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February 2013 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.

Family Farms with Working Kids Must Know the Law

Feb 24, 2013

Child labor is a priority for the Department of Labor, and the penalties can be severe. Don’t let family traditions and your good intentions create unintended consequences.

Anthony Raimondo 2010 06 photoBy Anthony P. Raimondo, attorney

One of the great strengths of the dairy industry is the tradition of family farms. When children grow up on the farm, involvement in farming activities can become a part of growing up. For the children of farmers, experiences like driving a tractor for the first time are milestones of the journey from child to adult.

But for some farming families, these experience can be a nightmare. One family in California allowed their teenage son to drive a tractor for the first time under the supervision of his father and an adult sibling. Unfortunately, he lost control, had an accident, and was injured. Fortunately, his injuries were not severe and he recovered.

This farming family bought itself a whole separate set of troubles. After the accident, it received a visit from the U.S. Department of Labor (DOL). When the DOL learned of the accident, the agency began to treat the young man driving the tractor as a child labor violation. The problem is that there are very strict restrictions on minors operating equipment like tractors, forklifts and similar items.

Under child labor laws, there are exemptions that are applicable when children work for their parents. The problem is that, like many families, they have organized their business as a corporation to protect their assets from the liabilities of the business. But there are a variety of consequences that come with organizing the business as a corporation. Corporations are "persons" in their own right under the law, and, generally, when the minor works for a corporation he or she is not working for the parent, and the exemption does not apply. There are some exceptions based upon how the ownership of the corporation is set up, but the DOL’s starting point is that a corporation cannot use the parent-child exemption to avoid compliance with child labor laws.

All farming businesses should be familiar with child labor laws, which limit the number of hours that minors work and restrict their ability to operate equipment. If the business is organized as an entity other than a sole proprietorship owned by the minor’s parents, then the family should make sure it understands the child labor rules before allowing any minors to operate any equipment, or to work full time or more.

Other child labor cases have arisen when farming families offer employment to the children of family friends, or to help employee families by offering employment to the children of employees, especially in the summer months. Child labor is a priority for the DOL, and the penalties can be severe. One possible penalty is a "hot goods" action, where the agency can obtain a court order stopping the product wherever it may be in the chain of commerce and prohibiting it from being bought, sold, or shipped. Because child labor is a priority for the DOL, farming families should be careful that their family traditions and their good intentions do not create unintended consequences.

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.

Immigration Reform: Have We Finally Reached the Promised Land?

Feb 11, 2013

It will be vital for dairy interests to pay extremely close attention in the coming weeks to make sure that statements of goodwill translate into farm-benefiting immigration reform.

Erich Straub   CopyBy Erich Straub, attorney

A historical milestone was reached in ethnic politics this past November. While an African American being re-elected as president was significant, something bigger happened. The Latino vote, the fastest-growing portion of the American electorate, finally came of age. Most post-election pundits agreed: A huge reason for Mitt Romney’s defeat was his abysmal support among Latinos, which was mostly attributed to his "self-deportation" policy position.

Whether or not your candidate prevailed, the result could be the best-case scenario for dairies regarding immigration reform. Almost overnight, the Republican leadership began to reverse its opposition to comprehensive immigration reform. The message was clear: If the party wanted to have an "R" behind any president’s name in the foreseeable future, the issue needed to be resolved immediately and in a way that was humane and credible with Latino voters.

Skepticism from the dairy industry would certainly be understandable. After all, the memory of frustrated attempts at reform in 2007 and 2008 are still fresh. But just a few weeks ago, a bi-partisan group of senators and the President announced plans that were striking in scope as well as similarity. The Senate plan, in particular, represented significant compromise on both sides of the aisle. The signs of the end to a long wandering are unmistakable, and they are getting stronger.

The Senate plan was particularly good for dairies, the only specialized area of an industry that was mentioned by name. A laundry list of past ills was addressed:

  1. Expedited legalization of the current agricultural workforce with a path to citizenship;
  2. A new temporary visa for future agricultural workers that is efficient, affordable and market-based; and
  3. Recognition that the "one size fits all" approach toward agriculture must give way to a visa that is flexible for industry whose business needs are complicated and diverse.

 

Of course, the devil is in the details, and the statements by senators and the President were "principles" and not actual legislation. It will be vital in the coming weeks and months for dairy interests to pay extremely close attention to the bills and make sure that statements of goodwill translate into immigration reform that truly stabilizes and strengthens farms and rural communities.

Producers should also start preparing themselves for a new reality. Senate leaders and President Obama described a work visa that is not tied to a particular employer, but instead gives workers the freedom to move from job to job if they choose. They promised vigorous labor protections and harsh treatment for employers who continue to hire undocumented workers under the new system. They called for creation of a new mandatory E-verify system, which would almost certainly be backed by continued expansion of I-9 inspections.

But if reform results in legalization for the current workforce and a temporary work visa that meets future labor needs, dairies should have little to fear from E-verify and I-9 inspections.

So has the dairy industry finally reached the immigration promised land? Optimism must be tempered with vigilance as the process unfolds. But after many years wandering in the desert, the signs are extremely positive. A simple historical principle certainly gives comfort. When political self-interest and policy-need align, things often get done.

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. In 2008, the Milwaukee Business Journal described him as a "national leader on the federal immigration issue." Contact him at (414) 224-8472, or erich@straubimmigration.com.

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