the time, why should others on the farm?

Minnesota and Wisconsin are offering dairy farm safety programs this winter (2012-13) to help farms achieve the goal of a safer workplace. Be watching for dates and locations. Many other states around the country have similar programs, so watch for them, or ask your Extension Service or insurer about programs in your area.

Chuck Schwartau is an Extension Educator at the University of Minnesota. Contact him at

Never Forget What It Was Like

Nov 10, 2012

When managing your employees, think back to your own first job, previous employer or early mistakes.

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

The best piece of advice I ever received about teaching was what I have used as my title. When I was a first year teacher, Mrs. Wilson, with whom I shared a classroom, told me that if I wanted to be a really good teacher, I should never forget what it felt like to be a teenager. Another of her gems was to ask, when a child misbehaved or goofed up, “What did you learn from this?”

Whenever I was confronted with a young person acting in a frustrating way, I thought back to my days as a student, and some of the things that must have seemed very frustrating for my teachers.

I think this applies to being a good employer as well. Can you remember how it felt to have your first job? And if you never worked off the farm, can you remember how it felt to work on the farm?

If you had a good employer, he or she took an interest in you. They tried to help you do your best as an employee. They coached you, trained you, corrected when necessary, but also accepted that you would make mistakes, and then helped you learn from them.

If you didn’t have a good employer, you worked often in fear of being fired. How did it feel to make a mistake? And then to have to admit it? Or to inform your employer of it? Scary, wasn’t it?

Now, what if we used the mistakes less as a way to make people feel badly, and rather as a learning experience? Here are a few questions that I suggest you ask your employees when something has gone wrong:

1. Don’t ask why they did that. It only offers an opportunity to make a lame excuse.

2. Ask, rather, what was happening when the mistake took place? Were you feeling in a hurry, distracted, in charge, careless? What was going on in your mind at the time?

3. How do you think the mistake has affected the entire farm? Has it cost us money, time? How has it inconvenienced others and you?

4. What can and will you do next time to prevent this from happening again?

5. Try not to ask questions with a yes or no answer. You are looking for thought and input from the employee. It is too easy to just ask a yes or no question.

I think people will be surprised at first. They will feel good that they weren’t yelled at. It may feel odd at first, but in the long run, they will do a better job. The responsibility has been placed on them in answering the questions, and they are in charge of changing their behavior.

Think back to a time when you made a mistake. If it was met with understanding, compassion and a chance to be responsible and make it right, how did that feel? If it was met with punishment or blame or scolding, how did that feel? Good life lessons. Think in the long term. We are all moving toward being better people. Your employees are no different.

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.

Immigration Enforcement’s Outlook Uncertain

Nov 03, 2012

What might the next four years bring for immigration enforcement, especially for agricultural employers?

Miltner photo   CopyBy Ryan Miltner, attorney

The Presidential election is today. No news there. And there has been speculation about what the next Congress might do with respect to comprehensive immigration reform efforts. However, little has been written about what the next four years might bring for immigration enforcement, especially with respect to agricultural employers. I thought it might be useful to take a short look at that under-examined area.

When immigration became a hot political issue, about six or seven

Ryan Miltner will speak at Dairy Today’s 2012 Elite Producer Business Conference Nov. 6 in Las Vegas. Click here to learn more.

years ago, President George W. Bush’s enforcement strategy was heavily focused on workplace sweeps, or raids. The effect on employers was, predictably, chilling. Armed federal agents would descend on an employer, rounding up suspected illegal workers. The remaining workforce, some of whom were likely undocumented in their own right, invariably vanished. The business, to the extent it could function, was severely paralyzed. In the case of dairy farms, cows were left without milkers. Farm owners scrambled, enlisted the help of their friends and neighbors. But the damage was done. In many cases, the farm had thought it had complied with I-9 requirements.

With President Obama's election, ICE shifted its strategy to one of audits. Rather than make a show of force with agents and arrests, employers were now served with subpoenas to audit their I-9 records. These subpoenas and audits had the advantage to the employer of being far less conspicuous. Further, if the employer had been in compliance with his or her I-9 requirements, the process of identifying and removing undocumented workers was somewhat less disruptive to the overall business operation.

So, the question for today is, what will the outcome of the federal election have on these policies? In all likelihood, the reelection of President Obama would have little effect. The current policy of audits would continue. The election of Governor Romney, however, is less clear.

On one hand, Republicans have tended toward much stronger enforcement measures. The mantra of secure, deport, then reform, was unbending during the Bush administration. But on the other hand, Governor Romney has strong ties to business, and the U.S. Chamber of Commerce has been very critical of haphazard enforcement efforts that harm businesses attempting to comply with immigration laws. Also, the overall political environment regarding immigration has softened somewhat over the past several years. A strong argument could be made that under a Romney administration, the current policies of audits, combined with the use of Social Security no-match letters, would continue.

For dairy producers looking at enforcement policy apart from immigration reforms, that would certainly be good news.

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 ryan@miltnerlawfirm.com.

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